Le Roy v. Gouverneur — 1 Johns. Cas. 226

Majority

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*Le Roy, Bayard, and M’Evers against Gouverneur.

Headnote

On a policy of insurance containing the usual warranty “ that corn, &c. shall be free from average under seven per cent unless general,” the insured can only recover for general average, or for an actual as distinguished from a technical' total loss. '

This was an action on a policy of insurance on goods shipped on board the Anne and Mary, at and from New York to Madeira. The plaintiffs declared for a total loss, by the perils of the sea.

On the trial before Mr. Justice Kent, at the last March circuit, in the city of New York, a special verdict was found which, as far as the facts are material to be noticed, stated that the policy was subscribed by the defendant, on the 10th September, 1798; that it was accompanied with the usual memorandum in cargo policies, by which, among other things, grain of all kinds was warranted by the assured, “ free from

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average under 7 per cent, unless generalthat the ship was laden with corn and staves to wit, 5514 bushels of Indian, corn, of the value of 2983 dollars, and staves to the value of near 300 dollars; that she proceeded on her voyage on the' 16th September, 1798, and was overtaken by a storm on the 21st of the same month, and on the 27th, became so much injured that she was obliged to seek a port, and on the 17th October, arrived at New Castle, on the Delaware, where she could get no repairs, and could find no stores in which to put her cargo ; that the yellow fever raged violently at Philadelphia at that time, and she remained at New Castle until it abated; that on the 30th October, she proceeded to Philadelphia, and On unlading her cargo there, all the corn was found to be so much damaged as to be unmerchantable, and unfit to be re-shipped ; that a considerable quantity of the lumber had been thrown overboard during the storm, for the preservation of the ship and the residue of the cargo; that the plaintiffs received intelligence of the loss on the 24th November, and on the same day gave notice thereof [*227] ■ and made due proof *of the loss and their interest, and abandoned to the defendant and the other insurers.

. The question which arose on the special verdict was, whether the plaintiffs were entitled to recover for a total loss, or for a general average only.

D. A. Ogden and Harrison, for the plaintiffs.

Trpüp and B. Livingston, for the defendant.

There is no doubt that the plaintiffs are entitled to recover a proportion of the general average occasioned by the jettison. The ship, freight and cargo, must contribute to this loss. The claim for a total loss depends On the construction to be given to the exception in the memorandum, “ free from average unless general.” • The French writers, Yalin, Emergion and Pothier, consider it as protecting the underwriter from every partial, but not against any total loss.

The English construction is. that the protection extends to all losses except an actual, as distinguished from a techni

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cal total loss. (3 Burr. 1550. Park, 114, 116. Millar, 359, S. C.) The clause appears to have been introduced in the year 1749, and the English decisions upon it recognize a usage conformable to this construction, coeval with the introduction of the clause.

We are, therefore, of opinion that the rule must be the same with us, and of course, that the plaintiffs can recover for the general average only. (Marsh. 138-155.)^[1]

Judgment accordingly.

(a) (a) See 2 Philips on Ins., 2d ed., 477,479, 494, 495. The common policies of New York exempt insurers from particular'ayerage on salt, dry fish, fruits, whether preserved or otherwise, grain, lumber, yarn, hides and skins, bar. and sheet iron, iron wire, tin plates, tobacco, Indian meal, cheese, vegetables and roots, cotton bagging, pleasure carriages, household furniture, musical instruments and looking glasses.