Murray v. Columbian Insurance — 4 Johns. 443

Majority

p. 443

Murray against the Columbian Insurance Company.

ALBANY,

August, 1809.

Headnote

A vessel was insured,66 at and from Calcutta to New-Yorkf with liberty to touch at Madras for trade, and to take in part of her cargo there.” The vessel went te Madras, and sailed thence direct for JVew York, without ever going t© Calcutta. In an action brought by the insured, to recover back the premium, it was held, that the voyage insured# did not commence ; and that as the policy never attached, the insured was entitled to a return of premium.

THIS was an action of assumpsit, for money had and received by the defendants to the plaintiff’s use. The defendants gave a cognovit actionem, for 1,900 dollars, subject to the opinion of the court upon the following case, agreed between the parties.

The plaintiff was owner of the ship Egeria, and had insurances made, on the 9th February, 1808, by the defendants, upon the ship, and upon the freight of all goods, wares and merchandises, laden or to be laden on board the said ship, on a voyage, “ at and from Calcutta, with liberty to touch at Madras, for trade, and to take in a part of her cargo,” beginning the said adventure “ at and from Calcutta, and to endure until her arrival at Nezv-York, valued at the sums insured respectively.”

In June, 1807, the defendants had insured for the plaintiff the same ship, on a voyage, at and from Nezv-York to Madeira, and at and from thence to Calcutta, with leave to touch and trade at the Cape of Good-Hope, and at Madras. The ship sailed from Nezv-York, arrived at Madeira, and sailed from thence, on the 29th August, 1807, touched at the Cape of Good-Hope, and from thence went to Madras, where she arrived on the 5th day of May, 1808, and sailed from thence on the 15th day of July, 1808, direct to Nezv-York, without going to Calcutta,

Pendleton, for the plaintiff.

The adventure was to begin at Calcutta, and continue at and from thence to Nezv-York. The vessel did not proceed further than Madras, and never was at Calcutta, so that the voyage insured has never commenced. As there was no responsibility or

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risk on the part of the defendants, the plaintiff is entitled' to have the premium returned. I do not' find any adjudged case, precisely in point; but on general principles, the defendants can have no right to retain the premium.^[6] * [He was stopped by the court.]

C. I. Bogert, and S. Jones, contra.

This case does not come within that of Graves and Scriba v. The Marine Insurance Company.^[5] In that case there was a prior insurance, which completely covered the outward cargo, and there was no cargo taken on board at Vera Cruz, where the voyage in question was to commence, so that the policy did not attach. The present case is analogous to that of Vredenbergh v. Gracie.^[3] It may be com

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pared to an insurance to several ports, where the insured may shorten the risk, by dropping a port. There were two outward ports, from either of which the voyage might commence. Madras was in the iter of the voyage insured. If the terminus ad quern, where there

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Are several ports, may be varied; for the same reason, the terminus a quo may be changed, where two ports are named; if the iter is not thereby changed. The insured had- a right to elect to commence the voyage, either a t Calcutta or Madras. Though he could not go first to Madras, and then to Calcutta, he might come home direct from Madras, for it shortened the voyage, and

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greatly diminished the risk.^[6] Suppose, that instead o f two separate policies of insurance, on the outward and homeward voyages, there had been but one policy for the voyage round, might not the insured have dropped the port of Calcutta, without its being a deviation ?

In the case of Hog and another v. Bogle and Scott,^[5] a ship lying at Dundee, was insured from the Frith of Forth, to Campvere. The ship sailed from the Frith of Tay, and came in safety, within the course taken by ships going from the Frith of Forth, that is within two miles of the isle of Flay ; and Lord Flans field was of opinion, that if the ship came with safety into the usual course of the voyage, it was no matter from whence she came prior to that, or whether she sailed from the Frith of Tay, or the Forth. There is no reason, why a voyage may not be shortened at one end, as well as at another. The construction for which we contend, is favourable to the insurer, as it diminishes the risk, and his assent to the change is to be presumed.

Pendleton, in reply.

The fallacy of the argument on the other side, is this, that if a vessel is permitted to touch at a port, that port makes a part of the voyage ; but such permission is a mere excuse for a deviation. It is said that the voyage is shortened, but there is no evidence of that fact. The insurer had a right to calculate that the insured would not use the permission to touch at Madras, if the goods could be obtained at Calcutta, or the voyage had commenced there. Suppose the vessel had touched at the Cape of Good Hope, on her way home, would the policy have attached ? The voyage would clearly have been shortened. The insured may stop short in the voyage, and demand a return of premium, but the voyage must have been commenced. The voyage insured in the present case, never had a beginning, and cannot, therefore, be said to have existed.

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The outward and homeward voyages are distinct, and the latter only was insured by this policy. If the vessel could have commenced her voyage at Madras, she might have done so, at any other place, in the track of the voyage described, though not mentioned in the policy.

In the case cited from Millar, the vessel was at another place, and was to come to the Frith of Forth, where the voyage insured was to commence, and she did actually come within the Frith of Forth. The reasoning of the court, in the case of Silva v. Low,^[6] shows how much strictness is observed, as to the identity of the voyage insured.

delivered the opinion of the court., There must, I think, be a return of premium in this case, on the ground that the policy never attached, and of course the underwriter not exposed to any risk. It is impossible to say, that a voyage from Madras to New-York is the same as a voyage from Calcutta to New-York. The parties have stipulated expressly in the policy, that the adventure is to begin, at and from Calcutta, and We have no right to substitute any other place. As this was an insurance to commence abroad, unless the underwriters knew something respecting the outward voyage, it would be very natural for them to require a representation, as to the situation of the ship, whether she was at Calcutta, or where, and when she was expected there, in order that they might judge of the risk.

In this case, the defendants being the insurers on the outward voyage, which was to terminate at Calcutta, wanted no information on this subject; they were possessed of all the information necessary, in order to make a calculation with respect to the risk, to which they were exposed. (1 Bos. & Pull. 200.) Park, in speaking of a risk, says, where insurance is made on the home

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Ward voyage, the beginning of the adventure must always depend upon the inclination of the insured, as expressed hi the contract, (Park, 23.) In the case of Graves and Smith v. Marine Insurance Company, (2 Caines, 34 2.) Mr. Justice Livingston, in giving the opinion of the court, says, when it is agreed that the risk shall commence from the lading of goods at a particular port, this is so far from being a nugatory provision, which we have a right to say means nothing, that the underwriter has a palpable interest in exacting a literal compliance, or to consider himself exonerated. The assured having a right to touch at Madras, cannot vary the case; this is not in the direct iter of the voyage from Calcutta to New-York; and if it was, I should not think it would be competent for the assured to select, at his pleasure, any point of the iter, and say the voyage insured shall commence there. Whether the risk was increased or diminished by the ship’s not going to Calcutta, may be uncertain; it is enough, that the parties have, by their contract, designated that as the place where the risk is to commence, and it is not competent for the court to substitute any other in its stead. The termini of the voyage, afford the surest criterion, by which to determine its identity. ( 1 Johns. Cas. 197 . and cases there cited. 4 East, 130.)

The case of Hog and Kinlook v. Bogle and Scott, cited by the defendant’s counsel from Millar, (402.) has no application, even if we admit the accuracy of the case. The ship, there, was insured from the Frith of Forth, to Campvere, and she sailed from Dundee to the Frith of Forth, or within the precincts of the Frith of Forth, and then pursued her voyage ; she accordingly came to the place of departure mentioned in the policy, and from that time the policy may well be said to have attached. To make the present case analogous, the policy ought to have been from the Cape of Good Hope to New-York ; and

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■then, perhaps, the policy would have attached on that part of the homeward voyage.

The opinion of the court, therefore, is, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.