The opinion of the court was delivered by
Gibson, C. J.
A considerable part of the argument on the part of the defendants,- has been to prove that the perils to which specie is exposed, are as numerous and as imminent as those which are incident to goods. It is sufficient, that the parties themselves thought otherwise, and provided for the supposed difference accordingly. That they intended to do so, can scarcely be doubted; else the clause by which, if goods were shipped instead of specie, the lender was “ to be liable to average and entitled to salvage as if it were a specie risk,” would have been nugatory. They undoubtedly meant something by it; and I am unable to see how the lender is to be precluded by any supposed principle of equitable compromise without regard to the terms of the contract, from recovering more than the value of the property saved; for that would be the legal effect of leaving the clause entirely out of the.contract. It seems to be held both by the English and the American courts, that the lender takes the risk only of a total loss; but that any part of the property which arrives, goes to the lender, without regard to whether it be great or whether it be small, so that it does not exceed in value the amount of the loan, has never, I believe, been doubted anywhere. Nor can I see, that if the parties had intended to provide specifically for cases like the present, the lender would have stipulated in terms, against liability for losses from what has, in the argument, been called sea damage. Every profession or business necessarily has its technical language, because having the signification of its terms fixed beforehand by usage and common consent, they not only express the meaning of those who use them with more precision, but are more comprehensive and less liable to misconstruction than popular terms, that have not the same advantage in respect of certainty. -It seems, as I have already said, that the lender is not liable to average by the principles of the English law; and it is therefore usual to dispose of the subject by a special clause in the contract. But a stipulation that he should take on himself the ordinary risks in a policy of insurance, that of deterioration by the contact of sea-water excepted, would have been too narrow to answer the whole intent of the parties, which was evidently to make provision, not for a species, but a class. There doubtless may be deterioration from other causes, though I am not familiar enough with the subject to point them out; at least the parties may have apprehended, that some such might exist, and it was probably for that reason, they thought proper to fix a particular standard, by which the nature and extent of the risk could, under any combination of circumstances, be certainly determined. The terms employed.to exclude the excepted perils, are, in my appre[227] tension, perfectly definite and perfectly intelligible, and show that the parties knew perfectly well what they were about. The words, ‘ average’ and ‘ salvageof course relate to a partial loss; and the words, ‘ specie risk,’ sufficiently indicate that only such was intended as is common to both specie and goods. The language of the clause is pointedly applicable to a loss from a peril common to both, and if the actual meaning of the parties were not conformable to it, it is impossible to conjecture what was meant. As respects the goods saved, then, we have the case of a partial loss, not by destruction of a part, but deterioration of the whole, occasioned by a peril, from which such an injury to specie could not have happened; and if the clause is not to operate in such a case, it is impossible to imagine one, in which it may; certainly none has been suggested. What remains then is to say, whether the question of total loss made by the defendants, is to be determined by the actual fate of the goods, produced as it was by a peril common to both, or by the conjectural fate of a shipment of specie in the same circumstances.
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The opinion of the court was delivered by
Gibson, C. J.
A considerable part of the argument on the part of the defendants,- has been to prove that the perils to which specie is exposed, are as numerous and as imminent as those which are incident to goods. It is sufficient, that the parties themselves thought otherwise, and provided for the supposed difference accordingly. That they intended to do so, can scarcely be doubted; else the clause by which, if goods were shipped instead of specie, the lender was “ to be liable to average and entitled to salvage as if it were a specie risk,” would have been nugatory. They undoubtedly meant something by it; and I am unable to see how the lender is to be precluded by any supposed principle of equitable compromise without regard to the terms of the contract, from recovering more than the value of the property saved; for that would be the legal effect of leaving the clause entirely out of the.contract. It seems to be held both by the English and the American courts, that the lender takes the risk only of a total loss; but that any part of the property which arrives, goes to the lender, without regard to whether it be great or whether it be small, so that it does not exceed in value the amount of the loan, has never, I believe, been doubted anywhere. Nor can I see, that if the parties had intended to provide specifically for cases like the present, the lender would have stipulated in terms, against liability for losses from what has, in the argument, been called sea damage. Every profession or business necessarily has its technical language, because having the signification of its terms fixed beforehand by usage and common consent, they not only express the meaning of those who use them with more precision, but are more comprehensive and less liable to misconstruction than popular terms, that have not the same advantage in respect of certainty. -It seems, as I have already said, that the lender is not liable to average by the principles of the English law; and it is therefore usual to dispose of the subject by a special clause in the contract. But a stipulation that he should take on himself the ordinary risks in a policy of insurance, that of deterioration by the contact of sea-water excepted, would have been too narrow to answer the whole intent of the parties, which was evidently to make provision, not for a species, but a class. There doubtless may be deterioration from other causes, though I am not familiar enough with the subject to point them out; at least the parties may have apprehended, that some such might exist, and it was probably for that reason, they thought proper to fix a particular standard, by which the nature and extent of the risk could, under any combination of circumstances, be certainly determined. The terms employed.to exclude the excepted perils, are, in my appre[227] tension, perfectly definite and perfectly intelligible, and show that the parties knew perfectly well what they were about. The words, ‘ average’ and ‘ salvageof course relate to a partial loss; and the words, ‘ specie risk,’ sufficiently indicate that only such was intended as is common to both specie and goods. The language of the clause is pointedly applicable to a loss from a peril common to both, and if the actual meaning of the parties were not conformable to it, it is impossible to conjecture what was meant. As respects the goods saved, then, we have the case of a partial loss, not by destruction of a part, but deterioration of the whole, occasioned by a peril, from which such an injury to specie could not have happened; and if the clause is not to operate in such a case, it is impossible to imagine one, in which it may; certainly none has been suggested. What remains then is to say, whether the question of total loss made by the defendants, is to be determined by the actual fate of the goods, produced as it was by a peril common to both, or by the conjectural fate of a shipment of specie in the same circumstances.
The object of the clause was to permit the borrowers to substitute goods for the money; and being for their convenience, it was of course not to produce an enhancement of the risk. The lender was paid for a specie risk, and consented to stand to no other; consequently the borrowers took on themselves all beyond what was necessarily incident to a specie shipment. But notwithstanding all but an inconsiderable number of the packages were saved, though in bad condition, the borrowers insist that, if specie had been in its place, the evidence would raise a violent presumption of its destruction, and hence they claim to charge the lender with a total loss, even without'the benefit of salvage in proportion to the value of the goods saved. That is evidently an unsound construction of the contract, as it would put the lender in a worse state than if the privilege of shipping goods had been granted without any restriction of the risk whatever. If nothing more had been said, there would have been an indisputable right to salvage. But from the very nature of the agreement, the conjectural fate of the imaginary shipment of specie, was, as respects perils to which it would have been subject as such, to follow the actual fate of the merchandise shipped as its substitute and representative. .And this was, in another aspect, extremely advantageous to the borrowers, who might have shipped even gunpowder, which, as regards a total loss from explosion, by the accidental firing of the ship or a shot from an enemy, would have been at the risk of the lender. Yet it would be otherwise, if the rights and liabilities of the parties were determinable, not by the actual fate of the gunpowder, but the probable fate of specie in the same circumstances: and thus the effect of the clause would be to deprive the borrowers of indemnity for a total loss contrary to the legal effect of the contract, and manifest intent of the parties. The plain meaning of the agreement is, that goods shipped in place of the specie, should be specie for every purpose, but to increase the risk [228] of partial loss. Is it difficult to believe, that the parties intended to commit the question of ultimate liability to the boundless ocean of surmise, when the fate of the actual shipment would furnish a certain criterion, and one equally fair as to both. The contract of insurance, or respondentia, is a contract of indemnity for real, not imginary, losses. In Sage v. The Middletown Insurance Company, 1 Connect. Rep. 243, Mr. Justice Baldwin, in delivering the opinion of the court on a claim for straining while the ship was stranded, remarked, that “ invisible, uncertain and conjectural damages are never the subject of remunerationand certainly the remark is applicable with at least equal force to a conjectural loss. It would evidently be unfair to conduct the adventure in the shape of goods with their peculiar properties, to the point of immediate danger, and there substitute imaginary casks of dollars to determine from the probable event, the question of total loss. If conjecture is to operate at all, it must begin its office at the point of embarcation ; and it cannot be affirmed with certainty, though the custom of such voyages may render it probable, that specie would have been stowed in the run of the ship, or in any other part that would have exposed it to greater danger of total loss, than that to which the goods were exposed. But taking the fact to be otherwise, the most experienced navigator could not have predicted the event, had the ship sailed in ballast. Beginning the voyage at another period, with trim and sailing materially different, and with perhaps more favourable winds and weather, the chances are infinite, that she would not only have escaped the particular disaster, by which the loss was occasioned, but have weathered the coast altogether. It is not less reasonable to presume, that such would have been the event, than that casks of dollars would have been lost through a rift in her bottom. The presumption, on the contrary, is, that she would not have been driven to the place where the rift was made. The adventure is to be taken as goods or specie throughout; but certainly not as goods to bring it into jeopardy, and specie to increase the danger in order to fix the lender with a supposititious loss. Considering the goods then as representing the specie loaned, it is impossible to say, the lender had not an insurable interest. I am unprepared to say, what would have been the effect of the contract, had the goods been uncovered, or had the risk not attached. But taking for granted, that the want of an insurable interest would, in analogy to an illegal insurance, the premium for which cannot be recovered back, have rendered the contract void, yet if an agreement to insure money, or goods the produce of it, at the option of the borrower, does not give an insurable interest in the thing selected and put on board, then parties are incompetent to contract for the insurance of a thing to be designated by the insured. I am apprised of no rule of law or policy which forbids it. The goods then being specie for the purpose of determining the average, are specie also for the purpose of determin[229] ing the salvage. The packages saved are to be treated as casks of dollars, in regard to which there has been no loss whatever; and the plaintiff being entitled to recover in proportion to the number, is to have for the largest sum found in the verdict.
Judgment accordingly.