Ogden v. New-York Firemen Insurance

delivered the opinion of the court'.,:. This-is an action to recover back part , of the - premium paid. bn two. policies óf insurance oil a voyage from Malta to Si.' Fctersburgh. The policy contains several.special stipulations,; ás to- touching and staying at intermediate, ports. The clause relating to the premium is as follows“ At and after the- rate' of forty -per cent,,- to return fifteen, per cent., if the vessel passes the Gut of Gibraltar on or before - the twentieth of June last/ and the risk ends without-loss ; or fifteen per cent', if the risk' ends in .safety at GottenpurghAnd -it is for the return of the' fifteen per cent, last mentioned; that this action is brought.

While on the voyage, and in the English channel; the supercargo received such information, as to induce him to abandon the voyage to Fctersburgh, aifd go to Loydon.' The argument; urged oh the part of the defendants against the return of premium, is,, that the arrival in safety at Gottenburgh, was the condition upon which- the premium was,to be returned-; and the • vessel, not having arrived there at all, the. condition.has not been; performed. This, does nbt appear to me to be a fair interpretation. of this provision in the .policy. It would be too rigid a construction, and obviously against the intention of the. parties. The premium is paid for the risk assumed and run by the underwriters. And, although- the" policy covers .the whole: voyage, from Malta, to St. Peiersburghy if the assured 'should *119choose to end it at the latter place, yet the stipulation as to the return of premium manifestly shows, that in the contémplation of the parties, circumstances might occur, which would render it advisable to end the voyage at Gottenburgh. The voyage must, therefore, be considered divisible, and the premium follows such divisibility. The risk from Gottenburgh to St Peters-burgh, was calculated at fifteen per cent., for that sum was to be returned, in case the risk on that part of the voyage was not run. The risk is the consideration for the premium, and it was matter of perfect indifference to the underwriters, whether the vessel arrived at Gottenburgh or not. The assured had the election of terminating the voyage there; and if it was broken off before, the vessel was never On the voyage from Gottenburgh to St. Petersburgh, and the policy never attached, so far as it relates to that part of the voyage. The arrival in safety at Gottenburgh, cannot be presumed to be the contingency upon which the fifteen per cent, was to be returned. It was the exoneration of the underwriters from all risk beyond Gottenburgh, which entitled the assured to a return of premium, according to the fair and reasonable interpretation of the policy. The plaintiff is, accordingly, entitled to judgment. ■

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

Judgment for the plaintiff.