Curia, per
Savage, Ch. J.The question first in or-der, is, had the plaintiff any insurable interest in the ves*329sel ? The insurance is upon the body, tackle, apparel and other furniture of the good ship called the William and Jane. Afterwards is the following clause : “ The above insurance is hereby declared to be on amount disbursed for repairs of the said vessel at Newport; to which place she returned in distress, and is against total loss only.”
The plaintiff expended in repairs at Newport, $8,500; (a) at whose request, or by what authority, the case does not state. The owner of the cargo, not being the owner of the vessel, is not bound to repair. It is the duty of the owner of the ship, or his agent, the master, to see the vessel repaired, when necessary. The plaintiff told the captain at Liverpool, that he acted as agent of Polke, the owner. Whether he acted as agent of the owner at Newport, does not appear. If he did, then the repairs at that place were properly recoverable of the London insurers. (12 East, 655.) Lord Ellenborough there says, “there may be cases in which, though a prior damage be followed by a total loss, the assured may nevertheless have rights or claims in respect of that prior loss, which may not be extinguished by the subsequent total loss. Actual disbursements for repairs, in fact made, in consequence of injuries, by perils of the seas, prior to the happening of the total loss, are of this description. The vessel was insured in London, by Polke, the owner. If he paid for the repairs at Newport, he had a claim for those repairs upon the London underwriters. They were covered by the London policy, whether the policy by the defendants be a double insurance or not. If the plaintiff was not the agent of the owner at Newport, what interest did he acquire by making the repairs voluntarily ? He took no bot-tomry nor other security upon the vessel, which the master was authorized to give ; nor did he receive any security from the owner. Did he then acquire any lien upon the vessel ? It is conceded the plaintiff had no interest in the vessel. What interest had he ? The cases cited shew that a lender on bottomry may insure his interest; but it must be by name, and not an insurance on the ship. A *330consignee of the cargo,’and an assignee, may insure. Any one) *n short, who has a lien on the ship or cargo, may insure the property on which his lien attaches. How could plain tiff have proceeded to enforce his lien, if he had one upon the ship ? He had indeed paid money in repairing the ship, which he was not bound to pay; and I am now supposing the money paid voluntarily. I know of no proceeding which he could have had, in rem, to have sold the vessel to reimburse himself. The money was paid for the benefit of the owner ; but he might have preferred to have the captain raise the funds with those means which were authorized by law. The captain might have borrowed money. He might, under certain circumstances, have sold or hypothecated the cargo. In the case of Dickey v. The N. Y. Ins. Co. (4 Cowen, 222; 5 Cowen, 66, S. P.,) the captain did sell part of the cargo, and hypoth-ecate part of it; and though it was strongly urged, that the ship was bound to the cargo, as the moneys thus raised were expended in repairs; yet this court said, there was no lien on the vessel, as it was not pledged for the payment. The present case is certainly not stronger: The captain, I will suppose, might have sold or hypothe-cated the plaintiff’s flax seed, for the $8,500, expended in the repairs. According to Dickey's case, the lender on respondentia would have had no lien on the vessel. Here the owner of the cargo, being present, prefers to raise the money rather than have his property sold or hypothecated for that purpose. Can he be in a better situation than one who should advance his money ? Whatever remedy the plaintiff in this case may have, I am not authorized to say that he had a lien on the vessel. No analagous case has been cited. I am well warranted, therefore, in saying none can be found. Nor do the writers on insurance enumerate any such demand as an insurable interest. (Phil. on Ins. 57. 1 Marsh, on Ins. 104. Park on Ins. 374.)
I am bound, therefore, to conclude, that the plaintiff had no insurable interest in the vessel. The repairs had become part of the vessel; and having no lien for the money expended, he had no insurable interest in that,
*331But suppose it were otherwise, and his interest were admitted : it is contended the defendants are not liable ; the insurance being against total loss only.
In the case of Murray v. Hatch, (6 Mass. Rep. 465,) the policy was in the usual form, except that at the bottom was a memorandum in these words : This risk is against a total loss only. The vessel was cast ashore; and though she might have been got off, and repaired for less than half her value, the master having no funds, sold her. It was held that the insurer was not liable. Seioall, Justice, who delivered the opinion of the court, considered this memorandum a restriction to some purpose. It was considered as having the same effect as exceptions and warranties against particular averages and partial losses, in what is called the common memorandum. The general principle in cases on such exceptions and warranties is, that the insurer is liable as for a total loss, when the subject matter is destroyed, or when the voyage is defeated and lost. In Nelson v. The Col. Ins. Co. (3 Caines’ Rep. 108, 110,) the insurance was on corn, with the usual memorandum. The court say, so long as the corn physically existed, there could not be a total loss. (See also 14 John. 138.)
Whether there was, in this case, a technical total loss ; whether an abandonment was necessary ; or if so, whether it was made in due season, are questions not neccessary to be discussed, upon the view which I have taken.
The only remaining question is, whether the plaintiff is entitled to recover as upon a wager policy ? In these policies, the person insured is not required to have any interest in the thing insured. Wagering policies are mere games of hazard, like the casting of a die. (Doug. 470.) It is to be regretted, that wagers ever were allowed to be the subject of an action. Wagering policies were, however, lawful in England, before they were prohibited by statute. They are unlawful in Massachusetts. But they have been recognized by this court.
In the case of Juhel v. Church, (2 John. Cas. 333,) in the body of the policy, ‡ 12,000 were insured on goods for *332the voyage ; but by a memorandum in writing, it was declared to be on profits. No proof of interest was to be required, and the goods were warranted free from average and without benefit of salvage. The ship returned to New-York in ballast, finding no goods on the Spanish main, whither, and back, she was insured. Kent, Justice, says, “ I consider this as a wager policy. It was betting on the return of the ship.” In that case, it was made a point, whether a wager policy was void. Kent, Justice, says, “ But supposing the policy to be good, (and I wish not to be understood as intimating any opinion to the contrary,) I am equally of opinion that the plaintiffs are not entitled to recover.” In Clendining v. Church, (3 Caines’ Rep. 141,) the court considered the policy in the light of a wager policy.
The averment of interest is not necessary, in a wager policy, nor in a policy upon interest; (2 East, 392;) and may therefore be considered surplusage.
It is then settled, that a wager policy is a bet upon the arrival of the ship. The perils which happened during the voyage are immaterial. Her arrival determines the bet. Kent, Ch. Justice, in giving the opinion of the court, in Clendining v. Church, says, “ In wager policies, the loss should be absolutely and finally total; for otherwise, a temporary embargo of only one day, without any other interruption of the voyage, would be a total loss, although the vessel should have arrived in safety.”
In whatever light, therefore, this case is considered, it seems to me, the plaintiff cannot recover.
I am of opinion that judgment be given for the defendants.
Judgment for the defendants*
The amount stated ante, 320, includes some items of disbursement at Newport beside repairs.