Lee v. Barreda

Baiitol, J., delivered the opinion of this court: This case was decided by the Superior court of Baltimore city, upon an agreed statement of facts, (for which see ante., 191 to 194.) The appellant, who was plaintiff below, recovered a judgment for ¡jj>43.99, the balance conceded to be due him according to the account of the appellees; he claiming to recover a much larger sum, has prosecuted this appeal, which presents for our decision the single question, whether the appellees were entitled to be reimbursed out of the proceeds of the sale of the vessel at Callao, for the advances made by them to the master, in conformity with the provisions of the charter-party? In the case of Atwell & Appleton vs. Miller, 11 Md. Rep., 348 , this court, adopting the opinion of C. J. Parker, in Griggs, et al., vs. Austin, 3 Pick., 20 , declared the law to be settled, “that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried, by reason of any event not imputable to the shipper, it is to be repaid; unless there be a special agreement to the contrary. ’ ’ In this case there is no evidence of any special agreement to vary the general rule. The single circumstance relied on by the appellant, for the purpose of showing that the money, so paid, was to be “irreclaimable in any event,” by the appellees, is that they effected insurance in their own names and on their own account, upon the said advanced amount, “as for advances on freight to be considered as freight,” which it is contended they could not legally do, if the amount so advanced by them was to be repaid in ease the voyage should not be performed; because, it is said, in that case they would have no insurable interest. ¹⁹⁸ In 2 Parsons Maritime Law, 87, 88, the author says: “A charterer may insure any advances he makes, if they remain at his risk, and are not repayable by the owner in case of loss. But one advancing money on freight has no insurable ' interest, if the money so advanced is to be repaid to him, if the goods do not arrive.” The same principles are stated by the same author, in his excellent work on Mercantile Laxe, page 419, and a reference to the cases cited by him will show that the principles are correctly stated.

There can be no doubt that if advances be made by the charterer on freight simply upon the personal credit of the owner, who is bound to repay the same as a debt “independent of the issue of the voyage,” the charterer would have no insurable interest in the amount so advanced as freight. In the case of Atwell & Appleton vs. Miller, 11 Md. Rep., 348 , one of the questions was, whether the shipper who advanced the freight, was entitled to recover it back, the voyage not having been performed? It was contended that there was á special agreement, by which the money so paid, was to be at the risk of the shipper, and not reclaimable by him in the évent of the voyage not being performed, and this court decided that the fact of an insurance on the freight being effected by the shipper was evidence proper to go the jury as tending to prove such special agreement; because, in the absence of such special agreement, the shipper in that case Would have had no insurable interest in the freight. But in the case before us, the fact that the appellees effected an insurance furnishes no ground, whatever, in support of the appellant’s claim.

Such insurance was not inconsistent with the right asserted by