Bond v. McKinnon

Bigelow, C. J.

The interpretation of the contract into which the defendant entered is too clear to admit of debate. He took on himself all risk of injury to or loss of the chronometer, except such as might be caused by the act of God, perils of the seas and accidental fires. If it be admitted that under this exception the consequences of the perils therein specified, remote as well as immediate, were to fall on the plaintiffs, still it is clear that of these, all liens or claims for salvage, general average or arising from other causes, were expressly excepted out of the exception, and were to be borne by the defendant. This is the only construction which gives any effect to the stipulation that the defendant is to return the chronometer “free from all claims or liens for salvage or'general average, and all other claims or liens however arising.” If this clause does not apply to the excepted risks, the main portion of it can have no operation whatever, because claims or liens for' salvage and general average can arise solely from the occurrence of the risks which are included within the exceptions. This shows the intent of the parties to have been that no claim or lien such as is specified in the contract, though remotely attributable to the excepted perils, should release the defendant from his obligation to return the chronom eter. As it appears from the evidence that the chronometer io neither injured nor lost by means of any of the excepted perils, but is in good order and condition, being retained in the possession of a third party under a claim or lien for salvage, the conclusion is unavoidable that the defendant is liable in this action.

The counsel for the defendant founds his argument on a fallacy. The abandonment of the vessel to the underwriters and a consequent constructive loss of that subject of insurance, have no bearing whatever on the rights of the parties under this contract. The loss of the vessel by perils of the seas did not necessarily involve the loss of the chronometer. Under a policy of insurance on the latter, no recovery for a loss could be had on the facts disclosed at the trial if the policy contained a clause that the article was free from any claim or lien for salvage which would include an allowance to salvors for saving the arti cle from loss. 2 Phil. Ins. § 1489. The two subjects of insurance would be regarded as distinct and independent of each other, and the rights of their respective owners would depend entirely on the terms of the contracts relating to each.

Judgment for the plaintiffs.