
    De Peyster and Whitmarsh v. Sun Mutual Insurance Company.
    In a marine policy the voyage insured was “ at and from Santa Martha on the Main to New York, with liberty of touching at two other ports,” and by a subsequent agreement the vessel was at liberty to use “three additional ports on the voyage from the Spanish Main to New York.” Held, no deviation to visit three additional ports on the Main, the privilege being construed upon the terms used, in reference to the usage of the trade, as not restricted to ports on the homeward voyage, after leaving the Main.
    Perishable articles included in the memorandum clause are to be deemed totally lost, though existing in specie, when they have been so injured by the perils insured against as to be incapable of transportation to the port of destination.
    Such incapacity exists where the articles are in such a condition, e. g., of putridity from being water-soaked in a storm, that they cannot be transported to the port of destination without endangering the lives of the crew or the safety of the vessel.
    Appeal from the Supreme Court. Action on a policy of insurance issued by the defendant at ¡New York city to the plaintiffs, under date July 23, 1842, for $10,000, upon all kinds of lawful goods laden on board the brig Alfred Hammond.’ The voyage was described as “at and from Santa Martha on the Main to ¡New York, with liberty of touching at two other ports.’’ For this risk the premium charged was “two and a half per cent, to return one-half per cent for each port not used.” The plaintiffs claimed for a total loss on the cargo, consisting of two thousand two hundred and twenty-six hides, valued by the policy at 12-J cents per pound, and four thousand four hundred and forty goat-skins, valued at 25 cents each. On the 6th September, 1842, the plaintiffs having received advices from the brig, procured to be inserted in the policy an additional clause of privilege in respect to the voyage as follows: “ It is agreed for one per cent additional premium that the brig ‘Alfred Hammond’ may have the privilege of performing a voyage from Santa Martha to Chagres and back to Carthagena, and also for three-quarters per cent additional premium that said brig, or any other vessel or vessels, may use three additional ports on the voyage from the Spanish Main to ¡New York, to return one-quarter per cent for each port not used and no loss being claimed.”
    By the memorandum clause in the policy skins and hides, with all other articles that are perishable in their own nature, were warranted by the assured free from average, unless general.
    On the trial at the New York Circuit, before Mr. Justice Roosevelt, the defendant claimed that the brig had deviated from the voyage- insured. The proof was that she touched and stopped, discharging and taking in cargo, at Rio Hacha, Santa Martha, Carthagena, Chagres, Carthagena again, Savanilla, then at Rio Hacha again, whence she sailed for home. She thus used six ports on the Spanish Main, besides Chagres, as to which there appeared from the evidence to be difference of opinion whether or not it is included among ports on the Main. The defendant contended that the three additional ports allowed by the addition made to the policy, September 6, 1842, excluded ports on the Main, and referred only to ports to be touched after finally leaving the Main for the return voyage to New York. There was evidence that it is the usage of vessels trading to the Main to discharge and take in cargo at as many ports as are necessary in order to deliver the outward and obtain a homeward cargo, and that they go backwards and forwards as circumstances may require. After leaving the Main for New York it is not usual to stop at any intermediate port. The defendant moved for a nonsuit, which was refused and an exception taken. The judge charged the jury in respect to the question of deviation: “My construction of this instrument is, independent of the proof of usage, that under the terms used in the additional clause, cargo laden on board at ports on the Main was covered by the policy and that the defence of deviation fails.” To this, and to the judge’s refusal to charge that, by the terms of the policy, the privilege to visit three additional ports meant ports on the homeward voyage after leaving the Spanish Main, the defendant took an exception.
    After the brig sailed from Rio Hacha for New York she encountered bad weather, sprung a leak, was obliged to throw overboard a portion of her cargo, and the hides remaining on board were saturated with water,- became putrid and emitted so intolerable a stench that all hands slept and eat upon deck, not being able to live below. The vessel continued to leak and was compelled to make for Havana as a port of distress. There the master obtained leave to land his cargo. The hides were found to be entirely damaged; they were complained of as a nuisance; such of them as were not a mere mass of putridity were directed to be sold by order of the authorities, and the residue, about two-thirds of the cargo, was shoveled into boats and thrown into the sea. The crew of the brig were sick some weeks at Havana in consequence of the decay of the hides on shipboard. Some of the damaged hides which were sold were purchased by an American shipper, who sent them to Boston, where they arrived in a damaged condition, damp and worm eaten, and he sold them at a loss of about forty-five per cent. The defendant asked the judge to charge that the plaintiffs could not recover for a total loss of the property insured, consisting of memorandum articles, because a portion of this property remained in specie and was of some value after the disaster and after its arrival at Havana. The judge declined, and upon this point charged as follows: “ The plaintiffs cannot recover for a total loss on a memorandum article, unless the subject of the insurance is lost and destroyed wholly by means of some of the perils insured against. In this case the plaintiffs cannot recover, unless the hides and skins that remained after the jettison, and were landed in Havana, were reduced to such a condition by the perils of the sea as to be incapable of transportation to Hew York. While the hides and skins, or any of them, exist in specie and capable of transportation to the port of destination there can be no recovery for a total loss; therefore, none in this case, unless the jury are satisfied that the skins and hides were, in consequence of the storm, in such a condition as to endanger the lives of the crew of any vessel that should undertake to carry them, and that had an attempt been made to bring them to Hew York in any vessel, such vessel would, before her arrival, have either been left without hands to navigate her or in such a state as to render the throwing overboard of the hides on the voyage indispensably necessary to save the vessel and crew. If such were the facts, the transportation of the hides to New / York must be deemed to have become, humanly speaking, and within the intent of the law, impossible, by means of the perils insured against.” To this charge and refusal to charge the defendant took an exception. The jury found a verdict for the plaintiffs. The judgment thereupon entered was affirmed at general term in the first district and the defendant appealed to this court.
    
      William M. Evarts, for the appellant.
    
      Francis B. Cutting, for the respondent.
   Grover, J.

The motion of the defendant’s counsel for a , nonsuit was properly denied by the court. The question, whether there had been a deviation of the vessel, depends upon the construction of the following clause added to the policy, September 6, 1842: “It is agreed, for one per cent additional premium, that the brig ‘Alfred Hammond’ may have the privilege of performing a voyage from Santa Martha to Chagres and back to Carthagena, and also, for three-quarters per cent additional premium, that said brig or any other vessel or vessels may use three additional ports on the voyage from the ■Spanish Main to New York; to return one-quarter per cent ior each port not used, and no loss being claimed.” The policy .was originally upon a voyage from Santa Martha to New York, with liberty to use two additional ports. It was shown that vessels engaged in trade upon the Main were accustomed to visit different ports upon the coast for the purpose of discharging the outward and taking in the homeward cargo, and, when .the latter was completed, to sail directly for New York, touching at no port after leaving the Main. The question is, whether the vessel was at liberty to use the additional ports, specified in the clause added to the policy, upon the Main, or only after her final departure from the Main upon her voyage to New York. The two additional ports that, by the original policy, the vessel was at liberty to use, evidently were ports upon the Main. The voyage was referred to as a whole from Santa Martha to New York, with liberty to use two additional ports. The word ‘from,’ in the additional clause, does not necessarily exclude ports upon the Main. Such ports are included, if the voyage by the clause is referred to as a whole. The ports are described as additional to the ports the vessel was then at liberty to use. These were ports upon the Main. The intention of the parties is apparent from the terms used; and the course of trade includes ports upon the Main. There was then no deviation.

The exceptions taken by the defendant’s counsel to the charge of the judge, and his refusals to charge, present the question whether a recovery can be had upon a loss of property insured, embraced in the usual memorandum clause—that is warranted free from average unless general—where it becomes impossible to transport the same to its port of destination in consequence of the perils insured against, when any portion of the property exists in specie, at an intermediate port of distress. The law in this State is settled, that there can be no recovery in case of loss of memorandum articles, when any portion thereof arrives in specie at the port of destination, although possessing no value there. (Maggrath v. Church, 1 Caines, 196; Leroy v. Gouverneur, 1 John., 226; Wadsworth v. Pacific Insurance Co., 4 Wend., 33.) While any portion of such articles remains in specie, capable of being transported to the terminus of the voyage, and within the control of the assured, he cannot recover for a total destruction of a portion of the property, or for the loss of value, however serious such loss may be. See cases cited above. The English' law differs in this respect, that by the latter, when there is a total destruction of a distinct portion of the property insured, a recovery pro tanto may be had. (2 Arnould on Insurance, 1033, et seq., and cases there cited.) The precise point involved in this case remains unsettled by judicial authority in this State. The English rule makes the insurer responsible, when it becomes impossible from any of the perils covered by the policy to transport the property to its port of destination. (Roux v. Salvador, 3 Bing., N. C., 266.) The same doctrine is held by the Supreme Court of the United States. (Hugg v. Augusta Ins. Co., 7 How., U. S. R., 595.) Also by the Supreme Court of Maine. ( Williams v. The Kennebeck Ins. Co., 31 Maine Rep., 455.) The principle of the above cases I think sound. By the contract, the assured undertakes that the property shall be transported to its port of destination, and but for the qualifying force of the memorandum clause, he would be bound for its delivery uninjured by any of the perils embraced in the policy. When the delivery of any portion of the property at its port of destination becomes impossible, by reason of any of the perils assumed by the assurer, his contract is broken. The voyage is lost. The case comes within the direct terms upon which the assurer has consented to become bound. The loss is, within the meaning of the contract, absolutely total. The assured is absolutely prevented from receiving any portion of the goods at the place where the assurer has undertaken that he shall receive them. This gives a right of recovery. The exception does not raise the point insisted upon by the defendant’s counsel, whether the hides might not have been put in such a condition as to render it possible that some of them might have been transported to Hew York. The j ustice was not requested to submit that question to the jury. It cannot, therefore, be considered here. The verdict of the jury concludes the parties in this court upon the question of fact, and by that verdict it is established that the arrival of any of the property insured at Hew York was rendered impossible by the perils covered by the policy. The judge who tried the cause committed no error in his charge to the jury, and in his refusal to charge as requested.

The judgment should, therefore, be affirmed.

Allen, J., did not sit in the case. All the other judges concurring,

Judgment affirmed.  