Washington Insurance v. White

Gray, J. It is doubtless true, as argued by the learned counsel for the plaintiffs, that if this vessel had been insured by a voyage policy from Callao to the Chincha Islands and thence to another port, the going into Callao, after leaving the Chincha Islands, for a clearance and a supply of water and change of crew, would not have been a deviation, if it was in the usual course of trade upon such a voyage. Parsons v. Manufacturers' Insurance Co. 16 Gray, 463. Harrower v. Hutchinson, Law Rep. 4 Q. B. 523. But it by no means follows that while in the port of Callao for that purpose, she was on a passage, within the meaning of the continuation clause in a time policy not mentioning particular ports or voyages. A nearer analogy is afforded by the case in which it was held by Lord Ellenborough and the whole court of king’s bench that under a policy of insurance “ at and from Portneuf to London, warranted to sail on or before ” a certain day, a vessel which had left Portneuf and dropped down the St. Lawrence thirty miles (with a sufficient crew for river navigation, but not for the voyage to London) to Quebec, which was the nearest place at which she could obtain a clearance, had not sailed. Ridsdale v. Newnham, 4 Camp. 111; S. C. 3 M. & S. 456. But the safest guides in the interpretation of this policy are to be found in the adjudications of this court upon time policies containing words which, if not exactly identical, may for the purposes of this case be deemed equivalent. In Wood v. New England Insurance Co. 14 Mass. 31, the point adjudged was that a vessel, which at the expiration of the year was actually in a port into which she had been carried by overwhelming force while proceeding oh her voyage on the high [241] seas, was “ at sea ” within the meaning of such a clause. The authority of the decision has been limited to that point, and the more general dicta of Chief Justice Parker in delivering the opinion disapproved, in the later cases. See Gookin v. New England Insurance Co. 12 Gray, 510-514. In Bowen v. Hope & Merchants' Insurance Cos. 20 Pick. 275, and 12 Gray, 512 note, the vessel which was held to be “ at sea,” and “ on a passage,” had left her port of lading, fully prepared to proceed to her port of destination, and with a real intent to do so, and had dropped down the straits seven or eight miles, and had then been obliged by head winds to come to anchor, but without relinquishing the intention of proceeding on her voyage as soon as wind and weather would permit. In Cole v. Union Insurance Co. 12 Gray, 501, 519, a vessel anchored in the open roadstead at the Chincha Islands, for the purpose of taking in cargo, was held not to be “ at sea,” within the meaning of the first part of the continuation clause. And in Gookin v. New England Insurance Co. Ib. 501, 506, a vessel was held to have arrived at a “ port of destination,” under the last part of the clause, upon her arrival at a similar open road-stead at Ypala for a like purpose. In Wales v. China Insurance Co. 8 Allen, 380, it was held that a vessel which was chartered to one port, there to receive orders which should indicate to her within twenty-four hours whether to discharge there or go on to another port, and to be kept at the first port as long, and sent to such other port, as those from whom she was to take her orders might elect; and which did not, within twenty-four hours after giving notice of her arrival at the first port, receive orders to go to another port; had arrived at a port of destination, within the meaning of the last part of the continuation clause. There is no intimation in the opinion that the vessel could be considered as “at sea” or “ on a passage,” or as not having arrived at her port of destination, for any longer period than while the port which she entered might be considered as a port into which she had put for orders only. [242] The case at bar is less consistent with a continuation of the risk than either of these. At the expiration of the year, the vessel was not in an open roadstead, but in a safe harbor, into which she had put voluntarily, not for orders merely, but to obtain the necessary clearance, water and crew for her further voyage, with none of which had she been previously supplied. The necessary conclusion is that she was not “ on a passage.” The policy therefore ended with the year, and the insurers are not entitled to an additional premium. Judgment for the defendant.