Eyre v. Marine Insurance

The opinion of the court was delivered by Rogers, J. This was an action on a policy of insurance on the. brig Delight, for and during twelve calendar months, commencing on the 10th of November, 1837, at noon, and ending at the 10th -of November, 1838, at noon, with liberty of the globe; [253] and if at sea at the expiration of the said twelve months, the risk to continue at the same rate of premium until her arrival at her port of destination in the United States. The policy further states, “ beginning the adventure when the said vessel &c., at and from, &c., for twelve months, from November 10, 1837, at noon, as aforesaid, and so shall continue and endure, until the said vessel shall be safely arrived at November 10, 1838, at noon, with liberty of the globe, as aforesaid, and until she be moored twenty-four hours in good safety.” The insurance was effected under the following order. “ Insurance $8,500 on the brig Delight, Carmick master, valued at that sum, for and during the term of twelve calendar months, commencing this day at noon, with liberty of the globe; and if at sea at the expiration of said twelve months, the risk to continue at the the same rate of premium until her arrival at her port of destination in the United States; to return a proportional rate of premium for time not used, and no loss. Average loss to be adjusted each passage. Premium, 5 per cent, for twelve months. Eyre & Massey. Philadelphia November 10, 1837. N. B. If the vessel is sold previous to the expiration of said twelve months, a proportionate rate of premium to be returned.” The brig sailed from Philadelphia, in November, 1837, for South America, for the purpose of freighting, and took a cargo on board, entirely on freight, at Rio Janeiro, in South America; and sailed, on the 9th of October, 1838, for the island of Jersey in the British Channel, for orders. On the 10th November, 1838, she was at sea, on a voyage to Jersey, and when at sea, on the said voyage, viz. in December, 1838, encountered heavy gales, which did great damage, and compelled her to put into Falmouth, (England) for repairs. She was there repaired, and sailed on her voyage for Altona, where she arrived in April, 1839; and after discharging her cargo from Rio Janeiro, took on board another cargo, entirely on freight; and on the 29th of April, 1839, sailed from Altona for New Orleans, where she arrived. The construction put upon the contract by the underwriters, (of which they, in due time, notified the assured,) is, that although the vessel was at sea on the 10th of November, 1838, yet, as she was not destined to a port in the United States, the risk terminated on that day. The assured, on the contrary, insist that the underwriters were bound for her safe arrival at a port in the United States. The difference in the construction is a very marked and wide one. If we adopt the latter construction, the policy is an insurance for an unlimited time,-which may endure, at the will and.pleasure of the assured, during the life of the brig. As it terminates only on her arrival at a port in the United States, if the owners think proper to prevent her return, the risk must continue. That such an insurance may be made, unlimited in point of time, with liberty of the [254] globe, cannot be doubted, if such appears to be the intention of the parties. For this, the underwriters will increase the premium in proportion to the increase of the risk. But where such is the wish of the assured, it ought to be clearly expressed; at least the intention should not be left in doubt in the proposals, the words of which are not to be taken most favourably for themselves. It is, also, equally clear, that the parties may contract for a limited or specified time, with liberty of the globe, during that time. This appears to have been a trading or freighting voyage of the latter description. It was a trading voyage with liberty of the globe, during the time of one year, and no longer; if the contract had ended at' the first clause, the meaning of the parties would not have been even doubtful. Within that period, the owners have liberty to go to any part of the world; and it was supposed to be a time sufficiently prolonged, to answer all their purposes. But the contract is supposed to be enlarged by the subsequent part of the policy. But it seems very clear, that this was inserted, because it was supposed the vessel might be at sea at that time, on her voyage home, and therefore an insurance might be necessary until she was safely moored in- some port of the United States. No reason has been suggested, and none occurs to me, why any precise period was fixed, if the intention of the parties was, as the assured contends. It is not necessary to fix the rate of premium) nor the time when the pz’emium was to be paid; nor have apt words been used to expz’ess such intentiozi. Indeed, if such was the meaning of the assured, they have been most unfortunate in the language used in the contract. The plaintiffs’ construction strikes time out of the agz'eement; but this, as is apparent from the whole contract, is an essential featuz-e of it; and without which, the underwriters may have been unwillirzg to take the risk at all, or if taken, it would have enhaziced the premium. It is very certain, as a general rule, that the older and more exposed the ship, the greater the risk; for although it is the duty of-the owners to keep the vessel in good condition, yet the law implies zzo warranty of seaworthiness, except at the commencement of the voyage. For when a vessel which has received damage from a peril insured against, puts into port to repair, the captain or ageizt who superintends the z'epairs, is only bound to use due diligence. It is zzot necessary, at all events, that the vessel should be so z’epaired as to render her seaworthy. A vessel having liberty of the globe, znay, and often does, touch at a port, or she is driven into a port, whez'e the necessary repairs could not be made, and yet the underwriters would be liable. Peters v. The Phœnix Insurance Company, (3 Serg. & Rawle, 25.) Time was inserted in the agreement, to fix the period of the extraordinary risk izzcurred by the underwriters, in their insurance, with liberty to trade in any part or parts of, the world, to be prolonged only if the vessel was at sea, ozz her return to her port of destination in the Uzzited States, at [255] the time specified. It has been asked, when the additional premium is to be paid; to which it has been answered, when the risk terminates, viz. when the owners think proper to order the return of the brig. This necessary consequence, from the latter construction, will be very injurious to the interests, and it may be inconvenient to the underwriters, and is an argument adverse to the pretensions of the assured. There is another clause of the policy, which provides that the insurance shall continue and endure until the vessel shall be safely arrived at November 10, 1838, at noon, with liberty of the globe, and until she shall be moored twenty-four hours in good safety. It is contended, that if the vessel was at sea on the 10th November, 1838, destined to any port whatever, the underwriters insure her until her arrival at that port, and until she shall be moored twenty-four hours in good safety. But this must be taken ■ in connection with the preceding clause, and was intended as an extension of the insurance' from that time, provided she was at sea, within the meaning of the policy, prosecuting her voyage to her port of final destination. No resemblance is perceived to the cases of Wood v. The New England Insurance Company, (14 Mass. Rep. 31,) or Bowen v. The Hope Insurance Company, (20 Pick. 275,) where the meaning of the words, ‘at sea,’ in a policy of insurance, was discussed. It was there held, under the circumstances stated, that a ship was at sea, within the fair construction of the contract, although not literally so, at the time of the loss. In the one case she was in a British port, whither she had been carried against the will of the master ; and in the other, before the expiration of the year, she had been prevented from proceeding on her voyage from Bangor in Wales to Boston. In consequence of head winds she came to anchor, and was unable to get out of the straits, although she attempted to do so for several successive days, until after the expiration of the year. It was held, that she was at sea at the termination of the year, within the meaning of the policy. The question there decided, does not arise here. The term, at sea, may have different senses, according to the connection in'which it is used. And in this case, we must look to the subject-matter of the contract, and to the intention of the parties, which was to provide for the contingency of the vessel being at sea, on the expiration of the year, on her return voyage: it was prudent to provide for a loss which might accrue at any time between that period and her being safely moored in some port in the United States. This stipulation made the owners absolute masters of all the movements of the brig, for and during the term of one year; exacting from them, however, that if it was prolonged, it was only on the condition she was at sea, on her voyage to the port of her final destination. We determine this case in the words of the contract, without regard to conflicting assertions; for we know of no usage, which [256] can control its construction. It is very probable, if the question was referred to underwriters and insured, each would give the contract the construction most favourable to themselves. New trial awarded.