Sea Insurance v. Fowler — 21 Wend. 600

Majority

p. 600

The Sea Insurance Company vs. Fowler and others.

Headnote

Where an insurance was effected at New York on goods laden or to be laden on board the brig Abeona, from one port to another, and the goods were shipped in a vessel called the Abeona, which subsequently was lost, and it appearing that there where two vessels frequenting the port of New York called Abeona : one a brig, and the other a schooner, half brig, brigantine or hermaphrodite brig, and that the goods were embarked in the latter vessel, it was held, that without proof that the vessel in which the goods were laden was in the contemplation of the parties at the time of the contract, there was no room for the presumption that the parties meant a different vessel from that described in the policy.

Error from the superior court of the city of New York. Fowler and others brought an action against the Sea Insurance Company, on a policy dated 28th October, 1835, by which the defendants insured goods and merchandizes valued at $3000, laden or to be laden on board the good brig Abeona, at and from New York to Newfoundland. The goods were shipped'at New York, in a vessel called the Abeona, which was lost on the voyage to Newfoundland, in the protest made by the master and one of the seamen, the vessel was uniformly called a schooner. The plaintiffs, after reading certain admissions and the protest, rested the case, and the defendants moved for a nonsuit, on the ground that it appeared by the policy that the cargo was insured on board the brig Abeona, and it appeared by the protest that the

p. 601

schooner Abeona was lost. The plaintiffs then called a witness who testified that they shipped a cargo to Newfoundland by the vessel Abeona, the vessel that was lost ; that, she was an hermaphrodite brig, and was lying in New York at the time the insurance was effected ; that there was no schooner Abeona in port at that time; that "this was a colonial vessel, and vessels of her construction were in the colonies sometimes called schooners, and sometimes brigs. W. Newcomb, inspector of the New York Marine Insurance Company, said he had described this vessel in his book as an half brig, brigantine or hermaphrodite brig, being a brig forward and a schooner aft •; that she was hot an uninsurable vessel, but the company did not like to insure her; they take risks freely on cargoes in vessels of that class. Two other witnesses testified that she was an hermaphrodite brig, and C. Holmes, im specfor of the Union Insurance Company, testified that she was a half brig.

Oh behalf of the defendants, their secretary testified that the plaintiffs on the 16th October, 1835, applied in writing to the defendants for insurance on goods valued at $1000, per the British schooner Abeona from St. Johns to New York; ¡this was on the voyage to New York. The defendants had not inspected, and knew nothing about the vessel, .but insured on the representation, of the plaintiffs, that she was a fair vessel.. On the 28th October, 1.835, the plaintiffs applied in writing for insurance on .the brig Abeona from New York to Newfoundland, and the .policy • in question was issued. When the .last mentioned application was made, the defendants^ inspector was not in, and the president referred,to the books to see how the vessel stood, but she was not on the books of the company, As the amount was considerable, and the prejudice against British vessels was great, the president went to the Atlantic office, .and on his return agreed to take the insurance in consequence of the information he received, /S'. G. Waring, inspector of the Atlantic company, testified that there are two vessels called the Abeona, both British; that one is a brig, the other a schooner; that the brig was c.onsidered ‘

p. 602

a good vessel for a British vessel, and the schooner was a poor vessel; he should not consider her as insurable; is entered so in the books; he recommended his company not to insure her. The witness had seen and examined- both vessels in New York. That the vessel in question in this action was the schooner; she was a top sail schooner, not an hermaphrodite brig; she was a schooner in every sense of the word, as witness understands it. That British'schooners, very often resemble brigs. There is a difference between an hermaphrodite brig and a schooner, but a casual observer would-be apt to mistake one' for the other.

The defendants offered to prove that their president on his return from the Atlantic office had the brig registered in the books of the - company as an insur'able vessel, and the schooner as an uninsurable vessel, and the one as a brig, and the other as a schooner: This evidence was rejected, and the defendants excepted. ■ t .

The chief justice charged ¡ the jury, “ that the application for insurance, described the vessel as the brig Abeona, and if she was in fact a brig, then there was-no misdescription of' her; if, however, they should be of opinion that she was a schooner and not a brig, or if from her build or -manner of being rigged, the appellation of brig could not be applied to her, but was a misdescription of her, and if such misdescription was material to the risk, and the defendants were misled by it, and induced to take a risk greater, than the one which" they- contemplated - and intended to take’ and which they otherwise would not have taken, they should find a verdict for the defendants ; but .if she was a brig, or if that appellation of her was a " misdescription, and such misdescription was not, under the circumstances of the case, material to the risk, then they .should find for the plaintiffs. The defendants excepted ; and the --verdict and judgment having passed against them, they now bring error.

A. G. Rogers¿ for plaintiffs in error.

R. J. Dillon, for defendants in error.

p. 603

By the Court,

Upon the evidence, there were two British vessels of nearly the same capacity, both named Abeona, and both having been in the port of New York The one was a brig, and the other was either a schooner or a half brig, brigantine or hermaphrodite brig. The very decided opinion of the witness Waring,- that this vessel was a schooner, is pretty strongly confirmed by the fact that the plaintiffs had so designated her in their proposals for insurance on the voyage from St. Johns, and by the further fact that she was called a schooner by the master and one of the seamen in their protest after the loss. None of the witnesses call her a brig proper, but several of them think her a half brig, or a brig forward and a schooner aft. The brig was a good vessel, and the schooner or half brig a poor one—the one was insurable-, the other according to Waring, was not insurable. Newcomb, the only- other witness who speaks to the point, says this was not an insurable vessel, but his company did not like to insure her. The brig was undoubtedly a much better risk for the insurers than the schooner or half brig. -

But independent of the difficulty growing out of the increased risk, I am unable to say that the policy ever attached. The insurance was on goods laden or to be laden on board the brig Abeona ; the vessel lost, and on board of which the goods were laden, was the schooner or half brig Abeona. It was a different ship from that mentioned in the contract. This is not the case of a simple misnaming or other misdescription of a particular vessel, about which the parties - intended to contract, and where, notwithstanding the mistake, the subject can be sufficiently identified. See Le Mesurier v. Vaughan, 6 East, 382, and the case there'cited by Lawrence, J. of Hall v. Mollineaux. 1 Phillips’ Ins. 64, § 1. 1 Marshall (Candy’s) Ins. 314. Here there were two vessels of the same name, but of different species. . The policy describes with accuracy one of the vessels, and not the other. In such a case, there is no principle which will authorize us to presume, without proof, that the parties meant a different vessel from that described in the contract. A change of the ship, made without necessity or the consent of the insurer, will

p. 604

avoid the policy, although there may be no increase off the risk 1 Marsh. Ins. 166, 312. The parties are only bound by their contract.

.Although the schooner or half;brig Abeona was in poft at ■ the time the insurance was made5 there is np proof that the Underwriters knew that fact, or that they knew that the Jorig Abeona.Was not also in port at the same time. ' There is not only the absence of any just grouhd for inferring that the defendants, intended or were willing to-insure on the schoqnerj but. the evidence furnishes ground for the contrary inference. The application was for insurance on the cargo Of the brig Abepna* The; defendants seem not to have known janv thing about the 'vessel.' Their inspector was not in, thewessel was not on their books, and' the president -went out to make, inquiries. He went to’the- office of the Atlantic Company, ¿nd on his return agreed to take the risk. • If he| examined the books of the Atlantic company, he found ¡that there was both a, brig and a schooner-called Abbona ; ¡-that the brig was a good vessel, and the schooner a poor one; 'ithat the one was considered insurable, and the other not..l If; without' consulting the books, he-inquired of the officer's of the, Atlantic company, he probabjy obtained the same information. There is then' reason for believing that the defendants n'ot only supposed they were insuring on th effing,tbut that théy would not have consented to take a risk onthe yessel'which.was lost. But it is enough that the contract relates to one vessel, and the goods were shipped by another* It is for the plaintiffs to show, if that can be done, 'that although-the brig was mentioned Sn the policy, the schooner or half brig was the vessel about Which the parties intended to contract. " '' \

It follows, I think, from what has been said, that the Case was not properly submitted to the jury, and that the exception to the charge was well taken. :

Judgment reversed*