Low and another against Davy

Low and another against Davy. Philadelphia, Monday, July 12. If the. assured. N consequence or the port oí destination being onblockaded, accepts his goods from the carrier ing full freight, transports1 them by lighters to port' heíánnot recoverfiom the a^elther” expenses of ^nd th^freight paid for the pfemTum'of in surance paidfor m t!ie CASE. “On the 17th of March 1807, the defendant, as President pro tem. of the United States Insurance r_ . „ . Company, subscribed a policy of insurance, for and on behalf of the plaintiffs, in the sum of 17500 dollars r \ • goods on board_ the ship Le Roy, upon a voyage at and from New Tork to Bremen, at a premium of six per the same being declared on sugars valued at 100 dollars per hogshead, coffee at twenty-seven cents per pound, and Nicaragua wood at 120 dollars per ton. “On the 5th day of April 1807, the ship Le Roy sailed from New Tork upon the voyage insured, having on board goods, the property of the plaintiffs, amounting in value to the sum insured in the policy, according to the value in expressed. On her voyage, the ship experienced heavy gales of wind, by which part of her cargo was damaged. On the 11th of May 1807, she was brought to, and boarded by Has. British privateer Busy, William Bell, commander, who seized and sent her into Plymouth. The ship was restored to the claimants, her papers being indorsed by the Admiralty Court, forewarning her not to enter the river Weser, the same being blockaded by the British squadron; and thus “forewarned, proceeded to Tonningen, where the ship arrived. The cargo was landed at Tonningen, and there delivered to the agents of the consignees at Bremen, who paid the entire freight, by the bills of lading, and the-goods were forwarded in lighters for Bremen, one of which was captured by the British and restored. The plaintiffs did not abandon. In the adjustment of the loss, arising upon the damaged goods, the assured charge to the underwriters the expenses of landing and reshipping, and the freight paid for the trans portation of their goods in lighters from Tonningen to Bremen, and also the premium of insurance paid on one of the said lighters, which was captured by the British and after wards restored. “ Two questions are submitted to the Court. “ 1. Are the expenses and freight paid for the transportation of the goods in lighters from Tonningen to Bremen, or either of them, properly charged to the defendant in the adjustment of the partial loss? “2. Is the premium of insurance paid on said lighter properly charged in such adjustment? “ If either of said questions is decided in the affirmative,judgment is to be entered for the plaintiffs, and the amount of the partial loss to be ascertained and adjusted by referees to be appointed by the Court, under the Court’s decision of these questions. “ If both questions be decided in the negative, judgment to be entered for the defendant.” Chauncey for the plaintiffs. 1. The expenses and extra freight were paid to prevent a total loss; for the charter party being dissolved by the blockade, the master, unless full freight had been paid at Tonningen, would have been in-titled to bring back the goods to New Tork, and the voyage would thus have been broken up. It is the case of a payment made necessary for the whole concern by the peril of blockade, and is chargeable upon the same principle with expenses incurred to liberate an adventure from restraint. Park 174., Beawes 150. 2, The insurance was a measure of just precaution, arising out of the peril insured; and was effected for the benefit of whom it might concern, before the insurance in this country was known. It should therefore be borne by the defendant. Fontaine v. Columbia Ins. Co. . Binney for the defendant. 1. The payment of full freight at Tonningen was a voluntary act, and not a consequence of the peril; for the charter being at an end, all that the acceptance of the goods created an obligation to pay, was freight pro rata, and then the freight to Bremen would have made up the entire freight. If the owner of goods pays more than one full freight for the voyage, it is his own fault; the underwriters on goods have nothing to do with it. It does not appear that the goods would have been brought back, if full freight had not been paid; and if they would have been, the payment was not made to prevent a total loss, because whether total loss or not, depended upon the plaintiff’s electing to abandon, and not upon any fact that existed at the time of payment. 2. If the defendant was on the policy to Bremen, he cannot be charged with a premium on the same risk; if he was not, the events of that part of the voyage do not concern him. The New Tork case charged the premium to the underwriters, because the captain was forced to allow it to the agents who gave bonds to liberate the cargo, and who chose to insure their own interest. Here the same interest was voluntarily insured a second time. 9 Johns. 29. [MAJORITY — Tilghman C. J. Yeates J.] Tilghman C. J. This is an action on a policy of insurance on goods in the ship Le Roy, on a voyage from. New Tirk to Bremen. In the course of the- voyage, the ship was taken by a British privateer, and sent into Plymouth in England. The Court of Admiralty ordered restitution to the claimants, but the ship’s papers were indorsed with a warning not to enter the river Weser, which was then blockaded by a British squadron. Being thus warned, the ship proceeded to Tonningen, where having arrived in safety, the agents of the consignees in Bremen received the cargo and paid the whole freight. They then sent the goods to Bremen in lighters, one of which was captured by the British, and restored. An insurance was effected from Tonningen to Bremen. The question is, whether the defendants are liable for the cost of this insurance, or for the expenses of carrying the goods from Tonningen to Bremen. I cannot see upon what principle the defendants are answerable for those charges. If the plaintiffs thought proper to pay the whole freight when only part was due, it was their own affair, with which the defendants had nothing to do. Here has been no loss, the goods have arrived in safety at the port of destination. Whether the plaintiffs had or had not a right to abandon, is not now in question, for they did not abandon. The ship earned at most only7 a pro rata freight; and if the owners of the goods alter paying the entire freight of their own accord, incurred additional expenses in transporting them to Bremen, it is not in the nature of a loss for which they can claim an indemnity from the underwriters. Whether the Weser remained under actual blockade at the time the goods were carried round from Tonningen to Bremen, does not positively appear, although from the capture of one of the lighters, we are led to suppose that it did. The restitution of the goods captured in this lighter, may be accounted for from a fact mentioned in the case of The Maria, decided by Sir William Scott, 6 Bob. 201. It seems that the British government, on a remonstrance from Bremen, was induced to relax the blockade, so far as to permit the importation into that port in lighters. As for the insurance from Tonningen to Bremen, there is, if possible, less colour for that than the other charges. Because, if the underwriters remained liable for the risque between Tonningen and Bremen, they gave no authority to the plaintiffs to burthen them with the cost of another insurance, which it was folly to make without necessity. And if they were not liable for that risque, of course they are not liable for the expense of insuring against it. Upon the whole, I am of opinion that the defendants are not liable for any of the charges on the transportation of the goods from Tonningen to Bremen. Yeates J. No proposition is more self-evident, than that a greater sum than has been stipulated to be paid for the transportation of goods from one place to another, cannot be legally or morally exacted. In this case, the sugars, coffee arid Nicaragua wood of the plaintiffs, were insured in a valued policy upon a voyage at and from New York to Bremen. The ship was seized and sent into Plymouth. She was there restored, her papers being indorsed, “ not to enter the river Weser, the same being “ blockaded.” She proceeded to Tonningen, where the articles were landed and delivered to the agents of the consignees at Bremen, who paid the entire freight according to the tenor of the bills of lading, and forwarded the goods in lighters to Bremen. The plaintiffs have insisted that the payment of this second freight and the expenses thereon, prevented a total loss to the insurers, and justly form an article of charge in the adjustment of a partial loss, the turning the vessel back from the course of her voyage, and the blockade of Bremen which lies On the river Weser, falling within the restraint of princes. To this it has been correctly answered that these events might have formed a ground of abandonment to the insurers, if the insured or their agents had chosen so to consider them. But they did not abandon; they elected to take their chance of the market at the port of destination, being an inconsiderable distance from it when at Tonningen. Here they paid the ship owners their full freight, although the same could not have been demanded on any principle of maritime law, unless the latter had delivered the merchandize at Bremen, or had offered to transport it thither, and the same had been refused by the agents. It is fully settled that insurers on goods have nothing to do with the freight, and that they only stipulate an indemnity for loss sustained by any of the perils expressed in the policy. With what propriety then can the voluntary unadvised conduct of the plaintiffs’ agents, in paying a second freight from Tonningen, and the attendant expenses, be visited on the underwriters? These expenditures were not the legitimate effect of the blockade of Bremen, but must be ascribed to sub-agents under their principals, against whose acts there was.no stipulated indemnity. The second point appears to me equally clear .in the defendant’s favour. If the underwriters here were responsible under the circumstances of this case, for the transportation of the goods from Tonningen to Bremen in case .a loss should arise, recourse should be had to them upon their policy, which must be deemed an adequate indemnity; but if they were not so reponsible under the original contract, the act of the plaintiff’s sub-agents could not render them liable. Th$ defendant has not .engaged to pay a premium on a second ‘ policy, effected without his knowledge or approbation. I am clearly of opinion in the negative on both of the questions submitted to our decision. Brackenridge J. not having been present at the argument, gave no opinion. Judgment for defendant.