Sansom v. Ball

4 U.S. 396

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1806
• Status: Published

Opinion

The chief justice, after stating the general facts, delivered the unanimous opinion of the court, in the following terms :

Tilghman, Chief Justice.

— In this case, two questions have been made : 1st. Had the plaintiff an insurable interest ? 2d. If it was insurable, was it liable to a general average ?

I. In order to determine whether the plaintiff’s interest was insurable, we must first ascertain the nature of it. It seems to be a kind of interest, not much known in Europe, though well known in this city. The plaintiff advanced a sum of money to the owners of the ship, in consideration of which they gave him a right to fill up three-eighths of the tonnage of the ship, for that voyage, with goods, either his own or the property of others. It is called in the policy “freight advanced,” an expression well calculated to show its meaning. All countries, and even all cities, have singularities of expression. All new inventions, either in commerce or the arts, give rise to new modes of speech, which, when once introduced into contracts, are recognised by courts of justice, whose duty it is to carry into execution the intention of the contracting parties. Now, what is there in this interest, which should exclude it from the benefit of insurance ? there is nothing unlawful in it. It is subject to loss ; for whether the plaintiff used the tonnage for the transportation of his own goods, or of the goods of others, he would lose his money, unless the ship performed the voyage in safety. Indeed, I think Mr. Ingersoll, in *arguing for the defendant, con- r* ceded that the plaintiff’s interest might have been insured, if it had *■ been properly described; but he conceived it to be in the nature of bottomry. This it certainly cannot be ; there was no loan of money. Messrs. Wains were obliged to make no payment to the plaintiff, but the plaintiff was entitled to make what he could from the tonnage he had purchased. Whether it was more or less, Messrs. Wains had nothing to do with it. The* testimony of Mr. Fitzsimmons goes far towards proving, that the plaintiff’s interest was well described, and was a proper object of insurance. In the case of Gregory v. Christie (Park 11), my Lord Mansfield thus expresses himself : “ I should think that the words ‘ goods, specie and effects,’ did not extend to the plaintiff’s interest, if we were only to consider the words by themselves. But here is an express usage, which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always insured in this way.” Now, though there have not been a great many witnesses in this cause, yet there has been one, very much conversant in the business of insurance, who stands uncontradicted. Upon this first point, therefore, the insurability of the plaintiff’s interest, whether it is considered on principle, or on usage, I have no doubt, but the law is with the plaintiff.

II. But was the plaintiff’s interest liable to general average ? General average, or general contribution, is founded on principles of justice and sound policy. It arises, when a sacrifice of part has been made for the preservation of the residue, or when money is expended, to preserve the whole. Thus, the loss occasioned by cutting away of masts, or throwing goods overboard, to lighten the ship in a storm, or money paid to redeem ship and cargo, which had been captured, are subjects of general average; ship, cargo and freight have been benefited, and therefore, all must contribute. In the present instance, a compromise was made with the re-captors. Was it for the benefit of all persons concerned in ship, cargo and freight ? for if it was, it falls within the rule of general average. It appears to me, that it was for the benefit of all concerned. It prevented a sale of both ship and cargo, which must have injured all concerned. It would certainly have injured the plaintiff, who had goods on board to a large amount, and he had paid in advance, for the freight of these goods. Of whatever nature the plaintiff’s interest was, it was liable to salvage. Sir William Scott’s opinion

(a) is, that salvage is due, for ship, cargo and freight. But the defendant’s counsel object, that general average never arises but from the voluntary act of man, and here, say they, was no voluntary act; for salvage was decreed by the court. This argument is rather too refined. Let us consider it. It is true, that the agency and consent of man must intervene, to prod ice a general average ; but this agency and consent, though in one sense voluntary, are upon the whole, involuntary. When life is at stake, the mariner will- p^gg ingly *throws gold and diamonds into the sea. But was he willing L io encounter the storm, which produced this dire necessity ? General average always arises from actions produced by necessity. In the case before us, there was a capture, re-capture, and decree of salvage. The master and supercargo consented, under these circumstances, to a measure, which produced a general benefit. They surely exercised as much volition, as if they had thrown half the cargo overboard in a storm. Suppose, they had stood still, and suffered the ship and cargo to be sold, the underwriters would then have had to -answer for the whole freight: it it better for them to be subject to a general contribution.

Lewis, Rawle and J. Sergeant, for the plaintiff. McKean (Attorney-General) and Ingersoll, for the defendant.

We are of opinion, that the plaintiff is entitled to recover on this poliey, according to his demand.

The Racehorse, 3 Rob. 86.