Curia, per
Savage, Ch. J.
The question first in or-der, is, had the plaintiff any insurable interest in the ves[329]*329sel ? The insurance is upon the body, tackle, apparel and other furniture of the good ship called the William and Jane. Afterwards is the following clause : “ The above insurance is hereby declared to be on amount disbursed for repairs of the said vessel at Newport; to which place she returned in distress, and is against total loss only.”
The plaintiff expended in repairs at Newport, $8,500;
I am bound, therefore, to conclude, that the plaintiff had no insurable interest in the vessel. The repairs had become part of the vessel; and having no lien for the money expended, he had no insurable interest in that,
[331]*331But suppose it were otherwise, and his interest were admitted : it is contended the defendants are not liable ; the insurance being against total loss only.
In the case of Murray v. Hatch, (6 Mass. Rep. 465,) the policy was in the usual form, except that at the bottom was a memorandum in these words : This risk is against a total loss only. The vessel was cast ashore; and though she might have been got off, and repaired for less than half her value, the master having no funds, sold her. It was held that the insurer was not liable. Seioall, Justice, who delivered the opinion of the court, considered this memorandum a restriction to some purpose. It was considered as having the same effect as exceptions and warranties against particular averages and partial losses, in what is called the common memorandum. The general principle in cases on such exceptions and warranties is, that the insurer is liable as for a total loss, when the subject matter is destroyed, or when the voyage is defeated and lost. In Nelson v. The Col. Ins. Co. (3 Caines’ Rep. 108, 110,) the insurance was on corn, with the usual memorandum. The court say, so long as the corn physically existed, there could not be a total loss. (See also 14 John. 138.)
Whether there was, in this case, a technical total loss ; whether an abandonment was necessary ; or if so, whether it was made in due season, are questions not neccessary to be discussed, upon the view which I have taken.
The only remaining question is, whether the plaintiff is entitled to recover as upon a wager policy ? In these policies, the person insured is not required to have any interest in the thing insured. Wagering policies are mere games of hazard, like the casting of a die. (Doug. 470.) It is to be regretted, that wagers ever were allowed to be the subject of an action. Wagering policies were, however, lawful in England, before they were prohibited by statute. They are unlawful in Massachusetts. But they have been recognized by this court.
In the case of Juhel v. Church, (2 John. Cas. 333,) in the body of the policy, ‡ 12,000 were insured on goods for [332]*332the voyage ; but by a memorandum in writing, it was declared to be on profits. No proof of interest was to be required, and the goods were warranted free from average and without benefit of salvage. The ship returned to New-York in ballast, finding no goods on the Spanish main, whither, and back, she was insured. Kent, Justice, says, “ I consider this as a wager policy. It was betting on the return of the ship.” In that case, it was made a point, whether a wager policy was void.
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Curia, per
Savage, Ch. J.
The question first in or-der, is, had the plaintiff any insurable interest in the ves[329]*329sel ? The insurance is upon the body, tackle, apparel and other furniture of the good ship called the William and Jane. Afterwards is the following clause : “ The above insurance is hereby declared to be on amount disbursed for repairs of the said vessel at Newport; to which place she returned in distress, and is against total loss only.”
The plaintiff expended in repairs at Newport, $8,500;
I am bound, therefore, to conclude, that the plaintiff had no insurable interest in the vessel. The repairs had become part of the vessel; and having no lien for the money expended, he had no insurable interest in that,
[331]*331But suppose it were otherwise, and his interest were admitted : it is contended the defendants are not liable ; the insurance being against total loss only.
In the case of Murray v. Hatch, (6 Mass. Rep. 465,) the policy was in the usual form, except that at the bottom was a memorandum in these words : This risk is against a total loss only. The vessel was cast ashore; and though she might have been got off, and repaired for less than half her value, the master having no funds, sold her. It was held that the insurer was not liable. Seioall, Justice, who delivered the opinion of the court, considered this memorandum a restriction to some purpose. It was considered as having the same effect as exceptions and warranties against particular averages and partial losses, in what is called the common memorandum. The general principle in cases on such exceptions and warranties is, that the insurer is liable as for a total loss, when the subject matter is destroyed, or when the voyage is defeated and lost. In Nelson v. The Col. Ins. Co. (3 Caines’ Rep. 108, 110,) the insurance was on corn, with the usual memorandum. The court say, so long as the corn physically existed, there could not be a total loss. (See also 14 John. 138.)
Whether there was, in this case, a technical total loss ; whether an abandonment was necessary ; or if so, whether it was made in due season, are questions not neccessary to be discussed, upon the view which I have taken.
The only remaining question is, whether the plaintiff is entitled to recover as upon a wager policy ? In these policies, the person insured is not required to have any interest in the thing insured. Wagering policies are mere games of hazard, like the casting of a die. (Doug. 470.) It is to be regretted, that wagers ever were allowed to be the subject of an action. Wagering policies were, however, lawful in England, before they were prohibited by statute. They are unlawful in Massachusetts. But they have been recognized by this court.
In the case of Juhel v. Church, (2 John. Cas. 333,) in the body of the policy, ‡ 12,000 were insured on goods for [332]*332the voyage ; but by a memorandum in writing, it was declared to be on profits. No proof of interest was to be required, and the goods were warranted free from average and without benefit of salvage. The ship returned to New-York in ballast, finding no goods on the Spanish main, whither, and back, she was insured. Kent, Justice, says, “ I consider this as a wager policy. It was betting on the return of the ship.” In that case, it was made a point, whether a wager policy was void. Kent, Justice, says, “ But supposing the policy to be good, (and I wish not to be understood as intimating any opinion to the contrary,) I am equally of opinion that the plaintiffs are not entitled to recover.” In Clendining v. Church, (3 Caines’ Rep. 141,) the court considered the policy in the light of a wager policy.
The averment of interest is not necessary, in a wager policy, nor in a policy upon interest; (2 East, 392;) and may therefore be considered surplusage.
It is then settled, that a wager policy is a bet upon the arrival of the ship. The perils which happened during the voyage are immaterial. Her arrival determines the bet. Kent, Ch. Justice, in giving the opinion of the court, in Clendining v. Church, says, “ In wager policies, the loss should be absolutely and finally total; for otherwise, a temporary embargo of only one day, without any other interruption of the voyage, would be a total loss, although the vessel should have arrived in safety.”
In whatever light, therefore, this case is considered, it seems to me, the plaintiff cannot recover.
I am of opinion that judgment be given for the defendants.
Judgment for the defendants*
The amount stated ante, 320, includes some items of disbursement at Newport beside repairs.