The assur entitled to a XVIII. RETURN OF PREMIUM. 1. HOMER V. DORR, March T. 1813: 10 Mass. Rep. 26. Assumpsit on premium notes, given for insurance on the cargo. ed are not of the ship, Regulus, from Boston to Archangel, and back to Boston. She delivered her outward cargo and returned home in ballast. It was proved that a usage existed in all the insurance offices in Boston, public and private, to return a portion of the premium on such policies, when the vessel returned without a return of premium where the vessel re turns in bal last not withstand ing a usage be shown to that eflect. Premium notes given for insur ance a gainst the Blockade perils of a cannot be recovered where in fact there cargo. Per Cur. The law applicable to this case is plain, well settled and generally understood. Evidence of custom and usage is useful in many cases, to explain the intent of parties to a contract. But the usage of no class of citizens can be sustained in opposition to the principles of law; Eddie, et al. v. East In dia Company, 2 Burr. 1216. 2. TAYLOR V. SUMNER, ET AL. March T. 1808. 4 Mass. Rep. 56. The defendants heard of the arrival of the schooner the plaintiff had insured at Martinico, and they supposed the Island to be blockaded by the British, and applied to the plaintiff to be insured against the increased risk, on account of the supposed blockade. And the following memorandum was endorsed on the policy: "Boston, 3 Sept. 1804. As the schooner Eliza & blockade as Mary has got into Martinico, we, the subscribers, in considerasupposed by tion of an additional premium of twenty-six and one third per cent, agree to take the risk of the same at and from thence to her port of discharge in the United States, without prejudice to this policy." was no the parties. Martinico was not blockaded, as appeared by the evidence at the trial, and the risk contemplated was never incurred. Per Cur. Parsons, C. J. To us it appears from the representations on which the memorandum was made, that the parties coatemplated no other risks, but those arising from an existing blockade, and that the memorandum can be extended to no other risks; Therefore any loss happening by a future blockade could not be a charge upon the insurers. And if the memorandum was made through innocent error, and without any fraud, it is void, and the premium stipulated as the consideration for making it cannot be recovered. 3. MURRAY V. THE COLUMBIAN INS. Co. 4 Johns. N. Y. Rep. 443. Insurance on the ship Egeria, "at and from Calcutta to NewYork, with liberty to touch at Madras for trade, and to take in part of her cargo there." The ship sailed from New York and arrived at Madeira, touched at the Cape of Good Hope, and from thence to Madras, and direct to New York. Per Cur. Thompson, J. There must, I think, be a return of premium in this case, on the ground that the policy never attached, and of course the underwriters were not exposed to any risk. Whether the risk was increased or diminished by the ship's not going to Calcutta, may be uncertain; it is enough that the parties have, by their contract, designated that as the place where the risk is to commence, and it is not competent for the Court to substitute any other in its stead. Judgment for the plaintiff. 4. WADDINGTON V. THE UNITED INS. Co. Aug. T. 1819, 17 Johns. Rep. 23. The declaration was on a policy of insurance on the brig African, at and from Gottenburgh to Carlshune, or any other port of delivery in the Baltic. The declaration averred a total loss, and contained the common money counts. The policy never attached, and the question was, whether the plaintiff could recover a return of premium in this form of action. Per Cur. The plaintiff abandons all claim except for the return of the premium, and on this he claims interest. The defendants admit their liability for the premium, but insist it ought not to be recovered in this action, an contend also that interest ought not to be allowed. We are of opinion, that the plaintiff is entitled to recover the premium and interest thereon, from the time of the commencement of the suit. Where the policy has not attack ed, the in sured is en titled to a return of And inter est. XIX. OF DOUBLE AND REASSURANCE. 1. A contract MERRY V. PRINCE. NOV. T. 1806, 2 Mass. Rep. 176. Action on the case upon two policies of re assurance, upon of re-assur the Brigantine Columbia and cargo, and upon the schooner VOL. VI. 25 Har- ance is val id. mony and cargo. Several other policies had previously been taken on both vessels and cargoes; and the question was, whether a re-assurance was a valid contract. Per Cur. Sedgwick, J. That a contract of re assurance is not prohibited by the principles of the common law, is admitted by the parties. It is a contract which, in itself, seems perfectly fair and reasonable, and might be productive of very beneficial consequences to those concerned in this important branch of commerce; but, because it was much abused and turned to pernicious purposes, it was prohibited by an act of the Parliament of Great Britain, by which re assurance was rendered illegal in all cases, except where the original assurer should become insolvent, a bankrupt, or die; 19 Geo. 2. c. 37. s. 4; but which has no operation here. Definition 2. PERKINS V. THE NEW ENGLAND INS. Co. March T. 1815, 12 Insurance on the Sidmouth license on board the ship William of double in and Henry, from Boston to Alexandria, valued at $2000 against surance. its loss by capture, by the British or Americans, or other powers, and against the perils of the seas. The policy contained this clause, "and it is hereby agreed, that if the assured shall have made any other insurance upon the license aforesaid, prior in date to this policy,, then this insurance company shall be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property at risk." Before the defendants underwrote the policy, the owners of the ship entered into articles of agreement with the plaintiff to return to him the license free from endorsement or other blemish which might injure its validity for any other vessel the plaintiff might use it for. And in the agreement was this further provision, "and it is further agreed between the parties, that in case the said license shall be otherwise lost, or injured, so as to render it useless to the said Perkins for any other vessel, or in case the said ship shall arrive safe, and the master thereof, shall refuse or neglect to return the said licence to the said Perkins, or his order, then the owners agree to pay the said Perkins, or his order, on demand, the sum of $2000, with interest till paid." The ship sailed from Boston to Alexandria with the license on board not filled up, and at the entrance of the Chesapeak bay, she was boarded from the British squadron and warned off, and informed the Chesapeak was blockaded, and the license endorsed that if the vessel was found violating the order, she would be seized and sent in for condemnation. The ship sailed for, and arrived at Philadelphia. The plaintiff abandoned for a total loss. Verdict for plaintiff, for a total loss. Held by the court, Putnam, J., that this was not a double insurance. A double insurance is where one insures the same thing twice over, against the same perils. But here the perils undertaken by the owners of the ship are not the same which the defendants assumed. The owners engaged, in effect, that the license should not be destroyed or injured by them, or any under them. The defendant took other risks. Thus, where one procures an insurance from one underwriter against the dangers of the seas; from another against the danger of an enemy; from a third against barratry of the master, &c. although these several insurances are upon the same ship, they are not double; because the assured can receive but one satisfaction. There has been a loss within the policy. The license by the endorsement was rendered useless for any other ship and it being a valued policy, we are of opinion the verdict must stand. 3. LUCAS V. THE JEFFERSON INS. Co., Feb. T. 1827, 6 Cowens' N. Y. Rep. 635. insurances cd as mak Per Cur. Woodworth, J. It is well settled, that upon a doub- In double le insurance, though the insured is not entitled to two satisfac- the policies tions, yet in the first action, he may recover the whole sun in- are consider sured, leaving the defendant to recover a rateable satisfaction ing but one. from the other insurers. In such cases the two policies are considered as making but one insurance. The insured may sue the underwriters on both policies; but he can only recover the real amount of his loss, to which all the writers shall contribute în proportion to their several subscriptions. XX. CONSTRUCTION OF THE POLICY.* 1. DAVIS V. BOARDMAN, March T. 1815, 12 Mass. Rep. 80. Insurance on the Eliza and her cargo, from the United States It is the du to Ireland, and at the foot of the policy, it was provided, that ty of the court to give * A policy of insurance is to have a liberal construction; Pelly v. Royal Exchange Insurance, 1 Burr. 349. And the terms used in the instrument are to be understood in their plain, ordinary, and popular sense; Robertson v. French, 4 East. 130. But full effect by ascer taining the the contract should this vessel and cargo be insured in England, in time to attach, this policy is to be cancelled, on the assured's produmeaningof cing a copy of the policy, or the original, and paying one half per cent." Insurance was made in England on the vesssel only, and not on the cargo. The vessel sailed for Cork, and was never afterwards heard of, and it was believed had foundered. The plaintiff abandoned. the parties to it, and the word "and," may be us ed for "or, and "or," for "and." And the written part prevails over the printed. Per Cur Jackson, J. The principal question in this case turns upon the construction of the memorandum at the foot of the policy. It seems impossible to doubt as to the intention of the parties in making it. He intended to be insured here only to the extent of what he should fail to get insured in England. The word "and" may be construed "or," and it is the duty of the Court to find out the intention of the parties, and to give the contract full effect. The intent and effect of the memorandum is, that if the ship be insured in England, this insurance on the ship is to be void, and if the cargo be insured in England, the insurance here made on her cargo is to be void. Reddendo singula singulis, the memorandum is co-extensive with the policy; and the condition which is to anul the contract, is applicable to both or either of its parts, according to the event. We are entirely satisfied that the insurance, so far as it respects the ship, is annulled and defeated by the memorandum, and by the events which have occurred; and the insurance on the cargo is effectual, and the contract in that respect in full force against the defendant. 2. BROOK, ET AL. v. LOUISIANA INS. Co., July T. 1826, 16 Martin's Lou. Rep. 681. The written controls the printed part of the policy. (And see Coster v. Phoenix Insurance Company, 2 Wash. Rep. 51; where where by the custom of the trade they have received a particular and definite meaning, the construction must be in accordance thereto; Grant v. Ponto, 1 Taun. 463. And in construing a policy, the particular state of the commerce, the object of insurance, may be looked into to explain it; Mellish v. Andrews, 2 M. & S. 27. But usage cannot be resorted to to contradict a policy; Aquilor v. Rogers, 7 T. R. 423. The clear and unqualified language of the policy cannot be qualified-as, to show by the custon of trade at a particular place, the risk on the goods, as well as on the ship, exped in twenty four hours; Parkinson v. Collier, 2 Park. 4:6: or that the 1 risk was not to commence at the place specified; Haines v. Knightly, Skin. 54: or that the ship named in the policy was not to be included within its provisions; Weston v. Eames, 1 Taun. 119. But evidence was admitted to show, that in mercantile usage the Gulf of Finland is included in the Baltic; Uhde v. Walters, 3 Camp. 16. And so also it was allowed, to prove, by mercantile usage, that it was not usual for a ship to join convoy.until he arrives at a particular place, as the Downs, &c. |