Samuel Nelson

“ It is insisted, on the part of the defendants, that the voyage insured is one entire voyage from Baltimore out to Rio Janeiro, and then to Matanzas, or home; and that they are entitled to a deduction of the freight earned on the outward cargo from Baltimore to Rio.
The court are of opinion, that, upon a true construction of the policy, the insurance was upon every successive cargo that was taken on board in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the outward or homeward passage. ”

“ Whether the test of liability is made to depend upon the destruction in specie, or in value, would, we are inclined to think, as a general rule, make practically very little, if any, difference; for while the goods remain in specie, and are capable of being carried on in that condition to the destined port, it will rarely happen that on their arrival they will be of no value to the owner or consignee. ”

“ If the other side are right, it is always in the power of the assured to bind us by stopping short, when we would not have been responsible if the cargo had been carried on. The agency of the master only begins when the liability of the underwriters is absolutely fixed. The law is settled in England, New York, Louisiana, and in this court. If the cargo remains, specifically, the underwriters cannot be held responsible for a total loss upon memorandum articles. ”

“ The captain is the agent of the adventure, and if the jury justify him as to the vessel or cargo, his acts bind all parties. 5 Peters, 604; 1 Johns. 406. The exigency would have justified a prudent man in acting as he did, if there had been no insurance. He is to act for the general good, mindful of the owners and insurers. 3 Moore, 133, quoted in 2 Phillips, 268. Was not this a judicial sale? ”

“ In the New York cases, the language of the judges is strong, but the cases themselves are distinguishable from ours. (Mr. Nelson here remarked upon the case of Griswold v. New York Ins. Co., in 1 Johnson, and again reported in 3 Johnson, and also upon the case in 14 Johnson.) ”

“ Law Rep. 115; 1 Wheaton, 219, 225,-case of memorandum articles; 2 Phillips on Insurance, 485,-all the decisions cited; 6 Cowen, 270.
The law was settled in England by the case of Roux v. Salvador, 3 Bing. N. C. 266; S.C.., 1 Bing. 526; and there is nothing contradictory in the decisions of this court. The case in 1 Wheaton depended on particular circumstances. If the beef had to be thrown overboard for the sake of health, it could not be considered any longer as beef for all commercial purposes. ”