Snow v. . Columbian Insurance Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 626 Warranties must be strictly and perfectly complied with. (Phil. Ins., § 762.) It is not enough that they be substantially complied with. (Id.) The compliance must be full and complete, through not necessarily literal. (Id., § 762, 766.) Mr. Justice KENT said, in Kemble v. Rhinelander (3 John. Cas., 130), that "a warranty must be literally complied with, but this strict compliance ought to operate in favor of as well as against the assured whenever he can bring himself within the terms of it." In the case of a warranty that "the ship should have twenty guns," and she had, in fact, twenty-two guns, but only twenty-five men, a number short of the necessary complement for twenty guns, there being no ground to impute fraud, Lord MANSFIELD held this to be a compliance with the warranty, and that the assured was entitled to recover. (Hyde v. Bruce, Marsh, 347; 3 Dougl., 213, cited; 1 Phil. Ins., § 767.) That the assured have literally complied with and kept their warranty in this case can scarcely be doubted. A vessel cannot be said to have used a particular port when it is conceded that she has not been within fifty miles of it. "To use," means to employ, to hold, to occupy, to enjoy, or take the benefit of, as a chair, a book, or possess a harbor. In connection with the word "port," it means to go into a harbor or haven for shelter, for commerce or for pleasure, and to derive a benefit or an advantage from its protection. Going near a harbor or port, sailing past or going in the direction of it, is not a use of the port. Certain ports, it is declared in the warranty, shall not be used, as those on the continent of Europe north of Hamburg, nor ports in the British North American provinces, except at certain dates, nor the West India Islands at certain dates, nor certain ports of Texas, etc. That this exclusion refers to places specifically, and not to the regions adjacent, is evident, from the fact that, as to Navarino in the Mediterranean, the exclusion *Page 628 is directed in form to the region as distinguished from the port. It is stipulated in that case, without reference to ports or places, that the vessel shall not "go east of Navarino in the Mediterranean during the period insured." If the vessel shall go east of that port, whether she enters any or all the ports thereabouts, or returns having entered no port, the warranty is broken. As to Texas, again, the warranty is peculiar, "not to use ports and places in Texas except Galveston." The region is not excluded. One port is not excluded. All other ports are excluded, and the entry into any one of them, except Galveston, would constitute a breach of the warranty. The distinction between traversing a region and entering into a port or harbor in the region, was evidently in the view of the contracting parties. This is an answer to the argument "that it was the clear intent of the underwriter, in this restriction, to guard against the danger which arises from navigating near the coast of the British provinces at certain seasons of the year." The language is singularly unfortunate to embrace such a proposition. It imports that, in certain latitudes, the regions were, themselves, deemed to be dangerous, and that the vessel must not enter those regions; that in other latitudes the underwriters had no fears of the region, provided the dangers of using certain harbors or ports were avoided. To meet the case, certain ports in the north of Europe and on the British North American coasts are excluded, the region being open for use, while in the Mediterranean and in the Gulf certain regions must not be entered by the vessel. The defendant insists again that an intention to enter the prohibited port creates a breach of the warranty. I cannot concur in this argument. No authority is cited to sustain it, and it is against all principle. In the matter of performing contracts, except on some nice points of deviation, the intention is not usually important. It is the act or fact by which the result is determined. A man may determine to violate his contract or to defraud his neighbor a thousand times, and in a thousand ways, and yet not place himself within the *Page 629 reach of the law. He may perform his contract when he intends to violate it. If his acts are right, a secret bad intent cannot injure him; nor, if his acts are wrong, can a good intent save him. If the assured intended to go to some other port in Texas than Galveston, but in fact went directly to Galveston, and the vessel was lost while in that port, there would be no breach of her warranty. But if her master voluntarily carried his vessel east of Navarino in the Mediterranean, although he did not intend to go east of that port, and did not know that he had done so, his warranty would be broken. In such case the fact and not the intent to keep the warranty or to violate it gives the legal character to the transaction. (2 Pars. Mar. Law, chap. 3, § 1.) When the question is one of deviation, the point of when and where the departure commences may be important. The point here is upon the warranty not to enter a certain port, and is not a question of deviation. The case of Stevens v. The Com. M. Ins. Co. (26 N.Y., 397) is cited by the respondent. In that case the vessel was "warranted not to use ports or places in Texas, except Galveston, nor in the Gulf of Mexico." Permission was afterward given "to use the port of Laguna for her voyage, without prejudice to this insurance." The vessel arrived at Laguna, but did not enter that port. It not being a port of entry, the custom-house officers would not permit the entry. She then sailed for Sisal, for the purpose of paying the duties, and intending to return to Laguna for her cargo. At Sisal she went ashore and was lost. The Court of Appeals held that the entry at Sisal was not justified, and that the warranty was broken. I should say that the real question in that case was whether the permission to enter the port of Laguna carried with it the power to take all measures necessary to effect that purpose, or whether the permission was to be literally construed. At any rate, the case bears no analogy to the one we are considering. In my opinion there was no breach of warranty by the assured. The order of the General Term should be reversed, *Page 630 and the plaintiffs should have judgment on the verdict, with costs.