Adams v. Pennsylvania Insurance , 1 Rawle 97 ( 1828 )

Huston, J.

(after stating the case) delivered the opinion of the court as follows: ■ '

It was admitted, that the owner- of a vessel and cargo may insure on freight when carrying his own goods; but it is contended, that the policy never attached in this case. It was settled long ago, that although the goods, are. ready to be loaded, yet if none of them are actually on board, .and the vessel is driven from,her moorings and lost, there can be no recovery on an insurance on freight. 2 Sira. 1251. But it has also been settled, that if a vessel is. chartered to go to T., and take in a load and carry it to B., and she is lost on her voyage to T., and never takes in any load, there can be a recovery on the policy on freight, on the ground, it would seem, that the contract to sail to T., and take in the lading and carry it to B., was one entire contract, and. having'set sail, the policy attached. 6 .B. <§' E. 478. This ship sailed under a charter party. It would seem to have been settled since, that if the vessel sails under a contract, or being in a port, an express contract is made to load her, and she is fitted to take in such load, and is lost, there can be a recovery on the policy on freight. Indeed, there seems to be no doubt that a recovery may be had on such policy, if the vessel is loaded, though she has not sailed; or, if shé has an express contract for a load, though none of it is on board; or, if she • has set sail for the place at which she is to load, or if being at the place of loading, her owners have commenced fitting her, to. receive and carry the loading contracted to be carried. The defendants say no case has gone beyond this, and the plaintiff insists, that if there is a reasonable expectation of a load at a port, and a vessel sails for that port, to’take it in, the policy attaches, and if the vessel is lost by the perils insured against, the sum insured will be recovered.

Most of the cases on this subject have been cited in the argument, and I have carefully examined them, -and have come to the conclusion, that according to the decided cases, the defendants are not liable in this case.

It has-been contended that the plaintiff can recover though there was no contract and no load, in other words, that a gaming policy .is good in this state, as it is said to be in New York. The only decided cases are otherwise. .Since those decisions, the law has been considered by both thé.insured and insurer, to bé otherwise. Contracts are predicated on the law as established, that there must be something in which the insured has an interest, or the contract is void. It might work great injustice to decide on other principles, and I am notable to discern any good result to be expected from changing the law.on this subject. The case in 13 East, Forbes v. Aspinall, was of a vessel ioaded with goods, as was fully proved by the event, sufficient tapurchase a return cargo, and there was no question but they would be applied to purchase one, or that when purchased, it would be carried in that ship. There was an insurance on her freight; part of her outward cargo was sold; a part of her return cargo was loaded, and she was wrecked; and a recovery was had only for the freight of so much of the return cargo as was .loaded; and yet there was reasonable ground to expect a full load. The phrase reasonable ground to expect a load, was used by an eminent judge, but not in a cause of insurance on freight; it was a mere obiter dictum. The last English case, 2 Brod. & Bing. 320, will not help the plaintiff, por will Parke v. Hebson there cited. The note of this latter case is too short and too defective in precision to afford any certain light; the phrase 4£ he produced letters from merchants and plantation owners respecting the intended shipments,”is very vague, but we see that those letters must have been precise, and amounted to a contract; for •Park,'J., says, in Parke v. Hebson, the contract was only dedueible from letters; and Richardson, J., before whom it would seem that cause was tried, says,44 the question is, whether there was a subsisting contract, under which the party could have recovered, but for its interruption by the perils of the sea.” That there is no magic in a charter party is clear from the case of Parke v. Hebson. And the whole case goes on the ground, that if there'is an express contract, though ho charter party, nay, though only by parol, freight may be insured, but it gives no colour to the doctrine that any thing less than loading the goods or an express contract, will have that effect. ‘

The case in 2 Conn. Rep. 368, is full and express to the sáme point. It is almost this very case. It does not seem to me in principle to vary from of go beyond the law as settled before.’

In this case, from the plaintiff’s own letters the arrival of two or three ships at Bourdeaux for brandy, before the Shamrock, might, and probably would have raised the price above the limit fixed by the plaintiff; nay, political news might have had that effect, and then the ship was to load on freight, if she could get it, or go to Russia. There was no cargo purchased for her; there was no contract on which any person was liable, if she was not loaded: it is not within any of the decisions or an3f settled principle of decision, and the judgment must be entered for the defendants.

Judgment for the defendants.