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U.S. Supreme Court


4 U.S. 246 (Dall.)

Jones et al.
The Insurance Company of North-America.

Supreme Court of Pennsylvania.

December Term, 1802

COVENANT, on a policy of insurance, dated the 30th of November 1792, upon the freight of the brig, called the Benjamin Franklin, valued at 3000 dollars, for a voyage 'at and from Bourdeaux to a port in the United States,' against 'the seas, &c. arrests, restraints, detainments of all kings, &c.' in the usual terms of the printed policies. The premium was six per cent.; and, it was declared, 'that this insurance is made on the freight of the above brig, valued at the sum insured, for two thirds thereof, &c.'

On the evidence, it appeared, that the brig sailed from Bourdeax on the 17th day of November 1792, bound for Philadelphia; but, on the 20th of November, before she had reached the mouth of the Garonne, she was embargoed by the French government. The embargo continued until the 10th of January 1793; when the brig prosecuted her voyage; arrived at Philadelphia on the 5th of March; and there, on delivery of the cargo, the assured received the amount of the freight, originally stipulated to be paid, from the respective shippers.

During the embargo, however, an expense was incurred, for the seamen's wages and provisions, and extra-pilotage, amounting to 875 dollars and 13 cents, for two thirds of which (according to the proportion of freight insured) the plaintiffs claimed to be indemnified, by the underwriters upon the present policy: and the validity of this claim, was the only matter in controversy, upon the trial of the cause.

For the plaintiffs, it was contended, that the expenses incurred during the embargo, were a direct consequence of the embargo, operating as a partial loss upon the freight; that, therefore, the

Page 4 U.S. 246, 247

sum ought to be paid, or reimbursed, by the defendants, so far as the interest of the plaintiffs extended; that the expenses of the embargo, might either be estimated by the jury, upon a consideration of the time, and the burthen of the vessel; or from the actual disbursement (which the counsel for the defendants agreed and admitted) and that the premium, being paid for an insurance against the peril of an embargo, applied to a partial, as well as to a total, loss of the frieght. In the course of the plaintiffs' argument, the ollowing books were cited: Mill. on Ins. 339. Park, 121. 124. Abb. 274, 5. 282, 3, 4, 5, 6. 2 Marsh. 620. 628. 2 T. Rep. 414. 1 Val. Com. 168, 169, 170. 1 Emerig. 539. Park, 53. 1 T. Rep. 127. 129. 132. 4 T. Rep. 208. 210, 211. 6 T. Rep. 413. 419. 422, 423. 425. Park, 127. 1 Mag. 250. 254. 7 T. Rep. 421. Park, 78. 2 East, 544. 1 Bous. & Pull. 203. Doug. 268. 586. 1 East, 228. 2 Burr. 696.

For the defendants, it was insisted, that on this policy upon freight, specifically, the expenses of seamen's wages, &c. during the embargo, were not recoverable; for, the brig, coming to her port of delivery in safety, had earned, and actually had received, her whole freight. Besides, it was contended, that such an allowance would be contrary to an established and uniform usage, among merchants and underwriters; and it was attempted to prove by the testimony of witnesses, and the certificates of insurance brokers (admitted by consent) that such an usage existed. The attempt failed, however, on the investigation; and the verdict of the jury gave a negative to the usage. In the course of the argument for the defendants, the following books were cited. 1 T. Rep. 127. Park, 59. 2 Marsh. 628. 4 T. Rep. 210. Abb. 221, 2, 3. 2 Marsh. 570. 625, 6. 628. 1 Emerig. 539. Pothier, 'Charter Party.' 35. Park, 116. Abb. 228, 9. 2 Marsh. 467. Park, 124. Wesk. 252, 3. 499. 135. 244. Beawes. L. M. 137. 4 T. Rep. 208. 1 Mag. 168, 9, 170.

The CHIEF JUSTICE delivered the unanimous opinion of the Court (all the Judges being present) in the charge to the jury.

SHIPPEN, Chief Justice.

There is no direct judicial authority in the books, upon the case now before the Court. The case must, therefore, be decided either upon principle, or upon usage.

The present policy is an insurance upon freight, against the peril of an embargo, as well as against the other enumerated perils. The expense for seamen's wages and provisions, claimed upon the policy, was an immediate consequence of the embargo at Bourdeaux. That expense, it has been often decided, does not fall upon the underwriters of the ship, or the cargo; but, it is remarkable, that Judge BULLER (a Judge of uncommon understanding and precision) when, concurring in that opinion, emphatically adds, 'the freight must bear it:' and, if the freight must bear [4 U.S. 246, 248]

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