
    David Ogden, Plaintiff, v. The New York Mutual Insurance Company, Defendants.
    1. Where a policy of insurance is “ on all passage money received, * * for passengers on board ” a ship named, for a specified voyage, * * “ all risks to attach as soon as said passengers are engaged and paid for,” and where, by the. statute law of the country where the policy is issued and the passengers are shipped for the voyage, the person receiving the price of the passage from the passengers, contracts to land such passengers at the port of destination, free of any charge beyond the passage money so received, and where, after the vessel sails on such voyage, with passengers who have paid their entire passage money in advance, she is lost with all the passengers; the assured is entitled to recover the amount of the passage money contracted to be paid, and so advanced by the said passengers.
    2. The fact that such statute was not in force when the policy was issued, but was passed subsequently, but prior to a renewal thereof and the transaction in question, does not affect the interpretation and legal effect of the policy as thus renewed.
    3. In such a case the passage money, though paid in advance, can be recovered back.
    4. The fact that all the passengers are lost, and the possibility that the ship owner may not be called upon to refund the passage money, does not affect the question of his liability to the passengers and their representatives, nor that of the liability of the insurers.
    (Before Bosworth, Oh. J., and Monorief and White, J. J.)
    Heard, May 14,1861;
    decided, June 1, 1861.
    
      Exceptions taken by defendants at the trial, and there ordered to be first heard at General Term. The action is on a policy of insurance issued by the defendants to the plaintiff.
    1. The plaintiff, being part owner and ship’s husband of the ship Driver, obtained a policy, dated January 13th,. 1855, which was renewed from time to time, and on the 22d October, 1855, was renewed for $25,000, and again April 25th, 1856, for $25,000, and the risk for the voyage in question was indorsed on the policy.
    The policy was the ordinary form of a policy on cargo, but contained the following expressions material to this suit. It was issued to “David Ogden, on account of whom it may concern.” The insurance was, “ at and from Liverpool to NewYorlc, on all passage money received hy A. Taylor & Co., or hy their agents in Liverpool, for passengers on hoard the ships Driver, and others, all rislcs to attach as soon as the passengers are engaged and paid for.”
    
    The printed clause of the cargo policy was retained. “ Upon all lawful goods,” &c. “ Beginning the adventure from, &c., the loading, and so shall continue, &c., until the said goods shall be safely landed.”
    2. The ship sailed on the voyage from Liverpool, February 12, 1856, bound for ETew York, with 344 passengers on board, all bound to Eew York. The passage money for these passengers was paid to A. Taylor & Co., before the Driver sailed, and amounted to $6,395.
    This amount and risk was duly indorsed on the policy by the Company.
    The ship was never heard from, and probably foundered at sea.
    3. After the ship had got out of time, and it was concluded she Avas lost, the plaintiff called on the defendants for the loss; and the only objection made by the defendants was, that as the passage money had been received, the insured had sustained no loss. ETo objection was made for want of preliminary proof of loss and interest.
    
      The vessel also was insured by the defendants, and they paid the loss on the vessel insurance in September and October, 1857.
    4. The defendants, on cross-examination of the plaintiff’s witnesses, proved that the passage money received went to pay the provisioning and disbursements of the ship.
    5. The allegations in the complaint as to the passage money, are, that the ship sailed, &c., having on board 344 passengers, the passage of which had been paid to A. Taylor & Co., and their agents in Liverpool, and amounted to $6,395. And an averment that the ship sunk, &c., and was, with all of said passengers and all on board, wholly lost, and she never completed her said voyage, and never earned the said passage money or any part of it.
    On the trial, had before Mr. Justice Woodruet and a Jury in December, 1860, the plaintiff, against the objection and exception of the defendants, read in evidence the English Passenger Act of August 14th, 1855. Section LXXI of that act, provides that every person (with an exception not applicable to this case) “ who shall receive from any person, for or in respect of a passage in any ship, * * shall give to the person paying such money,
    a contract ticket, signed by the owner, charterer or master of the ship,” * * in the form contained in Schedule K. for cabin passengers; and in the case of all other passengers, in the form contained in Schedule L., and that “ any directions contained on the face of such form of contract ticket shall be obeyed in the same manner as is herein set forth.”
    
      Each form of contract ticket contains the following (inter alia) viz.:
    In consideration of the sum of £ I hereby agree with the person named in the margin' hereof, that such person shall be provided with class cabin passage in the above named ship, to sail from the port of for the port of in with not less than cubical feet of luggage for each ^person, and that such person shall be victualed as class cabin passenger during the voyage, and the time of detention at any place before its termination; and I further engage to land the person aforesaid, with luggage, at the last-mentioned port, free of any charge beyond the passage money aforesaid; and I hereby acknowledge to have received the sum of £ - 5 full ? payment of such pasln ( part <¡ sage money. Signature in full, Place and date, [If signed by a broker or agent, state on whose behalf.] . No. of Persons. Names. Adults above 12 years. Children 12 years and under. Total No. of persons, 1
    The defendants moved to dismiss the complaint on various grounds (covered by their points, following): the motion was denied and they excepted.
    The Judge ordered a verdict for the amount claimed by the plaintiff, with interest, being $8,119.69. The defendants excepted.
    The Judge thereupon ordered the exceptions arising on the trial, to be first heard at General Term, and judgment, in the meantime, suspended.
    This case, and the proceedings on a former trial of it, are reported in 4 Bosw., 447.
    
      T. H. Lane and Wm. Curtis Noyes, for defendants.
    I. The purpose of the policy is clearly indicated by taking all its parts together as modified by the written portions.
    It is obviously meant to insure against any loss of passage money if the ship should be detained, or he obliged to return to port, or to seek a port of refuge, or some other contingency should occur by which the passengers should become a charge and expense to the ship, which charge and loss was to he made good by the underwriters.
    It is well settled that the intention of the parties is to be deduced from the whole instrument, and if there is any inconsistency in a policy of insurance, the written part will control the printed words. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 73-80 ; Howland v. Com. Ins. Co., Anth, N. P., 2d ed., 42.)
    II. The plaintiff admits that he has sustained no loss, but, on the contrary, was paid the passage money before the vessel sailed. According to his construction of the policy, it would be a wager, as regards the passage money, he having no insurable interest. There could be no risk on passage money actually received. (1 R. S., p. 652, §§ 8, 9, 10 ; 2 R. S., 4th ed., p. 72.)
    III. The plaintiff is not liable to return any portion of this passage money. The payment by the passengers was absolute, and the condition of their being taken on board; they could not, after the voyage had been commenced, have recovered any portion of it. (1 Arn. on Ins., 220, 261, and cases there cited ; Abb. on Shipping, 408, 410 ; Andrew v. Moorhouse, 5 Taunt., 435 ; Gillan v. Simpkin, 4 Camp., 241 ; De Silvale v. Kendall, 4 Maule & Selwyn’s R., 37 ; Winter v. Haldimand, 2 Barn. & Adolph., 653 ; 2 Show., 283 ; 3 Kent, 225, 226 ; 4 Pick., 434.)
    1. The safe arrival of the passengers was not a condition precedent to the payment; the consideration was in receiving the passengers on board, and making due efforts to deliver them. The ship could not be compelled to refund the passage money. (Watson v. Duykinck, 3 Johns., 335.)
    2. This is the universal mercantile usage. The ship is obliged to furnish stores, provisions, &e., for the passengers, and therefore exacts payment in advance as a condition of receiving them, and is not bound to refund the money; and, in absence of proof of any other contract, this usage must govern.
    3. If it was a condition precedent, it was waived by the prepayment, and cannot be recovered back without some fault on the part of the shipowner, by which the voyage was not completed.
    
      4. The prepayment being a waiver of the condition, no agreement to pay the passage money back can be implied within any of the cases cited, or upon principle. (Fland. on Shipping, § 447 ; McGloin v. Henderson, 6 Louis. R., 715 ; Gibson v. Bradford, 4 Ellis & Black, 584 ; 30 L. and E., 134.)
    IY. But if this were not so, and the passengers could have recovered the passage money paid, they, the passengers, are all lost, and it does not follow, neither is it averred or proved that they left any personal representar tives, or that these would have any interest such as to recover back any portion of the passage money.
    Y. Even if the legal' liability to refund (if any claim against the plaintiff should ever be made) were clear, it would not support this action. The insurance is for indemnity against the actual loss or damage, not against the possible contingency of claim and recovery.
    YI. But there was no liability to refund. The complete performance of the contract to carry to Hew York, if one was.made, was rendered impossible by the act of God, so that the passengers could not tender themselves to be carried, nor could they be carried. When a ship is lost by a peril of the sea only, the owner is entitled to a reasonarble time to procure another ship to carry the passenger forward, the same as in regard to freight, and the passenger must tender himself for that purpose. This could not be done, and no recovery under any contract under the passenger acts, or implied from the agreement to carry, could be had against the shipper until such tender.
    1. As to contracts, the performance of which is rendered impossible by the hand of God, see Story on Con., § 975 ; Beebe v. Johnson, 19 Wend., 502, per Nelson, Ch. J. ; Moakley v. Riggs, 19 J. R., 69 ; Taylor v. Bulleon, 6 Cow., 627.
    2. As to the rule that the shipper has a reasonable time, and the party must offer himself, see Abb., 406, and notes to Perkins’ Ed. ; Fland. on Shipping, §§ 244 to 249.
    YII. The plaintiff' did not prove that there was any contract by which the passage money was agreed to be refunded in case the passengers were not delivered at the port of destination, nor did he show any liability so to refund, and the case is not changed from what it was when formerly before the Court. There should, therefore, be judgment for defendants. (S. C., 4 Bosw., 447.)
    
      William Cutting and Daniel Lord, for plaintiff.
    I. The plaintiff, as the party with whom the contract was made in trust for all the owners, can maintain this action in his own name. (Code, § 113 ; 2 Phil. on Ins., § 1965.)
    II. The basis of the policy was the mutual supposition that the passage money, although paid in advance, could be recovered back from the insured in case the voyage was not performed.
    1. The attaching of the policy depended on the payment of the passage money in advance.
    2. By the express terms of the passenger contract, the passage money was paid on the owners’ undertaking to provide a passage in the ship, to victual the passenger, and to land him at the port. And this form of the contract was imperative by the act of Parliament of August 14. 1855.
    The stipulation as to landing the passenger was not contained in the form of contract, under the former English passenger act of 1852.
    3. This act of 1855 being in full effect when the policy was renewed in October, 1855, gave specific substance to the subject insured, as much as if a special agreement, to the same effect, had been made at the commencement of the voyage in question.
    IH. By the defeating of the voyage by the perils insured against, the owners lost their right to retain the passage money, and a total loss accrued under the policy.
    1. The subject insured was a contract, and the rights to exist under it, against their being lost by perils of the sea; when by the specified perils the right, under the contract, is defeated, then the loss has occurred which the policy insured.
    2. The passenger contract, like that of freight, is an entirety, and a complete performance is a condition to a right to receive the compensation, or to retain it if paid in advance. (Phelps v. Williamson, 5 Sand. S. C. R., 581 ; Griggs v. Austin, 3 Pick., 21 ; Brown v. Harris, 2 Gray, 359 ; Cope v. Dodd, 13 Penn. R., [1 Harris,] 35.)
    3. It is not material that, in case of a loss of the ship, the passenger could not claim to be carried on. He can claim that, as he has not been carried on, according to the condition of his engagement, he should not pay as if he had been.
    4. The passenger act, and course of business, moreover, clearly establish the contract to be on these conditions; and the passage ticket being now shown to require a landing of the passenger, the opinion of the court on the former trial of this case is decisive.
    PV". The subject of insurance here was the ship-owner’s right under the passenger contract. That right being lost, as between the ship-owner and passenger, by perils of the sea, the insurer cannot refuse performance of his contract to pay the loss ; this would make the contract idle on his part.
    1. The contract of insurance is not a mere guaranty against the claims of the passengers, requiring suit against the ship-owner, on their part, to show him damnified. It is an engagement, in the event of a loss, to pay him what the ship would have earned but for the perils insured, leaving to him to meet the engagements of every kind which he may have made.
   Moncrief, J.

The case as presented upon this appeal differs from that previously heard and decided, (4 Bosw., 447 ;) among other things, in this, that upon the first trial there was no evidence, other than the policy in question, which tended to show the character or import of the contract between the passengers and ship-owner, and from which the duty or right could be implied of the owner of the vessel to transport, deliver, or land the passengers at some particular port or place. The policy of insurance, in my opinion, does not in plain terms contemplate the probability or even the possibility of the shipper being called upon and made liable to refund the amount of the passage money which he was to receive from the passenger before taking him on board the vessel. The construction to be given to the policy, standing alone, I think is plainly otherwise, and the more reasonable intendment of the parties presumed to be that the assured sought indemnity against detention and consequent damage thereby. Upon the present trial, however, there is no longer room to doubt as to the nature of the contract by which the shipper and passenger were bound, the latter to pay the stipulated price upon being received on board of a vessel destined for, and the former to transport and to land the passenger at the particular port, Hew York.

This contract was never performed; tie passengers were not carried and landed pursuant to the terms of the agreement, the vessel with all the passengers having been lost at sea. The loss sustained by the assured, therefore, is what he might and could have earned had the vessel performed the voyage and arrived safely at the port of Hew York.

The ship-owner had a lien upon the unearned passenger money, and an insurable interest. (Pars. Mer. Law, p. 413.)

The mere fact of payment having been made to the shipowner in advance, under the terms of the contract, cannot vary or impair the rights of the passengers, or change the relation of the assurer and assured. The payment in advance enabled the plaintiff to set the policy running, entitled the passenger to come and remain and be victualed on board of the vessel, and created the ship-owner trustee of the money of the passengers until, having earned it by performance of his contract, the ship became entitled thereto, or failing so to do, the right of the passengers to claim a return of the money became perfect. (4 Bosw., 447 ; 5 Sand. S. C. R., 578-582, and cases cited; 1 Pars. on Mar. Law, 158, et seq. ; 29 E. L. and Eq. R., 115-117.) The presumption always is in favor of contracts having been made in accordance with the requirements of law. The agreement between the passenger and the ship-owner was made in England after the passage of the Act of Parliament of August 14, 1855 ; and the Court properly therefore assumed, no evidence appearing to the contrary, that it was made in conformity with the provisions of this Act. The renewal of the policy in October, 1855, operated and had the like effect as the making of a new contract under that date, of the terms and effect of the policy of insurance issued and delivered in January, 1855.

The objection to proof of waiver of preliminary proof of loss and interest (appearing in the case although not argued or noticed in the points) is not well taken and was properly overruled. (20 Pick., 389 ; 3 Sand. S. C. R., 42 ; 6 Cush., 345 ; 2 Kern., 97 ; 9 John., 192 ; 3 Comst., 128.)

Upon the evidence adduced before the Court it appears that a liability arising upon the contract with the passenger is clearly fixed, and the right of the plaintiff to recover (in the absence of proof that the law in England differs from that of this State) does not depend upon his having discharged the liability. (1 Sand. S. C. R., 124 ; 3 Seld., 583.) The liability of the plaintiff arises as a matter of law upon the contract shown to have been made with the passenger; no averment thereof was necessary.

Judgment should be entered in favor of the plaintiff for the amount of the verdict, interest, &c.

Bosworth, Ch. J., and White, J., concurred.

Judgment for plaintiff ordered.  