
    Cheriot against Barker.
    
      A vessel vas •chartered for Kew-York°to Jeremie, and York, for 2,400 dollars, cr insured ued at 1,800 •dollars, being two-thirds the value of fr’t,” frorrTjerenfie to New-York, upon the fr’t of goods laden orto be laden,.” &c. The vessel •having been captured on her return voyage, and condemned, the charterer brought an action on the policy, and it was held that he had not an insurable interest ¡ that the policy having described the interest to be on the freight generally, it coa Id not be considered as on freight earned. Where terms of a policy are clear and explicit, the court will not listen to any suggestion or proof of mistake.
    • . 1 His was an action on a policy of insurance on freight. Resides the count on the policy, the declaration containcd the usual money counts, and it was agreed, that if the plaintiff ought to recover on the policy, in any form of declaring, the present declaration should be deemed sufficient. The cause was tried at the New-Yorlt Sittings, December, 1806, before Mr. Justice Livingston.
    
    The policy was dated the 25th February, 1804, and the voyage was described from Jeremie to Neio-Yorlt, upon J b the freight of goods laden, or to be laden on board the schooner Mars. The freight was valued at 1,800 dollars, being two thirds of the value of the freight. The charter 
      
      'party was dated the 13th December, 1803, by which the vessel was chartered to the plaintiff, on a voyage from New-York to Jeremie, and from thence, back, for 2,400 dollars for the voyage; 1,650 dollars to be paid within sixty days aft.er notice of the arrival at Jeremie, and 800 dollars on the delivery of the return cargo. The outward freight was duly paid by the plaintiff. When the policy was subscribed, the defendant knew that the plaintiff was the charterer of the vessel, and the defendant had been, or was to be, the agent of the owner of the vessel. The vessel sailed from Jeremie on the voyage, with a cargo on board, belonging to the plaintiff, the freight of which, at the usual rate., would exceed 800 dollars. The vessel was captured on her return voyage, and condemned, by which there was a total loss of vessel and cargo. The owners of the vessel insured their freight, as stipulated by the charter party, and recovered from their insurer 800 dollars, being the amount of the homeward freight.
    
      The necessary preliminary proofs and abandonment were admitted.
    The jury found for the plaintiff a total loss, subject to the opinion of the court upon a case, containing the above facts.
    The case was argued at the last term by Hoffman and Radcliff, for the plaintiff, and Harison and Boyd, for the defendant.
    
      Hoffman.
    
    I shall contend that the plaintiff had an insurable interest. He had hired the vessel for the purpose of earning freight, and was the owner, pro hac vice; for he could have underlet the vessel, or have taken in a larger cargo. This is not the case of a double insurance.' A double insurance is by the same person. Different persons having different interests in the same subjefet, may insure them, each to the whole value. Two insurances of the same subject do not make a double insuranee.
       The consignor and consignee may each insure their separate interests, and so may a mortgagor and mortgagee. The owner of the vessel may insure the freight of his own goods, though he actually pays none. Whether the plaintiff put on board his own goods, or took those of others, can make no difference. Here the defendant was made acquainted with the nature of the plaintiff’s interest, and expressly agreed to insure it, under the denomination of freight.
    . In Bowne v. Shaw,
      
       great stress was laid on the circumstance, that the insurer knew the nature of the risk. A qualified interest, as the lien of a factor, may be insured. The plaintiff, if not absolute owner, had, at least, a qualified interest. It is well understood among merchants, that the charterer of a vessel may insure his interest, so as to cover his charter party. Again, freight actually earned, is allowed, even by the French law, to be insured co nomine. So, where a right to freight has commenced by an inception of the voyage, the insured may recover for the loss of freight. In Lawrence v. Sebor,
      
       the court looked to the intention of the party, as to what interest was to be insured.
    
      Harison and Boyd, contra.
    As there has been a mistake about the interest of the plaintiff, and no risk run, he will be entitled to a return of premium; but he cannot recover on the policy. This is not expressed to be an insurance on freight earned; and the French law does not, therefore, apply. Besides, it does not appear from the French writers, in what manner freight earned was insured. If invested in goods, it might be insured as goods ; if laid out in repairs on the ship, it might be covered in an insurance on the ship.. The question here is, can the owner of goods, who stipulates to pay freight for them, insure the freight, eo nomine ? He has no interest in the vessel or freight, as such ; for he is to pay freight, not to receive it. The owner of a vessel who insures his own goods, has an interest, in their safe arrival. Whether the plaintiff was owner pro hac nice, or not-, is perfectly immaterial. If the goods -were lost, he would not he obliged to pay freight; if they arrived, the freight would be due. The mode of insurance contended for on part of the plaintiff, would. lead to great injustice and fraud, which the valuation in the policy was intended to prevent. If the doctrine of the plaintiff is to prevail, two insurances of the same interest might be fnade under different names, and the party thereby gain a double compensation. The knowledge of the • defendant, as to the nature of the plaintiff’s interest, cannot alter the determination of this casé. This court must decide accordingto the terms of the contract before them. The case of Lawrence v. Sebor, rested on particular circumstances, and is not applicable to the present case. The court never intended to vary the contract according to the intention of the parties. On the contrary, they expressly say, that the terms of the contract, comported with the intention. Suppose the plaintiff had insured goods on board of this . . . ' o . vessel, and in his declaration, should aver that the ship was meant to be insured under the name of goods, could this ever be allowed ? Certainly no such averment would be admitted in contradiction to the written contract. Such a declaration would be bad on demurrer. In the ease of Bowne v. Shaw, the defence of Shaw was grounded on the conduct of the party, extraneous to the contract, and the court said, that as he knew of this conduct at the time, he should not avail himself of it as a defence. The. ground of relief was ab extra', and not on the policy itself. rectification of the contract, if there has been a mistake, must.be by a court of chancery, not by a court of law; and that court will require the most clear and unequivocal evidence of the mistake, before they will interpose to vary the terms of the written contract.
    ■ It is true that a consignor who has advanced money. has an interest to that extent which he may insure, and so maya mortgagee; but they cannot each recover to the full amount of the valúe, of the subject; for, if that were the ease, twenty mortgagees might recover twenty times the value of the whole subject, which never could' be tolerated.
    
      J. Radcliff, in reply..
    The parties fully understood the interest intended'to be insured by this policy. Thechar-ter party was before them, and the whole interest of the plaintiff under that contract was intended to be insureds It was a charter party out and home ; but suppose, for the sake of argument, that the policy applied only to the out-, ward freight, might this not have Been insured as freight earned?'Why may not freight earned be insured under the name of freight ? . If the policy be on freight, it is: competent for the plaintiff to show that the freight earned, was intended. In Kemp v. Vigne,
      
       the expenses of reclaiming goods', were insured under the name of goods.
    • The- French writers, when they say freight earned may be insured, must be understood to intend, that it may be insured, under the name and character oí freight. But in-France it can only be insured by the freighter, who has agreed to pay the freight. Then the plaintiff as freighter, might insure the freight earned. Again, the plaintiff, as charterer of the vessel, might set her up as a genera¡ shjp and take the goods of other merchants on . 1 .... freight, and so be entitled to insure the freight as owner> Pr0 hac vice’’ out an(J home- Ón a valued policy, if the plaintiff shows an interest to any amount, it is sufS-cient to recover the whole valuation. It is expressed in-the policy to be “two .thirds of the freight,” which plainly shows, that freight earned was intended by the parties.. The plaintiff, in- his declaration, might have, averred that &y fright, was- meant freight earned,- and have proved it? er that the freight, meant two thirds of the freight out and home, 
    
    
      
      
        Marshall, ill. 119. 121 Park, 282.
    
    
      
      
        Marshall, 81,82.
    
    
      
      
        Caines 489
    
    
      
       Park, 11. Marshall 218
    
    
      
      
         Marshall, 76.
    
    
      
       2 Caines, 204.
    
    
      
      geeg 419, Graves Barnwell v. the Boston Marine Ins. Co.thedeciprem{couH y S., in confirma•> tionoftheo%n(¡ Thompson, J, ^ ^LawrenceSebor.
      
    
    
      
       j Term 304
    
    
      
      
         ^^^11 ts.Emer tom.
      
    
    
      
      
         But it must ie frH paid. or payable, at all events, ZlsslTovgoods arrive or not.
      
    
    
      
      
        ) See 4 Dallas, 459. Sansom v. Ball, where the plaintiff advanced a earn of money to the owners of a ship, for which they had a right to three eighths of the tonage of the ship for the voyage. The plaintiff insured his interest, which was described in the policy as “freight advanced, and valued at 13,500 dollars.” In an action on the policy to recover an ave.rage loss, the Supreme Court of Pennsylvania, in 1806, decided that the plaintiff had an insurable interest.
    
   Thompson, J.

The policy declares the insurance to be upon the freight of goods, laden on board the schooner Mary, on a voyage from Jeremie to New- York. is a plain contract, without any ambiguity; and the only question is, whether the plaintiff has shown aninterest in the subject insured. Though the policy may not be adapted to the real truth of the case, we must confine our-se! "Wi to it in determining what is the subject insured. It is a good general rule to require this to be clearly and plainly expressed upon the face of the policy, so that the underwriter may be apprized of what he insures. It is extremely easy for the assured to specify his particular interest, and it would be unreasonable to allow him to avail himself, under a general expression, of a concealed ■particular interest, contrary to custom and usage. Hence it has been decided in the English courts, (3 Burr. 1401.) and the same principle is recognised in this court, that a respondentia and bottomry interest cannot be covered by 4 general insurance on goods. (Robertson v. United Insurance Company, January Term, 1801.) Considering this as an insurance on freight, the plaintiff had no interest in it. He was not owner of the vessel, but had hired her for the voyage, and had agreed to pay a certain sum for the freight, on the delivery of the cargo. The plaintiff was owner of the cargo, and the charter party was a mere covenant to carry the goods. The plaintiff instead of receiving the freight, was to pay it on the delivery of the cargo. As the cargo was not delivered, owing to the perj]S) no freight was ever due from him, and of course, he has sustained no loss. This must be considered a general insurance on freight, and nota particular insuranee on freight earned.

It was suggested that there was some mistake in describing the interest intended to be insured; but we cannot listen to any such suggestions. The contract is, of itself, clear and explicit; and if any mistake has been made, it is not to be corrected here.

No risk having been' run, the plaintiff is entitled to a return of premium. He must, accordingly, have judgmerit for the amount of the premium, with interest from the time of demanding it.

Kent, €h. J. was of the same opinion.

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

Judgment for the plaintiff, for the premium, with interest.  