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by them assured as they shall be by such prior assurance exonerated from. And in case of any insurance upon the said premises subsequent in date to this policy, the said Sun Mutual Insurance Company shall nevertheless be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled to retain the premium by them received in the same manner as if no such subsequent assurance had been made. It is also agreed that the acts of the insured or insurers in recovering, saving, and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of an abandonment. It is also agreed that the property be warranted by the assured free from any charge, damage, or loss which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade, or any trade in articles contraband of war.
"If laden on board a vessel of a belligerent nation, warranted free from loss or expense, arising from capture, seizure, or detention, or the consequences of any attempt thereat; or if by a neutral vessel, warranted not to abandon in case of capture, seizure, or detention, until after condemnation of the property insured, nor until ninety days after notice of said condemnation is given to the company; also, warranted not to abandon in case of blockade, and free from any expense in consequence of capture, seizure, detention, or blockade, but in the event of blockade to be at liberty to proceed to an open port, and there end the voyage; any stipulations in this policy to the contrary notwithstanding.
“ In case of claims for damage on dry goods or hardware exceeding fifteen per cent, the company to have the privilege of settling upon the principle of a salvage loss, paying to the assured the sum insured, with the freight and the duties.
“ In witness whereof, the president or vice-president of the said Sun Mutual Insurance Company hath hereunto subscribed his name and the sum insured, and caused the same to be attested by their secretary in New York, the sixteenth day of January, one thousand eight hundred and sixty-four.
MEMORANDUM. - It is agreed, that bar, bundle, rod, hoop and sheet iron, wire of all kinds, tin plates, steel, madder, sumac, wickerware and willow, manufactured or otherwise, salt, grain of all kinds, tobacco, Indian meal, fruits (whether preserved or otherwise), cheese, dry fish, vegetables and roots, rags, hempen yarn, bags, cotton bagging and other articles used for bags or bagging, pleasure carriages, household furniture, skins and hides, musical
instruments, looking-glasses and all other articles that are perishable in their own nature, are warranted by the assured free from average, unless general; hemp, tobacco stems, matting and cassia, except in boxes, free from average under twenty per cent, unless general; and sugar, ilax, flax-seed and bread are warranted by the assured free from average under seven per cent, unless general; and coffee in bags or bulk, pepper in bags or bulk, and rice free from average under ten per cent, unless general.
“ Warranted by the assured free from damage or injury from dampness, change of flavor, or being spotted, discolored, musty or mouldy, except caused by actual contact of sea water with the articles damaged, occasioned by sea perils. In case of partial loss by sea damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents of the packages so damaged and not otherwise; and the same practice shall obtain as to all other merchandise as far as practicable.
This company is not liable for leakage on molasses or other liquids, unless occasioned by stranding or collision with another vessel.
“If the voyage aforesaid shall have been begun and shall have terminated before the date of this policy, then there shall be no return of premium on account of such termination of the voyage.
"In all cases of return of premium in whole or in part, one-half per cent upon the sum insured is to be retained by the assurers. " $100,000 (one hundred thousand dollars).
“S. WHITEHEAD, Vice-President. “ E. R. ANTHONY, Secretary."
“1864. February 2. Additional $100,000 (one hundred thousand dollars ), subject to same conditions as above.
“S. WHITEHEAD, Vice-President. "E. R. ANTHONY, Secretary."
Written on margin opposite additional subscription the following:
“Warranted by the assured free from all claim for loss or damage arising from any warlike or belligerent act, or from capture, seizure, restraint, or detention by any privateer, cruiser, or armed vessel whatsoever.".
3. This policy was issued with the expectation that it would be used by The Ocean Company for the purposes of reinsur
ance, an arrangement for such a business on the part of the company having been made.
4. Dec. 24, 1863, Charles S. Pennell, as an owner and agent of the ship “C. S. Pennell,” of 975 tons burthen, and then lying in the harbor of Portland, Maine, chartered the whole of the vessel, including the state-rooms in cabin not used by the officers, and deck-rooms not used for the crew or for sails and stores, to Sutton & Co., for a voyage from New York to San Francisco. No cargo was to be received on board except with the written consent of the charterers, and they were to pay “ for the charter or freight” on the good and proper discharge of the cargo in San Francisco, $26,500, less two and one-half per cent commission. George M. Melcher was at the time master of the ship, and his primage on the freight money, if earned, would have been $1,325. This charter will be referred to as the San Francisco charter.
5. After the making of this charter the vessel sailed from Portland to New York, and was there put up and advertised by Sutton & Co. as a general ship for San Francisco. That firm at that time represented what was known as the Dispatch Line of San Francisco packets.
6. January 30, while the ship was in New York, loading under her San Francisco charter, and advertised for that voyage,
her master chartered her again to the Peruvian government. By the terms of this charter she was to sail from New York on or before June 1, 1864, to San Francisco, and thence proceed, with all convenient dispatch, to Callao, Peru, and from thence, if on inspection she should be found to be well conditioned for the voyage, to the Chincha Islands for a cargo of guano to be taken to Hamburg or Rotterdam. The freight to be paid was at the rate of £4 per ton of 20 cwt. British net weight of guano, subject, however, to a deduction of five shillings per ton if the vessel was not ready in Callao to proceed to Chinchas by December 15. This charter will be referred to as the Rotterdam charter.
7. On the 5th of February, 1864, while the ship was in New York loading, Charles S. Pennell, a part owner, took from The Ocean Company a policy insuring his interest in the ship for $8,000 against war risks, and bis interest in the Rotterdam
charter for $8,000 against marine risks on the voyage between New York and the Chinchas. In this policy the duration and locality of the risk was described as “at and from New York, to, at, and from San Francisco, Callao, and the Chinchas."
8. George M. Melcher was at the time owner of one-eighth of the ship, and master.
On the 20th March he wrote one Sawyer, his agent at Portland, advising that the ship was about ready to sail, and directing that insurance be effected on his interest as follows:
$5,000 3,300 1,325
War risk to San Francisco, ship
tons, at £4 to £7,000, at currency rate of exchange,
In the same letter it was said: “I think you had better put 5 or $6,000 more marine risk in case I should lose the ship.”
9. Upon the receipt of this letter Sawyer applied to The Ocean Company for a policy upon the Rotterdam charter, primage, and personal effects to San Francisco. In doing so, he exhibited his letter of instructions and explained fully all the circumstances. The risk was accepted and the policy issued March 23, in which the risk was described as follows: “ $6,550 on charter; $2,650 on primage ; and also $1,500 on property on board ship . Charles S. Pennell,' at and from New York to San Francisco."
10. On the same day The Ocean Company insured the master for $3,000 on his interest in the ship during the whole of her voyage, describing the duration and locality of the risk as "at and from New York to, at, and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and aischarge in Europe."
11. On the same 23d of March the president of The Ocean Company wrote the vice-president of The Sun as follows:
I also enclose returns for registry as follows: $5,000, ship 'C. S. Pennell,' to San Francisco and Chinchas, war; $5,000 fr. of do. ... P.S. - I also enclose an additional return for insurance on charter, primage, and property per ship C. S. Pennell' to San Francisco only."
The returns enclosed in this letter were as follows: “To the Sun Mutual Insurance Company:
“Enter on open policy of this company No. 51,564, $5,000 on charter of ship • Charles S. Pennell’at and from New York to, at, and from San Francisco and Callao to Chinchas.
Rate, three per cent on board. “New York, March 23d, 1864.
u J. W., V. P. Ocean Ins. Co.
“Per G. A. W., Sec'y." “To the Sun Mutual Insurance Company:
“ Enter on open policy of this company No. 51,564, war risk only, $5,000 on ship · Chas. S. Pennell,' at and from New York, to, at, and from San Francisco to Callao to Chinchas.
“ Rate, three per cent on board. “New York, March 23d, 1864.
" J. W., V. P. Ocean Ins. Co.
“Per G. A. W., Sec'y." "To the Sun Mutual Insurance Company:
“Enter on open policy of this company No. 51,564, $6,550 on charter, $2,650 on primage, and $1,500 on property, on board ship "Chas. S. Pennell,' at and from New York to San Francisco, including war risk. Rate, six
per cent on board. “New York, March 23d, 1864.
“J. W., V. P. Ocean Ins. Co.
“Per G. A. W., Sec'y."
The first and second of these returns were for reinsurance on the risks taken for Charles S. Pennell, and the last on account of the risks taken in favor of the master on the Rotterdam charter and personal property on board, from New York to San Francisco. The risk on the vessel, taken in favor of the master at the same time, was not reported to The Sun Company.
12. Upon the receipt of this letter, with its enclosures, the