THIS case came before the Court, upon a division of opinion of the Judges of the Circuit Court of the United States for the district of Maryland. The action was brought upon two policies of insurance, upon a cargo of sugar, on board the brig Columbia, in the name of the plaintiffs, for the use of Daniel Fitch; who was an American citizen, a sea captain, sailing out of the port of Baltimore, and the owner and commander of the Columbia; and of Gregorio Medina, of Ponce, in the island of Porto Rico.
The plaintiffs were the agents of Daniel Fitch; and, by two distinct orders, under different dates, had policies effected upon their application, by the Chesapeake Insurance Company.
The amount of the separate interests of captain Fitch and G. Medina, was shown by the following statement, which was admitted to be correct:––
The entire cargo embraced in the two policies,
All marked F. in the bill of lading, belonging to
captain Fitch, viz:–thirteen hogsheads, five tierces,
and ninety-two barrels of sugar, amounting to– 2076 75
Amount of the absolute and legal or equitable $2275 25
property of captain Fitch,
The residue belonged to G. Medina, the legal title
to which, was in captain Fitch, amounting to– $5610 65
Amount of the two policies 8000 00
The Columbia, with her cargo, sailed from Porto Rico for Baltimore; the cargo consigned to captain Fitch, and documented as such; G. Medina being on board of the vessel, on a visit to the United States. Both vessel and cargo were totally lost, near Norfolk, by the perils of the sea.
The circumstances attending the insurance, and the facts out of which the controversy arose, were as follows:––
On the 6th of May 1822, the plaintiff presented to the office the following order––
'Insurance is wanted against all risks, for account of whom it may concern; 3000 dollars on the brig Columbia, Daniel Fitch master, and on cargo, 6000 dollars, as interest may appear, at and from Ponce, Porto Rico, to Baltimore; by a letter from captain Fitch, dated 19th April, he says he expects to sail about 5th to 10th of May, that the brig is in good order, perfectly tight and seaworthy–what premium?'
1 1/4 per cent., (written on the order by the office.)
Accepted, BUCK & HEDRICK.
A policy was executed on the same day, on cargo, 6000 dollars, insuring Buck & Hedrick, 'for whom it may concern.' The perils insured against are, 'of the seas, men of war, fire, enemies, pirates, rovers, thieves, letters of marque, arrests, taking at sea, restraints of princes; and all other perils, losses, and misfortunes, for which assurers are legally accountable.
No inquiry was made by the office for the letter of 19th April, alluded to in the above order; nor was any warranty or representation of any kind made or asked for, in regard to said cargo, but the office executed said policy on said order.
On the 24th May, Buck and Hedrick made application for further insurance on cargo; and the following letter from Captain Fitch, dated 27th April, was presented to the office, with an order written on the back of said letter; and a like policy was executed for 'whom it may concern,' without any inquiry for the said letter, of 19th April, and for the same premium.
'Ponce, April 27th, 1822.
'Messrs. BUCK & HEDRICK––
Gentlemen–I wrote you a few days ago, by the brig Ospray, Captain Perkins, direct for Baltimore, requesting you to have insurance done for me, on the brig Columbia and her cargo, owned and commanded by me, to sail from this for Baltimore, about 5th to 10th May, with a cargo of sugar. When I wrote to you by the Ospray, I could not say what amount of cargo to have insured for me; I now think I shall have on board about 130,000 lbs. valued at 8,000 dollars, which amount I wish you to have insured for me, at as low a premium as you can. I wish you to understand, that the above sum of 8,000 dollars, is not in addition to that mentioned in my last. The whole amount I want insured, is 8,000 dollars on cargo, and 3,000 dollars on the vessel and freight. She is in perfect good other, tight in every part, built in New-Jersey in 1814, and well found.
Your attention to the above, will oblige
On the back of this letter was written the following: 'What will 2,000 dollars be insured at, agreeable to within letter, on cargo, of which you have 6,000 dollars insured some time since.
1 1/4 per cent. (agreed as interest ...