
    David Ogden, Plaintiff and Respondent, v. The New York Mutual Insurance Company, Appellants.
    1. Where, by the terms of a policy of insurance, all passage money received by the insured, (the owners of a vessel named,) for passengers on board said ship for a voyage specified, is insured; and subsequently such vessel sails on the specified voyage, with passengers who have paid passage money to the amount of $6,395; and the vessel and passengers are lost by the perils insured against; the insured is not entitled to recover without proof of other facts.
    2. He cannot recover without proof that by the contracts with such passengers, the passage money was to be refunded wholly or in part in case of a failure to deliver them at the port of destination; or unless it appears that on the facts shown to exist, the insured is liable to refund such passage money, or some part of it.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 14, 1858;
    decided, April 9, 1859.
    Appeal by the New York Mutual Insurance Company, the defendants, from a judgment in favor of David Ogden, the plaintiff, rendered on a trial had on the 21st of June, 1858, before Mr. Justice Pierrepont, without a jury.
    The action was commenced in June, 1857, and is brought to recover (on a policy of insurance made by the defendants.) the amount paid to the plaintiff by passengers per ship Driver, for their passage money, which ship sailed from Liverpool for New ■York, February 12th, 1856, and. has not since been heard of.
    The policy is dated January 13th, 1855, and by it the defendants insure the plaintiff, “ David Ogden, on account of whom it may concern, in case of loss to be paid to him, * * lost or not lost, at and from Liverpool to New York; on all passage money received by A. Taylor & Go., or by their agents in Liverpool, for passengers on board the ships Driver (and six other ships named) to any amount not exceeding $50,000 in the aggregate, and all risks to attach as soon as said passengers are engaged and paid for. Amount of passage money by each ship to be named to the company as soon as ascertained; * * and in case of detention by any of the perils insured against, whereby the passengers’ fare or charges becomes a charge to the underwriters, it is to be estimated at not exceeding, for first cabin passengers, $1 per day; second do., $0.50; steerage, $0.30. And when other passengers are substituted for the first, the new earnings are to be deemed salvage to the original underwriters, allowance being made for additional fare as above. This policy to be deemed continuous until otherwise directed by either party, due notice to be given. In case of any claim made, the pound sterling to be valued at five dollars, premium included.”
    The policy, in other respects, is the usual cargo policy.
    The defendants, by indorsements made from time to time on the policy, increased the amount insured under it, viz.: $25,000 July 15, 1855; $25,000 October 22, 1855; $25,000 April 25, 1856; $25,000 May 31, 1856; and $25,000 November 7, 1856; the following being part of the last indorsement, viz.: “ Risk not to attach until passengers are on board.”
    The complaint states.the making of the policy; describes it; the increased amounts of insurance; that the ship Driver sailed from Liverpool for New York, on the 12th of February, l’856, having on board 344 passengers who, before that time, had paid to A. Taylor & Go. their passage money, amounting in all to $6,395 ; that said ship, by the perils insured against, had sunk and gone to the bottom, and all the passengers had been lost, and no part of the passage money had been earned. Notice to. the Company of the sailing of said ship, and of the amount of passage money thereby; notice to the Company of the loss and furnishing proof of the same, on the 12th of February, 1857; and prays judgment for $6,395, and ihterest from the 12th of February, 1857.
    These are the only allegations of substance contained in the complaint. They were proved at the trial to be true; except that the proof of loss of the vessel and passengers consisted of evidence that neither had been heard from. It was proved that the ship, when she sailed, was “ tight, staunch, well manned, stored and provisioned for said voyage, and in all respects seaworthy.” That the plaintiff was agent of and made the insurance for the owners of the ship; that the firm of A. Taylor & Co. resided in Liverpool, and were agents for the ship Driver in February, 1856, and received the passage money paid by the passengers, amounting in all to $6,395; that the interest thereon is $605.86, making a total of $7,000.86.
    When the plaintiff rested, the defendants moved for a nonsuit on the grounds—1st, that the plaintiff had not proved facts constituting a cause of action; 2d, that the plaintiff has received the passage money and proved no loss.
    The Court denied the motion, and ordered a judgment for the plaintiff for $7,000.86. From that judgment the present appeal is taken.
    
      Thaddeus H. Lane, for appellants.
    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 be 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 were to be made good by the -underwriters.
    I. 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., 31.)
    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 Ms construction of the policy, it would be a wager as regards passage money, he having no insurable interest. There could be no risk on passage money actually received. (1 R. S., p. 662, §§ 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 on the condition of being taken on board; they could not, after the voyage had been commenced, have recovered any portion of it. (Gillan v. Simpkin, 4 Camp., 241; De Silvale v. Kendall, 4 Maule & Selw. R., 37.)
    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, &c., 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 the absence of proof of any other contract, this usage must govern.
    IV. 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 representatives, or that if they had, they had any interest, such as to recover back any portion of the passage money.
    V. 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
    
      F. B. Cutting, for respondent.
    I. The exception to the refusal to dismiss the complaint upon the general ground that the plaintiff had not shown sufficient facts to constitute a cause of action, does not permit thé plaintiff to resort to any mere formal question or defect, or to matters of minor detail, which could probably be set right if attention were called to them. The general merits only are open for discussion, and the above statement is sufficient to show them with the plaintiff. (20 Johns. R., 357; 7 Hill, 388: Merrit v. Seaman, 6 Barb. S. C. R., 330; 7 How. Pr. R., 410; 9 id., 27.)
    H. The objection-that the passage money was received, {i. e., in advance, before the voyage was commenced, the vessel having been lost and no passage performed,) raises the questions, (1st,) - whether any part of the passage money was earned by the mere commencement of a voyage never compléted ? and (2d,) whether the plaintiff must wait to be sued and compelled to return the money to the representatives of these lost passengers, before he can recover from his insurers ? And both of these questions must be answered in the negative, because,
    I. The policy itself contemplated only passage money received by the Liverpool agents, and the risk was only to attach after the money was paid to those agents; which assumes, that by the usual or known terms of such payments the ship-owner’s right or title to that money was at the risk of, or dependent upon, performance of the voyage. It was thus the assumed basis of the whole contract, that the passage money-was not earned if there was such a loss by sea perils as that the passengers could not be carried to their destination.
    2. By the loss, of course the provisions, supplies and outfits used in advance for the voyage, or provided and intended for the use of the passengers and crew, or for the wear-and tear of the vessel, were lost, and all the benefits or profits contemplated from the voyage, to the extent of the amount of passage money, were lost, unless the owners had a right to receive and retain this passage money, merely because paid in advance.
    3. Passage money is now placed upon the" same footing as freight; and is not earned without performance, although paid in advance.
    As to freight. (Phelps v. Williamson, 5 Sandf., 578; [other cases as to freight collected in 2d American Leading Cases; Hare & Wallace, notes, 604-607; 1 Blatchf. R., 354; 3d Sumn., 30, 66; 4 Wash. C. C. R., 110; 13 Mees. & Wels., 230, and note to Am. ed., 240;] Howland v. The Sarona, 1 Peters’ Adm., 126; Giles v. Brig Cynthia, id., 203-207; note; The Aberfoyle, 1 Blatchf. R., 360; The Pacific, id., 569; Watson v. Duykinck, 3 Johns. R., 335, special agreement; Detouches v. Peck, 9 id., 210; 
      Wheeler v. Board, 12 id., 363; Murray v. Richards, 1 Wend. R., 58; Vanderbilt cases, 19 Barb., 222; 21 id., 26, affirmed on appeal; Samson v. Ball, 4 Dallas, 459; Cope v. Dodd, 13 Penn. St. R., 1 Harris, 33; Griggs v. Austin, 3 Pick., 20; Brown v. Harris, 2 Gray Mass. R., 359; Angell on Carriers, §§ 531, 568, &c.)
    4. The English decisions indicate that such was the law of the place where these payments were made, and that the passage money, can be there recovered back. (Mulloy v. Backer, 5 East., 316; Moffat v. East India Co., 10 id., 468; Lewis v. Marshall, 7 Mann & Grang., 729; Coppin v. Braithwait, 8 Lond. Jur., 875.)
    5. The passage money received by the agents in Liverpool, being payable back by reason of the non-performance, (arising from the perils insured against,) the money (if not actually refunded) is held in trust for the parties entitled to it. The shipowners would own the money, and be simply principals of those agents, if they performed the voyage or carried the passengers as contemplated. But if not, it was to be refunded. Then, the voyage having failed, the passengers not having been carried, the contract to carry being at an end, the money became a mere temporary deposit, belonging to the passengers or their representatives, and was in equity a trust fund; and this trust became enforceable at law in an action for money had and received for the use of the passengers. (2 Fonbl. Eq., book 2, ch. 1, § 1, note b.; 24 Wend. R., 514-518; 2 Denio, 142.)
    6. There is no propriety in the underwriters refusing to settle until proof of the actual payment back of the fund thus deposited, and not earned, belonging to passengers and held in trust for . them. They might as well refuse to pay for repairs or other losses, although incurred, and require proof that the ship owner had paid his debts occasioned by the necessity for prompt repairs or unusual expenditures, the risk of which was insured against. It is the chief object of insurance to place the ship owner promptly in funds. (Wolfe v. The Howard Ins. Co,, 1 Sandf. S. C. R., 124; S. C., affirmed, 3 Seld. R., 583.)
    7. An insurance on freight (to which passage money is analogous) has no reference to the collection of freight or to its payment, either in advance or after it is earned, but depends merely upon, the ability of the vessel to earn it. Its design is to cover an amount at risk for all the current expenses, wear and tear, &c., to the extent of the probable receipts of' a voyage independently of the mere value of a vessel as a chattel at the time of her loss; it is fixed on the amount of freight, (or passage money,) because that indicates a distinct limit and amount or valuation of an insurable interest. (Ogden v. General Mut. Ins. Co., 215-217, &c.; 1 Phill. on Ins., 133, 134, &c.; Emerigon, 707, &c.; 3 Kent’s Com., 7 ed., 337, 393.)
    The judgment should be affirmed.
   Hoffman, J.

I find no mention, in the leading treatises upon the law of insurance, of a policy on passage money. Arnould, Phillips, Marshall and Park give no information upon the subject. The great work of Emerigon, the Commentaries of Par¿essus, of Pothier, and of Boulay Paty, are equally silent. These oracles of the law, foreign or domestic, utter no response to the inquiries we address to them.

It is true that we may discover in the comprehensive language of some writers, authority to embrace such an insurance. “ Everything may be insured, which by law, or by custom possessing the authority of law, is not forbidden.” (Kurike de Assecur, apud, Boulay Paty, tom. 3, p. 356.)

The Commercial Code of France, (art! 334,) has undertaken to define what may be the objects of insurance. In article 347 it excludes various subjects; but it leaves as insurable, and not thus excepted, “ everything capable of a valuation in money, and subject to the risks of navigation.” (See also Pardessus, tom. 3, art. 758.)

We find, however, in some late cases in England, that policies upon passage money have come before the courts, under- a statute of 15 and 16 "Victoria, 1852, (ch. 44.)

In the first place I shall endeavor to elicit, out of the strange attempt to adapt an old cargo policy to an insurance on passage money, the material elements and stipulations of the contract;.

The Company, on the 13th of January, 1855, agree with Mr. Ogden, on behalf of whom it may concern, that they will insure, on a voyage from Liverpool to New York, the sum of $6,395, passage money received by A. Taylor & Co., or their agents in Liverpool, for passengers onboard the ship Driver,for a premium of $191.80. By a clause in the body of the policy, the risk was not to attach until the passengers were engaged and paid for. By a subsequent clause this was modified, so that the risk was not to attach until the passengers were on board. The amount of the passage money was to be named to the Company as soon as ascertained. In case of the detention (of the vessel) by any of the perils insured against, whereby the passengers’ fare or charges became a charge to the underwriters, it was to be estimated at not exceeding, for first cabin passengers $1 per day, for second cabin passengers 50 cents per day, and for third cabin passengers 80 cents per day. When new passengers were substituted for the first, the new earnings were to be deemed salvage to the original underwriters, allowance being made for additional fare as above.

The adventure was to begin from the loading of the goods, and to endure until they were safely landed.

The perils insured against are the usual perils enumerated in a marine policy, with the general clause of all other perils, losses and misfortunes that have or shall come to the hurt or damage of such goods and merchandise, or any part thereof.

The passage money was received in Liverpool on the 12th of February, 1856, and the vessel sailed on the 12th. The amount was named, pursuant to the policy, on the 19th of March, advices no doubt having been received of the passengers being shipped.

We have, then, in this contract, these elements: that the passage money actually received by Taylor & Co., was the subject insured; that the risk commenced when the passengers who paid it were received on board; and an engagement to indemnify the assured for any loss of that passage money, or any part of it, which should be occasioned by any of the perils enumerated and insured against.

Having received the passage money, the subject insured, it is for the plaintiff to establish that he has lost it, or part of it, before he can ask restitution through this agreement of indemnity.

A positive deduction is contemplated by the policy, when, by reason of a detention on the voyage, expenses have been incurred; and, generally speaking, the actual and absolute occurrence of loss or damage by destruction or injury of the thing insured, or payment of money from such damage, is to be shown before "the indemnity can be demanded.

But it is not to be denied that if a liability is clearly fixed, if upon the facts the Court must say it exists, and if the condition of the policy plainly covers that liability as much as if it had been discharged, the amount may be recovered under an insurance. This is the rule declared in Wolfe v. The Howard Insurance Co. (1 Sandf. S. C. R., 124; S. C., 3 Seld., 583.) The duties were judicially decided to be due, and the policy provided for the estimate of the goods at their actual cash value, at the time the loss should happen. Though the duties were unpaid, it was considered that they could be included in the recovery under the policy, as much as the value of goods insured could be recovered, although not paid for.

So in Van Natta v. The Mutual Security Insurance Company, (2 Sandf. S. C. R., 490,) upon demurrer to a declaration" on a policy it was held, that the liability of a common carrier for goods destroyed by fire was an insurable interest; was covered by the general words in a policy, of its being for his account and benefit; and that an averment of a liability to pay to the owners a greater sum than that insured, was sufficient, without averring actual payment

It may be noticed, that no allegation of such a liability is found in this complaint.

Our attention has very properly been called to the analogy of the rule as to-payment of freight in advance. It is insisted that freight so paid may be recovered back, if the goods are not delivered. There can be no doubt of this being the rule under an ordinary bill of lading, for by its terms the contract is to deliver the goods, and the fulfillment of this is a condition precedent to the right to freight. (Phelps v. Williamson, 5 Sandf. S. C. R., 578; Griggs v. Austin, 3 Pick., 20.)

But of course a special agreement may control this rule, and a fair construction of special clauses may show that the parties had agreed that repayment should not necessarily follow the failure of the voyage. (Id.)

Chief Justice Kent, in Watson v. Duykinck, (3 John. R., 335,) traces the general rule in the foreign law, and notices the ordinance of the Marine and the Commentary of Valin to that effect, unless there be a special agreement varying it. The 302d article of the Code of Commerce has followed the ordinance in each particular. Freight is not due for goods lost by tempests, &e., and it must be restored if advanced, unless there is a different agreement.

Accordingly, we find, that if freight is to be paid at all events, or if' it has been paid with the clause that it shall not be repaid in case of shipwreck, (as is permitted by the 302d article of the Code of Commerce,) it may be made the subject of insurance, not by the captain or owner, who has gained it, and for whom it is no longer at risk, but by the freighter who runs the risk of losing it. (Boulay Paty, tom. 3, p. 484.) Valin, Pothier, and in substance Emerigon concur in this.

Hall v. Janson, (4 Ellis & Blackb., 500,) is in accordance with this rule, the case being precisely the converse one in its facts. The policy was on money advanced ” to the assured as owner of the ship, “ on account of the freight of the cargo loaded on board her.” It was substantially freight advanced. The ship owner must repay the amount if he failed to carry the goods, although prevented by the perils of navigation. He had therefore an insurable interest.

Yet we see that in Mansfield v. Maitland, (4 Barn. & Ald., 582,) the specialty of a charter party modified this rule. The freighters, it was held, had no insurable interest because the transaction on the bill of exchange was merely a loan to the owner of the ship, for which he had his action. But had it been expressed that the bill was in part payment of the freight, the loss of the ship would have produced a loss to the freighter of the money advanced, and he would¡have had an insurable interest.

Thus, in all these cases, the instruments containing the contract between the freighter and the ship owner were before the Court,. and on them the Court concluded that a plain, legal liability to refund pre-paid freight existed, and when that is concluded, an insurable interest in the ship owner is found, and liability thus judicially demonstrated is held sufficient, and will be so without actual payment.

In Phelps v. Williamson, (ut supra,) thé bill of lading was in proof, and was in the ordinary unconditional form to deliver the goods.

There are several American and English authorities which more directly bear upon the question of pre-paid passage money, and in which, the general doctrine is found, that such passage may be recovered back if the contract is not complied with. But in every case, what was the contract, was the very question to be determined. Upon the instruments and facts of each, the Court settles this question. When this is clearly settled and the liability is ascertained, it may, as before stated, be the ground of a recovery on a policy.

Thus, in the case of Zenobia, (1 Abb. Ad. R., 48, 80; see 86, 94,) the allegation was, that the master contracted to convey the libellant and his family to Hew York, and he paid $150 down, in part for the passage money. This allegation the Court says was proven.

In Cope v. Dodd, (1 Harr. Penn. R., 33,) the receipt given to the passenger was in evidence, and was considered as an engagement to transport 'to Liverpool. In Brown v. Harris, (2 Gray, 359,) the agreed statement of facts showed a contract by the defendant to transport the plaintiff as a passenger, in the defendant’s ship, from San Prancisco to Panama, for the sum of $50, paid in advance. It showed a failure to perform, in consequence of the wreck of the .ship, and that the passenger, was landed at a place less than half way to the port of destination, and that no offer was made to forward him.

In Howland v. The Brig Lavinia, (1 Pet. Ad. R., 121,) the learned judge says, that the same rules are to be applied to passage money as are established on the subject of freight. Ho passage money is due until the vessel arrives at her port of destination, unless otherwise agreed upon. If the passage money has been paid beforehand, it ought to be refunded. So freight on goods is not payable until delivery at the port for which they are shipped.

So in what are termed the Vanderbilt cases, the contracts were in proof and with parol evidence which was competent, were construed to mean engagements to convey the passengers through to San Prancisco. (See 19 Barb., 222; 21 id., 26; and 17 N. Y. R., 306.) In some of these cases the Court below confined the right of recovery to the passage money paid, upon the facts proven. The Court of Appeals sustained a verdict, for expenses beyond this.

In Watson v. Duykinck, (3 John. R., 335,) the paper given by the sloop owner'was, “that in consideration of $100, to be paid immediately, he would suffer the plaintiff to proceed in the sloop as a passenger on the voyage, and to load on board for transportation merchandise to the value of $600.” The money was paid. The vessel was wrecked on her voyage, and the action was to recover back the money. A usage in New York not to refund passage money, if the voyage is begun, was found by a special verdict. The Court decided, however, upon the contract itself, that the action would not lie.

The following English cases will show how entirely dependent upon the particular provisions and terms of the contract between the parties, or upon established usage, is the question of a responsibility to refund passage money paid in advance. (Moffat v. The East India Eng. Co., 10 East., 468; Gillan v. Simpkin, 4 Camp., 241; Yates v. Duff, 3 Car. & Payne, 369; Saunders v Drew, 3 Barn. & Adol., 445; De Silvale v. Kendall, 4 Maul. & Selw., 37.)

I deduce from my examination of the authorities, that when indemnity is sought under a policy, for the loss of the subject insured, not absolutely incurred or actually borne, but contingent and resting upon a liability which will give it practical effect; that liability must be shown to be inevitable, as the necessary result of the law upon the agreement of the parties and the facts of the ease. The question of liability in the present instance will be, in all probability, controlled by the receipt given to the passengers by the agents in Liverpool. That receipt, or any other contract between the parties there made would show whether, under any of the authorities cited, the money was to be refunded under the circumstances which have here occurred. It is to be observed, also, that the complaint does not even aver that the contract was to transport the passengers to New York; only that the vessel was bound to New York, and had on board 344 passengers. I apprehend there would be little difficulty in showing the form and nature of the receipts or agreements which were given; although, of course, they were delivered to the passengers.

Thus the plaintiff has, neither by means of the contracts, by means of any other evidence, nor even by his own allegation, shown or asserted an engagement for the absolute conveyance of the passengers from Liverpool to New York, nor his unconditional responsibility to refund this passage money, if the passen. gers were not carried there, and I think the duty to do this, before he can call upon the underwriters rested with him. I think that he has not done it even upon his complaint, and certainly not upon his evidence. His liability is at this moment not merely contingent in point of fact, but wholly uncertain and undetermined in point of law.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Moncrief, J., concurred in the conclusion, that the judgment should be reversed; Pierrepont, J., dissented.

Judgment reversed, and a new trial granted.  