Howland v. Commercial Insurance

1 Ant. N.P. Cas. 42

• Court: New York Supreme Court
• Decided: July 1, 1808
• Status: Published

Opinion

Van Ness, J.

There certainly can be no apportionment in this case; the risk is entire; and, as it is different from that in the other policies, it cannot be taken into account on this occasion.

The defendants’ counsel then stated their defence to be, that the Commercial Insurance Company, the defendants, had taken upon themselves the contraband risk, and therefore, as to this policy, under these circumstances, there was no short interest. To prove this, they offered to show that, according to the established usage of insurers, they are deemed to take upon themselves the contraband risk, where contraband articles are expressly named and set forth in the policy; and this, notwithstanding the printed clause in the policy expressly excepting articles contraband of war.

Van Ness, J. This construction can be made out without reference to any established usage. There can be no question but that insurers assume the contraband risk, when contraband articles are set forth and expressly named in the poliey.

(2)‘ Such specification must be considered as notice to the insurer, and will control the printed clause.(3) Under these circumstances, I am of opinion, that the defendants assumed the contraband risk on 10,000 dollars, a risk totally different from that covered by the other policies ; and as the plaintiff’s interest, on board the vessel insured, amounted to 12,000 dollars, there is no short interest as to this policy.(4) If she had been captured and condemned on account of her contraband cargo, the other insurers would have been discharged, and the defendants would have been compelled to pay the amount of the policy.

Verdict for the defendants.

Brinckerhoff, for the plaintiff.

Wells, for the defendants.

Articles contraband of war are lawful subieets of insurance. A neutral nation has nothing to do with the war between the belligerent powers, and is under no moral obligation to abandon or abridge its trade. And yet at the same time, from the law of necessity, as Vattel observes, the powers at war have a right to seize and confiscate contraband goods, and this they may do from the principle of self-defence. The right of the hostile powers to seize, does not destroy the right of the neutral to transport. They are rights which may, at times, clash with and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral, in articles contraband of war, is therefore a lawful trade, though a trade, from necessity, subject to inconvenience and loss. Seton & Co. v. Low, 1 Johns. Cases, 1; 1 Johns. Cases, 77; Ib. 120; Ib. 487.

If a part of the contract be printed and a part written, and there be any inconsistency, the written are to control the printed words. 3 Johns. Cases, 1; 1 Johns. Reports, 436; 1 Condy’s Marshall, 305.

This subject of return premium, varies in the different commercial countries. 1 Con. Marshall, 146; 2 Con. Marsh. 640. In our policies, it is generally regulated by an express clause, declaring that if any other assurance has been made by the assured upon the premises, of a prior date, the subsequent insurers shall be answerable only for so much, as the amount of such prior assurance may be deficient, &c., and shall return the premium on so much of the sum insured, as they shall be by such prior insurance exonerated from. And, in case of any subsequent insurance, the insurer shall be answerable for the full sum subscribed, &c., and be entitled to retain the premium, in the same manner as if no such subsequent insurance had been made.