Caze v. Baltimore Insurance , 3 L. Ed. 370 ( 1813 )

11 U.S. 358 (1813) 7 Cranch 358

CAZE AND RICHAUD
v.
THE BALTIMORE INSURANCE COMPANY.

Supreme Court of United States.

February 20, 1813. February 24, 1813.

Absent ... . TODD, J.

HARPER, for Plaintiffs in error.

PINKNEY, Attorney General, contra.

STORY, J. delivered the opinion of the Court as follows:

The present action is brought to recover freight pro rata itineris, under the following circumstances:

The Plaintiffs were the owners of the ship Hamilton and cargo, and effected insurance of her cargo on a voyage from Bordeaux to New York. The sum of $11,000 was underwritten by the Defendants — the sum of $10,000 at Philadelphia, and the residue of the value of the cargo ($1986,) was left uninsured. During the voyage the ship and cargo were captured, carried into Halifax, and there condemned. The Plaintiffs abandoned to the underwriters and received payment for a total loss. An appeal from the sentence of condemnation was interposed and the sentence finally reversed, and the proceeds of the cargo, which had been previously sold by order of Court, were paid over to the underwriters in proportion to the sums underwritten by them respectively.

We are all of opinion that the Plaintiffs are not entitled to recover in the present action.

In the first place the Court are satisfied that, as between the insured and the underwriter on the cargo of a ship, the latter is in no case responsible for the payment of freight, whether there be an abandonment or not. It is a charge on the cargo against which he does not undertake to indemnify the owner; and if authority be necessary to support the position, it is fully borne out by the doctrine of lord Mansfield in Baillie v. Modigliani, Marshall, 728.

In the next place we are all of opinion that no freight whatsoever was, under the circumstances of this case, due. Freight, in general, is not due unless the voyage be performed. Here the ship and cargo never arrived at their port of destination, and of course the whole freight could not be due. Was a pro rata freight due? We think not. The whole class of cases resting on the authority of Luke v. Lyde (2 Burr. 882.) proceed on the ground that there is a voluntary acceptance of the goods themselves at an intermediate port; and not, as in the present case, a compulsive receipt from the hands of the admiralty after capture and condemnation, and ultimate restoration upon the appeal. There is, in our judgment, no equity to support such a claim; and although it receive countenance from some remarks incidentally thrown out in Baillie v. Modigliani, the current of more recent authority, as well as of principle, clearly points the other way.

It may be further added that as between the insured and the underwriter the existence of a lien on the cargo for freight does not vary the legal responsibility of the underwriter on such cargo after an abandonment.

The judgment of the Circuit Court is affirmed with costs.