Maryland Insurance Company v. Le Roy, Bayard & M'evers

Johnson J. delivered the opinion of the Com í as follows : In deciding on this cause the Court will confine itself to the' case made out on the 7th exception. Its decision on the point presented by that exception disposes of the case finally. The opinion prayed for was, that, by taking in, at Fogo, an additional cargo, not sanctioned by the contract of insurance, the insurers were discharged from their liability under the policy.. The charge, delivered by the Court, was, that the • subsequent liability of the underwriters must depend upon the question, whether any increase of risk resulted from the shipping of that additional cargo. , In this charge, this Court are of opinion, that 'the Court below err$d. The discharge of the underwriters from their liability in such cases, depends, not upo» any supposed increase of risk, but d,'holly on the departure of the insured from' the contract of insurance. The consequences of such violation of the contract aré immaterial to its legal effect, as it is, per se, a discharge of the underwriters, and the law attaches no importance to the degree in cases of voluntary deviation $ necessity alone can sanction a deviation in any case; and that deviation must be strictly commensurate with the vis major producing it. The case of Rayne and Bell has been cited as supporting a contrary doctrine. Without being understood to acquiesce in the corred» nessofthat decision, it may be remarked that the question was not, in that case, whether the lading, taken in at Gibralier, was within the terms of the policy, as in the present. — - but what acts were lawful .to he dope during the delay occasioned-by a justifiable cause of deviation. On the contrary, the case of Sheriff (ind Potts was a case of voluntary departure from the stipulations of the policy, and the decision supports the opinion we now give. *31 It may also bereraarked, that, in the case óf Rayne and Bell the notice which Lord Ellenborough takes of. the case of Sheriff and Potts, virtually admits the doctrine upop which this Court founds its decision. The terms of this policy so far as connected- with this decision, are, « with liberty of touching at the Cape do ,*e Verd islands, on her outward passage, for stock, and «to take in water.’* Touching, in its nautical sense, is known to be the most restrictive word that can be adopted in such a case. Construing the license according to the subject matter, and in its necessary connection with the offer on the freight, it could mean no more than permission to provision the vessel with live stock, súch as is usual on a voyage, and may be. procured at the Cape de Verds, It might, indeed, admit of a doubt whether any of the larger animals used for food, were included within the policy. The words of the first offer certainly were intended to confine the .permission to the smaller animals. Stock is a term of the most general import: In its present extended, application, it would include a great variety of subjects that never could have entered into contemplation of the parties. In what sense was the term used ? Is the question to be decided: not what uses it might have beeti applied to in other contracts, or between other parties. The general want of precision in the language of maritime con-: tracts, is an endless source of litigation among mercantile men. . Courts of justice are therefore obliged to resort to such reasons as the nature, object and terms of the contract present, to determine the precise extent, of the obligation of the parties. We feel no inclination to add to the number of causes: which vitiate a policy j but the amount of the premium depends upon such a variety of considerations, (as often suggested by caprice as by judgment,) that the-contract,, whatever it is, must be substantially adhered to. Judgment reversed*