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Insurance Company v. Thwing, 80 U.S. 13 Wall. 672 672 (1871)

Insurance Company v. Thwing

80 U.S. (13 Wall.) 672


1. Merchandise, carried under bill of lading and paying freight is cargo, and not dunnage, although stowed as dunnage would be stowed for the purpose of protecting the rest of the cargo from wet, and put on board by the shipper with knowledge that it would be so stowed.

2. A warranty in a ship's policy "not to load more than her registered tonnage," will be broken by carrying more cargo in weight than such tonnage, though the excess be used as dunnage, whilst if such excess had been mere dunnage, and not cargo, the warranty would not have been broken.

This was an action of assumpsit for money had and received, brought by The Great Western Insurance Company of New York against W. Thwing, a citizen of Massachusetts, recover certain insurance money which the company had paid to him in ignorance (as they alleged) of a breach of warranty by him. They had made him a policy on his ship Alhambra on a voyage from Liverpool to San Francisco, which policy was dated the 6th of October, 1863, and contained, amongst other things, this clause:

"Warranted not to load more than her registered tonnage with lead, marble, coal, slate, copper ore, salt, stone, bricks, grain, or iron, either or all, on any one passage."

The registered tonnage was 1,285 tons, and the vessel took on board at Liverpool, among other things, 1,064 tons of iron, 6 tons of brick, and 238 tons of cannel coal, being an excess over the registered tonnage of 23 tons. The ship having sustained a partial loss on the voyage, the insurance company paid the money in question in ignorance of the amount

Page 80 U. S. 673

of cargo, and based their claim to recover it back on the ground that the payment was made under a mistake of fact.

The defense set up was that the 238 tons of cannel coal was not cargo, but dunnage.

The defendant showed a charter party with James Starkie, of Liverpool, by which the charterer was to have the full reach of the vessel's hold, and was to pay 51 shillings for every ton of freight put on board; that the master agreed with the charterer, in addition to the agreement in the charter party, that the latter should furnish 250 tons of cannel coal for dunnage of the ship for the voyage, and that under this agreement he received the said 238 tons as dunnage, and that it was used and placed along the ship's bottom, fore and aft, as dunnage; that the captain signed a bill of lading for it; that it was on his freight list; that he collected freight, 51 shillings per ton, for it, and delivered it in San Francisco the same as he did the rest of his cargo; that it was better for dunnage than plack. The defendant also offered evidence of experts to show that a cargo was not properly stowed unless properly dunnaged, and that in cargoes from Liverpool, cannel coal is frequently used for dunnage, and, when so used for certain cargoes, is liable to be crushed; that when cannel coal is received for cargo, it is usually, though not always, stowed in a different manner from what it is when used as dunnage, and that it is sometimes taken as dunnage on ship's account, and then is sold at the port of discharge on ship's account.

Upon this testimony, the plaintiffs' counsel asked the court to instruct the jury that if freight was received and paid for this coal, it came within the warranty, although used as dunnage. The court declined so to rule, but ruled that if the jury believed from the evidence that the cannel coal was received and used as dunnage, and not as cargo, it would not amount to a loading under the clause of the policy referred to, and the plaintiffs could not recover. Under this ruling, the jury found for the defendant. The bill of exceptions brought up the question as to the correctness of this ruling.

Page 80 U. S. 674

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