Fontaine v. Columbian Insurance

9 Johns. 29

• Court: New York Supreme Court
• Decided: January 15, 1812
• Status: Published

Opinion

Per Curiam.

There was nothing unreasonable, and, probably# nothing unusual, in these charges of Hall S' Rose. It was not to be expected or required, that a mercantile house abroad should make advances and become security, without some compensation, and.without being completely protected against loss. The 5 per cent, was their compensation, and the mortgage of the property to them, and the insurance of it, when they parted with the possession, was their indemnity from loss. The security, by means of the mortgage, would have been greatly weakened, and put at hazard, if the property had not been insured. The insurance was necessary to render the mortgage effectual. There is no reason to suppose that the captain did not act with good faith, and with due discretion, in reclaiming the property. No better terms could have been obtained j it was the duty of the captain to accept of those terms, and not to leave the property behind. , n n o n • . , The plaintiff s cargo was mortgaged to Hall ¿r Hose, in consideration of their becoming security to answer for its value, and there is no reason to doubt of the power of the master to mortgage it.^The, principles of the maritime law clothe him with the power of agent' of the cargo when cases of extremity occur. He may sell a( part, or he may hypothecate the whole cargo, even for the neces-( sary repairs of the ship, when that act is required to enable him to continue the voyage. Though, ordinarily, he is the mere car-f rier of the cargo, yet in a case of difficulty and peril, he becomes,/ ex necessitate, a trustee of it, with a large and liberal discretion, and' this character is then given to him from public policy, for without^ this power the cargo might be left to perish. y (The Gratitudine, 3 Rob. Adm. 240.) ,If the master has this power over the cargo for repairs to the ship, it exists, in at least equal force, when the interest of the cargo is directly in question; and this case contains intrinsic evidence, that the terms on which the assistance of Hall S' Bose was procured, were as favourable as any that could have been obtained. The plaintiffs had no agent or consignee at Antigua, for none appears, or is to be presumed. It was- an island to which the ship was carried by the captors. To whom was the captain to apply for aid ? If Hall S' Bose had exacted exorbitant compensation or security, the presumption would have been different, and it might have been incumbent on the plaintiff to have shown that other applications for security had been made, and failed. The indemnity required by Hall S' Rose of a mortgage of the cargo released, was reasonable for them to ask, and within the power of the captain to give; and having taken it, the insurance was necessary to render the security perfect, and the premium for the insurance was no more than a necessary charge . attending the taking of the security.

But the captain went further and mortgaged the ship, and so far he acted without authority; for to mortgage the ship for the benefit of the cargo, seems to be going beyond his trust, or the ■rules of law. Admitting, however, that the hypothecation of the ship was void, still it was exacted, and the premium of insurance for both ship and cargo was included in the bill of exchange, for which the plaintiff’s cargo stood pledged. The payment of that premium became a necessary expenditure in the recovery of the plaintiff’s property. The question on the validity of the hypothecation of the ship does not, then, arise in this casé. The plaintiff was bound to pay his proportion of that premium. It was one of the conditions on which their property was recovered, and the difference between a premium of insurance upon the cargo only, and upon the ship and cargo, could not be so material as to affect the good faith of the master, and the necessity of acceding to the terms upon which Halt & Rose offered their assistance.

There ought, therefore, to be no deduction from the plaintiff’s claim, on account of either of the above items of commissions or premium.

Judgment for the plaintiff.