4 U.S. 455 (1806)

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U.S. Supreme Court


4 U.S. 455 (Dall.)

Morgan et al.
The Insurance Company of North-America.

Supreme Court of Pennsylvania.

December Term, 1806

THIS was an action upon a policy of insurance, on the freight of the brig Amazon, valued at 3,500 dollars, upon a voyage from Philadelphia to Surinam. The policy contained a warranty of American property, and the usual clause against illicit trade.

On the trial of the cause, before the chief justice, at Nisi Prius, in July 1806, it appeared that upon the 7th of August 1799, when Surinam was in possession of the Dutc , the vessel sailed on the voyage insured, and arrived at the river of Surinam, on the 17th of September following; that the brig was detained at the entrance of the river, by the commander of the British fort, who informed the captain, that the colony of Surinam had been in possession of the British forces about twenty days; that the captain, and a passenger of the name of J. G. Richter (who was an inhabitant of Surinam, and to whom the cargo was deliverable there, on his paying 25,310 dollars, in pursuance of a contract with the plaintiffs, Morgan and Price) proceeded to the town of Paramanto, and the cargo was there tendered and agreed to be accepted by Richter; who gave security for paying the stipulated price, as soon as possible after the delivery, in conformity to the contract. On the 19th of September, the governor of the colony gave permission for the brig to be brought up to town, where she, accordingly, arrived the next day, for the purpose of discharging her cargo; that on reporting, however, to the custom-house, the collector declared, that he would not permit any article to be landed, excepting the provisions, (which did not amount to more than one-eighth of the cargo) and that permission to land the cargo generally, was repeatedly solicited by the captain, but refused by the governor; in consequence of which, it was brought back to

Page 4 U.S. 455, 456

Philadelphia. Upon these facts, related in the captain's protest1 the plaintiffs abandoned, and claimed for a total loss of the freight insured. And it was agreed to state them in a case, for the opinion of the Court.

The general question was, whether the plaintiffs were entitled to recover, either for a total, or for a partial, loss of freight? And the solution was considered, by the counsel on both sides, as depending upon the inquiry, whether the freight had been earned, in whole, or in part; and if not, whether the loss was occasioned by a peril enumerated in the policy.

For the plaintiff. By the bill of lading, the master is obliged to deliver the goods, (the danger of the seas only excepted) and freight is only payable on the delivery. Beawes, Lex Merc. 137. Ab. 179. 183. If a foreign government prevents a landing of the cargo, it prevents an earning of the freight, by an arrest, restraint, and detainment; as much, surely, as in the decided case, of the foreign government refusing to permit a cargo to be shipped, for which the vessel was sent. 3 Bos. and Pull. 295. 8 T. Rep. 267. 1 Brownl. 21. 7 T. Rep. 385. Abbot, 261. 3 Bac. 610. Lex Merc. 267. Park, 292. 3 Rob. Rep. 152, 3. 7 T. Rep. 383. 2 Vern. 176. Perot v. Penrose, in Supreme Court of Pennsylvania. A policy on goods continues in force till the goods are landed. 1 Marsh. 162. and all policies should be liberally construed, for the benefit of trade. Ibid. 164, 5. In the present case, there is no proof of the delivery of the cargo at Surinam; but, on the contrary, it appears, that Richter agreed to pay for it, as soon as possible after it was delivered; and as the delivery depended upon the landing, it is virtually disproved by the evidence, that the governor always refused to grant a permit for the landing.

For the defendant. On the evidence, there was an arrival of the vessel at her port of discharge; and the tender and acceptance of the delivery of the cargo, entitled the owner to his freight. The owner of the ship was not bound to procure a permission to land the goods. Besides, it is not denied, that seamen's wages were paid; and wages are never payable, but in case where the freight is earned. But even the loss, if established, was not occasioned by a peril insured against. There was no arrest, no restraint, no detainment; but merely the refusal of a right of entry. Ord. L. 14. 1 Val. 656. Art. 15. Ib. 626. Art. 7. Doug. 622. 626, 7. Poth. 60. s. 69. 2 March. 434, 5, 6, 7. 1 Marsh. 162. 164, 5. Ab. 161. 2 Burr. 887. [4 U.S. 455, 457]

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