Bradley v. Nashville Insurance

[709] The judgment of the court, which was pronounced on a re-hearing, was delivered by Eustis, C. J. This case was before us at the last June term, and we held that the underwriters were not responsible under the policy for the loss for which this action was instituted. An application was made for a re-hearing, which was granted. The case was not fully argued at the first hearing, and a more thorough examination of the subject during the interval has not enabled us to concur in the views we first expressed. The suit is brought to recover SI,700, the amount of a policy of insurance on the schooner Planet, at and from New Orleans to Havana, from thence to Burita and back to Neio Orleans, as is described in the first part of the policy. The description of the voyage in the written application for insurance, and in another part of the policy, does not materially vary from the first description. There was judgment in the court below for the plaintiff, and the defendants have appealed. The vessel having been lost aftep her safe arrival in the port of Havana, it is contended by the defendants that they are not liable for the loss, inasmuch as, while in that port, the vessel was not covered by the insurance,according to the terms of the policy. Burita is a small village on the Rio Grande, below Matamoros. The risks to which the vessels were subjected in port were not merely the ordinary risks in time of peace. War at the time existed between the United States and Mexico, and the vessel was exposed to delay in the port of the Havana and to war risks at Burita, which was then occupied by a portion of our forces. No authorily. having been referred to as to any particular meaning being given in insurance to the word thence, we took it, as in its ordinary sense, to mean from that place — from the Havana; and, under the construction attached to the words at and from in the law of insurance, we thought the loss of the vessel in port was pot insured against by the description used in the policy. It is laid down by writers on insurance that, under policies from a port, instead of at and from, the risk attaches at the time of the sailing of the vessel, that is, at the time of weighing anchor and breaking ground for the voyage with all the preparations completely made. The word from, used alone, is held to exclude the risks while lying in port before sailing. An examination of the cases from which this rule is deduced has satisfied us, that the use of the word from in this exclusive sense is confined to the commencement of the voyage insured, and that those cases, which depend upon the meaning of the words at, at arfd from, and to, relate to the beginning and end of risks, and are not applicable, in that, exclusive sense, to ports at which the vessel may stop during a voyage described in the policy. Wo find the word thence frequently used in reference to the intermediate ports of a voyage, and never recognized by courts as a term of exclusion, and we are satisfied that insurance to a port, thence to another, and thence to a third, is the same as from the first to the last with liberty to stop at the intermediate ports. We have not met with any case in which, when applied to an intermediate port, the words thence or from have been held to have the same exclusive sense as when used with regard to the commencement of a voyage. ' On an insurance at and from New Orleans to the Havana, thence to Burita, and back to New Orleans, the word thence is not a term of exclusion or of limitation of risks, but descriptive of the course of the yoyage ; and although [710] the word at is used to include the insurance in port at the commencement of the voyage,yet it is not usual to insert it in relation to intermediate ports of the voyage, nor is it considered necessary in order to cover the risks while there; and such we now believe is the general understanding of merchants and underwriters. The subject is not susceptible of much illustration by way of argument. It is supported by concurrent authority. The construction given by courts to policies which cover risks in port which are not included by express words, but implied by the description .of the voyage, appears to us to be conclusive against Ihe underwriters in this case. Brown v. Vigne, 12 East. 383. Cockey v. Atkinson, 2 Barnwell & A., 460. Ellery v. N. E. Ins. Co., 8 Pickering, 14. Bell v. Marine Ins. Co., 8 Sargeant .& Rawle, 98. Parsons v. Mass. Ins. Co., 6 Mass. 179. De Longuemére v. N. Y. F. Ins. Co., 10 Johnson, 120. Patrick v. Con. Ins. Co., 11 Johnson, 9. It is important to add that the construction which we give to the description of the risk in this policy, is in conformity with the opinions of Judge Phillips of Massachusetts, and Mr. Duer of New York, the distinguished authors of the treatises referred to in argument. But it is urged that the cases upon which this construction is founded, differ from the present, inihis: that in all of them there was the clause declaring distinctly that the adventure should continue and endure till the arrival of the vessel at the last port. That such a clause is usual in all policies in the United States, we believe to be the fact'; it certainly is in the New Orleans policies. It is not easy to perceive how the underwriters can be benefited by the absence of this clause, as restricting the insurance to risks at sea, when we .consider the manner in which this insurance was effected. On the application made by the plaintiff’s agent for insurance on the hull of the schooner Planet from this to Havana, and from thence .to Burita, and from thence back to New Orleans, for $1,700, we find the rate marked seven per cent. A separate policy for this insurance was required by the agent in his application. Can it be questioned that, according to the course of business, the company was bound in good faith to furnish the party a policy in the usual form and with the usual clauses 1 A large portion of insurance is transacted without the policy being looked at by the insured, and we think no court would hesitate to reform a policy .under such circumstance, and give the insured the indemnity for which his premium has been paid. In the present case the defendants filled up a blank policy on merchandize, thus increasing the difficulties with which this most informal of legal instruments is attended. But there hap-ens to be in this policy, immediately following the description .of the voyage: “ Beginning the adventure upon said goods and merchandize, from and immediately following the loading thereof on board the said vessel as aforesaid, and so shall continue and endure until the said goods and merchandize shall be safely landed as aforesaid.” What, it may be asked, is to continue and endure ? The adventure. And what is the adventure, but the risk ? If this clause mean any thing, it means that the risk shall continue without interruption till the end of the voyage. Mutatis mutandis, substituting the subject insured — the vessel — for that for which the form was printed, that the insurance was to continue up to the termination of the voyage seems to be beyond all question. The intention of the parties, as collected from the terms employed in the con [711] tract according to the usage of insurance, was, we think with the district judge who decided this cause, to insure the vessel back to New Orleans. The voyage was entire, the risk was not interrupted or suspended by any stipulation to that effect, the premium was entire, and we think the insurance was uninterrupted and entire. Policies of insurance are rarely subjected to any critical construction, and the intent is regarded rather than any grammatical accuracy in the use of language. Palmer v. Warren Ins. Co., 1 Story’s Rep. 365. 1 Duer on Ins. 161. Our attention has been called to the point raised in the defence, that the delay of the Planet in the Havana amounted to a deviation from the voyage. It is in evidence that the schooner was detained fora few days for the purpose of getting the news from Mexico by the steamer, and that on her arrival the schooner was got ready to take in her cargo. In the case of Hagedorn v. The St. Louis Perpetual Insurance Company, 2 An. p. 1005, we considered this subject. We thought that, under the evidence and the state of war which existed between this country and Mexico, and considering the .condition and situation of Burita, which was then under the control of our army on the Rio Grande, the delay was in the furtherance of the object of the voyage, and not such as to terminate the insurance. The delay, under these circumstances, we do not,think constitutes a deviation, according to the authorities cited by the counsel for the defendant. Judgment affirmed.