McLaughlin v. Atlantic Mutual Insurance

Tapley, J. This is an action of assumpsit upon a policy of insurance, issued upon a cargo of molasses and sugar. “ There was a loss, over and above the usual allowance of ten per cent for ordinary leakage, of 4,417 gallons of molasses, which [173] loss was occasioned by tbe perils of tbe seas.” In tbe body of tbe policy it is provided that the company shall “not be liable for leakage on molasses, or other liquids, unless occasioned by stranding, or collision with another vessel.” Upon the margin of the policy it is provided, that, “ On molasses and other liquids, if by shifting of cargo, owing to stress of weather, any casks become stove or broken, and the staves started by each other, so as to lose tbeir entire contents, and tlie same amounts to fifteen per cent on tbe quantity laden (being five per cent over ordinary leakage), tbe said excess of five per cent or over, on the quantity shipped, to he paid for by tlie company; but this company not to be liable for leakage from causes other than those above mentioned.” These memoranda are parts of the contract of insurance, and are alike binding, whether found in the body of the policy or upon its margin. It will he seen that the liability of the company for leakage of molasses, is limited to that occasioned by stranding, collision, and shifting of cargo by stress of weather. That arising from shifting of cargo is subject to another condition, viz., that it is such as occasioned a loss of the entire contents of the casks stove, and to an extent equal to fifteen per cent of the whole amount laden. Upon a careful consideration of the whole contract, we find its legal effect the same as if it had been expressed in these terms : “ Not liable for leakage on molasses, or other liquids, unless occasioned by stranding, or collision with another vessel; provided, however, if by shifting of the 'cargo, owing to stress of weather, any casks become broken and tlie staves started by each other so as to lose the entire contents of such casks, and such loss amounts to fifteen per cent of the whole quantity laden, the company will be liable for so mucli as shall be thus lost, over and above ten per cent of the quantity laden.” By recurring to the bill of lading, it will he found there were laden on board 408 hogsheads and eighty-seven tierces of molasses, of which, it appears by the certificate of the port-warden and sur [174] veyor, two hogsheads and two tierces lost their entire contents by-shifting, the other losses being leakage merely, and in bnt a single instance reaching the “ entire contents ” of the cask. The loss occasioned by shifting being less than fifteen per cent of the quantity laden, the defendants are not liable therefor, and there must be Judgment for the defendants. Cutting, Kent, Dickerson, and Daneorth, JJ., concurred.