APPELLANT. *Fe 7,38. DANT).........................................
*June GEORGE W. GEROW
(PLAINTIFF)....RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
SIR W. J. C.J.-This cause was before this court on a former occasion when a new trial was ordered on the ground that the only material question in the case, namely, whether Lobos, an island from 25 to 40 miles distant from the mainland of South America, was a loading port on the western coast of South America, under the policy which insured the vessel for a voyage from Melbourne to Valparaiso for orders, thence to a leading port on the western coast of South America or San Francisco, and then to a port of discharge in the United Kingdom, had been withdrawn from the jury.
On the second trial this question was distinctly left to the jury in these words " Is Lobos, a guano island, a loadingport on the western coast of South America?" To which the jury answered, " Yes."
.I think there can be no doubt that the evidence established that Lobos was a loading port, though an open roadstead where the loading of ships with guano cargoes took place, and to which vessels frequently resorted and used for the purpose of loading. The cases cited by Mr. Justice Fraser in his very able and exhaustive judgment clearly established this.
Then, -was this a loading port on the west coast South America within the terms of the policy? There was evidence given to show that in a commercial sense the terms a " loading port on the western coast of South America " would include the guano islands; the contention appears to have been that no island whatever could be such a loading port; that the terms used could only mean the mainland of South America. This was certainly a question to be determined by the usages of trade and the meaning put on them by the mercantile world, and in this case evidence was admitted to show that in mercantile acceptation "a loading port on the western coast of South America" included the loading ports at the guano islands, which formed a part of the territorial possessions of Peru or Chili, a portion of territory comprised under the general words South America.
There was the evidence of Captain Lordly, who says: "From Valparaiso we went to Lobos de Afuera, a port on the western coast of South America."
Captain Thompson who had been twice at different guano islands says: " I think Lobos was a loading port on the western coast of South America."
Captain Moran, who had loaded several times at the guano islands, considered the guano islands as loading ports on the western coast of South America. Then there was the evidence of a member of the firm of Troop & Son and of George F. Smith, large shipowners and charterers,
T-E who very c!early showed that, in a commercial point of view, a loading port on the west coast of South America would include the mainland and islands, and that the principal cargoes shipped were nitrate and guano, nitrate from the mainland and. guano from the islands; and the evidence that Ranney, when the policy was effected, said to Gerow that if he would assure him that the cargo to be carried was guano instead of nitrate -he would do the insurance an eighth or a quarter less, clearly showing that Ranney fully understood that the vessel had the right to load guano which could only be done at one of the guano islands.
I know of no persons more compel ent to speak on this subject than experienced ship-owners and charterers and ship masters. Mr. Justice Fraser shows very clearly that there was a constructive total loss. There is nothing in the objection as to want of preliminary proof and if there was it was clearly waived.
Mr. Justice Fraser's very able and exhaustive judgment relieves me from the necessity of discussing at greater length this case.
I quite agree with the court below that the verdict should not be disturbed.
and JJ. concurred.
GWYNNE J.-The only question remaining on this action, which is one upon a policy of marine insurance for the loss of a ship of the plaintiff insured by the appellants, (a point as to whether there was a constructive total loss having been abandoned by the appellants at the hearing), is whether or not the Island of
Lobos, which is a guano island, lying west of the
Peruvian Coast, in South America, is a "loading port the west coast of South America," and whether the loading of the ship with guano there would be a deviation from the voyage for which the vessel was insured, namely, " from Melbourne to Valparaiso for orders, thence to a.loading port on the western coast of South America or San Francisco, then and thence to a port of call and discharge in the United Kingdom, &c. The question thus raised is one of fact merely, and the rule to be applied is that in construing such a contract its terms must be taken to have been used "in their business sense," as is the expression of some judges, or "in their common and ordinary sense," in relation to the subject matter, as is the expression of others, or, " in their popular and commercial sense, " which is the expression of others, all of which Brett, Master of the Rolls, in Sailing Ship Garston Co. v. Hickey deemed to be equivalent phrases. The language of Lord Herschell in Hunter v. Northern Marine Insurance Co. as applied to the term "port," is precisely applicable to the present-and as so applied will read:
Now, the evidence is abundant, that among such persons there is such a common understanding which (founded apparently upon the fact that guano is one of the chief articles of export from the west coast of South America, and that it is got only upon islands such as Lobos), is that the terms used in the policy sued upon do cover a voyage to Lobos for guano and loading there. In the present case there is this further evidence, that at the time of the insurance being effected the guano islands were spoken of by the plaintiff as places to which the vessel he was insuring might be sent for guano., and that the defendants offered to insure him for a less premium than he paid if he would limit the vessel to loading with guano alone, which he could not undertake to do for she was going to Valparaiso for orders. It must, therefore, be held that the going from Valparaiso to Lobos and loading there with guano, did not constitute a deviation from the voyage for which the vessel was insured; the plaintiff, therefore, is entitled to retain his verdict, and this appeal must be dismissed with costs.
J.-I agree that this appeal should be dismissed and the judgment affirmed on the grounds fully and ably discussed in the judgment of Mr. Justice
Fraser in the court below, and expressed in that now delivered by my brother G-wynne.
Appeal dismissed with costs.