Workman,
on an application for a re-hearing. The defendants and appellants respectfully pray for a re-hearing of this cause.
We submit, in the first place, that the weight of authority is decidedly in our favor. The only case really against us is, that of Davy vs. Milford. The principle on which it was determined, is not by any means supported by the case of Hedbcrg r.?, Pearson. The [738]*738insurance, in the last case, was declared to be on fifty four hogsheads of sugar, warranted free from particular average. The ship was stranded and bilged, but every one of the ¡fifty-four hogsheads of sugar which the assured had on board, was saved, and in every hogshead there were some loaves of sugar, although by far the greater part had been washed out. A hogshead usually contains about 120 loaves, and out of the whole cargo seventy-eight loaves were saved dry, and forty-five loaves wetted by the sea. The plaintiff contended, on the authority of Davy vs. Milford, that he was entitled to recover, but the jury were clearly of opinion that this was an average or partial loss, such as was intended by the warranty, and found a verdict generally for the defendant. On a motion for a new trial, the court held, “ that inasmuch as it could not be said that none of the sugar was saved, they could not draw any measure of a proportion to be saved, which should be compatible with a total loss: if they should begin so to do, they could not see where they were to stop : even if this were a fit case for the consideration of the court, they thought the jury had rightly decided it In Davy vs. Milford [739]*739there was a clear line to be taken, for some of the bundles of flax never came on shore,” and the new trial was refused. 1 Taunton, 154.
The principle on which the decision in Davy vs. Milford is founded, is that the subject was there capable of division ; the flax being packed in distinct bundles, some of which were lost or destroyed ; but were not the loaves of sugar, in these fifty-four hogsheads, as distinct from each other, as susceptible of division, at bundles of flax or mules? Every ascertainable portion of a cargo, however packed or stowed, is a distinct part of that cargo. A ton or a hundred weight of sugar, of rice, corn, salt, or the like, forms a distinct part or portion of the cargo to which it belongs, whether it be put up in bags or barrels, or stowed in bulk. The portion of a cargo of this kind, stowed in bulk, which may be brought safe to port, can be as welt ascertained, by means of weighing or admeasurement, for the purpose of estimating the value of that part of it which may have been lost, as if the cargo were put up in separate packages. Now, if the princi pie laid down in Davy vs. Milford is correct, the loss of such a part, however small, must he a total loss of that part, for which tb< insurers [740]*740would be liable, notwithstanding the exclusion of all partial loss, or the still clearer aru^ s^ronger stipulation of the words “ insured only against a total loss/’ If the insurers object, and say. “ There is but a part of the caigo lost, and we are warranted against all partial loss,” they are answered, ik You are quite mistaken; this is not truly and properly a partial loss, it is a total loss of the part lost ; for each ascertainable part of the tiling insured, forms by itself a distinct and separate totality of the whole, and the loss of it is a total loss pro tanto", for which, in spite of your ingenious memorandum, you must be responsible.” Such must be, in substance, the logic and the language of our adversaries, if they will follow up consistently the doctrine of lord Ellenborough, in Davy vs. Milford. The distinction between separate bundles, bales, boxes, or individual articles, and any other ascertainable parts or portions of an insured cargo, has not, in the correct application of that doctrine, any foundation in justice, reason, or expediency, nor in the obvious meaning of the words used in the policies of insurance. Wherefore the whole memorandum will be a nullity, and every possible exception. [741]*741however expressed, of partial loss, utterly „ ' void. Let us suppose a cargo of 100 tons of ice, put up in a hundred distinct parcels by means of coarse cloths or blankets, to be insured from Boston to New-Orleans, against total loss only, or free from particular average. The cargo may be valued, in order to cover die profits which the assured hopes to make, at ten or twelve cents a pound, or $20,000 for the whole; ice has been sometimes dearer in this city. If the insured is lucky enough to lose fifty of these parcels, by the process of íhawáng, and pump out their contents, he will be entitled, on the principle laid down in Davy vs. Milford, to recover as for a total loss of one half of his valued cargo, and thus make an excellent voyage, and profit very handsomely by his loss, independently of what he may receive for the portion of the cargo brought safely to port. But if this ice should he stowed in hogsheads, in packages of twenty to each hogshead, then if but a pound of ice should come to port in each hogshead, the insurer, on the principle of Hedberg vs. Pear son, could recover nothing. His fate would be no better if the cargo were stowed in bulk, and a single ton of it should^ arrive safely. [742]*742In the one case, the loss of only half the cargo ii. . -it would be adjudged to be not a partial but a total loss of so much; and in the other cases, the l°ss of ninety-nine hundredths of the wkole cargo would not be a total loss of any thing, but a mere partial loss, for which the insurer would not be liable. Ou w hat is this extraordinary distinction founded ? Not on precedent, as lord Ellen borough himself admits, when he first established it in the case of Davy vs. Milford. If it was on reason, as his lordship intimates, he does not condescend to tell us what that reason was, so that his decision rests on the mere authority of the court of which he was a member; an authority which, in these states, has now no binding force. This is certainly clear; if the * principle of Davy vs. Milford be right, the principle of Hedberg vs. Pearson is wrong; and so are all the decisions in the books against the right of the assured to recover for partial loss on memorandum articles, in every case where the amount of the loss could be distinctly ascertained; and that would be in ninety-nine cases out of a hundred.
The inconsistency of these two decisions is manifest in every sentence. Where was the [743]*743difficulty in the sugar case, of distinguishing . „ , the part of the sugar saved, from the part that was lost, the pretended difficulty on which it was attempted to draw a distinction between the two cases ? The 54 hogsheads contained 120 loaves of sugar each, making in all 6480 loaves; of these, 123 loaves were saved in kind, which, deducted from the whole number insured, leaves 6357 loaves lost. Here was a clearly ascertained, absolute loss of upwards of ninety-eight per cent, of the whole cargo; and yet the court correctly decided that it amounted not to a total loss of that cargo, nor to a total loss of the part lost, but to a partial loss; for which, from the stipulation in the memorandum, the underwriter was exonerated: although, in Davy vs. Milford, the same court had decided that a loss of only five sixths of a cargo of flax, insured in the same manner, was a total loss of the part so lost. The only point really decided in Hedberg vs.
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Workman,
on an application for a re-hearing. The defendants and appellants respectfully pray for a re-hearing of this cause.
We submit, in the first place, that the weight of authority is decidedly in our favor. The only case really against us is, that of Davy vs. Milford. The principle on which it was determined, is not by any means supported by the case of Hedbcrg r.?, Pearson. The [738]*738insurance, in the last case, was declared to be on fifty four hogsheads of sugar, warranted free from particular average. The ship was stranded and bilged, but every one of the ¡fifty-four hogsheads of sugar which the assured had on board, was saved, and in every hogshead there were some loaves of sugar, although by far the greater part had been washed out. A hogshead usually contains about 120 loaves, and out of the whole cargo seventy-eight loaves were saved dry, and forty-five loaves wetted by the sea. The plaintiff contended, on the authority of Davy vs. Milford, that he was entitled to recover, but the jury were clearly of opinion that this was an average or partial loss, such as was intended by the warranty, and found a verdict generally for the defendant. On a motion for a new trial, the court held, “ that inasmuch as it could not be said that none of the sugar was saved, they could not draw any measure of a proportion to be saved, which should be compatible with a total loss: if they should begin so to do, they could not see where they were to stop : even if this were a fit case for the consideration of the court, they thought the jury had rightly decided it In Davy vs. Milford [739]*739there was a clear line to be taken, for some of the bundles of flax never came on shore,” and the new trial was refused. 1 Taunton, 154.
The principle on which the decision in Davy vs. Milford is founded, is that the subject was there capable of division ; the flax being packed in distinct bundles, some of which were lost or destroyed ; but were not the loaves of sugar, in these fifty-four hogsheads, as distinct from each other, as susceptible of division, at bundles of flax or mules? Every ascertainable portion of a cargo, however packed or stowed, is a distinct part of that cargo. A ton or a hundred weight of sugar, of rice, corn, salt, or the like, forms a distinct part or portion of the cargo to which it belongs, whether it be put up in bags or barrels, or stowed in bulk. The portion of a cargo of this kind, stowed in bulk, which may be brought safe to port, can be as welt ascertained, by means of weighing or admeasurement, for the purpose of estimating the value of that part of it which may have been lost, as if the cargo were put up in separate packages. Now, if the princi pie laid down in Davy vs. Milford is correct, the loss of such a part, however small, must he a total loss of that part, for which tb< insurers [740]*740would be liable, notwithstanding the exclusion of all partial loss, or the still clearer aru^ s^ronger stipulation of the words “ insured only against a total loss/’ If the insurers object, and say. “ There is but a part of the caigo lost, and we are warranted against all partial loss,” they are answered, ik You are quite mistaken; this is not truly and properly a partial loss, it is a total loss of the part lost ; for each ascertainable part of the tiling insured, forms by itself a distinct and separate totality of the whole, and the loss of it is a total loss pro tanto", for which, in spite of your ingenious memorandum, you must be responsible.” Such must be, in substance, the logic and the language of our adversaries, if they will follow up consistently the doctrine of lord Ellenborough, in Davy vs. Milford. The distinction between separate bundles, bales, boxes, or individual articles, and any other ascertainable parts or portions of an insured cargo, has not, in the correct application of that doctrine, any foundation in justice, reason, or expediency, nor in the obvious meaning of the words used in the policies of insurance. Wherefore the whole memorandum will be a nullity, and every possible exception. [741]*741however expressed, of partial loss, utterly „ ' void. Let us suppose a cargo of 100 tons of ice, put up in a hundred distinct parcels by means of coarse cloths or blankets, to be insured from Boston to New-Orleans, against total loss only, or free from particular average. The cargo may be valued, in order to cover die profits which the assured hopes to make, at ten or twelve cents a pound, or $20,000 for the whole; ice has been sometimes dearer in this city. If the insured is lucky enough to lose fifty of these parcels, by the process of íhawáng, and pump out their contents, he will be entitled, on the principle laid down in Davy vs. Milford, to recover as for a total loss of one half of his valued cargo, and thus make an excellent voyage, and profit very handsomely by his loss, independently of what he may receive for the portion of the cargo brought safely to port. But if this ice should he stowed in hogsheads, in packages of twenty to each hogshead, then if but a pound of ice should come to port in each hogshead, the insurer, on the principle of Hedberg vs. Pear son, could recover nothing. His fate would be no better if the cargo were stowed in bulk, and a single ton of it should^ arrive safely. [742]*742In the one case, the loss of only half the cargo ii. . -it would be adjudged to be not a partial but a total loss of so much; and in the other cases, the l°ss of ninety-nine hundredths of the wkole cargo would not be a total loss of any thing, but a mere partial loss, for which the insurer would not be liable. Ou w hat is this extraordinary distinction founded ? Not on precedent, as lord Ellen borough himself admits, when he first established it in the case of Davy vs. Milford. If it was on reason, as his lordship intimates, he does not condescend to tell us what that reason was, so that his decision rests on the mere authority of the court of which he was a member; an authority which, in these states, has now no binding force. This is certainly clear; if the * principle of Davy vs. Milford be right, the principle of Hedberg vs. Pearson is wrong; and so are all the decisions in the books against the right of the assured to recover for partial loss on memorandum articles, in every case where the amount of the loss could be distinctly ascertained; and that would be in ninety-nine cases out of a hundred.
The inconsistency of these two decisions is manifest in every sentence. Where was the [743]*743difficulty in the sugar case, of distinguishing . „ , the part of the sugar saved, from the part that was lost, the pretended difficulty on which it was attempted to draw a distinction between the two cases ? The 54 hogsheads contained 120 loaves of sugar each, making in all 6480 loaves; of these, 123 loaves were saved in kind, which, deducted from the whole number insured, leaves 6357 loaves lost. Here was a clearly ascertained, absolute loss of upwards of ninety-eight per cent, of the whole cargo; and yet the court correctly decided that it amounted not to a total loss of that cargo, nor to a total loss of the part lost, but to a partial loss; for which, from the stipulation in the memorandum, the underwriter was exonerated: although, in Davy vs. Milford, the same court had decided that a loss of only five sixths of a cargo of flax, insured in the same manner, was a total loss of the part so lost. The only point really decided in Hedberg vs. Pearson, is directly adverse to the decision in Davy vs. Milford. The remark of chief justice Gibbs, at the conclusion of his opinion, may have been made inadvertently, or from respect to the authority or memory of his predecessor. There is then [744]*744but one case in the English books by which ® J the verdict for the plaintiffs can be supported : and I beg leave to repeat that all the American decisions, without exception, as the plaintiffs’ counsel himself has shown or admitted, are on the opposite side; and that this court has held that the contract of insurance is understood here as in the other maritime cities of the United States. On these authorities our contracts have been entered into; by these they ought to be interpreted and decided.
But the words total loss are sometimes considered to embrace the loss of only a half or upwards of the thing insured : why then should they not be extended to any and every partial loss of a distinct part, even of memorandum articles ? Because the memorandum was introduced, and has been constantly used for the express purpose of avoiding and excluding that extraordinary and sometimes pernicious interpretation. In the first case, this construction, extraordinary as it seems, is supported by numerous judical decisions, and long established usage; in the second case, a different construction, that for which we contend, is supported by authorities of the same kind, equally valid and powerful.
[745]*745With respect to the premium paid m the r present case, there is no evidence, and nothing but the assertion of counsel, to show that it was exorbitant, in proportion to the risks insured against. These risks were,
1. The loss or stranding of the schooner; a risk known to be great for all vessels trading to the har-harbors of the neighboring part oí the Mexican coast, where they are much exposed to squalls and gales from the north.
2. Loss by capture: a considerable risk for vessels of every nation, trading between Mexican and Spanish ports. They are liable to be seized, and are often seized, by the armed cruizers of both belligerents, on suspicion of having enemies, or enemy’s property on board. They are also liable to be seized, on the same pretexts, in the very ports to which they go.
3. The total loss of the cargo of mules: a risk which was in this instance within an ace of happening; a risk of which the nature and extent may be pretty well ascertained from the evidence in this cause. If the chains, by which the mules on deck were held, had been as bad, or as badly fastened as those of the mules in the hold, the whole cargo must have [746]*746been lost. So far was the premium of three per . r ... cent, from being high,according tothe plaintiffs’ present construction of the policy .that I am per-sua^ed no intelligent and prudent underwriter would enter into such a contract for double that consideration. If each mule killed or thrown overboard was to be paid for separately by the insurer, it would be very extraordinary indeed if he did not lose more than the amount of his premium in every such voyage, however well conducted and fortunate.
The intention of the parties, as far as it can be collected from the terms of the policy, and there is no other evidence of their intention on record, was evidently not that each individual mule should be insured against a total loss. The insurance was effected on a cargo, on one entire thing by that name. The valuation was made on that cargo, in the same manner. If the intention of the insured had been, as the court supposes, nothing would have been more easy for them than to have expressed that intention, by words such as these, “ Mules on and under deck are insured each against a total loss, or the stranding of the vessel.” The plaintiffs have not to countenance this supposition of their intention, even [747]*747the presumption which might have arisen, if the valuation had been at so much per head for each mule. The valuation like the insurance, is on the entire cargo insured, and nothing else. Consider once more the language of this policy : '•'■Mules on and under deck [insured]: against stranding or a total loss.’’’’ It seems manifest from these words, that the real intention of the underwriters was to insure the cargo only against stranding or the total loss of the vessel; otherwise we must admit, agreeably to the fair grammatical construction of the sentence, that they meant to insure the mules against the stranding as w ell as the total loss of those mules; which would be an absurd expression. Stranding can be predicated of vessels only ; and in this stipulation, total loss is applicable to no other subject than that to which stranding may be properly applied. Nothing then was insured but the safe arrival of the vessel.
But would the premium, it is asked, have been paid if the condition had been understood by the insured to be, that if only one of the mules he put on board, reached the port of destination, he was to sustain the loss t Why not, when he considered all the other [748]*748risks insured against, by which the vessel or ' the voyage might be totally lost ? In the case of Hedberg vs. Pearson, on which the plaintiffs rely so much, there were only 123 loaves of sugar saved out of a cargo of 6480 loaves; very little more than in the proportion of one mule to the seventy-four mules of which the plaintiffs’ cargo consisted ; and yet the assured were obliged to sustain the loss of all the rest of the sugar, great and distinctly ascertained as that loss wras admitted to be. If total means the whole, and it is acknowledged to have that meaning literally and invariably, when applied to memorandum articles, then it must be quite as incorrect to call the loss of seventy-three seventy-fourths, as it would be to call the loss of one seventy-fourth of an insured cargo, a total loss of that cargo.
Considering the novelty of this question in Louisiana, its general importance to commerce, and that the judgment of this court upon it differs from all thejudgments rendered in similar cases by the tribunals of the other maritime states of the union, the defendants respectfully solicit a further investigation of the subject, and that it may not be finally decided till the court is full.