Stillwell v. Home Ins. Co.

23 F. Cas. 92, 3 Dill. 80

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: July 1, 1874
• Status: Published

Opinion

DILLON. Circuit Judge.

The action is upon a freight policy, which is a contract by the insurer to indemnify the owners of the vessel against loss by reason of the failure of the vessel to carry freight, in consequence of a peril insured against.

The contract here was for “insurance upon the freight of the steamer and barge, against the total loss of aDy part of the steamer or barge’s freight, at and from St. Louis to New Orleans,” &c. The insurance company contends that the policy covers only the freight list for the goods on board at St. Louis, when the voyage was begun; and this is really the decisive question in the ease.

In construing these brief and informal contracts, the courts must keep in mind the peculiarities of inland river carriage. This was a general cargo, and it is the almost invariable usage of boats in the Mississippi trade to touch at intermediate ports to receive additions to their cargo; and such additions are covered by a contract, such as was made in this instance.

■It is contended by the insurance company that there was no loss on the freight list because all the cargo on both boat and barge was, after the disaster to the barge, carried by the boat to New Orleans and the freight earned. But the other facts show that there was an actual loss of freight which would have been earned if the barge had not been lost. The loss is not conjectural, but plainly established by the proofs. Goods to the full carrying capacity of both the boat and barge had actually been engaged by the boat for the trip in question, and she was only prevented. from carrying them by having received a transfer of the barge’s cargo. No other barge could be obtained. It would be an illiberal construction of the contract to hold that it did not coyer the goods engaged and the freight which would have been earned thereon hut for the loss of the barge by a peril insured against. Affirmed.