Meigs v. Mutual Marine Insurance

Fletcher, J. These were actions of assumpsit upon policies of insurance upon the ship Joseph Meigs and catchings on board the same, commencing the risk on the 14th day of October, 1845, at noon, to continue on and during her voyage, and back to Mattapoisett, “ on the vessel, until she be arrived and moored at anchor twenty-four hours in safety, and on the property until landed.” By agreement of the parties, these cases were submitted to the full court on two questions, namely, whether the ship had “ arrived ” on the testimony of Captain Nye, and whether the usage testified to by Vassault, and others who swear to the same facts, if admissible in evidence, shows that the risk was ended. [Here the judge referred to and stated the testimony of captain Nye.] From this testimony, it appears, that the witness took possession of the ship, as a pilot, on the morning of Saturday, June 20th, 1846. He expressly testifies, that his object and purpose was to bring the ship up to Long Wharf, at Mattapoisett, the same place at which he took charge of her on her going to sea. He brought the ship to anchor off Mattapoisett, about one third or one fourth of a mile within the harbor, and anchored in eighteen feet of water, at the usual place of anchoring ships of that class, for lightening to go to the — 451 — wharf; and he expressly testifies, that he brought her to anchor there, because there was not water enough for her to go to the wharf. The ship drew sixteen and a half feet. At the top of the tide, he could carry twelve and a half feet to the wharf. The ship, therefore, could not reach the wharf till she was lightened, and more or less of the cargo taken out. The ship remained where she first anchored on Saturday till the next Thursday. On Monday, they sent down the royal yards and masts, and the top-gallant masts and yards, and unbent all the sails, except the three topsails, spanker and jib ; and it is expressly testified, that these were left to work the ship to the wharf with, and were all sufficient for that purpose. On Tuesday, a lighter came off, and, during that day and Wednesday and the morning of Thursday, was occupied in taking out the cargo. On Thursday, the ship was got under weigh and moored two or three hundred yards nearer the wharf, and not being able to move farther, on account of the wind, she was brought to anchor again'. On Friday, some more of the cargo was taken out, and the ship was moved farther towards the wharf; but got only two or three hundred yards, on account of the wind. On Saturday more of the cargo was taken out, and efforts were made to get under weigh again, but failed in consequence of wind and weather, The witness, the pilot, between one and two o’clock, left the ship, intending to return in the evening at high water, if there was a prospect of getting the ship to the wharf. The witness told the third officer, that if there was any chance at high water, he wanted to get the ship to the wharf, and wanted him to be there. The wind was unfavorable at high water, blowing right from the wharf, and when the witness found there was no chance of getting the ship to the wharf, he returned to his house again, and the next he knew of the ship she was on fire. She burned to the water’s edge and then sunk. The case being submitted on the testimony of captain Nye, his statements must be taken to be true; as they furnish the only facts upon which the question submitted, whether or not — 452 — the ship had arrived, can be determined. He states, expressly, that the purpose and intention were to bring the vessel to Long Wharf; that her voyage was to terminate at that spot, that she was prevented from going directly to that place by the insufficient depth of water; that she came to anchor at first upon making the harbor, not as having ended her voyage, and for the purpose of unlading her cargo, but merely to lighten the ship to enable her to reach her place of destination; that the ship was making, her way to the wharf up to the time when she was destroyed ; and that at the time she was destroyed, she had not reached her place of destination at the wharf, but was endeavoring to reach it. The voyage was a whaling voyage and back to Mattapoisett, and the risk of the defendants was to continue during the voyage aforesaid, on the vessel until she be arrived and moored at anchor twenty-four hours in safety. It rvas maintained by the counsel for the defendants, in argument, that the ship had reached her destined place of unlading; and several things, such as that the captain and most of the men had left her, and that she Avas dismantled, were referred to in support of this vierv. This question might very fairly have been left to the jury, as a matter of fact upon the evidence in the case, but certainly is not open to discussion in the hearing before the court. The case is submitted to the court, by agreement of the parties, upon the facts stated by captain Nye; and one of the facts most expressly and distinctly stated by him is, that the destination of the ship was to Long Wharf; that she came to anchor not to unlade but to lighten, in order to enable her to get to her place of destination ; and that she was making her Avay towards the point to Avhich she was destined, and before reaching it was destroyed. The simple question, therefore, is, whether the ship, being destined to the wharf as the place of unlading, but being obliged to anchor after coming within the harbor, for the purpose of lightening, to enable her to get up to the wharf, — there not being sufficient Avater for her to reach the Avharf — 453 — with the cargo all in, — is to be considered as having arrived within the meaning of the policy, upon reaching the place of anchoring for the purpose of lightening. The vessel is insured and protected by the policy during the voyage, and till she has arrived. But when is the voyage ended, and when has she arrived? It is not usual to specify any particular wharf or spot in the destined port, at which the voyage shall be ended. It would be impracticable to do so, as it could not be foreseen at what precise place it would be desirable to unlade; nor would it be known at what particular place a suitable berth for the ship could be obtained. It is usual, therefore, in policies, to designate generally the port at which the voyage is to end. But the general term port or harbor embraces a large extent, varying, of course, in different harbors, many miles of navigation, and generally the most difficult and dangerous navigation- It surely cannot be the intention of parties, that a ship shall not be insured by the policy, while she is passing through the perils of harbor navigation, occupying of course various periods of time, as winds and tides and other things may be favorable or unfavorable. Reaching the harbor, therefore, cannot be arriving within the meaning of the policy; and if it do not mean that, it must mean that particular place or point in the harbor, which is the ultimate destination of the ship. Until that point is reached, the voyage is not ended, and the ship has not arrived; though she may be obstructed and delayed in her progress through the harbor, and for want of water, or by adverse winds or other causes, be obliged to come to anchor and remain at anchor twenty-four hours, and to take out some portion of her cargo. While she is properly pursuing her course to the place of her ultimate destination, and of complete and final unlading, and until she reaches that place, and has been moored there in safety twenty-foui hours, she is insured and protected by the policy. This is very clearly the meaning and effect of the contract of the parties as contained in the policy. This view of the case is very fully supported by authorities. In Taber v. Nye, — 454 — 12 Pick. 105, this court say: “ It is perfectly clear, that by the returning to New Bedford, the parties meant to her destined place of mooring there, and not merely to the waters or territory within the limits of the town or port of New Bedford.” So in Samuel v. Royal Exchange Assurance Company, 8 B. & 0. 119, in the king’s bench. This was an insurance upon the ship Salmon River, until she shall have arrived at London, and hath there moored at anchor twenty-four hours in good safety.. The master was directed to take the ship into the king’s dock at Deptford, and deliver her cargo there. On the 18th of February, the vessel arrived at Dept-ford, and was moored at anchor alongside a king’s ship near the dock gates. On account of the ice in the river, she could not get into the dock, and remained at anchor from the 18th to the 27th of February, when the ice gave way and she was cast off from her moorings, and warped towards the dock. In consequence of a rope breaking she went ashore near the dock gates and was totally lost. It appeared, also, that many vessels laden with timber (as this vessel was) discharged their cargoes at the place where the Salmon River was moored. It was held, however, that the plaintiff was entitled to recover; that the place where the vessel was moored not being the place of her ultimate destination, the policy did not expire when she had been there in safety twenty-four hours; and as the vessel remained at her mooring on account of the ice, the underwriters were not discharged by the delay. The vessel here was insured to the port of London generally, and she arrived within that port, and was moored at anchor twenty-four hours in safety, and at a place, too, at which many vessels laden with timber, as she was, discharged their cargoes. Yet it was held, that the underwriters were liable, till she reached the particular place within the port to which she was destined. This cáse is strikingly analogous in its circumstances to the case under consideration, and is a direct and very strong authority iu favor of the assured. The general doctrine of the case is, that when a vessel is destined to any particular dock or place — 455 — within the port of arrival, the underwriters are liable till she can by reasonable diligence reach that place in safety. The case of King. v. The Middletown Insurance Company, 1 Conn. 184, and that of Dickey v. United Insurance Company, 11 Johns. 358, both support the views taken by the court in the case at bar, but it is not necessary to consider them in detail. The case of Angerstein v. Bell, Park on Insurance, 35, referred to by the counsel for the defendants, does not conflict at all with the cases which support the claim of the assured. The usage referred to in the report can have no influence in the decision of this case. In the first place, the usage refers only and exclusively to the collection of the premium notes, and has no reference whatever to the payment of losses. Paying a premium note by the assured is a very different thing from the payment of losses by the assurers. . Besides, as the policy was on the vessel and cargo, and it was admitted that the policy continued on the cargo, it could not be maintained that the usage proved a termination of the risk, at the end of twenty-four hours after anchoring within the port. The conclusion is, that the vessel had not arrived, within the meaning of the policy, at the time she was destroyed.