Majority
p. 192Vos and Lightbourne against Robinson. ALBANY, August, 1812.
Headnote
Where theinsured claimed for a total $el, and 30 days commencement of the suit, exhibited the protest of prove the loss'; registeror proof of the und’erwrimade no'ob-proofs' but refused to pay, solely on the ground of a was hew,’that admission of the plaintiffs’ least,' a waiver sity of products proof of it.A vessel was insured "at and from Port Plata, St. Domingo, to New-York; " in going from Port Plata to Susua is in the <listnct, bearing the name of Port Plata, and about 18 -miles east of he port, in order to take in a cargo of mahogany, she was driven into the road or bay of Isabella, in the same district, and there lost. She had a permit from the custom-house at Port Plata, to go to Susua, to obtain her cargo, and would have been obliged to return to Port Plata to pay the duties, and get a clearance, such being the usual course of trade there. The custom-house and port of entry are confined to the particular place, called Port Plata, and the district, for the purposes of revenue, which bears that name, extends nearly a hundred miles along the coast of St. Domingo. Port Plata is a safe harbour, hut Susua and Isabella are open roads, and dangerous while particular winds prevail. It was held, that Port Plata proper, and the district of Port Plata, were different objects, and the perils distinct; and that the going from Port Plata to Susua was a deviation. And that nothing hut a clear, well settled and well understood usage of trade, would he sufficient to include both objects, under the simple name of Port Plata.
THIS was an action on a policy of insurance on the schooner Maria, “ at and from Port Plata, St. Domingo, to New-York.” The plaintiffs claimed for a total loss, which was averred, i,¡ the first count of the plaintiffs’ declaration, to have happened as follows: “ While the said vessel was at Port Plata aforesaid, to . ’ wit, at Isabella, within the district of Port Plata, she was, by and through the violence of the winds, &c. forced and cast upon rocks, an bars there, and was, then and there, broken, shattered, bilged and totally lost..” In the second count, the plaintiffs averred, that while the vessel was at Port Plata, she was, by the force of winds, &c- totally lost.
The cause was tried at the New-York sittings, before Mr. Justice Thompson, the 15th June, 1811.
Thirty days previous to the commencement or the suit, the agent of the defendant, and the other underwriters on the same received from the plaintiffs the protest of the captain of the vessel, stating the loss; but the register of the vessel was not then produced, nor until it was given in evidence at the trial, by which it appeared that she belonged to Vos, one of the plaintiffs. When the protest was shown to the underwriters, they made no objection to the sufficiency of the preliminary proof; but refused to pay for a total loss, on the ground of a deviation.
The vessel sailed from Port Plata, on the. 30th November, 1809, to go to Susua, to procure mahogany there. Her papers were left at the marine office at Port Plata, and a per-was granted her to go to Susua, for her cargo, and it was necessary for her to return to Port Plata, in order to obtain a clearance for New-York. After leaving Port Plata, the vessel
p. 193
was carried, by adverse winds and currents, 12 leagues to the westward of that place; and arrived at Isabella, on the 6th December, and there took in additional ballast, and put to sea, in order to reach Susua, but was again driven back to Isabella on the 8th Decernher. She again sailed for Susua, but was again forced back, and put into Isabella, on the 10th December, where she was shipwrecked in a violent storm. The harbour of Susua and port of Isabella, are both in the district of Port Plata.
The district of Port Plata extends from the river St. Juan near the Old Cape, to the river Massaue near Fort Dauphin. The whole district is called Port Plata. The custom-house or marine office, for the whole district, is at Port Plata, where all the inhabitants of the district do duty at the fort. The chief produce of the district is mahogany and fustic, and these woods are procured along the coast.
Cargoes are never taken on board at Port Plata, but vessels always enter at that port and proceed to Susua, which is about 4 leagues east, or along the coast, to procure their cargoes, and then return to Port Plata to pay the duties, and obtain a clearance. That port is a good harbour, and has anchorage ground. Susua and Isabella are both open roads or bays. Isabella is about 18 miles west of Port Plata. Susui is about 18 miles east of that place; and when the wind is from the northwest or north, it is difficult to get out to sea, and there is great danger of being driven on shore. The vessel had made about half her passage to Susua, when she was driven to leeward, by an easterly wind, and forced into port Isabella.
Two sea captains, one of whom had been above 18 months at Port Plata, and both were acquainted with the district and coast, testified, that the district of Port Plata is so called, because there is no other port of entry or custom-house within it. Samana is the next port of entry, which has, in like manner, a district of country attached to it. The city of St. Domingo, which is another port of entry, forms another district; and these are the only ports of entry in the Spanish part of the island, which is divided into districts, in reference to the custom-house duties; each being a revenue district, and taking its name from the port of entry within it. The witnesses did not consider a vessel arriving at Susua or Isabella, as arriving at Port Plata, to which place she must actually go; and if desirous to proceed to any other place
p. 194As to the alleged deviation, they contended, that the plaintiffs had merely pursued the usual custom of the trade, in going from Port Plata to Susua to obtain a cargo. The custom of the trade was peculiar, on account of the particular form and situation of the-coast, and had been fully proved. Underwriters are presumed to know the usage of the trade in. which they insure, and are bound by such usage.[6] In the case of Noble v. Kenworthy,[3] Lord Mansfield said, every underwriter is presumed to know the practice of the trade he insures. If he does not know it, he ought to inform himself. It is no matter, if the usage has been but for a year. Again, in Thellusson v. Fergnsson,[4] Lord Mansfield said, that the words "at a nd from Guadaloupe,” comprehended the whole island, and protected the ship in going from port to port, round the coast of that island. Bo, in the present case, at and from Port Plata, comprehends the district of Port Plata. 2. The plaintiffs had averred in their second count, that the vessel was lost at Port Plata, which ought to have been proved. There is a particular port or harbour called Port Plata, which
within the district, she must obtain a permit from the customhouse for that purpose.
Several underwriters and officers of, different insurance companies ™ the city of Nem-York, testified, that they had frequently insured vessels engaged in trade to the city of St. Domingo, and if the insured wished to load on the coast, it was the practice to insert express permission in the policies for that purpose; and that for granting such a permission, an additional premium was demanded.
It appeared also, that it was very rarely, if ever, that a cargo of woods could be obtained at Port Plata; but it ivas the course of the trade, to go along the coast to obtain cargoes.
A verdict was found for the plaintiffs, subject to the opinion of the court, on a case containing the above facts.
Anthon and Hoffman, for the plaintiffs, contended, that the defendant having refused to pay, solely on the ground of a deviation, he had admitted the sufficiency of the preliminary proofs.[5]
Wells, contra, insisted, 1. That, as there had been no preliminary, proof of interest, the plaintiffs were not entitled to commence their action.
p. 195gives its name to a revenue district of considerable extent. The port and district of Port Plata are as distinct from each other, as the port of New-York and the district of the port of New-York, under our revenue laws. The insurance in this case is, at and from the port or harbour of Port Plata, not from the district of Port Plata. Next, as to the usage of trade, in going along the coast to obtain cargoes. Usage of trade forms a part of the law of a country i and the law of a country is not to be proved by witnesses accidentally picked up in the street. Only two of the witnesses, casually met with, had ever been on the coast. Marshall[5] says, “ Witnesses may be examined to prove a usage explanatory of a clause in the policy; but their opinion of its meaning is not evidence.” Again, “ The force of usage is not to destroy the law. Usage is to be consulted only where the law is doubtful. Where the law is clear, it must prevail. The law is permanent, but usages sometimes change, and often disappear with the circumstances which gave them birth.” The trade to Port Plata is a recent trade for American vessels. This appears to have been the first vessel from the United States, engaged in that trade. The presumption of a knowledge of the usage of the trade cannot, therefore, be fairly brought home to the defendant. And usage of trade is allowed to govern, merely because parties are presumed, from the circumstances, to know it, and form their contracts accordingly. In Smith v. Wright,[6] the court said, The true test of commercial usage is, its having existed a sufficient length of time to have been generally and to warrant a presumption that contracts are made in reference to it.” The testimony as to the uniform practice, in insuring the trade to the city of St. Domingo, shows that where it is intended to trade along the coast, a permission is inserted in the policy, but not without an additional premium. The port and district of Port Plata are different places, and must be accompanied with very-different risks.
The two points raised upon this case, are,
1. That the preliminary proof was not sufficient.
2. That there was a deviation, and the vessel lost in consequence of it.
p. 196
1< The protest of the captain, stating the loss, was produced to the agent of the defendant. The register, proving the plaintiffs’ interest in the vessel, was not produced, but as the underwriter made no objection to the deficiency of the preliminary proof, and placed his refusal to pay, specifically and solely on the ground of deviation, he must be deemed to have admitted the plaintiffs’ interest in the vessel, or to have waived the necessity of producing the proof of it.
2. The question on the merits is, whether going to Susua was not a deviation. The voyage insured was at and from Pori Plata, St. Domingo, to New-York; and the vessel was shipwrecked and lost in going from Port Plata to Susua. She had a permit from the government at Port Plata to go there, for her loading of mahogany, and would have been obliged to return to Port Plata for her clearance. This Susua is a bay or open road, about 4 leagues east of Port Plata, and is dangerous when certain winds blow; and it is included within the district of Port Plata, which district stretches for 100 miles along the north coast of Spanish St. Domingo. The very statement of the fact is enough to show, that sailing from Port Plata to Susua was not sailing from Port Plata to New-York, for Port Plata and the revenue district of Port Plata, are very distinct objects, and the customhouse and port of entry are confined to Port Plata proper. The perils must be very distinct, and very greatly increased between a vessel sailing from Port Plata to New-York, and from Port Plata, along that extensive and dangerous coast, which the district embraces, and then to New-York. Nothing short of a most clear and well settled and well understood usage, would be sufficient to include both objects in the simple name of Port Plata. On this point the evidence in the case is decidedly against any such usage or understanding of the trade. It would appear, from the case, that a liberty to trade on the coast included in the district,, would not be granted without an increased premium, and would require a special clause for the purpose.
The defendant is, accordingly, entitled to judgment.
Judgment for the defendant