Spring v. South Carolina Ins. Co. 8 W.

feeling uneasy and insecure from the responsibility resting on them, and aware that they could be indemnified only by a specific lien, they would not deliver to Dearborne the policy, but put it for safe-keeping into the hands of their friend, Henry Harford, for the express and avowed purpose of protecting them against all losses on the accounts aforesaid; the said policy being also intended as a security for certain debts due by Dearborne to Harford. Now, without looking any further than the answer of these gentlemen, it is most manifest that none of the demands or responsibilities which are stated in it were contracted or entered into under any agreement or understanding with Dearborne himself, as Harford would have us believe, that they should be secured by a lien on this policy, but that such lien is set up solely on the ground of a subsequent understanding between them and Harford, to whom it was delivered, for the purpose of protecting them against loss. To derive any benefit from such a delivery, or such an assent on the part of Harford, it should appear, (which is not

the case,) that they had a right to exact, and Harford a [290] right to accept, ofthe policy on these terms. Unfortu

nately for these gentlemen, the testimony of their friend and witness, Mr. Harford, most incontestably establishes, that they were bound by the decision of persons of their own choice, of whom Har ford himself was one, to deliver the policy, without annexing to such an act any condition or terms whatever; and also, that the authority of Harford extended only to its receipt and transmission to Mrs. Dearborne, the wife of Mr. John H. Dearborne. On the 21st of September, 1811, which is subsequent to all their advances, indorsements, and engagements for John H. Dearborne; he and Gray and Pindar submitted all their controversies to two arbitrators, who, in conjunc tion with Harford, as umpire, awarded that Gray and Pindar should pay to Dearborne $66.77, and surrender to him the policy on The Abigail Ann, without unnecessary delay. Now, this award could not have been signed by Harford, if he knew of any lien to which Gray and Pindar were entitled on this policy. It was said that no notice could be taken of this award; but coming, as it does, from a witness of the party, who was himself umpire, and not being im peached, this court cannot, without injustice, shut its eyes upon it. If a bill for its specific performance might have been entertained, which was not denied, what higher or better evidence can the court have of the rights of the respective parties, at the time of the transactions referred to in the answer of Gray and Pindar? If judges of

their own selection have directed them, as they had a right [291] to do, to surrender this policy without delay, and unconditionally, to Dearborne, this court must now presume, (and

Spring . South Carolina Ins. Co. 8 W.

it is a presumption with which neither Gray and Pindar, nor Harford, can be justly offended,) that the policy was delivered to the latter, pursuant to the award; and if not, that any condition with which they thought proper to accompany such delivery, if not a breach of the arbitration bond, would at least be a trespass on good faith; and that no assent or understanding, on the part of Harford, who was without authority for this purpose, could confer any validity, or give any sanction to such an act. This award is also of importance to show how entirely mistaken Gray and Pindar are, in supposing Dearborne, at the time they speak of, so largely in their debt, when it appears by this instrument, that the balance, although not a large one, was in his favor.

As to Harford's power, it appears, from his own letters, that he had no other authority than to transmit the policy when received, to the family of Dearborne. Accordingly, in a letter to Seth Spring and Sons, of the 26th of September, 1811, he transmits, for Mrs. Dearborne, the bill of sale for The Abigail Ann. And in another letter of the 3d of November following, to the same gentlemen, he apologizes for not sending on the policy, as it had not yet been received from Charleston. After this unequivocal evidence of what was his authority over this policy, it becomes quite unimportant to inquire what agreements he may have made, or what orders he gave Lindsay respecting the proceeds of it. It is not too much to say, * that the one of the 13th of May, 1813, in favor of Haslett, [* 292 ] by which the whole proceeds, after Lindsay's retaining for himself his legal claim and expenses, was a palpable violation of duty, or breach of instruction, towards Dearborne; and it was properly said by the circuit court, "that to vest any interest, hostile to that of Seth Spring and Sons, was certainly not in his power." Gray and Pindar, having been originally interested in this ship and policy, on which there was some reliance by their counsel, places them, as it regards a lien, in a condition less favorable than if such ownership had never existed; for by such overt acts, as the execution of a bill of sale of the vessel, and a delivery of the policy, pursuant to the award, to the agent of Dearborne, they have done all in their power to inform the world that they had no claim on either for any demands against Dearborne.

There is error also, in that part of the decree, which directs Seth Spring and Sons, to account for their claims on Dearborne. The complainants have no right to an account; and the defendants being called here only to interplead, and having failed to establish any claim on this fund, have as little right to such an account. They cannot, at any rate, require it in the position in which they now

*

Hughes v. Union Insurance Company of Baltimore. 8 W. stand as co-defendants with Seth Spring and Sons. It is but justice to remark that, for aught that appears in the present suit, there is no reason to suspect the integrity of the assignment to Seth Spring and Sons; they appear to be respectable merchants, and to [293] have been large creditors of Dearborne. It is the opinion of this court that the decree of the circuit court be reversed, so far as it postponed the demand of the appellants to those of Lindsay and of Gray and Pindar, and directed them to account; and that, instead thereof, a decree must be entered in their favor, for the whole amount recovered on the policy, with interest, (the money not having been brought into court,) at the rate of 6 per cent. per annum, from the time of rendering the judgment, the complainants deducting therefrom their costs of suit. The defendants must pay their own costs.

HUGHES V. THE UNION INSURANCE COMPANY OF BAltimore.

8 W. 294.

Under a policy upon vessel and freight at and from Teneriffe to Havana, and at and from thence to New York, with liberty to stop at Matanzas," it is not a deviation to unlade cargo at Matanzas, if the vessel was then necessarily waiting in that port to avoid cruisers and the unlivery occasioned no delay.

Under such a policy, it is not a deviation to take a cargo at Havana for New York, though the vessel sailed from Teneriffe under a charter-party which secured a round sum for the hire of the vessel for the whole voyage and with a cargo, which was to be landed at Havana, this charter-party not being represented to the underwriters.

A representation that the cargo is to be covered as American, is substantially complied with if it was in fact American.

If the master, at an intermediate port in the course of the voyage under a charter-party, compromises the charter-money for a less sum and a release of performance of the residue of the voyage, the underwriters cannot insist that he thereby obtained the freight money for the whole voyage.

In an action of debt on a policy of assurance, the plaintiff may claim a verdict for the sum established to be due, by entering a remittitur of the residue of the sum demanded in the writ.

[* 295 ]

*ERROR to the circuit court of the United States for the district of Maryland. This was an action of debt, upon a policy of insurance, in the usual form, dated on the 27th of May, 1807, on the ship Henry, "lost or not lost," "at and from Teneriffe to Havana, and at and from thence to New York, with liberty to stop at Matanzas." Eighteen thousand dollars were insured on the ship, valued at that sum, and $2,000 on the freight, valued at $12,000, and the property was warranted American.

On the 1st of June, in the same year, a policy was executed on the freight of the ship Henry, by the same company, for the same voyage, to the amount of $10,000, the whole freight being valued at $12,000.

Hughes v. Union Insurance Company of Baltimore. 8 W.

In this policy, also, the property was warranted American; but there was no liberty to stop or touch at Matanzas, or any other place.

Both these policies were effected under an order for insurance, by Henry Thompson, of Baltimore, as agent for the plaintiff, an American citizen, who was master for the voyage, as well as owner. order is in the following words :

The

"Baltimore. May 18, 1807.

*" GENTLEMEN: Insurance is wanted on $18,000 on the [*296 ] American ship Henry, Capt. Henry Hughes, and $12,000 on her freight, each valued at the same; at and from Teneriffe to Havana, and at and from thence to New York, against all risks.

"The Henry was expected to sail on or about the 12th ult., she is a remarkably good vessel, about 270 tons burden, and now on her first voyage. Said ship and freight are the sole property of Capt. Hughes, who gives the following particulars in his letter of instructions to N. Talcott, of New York.

"We are to clear out for New Orleans; the property will be under cover of Mr. John Paul, of Baltimore, who goes supercargo on board, yet Mr. Paul will only have part of the cargo to his consignment. There will be three other persons on board, that will have the remainder of the cargo in their care. We are to stop at the Matanzas, to know if there are any men of war off the Havana.

"When you make insurance, which I expect will be done low, you will state the whole of this business; so that there will be a right understanding of the voyage.'

"At what premium will you insure the above risks?

HENRY THOMPSON."

*

(Signed.) The Henry sailed from Teneriffe on the 17th of April, 1807, with a cargo for the Havana, *which belonged to [ 297 ] Spaniards, but appeared as the property of John Paul Dumeste, (the person mentioned in the order for insurance by the name of John Paul,) a citizen of the United States, who went as supercargo. She took a clearance for New Orleans. This cargo was laden at Teneriffe, under a charter-party, which bore date the 10th of March, 1807, and represents New Orleans as the port of destination, without any mention or notice of the Havana. The parties to it were Dumeste, and Henry Hughes, the master. The freight mentioned was $11,000, of which it was stipulated that $5,000 should be paid at New Orleans, and the remaining $6,000 at New York.

The ship proceeded to the Havana, where she arrived on the 7th of July; having put into Matanzas on the 2d of June, to avoid. British cruisers then in sight, and unladed the cargo, which was there delivered to the real Spanish owners. The real freight to the

Hughes v. Union Insurance Company of Baltimore. 8 W.

Havana, amounting to $7,000, was paid at Matanzas to the plaintiff, who received it "in full of all demands for freight or otherwise, under or by virtue of the aforesaid charter-party and cargo." It was proved that this unlading did not produce any additional delay or increase of risk; for the ship left Matanzas and proceeded to Havana in ballast, as soon as there was any reasonable prospect of escaping the cruisers stationed in the way, and was enabled to proceed sooner and more safely, by being in ballast, which put it in her power to keep closer in shore. At the Havana she took in a new [*298] cargo, belonging to persons in New York, and consisting

of 120 boxes of sugar, at a freight of $3.50 the box. On the voyage she sprung aleak, soon after which she transshipped a part of her cargo, consisting of 60 boxes, into The Rising Sun, a vessel bound to Norfolk, where the property was safely landed. Within about two days after the transshipment, The Henry sunk, and was totally lost, with the rest of the cargo. The master and crew escaped in their boat. In attempting to make their way to New York, they were taken up at sea, in an almost desperate situation.

The freight was abandoned to the underwriters, and a demand was made of payment for that and the ship; which being refused, this action was brought to recover both. The sum demanded by the writ and declaration was $20,000, and the loss declared on was by the dangers of the seas, one of the perils mentioned in the policy. On the plea of nil debet, issue was joined, and the case went to trial.

At the trial, the plaintiff gave the charter-party in evidence, as one of the documents necessary or proper for establishing the neutral character of the vessel and freight; but there was no evidence of its having been at any time produced or mentioned to the defendants, or in any manner known to them. He also proved his own national character, and that of the ship, his interest in the ship and freight, the commencement and prosecution of the voyage, and the loss and abandonment. By an admission at the bar, he expressly limited his

demand of freight to that earned on the 120 boxes of | * 299 ] * sugar, amounting to $420, and renounced all claim to any

further or other sum on that account.

The defendants then gave in evidence the separate policy on the freight, which is mentioned above; and also produced evidence tending to show that the plaintiff, in his management respecting the said ship, after the leak was discovered, was guilty of gross negligence, in not using such means as were in his power for conducting the said ship into a place of safety in the Delaware; and that he might have conducted her into a place of safety there, had he used those means.

The plaintiff then gave evidence of the causes, nature, and dura