Seton v. Delaware Ins.

WASHINGTON, Circuit Justice (charging jury). The question of law is, whether the plaintiff is entitled to recover for a total or a partial loss on cargo and freight. Upon the construction of the policy, it is said that the written must control the printed clause, if they contradict each other. This .is true. There are strong reasons in favour of the position. But the construction of policies of insurance, is governed by the same rules as apply to other written instruments; and if all the clauses can be fairly made to stand together, and to have effect, they should be so expounded as to produce such a result. We understand the underwriters, from the language they have used, to say, we will insure you against loss upon any goods or specie, both or either on the voyage from New-York to the enumerated ports in Cuba, and back to New-York. As to the cargo, generally, it is impossible for us to know whether it may in whole or in part be composed of prohibited articles, or not; and, ■ therefore, we will not engage to indemnify against losses arising from such trade, if it should be illicit. But as to specie, the specified article, we know that it is, by the general commercial regulations of the Spanish government, prohibited from being exported, and therefore we except it from the clause of warranty. We say, that this ought to be understood as the language of the underwriters; because, as to the course of trade, and the general laws of the country with which this trade was to be carried on, they were bound to take notice; and if it was not their intention to except specie from the warranty, it is impossible to suggest a reason for its being especially mentioned: since it would clearly have been comprehended under the general term goods, used in the same clause. Still, the question is, can the plaintiff recover for a total loss of cargo and freight, in consequence of the detention of the 5.000 dollars at Matanzas? The opinion of the coiu't is, that he cannot. The loss is not total, either in fact, or technically so. A part of the cargo was taken out, forcibly, at Matanzas, and replaced by other articles; with which, and the residue of her cargo taken in at Nevitas, she arrived, fully loaded, in safety at her port of destination. The original cargo, taken in at Nevitas. received no kind of injury from any thing which happened at Matanzas; and the only consequence of the proceedings at that place, was the exchange of a part of the cargo, the whole of which arrived safe, partly in this vessel, and the residue of the new cargo by another. Now, can it be seriously contended, that the loss of a distinct and separate part of the cargo, by the seizure, of a foreign government, though it amount to more than half of the whole ■cargo, will warrant an abandonment of the. whole, when the residue has in fact been discharged, and has arrived safe? A partial loss of an entire cargo, by sea damage, if amounting to more than half, may. under circumstances. be converted into a technical total loss; but not if a distinct part of the cargo be destroyed, and the voyage be not thereby broken up, or rendered unworthy of being prosecuted. Here the voyage was not lost, or otherwise impaired or affected, but in respect to the particular part of the cargo [1095] exchanged at Matanzas. We inquired of the plaintiff’s counsel, if he recollected any case in which such a loss had been construed total; and the only one to which he referred us, was that of Simond v. Union Ins. Co. (decided in this court) [Case No. 12,875]. But there is no similitude between that and this case. In that, the vessel was not only prevented by a blockading squadron off one of her ports in St. Domingo, from entering either; but she was forcibly carried to Jamaica, and there compelled to end her voyage, and to dispose of her cargo. There, the voyage was broken up, ana completely frustrated; quite othei-wise is the present case. We do not recollect a single case, from Goss v. Withers, 2 Burrows, 683, to this time, or before, in which, from an injury to the cargo, the loss was considered total, that the voyage was not broken up by some disaster to the vessel, which could not be repaired without great additional expense and loss; or which prevented the further prosecution of the voyage; or where the injury to the cargo was general. The doctrine of abandonment has gone far enough, perhaps too far. when the real nature of the contract of insurance is considered. We do not feel disposed to carry it further. The opinion of the court, therefore, is. that the plaintiff is entitled to recover only for a partial loss. The jury found that the plaintiff was entitled to a partial loss, which the parties agreed to adjust.