
    Ogden against The New-York Firemen Insurance Company.
    vessef“Ttand St°Pekr“inrgft° touch'aT^o»Tangiere ^^and Wingo sound," (Gottcuburgh,) &c.forapremi¿he.Tate of 40. Tetum'ís per Eefpassel Uie Gut of Gfraij the 20th of June, and, the risk ends with-per cent.’ if' the ífetyMt GottenvesS’saiiedon snredXnipass¿he oth^of ju^ oil the 17th of •count of j1,,0 th<¡ 5fety: and ífThe advTncl of the French arms and state of. the ports in the north, the paster con Ton the°proseysyage and go ^heStheTesséj and cargo were seized, on bearing of the - ... war between the United States-ánd: Greed Britain.
    
    ■ it was held that the risk was-divisibleand that'the underwriters being discharged, by the act of: the insured, from all risk from Gotienburgkto St. Petersburgh,wtre bound.to-feturAtiíe 15 per cent.,.the'stipn^ Med premium, for such' risk. . ..
    THIS was an action of assumpsit, brought to recoverback Part °f the premium paid.by the .plaintiff to the defendants,. on; two policiés.of insurance, on yessel.añd freight, dated the i 2th, August,. 1812. The voyage 'described in the policies was, Wat and from .Malta to St. Petersburgh, Avith liberty to- touch . , , ... . , • , *' . at Cagliari,1 Algiers,: Ttmgiers, and wingo Sound, and to seek, wait for, join and leave convoy at'any time during the voyage»’’. The- premium was. declare'd to■ be V at and after the rate of fdvty per pent, to return .fifteen per cent, if the vessel passes the Gut 0f Gibraltar on or before the - 20th. of June last,-and the risk ends Avithout loss, or, fifteen per cent, if the risk ends iti. . r - ..... ■ safety. dl. Gottenburgh. - ;.......
    
      .. Wingo .Sound is the outer road or harbour, of Gotténburgh. . , ,The vessel sailed ,on, the voyage insured, the= 4th..of, July, 1812,7 and passed, the Gut of Gibraltar, ,oxi the 9th of, July ; pn fHli °f July,.being' in -the English channel, .she mét witjii. violent ad verse Winds* in - consequence, of which she came tp anchor in. the. Jfowns.ioT safety. The,supercargo, Avrote ¡to the correspondent of the assured at London,, for .information as ,tp political situation x>£ the. northern ports, and astio 'the.adf pf'the French armies; to wards. Si. 'Petersburgh, The foi-. lowing day, and during the" continuance of the same gale, the supercargo. received, an answer to his.letter, informing him of: ;t^e Avancé of the Frenph armies, and their probable success, and, advising him to come, to London. The "supercargo con-1 ° • "• - eluded to. do so,, and accordingly proceeded to London, but be- . * .v ■ ‘ - ' _ ¿ ■_ ' ’ y-fore the am val of, the: vessel at that place, accounts were r-e?ceived of the. declaration. of war by the,' United, States against, Great Britain, and the Vessel' and cargo AAtere- seized .by the port admiral, and Were afterwards condemned as droits of ad~ mipaltV. ... ' ' ■ ' ■ - - ■
    
      
      '■ At the New-York sittings, in May last, a verdict was taken for the plaintiff for 3,194 dollars, being the amount of premium to be returned, subject to the opinion of the court on a case, as above stated, with liberty to either party to turn the same into a special verdict.
    D. B. Ogden, for the plaintiff.
    The defendants having, by the voluntary act of the master, been released from the risk of the voyage beyond Gottenburgh, and the risk having ended safely, the plaintiff is entitled to the stipulated return of premium for that portion of the voyage.
    
    It will be said, perhaps, that the policy is to be construed strictly according to its terms, and that, as the vessel never went to Gottenburgh, the risk did not end in safety there. But the rule is, that the policy is to be construed according to the evident intention of the parties, and not according to the words. The discharge of the underwriter from all the risk, is equivalent to arriving in safety. '
    By the act of the insured, in this case, the enterprise was voluntarily abandoned; the risk from Gottenburgh to St. Petersburgh was never run, and the insurers were wholly discharged from it. They ought, therefore, to return the fifteen per cent., the estimated premium for that risk. In Dagleish v. Brooke,
      
       Le Blanc, J. says, “ the term, safe arrival, is with reference to the responsibility of the underwritersand as the ship and goods, in that case, had both arrived at a spot which released the underwriters from all responsibility, it was for the benefit of the underwriters to construe it as an arrival at the port of discharge, so as to release them from any further risk, and that entitled the insured to a return of premium.
    A person ought not to be paid for a risk he has never incurred, and therefore, where there áre two distinct points of time, or distinct voyages, either in the contemplation of the parties, or by the usage of trade, only one of which is performed, the premium ought to be returned in the other, though both are contained in one policy.
    
    
      Wells and S. Jones, jun. contra.
    We do not pretend that the insured are not entitled to a return of premium where no risk has been run. But we must look at the. terms of the contract between the parties in this case. The fifteen per cent, is to be returned, “ if the ' risk ends in -safety at- Gottenburgh.'1-■ - ;The words « in safety,” aré -inípórtaht, and must have some meaning and effect; but on the reasoning of the-plaintiff’s 'counsel-they must be struck out of the policy. '
    This is not an insurance at and from Malta to Gottenburgh, for twenty-five per cent.,' and if the- vessel proceeds thence to St. Petersburgh, then- fifteen per .cent, more-to foe paid; -but-it is on a voyage from Malta to St. Petersburgh, for a premium of forty per cent; The return of tliefifteen per cent, depended on the double 'contingency of the Vessel arriving at Gottenburgh, and arriving- there in safety. • It was hot to be returned if-the-vessel arrived at .that place -after being shattered by a storm,' so as to subject the underwriters to a-loss; Where the risk is entire, and has once-, commenced, .though the time Of its continuance be ever so- short, there can foe'no-return of-pre-j mium. . This .subject was fully discussed in thé case of Hendricks v. Commercial Insurance Company,
      
       which was decided on that principle.- - The risk commenced;on. the vessél-’s leaving Malta, wad if she had been lost the next day after her departure,' the insured could not have claimed1 a return, of ..any part of the premium.: But it is argued that the deviation in this ease was equivalent 'to a safe arrival at Gottenburgh. On this principle, every, deviation: which discharges; the underwriters from 'theie;' responsibility, Would entitle the insured to a return óf.prentftiifB,
    In the case of Audley v. Duff, the vessel sailed with convoy/ and the fleet being dispersed, she r un for Portsmouth, 'and at*"rived, and thfe only question was, whether this was sailing with convoy. t 4 \ - - ■ ■ -f ’■ v. •- •"»'
    1In Myer v. Gregson,
      
       the wessef was.warranted to sail"on -tir before .the 1st of August; to return eight guineas of- the .premium, if she sailed witfo-convoy. ‘ The vessel did'not sail,until . September, and the underwriters were wholly discharged "from-the policy, andwhether she sailed with coiivoy or not could make no difference. The' premium was voluntarily .paid- -into.: court;; The • question as to the return of premium was not foe* fore the c.ourt.- The only point deeided>was, that where the; risk is entire, and has once commenced, there can foe no return of premium- Marshall, though he refers to this case, states the proposition broader than the case will warrant; b at-Park, inireferring to .the same:.case, lays down no. such position, .but/ merely states the general rule, which no person will dispute,
    
      
      T. A. Emmet, in reply.
    There is no adjudged case precisely like the one before the court, and the only point is as to the application of general principles. It is a sound principle, that contracts are'to be construed and understood according to the clear intent of the parties»
    In this case, as it regards the underwriters, the risk ended in Safety before reaching Gottenburgh. What reason can there be why the premium should not be returned in this case, as well as in the case of her safe arrival at that place ? The defendants can show no possible injury from the breaking up of the voyage without going to Gottenburgh ; on the contrary, they are saved from the risk of loss, which would have existed had she proceeded until her arrival at that port.
    The meaning of the clause,. as to the return of the fifteen per cent., is, that if no loss happens before the vessel reaches Gottenburgh, and she does not go beyond that port, then so much of the premium is to be returned. The argument that this is an entire risk from Malta to St. Petersburgh, and therefore, it having commenced, the entire premium is to be retained, would apply to every case of an apportionment and return of premium. For certain purposes, for the benefit of the underwriters, the contract is considered entire; but for-other purposes, it is, also, considered as divisible. This is like a voyage at and from New-York to Lisbon, and at and from Lisbon back to New-York, and if the voyage ends in safety at Lisbon, .so much of the premium is to be returned.
    The principle is correctly laid down by Park,
      
       which is supported by the case of Stevenson v. Snow.
      
       In case of a-deviation, though a return of premium cannot be demanded for the risk which has begun to run, yet it may be demanded for such part of the risk as has not commenced. Marshall “ if it be stipulated that there shall be a return of part of the premium for sailing with convoy and arrival, and in consequence of a breach of warranty, or the non-performance of some stipulation, or of a deviation, the underwriters be dis* charged before the ship can sail with convoy, the insured shall be entitled to the stipulated return of-premium, because the discharge of the underwriters is, to them, equivalent to. a sail-, ing with convoy and arrival.” If we generalize this position, (and, to be. a principle of law, it must be generalized,) it-is-this: that wherever the commencement of a risk, for which a premium has been received, has been prevented; by any cause whatever; theinsiired is entitled to a'retum-bf. preunum.
    ,It’is said that Marshall is not supported in his position, by the case he cites; but he is clearly supported by the case of Stevenson v. Snow, and Marshall himself is.no- weak authority.
    
      Again, in Tyrie v. Fletcher,
      
       Lord Mansfield says,, “ that the underwriter receives the premium for running the risk of in.demnifying the insured, and to Whatever cause it be owing, if he does not run the risk, the consideration for which , the premium was paid; fails, and he, .therefore, ought to return it.”' The present is -an -admitted case of deviation; Which wholly discharged the underwriters from the risk; and though no cáse precisely similar, as to the facts, is to be found,...yet the general" principle which is to govern the decision is clear, and perfectly;i applicable. • " .- ■ ... ' •’
    
      
      
        Marsh. on Ins. 669, 670, 676.
    
    
      
      
         Audley v. Duff, 2 Bos. & Pull. 111. Marsh. 676.
      
    
    
      
       15 East, 295.
    
    
      
      
        Park on Ins. 516. and cases cited.
    
    
      
      
         8Johns. Rep. 1
      
    
    
      
       Park, 527.
    
    
      
      
        Park, Ins. (6th ed.) 516.
      
    
    
      
      
         Burr. 1237. S. C. Bl. Rep. 318.
      
    
    
      
      
         Marsh. Ins. 676.
      
    
    
      
      
         Cowper, 519. Park, 519, 520.
      
    
   Thompson, Ch. J.

delivered the opinion of the court'.,:. This-is an action to recover back part , of the - premium paid. bn two. policies óf insurance oil a voyage from Malta to Si.' Fctersburgh. The policy contains several.special stipulations,; ás to- touching and staying at intermediate, ports. The clause relating to the premium is as follows“ At and after the- rate' of forty -per cent,,- to return fifteen, per cent., if the vessel passes the Gut of Gibraltar on or before - the twentieth of June last/ and the risk ends without-loss ; or fifteen per cent', if the risk' ends in .safety at GottenpurghAnd -it is for the return of the' fifteen per cent, last mentioned; that this action is brought.

While on the voyage, and in the English channel; the supercargo received such information, as to induce him to abandon the voyage to Fctersburgh, aifd go to Loydon.' The argument; urged oh the part of the defendants against the return of premium, is,, that the arrival in safety at Gottenburgh, was the condition upon which- the premium was,to be returned-; and the • vessel, not having arrived there at all, the. condition.has not been; performed. This, does nbt appear to me to be a fair interpretation. of this provision in the .policy. It would be too rigid a construction, and obviously against the intention of the. parties. The premium is paid for the risk assumed and run by the underwriters. And, although- the" policy covers .the whole: voyage, from Malta, to St. Peiersburghy if the assured 'should choose to end it at the latter place, yet the stipulation as to the return of premium manifestly shows, that in the contémplation of the parties, circumstances might occur, which would render it advisable to end the voyage at Gottenburgh. The voyage must, therefore, be considered divisible, and the premium follows such divisibility. The risk from Gottenburgh to St Peters-burgh, was calculated at fifteen per cent., for that sum was to be returned, in case the risk on that part of the voyage was not run. The risk is the consideration for the premium, and it was matter of perfect indifference to the underwriters, whether the vessel arrived at Gottenburgh or not. The assured had the election of terminating the voyage there; and if it was broken off before, the vessel was never On the voyage from Gottenburgh to St. Petersburgh, and the policy never attached, so far as it relates to that part of the voyage. The arrival in safety at Gottenburgh, cannot be presumed to be the contingency upon which the fifteen per cent, was to be returned. It was the exoneration of the underwriters from all risk beyond Gottenburgh, which entitled the assured to a return of premium, according to the fair and reasonable interpretation of the policy. The plaintiff is, accordingly, entitled to judgment. ■

Spencer, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff.  