Imágenes de páginas
PDF
EPUB

"It is argued that this clause in the contract did not exempt the carrriers from liability to the plaintiffs, because it was made without their knowledge or consent, and was an attempted fraud upon their rights. But this is not so in point of fact, so far as the defendants are concerned. The contract between them and the insured was made before any insurance was obtained; and though it sought to secure a right to the defendants in case policies were procured, yet on their part no fraud was contemplated on the plaintiffs,-none is found by the Court. It is true the case states that the plaintiffs did not know of the contract when they issued their policies. That was a matter between them and the insured. If there was any fraudulent concealment of facts on the part of the latter at the time they obtained their insurances, it would have avoided the policies, and they would not have been bound to pay the loss. If they paid it voluntarily, they are not entitled to be subrogated."

In this case, as in the others, but one, considered, there was no contract between the insured and insurer, at the time the contract between the carrier and the insured was made, which restrained them from modifying or entirely annulling the ordinary rule of subrogation if they saw proper to do so by

contract.

The cases referred to hold: (1) That contracts, such as contained in the carrier's contract before us, are valid as between the carrier and shipper. (2) That a policy issued with knowledge that the insured property is in transit, in the absence of inquiry as to the terms of shipment, misrepresentation as to this or other matter material to the risk, or fraud, will be deemed to have been issued in subordination to the contract of shipment, which may control the right of the insurer to subrogation. None of them, however, hold that a contract of insurance, existing when a contract of carriage is made, whether the carrier have knowledge of the insurance contract or not, can be controlled by a subsequent contract between the insured and the carrier, and the insurer's right to subrogation thus be destroyed, even when there is no express provision in the policy which forbids this. It must be that, in the absence of stipulation in a policy to the contrary, the insured may, without invalidating his policy, make such contracts with a carrier, limiting the liability of the latter, as may be lawful under the laws in force at the place of shipment, or such other laws as may be applicable; for the parties ought to be presumed to contract with reference to the right of the carrier to refuse to receive and transport freight

without contract, limiting his liability in so far as this may lawfully be done under the law governing the shipment. With the carrier's liability lawfully restricted by contract, a loss resulting from a cause within the restriction would not give right of action in favor of the insured shipper against the carrier; and where this is the case there can be no subrogation under the general principles applicable to the subject.

The contract relied on by the carrier in this case was not one it had the right to have made, or otherwise the right to refuse to receive cotton for transportation; and it ought not to be presumed that the parties to the insurance contract contemplated that the affreightment would be made practically at the entire risk of the insurer, when the carrier had no right to insist that this should be so, and when the general rules of law, with reference to which they ought to be presumed to have contracted, fix on the carrier the ultimate liability for a loss occurring while the freight is in his hands, unless the loss arises from a cause that relieves the carrier from liability. The carrier's liability is held to be the ultimate liability, simply because the loss of property, while in his custody as carrier, results in fact or in legal contemplation from his failure of duty, while that of the insurer is held to be that only of an indemnitor, in all cases in which the insurance contract does not stipulate to the contrary, or in which a contrary instruction may not fairly be inferred from the time and circumstances of the contract. It seems to us, under the facts of this case, leaving out of consideration the warranty contained in the contract of insurance, that the right of the insurer to subrogation on payment of the loss is as well secured when there is not, as well as when there is, an express contract that the right to subrogation shall exist; and that a contract between the insured and the carrier which defeats this right would defeat the right of the insured or the carrier to recover at all upon the contract of insurance. It has been held that, where a policy expressly gives the insurer the right to subrogation against the carrier, a subsequent agreement between the insured and the carrier that the latter shall be subrogated to the right of the insured avoids the policy: Carstairs v. Insurance Co. (1883), U.S. Circ. Ct., Dist. Md., 18 Fed. Repr. 473. The correctness

of this ruling was recognized in Jackson Co. v. Insurance Co. (1885), 139 Mass. 511. If the insured wishes insurance that will place the ultimate liability on the insurer, let him so make his contract as to protect the carrier afterwards to be selected by them; compensate the insurer for the increased risk of ultimate loss; and be in position to contract with the carrier for reduction in freight, such as may be proper by reason of this shifting of the ultimate risk of loss from the carrier to the insurer.

Passing from this, however, it is certainly true that the insured could not confer on the carrier a right he did not possess. The warranty which the insurance company seeks to assert to avoid liability to the carrier was one promissory in character, in which the parties contracted "that this insurance shall not inure to the benefit of any carrier." This, if a valid provision, cuts off any construction of the policy whereby it could possibly be held to confer any right to benefit under it on a carrier of the property insured, and it deprives the insured of the power to confer on such carrier any right to benefit under the policy by contract or otherwise. By the warranty we understand the parties to have contracted that the contract of insurance should be avoided-should cease to be operative -if during the time specified for its continuance the insured should so contract with a carrier of the property insured as, between themselves, to give to the carrier any right to benefit under the policy. The purpose of this provision evidently was to deny, in terms, to the insured the right of power to confer on the carrier any right to benefit through the policy, such as the cases to which we have referred hold may be conferred on the carrier by contract with the shipper made before insurance is obtained. The insurer, in effect, says in the face of the policy, and to this the insured assents

"This contract shall be binding on me only so long as you refrain from contracting with any carrier you may employ to transport the insured property that he shall have right to any indemnity from me for loss occurring, while the property is in his possession as carrier, from a cause which, under the rules of law applicable to the contract of carriage, would give you cause of action against such carrier; and I will not be longer bound by this contract if you in any manner release such carrier from that full liability to you and to me which will exist under a lawful contract of affreightment for loss of the insured property while in his hands as carrier."

By requiring the carrier's liability to continue the ultimate liability, the insurer doubtless intended to make the carrier's own interest some guaranty against its own negligence or misconduct. In the very act of making the contract through which the carrier in this case claims, the policy ceased to be of any effect whatever, as to the particular cotton at least, and from that time forward neither the insured nor the carrier could assert a right under it, based on the particular loss, if the warranty was valid.

The Court below held that the warranty was invalid, because in restriction of trade, and against public policy. The insurance company was under no legal obligation to issue a policy at all, but, if it did, it had the right to place a provision in the policy such as it did, and in so doing it neither contravened any public policy nor restrained trade. It is said that the carrier had no notice of the clause in the policy now relied upon, and that for this reason it would be contrary to public policy to permit it now to rely upon the warranty. The law does not require that notice shall be given to third persons of contracts of insurance, nor does it provide a mode in which such notice may be given whereby all persons will be bound. If the want of notice of a contract become important in a contest between a party to it and a third person, who has sought to acquire by contract an interest or right antagonistic to the right the former contract gives, it is not because the former contract was illegal, but because some equitable consideration has arisen on account of which the person who has kept secret his right ought not to be permitted to assert it against one whom he has misled by his silence. If the mere want of notice of contracts would place them on the list of contracts condemned because contrary to public policy, then there would be a long list of condemned contracts, not heretofore even suspected of illegality. The carrier knew that no right could be acquired against the insurer through a contract with the insured other than the latter possessed and had power to convey, and if it desired to know the extent of that right it was its duty to inquire. Appellee makes this inquiry: "Could the insurance company and the owner of the cotton, without the knowledge or privity of the carrier, make a contract be

tween themselves by which the carrier would be deprived of its well-recognized legal rights? Is not such a restriction against public policy, and in restraint of trade?" Neither the knowledge of nor privity of the carrier to the insurance contract was necessary to its legality. The carrier had no legal right, recognized or unrecognized, to have the insurance company or the insured to make any contract of insurance whatever, much less to make one the insurance company was under no obligation to make, and had refused to make. The terms of the policy neither restrained appellee nor any other carrier from making lawful contracts for carriage at any place, nor from carrying them out anywhere; they simply denied to the insured the right to make a contract which would bind the insurer as the carrier desired it to be bound.

Two further inquiries and suggestions are made by appellee: "Then, knowing the law,-knowing that the carrier had the right to stipulate for the benefit of any insurance that may have been effected,-knowing that the shipper could not refuse to accept from the carrier a bill of lading with that provision, —will appellant be permitted to receive premiums, and at the same time insert a clause in its policy of insurance which would exonerate it from the payment of any loss?" "Appellant refused to pay the policy to Callender & Magnus because the same had been forfeited by their acceptance of the bill of lading. This excuse might have had some force if they had any option, but it was the law of Texas and the United States that the carrier had the right to issue such a bill of lading. Callender & Magnus had no right to refuse to receive it." Appellant, corporation though it is, is affected with knowledge of the law; but, admitting this, we think it cannot be charged with knowledge that the propositions here made are the law. It knew that the carrier might stipulate for the benefit of such insurance as the insured had the power and right to convey; but it did not know that the insured and carrier might make a contract for it without its consent, and contrary to the express stipulation of the policy. We think it did not know that the shipper had not the right to reject the bill of lading on which. appellee now bases its right, containing the clause in regard to insurance; for we understand it was the right of the shipper

« AnteriorContinuar »