
    Ogden against The Columbian Insurance Company.
    ALBANY,
    
    August, 1813.
    !n a poiey oif goods from 'jY^YrkJti *®r “ the raid merchandises aZ'lhihlring w0.nls wet'¿ written, ” eighteen at’fmn- collars
    be. an °PeB thát^th: “pre“¿“^d&d® cost <f the goods, n estimonnufiossl Where, policy of insnranee contained a clause warranting not to abandon in case of capture or detention, until six months after notice thereof to the insurers; and the vessel was condemned in less than a month ater her capture, it was held that the insured had a right to abandon immediately after candemnatim; tht warranty being confined to the cases of capture or detention only.
    THIS was an action on a policy of insurance on the cargo of the ship Henry and Francis, and on the freight of the same ship, on a voyage from Marseilles to New-York. The policy contained the following clause, the words in italics being part of the printed form, and the other part being written in a blank: “ The said goods and merchandises hereby insured are valued at eighteen francs, valued at' four dollars and forty-four cents.” The policy also contained the following written clause: “ Warranted 1 , . American property, and not to abandon, m case of capture or detention, until six months after notice thereof delivered to this company, nor to abandon if turned off or warned away, but permitted to proceed to a near open port.” The vessel being an American vessel, owned by the plaintiff and others, sailed from Marseilles on the 21st September, 1811, having on board goods the first and invoice cost of which was 77,735 francs 55-100, which, at the rate of 18 francs to 4 dollars and 44 cents, was equal to 19,175 dollars, On the 24th September she was captured by a British cruiser and carried into Malta, where the ship and cargo, on the 16th OctoberT condemned as prize. On the 22d January, 1812, the plaintiff gave the- defendants notice of the capture; and on the 13th March, 1813, delivered to them the master’s protest, and an authenticated copy of the condemnation, with the usual proofs of interest, and at the same time abandoned the subjects insured to the defendants.
    A verdict was taken for the plaintiff, subject to the opinion of the court on the following points: 1. Whether the plaintiff was entitled to add the premium to the invoice cost of the goods, and to recover the whole amount Z.
    
    
      - 2. Whether, under the terms of warranty, the assured was entitled to abandon on the 13th March, 1813? And it was agreed that if the opinion of the court should be in favour of the plaintiff, on both points, the verdict was to stand: if in favour of the defendants, judgment of nonsuit was to be entered; if in favour of the defendants on one point only, the verdict was to be varied accordmgly.
    The case stated that the plaintiff produced evidence to show that the cargo was purchased by the sale of bills of exchange on London, to show the rate of exchange between England and France, and the loss arising on such sale; but this evidence was objected to by the defendants.
    
      T. L. Ogden, for the plaintiff contended,
    1. That this was not a valued policy. It bad none of the requisites of a valued policy. There is no agreement as to the value of the goods. It is a value of the franc only, in order to show the difference of exchange, or the prime cost of the goods. The value in a policy is in the nature of liquidated damages and saves the necessity of proving it, in case of a total loss. In an open policy the amount of interest must be proved. The relative value of a franc and a dollar was agreed on, merely as a means of ascertaining the amount of interest. These goods were purchased and paid for in bills on London, and the object was to fix the rate of exchange. By no other construction would the insured be indemnified. In Minium & Champlin v. The Columbian Insurance Company, the coffee was valued at 25 cents per pound, and the premium was added in calculating the amount of interest.
    2. The clause as to the abandonment restricts the right of the assured, and ought to be taken strictly. A warranty is to be construed according to the understanding of merchants, and is not to extend beyond the commercial import of the words. The plain and Obvious intent of the parties was, to restrain the right to abandon for a certain period, in case of capture and detention. There could be no possible reason for such a restraint, in case of condemnation. Suppose, immediately after capture, the vessel should be destroyed by fire, or wrecked, would the right to abandon be still suspended ? In case of a condemnation, the assured are not bound to enter an appeal; and in Gardere v. The Columbian Insurance Company, it was held that the condemnation gave the plaintiff a right of action, and that a suit might be commenced without violating the clause in the policy, that the insured were not to abandon, in case of capture or detention, until six months after notice.
    
      C. I. Bogert and S. Jones, jun. contra.
    The agreement is that for every 18 francs contained in the invoice, the assurer should pay 4 dollars and 44 cents. This was made for the very purpose of covering the difference of exchange and expenses, which the assured could not have recovered on an open policy. It-is like the valuation of the skins, in the case of Kane v. The Columbian Insurance Company,
      
       and of the coffee, in the case of Minturn v. Columbian Insurance Company. A single skin and a single pound of coffee only was valued in each case, and the insured'was bound to show the number of skins or of coffee, in order to ascertain the amount of interest and loss. Yet those were held to be valued policies. If this, then, was a valued policy, the insured cannot add the premium. He can recover only for the value agreed. There is not an instance of the premium being added to a valued policy, and the only question here is, whether this was such a policy or not. In Minturn v. The Columbian Insurance Company, the court certainly intended no more than that the loss should be adjusted on the principles stated in the case of Kane v. The Columbian Insurance Company.
    
    2. The objection as to the abandonment is made not to defeat this action, but merely to prevent a recovery of interest, until after 30 days after the expiration of six months from the time of capture. If the insured could not claim his principal until after the expiration of that time, he ought not to be allowed interest. The clause stipulates that in case of capture there shall be no abandon-' ment until six months after notice. Condemnation is a mere consequence of capture. The effect of the clause is to give to the insurers a credit of six months after the cause of loss has happened. The words “ unless condemned” are now usually inserted in P°^c*es *° av°id this consequence.
    
      D. B. Ogden, in reply,
    insisted that this was an open policy. The valuation of the livre was inserted merely to enable the parties to ascertain the first cost of the goods. In Minturn v. The Columbian Insurance Company the court did decide that the premium was to be added, for they said that the loss was to be' adjusted according to the statement on the part of the plaintiff contained in the case; and the premium is included in that statement. But this case is different from that as well as from the case of Kane v. The Columbian Insurance Company. There the goods themselves were valued. Here there is no valuation of the merchandise, but only' of the franc.
    
    In case of capture the insured may abandon immediately and leave the property to its fate. This clause was inserted to suspend the right to make capture or detention the ground of abandonment, until the capture or detention had continued for six months. The ground or cause of abandonment, however, was not, in this case, capture or detention, but condemnation. It was so> expressly stated in the letter of abandonment. By condemnation, the property is changed and gone from the insured, as completely' as if it had been sunk in the sea. And it may well be questioned w'hether the insured, in case of condemnation, is bound to abandon any more than in the case of an absolute physical total loss. In Gracie v. New-York Insurance Company, it is said by the Chief Jtistice, that after a condemnation in the court of last resort, or by the definitive sentence of the highest tribunal of the country, an abandonment is not necessary, for it would be absurd to make an abandonment when there was nothing to be abandoned. And as the insured are not bound to appeal, it may be doubted whether he is bound to abandon in any case where there has been a condemnation.
    
      
      
         Marsh. 287. b. 1. a 8. s. 1.
    
    
      
      
        Ante, 75.
    
    
      
      
        Marsh, c 87. b. 1. c. 9. s, 1.
    
    
      
       7 Johns Rep. 514.
    
    
      
       8 John's Rep. 229.
    
   Per Curiam.

This is undoubtedly an open policy. There is no valuation of the goods insured; the expression “ the .said . goods and merchandises hereby insured are valued at 18 francs, valued at 4 dollars and 44 cents,” amounts only to an agreement of the parties, that what the assured paid 18 francs for in France ghould be estimated at 4 dollars and 44 cents. It was an ascertainment merely of the value of francs according to our standard; and at by no means dispensed with the necessity, of showing the value of the goods on board. It follows, then, that the assured has a right to add the premium of insurance as a part of his insurable interest.

If the plaintiff is to be understood as claiming any thing in consequence of the sacrifice he made in raising funds by the sale of bills of exchange, that claim is unfounded; the insurers have no concern with the rate of exchange; the prime cost is the criterion, without reference to the manner in which the assured raised money to purchase the goods.

It is objected that the abandonment has been made too soon, and that by the warranty in the policy, the plaintiffs were restrained from abandoning, until six months after notice, of capture or detention, delivered to the defendants. The evidence in this case shows a capture followed up by a condemnation of the property insured; and it appears to us that the warranty, by fair and reasonable construction, does not extend to the case of condemna* lion; the object of the warranty was to limit the right of the assured to abandon m cases of capture and detention. Either of these, if continued to the period of abandonment, would have been 'a just cause of abandonment; but still, within six months after notice of either, they might have ceased, and the property might be Restored. The parties meant to provide for the cases of capture and detention merely. Condemnation is a higher event, fixing the right of property. The parties have not provided for that event; and it never could have entered into their contemplation; that the assured was not to abandon whenever a condemnation had taken place. There can be no motive assigned for a stipulation not to itbandon, until six months after notice of a condemnation, though there are very sufficient reasons for not abandoning until six months after notice of a capture or detention. In our opinion, this abandonment was well made on the 13th of March, 1812, and the plaintifTis entitled to judgment on the verdict.

Judgment for the plaintiff. 
      
       10 Johns; Rep. Marsh. 622.
      
     
      
      
        1 Esp. Rep. 77.
      
     