Lapham v. Atlas Insurance

Per Curiam. The defendants contend that the voyage was terminated at Savannah ; and the first question to be consid ered is, whether that pore was “ a port of discharge in the United States,” according to the true construction of the policy. And in determining the question we are aided by decisions of this Court and of other couits, cited by the counsel for the plaintiffs. The authority upon which they principally rely, is the case of Coolidge v. Gray, 8 Mass. R. 527. There, goods on board a vessel were insured from Boston to her port of discharge in Europe. The policy stated, that the vessel, though cleared for Tonningen, was intended for some port in Holland, or wherever else the master should deem proper, ii case he could not get into Holland. The master entered the river Maese, but being informed that his vessel and cargo, if discovered by the French guards, would be seized and confiscated, he left the river and went to Gottenburg, where he remained a few days, in order to ascertain at what port he might sell his cargo, and he then proceeded for a market in [7] the Baltic, and was captured. It was made a question, whether Gottenburg was not the port of discharge ; but it was held, that the master had a right to obtain advice, at his port of arrival, respecting the markets, and having informed himself, to proceed elsewhere, and that the underwriters were answerable for the loss. The Court there say, that if the master had broken bulk or begun to unlade at Gottenburg, that must have been deemed the port of discharge. It is difficult to distinguish between the case referred to and the one now before us. That case has never been questioned, we believe, but it has been frequently discussed, and its principles adopted in other States. King v. Middletown Ins. Co. 1 Connect. R. 184 ; King v. Hartford Ins. Co. 1 Connect. R. 333 ; Sage v. Middletown Ins. Co. 1 Connect. R. 239. We think, then, upon the true construction of the policy now in question, that the voyage did not terminate at Savannah, and that the master had a right to proceed to another port, and that the loss is within the policy. It appears that while the vessel was at Savannah, the master took on board forty bales of cotton on freight; and this, it is urged, released the defendants from their responsibility. But it has been settled by this Court, that the mere fact of putting goods on board a vessel at a port where she has a right to touch, if it neither increase the risk nor occasion delay, does not discharge the underwriters. Thorndike v. Bordman, 4 Pick. 471 ; Chase v. Eagle Ins. Co. 5 Pick. 51. The questions whether the risk was increased, and whether any delay was occasioned by procuring and taking on board the cotton, were rightly left to the jury, and they have found for the plaintiffs. The circumstance of carrying the cotton on deck, if it did not increase the risk, would not of itself avoid the policy. Many witnesses were examined in regard to the effect of a deck load, upon the safety of the vessel, and evidence was introduced that it was customary for this species of vessels, in various kinds of navigation and at different seasons of the year, to carry goods on deck. This evidence was objected to by the defendants. The usage was not admitted in evidence for the purpose of giving a construction to the contract. In [8] that view it would have Leen competent, if the contract had been made in reference to it. But it was introduced merely as to the question, whether in point of fact the risk was or was not increased by taking the cotton on deck. It does not seem to have been very material, but we cannot perceive that it was altogether irrelevant. We are of opinion that it was not in competent evidence. The defendants further objected, that the jury were m structed 'to consider, whether on the whole the risk was increased by taking the deck load, upon a balance of advantages and disadvantages. We think the language of the instruction was incapable of being misunderstood by the jury, and that" it was substantially right. The counsel for the defendants have animadverted upon the use of the word increased, and have argued that if the risk is changed, the underwriters are discharged. This view of the subject, however, is too limited, for any alteration in the cargo may be said to change the risk in some degree. But the real question was, whether the vessel was practically exposed to greater danger than if the cotton had not been taken on deck. Judgment on the verdict.