Majority
p. 57Watson against The Marine Insurance Company. NEW-YORK Nov. 1810.
Headnote
A_ vessel was insured, from. JYnv- Yorh? until she safely arrived at JVantz* The policy contained the following clause 5 sc Warranted not to abandon in case of capture or detention, until six: months after advice thereof, or* until condemnation ; also, free jrom seizure o%• detection in port, and not to abandon in consequence of being turned away, or for having been, carried into any British " port/* tie.The ship sailed from jYew-JTorfe the 24th Decern ber, 1808,and daring the voyage was visited by two British cruisers* - who endorsed her register, forbidding her to enter any port of France, &c.
Having met with a gale of wind, and being near Belle-Isle?m che went there
THIS was a policy of insurance on the ship Two Marys, “ at and from Nezv-Tork^ until she should bé safely arrived at NanlzT At the foot of the policy, which was dated December 10th, 1807, there was the following written clause : “ Warranted by the assured American property, (proof whereof to be required here only,) and not to abandon in case of capture or detention, until six months after advice thereof is received at this office, or until after condemnation $ also free from seizure or detention in port, and not to abandon in consequence of being turfied away, for having been carried into aiiy British port, or going into any British
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for a -pilot, and ■was chased by a British cruiser, under the lee of ha\nngRtoken "in to^abont6 ’an hour, about a league from shore, and tant about" 30 miles from JVantz, the fog being so thick, could not safely whdeIn’thisdsi tuation, about a league and a half from the principal fort; and nearly in shoV°tUeansh°ip sessionkof French armed boat,and earned in under the ’guns ot the fort, and there claimed as a pnzG; and ■ was after-wards condemn-:e(is under the of the lrth" J>cember,\80s,for having* peen visited b)r a British cruiser.
port, from any other cause, il turned away, leave given 1 / ' . . to go to another port not blockaded. The ship was valued at 10,000 dollars.
It was held that this was not a seizure or detention in port, within the meaning of the clause in the policy, and'that the insured were entitled to recover for a total loss, and alsó for the expenses of the captain, in endeavouring* to obtain the release and restoration of the ship; which included wages of the captain, from the time he left the ship, until his arrival at JV’ew-TorAy his passage money, with commissions and interest; but the insurer on the ship is not liable for any expense specifically and exclusively for the benefit of the cargo, nor for any sum per diemt agreed by the owner to be allowed the captain while in port.
The insured may recover above the sum insured, for the expenses of labour and travel for the defence and recovery of the property insured; and where expenses are incurred for the recovery of the ship, the insured may recover the whole amount against the insurer on the ship, though the freight and cargo should be incidentally benefitted, and ought to contribute in proportion; leaving the insurer on the ship to recover, if he can, of the owners or gurers of freight and cargo, for their contributory shhres.
The cause was tried at the June sittings, 1810, before Mr. Justice Yates. The preliminary proofs were , . admitted j and a verdict was taken for the /plaintiir, by - . . ", consent, for 15,000 dollars, subject to tne opinion oí the court, on the following case, with liberty to either Party to turn the same into a special verdict.
The ship sailed from New-York the 25th December, 1807. On the 10th January, 1808, she was visited by . . , - . two British ships of war, who endorsed her register, r ..... , ", . „ forbidding her to proceed to any port in France, or under its dependencies. After meeting with a heavy 8'a^e °f wind, and cutting away some spars, she made for Belle-Isle, in order to take in a pilot, and was again ’ " r 7 . ° boarded by an English schooner, but not showing her , , , . , . , . . , papers, the ship was permitted to proceed, and arrived QÍf the shore of Bell-Isle, the 29th January, and took a P^ot, being about a league and a half from the principal fort. The ship being about 30 miles from Na ntz, and the weather thick, so that she could not e proceed* she lay to under the protection of the grand fort, for fear of being boarded again by English cruis- , . , , * , , , ers, having been chafed by them, and two -cruisers were laying .to, off each- end of the iáíand. The sjp¡p jay to, for about an -hour, almost within reach of
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cannon shot, when she was boarded by an armed boat from the port of Belle-Isle, the officer of which being informed that the ship had been visited by the English, took cominand of the ship, and carried her within pistol shot of the fort, and there anchored hen The captain was then told by the commandant, of the Milan decree of the 17th December, 1807, and that the ship was good prize. The captain was prevented from returning to the ship, which was dismantled by the French.
The captain expended 6,348 livres, in travelling from one place to another, about the ship’s business, and soliciting her restoration; which expense was necessarily incurred.
By permission of the council of prizes at Paris, the cargo was delivered to the consignees, upon their giving security to abide the event of the trial.
A part of the account of expenses, being the 12th charge of 70S livres, was incurred by the captain’s going to Belle-Isle, to attend to the delivery of.the cargo; but all the other charges in the account were for expenses incurred about the business of the -ship only, and were, in the belief of the captain, who was a witness at the trial, necessary for the preservation of the ship, and in order to obtain her release. The vessel was condemned the 15th December, 1808, under the Milan decree, for having been visited by English cruisers; and the decree was executed on the 26th March following, until which time the master attended to the preservation of the ship, under the direction of the council of prizes. The captain’s wages for the voyage were forty dollars a month; and by agreement with the owner, he was to bé allowed one dollar for each day he remained in port.
The account of the expenses of the captain, amounting to 2,469 dollars, exhibited by the plaintiff, included the expenses of travelling to and from Paris to Nantz, L'Orient and Belle-Isle; boarding and lodging at the different places, wages of the captain from the 26th March,
p. 60The points raised by the counsel fpr the defendants, were : 1. That the vessel was seized in port, within the true intent and meaning of the policy. 2. That the stopping at Belle-Isle was a-deviation. 3. That the amount of the account of expenses is incorrect ; most of them are improperly charged against the insurers on the ship, being the subject of general average, and the freight and cargo ought to bear their proportions.
1809, to the 3d August, 1809, when he arrived in New York; 526 dollars, being the amount of his allowance of Qne dollar a day, from 30th January, 1808, to 9th July, 1809; 200 dollars paid for his passage back to New York, 1,105 livres left in the hands pf the consignees, te. prosecute an appeal to the council of state, and five pei cent• commissions pn the aniount of these expenditures^ with interest.
It was agreed, that if the court should be of opinion that the plaintiff was entitled to recover, a judgment Was to b.e entered for the aniount of the verdict, deducting any items in the account of the captain’s expenses,' which the court should be of opinion the plaintiff was , not entitled to recover in this action.
This cause was argued on paper, by consent.
Wells, for the plaintiff.
Colden, for the defendants.
delivered the opinion of the court. The counsel for the defendants object to the recovery ia this case, and contend,
1. That the vessel was seized in port within the true, intent and meaning of the policy.
2. That stopping at Belle-Isle was a deviation. -
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3. That many of the items contained m the account . . , , v i - •annexed to the case, were not chargeable to the insurer upon the vessel, and that they were at least the subject of a general average, or chargeable upon the ship, freight and cargo, in due proportions.
The two first objections are without any plausible force. The ship was captured by a French armed boat, off the island of Belle-Isle, and thirty miles from the port of Nantz. The captain states that he went" to Belle-Isle for a pilot, and was chased under the lee of that island, by two English vessels ; and that having taken a pilot on board, he lay to for an hour, about a league from shore, as the fog was so thick that he could not proceed. In this situation he was taken; and there does .not appear to be any well-founded pretence for alleging that he was then in port, or that a delay of one hour was unnecessary, or amounted to a deviation.
With respect to some of the items in the account, the objection is well taken. The 12th charge of 70S livres, arose expressly on account of the cargo, and was not chargeable to the ship. That item ought, therefore, to be deducted. With respect to the rest of the charges, they may, perhaps, be considered as incurred equally for the benefit of the ship and freight; and the eleven first items arose before the captain ceased to have charge of the cargo, and were therefore incurred in labouring for the benefit of the cargo, as well as for the ship and freight. All these subjects of insurance were equally involved in the peril, and it would seem to be just that the ship and freight should bear these expenses in due proportions throughout; and that the cargo should bear its proportion of the-first part of the expenses, until the captain ceased to have any further concern with it. But this nice and difficult question of apportionment need not be discussed in this case, for the captain declares generally, that these expenses were incurred about the business of the ship. The labour and expense were in
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curred for the recovery of the ship, notwithstanding that other subjects might incidentally enjoy the result of the effort. The plaintiff was obliged to pay and bear the charges, as owner of the ship;" and according to the decision in Maggrath ξ Higgins v. Church, (1 Caines, 215.) he is entitled, even if a case for contribution existed, to recover the whole of it, in the first instance, of the insurer upon the ship, and to leave it to him to call upon the owners or insurers of the cargo and freight, for their contributory shams. The decision on this point was afterwards considered by the court, in Vandenheuvel v. The United Insurance Company, ( 1 Johns. Rep. 412 .) as a settled rule; and Pothier, in his Traite du Contrat d'Assurance, (No. 52. and 164.) recognises it as an established doctrine. There is no doubt that the insurer is liable beyond the sum insured, for the expenses of “ labour and- travel for, in, and about, the defence and recovery of the property insured (1 Caines, 284.. 450.) and the captain proves in this case, that the expenditures, subject to the above exceptions, were necessarily incurred about the business of the ship, and of her only, The principal objection is to the last charge of 526 dollars, for the captain’s port pay. , Was this an expense incurred in travelling or labouring for the recovery of the ship ? It was proved, that this.was “ an allowance by agreement with the plaintiff, of one dollar per day, for each day he remained in port.” This is an extra allowance for discharging the cargo, and procuring freight, and attending to the interests of the owner, after the vessel has arrived in port; and .it does not seem to come within the meaning of the allowance granted by the policy. The plaintiff might, by agreement, have allowed the captain 20 dollars a day, instead of 1 dollar, while he was in port; and ought the defendants to be responsible, beyond their subscription, for such extraordinary contracts? The clause in the policy ought to be confined to expenditures arising directly from a prosecution of the express objects for which it
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was introduced. The court are not informed by the case . of any established rule or usage on this subject; and standing as the charge does, upon the naked fact of an allowance by agreement, without the particulars of that agreement being given, it ought not to form part of the recovery. The last charge and the 12th charge being deducted from the verdict, the plaintiff is entitled to judgment for the residue.
Judgment accordingly.