Vandenheuvel against the United Insurance Company, 1 Johns. 406

Livingston, J. delivered the opinion of the court. This is a valued policy on specific articles, part only of which being condemned, the master, to prevent the embarrassment of an-appeal, with which he, was threatened by the captors, agreed to give them five thousand dollars. To raise this sum, it became necessary to sell, of the merchandise insured, not only more than a moiety in quantity, but also in i -r- , . , . - . . . value, r rom this bnei statement it would seem to result, on principles long and well settled, that a technical total loss liad happened.

The first objection to this claim is, that if the other cargo on board, which was not insured, be taken into calculation, the part sold will fall short of a moiety, and the loss be turned into a partial, one. The residue of the cargo, this being an insurance on particular articles, is not to be brought into the computation. In settling and distributing an average loss, it is proper to look at every thing on board ; but when a moiety of any portion specifically underwritten, has been lost, its owner may abandon, however smallits proportion may be to the whole lading.

If A, having one barrel of sugar, and a hundred hogsheads of the same

article in one vessel, insure only the former, which is taken away by a pirate, or otherwise lost, he will recover the whole insurance, though the property remaining may be more than fifty times its value. It is next said, that all the expenses, as exhibited in the several accounts, with the loss on the sugars sold, make a general average, to be borne by vessel, freight, and whole cargo, as well the part uninsured, as that which was covered, and that on such an estimate, the loss will only be partial.

Without denying the correctness of this argument, when expenses are incurred, or a ransom paid, manifestly for the liberation of all these subjects, (which may well be denied here) it is inapplicable to these parties, because the plaintiff, who was also owner of vessel and freight, had, withhis own funds, and previous to the disposal of any of the cargo, paid more than the proportion chargeable on all the interests mentioned, except the insured articles, which were sold, or a part of them, to raise their own assessment, allowing every thing to be general Average, The underwriters not having advanced the contribution payable by that part of the cargo which tvas insured, they cannot complain if they bé called upon for their whole subscription, if to furnish this sum, more than its moiety was sacrificed; for the owner was a sufferer Jo that extent by its sale, and may therefore, if he please, re-. gard the loss as total.

If the vessel, and residue of the ear» go had been owned by strangers, which was in part the case, who had advanced their proportion of ransom and expenses, but to raise the share allotted to the insured part of the cargo, more than a moiety had been sold, it would most clearly have rendered the defendants liable for a total loss.

This ownership being in the plaintiff, can make no difference, for in cither case it would be uniust to throw any part of a loss arising from a sacrifice of the cargo, on those who were not in default, but had already advanced more than on,an)1 statement could be necessary to redeem their interest from the impending jeopardy.. If then the ransom be not a general average, there must be.an end to all question as to the totality of the loss, if it be true, as the case admits, that more than one half of the subject insured in' quantity and in price, were disposed of to raise it.

It seems to. be thought by the defendants, that a right to freight depended on a release of the cargo, and that therefore it should bear its proportion of any expense’incurred to obtain its restitution in part or in whole. This proceeds on a supposition that in case of a confiscation, freight is always lost. What was the direction here as to the freight ef the forfeited articles does not appear. As the sentence proceeded on the ground of enemy-property, it ought to have been, and we may therefore presume it was, or would have been allowed.

This is conformable to the practice of British courts of admiralty, when property is condemned for no other reason, than its belonging to an enemy. Freight, therefore, not necessarily depending on the sale of the cargo, ought not to be burthened with any part of its ransom. In Maggrath & Higgins v. Church, this court decided that in case of general average the proprietor of the cargo, is not bound to look to the owner of the vessel and freight, for his proportion, but may immediately call on his underwriter for indemnity, leaving him to his suit over against the other parties.

This principle, which would put an end to this controversy, we are not at liberty to apply here, because the plaintiff has consented to be charged with the proportion of any general average payable by vessel and freight, without ... throwing it, m this suit, on the defendants. Upon the whole, we are of opinion, that the plaintiff is entitled to recover as for a total loss.

The items in the account B, which arose after the restoration, having been expended solely for the benefit of the cargo, and not to obtain a liberation of the vessel, which was not brought into controversy, must be borne, not as a general average, but as a particular charge on the whole cargo.

For the same reason, the vessel and freight are not chargeable with any part of the loss on the sales of the cargo, or of the disbursements in the account C, except so far as the parties are concluded by their own admissions in respect to the canvass and pork ; the other items appertain to the cargo only, and must be borne proportionally by the defendants. The defendants will of course be credited with the nett proceeds of the cargo sold at New-Tork, deducting from such sales the freight as well as other charges. The plaintiff is entitled to full freight, because the taking out of the cargo at St.

Kitts must be considered as the owner’s own voluntary act, and for his benefit, to raise a sum which he agreed to pay as a ransom, and because, had it not been fox-this compromise, the vessel would have been entitled to, and probably have received, at St. Kitts, as much freight for the articles condemned, had they been sold there, as if they had been brought to New-Tork, and have been also entitled to the balance of freight, on a delivex-y of the residue of the cargo there.

On the proportion of expenses, to which the defendants are liable beyond a total loss, it is right that interest should be allowed to the assured, from the time the money was advanced, and on the balance due for a total loss, from the expiration of the term limited by the policy. Upon these principles Mi-. John Ferrers will state an account, and the verdict will be so modified, as to correspond with his report, for which sum judgment must be entered for the plaintiff. Judgment for the plaintiff.