
4 U.S. 463 (____)
4 Dall. 463
Donath et al.
versus
The Insurance Company of North America.
Supreme Court of United States.

*468 The cause was argued in March term 1806, by Levy and Dallas, for the plaintiffs; and by Ingersoll and Hopkinson, for the defendants.
*469 TILGHMAN, Chief Justice.
My opinion on the first point will be rendered unnecessary, by the opinion which I shall deliver on the second point; because, granting that the plaintiffs possessed an insurable interest, I am of opinion that it clearly appears from the facts stated, that they ordered no insurance, and that no insurance was made for them, in any other capacity, than as agents of Don Alvarez Calderon: consequently, they cannot recover for a total loss, as Don Alvarez Calderon has accepted that part of the property which was saved, and thereby made his election to claim only for a partial loss. The instructions of the plaintiffs for effecting the insurance, were to insure expressly for and on behalf of Don Alvarez Calderon. It is true, they insured only 13,750 dollars, although the whole effects of their principal amounted to 18,733 *470 dollars; and they give the reason, that 13,750 dollars covered the amount of their advances, including premium, commissions, &c. The defendants might well suppose, that the plaintiffs were to hold this policy for their own security, in case of loss, although the insurance was made for Don Alvarez Calderon; and that this was the fact, appears from the agreement, dated the 11th of June 1799. But it is not stated, that this agreement was disclosed to the defendants: on the contrary, there is one circumstance which goes far towards convincing me that no such disclosure was made. It is this: By the agreement, the outward cargo was to be at the risk of Don Alvarez Calderon; but the memorandum at the foot of the policy, contains a covenant, that the inward cargo should be shipped on account of the plaintiffs. The plaintiffs contend, that they had a lien on the goods, and that it so appears by the bill of lading, and their letter to Mr. Blain. But, in my opinion, those papers prove directly the contrary. By the bill of lading, the goods are deliverable for Don Alvarez Calderon, to P. Blain; so that Don Alvarez Calderon might have compelled Blain to give him possession of the goods, before the expiration of the fifteen days, which were allowed for payment of the plaintiffs' demand. The plaintiffs, in their first letter to Blain, declare that the respectability of Don Alvarez Calderon's character was a sufficient guarantee, for the honourable execution of his agreement. And even in their second letter, although they began to apprehend difficulty from the capricious temper of the Don, they gave no intimation of any expectation, that their agent should hold the goods till he received payment of their demand.
Suppose Don Alvarez Calderon had paid the plaintiff's account; can it be contended, that he could not recover for his own use, on this policy, the amount of the loss, that he has actually sustained? And, if he could, does it not inevitably follow, that the plaintiffs cannot recover for their own use? If they can, one insurance effected for one premium, may be made to cover two different interests, vested in different persons. Besides, the plaintiffs attempt, most unreasonably, to make the defendants answerable for a risk, which they never meant to run; that is, for the integrity and good conduct of Don Alvarez Calderon. And after that gentleman has received the property, which was restored to him by the British Court of Admiralty, the defendants are called on to answer for it, as being lost. To render the impropriety of this demand the more complete, the plaintiffs made the abandonment, on which they found their claim, expressly by order of Don Alvarez Calderon. Nothing can be clearer than that the plaintiffs, throughout the whole of the transaction of this insurance acted not for themselves, but as the agents of Don Alvarez Calderon.
3d. On the third point there is no difficulty. Undoubtedly, the plaintiffs may recover for the partial loss, sustained by Don Alvaiez *471 Calderon. The defendants do not deny it. I presume the parties can easily adjust this loss. Indeed, I understood so, from what fell from Mr. Levy, in the course of his argument.
4th. The last question in this case, is, whether the plaintiffs are entitled to a return of any part, and how much, of the premium? The general rule is, that where the voyage is entire, and the risk has once commenced, there shall be no return of premium. But when, by the course of trade, or the agreement of the parties, the voyage is divided into distinct parts; and, on one of these parts, no risk has been run, there shall be an apportionment of the premium, and part shall be returned. A voyage may be entire, though the ship is to go to a number of different places, and to take in different cargoes. But if, in the contract of insurance, there are certain contingencies introduced, which, at certain periods of the voyage, may operate so as to make the insurance void, it has been considered, that, in such cases, the voyage may be supposed to have been divided, in the contemplation of the parties, into distinct parts. As in the case of Stevenson v. Snow, which was an insurance of a ship "at and from London to Halifax, warranted to depart with convoy from Portsmouth." The convoy was gone, before the ship arrived at Portsmouth; and by the judgment of Lord Mansfield, and the whole Court of King's Bench, there was a return of part of the premium. In the case before us, it appears to have been in contemplation of the parties, that on the voyage from the Havanna home, there might be contingencies, which would either avoid the policy, for that part of the voyage, or lessen the risk, so far as to require a part return of premium. The goods shipped on the outward voyage, are warranted to be the property of Don Alvarez Calderon. It was doubtful, whether any goods would be shipped on the inward voyage. If a remittance was made in bills of exchange, there was to be a return of seven and a half per cent., part of the premium. If goods were shipped, they were warranted to be on account of the plaintiffs. It seems to be the spirit of this agreement, that the voyage may be divided; and that if no goods were shipped, there should be a return of seven and a half per cent.
On the whole of the case, I am of opinion, that the plaintiffs are entitled to recover for a partial loss, and a return premium of seven and a half per cent., with interest from the commencement of the action. I do not think, that they should be allowed interest for a longer time, because they demanded more than they were entitled to, and have put the defendants to the expense of contesting their claim for a total loss.
YEATES, Justice.
Being indisposed sent his opinion, in writing, to the Court, and it was read by the prothonotary. He concurred in the decision, that the plaintiff, were entitled to recover a partial loss, for the goods lost and damaged; but he considered *472 the voyage as entire, and, consequently, was opposed to the claim, for a return of premium.
SMITH, and BRECKENRIDGE, Justices.
Concurred, generally, in the sentiments delivered by the Chief Justice.
And judgment was entered for the plaintiffs, accordingly; the quantum to be calculated by the parties.[(1)]
NOTES
[(1)]  On the question of interest, Dallas took the liberty of suggesting to the Court, after the opinions were delivered, that the practice had uniformly been, to allow interest on the amount actually recovered, upon the expiration of 30 days, after depositing the proofs of loss; and that, on principle, the underwriters could-only discharge themselves from interest, or costs, by a tender, or payment into Court, of the sum due. But the Chief Justice answered, that the subject had been considered, and was now decided.
