A policy on goods to be safely landed at Leghorn is discharged
by landing them at the lazaretto, that being the usage of
trade.
Quaere whether ransom can be recovered where there is a
warranty against particular average.
The facts of the case, as stated by MR. CHIEF JUSTICE MARSHALL
in delivering the opinion of the Court were as follows:
This case arises on a policy of insurance bearing date 19 June,
1807, for $20,000 on the cargo of the ship
Spartan "at and
from Baltimore to Leghorn," the risk to commence on the loading and
to continue "until the said goods shall be safely landed at Leghorn
aforesaid."
The policy contained, in the printed part, the usual stipulation
that the assured, in case of loss, shall labor, &c., for the
preservation and recovery of the goods, to the expense of which the
assurers would contribute according to the rate of the sum insured;
in the policy is inserted in writing the words "warranted free from
particular average."
The vessel sailed from Baltimore in June, 1807, and on 15 August
arrived in the port of Leghorn.
According to the laws and usages of the place, ships arriving at
that port and their cargoes were obliged to perform a quarantine of
thirty days before admission of the cargo or of any person on
board, into the city, the ships performing it in the port, the
cargoes in a certain lazaretto erected for that purpose on the
shore of the port about half a mile from the city. Some specified
articles were excepted from this rule, but the cargo of the
Spartan did not come within the exception. On the arrival
in port of a vessel liable to quarantine,
Page 12 U. S. 76
the officers of government took possession of the cargo and
removed it in public lighters to the lazaretto. Freight was earned
upon the depositing of the cargo in the lazaretto, but payment of
it, though often made before, could not be enforced until after the
expiration of the quarantine, and until payment, the lien for the
freight continued on the goods. The duties also accrued in the
lazaretto, and until they were paid the goods could not be removed
thence into the city.
The goods remained in the custody of the officers of government
until the expiration of the quarantine, during the continuance of
which neither the master of the ship nor the consignees had any
power to interfere with or even see them but under a permit from
the local authorities; such permits were commonly allowed the
consignees, who might take samples and sell by those samples while
the goods were performing quarantine.
After quarantine was performed and an order from the master
obtained, the goods were received at the lazaretto by the owner or
consignee, and transported at his risk and expense into the city.
This transportation was most usually made by water, but there was a
road along which light goods might be and frequently were carried.
Even when goods were sold during the quarantine, they were removed
at the risk and charge of the vendors.
In conformity with these regulations, the cargo of the
Spartan was placed in the lazaretto. While it remained
there performing quarantine, a body of French troops took
possession of the city, seized the lazaretto, sequestered the goods
there deposited, and refused to give them up until a ransom
amounting to 53 percent on their estimated value should be paid for
them. This ransom the owners or consignees were compelled to pay in
order to obtain restitution of their goods. This action is brought
to recover it from the underwriters.
Judgment was rendered in the circuit court for the defendants,
which judgment is now brought before this Court by a writ of
error.
Page 12 U. S. 82
MR. CHIEF JUSTICE MARSHALL, after stating the case, delivered
the opinion of the Court as follows:
The plaintiff in error contends
1st. That the placing of the goods in the lazaretto was not "a
landing in safety at Leghorn" and a termination of the voyage.
2d. If the loss happened during the continuance of the risk, the
plaintiff is not prevented from recovering by the warranty in the
policy against particular average.
In support of his first point, he contends that "Leghorn," in
the policy, means the city, and not the port of Leghorn.
2d. That the lazaretto being substituted for the ship for the
greater safety of the goods, their situation, as it respects all
parties, while performing quarantine in the lazaretto is precisely
the same as if performing quarantine in the ship. This argument is
supposed to be much strengthened by the facts that freight cannot
be demanded until quarantine is performed, and that the lien for
the freight continues after the landing of the goods.
3d. That a landing in safety must be such a landing as places
the goods at the disposal of the owner or consignee.
However true it may be in general that when we speak of Leghorn,
we speak of the city which bears that name, it does not follow that
the same meaning is attached to the word when used in a policy. The
insurance is "at and from Baltimore to Leghorn." Now if, as is
admitted, Baltimore means the port of Baltimore, it would seem not
unreasonable to suppose that, in the same instrument, Leghorn means
the port of Leghorn -- the place which is the ultimate destination
of the vessel on board which the goods are laden. The voyage is
understood to be terminated when the vessel arrives at her port of
destination and has been moored there in safety for twenty-four
hours.
But it will be conceded that the termination of the voyage as to
the ship does not necessarily terminate the risk on the goods. This
risk may continue when the voyage at to the ship is ended. Its
duration depends on the intention of the parties, and this
intention must be found in their contract.
This brings us to consider the argument that the goods, while
performing quarantine in the lazaretto, remain at the risk of the
insurer in like manner as if performing quarantine in the ship.
The words of the policy being
"beginning the adventure on the said lawful goods and
merchandises from and immediately following the lading thereof on
board of said vessel at Baltimore aforesaid, and so shall continue
and endure until the said goods and merchandises shall be safely
landed at Leghorn aforesaid."
The risk continues until the goods be safely landed, although
the
Page 12 U. S. 83
voyage as to the ship, might be terminated previous to their
landing.
In ordinary cases, where the government does not interfere
between the parties, this risk would continue until the goods
should be landed in safety at the usual place and at the disposal
of the consignee. If it were usual to receive goods at the
lazaretto or at any other place on the shore of the port, it would
be the duty of the owner or consignee to receive them there, and a
landing at such place, it is admitted, would be a landing at
Leghorn.
If on the other hand the goods while performing quarantine
remained on board the ship and could not be landed, it is not to be
doubted that they would remain at the risk of the insurer. How
then, it is asked, can the substitution of the lazaretto for the
ship alter this risk? A substitution made not by the act of the
parties, but of the government of the country? A substitution which
does not alter the rights of the parties, since it leaves the lien
of the master for his freight unimpaired and gives no power over
the goods to the owner or consignee? A substitution beneficial to
the insurer since it diminishes the risk on the goods?
Whatever might be the effect of this reasoning if the
establishment of the lazaretto and the laws of quarantine had been
of so recent a date as not to have been in the contemplation of the
parties to the contract, as to which the Court gives no opinion,
this cause may well be decided upon the usage found in this case --
a usage of ancient date and of general notoriety. It existed and
was known to exist when this contract was formed. When the parties
stipulated that the adventure should continue till the goods were
landed in safety at Leghorn, they knew that the place of landing
was the lazaretto, and that the landing would be made under the
direction and control of the local authority. This then must be
considered as the landing contemplated in the policy. It is the
landing which terminates the risk. Had the parties intended to
continue the risk during the continuance of the goods in the
lazaretto, they would have inserted, in the policy, words
manifesting that intention. Instead of terminating the adventure on
the landing, a
Page 12 U. S. 84
fact which they knew must take place at the lazaretto thirty
days before the goods could be delivered to the owner or consignee,
they would have continued it till the goods should be landed in
safety and should perform their quarantine.
The Court is of opinion that under this policy, the goods in the
lazaretto were not at the risk of the underwriters, and
consequently that there is no error in the judgment of the circuit
court.
It is
Affirmed with costs.
