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JOURNAL OF MERCANTILE LAW.

IMPORTANT INSURANCE DECISION. A NOVEL litigated case, and one of much importance in the law of marine insurance, has recently been decided in the Supreme Court of Massachusetts, the details of which occupy a large space in the Boston Daily Advertiser. The suit was brought by T. W. Hoxie against the Pacific Insurance Company—BIGELOW, C. J. The facts of the case may be thus brieflv stated :—The vessel which was the subject of insurance in the policy declared on, having sailed from Perth Amboy in New Jersey, in May, 1860, bound on a voyage to Aspinwall, was compelled by reason of sea damage to put back into the port of Bermuda, which she had previously passed in the prosecution of her voyage, for the purpose of making necessary repairs. There were in that port ample means and opportunities of putting the vessel in a state of complete repair, and of fitting her in all respects for sea. On the first day of September, 1860, she was still undergoing repairs, which were not finished until the fifteenth day of that month, soon after which she proceeded to sea in the further prosecution of the adventure on which she sailed from Perth Amboy. The policy declared on was effected on the twelfth day of September. As nothing is shown to the contrary, it must be assumed that, at the date of the policy and on the day when the risk began, the vessel was in such condition, undergoing repairs, that she was seaworthy for port, so that the policy attached.

In this state of facts, the question to be determined was, whether in a policy on time upon a vessel so situated there was an implied warranty for seaworthiness, similar to that which the law implies in case of a voyage policy—that is, that the vessel is not only seaworthy for port, but also in a suitable condition for sea, by a breach of which the insurers are discharged from liability for loss happening from any cause. This interesting and important question of commercial law was argued at great length-the code was pretty thoroughly overhauled, and all cases of apparent analogy cited —but, from the authorities produced, there would seem to be no foundation, in the opinion of the Judge, for the positions assumed by defendants that there is no warranty of seaworthiness in any policies on time—a warranty which is said to lie at the basis of the contract of marine insurance.

It is easy to see a good reason for holding that a policy on time effected on a vessel when at sea does not include any warranty of her seaworthiness at the commencement of the risk. In such case, the insurance is on a “ vessel in an unknown sea in an unknown state.” The insured has no means of knowing her actual condition, or, if she is injured and out of repair, of restoring her to a condition of seaworthiness. Both parties enter into the contract with a full knowledge of these facts. It would not only be pushing a rule of law to an unreasonable extent to say that under sueh circumstances the assured undertakes to warrant his ship, of the conditions and circumstances of which he could know nothing, to be then seaworthy for any purpose, but it would be contrary to the manifest intent and understanding of the parties. In such cases, the circumstances attending the making of the contract of insurance tend directly to rebut any implication of a warranty of seaworthiness at the inception of the risk. But when it is attempted to go farther, and to say that, because in certain cases of insurance on time it cannot be reasonably held that there is an implied warranty of seaworthiness at the inception of the risk, there is no such implied warranty at all in any such policy, whatever may be the circumstances under which the contract was entered into, the reasoning seems to be fallacious and unsound. Certainly it would be contrary to all the received canons of legal exposition to construe policies of this nature as if they were • isolated contracts, having no connection with or affinity to other similar contracts under the law-merchant, and to which only the general rules regulating the interpretation of ordinary written contracts are to be applied. These ought not to be taken out by the mere force of judicial construction from the class of contracts to which they belong, or from the rules and principles by which such contracts are interpreted, any further than is rendered absolutely necessary by the peculiar stipulation, which distinguishes them from other contracts of marine insurance. Indeed, it is with reference to these rules and principles, long established and well known by all persons engaged in commercial transactions and the business of insurance, that these policies must be presumed to be made ; and to disregard and reject them in giving an interpretation to the provisions which they contain, would be clearly contrary to the plain intent and understanding of the parties. Every implied warranty, therefore, which according to the usages of insurance and the decisions of courts of law is presumed from the fact of making an insurance on a ship or vessel under the well known forms adopted for policies, is to be annexed to and form part of a policy on time, as well as of one for a specified voyage, unless inconsistent with the nature of the risk or the circumstances under which the policy was entered into.

It was suggested by the counsel for plaintiff that if any warranty of seaworthiness was implied in the policy declared on, it was fully complied with by proof of the fact that the vessel was seaworthy at Perth' Amboy on her departure in the prosecution of the adventure during the continuance of which the policy was effected and the vessel was lost. “But we are unable,” says the Judge,“ to appreciate the soundness of this suggestion. It confounds the voyage insured with the actual voyage on which the vessel happens to be bound at the date of the policy ; these two have no necessary connection.” The conclusion arrived at by the Judge was, that there was an implied warranty of seaworthiness in the policy declared on, in analogy to that which would arise under similar circumstances in a policy for a voyage; and, that the insurance having been effected on a vessel while in port, to take effect from a certain day, which was before she sailed thence, the warranty includes seaworthiness for ports as well as seaworthiness in setting out therefrom, as in a policy at and from a particular place.

INTERESTING QUESTION TO IMPORTERS IN U. 8. COURT, BEFORE JUDGE

NELSON.

MANUEL ECHEVERRIA ET AL. VS. HIRAM BARNEY.

This suit is brought to recover back an excess of duties paid under protest on an importation of wool, lead in bars, goat-skins and cotton, in the Spanish bark Teresita, by the plaintiffs from Matamoras, September 4th, 1862. The duty paid and protested against was a discriminating duty of ten per cent, claimed under the third section of the act of 5th of August, 1861. The first and second sections of that act imposed certain duties on articles specially enumerated in each section. The third section provides that “all goods, &c., imported from beyond the Cape of Good Hope in foreign vessels not entitled by treaties to be exempt from discriminating duties, &c., and all other articles, goods, &c., not imported direct from the place of their growth or production, or in foreign vessels, entitled by reciprocal treaties to be exempt from discriminating duties, &c., shall be subject to pay, in addition to the duties imposed by this act, ten per cent ad valorem. It is admitted that Spain has no such treaty as is mentioned in the section, and hence there is no difficulty in imposing the discrimination against her in all cases where the section applies. But none of the articles in this importation, except “ lead in bars," is charged with a duty in the two preceding sections, or in any other section of the act, and therefore the third section imposing the ten per cent does not apply according to its very terms. The words are- "in addition to the duties imposed by this act, ten per cent ad valorem.” The first section had imposed“ on lead in pigs or bars," a duty of one dollar and fifty cents per one hundred pounds—the third section, therefore, applied to this article, the Spanish vessel not being exempt by treaty from the discrimination, which, in addition to the above rate, charged it with the ten per cent ad valorem. Wool is charged with a duty under the twelfth section of the act of March 2, 1861, and goatskins, and cotton, under the eighth section of the act of July, 1862. That section provided, that from and after the day and year aforesaid (1st of August, 1862), in lieu of the duties heretofore imposed by law on the articles hereinafter mentioned, and on such as may now be exempt from duty, there shall be levied, &c., the following duties :-* On cotton, one-half cent per pound; on bides, raw, and skins of all kinds, ten per cent ad valorem." Before this, the duty on raw hides and skins of all kinds was five per cent, under the tenth section of the act of March 2d, 1861, and under the twenty-third section of the same act, cotton was free of duty. Whether, therefore, we look to the third section of the act of August 5, 1861, itself, which subjects the articles, under the circumstances stated in the section, to a duty of ten per cent in addition to that imposed by the act in the previous sections, or to the eighth section of the act of 1862, which imposes the duty in lieu of the duties beretofore imposed by law, it is quite clear that the discriminating duty in the third section does not apply to the articles of wool, goat-skins, or cotton. The difficulty appears to me insuperable to undertake to apply the third section of the act August 5, 1861, to the article of wool, which is subjected to duty under the act of March 2, previous, or to the articles of goat-skins and cotton, charged with a duty under the act of July, 1862, when, by the very terms of the third section, the additional duty there imposed is in addition to the duty fixed by that act of which the section is a part. If the language had been as used in some of the sections of the act of July, 1862, “in addition to the duties heretofore imposed by law"-or had used language which has never yet been used, I thiok, in

any

tariff act—"in addition to the duties that may hereinafter be imposed by law,” the construction claimed by the Government might very well have been sustained. But no such language is used ; on the contrary, the language is, as we have seen, “in addition to the duties imposed by this act.” Judgment for the plaintiff.

JOURNAL OF BANKING, CURRENCY, AND FINANCE.

BANK RETURNS AND BANK ITEMS. City Bank MOVEMENTS AND RETURNS.—The past month has been one of unusual pressure with the New York banks, and consequently of great strigency in the money market. We would refer our readers to our usual money article (Commercial Chronicle and Review,) for a history of this crisis and its causes. It will be noticed that at the close of last month the loans had reached in New York alone $204,000,000, and the deposits were $173,000,000, while the banks held only $16,000,000 in legal tenders and still owed their proportion of $27,500,000 on the loan they had made Government. These few facts, together with the further ones that now the loans have been reduced to $176,000,000 and the deposits to $145,000,000, tell the whole story. The following have been the payments on the $50,000,000 loan:

New York banks. Other banks. 5 per cent when loan was taken....

$1,750,000 $750,000 10 September 20..

3,500,000 1,500,000 10

3,500,000 1,500,000 10 October 3.

3,500,000 1,500,000 10

3,500,000 1,500,000 10 November 10.

3,500,000 1,500,000 10 13.

3,500,000 1,500,000 10 18.

3,500,000 1,500,000 10 21.

3,500,000 1,500,000

27..

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19.

Total..... Making the total paid. Leaving still to paid...

$29,750,000 $12,750,000

42,500 000 7,500,000

Amount of loan. ...,

$50,000,000 On September 5, over two months ago, at a meeting of bank managers of New York, the loan committee was authorized to enforce the equalization of legal tender notes on any day that it pleased, by a simple order conveyed to the banks. This resolution to equalize the notes was not enforced until Saturday, November 7. The New York banks now hold about $20,000,000 in legal tenders.

Below will be found our usual bank returns for the three cíties, brought down to the latest dates :

NEW YORK BANKS. New York Banks. (Capital, Jan., 1863, $69,494,677 ; Jan., 1862, $69,493,577.) ite. Loans. Specie. Circulation. Net Deposits.

Clearings January 3,..... $179,810,009 $35,954,550 $9,754,356 $159,163,246 $186,861,762

10,..... 175,816,010 36,770,746 9,551,563 162,878,249 249,796,489 17,..... 176,606,558 37,581,465 9,241,670 164,666,003 314,471,464

24,..... 179,288,266 38,549,794 9,083,419 168,269,228 298,861,866 February 7,..... 179,892,181 38,243,839 8,780,154 166,342,777 302,352,571 14,

173,103,592 38,426,460 8,756,217 167,720,880 265,139,104 21,....

178,335,880 37,981:310 8,762,586 170,103,758 291,242,929 28,...

179,958,842 39,612,256 8,739,969 173,912,695 340,574,444 11,.. 73,062,789 7,847,849 7,688,233 31,309,985 13,147,000 11,800,000

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Date,
March 7,.....

14,.....
21,..

28,..... April 4,.....

11,.....
18,..

25, May 2,..

9,.. 16,.. 23,..

80,.. June

6,....
13,
20,..

27, July 4,....

11,.....
18,..

25,..... August 1,.....

8,.....
15,..
22,..

29,..... Sept. 5..

12, 19,

26,.. October 3,...

10... 17,.... 24,....

31,.... Nov, 7.,.....

14,.....
21,.....

Loans. Specie. Circulation. Net Depostis. Clearings. 181,098,322 89,705,089 8,698,175 174,689,212 344,484,442 177,875,949 36,110,085 8,657,016 172,944,034 307,370,817 173,829,479 $3,955,122 8,609,723 167,004,466 277,831,351 172,448,526 34,317,691 8,560,602 163,363,846 281,326,268 173,038,019 34,257,121 8,348,094 160,216,418 287,347,704 170,845,288 35,406,145 8,178,091 169,894,731 264,468,080 169,132,822 36,761,696 8,039,558 164,122,146 269,417,566 171,079,322 37,175,067 7,555,549 167,863,999 258,654,781 177,364,956 36,846,528 7,201,169 167,696,916 365,567,732 180,114,983 38,009,633 7,080,565 168,656,518 367,561,731 180,711,072 38,556,642 6,901,700 168,879,180 353,346,664 181,319,851 38,644,865 6,780,678 167,655,668 380,304,748 181,825,866 37,692,634 6,494,375 166,261,121 307,680.418 182,745,080 37,241,670 6,34 1,091 162,767,154 289,757.639 180,808,823 37,884,128 6,210,404 159,561,150 302,377.276 177,083,295 38,314,206 6,120,252 157,123,801 259,488,221 176,682,421 38,271,202 . 6,004,177 168,639,808 264,819.806 174,887,884. 38,302,826 6,998,914 168,642,826 267,786,773 175,087,485 88,712,397 6,927,071 160,738,496 319,946.052 173,126,387 88,264,427 5,880,623 163,319,544 251,168,789 173,036,336 36,910,227 6,775,188 164,133,649 284,684,421 176,208,697 38,746,681 5,700,452 16!,178,146 292,211,821 176,559,840 32,146,548 5.706,024 155,368,116 297,384,006 175,305,471 82,874,913 6,613,177 155,950,048 298,936,160 176,713,139 81,520,499 6,545,970 156,588,095 373,755,630 176,748,618 32,030,055 5,475,964 156,671,695 392,404,68C 178,477,037 31,989,381 6,466,016 158,110,687 394,814,319 200,028,980 32,018,107 5,457,366 178,538,622 371,510,559 207.679,456 31,014,411 5,414,643 185,576,199 343,263,949 204,501,984 30,008,666 5,377,886 186,080,773 354,208,025 206,412,874 30,064,614 5,375,586 182,653,494 375,032,638 206,906,903 29,927,281 5,522,178 180,037,283 899,288,092 206,638,749 28,382,473 6,618,764 178,060,317 427,981,203 204,013,870 28,804,915 5,799,097 172,487,596 469,175,465 203,222,418 28,124,921 6,971,733 171,176,264 443,205,385 193,436,841 28,783,281 6,100,337 159,499,193 459,438,709 182,044,530 29,177,049 6,095,932 151,770,498 441,451,540 176,702,428 28,054,514 6,122,879 145,248,846 400,676,757

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BOSTON BANKS.

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Bostox Banks. (Capital, Jan, 1863, $38,231,700; Jan., 1862, $88,231,700.)

Due

Due Date,

Loans. Specie. Circulation. Deposits. to banks. from banks. Jan. 5,.. $77,339,046 $7,672,028 $8,190,496 $33,372,648

12,.. 77,427,173 7,761,000 8,373,000 33,063,800 17,006,000 13,520,000 19,.. 76,624,700 7,710,600 8,199,600 33,382,000 16,547,800 13,727,700

26... 76,354,000 7,710,700 8,008,500 33,847,000 16,811,700 13,958,000 Feb. 2,.. 76,496,800 7,685,000 8,865,000 34,076,800 16,889,000 14,490,000

9,.. 78,421,000 7,707,000 8,074,000 35,178,600 16,932,000 14,183,000 16,.. 78,431,000 7,794,000 8,001,000 '34,903,000 17,070,700 14,095,500

23,.. 78,782,600 7,624,000 8,002,000 34,965,500 17,331,000 14,583,800 Mar. 2,.. 79,127,500 7,553,000 8,001,980 35,245,500 17,523,600 15,004,000

9,.. 79,274,700 7,582,000 8,225,000 35,215,000 17,340,400 14,446,500 16,.. 79,686,134 7,609,238 7,780,062 32,955,149 17,230,300 13,434,500

80,.. 77,935,000 7,572,600 7,593,800 31,604,500 17,074,400 11,601,300 April 6,.. 76,933,600 7,703,800 7,963,500 32,687,000 15,444,000 12,280,600

13,.. 74,551,018 7,812,895 7,762,915 32,494,822 14,557,000 12,947,800 “ 20... 78,459,160 7,799,315 7,278,506 33,209,742 14,132,000 12,658,000

27,.. 78,558,000 7,838,800 7,040,000 32,781,500 13,308,000 11,966,700 May 4,.. 73,218,155 7,854,781 7,433,496 31,949,762 13,237,700 11,622,600

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