Thwing v. Great Western Insurance

Gray, J. The single question in this case arises upon this clause on the face of a policy of insurance upon the plaintiff’s ship: 11 Warranted not to load more than her registered tonnage with lead, marble, coal, slate, copper ore, salt, stone, bricks, grain or iron, either or all, on any one passage.” This clause is do nbtless a warranty, in the technical sense, any breach of which will defeat the policy; and being a warranty, the meaning of the words used is to be ascertained, and, when ascertained, strictly carried out. The subject of the insurance is shown by the policy itself to be a ship, intended to carry cargo, and, consequently, to be duly equipped and prepared for that object. When a vessel is chartered, the charterer usually covenants to load the cargo only, and the duty of furnishing ballast to keep the vessel in proper trim, and dunnage to protect the cargo from leakage, like that of providing necessary stores and equipments, and otherwise taking care that the ship is in proper condition and the cargo duly stowed, remains upon the owner of the ship. Moorsom v. Page, 4 Camp. 103. Irving v. Clegg, 1 Bing. N. C. 53; S. C. 4 Moore & Scott, 572. Abbott on Shipping, (7th ed.) 346. The Casco, Daveis, 184, 192. In Towse v. Henderson, 4 Exch. 890, it was held that the owner of a vessel, who had agreed to load for the charterer a full and complete cargo of teas, might take merchandise as ballast and receive freight therefor, provided it occupied no more room than other ballast would have done. The “ tonnage ” of a vessel is her capacity to carry cargo ; and a charter of “ the whole tonnage ” of a ship transfers to the charterer only the space necessary for that purpose. Hooe v. Groverman, 1 Cranch, 214, 236, 237. Ashburner v. Balchen, 3 Selden, 262. Cuthbert v. Cumming, 10 Exch. 809, 814. The registered tonnage of a vessel, as regulated by act of congress, is intended as a safe standard of her capacity to carry cargo, and is usually less than her actual tonnage. In the warranty in question, the words “ not to load more than her registered tonnage” must have the same meaning and appli» [406] cation as if they had stood alone, and extended to all kinds of merchandise, instead of being restricted by the succeeding words to particular articles. They cannot, according to their obvious, strict and natural meaning, include things put on board as necessary parts of the ship’s stores or provisions or equipment. They would not, for instance, apply to guns and ammunition hr the defence of the vessel, nor to spare chains and anchors, aor to coal carried to be consumed on board, nor to salt or grain for provisions, according to the duties resting upon the owner by law and the rights reserved to him in the charter party. Nor do they include articles shipped for the purpose of serving as ballast or dunnage. If the warranty “ not to load more than her registered tonnage” had extended to goods of every description, and the dunnage used had been of the ordinary kind — planks or pieces of wood placed against the sides and bottom of the hold, to receive, support and protect the cargo — it could hardly have been contended that their bulk or weight should be ascertained and computed in estimating the burden or tonnage of the vessel. The true meaning and whole effect of the warranty, in our opinion, are to forbid the loading of an amount greater than the prohibited articles as cargo in a ship properly fitted to receive it. It was argued by the learned counsel for the defendants that an insurance on “ cargo ” would have covered the coal in question. But we are by no means sure that such would be the construction of such a policy. According to the definition of Postlethwaite, approved by this court in Wolcott v. Eagle Insurance Co. 4 Pick. 429, 433, “ cargo ” signifies “ all the merchandise and effects which are laden on board a ship, exclusive of the soldiers, crew, rigging, ammunition, provisions, guns, &c., though all these things load it sometimes more than the merchandise.” In that case, it was held that by the word “ cargo ” provender for cattle on board was not insured, because, said the court, “ this was not laden on board as merchandise, and the circumstance that some of it might remain to be sold at the end .iff the voyage does not make it cargo.” So it is doubtful, to say the least, whether “ cargo ” would cover the outfits of a [407] whaling voyage. Wolcott v. Eagle Insurance Co. above cited. Paddock v. Franklin Insurance Co. 11 Pick. 227, 230. Hill v. Patten, 8 East, 373, 375. But if the word “cargo,” in the description of the subject matter insured, could be held to include merchandise shipped as ballast or for dunnage, it would only be upon the rule of liberal construction, by which the general terms of a policy are interpreted, but which is never applied to a clause of warranty. A warranty cannot be extended by inference beyond the strict meaning of the words in which it is expressed. As was said by Chief Justice Shaw in Forbush v. Western Massachusetts Insurance Co. 4 Gray, 337, 341, “ nothing is to be added by way of intendment or construction, when the words are clear and intelligible, although it may reasonably be inferred that some object was intended to be accomplished by the warranty, which a mere literal compliance would not fully reach.” The chief justice there cited with approval a case in the queen’s bench, in the time of Lord Mansfield, of a ship warranted to have twenty guns, and proved to have had twenty guns, but only twenty-five men, when it required sixty men to man twenty guns; and in which the underwriters contended that the warranty implied that there should be a proportionable number of men, but the court held otherwise. Hide v. Bruce, 3 Doug. 213. See also McLoon v. Commercial Insurance Co. 100 Mass. 472. In the present case, there was evidence tending to show, and the jury have found by their verdict, that coal was a suitable and proper article to be used for dunnage, that it was actually and in good faith used by the plaintiff for dunnage, and that at least as much as the excess above the registered tonnage was reasonably necessary for the dunnage of this ship for her voyage. The mere fact that a freight was paid upon the coal found to have been so used for dunnage is not necessarily inconsistent with and cannot control the finding of the jury. Upon that finding, we concur with the justice who presided at the trial that there was no breach of the warranty. We are fortified in this conclusion by a judgment rendered in the circuit court of the United [408] States for this district, in a similar case between the same par* ties, while this case has been under advisement. Exceptions overruled.