Hughes v. Union Insurance Company of Baltimore
21 U.S. 294

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U.S. Supreme Court

Hughes v. Union Insurance Company of Baltimore, 21 U.S. 8 Wheat. 294 294 (1823)

Hughes v. Union Insurance Company of Baltimore

21 U.S. (8 Wheat.) 294

Syllabus

Insurance for $18,000 on vessel valued at that sum, and $2,000 on freight valued at $12,000, on the ship Henry "at and from Teneriffe and at and from thence to New York, with liberty to stop at Matanzas; the property warranted American." The policy was executed in 1807, and in the same year another policy was made by the same underwriters on freight for the same voyage to the amount of $10,000, and the property was also warranted American, but there was no liberty to stop at Matanzas. The following representation was made to the underwriters on the part of the plaintiff, who was both owner and master of the ship:

"We are to clear out for New Orleans; the property will be under cover of Mr. John Paul, of Baltimore, who goes super-cargo on board, yet Mr. Paul will only have a part of the cargo to his consignment. There will be three other persons on board that will have the remainder of the cargo in their care. We are to stop at the Mantanzas to know if there are any men of war off the Havana."

The vessel sailed from Teneriffe on 17 April, 1807, with a cargo belonging to Spanish subjects but appearing to be the property of John Paul Dumeste, a citizen of the United States, and the same person called John Paul in the representation. The cargo was shipped under a charter party executed by the plaintiff and Dumeste, representing New Orleans as the place of destination. The ship arrived at the Havana on 7 July, having put into Matanzas to avoid British cruisers, and unladed the cargo, which was there received by the Spanish owners and the freight, amounting to $7,000, paid to the plaintiff, who received it "in full of all demands, for freight or otherwise, under or by virtue of the aforesaid charter party and cargo." At the Havana the ship took in a new cargo belonging to merchants in New York and was lost with the greater part of her cargo on the voyage from Havana to New York. An action of debt was brought on the first policy for the value of the ship and freight. The sum demanded in the writ was $20,00, but the plaintiff limited his demand at the trial to $18,000 on the ship and $420 for the freight actually earned on the voyage from Havana to New York. Held that he was entitled to recover.

In debt, a less sum may be recovered than that demanded in the writ, where an entire sum is demanded and it is shown by the counts to consist of several distinct accounts or where the precise sum demanded is diminished by extrinsic circumstances.

Page 21 U. S. 295

This was an action of debt upon a policy of insurance in the usual form, dated 27 May, 1807, on the ship Henry, "lost or not lost," "at and from Teneriffe to Havana, and at and from thence to New York, with liberty to stop at Matanzas." $18,000 was insured on the ship, valued at that sum, and $2,000 on the freight, valued at $12,000, and the property was warranted American.

On 1 June in the same year, a policy was executed on the freight of the ship Henry, by the same Company, for the same voyage, to the amount of $10,000, the whole freight being valued at $12,000. In this policy also the property was warranted American, but there was no liberty to stop or touch at Matanzas or any other place.

Both these policies were effected under an order for insurance by Henry Thompson of Baltimore, as agent for the plaintiff, an American citizen, who was master for the voyage as well as owner. The order bears date 18 May, 1807, and is in the following words:

Page 21 U. S. 296

"Baltimore, May 18, 1807"

"GENTLEMEN,"

"Insurance is wanted on $18,000 on the American ship Henry, Capt. Henry Hughes, and $12,000 on her freight, each valued at the same, at and from Teneriffe to Havana, and at and from thence to New York, against all risks."

"The Henry was expected to sail on or about the 12th ult.; she is a remarkably good vessel, about 270 tons burden, and now on her first voyage. Said ship and freight are the sole property of Capt. Hughes, who gives the following particulars in his letter of instructions to N. Talcott, of New York."

" We are to clear out for New Orleans; the property will be under cover of Mr. John Paul, of Baltimore, who goes supercargo on board, yet Mr. Paul will only have part of the cargo to his consignment. There will be three other persons on board that will have the remainder of the cargo in their care. We are to stop at the Matanzas to know if there are any men of war off the Havana."

"When you make insurance, which I expect will be done low, you will state the whole of this business, so that there will be a right understanding of the voyage."

"At what premium will you insure the above risks?"

"HENRY THOMPSON"

The Henry sailed from Teneriffe on 17 April, 1807, with a cargo for the Havana,

Page 21 U. S. 297

which belonged to Spaniards, but appeared as the property of John Paul Dumeste (the person mentioned in the order for insurance by the name of John Paul), a citizen of the United States, who went as supercargo. She took a clearance for New Orleans. This cargo was laden at Teneriffe, under a charter party, which bore date 10 March, 1807, and represents New Orleans as the port of destination, without any mention or notice of the Havana. The parties to it were Dumeste, and Henry Hughes, the master. The freight mentioned was $11,000, of which it was stipulated that $5,000 should be paid at New Orleans, and the remaining $6,000 at New York.

The ship proceeded to the Havana, where she arrived on 7 July, having put into Matanzas on 2 June, to avoid British cruisers then in sight, and unladed the cargo, which was there delivered to the real Spanish owners. The real freight to the Havana, amounting to $7,000, was paid at Matanzas to the plaintiff, who received it "in full of all demands for freight or otherwise, under or by virtue of the aforesaid charter party and cargo." It was proved that this unlading did not produce any additional delay or increase of risk, for the ship left Matanzas and proceeded to Havana in ballast, as soon as there was any reasonable prospect of escaping the cruisers stationed in the way, and was enabled to proceed sooner and more safely, by being in ballast, which put it in her power to keep closer in shore. At the Havana she took in a new cargo, belonging

Page 21 U. S. 298

to persons in New York, and consisting of 120 boxes of sugar, at a freight of $3.50 the box. On the voyage, she sprung a leak, soon after which she transshipped a part of her cargo, consisting of 60 boxes, into the Rising Sun, a vessel bound to Norfolk, where the property was safely landed. Within about two days after the transshipment, the Henry sunk, and was totally lost, with the rest of the cargo. The master and crew escaped in their boat. In attempting to make their may to New York, they were taken up at sea in an almost desperate situation.

The freight was abandoned to the underwriters, and a demand was made of payment for that and the ship, which being refused, this action was brought to recover both. The sum demanded by the writ and declaration was $20,000, and the loss declared on was by the dangers of the seas, one of the perils mentioned in the policy. On the plea of nil debet, issue was joined, and the case went to trial.

At the trial, the plaintiff gave the charter party in evidence, as one of the documents necessary or proper for establishing the neutral character of the vessel and freight; but there was no evidence of its having been at any time produced or mentioned to the defendants, or in any manner known to them. He also proved his own national character, and that of the ship, his interest in the ship and freight, the commencement and prosecution of the voyage, and the loss and abandonment. By an admission at the bar he expressly limited his demand of freight to that earned on the 120 boxes

Page 21 U. S. 299

of sugar, amounting to $420, and renounced all claim to any further or other sum on that account.

The defendants then gave in evidence the separate policy on the freight, which is mentioned above, and also produced evidence tending to show, that the plaintiff, in his management respecting the said ship, after the leak was discovered, was guilty of gross negligence in not using such means as were in his power for conducting the said ship into a place of safety in the Delaware, and that he might have conducted her into a place of safety there had he used those means.

The plaintiff then gave evidence of the causes, nature, and duration of the delay at the Matanzas, as stated above, and of the effect produced on the risk by unlading the cargo there. He also gave in evidence, that after the said leak was discovered, the plaintiff did all in his power, according to his skill and ability, to save the said ship, and to conduct her safely to her port of destination, and that there was no place of safety in the Delaware to which the said ship could have been conducted, nearer, or more easily reached, in the state of the wind and weather at that time, than New York.

The defendants then prayed the opinion of the court and their direction to the jury:

1. That if the jury should be of opinion from the evidence that the cargo shipped at Teneriffe, which the order for insurance of 18 May, 1807, mentions, and which the charter party, and the policy of insurance upon freight of 1 June, 1807, read in evidence on this trial, also

Page 21 U. S. 300

mentions, was landed, and finally separated from the ship at Matanzas, and was there delivered by the plaintiff, at the instance of the freighters, and accepted by the freighters, the plaintiff receiving from the said freighters $7,000, in lieu of all demands upon the said charter party, including the whole freight to the Havana, and that a cargo of sugar, for an entirely new account and risk, to-wit, for the account and risk of Le Roy Bayard & McEvers, of New York, was, by the plaintiff, taken in at the Havana, with which the ship sailed upon her voyage to New York, as proved by the plaintiff's testimony, then the plaintiff is not entitled to a verdict for any freight, upon the issue and pleadings in this cause.

2. That if the jury should find from the plaintiff's declaration and the evidence that the cargo shipped at Teneriffe, which the order for insurance of 18 May, 1807, mentions, and which the charter party, and the policy of insurance upon freight of 1 June, 1807, read in evidence on this trial, also mention, was landed and finally separated from the ship at the Matanzas by the freighters and the plaintiff, and was there delivered by the plaintiff and accepted by the freighters, and their contract of freightment abandoned, the plaintiff receiving from the said freighters the sum of $7,000 in lieu of all demands upon the said charter party, including the whole freight to the Havana, and that a cargo for an entirely new account and risk, to-wit, for the account and risk of Le Roy Bayard & McEvers, of New York, was, by the plaintiff, taken in at the Havana,

Page 21 U. S. 301

with which the ship sailed to New York, as proved by the plaintiff's testimony, and further, that in the course of her said voyage to New York, a part of the said cargo was transshipped into the Rising Sun, as stated in the plaintiff's evidence, and if they also find that the risk was increased by taking in the new cargo aforesaid, and the transshipment aforesaid, beyond what it would have been, had the said ship proceeded in ballast from the Havana to New York, then the policy was wholly discharged, and the plaintiff cannot recover as to the vessel, on the issue and proceedings in this case.

3. That if the jury should be of opinion from the evidence that the plaintiff had an opportunity of causing the said ship, after the discovery of the leak, to be carried into the Delaware or elsewhere and there saved from the total loss which afterwards happened, and that he did not act with proper and reasonable care in forbearing to do so, he is not entitled to recover in this action.

These directions were given by the court, which further instructed the jury, that this was a valued policy, on which an action of debt lies, the sum claimed being specified by an agreement of the parties. But the whole must be recovered or no part of it can be recovered. In this suit, the action is for two distinct sums, $18,000 on the ship, and $2,000 on the freight. The party can recover either entire, and not the other, but not a portion of either, without accounting for the residue.

To these opinions and directions the plaintiff

Page 21 U. S. 302

took a bill of exceptions, on which judgment was rendered for the defendants, and the cause was brought by writ of error to this Court.

Page 21 U. S. 304

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