McBride, J-,
delivered the opinion of the Court
This was an action of debt, brought in tKe Circuit Court of St. Louis county by Spencer Field against the Citizens3 insurance Company upon ■a policy of insurance.
Upon an agreement of facts, the case was submitted to the court, who found for the defendant; whereupon, the plaintiff moved fcr a new. trial, which being refused, he excepted, and appealed to this Court.
The amount insured was $2,000. The policy used was the general ¡printed form used by the company to cover loss upon goods and merchandize, setting out that it was “ upon all kinds of lawful goods and merchandize, laden or to be laden on board the good steamboat Glaucus,” &c., with an enumeration of the following perils, to-wit: “Touching the adventures and perils which the assurers are content to bear and take •upon them in this voyage, they are of seas, rivers, rovers, thieves, fires, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods,” &c. At the end of this printed policy, was the following clause, in writing, to-wit: “ This insurance is declared to be on the freight bill of the steamboat Glaucus, at and from St. Louis to New Orleans.” The policy was dated the 4th ■September, 1841, and was signed by the President, and sealed with the corporate seal of the company, and attested by the Secretary.
It was agreed at the trial, that on the 5th September, 1841, the steamboat Glaucus (Spencer Field being master and part owner) left the port of St. Louis for New Orleans, well and sufficiently found and provided In all things, and in all respects seaworthy,- with a cargo of various articles, the aggregate -freight of which agreed to be paid by the shippers amounted to $1790. That after said boat left St. Louis, there was shipped on board of her a few barrels of apples and some live stock. On the next morning, the dth September, about sixty miles below St. Louis, the boat struck a snag, which bulged some -of her timbers and caused her to leak very much, rendering it necessary to discharge the cargo.— She was stopped for that purpose, and the cargo discharged and secured without injury. It was found, on examination, that about ninety of her timbers were broken: she was thereupon temporarily secured, and being taken to St. Louis, was thoroughly repaired in about two weeks. On the arrival of the Glaucus at St. Louis, Captain Field obtained from the insurance office an instrument of writing, as follows: “ The Citizens’ Insurance Company will consider themselves bound by their policy of insurance on cargo and freight bill, by the transfer of the same to the steam[54]*54boats Merrimack and Osage Valley, on the part of the owners of the steamboat Glaucus;” which was signed by the Secretary of the company by its authority, and was executed and delivered to Captain Field, at his request, and was understood and intended by the Secretary to transfer the policies to the subject insured, in case of transhipment to the boats named. No premium or other consideration was paid by Captain Field to the Insurance Company for this transfer.
Captain Field then employed the steamboat Merrimack to transport the late cargo of the Glaucus from the place of disaster to New Orleans, except twenty tons, and the same was delivered without injury to the consignees. The Glaucus being repaired, was advertised for a new voyage to New Orleans, and after a detention of four or five days at St. Louis to receive cargo, she departed to New Orleans with a full cargo, except twenty tons, the room for that quantity being reserved to receive that part of her former cargo not taken by the Merrimack. The river, being low, Captain Field employed the steamboat Sarah Ann, for the sum of $100, to carry the twenty tons from the place of disaster to the mouth of the Ohio river, where it was transferred to the Glaucus, and thence safely carried to New Orleans.
We shall not undertake an investigation of all the questions raised by counsel in this case, but content ourselves with an examination of such points, the settlement of which will be decisive of this controversy.
The first inquiry is as to the proper construction to be given to the policy of insurance. The form used is the printed general form used by the company in insurance on the cargo of boats, declaring it to be an insurance on $2000, “ upon all kinds of lawful goods and merchandize, laden or to be laden on board the good steamboat Glaucus, whereof is master for the present voyage, Captain S. Field, &c., beginning the adventure upon the said goods and merchandize from and immediately following the loading thereof on board the said steamboat at St. Louis, aforesaid, and shall continue and endure until the arrival of said boat or vessel at the port of destination, &c. The goods and merchandize hereby insured are valued at $-. Touching the adventures and perils which the assurers are content to bear and take upon them in this voyage, they are of the seas, rivers, fires, robbers, thieves, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandize, or any part thereof, by reason of the damage aforesaid, &c.; and in case of loss, the assured shall abate two per cent, of the amount of such loss, to be paid in sixty days [55]*55after proof and adjustment thereof, and proof of interest in said freight bill, &c.”
At the end of this printed general form is the following clause in writing: “This insurance is declared to be on the freight bill of steamboat Glaucus, at and from St. Louis to New Orleans.”
Some confusion and difficulty in the construction of this policy would arise from its inconsistency, produced by appending the latter clause in writing, but for the established rule adopted by the courts in construing such instruments. In 1 Phil, on Ins., p. 54, it is said that, “ the policy being a printed form, with the blanks filled up in writing, if there is any doubt upon the sense and meaning of the whole, the words superadded in writing are entitled to have a greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning.”
“ Words written in the margin of the policy apply indefinitely to the whole of the policy, and are considered as controlling the sense of the parts of the printed policy to which they apply. As for instance, where the word ship is written in the margin of a policy, or freight or goods, in such case, the general terms of the policy applicable to other subjects besides the particular one mentioned in the margin, are thereby considered as narrowed in point of construction to that one.”
Another rule of construction is, that the policy is to be construed liberally for the benefit of the assured, and with a due regard to its design and object as a contract of indemnity. 3 East., 579; 9 ib., 81; 1 Burr., 348.
With the aid of the foregoing rules, we are at no loss to ascertain the true intent and meaning of this policy. Why the general form here used should have been adopted, was owing, most likely, to the fact that the general formula being applicable, the fore part of the policy declaring it to be an insurance on goods and merchandize, would be controlled by the latter or written part, which declares it to be an insurance on the freight bill.
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McBride, J-,
delivered the opinion of the Court
This was an action of debt, brought in tKe Circuit Court of St. Louis county by Spencer Field against the Citizens3 insurance Company upon ■a policy of insurance.
Upon an agreement of facts, the case was submitted to the court, who found for the defendant; whereupon, the plaintiff moved fcr a new. trial, which being refused, he excepted, and appealed to this Court.
The amount insured was $2,000. The policy used was the general ¡printed form used by the company to cover loss upon goods and merchandize, setting out that it was “ upon all kinds of lawful goods and merchandize, laden or to be laden on board the good steamboat Glaucus,” &c., with an enumeration of the following perils, to-wit: “Touching the adventures and perils which the assurers are content to bear and take •upon them in this voyage, they are of seas, rivers, rovers, thieves, fires, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods,” &c. At the end of this printed policy, was the following clause, in writing, to-wit: “ This insurance is declared to be on the freight bill of the steamboat Glaucus, at and from St. Louis to New Orleans.” The policy was dated the 4th ■September, 1841, and was signed by the President, and sealed with the corporate seal of the company, and attested by the Secretary.
It was agreed at the trial, that on the 5th September, 1841, the steamboat Glaucus (Spencer Field being master and part owner) left the port of St. Louis for New Orleans, well and sufficiently found and provided In all things, and in all respects seaworthy,- with a cargo of various articles, the aggregate -freight of which agreed to be paid by the shippers amounted to $1790. That after said boat left St. Louis, there was shipped on board of her a few barrels of apples and some live stock. On the next morning, the dth September, about sixty miles below St. Louis, the boat struck a snag, which bulged some -of her timbers and caused her to leak very much, rendering it necessary to discharge the cargo.— She was stopped for that purpose, and the cargo discharged and secured without injury. It was found, on examination, that about ninety of her timbers were broken: she was thereupon temporarily secured, and being taken to St. Louis, was thoroughly repaired in about two weeks. On the arrival of the Glaucus at St. Louis, Captain Field obtained from the insurance office an instrument of writing, as follows: “ The Citizens’ Insurance Company will consider themselves bound by their policy of insurance on cargo and freight bill, by the transfer of the same to the steam[54]*54boats Merrimack and Osage Valley, on the part of the owners of the steamboat Glaucus;” which was signed by the Secretary of the company by its authority, and was executed and delivered to Captain Field, at his request, and was understood and intended by the Secretary to transfer the policies to the subject insured, in case of transhipment to the boats named. No premium or other consideration was paid by Captain Field to the Insurance Company for this transfer.
Captain Field then employed the steamboat Merrimack to transport the late cargo of the Glaucus from the place of disaster to New Orleans, except twenty tons, and the same was delivered without injury to the consignees. The Glaucus being repaired, was advertised for a new voyage to New Orleans, and after a detention of four or five days at St. Louis to receive cargo, she departed to New Orleans with a full cargo, except twenty tons, the room for that quantity being reserved to receive that part of her former cargo not taken by the Merrimack. The river, being low, Captain Field employed the steamboat Sarah Ann, for the sum of $100, to carry the twenty tons from the place of disaster to the mouth of the Ohio river, where it was transferred to the Glaucus, and thence safely carried to New Orleans.
We shall not undertake an investigation of all the questions raised by counsel in this case, but content ourselves with an examination of such points, the settlement of which will be decisive of this controversy.
The first inquiry is as to the proper construction to be given to the policy of insurance. The form used is the printed general form used by the company in insurance on the cargo of boats, declaring it to be an insurance on $2000, “ upon all kinds of lawful goods and merchandize, laden or to be laden on board the good steamboat Glaucus, whereof is master for the present voyage, Captain S. Field, &c., beginning the adventure upon the said goods and merchandize from and immediately following the loading thereof on board the said steamboat at St. Louis, aforesaid, and shall continue and endure until the arrival of said boat or vessel at the port of destination, &c. The goods and merchandize hereby insured are valued at $-. Touching the adventures and perils which the assurers are content to bear and take upon them in this voyage, they are of the seas, rivers, fires, robbers, thieves, and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandize, or any part thereof, by reason of the damage aforesaid, &c.; and in case of loss, the assured shall abate two per cent, of the amount of such loss, to be paid in sixty days [55]*55after proof and adjustment thereof, and proof of interest in said freight bill, &c.”
At the end of this printed general form is the following clause in writing: “This insurance is declared to be on the freight bill of steamboat Glaucus, at and from St. Louis to New Orleans.”
Some confusion and difficulty in the construction of this policy would arise from its inconsistency, produced by appending the latter clause in writing, but for the established rule adopted by the courts in construing such instruments. In 1 Phil, on Ins., p. 54, it is said that, “ the policy being a printed form, with the blanks filled up in writing, if there is any doubt upon the sense and meaning of the whole, the words superadded in writing are entitled to have a greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning.”
“ Words written in the margin of the policy apply indefinitely to the whole of the policy, and are considered as controlling the sense of the parts of the printed policy to which they apply. As for instance, where the word ship is written in the margin of a policy, or freight or goods, in such case, the general terms of the policy applicable to other subjects besides the particular one mentioned in the margin, are thereby considered as narrowed in point of construction to that one.”
Another rule of construction is, that the policy is to be construed liberally for the benefit of the assured, and with a due regard to its design and object as a contract of indemnity. 3 East., 579; 9 ib., 81; 1 Burr., 348.
With the aid of the foregoing rules, we are at no loss to ascertain the true intent and meaning of this policy. Why the general form here used should have been adopted, was owing, most likely, to the fact that the general formula being applicable, the fore part of the policy declaring it to be an insurance on goods and merchandize, would be controlled by the latter or written part, which declares it to be an insurance on the freight bill. But whatever may have been the reason for using the general form, we are very clear that the intention of the parties, as gathered from the writing, was to limit the insurance to the freight bill; that is, it was an undertaking on the part of the insurance company that the plaintiff should earn freight.
In marine insurance, there are several distinct subjects of insurance, such as the vessel, the cargo, and the freight bill. The vessel may be the property of one individual, the cargo may belong to another, whilst [56]*56the freight bill may be due to a third; and each having an interest in the contemplated trip, may rightfully obtain insurance on their respective interests.
But, admitting that the assurers have undertaken that the boat shall earn freight, still it is contended that any injury to the hull of the boat, by which the freight is lost, is not one of the hindrances or perils insured against in the policy; for, by the use of this form of policy, it was intended that the damage by which the earning of freight would be defeated, must be to the cargo of the boat. Suppose that, instead of using the words freight bill, in the clause under consideration, it had read, “ this insurance is declared to be on the hull of the steamboat,” See., could there be any reasonable doubt, but that against the perils enumerated in the policy, the company had undertaken to insure the hull of the boat on her trip to New Orleans P It would not do to say, that although the insurance is on the hull of the boat, yet the damage insured against must happen to the cargo, otherwise the company are not liable. And yet it would be just as reasonable as to hold that an insurance on the freight bill is confined exclusively to the damage done the cargo.
If no safe or satisfactory solution of the intention of the parties can be had by a reference alone to the policy, we must, in connexion with the policy, look to the interest of the assured, for it was that interest, doubtless, which he was endeavoring to protect. The assured is stated in the policy to be master of the boat, and in the evidence he is stated to be the captain and part owner of the boat. He owned no part of the cargo.— His interest, therefore, would be, first, to secure the freight against loss or forfeiture, whether from damage to the cargo or hull of the boat; and, second, in guarding against injury to the hull of the boat. If damage should happen to the cargo, it would not necessarily follow that there would be a forfeiture of freight; but if the boat itself should receive such damage as to prevent her from making the trip, the freight, or a part thereof, would be lost. Besides, there is more danger of loss of freight by means of injury to the hull of the boat, than by damage to the cargo. It is not presumable, therefore, that Captain Field would insure against the less and not the greater hazard. We are therefore of opinion that the insurance was intended to cover all loss of freight in consequence of damage to the cargo or hull of the boat, by means of any of the enumerated perils in the policy. 7 Cowen, 564.
The next question which demands our attention is, the right of a boat which has been injured to retain her cargo until she refits and is in a condition to carry it to the port of destination. It is difficult to lay down [57]*57any rule which would be just in its application in all cases, for what would be reasonable time in one case, would be inadequate in another; hence every case that arises must be governed by surrounding circumstances — such as the the length of time ordinarily required to make the trip, the facilities for transhipping, the character of the cargo, and the state of the market at the port of destination. What are the facts in this case.? Ordinarily, the trip to New Orleans can be made in half the time which was required to refit the boat; the opportunity of transhipping occurred almost daily ; cargoes generally are of that description which makes it important that they should be carried forward without delay. These facts, coupled with the uncertain state of the market below, enable us to say, that in this case the captain of the boat would have had no right to retain the cargo until he could refit and carry it forward in his own boat.
At this point, if the plaintiff had abandoned as for a total loss, we are of opinion he would have been entitled to a recovery; but, at his instance and request, the policy was transferred to two other boats, by the following writing: “ The Citizens’ Insurance Company will consider themselves bound by the policies of insurance on cargo and freight bill by the transfer of same to the steamboats Merrimack and Osage Valley, on the part of the owners of the steamboat Glaucus.” This was understood by the secretary of the insurance company, who made the writing by authority of the company, to transfer the policy to the boats named, in case of transhipment. This appears to be the obvious meaning of the writing, and must have been so understood by the plaintiff,' otherwise it would have been an original transaction, and the company entitled to their usual premium in such cases. No premium was paid or agreed to be paid by the plaintiff to the company for this transfer, and if the transfer gave to the boat upon which the cargo was transhipped the right to recover in the event she did not earn freight, then the company would be in the condition of being twice held liable upon the same policy, without having received any consideration for the second. But such is not a fair construction of the writing; on the contrary, we are of opinion that the transfer of the policy from the Glaucus to the other boats obtained from the defendant by the plaintiff, operated as a release of the defendant’s liability under the policy for the injury complained of.
For the foregoing reasons, the judgment of the Circuit Court ought to be affirmed.
Scott, J. — I concur in affirming the judgment.