Majority
]5 MARINE INSURANCE COMPANY
APPELLANTS; (DEFENDANTS) .............................. )
AND
*Feb.
R
E. IRVINE (PLAINTIFFS) ...........
RESPONDENTS. ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Judgment of the Court
KING J.-This action is on a policy of marine insurance made on lst June, 1892, at St. John, N.B., on the ship Minister of Marine-" lost or not lost at and from Sydney, Cape Breton, to St. John, N.B., and thence to a point in the United Kingdom."
The defence is that the policy never attached, either because the vessel never was at the port of Sydney, or because she was never there in a condition of physical safety.
At the time of effecting the insurance the vessel was on a voyage from Fleetwood, England, to Sydney, for orders. On the morning of the 4th June she arrived off Sydney harbour, and had shortened sail expecting orders but was still standing in with a free wind, when she received orders from the signal station at Flat Point to proceed to St. John, N.B.
It was then attempted to put her about on her course to St. John, but owing to the vessel being light and with reduced sail, and the wind fresh, she missed stays, and was then wore around, and in the course of this manoeuvre came inside the line of the two headlands, Flat Point and Cranberry Head, at the mouth of the estuary leading to the town of Sydney. She was then proceeding out in the usual course of outward bound vessels when the wind shifted and, again missing stays, she went ashore about three-quarters of a mile inside of Flat Point, and sustained a partial loss.
Upon the evidence before it the court (having power to draw inferences of fact) found that the vessel was at the port of Sydney in its commercial sense, the contention for defendants being that the entrance of the port was five or six miles further inland at what are known as the north-west and south-east bars.
The word " port " is not used in the description of the risk, but may be implied in the expression " at and o. from Sydney."
The term, however, in commercial documents, such as charter-parties and policies of King marine insurance, ha. not a fixed meaning, but is to be considered as used in its popular or commercial sense, i. e., as applying to what would be so understood by shipowners, shippers and underwriters.
Sailing Ship Garston Co. v. Hickie (1); Hunter v. Northern Marine Ins. Co. (2).
In the latter case Lord Herschell says : In the absence of any common understanding to the limits of a particular port) how the queition to be determined ? It appears to me that you must then consider what are commonly understood to be the characteristics of port, and what are in general the tests for determining its limits, and apply the conclusions arrived at to the particular case.
A port a place where a vessel can lie in a position of more less shelter from the elements with view to the loading or discharge of cargo.
The natural configuration of the land therefore often a most important element in determining what are the limits of port. All the waters within given boundaries which possess the common character of safety and protection would be generally admitted to be. within its ambit. Where, however, a port one of sevelal situate the same river, it obvious that the natural configuration of the land is not of the same importance and does not afford the same guidance. Further, it seems reasonable that where there is a known and recognized user of protected waters for purposes of security for a known commercial purpose other than for the loading and discharge of cargoes, the limits of a port may be considered (according to the subject matter of the contract and subject to the whole facts of the case,) as intended to be extended to include such protected waters.
In other words the parties may be deemed to have contracted with reference to such user (1) Q.B.D.
(2) App. 726.
From its geographical position at the mouth of the Gulf of St. Lawrence and the nearest port to Europe on the Atlantic coast of America, Sydney is a recognized port of call, and the fact may be assumed to have been known to defendants.
Then as to the configuration of the land, the two headlands, Flat Point and Cranberry Head, are (as al- Jready stated) at the mouth of the estuary which leads to the town of Sydney, Flat Point on the south-east and Cranberry Head on the north-west.
At the mouth the width is about three miles, but it soon narrows and preserves a mean breadth of about one and a half miles for a distance of five or six miles, when by the projection of the north-west and south- east bars it is reduced to less than a mile. Passing these it widens again and divides into two branches called the north-west and south-west arms. The town of North Sydney is on the north-west arm just inside of the north-wEst bar. The town of Sydney is on the south side of the south-west arm about four or five miles inland from the bar. The port of North Sydney as defined for revenue purposes embraces the north-west arm and is limited towards the sea by the line of the north-west and southeast bars.
For revenue purposes the port of Sydney embraces the south-west arm and extends to a line drawn from Point Edward, the tongue of land dividing the two arms, to the south-west bar.
All the wharves are inside these lines and the lading and unlading of goods is carried on there.
A chart of Sydney harbour published in London according to Act of Parliament at the
Hydrographic office of the Admiralty was in evidence. This chart was from surveys of Capt. Bayfield, R.N., and was first published in 1851, and was stated by witnesses on both sides to be authoritative and in general use. In this, Sydney harbour is shown to extend to R the headlands. In an illustration upon the face of the chart representing the entrance of the harbour, i. its gate or beginning, as it appears from a vessel approaching it, Flat Point lighthouse is shown bearing west-south-west one mile, thus clearly representing that point as at the south-easterly entrance to the harbour.
When vessels are bound to Sydney for orders they King J. never enter the port as defined for fiscal purposes. One of the defendants' witnesses says that it " would be taking money out of the owner's pockets by doing so."
Accordingly such vessels are brought to anchor (where they require to anchor) at different points outside the limits of the statutory port. Usually they come in near the bars, both as being more protected and as giving better facility for communication with the shore.
Mr. Smith, a witness for defendant, a commission merchant, ship broker and insurance agent, residing at
Sydney, was of opinion that the port extended only to the bars.
As to the practice of vessels visiting the port for orders, he says that
Andrew Kenny, a witness for plaintiffs, a shipmaster, says that the two points forming the entrance to the harbour are Cranberry Head and Low Point, and that all the water inside these bounds is known among maritime men as Sydney harbour; that he has been T~i there six times and always anchored outside the bars. SIR
John McDonald, a witness for defendant, and a master mariner, residing at Sydney, says that if he was anywhere inside the capes he would consider that he was in TOOrP.
the entrance to the barbour
*
* For Custom-house purposes I had to go inside the bars, but in calling for orders the pilot has never taken King J.
me to the buoys.
I anchared her always outside the buoys until I got my orders.
If I was ordered to load there, of course I would come inside and have to pay my tonnage; if I was not, I would get my orders and go outside without paying any dues, only the pilotage.
Q. Whereabouts do you anchor outside these bars ?-A. It depends on the number of ships in the roadstead from the buoys out. If I was beating in the harbour with a moderate westerly wind blowing, I would not hesitate to anchor anywheie inside the capes, but not to lay long. Q. How far inside the capes 7-A. Well, even off the capes here
* * I have seen them anchor all the way out pretty near to Cranberry Head, just according to the number of ships in the roadstead.
And on cross-examination:
Q. I understand you that for Customs purposes the legislature has created two ports inside the harbour 7-A. Yes.
Q. One being Sydney and the other North Sydney ?-A. Yes. Q. And that is simply for Customs purposes 7-A. Yes.
Q. Well, among sea-faring men that is known to be simply for Customs purposes, is it not ?-A. Yes, if I go inside that line I come under the Customs regulations.
Q. But where your vessel is bound to Sydney for orders, you have over and over again stayed outside the bars 7-A. Yes, where the vessel was bound there for orders I have never gone inside the bars.
Q. In other words, in calling at Sydney for orders you have never gone within what is defined as the Customs port 7-A. No, I would be taking money out of the owner's pockets by doing so.
Walter McLean, also called for defendants, a master mariner for 12 years, says that he had been in Sydney harbour about six times and only once went inside the bars, being then chartered to load there; that Sydney is a port to which a great many vessels go for orders; that in anchoring outside he always considered he was in Sydney harbour:
Richard Bradley, also called for defendants, a master mariner since 1878, had frequently been to Sydney for orders and always came to anchor between the headlands and the bars. He says that the place along there is, he supposes, called Sydney; that is where he was going for orders; that he has seen vessels anchored along there most anywhere.
This on direct examination. On cross-examination, he was asked where he considers that the harbour line begins:
Now this is indeed the testimony of navigators, rather than of shipowners and underwriters, but practices so uniform and reasonable and founded on consideration for the shipowner's benefit may fairly be presumed to be known to and approved of by them. Probably any master who should go inside the bars and so incur charges would very soon hear from his owner.
Besides, the charts furnished by the owners to the vessels show the harbour line as claimed. Then this uniform practice of navigators might reasonably be known to persons engaged in the business of underwriting.
Having regard then to the recognized mercantile use of this port as a port of call, and to the natural configuration of the coast, to the admiralty charts of Sydney harbour, and to the testimony of all the witnesses as well for the defendants as for plaintiffs, it would seem that enough appears to support the finding of the court as to the area which served the purposes of the port in a commercial sense.
This being so, it was not necessary that the ship should have come to anchor or be moored.
The first arrival at the port is meant, and these words are implied and always understood in policies. Motteaux v. London Co.
It is held that the only qualification is that the vessel shall be there in a state sufficient repair or seaworthiness to be enabled to be J. in reasonable security till she is properly repaired and equipped for the voyage.
Parmeter v. Cousins (2); Bell v. Bell (3); Haughton v. Empire Marine Ins. Co. If in such state the condition of seaworthiness is commensurate with the risk. Here the ship was clearly seaworthy in the fullest sense, and was in physical safety, and might have continued on further up the harbour without the least risk. The danger she met was in her attempt to get out of the harbour. It was therefore a peril of navigation subsequent to the first arrival in the harbour in safety.
In these views, the appeal should be dismissed. Appeal dismissed with costs.