
    Arnold Martin & Al. versus The Salem Marine Insurance Company.
    Neither a loss of the proceeds of the outward cargo destroyed by fire at the foreign port, nor damage to the vessel from worms and climate, nor an extraordinary expenditure of provisions, whether by the seamen or by sentinels placed on board by tire government, nor the possible earnings of the vessel during an embargo, are losses within a policy of insurance against the usual risks on a vessel and cargo to, at and from a foreign port, for the purpose of selling the outward, and purchasing a return cargo.
    This was an action pending in Essex, upon a policy of insurance dated October 26, 1801, whereby the defendants insured two thousand dollars on the schooner Catherine and appurtenances, and two thousand dollars on her cargo, “ from Marblehead to one or more ports in the West Indies, for the purpose of selling her outward and purchasing a return cargo, and at and from [ *421 ] thence to Marblehead, or her first port of * discharge in the United States.” The policy was in the usual form as to the perils undertaken, and the underwriters were not to be liable for a partial loss under five per cent.
    The declaration alleges the loss to be upon the cargo; that it was consumed and destroyed by fire in and during the voyage, at a place called Cape Francois; that the vessel was detained by an embargo imposed by persons exercising the powers of government at the same place, from February 4 to March 27, 1802, by which the plaintiffs say they received damage to the amount of one thousand dollars. There was also a count for money had and received.
    Upon the general issue pleaded at November term, 1805, there was a verdict for the plaintiffs, taken by consent of the parties upon certain facts agreed — the most material of which were, that the vessel sailed October 23, 1801, with a cargo of fish, invoiced at 2637 dollars, the property of the plaintiffs; arrived in the West In
      
      dies November 17, and at Cape Frangois December 5, where the outward cargo was landed in different parcels, the las't on the 26th of December, and placed in the care of a factor, Mr. Castine, by whom the whole was sold. The. sales were completed by the 2d of January, 1802, and produced, by the factor’s account, 4618 dollars and 78 cents, of which about ] 300 dollars were invested in articles for a return cargo, and which were afterwards brought home in the vessel; and for the residue the factor remained accountable until the 2d of February. At that time the plaintiffs’ captain, alarmed by intelligence of a French fleet off the island, applied for the balance due upon the outward cargo, and endeavored to obtain a permit from the custom-house to ship it in money, which was refused him; but Casiine, the factor, produced and offered him six bags represented to contain 3000 dollars. Of these the captain took one, which was afterwards found to contain 500 dollars, which were brought home in the vessel in coin or produce, and the rest he left with Castine, requesting him to conceal them. On the 4th of February the town of Cape Frangois was plundered and burnt by the negroes, and the French fleet, taking * pos- [ * 422 J session of the harbor, embargoed all the vessels there. Afterwards the captain learned that Castine’s house had been burnt, where, as he (Castine) said, the remaining money had been concealed ; and upon a search among the ruins by the captain, in company with Castine and another person, 1300 dollars were found, of which 450 dollars were paid to the captain for the use of the plaintiffs, and brought home in the vessel. During the embargo, two sentinels and three other persons from the French fleet were kept, by orders from the commander, on board the Catherine, and supported from the vessel’s provisions.
    On the 29th of March, 1802, as soon as the assured had notice of the embargo upon their vessel, and before there could be any intelligence of its removal, they offered to abandon her to the insurers who refused to accept of any abandonment. The vessel afterwards arriving with what had been received of the proceeds of her outward cargo, the whole was taken and disposed of by the assured.
    There was evidence that the usual course of trade in Cape Frangois is, for the goods to be put on shore into the hands of a factor, and kept by him until sold, and the factor usually keeps the money until the business is completed. Some inconsiderable damage was proved to have arisen to the hull and rigging of the vessel, and to her boat, during the embargo, and in consequence of it.
    It was agreed that the Court might decide what items are lega sharges against the defendants on the policy upon the vessel and cargo respectively; and if the Court should be of opinion that any loss had happened, whether the same was over or under five per cent., arbitrators should be appointed to ascertain the amount of such loss, upon such principles as the Court should establish, and the verdict should be altered so as to conform to their award. But if the Court should be of opinion that no loss, for which the de fendants are liable, is proved, the plaintiffs are to become nonsuit.
    The cause was argued at the last November term, at Salem, before Sedgwick, Sewall, and Parker, Justices, by Dane [*423] and Jackson * for the • plaintiffs, and by Prescott and Putnam for the defendants, and continued nisi for the opinion of the Court to be delivered at this time, and judgment to be entered thereon as at November term.
    
      For the plaintiffs,
    
    it was stated that the only ground on which they claimed to recover, in this action, for a loss of the cargo, was that the cargo, while on shore, was protected by this policy. It is a novel point, and no authority can be found in the English books applying directly to it. But the reason of this is, that the language of the English policies and of this, which is according to our usual forms here, is very different. The English policies are always upon goods and merchandise, from the loading thereof aboard the ship until the same be discharged and safely landed. Thus goods on shore are expressly excluded from protection. But here our insurance is on the cargo to the foreign port of delivery, at the said port, and from thence home — and it is added that it is for the purpose of selling the outward cargo, and purchasing one in return ;—so that no conclusions can be drawn against the plaintiffs’ demand, in this case, from English decisions upon contracts essentially differing from the one now before the Court.
    The case of Tierney vs. Etherington, cited by Lord Mansfield in delivering the opinion of the court in the case of Pelly vs. The Royal Exchange Insurance Company, 
       shows that goods insured in board one ship, to a port, and from thence, on board another ship, to another port, are protected by the insurance through all the intermediate steps of removal from one ship to the other, as usual, and this as well on shore as on board; for the storeship into which the goods were put was considered as a warehouse. Where the end or object is insured, all the means necessary to that end or object are within the meaning of the policy.
    In the principal case there, of Pelly vs. The R. E. Insurance Company, the insurance was upon the ship, her tackle, &e., from Condor. to any ports beyond the Cape of Good Hope, and back * to London. The loss happened by fire on shore; [ * 424 ] and it was held within the policy, because it was shown to be in the usual course of trade, in the river of Canton, to unrig the ship, and to put the sails, rigging, &c., into a store on shore. So, in the case at bar, it has been proved to be the constant and well-known usage, in voyages to Cape Franpois, for the cargo to be taken on shore, and there kept, at the risk of the owner, until it is sold.
    In support of the claim for the provisions expended by the Frenchmen, who were put on board the schooner by a superior force, was cited the case of Brough vs. Whitmore, 
       where it is laid down that the underwriters upon the ship and its furniture are liable for all accidents which prevent the provisions from being applied to the purpose for which they were intended; provisions being comprehended in the value of the ship.
    To show that the underwriters were liable for the loss of the use of the vessel, or the value of her hire during her detention by the embargo, was cited the case of Rotch vs. Eddy; 
       and it was contended that, the plaintiffs having a right to abandon when they made the offer, the defendants were bound to accept it. If they had accepted the abandonment, this loss would have fallen upon them, and they now ought to respond for it to the plaintiffs, upon whom it has in fact fallen.
    
      For the defendants,
    
    it was insisted that the abandonment, having been made after the embargo had ceased and the vessel was in the full and free possession of the assured, was a void act.  The abandonment ought also to be of the whole property insured in the same policy. The assured had no right thus to sever the different subjects of the insurance, and to abandon the ship, while they retained the cargo. But, by bringing their action for a partial loss on the ship, they have waived the abandonment.
    
      (Curia. It appears to us all that there is a waiver of the abandonment ; that point, therefore, need not be labored.)
    As to the loss of the money on shore, it was contended that the policy covered the cargo while it was water-borne, and no * longer. But this money was not cargo, either out- [ * 425 ] ward or homeward. It was no more than a chose in action, a debt due from the factor to his principal. 
    
    As to the damage sustained by the vessel, and the consumption of provisions during the embargo, it was insisted that these were not within the policy, but were like the case of adverse winds, oi tempestuous weather, whereby the length of the passage was in creased and the vessel worn, which are never considered as making part of a loss within a policy of insurance.  Where a vessel was so eaten by worms as to be unfit to prosecute her voyage, it was held not to be a loss by the perils of the sea, and so not within the policy.  Such damage is to be set against the freight, and does not come within an insurance on ship, if insured against at all. If the plaintiffs recover for the extraordinary expenditure of provisions, they recover it twice, viz., once on the freight, and again on the ship.
    
      For the plaintiffs, in reply.
    
    This policy 'was intended to cover the property from its shipment in Marblehead, through every stage of its progress, until its return to the port of discharge in the United States, whether it existed in the shape of outward cargo, of homeward cargo, or of money — the proceeds of the former, and intended to be invested in the latter. Policies of insurance are to receive a liberal construction, for the benefit of trade and of the assured; and a more rigid construction as against the underwriters, whose words they are. They are also to be construed according to the course and usage of trade in the place; by place, meaning the city or town where the business is transacted. Underwriters are presumed to know such usage, and they insure under that knowledge.
    It may be observed that this cargo was situated more safely on shore than on board the vessel at Cape Frangois, which is an open and exposed harbor, without wharves or other safeguards. The construction, then, the plaintiffs contend for is a rea- . sonable one.
    [ *426 ] *This is an entire contract for an entire and undi vided time. No principle of law is more clear than that a personal contract, once extinguished or suspended, is gone forever. Yet the defendants maintain that this contract ceased to operate when the cargo was landed, and continued suspended until the homeward cargo was laden on board, when it revived, and re-attached to that.
    This is an important question to be settled. All our policies on voyages to the East and West Indies are in this form ; and by insuring property at a foreign port, owners have always considered that property situated like this was covered. Should the Court determine that this was an incorrect opinion, it will be necessary to alter the form of the policy, so as that it shall indisputably cover property thus situated.
    
      
       1 Burr. 340.
    
    
      
       4 Term R. 206.
    
    
      
       6 Term R. 413
    
    
      
      
        Marshall, 483.
    
    
      
      
        Marshall, 162, 180, 620.
    
    
      
      
        Robertson vs. Ewer, 1 Term R. 127
    
    
      
      
        Rohl vs. Parr, 1 Esp. 445,
    
   The opinion of the Court was delivered at this term by

Sewall, J.,

who, after stating the facts, proceeded thus: In arguing from this state of facts, the plaintiffs’ counsel were disposed to rely upon the circumstance of the abandonment. But upon a suggestion, from the Court, that it had not been made until the removal' of the embargo, and that the conduct of the assured afterwards, in receiving and disposing of the vessel upon her arrival, might be considered as a waiver of the abandonment, if they had had a right to make it, this circumstance was not insisted on; and the plaintiffs were understood to proceed as for a partial loss, stated to consist in the following items : —

1. The balance of the proceeds of the outward cargo, lost in the hands of the factor, Castine.
2. Certain damages which the vessel sustained in her hull, rigging, and appurtenances, from the worms and climate.
3. The extraordinary expenditure of provisions in supporting the sentinels and people put on board from the French fleet.
4. The loss of employment and of the earnings of the vessel, for the time of the embargo.

* It will not be disputed but that the loss of the [ * 427 ] money left in the hands of the plaintiffs’ factor was a damage to them which happened while the voyage insured was proceeding under the protection of the policy in this case. But the question to be decided is, whether that money, in the situation in which it was lost, was a subject of the policy ; or, in other words, was part of the cargo of the schooner Catherine, and lost by a peril undertaken by the defendants.

If the words in this instrument, descriptive of the subject-matter of the insurance, and of the duration of the risk, had been in the usual form of English policies, and instead of the term cargo, the description had been goods laden on board the said schooner, from the loading thereof aboard, and to continue until the same be discharged and safely landed, it would hardly be pretended that goods landed from the vessel, or goods prepared to be put on board, but lost by the burning of a dwelling-house or warehouse on the shore, were within the words of the policy. Accordingly, the general rule in the construction of English policies is, that the risk on goods continues no longer than they are actually on board the ship mentioned in the policy.

By the ordinances of France, and of some other countries, as cited by Marshall, it is provided that, if the time of the risk be not regulated by the contract, it shall commence, as to goods, from the time they are put on board the ship, or put into barges to be conveyed on board, that is, from the moment they leave the shore : and the reason assigned for this regulation is, because the perils ot the sea commence from the moment the goods are on the water.

In this contract the schooner Catherine and her cargo are insured, and the risk upon the goods or cargo, as to its commencement and duration, is not distinguished from the risk upon the vessel. By this description, the goods insured seem to be as closely connected with the vessel as her rigging or furniture: at least, their [ * 438 ] connection with the vessel is essential to ascertain * the goods insured; and any other construction would leave the contract altogether uncertain and indefinite as to the subject of it in this instance. The goods which constituted the outward cargo, when landed from the vessel, lost that character, and were no longer protected by the policy. The proceeds of those goods, whether existing in the credit of the factor, in money, or in other goods prepared for a return cargo, were equally without the protection of the policy. These are not within the description of goods insured as the cargo of the vessel; nor can they be understood to be within the intention of the parties; especially if we consider the nature of the perils undertaken by the insurers. These are altogether of the sea, or of a maritime nature, and do not include the credit of a factor, or the security of his dwelling-house or warehouse, or the many distinct perils to which goods upon the shore are liable.

In the case of Tierney vs. Etherington, the specific gqods lost in the storeship at Gibraltar were the subject-matter of the insurance, and by the terms of the insurance were to be reshipped there under the protection of the policy; and in the event, and by the usage of the trade, the placing them in a storeship was a necessary and proper method of unloading and reshipping.

In the case of Pelly vs. The Royal Exchange Insurance Company, the rigging burnt in the bank saul had been placed there by necessity, and for the repair of the ship ; and the transaction was according to the course of the voyage insured; and the policy expressly extended to those articles, and, by construction unon the usage, to the peril by which they were destroyed. And in tne case of Brough vs. Whitmore, respecting a vessel’s provisions burnt under similar circumstances, it was observed by the Court that the accident, both in that and the former case, was to be considered in the same light as if it had happened on board the ship itself. In the present case no peculiar usage or necessity has been proved; but only that course of events common to all foreign voyages, where an outward cargo is sold, and a homeward cargo is purchased or intended to be purchased. No case has been cited to show that, in the progress * of the negotiations at the [ *429 ] foreign port, the goods landed from the vessel, or the goods prepared for the vessel, are understood, or have been taken, to be at the risk of the underwriters upon the vessel and her cargo, in the usual forms of marine insurance.

The claim for damage by the worms and climate is of course confined to so much as was suffered during the embargo ; for it is not pretended that, in the two months preceding the embargo, or while the vessel was detained in the employments of the voyage, the insurers are answerable. But by what means or proofs are damages of this kind to be apportioned ? The decision in the case of Rohl vs. Parr, cited for the defendants, affords, however, a direct answer to this demand. In that case, a vessel insured to the coast of Africa, there and back, had been wholly destroyed by the worms common to the rivers of hot climates, and a total loss was demanded upon the policy. But the decision was against the demand, and upon this ground, that the loss was like the wearing and natural decay of a vessel, and not by the perils of the sea.

And respecting the third and fourth items of loss demanded in this case, for provisions expended, and for the possible earnings of the vessel prevented by the embargo, the general answer seems to be sufficient, that these losses are not covered by a policy upon the vessel, her appurtenances, and cargo. If, in conformity to the decision in Brough vs. Whitmore, provisions may be taken to be included in an insurance upon a vessel and her appurtenances, yet, by the same case, it is apparent that such insurance is understood to be against accidents by which the vessel’s provisions are destroyed, or taken specifically from their proper use, but not against an expenditure of them — even an extraordinary expenditure, as in the case of Robinson vs. Ewer, when, like the decay of a vessel, they are to be estimated as deductions from her freight and earnings. And as to the estimate of possible earnings, it may be observed further that, even in an insurance upon freight, there is no loss within the policy until the right to freight commences, according to the decision in the case of Tonge vs. Watts.

[ *430 ] * There can be no pretence for a return of premium in this case, and this demand has not been urged.

The opinion of the Court being against the plaintiffs’ demand in every particular, the judgment must be rendered against them as upon a nonsuit, according to the agreement of the parties in referring this case to the opinion of the Court.

Plaintiffs nonsuit. 
      
       Page 162.
     
      
      
         Mackenzie vs. Shedden, 2 Camp. 431.
     
      
       The case of Rohl vs. Parr, 1 Esp. 445, was a decision by a jury at Nisi Prius. Lord Kenyon said, at the trial, that it appeared to him a question of fact rather than oi law. Park., (105,) Marshall, (493,) Chitty, (3 vol. 491,) Hughes, and other writers, (258,) cite this case, as maintaining the doctrine, that a loss by worms infesting the seas is not a loss by the perils of the seas. But see Depeyster vs. Col. Ins. Co. 9 Caines, 85. No other judicial opinions or decisions upon the point can be found.
     
      
       1 Term R. 127.
     
      
      2 Stra. 1251.
     
      
      
        a) Vide M’Bride vs. Mass. Ins. Co. 7 Johns. 431. -Penny vs. N. York Ins. Co 3 Caines, 155.
      
     