The underwriters upon a cargo are not liable for freight,
pro rata itineris to the owner of the vessel who is also
owner of the cargo insured in a case where the vessel and cargo
were captured, the cargo abandoned to the underwriters as a total
loss and by them accepted, the loss paid, the cargo condemned,
restored upon appeal, and the proceeds of the cargo paid over to
the underwriters.
Freight
pro rata itineris is not due unless the owner
of the cargo voluntarily agrees to receive it at a place short of
its ultimate destination.
The existence of a lien on a cargo for freight does not vary the
legal responsibility of the underwriter on the cargo after
abandonment.
Error to the Circuit Court for the District of Maryland in an
action of
indebitatus assumpsit for freight
Page 11 U. S. 359
of goods by the ship
Hamilton from Bordeaux to
Halifax.
In the court below, a case was agreed by the parties which was
in substance as follows.
On 28 July, 1805, Mr. John Ducorneau, of Bordeaux, the agent of
the plaintiffs, shipped for them there, on their account on board
the ship
Hamilton, of which they were owners, a cargo of
the value of $22,986 on a voyage from Bordeaux to New York, where
the plaintiffs resided. On the voyage she was captured by a British
vessel of war and carried into Halifax, where the ship and cargo
were condemned. Within due time after the plaintiffs heard of the
capture, they abandoned as for a total loss to the defendants who
accepted the abandonment and paid the amount insured.
From the sentence of condemnation in the vice-admiralty court as
to the vessel and cargo, but not as to freight, there was an
appeal, upon which the sentence was reversed and the proceeds of
the vessel and cargo were restored. The proceeds of the cargo were
paid over to the underwriters, but the sum they received was less
than the sum they had paid upon the policy.
The question, upon this case was whether the plaintiffs, who
were owners of both vessel and cargo, were entitled to recover from
the underwriters upon the cargo freight from Bordeaux to
Halifax.
Page 11 U. S. 361
STORY, J. delivered the opinion of the Court as follows:
Page 11 U. S. 362
The present action is brought to recover freight
pro rata
itineris under the following circumstances:
The plaintiffs were the owners of the ship
Hamilton and
cargo, and effected insurance of her cargo on a voyage from
Bordeaux to New York. The sum of $11,000 was underwritten by the
defendants -- the sum of $10,000 at Philadelphia and the residue of
the value of the cargo ($1,986) was left uninsured. During the
voyage, the ship and cargo were captured, carried into Halifax, and
there condemned. The plaintiffs abandoned to the underwriters and
received payment for a total loss. An appeal from the sentence of
condemnation was interposed and the sentence finally reversed, and
the proceeds of the cargo, which had been previously sold by order
of court, were paid over to the underwriters in proportion to the
sums underwritten by them respectively.
We are all of opinion that the plaintiffs are not entitled to
recover in the present action.
In the first place, the Court is satisfied that as between the
insured and the underwriter on the cargo of a ship, the latter is
in no case responsible for the payment of freight, whether there be
an abandonment or not. It is a charge on the cargo against which he
does not undertake to indemnify the owner, and if authority be
necessary to support the position, it is fully borne out by the
doctrine of Lord Mansfield in
Baillie v. Modigliani,
Marshall 728.
In the next place, we are all of opinion that no freight
whatsoever was, under the circumstances of this case, due. Freight
in general is not due unless the voyage be performed. Here the ship
and cargo never arrived at their port of destination, and of course
the whole freight could not be due. Was a
pro rata freight
due? We think not. The whole class of cases resting on the
authority of
Luke v. Lyde, 2 Burr. 882, proceed on the
ground that there is a voluntary acceptance of the goods themselves
at an intermediate port, and not, as in the present case, a
compulsive receipt from the hands of the admiralty after capture
and condemnation and ultimate restoration upon the appeal. There
is, in our judgment, no equity to support such a claim, and
although
Page 11 U. S. 363
it receive countenance from some remarks incidentally thrown out
in
Baillie v. Modigliani, the current of more recent
authority, as well as of principle, clearly points the other
way.
It may be further added that as between the insured and the
underwriter, the existence of a lien on the cargo for freight does
not vary the legal responsibility of the underwriter on such cargo
after an abandonment.
The judgment of the circuit court is affirmed with
costs.
