« EelmineJätka »
HARPER, for the Plaintiff in error; contended,
1st. That the landing at the Lazaretto was not a MÁRINE landing in safety at Leghorn, within the meaning of the Ins. co. policy.
2d. That the Plaintiff is not prevented, by the warranty against particular average, from recovering the amount of the ransom paid.
1. The goods were not landed in safety at Leghorn. They were landed at the Lazaretto, which is no part of the city of Leghorn. The landing contemplated by the policy was at the city-the place where the goods were to find a market; and not merely a landing at the port. The voyage as to the ship might terminate at the port, but the goods were to go to the city, and be landed in safety. After having performed quarantine at the Lazaretto, they were to be re-shipped into lighters and carried to the city.
But if the landing at the Lazaretto be a landing at Leghorn, yet they were not landed in safety within the meaning of the policy. It is natural to suppose that the parties meant such a landing as would put the cargo into the possession and under the control of the consignee. But while it was at the Lazaretto, it was subject to the orders of the master, not of the consignee. It was still liable for freight, and although it is said to be part of the usage of the trade, that the freight is earned by the delivery at the Lazaretto, yet it is not payable until the termination of the quarantine. The Lazaretto is a mere substitute for the ship as a place in which to perform the quarantine. If it had remained on board the vessel, it would unquestionably have been at the risk of the underwriters. The landing was for their benefit inasmuch as the goods were safer on shore than in the ship.
The seizure was a detention of princes, and until the goods were ransomed, they were lost. 1, Marshall, 269, 176, Waples v. Eames, id. 269, 181, Pelly v. Roy. Ex. Assur.
2. Notwithstanding the warranty against particular
average, the Plaintiff may recover upon the clause of
thic policy authorizing him to labor and travel for the MAKINE preservation of the property, to the expense whereof Ins. co. the underwriters promise to contribute according to the
rate of the sum insured. The ransom was an expense incurred to save the residue and prevent a total loss, for which the underwriters would have been liable.
JONES and PINKNEY, contra.
1. The voyage was ended by the landing of the goods at the Lazaretto. The policy is satisfied if they are landed at the port of Leghorn. When the name of a place is used in a policy it means the port, although Leghorn is a city, yet the port is also called Leghorn. Wien a place is named as the terminus of the voyage, it means the usual place to which ships come to unlade. It does not always mean the caput portus. It sometimes means the house of general receipt. Doubtful expressions are to be construed in favor of the underwriters. 1, Bur. 318, 319, Tierney v. Etherington, cited by lord Mansfield in the Bank-Saul case of Pelly v. Roy. Ex. Assur. 1, Marshall, 250, 251. Hargrave's Luro Tracts, 46. Hales Treatise de portubus Maris, ch. 2. p, 56. The termination of the voyage, in fact and in law, is the landing of the goods at the usual place of landing, at the ultimate port of destination according to the usage of that trade. The usage of the trade is all important. The parties are bound to know it. It furms part of their contract. It may control and modify a warranty, and illustrate the termination of the voyage. The case states that the freight was earned by delivery at the Lazaretto-the duties had accrued to the Etrurian government—the transportation from thence to the city would have been at the risk and expense of the consignee or the owner. It was also a place where the goods might be sold by samples : All these circumstances show that the voyage was ended. The general rule is that if the insured undertakes to transport the goods, the underwriters are discharged. 1, Marshall, 165, 219, Sparrow v. Caruthers. id. 166, 253, Rucker v. Lond. Assur. id. 167, 254, Hurry v. Roy. Ex. Assur. The lien for the freight depends either upon the agreement of the parties on the municipal Jaw of the place; it does not affect the question respecting the
termination of the voyage. In the cases of Tierney v. Etherington and Pelly v. Roy. Ex. Assur. the voyage confessedly was not terminated. The government of MARINE Leghorn receives the cargo at the Lazaretto as the Ins. co. agent of the owner or consignee and holds it for his benfit; it is entered on the books of the Lazaretto in the name of the ship, the master and the consignee, if known.
The policy was never construed to undertake that the consignee should have the unlimited control over the cargo after it was landed. But in this case it was under his control ; not absolute, but modified by the municipal government of the place. The government had a right so to modify it. Thus in London, some goods must be deposited in the kings warehouse. So also in France, the emperor took it into his head to turn merchant and monopolize all the tobaceo, and ordered it to be stored in his warehouses. In all countries the power of the consignee is in a certain degree modified. He had a power to take samples and sell by them.
It is said also that the goods were to be landed at the place of market. But if the place of market means the place where tlie goods may be sold, and where they are under the control of the consigneemthe Lazaretto was that place. The Lazaretto was an appendage to Leghorn, as the Piroum was to Athens. Suppose the voyage had been from Carthage to Athens, landing at the Pirocum would have terminated the voyage. So would a voyage from the West Indies to London terminate at the West India dock; yet something must be previously done by a consignee at the dock before he can have the complete control over the goods in the wharehouses of the dock company. So in the port of Baltimore, some goods must be delivered at the Lazaretto. And if a cargo should be delivered at Fell's Point (which is out of the city) under a policy on a voyage to Baltimore, the policy would be discharged. The cargo would have been brought to its market.
In the case of Waples v. Eames, the ship was not 244 hours moored in good safety. There was no opportunity to unlade. But here the goods were actually un
GRACIE laden. In the Bank Saul case there was no question
whether the voyage was ended. The ship was in itinere. MARINE The only question was whether, by the usage of the INS. co. trade, the goods might be unladen for safe keeping
while the vessel was repairing.
2. It was only a partial loss, which is excepted from the policy by the manuscript warranty against particular average; which means partial loss.
Although it would have been a total loss if abandonment had been offered while the goods were detained, yet as no such offer was made, it is now only a partial loss.
Those parts of the policy which are in manuscript are to be particularly regarded, as they contro the printed form. 1, Marshall, 229, 305. Park, 4, 5, 60. À, East, 130.
Ransom is only a partial loss. It was never considered as coming under the clause of laboring and travelling for the interest of all concerned. If it can come under that clause, then that clause is so far repealed by the express manuscript warranty, that the underwriters shall not be liable for a partial loss. If the French general had taken a part of the goods, there could have been no question that the underwriters would not have been liable the ransom represents the part which might have been so taken. The clause respecting the expenses of labor and travel was first introduced in 1741, to remove a doubt whether the insured could so labor and travel without losing his right to abandom; but he is not bound to labor and travel, nor to ransom. 1, Marshall, 234, 488. 3, Bur. 1734. Doug. 610.
But if the underwriters are liable under that clause of the policy, they are only liable in the proportion which the loss bears to the amount saved.
HARPER, in reply.
1. The first point depends upon the usage of the trade. We
say that the usage merely substitutes the Lazaretto for the ship; like the cases of the store ship at Gibral
ter, and the Bank Saul at Canton. The principle of all GRACIE these cases is substitution. The goods were not in the power of the consignee. He could only make an exe- MAVINE cutory contract. He Irad no more power over the goods INS. co. than if they had been upon the ocean.
The lien for the freight continues until the end of the quarantine, when it is to be paid, and not before, because the master has not until then done all that the contract requires.
2. It is said that the exception of partial loss operates upon every part of the policy ; not merely upon its general provisions, but upon every particular provision, however contradictory it may be to that exception. But the two clauses, viz: the engagement to pay for labor and travel, and the warranty against partial losses, may stand together. The latter means warranted free from all partial lossess except such as arise from labor and travel for the preservation of the gods. The blanks in the printed form of the clause respecting labor and travel were filled in manuscript, as well as the warranty against particular average, and therefore are to be equally regarded. That circumstance also shows that the parties intended that both clauses should stand, and have effect. The ransom was as inuch the means of saving the underwriters from a total loss, as if it had been strictly labor and travel.
Feb. 19th....MARSHALL, Ch. J. after stating the case, delivered the opinion of the Court as follows:
The Plaintiff in error contends,
1st. That the placing of the goods in the Lazaretto was not «a landing in safety at Leghorn," and a termination of the voyage.
2d. If the loss happened during the continuance of the risk, the Plaintiff is not prevented from recovering, by the warranty in the policy against particular average.
In support of his first point he contends that “ Leg-