Pollock v. Donaldson — 3 U.S. 510

Majority

p. 510

Prefent~-lREDEH. and Peters, JuJHces.

Pollock et al. versus Donaldson.

Syllabus

TrilS was an aftion brought by the Underwriters, to re^. cover a premium of 15 per cent on a Policy of Infu-cover a premium of 15 per cent on a Policy of Infu- ■ ranee, upon the cargo of the brig Pilgrim. The Policy was dated the tyth of November, 1794* and contained the following, claufes;—namely, “ loft or not loft, in port and at fea, and a(s “ all times and places,, for.the (pace of fix calender months, “ from the 8th day of September, 1794, to the 8th day of March, “ 1795, &c.” “ beginning the adventure upon the faid goods “ and merchandizes from the loading thereof on board the faid, “ veil'd, the 8th of September, 1794, and fo ihall continue and, “ endure until the 8th of March, 17Q.5, and continue at the. u fame rate of premium, until her next arrivalat Philadelphia^ “ &c.” “ The faid goods and merchandizes for fo much as “ concerns the allured and afliirers in this Poficy, are and ihall. “ be valued as interejl jhall appearThe veffel and cargo^ “ warranted American property.”

The fa&s were thefe : The brig was loaded at Hamburgh, on the 8th of September, 1794, with a cargo valued at 5,33s . dollars, and failed for the port of Philadephia. On her paffage*

p. 511

about the 14th of September, fl>e was flopped by a French privateer and carried into Dunkirk, where the Supercargo was permitted to fell the cargo, and to receive the proceeds on account of the owner- She then took on‘board a ftnall cargo, Valued at about 1500 dollars, and in the beginning of Ostober failed from Dunkirk, bound to Hamburgh, but was taken on the paffagé by a Britijh privateer, and carried into Falmouth, where an average lofs was fuffered, ;tQ the amount of £. 90 fterling. After a few days detention ártd examination, the brig was difcharged, purfued her courfe to Hamburgh, and arrived there towards the end of October. Having difcharged her lading at Hamburg, {he took on board another cargo to the amount, of 2,500 dollars; and failed from that bbrt in Deceníbér, bóund to Philadelphia; and arrived here in FSbr'tlar'^t^^}^-' „ ¿Al.. ^

The caufe was tried by a fpecial Jury ^ theTlaihtiifs, contended, that they were entitled to the1 {⅜⅛⅛⅛⅛⅛ Í 5 'pét[ cent, on the firft cargo ihipped at Hamburgh1, Valued ati^^ dollars, under the words of the policy, infuribgA‘* inpSrí'áíid at u fea, and at all times and places, for the $a<ié'óf'¾⅜⅛¾⅛¾&⅛; months, &c.” without regard to any changéi.bf^ditóiftútíofí, of the value of the cargo, during the term 'óf5the’ ‘/irifiirance. But the Defendant infifled, that thofe words were contfoiil^dj by the provifion, that the cargo íhould be valué,d! “ ar ⅛⅛>⅛/?⅜ “ Jhall appear and as he, in cafe of a.lofs, wbüld only R'avé: been entitled to recover an indemnity co-extehfive with' tbe Value of the cargo adtually loft, the Underwriters could vnoc tecover a premium for more than the amount of their rifijiie? ' :

The teftimony of Mr. Ifaac Wharton, an experienced ⅛- , furance Broker, proved that the Defendant’s conftrudtion of; the policy was conformable to the general fenfs arid ufage1 of merchants : And it was accordingly adopted by the' Cqúr.t and Jury:—-the verdidt allowing the premium of 15 per cent Upon the value of the different cargoes, for the time thát they Were refpedtively on board the brig; and dedudting the amóúnt of the average lofs. 5 :⅝: ‘l!r