Fernandez v. Great Western Insurance

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 573 Assuming that the policies on the vessel insured continued in force till the sixth day of April after their respective dates, her trial trip to Elizabethport on that day avoided them and discharged the defendants from liability for any subsequent loss. The vessel was insured "at and from New York to Havana." This insurance imposed a liability on the defendants from the time it was effected, and was to continue till the arrival of the vessel at Havana, allowing her to remain a reasonable time at New York, preparatory to sailing for her place of destination. A continuous and indivisible risk was contemplated, and for that, one single premium was fixed and agreed to be paid. There was no division or apportionment of that premium applicable to separate and distinct risks, one having reference to the vessel during her stay at New York, and the other to perils after her departure. The provision in the policies that the adventure upon her was to begin "at and from" New York, and so continue and endure until her safe arrival at Havana, and being moored there for twenty-four hours in good safety, clearly defines when the liability was to commence, and shows that it should be continuous from that time until the period fixed for its termination. A departure from New York, except on the voyage to Havana, is inconsistent with that provision and the continuity of risk contemplated by it, and the subsequent clause providing that it should and might be lawful for the said vessel, on her voyage, to proceed and sail to, touch and stay at any port or places, if thereunto obliged by stress of weather *Page 576 or other unavoidable accidents, without prejudice to the insurance, declares, by necessary implication, that a deviation for any other cause would be unauthorized, and, consequently, could not be made without impairing the claims of the assured. Elizabethport was not a part of or within the port or harbor of New York, but is in the State of New Jersey, distant sixteen to twenty miles from New York, and not in the ordinary course of a voyage to Havana, and no necessity is shown for proceeding to that place, either for making a trial trip or taking in coal. That voyage must, in the absence of any proof to warrant it, be considered as voluntarily made, and in violation of the terms and conditions upon which the liability of the defendants was assumed. It was entirely distinct from and unconnected with the voyage insured. Although the vessel returned to New York and afterward sailed for Havana, that was not the voyage in the contemplation of the parties or intended to be insured, when the insurance was effected. They acted and made their contract, having reference to the facts and circumstances existing at that time. The vessel was then nearly ready for sea. It was expected that she would sail in a few days, and that on leaving New York she would proceed direct on her voyage to Havana. There is not the least foundation or any plausible color to justify the conclusion or an inference that either party, when referring to the adventure "at and from New York," described in the policies, had reference to or could have meant one that should begin after the vessel had sailed therefrom and again returned thereto, subsequent to a voyage to another place or port; or, in other words, that it should begin after an independent and intermediate voyage had been made and entirely completed. It is also clear that when the vessel was at Elizabethport she was neither at New York nor on a voyage therefrom to Havana, and consequently the policies had at that time ceased to protect her, and nothing that subsequently occurred could restore the obligation of the underwriters and again renew their liability, without their consent. It follows, from the preceding considerations, that there was *Page 577 such a deviation from the voyage insured as to discharge the defendants from their liability under the policies. Their motions for the dismissal of the complaints should therefore have been granted and the judgments were erroneously ordered against them. It is, however, proper to refer to the opinion of the majority of the court below on ordering judgment for the plaintiffs. MONELL, J., by whom it was given, says: "Although the underwriters are discharged if the loss occurs upon a policy `at and from' a port of departure while the vessel is away from such port for any unexcused purpose," yet they will not be absolved if the vessel returns in safety and is afterward lost upon her voyage; and one reason is that the policy covers two risks, one at the port of departure and the other from such port upon the voyage to the port of destination. These risks are wholly independent and distinct from each other. The former insures against the enumerated perils while the vessel lies in port, and if she is taken from such port for any unjustifiable purpose and is lost while absent from such port the obligation of the insurers is at an end. The latter risk is limited to the voyage and takes effect upon the departure of the vessel. If at that time no loss has occurred, the contract continues binding." That construction cannot be sustained. No case or authority is cited to support it, and the court concedes that it is opposed to and adverse to the decision in Brown v. Tayleur (4 Add. El., 241; 31 Eng. C.L.R., 60.) In that case the insurance was on a ship "at and from her port of lading in North America to Liverpool." After she had taken a part of her cargo on board at one port, she sailed to another in the same bay of the sea described by different witnesses as five and seven miles distant, but not in the line of voyage to Liverpool to complete her loading. After remaining there three weeks and taking in additional cargo she returned to the port which she had left to receive provisions, water and wood and to be got ready for sea. Nine *Page 578 days afterward she sailed therefrom for Liverpool and was lost on the voyage. It was held (Lord DENHAM, C.J. and PATTERSON, WILLIAMS and COLERIDGE, JJ., seriatim, giving opinions) that the port where she commenced loading was her port of lading, within the meaning of the policy, and that her departure therefrom to another port, as above stated, was a deviation and avoided the policy. The same principle was decided by the Supreme Court of this State, in Vos v. Robinson (9 Johns. R., 192). In that case the voyage insured was "at and from Port Plata, St. Domingo, to New York," and the vessel covered by the policy was shipwrecked and lost in going from Port Plata to Susua. She had a permit from the government at Port Plata to go to Susua for the loading of mahogany, and would have been obliged to return to Port Plata for her clearance. Susua was included within the revenue district of Port Plata, and about four leagues east therefrom. It was held that Port Plata proper was the port of departure, and that there was a deviation from the voyage insured. It will be seen that the vessel had not cleared for New York, and consequently was not in the course of her voyage there at the time of her loss, but that she had to return to Port Plata, her port of departure. The result of the decision, therefore, is, that the policy ceased to be binding and effectual after the vessel left that port, although for a temporary object and purpose only, and with the intention, on the part of her master, to return thereto; and it affirms the proposition above stated by me, that the vessel insured, under the policies in question, was not protected or covered by them when she was at Elizabethport. (See, also, 1 Phil. Ins., § 1000; 2 Parsons Ins., 7, 46-52.) Without further citation of authorities, a perfect answer to the position that the policy covered two risks, independent and distinct from each other, exists in the fact that there is but one single and entire premium. What portion of this was applicable to the risk on the vessel while in port, and what portion on that during her voyage? It is impossible to *Page 579 say. It may also be asked if there were two risks, how much was the amount insured on each risk? Certainly not the whole sum of $7,500 specified in the policies, and there is no means of determining the proportion; and if for any cause the plaintiffs should have become entitled to a return of a portion of the premium on either risk, how much would have been returnable? I forbear to pursue these inquiries or the further consideration of the question. If it be conceded that there were separate, distinct and independent risks, the fact does not benefit the plaintiffs. It would then follow as a practical result that there are, in effect, two policies, one on the vessel while in port "at New York," and the other on her voyage "from New York." The latter, under the facts disclosed in the case, never attached. The voyage to Elizabethport clearly is a bar fatal to a recovery. That was a new, distinct, different and intermediate voyage, not in contemplation of the parties at the time their contract was made, and it operated as an abandonment of the voyage insured. (See 3 Kent, 5th ed., 317; Parsons' Mercantile Law, p. 457.) Having reached the conclusion that the judgments appealed from are erroneous, on a ground common to both cases, I do not deem it necessary to consider the effect of the bill of sale from the plaintiffs to Kain, nor any of the other questions raised on the trial. The judgments must be reversed and a new trial ordered on the ground stated, costs to abide the event.