Nelson v. Sun Mutual Insurance — 40 N.Y. Super. Ct. 417

Majority

p. 417

WILLIAM NELSON, Jr., Plaintiff and Appellant, v. THE SUN MUTUAL INSURANCE COMPANY, Defendant and Respondent.

Headnote

marine insurance.

A policy that states in the written portion the sum insured and the risk taken in the following words: 1 ‘ Sum insured six thousand two hundred and fifty dollars, port risk in port of New York, upon the body, tackle, apparel, and other furniture of the good ship called “The Confidence,” designates only such risk as is defined by the words “port risk in the port of New York,” and designates no risk upon any part of a voyage to be made by the ship.

Oral proof may be given to establish what the risk was, and to show what risks were covered under the words “ Port Bisk.”

The commencement of a voyage from the port of New York terminated the risk under such a policy.

Before Curtis and Sedgwick, JJ.

Decided February 7, 1876.

Appeal from judgment dismissing complaint.

The action was upon a policy of insurance, which in form was a marine policy. The written part insured

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the plaintiff “at and from October 5, 1867, at noon, to November 5,1867, at noon. Sum insured six thousand two hundred and fifty dollars, port risk, in port of New York, upon the body, tackle, apparel, and other furniture, of the good ship called ‘ The Confidence,’ ” Then followed the printed part, such as is generally used in a voyage policy, a valuation being inserted. The spaces left for the termini of a voyage were blanks. The clause commencing “Touching the adventures and perils, which The Sun Mutual Insurance Company is contented to bear,” ended,- “and all other perils, losses,, and misfortunes that have or shall come to the hurt, detriment, or damage of the said vessel or any part thereof.”

The answer averred that the loss did not happen during the continuance of any of the risks taken by the defendant, but after the ship, completely prepared for a voyage, had broken ground, and had commenced her voyage.

On the trial before a judge and jury, it appeared that on October 28, 1867, the ship was laden, manned, and equipped for a voyage to Glasgow, and was moored to a wharf or pier for the purpose of proceeding on her voyage. The moorings were cast off, and a steam-tug took a hawser from the ship to tow her and did begin to tow her out of the pier. Before the ship had been towed more than twice her length, she was ■caught by a strong tide, which swung the ship round so that she struck heavily on the reef near Jackson Ferry. She struck twice. Her keel and bottom were damaged, and for this the action was brought.

Against the objection and upon the exception of the plaintiff, the defendant was allowed to ask several witnesses, who were underwriters or officers of marine insurance companies, what was the meaning of the term “port risk” in the business of insurance. One answer was, “'a risk on the vessel while in the port of

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New York, as distinguished from a voyage risk.” The plaintiff gave testimony that he was a merchant, and accustomed to insure a great deal; and to the question, “ What do the words ‘ port risk in the port of New York’ among underwriters and merchants mean?” he said it “ covers all marine risks while the ship is in port.” Other testimony on this point was given on both sides.

On the whole case the court dismissed the complaint, on the ground that the “ port risk” as used in the policy had ended before the striking upon the reef, -the ship then having begun a voyage.

George A. Black, for appellant.

Joseph G. Choate, for respondent.

If all the printed parts of the policy which specify the risks insured ■against are disregarded because they in words refer to a voyage, no voyage being described in the policy, then the only risk designated by the policy is such •as is defined by the term “port risk.” I learn from Dows v. Howard Ins. Co. (5 Robertson, 481), that on the continent of Europe, usage or positive enactment has defined all the perils insured against, and there is no need of inserting them in a policy; but the judge giving the opinion said: “He had 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.” If this be so, still it may be that when risks are not enumerated, but there is a general contract of insurance, the law has resources enough-to determine as a question of fact or ■of law what it is that the contract insures against. It Is, however, the universal custom to enumerate the

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risks. In this case, if we have to rely on the words “port risk,” as a statement of the perils, we can not see in them the character of any peril, in the concrete. They describe nothing by which a ship may be damaged. There are sea risks, fire risks, danger from pirates, &c., in port, as there are on the high seas (Duval v. Commercial Ins. Co., 10 Johns. 278 ;. Patrick v. Com. Ins. Co., 11 Id. 9): As “port risk” does not designate any of these in particular," if we reject wholly the printéd enumeration of perils, the policy would be without any specification of perils insured against. To uphold all the parts of the contract, as far as can be, it is only necessary to read the whole of the policy, as limited by the written part “ port risk in port of Hew York.” Whenever the words, “this present voyage,” “take upon itself in this voyage,” &c., &c., occur, the word “voyage’* should be deemed a “falsa demonstration not annulling entirely that part of the contract where it is, but,, in fact, intended to designate the time and the circumstances embraced in the written part. Whatever is peculiar to a voyage, or particularly to be applied to a voyage, is to be disregarded. Ho voyage is described. Therefore it must also be said that the policy does not contemplate taking a risk upon any part of a voyage to be made by the ship unless it is included in the written part. This I believe to be a correct application of the cases in this state on this point (Grousset v. Sea Insurance Company, 24 Wend. 206 ; Leeds v. Mechanics’ Insurance Co., 8 N. Y. 356 ; Frichette v. State Mutual Fire, &c., Ins. Co., 3 Bosworth, 190). The loss to the ship came from a peril insured against, so far as it was in its character a sea risk, i.e., in the tide sweeping it against the rock. We can not, however, decide that the dismissal of the complaint should be sustained on the ground, that the peril referred to was not extraordinary. This, if

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averred as a defense in the answer, was not alluded to upon the dismissal of the complaint. I am of opinion that the principle which apply to general insurance in voyage policies, viz., that the implied warranties call for the insured preserving himself against the ordinary action of the winds and sea, applies to such a policy as this, keeping, however, in view its subject-matter ; and that a loss from the ordinary action of the tide is not to be borne by the defendant. But the plaintiff should have been apprised of the particular defense, as he might have given evidence that the tide or the risk was extraordinary.

We have said that “port risk” is not the designation of the intrinsic character of any peril likely to cause damage. To be sure, it is not impossible that a port might have a risk so peculiar to itself that such a risk would be so described among insurers and merchants. There could be no objection to giving oral proof of what this risk was, and to show that the words were used to designate it. There is no claim, however, by the defense that “port risk” was used in this way. The word port.as here used refers to the extrinsic relations of the risk as existing while the ship is in port, not simply, however, as within the territorial lines of the port, but as using the port for the purposes of a port, up to the time when the voyage should begin, and to the time when the port is used to begin the voyage therein. The apparent object of the clause-is to state, by the use of a “ generalissimum nomen” viz., risk, what the insurers will bear the consequences' of, and to exclude what risks they will not bear. The-distinction, as the learned counsel for the respondent urged, includes “port risk” as different from “voyage risk,” which is excluded. Such distinctions are-usual in marine insurances. In time-policies there is-often a provision that if at the end of the time the vessel is at sea, the insurance shall continue, &c. It

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is held in such cases, that if before the time expires, the vessel rs ready for sea, quits her mooring, and endeavors to get out to sea, but is kept back by stress of weather, and comes to anchor, and after that suffers from a sea-peril, she, within the contract, is at sea, although, in fact, she is in a port or in a canal leading to the sea. Her being in the port is but an incident unavoidable on her part to her sea voyage (Bowen v. Hope Ins. Co., and The Same v. Merchants’ Ins. Co., 20 Pick. 275 , as cited in note 3 to p. 55, 2 Parsons Mar. Ins. ; Union Ins. Co. v. Tyson, 3 Hill, 119 ; American Ins. Co. v. Hutton, 24 W. 330 , aff’d 1 Hill, 321 ).

In this particular case the words “port risk” are connected with the words “in port of Hew York,” and the main question is, when did the risk taken, end. The cases frequently determine when a risk ends, by considering when another begins, although the latter is not expressed in the policy, or vice versa. It is upon the natural supposition that risks are classified and ■ words appropriate to the classes are used. When words used for one class appear in a policy, the risks indicated • thereby are exclusive of the risks indicated by other words which have been generally employed.

A ship was insured “at and from,” and warranted to sail, by a certain day. She did not sail until a later time. The question was, whether the premium paid could be recovered back, on the ground that no risk had ever attached under the policy. The court held, that there was a class of risks, indicated by the word “at” when the vessel was in port, distinct from the risk attached to the voyage, indicated by the word “from,” and that although the breach of warranty prevented the attaching of the latter, there was an insurance while the vessel was in port, before the voyage (Hendricks v. Commercial Ins. Co., 8 John. 1 .)

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The words “at and from Hew Orleans, Campeach, and Havana,” although they may imply that the vessel may go from one to the other, as commencing a course of trade, do not imply that the vessel shall go “to” any of the ports as prescribing the end of the voyage (Grousset v. Sea Ins. Co., 24 W. 207 ).

The words describing a voyage as “to” a port, continues the voyage beyond the territorial line of the port until the vessel is moored in the port; yet the word “to” implies literally no more than up to the port, and no further,and on the other hand, a “voyage from” a port includes that part of the voyage which, at its beginning, is in the port.

In the same way the words in the present policy are intended to exclude risks which would be taken upon a voyage “from ” the port of Hew York. I therefore am of opinion, that as matter of law the court might hold that the commencement of a voyage terminated the risk under the policy.

On the other hand, I think the defendant was at liberty, if the court chose to allow it, to examine experienced underwriters or merchants to show how the-word was used in the business of insurance, or rather what it meant, solely, however, upon the ground, that it is evidently a word formed for business and technical purposes. It is a composite word, which gets its form in a manner unusual in the formation of words in general. If it could be done, there was no objection to show that “voyage risk” and “port risk” were used distinctively. I think the court was bound to see that such was the use of the words “ port risk ” in the policy, and therefore in a sense it was unnecessary to examine witnesses; yet I think the testimony would be an assistance to the court in coming to a conclusion. I do not, however, think that the meaning of the words could have been left to the jury, inasmuch as the

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policy taken together fixed the meaning of the clause.

In so far as the witnesses, in endeavoring to define the term, gave a statement of the legal effect of the contract, or an opinion as to the time when the risk ended, the testimony was incompetent. The value of the testimony was exhausted when it had given the use and meaning of the words.

I am of opinion that the judgment should be affirmed with costs.

Curtis, J., concurred.

Cases cited

Duval v. Commercial Insurance 10 Johns. 278 N.Y. Sup. Ct. p. 420