
    William Oliver versus David Greene.
    
      h. part owner of a vessel, who has chartered the remainder with a covenant to pay the 'value in case of a loss, may insure the whole vessel as his property.
    This was assumpsit on a policy of insurance, in which the plaintiff demands as for a total loss of the vessel insured.
    The facts, as contained in a case stated for the opinion of the Court, were as follows:—
    On the 5th day of "June, Anno Domini 1804, the plaintiff and one Freeman Mayberry, being equal owners of the schooner Hiram, executed a charter-party, by which Mayberry, for a certain monthly hire, let his half-part of the said schooner to the plaintiff [ * 134 ] for the term of eighteen months ; *and it was agreed, in case of the loss of the schooner during the term, that the plaintiff should pay to Mayberry the sum of 1800 dollars, besides any arrears of the hire, and that, for the better security of the said payment, he should procure an insurance to be made for the sum of 3000 dollars on the vessel.
    Accordingly, on the 15th of October, Anno Domini 1805, the plaintiff caused the policy of insurance declared on this action to be opened in the words following, viz. “ Messrs. T. C. Amory fy Co. by order of Messrs. Madan, nephews and sons, on account of Mr. William Oliver, do make insurance and cause to be insured, lost or not lost, the sum of 5000 dollars on the schooner Hiram and her cargo; 3000 dollars on vessel, and 2000 dollars on cargo, from Havanna to St. Cruz, and at, and from thence to Boston, warranted American property.” The defendant subscribed 1000 dollars on the schooner and cargo. The schooner only was lost on the voyage insured by some of the perils expressed in the policy, and during the said term of the said charter.
    Neither the defendant, nor the said Amory if Co., the plaintiffs agents, knew at the time of effecting the insurance, that any person, other than the plaintiff, had any interest in the vessel.
    Upon these facts, it was submitted to the Court to decide what pai't or proportion of the said sum of 3000 dollars the plaintiff was entitled to recover in this action, and judgment to be rendered accordingly, after deducting the amount of the premium notes due, and another sum agreed on as having been saved by the plaintiff from the wreck of the vessel.
    
      Channing, for the defendant,
    
    being desired by the Court to begin, agreed that the defendant was liable for his proportion of one half of the sum insured on the vessel; and as to the other half he rested his defence on three points.
    1st. That, under the policy declared on, the interest which the plaintiff himself had at risk was only insured.
    2d. That, on the state of facts, the plaintiff could recover only according to his real interest, notwithstanding the policy was a valued one.
    #3d. That the covenants in the charter-party vested [ *13o ] no interest in the plaintiff, on which the present policy attached, whence he inferred that the plaintiff was entitled to recover only a moiety of the sum insured.
    The Court desired that the argument might be confined to the third point. In support of which it was observed that the Englisf decisions afforded no rule for the present case. In England, the policy is generally effected by and in the name of an individual, to protect the interest of all concerned. It is impossible, therefore, to suggest a good reason why it should not be extended to every kind of interest, as well as to any person of any character or country. But the policy declared on secures only the interest of the individual named ; and who is named for this special purpose, that the underwriter may know for whom he insures, and thereby avoid any additional risk arising from the character of a stranger with whose country or credit he has no acquaintance.
    If a special interest of the kind disclosed in the present case is in fact covered by a policy of this kind, the whole object of the change which has been made in the form of our policies, and made, too, under the best advice and consideration, is defeated, and the interest of persons, whom the underwriters would never directly trust, is indirectly insured.
    The defendant’s construction in this case is fortified by the valuation in this policy, which must have been understood to have been the absolute interest of the plaintiff in the vessel, no disclosure having been made of the charter-party, and of the special interest now set ip by him. And it is a maxim of the law, established by the best writers on ethics, that a promise is to be enforced according to the sense in which the promiser expected and intended the promisee should or must understand it.
    In the English cases of insurance effected on lives, consignments, prizes, profits, &c., the insured always had an interest in the subject-matter of the insurance, to which, by the implied consent of the underwriter, inferred from the usage of trade, the policies might attach or extend. But in this case the plaintiff [ * 136 ] had such an interest as was the subject *of the valuation, and of course within the contemplation of the parties at the time of making the contract, in one moiety of the vessel only; and as to his limited and special interest in the other moiety under the charter-party, as it was not disclosed, there is no room to presume that it was contemplated.
    In answer to an intimation from Sewall, J., that the charter-party might in this case be considered as a conditional sale, it was answered that the sale in that case must depend on a condition precedent, and until the condition performed, or the happening of the contingency, the interest did not vest. The policy then must attach to an interest in expectation only, and not any actual and present interest, which is going further in search of an interest than even the English courts have gone.
    If, in deciding this cause, the English decisions are to be resorted to, it will be found that, in almost every case where a special interest is intended to be insured, it is specially described in the policy. Thus the commissioners of Dutch prizes expressly insured as such . Freights, profits, respondentia, &c., are always expressed. This is more necessary under our form of policies, as otherwise its whole object may be defeated.
    Cases might be put to show the injury to which underwriters would be liable from admitting the plaintiff’s claim in its full extent, under the circumstances of this case. Suppose, for instance, a citizen of the United States had chartered a Erench vessel under a charter-party like that in the present case, and bad insured her by a similar policy; that in the course of the voyage the vessel had been captured and condemned, and the loss demanded of the underwriters. If they could not defend themselves by objecting that the interest implied by the mode of insurance accepted by the party was different from the real interest of the assured, the loss must be paid. The warranty of neutrality being uniformly omitted in our policies since the adoption of the present form, if will be admitted that such consequence would be directly contrary to the opinion of the mercantile world, and *the rate of premium would show it was not within [ * 137 ] the contemplation of the parties to the present contract. If a recovery in the case supposed would be contrary to acknowledged principles, it is difficult to conceive how the special interest of the plaintiff under the charter-party, in the case before the Court, can be secured by the present policy.
    
      Sullivan, on the other side,
    would have argued in support of the plaintiff’s right to recover the whole sum insured  ; but the Court informed him that it was not necessary.
    
      
      
        Crawford & Al. vs. Hunter, 8 Term R. 13.
    
    
      
      ^(2) Mr. Sullivan favored the reporter with .the following authorities, which he intended to cite in this cause, had there been occasion, viz.Anderson \s.Edie, Park, 432.—Crawford vs. Hunter, 8 Term R. 13.—Saunders by Williams, 203, in note.—Le Cras vs. Hughes, Par/c, 269.—Boehm vs. Bell, 8 Term R. 154.—Page vs. Frye, 2 Bos fa Pul. 240.—Lewis vs. Rucker, 2 Burr. 1171.—Park, 260—271.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

On the facts disclosed by the case, the Court are called upon to determine what insurable interest the plaintiff had in the schooner Hiram, when she was lost, for which he is entitled to recover on this policy.

There is no question as to one moiety of the schooner, which was the absolute property of the plaintiff; the disagreement of the parties is confined to the other moiety, which he hired of Mayberry, a part owner.

It appears from the facts that the plaintiff had hired of Mayberry his moiety for eighteen months; that for the time he was to pay a certain sum per month, and if the schooner was lost during the term, he was to pay Mayberry for his half-part 1800 dollars, which sum, it is not contended, was above the value of half the vessel.

By virtue of this contract the plaintiff had immediately, on its execution, a special property in Mayberry’s moiety, which was at his risk during the term. The contract was fair and legal, and the plaintiff might indemnify himself against the loss by causing himself to be insured. When the schooner was lost, he lost the whole of her; of one moiety he was the absolute owner, and of the other moiety he was the special owner, being liable to pay for her at an agreed price. We are therefore of opinion that the plaintiff is entitled to recover of the * assurers the sum insured, [ * 138 ] on the vessel, he being interested in her to that amount.

It is stated that the insured gave no information of the nature of his interest in the schooner, and on this ground it has been contended that the plaintiff ought not to recover. If the concealment was ot' a material fact, undoubtedly the policy would be void; but it is not slated that the fact not communicated was material, and the Court cannot presume that it was. Indeed, it appears from the case that this was not made a point; for it is admitted that the plaintiff is entitled to recover something from the underwriters. Judgment must be entered for the plaintiff conformably to the agreement of the parties.

There being in this policy a clause, that, if there be an over-insurance, the underwriters shall be answerable for the interest insured according to the priority of their signatures; and it appearing that, of 5000 dollars, the whole sum insured, 2000 were on the cargo, of which there is no loss, each underwriter is to have 2-5ths of his subscription deducted. The remaining 3-5ths on the vessel not being an over-insurance, the underwriters must pay respectively 3-5ths of their subscription, after deducting their several proportions of the sums agreed on by the parties . 
      
      
        [Bartlett vs. Walter, 13 Mass. 267.—Locke vs. R. A. Ins. Co. 13 Mass. 61.—Moses vs. Pratt, 4 Camp. 297.—Everth vs. Smith, 2 M. & S. 278—283. Sed vide Riley vs. Delafield, 7 Johns. 522.—Ed.]
     