Stevens v. Commercial Mutual Insurance — 13 N.Y. Super. Ct. 594

Majority

p. 594

Samuel Stevens, and others v. The Commercial Mutual Insurance Company.

Headnote

The policy of insurance on which this action was founded, contained a warranty that the vessel insured should not use any foreign port or ports in the Gulf of Mexico, but by a memorandum afterwards indorsed on the policy, the vessel was permitted to use the port of Laguna for one voyage. She sailed on the voyage thus permitted, but on her arrival at Laguna was not permitted to enter and land cargo until she had made an entry at some neighboring port in Mexico. She then proceeded to Sisal, a port in the Gulf of Mexico, about seventy leagues distant from Laguna, and after her arrival there, was driven ashore in a storm and totally lost.

Held, that the voyage from Laguna to Sisal, whether the custom regulations that prevented an entry at Laguna were or were not known at its commencement, was not protected by the memorandum on the policy, and was therefore a plain breach of the warranty in the policy itself, by which the defendants were discharged from the loss.

Complaint dismissed, with costs.

(Before Hoffman, Slosson and Woodruff, J.J.)

January 15;

March 21, 1857.

Case upon a verdict in favor of the plaintiffs, subject to the opinion of the court at General Term, to be heard there in the first instance, with liberty to enter a non-suit if the court should be so advised, and with liberty to turn the case into a bill of exceptions.

The following are the material facts of the case, as established by the evidence on the trial and not disputed:—

Messrs. Brett, Vose & Co. procured for the plaintiffs a policy of insurance upon time on the brig Inda, on account of whom it might concern, from the 3d of October, 1852, to the 3d of October, 1853, in the amount of $5000. The policy contains the following clause :■ —“ Warranted not to use ports and places in Texas, except Galveston, nor foreign ports and places in the Gulf of Mexico, nor places on or over Ocrocoke Bar.”

On the 6th of January, 1853, an indorsement was made on the policy to the effect, that the sale of the brig to Stevens, Peabody & Co. should not prejudice the insurance.

On the 7th of October, 1853, an indorsement was made on the policy, extending it for a further term of one year.

p. 595

On the 8th of November, 1853, the following indorsement was also made:—“November 8th, 1853, for the additional premium of two per cent/ the brig ‘ Inda’ has permission to use the port of Laguna for one voyage, without prejudice to this insurance, additional premium $100.”

The brig sailed from Martinique, in ballast, on the 11th of December, 1853, under a charter, bound for Laguna, to take in a cargo there for Marseilles. She arrived at Laguna on the 25th of December, 1853, but the custom-house officers would not allow her to load there until after she had been entered at a neighboring port, Laguna not being then a port of entry.

Laguna had been previously to the 1st of June, 1853, open to foreign vessels, but was closed by the Mexican regulations of the 1st of June, 1853, and these regulations were in force when the Inda arrived. After advising with merchants there, the captain chose Sisal as the most convenient port to go to for the purpose of entering the vessel, and sailed there for this object.

It had been customary after the regulations of the 1st of June, 1853, for vessels to be entered at some neighboring port, before using Laguna.

The brig might have entered at Vera Cruz, Talasco, or Gampeachy, but there were objections to all these ports, and the cholera was prevailing at Oampeachy, which rendered a visit there extremely perilous.

The brig arrived at Sisal about seven o’clock, A. M. The master went ashore with the custom-house officers to enter her, and in the afternoon of the same day the brig was driven ashore in a squall, and became a total loss.

No question is made as to the preliminary proofs, nor as to the interest of the plaintiffs in the insurance.

Sisal is about seventy leagues from Laguna, Oampeachy about forty, and Talasco about the same distance. Sisal is near the north-western Cape of Yucatan. It would be the first port made, of the three named, on a voyage from Martinique to Laguna. A vessel from Sisal would run down the Gulf nearly south to Cam-peachy, and thence on about the same course to Laguna. Talasco lies farther west, the coast so tending from Laguna.

Of the adjacent ports of entry, Vera Cruz was the remote west, and was dangerous in the winter. To reach Talasco, it would

p. 596

have been necessary to proceed over a dangerous bay, and go up a river a considerable distance. At Campeachy, the cholera was raging, and it seems to have been a judicious act in the master to choose Sisal as the place of entry.

F. B. Gutting, for the plaintiff.

D. Lord, for the defendant.

This case appears to me to be a clear one. There was an express warranty against using any foreign ports or places in the Gulf of Mexico. There was then an exception or qualification of that warranty by permission to use the port of Laguna for one voyage. The exception is limited to that port.

If the parties had knowledge of the Mexican port regulations when the vessel sailed, then the voyage to Laguna, with the necessity of going to another port in the Gulf, and actually passing by Sisal on the way and returning to it, was a plain infringement of the warranty. But if all the parties were ignorant of the regulations, then the question is, whether the insurers, who guarded themselves with a warranty, and made an exception of one port, can be held liable when the vessel reached that port, and was compelled, by these regulations, to go to another ?

It cannot be imagined that the insurers intended to cover a voyage in which the vessel had to retrace her path seventy leagues to the northward, in the Gulf of Mexico, and to return again the same distance to Laguna. The-warranty rejects it, and there is nothing in the case to justify an inference of such a permission.

I am of opinion that the complaint should be dismissed.

Judgment accordingly.