Seamans v. Loring

STORY, Circuit Justice (after stating the facts). The first question is, whose interest is assured by the terms of the policy? The policy was effected by Messrs. Loring and Curtis,- for Leonard Jarvis, 3d, or whom the same “may concern.” It will, therefore, by its terms cover the interest of L. Jarvis, or any other person, having, an interest in the vessel and cargo, who has given an authority for such insurance. There is no warranty or representation of an American character, and the insurance may avail for any foreigner, who has authorized it to be made on his own account. Hodgson v. Marine Ins. Co., 5 Cranch [9 U. S.] 100. But the insurance cannot enure in favor of any person, who had an interest in the cargo, unless Messrs. Loring and Curtis had an authority from him for that purpose. Steinback v. Rhinelander, 3 Johns. Cas. 269. The letter of instructions, under which this Insurance was effected, is now before us, and the construction of it is a question of law. I am of opinion, that it authorized an insurance to be made for L. Jarvis only; and that an insurance for the captors, or for Mr. Pre-ble, was not authorized by it. There, is nothing in the letter, which imports, that L.. Jarvis is acting as agent for the captors, or for Mr. Preble, in making the insurance. On the contrary, he speaks in reference to an interest, which he had acquired in the vessel and cargo, by virtue of advances, made upon the credit of that fund. And the language in the close of the letter is perfectly satisfied by the obvious interest, that Mr. Preble had, in having an insurance made by Jarvis to the amount of his interest, without supposing that he authorized any insurance directly on his own account. And in respect of proof of an authority to make insurance, I think, that it should not be gathered from loose expressions or inferences in letters of third persons; but it should distinctly appear in some communication between the parties, or their indisputable agents. Assuming, therefore, that a mere prize agent, as such, has, without any special authority for that purpose, a right to insure for the benefit of the captors (Le Cras v. Hughes, 1 Marsh. Ins. 84, 108; Craufurd v. Hunter, 8 Term R. 13; Lucena v. Craufurd, 3 Bos. & P. 75, 2 Bos. & P. N. R. 323, and 1 Taunt. 325; Stirling v. Vaughan, 2 Camp. 225; Routh v. Thompson, 11 East, 428), still as that insurance does not appear to have been authorized by such agent, it cannot avail for the captors. It is argued, that the words “whom it may concern” have no effect, unless they are made to recover the interest of Mr. Preble.- If that were true, and they were thus to be deemed mere surplusage, it would not vary the legal result. But, in this policy, the words seem to me to have an appropriate use. Under all the circumstances of this case, as the advances were made to Mr. Preble out of the funds of Messrs. Loring and Curtis, by Jarvis, as their agent, by adopting his acts, and making the insurance, it might be, that thereby the interest, whatever it was, that was acquired under the contract, between Preble and Jarvis, might be deemed to be theirs and not Jarvis’s. In this view, it might have been a moot point (if the policy had been for Jarvis only) whether he -had an interest, to which it could attach; and therefore the words “for whom it may concern” were properly added to cure a doubt; and they are sufficient to cover any interest of Messrs. Loring and Curtis in the vessel and cargo. The next consideration respects the nature of the interest, covered by the policy. It is on “the brig Fame and her cargo on board.” It can, therefore, cover no interest except in the vessel and cargo; and the question is, whether Jarvis, or Messrs. Loring and Curtis, were the owners of the vessel and cargo, or of any interest therein. The original contract between Preble and Jarvis certainly was not intended to convey the general ownership, even admitting that Preble was the entire owner of the vessel and cargo; which is certainly not in proof, but, for the purposes of this trial, seems conceded by the parties. That contract was, that the vessel should be put under the control and management of Jarvis, and consigned to Loring and Curtis; and out of the proceeds of the sale, after her arrival in the United States, they were to pay a bill of exchange, drawn upon them, for their own use. The surplus was to be for the benefit of Pre-ble, or the captors. The utmost interest then, intended in the first instance to be conveyed, was a lien on the vessel and cargo, to the extent of the advances made by Jarvis. To pass the title to a vessel, it is indispensable, that there should be some written transfer of the vessel. This is required by the law of nations, as well as the municipal law of this country. A vessel will not pass by a mere delivery, without a document of sale. The latter is considered as an indispensable muniment of title. The Sisters, 5 C. Rob. Adm. 155; Abb. Shipp, p. 1, c. 1. And I think, that a lien for general advances cannot be acquired, unless by an hypothecation or other conveyance in writing for this purpose.. And if it were otherwise, it is clear, that the lien could not be complete, having a situs in re, until possession was acquired under the contract. I should hold, therefore, that no ownership in the vessel was acquired, until the bill of sale to Jarvis in October, 1814, if it were necessary to rest this cause on that point. But it may well be disposed of, even assuming the more [924] favorable position for tbe plaintiff, that an interest was acquired, as soon as the contract for advances was consummated by an actual possession by Captain Lockwood, in April, 1814. As to the cargo, a different consideration may, in some respects, prevail. The title may pass by mere delivery of the goods under a ■contract of sale; or a lien may be acquired for advances by mere possession under a contract for that purpose. But it is of the very essence of a lien on goods, that possession accompanies it. The contract in October, 1813, was clearly executory, both as to vessel and cargo. It was contemplated by the parties, that the interest of Jarvis was to be acquired under a public sale at Bergen of the vessel and cargo, which were to be bought in on his account, and conveyances were to be made to him. Until such conveyances, he was not deemed to be the ostensible owner, nor his control of the vessel complete. And the subsequent agreement and sale, in November, 1814, is perfectly consistent with this construction of the original contract If, therefore, Jarvis did acquire a lien on the vessel and cargo under the contract for advances, followed up by possession, I think, that he may be rightfully considered as the special owner of them to the extent of these advances; and as such might protect himself by an insurance to that extent. Russel v. Union Ins. Co., 4 Dall. [4 U. S.] 421. The next question is, at what time, if ever, did the policy attach? The insurance is, “at and from,” Ac. What is the true construction of these words in policies, must, in some measure, depend upon the state of things, and the situation of the parties, at the time of underwriting the policy. If at that time the vessel is abroad in .a foreign port, or expected to arrive at such port in the course of a voyage, the policy by the word “at” will attach upon the vessel and cargo from the time of her arrival at such port. Smith v. Steinback, 2 Caines, Cas. 158; Garrigues v. Coxe, 1 Bin. 592; Chitty v. Selwyn, 2 Atk. 359; Camden v. Cowley, 1 W. Bl. 417; 1 Marsh. Ins. 262; Bird v. Appleton, 8 Term R. 562; Bell v. Bell, 2 Camp. 475; Hull v. Cooper, 14 East, 479; Horneyer v. Lushington, 15 East, 46; Anuen v. Woodman, 3 Taunt. 299; Patrick v. Ludlow, 3 Johns. Cas. 10. If, on the other hand, the vessel has been a long time in such port without reference to any particular voyage, the policy will attach only from the time, that preparations are begun to be made with reference to the voyage insured. Kemble v. Bowne, 1 Caines, 75, 79; Chitty v. Selwyn, 2 Atk. 359; Gladstone v. Clay, 1 Maule & S. 418. And if the party insured acquired the ownership subsequent to such time, and before the date of his policy, then the policy will attach only from the time of his acquiring such ownership. If, on the other hand, the ship is at a home port at the time of effecting such insurance, the policy seems generally to be deemed to attach only from the date of the policy. Forbes v. Wilson, 1 Marsh. Ins. 155, 261; Smith v. Steinback, 2 Caines, Cas. 158. In all these cases, the law looks to the known and admitted predicament of the parties at the time of the insurance, and construes the contract with reference to such facts. And a uniform construction of the words, without reference to such circumstances, would often produce the most incongruous and mischievous results. In the present case, the vessel was in a foreign port, not in the course of a voyage, but moored and stripped, without any destination for any particular voyage. She arrived at that port in March, 1813,- and her cargo was about that time unladen. The captors, or their agents, had not, at that time, nor at any other time before the contract with Mr. Jarvis in December, 1813, the slightest- intention of undertaking a voyage to Boston. If this policy then were • construed to attach from the moment of the first arrival of the Fame at Bergen, it would wholly defeat the intention of all the parties to this insurance. The captors or their agents never authorized any such insurance upon their own account;.and it would, therefore, be a mere nullity. Neither Mr. Jarvis, nor Messrs. Loring and Ourtis had, at that time, acquired any interest in the property; and the assured must have a subsisting interest at the time when the policy, by its terms, would attach, otherwise it will be void for want of an insurable interest. Such an interest, subsequently acquired, would not aid them. And it may be added, that there would have been such a concealment of material facts, whether innocently or otherwise is not important, that the underwriters would have been completely discharged. My opinion is, that under the circumstances, this policy, by its terms, did not attach at the arrival of the Fame at Bergen; that it could not attach on the vessel, earlier than the period, in which the assured acquired the special or general ownership of the vessel; nor, if that was previous to the effecting of the policy, until some act was done, or preparation made, with reference to the voyage. If the ownership was acquired subsequently to the date of the insurance, and before preparations for a voyage, the same rule will apply. If while preparations were making for the voyage, the policy will attach only from the time of acquiring the ownership. And in these cases it is always an important inquiry, whether there has been a concealment of facts material to the risk, or a delay in acquiring the ownership, or in preparing for, and sailing on, the voyage, which ought to discharge the underwriter. As to the cargo, it is clear from the terms of the policy, that the policy could not attach on it, until it was actually put on board for the voyage. The word “cargo,” ex vi termini, means goods on board of the vessel; and in this policy, it is not even on “cargo” generally, but on “cargo on board.” We may now apply these principles to the facts of this case. Assuming that the ownership of the vessel was acquired in April, 1814, [925] by tbe possession of Captain Lockwood, tbe policy did not immediately attach on the vessel, but only from the time when preparations were made for the voyage. It is clear from the evidence, that no such preparations were made by Captain Lockwood on his arrival at Bergen. He then found the cargo under the seals of the government; and they refused to allow the cargo to be put on board the vessel, or the vessel to depart from the port. No sale of the vessel was ever made by him, by public auction, so as to constitute Mr. Jarvis the ostensible owner; and, in the autumn of 1814, having obtained leave, he sold the white linens by public auction, and bought them in for Mr. Jarvis, and then proceeded to sell them on his account by retail. When Mr. Jarvis arrived at Bergen, in November, 1814, he confirmed these acts of Lockwood, ratified the sale of the brown linens to the government, and totally abandoned all further thoughts of the voyage. The very substratum of the voyage, the whole cargo of linens, was voluntarily disposed of; and it was not until his second return to Bergen, in March, 1815, when the brown linens were returned by the government, and after having two other voyages in view, that Mr. Jarvis concluded to resume the original, voyage to Boston. Preparations for this purpose were made in May, 1815, and the cargo was then, for the first time, put on board. Under these circumstances, the policy did not attach on vessel, or cargo, until that time. There is no pretence, that this delay was justified by necessity; and therefore the underwriters could not have been held under the policy. In fact, as to them, there was a complete non-inception of the voyage insured. It was not a deviation, for that supposes the voyage to have commenced. But-there was a delay, which, to all intents and purposes, made the voyage a new one, which they never had insured. The very representation, under which they had underwritten, was of a voyage immediately to be performed, and not of a voyage to commence in futuro, at any period when it might suit the convenience of the assured to prosecute it. But there is another point, which, if the evidence be believed, and it is exceedingly strong, and, as far as I recollect, perfectly uncontra-dicted, completely disposes of the cause, let the other points be as they may. It is the point, that there was an over-insurance before the date of the present policy, the whole interest being, as it is asserted, but $38,240.32, and the whole prior insurance being $43,700. If the jury are satisfied, that such is the fact, then it is my opinion, that the present policy never.attached, for want of a subject matter, upon which it could operate, -notwithstanding the prior policies were cancelled or defunct, before the risk commenced. The prior policies were all underwritten upon the same voyage, and in the same terms: their priority, therefore, was according to their respective dates, and nothing done by the parties to those policies, after the execution of the present policy, could alter the relative situation of the parties to this policy. The rights of the latter were fixed by the terms of their own contract. The memorandum, therefore, entered upon the prior policies in December, 1814, by which those policies, from non-compliance with the warranty, were discharged on the second day of February, 1815, before the risk commenced, has no effect upon the present policy. And, as between the parties in the present suit, those policies are to be considered in the same manner, as if no such memorandum or cancellation had ever been made. It is not competent for the assured thus to change the legal predicament of the underwriters on a policy. The clause in this policy, referring to the effect of prior policies, is perfectly unambiguous in its terms. When it speaks of the property’s being assured by policies “actually prior to this” policy, it speaks with reference to such policies, as subsisted at the real date of this policy. It does not refer to any subsequent acts or agreements between the parties, by which those policies might, or might not, attach upon the subject matter. If the property, which the assured has in the subject matter of insurance, would be completely covered by those policies, supposing them still in existence, it is quite immaterial to the subsequent underwriters, whether the assured choose to hold or release those policies. The language of the clause, as to subsequent insurers, manifestly refers their responsibility' to the date of their policies, and confirms the construction, which has been stated. Upon any other construction great inconveniences and even frauds might arise; and in case of a subsequent increase of risk, there would be great temptations for prior underwriters to collude with the assured, and discharge themselves, and charge the subsequent insurers. All that is required by the terms of the contract is, that the property should be wholly assured by a prior insurance for the same voyage. But whether that insurance ultimately protects the party, or -not, is a question, with which the contract does not at all intermeddle. I do not think it necessary, considering the predicament of this case, to press another point, which has been made at the argument. From the terms of the policy, the vessel is warranted to be an English prize vessel; and if, by changing her colors and documents, and giving her a Swedish character, before the policy attached, the risk was materially increased, the underwriters were completely discharged. The jury found a verdict for the defendants. After the verdict, Mr. Townsend, for plaintiff, moved for a new trial on account of a misdirection of the court upon the point, as to the effect of the memorandum upon, and cancellation of, the prior policies. He argued, that the prior policies were by the memorandum and subsequent non-compliance with the warranty contained therein, completely removed on the second day of February, 1815, long before this policy, according to the con [926] struction given by the court, attached either to vessel or cargo. Under these circumstances, the case was the same, as if those policies had never been underwritten. The clause in the policy, as to prior insurances, refers only to insurances “actually prior,” where the risk shall have actually attached, and not to the date of the policy. If the risk has not commenced, the prior policies may at any time be removed, and the subsequent policies will attach, as if there had not been any others in existence. The terms “actually prior” mean, not actually prior in point of time, but in attaching upon the subject matter. Prescott & Hubbard, for defendants contended, that the construction, put upon the clause by the court, was the correct one. Great inconveniences and frauds would arise upon any other construction. This clause was first introduced about thirty years ago, in consequence of the adoption of the English rule as to contribution, in a case in which Mr. Cabot was a party. The construction has uniformly been, that the priority is from the real dates of the policies; and it would be strange indeed, if the acts of third persons should vary the legal predicament of the parties. STORY, Circuit Justice. I remain of the same opinion, which was expressed at the trial, upon the point now in question. Every subsequent reflection has confirmed me in the belief of the correctness of that opinion. There is no case in the books, in which this point has come solemnly in judgment; but it seems to have been taken for granted in various discussions of courts of law, that the construction for which we contend, was the true one. Mr. Justice Kent has sufficiently stated the true meaning of the clause. New York Ins. Co. v. Thomas, 3 Johns. Cas. 1. An insurance, prior in date, is to exonerate the underwriter, and entitle the assured to a return of premium; an insurance, subsequent in date, is to have no effect at all upon the present policy. Lee v. Massachusetts F. & M. Ins. Co., 6 Mass. 208; Brown v. Hartford Ins. Co., 3 Day, 58. On the whole, the district judge concurs with me in the opinion, that the motion for a new trial must be overruled. Motion overruled.