Howard et al. v. The Astor Mutual Insurance Co. dismiss the complaint, and with liberty to either party to turn the case into a bill of exceptions. And it was thereupon ordered that the questions arising upon the case be heard, in the first instance, at a General Term of this Court. F. B. Cutting and Daniel Lord, for plaintiffs. I. The insurance being on "passage money," the policy (an ordinary printed policy on freight) must be construed with reference to the peculiarity of this novel and comparatively unusual subject; and the printed parts which are not applicable to passage money, should be rejected or construed in subordination to the nature of the insurance. In other words, the general terms of the contract must be narrowed in point of construction to the subject of passage money only. (1 Arn. on Ins., 79, 80, 210; 4 East. R., 140; Angel Car., §§ 522, 122; 2 Curtis U. S. R., 277, 291, 292.) II. The intention of the insurance was to protect and indemnify the assured against any loss of passage money that might be occasioned by the happening of the perils usually assumed by marine insurers. An unreasonable delay in commencing or prosecuting a voyage, occasioned by damage to the vessel through stress of weather, whereby passage money is lost, comes within the policy. III. The policy attached upon the passage money advanced or to be advanced by passengers who engaged passage by the steamer New Orleans, in New York, for San Francisco, and who were to embark at Panama, on her voyage from New York. 1. Each passenger, for the consideration mentioned in hist ticket, hired a specified berth, and had entitled himself to a passage from the usual embarking point, in the course of the voyage from New York to San Francisco. 2. The plaintiffs had entered into contracts with the passengers, giving them the right to berths; had fitted and equipped the steamer for the voyage with supplies, stores, &c., and had put themselves in a position to earn the passage money. 3. The assured had thus acquired an inchoate right to the pas sage money, from the inception of the voyage at and from New York. The contracts with the passengers were in progress of Howard et al. v. The Astor Mutual Insurance Co. being performed, and the risks of loss of the passage money by the perils of the seas, &c., had commenced. The passage money was advanced upon an agreement that the steamer should proceed from New York to Panama, and thence to San Francisco; and the earning of the money was subject to be defeated by sea perils occurring at or after leaving New York, and before or after reaching Panama. (Truscott v. Christie, 2 Brod. & Bing., 324; Devaux v. J'Anson, 5 Bing. N. C., 519; Flint v. Flemyng, 1 B. & Ad., 45; Hart v. Del. Ins. Co., 2 Wash. C. R., 341; 1 Arn. on Ins., 472-474; id., 205, 242, 243; Robinson v. Manuf. Ins. Co., 1 Metc. R., 146; Adams v. Manuf. Ins. Co., 22 Pick., 163.) 4. On a voyage at and from New York to San Francisco, the usual point of embarkation of the passengers is at Panama, and this usage constitutes part of the policy. It was intended to cover the passage money paid or to be paid in New York, for berths, &c., to be occupied when the ship had reached Panama. (Barclay v. Stirling, 5 M. & S., 6; Hunter v. Leathley, 10 B. & C., 858; 7 Bing. R., 517; 1 Arn. on Ins., 370, 373, 428-430.) (a.) The existence of the usage is proved. There is no contradictory evidence. (b.) The usage is of equal force, although of recent origin, and confined to the particular trade. (1 Duer on Ins., 263, § 57; 1 Arn. on Ins., 72, 73, and note.) IV. The earning of passage money was defeated by the happening of the perils of the seas. The steamer was thereby so much damaged that she was prevented from reaching Panama within a reasonable time after leaving New York. Instead of arriving there during the month of April, as was expected, she did not arrive until the 23d of August. 1. Intelligence of the disaster to the steamer reached Panama in April, and her arrival there was not expected before July. Neither the passengers who held tickets for passage from Panama, "in the month of April," nor those who held tickets for passage on the first trip," were bound to wait beyond a reasonable time after the period when, in ordinary course, the steamer should have been at Panama. (Yates v. Duff, 5 Carr. & P., 369; The Pacific, Blatchf., 569, 577, 583; Watson v. Duykinck, 3 Johns. R., 336; Adderton v. Cook, 5 Carr. & P., 369.) Howard et al. v. The Astor Mutual Insurance Co. In all maritime contracts, expedition is of the utmost importance. (Abb. on Ship., 249, 351, 361; 3 Kent Com., 204; Per TINDAL, Ch. J., in Glaholm v. Hays, 2 Man. & Grang., 267, 268.) Delay by the assured discharges the underwriters. (Hartley v. Buggin, Park. on Ins., 652, 8th ed.; Hamilton v. Shedden, 3 Mee. & Wels., 49, 52; Phillips v. Irving, 7 Man. & Grang., 328.) A fortiori, expedition and diligence are to be exacted from the carrier in favor of passengers. The climate, exposure to disease, expenses, and other inconve niences at the port of detention, are to be considered. (Phillips v. Irving, 7 Man. & Grang. R., 328.) V. When it was ascertained in Panama that the steamer could not arrive within a reasonable time, the passengers were entitled to a return of their passage money, or to be forwarded by other vessels, at the cost of the plaintiffs. (Yates v. Duff, 5 Carr. & P., 369; Watson v. Duykinck, 3 Johns. R., 332; Adderton v. Cook, 5 Carr. & P., 369; Miston v. Lord, Blatchf. R., 356, 358.) Retardation of the voyage may amount to a total loss, even of goods, when they are of a perishable nature. (3 Kent, 326.) But the doctrine of "retardation" has little or no application to passengers. VI. As a legal consequence, from the happening of the perils insured against, the plaintiffs have expended the sum of $1,310 in and about the support of many of the passengers while detained at Panama; (The Zenobia, 1 Abb. Adm. R., 94, 95;) they have refunded to others of them passage money to the amount of $5,650; they have expended $75,150 in forwarding the remainder of them from Panama to San Francisco. The amount received at Panama, ($15,275,) from passengers other than those who engaged passage in New York, was more than absorbed by the expenses. VII. The plaintiffs are entitled to recover the losses that they have thus sustained, with interest from the 2d October, 1851, to the extent of the sum insured by the defendant. Wm. Curtis Noyes, for the defendants. I. Common carriers, whether of goods or passengers, where there is no express agreement to transport within a specified time, are not responsible for delays occurring without their fault, as by Howard et al. v. The Astor Mutual Insurance Co. a peril of the sea. (Wibert v. N. Y. and Erie R. R. Co., 2 Kern., 245.) II. The agreements contained in the tickets issued by the plaintiffs, providing (in substance) for the arrival of the New Orleans at Panama within a particular month, (April,) created obligations beyond the usual common law undertaking of a carrier, and cannot, therefore, in any way influence or control the policy made by the defendants, or impose upon them any obligations other than those which flow from the terms of the policy as interpreted and applied by the law of insurance as heretofore administered. III. For the reasons urged on the motion to dismiss the complaint, the plaintiffs were not entitled to recover, and especially because the policy did not cover any retardation of the voyage, or any damages sustained thereby; it was simply an undertaking to indemnify the plaintiffs against any loss occasioned by breaking up the voyage and the non-earning of any passage money by the vessel. (a.) The vessel actually earned passage money. 1. The voyage was insured as an entirety from New York to San Francisco, and the vessel actually earned passage money for carrying passengers between those ports. 2. She also earned passage money for that part of the voyage extending from Panama to San Francisco. 3. If any freight is earned, the party insured cannot recover upon a policy upon freight. (Ogden v. Gen. Mut. Ins. Co., 2 Duer, 204; Scottish Marine Ins. Co. v. Turner, House of Lords Cases, 312.) The rule must be the same as to passage money, as it depends upon the same principles. (b.) The policy did not cover any claim for retardation upon well settled principles and cases. 1. A reasonable time is allowed to the shipper to repair the vessel when injured by a peril of the sea, so as to carry on the cargo and earn freight, and he may retain the cargo for that purpose. (Clark v. Mass. Ins. Co., 2 Pick., 104; Ogden v. Gen. Mut. Ins. Co., 2 Duer, 220.) 2. The passengers who had only general tickets for the first voyage from Panama to San Francisco were bound to await the Howard et al. v. The Astor Mutual Insurance Co. arrival of the ship, and could not claim a return of the passage money they had paid, because of the delay in arriving caused by sea perils. 3. Those whose tickets were for the month of April, may not have been bound to wait, and may properly have demanded a return of their passage money; but the agreement by which this result was produced, was not binding upon, nor can it affect the defendants in any way. (Cobb v. Howard, 10 N. Y. Legal Obs., 355; S. C., on appeal, affirmed by NELSON, J.) 4. The retardation of the voyage by a peril of the sea is not covered by the policy; and as the voyage was actually performed, and there is no pretense that any cause of abandoment existed, the plaintiffs cannot recover. (Jones v. Ins. Co. of North America, 4 Dal., 246; S. C., reversed, 2 Binn., 567; Mayo v. Maine Fire and Mar. Ins. Co., 4 Mass., 374; Everth v. Smith, 2 M. & S., 278; Brookelbank v. Sugrue, 1 Mood. & Rob., 102; Jordan v. Warren Ins. Co., 1 Story, 342; McSwinny v. Royal Ex. Ass. Co., 13 Jurist, 489; S. C., reversed, 14 Jurist, 999; 2 Arn. on Ins., §§ 373-396.) Judgment should therefore be given for the defendants, and the complaint dismissed with costs. PIERREPONT, J. The policy in this case is an ordinary printed freight policy; the words "on passage money" are written in. Upon well settled rules of construction, the contract must be regarded as relating to "passage money" only. (1 Arn. on Ins., 79, 80, 210; 2 Cur. U. S. R., 277, 291; 4 East R., 140.) The policy was issued February 14th, 1850, and the steamship sailed on the 25th of the same month. The plaintiffs sold passage tickets for the voyage from Panama to San Francisco, both before and after the ship left New York. Each ticket contained the number of the berth to which the holder was entitled. Some of these tickets were for "the month of April;" and some were for "her first trip" from "Panama to the anchorage of San Francisco." As appeared in evidence this was "her first trip." There was evidence that on a voyage at and from New York to San Francisco, the usual point of embarkation of the passen |