American Insurance v. Griswold

The following opinion was delivered by Chief Justice Savage:

One question arising upon and presented by the report of Mr. Hicks is, whether the defendants are liable first for the whole amount of specie put on board. This is a question of minor importance, and has not been much discussed by counsel. I apprehend there can be no difference in principle between specie and any other lawful goods. The policies were all upon a trading voyage. The underwriters are answerable as well for the original cargo as for any other cargo or part of a cargo, for which the original cargo or part of it has been exchanged. This is supposed to be perfectly well settled, and was so understood and recognized by this court in Coggeshall v. American Ins. Co., 3 Wendell, 283, and cases there cited. The specie received on board at Callao is to be considered part of the cargo covered by the policies, or some of them, and must be accounted for in the same manner as any other goods. No question, therefore, can necessarily arise upon that part of the cargo, as depending upon any principle different from the residue of the cargo.

The question, and it seems to me the only question between these parties, is, whether the plaintiffs have a right to recover the full sum named in the policy, without reference to the part which was landed at Callao, as there was property remaining on board when the loss happened, exceeding in value the amount embraced in the policy. The defendants insist that the plaintiffs can recover only such portion of the amount insured as the amount of the policy bears to the

With respect to the clause respecting prior insurances, the defendants’ answer is, that the clause was introduced to prevent contribution in cases of double insurance ; that it was intended to have no other effect or application ; and that it has never in practice, or by any judicial determination, received any other application. “A double insurance is when the insured makes two insurances on the same risk and the same

The decision, I apprehend, must rest upon the clause respecting prior assurances ; and that we may the better understand it, in connection with the definition of a double insurance, I will again recur to its terms. The whole policy is not set forth in the case," but it is stated to be upon all kinds of lawful goods and merchandizes laden or to be laden on board the good ship China, and the sum subscribed is $20,000. The proviso is, “ Provided always, and it is hereby further agreed, that if the said assured shall have made any other assurance upon the premises aforesaid,” &c. Then follows that part which is applicable to this case: “ And in case of any assurance upon the said premises, subsequent in date to this policy,” the defendants will be answerable without right of contribution. What are we to understand by the premises ? If by those terms we understand the whole cargo, which was worth $47,-000, then the three policies were technically perhaps upon the said premises; but there was no double insurance, because the several policies attached upon separate and

The doctrine of contribution in cases of double insurance seems not to have been established in England until the year 1763. A different decision was made in the case of The African Company v. Bull, 1 Shower, 132, about 1691. That was rather a case of over insurance. To an action on a policy subscribed by a number of underwriters, the defendant pleaded that the goods were worth but £2240, and that twenty-three persons had subscribed £100 each, and that the defendant was the next subscriber; and that, by the custom among merchants, he was discharged, and offered to return the premium—issue was taken, and the custom was proved by all the exchange, and the defendant had judgment. In Newby v. Reed, before Lord Mansfield in 1763, it was ruled and agreed to be the course of practice in case of double insurance, that though the insured is not entitled to double satisfaction, yet he may sue which he pleases and recover the whole sum insured ; and the defendants therein may recover a rateable proportion from the other insurers. 1 Black. 416 . Parke, 374. A few years afterwards, came before the same

The case of Kenney v. Clarkson & Van Horne, I Johns. R. 385, was upon a policy upon the vessel valued at $2000. It appeared that there was a prior insurance for $3000 ; the assured were permitted to prove that the vessel was of sufficient value to cover both policies. This point was not discussed ; but as it appeared that the vessel was worth $7000, there was sufficient aliment for both policies; and whether it was considered a double insurance or not, the plaintiff was entitled to recover; and had the policies not contained the clause as to prior insurance, it was not a case of contribution. The case of Murray Mumford v. Insurance Company of Pennsylvania, 1 Marsh. 152 , n., 1 Hall’s Law Journal, 161, contained these facts: In October, 1803, the plaintiffs effected insurance in New-York, on the ship Hope from Gottenburgh to New-York, for $4000, valuing the ship at that sum. In December after, they effected insurance with the defendants for $4000, valuing the ship at $6000. The real value of the ship exceeded $6000. A partial loss took place. The New-York company paid an average calculated upon $4000, and the

In Brown v. Hartford Ins. Co., 3 Day, 67 , the court say it was evidently the intention of the contracting parties in these policies to avoid the inconvenience of contribution, by making the insurers liable in the order of time. This was anciently the law in England; modern practice there had introduced a different rule. The parties intended by inserting the clause in question, to abolish the modern and restore the ancient rule. In Potter v. Marine Ins. Co., 2 Mason, 476, it was decided that

The Columbian Ins. Co. v. Lynch, 11 Johns. R. 233, was an action on a promissory note given for a premium of insurance. The policy was for the sum of $20,000 on goods on board the ship Ann, at and from Bayonne to the first port she might make in the United States. There was a prior in-, surance in Philadelphia for the sum of $7000 on the same cargo, from Bayonne to Hew-York. The invoice price of the cargo was $9512. The vessel arrived in safety, but the cargo was partially damaged, to the amount of $2000 and upwards. The defendant claimed a proportionate part of this loss, to which the plaintiffs objected, on the ground that the prior policy must bear that loss, and that they were liable no further than their proportion of the invoice beyond the first policy. The defendant insisted that he was entitled to return of premium upon the amount of the prior policy, $7000, allowing the plaintiffs a reasonable compensation for the risk at Bayonne. The plaintiffs had a verdict, and it was agreed that if the court should be of opinion that the defendant was entitled

The Columbian Insurance Co. v. Catlett, 12 Wheat. 383 , contains some principles which are applicable to this case. That case was upon a policy to the amount of $10,000 upon a cargo of flour, worth upwards of $16,000. The voyage was to St. Thomas and two other ports in the West Indies, and back to the port of discharge in the United States. This was held to be an insurance upon every successive cargo which might be taken on board at the ports where the vessel had liberty to touch. It was also held that such a policy covers an insurance of @10,000 during the whole voyage, out and home, so long as the assured has that amount of property on board, without regard to the fact of a portion of the original cargo having been safely landed at an intermediate port before the loss. On behalf of the company,- it was argued that the loss was to be borne by them, with reference

In Davy v. Hallett, 3 Caines, 21, 22, where the insurance was upon freight, Kent, Ch. J. says the policy was to be valid and operative, as long as there was aliment to keep it alive. The insurance in that case was upon so much freight in that voyage as would amount to $2000. A case is there cited from 2 Emer. 39, 40, in which insurance was made to the amount of 1000 livres upon goods on board a vessel from America to Marseilles. The vessel sailed with a cargo to the amount of 3000 livres, and discharged two-thirds thereof at Cadis,leaving goods on board for the remainder of the voyage to the amount of the insurance. It was said by the French writers, - Valin, Emerigon and Pothier, that the policy was not thereby reduced two-thirds in value, but operated still upon all the cargo on board to the amount of the 1000 livres.

I have thus examined several cases, which have been cited with a view to aid us in giving a construction to the clause in £he policy upon which this case depends, and it will be seen

It was the doctrine of Lord Mansfield that the insured might prosecute which of the underwriters he pleased, and recover from him the whole loss, if his policy was of sufficient amount, and the defendant in that suit could call upon the other insurers to contribute their proportion. Peters, J. informs us, 4 Dall. App, 32, that before the decision of Thurston v. Koch, the custom in Philadelphia had long been to settle losses, when there were double insurances, according to priority of policy in date, without regard to the time of signature; that is, not to call on the second set of underwriters, if those on the first policy were competent, or had paid the amount of subscription or loss. In that event, those on the second policy returned the premium, retaining one-half of one per cent. This practice was changed by that decision; arid to restore the ancient practice, no doubt, was the principal if not the only object of introducing the clause relating to pri- or, insurance. It is well settled, however, that a policy of insurance is to be construed by its terms, in the same manner as any other written instrument; and if the fair and evident meaning of the language used be to extend to all cases of prior and subsequent insurances, I know not what power the court has to limit the operation of the contract to double insurances only. It is the duty of the court to ascertain what was the intention of the parties, and that intention must be ascertained by the plain import of the language used by the contracting parties, and by nothing else, unless there is some obscurity or ambiguity which requires explanation. There is nothing in the clause itself which confines it to cases of double insurance. It is, “ And in case of any in- “ surance upon the said premises, subsequent in date to this 61 policy, the said American Insurance Company of New-York (l shall nevertheless be answerable for the full extent of the “ sum by them subscribed hereto, without right to claim

From the agreement to return the premium in certain cases, an argument is drawn in favor of the defendants’ construction. The previous part of the clause contains this provision: “And “ the said American Insurance Company of New-York shall “ return the premium upon so much of the sum by them assur- “ ed, as they shall be, by such prior assurance, exonerated “ from.” This, it is said, can only be applicable to a case of double insurance, when by reason of a prior insurance the policy never attaches; because if the risk has once attached, the premium is never returned. The answer to this argument, is that the clause in question was introduced to abolish the doctrine of contribution. Now contribution is as inconvenient in a case like the present as in one confessedly of double insurance, and the equity in both is the same. If the clause in question intended to abolish contribution in cases of double insurances, how can we say that it was not also intended to abolish it in all cases depending upon the same principle ? It is then no objection to this construction, that the provision as to return of premium does not apply to all cases to which the other part of the clause does apply. On the other hand? the policy contains a clause relative to return of premium, from which the plaintiff’s counsel have drawn an argument in favor of their construction. The policy is for 18 months, and being upon a trading voyage, when the policies might be sometimes full and sometimes not, the insurers agreed “ to return a relative proportion of the premium for each month not commenced, no loss being claimed.” It was optional, therefore, with the insured to furnish aliment for the policies during the time. The plaintiffs were therefore at liberty to withdraw their cargo or a part of it, and it is asked if all the cargo but a few hundred dollars had been withdrawn in three or six months, would the plaintiff be compelled to pay a premium upon all the policies ? And if the doctrine of the defendants be correct,' that a part of the cargo withdrawn relieves the insurers rateably, it would seem to follow that they all remain, so long as any goods remain on board. If it be

Upon the whole, my conclusion is, that when part of the goods were landed at Callao the younger policy was relieved from liability, and that relief extended in the inverse order of the dates of the policies; that the defendants are liable for the full amount insured by them, and according to the agreement of the parties, judgment must be entered for 029,831 93, with interest from the 11th May, 1832.

Judgment was accordingly entered. Whereupon the American Insurance Company sued out a writ of error, removing the record into the court for the correction of errors, where the cause was argued by

J. Buer B. F. Butler, (attorney general of the United States,) for the plaintiffs in error.

H. R. Storrs & G. Griffin, for the defendants in error.

After advisement, the following opinions were delivered in this court;

Several minor questions are raised and have been discussed in this cause, which I shall in due time consider. The case also presents two questions of general importance to underwriters and to the commercial community, which I shall first examine. The first is as to the meaning and construction of what has been called the American clause in the policy. The second is as to the rule of contribution between the underwriter and the assured, upon a trading voyage on time merely, where a part of the cargo on which the policy originally attached has been landed and sold or exchanged, before the expiration of the time limited for the continuance of the

The American Insurance Company, by the decision of the supreme court, have- been charged with their proportion of the general average loss sustained in this case, and with the $20,000 underwritten by them, as if the goods and specie on board at the time of the seizure had been the only cargo originally shipped at New-York. The counsel for the plaintiffs in error insist that this was not the correct and legal mode of estimating the loss, under the circumstances of this case; that the provision of the American clause making the first underwriters liable- to the full extent of their policy, in the same manner as if no subsequent assurance had been made, does not apply to the case of a policy on time, upon a trading voyage, where the risk as to two or more policies has once attached by the lading of a sufficient cargo on board to fill all the policies; although by the landing or sale or exchange of a part of the cargo, during the time or voyage insured, the property at risk, at the time of the loss is so reduced in amount as to produce a double insurance upon what happens to be on board at that time. And even if there had been no subsequent insurances upon the same adventure, that the underwriters in this policy would only have been liable to contribution with the assured for the part of the original cargo which was seized in'the proportion which the $20,000 underwritten by them bears to the invoice price of the whole cargo at New-York: that is, in the same manner as if the whole cargo as shipped at New-York had remained at risk at the time of the loss, and only a part thereof had been seized.

If the amount of insurable interest in the goods insured exceeds the sum which is underwritten in a single policy, the. owner of the goods is considered as his own insurer for the excess; and upon the adjustment of a partial loss, the underwriter contributes only such a proportion of the whole amount of his subscription, as the loss sustained bears to the whole insurable interest in the goods at risk, estimating them at the

But whatever may be the rule of apportionment in the case of a short insurance upon an entire cargo, for a single voyage, from the port of lading to the port of discharge, I am satisfied it can have no application to a case like the present. Here is an insurance upon goods to be laden on board a vessel for a trading adventure for eighteen months, with liberty to the assured to extend it to two years, at the same rate of premium, without reference to any particular voyage, or any ports or places of lading or discharge, or any specific cargo upon which the risk was to attach for the whole eighteen months or two years. Both parties therefore understood and expected that the whole, or particular parts of the cargo, would be frequently changed in the course of the eighteen months, either by the voluntary acts of the assured or his agents, or by perils which were not insured against; and both must have intended that the risk, to the extent of the $20,000, should attach to any goods remaining on board from time to time, as often as such changes should occur, provided goods to that amount were on board at the time any loss should occur by the perils insured against. Even if the underwriters, at the time they subscribed the policy, had been informed that the vessel was to sail from New-York for South America and the Pacific ocean, they also undoubtedly knew that it was a very common occurrence for vessels engaged in trading voyages from this country to South America and the Pacific, to dispose of the whole or a part of their cargoes in one port, and to ship the whole or a part of the proceeds thereof in specie for another port, before completing the cargo for the homeward voyage ; and that the new cargo thus collected in South America, or in the islands of the Pacific, was frequently carried to the East

Having arrived at the conclusion that the amount recovered against the plaintiffs in error, by the judgment of the supreme court, would have been properly chargeable upon them under this policy, if no subsequent insurance had been made, I shall proceed to consider the effect of the American clause upon the rights of the several underwriters and the assured in this case. By the continental law of Europe, and by the English law of insurance as it existed previous to the decision of Lord Mansfield in Newby v. Reed, 1 W. Black. R. 416, if there were several policies of different dates upon the same subject, and the amount of insurable interest was insufficient to cover the whole amount insured in both policies, so as to constitute a case of double insurance, the second policy only attached upon or covered so much of the insurable interest, as was not covered by the first policy; and the second underwriter was only entitled to retain the premium pro tanto, where the commencement and termination of the risks and the perils ins.ured against were the same. 3 Kents Comm. 281. Vanderlinden’s Comm. 655, b. 4, ch. 16, § 7. Miller on Ins. 266. By this ancient English rule and the continental law, the second underwriter was, as he always ought to be, merely substituted in the place of the assured, as to the uninsured interest of the latter which was not covered by the first policy ; so that the rule of apportionment between the first and second sets of insurers, where both policies when taken together were sufficient to cover the whole insurable interest, was precisely the same as it would have been between the underwriters in the first policy and the assured, if the second insurance had not been made. If the object of the American clause was to restore this ancient rule of apportionment between the underwriters in successive policies, as it originally existed in the mercantile law of England as well as the rest of Europe, it was hardly possible to do it in more appropriate and explicit language than is used in the last paragraph of this clause. That language is, that in case of an insurance subsequent in date to the first policy, the underwriters in the first policy “ shall neverthelesss be answerable for the full extent of the

If either of the subsequent underwriters have paid to the assured, upon a compromise of the claims made upon them, more than they were legally bound to pay under their contracts, that is a matter with which the underwriters in the first policy have no concern ; since they are not bound to refund any thing to the subsequent underwriters, and never had any claim upon them for contribution. If the assured have received any thing under such a compromise which they cannot conscientiously retain, they should restore it to those from whom it has been received ; but the American Insurance Company or its stockholders have no equitable right to insist that it shall be allowed to them in discharge of their legal liability under the first policy. The technical rule of estimating the value of the goods insured, by the invoice price at the port of lading, loaves a very considerable portion of the actual loss in this case uncovered by any of the policies ; and if, upon the compromise with the Niagara company, it paid more than it was legally holden for, the assured have a stronger equity to retain it, than the underwriters in the two first policies have to. demand it of them under their policies, in which all claim for contribution as to the last insurer was expressly relinquished. Besides, as the Niagara Insurance Company were not legally liable for any part of the loss, the whole value of the cargo at the time of its seizure being cov

The assured were not bound by the statement of O. H. Hicks, which was . presented to the several underwriters among the preliminary proofs of loss and interest oni the 13th February, 1826. The underwriters did not admit the correctness of the statement, and refused to pay the loss in conformity thereto. It would not, therefore, have been binding upon the assured, so as to prevent them from recovering what was actually due from the underwriters, upon the first and second policies, even if they had themselves assented to its correctness under a misapprehension as to their legal rights. But it appears the assured objected to the statement in their conversations with Hicks. It was nothing, therefore, but an offer to compromise with all the underwriters on the basis of that statement. It was not exhibited at that time as limiting the extent of the abandonment which had been made upon the second of the same month; and it appears by the special verdict that due proof of the loss and of the interest of the as

Under the construction which I have found myself com-polled to put upon this contract of insurance, as a time policy upon a trading voyage, and upon the American clause contained therein, the amount for which the defendants in the court below have been held liable by the decision of the supreme court is no more than they were legally bound to pay by their contract with the plaintiffs. The judgment of the court below is therefore not erroneous, and it should be affirmed.

This case presents two important questions of marine insurance, both of which seem to be measurably unsettled; at least, no distinct and indisputable adjudication upon either of them, by a court of controlling authority, has been found. This fact, in connection with the probability that both must have been often practically resolved, is laid hold of by each party with about equal plausibility, as proof that the position for which he contends are so clear, that no one before the opposing party of the suit had presumed to bring them into controversy. But however satisfactory this course of reasoning may be to the parties respectively, it affords no aid to the court in the solution of the questions, except as it admonishes it of the propriety of greater diffidence and care in coming to its conclusions.

The question first discussed by the counsel, in the order of their argument, is, what rights and relations subsist between the insured and the insurers of a cargo for a trading voyage, where the policies are on time, and do not cover all the insurable interest of the insured in the cargo ? The second question, and in its bearings on the present case the most important, is what rights and relations subsist between different insurers, under time policies on the same cargo for a trading voyage, where the policies are of different dates, but have all fully attached, and where part of the insured interest is withdrawn from the risk, and the residue, being less than the amount insured by all, is totally lost ?

On first impression, it seems very strange that in the multitude of suits which marine insurance has given birth to in the English and American courts, that there should be found no distinct adjudication upon this point; but on reflection I am satisfied that a question of this character, between owners and underwriters, is likely to occur much more rarely than I had supposed. In a direct voyage it can scarcely happen that the insured could discharge his uninsured interest from the risk, except it was done under circumstances that would avoid the policy entirely, as for delay, deviation, &c.; and when the ship reaches her port of delivery, the policy continuing in force until the cargo is landed, the owner of course would not, if he could, withdraw the portion of it first landed from the protection of the policy, until the whole is out of risk; and until he withdraws the part absolutely, so that the insurer ¡s

But in this case the argument for the insurers is not put on the ground, that the goods discharged from the ship at Callao were still in any sense at their risk, but on a principle which if carried out would assert, that after the insurable interest had been diminished by withdrawing a part of the original cargo, by sale or otherwise, that a total loss could never occur: in other words, that the loss of less than the original whole, must be a partial and not a total loss, notwithstanding it was a loss of the entire subject then at risk. This argument in its effect establishes an indissoluble portnership between the insurers and the insured, in regard to the risks of the whole capital of the insured at the commencement of the voyage, which plainly would be inconsistent with equity and reason. No doubt insurers and owners are in some sort partners, in respect to losses that occur in the capital at risk; but this partnership is confined to the capital while at risk only, and does not extend to it when withdrawn from the risk; for the moment it is withdrawn, and is not exposed to any of the risks for which the insurer is liable, that moment the insurer ceases to have any relation with it. While the gross interest covered and uncovered by the insurance remain at a common risk, the relations of the owner and the insurer, so far and only so far as it may be affected by a loss, are in the nature of tenants in common ; but this tenancy does not extend to the dominion or ownership of the property, for that remains entirely in the insured. The property continues his as much as before the insurance, and he may make whatever disposition of it he pleases. It is erroneous therefore to say that the insurer is,

The cases given by the French writers show the rule established in France in trading voyages, but they seem not to have discovered what 1 suppose to be the principle of the rule, and which makes it a rule of universal application. The case from 2 Valin, 87, and 2 Emerigon, 39, 40, cited by Chief Justice Kent, in Davy v. Hallett, 3 Caines, 21, was where insurance to the amount of ÍQ0Q livres was made upon goods on board a vessel from America to Marseilles, The vessel sailed with a cargo to the amount of 3000 livres, and discharged two-thirds thereof at Cadiz, leaving goods on board for the remainder of the voyage to the amount of the insurance. This of course could not have been a case of insurance on a direct voyage, else the policy would have been avoided for deviation. No doubt the policy contained, what the French policies commonly do, the clause “ de fairs echelle ” which is equivalent to a license to touch and trade at intermediate ports; for we find another case put by Emerigon, exactly similar in principle, where this clause is stated to have been in the policy. It is that of insurances upon goods on board a vessel from the French islands to Cadiz and Bordeaux. The vessel touched at St. Andero, and was afterwards captured just before reaching Bordeaux. The question was whether the insured, by discharging a part of the goods at St. Andero, leaving still sufficient on board to fill the policies, furnished any just excuse to the insurers for not paying the whole amount of their insurance. It was answered it did not, for in such a case it

The next and more perplexing inquiry is, what are the rights and relations of the different insurers betxveen themselves in respect to the loss for which some or all of them are liable; and particularly, have they a common liability for the loss, or is it a successive liability in the order in which their respective policies bear date ? This question has been most ingeniously and most confidently argued by the counsel of both parties, and in the admitted absence of any clear authorities to aid in resolving it, one should feel some diffidence of the correctness of the conclusions at which he arrives.

It is conceded that by the common law of England, xvhich in this respect our constitution makes the common law of this state, all insurers against the same risks become partners, or rather co-sureties, notwithstanding their contracts are of different dates, and notxvithstanding the insurance exceeds in amount the interest insured ; and that the last underwriter is as much bound to contribute to the loss, xvhelher total or partial, as the first. This is the rule given by Lord Mansfield,

The case of Goden v. London Assurance Company, as well as that of Newby v. Reed, was where the insured had paid for insurance on a greater amount than had ever been at risk ; all the insurers had received their premium and were entitled to retain it. In the first, case the opinion expressed was, that “ if the insured is to receive but one satisfaction, natural justice says that the several insurers shall all of them contribute to satisfy the loss against which all of them insured.” In the other case “ it was ruled by Lord Mansfield and agreed to be the course of practice, that upon a double insurance, though the insured is not entitled to two satisfactions, yet upon the first action he may recover the whole sum insured, and leave the defendant therein to recover a rateable satisfaction from the other insurers.” That this was not a new rule appears from its being “ agreed to be the course of practice f and indeed it is not easy to see what other legal rule there could be. So far as the insurance applied to the same interest, which it must necessarily in case of double insurance, the different insurers were in the condition of co-sureties, and the principles of law applicable to other co-sureties were properly applied to them. The only case to be found wearing a different aspect, is that of the African Company v. Bull, 1 Show. 132, where the real point decided is, that a plea which would have been bad on demur

The construction to be given to the first branch of the clause is not so much disputed in the present case, as that to be given to the second branch; but when the construction of this branch is fixed, it will afford, I think, a key for rightly construing the other branch. The words of it are, sc if the said insured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the said American Insurance Company of New-York, shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the premises hereby assured, and the American Insurance Company of New-York shall return the premium upon so much of the sum by them assured as they shall be^by such prior assurance exonerated from.” The term premises, occurring in this branch, it is admitted by both parties, and it is indeed' beyond doubt, means the cargo belonging to the insured. The term answerable is more equivocal, but when construed with the concluding part of the sentence relative to the return of premium, admits, I think, but of one construction. The argument for the assured has the effect of construing this word to mean pay in case of loss, which would not only exonerate them from liability to contribute to any partial loss, less in amount than the sum

The second branch of the clause is, “ and in case of any insurance upon the said premises subsequent in date to this policy, the said American Insurance Company of New-York shall nevertheless be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent assurance had been made.” The word premises, occurring in this branch of the clause, it is agreed by the counsel, means the interest covered by the poliey, and giving to the word answerable the same meaning that it has in the first branch, and which is equally applicable to it in this, and then the plain purport of the provision is, that notwithstanding a subsequent insurance on the interest covered by this policy, the insurers shall assume the risk, or become security for the full extent of the sum by them subscribed, without right to claim contribution from subsequent insurers of the same interest, and without obligation to return any part of their premium, because of a subsequent in

I have examined attentively the cases referred to on the argument, but find none of them that affect the conclusion to which I have come, except it be the remark of Mr. Justice Story, in The Columbian Ins. Co. v. Catlett, 12 Wheat. 394 , which was purely speculative, on a state of facts which the case under consideration acknowledgedly did not present. I have therefore felt bound to treat the question as entirely open, and as one that has not been before judicially resolved.

My opinion is that the judgment of the supreme court is erroneous and should be reversed, and that a judgment should be given for the plaintiff below for only twenty forty-fifths of the sum lost by the seizure of the cargo on board at Callao, including of course the specie.

On the question being put, “ Shall this judgment be reversed 1” Senator Tracy and Senator Jones voted in the affirmative, and the President of the Senate, the Chancellor and twenty senators voted in the negative. Whereupon the judgment of the Supreme Court was affirmed»