Wager v. Providence Ins Co Providence Ins Co v. Morse

• Decision Date: 06 November 1893
• Docket Number: Nos. 41 and 49,s. 41 and 49
• Citation: 150 U.S. 99,14 S.Ct. 55,37 L.Ed. 1013
• Parties: WAGER v. PROVIDENCE INS. CO. et al. PROVIDENCE INS. CO. et al. v. MORSE et al
• Court: U.S. Supreme Court

150 U.S. 99

14 S.Ct. 55

37 L.Ed. 1013

WAGER

v PROVIDENCE INS. CO. et al.

PROVIDENCE INS. CO. et al.

v. MORSE et al.

Nos. 41 and 49.

November 6, 1893.

George Clinton and Spencer Clinton, for H. for Providence Ins. Co. and Security Ins. Co.

George Clinton and Spencer Clintion, for H. & A. Morse.

Mr. Justice SHIRAS delivered the opinion of the court.

In May, 1883, Armour, Plankinton & Co., grain merchants, having their place of business at New York city, were the owners of a cargo of wheat, which they desired to have brought from Buffalo to New York. Henry Morse and Alanson Morse, composing the firm of H. Morse & Co., were doing business as intermediaries or middlemen between boatmen and shippers in procuring cargoes to be shipped. Charles E. Wager was the master and owner of the canal boat William Worden, and also of the steam canal boat Sydney.

Through one Meadows, as their agent, Armour, Plankinton & Co. made a contract with H. Morse & Co., whereby the latter employed Charles E. Wager to take the cargo of wheat, amounting to 7,900 bushels, on the boat William Worden, for transportation from Buffalo to New York.

In the spring of 1883, before this cargo was shipped on the canal boat William Worden, the said insurance companies delivered to H. Morse & Co. an open or running cargo policy, which contained the following terms and covenants:

'Uniform Canal Cargo Policy.

'The New England Underwriters,

'The Security Insurance Co., of New Haven, Conn.,

'The Providence Washington Insurance Co., of Providence, R. I.,

'Each acting and contracting for itself, and not one for the other, for the true performance of the premises, each company for its own part only, which is one-half of all liability accruing under this policy, by this policy of insurance, on account of H. Morse & Co., for whom it may concern, do insure the several persons whose names are hereafter indorsed hereon as owner, advancer, or common carrier, on goods, wares, merchandise, or country produce, on his own boat, or boats belonging to others, loaded on commission or chartered, from place to place, as indorsed hereon, or in a book kept for that purpose, for the several amounts, at the rate, and on the goods, wares, merchandise, or country produce, as specified in the said indorsement.

'No risk considered as insured under this policy until said indorsement is approved and signed by these companies, or their duly-authorized agents at _____, unless with special agreement with the companies, and indorsed hereon.'

Before the cargo in question was put on board the William Worden, H. Morse & Co. applied to Worthington & Sill, the general agents at Buffalo of these insurance companies, to insure the cargo of wheat while in transitu on board the William Worden.

That application was in writing, as follows:

'Worthington & Sill, General Agents.

'New England Underwriters' Canal Insurance.

'Office, No. 48 Main Street, Buffalo, N. Y.

'Insurance is wanted by H. Morse & Co. Loss, if any, is payable to do, or order, on wheat inboard cargo of boat William Worden. $9,875, from Buffalo to New York.

"Rate -----cts. is............ $ -----

"Total premium................ $ -----

'Buffalo, may 17, 1883.

'H. Morse & Co., Applicant.'

On receipt of this application, Worthington & Sill delivered to H. Morse & Co. a certificate of insurance in the following words:

'Providence Washington Insurance Co., Providence, R. I.

'Security Insurance Co., New Haven, Conn.

'New England Underwriters.

'Inland Marine Department.

'Worthington & Sill, Gen'l Agents, Buffalo, N. Y.

'Canal Cargo Certificate.

'No. 668. $9,875.

'This certifies that H. Morse & Co. insured under and subject to the conditions of policy No. 772, issued by the New England Underwriters, in the sum of ninety-eight hundred seventy-five dollars, inboard cargo of boat William Worden. On wheat $9,875, at and from Buffalo to New York.

'Loss (if any) payable to assured or order, and return of this certificate. This certificate of insurance is not valid until countersigned by the authorized agents for this company at Buffalo, N. Y.

'Buffalo, N. Y., May 17th, 1883.

'Worthington & Sill,

'General Agents.'

Upon the delivery of said certificate of insurance, Worthington & Sill entered in the book kept for that purpose, 'H. Morse & Co., boat William Worden, from Buffalo to New York, $9,875, rate 15 cts., premium $14.82, wheat.' This certificate of insurance was indorsed in blank by H. Morse & Co., and delivered to Meadows, the agent of Armour, Plankinton & Co.

Thereupon Wager and H. Morse & Co. signed and delivered to Meadows an affreightment contract or bill of lading as follows:

'[Vignette.]

'Buffalo, May 17, 1883.

'Shipped by W. Meadows, in apparent good order, on board the canal boat Wm. Worden, of Morse, whereof _____ _____ is master, the following described property, to be transported to place of designation without unnecessary delay, and to be delivered as addressed on the margin in like good order, in the customary manner, free of lighterage, upon payment of freight and charges as prescribed in this bill. Consignees to pay all harbor towing from and to the usual place of landing. Three week days, regardless of weather, (including day of arrival, providing notice of arrival shall be given before four o'clock P. M.,) after arrival and notice of same, to be allowed consignees to discharge this cargo, after which time the cargo or consignees are to pay demurrage at the rate of two and one-half per cent. per day upon the freight, including tolls, for each and every day of such demurrage over the three days as above specified, until the cargo is fully discharged. And it is agreed between the carriers and shippers and assigns that, in consideration especially of the rate of freight hereon named, the said carriers having supervised the weighing of said cargo inboard, hereby agree that this bill of lading shall be conclusive as between shippers and assigns and carriers as to quantity of cargo received inboard and to be delivered at port of destination, and that they will deliver the full quantity hereon named. All damage caused by the boat or carrier, or deficiency in the cargo from quantity as hereon specified, to be paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee. In case grain becomes heated while in transit, the carrier shall deliver his entire cargo, and pay only for any deficiency caused by heating exceeding five bushels for each one thousand bushels.

'The freight charges and demurrage payable to as directed below or order, at place of destination, who is the only party authorized to collect the same, and whose receipt shall be in full for all demands on this cargo or bill of lading.

'In witness whereof the said master of said boat hath affirmed to two bills of lading, one marked 'Original,' and one marked 'Duplicate,' of this tenor and date, one of which being accomplished, the other to stand void.

'7,900 bu. No. 2 red wheat, ex cargo schr. 'R. Hallaran.'

'Freight to New York, five (5) cents per bu.

'Advanced charges, $200.

'H. Morse & Co.

'Per C. E. Wolfe.

'(Seventy-nine hundred bushel.)

'C. E. Wager.

'[In margin:] Armour, Plankinton & Co., New York.

'The freight charges and demurrage, to the amount of $516.94, are payable by check to the order of the National Bank of the Republic, in New York, such check to be delivered to E. B. Brooke & Co. for such bank. The balance is payable to said E. B. Brooke & Co., who is the only party authorized to collect the same, whose receipts shall be in full for all demands therefor.'

Meadows, before the William Worden started from Buffalo, forwarded this bill of lading, with the said certificate of insurance attached thereto, to Armour, Plankinton & Co., at New York.

Wager signed and delivered to H. Morse & Co. a collateral or subaffreightment contract or bill of lading, in the following words and figures:

'Buffalo, May 18, 1883.

'Shipped by H. Morse & Co., in apparent good order, on board the canal boat William Worden, of Syracuse, whereof Charles E. Wager is master, the following described property, to be transported to place of destination without unnecessary delay, and to be delivered as addressed on the margin, in like good order, in the customary manner, free of lighterage upon payment of freight and charges, as prescribed in this bill.

'Consignees to pay all harbor towing from and to the usual place of landing. Three week days, regardless of weather, (including day of arrival, providing notice of arrival shall be given before four o'clock P. M.,) after arrival and notice of same, to be allowed consignees to discharge this cargo, after which time the cargo or consignees are to pay demurrage at the rate of two and one-half per cent. per day upon the freight, including tolls, for each and every day of such demurrage over the three days as above specified, until the cargo is fully discharged. And it is agreed between the carriers and shippers and assigns that, in consideration especially of the rate of freight hereon named, the said carriers having supervised the weighing of said cargo inboard, hereby agree that this bill of lading shall be conclusive as between shippers and assigns and carriers as to quantity of cargo received inboard and to be delivered at port of destination, and that they will deliver the full quantity hereon named. All damage caused by the boat or carrier or deficiency in the cargo from quantity as hereon specified to be paid for by the carrier, and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee. In case grain becomes heated while in transit, the carrier shall deliver his entire cargo, and pay only for any deficiency caused by heating exceeding five bushels for each one thousand bushels.

'The freight charges and demurrage to the amount of _____ are payable by check to the order of...