dissenting.
I do not concur in the construction given to the writing signed by the secretaries of the insurance companies at the suggestion of Capt. Field. I understand that paper as merely an assurance on the part of the companies that the transfer of the cargo of the Glaucus to the steamboats Merrimack and Osage Valley would not be regarded as forfeiting or affecting in any way the rights acquired under the policies which had been effected at their offices. The master of the Glaucus seems to have thought it his duty to forward the cargo, or the greater portion of it, by the first opportunity, without retaining it until his boat could be put in a condition for running. With this impression, he made arrangements with the Merrimack and Osage Valley; but being solicitous that the seaworthiness of these boats should be put beyond dispute, and that the insurers of freight and cargo should run no risks by the transfer, he procured the paper in question. That paper, as I understand it, was simply a declaration on the part of the companies of their confidence in the two boats selected by Captain Field, and of their assent to the transfer, so that it should not in any respect alter the rights of the insured under either policy. In other words, it was a recognition by the underwriters of a continuance of their responsibility for the cargo, notwithstanding its transfer to other boats than the one upon which it was originally insured, and an agreement that the persons interested in the freight bill of the Glaucus should forfeit no rights by reason of this transhipment. How can it be interpreted otherwise? What interest had Captain Field, or his co-partners or co-tenants of the steamboat Glaucus, in securing the freight bills of the Merrimack or Osage Valley? If such a thing was even desirable, how could the insurance upon the freight bill of the Glaucus be transferred to two other boats without any new premium ? The insurance was, that the Glaucus should earn freight, and not that the Merrimack or any other boat should earn freight. Captain Field, acting as agent for the other owners, and also for the freighters, desired to relieve himself from all responsibility in sending on his cargo by these two boats. He wished to select such boats as would be acceptable to the insurance companies, and therefore consulted them, and for this purpose, procured the paper in question. This is the only construction I am able to give to it; and with this construction, the rights of the parties are not altered.
This was an insurance of freight, and it is said that such insurances have no reference to the hull of the boat, and therefore, that an injury *59to the hull is not within the policy. It is true, that an insurance on freight has no reference to the hull, but its object is to protect the assured from being deprived, by any of the perils insured against, of the profit he would otherwise earn by the carriage of the goods. It is therefore necessary to a recovery, that some of the perils insured against should have prevented the earning of freight. But it is perfectly immaterial whether the peril has been to the hull or the cargo; if it is a peril insured against, it is sufficient. If the boat be totally lost or rightfully abandoned before the voyage is completed, she cannot earn full freight, and the underwriters are bound to indemnify the assured for the loss he has sustained. If no freight pro rata iteneris has been earned, or the expense of sending on the cargo byanother vessel is equal to or exceeds the whole .amount of freight agreed upon by the charter party, or if no other conveyance can be had at the port of necessity, and the owner refuses to receive the goods, there is an absolute total loss of the freight, and no abandonment is necessary, because there is nothing left to abandon. Am. Ins. Co. vs. Centre, 4 Wend., 54; 12 John. R., 107. The conduct of the assured, in this case, in retaining twenty tons of freight, which they subsequently carried on in the Glaucus, after she was refitted, may be sufficient to repel the idea of a total abandonment. But the underwriters were responsible for the expense of sending on the cargo by the Merrimack and Osage Valley. It was Captain Field’s duty to make this transhipment, under the circumstances of the case, and the underwriters are responsible for the expense attending it. I am therefore in favor of reversing the judgment.