Gordon & Talbot v. American Insurance

4 Denio 360

• Court: New York Supreme Court
• Decided: May 15, 1847
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

In England and some of the American states, there is no policy particularly adapted to insurance on freight; but the common form for insuring on ship or cargo is used, with only a brief memorandum, in the margin, or elsewhere on the policy, stating the insurance to be on freight. And the practice was formerly the same in this state. In such cases, as the parties have omitted to declare when the risk shall commence, it has been left to the courts to settle that" matter for them. And it has been, held, that the policy attaches as soon as there is an insurable interest in the freight: and that as a general rule, there is such an interest when the cargo is .on board the ship; and not before. (Tonge v. Watts, 2 Str. 1251; Smith v. Steinbach, 2 Caines’ Cas. Er. 158; Hart v. The Delaware Ins. Co. 2 Wash. C. C. R. 346; Patrick v. Ludlow, 3 John. Cas. 10.) But where there is a charter-party for a voyage, in the course of which the goods are to be taken on "board and the freight earned, there is an incep tion "of the risk the moment the ship breaks ground for the voyage, although the time for receiving the cargo has not yet arrived. (Thompson v. Taylor, 6 T. R. 478; Horncastle v. Suart, 7 East, 400; Livingston v. The Columbian Ins. Co. 3 John. 49; Moses v. Pratt, 4 Camp. 297; Williamson v. Innes, 1 Moody & Rob. 88; 8 Bing. 79, note, S. C.) There is also an insurable interest when the shipowner has made a valid contract for freight with a third person, or has purchased goods to be shipped on his own account, and the ship is at the proper place ready to receive the cargo. (Warre v. Miller, 4 B. & C. 538; Devaux v. J’Anson, 5 Bing. N. C. 519; Flint v. Flemyng, 1 B. & Ad. 45; Hart v. The Delaware Ins. Co. 2 Wash. C. C. R. 346.) But these, and all the other cases on which the plaintiffs rely, were upon policies which did not in terms declare when the risk should commence; while in the case before us, the parties .have entered into a full and formal contract on the subject of freight; and have in express and unequivocal terms fixed the time for the beginning of the adventure. The insurance is, “ upon the freight of all kinds of lawful goods and merchandize, laden or to be laden on board the ship: beginning the adventure upon the said freight [of all kinds of lawful goods and merchandize,] from and immediately after the loading thereof on board of the said vessel.” The words are too plain and explicit to leave any room for doubt or construction : and although the plaintiffs may have had an insurable interest in the freight before the vessel was lost, it is enough to say, that such interest was not insured by the defendants. They did not take upon themselves any risk until the goods should be on board the ship; and as there is no averment that any were put on board, the plaintiffs cannot recover.

Judgment for the defendants.