
    De Longuemere against The New-York Fire Insurance Company.
    NEWYORK,
    May, 1813.
    Fo,icy tif ™- surance on freight valued The^" dy t<> be shiji^ £>ed, and a part actually was shipped on board, when the storm arose by which the ship was lost. It was held the insured, were entitled to recovei for a total loss> according to the valuation,
    THIS was an action on a policy of insurance on the freio-ht of , , - ° the ship Etheia, valued at 2,000 dollars, “ at and from New-York to the port of Sisal, in the province of Yucatan, with liberty to proceed to one other port in said province, not to the southward of 
      Laguna de Términos, nor to the eastward of Cape Catoche, and back to New-York.
    
    The facts in this case were the same as those stated in the case 0f the policy on the ship. (Ante, p. 120.) In addition to the principal point discussed in that case, it was contended, on the part of the defendants, in the present case, that though this was a valued policy, yet the valuation applied to. the full freight. As there was no charter-party, and it appeared that a part only of the cargo was on board, when the loss happened, the plaintiff could only recover so much of the valuation as was in proportion to the freight of the goods actually on board. The case of Forbes v. Aspinall,
      
       it was said, was founded on principle. The valuation applies to the whole subject matter insured; but if part only of the subject is put at risk, why should the insurer pay for the whole ? Here a part only of the goods were on board, and the plaintiff seeks to recover for the freight of the part which was not on board, and could not therefore be lost.
    The decision in Forbes v. Aspinall overruled that in MontSomery v. Eggerton,
       and though the latter case ivas recognised by this court in Davie v. Hallett,
      
       yet if that case should be found n°t to rest on sound principles of law and justice, it ought not to be regarded.
    
      For the plaintiff it was insisted, that it was a settled principle that where freight is valued in the policy, and there was an inchoate right to freight at the time of the total loss, the insured must recover : and the amount of the freight earned is immaterial, as the valuation in the policy precludes all inquiry into the value.  This case comes precisely within those already cited, for not only a Part °f the cargo was on board, but the whole of it was ready to be shipped when the loss happened.
    
      Colden and Hoffman, for the plaintiff.
    
      S. Jones, jun. and Wells, for the defendants.
    
      
      
         3 Term Rep. 362. See also 6 Term
      
    
    
      
      
         3 Caines' Rep. 16.
    
    
      
      
         3 Caines’ Rep. 16-20. 3 Term Rep. 362. Marsh. on Ins. 92. 278.
    
   Per Curiam.

This case may be decided in favour of the clairri for the whole freight according to the valuation, without questioning the decision in Forbes v. Aspinall. (13 East, 323.) The doctrine in that case seems to be reasonable and just, but there the residue of the cargo intended for the voyage, and which was to be the aliment for the freight, was not procured and placed on the quay ready to be shipped. The vessel was not in the act of shipping the residue of the cargo when she Was lost. She was, in fact, a mere seeking ship, and, for aught that appeared, the residue of the cargo might never have been obtained. Here the cargo was all procured and lay ready to be shipped, and the vessel was in the act of shipping it, and had shipped part; and the case is precisely like that of Montgomery v. Eggerton. (3 Term Rep. 362.) The plaintiff is, therefore, entitled to recover as for a total loss, and the valuation is not to be opened.

Judgment for the plaintiff. 
      
       13 East, 323. See also 4 Mass. T. R. 647.
     