Hart v. Delaware Ins. , 2 Wash. C. C. 346 ( 1809 )

WASHINGTON, Circuit Justice

(charging jury). The first question is, was there in this case a total loss? It is strongly.to be presumed, from the age of the vessel, her tonnage, ttfe cost of her necessary repairs, and the price at which she sold, that the injury to be repaired would have exceeded more than half her value; but of this, you are to judge. If this was the fact, the insured had a right to abandon, unless the underwriters would agree, at all events, to pay for the repairs, ■although they should éxceed what the underwriter would have been answerable for, if only a partial loss had happened. It is true, that the underwriter is not bound to make, or to direct, the necessary repairs, in any case. But if the injury sustained is such that the insured may turn it into a total loss, the underwriter, if he would prefer the voyage being prosecuted, must engage to pay what may be necessary to fit her to prosecute the voyage, though it should exceed what otherwise he might be liable for.

The question then is, did the agent of the underwriters agree to answer for such repairs? Mr. Myers declares, that he would only consent to pay for partial repairs; and it appears, by his ánswer to Mr. Myers’ note, that he would only agree to pay what the underwriters were legally bound to pay. But the underwriters were not bound to pay beyond their subscription, and the repairs would have cost between three and four thousand dollars. The insured, therefore, was not bound to make those repairs at his own risk, and was consequently at liberty to treat the loss as total, unless you should be satisfied, by Williamson’s evidence, that whatever difference may have arisen between Myers and Granberry, the latter did consent to repair the vessel, and would have done so, had he not been prevented by the captain. If Williamson is believed, it is certainly very difficult to account for, and still more so to justify, the conduct of the agents of the insured upon this occasion, in refusing a compliance with their own proposition; and if you are satisfied that this offer was made, and a willingness shown to carry it into effect, the plaintiffs had no right to turn this into a total loss. You are alone proper to decide how this fact was; and, having satisfied yourselves respecting it, you will find no difficulty in applying the law to it, as the court nas stated it to you.

The next question is purely a point of law. Had the plaintiffs an insurable interest, before or at the time when the loss happened, as stated by one of the counsel; or, had the risk then commenced, as it is put by another? There is no difference between-them. Bisk is the subject of the contract of insurance. If there be no risk, there can be no contract Until the risk commences, the contract does not attach. If the insured cannot or will not commence the risk, he has no claim to indemnity, and the underwriters cannot retain the premium. In an interest policy, there can be no risk, if there be no interest. The risk, then, can only commence when the interest commences — which leads to the question, when does an inchoate right to freight commence? The answer is, when the goods are put on board. This is the general rulej as laid down in the case of Tonge v. Watts [2 Strange, 1251], which, I believe, has never been questioned. It is true, that if the policy be valued, the right to indemnity attaches, if only a part of the cargo is taken on board, and then a loss happens; because, in such a case, it is only necessary to prove some interest, to entitle the insured to recover the whole sum insured. So, likewise, if the insured, in virtue of a contract with a third party, has an inchoate right to freight, as soon as the voyage commences, though before the cargo is taken on board; the risk commences, and the policy attaches, in virtue of the contract, as soon as the voyage is commenced. This is the case of. Thompson v. Taylor [6 Durn. & E. (6 Term R.) 478.] But the general rule is as before stated. But although, in this case, the plaintiffs had not an insurable interest before the cargo was taken on board, it may be asked, had they not a right to insure expected profits, although they were dependent upon no contract with third persons? The answer'is, that if the defendants agreed to insure in this way, they are liable, in case of a loss from any of the perils insured against, and not otherwise. The difficulty is, was this the understanding of the parties? We have had two opinions upon the point, and therefore state our present im-> pression with some diffidence. But when we consider all the circumstances of this case— that the defendants knew that the cargo was to be taken on board at Wilmington — that they insured the vessel and freight at the same premium, and stipulated, in the memorandum to the policy, that the vessel was insured, in and out of port, during the whole voyage, we are of opinion, that the risk in respect to the freight, was understood to commence as soon as the voyage commenced; that is, that the profit expected to be made by the freight of the vessel, should not be prevented by any of the perils insured against.

The jury, after having been out some time, returned into court, and asked the opinion of the court, whether, if the brig had been repaired, so as to fit her for the voyage, either by Myers, in consequence of Granberry’s letter to him, or by Williamson, who was sent on board for the purpose, the underwriters would have been‘Liable for the whole expense, provided it exceeded the amount insured? The answer given was, that if the repairs had been made by Williamson, under the orders of Granberry, the agent of the defendants, the defendants would have been liable for the whole expense, though it had exceeded the amount insured. But if the repairs had been made by Myers,. they must have been upon the terms of Granberry’s letter, which did not bind the defendants further than the law bound them, and that would not have been to an amount exceeding the sum insured.

Verdict for defendants.