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U.S. Supreme Court

Biays v. Chesapeake Insurance Company, 11 U.S. 7 Cranch 415 415 (1813)

Biays v. Chesapeake Insurance Company

11 U.S. (7 Cranch) 415




There cannot be a total loss of part of a cargo consisting of memorandum articles of only one species, such as hides.

Nor are the underwriters liable for salvage upon such articles, under the clause which authorizes the insured to labor and travel for the preservation of the cargo, unless perhaps in a case where the salvage may have prevented an actual total loss of the cargo.

This clause in the policy can only be understood to apply to the case of those losses or injuries for which the assured, if they had happened, would have been responsible.

Error to the Circuit Court for the District of Maryland in an action of covenant upon a policy of insurance on hides which by the memorandum in the policy are declared to be free from average unless general. The policy contains the usual stipulation "that in case of loss or damage, the assured shall labor, &c., for the preservation of the property, to the expenses of which the assurers will contribute." The voyage was to Amsterdam. The vessel arrived at a place called "Niew Diep," where, according to the usage of the trade, the hides were put into several lighters to be sent to Amsterdam. One of these lighters sunk, but some of the hides contained in it were afterwards fished up and saved by the people of the place, for which a salvage of $6,000 was allowed and paid. The rest were totally lost. This action was brought to recover for those totally lost, and for the salvage of those which were saved. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 416

On a case stated, the judgment of the court below was for the defendants; on which the plaintiff brought his writ of error. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 417

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

This is an insurance on hides, "warranted by the assured free from average, unless general." The declaration is for a total loss by perils of the seas, but it came out in evidence that 3,280 hides (the whole number insured being 14,565), were put on board of a lighter to be transported from the vessel to their place of destination; that the lighter in her passage to the shore was sunk, by which accident 789 of the hides of the value of $4,000 were totally lost, and the residue, to the number of 2,491, more were fished up and saved, at the cost of $6,000, which were paid by the plaintiff. The hides thus saved were delivered to the plaintiff's agent and sold on his account. The whole sum, insured on the cargo of hides by the defendants, was $25,000.

On this state of facts it has been contended that this insurance, although on perishable commodities, being in gross on a cargo consisting of a distinct number of articles, there may be a total loss as to some of them, although others be saved, and that for the part of the cargo thus totally lost the underwriters are liable, notwithstanding the agreement respecting what are generally called memorandum articles. In support of this position it is said that the only intention of the parties in coming to this agreement was to obviate disputes concerning losses arising from the perishable nature of the goods insured, but that as this loss happened in another way, and is total as to the portion of the property in question, it ought not to be considered as excluded by the memorandum. chanrobles.com-redchanrobles.com-red

Page 11 U. S. 418

Whatever may have been the motive to the introduction of this clause into policies of insurance, which was done as early as the year 1749, and most probably with the intention of protecting insurers against losses arising solely from a deterioration of the article by its own perishable quality, or whatever ambiguity may once have existed from the term average being used in different senses -- that is, as signifying a contribution to a general loss and also a particular or partial injury falling on the subject insured -- it is well understood at the present day with respect to such articles that underwriters are free from all partial losses of every kind which do not arise from a contribution towards a general average. It only remains, then, to examine, and so the question has properly been treated at bar, whether the hides which were sunk and not reclaimed constituted a total or partial loss within the meaning of this policy. It has been considered as total by the counsel of the assured, but the Court cannot perceive any ground for treating it in that way, inasmuch as out of many thousand hides which were on board, not quite eight hundred were lost, making in point of value somewhat less than one sixth part of the sum insured by this policy. If there were no memorandum in the way, and the plaintiff had gone on to recover, as in that case he might have done, it is perceived at once that he must have had judgment only for a partial loss, which would have been equivalent to the injury actually sustained. But without having recourse to any reasoning on the subject, the proposition appears too self-evident not to command universal assent that when only a part of a cargo, consisting all of the same kind of articles, is lost in any way whatever, and the residue, which in this case amounts to much the greatest part, arrives in safety at its port of destination, the loss cannot but be partial, and that this must forever be so as long as a part continues to be less than the whole. This loss, then, being a particular loss only, and not resulting from a general average, the Court is of opinion that the defendants are not liable for it.

Having disposed of this point, it would seem as if much difficulty could not occur in deciding the other question which has been made in this cause, and that is whether the assured is not entitled to recover the chanrobles.com-redchanrobles.com-red

Page 11 U. S. 419

expenses which he was put to in saving part of the hides which had sunk.

This liability is supposed to result from that clause in the policy which authorizes the assured,

"in case of any loss or damage, to sue labor and travel for, in, and about the defense, safeguard, and recovery of the goods or any part thereof, to the charges whereof the assurers will contribute according to the amount of the sum insured."

If this clause be construed with reference to what is most evidently its subject matter -- that is, a loss within the policy and in connection with other parts of the instrument, it seems impossible to misunderstand it, or that it should receive so extensive an application as the plaintiff is desirous of giving to it. The parties certainly meant to apply it only to the case of those losses or injuries for which the assurers, if they had happened, would have been responsible.

Having in such cases only an interest in rescuing or relieving the property, it is reasonable that then only they should defray the charges incurred by an effort made for that purpose; but when a loss takes place which cannot be thrown on them, it would require a much stronger and more explicit stipulation than we find in the policy to render them liable to contribute to such expenses. If a cargo be insured for a long voyage against sea risks only and a capture intervene the very day after the vessel leaves port, it is very clear that the underwriter is not only not liable for such a loss, but that he derives an advantage from it, as his risk may be terminated thereby, and the whole premium be earned, and yet if the construction now endeavored to be put on this clause should prevail, all the expenses of claiming a property, in which he had no interest, and which if condemned is a matter of indifference to him, and all the costs of pursuing it through an almost endless litigation, would be thrown, whether the pursuit were successful or otherwise, or an insurer who had taken care to restrict his liability to losses by perils of the sea only. The Court cannot subscribe to such an interpretation when a more natural, rational, and obvious one, and that without departing from the letter of the instrument, presents itself, which is that this clause can never apply but in such cases as would, if they happen, be losses (either partial or total) within the meaning chanrobles.com-redchanrobles.com-red

Page 11 U. S. 420

of the policy.

We are therefore of opinion that the underwriters not being answerable for the principal loss in this case, they cannot be so for the subsequent expenses which were incurred in recovering the property.

The judgment of the court below is affirmed with costs.