author:
Pierrepont, J.
      Slossoh, J. Woodruff, J.

text:
    Joseph Howard and John T. Howard, Plaintiffs, v. The Astor Mutual Insurance Company, Defendants.
    1. An insurer of passage money, generally for the voyage, by a policy in the usual form of a freight policy, is not liable because the vessel is delayed on her voyage by perils of the sea, if she actually makes the voyage in suitable condition to carry to the port of destination all who embark on the voyage.
    2. Insurance of passage money, generally, is not an undertaking that the ship shall perform the voyage within any particular time, or that the insured shall have the benefit of special contracts for passage ; but only that the ship shall not be prevented by the perils insured against from making the voyage, and earning the passage money of those who embark in her; and that she shall not by a peril insured against be prevented from using her ports and receiving and transporting such persons as have engaged passage and are ready to embark in her.
    3. Mere delay of arrival is not ground of recovery from the insurer, although in consequence of such delay those who have engaged and paid in advance for passage at an intermediate port for the residue of the voyage, refuse to wait, and demand and receive back their passage money.
    Before Slosson, Woodruff and Pierrepont, J. J.
    Heard, October 13th, 1858;
    decided, May 28th, 1859.
    The action was brought on a policy of insurance, dated 14th February, 1850, for $10,000, on “passage money1'1 of the steamship New Orleans, at and from New York to San Francisco, with liberty “ to use” port or ports,, on the passage, and to touch, &c. An ordinary printed policy on freight was used.
    The New Orleans was one of a line of steamers called “ The Empire City Line,” established in December, 1848, between New York and San Francisco, and was fitted in New York for the passenger trade aforesaid. She was about to leave for Panama, (via Gape Horn,) there to take her place in the line, and proceed thence, with passengers, to San Francisco.
    Passengers from New York to San Francisco, by steamers, according to the usage and course of business established at the date of the policies, were carried from New York to Chagres, and thence to Panama, and thence were embarked and carried to San Francisco.
    When steamers left New York for San Francisco, by the way of Cape Horn, it was the practice to advertise for, and engage passengers in New York, at and from thence to San Francisco, most of whom obtained tickets to embark on board at Panama. This practice commenced in the year 1848.
    The plaintiffs engaged passengers for the New Orleans in the usual manner.
    The passage money of the passengers who engaged passage from New York to San Francisco, to be received on board the steamer at Panama, amounted to $88,550, which was paid, in New York, to the plaintiffs.
    These passengers were engaged in the months of January, February, and March, 1850, and upon payment of their passage money they received from the plaintiffs, as agents of the line, passage tickets, some of which were in the following form, viz.:
    “SECOND CABIN TICKET,
    “ Pacific Steamship New Orleans,
    “ J. Howard & Son, Agents,
    “ 34 Broadway.
    “No. 18. Voyage 1st.
    “ Received $150 for the passage of Nathan Winnett, in the steamship New Orleans, from Panama, in the month of April, to the anchorage of San Francisco.
    “ Second Cabin. Berth 25.
    “ J. Howard & Son,
    “Per J. W. Carrington.”
    Others of the tickets were in the following form, viz.:
    “ SECOND CABIN TICKET,
    “Pacific Steamship New Orleans,
    “ J. Howard & Son, Agents,
    “ 34 Broadway.
    “No. 55. Voyage 1.
    “New York, January 29, 1850.
    “Received $150 for the passage of Isaac Paddock, in the steamship New Orleans, from Panama, on hei first trip, to the anchorage of San Francisco.
    “ Second Cabin forward. Berth 82.
    “ J. Howard & Son,
    “ Per J. W. Carrington.”
    The following announcement was printed on all the tickets, viz.:
    “ Wines, &c., furnished by the steward, at reasonable rates.
    “ Ten cubic feet baggage allowed each passenger. Any extra quantity will be charged for. Specie, bullion, nor merchandise, will be taken as baggage.
    “ Should anything prevent the steamer leaving at the appointed time, the agents do not hold themselves, nor the ship, responsible for the maintenance of passengers, nor for loss of time during any detention.
    “ Passengers not proceeding after taking passage, will forfeit half the amount.”

      The New Orleans was fitted by the plaintiffs with visions, stores, and accommodations for the reception and the transportation, of the passengers engaged and to be engaged; and on the 25th February she left New York, bound for San Francisco, via Panama.
    She had on board twenty-five to thirty passengers, whose passage money amounted to $4,600, of whom ten to twelve were joiners and carpenters.
    The vessel encountered heavy weather, and, having been very seriously damaged, was obliged to put into St. Thomas for repairs.
    On the 14th of March, 1850, the Captain (J. 0. Wood) wrote to the agent of the line in Panama, (B. F. Folger,) informing him of the disaster to the ship, and that he need not expect to see her before June.
    This letter was received by Mr. Folger on the 3d or 4th of April.
    It had been expected that the steamer would reach Panama during the month of April, and would then receive the passengers and carry them to San Francisco.
    Accordingly the passengers arrived at Panama between the 13th and 14th April, 1850, and previously,-and 434 of thém presented their passage tickets to the agents there.
    The New Orleans, after being detained at St. Thomas for about one month, proceeded on her voyage, but met with bad weather aud other accidents.
    When the passengers learned in Panama of the disaster to the steamer, and that the master did not expect to arrive until the month of June, they became anxious and clamorous, and demanded of the agent the return of the passage money, or that they should be forwarded to San Francisco by other vessels.
    Folger did not think she would arrive until July, and she did not, in fact, reach Panama until the 23d of August.
    After the expiration of the month of April, Folger began to make arrangements to forward the passengers, or to refund to them their passage money.
    In the months of May and June a number of the passengers were forwarded in sailing vessels, of which Garrison & Fritz were the agents, they having agreed to receive the passage tickets of the New Orleans in payment, upon the promise of Mr. Folger that the sums specified in these tickets should be paid to them by J. Howard & Son.
    The aggregate of the passage money specified in the tickets taken by Garrison & Eritz amounted to $38,250, and, together with the passage money refunded directly to others of the passengers, ($5,650,) amounted to $43,900, which amount was paid to them by Folger on account of the plaintiffs.
    On or about the 19th June, Mr. Folger engaged passage for, and sent the remainder of the passengers (123) by the steamer New World, engaging to pay $300 for each passenger, giving the tickets by 'the New Orleans in part payment.
    The plaintiffs paid for the passage of the last mentioned passengers $36,900.
    Many of the passengers wei;e in a destitute condition at Panama, and Mr. Folger, in order to provide them with the necessaries of life, advanced to, and paid them about $1,310.
    The cost of maintaining the passengers at Panama from their arrival until the 23d Of August, would have been from $10 to $12 per week for each passenger.
    When the New Orleans finally reached Panama, there were none, of her passengers left at that place, but she engaged and carried to Panama, others, whose passage money amounted, in the aggregate, to $15,275.
    The whole amount of insurance in several offices, including the defendants, was $62,500, and the amount of passage money received at New York in advance for passages from Panama was $88,550, and for passage money from New York around the Cape $4,600.
    It is unnecessary to state the pleadings at length. The plaintiffs claimed to recover the full amount of the policy, $10,000, with interest, as for a total loss of passage money. The defendants denied their liability, on various grounds, which appear in the points of their counsel on the argument in the General Term and in the opinions of the Court.
    The action was tried, November 5, 1855, before the Hon. Thomas J. Oaklet, then Chief Justice of this Court; and on the trial—the foregoing facts being proved without contradiction —a verdict was taken for the plaintiffs, for $15,000, subject to adjustment and to the opinion of the Court, with the right to dismiss the complaint, and with liberty to either party to turn the case into a bill of exceptions. And it was thereupon ordered that the questions arising upon the case be heard, in the first instance, at a General Term of this Court.

      F. B. Gutting and Daniel Lord, for plaintiffs.
    I. The insurance being on “ passage money,” the policy (an ordinary printed policy on freight) must be construed with reference to the peculiarity of this novel and comparatively unusual subject; and the printed parts which are not applicable to passage money, should be rejected or construed in subordination to the nature of the insurance. In other words, the general terms of the contract must be narrowed in point of construction to the subject of passage money only. (1 Arm on Ins., 79, 80, 210; 4 East. R, 140; Angel Car., §§522, 122; 2 Curtis U. S. R, 277, 291, 292.)
    II. The intention of the insurance was to protect and indemnify the assured against any loss of passage money that might be occasioned by the happening of the perils usually assumed by marine insurers. An unreasonable delay in commencing or prosecuting a voyage, occasioned by damage to the vessel 'through stress of weather, whereby passage money is lost, comes within the policy.
    III. The policy attached upon the passage money advanced or to be advanced by passengers who engaged passage by the steamer Mew Orleans, in Mew York, for San Francisco, and who were to embark at Panama, on her voyage from Mew York.
    1. Each passenger, for the consideration mentioned in his ticket, hired a specified berth, and had entitled himself to a passage from the usual embarking point, in the course of the voyage from Mew York to San Francisco.
    2. The plaintiffs had entered into contracts with the passengers, giving them the right to berths; had fitted and equipped the steamer for the voyage with supplies, stores, &c., and had put themselves in a position to earn the passage money.
    3. The assured had thus acquired an inchoate right to the passage money, from the inception of the voyage at and from Mew York. The contracts with the passengers were in progress of "being performed, and the risks of loss of the passage money by the perils of the seas, &c., had comménced.
    The passage money was advanced upon an agreement that the steamer should proceed from Hew York to Panama, and thence to San Francisco; and the earning of the money was subject to be defeated by sea perils occurring at or after leaving Hew York, and before or after reaching Panama. (Truscott v. Christie, 2 Brod. & Bing., 324; Devaux v. J’Anson, 5 Bing. N. C., 519; Flint v. Flemyng, 1 B. & Ad., 45; Hart v. Del. Ins. Co., 2 Wash. C. R., 341; 1 Arn. on Ins., 472-474; id., 205, 242, 243; Robinson v. Manuf. Ins. Co., 1 Metc. R., 146; Adams v. Manuf. Ins. Co., 22 Pick., 163.)
    4. On a voyage at and from Hew York to San Francisco, the usual point of embarkation of the passengers is at Panama, and this usage constitutes part of the policy. It was intended to cover the passage money paid or to be paid in Hew York, for berths, &c., to be occupied when the ship had reached Panama. (Barclay v. Stirling, 5 M. & S., 6; Hunter v. Leathley, 10 B. & C., 858; 7 Bing. R., 517; 1 Arn. on Ins., 370, 373, 428-430.)

      (a.) The existence of the usage is proved. There is no contradictory evidence.

      (b.) The usage is of equal force, although of recent origin, and confined to the particular trade. (1 Duer on Ins., 263, § 57; 1 Arn. on Ins., 72, 73, and note.)
    PV". The earning of passage money was defeated by the happening of the perils of the seas. The steamer was thereby so much damaged that she was prevented from reaching Panama within a reasonable time after leaving Hew York. Instead of arriving there during the month of April, as was expected, she did not arrive until the 23d of August.
    1. Intelligence of the disaster to the steamer reached Panama in April, and her arrival there was not expected before July.
    Heither the passengers who held tickets for passage from Panama, “in the month of April,” nor those who held tickets for passage “ on the first trip,” were bound to wait beyond a reasonable time after the period when, in ordinary course, the steamer should have been at Panama. (Yates v. Duff, 5 Carr. & P., 369; The Pacific, Blatchf., 569, 577, 583; Watson v. Duykinck, 8 Johns. R, 336; Adderton v. Cook, 5 Carr. & P., 369.)

      In all maritime contracts, expedition is of the utmost importance. (Abb. on Ship., 249, 351, 361; 3 Kent Com., 204; Per Tinbal, Ch. J., in Glaholm v. Hays, 2 Man. & Grang., 267, 268.)
    Delay by the assured discharges the underwriters. (Hartley v. Buggin, Park, on Ins., 652, 8th ed.; Hamilton v. Shedden, 3 Mee. & Wels., 49, 52; Phillips v. Irving, 7 Man. & Grang., 328.)

      A fortiori, expedition and diligence are to be exacted from the carrier in favor of passengers.
    The climate, exposure to disease, expenses, and other inconveniences at the port of detention, are to be considered. (Phillips v. Irving, 7 Man. & Grang. R., 328.)
    V. When it was ascertained in Panama that the steamer could not arrive within a reasonable time, the passengers were entitled to a return of their passage money, or to be forwarded by other vessels, at the cost of the plaintiffs. (Yates v. Duff, 5 Carr. & P., 369; Watson v. Duykinck, 3 Johns. R., 332; Adderton v. Cook, 5 Carr. & P., 369; Miston v. Lord, Blatchf. R., 356, 358.)
    Retardation of the voyage may amount to a total loss, even of goods, when they are of a perishable nature. (3 Kent, 326.)
    But the doctrine of “ retardation ” has little or no application to passengers.
    VI. As a legal consequence, from the happening of the perils insured against, the plaintiffs have expended the sum of $1,310 in and about the support. of many of the passengers while detained at Panama; (The Zenobia, 1 Abb. Adm. R., 94, 95;) they have refunded to others of them passage money to the amount of $5,650; they have expended $75,150 in forwarding the remainder of them from Panama to San Francisco. The amount received at Panama, ($15,275,) from passengers other than those who engaged passage in New York, was more than absorbed by the expenses.
    VII. The plaintiffs are entitled to recover the losses that they have thus sustained, with interest from the 2d October, 1851, to the extent of the sum insured by the defendant.

      Wm. Curtis Noyes, for the defendants.
    I. Common carriers, whether of goods or passengers, where there is no express agreement to transport within a specified time, are not responsible for delays occurring without their fault, as by

      a peril of the sea. (Wibert v. N. Y. and Erie R. R. Co., 2 Kern., 245.)
    II. The agreements contained in the tickets issued by the plaintiffs, providing (in substance) for the arrival of the New Orleans at Panama within a particular month, (April,) created obligations beyond the usual common law undertaking of a carrier, and cannot, therefore, in any way influence or control the policy made by the defendants, or impose upon them any obligations other than those which flow from the terms of the policy as interpreted and applied by the law of insurance as heretofore administered.
    III. Eor the reasons urged on the motion to dismiss the complaint, the plaintiffs were not entitled to recover, and especially because the policy did not cover any retardation of the voyage, or any damages sustained thereby; it was simply an undertaking to indemnify the plaintiffs against any loss occasioned by breaking up the voyage and the non-earning of any passage money by the vessel.

      (a.) The vessel actually earned passage money.
    1. The voyage was insured as an entirety from New York to San Francisco, and the vessel actually earned passage money for carrying passengers between those ports.
    2. She also earned passage money for that part of the voyage extending from Panama to San Francisco.
    3. If any freight is earned, the party insured cannot recover upon a policy upon freight. (Ogden v. Gen. Mut. Ins. Co., 2 Duer, 204; Scottish Marine Ins. Co. v. Turner, House of Lords Cases, 312.)
    The rule must be the same as to passage money, as it depends upon the same principles.
    (6.) The policy did not cover any claim for retardation upon well settled principles and cases.
    1. A reasonable time is allowed to the shipper to repair the vessel when injured by a peril of the sea, so as to carry on the cargo and earn freight, and he may retain the cargo for that purpose. (Clark v. Mass. Ins. Co., 2 Pick., 104; Ogden v. Gen. Mut. Ins. Co., 2 Duer, 220.)
    2. The passengers who bad only general tickets for the first voyage from Panama to San Francisco were bound to await the arrival of the ship, and could not claim a return of the passage money they had paid, because of the delay in arriving caused by sea perils.
    3. Those whose tickets were for the month of April, may not have been bound to wait, and may properly have demanded a return of their passage money; but the agreement by which this result was produced, was not binding upon, nor can it affect the defendants in any way. (Cobb v. Howard, 10 N. Y. Legal Obs., 355; S. C., on appeal, affirmed by Nelson, J.)
    4. The retardation of the voyage by a peril of the sea is not covered by the policy; and as the voyage was actually performed, and there is no pretense that any cause of abandoment existed, the plaintiffs cannot recover. (Jones v. Ins. Co. of North America, 4 Dal., 246; S. C., reversed, 2 Binn., 567; Mayo v. Maine Fire and Mar. Ins. Co., 4 Mass., 374; Everth v. Smith, 2 M. & S., 278; Brookelbank v. Sugrue, 1 Mood. & Rob., 102; Jordan v. Warren Ins. Co., 1 Story, 342; McSwinny v. Royal Ex. Ass. Co., 13 Jurist, 489; S. C., reversed, 14 Jurist, 999; 2 Arn. on Ins., §§ 373-396.)
    Judgment should therefore be given for the defendants, and the complaint dismissed with costs.
   Pierrepont, J.

The policy in this case is an ordinary printed freight policy; the words “ on passage money ” are written in.

Upon well settled rules of construction, the contract must be regarded as relating to “passage money'1'1 only. (1 Arn. on Ins., 79, 80, 210; 2 Cur. U. S. R, 277, 291; 4 East R., 140.)

The policy was issued February 14th, 1850, and the steamship sailed on the 25th of the same month. The plaintiffs sold passage tickets for the voyage from Panama to San Francisco, both before and after the ship left New York. Each ticket contained the number of the berth to which the holder was entitled.

Some of these tickets were for “the month of April;” and some were for “ her first trip ” from “ Panama to the anchorage of San Francisco.” As appeared in evidence this was “ her first trip.”

There was evidence that on a voyage at and from New York to San Francisco, the usual point of embarkation of the passengers was at Panama; and as no contradictory evidence was offered, the usage may, perhaps, be considered as established for the purposes of this case.

If such usage is admitted, the underwritersihust be considered as having contracted with reference thereto. (1 Arn. on Ins., 429, 430, 72, 73; 1 Duer on Ins., 263, § 57, and authorities there cited.)

The plaintiffs contracted with the passengers that the steamer New Orleans should proceed from New York to Panama.and thence to San Francisco; and that each holder of a ticket should have passage on that steamer and be entitled to the berth named in his ticket.

If the plaintiff^ did not perform their contract the holders of the tickets could recover back the passage money paid in advance; the consideration upon which the money was paid having failed. (Brown v. Harris, 2 Gray, 359; Vanderbilt Cases, 19 Barb., 222; 21 id., 26; Lewis v. Marshall, 7 Man. and Grang., 729; Cope v. Dodd, 13 Penn. R., 33.)

The policy being a contract to insure passage money, the question arises, what passage money? Was it merely the passage money of the tickets sold prior to the date of the ship’s departure, or did it embrace all tickets sold for that voyage of the steamship New Orleans? Was it the passage money of those only who .left New York in that ship, or did it include also the passage money of those who might afterwards embark at Panama?

In determining these questions the usage and course of trade, if such usage existed, becomes an important element. By the terms of the policy the ship was allowed “ to use port or ports on the passage.” And as the usage was then established to receive passengers at Panama, the underwriters must be considered as having regard to that usage when they issued the policy; and hence the contract of insurance would cover also the passage money represented by the tickets which entitled the holders to embark at Panama for that voyage..

The ship was retarded but finally performed her voyage. Instead of arriving at Panama in April as was expected, she did not reach there until the 23d of August. She then took some passengers and proceeded to San Francisco. But the passengers who had arrived at Panama with tickets for April, and for the first trip of the New Orleans, had been sent forward at the expense of the plaintiffs, or had demanded and received back their passage money.

It is here important to consider whether the plaintiffs were under any legal obligation to forward the holders of the tickets by some other conveyance, or to return them the money which they had paid for their passage.

• If the plaintiffs were under no such legal obligation, then in no aspect of this case are the defendants liable.

Where there is no express agreement to transport within a specified time, a carrier is not responsible for delays occurring without his fault. (Wibert v. N. Y. & Erie R. R. Co., 2 Kern., 245; Conger v. Hudson River R. R. Co., 6 Duer, 375.)

The plaintiffs’ contract with the holders of the April tickets was to forward them by the steamer New Orleans during that month, and these ticket holders had a right to demand that they be so forwarded. (Cobb v. Howard, 10 N. Y. Leg. Obs., 355; see opinion of Judge Nelson.)

But the defendants contend that the holders of those tickets which were sold “ for the first trip ” of the New Orleans, could not have recovered back the passage money paid, even though the ship had been detained at St. Thomas for two years beyond her expected arrival at Panama. I entertain a different view of the law. This line had been established some two years before these tickets were sold. The steamer New Orleans, named in the tickets, had left, or was about to leave New York for Panama ; she was expected to arrive there in April; the tickets were “ for her first trip,” and this voyage was the commencement of “ her first trip.” The passengers were on their way to California; time was to them a consideration of the utmost importance, and this was a matter of general notoriety and well known to the shippers. Under these circumstances the contract of the plaintiffs with the passengers must be regarded as a contract to forward the holders of those tickets in a reasonable time after their arrival at Panama. After waiting at Panama a reasonable time for the arrival of the steamer, these passengers had a right to demand a return of their passage money, or to be forwarded by some other vessel. (Yates v. Duff, 5 Carr. & P., 369; 3 Kent Com., 204; Abbott on Ship., 249, 351, 361; Phillips v. Irving, 7 Man. & Grang., 328; Glaholm v. Hayes, 2 id., 267.

But though the passengers might have recovered back their passage money, yet it does not follow that the defendants would therefore be liable to the plaintiffs.

The defendants can be held liable only on the ground of their own contract. That contract is a policy of insurance and imposes upon the underwriters no other obligations than those which flow from the terms of the policy .as interpreted by the law of insurance as it stood when the policy was issued.

It has long been settled law that retardation of the voyage by a peril of the sea is not covered by a policy like this where freight is insured.

The underwriters take upon themselves no risk as to the length of the voyage. But they only undertake that the ship shall not be prevented from performing her voyage by any of the perils insured against, so as to be unable to earn the freight insured; they do not undertake any risk as to the cost or time of the voyage. (Jordan v. Warren Ins. Co., 1 Story C. C. R., 351; Mayo v. Maine Fire Ins. Co., 4 Mass., 374; Everth v. Smith, 2 Maul. &. Sel., 278; 2 Arn. on Ins., §§373, 396; McSwinny v. Royal Ex. Ass. Co., 13 Jurist, 489; Ogden v. The General Mutual, 2 Duer, 220.)

When this policy was issued, the law was well settled as to the construction of its terms as applied to freight; and if the insurance had been upon freight' to be shipped at Panama, the plaintiffs could not have recovered in this action. Is a different construction to be given where passage money instead of freight is the subject of insurance ? Does that change the undertaking on the part of the underwriters where all the other terms of. the policy are the same ?

No time is expressed in the policy within which the steamer was to arrive at Panama; but the plaintiffs contend that the undertaking was that the ship should not be prevented by the perils of the seas from arriving at Panama in time to take the passengers in accordance with the shippers’ contract. It does not appear from the case that the underwriters had any knowledge of the contract between the shippers and their passengers, and the policy must be construed according to the legal meaning of its express terms.

The steamer reached Panama, took passengers there, and completed her voyage. Suppose she had found more passengers there when she arrived in August than were waiting in April, and had taken them on; would it then be contended that the underwriters were liable ? If they were liable because of retardation beyond the month of April, then the liability was complete on the first day of May, and an action would lie against them.

If the plaintiffs had commenced suit on the first of May, and had recovered judgment on the first of August, which the defendants had then paid, and after that the steamer had arrived at Panama, and there taken more passengers than were waiting in April, and had proceeded with them to San Francisco, it would then be evident that damages had been recovered against the defendants for breach of contract, which, according to all former construction of such contract, had not at all occurred.

It so happens that the steamer did not earn as much passage money on this voyage as though she had reached Panama in April; but it might have been the other way; and I am of opinion that the same rules of construction, as to' length and retardation of the voyage, are to be applied in this case as have been heretofore applied to freight policies; and that the vessel having finally performed her voyage, and having taken passengers and earned passage money on that voyage, there has been no breach of contract on the part of the underwriters, and that the plaintiffs are not entitled to judgment in this action.

It is by no means clear that the steamer was prevented, by perils of the seas, from reaching Panama in time for the April passengers. The proof is, that the ordinary time for such a ship to go from New York to Panama, was from sixty to seventy-five days; whereas, there were only sixty-three days between the time she left New York and the last of April; and it appears from the case that the vessel was retarded by other causes besides “perils of. the seas."

I think the plaintiffs have not made out a case which entitles . them to recover, and that judgment should be entered for the defendants, dismissing the complaint.

Slossoh, J.

There appear to have been three classes of passengers. One class embarked in the vessel at Few York, and made the entire voyage • another engaged for the passage from Panama to San Francisco, in the month of April, and the third engaged for the passage from Panama to San Francisco in the first trip of the steamer—all paying for their passage in advance.

In respect to the first class, no question whatever arises. The receipt or ticket given by the plaintiffs to the second of these classes for the passage money, is expressed to be “for the passage of-, in the steamship Few Orleans, from Panama, in the month of April, to the anchorage of San Francisco.”

That given to the third class is the same in all respects, except that the words “ on her first trip,” are used instead of the words “inthe month of April.”

These receipts or tickets constituted valid contracts on the part of the owners of the vessel with their passengers, to transport them from Panama to San Francisco. (Cope v. Dodd, 13 Penn. R., 33.)

The vessel not having arrived at Panama in the month of April, the plaintiffs, acting doubtless upon the supposition that they were legally bound to provide other means for the transportation of their passengers or to refund the money which they had received in advance, did so refund to a considerable amount to those who preferred not to go on, and expended a very large sum in forwarding the remainder of the passengers from Panama to San Francisco, and incurred heavy expenses for the support of the passengers while detained at Panama, and they now claim to recover these moneys of the defendants, to the extent of the 'sum insured, as a loss within the policy.

On the argument, this assumed legal obligation on the part of the plaintiffs was strongly pressed as lying at the foundation of the claim upon the insurers, and the argument necessarily assumed that the policy, notwithstanding the generality of the expression by which the subject of the insurance was defined, covered the special contracts in question; in other words, that taking into view the usage of the trade, the contract of insurance in this instance, was in legal effect an undertaking to indemnify against any loss of passage money which the plaintiffs might suffer under these special contracts in which time is made an essential element, -whether the contracts were made known to the insurer or not, if such loss was the consequence or result of a peril of the sea.

In such a view of the case the legal obligation of the plaintiffs to refund the passage money on their failure to fulfill their contract in time, or to provide other means for the transportation of their passengers, might perhaps become an important question, but the construction which we haye given to the policy, as will be seen, rejects the idea of its being an undertaking to indemnify against these special agreements in any such sense as contended for, and for this reason as well as for the more important one, that the defendants’ liability is to be determined by the nature and character of the proximate cause of the loss, it is unnecessary to discuss the question whether under the circumstances the plaintiffs were under a legal obligation to refund these moneys or provide other means of transportation for their passengers; whether they were or not does not affect the question of the defendants liability under this policy.

I should however feel but little difficulty, were it necessary to do so, in expressing an opinion on the subject of this liability of the plaintiffs to their passengers, and for all the purposes of this decision am willing that it be assumed that such liability did exist in respect to both the “April” and “first trip” passengers, and that the plaintiffs in refunding their passage money which they had received and providing other means for the transportation of. the parties who held their tickets and insisted-on going on, did only what they were under a legal obligation to do.

Having done so can they recover the moneys so expended or refunded of these defendants as a loss under this policy ?

The insurance is upon “passage money, at and from New York to San Francisco, with liberty (to the insured) to use port or ports on the passage.”

The contract is to be construed in reference to the usage in the particular trade in which the steamer was to be engaged, and which is clearly established, though like the trade itself, of recent date, and this was to engage passengers through from New York to San Francisco, taking them by steamers to Chagres, thence by land across the Isthmus to Panama, where they embarked in other steamers of the line to San Francisco, and when steamers left Hew Work for San Francisco by way of Cape Horn it was the practice to advertise and engage passengers in Kew York to embark by such steamers at Panama.

In view of this usage, and even without it, under the liberty to “ use port or ports on the passage ” the policy in this case covers passage money to be earned for the portion of the voyage between Panama and San Francisco, as well as that for the entire voyage around the Cape; but it' by no means follows that it covers the particular passage money stipulated for in these contracts in such sense as that it is to be considered as the specific subject of the insurance. The same rules of construction apply to an insurance on “ passage money ” as to an insurance on “ freight,” and it was expressly held in Everth v. Smith (2 Maule & Sel. R., 278) that an insurance on “freight” simply was not an insurance on the particular freight stipulated for in the charter party, but that if the vessel earned any freight, though not that particular freight, the underwriters would not be liable.

After all it is not perhaps material whether the policy covers the particular contracts or not, since the question in either aspect must ultimately come to this, whether the loss is one by a peril insured against; if it is not, it is of little' moment whether the policy attached upon the passage money secured by the contracts, or not, since in neither case would the' insurers be liable.

I address myself therefore to this question.

Was the loss of the passage money under these contracts (assuming them to have been covered by the policy) attributable to a peril against which the insured were protected by their policy ?

The loss was owing to the delay of the vessel in reaching Panama, by reason of which disappointment' the plaintiffs (whether legally bound to do so or not is immaterial) refunded the moneys which they had received of the parties whom they had contracted to carry from that port to San Francisco and who did not wish to go on, and procured passage in another vessel at great expense for those who insisted on being carried to their journey’s end.

It is said that this retardation being a consequence of the injuries sustained by the vessel from perils of the sea, obliging her to put into St. Thomas for repairs constitutes a loss within the policy. To this the answer is obvious; the insurer is only answerable for losses that are the direct or necessary consequence of a peril covered by the policy; the damage to the ship was the immediate consequence of a peril of the sea; her delay at St. Thomas was the cause of the loss of the passage money in question; the loss therefore is attributable not to the peril, which forced the vessel into St. Thomas, as its proximate cause, but to the retardation of the voyage which was a consequence of that disaster.

It is true that the insurer is liable for the necessary natural and inevitable, as well as for the immediate, consequences of the peril, but he is not liable for all the indirect or remote results of it. See Tilton v. Hamilton Insurance Company, (1 Bosw. R., 367,) where this doctrine is discussed.

• It cannot be said that the loss of passage money generally, nor the loss of the particular passage money stipulated for in these contracts, was in any sense a necessary or inevitable, or perhaps even a probable, consequence of the peril which obliged the ship to stop at St. Thomas. Her detention there, as to time, was a matter wholly uncertain, depending on the facility of procuring repairs. The ability of the ship to resume and prosecute her voyage and earn her freight depended on the extent of her disaster and the means at hand for repairing her, and was not affected by the time occupied in making her repairs. Even if it be admitted that the Company have undertaken to insure these specific passage moneys, they have done so only against the perils enumerated in the policy. They have not undertaken that these moneys shall be earned at all hazards, and within the period specified in the contracts, but that they shall not be lost through any disability or the ship, from a peril insured against, to earn them. Ho such disability is pretended. The vessel accomplished her whole voyage, and earned, or might have eatned, all her stipulated passage money. She actually did earn that of the passengers who went with her around the Cape; and she was in a condition to earn that of those who might be ready to embark in her on her arrival at Panama.

It will not be pretended that there was any loss on the passage money of those who embarked in the ship at Hew York, and made the voyage around the Gape, nor that these passengers could successfully claim, by way of reclamation for the delay at St. Thomas, a return of the whole or any portion of the price of transportation which they had paid in advance. In respect to them there has been no loss by a peril insured against, because the vessel, though delayed, actually accomplished the voyage, and completed their transportation. She was equally competent, and was ready and willing, to do the same thing, with no greater delay, in respect to those who preferred to join her at Panama; and had those passengers been at that port on her arrival, they could have claimed their berths as against all the world, and have gone in her to her port of destination.

It is difficult to perceive how a different construction is to be given to the policy as respects one set of passengers from that which applies to the others, or how, under the same contract, which makes no discrimination, the Company should be held liable, under the same state of facts, in respect to the loss of the passage money due from one class of passengers, when it would not be in respect to that due from another.

If it be conceded that the parties who held these tickets were not bound to wait the arrival of the vessel at Panama beyond the month of April, or beyond a reasonable time, that was a matter between them and the owners of the vessel only; and even if they had thqright to throw up their contracts after the period indicated, their doing so could not, in the absence of any stipulation to that effect in the policy, impose on the insurer an obligation of indemnity.

A policy might be unquestionably framed to cover such a case; but, certainly, this one is not so framed.

The general rule, that the insurer is not liable for the consequences of a mere retardation of the voyage, though resulting from a peril of the sea, is too well settled to be disputed, and is equally applicable to the case of freight as of cargo.

The case of Anderson v. Walks, (2 Maule & Sel. R., 240,) was that of an insurance on cargo from London to Quebec. After accomplishing a greater portion of the voyage, the ship was, by stress of weather, obliged to put back into the port of Kinsale, in Ireland, where she was detained so long for repairs that the season was lost, and no other vessel could be procured to carry on the cargo, and even if one could have been procured, it was too late to have prosecuted the voyage that season. The voyage was accordingly abandoned, and the captain sailed on another voyage. The cargo, which was partially damaged, was sold as damaged, and the plaintiffs abandoned and claimed for a total loss. For the plaintiffs it was contended that, as there was a known course and period for performing such a voyage, it was implied in the contract that' the voyage should be performed in such a period, or at least within a reasonable time; but the Court held, that “interruption of the voyage does not warrant the assured in totally disengaging himself from the adventure and throwing this burden on the underwriters. Disappointment of arrival,” said Lord Ellenbobough, “is a new head of abandonment in insurance law.” If the cgrgo be perishable, the case may be different; but that is the only exception. (3 Kent, 7th ed., 401.)

The case of Everth v. Smith, (2 Maul. & Sel.,) already cited, was that of an insurance on vessel, freight and cabin cargo, at and from Eiga and any other port in the Baltic to the United Kingdom, detention by princes being one of the perils insured against. The vessel sailed from London on the 12th day of July, 1812, under a charter party, by the provisions of which the ship was to report herself at Eiga to the agent of the charterers, who was to supply her with a cargo for the port of London. She delivered her outward cargo at another port in the Baltic, and then proceeded to Eiga under a Eostock flag, arriving there on the 23d day of September, and reported herself to the charterers’ agent. But the Eussian government prohibited the loading of any goods on board her, because of her having sailed under that particular flag, and she was thus detained until the 20th. day of October, when the frost set in, in consequence of which she was obliged to remain the whole winter at Eiga, and did not get any cargo from the charterers’ agent, but in the spring the master procured a cargo from other persons, with which he returned to England, but the expenses attending the detention amounted to more than the freight. The plaintiffs claimed that this was a loss of the specific freight which would have accrued under the charter party by means of one of the perils insured against, and therefore covered by the policy; while the defendants contended that it was not a loss within the policy, because the insurance was rtot on any particular designated freight, but only on freight for a designated voyage, and that freight had been earned by the performance of the voyage; that to hold the insurer liable in such a case would be to make the underwriter not an insurer on freight for the voyage, but an insurer for the performance of the particular contract, and (which is the point to which the case is now cited) that even if this could be done, it did not appear that the contract could not have been performed, or that anything more than a delay in the performance was occasioned by the detention,' which is not a loss if freight be ultimately earned. The Court adopted this view. “ The underwriter,” said Lord Ellen-" borough, “did not insure-that any particular freight should be brought home, but if any freight is brought home, a loss has not happened' for which he undertook .to indemnify the assured;” that the only inconvenience that has arisen, was to be attributed to the protraction of the adventure; and he referred to Anderson v. Wallis and another case, as showing that that did not constitute a loss. “ The not obtaining the freight looked for,” said he, “ is a new head of abandonment, and so it is of loss.”

Retardation of the voyage by a peril insured against, does not constitute a technical total loss of the ship, unless she be rendered thereby totally incapable of performing her voyage, and this, even though by such retardation the voyage be not worth pursuing, or the cargo be thereby so injured as to be not worth transporting ; for such an insurance is not an insurance of the ship and the voyage, but of the ship for the voyage, which means that the ship shall not, by means of a peril insured against, be rendered incapable of performing her voyage. (Bradlie v. Maryland Ins. Co., 12 Pet. R., 378; Alexander v. Baltimore Ins. Co., 4 Cranch R., 370.) These cases are cited and approved -in Ruckman v. The Merchants' Insurance Company. (5 Duer, 342.)

There is no difference in principle, whether the claim be for a total or a partial loss.

In Mayo v. The Maine Fire and Marine Insurance Company, (4 Mass. R., 374,) the claim was for a partial loss of freight arising from the detention occasioned by an embargo. The vessel was subsequently released and received her stipulated freight. The plaintiff claimed that if the vessel had not been' detained she would have earned her freight in less time, and that therefore there was a partial loss of freight; but the Court held there was no partial loss, and say: “ The underwriters did not insure any particular time in which the voyage should be performed, but only that the freight should be earned. They are not, therefore, answerable for a partial loss arising from the increased length of the voyage by the detention, any more than they would have been if the arrival of the vessel had been delayed by violent storms which had driven her out of her course.”

Without a further citation of authorities, I think it clear that an insurance on “ passage money,” generally, like an insurance on “ freight,” which does not specify any particular freight, does not bind the insurers to indemnify the insured against the loss of particular passage money, secured by special contracts with the passengers, and which are not shown to have been communicated to the insurer, or to have entered into his contemplation at the time of effecting the policy, except in those cases only in which he would be bound to indemnify were" there no special contracts in existence, and that is where, by a peril insured against, the ship is disabled from earning such passage money by completing her voyage; and that a mere retardation of the voyage, though a consequence of a disaster to the ship occasioned by a peril of the sea, if the ship actually prosecutes and completes her voyage eventually, is not a loss covered by a policy in such a form, and in which retardation or delay is not named as a peril, notwithstanding the insured may, through such delay of the voyage, have lost passage money secured by special contracts with parties whom he had engaged to transport within a certain time.

If the trade in the present case was novel and peculiar, so much the more necessity was there for parties resorting to special stipulations in their policies. The Court can only deal with contracts as they find them, and whether the result be disastrous to parties or not, can only interpret them on the settled rules of construction applicable to such instruments.

Judgment should be entered that the complaint be dismissed.

Woodruff, J.

Without expressing any opinion upon the question whether upon the facts appearing in this case the persons who had engaged passage in the steamship New Orleans and paid their passage money or any of them could, by law, have recovered back such passage money, and without discussing some of the other questions which have been considered by my brethren, I fully concur in the conclusion at which they have arrived, viz., that the defendants are not liable to the plaintiffs under the policy declared upon for the loss of the passage money of those persons who, having engaged passage from Panama to San Francisco, neither embarked on board the vessel at Panama nor were there on her arrival at Panama in readiness to embark.

I do not deem an opinion upon the questions above alluded to at all necessary to the decision of this case. I prefer therefore to rest my conclusion upon a few of the grounds which may be abstracted from the opinions of my brethren and which, without necessarily adopting all the reasons assigned therefor, are briefly these:

By a policy of insurance upon passage money generally, for the voyage, there is covered the passage money of all persons who embark on the vessel.

Where the voyage described in the policy contemplates the use of ports intermediate its termini, the policy covers the passage money of such persons as have engaged passage at such intermediate ports to embark in her on her arrival at such intermediate ports and are there in readiness to embark in her on her departure. These two classes form the subject of the insurance.

The insurer may therefore be said to guarantee to the ship owner that the vessel shall not be prevented, by a peril insured against, from earning the passage money of those who embark; and that she shall not be prevented, by a peril insured against, from using those intermediate ports and arriving there in a condition capable of receiving and transporting any persons who have engaged to take passage in her when she arrives ancl who are there in readiness to embark for the residue of the voyage.

The policy does not necessarily cover all moneys paid for passage under special terms or conditions which the owner and any particular passenger or class of passengers may think proper to assent to as between themselves so as in any sense to guarantee that those special terms or conditions shall be complied with.

The undertaking in the policy is not that the vessel shall complete her voyage or arrive at any particular port within any period of time greater or less, or by any particular day. Nor that she shall so arrive as to enable the owner to perform any particular contract or contracts with persons engaging passage. But only that she shall arrive; that she shall be in a condition in which she can receive on board such persons as are in readiness to embark in her, and that the passage money of those passengers shall be earned: or, more strictly, that such arrival, condition and earning of the passage money shall not be prevented by a peril insured against.

Mere delay or retardation in the completion of the voyage or in accomplishing any part of it, though it be caused by a peril insured against, constitutes no ground of claiip against the insurers under such a policy. The contract by them is satisfied if the voyage is actually made and the vessel is at all times in a condition, at any of the ports she is permitted to use, to receive and carry all persons who, having engaged passage, are ready to embark for or on the voyage which she actually makes.

The question whether, notwithstanding the voyage was made and all passengers were carried who embarked and all who, on her arrival at the intermediate port, were found to have engaged passage and who, then embarked, other persons with whom the owners had made special contracts to carry, but who would not or did not await the arrival of the ship New Orleans at Panama, could, by law, recover back the passage money they had paid, is wholly immaterial. If the owners deemed it wise to make contracts with such passengers and receive their -money upon terms amounting to a guaranty that the vessel should arrive at Panama, or be in readiness to leave Panama in the month of April or within any other period, the owners and not the insurance company took the hazard of such arrival. No such guarantee was made by the defendants. And on the other hand, if the passengers in the present case could not, under the terms on which they paid their passage money, have recovered it back, then, of course, the repayment was voluntary and the defendants are not affected by it.

Had passage money been paid to the owner by a person with whom, besides assuring him passage, the owner stipulated that she should sail from Panama by a particular day, the Company would be in no wise parties to such a contract. They have not guaranteed, in any sense the ability of the ship to perform such a contract; nor that perils of the sea shall not detain the vessel beyond'such day.

The ship Hew Orleans performed the voyage described in the policy. She carried safely and delivered all persons who embarked in her as passengers for that voyage or for any part of it, and all persons whom the owners could procure, at any port at which she touched, to take passage in her on her arrival and departure from such port. Though perils insured against retarded "the voyage, they did not prevent her doing all this.

Ho loss has occurred within the policy sued upon.

These views are, I think, fully sustained by the principles of the adjudged cases, and the treatises on the subject. Those collected and stated in the opinions of my brethren are sufficient, and I should but repeat them if I were to extend the discussion to any greater limits. T.he defendants should have judgment.

Judgment for defendants. '


source: Caselaw Access Project

license: Public Domain

text:
    Benjamin I. H. Trask, Jr., Plaintiff, v. Charles H. Jones, Executor, and Sarah Jones and Phebe J. Hewlett, Executrixes of Walter R. Jones, deceased, Defendants.
    1. Where, in an action to recover freight for carrying property in a certain vessel and on a voyage named, from New York to San Francisco, the defense is, in part, that it was not carried under such a contract as the bill of lading signed by the master expressed; but was carried under a special contract made between the shipper and one R. R. Hunter; and that Hunter was duly authorized by the owners to make such contract; an'admission at the trial that an advertisement (which was produced) was published prior to making such contract, daily in two newspapers (named) at the port where such merchandise was shipped, for a period of six weeks; stating (inter alia) that persons desiring freight should “ apply to R. R. Hunter, 80 Broadway; J. Belknap Smith, 88 Wall street; or to the captain or agent on board at Pier 4 North river,” imports that such advertisement was published by authority of the owners of the vessel; and that each of the persons named in it was authorized to make contracts for the carrying of goods in the vessel on that voyage.,

      2. After such evidence of Hunter’s authority to contract had been given, . evidence of a contract between him and a shipper of goods in such vessel for the particular voyage, fixing the rate of freight to be paid, was admissible.
    3. An order drawn by one who has furnished supplies to a vessel indorsed upon one of her bills of lading and drawn upon the master requesting him to pay a sum named, describing it as the freight on the bill of lading, of which the within is a copy, and accepted by the master with the knowledge and assent of the owners of the vessel, is a sufficient equitable assignment of the freight of the goods in such bill of lading mentioned, and entitles the assignees to recover that freight from the shippers of the goods.
    (Before Bosworth, Oh. J., and Hoffman and Moncrief, J. J.)
    Heard, April 14th;
    decided, June 25th, 1859.
    This action was tried before Chief Justice Duer and a jury, on the 1st of June, 1857, and now comes before the Court on questions of law arising at the trial, and there ordered to be heard in the first instance at the General Term. It was originally commenced against Walter R. Jones, who shipped goods from New York to California, to recover for carrying the same, and he having died pending the suit, it was, by order made May 7, 1855, continued against Charles H. Jones, Executor, and Sarah Jones and Phebe J. Hewlett, Executrixes, of his last will and testament.
    The plaintiff brings the action to recover the amount alleged to be due for carrying materials for a storehouse from New York to San Francisco in 1850, in the ship Clarendon. The complaint alleges that the contract for the carrying of the storehouse is contained in a bill of lading signed by the master, Henry S. Brown, and that a copy thereof is annexed to the complaint, and marked exhibit A. The sum claimed is $1,611.75, “ or so much as the carriage of said merchandise as herein set forth is worth.” The complaint also states that the owners of the ship being indebted to Merritt & Trask in the sum of $7,044.77 for stores and ship-chandlery furnished to the ship in the port of New York, Brown, the master, as master and by virtue of his lawful authority and as collateral security for the payment of this debt, and before the sailing of the ship, by his written acceptance of an order drawn upon him by Merritt & Trask, “ assigned the entire freight on said merchandise, as per bill of lading, to said ” Merritt & Trask.

      This order of Merritt & Trask was drawn on one of the hills of lading for the merchandise which the master had signed, and is in these words:
    “New York, September 17, 1850.
    “ For value received, please pay sixteen hundred and eleven tVV dollars freight on bill lading, of which the within is a copy to the order of Merritt & Trask.
    (Signed) “ Merritt & Trask.
    “ To Capt. Henry S. Brown,
    “ Ship Clarendon,
    “San Francisco.
    “ Accepted September 17, 1850.
    (Signed) “Henry S. Brown.”
    Before this bill for stores and ship-chandlery furnished by Merritt & Trask was contracted, Raphael Schoyer had agreed with the owners of the vessel to purchase her at $25,000, and pay $8,000 cash in hand and $17,000 on the arrival of the ship at San Francisco. That being paid the voyage was to be his. He paid the $8,000 down, and ordered the stores and ship-chandlery furnished by Merritt & Trask. Brown, the master, was a part owner, and a Mr. Oodman was the other part owner. It was proved that Brown accepted the foregoing order in the presence of Codman and Schoyer.
    These are the acts which are relied on as amounting to an assignment of the claim for freight to Merritt & Trask. They made an assignment of the claim to the present plaintiff.
    By the bill of lading signed by the master, the merchandise was to be carried for 50 cents per cubic foot, with 5 per cent primage and average accustomed.
    The defense is, in part, that the goods were not shipped under such a contract as the alleged bill of lading specifies, and that no such bill of lading was ever delivered to or accepted by the shipper of the goods. But on the contrary, that they were put on board upon an agreement between the shipper and R. R. Hunter, the authorized agent of the ship, by which they were to be carried for “ one-third of the net proceeds of said articles or merchandise after their arrival at San Francisco and their sale there by” John 0. and Henry Hewlitt, the consignees of the cargo.

      The Judge, at the trial, held that there was no such contract as the bill of lading signed by the master expressed; and instructed the jury'that there was no express contract for the carriage of the goods proved; and that the plaintiff was entitled to recover the customary rates, less the proceeds which had been realized from a sale of the lumber, it having been sold in San Francisco because the consignees refused to receive it and pay freight at the rate of 50 cents per cubic foot. The defendants excepted to each part of this charge. The jury found a verdict for the plaintiff for $1,851.17, subject to the opinion of the Court at General Term on the questions of law arising at the trial.
    The evidence of Hunter’s authority, as agent, was as follows:
    The plaintiff’s counsel admitted that an advertisement marked schedule “G” was published daily in the New York Journal of Commerce, commencing June 29, 1850, and continuing until September 19,1850; and in the New York Courier and Enquirer from July 17, 1850, till about the same time, and it was read in evidence. It reads thus, viz.:
    “G”
    “ First vessel for San Francisco, the superior, fast-sailing Canton packet ship
    “ CLARENDON,
    “ Henry S. Brown, Commander,
    “will soon be ready for sea. Shippers who have engaged freight will please send it on board without delay, together with their bills of lading. For balance of freight apply to
    “R. R. Hunter, 80 Broadway,
    “ J. Belknap Smith, 88 Wall street, “ or to the captain or agent on board at Pier 4, North river.”
    The defendants also produced a written memorandum proved to be in the handwriting of Hunter, which was read in evidence and marked exhibit “ J,” and is as follows:
    “ House is about 1,600 cubic feet, at fifty cents per cubic
    foot,......................................... $800
    Five per cent primage,............................. 40
    $840
    Bosw—Yol. Y. 9

      “ Cost of house about $500.
    “ We will take one-half of the gross proceeds of the house. This leaves the arrangement greatly in favor of the shipper ; suppose the house sells for $1,000, in that case the shipper will get the full amount of his cost, and the ship will get but thirty cents per cubic foot.

      (Above is a copy of Hunter’s estimate.)

      “ Say £ the net proceeds.
    “ 13th July, 1850. Agreed to ¿ of net proceeds to be allowed for freight.
    (Signed) “W. R. J.”
    The defendants proved that bills of lading to be signed by the master, for the carriage of the goods, and stating that they were to be carried on the terms alleged in the defendants’ answer, were prepared by Walter R. Jones and sent by him long before the ship sailed, to the office of Schoyer & Hunter, to be signed by the master.
    The declarations of both Schoyer & Hunter, in their conversations with the agent of Jones as to these bills of lading being signed by the master, were excluded and the defendants excepted.
    The defendants offered to prove that Hunter, from time to time, assured Jones and promised him that these bills of lading should be signed by the captain, and that when Jones’ agent called, from time to time, to get the bill with the master’s signature thereto, Hunter sometimes gave the excuse, for the delay in signing them, that the master was out of town, or some like reason, but promised that they should be executed by the captain, and that “ these calls and promises were repeated till after the ship sailed.” This evidence was excluded and the defendants excepted.
    ■ Various other exceptions were taken which it is unnecessary to state, as they were not passed upon by the Court in disposing of the case.

      John H. Burrill, for the plaintiff.
    I. There was no evidence to show that Hunter was authorized to make contracts for the ship as owner, or in any way to act for them, but the contrary clearly appears.

      II. The property having been shipped by Jones on board the Clarendon, and conveyed to San Francisco, the owners were entitled to recover freight.
    If, as the defendants insisted, Jones had not contracted to pay the rate specified in plaintiff’s bill of lading, and if, as was clear, the ship owners were not bound by the acts of Hunter, it follows that there was no contract as to the rate of freight, and the shipowners became entitled to recover such sum for the carriage of the goods, as it was reasonably and fairly worth, according to the usual and customary rates of freight, at that time. •
    III. The pleadings were sufficient to warrant a recovery on a quantum meruit.

    IY. The delivery of the bill of lading, and the instrument thereon indorsed to Merritt & Trask, under the agreement proved by Brown, was sufficient to transfer and convey to them the right' to demand and recover the freight for the carriage of the merchandise.
    1. Brown was the half-owner and the ships-husband, and authorized to finish and procure the necessary supplies for the voyage, and for that purpose to create a lien either upon the vessel or her freight.
    2. Merritt & Trask had furnished ship-chandlery and stores to the vessel for the voyage, and had a lien upon the vessel therefor, and the transfer in question was made to them for the purpose of paying the same.
    3. The consideration for the transfer was not only good and valuable, but was peculiarly beneficial alike to the owner of vessel and cargo; and Merritt & Traslc, having abandoned their lien on the faith of the transfer of the freight, upon every consideration of honesty and justice, are entitled to be protected.
    4. It is evident that the intention of Brown & Codman was to assign the freight for the carriage of these goods to Merritt & Trask; and if the instrument does not amount to a formal and technical assignment, the intention of the parties should be carried out, and the instrument sustained as an equitable assignment of such freight.
    5. The freight was payable on the delivery of the goods at San Francisco ; and the captain, in that character, was the proper person to collect the freight as the agent of the owners.

      6. The captain, as such, from the peculiar character of his agency and duties, has the right in his own name to collect the freight and to take all proper and necessary steps for that purpose.
    6. Brown being thus entitled to collect and receive the freight, both as captain and owner, by the instrument on the bill of lading, agrees to collect the freight for the carriage of the goods for Merritt & Trask, and to pay the same over to them or their order, and thus became their agent.
    8. If A, being creditor of B, agrees with C to collect the amount due and pay over the same to C, the latter is the assignee of the debt.
    9. At common law, and prior to the Code, in the case last named, C could not maintain an action in his own name without a promise on the part of the debtor to pay C, the assignee; but, under the Code, the rule is changed, and the action must be brought in the name of the real party in interest.
    10. The assignment to Merritt & Trask of the freight in question was made by Brown, by and with the knowledge and consent of Codman, the other half-owner.
    The plaintiff is entitled to judgment on the verdict.'

      Luther R. Marsh, for defendants.
    I. The plaintiff shows no title to the freight, if a claim of freight was established, and has no right to maintain the action.
    1. There being another legal owner, Codman, and also an equitable owner, Schoyer, the master had no legal right to assign. (3 Kent’s Com., 8th ed., 221, et seq., 171; 12 Conn. R., 489.)
    2. The alleged assignment consists in a mere acceptance, by the master, of an order indorsed upon a copy of the bill of lading, drawn to the order of Merritt & Trask, requesting him to pay a specific amount, described as “ freight on bill of lading, of which the within is a copy,” and on its face addressed to the master at San Francisco. It does not purport to be an order upon Mr. Jones, nor any person owing or having funds, and it is a mere bill of exchange and personal promise of Brown, and it lacks every requisite, either of an assignment or an appropriation of funds not collected. (Rogers v. Hosack's Ex'r, 18 Wend., 319, 334; Hoyt v. Story, 3 Barb., 263; Dickenson v. Phillips, 1 Barb., 454, 458; Kelley v. Mayor of Brooklyn, 4 Hill, 263; Hawley v. Ross, 7 Paige, 103; Malcolm v. Scott, 3 Hare 39.)
    3. No action could be maintained against the owners'upon this as their acceptance. The prefix “ Capt.” in the address is merely descriptive, (2 Seld., 168; 10 Wend., 87; 11 How. Pr. R., 11; id., 36,) and it is not added to his signature.
    4. Ho right to collect freight was relinquished on the part of the owners. Ho where is there a pretense of direction or authorization by anybody to Mr. Jones to pay to any one but the owners. There is no privity with Mr. Jones. An agreement by the owners to pay over the amount received for freight, of itself, would imply that it was still to be collected through them, and could constitute no appropriation. (Dickenson v. Phillips, and other cases, supra; Marine and Fire Ins. Bank v. Jauncey, 3 Sand., 264; Winter v. Drury, 1 Seld., 525; 3 Sand., 263; Cowperthwaite v. Sheffield, 1 Sand., 416, 449; 3 Comst., 243, 248, et vide 4 Hill, 263; 3 Comst., 251.)
    5. If the indorsement were even an equitable assignment, which it is not, the action should be brought for equitable relief, and the owners of the vessel made parties, so as to protect the defendants against the legal title, especially when there is a dispute as to the extent and validity of the assignment. (Story Eq. Pl., § 153; Cases supra, and 8 Price, 269; 1 Jac. & W., 506; 5 Maule & Sel., 549.)
    6. Ho freight has been earned, and the right to freight was inchoate and incapable of assignment. (Otis v. Sill, 8 Barb., 102; Bank Lansingburgh v. Orary, 1 Barb., 551; Field v. The Mayor, 2 Seld., 179; Robinson v. Macdonnell, 5 Maule & Sel., 228.)
    7. It is not now sought to recover upon the bill of lading upon which the indorsement was made, and the indorsement could transfer no right of action independent of the bill. (Battle v. Coit.)

    8. Brown’s coownership is not good foundation for an authority to assign. He could not divide the cause of action by assigning his interest, nor could he assign his coowner’s interest. (2 Seld., 179; 5 Wheat, 277; Hyde v. Stone, 9 Cow., 230.)
    II. The complaint was upon a written express contract, and it is evident there was an express contract. A recovery upon an implied contract was inadmissible. (Ladue v. Seymour, 24 Wend., 62; Smith v. Smith, 1 Sand., 208.) The defendants came prepared to disprove this express contract, and was unprepared with proof as to a quantum meruit. The objection was repeatedly made on the trial.
    III. Ho ground for recovery upon a-quantum meruit is established. It was never pretended that Mr. Jones engaged freight upon a general agreement.
    IY. A fraud was practised upon Mr. Jones in this matter; the lumber would not have been sent at ordinary rates for other cargo; he made a contract with the advertised agent, without which it could not have been taken; through no other channel or means was any authority obtained for carrying the lumber; bills of lading were left at the advertised office, with this advertised agent, according to the custom of shippers, and this agent took no exception, nor did any one, to the bills agreed upon, but frequently promised that they should be formally signed, and the shipper, Mr. Jones, was not liable upon any other agreement than that made with such agent.
    A new trial should be ordered.
   By the Court—Bos worth, Ch. J. Henry S. Brown,

the master, and a part owner of the Clarendon, testified that Raphael Schoyer had agreed, before the departure of the ship, to purchase her for $25,000, and had paid down, in cash, $8,000, and was to pay the other $17,000 on her arrival at San Francisco. That being paid, the voyage was to have been his own.

The ship-chandlery and stores furnished by Merritt & Trask, to secure the payment of which the claim in question was, or is claimed to have been, assigned, “ were ordered by Raphael Schoyer.” They were, of course, so ordered with the knowledge of Brown & Codman, the owners who had made this contract to sell her.

Codman, Brown and Schoyer were present when the transfer (so called) of the freight in question to Merritt & Trask was made.

It was admitted by the plaintiff that an advertisement was published from the 29th of June to the 19th of September, 1850, in the Journal of Commerce, and from the 17th of July, 1850, till the 19th of September following, in the Courier and Enquirer, to the effect that “ shippers who have engaged freight” (in the Clarendon) “ will please send it on board without delay, together with their bills of lading. For balance of freight apply to R. R. Hunter, 80 Broadway, J. Belknap Smith, 88 Wall street, or to the captain or agent on board, at Pier 4, North River.”

This constitutes sufficient evidence, prima facie, that Hunter was authorized to make contracts for the carrying of cargo, and the freight to be paid therefor.

Exhibit “ J” is proved to have been written by Hunter. That furnishes some evidence that he agreed the house should be carried for one-third of the net proceeds of a sale of it.

If Schoyer had paid the $17,000 on the arrival of the Clarendon at San Francisco, so that the vessel and the voyage would have become his, I think it cannot be doubted that the evidence given and excluded would have established, as between him and Jones, such a contract as exhibit “ J” imports.

Brown & Codman, having received $8,000 of the contract price, which was to be forfeited on a failure to pay the $17,000, according to the contract, that fact, in connection with the other facts proved, furnish strong evidence that they were willing that Schoyer should, as the party deemed most interested in the result, contract for freight and agree upon the rate to be paid, and allowed him to do so, on the idea that the payment of the $8,000, with the freight to be earned, whatever it might be, would save them from loss, in any event, from the results of the voyage.

The admission by the plaintiff that the advertisement, exhibit “Gr,” was published in the newspapers named, and for the periods stated, must be regarded as an admission that it was published with the knowledge and assent of Brown & Oodman as well as of Schoyer, and that they had conferred upon Hunter the authority which it imports.

Exhibit “ Gr” implies that it was expected the shippers of goods would prepare the bills of lading to be signed, and the captain swears that they generally filled them up.

Bills of lading, filled up by Jones, were sent by him, long before the Clarendon sailed, to the office of the advertised agent, with whom he had arranged the rates of freight to be paid. The defendants were not permitted to show, either what Hunter, the advertised agent, or Schoyer, the equitable owner, said in respect thereto.

There is no pretense that Jones had any communication with the master as to the shipping of the goods or the freight to be paid, or that the master or any one in his behalf or on behalf of the legal owners intimated to Jones that the property would not be carried on the terms agreed on by Hunter, although the master was advised by the bills of lading which Jones sent to be signed what he understood or claimed the contract was.

I think that the evidence given as to the authority of Hunter to act for the ship in the making of contracts for carrying merchandise is sufficient, unexplained, to bind the owners, and that /the contract he made must be deemed to be the one on which the goods were shipped by Jones, and on which the owners agreed that they should be carried to San Francisco.

The advertisement, exhibit “ Gr,” holds out Hunter, Smith, and the “ agent on board at Pier 4, North River,” as possessing the same power as “the captain,” in respect to contracting for freight for the carriage of goods on the Clarendon from New York to San Francisco.

This view makes it necessary to grant a new trial.

What the rights of the parties, growing out of the sale of the cargo, may be, assuming the contract for the transportation of the goods to be such as the answer alleges it was, or such as exhibit “ J” imports, cannot be determined upon this appeal. The cause has not been tried on that theory; and if the cpntract shall be proved, on a subsequent trial, to be such as is above suggested, other evidence may be given which will so vary the case from that presented by the present appeal as to render any principles, applicable to the case now made, irrelevant to that which may be finally established.

We are inclined to the opinion, however, that, if it shall be made to appear that anything was earned by the carriage of these goods which the defendants are liable to pay, the present plaintiff is entitled to receive it, if it shall also be made to appear that Merritt & Trask had furnished supplies for the ship while in this port which went to her use, and that the master accepted their order, with the knowledge of Schoyer and Codman, and with the intent to appropriate thereby the freight, to be earned by the carriage of the goods in question, to the payment, pro tanto, of their claim for such supplies.

If such was the transaction, the equities of Merritt & Trask, and of the plaintiff as their assignee, as against Brown, Oodman and Schoyer, are as clear and strong as if exhibit “ A ” had truly expressed the actual contract for the carriage of the goods.

On such a state of facts, we are inclined to think the plaintiff may justly claim that he should not be defeated in his action to recover any freight actually earned, (if any has been earned by carrying the goods,) merely because the contract for carrying them was different in its terms from what Merritt & Trask supposed it was when they received the captain’s acceptance of their order, and on the faith of which they may have forborne to resort at the time to other remedies which would have secured, in whole or in part, the payment of their claim.

But this is a question which, for the reasons already stated, we do not think it expedient to attempt to decide on the case as it is now presented.

There must be a new trial, with costs to abide the event.

Ordered accordingly.