Insurance Company of the Valley of Virginia v. Mordecai, 63 U.S. 111 (1859)

U.S. Supreme Court

Insurance Company of the Valley of Virginia v. Mordecai, 63 U.S. 22 How. 111 111 (1859) 63 U.S. (22 How.) 111

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF SOUTH CAROLINA

Syllabus

Where there was insurance upon the freight of a vessel on a voyage from Charleston to Rio Janeiro, and from thence to a port of discharge in the United States, the insurance was upon the freight of each successive voyage, and is to be applied to the freight at risk at any time, whether on the outward or homeward voyage, to the amount of the valuation.

Therefore, where the vessel performed the outward voyage, and was condemned as unseaworthy, and the whole freight of the return voyage lost, the underwriters were not entitled to a deduction of the freight earned on the outward voyage.

Page 63 U. S. 112

Whether the underwriters were discharged in consequence of the condemnation of the vessel as unseaworthy was a question not made on the trial or presented to the court for decision, and therefore cannot be entertained here; neither can the question whether the policy was an open or valued one, as no exception was taken to the ruling of the court below that it was a valued policy.

The insurance company had an agency established in Charleston, where their business appeared to be conducted by W. M. & J. C. Martin. The policy was not filled up or under the seal of the company, but the action was brought upon a written memorandum upon the policy, as follows:

"Messrs. Mordecai & Co. are insured in the sum of four thousand dollars on the freight of the barque Susan, hence to Rio Janeiro and back, to any port of discharge in the United States."

"$4,000 at 2 c., $80."

"June 11, 1855."

"The first above entry in the name of Mordecai & Co. should have been to M. C. Mordecai, and the amount insured was valued at the sum insured."

"W. M. & J. C. MARTIN, Agents"

"May 30, 1856."

The declaration went on to state that the barque Susan, while proceeding on her said voyage, and before her arrival at her port of destination or final delivery, was by the perils and damages of the sea, and by stormy and tempestuous weather, and the violence of the winds and waves, bulged, broken, damaged, and spoiled; that the said barque had to put back to Rio Janeiro, and was unable to proceed on her said voyage &c.

The defendants pleaded the general issue, and upon the trial the following bill of exceptions was taken, viz.:

"And on the trial of the issue aforesaid, the said M. C. Mordecai, by his counsel learned in the law, to maintain and prove the issue on his part, gave in evidence and proved that he was the owner of the barque Susan, and that he made an offer to

Page 63 U. S. 113

the agents of the defendants in Charleston for insurance of four thousand dollars on the freight of said barque from Charleston to Rio Janeiro, and from thence to a port of discharge in the United States, at a premium of two percentum, and that the offer was accepted, and the premium paid, and that the policy, according to the usage of the said company, was in blank. But a memorandum was signed by the agent in the terms following, viz.,"

"Mordecai & Co. are insured on freight of barque Susan, hence to Rio Janeiro, and from thence to a port of discharge in the United States."

"Policy No. 209. $4,000, at 2 c. $80."

"June 11, 1855. W. M. & J. C. MARTIN Agt's."

"That the vessel sailed from Charleston with a full cargo on the 11th day of June, 1855, when she was tight and strong, and arrived at the port of Rio Janeiro, where she discharged her outward lading, and took in a return cargo for the United States of thirty-eight hundred bags of coffee, at a freight of seventy-nine cents per bag, and on the 10th October, A.D. 1855, started on her return voyage, but by her want of strength and soundness was compelled to put back to Rio Janeiro, where she was condemned as unseaworthy and sold, and the whole freight of the return voyage was lost."

"Whereupon the counsel for the defendant insisted that the policy was an open policy, and the insurers liable for only one thousand dollars; but the court ruled and so instructed the jury that the agreement proved was for a valued policy; and then the defendant insisted that the four thousand dollars having been insured on the round voyage, the insurers, from the evidence, were liable for only one-half of the sum insured, the other half being covered by the freight of the outward voyage, and prayed the court so to instruct the jury; which instruction his honor, the presiding judge, refused to give, but charged the jury that the loss of the freight on the return voyage was a total loss, and that upon the case as above stated the plaintiff was entitled to recover the whole amount underwritten by the defendants; to which last-mentioned instruction the defendant excepted; and the jury thereupon gave their verdict for the plaintiff as and for a total loss of the sum underwritten,

Page 63 U. S. 114

to-wit, for the sum of four thousand dollars and interest. Whereupon the counsel for the said company, because the matter aforesaid doth not appear by the record of the verdict aforesaid, did allege their exception to the opinion of the said judge, and did require that he should put his seal to this bill of exceptions, and thereupon the said judge, at the request of the counsel of the said Insurance Company of the Valley of Virginia, did put his seal, at Columbia, this second day of December, in the year of our Lord one thousand eight hundred and fifty-seven."

"A. G. MAGRATH [SEAL]"

Whereupon the jury found a verdict for the plaintiff for four thousand dollars, with interest and costs.

Page 63 U. S. 116

MR. JUSTICE NELSON delivered the opinion of the Court.

The suit was brought in the court below on a policy of insurance, for $4,000, on the freight of the barque Susan on a voyage from Charleston to Rio Janeiro, and from thence to a port of discharge in the United States.

The vessel sailed with a full cargo on the 11th June, 1855, when she was stanch and strong, and arrived at the port of Rio Janeiro, where she discharged her outward lading, and took in a return cargo, and on the 10th October, 1855, started on her return voyage, but was compelled, for want of strength and soundness, to put back to the port of departure, where she was condemned as unseaworthy, and sold, and the whole freight of the return voyage lost.

The counsel, upon this state of facts, which is all that appears

Page 63 U. S. 117

in the bill of exceptions, insisted that the policy was an open one, and the insurers liable for only one thousand dollars, but the court instructed the jury that the agreement proved was for a valued policy.

The counsel then insisted, that the four thousand dollars having been insured on the round voyage, the insurers, from the evidence, were liable only for one-half the sum insured -- the other half being covered by the freight of the outward voyage; but the court charged, that the loss of the freight on the return voyage was a total loss, and that, upon the case as it appeared, the plaintiff was entitled to the whole amount underwritten. To this last instruction the counsel for defendants excepted.

The counsel for the plaintiff in error, on the argument, referred to the clause in the policy by which

"it is also agreed, that if the above-named vessel, upon a regular survey, shall be declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten, then the assurers shall not be responsible on this policy,"

and insisted that the condemnation of the vessel as unseaworthy, after returning back to the port of Rio Janeiro, brought the case within it.

But the answer to this position is that no such question was made on the trial or presented to the court for decision, and therefore cannot be entertained here; neither does the evidence in the case enable the counsel to raise any such question, as it does not appear that the condemnation proceeded from the causes specified in this clause of the policy. 20 U. S. 7 Wheat. 610; 23 U. S. 10 Wheat. 418. It is enough, however, to say, that the question, for aught that appears in the bill of exceptions, was not raised on the trial.

As it respects the question whether the policy was an open or valued one, no exception was taken to the ruling that it was a valued one. The point was not pressed, probably, as we see, from a memorandum of the agents of the company in the case that it was intended by the agreement to be a valued policy.

The remaining question, and indeed the only one presented

Page 63 U. S. 118

in the bill of exceptions, is whether the voyage insured is one entire voyage from Charleston to Rio Janeiro, and back to the port of discharge in the United States, and consequently the underwriters entitled to a deduction of the freight earned on the outward voyage,

The Court is of opinion, upon the true construction of the policy, the insurance was upon the freight of each successive voyage, and is to be applied to the freight at risk at any time, whether on the outward or homeward voyage, to the amount of the valuation.

The case, in this respect is not distinguishable from Hugg v. Augusta Insurance & Banking Company, 7 How. 595. See also 3 Caines 16; 7 Gill. & John. 293; 2 Phillips on Insurance 31, 34.

Judgment of the court below affirmed.