Hodgson v. Marine Insurance Company of Alexandria
9 U.S. 100

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U.S. Supreme Court

Hodgson v. Marine Insurance Company of Alexandria, 9 U.S. 5 Cranch 100 100 (1809)

Hodgson v. Marine Insurance Company of Alexandria

9 U.S. (5 Cranch) 100

Syllabus

A general policy insuring every person having an interest in the thing insured and containing no warranty that the property is neutral covers belligerent as well as neutral property

In an action of covenant on a policy, it is no defense to say that the premium has not been paid, but is enjoined by a court of chancery.

A misrepresentation, not averred to be material, is no bar to an action on a policy. A misrepresentation, to have that effect, must be material to the risk of the voyage.

It is not necessary, in an action of covenant on a policy, that the declaration should aver that the plaintiff had abandoned to the underwriters.

Error to the Circuit Court of the District of Columbia in an action of covenant upon a sealed policy whereby the Marine Insurance Company of Alexandria, in consideration of seventeen and a half percent premium paid by the plaintiff Hodgson, for "George F. Straas and others, of Richmond," covenanted with the plaintiff for the said

"George F. Straas and others, of Richmond, as well in his own name as for and in the name and names of all and every other person and persons to whom the same did, might, or should appertain, in part or in all,"

to insure eight thousand dollars on the brig Hope "a prize vessel," lost or not lost, at and from her last port of lading in St. Domingo to a port of discharge in the Chesapeake. The vessel was valued in the policy at $10,000. The declaration averred the vessel to be of that value, and that in prosecution of the voyage insured she was seized by certain British vessels and carried into Jamaica, where she was libeled, condemned, and sold, whereby she was totally lost. In one count of the declaration the vessel was averred to be the property of George F. Straas and Jeremiah Leeds, of Richmond; in the other it was averred to be the property of Leeds alone.

The defendants, after oyer, pleaded eight pleas. Upon the three first there were issues in fact.

The 4th plea, in substance, was that the vessel, at the time of the capture and sale was the property of the enemies of Great Britain, and as such was captured, libeled, condemned and sold. That Richmond was the capital town of the State of Virginia, a neutral state. That Straas and Leeds were of Richmond, and citizens of Virginia, and were

Page 9 U. S. 101

known to be so to the parties to the policy at the time of insurance. That the insurance was made by the contracting parties upon the property of American citizens in which no belligerent subject or citizen was interested, and that at the time of insurance, capture, condemnation, and sale of the vessel, there was open war between France and Great Britain.

To this plea there was a demurrer, and the following causes were stated:

1. Because the plea alleges that the vessel was the property of the enemies of Great Britain, but does not show in particular who were the owners thereof.

2. Because the plea is double in this, 1st, that it tenders an issue upon the fact of its being enemies' property; 2d, that it was condemned as such; 3d, that the insurance was made upon the property of American citizens.

3. Because it alleges that the insurance was made upon the property of American citizens, which is matter of law, and not of fact.

4. Because, as the policy contained no warranty of neutrality, it is wholly immaterial whether the property was neutral or belligerent.

5. Because the plea is no answer to the plaintiff's declaration.

6. Because it admits Straas and Leeds to be owners of the property insured and to be American citizens, and it does not state any other person or persons to be the owners thereof.

7. Because the defendants were estopped by the policy from alleging that the insurance was made upon the property of American citizens.

Page 9 U. S. 102

The 5th plea, in substance, was that it has always been and is the rule and practice of the defendants never to make an insurance upon a vessel beyond her reasonable and just value according to the representation and description given of her, especially as to her age, tonnage, and equipment, which rule and practice were well known to the contracting parties at the time of the contract, at which time the plaintiff proposed to the defendants that the value of the vessel should be agreed in the policy to be $10,000, and that at the time of executing the policy, the plaintiff, to induce the defendants to execute it, thereby insuring to the value of $8,000 upon the vessel, represented that she was "about 250 tons burden," "and from six to seven years old." That the defendants, in consequence of that representation, and placing full faith and credit therein, executed the policy. That the representation was untrue in this, that the vessel was not of two hundred and fifty tons burden, but less than one hundred and sixty-five tons burden, and was not from six to seven years old at the time of the representation, but much older, viz., more than eight and a half years old. That the vessel was not of the value of $8,000, but of the value of $3,000 only. That the misrepresentation respecting the age and tonnage of the vessel induced the defendants to execute the policy, whereby the value was agreed to be $10,000, and whereby insurance was made to the amount of $8,000, "and so the said deed is void as to them, and this they are ready to verify."

To this plea also there was a demurrer, and the following causes were stated:

1. Because the plea does not aver the misrepresentation to be material.

2. Because it is not alleged to have been fraudulently made.

3. Because the matter of the plea is not sufficient to annul or make void the policy.

Page 9 U. S. 103

4. Because the misrepresentation alleged is not of a definite fact, but that the vessel was of about 250 tons burden, &c.

5. Because the plea is double in this that it puts in issue the custom of the defendants, the representation touching the vessel, the age, the tonnage and the value of the vessel.

6. Because the defendants are estopped by the policy from averring that the vessel was of less value than $10,000.

The 6th plea was like the 5th except that the averment respecting the rule and practice of the defendants was omitted, and that it contained an averment that the difference between the true and the represented age and tonnage of the vessel "was material in regard to the contract of insurance," in the policy set forth, and so the policy was void as to them.

To this plea the plaintiff, protesting that the vessel was seaworthy and that he did not knowingly and fraudulently state any misrepresentation, and admitting that the vessel was of less than 165 tons burden and was eight and a half years old, replied that the difference between the true and the represented age and tonnage of the vessel was not material in regard to the seaworthiness of the vessel and her ability to perform the voyage insured, and did not increase the probability of loss by means of any of the risks insured against, but was altogether immaterial in regard to those risks.

The rejoinder of the defendants set forth their rule and practice as stated in the 5th plea, and averred that the misrepresentation induced and deceived the defendants into the agreement as to the value of the vessel and as to the sum insured, and that the sum insured was more than double the value of the vessel, and so the defendants say that the difference between the true and the represented age and tonnage of the vessel was material.

Page 9 U. S. 104

To this rejoinder the plaintiff demurred, and stated causes of demurrer nearly like those to the 5th plea.

The 7th plea was in substance that the vessel was in part owned by one Alexander Burot, a French citizen, and an enemy of Great Britain, and that this fact was not disclosed to the defendants at the time of executing the policy.

To this plea there was a general demurrer.

The 8th plea was in substance that the plaintiff had not paid the premium, but had obtained a perpetual injunction from the Court of Chancery in Virginia against the defendants to prevent the recovery thereof.

To this plea also there was a general demurrer.

The judgment of the court below was in favor of the defendants on the demurrer to the 6th plea and in favor of the plaintiff upon all the other demurrers.

Page 9 U. S. 109

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