DONATH v. INSURANCE CO OF NORTH AMERICA, 4 U.S. 463 (1806)
Syllabus
U.S. Supreme Court
DONATH v. INSURANCE CO OF NORTH AMERICA, 4 U.S. 463 (1806)4 U.S. 463 (Dall.)
Donath et al.
v.
The Insurance Company of North-America.
Supreme Court of Pennsylvania.
December Term, 1806
THIS cause was argued, in March term last, on the following case, stated for the opinion of the Court.(a)
Case. The plaintiffs were in advance for money lent, and goods delivered, to Don Alvarez Calderon, according to their account stated, ( including commissions and premium of insurance) to the amount of 13,750 dollars; and addressed to the defendants the orders of insurance, dated respectively the 22d of June and 6th of July 1799, in these words:
'Philadelphia, June 22d 1799.
'President and Directors of the
'Insurance Company of North
America.
'GENTLEMEN,
'Agreeably to your answer, we request
you to insure 13,750 dollars, on sundry effects, shipped on board
the schooner aphne, captain Ripley, bound for Havanna.
'This insurance is declared to be
made by us, for and in behalf of Don Alvarez Calderon, king's
attorney in the island of Cuba, on goods, or rather effects, they
not being merchandize intended for trade, but wholly his property,
consisting in clothing and wearing apparel, library, a vast
quantity of house furniture, coaches, &c. amounting together to
18,733 dollars, of which we only cover the above sum of 13,750
dollars, the same being the amount of our advances, inclusive of
premium, commission, &c. at and from Philadelphia to Havanna,
on board
(a) The case was stated with a reference to the various documents, read in evidence; but it is necessary to incorporate the substance of them here, with the statement.
the Daphne, an American bottom and property, and the returns
from Havanna to Philadelphia on board the same schooner or any
other American vessel, but if remittance should be made to us in
bills of exchange for the whole or in part of the sum so insured by
us, a return premium of 7 1/2 per cent. shall be allowed us, on the
amount that may be remitted in bills. 'We further warrant that Don
Alvarez Calderon has all necessary passports and protections for
himself, suite, and property, from the British, Spanish and French
ministers, which we have caused to be registered in Clement
Biddle's office.' 'Philadelphia, July 6th 1799. 'President and
Directors of the 'Insurance Company of North America. 'GENTLEMEN,
'Please to cancel the policy of insurance effected on goods or
effects, shipped by us, on board the schooner Daphne, for account
of Don Alvarez Calderon, for 13,750 dollars, as the same have been
re-landed and loaded on board the brig Currier, captain M'Keever,
on which you will please to transport the same insurance, and on
the same conditions. 'Jos. Donath & Co.' Previously to these
orders, the plaintiffs had entered into an agreement with Don
Alvarez Calderon, dated the 11th day of June 1799, of which the
material passages were these: 'The said Jos. Donath & Co.
contract to furnish a suitable vessel for the passage of the said
Don Andres Alvarez Calderon, his suite, and goods and effects, from
this port of Philadelphia to Havanna. To procure insurance to be
made of the goods and effects of the said Don Andres Alvarez
Calderon, for the said voyage, to the amount of commissions,
premium and charges, and the said goods and effects inclusive, and
to comprehend in like manner the sums of two thousand dollars,
advanced him by Stephen Dutilh, such insurance to be made at and
from Philadelphia to Havanna, and at and from thence back to this
port of Philadelphia, and the policies of insurance and authority
to recover the same, in case of loss, to remain and be vested in
the said Joseph Donath and company.' 'And the said Andres Alvarez
Calderon further covenants, promises and obliges himself to the
said Joseph Donath and company, to pay to the said Joseph Donath
and company, or their correspondent at Havanna, the full amount of
said sums so to be by them advanced, and also for the freight and
other sums to be by him paid as aforesaid at Havanna, in specie, to
be loaded on board any vessel at Havanna that they may require,
clear of duties or risque, or at the option of said Andres Alvarez
Calderon, to pay the said amount in sugars, or other [4 U.S. 463, 465]
Opinions
v.
The Insurance Company of North-America. Supreme Court of Pennsylvania. December Term, 1806 THIS cause was argued, in March term last, on the following case, stated for the opinion of the Court.(a) Case. The plaintiffs were in advance for money lent, and goods delivered, to Don Alvarez Calderon, according to their account stated, ( including commissions and premium of insurance) to the amount of 13,750 dollars; and addressed to the defendants the orders of insurance, dated respectively the 22d of June and 6th of July 1799, in these words:
U.S. Supreme Court
DONATH v. INSURANCE CO OF NORTH AMERICA, 4 U.S. 463 (1806) 4 U.S. 463 (Dall.) Donath et al.v.
The Insurance Company of North-America. Supreme Court of Pennsylvania. December Term, 1806 THIS cause was argued, in March term last, on the following case, stated for the opinion of the Court.(a) Case. The plaintiffs were in advance for money lent, and goods delivered, to Don Alvarez Calderon, according to their account stated, ( including commissions and premium of insurance) to the amount of 13,750 dollars; and addressed to the defendants the orders of insurance, dated respectively the 22d of June and 6th of July 1799, in these words:
'Philadelphia, June 22d 1799.
'President and Directors of the
'Insurance Company of North
America.
'GENTLEMEN,
'Agreeably to your answer, we request
you to insure 13,750 dollars, on sundry effects, shipped on board
the schooner aphne, captain Ripley, bound for Havanna.
'This insurance is declared to be
made by us, for and in behalf of Don Alvarez Calderon, king's
attorney in the island of Cuba, on goods, or rather effects, they
not being merchandize intended for trade, but wholly his property,
consisting in clothing and wearing apparel, library, a vast
quantity of house furniture, coaches, &c. amounting together to
18,733 dollars, of which we only cover the above sum of 13,750
dollars, the same being the amount of our advances, inclusive of
premium, commission, &c. at and from Philadelphia to Havanna,
on board
(a) The case was stated with a reference to the various
documents, read in evidence; but it is necessary to incorporate the
substance of them here, with the statement.
Page 4 U.S.
463, 464
the Daphne, an American bottom and property, and the returns
from Havanna to Philadelphia on board the same schooner or any
other American vessel, but if remittance should be made to us in
bills of exchange for the whole or in part of the sum so insured by
us, a return premium of 7 1/2 per cent. shall be allowed us, on the
amount that may be remitted in bills. 'We further warrant that Don
Alvarez Calderon has all necessary passports and protections for
himself, suite, and property, from the British, Spanish and French
ministers, which we have caused to be registered in Clement
Biddle's office.' 'Philadelphia, July 6th 1799. 'President and
Directors of the 'Insurance Company of North America. 'GENTLEMEN,
'Please to cancel the policy of insurance effected on goods or
effects, shipped by us, on board the schooner Daphne, for account
of Don Alvarez Calderon, for 13,750 dollars, as the same have been
re-landed and loaded on board the brig Currier, captain M'Keever,
on which you will please to transport the same insurance, and on
the same conditions. 'Jos. Donath & Co.' Previously to these
orders, the plaintiffs had entered into an agreement with Don
Alvarez Calderon, dated the 11th day of June 1799, of which the
material passages were these: 'The said Jos. Donath & Co.
contract to furnish a suitable vessel for the passage of the said
Don Andres Alvarez Calderon, his suite, and goods and effects, from
this port of Philadelphia to Havanna. To procure insurance to be
made of the goods and effects of the said Don Andres Alvarez
Calderon, for the said voyage, to the amount of commissions,
premium and charges, and the said goods and effects inclusive, and
to comprehend in like manner the sums of two thousand dollars,
advanced him by Stephen Dutilh, such insurance to be made at and
from Philadelphia to Havanna, and at and from thence back to this
port of Philadelphia, and the policies of insurance and authority
to recover the same, in case of loss, to remain and be vested in
the said Joseph Donath and company.' 'And the said Andres Alvarez
Calderon further covenants, promises and obliges himself to the
said Joseph Donath and company, to pay to the said Joseph Donath
and company, or their correspondent at Havanna, the full amount of
said sums so to be by them advanced, and also for the freight and
other sums to be by him paid as aforesaid at Havanna, in specie, to
be loaded on board any vessel at Havanna that they may require,
clear of duties or risque, or at the option of said Andres Alvarez
Calderon, to pay the said amount in sugars, or other
Page 4 U.S.
463, 465
produce, in which last case, all the freight, charges,
commissions at Havanna, and risk of the said sugars or other
produce of the said island of Cuba, shall be at the charge of the
said Andres Alvarez Calderon, so that the nett proceeds thereof,
after deducting all charges, freight and insurance, as the same
shall produce at Philadelphia, shall be to the credit of said
Andres Alvarez Calderon, instead of the sum paid at Havanna in
specie. And it is declared and agreed by the said parties hereunto,
that in case the said vessel should be captured, taken or lost on
her said voyage, that the insurance to be recovered on the goods
and effects, to be shipped and insured a mentioned in the third
article before mentioned, shall be applied by the said Joseph
Donath and company, to the discharge of their advances, and in
abatement or acquittance for so much of the bills or drafts to be
drawn by the said Don Andres Alvarez Calderon for the said sums, so
to be paid and advanced for his use by the said Joseph Donath and
company, as aforesaid.'
On the 6th day of July 1799, Joseph Ball duly underwrote the
policy for the defendants, and affixed their corporate seal, by
which they insured goods on board the Currier outwards, and on
board her, or any other good American vessel home, at and
fromPhiladelphia to the Havanna and back of Philadelphia, valued at
13,750 dollars, for a premium of 20 per cent. The property out was
warranted to belong to Don Alvarez Calderon; and that he had all
necessary passports and protections for himself, suite, and
property, from the British, Spanish, and French, ministers,
resident in the United States. It was, also, stated in the policy,
that the property homewards was to be shipped by Don Alvarez
Calderon, or by his order, for account of the plaintiff; but if the
remittance was made in bills of exchange, and not goods, there
should be a return of 7 1/2 per cent. of the premium. The premium
was duly paid; the warranty in the policy contained was complied
with and performed; the policy has always remained in the
possession of the plaintiffs; and the goods were shipped and
consigned, as specified in the invoice and bill of lading, to wit,
by Joseph Donath & Co. 'for Don Alvarez to Peter Blain, or his
assigns,' at the Havanna. On the 19th June, and 8th July 1799, the
plaintiffs wrote two letters to Peter Blain, the plaintiff's agent
named in the bill of lading, inclosing a copy of the contract with
Don Calderon, and desiring him to secure payment before the goods
were delivered; to which letters they received answers, dated
respectively the 18th and 31st of October 1799, stating the refusal
of Don Calderon to pay the drafts, and his desire that the
plaintiffs would seek redress from the underwriters. The brig
Currier, in the policy named, sailed from Philadelphia, on the 10th
of July 1799, on the voyage insured, with the property insured on
board; and, while lawfully prosecuting the voyage, to wit, on the
31st of July 1799, she was captured by the British privateer
Page 4 U.S.
463, 466
schooner Charlotte, captain Thrift, and carried into
New-Providence, on the 3d day of August ensuing, where James
M'Keiver, master of the said brig, entered a protest. The brig and
cargo were libelled in the Vice Admiralty Court, at New-Providence,
and were both condemned, except the property in the policy insured,
touching which the following proceedings were had at
New-Providence.
On the 26th of August 1799, Don Calderon petitioned the Court of
Vice- Admiralty, stating that he was possessed of passports from
the British minister, &c., and praying restitution of his
effects. On the 2d of September, the Judge pronounced sentence,
which, so far as it relates to the present question, expressed a
doubt upon the construction of the British minister's passport; and
directed an inquiry to be made, whether it was the minister's
intention to protect the effects of Don Calderon, to the extent
claimed.(a) On the 12th of September 1799, all the goods were
Page 4 U.S.
463, 467
restored to Don Calderon, on his giving security, to abide the
final decree, except a trunk of valuable articles, which had been
lost after the capture; and for which the judge refused to make the
captors responsible.
The property received by Don Alvarez Calderon, in consequence of
those proceedings, was carried by him to the Havanna, but never
delivered to the said Blain, in the bill of lading mentioned, nor
accounted for to the plaintiffs.
On the 31st day of August and the 1st of October 1799, the
plaintiffs abandoned the property insured to the defendants,
stating in the former letter, particularly, that 'they had received
orders from Don Calderon to do so;' and thereupon demanded payment
for a total loss: which the defendants refused to pay, but offered
to pay an average loss on the goods damaged and stolen. Don Alvarez
Calderon has not paid to the plaintiffs the whole, or any part of
their advances before mentioned: and no property insured on the
homeward passage, has been shipped by him or his order, for account
of the plaintiffs, nor hath any part of
[467-Continued.]
intended to procure to Don Alvarez polite treatment, and to
protect himself, servants, baggage, and the customary viatica, or
articles necessary for his use during the voyage, and no more; but
by no means, to enable him to carry furniture, carriages, and other
goods, to so great an amount as the property in dispute; that the
document is not in the usual and proper form; and, finally, the
right of ambassadors, to protect by their licences, more than has
been here conceded to them, has been contested, on the ground, that
it would defeat the operation of the prize act.
'The safe conduct of ambassadors will
not, I apprehend, be often the subject of consideration here; and
still more rarely will it happen, that there will be any greater
occasion to dispute, or deny, the privilege claimed, than there
exists in the present. If, however, the right of ambassadors to
grant licences, whereby enemy, or contraband goods, may be
protected from capture, during their passage through the
sovereign's dominions (which is the case more especially alluded to
by Blackstone)1 or even to the territories of the enemy, which is
the case here, be admitted in its fullest extent; still it must be
granted, that to insure proper respect to his act, attention should
be paid to the forms prescribed or recommended by the writers on
the law of nations; I mean, as Vattell expresses it, to enumerate,
and categorically express, every thing intended to be comprehended.
Here no enumeration has been made; but, instead thereof, a word has
been inserted, of an import so general, that it may be construed to
include any thing and every thing, of any amount and of any kind.
'I may, I trust, without derogating in the least from the respect
due to his excellency, the ambassador, be permitted to doubt,
whether, when he wrote the passport, he really meant to give it the
full purport of which it is susceptible.
'The situation of Judges of the
Vice-Admiralty Courts is well known to Mr. Liston. If, on the one
hand, they are bound to respect the right of ambassadors, there
are, also, duties to fulfil towards those who claim the benefits of
the prize act. And hence I do conclude, that in extending the
privileges or immunities of a passport, beyond what is commonly
done, he would have adopted a term of more precise and determinate
signification, than the one he has used. Besides, it is very
evident that Mr. Bond, the consul, who, I dare say, did see this
licence, and who ought, and, I presume, does, know better than any
person here, what the ambassador really intended, takes no notice
whatever of 'effects,' but confines his consular licence, or pass,
which he granted eight days subsequent to that of Mr. Liston, to
the persons and baggage of Don Alvarez and his servants. Don
Alvarez himself, too, by insuring so carefully against capture,
seems to have entertained a different opinion of this safe-conduct
at Philadelphia, from that which he holds in this place. I will
not, though, take upon me to say, that it is not possible, but that
Mr. Liston might have been aware of the purpose to which his
passport was intended to be applied; and that he might have deemed
this a fit occasion, for the exercise of the extraordinary powers
attached to his station and character. If this prove to be the
case, I shall dismiss the libel, and leave the captors, if they
think themselves ag rieved, to seek redress elsewhere. My duty,
therefore, in the first place, is to be satisfied of what was the
ambassador's meaning. For this purpose, I decree, that an exact
enumeration of the articles (exclusive of the baggage, the books,
and every thing necessary for the prosecution of his voyage, which,
if it has not been done, I direct may be immediately given up) that
have been shipped by Don Alvarez, be made out, and that it be
transmitted to his excellency the ambassador, with a request that
he would certify to this Court, whether any, or what, things
therein specified, were intended by him to be protected from
capture by his licence. In making this enumeration, I trust that
the greatest care will be used to prevent injury; and that the same
be done in the presence of some person appointed by the
olaimant.'1
1 Upon receiving Mr. Liston's explanatory certificate, the whole
of the property was ordered to be restored absolutely.
Page 4 U.S.
463, 468
the remittances in the policy mentioned, been made in bills of
exchange.
The questions for the opinion of the Court are,
1st. Whether, under all the circumstances, the plaintiffs had an
insurable interest in the property, mentioned in the policy, out
and home, or either? 2d. Whether, if they had such interest, it is
sufficiently insured by this policy, to entitle them to recover in
the present action, as for a total loss? 3d. Whether, if they are
not entitled to recover as for a total loss, they are entitled to
recover as for a partial loss, and to what amount? 4th. Whether
they are entitled to a return of premium on the return voyage, and
to what amount?
It is further agreed, that the judgment of the Court shall be
rendered by them, in such form and for such sum, if any, as shall
be best calculated to effectuate their opinion upon the foregoing
questions.
The cause was argued in March term 1806, by Levy and Dallas, for
the plaintiffs; and by Ingersoll and Hopkinson, for the
defendants.
For the plaintiffs, it was insisted: 1st. That the advance and
lien, gave them an insurable interest in the effects of Don
Calderon; Park, 282. 1 Bl. 103. 1 Burr. 489. Park, 267. 269. 8 T.
Rep. 154. Park, 11. 3 Burr. 1410. Park, 270. 8 T. Rep. 13. 1 Bos.
& Pull. 315. 323. 216. 6 T. Rep. 478. 483. 1 Marsh. 81. 91.
111, 112. 2 Bos. & Pull. 240. 75.; that the nature of their
interest was fully communicated to the defendants; that they had
taken every precaution to secure the lien, by retaining the
possession of the effects, and consigning them to their agent at
the Havanna, to be delivered to Don Calderon, only upon re-payment
of the money advanced; that the capture took from the plaintiffs
the possession of the property, and, with it, their lien; thereby
constituting a total loss, on which they had a right to abandon; 2
Burr. 694. 2 Emerig. 188. 194, 5. 3 Poth. B. 3. c. 3. art. 1. s. 3.
that the restitution to Don Calderon was not a restitution to the
plaintiffs; but, on the contrary, was destructive of their
possession and lien; and that although the goods were, in fact,
afterwards car ied to the Havanna by Don Calderon, they were never
delivered at the port of destination, to the consignee of the
plaintiffs, within the spirit and meaning of the policy, and more
than if they had been carried thither by the captors. 2d. That the
defendants have virtually acknowledged the right of the plaintiffs
to recover, by offering to pay an average loss upon the property
damaged and stolen. 3d. That, at all events, the policy
contemplates two distinct adventures; to wit, an outward cargo, and
a remittance, either in cargo, or in bills of exchange ( providing,
in the latter case, for an abatement of seven and
Page 4 U.S.
463, 469
a half per cent. premium) and as no risque has been run of
either kind, upon the return voyage, there should be a proportional
return of premium. Park, 367. (5 edit.) 377, 8. 3 Burr. 1237. 2
Marsh. 564. 567. 569. 561 to 571. 1 Bos. & Pull. 172.
For the defendants, it was insisted, 1st. That their contract
was with Don Calderon, through the agency of the plaintiffs; that
the plaintiffs never had an insurable interest, or, if they had,
they have not insured it; for, the insurance is made on the effects
of Don Calderon, on his account and risque; and although they are
consigned to Blain, at the Havanna, it is expressly 'for Don
Calderon;' 1 Ld. Raym. 271. 12 Mod. 156. that there was no idea of
a lien, in the origin of the transaction, but a perfect reliance on
the honour of Don Calderon; that although two persons may insure
distinct interests in the same subject, it must be upon distinct
contracts, and for distinct premiums; and that Don Calderon, in
case of a legal loss, might have sued on the policy, though he had
paid his debt to the plaintiffs; and thus if they might sue, their
debt not being paid, two interests would be insured by the same
contract, for a single premium. 2d. That the defendants had
complied with their contract, the property being restored to, and
remaining in, the possession of its owner, for whom the insurance
was made, at its port of destination; and that the insurance was
against the perils of the sea, and of war, but it was not an
insurance against the misconduct of Don Calderon, in retaining the
property, without paying the debt. 3d. That the voyage was entire;
for an entire premium of twenty per centum, varying the amount of
the premium, but not the entirety of the voyage, according to the
manner, in which the returns should be made. Park. 440. 377. 2
Marsh. 572. Doug. 751.
The cause was held under advisement, until the 17th of January
1807, when the opinions of the Judges, who had heard the argument,
were delivered.
TILGHMAN, Chief Justice.
My opinion on the first point will be rendered unnecessary, by
the opinion which I shall deliver on the second point; because,
granting that the plaintiffs possessed an insurable interest, I am
of opinion that it clearly appears from the facts stated, that they
ordered no insurance, and that no insurance was made for them, in
any other capacity, than as agents of Don Alvarez Calderon:
consequently, they cannot recover for a total loss, as Don Alvarez
Calderon has accepted that part of the property which was saved,
and thereby made his election to claim only for a partial loss. The
instructions of the plaintiffs for effecting the insurance, were to
insure expressly for and on behalf of Don Alvarez Calderon. It is
true, they insured only 13,750 dollars, although the whole effects
of their principal amounted to 18,733 dollars;
Page 4 U.S.
463, 470
and they give the reason, that 13,750 dollars covered the amount
of their advances, including premium, commissions, &c. The
defendants might well suppose, that the plaintiffs were to hold
this policy for their own security, in case of loss, although the
insurance was made for Don Alvarez Calderon; and that this was the
fact, appears from the agreement, dated the 11th of June 1799. But
it is not stated, that this agreement was disclosed to the
defendants: on the contrary, here is one circumstance which goes
far towards convincing me that no such disclosure was made. It is
this: By the agreement, the outward cargo was to be at the risk of
Don Alvarez Calderon; but the memorandum at the foot of the policy,
contains a covenant, that the inward cargo should be shipped on
account of the plaintiffs. The plaintiffs contend, that they had a
lien on the goods, and that it so appears by the bill of lading,
and their letter to Mr. Blain. But, in my opinion, those papers
prove directly the contrary. By the bill of lading, the goods are
deliverable for Don Alvarez Calderon, to P. Blain; so that Don
Alvarez Calderon might have compelled Blain to give him possession
of the goods, before the expiration of the fifteen days, which were
allowed for payment of the plaintiffs' demand. The plaintiffs, in
their first letter to Blain, declare that the respectability of Don
Alvarez Calderon's character was a sufficient guarantee, for the
honourable execution of his agreement. And even in their second
letter, although they began to apprehend difficulty from the
capricious temper of the Don, they gave no intimation of any
expectation, that their agent should hold the goods till he
received payment of their demand.
Suppose Don Alvarez Calderon had paid the plaintiff's account;
can it be contended, that he could not recover for his own use, on
this policy, the amount of the loss, that he has actually
sustained? And, if he could, does it not inevitably follow, that
the plaintiffs cannot recover for their own use? If they can, one
insurance effected for one premium, may be made to cover two
different interests, vested in different persons. Besides, the
plaintiffs attempt, most unreasonably, to make the defendants
answerable for a risk, which they never meant to run; that is, for
the integrity and good conduct of Don Alvarez Calderon. And after
that gentleman has received the property, which was restored to him
by the British Court of Admiralty, the defendants are called on to
answer for it, as being lost. To render the impropriety of this
demand the more complete, the plaintiffs made the abandonment, on
which they found their claim, expressly by order of Don Alvarez
Calderon. Nothing can be clearer than that the plaintiffs,
throughout the whole of the transaction of this insurance acted not
for themselves, but as the agents of Don Alvarez Calderon.
3d. On the third point there is no difficulty. Undoubtedly, the
plaintiffs may recover for the partial loss, sustained by Don
Alvarez Calderon.
Page 4 U.S.
463, 471
The defendants to not deny it. I presume the parties can easily
adjust this loss. Indeed, I understood so, from what fell from Mr.
Levy, in the course of his argument.
4th. The last question in this case, is, whether the plaintiffs
are entitled to a return of any part, and how much, of the premium?
The general rule is, that where the voyage is entire, and the risk
has once commenced, there shall be no return of premium. But when,
by the course of trade, or the agreement of the parties, the voyage
is divided into distinct parts; and, on one of these parts, no risk
has been run, there shall be an apportionment of the premisum, and
part shall be returned. A voyage may be entire, though the ship is
to go to a number of different places, and to take in different
cargoes. But if, in the contract of insurance, there are certain
contingencies introduced, which, at certain periods of the voyage,
may operate so as to make the insurance void, it has been
considered, that, in such cases, the voyage may be supposed to have
been divided, in the contemplation of the parties, into distinct
parts. As in the case of Stevenson v. Snow, which was an insurance
of a ship 'at and from London to Halifax, warranted to depart with
convoy from Portsmouth.' The convey was gone, before the ship
arrived at Portsmouth; and by the judgment of Lord Mansfield, and
the whole Court of King's Bench, there was a return of part of the
premium In the case before us, it appears to have been in
contemplation of the parties, that on the voyage from the Havanna
home, there might be contingencies, which would either avoid the
policy, for that part of the voyage, or lessen the risk, so far as
to require a part return of premium. The goods shipped on the
outward voyage, are warranted to be the property of Don Alvarez
Calderon. It was doubtful, whether any goods would be shipped on
the inward voyage. If a remittance was made in bills of exchange,
there was to be a return of seven and a half per cent., part of the
premium. If goods were shipped, they were warranted to be on
account of the plaintiffs. It seems to be the spirit of this
agreement, that the voyage may be divided; [471-Continued.]
and that if no goods were shipped, there should be a return of
seven and a half per cent.
On the whole of the case, I am of opinion, that the plaintiffs
are entitled to recover for a partial loss, and a return premium of
seven and a half per cent., with interest from the commencement of
the action.(a) I do not think, that they should be allowed interest
for a longer time, because they demanded more than they were
entitled to, and have put the defendants to the expense of
contesting their claim for a total loss.
YEATES, Justice, being indisposed sent his opinion, in writing,
to the Court, and it was read by the prothonotary.
He concurred in the decision, that the plaintiffs, were entitled
to recover a partial loss, for the goods lost and damaged; but he
considered
Page 4 U.S.
463, 472
the voyage as entire, and, consequently, was opposed to the
claim, for a return of premium.
SMITH, the BRACKENRIDGE, Justices, concurred, generally, in the
sentiments delivered by the Chief Justice.
And judgment was entered for the plaintiffs, accordingly; the
quantum to be calculated by the parties.(b)
Footnotes
(a) The opinion of the Judge of the Court of Vice-Admiralty (Judge
Kelsall) upon the general character and operation of diplomatic
passports, appears sufficiently interesting, to justify its
insertion at length.
DECREE. 'The only shipment in this vessel, that has occasioned
me any hesitation, is that of Don Alvarez. This gentleman s a
Spanish subject, but to exempt his property (of the value of eight
or ten thousand dollars) from the usual consequence of capture, he
has produced a paper, which has given rise to no small argument and
discussion. It is a letter of license from his majesty's ambassador
with the American states, Mr. Liston, by which the commanders of
vessels of war are requested to allow Don Alvarez to pass, with his
domestics, baggage, and effects. It is said, that this paper, from
its language, not being mandatory, never was designed by Mr. Liston
to be viewed as a safe conduct; that it is merely an expression of
civility, a complimentary act,
(a) The assured is entitled to a return of the premium, if the
goods upon which the insurance was effected have never been put on
board the vessel, or if she was not seaworthy, at the time the risk
would have commenced, if it had commenced at all. Scriba v.
Insurance Co. of North America, 2 W.C.C. 107. But fraud on the part
of the assured, will bar him from demanding a return of premium.
Schwartz v. United States Ins. Co. 3 Id. 170.
(b) On the question of interest, Dallas took the liberty of
suggesting to the Court, after the opinions were delivered, that
the practice had uniformly been, to allow interest on the amount
actually recovered, upon the the expiration of 30 days, after
depositing the proofs of loss; and that, on principle, the
underwriters could only discharge themselves from interest, or
cost, by a tender, or payment into Court, of the sum due. But the
Chief Justice answered, that the subject had been considered, and
was now decided.
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