
    The Chesapeake Insurance Company vs. Allegre’s Adm’rs.
    
    June, 1830
    Where actions upon two policies of insurance for the same voyage, one upon the cargo, the other upon the vessel, were tried before the same jury at one time, proof that the word cargo, in the one policy, did not, according to the mercantile interpretation and usage of the place where the policies were effected, cover a shipment of mules, is not evidence that the other policy on the vessel is a nullity. A perilous cargo to the insurer does not necessarily, increase the perils of the ship owner.
    
      It is true, as a general rule, that in an order tor insurance upon a vessel, it is not necessary to state the nature or condition of the cargo designed to be transported. If the underwriters desire information upon that subject,, it is for them to ask it.
    In such ease, the underwriter is presumed to be acquainted with the ship-owner’s rights. In the absence, therefore, of fraud, or evidence to vary the general rule, the payment of a loss under the policy, cannot be resisted upon the ground that a larger premium would have been required for the insurance of a vessel employed in transporting mules, than was stipulated' to be paid under a contract which did not mention the nature of the cargo.
    Appeal from Baltimore County Court.
    This was an action of Covenant on a policy of insurance brought by the appellees’ intestate against the appellants-The declaration stated, that the policy was made on the 22d of April, 1820, between the then plaintiff and the defendants, whereby the plaintiff, as well for himself as for' and on account of all and every other person or persons to whom the said did or might appertain, in part or in whole,, did make insurance, lost or not lost, at and from Rio de la Plata to Havana, with liberty of touching at Martinique, $5000 upon the body, tackle, &c. of the brig called the Eugene, whereof was master for that voyage, Chalumeau, &c. Beginning the adventure upon the said vessel, &c. at and from Rio de la Plata, and so should continue and endure until the said vessel he arrived at the said ports of Martinique and Havana, fyc. The declaration, in the usual form, proceeded to state the nature of the policy, and averred that at the time of making the policy, Charles A. Chalumeau was the owner of the said brig, and that the insurance was made by the plaintiff, in trust for the use and benefit of the said Chalumeau. That on the 1st of July, 1820, the said brig, being tight, staunch and strong, sailed from Rio de la Plata, on her intended voyage towards Martinique and Havana, and whilst so proceeding, on the 15th of July, in year aforesaid, on the high seas, the said brig was, by the perils and dangers of the seas, and by stormy and tempestuous weather, and the violence of the winds and waves, bulged, broken, damaged, &c. and the said brig thereby wholly lost to the said Chalumeau, &c. The death of the plaintiff was suggested, and his administrators, (the appellees) were made plaintiffs. The defendants pleaded non infregit conventionem, and issue was joined.
    1. The plaintiff at the trial gave in evidence the policy of insurance upon which this action was brought, dated the 22d of April, 1820, whereby the defendants insured the plaintiff’s intestate for the concerned, at and from Rio dela Plata to Havana, with liberty of touching at Martinique, $5000 upon the body, tackle, &c. of the brig called the Eugene, whereof was master for the voyage-Chalumeau, or whoever else should go master, &c. Beginning the adventure upon the said vessel, tackle, &c. at and from Rio de la Plata, and so should continue and endure until the said vessel be arrived at the ports aforesaid. The policy then proceeded in the form of that used in the case of the same plaintiffs against the Maryland Insurance Company, omitting the clause respecting the survey of the vessel. By a memorandum signed by the president, on the 8th of June, 1820, the defendants stated that they would consider the above insurance as made at and from Monte Video to Havana. The plaintiffs also gave in evidence, that at the time the said policy was effected, the vessel was in every respect seaworthy, and arrived in the river La Plata at Monte Video, and there commenced loading on board her a cargo of mules and jackasses on the 5th of June, 1820, and having taken the same on board, sailed from the river La Plata on the 12th of July, of that year, for Havana; and during the progress of the voyage, by storms and tempests, the said vessel was compelled by necessity to put into Rio de Janeiro, where the vessel was regularly surveyed and ascertained to be totally unworthy of repairs, and condemned and sold; and the assured, in due time, duly made an abandonment of the vessel insured in due form to the defendants. The plaintiffs further gave in evidence, that the said vessel was an American vessel, and belonged to Charles A. Chalumeau, for whose account the insurance was made; and they read in evidence, by consent, the protest made and sworn to by the master, mate, and two of the seamen of the brig Eugene, before the vice consul of the United States of America, for the port of Rio de Janeiro, on the 19th of August, 1820, detailing minutely all the particulars of the shipment of the cargo on board the vessel — her sailing on the voyage, and the loss sustained. The master at the same time requiring a regular survey to he made of the vessel, &c. The plaintiffs also read in evidence sundry depositions of witnesses, taken and returned under a commission issued for that purpose from Baltimore County Court, to certain persons, named as commissioners, at Rio de Janeiro. As the questions decided by the Court below, do not appear to depend upon this testimony, it is omitted. The plaintiffs also gave in evidence, that at the time of, and long before, and since this policy was effected, mules and jackasses were an ordinary article of merchandize, and were shipped in various directions as merchandize from the river La Plata. They further gave in evidence, by Henry Armstrong and Janies Bosley, the same witnesses who proved the foregoing facts, that to their knowledge, mules are an ordinary article of exportation from Rio de la Plata to Martinique, Santa Cruz, and other Windward Islands; but that they did not, within their own knowledge, know of mules being carried to Havana from the river La Pialar — never having been at Havana. And also proved by the said witnesses, that they never knew of any other cargo being carried from the river La Plata to the West Indies, than jerked beef or mules.
    The defendants then read in evidence, by consent of the plaintiffs, the following order for insurance, upon which the policy above mentioned was made: “Baltimore, April 22d, 1820. Gentlemen — Insurance is wanted for account of the concerned, at and from Rio de la Plata to Havana, with liberty of touching at Martinico, on the brig Eugene, Chalumeau, master, valued at $5000. Said brig left' the Capes, bound out, on the 12th of January last. It is therefore presumed that she will sail from Rio de la Plata in the course of the next month. What will be the premium? J. B.A. Allegre.” “5 per cent.” “Agcee&,J. B.A. Allegre.”
    
    They also offered to read the following paper: “Baltimore, August 15th, 1820. Gentlemen — By a letter from captain Chalumeau, of the brig Eugene, it is mentioned that she will sail on or about the 5th June, direct for Havana. I make you this declaration in order of altering the policy of insurance effected at your office in regard to the time of the sailing of the above vessel. J. B. A. Allegre.” “Agreed.” It was admitted that the last mentioned paper was carried to the office of the defendants about the time it bears date, by the said Allegre, in whose handwriting it was admitted to be. That it was submitted to the board, and agreed to by them, and the word “ agreed,” entered thereon in his presence. To the admissibility of which paper in evidence the plaintiffs objected, and prayed the opinion of the Court, that the said paper was not legal and proper evidence. But the Court, (Hanson, A. J.) was of opinion that the said paper was admissible, and permitted it to be read to the jury, for the purpose of showing whether the said. Allegre made the statement in the order of insurance as to the sailing of the said vessel, concerning his actual knowledge as to the time of said sailing, but not for the purpose of showing a change of the original contract between the parties. The plaintiff excepted.
    2. The plaintiffs and defendants then offered in evidence that which is stated to have been offered by them in the third bill of exceptions, taken in the before mentioned case of the same plaintiffs against the Maryland Insurance Company; (see ante 140) and the plaintiffs made the same prayers to the Court, and their direction to the jury, in this case, as they made in the above mentioned case. Which directions, and each of them, the Court refused to give. The plaintiffs excepted.
    3. The defendants then prayed the Court to direct the jury, that if they find from, the evidence, that according to the usage and mercantile understanding among underwriters and insurance companies in Baltimore, whore both plaintiffs and defendants resided, a general order for insurance on a vessel is not considered as comprehending a vessel employed in transporting live stock or animals, and that a larger premium is always required by insurers, when an insurance is effected on a vessel that is intended to be employed in transporting a cargo of live stock or animals, than an ordinary cargo of dead merchandize, then the plaintiffs are not entitled to recover in this cause, as the order for the insurance, on which the policy is founded, does not comprehend, according to the mercantile usage and understanding of the same, a vessel employed in transporting a cargo of mules and, jackasses. Which direction the Court refused to give; hut delivered the same opinion and instructions to the jury, as were given by the Court on the prayers of the plaintiffs in the third bill of exceptions taken in the case preceding, (ante 136) of the same plaintiffs against the Maryland Insurance Company. The defendants excepted.
    4. The defendants then prayed the Court to direct the jury, that if they find from the evidence given, that a larger premium would have been required by the defendants for an insurance of a vessel to be employed in transporting a cargo of mules and jackasses on the voyage insured, than was stipulated to ho paid by the policy in this case, then the risk is materially increased, and the plaintiffs are not entitled to recover. Which direction the Court refused to give. The defendants excepted ; and the verdict and judgment being against them, they appealed to the Court of Appeals.
    This case was argued before Buchanan, Oh. J., Aeches, and Doesey, J.
    
      
      Meredith, for the appellants,
    (the defendants below) contended, that the prayers of the defendants in the third and fourth bills of exceptions, ought to have been granted. This question is to be treated as a question of concealment. It was the duty of the assured to disclose, that the vessel was to be engaged in the transportation of live stock. Park on Ins. 287. Carter vs. Bœhm, 3 Burr. 1905. The inquiry is, would the fact concealed, effect the premium? If it would, the concealment destroys the policy. Harrison’s Index, 738. 1 Marshall, 471. 1 Dow, 324. The .premium would have been increased, if it had been known that mules and jackasses were to constitute the cargo. Nothing could excuse the assured, but evidence of the usage of trade, and in this case there is no such evidence.
    
      Taney, (Attorney General) and Mayer, for the(appellees.
    No attempt was ever before made, to compel the assured to make known the nature of the cargo which was to go in his ship. If he is bound in any case, he is bound in all cases, and this cannot be contended. It is the peculiar province of ships to carry cargo, and when their owners ask for insurance, it is understood they are to enjoy this privilege. They referred to Philips on Insurance, 92. 2 Wash. Cir. Court Rep. 255.
    
      Wirt, for the appellant, in reply.
    The object of the prayer in the fourth exception, was to get an instruction to the jury, that any circumstances which would increase the premium, are material, and must be disclosed. A party is bound to disclose the nature of the cargo when it exposes the ship to peculiar peril. In this case the voyage was direct from Monte Video to Havana; there was no intermediate port. It has been asked how the assured could know that the cargo was to be a live one. He could not but know that such a cargo might be shipped. That it is necessary to state the service in which the ship is to be employed, and the concealment will destroy the policy; he referred to Marshall, 471, 467, (note.) Harrison’s Index. 738. 1 Doug. 97.
   Doksey, J.,

delivered the opinion of the Court.

With the questions decided by the Court below, on the appellees bills of exception, this Court have no concern. Their duty is confined to an examination of the points determined against the appellants, and for the revision of which their exceptions were taken. It is apparent from the records, that the two cases of Allegre’s Administrators vs. The Maryland Insurance Company, (ante 136) and The Chesapeake Insurance Company vs. Allegre’s Administrators, were both tried in the County Court at the same time, and before the same jury. Without adverting to this circumstance, it would be difficult to account for the introduction of much of the evidence embraced in the bills of exceptions; in the latter case, it being wholly irrelevant to the issue for trial before the jury. The instructions, therefore, which were prayed for by the appellants, must be predicated only on that portion of the testimony which is applicable to the issue in this cause. The proof, then, of mercantile interpretation, or universal understanding amongst insurance companies and underwriters in the city of Baltimore, that the order for insurance of the cargo of the Eugene, or goods and merchandize on board of her, would not cover mules or live stock, is not evidence to prove that the policy on the brig is a nullity, because the underwriters were not apprised that she was to be employed in the transportation of mules. A perilous cargo to the insurer, does not necessarily increase the perils of the ship owner. No testimony had been adduced to show, that in the city of Baltimore, the order now in question would not sustain a policy in thé mule trade. The Court, therefore, were right in refusing to instruct the jury, (as required by the appellants in their first bill of exceptions) “that if they find, from the evidence, that according to the usage and mercantile understanding among underwriters and insurance companies in Baltimore, where both plaintiffs and defendants resided, a general order for insurance on a vessel, is not considered as comprehending a/vessel employed in transporting live stock, or animals,” &c. that the plaintiffs were not entitled to recover. To have granted such an instruction, would have been to have authorised the jury to find a fact, of which no testimony legally sufficient to warrant such a finding, had been submitted to their consideration. The refusal of the Court below being sustained, and their opinion conceding to the appellants more than they had a right to demand, the first exception furnishes no ground for reversing the judgment.

In rejecting the application of the appellants, as stated in their second bill of exceptions, the County Court were also right. As a general rule, it is true that it is not the duty of him who seeks insurance on his vessel, to state to the underwriters the nature or condition of the cargo which he designs to transport. If they desire information on the subject, it is for them to ask it. It would be carrying the doctrine of concealment far beyond its present limits, if, in a case like the present, where granting the instruction assumes as facts established before the jury, (the plaintiffs below having offered evidence to that effect) “that a cargo of mules does not increase the risk of the vessel;” that mules are the known and only article of trade between La Plata and Havana, except jerked beef, the Court should determine, that, if knowing that a cargo of mules were to be laden on board the brig, the insurers would have demanded a higher premium, then the policy is void; although it might be, that the premium received were double that which would have been required on an insurance on beef, and was an averaged premium, upon a fair calculation, of •the probabilities of the nature of the cargo, derived from a knowledge of the trade, with which the underwriters are presumed to he acquainted. No imputation of fraud has been cast upon the assured, or him whose interests he represented. The instruction sought, is not predicated on that basis,

JUDGMENT AFFIRMED.  