Majority
p. 473David Dows and others, plaintiffs and appellants, vs. The Howard Insurance Company, defendants and respondents. (Before Robertson, Oh. J., Monell and McCdnn, JJ.) Heard December 24, 1867; decided January —, 1868.
Headnote
1. Where “ ice ” is excepted from the perils enumerated in a policy of insurance, as those assumed by the insurers, upon a cargo of a vessel described therein as “lying in the port of New York,” the latter are not liable for a loss occasioned by such peril to the cargo while such vessel was being fastened to a pier in the East river in the city of New York, just after having been towed from her previous berth in the Hudson river, although the enumerated perils were declared in the policy to be those “ on said trip or voyage, or while lying up as aforesaid,” without any mention in such policy of a trip or voyage of any kind; and a mere permission was given in such policy to tow such vessel “ from place to place in New York harbor.”2. The loss in such case must be deemed to have occurred while the vessel was “lying up,” within the meaning of the policy, and therefore as not'having occurred so as to make the underwriters liable.
3. The introduction of a written clause, in a policy upon a vessel in a port, specifying, the perils insured against, confines the perils to those therein mentioned, and thus, modifies any more extensive ones embraced in the printed part of the policy.
Appeal from a judgment entered upon the report of a referee. The action was upon a policy of insurance of $3300, on a cargo of wheat. The facts established were as follows : On the 18th December, 1860, the appellants received from the- respondents a policy of insurance upon a cargo of wheat contained in a canal boat, [The W. H. Platt,) for one month only;- in which permission was given that the boat be towed from place to’place in New York harbor. It excepted theft, robbery, ice or barratry, from the perils, insured against. On the 14th of January, 1861, such canal boat, with the wheat on board, after having been towed from her berth in Jersey city, in the state of New Jersey, to a pier 36, East fiver, in New York harbor, while in the act of being fastened to the pier, was struck by ice and sunk. The boat received no injury, except from ice, and the injury
p. 474I. As such policies of insurance as that in question are prepared by underwriters, it is their duty so to frame them as to leave no doubt in regard to their construction, and they should be construed against the party by whom they have been prepared. 1. The defendants in the present instance, prepared a policy in many respects inapplicable to the condition of the tow boat in which the property insured was laden, or to the circumstances of this particular case'; since the insurance was effected for a limited period of time, was confined to the harbor of Eew York; and yet speaks of navigating, making trips and voyages. 2. It would be inequitable to allow this insurance company to screen itself from the payment of this loss on the ground that it has drawn its policy so badly, vaguely,“confusedly, and ambiguously, as to permit a construction which will destroy the very purpose and object which the insured desired to attain by effecting insurance.
to it caused thereby damaged the wheat to the amount insured in such policy. Other facts appear in the opinion of the court.
The plaintiffs claimed that the boat on board of which the cargo was, when the loss occurred, was neither lying up nor on a trip or voyage within the meaning of the policy, but was being towed from place to place in Eew York harbor, as provided in the written portion of the policy, and that the exceptions did not therefore apply.
The referee-held that the damage sustained by the plaintiffs from the loss and injury to the wheat was incurred from the peril of ice, which was excepted from, those insured against.- He therefore directed judgment to be entered for the defendants, and that the complaint be dismissed.
Judgment being entered accordingly, the plaintiffs appealed.
J. B. Burrill, for the appellants, plaintiffs.
p. 475II. The insured desired to effect insurance on his cargo laden on this boat; it was not his intention that the boat should remain at her then present location, or that she should lie up there, or any where else; but that the boat should be towed from place to place in the harbor, and be insured, both while lying up, and while being towed from place to place. The company, therefore, in so many words, insured the plaintiffs for “ one month, $3300, on wheat on boat W. 3. Platt, lying at Jersey city,” which might “be towed from place to place in New York harbor.” This means an insurance on the cargo on the boat W. 3. Platt, not only while lying at Jersey city; but also while being towed from place to place in the harbor, and at whatever place in the harbor she may be, whether lying up at a dock, or at anchor in the stream. The words, “ said boat may be towed from place to place in New York harbor,” are in writing, (while the other portions of the policy are printed,) and according to well settled principles, must control. (Benedict v. Ocean Ins. Co., 31 3. Y. Rep. 389.)
1. The counsel, for the defendants claims that the words, “said boat may be towed,” &c. are inserted merely to overcome the printed clause of the policy, which provides that the boats are not’ to be moved or towed from the place, where the boat is in the policy stated to be lying, without the written consent of the company. This is not so. The printed clause merely provides that the vessel’s berth shall not be changed without written consent, and is intended to apply to those cases only where vessels are insured only while lying up, i. e. at her berth. In such case, if consent were given to change the berth of the vessel, doubtless, if the vessel succeeded in changing her berth without accident, the policy would protect and cover her after she had reached the new berth, and so long as she remained there; but the company would not be liable for a loss sustained by such boat in transitu from one berth to another. The policy in question goes further; it is not restricted to insurance while lying up at the berth, (either that designated
p. 476in the policy or such other as she may subsequently acquire,) but it insures the boat while being towed from place to place, not merely while going ftom one berth to another berth, but to any place in the harbor. If the plaintiffs had effected a sale of different parts of their wheat; to be delivered on board of different vessels in the stream, and of a third part, until the whole cargo was exhausted, this clause in the ■policy would cover it in each of these cases, and permit the boat to go from one vessel to another, and, after the whole cargo had been delivered, to return to the original berth at Jersey city,, or to any other berth in the harbor of New York. The written portions of the policy being therefore inconsistent with, and relating to other circumstances, and covering other conditions of things than those provided for in the printed parts of the policy, must control. 2. The defendant’s counsel also claims that ice is one of the excepted dangers and perils insured against in this policy. The perils caused by ice being excepted from those ■ assumed by the company, “ while the said boat is on said trip or voyage, or while lying up, as aforesaid,” of course, the exception only takes effect in cases where the perils and dangers out of which ice is excepted, may be encountered. Such language as so used is, therefore, equivalent to saying,. that loss by ice will not be insured against, while the boat is on said trip or voyage, or while lying up, as aforesaid; which words are inapplicable to the case presented. There was no trip or voyage mentioned in the policy, and the words on said trip or voyage ” had no application, because no trip or voyage had been mentioned. This also shows that the printed part of the policy bears no application and is inappropriate, and that the written parts of the policy alone must govern. 3. The boat in question was not on any trip or voyage, nor was it intended or designed that she should make any; none was specified in, nor could she make any under the conditions of, the policy. The boat was neither lying up at the time of the accident, nor on a trip or voyage at that time,
p. 477in which cases alone, the exception of ice was to prevail. The clause of the policy which commences with the words “touching the perils,” and all other clauses controlled and governed by it, have no application, and may be excluded in applying the policy to this particular case. We contend that, not having application to this particular case, it may be entirely rejected, and, in that event, we must fall back upon the written portion of the policy. The written portion, whether taken by itself or in connection with other parts of the policy which are applicable to the case, will entitle us to indemnity for the loss for which we claim to recover. l. The policy is an ordinary port policy, as understood by merchants and underwriters, and carefully adapted to the exigencies of owners of vessels or cargoes lying in port at the time of insurance. It covers the risk while lying at a pier, and is so framed that permission may be given to move from place to place in port, without such moving, when assented to, being repugnant to any of the general provisions of the policy. II. The policy specially excepts from the perils insured against, theft, robbery, ice or barratry. The loss to the appellants was occasioned by ice, (an excepted peril,) and by no other cause. m. The loss thus occasioned by an excepted peril, it would seem, in the ordinary contemplation of things, should fall on the insured. The difficulty attending a recovery for such a loss, where no policy of insurance has been made, is no greater than that encountered in maintaining a claim to recover, where, although an insurance exists, it does not cover the cause of loss. It is, however, seriously contended, that, because permission was given to move the boats insured, the excepted peril of ice ceased to be excepted, and was insured against! IV. The permission to move the boats from place to place, in New York harbor, is, in no respect, repugnant to,
S. J. Scudder, for the respondénts, defendants.
p. 478or inconsistent with, any of the provisions of the policy, and especially is it not so with the provision excepting theft, ice, barratry, &c. The appellants accepted the policy as it is; paid the usual premium for insurance, where ice is excepted; received the usual permission to move their boats from certain places to certain places; did move them, and one was damaged by ice. 1. The contract must be interpreted to give effect to all its provisions, and harmonize all its intents. It is obvious that the insured intended to move their boats ; that, at the time of insuring, they were lying at different points, laden with wheat. It provides for a trip or voyage, calls for anchors, cables and rigging, and compels lights while at anchor. 2. The boats could not be moved without written permission. The insurers so prepared the form of policy to entitle themselves to regulate the mode and time of moving, and points from and to which the moving should be. If this permission had not been given, no question as to the peril of ice could have been raised. There is less danger from ice in a slip, when protected by the piers, than when in the stream. The underwriters refused to insure against ice, while the boat was in a slip, but gave permission for her to move in the stream, where greater danger existed; and, it is claimed, that thereby they assumed the risk, so carefully provided against in their policy. 3. If this permission to move struck out ice from the exceptions, it equally struck out barratry; upon the theory of the appellants, had the master scuttled the boat while on the trip to pier 36, the insurers would have been liable. Indeed, upon this theory, no danger could have been excepted, no peril avoided by the insurers, if the permission to move were in writing. V. This is not a case which comes under the rule, that,where insurance is made upon property in a special business, everything necessary to that business is excepted from the conditions of prohibition. It is not necessary for a
p. 479canal boat to be cut down by ice, or scuttled by her master, or her wheat stolen by river thieves.
The plaintiffs claim that the exceptions in the policy in this case, of injury by ice to the vessel, containing the subject of insurance from the enumerated perils insured against, did not apply to it, while it was being towed from place to place in the harbor of New York, as permitted by the policy. And they base such claim on the argument that both the enumeration of such perils and such exceptions therefrom, are only applicable while the vessel was either on some voyage or trip, or lying at the wharf, (towing from place to place in a har.bor being neither,) and that, being so inapplicable, the policy operated as a general contract of insurance against all perils usually insured against, upon vessels 'or their cargoes on the water, by .mere force of the words, “ do insure.” The defendants, on the other hand, contend that the words, “on said trip or voyage,” refer to the toiving previously spoken of, and, therefore, the injury to the vessel by ice, while being so towed, came directly within the exception of perils from those enumerated as being those against which the insurance was made.
I am compelled to differ with the learned counsel for the parties somewhat, as to both positions taken by them, notwithstanding the ingenious reasoning by which they were sustained, as well as from the reasoning of the learned referee, in the opinion accompanying his report. I would find it difficult .to arrive at the conclusions that the general expression of towing a vessel about a harbor is either navigating it, within the meaning of the policy, or a trip or voyage, according to the received meaning of those words. But in this case the towing was not made the main predicament in which the vessel was to be, while insured, but,, if any thing, it was rather to be while lying at the wharf. It was, in terms. and in fact, an exceptional permission to change the location of the subject insured, without vitia
p. 480
ting.the insurance, and required the written consent of the company before such change could be made, unless the-two clauses are irreconcilable, and the written is to control the printed. An insurance of the cargo of a vessel on a voyage, which was not to be undertaken without the written consent of the underwriters, would be either a nullity, or, at most, a mere proposal for a contract. But it would not be so in regard to merely occasionally towing a vessel insured for some fixed period, as in this case. The terms, “navigation,” “ navigating,” “ voyage or trip,” in this form- of policy, are evidently intended for vessels which are in the course of being propelled from one port to another, and while the printed part of it seems to be adapted to a vessel, either while on such a voyage, or lying at a wharf to be discharged, the greater portion of its stipulations referring rather to the former. I do not see, therefore, any peculiar fitness in terming it a port policy only. The introduction of the written clause in the one in question, undoubtedly confined the perils insured against to those while the vessel was in port, and thus modified the more extensive ones embraced in the printed part of the policy, and rendered many of its stipulations superfluous.
The mere failure, however, to describe any voyage or trip in the policy, within the meaning of those words, as used in it, could not alone render the enumeration of perils insured against, and the exception therefrom of injury by ice, inapplicable to the vessel in question while being towed. The words “on said voyage or trip ” maybe rejected as surplusage, except so far as they tend to explain the meaning of the alternative phrase, “ or while lying up as aforesaid,” and still the defendants be protected by the exception. The object of the policy was evidently to insure the cargo in question while in the port of Hew York. The entire phrase, “ on said trip or voyage, or while lying up, as aforesaid,” by making such conditions as the only alternatives, evidently meant to comprehend every possible condition in which the vessel containing the-subject of
p. 481
insurance could be placed while in that port. She was either to be.engaged in navigation or laid up. The meaning of the word lying, as used in the enumeration of the perils, is not necessarily confined to mere inertness of position, joined, as it is, with the proposition “ up,” but embraces the idea of a change from a prior state of activity to one of repose. In this case it meant a cessation of active ¿navigation, malting trips or voyages from port to port. The vessel in question did not cease to lie up whenever she was towed from place to place in the harbor, any more than if she. lay at .the wharf; lthough, for greater caution, the privilege of towing was expressly reserved. At all events the two conditions were not irreconcilable. She ceased to be in active^ service as a vessel capable of being navigated, and was kept as a mere floating warehouse, or receptacle for merchandise, to be towed or transported while afloat by external power, but even then only with the defendants permission. The words “as aforesaid’’ also included not only lying up while at a wharf, but also while being towed about the harbor. I conclude, therefore, that the vessel was injured by the excepted peril, ice, while she vyas 11 lying up, as aforesaid,” within the meaning of the policy, and that, therefore, the defendants were properly held not to be liable.
The difficulty with the position taken on behalf of the plaintiffs, is that they can only succeed by establishing that, as matter of fact, a vessel, while being towed, was neither making a trip or voyage nor lying up, within the meaning. of the policy, but in a predicament to which neither description would apply—that of being towed—and that, as matter of law, the previous general words of insurance insured against all perils usually insured against on the water. I have already dealt with the first, and the last is not sustained by any authority or writer, English or American, on the subject of insurance. On the continent of Europe, where the civil law or its modifications prevail, usage or positive enactment has defined all the perils insured against,
p. 482
and there is no need of inserting them in a policy. But I have not been able to find any authority that, in Great Britain and this country, claims that any perils are insured against other than those enumerated in the policy, and any necessarily or usually consequential ones.
The judgment must, therefore, be affirmed, with costs.