Mumford v. Commercial Insurance , 5 Johns. 262 ( 1810 )

Kent, Ch. J.

delivered the opinion of the court. It is not a point any xvhere adjudged in the English books, who shall bear the charge of the increased freight, in a case like the present, where the ship becomes changed by necessity, during the course of the voyage. The increased freight certainly arose as a direct and unavoidable consequence of the capture and detention of the goods; and the underwriter engages to indemnify the assured from all losses and damage arising from capture and detention. If the insurer on goods is not to pay this charge, then the capture has produced a dead loss to this amount to the owner of the goods. The case of Baillie v. Modigliani, (Park, p. 70.) which was cited Upon the argument, does not apply, for the claim there attempted against the insurer of goods, was not for any excess of freight produced by the capture, but for a pro rata freight, arising upon the original voyage, between the time of departure and the capture of the vessel. The insurer in that case had, indeed, no more concern with that freight than the present defendants have with the freight earned by the ship Ocean, on the voyage from Amsterdam. The insurer on goods has, in general, nothing to do with the expense of transportation, and he does not indemnify against it. But he has to do with á special damage charged upon the owner of a cargo, by-reason of a peril within the policy. In Penny and Scribner v. the N. Y. Ins. Co. (3 Caines, 155.) there were some observations connected with the opinion of the court, which appear to bear against the present demand, but they ought to be considered as confined to the special case then before the court. The plaintiffs there claimed indemnity from the underwriters on the cargo, for da-, mages arising from a detention by embargo in the West Indies. It was not decided in that case whether freight was lawfully due under the charter-party, for the time consumed by the embargo. The better opinion seemed to be, that it was not due ; and besides, that case has no application to this, for the plaintiffs there had chartered the ship under a special contract, as to the payment of ' freight, and with which the underwriters on the cargo had certainly no concern, whether the freight was payable by the month, or in a gross sum for the voyage. Here is a loss by capture, falling directly on the owner of the goods. He ought to be indemnified equally as if the loss had arisen from a peril producing a contribution, or general average. “ Although the loss which contribution causes to the assured, be a loss which he does not suffer in the goods insured, yet as he suffers it in relation to those goods, and in consequence of a peril of the sea, the insurer ought to bear the loss and indemnify the assured.” (Pothier, Trait. d’Ass. n. 52.) The principal laid down by Pothier, applies to the one case as much as to the other. Marshall (172.) states it as a general rule, that the insurer must pay the increase of freight arising from the necessary change of the ship,1 and he refers to Emerigon, in support of the doctrine.

In a case in which no English decisions are to be met with, it is usual and proper to listen, with attention and respect, to the foreign jurists ; for where positive regulations do not intervene, the law of insurance is part of the general law-merchant of Europe. Cleirac (Jugemens d'Oleron, art. 4. n. 4.) says, “ that the additional freight in these cases becomes gross average, and falls upon the ship and merchandsie.” If this were so, the insurer on the merchandise would have to'bear his proportion; but I see no ground for this opinion, for the case does not come within the reason of the rule for contribution, as this is not an expense incurred for the common safety. The ordinance of Amsterdam throws this expense upon the insurer. The French ordinance of the marine leaves the point doubtful; but Emerigon (tom. 1. 432.) is decidedly of opinion, that the increased freight arising from the necessary change of ship, ought to fall upon the insurer of the goods, and this; he says, is the language of the new ordinance of 1779. We have nothing to do with the municipal regulation of the ordinance, but the opinion of the French writer is of high and deserved authority.

No doubt arises, but that the freight in question was produced by the capture. The cargo was detained at Halifax, when the ship was liberated and ready to proceed. The owner of the goods was of necessity obliged to hire another ship, when his cargo was released. The ship first employed was gone, and was not obliged to stay; and she had justly earned her full freight, by tendering herself to convey the goods the remainder of the voyage.

Upon the whole, the plaintiff is entitled to recover upon the weight of authority, and the better construction of the contract.

Judgment for the plaintiff.