Per curiam, delivered by
Thompson, J.I am inclined to think the assured is entitled to recover the gross amount of freight. Although indemnity is the leading object of insurance, it is not always the criterion by which to ascertain the amount of the loss. In an open policy on goods, the rule by which to estimate a total loss, is the invoice price, and all duties and expenses, till they are put on board, together with the premium of insurance. After a long voyage, and when the goods had almost reached a profitable market, it might with plausibility be urged, that the above rule would not afford an indemnity ; but to depart from it, however reasonable and just it might appear in some cases, would lead to endless uncertainty and litigation. So, likewise, in an open policy on a vessel, her value at the time she sails, with the expense of her outfit and premium, is the rule by which to estimate a total loss. It has frequently, with great propriety been said, that in matters of commerce the plainest and simplest rules are always best.' They are easily learned, and easily obtained, and do not depend on any subtilties and niceties. No general rule giving a specific proportion of the freight, could with justice be adopted. It would operate unequally by reason of the great diversity in the distance and expense of voyages ; and to adopt the net amount of freight as the rule, would lead to much litigation and uncertainty respecting the deductions to be made. But to take the gross amount of freight, as the rule of damages, would be equal, simple and easily ascertained. Mr. Justice Lawrence, in the case of Shawe v. Felton, says, the period to look to in order to ascertain the value of the subject matter of insurance, is when the vessel sails, and not the state of the thing at the time the total loss happens. The case of Thompson v. Taylor, may be considered, in some manner as illustrative of the practice in England on this subject. Some doubts have been raised, whether that was an open, or a valued policy. I think however that it is pretty evident it was an open policy. Park* in his report of the case expressly so states it, and although it might be inferred from the statement of the case by Durnford and East, that it was a valued policy, *48ye(; j(. 1S allee.ed m the arguments of counsel to have been an, open policy, and that circumstance is made the basis ot some of their reasoning. The question there was, whether the -assured right to freight had commenced, the vessel being under a charter party to sail from, London to Teneriffe and there take in her cargo, as she had been captured before her arrival at Teneriffe, before taking any of her cargo on board. The court determined that there was an inchoate right to freight the instant the vessel sailed from London, and the assured recovered the gross amount of the freight stipulated in the charter party. In that case we hear nothing respecting deductions, although the vessel had performed, only a very small part of her voyage. Had the practice in England warranted such a claim, it would doubtless have been made. Upon the whole, I think, to take the gross amount of freight as the measure of damages is the least exceptionable rule, and most in unison with the acknowledged principles adopted in analogous cases, and not altogether without authority to support it. The opinion of the court therefore is, that the plaintiff have judgment upon the verdict of the jury, according to the stipulation in the casé.
Page 36, a. He was counsel in the cause.