Guerlain v. Columbian Insurance — 7 Johns. 527

Majority

p. 527

Guerlain against The Columbian Insurance Company.

ALBANY,

Feb. 1811.

Headnote

insurance on eVew-Yor/c fl°to Charleston, on- goods specified Jn the margin of the policy, to the amount of 1,310 dolls. The policy contain-written^iausef by^his^po'ifcy l^e ,,n0 other risk than gene-average, and such total loss only as may arise by the absolute destruction ty.” The°vesthe^dly^after she sailed, and part of the goods were unladen, and stored at

Barnegat, and the residue put on board of a lighter, which was detained from sailing by the ice ; and before the goods stored on shore were sold, and while the lighter was detained, a part of the goods were stolen or lost. Part of the cargo insured, consisted of beef, butter, candles, soap, apples and potatoes, and the rest of iron and hardware. The "invoice cost of the articles insured was 1,194 dollars, and the amount of articles stolen or lost was 332 dollars. It was held that the policy was upon so much of the cargo, as an integral subject, and that the assured could not recover for each article totally lost, there being neither a general average, nor a total destruction of the subject insured.

THIS was an action on a policy of insurance on the cargo of the schooner Two Brothers, from New-York to Charleston, South Corolina,

The cause was tried at the New-York sittings in ° April, 1810. ^

, 1 he insurance was declared by the policy, to be upon the goods specified in the margin, (being beef, butter, soap, candles, apples and potatoes,) and whereon 1,310 dollars were insured.

The policy also contained the following 1 J i _ ° clause: “ The assurers by this policy take no other risk than general average, and such total loss only as may arise by the absolute destruction of the property.” The cargo consisted of iron, hardware, looking glasses, beef, butter, soap, candles, and various other articles.

p. 528

The vessel sailed from New-York the 31st of December. S.***9 1806. On the 1st of January, 1807, she was stranded, in a gale of wind, on Barnegat Shoals, near Sandy-I~Iook, and on that day and during the four following days, the cargo was unladen and stored at Barnegat, except the iron and two casks, and a box containing looking glasses, &c. which were put on board a sloop to be brought back to New-Tork; the schooner was afterwards wrecked and lost. Part of the cargo, consisting of beef, butter, candles, soap, apples, and potatoes, was sold at Barnegat, at public auction, on the 13th of February, 1807, and the residue of the beef, butter, potatoes, apples, &c. was lost or stolen.

The sloop on board of which the two casks and boxes of hardware were put, was frozen up at Barnegat, and lay there until April, when she came up to New-Tork. Part of the iron and of the other articles was stolen.

It appeared that the invoice cost of the whole articles insured was 1,184 dollars and 48 cents, and the cost of the articles lost or stolen at Barnegat amounted to 332 dollars and 98 cents.

The whole cost to the assured of the beef, butter, soap, candles, apples and potatoes, covered by the policy, was 641 dollars and 12 cents, and the amount of the sales of those articles at Barnegat, -was 424 dollars and 29 cents. There was an abandonment for a total loss.

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

for the defendants, contended that the insurers, under the written , clause, were not liable, except for a physical total loss, or for general average. That the clause was expressly introduced for the purpose of guarding against all liability for a technical total loss, or particular average on the articles insured. It was neither a physical total loss9

p. 529

or absolute destruction of the whole subject, nor a general average.

Woods and Hopkins, contra,

insisted, that by the enumeration in the margin of the policy, it was intended that the insurers should be liable for each article lost! and whether this loss was occasioned by sinking, or by theft, or in any other way, it could make no difference.

The defendants are entitled to judgment. There was neither a case of general average, nor an absolute destruction of the property, and in no other event were the defendants to be responsible. The idea that for each item or article of the cargo which was totally lost, the defendants are liable, is not well founded. The insurance was upon so much cargo as an integral subject. In the French policies at Marseilles certain perishable articles are declared free of average, general and particular, which means that the underwriter is answerable only for an entire loss of the subject insured. And, therefore, where part of a cargo of wheat has been thrown overboard, in a case of extremity, the insurer has repeatedly been held not to be responsible. (1 Emerig. c. 12. s. 45.)

Judgment for the defendants.