Bearns v. Columbian Insurance

By the Court, Ingraham, J. The only questions in this case arise on the fact which is admitted that the vessel in [453] sured went to a port on the Min river, contrary to the provisions in both policies. These being time policies, the rules as to deviation do not apply to the same extent as in voyage policies. Even in a voyage policy, the underwriter is held liable although a deviation was intended, until she reaches the point of divergence and turns off from the voyage insured. (The Marine Ins. Co. v. Tucker, 3 Cranch, 357. Maryland Ins. Co. v. Wood, 7 id. 404. Hare v. Travis, 7 B. & C. 14. Kewley v. Ryan, 2 H. Bl. 343. Hobart v. Norton, 8 Pick. 161. Lawrence v. Ocean Ins. Co. 11 John. 241.) Under time policies, the mere intention to deviate has never been held sufficient to avoid the policy, although during the period of the' violation of the warranty, the vessel is not • covered by the policy. In The Union Ins. Co. v. Tysen, (3 Hill, 118,) Cowen, J. says: “ It is of the nature of the policy in question (a time policy) that it limits the vessel to no geographical track. It is impossible, therefore, to make out a defense on the ground of a deviation in the ordinary sense of the word. Hor can any particular trip or voyage be regarded as having the effect of a deviation, unless it be undertaken in fraud of the policy.” In the present case, the admission is that the injuries were sustained in entering the mouth of the Lian Ho river, ion the voyage to Hew Chang, and on leaving that port at the same place. During this period the vessel was covered by the policy ; up to this time the warranty had not been violated,. and the admission in the case is, that she suffered no further disaster after leaving the Lian Ho river.. There is also another rule applicable to such cases, which if the question was doubtful, would be in favor of the respondents. It is that clauses in a policy providing for exceptions, being the words of the insurer and not of the insured, are to receive a strict conrtruction- against those for whose benefit they are introduced, (Hoffman v. Ætna Ins. Co. 32 N. Y. Rep. 405 ;) and where a doubt exists' as to the effect of intended violation of the warranty, the insurer should be held [454] to a strict construction, so as not to avoid the policy until the same is actually violated. The case of Barlow v. Scott, (24 N. Y. Rep. 40,) does not in any way conflict with this rule. That was a case of a sale of lands where the deed was not such as was understood between the parties, and the vendor was held bound to fulfill his promise as understood between them. Upon these facts, I think there is nothing to warrant us in holding that the plaintiffs are not entitled to recover for damage done to the vessel while she was not in violation of any of the provisions of the policy. It was not in any way within the prohibition either to enter or to leave the port of blew Chang and the Lian Ho river. Whatever was intended after she left that port can in no way affect the plaintiffs’ right of recovery for any damage previously incurred. As to the other claim, for recovery on the policy insuring the freight, a different question arises. The insurance in that policy was for a specific sum at which the freight was valued, and no proof of value was necessary. The parties have agreed upon the sum which the plaintiff's should recover if they are entitled to any thing. (Delano v. Am. Ins. Co. 42 Bari. 142.) But this policy was intended to cover the freight during the whole period of insurance. It was not confined to thé period when the vessel sailed from the Lian Ho river, and the warranty was violated when the vessel entered Min river above Kimpai pass. It matters not what was determined upon afterwards, or what befel the vessel while that violation existed. The policy ceased to cover the freight from that time. The vessel having been sold while in the river and before the violation terminated, I see no ground on which the plaintiffs could recover for freight thereafter. Up to that period there had been no loss of freight. If there was any afterwards, it was at a time when the violation was in existence, when the policy ceased to be in force and its provisions did not apply. [455] [New York General Term, April 1, 1867. For this portion of the recovery, the judge erred in not instructing the jury that the plaintiffs could not recover, as requested by the defendant’s counsel. The case being heard upon exceptions before judgment, the judgment should be set aside and a new trial ordered, with costs to abide the event, unless the plaintiffs within ten days elect to remit so much of the recovery as is claimed under the policy on the freight; in which case judgment is ordered for the balance. Leonard, James C. Smith and Ingraham, Justices.]