Penny v. New-York Insurance Co. , 3 Cai. Cas. 155 ( 1805 )

Per curiam, delivered by

Livingston, J.

The subject insured- not being abandoned until it was in safety, that is, until three days after the embargo was removed, the plaintiffs, although ignorant of its liberation, cannot, consistently with the judgment of the court for the correction of errors in Bedient & Kimberly v. Church, recover as for a total loss ; nor can we, on the facts here disclosed, ascertain what is due to them for a partial loss, admitting a demand of that kind to be well founded. If entitled to any thing, it is to the de-fendants’ proportion of a general contribution towards reimbursing them for a sum, which as owners of the cargo, they paid in consequence of certain extraordinary expenses that accrued during the embargo ; but to make a calculation, we should know the value of sloop, freight and cargo. This not appearing, it is impossible so to modify the verdict as to do complete justice. If this cannot be done, it is said, that as this suit was brought in consequence of a former judgment rendered by this court, which has since been reversed, the parties should be permitted to go to a new trial, to ascertain the value of these different subjects, and the extent of the defendants' liability on the principle of a general contribution. This is reasonable, and I should readily accede to it, were the defendants chargeable with any thing on this policy but thinking otherwise, it is our duty to arrest the suit here, and not expose them to the expense of further litigation. It seems to have been conceded on the argument, that the plaintiffs, having contracted for freight by the month, were bound to pay even for the time the vessel was embargoed. This may be so, but I am inclined to think, that a detention of this kind, by a foreign prince, suspends the contract, whether freight be payable for the whole voyage, or by the month. Demurrage is certainly not payable during such restraints, and Pothier, in his treatise on charter-parties, says expressly, that' “ The owner of a vessel hired by the “ month, is not entitled to freight during an embargo.” Without, however, deciding a point, which has not been made, and admitting the sum thus paid, to have been justly due, the defendants cannot be called on to refund any part of it. This will necessarily lead to an enquiry, whether - ,the expenses arising out of a state of embargo, are to be defrayed by common contribution, or whether they be subjects of a particular average. That they are of the latter description, has been decided, after solemn argument, by the whole court of King’s Bench, in the case of Robertson v. Ewer, where it was held, that wages and provisions during an embargo, were not covered by a policy on the ship. This may be supposed inconsistent with our own decision in the case of Leavenworth v. Delafield, and therefore, as not forming a rule in the present case. But the two decisions are perfectly reconcilable; otherwise, for the sake of uniformity, the latter should be followed, unless manifestly incorrect, however respectable the other may be. There is, an evident distinction between a detention by capture and an embargo. In the former case, the charter-party is dissolved, and the captain (who is generally agent of all parties, to act for the best under every misfortune) reclaims both vessel and cargo, and, without being under contract, or obliged so to do, retains the crew, for the purpose of preventing an entire loss, and pursuing the voyage if the property be acquitted ; whereas he might dismiss them at once, and the underwriter be called on for a total loss. The expenses, therefore, incurred by a claim of this nature, being evidently for the general benefit, if not impliedly at the general request, and not the effect of previous stipulation or contract, which is at an end by the capture, it is but reasonable they should be defrayed in the same way. Ricard, in his treatise on the commerce of Amsterdam, assigns nearly the same reason for making a general average of wages in case of capture, and a particular average of them during an embargo. “ The " wages of a ship,” says he, “ detained by an order of state, ti shall not be brought into general average as in case of <c capture ; because, in the latter case, the crew remain to ct take care of the vessel whilst she is reclaimings and these a charges are occasioned with the sole view of preserving “ the ship and cargo for the proprietors ; but there is no “ room for sush pretence in the case of an embargo, as the “ sovereign who lays it, neither claims the ship or cargo, “ but only for political reasons prevents their immediate de- “ parture. Therefore it cannot be said, that the ship’s com- “ pany remained on board to prevent an entire loss.” The French ordinance declares, that such charges, during an embargo, shall be reputed as general average, if the vessel be hired by the month, but if freighted by the voyage, they shall be borne by her alone. Pothier, in his treatise above referred to, assigns a reason for this distinction, which is not very satisfactory, and therefore I shall not repeat it. From Emerigon, we also learn, that there are foreign ters’ though diere be a diversity of opinion among them, who hold all expenses consequential on an embargo, as particular averages. In this way, a person who has insured one species of property, can never be called on to make good a particular damage which may have happened to another, nor exposed to a loss not within the risk which he has assumed. On what pretence then, can an owner of a cargo call on its underwriter-, to make good any extra freight he may have paid for the carriage of it ? Pie does not undertake that the voyage shall be short or uninterrupted, but only that the goods shall eventually arrive safe ; and whether the transportation cost more or less, is a matter with which he has nothing to do. Whether the vessel encounter a tempest, or be embargoed in her way (if no abandonment be made during the detention) is to him of no consequence, so that the goods finally arrive, as was the case here, without damage, at their destined port, I am therefore for adopting the English rule in the case of an embargo, not on the ground of authority, the decision being posterior to the revolution, but as the most reasonable ; the most conformable to the understanding of the different classes of underwriters ; the best calculated to prevent confusion and embarrassment, and the most likely to throw upon each the loss which the particular subject insured by him, has sustained. Whether, therefore, the present plaintiffs were liable for freight or not, during the embargo, my opinion is, that they have no claim on the defendants, who underwrote their goods, for any part of it, and that judgment be rendered accordingly.