By the Court,
Clerks, J.The defendants insured to the plaintiff $6000 on one fifth of the freight of the ship Mastiff, lost or not lost, for one year, from September 10, 1859, at noon, the whole freight valued at $30,000. According to the policy, if the insured should have made any other insurance upon the freight prior in date, the company should be answerable only for so much as the amount of such prior insurance may be deficient towards fully covering the property at risk, whether for the whole voyage, or from one port of lading or discharge to another. Ho question, however, arises under this provision. The freight was valued, as we have said, by the parties at $30,000, and the defendants insured one fifth of this valuation at 7|- per cent. According to the advices which had been last received by the owner, previous to the insurance, the ship was on the 10th September, 1859, at San Francisco ready for sea, to sail that day or the nest morning for Hong Kong, and had then a small amount of freight and a considerable number of passengers. These facts had been communicated to the company before the insurance was effected.
The vessel sailed from San Francisco on the 10th of September, 1859, with freight only to the amount of $1876.75, and with passengers who occupied the whole between decks. When five days out, she took fire, and was totally destroyed.
We have seen that the premium charged was 7-|- per cent on the valuation; and it was admitted, at the trial, that the premium usually charged in 1859 on- a single voyage from San Francisco to Hong Kong, in a ship of the size and kind of the Mastiff, was from one and a half to two per cent.
*161The policy, then, was on time, and had no reference, it seems, to any particular voyage or means of earning freight. Under these circumstances, are the defendants concluded by the valuation stated by the policy, or can the plaintiff recover only the proportion of the valuation in the policy, to wit, $6000, which that proportion of the freighting capacity of the vessel actually devoted to the carriage of cargo, or not occupied in the carriage of passengers, bore to its full freighting capacity P
The counsel for the defendants has referred with considerable confidence to Forbes v. Aspinwall, (13 East, 323,) to show that they are not concluded by the valuation stated in the policy. But in that case there was nothing to show that the underwriters intended to insure any thing but the freight on the cargo actually received. The language of Lord Ellen-borough is, “ In this case, therefore, as there was no contract, under which the shipowner could claim freight, but for goods actually shipped on the homeward voyage, the assured could have made no claim, had this been an open policy, but to the extent of the actual freight on the 55 bales of cotton which were shipped,” &c. And he asks whether it makes any essential difference that the case before him was a case of a valued policy. He, undoubtedly, considered whether, in the case of an open or a valued policy, the insured was entitled only to claim for freight on goods actually shipped; but his opinion contains nothing in contravention of the idea that, if the underwriters intended, in a case like the present, not to apply the valuation to the full cargo and the whole carrying capacity of the vessel, the shipowner could recover the whole amount of the valuation. The rule in such cases is now well established that the valuation in the policy is conclusive.
The assured need not prove the value; the valuation is a mere substitute, as between the parties, for the computation of the value in an open policy, provided it is neither intended as a cover for a wager by both parties, nor fraudulently made by the assured.
*162[New York General Term, May 2, 1864.The case, then, is the same as though the subject of insurance was actually proved to have been worth the sum at which it was valued. Hot only does the nature of the policy itself, in this case, but the rate of premium and the facts communicated to the underwriters, indicate this intent; and, in the absence of fraud or mistake, the valuation cannot be opened. The evidence of the communication of those facts was not objected to at the trial; and if it was, tho objection that the evidence tended to vary a written instrument could not be sustained.
The defendants cannot claim an allowance in the nature of salvage for the prepaid passage money. It is recoverable by the passengers from the owners in cases where the voyage has not been performed. (Bonsteel v. Vanderbilt, 21 Barb. 27.)
The judgment should be affirmed, with costs.
Leonard, Olcrlee and George G. Barnard, Justices.]