Robinson v. New York Insurance

Headnote

Under an agreement to pay a supercargo, on a voyage out and home, a gross sum out of a return cargo, or give him goods out of it to that amount, at his election, in consideration of which, he and his partner engage to sell the return cargo, free of commissions, if the vessel be obliged, on her return, to break up her homeward voyage, and the cargo be sold at the port of necessity, paying commissions to merchants there, the supercargo loses his compensation, though the proceeds of the homeward cargo be partly invested in other articles, which he brings back, and if a policy has been effected on the commissions, it is a total loss, and the insurer liable, as there is no recourse against the owners of the cargo.

On a policy of insurance on goods, with this clause underwritten : “ This insurance is declared to be upon the interest of William I. Robinson, being the allowance made him, as supercargo, as per agreement made with the owners of the ship Mary.”

The facts, as they appeared on the special verdict found in the case, were these: The plaintiff, being part owner of the ship Mary and her cargo, contracted with the other owners to go in her to the East Indies, as supercargo, under

the .following written agreement: “We the subscribers, owners of the ship Mary, having engaged William I. Rob* inson, as supercargo, on her intended voyage from hence to Batavia, and possibly to Canton, have agreed, in consideration of his undertaking and executing the duties of this trust, to'pay him ten thousand dollars out of the pro^ ceeds of any cargo the ship may bring from Batavia, or to deliver him part of such cargo, to that amount, at the current market price, on arrival here, at his option. But if the ship should proceed to Canton, and the letter of credit with which he will be furnished should be availing, we in that case agree to pay him twelve thousand five hundred dollars, as above, otherwise he is to have no more than ten thousand dollars, the same as if the voyage out had terminated at Batavia, New York,” &c. Signed by the owners, and the house of William and Silvester Robinson, of which the plaintiff was one. In consequence of this contract, the plaintiff and his partner entered into one with the owners, by which they agreed, “ in consideration of the sum to be paid William I. Robinson, to take upon themselves the trouble of the management and sale of the return cargo, from Batavia, or Canton, free from commission, subject to the direction of a majority of the owners of the ship Mary.”

The mutual compacts being thus concluded, the plaintiff insured his commissions with the defendants, showing them at the same time, the agreement under which they were to arise, and shortly after departed on the proposed voyage.

The vessel having safely arrived at Batavia, sold her outward lading, which the plaintiff faithfully invested in a return cargo, *and, without proceeding further, set sail for New-York. On her passage she .experienced such severe weather that she was obliged, after consultation with her crew, to bear away 'for St. Christopher’s, and reached that port in a very disabled state. There it was deemed necessary to have a survey

taken upon her, and for that purpose, the captain and supercargo applied for, and obtained, a warrant from the admiralty, upon the execution of which she was ordered to be unladen. Her situation was then found to be so bad, that a second warrant was, in a similar manner, asked for, and granted. Upon this, the surveyors thereby appointed made a due return, on oath, “ that having accurately and carefully examined the said ship, and considered of the repairs necessary, they were unanimously of opinion that she could not be repaired for the full value of her when repaired, and that, without particularizing her several damages, it would be dangerous and unsafe to reload her cargo, and proceed with her on her voyage, and that to repair her would be highly detrimental to the interest of the owners, or underwriters. Thus circumstanced, the captain and plaintiff made a joint application for leave to sell, which being accorded, the vessel and cargo were sold in St. Christopher’s under the direction of the plaintiff, by merchants there, who were paid theii commissions. The plaintiff, however, bought in the vessel on account of the owners, and invested part of the proceeds of her cargo (as the laws of the island would not allow of exporting it in any other bottom) in rum and molasses, with which, being a light and buoyant cargo, she arrived, after some trivial repairs, at New-York, in the spring of the year, though inadequate to the voyage at any other season, or with her original lading, unless at an expense of more than her value.

The owners refusing to pay the plaintiff his commisions, the present action was brought. The abandonment was admitted.

The interest the plaintiff acquired in the cargo depended on its safe arrival. The object of the insurance was, to guard against any peril which might prevent the arrival of the subject matter out of which the plaintiff’s interest arose. It is like an insurance on bottomry. If the vessel never reach her port, the underwriter will be liable; if she do, he will be exonerated The same principle governs in the present case. As, therefore, the cargo has not arrived, the plaintiff’s claim to his commissions *has been defeated by an accident insured against, and the policy is forfeited. To know whether the plaintiff is entitled to recover, we must answer this question; has the cargo arrived? For its arrival is the test. The policy is on the cargo, depending on the arrival of the goods. The written memorandum does not affect this position. It is within the principle of Kemp v. Vigne, 1 D. & E. 304, and the plaintiff entitled to recover without reference to the contract. By the terms of it there can be no recourse against the owners, for it is to be taken in connexion with the agreement of the plaintiff and his partner to sell the return cargo. His right against them depended on precedent conditions; on his “ undertaking and executing the duties of his trust.” They were, under the contract, to sell and’ invest the outward cargo, and from those duties, when performed, resulted a third, the selling of the return cargo. Till these were all discharged, the plaintiff could have no recourse against the owners. Their agreement was entire for a gross specific sum, on fulfilling certain duties. They have already paid commissions in St. Christopher’s, and all not to be charged again with a further commission, which they agreed to pay only in consideration of having the return cargo sold free 'of commission. Are they to pay the consideration for a service, and not have the service done for which the consideration is paid ? The advantage to be derived from having the return cargo sold, without a charge for disposing of it, was considered in the amount of what they agreed to allow the plaintiff. The arrival of the cargo from Ba-tavia was contemplated by the owners as a condition precedent to their liability. They looked to profits of the adventure to enable them to pay so large a sum. Of this the plaintiff’s right to be paid in goods is a proof. The loss of

had the benefit of the plaintiff’s services, and there arises a natural equity out of the case, directing a payment by them for the duties he has performed.

The arguments against considering the arrival and other circumstances mentioned in the contract as conditions precedent, are founded on principles said to apply to the general rights of a supercargo. The contract was entered into to supersede those rights and create others. The plaintiff, to obtain a large compensation, consented to its being contingent; and to protect himself against that contingency he insured. The authority from Powell speaks of time and place being modal, where there is an antecedent debt, upon which the right of payment is founded; not of a right of payment to arise out of a debt to accrue from time and place, according to an original contract. As to the cases supposed, they are not before the court.