Majority
p. 75Minturn and Champlin against The Columbian Insurance Company. ALBANY, Jan. 1813.
Headnote
Goods were insured from,. New’York to Tonningen, and the insurance was expressed to be on “ coffee, valued at 25 cents per pound” and there was the usual clause» as to prior insurance.A prior open. policy of insurance had been effected ¡I1 Ltmdrm, on the cargo of the same ship, fisting of’c^ ™ood- The vessel was wrecked on the coast of Holland, and totally lost, with her cargo, a small part only being saved.
In an action on the second policy, it was held, that that part of the cárgo, being pepper, &c. not insured by the second policy, estimated at the first cost without deducting the drawback, was to be deducted from the sum insured on thzfirst policy, including the premium ; and'the residue was to be applied to the coffee, at its prime cost and charges, including the drawback; and the coffee remaining uncovered by the first policy, estimated at 25 cents per pound, and adding the difference between the first cost and the valuation, on the quantity covered by the first policy, together with the premium of insurance, on the second policy, constituted the amount of interest, to be covered by the second policy.
In calculating the amount of loss on the cargo, on an open policy of insurance, the goods are to be estimated at prime costand charges, without deducting the drawback.
THIS was an action on a policy of insurance on part of the cargo of the ship Alonso, on a voyage from New-York to Tonningen. The policy was dated the 20th of October, 1808, and was expressed to be “ on coffee valued at 25 cents per pound.” The defendants subscribed 40,000 dollars, at a premium of 2 1-2 per cent.; two per cent, to be returned in case of loss. The policy contained the usual clause as to prior insurance.
The ship was wrecked upon' the coast of Holland, in October, 1809, and totally lost, with the cargo, excepting a small quantity of pepper and coffee saved from the wreck, and sold for the benefit of the insurers, the net proceeds of which, amounting to 8,728 dollars and 88 cents, were remitted to the plaintiffs. The i proceeds of the coffee saved, amounted to 3,628 dollars.
A prior open policy of insurance had been effected,, in England, upon the cargo generally, to the amount of 35,000L ling, equal to 155,555 dollars, at a premium of $13 35 per cent. *
p. 76
The cargo of the Alonso, at the time of the loss, consisted of 607,323 pounds of coffee, the first cost of which was 23 1-2 cents per pound, amounting 'to 142,720 dollars, and at 25 cents Per pound, to 151,830 dollars; 67,222 pounds pepper, which cost (including the drawback) 20 cents per pound; 698 cwt. of sugar at 8 dollars, including the drawback, and 3 tons of Saffron wood,'at 100 dollars per ton.
• The only question related to the adjustment of the loss, or the ascertaining what interest remained, after satisfying the first policy, to support the second insurance by the defendants.
The plaintiffs contended that the unvalued articles, at prime cost and charges, including the drawback, logethér with the premium on the first or London policy, were first to be applied to that policy; and.that the residue of the sum insured by that policy attached to the coffee, at prime cost and charges; that the coffee remaining uncovered by the first policy, valued at 25 cents per pound, together with the difference between 23 1-2 cents and 25 cents, on the amount of the coffee, insured by the London policy, formed the interest for the second policy, together with the premium of insurance on such interest: and on those principles, they presented to the court the following statement:
Amount insured by the first, or London policy,
35,0001. sterling, is . $155,555 .00
Deduct the premium at $13 35 20,766 59
40 Amount of cargo covered by first policy is Peppér at 20 cents per lb. is $13,444
94 Sugar Ht $8 per cwt. 5,584
00 Wood 300
134,788 41
Amount of unvalued articles 19,329 07
Leaves to be applied to the coffee $115,458 07 /
Which, at 231-2 cents per pound, will cover, lbfc.491,314, which, deducted from the whole quantity of coffee, leaves lbs.116,009
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for the second policy which, at 25 cents, is $29,002 25
1 1-2 cent per lb. difference between prime cost and valuation, on 491,314 lbs. is 7,369 71
Premium, on the second policy, covered, is
36,371 96 6,168 34
42,540 30
Defendants’ proportion of the net amount of coffee saved, $3,862, is
896 12
41,671 20
Amount of policy Deduct 2 per cent.
$40,000
800
Amount of total loss from the 9th of December, 1809.
$9,200 with interest
The defendants contended that the prine cost of the whole cargo, excepting the coffee, was first to beascertained; and that amount being deducted from the sum subscrbed to the first policy, would leave 133,582 dollars to be deductel from the amount of the whole coffee, valued at 25 cents, whfch would leave 18,582 dollars, as the whole amount of interest to b applied to the second policy. And the result, after allowing fo? a return for short interest, and deducting the usual 2 per cent and salvage of coffee, would leave a loss of 20,345 dollars; aid they presented the following statement, which included the drawbacks, which, however, they insisted ought to be deducted:
Pepper at 20 cents, Sugar at $8 Wood
$13,444
5,585
300
Add premium at $13 35 per cent.
$19,329 00 2,978 00
22,307 00
Amount insured in London, Deduct
155,555
22,307
Leaves of valued articles
133,248
p. 78They cited 1 Johns. Cas. 110 . 8 Johns. Rep. 229 . Marsh. Ins. 287. 622. They cited Wesk. on Inc. 7. 27. Mill. on Ins. 132.
Whole cost of coffee at 25 cents $151,830 00
Deduct, covered by first policy, 133,248 00
Leaves interest for the second policy 18,582 00
Proportion of salvage is 444 00
Loss on second policy 18,138 00
Deduct 2 per cent. 362.76
17,775 24
Short interest 21,418 at 12 1-2 per cent. 2,570 16
Loss and retura, on second policy - - 20,845 40
By a second st3tement, in which the drawback was deducted, the loss and return on the second policy were estimated by the de~ fendants, at 14,76t dollars and 74 cents; and by a third state. ment, which, they c~ntended, was according to the principles laid down in the case of Yf'Kim v. The Pho3nix Insurance Compan~j, they made the whok cargo covered by the first policy, so as to leaye no interest for the second policy.
Hoffman and T. A. Emmet, for the plaintiffs.
C. I. Bogert and S. Jones, jun. contra.
The adjustment is to be made upon the princi. pies contended for by~he plaintifl~. The London policy being open, will, of course, tale the cargo insured, at the prime cost, and that part of the cargo ~ntouched by the second policy is first to be satisfied for the reaEons assigned in the case of Kane v. The Columbian Insurance Company. ( 8 Johns. Rep. 229 .) The drawback is not to be bken into consideration, in settling the first policy; and so was the rule of adjustment declared in Gahn v. Mumford & Broome. (1 Johns. Cases, 120.) The premiUm npon the London polity is also to be included, for that is one of the charges. (Marsh on Ins. 622.) After the part of the cargo uncovered by tIe second policy, and liquidated upon these principles, is first satWied, then the residue of the amount insured by the first policy will attach upon the coffee, and under tha
p. 79
policy, it will, of course, attach upon it, at its prime cost and charges. The first policy being thus satisfied, we come to see what interest in the coffee remains to be covered by the second policy, and in making that estimate, the whole of the coffee on board is to be calculated at the valuation, because the parties have agreed upon that valuation, in reference to this policy. This was the language of the court, and this was the mode of adjustment in the case before mentioned. In that ■ case, the first policy completely exhausted the plaintiff’s interest on board, computing the goat skins at prime cost. But the second policy said, that quoad that policy, they were not to be so computed, but to be reckoned at 50 cents a piece, and, consequently, there remained, as aliment for the second policy, an interest of 40 cents in each skin. In the same way must the loss be adjusted in this case; and this will be according to the statement on the part of the plaintiffs, contained in the case.
Cases cited
- Towle v. Stevenson 1 Johns. Cas. 110 p. 78