THIS was an action upon a policy of insurance, on the freight of
the brig Amazon, valued at 3,500 dollars, upon a voyage from
Philadelphia to Surinam. The policy contained a warranty of
American property, and the usual clause against illicit trade.
On the trial of the cause, before the chief justice, at Nisi
Prius, in July 1806, it appeared that upon the 7th of August 1799,
when Surinam was in possession of the Dutc , the vessel sailed on
the voyage insured, and arrived at the river of Surinam, on the
17th of September following; that the brig was detained at the
entrance of the river, by the commander of the British fort, who
informed the captain, that the colony of Surinam had been in
possession of the British forces about twenty days; that the
captain, and a passenger of the name of J. G. Richter (who was an
inhabitant of Surinam, and to whom the cargo was deliverable there,
on his paying 25,310 dollars, in pursuance of a contract with the
plaintiffs, Morgan and Price) proceeded to the town of Paramanto,
and the cargo was there tendered and agreed to be accepted by
Richter; who gave security for paying the stipulated price, as soon
as possible after the delivery, in conformity to the contract. On
the 19th of September, the governor of the colony gave permission
for the brig to be brought up to town, where she, accordingly,
arrived the next day, for the purpose of discharging her cargo;
that on reporting, however, to the custom-house, the collector
declared, that he would not permit any article to be landed,
excepting the provisions, (which did not amount to more than
one-eighth of the cargo) and that permission to land the cargo
generally, was repeatedly solicited by the captain, but refused by
the governor; in consequence of which, it was brought back to
Page 4 U.S.
455, 456
Philadelphia. Upon these facts, related in the captain's
protest1 the plaintiffs abandoned, and claimed for a total loss of
the freight insured. And it was agreed to state them in a case, for
the opinion of the Court.
The general question was, whether the plaintiffs were entitled
to recover, either for a total, or for a partial, loss of freight?
And the solution was considered, by the counsel on both sides, as
depending upon the inquiry, whether the freight had been earned, in
whole, or in part; and if not, whether the loss was occasioned by a
peril enumerated in the policy.
For the plaintiff. By the bill of lading, the master is obliged
to deliver the goods, (the danger of the seas only excepted) and
freight is only payable on the delivery. Beawes, Lex Merc. 137. Ab.
179. 183. If a foreign government prevents a landing of the cargo,
it prevents an earning of the freight, by an arrest, restraint, and
detainment; as much, surely, as in the decided case, of the foreign
government refusing to permit a cargo to be shipped, for which the
vessel was sent. 3 Bos. and Pull. 295. 8 T. Rep. 267. 1 Brownl. 21.
7 T. Rep. 385. Abbot, 261. 3 Bac. 610. Lex Merc. 267. Park, 292. 3
Rob. Rep. 152, 3. 7 T. Rep. 383. 2 Vern. 176. Perot v. Penrose, in
Supreme Court of Pennsylvania. A policy on goods continues in force
till the goods are landed. 1 Marsh. 162. and all policies should be
liberally construed, for the benefit of trade. Ibid. 164, 5. In the
present case, there is no proof of the delivery of the cargo at
Surinam; but, on the contrary, it appears, that Richter agreed to
pay for it, as soon as possible after it was delivered; and as the
delivery depended upon the landing, it is virtually disproved by
the evidence, that the governor always refused to grant a permit
for the landing.
For the defendant. On the evidence, there was an arrival of the
vessel at her port of discharge; and the tender and acceptance of
the delivery of the cargo, entitled the owner to his freight. The
owner of the ship was not bound to procure a permission to land the
goods. Besides, it is not denied, that seamen's wages were paid;
and wages are never payable, but in case where the freight is
earned. But even the loss, if established, was not occasioned by a
peril insured against. There was no arrest, no restraint, no
detainment; but merely the refusal of a right of entry. Ord. L. 14.
1 Val. 656. Art. 15. Ib. 626. Art. 7. Doug. 622. 626, 7. Poth. 60.
s. 69. 2 March. 434, 5, 6, 7. 1 Marsh. 162. 164, 5. Ab. 161. 2
Burr. 887.
Page 4 U.S.
455, 457
The chief justice delivered the following opinion, in which
BRACKENRIDGE Justice, concurred.
TILGHMAN, Chief Justice. This is an action on a policy of
insurance on freight of the brig Amazon, from Philadelphia to
Surinam, valued at 3500 dollars. The brig sailed from Philadelphia
on the 7th of August 1798 with a cargo consisting of provisions and
merchandize, and arrived in the river Surinam, on the 17th of
September following. During the voyage, the colony of Surinam was
conquered by the forces of the king of Great Britain. Permission
was obtained from the British commander, for the brig to go up to
the town of Paramanto, and she arrived there with her cargo, on the
20th September. On her arrival, the captain of the brig, in
pursuance of instructions from the owners, as well as in pursuance
of an agreement between the owners and a certain J. A. Richter, who
was a passenger in the said brig, offered to deliver the cargo to
the said Richter, upon his paying, or giving security to pay,
25,310 dollars. Richter agreed to pay that sum as soon as possible
after the delivery of the cargo, and actually gave good security
for the money. But the British collector of the customs, refused
permission to land any article of the cargo, except the provisions,
nor could such permission be obtained, although repeated petitions
were presented to the government. The consequence was, that the
cargo was not landed, and the captain entered his protest. The brig
remained at Paramanto till the 27th of September. The plaintiffs
were owners both of the brig and cargo. The question is, whether
the plaintiffs are entitled to recover, either for a total loss, or
for a partial loss, on this policy? The plaintiffs' counsel
contend, that they are entitled to recover for a total loss; that
the landing and delivery of the cargo, is an essential part of the
contract between the owner and freight, and not being complied
with, no part of the freight has been earned; and that the
circumstance of the same persons being owners of the brig and
cargo, is immaterial in a question between the assurers and
assured. On the other hand, the defendants' counsel say, that there
has been no loss, because the freight was completely earned. No
adjudged case, in point, has been cited on either side. The
defendants' counsel relied on the case of Blight v. Page. 3 Bos.
and Pull. 295. (not.) but I do not think that case applicable. The
owner of a vessel agreed to go to a certain port, and take in a
cargo of barley, to be carried on freight. When the vessel arrived
at the port, the defendant, could not furnish the cargo according
to his agreement, because the government refused to permit the
exportation of barley. The owner sued the defendant, for not
complying with his contract, and recovered damages equal to the
amount of the freight. This only shews, that the interference of
the government did not excuse the defendant from complying
Page 4 U.S.
455, 458
with his contract. The plaintiff had done every thing necessary
on his part, and was prevented from earning his freight, by the
breach of contract on the part of the defendant. No conclusion can
be drawn from this case, under what circumstances freight may be
earned, or not earned. For, it was not an action for the recovery
of freight, but of damages, for not being permitted to earn
freight.
But, although there is no adjudged case, the subject has not
escaped the notice of writers on the marine law. In one of the
ordinances of Lewis XIV. (A. D. 1681)2 it is declared, that on a
charter party to arry goods out and in, if, during the voyage, the
commerce is prohibited and the vessel returns, the outward freight
only is earned; and Valin, in his commentary on this article, says,
the law is the same, if the vessel is freighted outward only. These
ordinances, and the commentaries on them, have been received with
great respect, in the Courts both of England and the United States;
not as containing any authority in themselves, but as evidence of
the general marine law. Where they are contradicted by judicial
decisions in our own country, they are not to be respected. But on
points which have not been decided, they are worthy of great
consideration. I am strongly inclined to adopt the rule laid down
by Valin, because I think it reasonable. The owner of the ship has
been in no fault whatever. When he took the goods on freight, there
was an open commerce between Philadelphia and Surinam; the goods
were carried to the port of delivery; the vessel waited there seven
days, and the captain offered to deliver the cargo to the
consignee, who refused to receive it. Nothing prevented it, but the
prohibition of the British government. It is not like the case of a
vessel which is prevented from entering the port of delivery, by a
blockading squadron; for there the voyage is not performed, and it
is impossible to say, certainly, that it would have been safely
performed, if there had been no blockade. I think it most agreeable
to reason and justice, that the obtaining permission to land the
cargo, should, in this case, be considered as the business of the
consignee. That being established, it follows that the freight was
earned.
Upon the whole of this case, I am of opinion, that the
plaintiffs are not entitled to recover, either for a total or a
partial loss.
Footnotes
Footnote 1 When the protest
was offered to be read, the defendant's counse l observed, that the
Circuit Court of the United States had refused to admit the protest
in evidence, and submitted the competency of such evidence on the
present occasion. But by the COURT, The practice of Pennsylvania
has been long settled. The protest has invariably been received as
evidence in the state Courts:
Footnote 2 1 Vol. Ord. Lewis
XIV. 656. Art. 15. title Freight, cited by Abbot.
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