author: Jones, C. J. Oakley J.,

text:
    Elijah Lewis versus Charles Williams.
    Feb. Term, 1829.
    If a vessel during the prosecution of her voyage be stranded near her port of'destination, and, for the purpose of relieving her, the cargo be put into lighters and forwarded to such port, and during the passage in the lighters, a part of it sustain damage, such loss is a proper subject of general average.
    A vessel on her voyage from New-York to Mobile, having on board goods belonging to the plaintiff and the defendant, was stranded near Mobile Point. While in this situation, all the goods on board, were put into lighters bythe master and forwarded to Mobile, with instructions to his agent, not to deliver them to their respective consignees, until the general average was secured. The goods all arrived at Mobile ; but on their passage from the véssel to that place in the lighters, those belonging to the defendant were damaged to an amount exceeding §2000.
    In adjusting the general average at Mobile, the loss on the defendant’s goods was taken into the account, and the proportion assessed upon those belonging to the plaintiff amounted to §86,76. This sum the agent of the captain exacted from the plaintiff’s consignee before he would deliver the goods to him, and it was paid accordingly, under that compulsion. The brig was shortly afterwards got off, and proceeded up the bay, but was driven back by a gale of wind and again stranded, when she was abandoned to the underwriters.
    Upon an action brought to recover the amount thus paid by the plaintiff to the defendant it was held, that this was a proper case for a general average; that the loss upon the defendant’s goods was correctly taken into the accountjin making the adjustment, and that the plaintiff was not entitled to recover. But if this were not so, it seems that the adjustment made at Mobile would be conclusive, upon the ground that Mobile, in relation to New-York, is to be considered upon a question of average as a foreign port.
    This was an action of assumpsit to recover back a sum of money had and received by the defendant, as the plaintiff’s proportion of a general average, for loss by the brig Concord, settled at Mobile in the state of Alabama.
    The facts of the case were these. The plaintiff and defendant were both shippers of goods on board the brig Concord from New-York to Mobile, The brig sailed from New-York on the 18th of December, 1824, and on the 11th of January following, after she had received a pilot, and after she had crossed the bar, she ran on shore near Mobile point, with her pilot on board.' While the brig continued on shore, the master caused the goods on board to be put into lighters, and sent up to Mobile, consigned to John Duncan & Co., with directions that they should not be delivered to the various consignees until the general average' was secured.
    The goods were put into the lighters in good condition, and on their passage from the brig to Mobile those belonging to the defendant were damaged. The brig remained on shore until the 18th of January when she was got off, and proceeded about eight miles up Mobile bay. Here she was struck by a gale of wind which drove her back upon Dauphin Island where she was condemned by the port wardens and abandoned to the underAvriters.
    At Mobile a general average was made Avhich included the loss sustained by the defendant; but did not take the value of the vessel at any time into computation; as the average was made up, after she wasabandoned to the underwriters. The amount of the defendant’s loss by the damage to his goods in the lighter was $2,079,17., and the amount of contribution charged on the plaintiff’s goods for the loss was $86,76. This sum the plaintiff’s consignee was compelled to pay to the agent of the captain before he could obtain his goods, and the agent paid the same sum over to the'defendant at Mobile.
    The plaintiff norv claimed to recover the amount so paid or the principal part of it, back again in this action, and a verdict had been taken in his favour subject to the opinion of the court upon a case made. There were two statements of average exhibited in the case, one being that made at Mobile according to the custom there, and the other purporting to be made according to the practice in the city of New-York, and the íavo computations differed from each other very materially. By the latter, the plaintiff? goods were charged Avith but sixteen dollars and 77 cents, the damage to the defendant’s property in the lighter being wholly omitted. In other particulars the two statements corresponded with each other.

      Mr. A. McDonald and Mr. D. B. Ogden, for the plaintiff contended.

      I. That the adjustment of general average made at Mobile was not conclusive upon the parties, and could not aid the defendant, in his attempt to withhold money unláwfúlly obtained from the plaintiff. The adjustment of general average in. ordei' to be conclusive, must be made according to the .laws of the state in which the contract was made. [Lenox v. United Insurance Company, 3 John. Cas. 178. Marshall on Insurance, (2d ed.) 319. 727. Park on Insurance 20.]
    In this case the contract of affreightment, and all the contracts of insurance were entered into in this state, and the adjustment of average as made at Mobile differs materially from an adjustment founded upon the practice among merchants and underwriters in New-York. The plaintiff has a right, therefore to open the adjustment and recover back the money with which he is improperly charged.
    II. The goods of the defendant, damaged on board the lighters, going from the brig to Mobile, were not a subject of general average, and should not have been taken into the account.
    It is a well settled rule of average, that where a part of a ship or its cargo is voluntarily sacrificed to preserve the residue from some impending danger, the part saved must contribute to its loss. So also if tó lighten a vessel when she is aground, or to enable her to pass over a bár, or shoal, a part of the cargo is placed in lighters, and in consequence, it is lost, the property saved contributes to such loss. [Phil. on In. 334. and'the authorities there cited. 2 Searg. and Rawle, 337. 8.]
    So the rule is equally well settled, that a general average contribution can only be claimed when the sacrifice was absolutely necessary for the preservation of the ship and cargo.' [Marsh, on In. 462. (1 Amer. Ed.) 537. Lond. Ed.] A. loss which does not evidently conduce to the preservation of the ship and cargo is not a proper ground of average and contribution. [Marsh. 462.] Again, it must appear that the ship and the rest of the cargo were saved; for if the goods be thrown overboard in a storm, and the ship afterwards perish, there shall be no contribution of the goods saved, (if any,) because the object was not obtained. [Marsh. 463. 537. 8.] Ifthe lighters be lost, the ship andcargoshall contribute. But if the ship he lost, and the lighters saved, then the goods in the lighters shall not contribute. [Marsh. 463. 6 Mass. Rep. 125.] In this last case, a part of the property in the lighter was thrown overboard for the preservation of the residue" in the lighter; and it was held, that the part saved in the lighter, as well as the residue saved in the ship, were not subject to general average on account of such loss.
    By an examination of the authorities, it will be perceived, that the case before the court is destitute of every fact and circumstance requisite to constitute a general average; and a loss is never to be apportioned on that principle, unless it was one which was voluntarily incurred for the common benefit of the ship, cargo, and freight. The foundation of general average is always laid in a voluntary sacrifice of a part for the sake of the rest, and here there was no such voluntary sacrifice. The adjustment of the loss upon the principle of a general average, was a mistake, and was unjust towards the owners of the residue of the cargo, the ship, and the freight.
    If this was a case for general average, it must have been so upon the ground, that the ship was saved at the time, by depositing the goods in the lighters, for if the ship be not saved, there can be no general average. If this be so, if the vessel was saved by the exposure of the goods, then her value should have been brought into the computation, and she should have contributed. The average was not, then, made up correctly upon any principle, and the fact of omitting the vessel in the computation, proves that the case was not one for general average.
    In this case, the goods were not put into the lighters for the common benefit of all, to save ship, cargo, and freight, but that expedient was resorted to to save the goods themselves, without reference to the ship. But if they were exposed for the common benefit, then the object was not attained; for the ship was lost, and there can be no general average.
    III. The plaintiff having been compelled to pay the amount as adjusted, in order to get possession of his goods, may recover the money back in an action of assumpsit. [1 T. R. 286. Cowp. 365. 4 Mass. R. 378. 9 John. R. 201. 270. 1 Taunt. 359.] As the consignee was prohibited from delivering the goods until the average was adjusted and paid, and as the payment was made by the owner at Mobile, to obtain possession of his goods, it must be deemed a payment by compulsion, and being wrongfully exacted, the amount so exacted can be recovered in this actian.

      Mr. J. Anthon, contra for the defendant, contended,
    I. That the goods of the defendant having been damaged in the lighter, in an attempt to relieve the ship while stranded, the loss was a fair subject of average contribution. [Stephens on Average, p. 8. 15. and the authorities there cited. Phil. on In. 334.] It is a principle of common justice, as well as of commercial law, that if part of a cargo of a vessel which is aground, be put into boats for the purpose of floating the ship, and such part be lost, it must be made good by contribution. We admit that the sacrifice or exposure must be a voluntary one, and for the common benefit of the ship, cargo, and freight; and in this case, the goods were, beyond all doubt, put into the lighters for the common benefit of ship, cargo, and freight; for until the vessel was lightened, she could not be removed from her perilous situation, and both ship and cargo were in imminent danger of being wholly lost. It was therefore for the common benefit of all that the ship should be lightened, and if she had not been in a situation which enabled the master to forward the goods to Mobile, they must have been thrown overboard, or a part of them at least, for the preservation of the residue, and the vessel. The goods were therefore voluntarily exposed to a new peril for the common benefit of all, and were damaged while exposed, and the average was made up upon correct principles at Mobile.
    If it be a principle of general average, that the ship must be saved by the exposure of the cargo for her benefit, then the facts bring this case within that principle; for the vessel, after her cargo was taken out, was removed from the place where she was aground, and proceeded on her voyage up tiie Bay. She was completely relieved from the peril which existed at the time the goods were put into the lighters, and thus far the purposes for which the cargo was exposed were entirely answered.
    True it is, the vessel was afterwards totally lost, but that was by a new and distinct peril, having no connection with the first danger. After having been removed from the place where she was stranded, and while on her passage to the port of destination, she was met by a gale of wind, and driven upon Dauphin Island. But that can make no difference in the principle upon which the average was adjusted, for the vessel was saved from her first peril by the exposure of the goods in the first instance.
    The objection to the average arising from the fact that the vessel was not taken into the account, is without foundation; for at the time the average was made, the vessel was wholly lost, and was abandoned to the underwriters. Contribution is made by the property saved, and if the vessel was lost at the time of the computation, she of course could not be taken into the account.
    II. The average having been settled and paid in a foreign port, is conclusive : [11 John. R. 323. 5 Cowen’s Rep. 63.] and any port out of this state is to be considered as a foreign port, within the meaning of these decisions. “ It is the duty of the master, “ in cases proper for a general average, to cause an adjustment to “ be made upon his arrival at the port of destination, and he has ‘ lien upon the cargo, to enforce the payment of the contribution.” [3 Kent’s Com. 195. and the cases there cited.]

      Mr. Ogden, in reply to this last point,
    observed, that the rule laid down related to cases of assurer and assured: to cases between contracting parties, and had nothing to do with the rights of third persons. Where the average adjusted is really the proper subject of general average, then the foreign settlement of the amount is conclusive. But it never has been held, that foreign tribunals are to settle conclusively what the proper subjects of average are ; and if it had been, the ports of neighbouring states are not to be deemed foreign ports.

         See also Dalglishe v. Davidson, 5 Dow. and Ryl. p. 6. 2 Barn, and Cr. 804. and 4 D. and R. 375.

   Jones, C. J.

The leading questions in this cause are, whether the damage to the defendant’s goods in the lighter, was an item chargeable upon the cargo for general average, and whether the adjustment of the average at Mobile is conclusive.

It appears that the brig, on her voyage to Mobile, and after she had taken a pilot to conduct her in, and had crossed the bar, ran on shore near Mobile Point, and for the purpose of lightening her, so as to put her afloat, the master caused the whole cargo to be taken out of her, and put into smaller vessels and lighters, and sent on to Mobile, the port of destination ; and the expenses attending that transportation from the brig to the port, is one of the subjects of the general average, to which the cargo was made to contribute. Of that charge, no complaint is made. But the goods of the defendant, who was a principal shipper, received damage while in the lighters, and were sold by him at auction, for the purpose of ascertaining the amount of the loss; and that loss was also brought into the general average, and is the objectionable item.

The interests which were made contributory, were the freight for the whole amount, and the cargo at the invoice value. Bu t the brig, after she was afloat, and in proceeding up the bay, encountered a storm, by which she was wrecked and lost. No part of the average is charged upon her. The plaintiff, who was one of the shippers, was compelled to pay the contribution assessed upon his shipment, before he could obtain his goods, and has brought this action to recover back the sum he was thus coerced to pay, as having been wrongfully extorted from him.

It is conceded, that the voluntary and deliberate sacrifice or exposure of goods to relieve and rescue the ship and cargo from present jeopardy or impending peril, when the safety of the whole is effected by the act, entitles the owner of the property sacrificed or exposed, to a rateable contribution from those who are benefited by the result. But it is contended, that in this case, the damage to the defendant’s goods in the lighter, was not the immediate and direct consequence of the exposure for the general safety, but is to be ascribed to the subsequent perils of the navigation in the lighter, and therefore too remotely connected with the lightening of the brig, to be a just subject of contribution; and it is further objected, that the object of the exposure, the safety of the brig, was not effected; and on that ground the claim to a general contribution was untenable.

It is a settled rule of the Marine law, that if goods be put into boats or lighters to float the ship when aground, and the boat be lost, it shall be regarded as a jettison, and the remaining property must contribute to the loss, because the lightening of the ship was a voluntary and deliberate act, and done for the benefit of the whole. [Steph. on average. p. 15 and authorities there cited.] And if the total and entire loss of the goods in the lighter, entitles the owner to contribution, his claim to recompense, for the damage they sustain in that exposed condition, must have an equal title to respect.

It can make no difference that the stranding was at the entrance of the port of destination, and that the goods were sent in the lighters from the ship to the port. She was upon her voyage and in iminent danger of being lost; the only expedient that remained for her safety, and the safety of the cargo was to lighten her by unlading her; the change of the cargo from the ship to the boat became indispensable; that was the service rendered by the exposure of the goods, and if it accomplished the purpose intended, the loss incurred by the goods in accomplishing it, ought to be borne by all who participated in the benefit. The distinction is between the case of a stranding, which exposes the vessel to the imminent" danger of shipwreck, and the voluntary removal of the goods from her by the master, to boats or lighters for the purpose of averting the peril and rescuing the whole ship and cargo from jeopardy, and the case where the vessel is lightened for the purpose of floating her, when she casually strands, and where the operation is in the ordinary course of the voyage for the purpose of discharging part of the cargo on the outside of the bar, because the ship draws too much water to cross it with a full loading on board. A loss or damage in the lighter employed in the latter case in so discharging or lightening the ship for the purpose of enabling her to cross the bar, must be borne by the owners, and would not be a subject of general average, because it is not an operation for the relief of the ship and cargo from any impending peril; and in the first class of cases where the danger of shipwreck impends, it is because the goods are taken out for the purpose of floating the ship when stranded, and thus delivering both ship and cargo from their perilous situation, thatthelos s or damage to the goods in the lighter in such case is a subject of contribution.

Marshall in his treatise, refers to 1 Mag. 56., and Malyne 109 & 10, to show that according to their exposition of the Marine law, if the ship upon her arrival at the mouth of a river or harbor, be found too deeply laden.to get over a b ar, or to sail up, and the master to lighten her puts part of her cargo into lighters and those lighters are lost, the owners of the ship and the remaining goods shall contribute to the loss because the removal of part of the cargo from the ship to the lighters was for the general benefit. But an exception is stated by Pothier to the rule which is that goods removed from the ship to enable her to enter her port of destination and lost in lighters, are not the subject of average contribution; and the exception seems reasonable, for he correctly imputes it as a fault to the master who ought to know the capacity of the port to which be is bound, and not load his ship too heavily, and thereby induce the necessity of lightening her. But this exception atfirms the rule, and shows that losses or damage to goods taken from the hold of the ship, and exposed in lighters for the purpose of floating a ship which has grounded by accident, is a legitimate subject of contribution.

The case of Whitteridge v. Norris, [6 Mass. 125.] is not in hostility with these principles. The point upon which it turned, was the absence of all intent to aid or benefit the ship or the residue of the cargo by the removal of the keg of dollars which was lost, from the ship into the boat. In that case the ship when under the charge of a pilot in Bengal bay, struck the ground and was thought to be in imminent danger of perishing. The master and crew impelled by their fears for their own safety, and acting by the advice , of the pilot took to the boats and forsook the ship, they attempted to save some of the lading, and put part of the kegs and bags of specie in the long boat, but finding her overloaded, and the sea running high, were obliged to throw most of the goods overboard for the preservation of their lives and to keep her free until they could reach the shore. The ship, however, survived the disaster, but the claim to an average contribution, was resisted and overruled on the ground that the master and crew in taking to the boats with the specie, acted with no intent or purpose directed to the preservation of the ship, which was considered as lost, deserted in despair and left to her fate; and that the exposure in the boats, though an extraordinary peril was unforeseen and the danger not voluntarily incurred with any view to the common benefit, and did not contribute to the eventual safety of the ship and cargo, which were iti no degree the result of the dereliction of the vessel by the crew. And it was held that the goods saved in the long boat by the jettison from it, were not liable to contribute to the loss of the specie because they were thus exposed together in consequence of a previous peril, and for the sole purpose of saving what could be saved without any concert of the parties interested or common benefit intended. That the intention of the jettison was the safety and preservation of the lives of the passengers and crew of the boat, and that the loss of the specie thrown overboard was incurred in the attempt to save it from the peril of shipwreck in the ship, and without any regard to the ultimate safety of the ship or the other effects taken with it, for the same purpose into the long boat, and therefore formed no case for contribution or damage. But the Judge who delivered the opinion of the court, fully admitted the principle that any loss or exposure voluntarily incurred in the preservation of the vessel and her lading, and with that view, is to be home by those who partake of the common benefit conferred by contribution in general average ; and that goods exposed in a boat from which they are lost came within the principle.

That case then instead of militating against the defendant, so far as it has a bearing upon the point is favorable to him. The case of Grey and others v. Waln, [2 Sergt. & Rawle. 239.,] decided that a vessel lost by voluntary stranding to avoid capture, was to be paid for by contribution in general average.

The Supreme Court of this state, however, in the case of Bradhurst and Field v. The Col. Ins. Co. [9 John. 9.] in reference to the circumstances of that case, held, that where the vessel is lost by voluntary stranding, the rescued cargo, though saved by her saorifice, is not to be burdened with contribution for her loss. It is not now necessary to examine how far the two cases are in conflict, or maybe reconciled; for the Supreme Court of this state in their decisions admit, that when the ship is voluntarily run ashore for the safety of the adventure, and is afterwards floated and resumes her voyage, the damage resulting from the sacrifice is to be borne as general average. It is a general principle which runs through all the cases, and has the sanction of all the courts, that the sacrifice made by the common agent of the whole or a part of the goods of some of the shippers, for the rescue of the whole interest from a peril which threatens the destruction of all, entitles the sufferers to contribution to the loss from those who benefit by the sacrifice thus made for the common welfare. And any private loss or damage which falls within that principle, and is purposely incurred for the general safety, is entitled to the benefit of the rule of contribution wherever the parties called upon to contribute have profited by the sacrifice.

On the same principle, where a ship having sprung a leak, a part of the cargo was taken out to lighten her, and to discover and stop the leak, which was put on board of another vessel, and lost by capture; but the leak in the first ship was repaired, and she enabled to proceed on her voyage, and finally reached her port of, destination. The goods lost by the capture were contributed for in general average. [1 Mag. 160.] So in Maggrath v. Church, [1 Cains, 214.] where in cutting away a mast, it splintered between the partners, and made an opening which let the water into the hold, and damaged the cargo, the damage was held a subject of average. But the right to retribution, and the obligation to contribute must concur to render the claim of the sufferer complete. He whose property is saved by the loss of the property of another intentionally sacrificed for that purpose by a common agent, is bound by every moral as well as legal obligation to contribute to a just average indemnity for that loss which was incurred for his benefit, and has enured to his advantage. But no obligation results from a loss or exposure which conduces to another’s benefit, but was not designed or intended to subserve the general interest by averting a common danger. Nor can a party be required to requite a benefit which was intended tobe conferred, but which has been disappointed by the result. If these be the principles of the rule of contribution, this case, assuming the sacrifice to have been successful, must come within it; for the damage to the defendant’s goods was the consequence of the removal of them from the brig to the lighter, which was the act of the master as the common agent for the preservation of the vessel and cargo from the greater and more imminent peril which impended from the stranding of the brig.

Then, did the transfer of the goods from the brig to the lighters, in which they received the damage, occasioned by the exposure, effect the rescue of the vessel and cargo from the peril it was designed to avert 1 The master testifies to the fact, that the brig went on shore at Mobile Point, on the 11 th, and continued aground until the 18 th of the month of January; that the cargo was taken out to lighten her; that after she was unloaded she floated, and that he, on the 19th of the month, endeavoured to take her up to Mobile; but after proceeding about eight miles up the bay, she was driven back by a gale, and struck on Dauphin Island, where she was condemned by the wardens of the port and abandoned. The vessel and cargo were relieved, therefore, from the peril they were in by the stranding at Mobile Point, and the cargo reached its destination, but the brig was eventually lost by a new peril. That loss, however, happening after the peril was over which had first put the vessel and cargo in jeopardy, and not being voluntarily incurred for the benefit of the cargo, nor conducing to its safety, was not made the subject of an average contribution. But the damage to the defendant’s goods resulting from the exposure of them, to relieve the vessel and cargo from the first peril, and from which they were effectually rescued, was brought into average: and the plaintiff now «> sists that he was not liable to contribution for that loss, because the ship afterwards perished before the voyage was ended.

It is conceded to be a general rule, that contribution is not due for a jettison, or for damage from the exposure of part of the cargo, unless the ship and remaining cargo have been rescued from the peril to which they were exposed ; but it is a mistake to suppose that the ship must pursue her voyage, or arrive at some port in safety, to entitle the party whose goods have been sacrificed to contribution for the loss. If indeed the ship, after the jettison, perishes in the same storm, the rule applies, and there shall be no contribution for the goods that may be saved to the owners of those that were thrown overboard, because the object of the sacrifice, which was the safety of the ship from the storm, was not attained. But if the ship escape the peril which the jettison was intended to eschew, and is afterwards lost by another accidentor disaster, the effects saved from the last disaster shall contribute to the loss or damage incurred in averting the first peril, because that sacrifice once saved them from danger. [Marshall, 537.]

Phillips states the rule to be, that if the impending peril, on account of which the jettison is made, is averted, what is finally saved must contribute to the loss; but being for the common safety, contribution is to be made only as far as the common safety is secured. [Phillips, 342.] Pothier, treating on this point, assumes as the settled rule, that a loss occasioned by jettison, or a sale of part of the cargo at an intermediate port, to enable the ship to proceed on the voyage, is a subject of restitution, whether the ship afterwards arrives at the port of destination, or is disabled by a new accident from proceeding, and discharges at a port of necessity. He holds, that the estimate of the indemnity should be the price of merchandize of the same quality with those that were sacrificed at the place of the ship’s discharge, where the contribution is to be regulated, and that such place of discharge is either the port of destination, when she arrives there, or the port at which she is obliged to discharge, when by a new accident happening after the jettison, she has been so disabled as to be unable to proceed further, or pursue the residue of the voyage. [2 Poth. 414. 128.] And Stevens, in his Treatise an Average, collects a similar rule from the writers on marl-time law. He explicitly states the principle to be, that if on the jettison being made, the ship survives the storm, and continues on the voyage, but shall be afterwards wrecked, what is saved from such wreck must contribute to make good the jettison. [Stevens, 14 and the books there cited.]

These opinions of foreign writers on maritime law, are of great weight and approved authority, and their doctrines on subjects of such general concernment, are consulted by jurists, and not unfrequently form rules of law in our own courts, and govern our judicial decisions. I have found no adjudication either in England or in this state, impairing or drawing in question the principles of average contribution, to which I have adverted as deduce-able from them; but the opinions of our own jurists, so far as they have been expressed, confirm and apply them. The rule of salvage in the case of the wreck of the ship off the port of destination, where the cargo is saved and delivered to the consignees, conforms to those principles; for in such case the freight is made to contribute to the expense of saving the goods. Lord Kaim selects that rule as an example to illustrate one of his maxims of equity. The proprietor of the goods, and the owner of the ship, he observes, are in such cases connected by a common interest; the recovery of the goods from the shipwreck was beneficial to both parties; to the freighter, because it restored to him his goods, and to the owner of the ship, because it gave him a claim for freight: and for that reason the salvage ought to be paid by both in proportion to the benefit received. [Kaim’s Pr. of Eq. B. 1. p. 1. C. III. sec. 2. art. 2.]

In the case of Heyliger v. New-York Firemen Insurance Company, [11 John. 85. ] the schooner success bound to the port of New-York, being on shore near the entrance of the port and in a perilous situation, it was agreed between the consignees and agent of the owners of - the vessel and cargo and the insurers of those interests, that immediate means should be taken to save the vessel and cargo if practicable, and in case the vessel was lost, to bring the cargo to New-York, and that the measures so taken, should be without prejudice to the right of either party; the vessel was wrecked and totally lost, hut the cargo was saved and brought up in lighters to New-York, and delivered free of damage to the consignees who paid the charges and thenVcalled on the defendants as insurers on caigo to contribute their proportional part of the expense as general average; they repelled the claim, insisting that the expense of the lighterage and forwarding the cargo to its place of destination was a charge upon the ship-owners solely, and payable out of the freight which they were enabled thereby to earn ; but the. court adjudged the claim tobe just and legal, the materialsof theship, the freight and the cargo were made to contribute to the charge on the principles of general average.

In strictness, that was a case of salvage and not eo nomine an average loss ; the stranding was a disaster which befel the ship from accident, and was not an act of volition, nor was there any sacrifice or exposure of any portion of the common adventure entrusted to the charge and management of the master, for the common safety or benefit of all the interests in jeopardy. But in its leading features and practical results it was very analogous to that. species of general average which is now before us? and the reasonable and just rules applicable to average contribution were applied to it by the court; and if the expenses incurred in saving the cargo from the wreck, when the stranding was not a sacrifice for the general safety and the vessel was totally lost, were a legitimate charge upon that cargo in common with the freight and the materials of the wreck, on the principle, of a joint and common benefit conferred by those expenditures upon the whole, surely the expenses and damages resulting from the removal of goods from the vessel to lighters, and the greater exposure of the goods in the lighters for the purpose of rescuing the vessel and cargo from peril, must have as strong a claim to contribution from the cargo and freight which participated so largely in the benefit of that removal and exposure of the goods that were damaged.

In that case stress was laid upon the agreement of the parties, to attempt the deliverance of the vessel and cargo from the perils that surrounded them, which was relied upon by the counsel as constituting a casus foederis which distinguished it from the common case of the transportation of the goods from the wreck to the port of destination in a substituted vessel and gave it the impress of a case of average and contribution; and the reasoning of the court is based upon that distinction.

In the case before us, the implied consent and agreement arising out of the contract of affreightment, and which is the foundation of the law of average contribution, made a casus foederis of equal obligation upon the parties, and required that in the event of a common danger, averted by the timely and voluntary sacrifice or exposure of any portion of the property in jeopardy, for the safety of all those who should participate in the benefit, should contribute to the indemnity of those who should suffer in effecting the rescue and safety of the whole from the peril. It would be strange that this right of the sufferer to indemnity, which on the success of the effort to save the adventure from the peril, had become perfect, should be divested, and the parties who reaped the fruit of the sacrifice discharged from the obligation to indemnify, by the subsequent loss of the ship by a new disaster. The right- to contribution cannot depend on the arrival of the ship at the port of destination, any more than it can upon the delivery of the cargo saved from the peril by the sacrifice, to the consignees. If the ship or any portion of the cargo be lost by anew accident, the owners of what was so lost cannot be made contributory in respect of it, to the indemnity of those who suffered by the sacrifice for the safety of those goods from the previous peril.

But the exception does not extend beyond the vessel or goods so lost by the subsequent peril, all the property which is saved from that peril and ultimately comes to the use of the proprietors, continues liable to its just contribution in general average to the loss incurred, or its rescue from its first jeopardy: I can discover no principle therefore which could entitle the plaintiff to recover back any part of the average contribution he has paid, even if his clain could be viewed as an open question, the disputed item of damages to the goods in the lighters, in the views I have taken of it, would by our own laws, be an average loss, and the rules applied in adjusting the average at Mobile were not in collision with our own.

But I do not consider the point, as an open question. The adjustment made at Mobile is in my opinion conclusive. The case of Lenox v. The United, Insurance Company, [3 Johns. Cases, 178.] was relied upon as showing that a foreign adjustment of an average loss is not conclusive upon the parties. That was the case of a jettison of cargo laden on deck, which had been brought into general average by a foreign adjustment at Lisbon, and the general average paid by the assured, who claimed an indemnity for it from the insurers. The question was whether the sum paid in general average for the goods on deck was recoverable. The court decided that it was not, and held that the adjustment at Lisbon did not conclude the parties. The reason they gave for the opinion was that the parties to the contract of insurance must be considered as having in view the law of this state, and must be governed by it. But is that reason satisfactory ? The grounds upon which the foreign adjustment is held conclusive are that it is the duty of the master to cause the adjustment to be made, and to see to the settlement of the averages: and that the parties are compellable to submit to the assessments upon them that may be coerced by suit or by the detention of the goods to pay the contributions as settled there, and if the adjustment could be opened at the home port and a new rule of apportionment be applied, great and manifest injustice must often be done to some of the parties without any remedy for the wrong done them by the derangement.

But I consider that part of the case as overruled by subsequent decisions. In the case of Strong & Havens v. The N. Y. Firemen Ins. Co. [11 John. 323.] the cargo was estimated in the adjustment of the average at the market price in Lisbon, the port of destination, where the contribution was settled, which not being conformable to the rule of adjustment in this state, as established by the case of Leavenworth v. Delafield, [1 Cains, 573.] the defendants insisted that they were not bound by the adjustment at Lisbon, and were liable only for the proportion of general average, to be settled according to the rules adopted here. But the court, after reviewing all the cases, held the adjustment to be conclusive, on the ground that a settlement of the general average at the foreign port, when fairly made according to the laws of the country to which the port belongs, is binding upon the parties, and that it is the duty of the master to cause an adjustment to be made on his arrival at the port of destination, and to enforce the payment of the contribution, and that he has a lien upon the cargo for its proportion.

1 cannot distinguish this case from that, The master here re- ° . . fused to deliver the cargo until the average contributions were tisfied. There is no pretence that the average was not fairly set-tied according to the laws and usages which prevail at Mobile, the intendment is, that it was, and it must, I think, be, binding upon all the shippers.

The court, in the case last cited, do not, it is true, in terms overrule the decision" in Lenox v. The United Ins. Co.; but they do not give it their sanction. The only notice taken of it by the learned and able Judge who gave the opinion of the court, is, that the decision there was against the recovery of the general average, on the ground that the jettison could not by our law be brought into an average loss, but that the effect of the adjustment, if the jettison had, according to the laws of this country, been a proper item in making it up, is not determined. This was indeed a nice shade of difference. In the case in which that decision was reviewed, the adjustment was not conformable to the rule judicially established in this state for the adjustment of average contributions. And it is difficult to perceive a reason for distinguishing between a foreign adjustment which deviates from our laws, in the estimate of the subjects properly made contributory, and one which includes indemnities for subjects that our laws would reject. Each operates to impose charges upon the parties to which they would not be liable on an adjustment of the average in this country, and the principles on which the court place the last decision, equally require that the foreign adjustment should in both cases be conclusive. But the two modern cases of Newman v. Cazalet, and Walpole v. Ewer, to w hich the Judge refers, as upholding his principles, were upon foreign adjustments, which embraced subjects excluded by the English rules. In the first case, which was an adjustment by the Consular Court of Pisa, several items were charged, which, according to the English usage, would not have been allowed. And in the other case, the holders of a respondentia bond had been compelled to contribute to the average loss; and Lord Kenyon held the underwriters bound for the amount of the contribution, notwithstanding that by the laws of England, the lender on respondentia is not liable to average losses.' Those cases, so irreconcileable with the dis-between objectionable subjects brought into foreign averageg ancj exceptionable rules for the adjustment of the contributions to legitimate subjects of average loss, are cited by the learned Judge as illustrating and confirming his sense of the principle that foreign adjustments, when fairly made, are conclusive; and he understands that to be the rule to which the courts of this state are to conform: we must take the rule, he observes, as we find it, and leave any amelioration of which it may admit to another department of the government.

The case of Depau v. The Ocean Ins. Co. [5 Cowen, 63.] fully confirms that construction of the rule. In that case, the previous casé of Strong v. The N. Y. Firemen Ins. Co. was cited by the court as deciding that, when a general average is fairly settled in a foreign port, and the insured is obliged to pay his proportion of it, he may recover the amount from the insurers, though the average may have been settled differently abroad from what it would have been at the home port. And on the authority of that case, the court held that the averages then in question, which had been settled at Rotterdam, the port of destination, must govern. One of the objections to those adjustments was, that certain cables procured at Halifax, a port of necessity, in the course of the voyage, and which were' not chargeable as an average loss, were improperly brought into the average and allowed: yet the court held, that the adjustment could not be opened for that cause, but must govern. In that case too, a distinction was suggested between adjustment at the port of destination, and at a port of necessity., and it was contended by counsel that an adjustment at the port of necessity being indispensable, would conclude the parties, but if made at the port of destination, was not conclusive, unless shown to be called for and made compulsory upon the master; but the distinction was disregarded by the court. Must not that case govern this ? The adjustment in this case was made at the port of destination, but which, for all the purposes of this average was a port of necessity, for the loss occurred at that port, and was there adjusted. And if the damage to the defendant’s goods would have been disallowed on the settlement of the average here,'yet the allowance of it there can no more be made the ground for opening this adjustment, than the allowance for the cables in the case of Depaw could upon the adjustment in that case.

The cases I have cited were between the merchant and the insurers, but the same rule applies to the relation of ship-owner and freighter. In the case of Leavenworth v. Delafield, where the court establish rules for themselves for the valuation of the different interests to be brought in to average and made contributory to the loss, they apply them to the original owners of those interests, and conclude with the direction that the same course of- adjustment must be pursued between underwriters; showing the opinion of the court that the same rales and principles are applicable to adj usunent between the ship-owner and shipper as between the merchant and insurer; and in the case of Walden v. Le Roy, [2 Caines 263.] the court held that the person entitled to contribution may recover "from the person liable to contribute, and he from his insurer. In most cases of foreign adjustment, the averages are from necessity settled and paid by the parties who are to contribute, without reference to the question of insurance. It would be against the principle and true spirit of the rule to allow the contributory parties who are uninsured to open the adjustment, and tó hold it conclusive upon those whose interests are insured, and upon their underwriters. There can be no solid ground for the distinction: the adjustment must be equally conclusive upon all the persons and interests actually brought ito the settlement of the average,

Oakley J.,

after stating the facts.

The first point to be determined is, whether this is a case for general average at all.

The principle upon which a general average depends is well established. When expenses are incurred or sacrifices made voluntarily, on account of ship, freight and cargo, and with a .view to the common safety of all, a general contribution must take place provided .the purpose for which the expense was incurred or the sacrifice made is answered. [Phil. on Insurance, 331. 334. Con. Marsh. 536-7-] In the present case, the vessel, freight and cargo were exposed to a common peril ;• all were relieved from the impending danger by the.shipping of the-cargo on board the lighters and its transportation to Mobile. The goods were saved, the freight earned, and the vessel put afloat in safety, and on her way to her port of destination uninjured. She was subsequently Iqst by a new peril in no way connected with the first stranding. This cannot affect the question of general average as to the expense or loss incurred in consequence of the first. peril. That was ended and the purpose for which the sacrifice was made was fully aswered. [Phil. 342. 343. and the cases there cited, Con. Mar. 537.] This case -then seems to be clearly within the general principle above stated. I have not deemed it necessary to enter into an examination of the question whether the adjustment of the general average at Mobile is conclusive upon the parties in this cause ; because I am-satisfied that it-was in fact made upon principles sanctioned by the law of-this state and that the damage sustained by the defendant’s goods while on board the lighters was properly taken into the estimation of loss.-

In Con. Marsh. 538, it is laid down, -that if a ship, upon her arrival at the mouth of a river or harbour, be found too deeply laden to get over a bar, or to sail up, and the captain, to lighten her, put part of her cargo into lighters, and those lighters are lost, the owner of the ship and the other parts of the cargo shall contribute. This appears a reasonable doctrine. The loss happened directly in consequence of the act resorted to for the general benefit and safety. In the present case, if the lighters, on board of which the goods were shipped, had remained with the stranded vessel, and had been- lost, or if the goods of the defendant, in the act of being put on board the lighters, had been by accident dropped into the sea and lost, or partially injured,-, there can be no question, that within the principle above stated, it would have formed a Subject of general average. It is not perceived that the transporting of the goods to Mobile, and their sustaining a partial injury only on their way thither, can make any difference in the application of .the rule. Shipping the cargo on board of other vessels, and sending it to the port of destination, then near at hand* was one entire act, resulting from the original design to relieve the ship from her perilous situation. The vessel was not abandoned, but in part preserved from the danger to which she was exposed, and afterwards actually proceeded towards her destined port. The vessel, freight and cargo all derived security from the exposure of the defendant’s goods in the lighters. The purpose for which such exposure was made, was fully answered; and I see no reason why they should not all contribute to indemnify the defendant for any loss, which was the direct consequence of such exposure.

The case of Whitteridge v. Norris, [6 Mass. 182.] which was considered on the argument as analagous to the present, differs from it in the material fact, that in that case the vessel was abandoned by her crew while viewed as a wreck. The property- taken into the boat in which they escaped, was not put there with the intent to contribute to the safety of the vessel, or the remaining cargo; and though the vessel was afterwards saved, the court held there should be no contribution, on the ground, that the property lost was not exposed to hazard with any view to the preservation of the ship; nor. did such exposure in any manner contribute to such preservation. I am of opinion that the defendant is entitled to judgment.

Judgment for the defendant.

[A. L. McDonald, Att’y for the plff. E. Anthon, Att’y for the defts.)

,'N'ote.—Mr. Benecke, in his “ Principles of Indemnity in Marine Insurance,’ has treated this subject with much learning, in his fifth and seventh chapters. He seems to qualify the rule, “ that the loss occasioned by jettison is to be borne “ by the whole, only in those cases where the preservation intended has actually been accomplished." He says, (p. 180.) “If nothing be saved, the owner of the “ goods thrown overboard can have no claim upon the owner of the other goods lost; “ because he loses nothing by the jettison, but what would also have been lost “ without it, since his goods, had they remained in the ship, would have shared the “ fate of the rest. But if some goods be saved, the proprietor of the sacrificed goods “ is entitled to a compensation.” This proposition, he says, is confirmed by the opinion of Weijlsen, who expresses himself in the following manner: (§. 33.) “If “ a vessel should be in danger, and after goods have been sacrificed in order to lighten her, should nevertheless be wrecked, the goods saved or fished up must “ contribute for the jettison, because it has been resorted to with a view to save “ the ship and the rest pf the goods, and because if those goods had not been sa„- crificed, their owner might have saved or recovered them all, or in part, as the other owners have done, but of which possibility he was deprived by the jettison.” Again, (p. 209.) “ When a part of the cargo is shipped over into lighters, or the “ long boat, in order to extricate the ship and cargo from a perilous situation, as for “ instance, to set a stranded vessel afloat, or to lighten a leaky one, and bring her “ into harbour, the charges of such a measure, as well -as the damage sustained by “ the goods in consequence of it, undoubtedly belong to general average.” [See also Kent's Com. vol. III. p. 185 to 196.]


source: Caselaw Access Project

author:
Jones, C. J.,
      Hoffman J.

license: Public Domain

text:
    Christopher M. Mellen and James Nesmeth versus The National Insurance Company.
    Feb. Term, 1829.
    It is well settled, that the charterer of a vessel cannot insure the amount of his charter-money, under the general name of freight. The policy itself is the evidence of the contract of insurance, and parol proof cannot be admitted to show that the plaintiff) under the name of freight, intended to insure the profits on his charter-party.
    In a policy on freight supposed to be valued, the sum insured cannot be assumed as a valuation of the freight, nor adopted as conclusive evidence of the amount • of the charterer’s interest, It seems that the true rule by which that interest is to be ascertained, is the actual freight which the vessel did or could cam.
    Where a chartered vessel is lost by the perils insured against, the charterer’s interest in a policy on freight, eo nomine, never attaches; and if the premium has been paid, it can be recovered back in an action for money had and received.
    This was an action upon a policy of insurance, tried before the Chief Justice on the 14th day of November, 1828. The words of the policy, which relate to the voyage and property insured, were as follows : “ C. M. Mellen and James Nesmeth, on account “ of themselves do make insurance and cause to be insured, lost or “not lost, at and from New-York to and at St. Croix, and at “ and from Tobasco, and at and from thence back to New-York,. “ $2,500 upon the freight of all kinds of lawful goods and mer- “ chandises laden or to be laden on bqard the good schooner, call- “ ed the Enterprise, at a premium of four and a half per cent. “ Loss to be paid in thirty days after the proof of interest and “ proof of loss.”
    The declaration contained four special counts, (each stating the insurance to have been effected by the plaintiffs on their own account,) together with the usual money counts.
    The vessel was lost on Tobasco bar at the enhance of Tobasco river, on her voyage from St. Croix to Tobasco, and was abandoned to the underwriters; but the defendants objected that the plaintiffs had exhibited no proof of interest in the subject matter of the insurance.
    At the trial, the plaintiffs produced the following preliminary proofs, viz :
    I. A letter from themselves to the defendants, bearing daté the 28th of April 1828, setting forth a list of the proofs previously furnished. The letter was in these words, viz : “ Gentlemen, “ having already exhibited to you the following preliminary “ proofs of loss under the policies, effected at your office, on the “ cargo and on the freight of the schooner Enterprise, on the 2d “ of November last, namely : I. A bill of lading of cargo ship* “ped by us, on board said schooner: II. An invoice of the “ goods, with an affidavit thereto: III. The protest of the “ master, extended before R. M. Blatchford Esq., Notary Pub* “ lie. IY. The account sales of the goods sold at St. Croix: “ V. The account sales of the goods saved from the wreck of “ the Enterprise, referred to in said protest of the master. We “ now, for your further satisfaction, exhibit herewith a protest or “ note thereof made before J. H. Ney, first magistrate of the vil-
      “ Cuadaloupe, together with a report of Edward Porter “ and Charles K. -Holmes, thereto annexed ; and also a charter- “ party made between the said, master and ourselves, with a bill of “ ^ding of certain goods, shipped, from New-York in said “ schooner, with an affidavit of our James Nesmeth, as to the “ agreement for freight therein mentioned, and a bill of lading “of sundry doubloons shipped'at St. Croix : Mr. Robert El well “ having, by our .authority, abandoned to you, the cargo shipped “ by us and also the freight. We beg leave to enquire whether the “ company require any further preliminary proofs of loss or “ interest. We shall consider you as satisfied on this point, unless “ we hear from you some intimation to the contrary ; in which “ case, we shall supply any defect therein forthwith, if any “ there be'.”
    The plaintiffs then produced, II. The bill of lading referred to in the foregoing letter acknowledging the receipt of the goods therein mentioned, from the plaintiffs, and stipulating for their delivery at St. Croix or Tobasco, to James Nesmeth or his assigns, together with an invoice of the same, amounting to $1,923,33^ in which it was stated that the goods were shipped by the plaintiffs on joint account, for St. Croix and Tobasco, consigned to Nesmeth, (who was on board the vessel) for sale. These were accompanied by the affidavit of Nesmeth, as to the correctness of the invoice. The plaintiffs also produced, III. A charter-party, between themselves and the agent of theowners . of the vessel, whereby she was let to the plaintiffs for the foregoing voyage. By this charter-party the plaintiffs covenanted to pay the sum of three hundred and sixty-two dollars and fifty cents per month for the use of the vessel, “payable on the delivery of the cargo at “New-York,” together with all pilotage, port-charges, customhouse dues and fees of every description both at St. Croix and at Tobasco.
    The plaintiffs were also to advance to the master, such an amount in cash, as might be wanted for disbursements or expenses during the voyage; the money so advanced, to be considered as a payment on account of the charter-party of the vessel; and for which no interest, commission or premium was to be charged. Nesmeth was also to have the privilege of going in the schooner without any charge for passage, he finding his own stores.
    IV. The protest of the master before the Notary in New-York was then produced by the plaintiffs, which stated that the vessel “ was lost by the perils of the sea, at the entrance of Tobasco “ river, on Tobasco bar, on her voyage from St. Croix to “ Tobasco : that a part of her cargo was there lost, and a part “ plundered by soldiers and by inhabitants of the country. The “ remaining part was earned to Tobasco and there sold by the American Consul.”
    V. An account of the sales of part of the cargo at St. Croix, amounting to $232,46, was then produced by the plaintiffs, together with an account of the sales of the goods saved and sold at Tobasco, amounting to $330,58, and a bill of lading of certain goods shipped at New- York, by Peck if- Co. on freight. These were accompanied by the affidavit of Nesmeth referred to in the foregoing letter from the plaintiffs to the defendants, and his account of sales made at St. Croix, J1 statement of expenses paid at St. Croix on account of the vessel, amounting to $101,35, was also produced, together with an accompanying affidavit of Nesmeth.
    Upon this state of the preliminary proofs, the counsel for the defendants moved for a non-suit, upon the ground that the plaintiffs had not shown any interest in the subject-matter of the insurance. This question was reserved by the presiding Judge for the consideration of the whole court, and the plaintiffs proceeded to their proofs in chief. -
    The whole of the documentary evidence, exhibited by the plaintiffs among their preliminary proofs was then received, by consent, as if proved in chief, subject to all legal exceptions, and the loss of the vessel as stated in the protest was admitted by the defendants.

      The counsel for the plaintiff then offered to prove that the defendants. were fully informed as to the nature of the voyage, before the insurance ..was effected, and that the defendants had^ by the plaintiff to insure on profits, at the time when application for insurance was . made: that they declined to insure on profits, as such, but said they would insure them as freight; and that the1 defendants were particularly informed, that the plaintiffs intended to invest’ the proceeds of their outward cargo at Tobasco in logwood, and bring the same to New-York:
    This testimony was objected to on the part of the defendants, and the Chief Justice intimated an opinion that it was inadmissiblé; but for the purpose of bringing the claims of the plaintiffs fully before the court, the evidence was admitted by consent, subject to the defendants’ objections. The plaintiffs here rested their cause, and the counsel for the defendants again moved for a non-suit^ but the motion was overruled by the presiding Judge, who thought there was, at least, some evidence of an interest on the part of the plaintiffs, in the freight of the goods shipped hy Peck Co. at JYeiv- York.

      - The counsel for the defendants then produced a bill of lading of 150 barrels of flour, 40 casks of nails, 30 barrels of pork, 60 boxes of raisins, 53 bundles of shingles, 100 puncheons of cornmeal, and 100 cypress shingles, shipped on board the Enterprize at New-Yorb, by Ballestier & Co., to be delivered at Bass, in St. Croix, unto Adam McCatchin, or his assigns, he or they paying freight as per charter-party. On the back of this bill óf lading were endorsed articles of agreement, between Ballestier & Co. and Nesmeth as charterer or owner of the vessel, in which the latter let to the former, “ the whole of the hold and deck of “ said schooner, (excepting only the cabin and 50 barrels room “ under deck for his use,) for a voyage from New-York to St. “ Croix, for the sum of $450,” and the port charges of the vessel.
    It was admitted that this freight money, together with $118 for port charges, had been paid to the plaintiffs by Ballestier and Company.

      The plaintiffs then offered to prove, that the usual period for the voyage described in the policy was three months and a half; and they claimed a verdict for $882,60, according to the following statement:
    The whole amount of freight valued in the policy at $2,500,
    A
    Charter, 3 1-2 months, at $362,50 $1268 75
    Expenses paid, - 101 35
    Amount received of Ballestier fy Co. [ XXX XX XXXX ] 40
    $882 60
    The plaintiffs also claimed that they were, at all events, entitled to recover the amount of the expenses paid at St. Croix, and the freight of the goods of Peck & Co., or a return of the premium which had been paid, amounting to $113,75.
    A verdict for the sum of $1000 in favour of the plaintiffs was taken by consent, subject to the opinion of the Court upon the following points:
    I. Whether the plaintiffs should not have been non-suited.
    II. If the plaintiffs were entitled to recover, then how much: the verdict to be adjusted according to the opinion of the court. The amount of the loss of freight on the shipment by Peck & Co., if adjudged recoverable, was also to be adjusted under the direction of the court; either party having leave to turn the case into a special verdict or bill of exceptions.
    The cause was argued by Mr. R. Sedgwick, for the plaintiffs, and by Mr. J. Anthon, for the defendants.

      Mr. R. Sedgwick contended,
    I. That the plaintiffs having hired the whole body of the vessel for a specific voyage, and a sum certain, were to be considered as owners, pro hoc vice. By a contract with Ballestier & Co., they under-let the vessel for a larger sum than that which they had stipulated to pay; they have, therefore, an insurable interest in the freight, at least to the amount of the difference between the sum contracted to be paid and that which they were to receive. whole freight in this case was valued by the parties, and the valuation fixed at $2500: the defendants being made acquainted with the nature and objects of the intended voyage. The plaintiffs had therefore an insurable interest in the freight of their own goods, and in the freight of the goods of others, to the extent of the difference between the valuation and the sum to be paid by them for the use of the vessel, deducting from such difference the freight-monies saved.
    That the construction to be given to the policy cannot bo varied by parol proof, is readily admitted; and no attempt was made at the trial to vary its true meaning by the introduction of such proof. But the plaintiffs offered to show, that the defendants, being requested to underwrite on profits, declined to insure them as such,but offered to insure profits under the name oí freight. This testimony was admissible for the purposes for which it was offered.
    The term freight, sometimes denotes a compensation for the transportation of goods, and sometimes for the use of the ship. [Phil, on Insurance p. 51.] This definition applies to cases where the owner charters his ship or carries the goods of others; but it does not embrace the case where an owner or charterer carries his own goods. Freight, then, properly defined, is the profit derived from the use of a vessel. [3 John. Cas. 39.] Strictly speaking, where the ship-owner carries his own goods, in his own vessel, there is no freight; but the profit on his goods is the freight,—the difference in their value, arising from their difference of place. The owner then, insures profits instead of freight; the plaintiffs intended to do the same thing. Let them show that there were profits in fact under their contracts, and they are entitled to recover. [Mumford v. Hallet, 1 John. Rep. 439. Phil. on Insurance, 319., also 47, and the cases there.]

    II. If the plaintiffs cannot prevail upon the principles stated, then they are entitled to recover the amount claimed, on the ground that the freight of their own goods, and those of Peck & Co., are to be deemed as valued at $2500.
    In England, a charterer cannot insure beyond the amount of the freight which the ship can earn, together with the necessary charges, &c. [Forbes v. Aspinwall, 13 East. 323.] But there is nothing in the policy of our laws to prevent the contracting parties, from insuring every thing they may choose, and fixing the valuation at any given amount. [15 Mass. Rep. 341. Phil. on Ins. 317.] Even wager policies are allowed, and where the parties insure a specific sum on certain goods, the valuation is conclusive, and the policy cannot be opened. If the policy be an open one, then the actual freight is to be ascertained : but if the policy be valued, then the valuation fixes an estimate Upon the subject insured and supercedes the necessity of proving its value. [1 John. Rep. 439.] In every case, therefore, of a valued policy on freight, we have only to ascertain what the subject is, on which the valuation, attaches.
    In this case, the defendants, at the time when the insurance was made, knew what specific goods were to be put on board the Enterprise, and with this knowledge agreed to value the freight at $2,500. The parties intended to insure that sum, on freight from New-York to St. Croix : the same amount from thence to Tobasco, and the like sum from Tobasco, back to New-York. The valuation being fixed by agreement, is conclusive upon the parties, and the insurance attaches from place to place. [Davy v. Hallet, 3 Caines 16.] The quantity of goods put on board can make no difference unless there be fraud, and there can be no fraud where the insurers are made acquainted with the exact state of facts. [Phil. on Insurance, 306-7.] The only question in such cases is, whether there has been a total loss of the subject of the insurance, to which the valuation applied.
    Here the parties understood perfectly well what the property insured or intended to be insured, was; and there has been a. total loss of the subject of the insurance. The loss of the vessel and the breaking up of the voyage is not denied ; but if denied is fully proved.

      III. The plaintiffs at all events ave entitled to recover the of the expenses paid at St. Croix and the actual freight °f Peck & Co’s goods. If the charter had expressed that the moneh advanced was in part payment of freight, then the loss of the ship w.ould bring upon the freighter a loss of the money advanced and thus create an insurable interest in him. [4 B. & A. 582. Phil. on In. 55.]
    IV. If the Court, however, should be of opinion that the plaintiffs are not entitled to recover upon any of these points, it must be for total want of interest in the subject sought to be insured: and upon this ground, they are at all avents entitled to recover back the amount of the premium paid.

      Mr. Anthon for the defendants, contra.

    I. The plaintiffs being charterers of the vessel, and not owners, and the charter-money being payable upon the delivery of the cargo in New-York, the plaintiffs had no insurable interest in the freight, eo nomine. This is well settled. [Cheriot v. Barker, 2 John. Rep. 346. Riley v. Delafield, 7 John. R. 522. Robins v. The New-York Ins. Co. in this Court, ante p. 325]
    The ground upon which the plaintiffs rely is, that the vessel being underlet by them, there is an excess of freight to be received by the charterers, over the charter-money to be paid ; and that they have an insurable interest in the freight to the amount of the excess.
    If this were true in point of fact, no such interest is disclosed by the policy; neither is there any count in the declaration to meet the claim. The declaration contains four counts ; the first proceeds entirely upon the ground that the plaintiffs were owners. The second sets forth that they were the exclusive charterers of the vessel; that the goods shipped were put on board by them to he conveyed for them, and on their account. The third differs from thé second in nothing but the averment as to the loss, and the fourth is like the first, except in the averments 'relative to loss.

      The plaintiffs’ claim, therefore, is not sustained by his pleadings, and if well founded, they could not recover on this declaration. But in point of law, the parties are bound by the policy, and must take the contract as they have seen fit to set it forth in writing. 1 here is nothing m the policy to warrant even the supposition, that any thing was insured by the charterers, except the freight which they were themselves to pay.
    II. If the plaintiffs had any insurable interest, it was in the freight reserved to them by Peck & Co.’s bill of lading. The amount of that freight was a mere minimum, being only about $30; and if necessary, the Court would open the policy, on account of the excessive over-valuation. [13 East. 323. Kane v. The Com. Ins. Co. 8 John. R. 229.] But as this bill of lading stipulated for the carriage of the goods to St. Croix or Tobasco, the whole freight under the bill of lading was earned upon the safe arrival of the vessel at St. Croix. There was therefore no loss of that freight.
    All that the plaintiffs could have at risk after this under the policy, was the freight on the undelivered portion of Peck & Co.’s goods, on the voyage from St. Croix to Tobasco. But the plaintiffs have shown no reservation of freight to themselves by any contract for that voyage, and cannot, therefore, recover for its-loss.
    III. The plaintiffs offered parol proof to show that the defendants knew what the subject of the insurance was. This testimony was clearly inadmissible, the policy itself being the evidence of the contract. It were unsafe to admit any other on principle, and it cannot be done by authority. [2 John. Rep. 346. New-York Ins. Co. v. Thomas. 3 John. Cases, 1. Phil. on In. p. 8.] If such testimony could by any rule of law have been received, there is no count in the declaration to which it could be applied ; all the counts alleging an interest in the freight, and a loss of freight eo nomine. But there are no facts on which the plaintiffs can rest their hypothetical case. By their contract with Ballestier & Co., they transferred the whole of the vessel to them for the voyage to St. Croix. The vessel arrived at the last mentioned port in safety, and Ballestier & Co. paid to the plaintiff the whole °f their charter-money, together with all the port charges. This transfer divested the plaintiff of all interest in the vessel, within _ 1 the terms of the policy.
    IV. The bill of lading of the goods of Peck & Co. creates no insurable interest in the charterers, according to the doctrine laid down in Cheriot v. Barker and Riley v. Delafield. But if there was any such interest, it was merely to the extent of that bill of lading; and the goods of Peck & Co. having arrived in safety at St. Croix, the risk ended there.
    The plaintiffs never insured their interest in those goods, (if any such they had,) beyond St. Croix, because the risk was to end at one of the termini of the voyage. If they had paid money in advance to the owner, it is not covered by the policy, and might be recovered back of him. [Mansfield v. Maitland, 4 Barn. and Ald. 582.]
    V. The policy having having attached to the extent of the outward freight on the cargo to St. Croix, there can be no return of premium. The premium was earned upon the vessel’s arrival at St. Croix, and the risk terminated there. The plaintiffs ought therefore to have been non-suited on their preliminary proofs, or upon the proofs in chief under them.
   Jones, C. J.,

(after stating the facts of the case.) The first general question for the court is, whether the plaintiffs have shown any insurable interest in freight to which the policy can attach. They were not the owners of the schooner, but the charterers of her. She was let to them by the agent of the owners, for the voyage on which she sailed, for the specific sum of $362 1-2 per month, for the entire use of her, payable on her return from the voyage to the port of New-York.

It is settled by the Supreme Court, in the case of Cheriot v. Barker and Reilley v. Delafield, and in the late case of Robins v. The New-York Insurance Company, in this court, that the charterer of a vessel, who is to pay the charter-money for the use of her at the end of the voyage, cannot insure the freight of her eo nomine. The principle which governs those cases, appears to me to apply to this. The charterer has no interest at risk, which he is to protect by insurance ; his liability to pay the charter-money depends upon the safe arrival of the ship, and the performance of the voyage. If she is lost, or fails to perform the charter, his obligation to pay the charter-money ceases. What interest, then, can he have in her carrying a freight, which, if lost, he is discharged from his liability to pay 1 It is the ship-owner, whose title to the freight he reserves by the charter-party, depends upon the performance of the voyage, that runs the risk, and is to suffer by the loss of the voyage, and to him belongs the corresponding-right to insure.

But the counsel contends, that this case is an exception to the rule, and we will briefly examine the grounds he takes to distinguish it in principle from those we have cited.

First, it is urged, that the insurers being fully informed of the nature of the intended voyage, the plaintiffs, as owners of the vessel, pro hac vice, had an insurable interest in the freight of their own goods, and of other goods carried on freight, to the extent of the difference between the valuation of the freight in the policy, and the sum they were to pay for the charter of the vessel, after deducting from such difference the freight-money earned and paid to them.

This proposition, as stated, is somewhat complicated. It involves the consideration of the bearings of the verbal communications and agreements offered in evidence at the trial upon the contract of insurance, and the legal effect of the valuation of the freight upon the rights and obligations of the parties. Upon the first branch of the proposition, the plaintiff is met at the threshold with a difficulty which seems to us insuperable. He seeks, in direct contravention of a settled rule of construction, to introduce parol evidence to vary the written contract, and essentially to alter the sense and meaning of the agreement it purports to express. . The terms of the contract are clear, explicit, and perfectly intelligible. It is a policy of insurance on the freight of goods and merchandise on board the schooner Eli- terprise, for the voyage described in the policy, and the freight insured is valued ai $2,500, the sum insured upon it. Now could language be more explicit or free from ambiguity or doubt 1 What room is there for explanation by parol, unless it was admissible to show that the actual contract of the parties' was different from the agreement they have expressed and reduced to writing. But the rules of law admit of no such explanation by parol; we must adhere to the agreement as we find it in the written contract, and content ourselves with giving it its true construction.

In the case of Mumford v. Hallet the insurance was upon profits; the broker made use of a blank form of a policy on goods, and the valuation intended to apply to profits, the previously declared subject matter of insurance, was inadvertently inserted in the blank left in the policy for the valuation of the goods, but without mentioning profits as the subject to which the valuation was intended to be applied, whereby the valuation was mistakenly made to refer to goods and not to profits. The intention was obvious, and the mistake plain and palpable. Yet the court held the parol evidence of the broker inadmissible to explain it, or tq rectify the errprs, because the legal effect would be to vary the written agreement and alter the sense and operation of one of its prominent stipulations, and the insurance was in that case rescued from destruction at law, by the application (though I believe for the first time) of the principle that a policy on profits is necessarily and in its own nature a valued policy, and the profits in the absence of any express valuation by the parties, must be understood and taken as valued at the sum insured.

In the case now before us, the pretensions for a recourse to parol explanation are much weaker, than they were in that just cited. In that case, the subject matter of the insurance, appeared on the face of the policy to be profits, and the obvious intention of the parties to refer the valuation to that subject was relied on. It was urged with great force, that the valuation if referred to the goods out of which the profits were to grow, would be nugatory, and without any appropriate relation to the principal contract, but that if applied to profits, the subject matter of the insurance, it would be an apt, usual and operative provisi on; indeed, that necessity required such constructive application, to give effect to the contract. But it was answered that the valuation, applied to the goods had a meaning, and the parties might intend to value the goods, and to leave the policy upon the profits open, and that the difficulty of proof of interest under such a policy in case of loss, however embarrassing to the assured, could not justify the court in breaking over an established rule of evidence for their relief.

In this case the insurance is upon freight, and the valuation is of the freight insured. There is no feature upon the face of this policy, indicating any mistake or misapplication of the terms employed, and no incongruity between the subject of insurance and the valuation in the policy, or other internal evidence of mistake or error. The proof offered is altogether extrinsic, and its object is to shew, that other and further interests, not embraced in the policy according to the ordinary construction of its terms, were intended, and verbally agreed, at the time of the contract, to be included within it and covered by its protection. Such testimony must surely be excluded by the rule which forbids the reception of parol evidence to vary or enlarge the terms of a written agreement. A closer view of the proof offered by the plaintiffs will exhibit the objection to it in a yet stronger light: the offer was to shew, that the defendants were acquainted with the nature of the voyage, and knew that the plaintiffs intended to vest the proceeds of their outward cargo in a return cargo, to be brought home in the schooner, and with such knowledge, consented and agreed, that the profits of the returns, which they refused to insure separately, and as profits, eo nomine, might be included in the freight policy, and covered by a valuation of the freight. The agreement then was that the profits should be covered by the policy on freight, and that the freight should, for that purpose, be insured at a valuation sufficient to cover both interests; and if that was the sole object of the parties, this policy was sufficient; for the valuation agreed upon, covers all the claims of the plaintiffs, and if they had an insurable interest in freight, which could impart vitality to the policy, they would be entitled to the whole valuation as the measure of their loss, accounting to the insurers for what was earned and saved.

But the parol agreement to be of any avail to the plaintiffs must go further, it must be shown that the defendants were fully ° ’ • i i informed of the relation in which the plaintiffs stood to the vessel, an(] pnew them to be insured as charterers only and not the owners .of her : and with that knowledge entered into a special agreement to insure for them as owners pro hac vice, the earnings of the vessel for the voyage, as, and in the name of freight, and to value the same at a sum sufficient to cover both the earnings and freight, and the profits of the return cargo; and that for those purposes a policy on freight in the common form should be made use of without reducing the special agreement into the form of a special contract. Would evidence of such an agreement be compatible with the policy before the court Í Would it not establish an entirely new contract, and wholly supersede the subsisting policy 1 The parol proof disclosed in the case does not support such an agreement. It shows that the defendants, were acquainted with the nature of the voyage, and the intention of the plaintiffs to invest the proceeds of the outward cargo in returns, and agreed to insure the profits of those returns by comprehending them in the valuation of the freight: but it does not show that they were apprised or knew that the plaintiffs were the charterers only, and not the owners of the vessel, or that they entered into any special contract to insure for them, as charterers, the freight of goods to be shipped by themselves, or to be taken by them on freight, for others, to be carried in her. What the effect of such a special contract, with such knowledge of the title and ownership of the plaintiffs, upon the rights of the parties, might be, if properly brought before the court, I do not stop to enquire; but a general insurance on freight by the charterer, without a disclosure by him of his title, or any special agreement for the insurance, we have already seen would be inoperative and void, for want of insurable interest; and all agreements are engrafted upon it, not giving it a new insurable interest, must be equally inoperative ; and if any special agreement, is relied on to give it operation, it must appear in the policy, and cannot be supplied and superadded by parol.

But the plaintiffs insist that they had an insurable interest as owners pro hac vice in the excess or surplus of the freight and earnings of the schooner on the voyage, over and above the price or amount payable by the charter-party. This surplus freight, thus supposed to constitute an insurable interest, must intend the freight and earnings of the vessel for the transportation and carriage of the goods of strangers under contracts with the charterers as owners of tier; for the charterers can found no claim upon the insurers for any loss of benefit to themselves for tire use or employment of the vessel in the transportation of their own goods, however great or valuable that benefit might be. The whole tonnage find use of the vessel is purchased by the charterer for the voyage, to be paid for, upon the contingency of the performance of the voyage. If the voyage is lost, the purchase money never becomes payable, and in case of its accomplishment, the benefits of the charter, if favourable, are realized in the profits of the adventure. But the chartered vessel may be underlet,- or employed as a general ship for the carriage of goods, under bills of lading, for specified freights payable to the master as agent of the charterer. In that case, the loss of the voyage would produce no loss to him unless the freights payable by others to him, on the safe arrival and delivery of the goods, exceeds the amount of the charter-money, which on such safe arrival, would become due from him to the owner for the charter. But it may so happen that the freights payable by the shippers to the charterer, or his agent, as owner pro hac vice, may exceed the charter-money payable by him to the general owner for the use of the ship for the voyage.

What would be the rule in the case of a surplus, whether such excess would be held an insurable interest in the charterer, or not, and whether if insurable, it would be covered by a general policy on freight eo nomine, or would require a disclosure and specification of the nature of the interest; and whether such disclosure and specification would be requisite to a binding valuation of the interest, are questions which we deem it unnecessaryin this case to agitate, for here was no surplus. The plaintiffs underlet the whole deck and tonnage of the schooner (with the exception of the cabin and space under deck for 50 barrels, reserved for their own use) to J. Ballestier & Co. by charter-party for the voyage to St. Croix, for the gross sum of $450, and the port charges. The goods shipped by the plaintiffs of course occupied the reserved room of 50 barrels, or part of it, but did not exceed $2000 in value, and allowing the ffreight at one-third of the charter to Ballestier & Co., the entire freight of the two would amount to $600. The freight of the shipment of Wm. M. Peck & Co., of the small invoice of goods consigned to Nesmith, which must also have been stowed in the cabin, or the reserved space of 50 barrels, could not have materially varied the result, and the whole aggregate amount of freight and earnings of the vessel for the voyage to the plaintiff, would be highly estima! ed at $700, and the amount of the charter-money payable by them for two months only, (and 3 1-2 is shown by the plaintiffs to be the usual length of such a voyage,) would amount to $¡726.

But the plaintiffs insist on the valuation in the policy as the measure of the freight the vessel would have earned for them upon the voyage, and claim the excess of that sum, beyond the amount of the charter for three and a half months, the usual length of the voyage insured, as the surplus interest covered by their policy; which, after crediting and deducting the freight of Ballestier & Co., which was earned and paid to him, they are entitled to recover. But this claim is clearly untenable. The valuation is of the whole freight of the vessel for the voyage, and the plaintiffs to avail themselves of it, to its whole extent, must show an insurable interest in the entire of the freight. It refers to the insurable interest of the assured, which the policy is intended to cover, and is never understood or intended as the true and actual value of the interest, which would be recoverable on an open policy, but as a sum agreed upon for the measure of the indemnity in the event of a loss. How then can it be assumed, as the evidence of a surplus interest in the charterers beyond what was payable by them under the charter-party 1 They must first prove the fact of such surplus interest to have existed before they show any insurable interest to whicli that valuation could apply to the insurers as owners pro hoc vice. The most cursory view of this policy must satisfy any observer, that it had no reference to any interest in the assured, as chart erers, covering the surplus of the freights reserved to themselves over the freight payable by them ° . . to the owner for the voyage. It is in terms a general insurance on the freight of the vessel for the voyage, and it may be questionable whether, standing unexplained as it does, it is not to be restricted to the freight she was to earn for her owners; but if it admits of an application to the freight and earnings which the assured, as charterers, had at risk, it was incumbent on them to show that they actually had freight, reserved to themselves at risk, beyond the amount of their contingent liability on the charter-party to establish an insurable interest in themselves, to which the policy could attach, and on which the valuation could be en-grafted. They have shown no such surplus freight reserved to themselves, and of course have shown no right to recover on that ground.

But it is said that the plaintiffs had an insurable interest on the shipment of Peck Co., because it was a general shipment by bill of lading and the freight payable to the plaintiffs as owners, and that the valuation may be applied to that interest. The nature and precise amount of the freight payable in respect of this shipment, the circumstances attending it, and its final destiny, are not disclosed, or but obscurely stated; but they are of minor-importance, for the freight of that shipment, whatever its form may be, must equally with the freight of the plaintiffs’ own goods come within the rule we consider applicable to the case, and the charterers can have no insurable interest under this policy in the freight of any goods shipped in this vessel for the voyage in question, unless the aggregate amount of their freight exceed the charter-money; in which case, and then only, the question of the right of the plaintiffs to recover upon a contract in the general form of this policy would arise.

But suppose it were otherwise, and this freight should be held recoverable as the fruit of a general shipment by bill of lading with the plaintiffs as owners for the voyage, it would still be a mere isolated item of interest, the loss of which, if shown, might give the assured a claim to the extent of their interest, but to which it would be most extravagant and preposterous to apply a valuation so vastly disproportionate, and so manifestly intended to be applied to the whole freight of the vessel for the voyage.

But we are relieved from this embarrassment in the present case, by the consideration, that this item of freight, whether the shipment was in reality on the’account and risk of Peck &Co. as general shippers, or partook of the benefit of the plaintiffs’ charter-party, and was made under some arrangement with them for joint account, formed part of an aggregate amount of freight and earnings which fell short of the sum payable by the plaintiffs for the charter of the vessel for the voyage : and in the freight and earnings of which vessel for that voyage, to the extent of the charter-money, they could have no insurable interest, because if the voyage should be successful, and the freight be earned, it must be paid over in satisfaction of the charter, and if lost, as freight would be payable by them, and consequently be lost to them, the loss of the vessel freed the charterer from all payment of compensation for the use of her to the owner, as the loss of the voyage excused him from the delivery of the goods of Peck & Co. at the foreign port. He has in truth lost nothing, for if he had earned Peck’s freight, it would have been exhausted by his payments to the owners.

Another claim is made for $101,35, for the expenses of the vessel at St. Croix. But the plaintiffs covenanted to pay all pilot-age, port charges, custom-house dues, and fees of every kind, both at St. Croix and Tobasco; and Ballestier & Co. agreed with them to pay all port charges at St. Croix. These expenses were not advanced to the master, but were paid by him out of the freight of Ballestier, which was earned by the schooner. They constitute no claims against the insurers; the plaintiffs, therefore, had no insurable interest in the freight of this vessel, and have sustained no loss for which they are entitled to recover. It follows that they are entitled to recover back the premium, and for that they must have judgment.

Hoffman J.

This is an action brought by the charterers of • a, vessel, to recover of the underwriters, the amount of an msurance upon the freight of goods laden on board the Schooner Enterprise, on a voyage from New-York to St. Croix, from thence to Tobasco, and from Tobasco back to New-York : the amount of the charter being payable on the arrival of the vessel at the last mentined port.

It is settled by authorities which are perfectly conclusive, that a charterer cannot ensure the amount of his charter money, under the general name of freight; and nothing is perceived to distinguish this case in principle from those long since decided. The principle is obvious: the charterer has no interest in the subject matter of the insurance. If the vessel be lost, he has no freight to pay, and of course cannot have any thing at risk. It is the privilege of the owner to insure the freight, for in case of loss, the injury falls upon him.

If the plaintiffs had any particular object in view other than that disclosed by the policy; if they had wished to cover any actual interest of their own which they were about to put at hazard, or if they had advanced the amount of the freight-money, they might easily have been protected, by using appropriate words in the policy, to express their meaning. But judging the contract by the words used by the parties, there is no difference in point of principle between this case and that of Cheriot v. Barker. [2 John. Rep. 346.]

The plaintiffs offered to show, by parol proof, that it was their intention to insure the profits on their charter-party, under the general name of freight. The policy itself is simply on freight; and if the Court were disposed, in a plain and intelligible contract, to look beyond the obvious import of the words, to discover the meaning of the parties, the case of Cheriot v. Barker is a conclusive authority against the introduction of the parol proof. The policy itself speaks in unambiguous terms, and needs no extraneous aid to give it meaning. If the defendants had actual knowledge as to all the objects of the voyage, that can in no way vary the agreement between the parties, which is to be determined by the policy itself.

The plaintiffs, however, contend that there was an excess of freight in their favour; that is, that they, having underlet the vessel to Ballestier & Co. for a voyage to St. Croix, were to re- . ceive from them for the use of the vessel, a sum greater than that which they were to pay to the owner. It is unnecessary to inquire what the rule would be in a case of surplus interest, since there is no proof, in the present case, of the existence of such an interest. The freight to be received by the plaintiffs from Ballestier & Co. and from Peck & Co., does not amount to the sum which the plaintiffs were to pay for the use of the vessel under the charter-party.

But it is supposed that the sum insured amounts to a valuation of the interest of the charterers, and that the defendants are concluded, by their own agreement, from contesting this point. The sum insured cannot be assumed as a valuation of the freight, nor adopted as conclusive evidence of the amount of the charterer’s interest. The true rule by which that interest is to be ascertained, is the actual freight which the vessel did or could earn. Now it is not pretended that this vessel did earn, or could have earned, freight to the amount of $2,500. If the parties, having full knowledge of the subject to be insured, establish a valuation upon it by express agreement, that valuation will not be set aside merely because it was fixed at a high rate. There must, however, be some proof of the intention of the parties, thus to fix a valuation which cannot be disturbed ; and in this case there is no evidence of such intention, unless the sum insured be taken as such evidence. But the amount of the insurance, as was before remarked, cannot be assumed as evidence of the intent to fix a valuation, and much less is it to be considered as conclusive upon this point.

As the sum insured cannot aid the charterers in fixing a valuation upon their interest in the subject of the insurance, the question as to the freight of the goods of Peck & Co., and the plaintiffs’ own goods, is disposed of. As to the breaking of bulk at St. Croix, the testimony upon that point is not sufficient to establish the fact, and all considerations arising from that source may be laid aside.

As the freight-money to be received by the plaintiffs is not equal in amount to that which they were bound to pay, they had no actual interest in the subject matter of the insurance; for they were discharged by the shipwreck from the obligations of their own’contract under the charter-party If the vessel had gone safe, the plaintiffs would have received a small sum from Peck Co.; but in that case, they would have been compelled to pay, not only that, but a much larger amount, to the owners of the vessel. They have been gainers, therefore, by the shipwreck, rather than losers, and can have no cause of complaint from any supposed hardship of the case. The expenses for which a claim was made, were paid by Ballestier & Co., and of course are not to be refunded to the plaintiffs by the* insurers. No interest, therefore, attached in this case; the plaintiffs had nothing at hazard; the defendants have borne no risk, and the premium must, of course, be returned to the plaintiffs.

Judgment in favour of the plaintiffs for the amount of the premium.

[D. D. Field, Att'y for the plffs. E. Anthon, Att’y for the defts.]

       Ante, page 335.