Hazard's Administrator v. New England Marine Ins. Co.
33 U.S. 557 (1834)

Annotate this Case

U.S. Supreme Court

Hazard's Administrator v. New England Marine Ins. Co., 33 U.S. 8 Pet. 557 557 (1834)

Hazard's Administrator v. New England Marine Insurance Company

33 U.S. (8 Pet.) 557

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE MASSACHUSETTS DISTRICT

Syllabus

Insurance was effected in Boston, Massachusetts, on the ship Dawn, from New York to the Pacific Ocean on a whaling voyage and until her return. The letter ordering insurance was written in New York by the owner of the ship, who resided there, and the ship was represented to be a "coppered ship." The ship, on the outward passage struck upon a rock at the Cape de Verd Islands, and knocked off a part of her false keel, but proceeded on her voyage and continued cruising, and encountered some heavy weather, until she was finally compelled to return to the Sandwich Islands, where she arrived in a leaky condition, and upon examination by competent surveyors she was found to be so entirely perforated by worms in her keel, stem, and stern post and some of her planks as to be wholly innavigable, and being incapable of repair at that place, she was

condemned and sold. The vessel, on her outward voyage, had put into St. Salvador, and both at the Cape de Verds and at St. Salvador her bottom was examined by swimmers. It was in evidence that the terms "a coppered ship" had a different meaning, and were differently understood in Boston and in New

York. Held that the assured, in making the representation in the letter, was bound by the usage and meaning of the terms contained therein in New York, where the letter was written and his ship was moored, and not by those of Boston, where the insurance was effected.

Insurance. A representation to obtain an insurance, whether it be made in writing or by parol, is collateral to the policy, and as it must always influence the judgment of underwriters in regard to the risk, it must be substantially correct. It differs from an express warranty, as that always makes a part of the policy and must be strictly and literally performed.

The underwriters are presumed to know the usages of foreign ports to which insured vessels are destined; also the usages of trade and the political condition of foreign nations. Men who engage in this business are seldom ignorant of the risks they incur; and it is their interest to make themselves acquainted with the usages of the different ports of their own country and also those of foreign countries. This knowledge is essentially connected with their ordinary business, and by acting on the presumption that they possess it no violence or injustice is done to their interests.

It is upon the representation that the underwriters are enabled to calculate the risk and fix the amount of the premium, and if any fact material to the risk be misrepresented, either through fraud, mistake, or negligence, the policy is avoided. It is therefore immaterial in what way the loss may arise where there has been such a misrepresentation as to avoid the policy.

The judge of the circuit court, on the trial of the case, charged the jury, that if it should find that in the Pacific Ocean worms ordinarily assail and enter the bottom of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy.

By the court:

"In the form in which this instruction was given, there was no error.

Page 33 U. S. 558

The circuit court instructed the jury that if there was no misrepresentation in regard to the ship, and she substantially corresponded with the representation, still if the injury which occurred to the vessel at the Cape de Verds were reparable and could have been repaired there or at St. Salvador, or at any other port at which the vessel stopped in the course of the voyage, the master was bound to have caused such repairs to be made if they were material to prevent any loss. And if he omitted to make such repairs because he did not deem them necessary, and if by such neglect alone the subsequent loss of the ship by worms was occasioned, the underwriters are not liable for any such loss."

By the court:

"If the loss by worms is not within the policy, as has been decided, the"

court did not err in giving this instruction. The negligence or vigilance of the master would be of no importance under the circumstances in regard to the liability of the underwriters.

In the circuit court, an action of assumpsit was instituted by the plaintiff in error as the administrator of Thomas Hazard, deceased, on a policy of insurance dated 26 December, 1827, whereby the defendants caused to be assured Josiah Bradlee & Co., for Thomas Hazard, Jr., of New York, $15,000 on the ship Dawn, and outfits at and from New York to the Pacific Ocean and elsewhere on a whaling voyage, during her stay and fishing and until her return to New York or port of discharge in the United States, with liberty, &c.

The declaration contained various counts, stating a total loss of the vessel and a partial loss of the cargo, and also a partial damage to the vessel by perils of the seas.

It appeared in evidence that the vessel sailed on 29 December, 1827, and on her outward passage struck upon a rock at the Cape de Verd Islands, and knocked off a portion of her false keel, but proceeded on her voyage, and continued cruising, and encountered some heavy weather, until she was finally compelled to return to the Sandwich Islands, where she arrived in December, 1829, in a very leaky condition, and upon an examination by competent surveyors, she was found to be so entirely perforated by worms in her keel, stem, and stern post, and some of her planks, as to be wholly innavigable, and being incapable of repair at that place, she was condemned and sold.

It also appeared in evidence that after the vessel sustained

Page 33 U. S. 559

the injury at the Cape de Verds, she put into St. Salvador, and that both at the Cape de Verds and at St. Salvador, the bottom of the ship was examined by swimmers.

The defense to the action was rested on the following grounds.

1. That there was a misrepresentation of a fact material to the risk in the application made for the insurance, which was by letter, and in which the vessel was represented to be a coppered ship. It being alleged by the defendants that by the terms "coppered ship" applied to a vessel destined upon a whaling voyage in the Pacific Ocean, it would be understood, according to the usages of insurance in Boston, that the sides and bottom of her keel were covered with copper, and they adduced evidence to prove this position, and also that the keel of this vessel was not so covered.

And upon this point the plaintiff produced evidence to prove that the keel was so covered, or if not, that it was nevertheless covered with leather, and which was alleged to afford an equally permanent and effectual protection against worms.

The letter referred to was as follows:

"New York, Twelfth Month 22, 1827"

"JOSIAH BRADLEE & Co., BOSTON"

"Respected Friends: My ship, The Dawn, of New York, Henry Gardiner master, is now nearly ready for sea, and will probably sail in the course of next week on a whaling voyage to the Pacific Ocean and elsewhere. I wish you to have $25,000 insured for my account, on the ship and outfit, the ship valued at $15,000 and the outfit valued at $10,000, each subject to its own average -- the outfit to be transferred to my share of the oil, which will be about two-thirds of the oil, as fast as it shall be obtained; the oil valued at sixty cents a gallon. If any part of the oil should be sent home by any other vessel or vessels, that part of the oil not to be deducted from the sum insured on the outfit. Our ships sometimes take oil on their outward passage and wish to send it home; therefore you will please to have it stipulated in the policy for liberty to do it, and also for liberty to stop from time to time to procure refreshments, as is usual and customary on such voyages. This is the same ship that you had insured for me in Boston some years since. I will only

Page 33 U. S. 560

observe that I believe her to be one of the strongest and best ships in the whole fishery; she has been newly coppered to light water mark, above which she is sheathed with leather to the wales, and fitted in every respect in the best manner, and commanded by an experienced, capable, and prudent master, which entitles her to be insured at as low a premium as any ship in that business. You got her insured for me the last time on a similar voyage, against all risks, for six percent, although I understand that premiums have risen a little in Boston. I can but hope that you will be able to get this assurance effected at six and a half or seven percent -- indeed I should not be willing to give more than eight percent. Hoping to hear from you soon on the subject of this insurance, I remain, with great respect, your assured friend,"

"THOMAS HAZARD, JR."

The plaintiff also gave in evidence a letter from his intestate, of which the following is a copy.

"New York, Eighth Month 20, 1824"

"JOSIAH BRADLEE & CO."

"Esteemed Friend: My ship, the Dawn, of New York, John H. Butler master, sailed yesterday morning on a whaling voyage to the Pacific Ocean and elsewhere. I wish you to have $25,000 insured, provided you can get it effected at seven percent or under. This ship is about three hundred and twenty-seven tons, built in this city, of excellent materials; is between seven and eight years old, copper fastened, newly sheathed with wood, which was put on with composition nails, and then sheathed over the wooden sheathing with sole leather, which was also put on with composition nails. Ship valued at $15,000, and the outfit at $10,000, each subject to its own average; the latter to be transferred to the oil as fast as it may be obtained (say my proportion, which will be about two-thirds of all that may be obtained), the same to be valued at forty cents per gallon; if part should be sent home by any other vessel or vessels, that part not to be deducted from the amount insured on the outfit. Sometimes our ships take oil between here and the Cape de Verd Islands, and wish to send it home; therefore I wish you to stipulate in the policy for liberty to do it. Hoping

Page 33 U. S. 561

to hear from you soon on the subject of this letter, I remain, your assured and very respectful friend,"

"THOMAS HAZARD, JR."

"P.S. It must be stipulated in the policy that the ship have liberty to stop for refreshments, as is usual and customary on such voyages."

The evidence was submitted to the jury under the following charge, by the presiding judge of the circuit court.

"That, as to the objection taken to the plaintiff's right of recovery, upon the ground that there was no sufficient abandonment made out, whatever might be his opinion of the validity of the objection, he should, for the purposes of the trial, rule, and he accordingly did rule, that under all the circumstances of the case, the abandonment was sufficient in point of law."

"2. That the representation and facts stated in that letter (the letter of the plaintiff's intestate to his agents, left with the defendants at the time application was made for insurance), so far as they were material to the risk, must be substantially true; that if the ship was not coppered, as stated in that letter and the ship did not in that respect correspond with the representation, and the difference between the facts and the representation was material to the risk, then the plaintiff was not entitled to recover upon the policy, and he left the facts as to representation and the materiality, to the jury."

"That in ascertaining whether the vessel was coppered, it was for the jury to determine what constitutes a 'coppered ship,' and if the jury should find from the testimony that in order to constitute what is called a 'coppered ship,' the bottom of the keel, and the sides of the keel, as well as the sides of the vessel, must be coppered, and they should further find that this vessel was not so coppered, and the deficiency was material to the risk, then there was not a compliance with the terms of the letter left with the underwriters, and the underwriters were not liable upon the policy. Or if they should find that a ship coppered on her sides, and also on the sides of the keel, and not on the bottom of the keel or false keel would meet the representation of a coppered ship on other voyages, but that in whaling voyages in the Pacific Ocean, the usual and customary mode is to copper the bottom of the keel or false keel, and it is understood by underwriters when application is made for insurance

Page 33 U. S. 562

on such voyages that vessels are so coppered, unless the contrary is stated, then, inasmuch as the letter applying for insurance is an application for insurance of a vessel on a whaling voyage in the Pacific Ocean, the underwriters had a right to consider the representation in the letter as describing the vessel as coppered, in the manner in which vessels are usually coppered for such voyages, and if the ship was not so coppered, and that deficiency was material to the risk, the terms of the letter were not complied with, and the defendants were not bound by the policy."

1st. The court further charged that in ascertaining what is to be understood as a coppered ship in applications for insurance on a voyage of this nature, the terms of the application are to be understood according to the ordinary sense and usage of those terms in the place where the insurance is asked for and made, unless the underwriter knows that a different sense and usage prevail in the place in which the ship is then lying and in which the owner resides and from which he writes asking for the insurance, or unless the underwriter has some other knowledge that the owner uses the words in a different sense and usage from that which prevail in the place where the insurance is asked for and made.

2d. The court further charged the jury that although the terms of the letter applying for insurance were not to be considered a technical warranty, yet if the coppering of the ship as stated in the letter on which the insurance was made was substantially untrue and incorrect in a point material to the risk, such a misrepresentation would discharge the underwriters, although the ship was partially coppered and although the loss did not arise from any deficiency in the coppering.

3d. The court further charged the jury that if there was no misrepresentation in regard to the ship and she substantially corresponded with the representation, still if the injury which occurred at the Cape de Verds was reparable, and could have been repaired there or at St. Salvador or at any other port at which the vessel stopped in the course of the voyage, the master was bound to have caused such repairs to be made if they were material to prevent any loss. And if he omitted to make such repairs because he did not deem them necessary, and if, by such neglect alone, the subsequent loss of the ship by worms

Page 33 U. S. 563

was occasioned, the underwriters are not liable for any such loss so occasioned.

4th. The court further charged that if the jury should find that in the Pacific Ocean, worms ordinarily assail and enter the bottoms of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy.

5th. The court further charged that as the decisions of the courts in Massachusetts had established that damage arising from injury by worms was not a loss within the policy, the underwriters in Boston must be deemed as contracting in reference to those decisions, and not liable for losses from that cause.

The court further charged the jury that if in consequence of the injury sustained at Port au Praya, in the Cape de Verds, the false keel was torn off, whereby the vessel became exposed to the action of the worms, and that they thereby obtained entrance and destroyed the vessel, that the loss would not come within the policy, it being a consequential injury against which underwriters are not considered as taking the risk.

The counsel for the plaintiff called upon the court to charge upon the two following points: that if the jury believed that the underwriters would not have charged a higher rate or premium if the vessel had been correctly represented than they did charge, and that the insured had not intentionally misrepresented the facts, then the representation contained in the letter is not material and does not defeat the policy. Second, if it believed that the object of coppering the bottom of the keel is to protect it against worms, and if it also believed the leather an equal protection, and was put on, in that case the letter would not be considered a material misrepresentation.

1. The court refused to direct the jury in the terms stated, but upon this point did direct the jury that if the fact was not material to the risk and would not have varied the conduct of the underwriters either as to the premium of insurance or as to the underwriting at all if the fact had been correctly represented and the insured had not intentionally misrepresented the facts; then the misrepresentation will not prevent the insured from a recovery in this case or defeat the policy.

2. The court refused to give the directions in the terms stated, but upon this point directed the jury that if the object of coppering the bottom of the keel was to protect it against

Page 33 U. S. 564

worms, and if it believed that leather is an equal protection, still if the fact was that the letter of instructions did contain a representation which was, and must have been understood, as representing that the keel was coppered, and if that fact was material to the risk and might have induced the underwriters to ask a higher premium or not to have underwritten at all, then the misrepresentation of its being copper when it was leather would avoid the policy. But if it was not a fact material to the risk and would not have changed the conduct of the underwriters either as to underwriting at all or in asking a higher premium, then the misrepresentation would not avoid the policy.

The counsel for the plaintiff excepted to the charge of the court on the points above stated, and the jury having rendered a verdict in favor of the defendants, the court entered judgment thereon, and the plaintiff prosecuted this writ of error.

Page 33 U. S. 578

MR. JUSTICE McLEAN delivered the opinion of the Court.

The plaintiffs brought an action of assumpsit in the Circuit Court from the District of Massachusetts on a policy of insurance dated 29 December, 1827, whereby the defendants caused to be assured Josiah Bradlee & Co. for Thomas Hazard, Jr., of New York, $15,000 on the ship Dawn and outfits at and from New York to the Pacific Ocean

Page 33 U. S. 579

and elsewhere on a whaling voyage, during her stay and fishing and until her return to New York or port of discharge in the United States.

The declaration contained various counts, stating a total loss of the vessel, and a partial loss of the cargo, and also a partial damage to the vessel by perils of the seas.

It appeared in evidence that the vessel sailed 29 December, 1827, and on her outward passage struck upon a rock at the Cape de Verd Islands and knocked off a part of her false keel, but proceeded on her voyage and continued cruising, and encountered some heavy weather, until she was finally compelled to return to the Sandwich Islands, where she arrived in December, 1829, in a leaky condition, and upon an examination by competent surveyors she was found to be so entirely perforated by worms in her keel, stem and stern post, and some of her planks as to be wholly innavigable, and being incapable of repair at that place, she was condemned and sold. The vessel had sustained an injury at the Cape de Verds, and she put into the port of St. Salvador, at both of which places the bottom of the ship was examined by swimmers.

On the trial, a bill of exceptions was taken by the plaintiff's counsel to certain instructions of the court to the jury, and the case is brought before this Court by writ of error.

The first instruction excepted to, is as follows.

"The court further charged that in ascertaining what is to be understood as a 'coppered ship' in applications for insurance on a voyage of this nature, the terms of the application are to be understood according to the ordinary sense and usage of those terms in the place where the insurance is asked for and made, unless the underwriter knows that a different sense and usage prevail in the place in which the ship is then lying and in which the owner resides and from which he writes asking for the insurance, or unless the underwriter has some other knowledge that the owner uses the words in a different sense and usage from those which prevail in the place where the insurance is asked for and made."

This instruction refers to the letter written by the plaintiff, at New York, on 22 September, 1827, to his agent in Boston requesting him to have the ship Dawn insured, and in which letter he made the following statement respecting the

Page 33 U. S. 580

ship.

"This is the same ship that you had insured for me in Boston some years since. I will only observe that I believe her to be one of the strongest and best ships in the whale fishery; she has been newly coppered to light water mark, above which she is sheathed with leather to the wales,"

&c.

A representation to obtain an insurance, whether it be made in writing or by parol, is collateral to the policy, and as it must always influence the judgment of the underwriters in regard to the risk, it must be substantially correct. It differs from an express warranty as that always makes a part of the policy and must be strictly and literally performed.

The rule prescribed by the circuit court to govern the jury in giving a construction to the representation in this case was founded upon the fact, supposed, admitted, or proved, that what "is to be understood as a coppered ship at New York, would not be so considered at Boston." And this presents the point for consideration, whether the plaintiff, in making the representation, was bound by the usage of Boston or of New York where his letter was written and his ship was moored.

It is insisted that Boston is the place where the contract was made, and where effect was given to the representation, and that consequently not only the contract but the inducements which led to it must be controlled by the usages of Boston.

This is an important question in the law of insurance, and it seems not to have been settled by any adjudication in this country, and none has been cited from England. The plaintiff's counsel contends that it is substantially a question of seaworthiness, and should be governed by the same rule, and he refers to a decision in 4 Mason 439 as decisive of the point. In that case, an insurance was made in Boston upon a British vessel belonging to the port of Halifax in Nova Scotia, and the court said

"If the Boston standard of seaworthiness should essentially differ from that in Halifax in respect to equipments for a South American voyage of this sort, it would be pressing the argument very far to assert that the vessel must rise to the Boston standard before the policy could attach. Where a policy is underwritten upon a foreign vessel belonging to a foreign country, the underwriter must be taken to have knowledge of the common usages of trade in such country as to the equipments

Page 33 U. S. 581

of vessels of that class for the voyage on which she is destined. He must be presumed to underwrite upon the ground that the vessel will be seaworthy in her equipments according to the general custom of the port, or at least of the country to which she belongs."

In every policy there is an implied warranty of seaworthiness, and this is a condition precedent on the part of the insured. The policy does not attach unless the vessel be "properly manned and provided with all necessary stores, and in all respects fit for the intended voyage." The equipment of the vessel must depend upon the nature of the voyage, as a ship might be seaworthy for a voyage across the Atlantic and not for a whaling voyage in the Pacific.

A representation might embrace all the facts of an implied warranty of seaworthiness, but this is wholly unnecessary, and is seldom if ever done. The representation is designed to state the quality and condition of the ship, if that be the object of insurance, so as to induce the underwriters to insure on reasonable terms, and it is not limited to the facts necessary to constitute seaworthiness.

A question of seaworthiness is determined by the usages of the port where the vessel is fitted out in reference to the destined voyage. But the facts stated in a representation may go beyond those usages, and the insured is bound to the extent of his communication, whether verbal or written. In the one case, the law implies a definite and fixed responsibility; in the other, the liability depends upon the express declarations of the insured.

If the representation in this case fall below the implied warranty of seaworthiness, it does not in any degree affect such warranty; it cannot, therefore, be considered as a substitute for the implied seaworthiness of the ship, but as a representation which entered into the consideration of the underwriters when they fixed the premium of insurance.

The question then recurs was the plaintiff bound, in describing the ship, to use the appropriate terms according to the usage in Boston or in New York? It is said the terms used were calculated to mislead the underwriters, as they resided at Boston, and in insuring a "coppered ship" would of course refer to a vessel which could be so appropriately called at Boston.

Page 33 U. S. 582

The writer of the letter is a resident of the City of New York; his letter was written at that place, and he described his vessel then in the harbor of that city. What terms would he be supposed to use in giving this description -- those which are peculiar to New York, or those which are peculiar to Boston? Can he be presumed to know the usages of Boston in this respect, and must he not be presumed to know those of New York?

In making a representation respecting his vessel, his mind would not be directed to Boston, but to his ship then in the harbor of New York, and in describing her as a "coppered ship," he would refer to the appropriate designation at New York.

And would not the minds of the underwriters at Boston, seeing that the letter was written at New York and represented a vessel in the harbor of that city, be very naturally directed to the sense in which the terms used were viewed in that place. Would they not inquire whether the words "coppered ship" mean the same thing at New York as at Boston?

In a case of seaworthiness such is admitted to be the rule, and if the representation be not a warranty of seaworthiness, still does not the reason of the rule apply in the one case as forcibly as in the other?

The underwriters are presumed to know what constitutes seaworthiness in a foreign port and to act under this knowledge, and why may they not, with equal propriety, be presumed to know, on a representation, the usage at the place where the vessel lies, and where she is described? It is but a presumed knowledge of usage in both cases, and which in both cases must have the same effect on the rights of the parties. If, therefore, the rule be applicable to a case of seaworthiness, it must be equally so to a case of representation.

The underwriters are presumed to know the usages of foreign ports to which insured vessels are destined; also the usages of trade, and the political condition of foreign nations. Men who engage in this business are seldom ignorant of the risks they incur, and it is their interest to make themselves acquainted with the usages of the different ports of their own country and also those of foreign countries. This knowledge is essentially connected with their ordinary business, and by

Page 33 U. S. 583

acting on the presumption that they possess it, no violence or injustice is done to their interests.

It would therefore seem to be reasonable to conclude that the defendants, when they made the insurance, were not misled by the representation of the plaintiff. That they must have considered the ship to be described according to the New York usage; such, at least, is the presumption which arises from the facts and in strict analogy to other cases. The circuit court therefore erred in its instruction to the jury that the representation was to be construed by the usage in Boston.

The second instruction of the court to which exception was taken is

"That although the terms of the letter applying for insurance were not to be considered a technical warranty, yet if the coppering of the ship, as stated in the letter on which the insurance was made, was substantially untrue and incorrect in a point material to the risk, such a misrepresentation would discharge the underwriters, although the ship was partially coppered and although the loss did not arise from any deficiency in the coppering."

Taking this instruction as disconnected with the first one, the principle asserted is undoubtedly correct. It is upon the representation that the underwriters are enabled to calculate the risk and fix the amount of the premium, and if any fact material to the risk be misrepresented, either through fraud, mistake, or negligence, the policy is avoided. It is therefore immaterial in what way the loss may arise where there has been such a misrepresentation as to make void the policy.

The fourth instruction excepted to will be next considered, as it embraces the principle asserted in the third. The judge charged

"That if the jury should find that in the Pacific Ocean, worms ordinarily assail and enter the bottom of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy."

This is an important question, and it seems now for the first time to be brought before this Court.

In 1796, the case of Rhol v Parr was tried, which involved this question before Lord Kenyon, and a special jury, at nisi prius, reported in 1 Espinasse 445. His Lordship said that

"It appeared to him a question of fact rather than of law, such as the jury were competent to decide on, from the opinion on the

Page 33 U. S. 584

subject adopted by the underwriters and merchants."

And

"The jury found that it was not a loss within the term of 'perils of the sea' in policies of insurance, and of course that the plaintiff could not recover for a total loss."

There seems to have been a general acquiescence in this decision in England, as it has never been overruled.

In the case of Arnold Martin v. Salem Marine Insurance Company, reported in 2 Mass. 420, the court expressly recognized the doctrine laid down in the case of Rhol v. Parr. But this doctrine is controverted in the case of Garrigues v. Coxe, 1 Binn. 596, and in Depeyster v. Commercial Insurance Company, 2 Caines 90, Mr. Justice Livingston said that he did not

"mean to be understood as subscribing to the nisi prius opinion of Lord Kenyon in the case of Rhol v. Parr that it was not necessary to decide in the case whether a loss by worms was within the policy."

It was well remarked by Lord Kenyon that whether a destruction by worms be within the policy was a question of fact, rather than of law, and could be best ascertained by a jury from the opinion of underwriters and merchants. This was a nisi prius decision, but it gave such general satisfaction to both merchants and underwriters and all others concerned as never to have been questioned in England. It was the establishment of a usage by the opinions of those most competent to judge of its reasonableness and propriety, and the approbation which has since been given to it in England by acquiescence may well constitute it a rule in that country by which contracts of insurance are governed. And independent of the fact of its having been adopted by the Supreme Court of Massachusetts, is not the decision entitled to great consideration in this country? It comes from the same source from which the principles of our commercial law are derived, and to some extent the forms of our commercial contracts. Would it not be reasonable to suppose that these contracts are entered into with a knowledge of the rule by which they are construed in the most commercial country if our own courts had adopted no rule on the subject? But in the present case, the opinion of Lord Kenyon having been adopted in Massachusetts, the rule must certainly apply to all contracts made and to be executed in that state.

Page 33 U. S. 585

The court, in its instruction, did not lay down the rule broadly that a destruction by worms was not within the policy but the jury was told that if

"in the Pacific Ocean, worms ordinarily assail and enter the bottoms of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy."

In other words, if the vessel was lost by an ordinary occurrence in the Pacific Ocean, it was loss against which the underwriters did not insure. In an enlarged sense, all losses which occur from maritime adventures may be said to arise from the perils of the sea, but the underwriters are not bound to this extent. They insure against losses from extraordinary occurrences only, such as stress of weather, winds, and waves, lightning, tempests, rocks, &c. These are understood to be the "perils of the sea" referred to in the policy, and not those ordinary perils which every vessel must encounter.

If worms ordinarily perforate every vessel which sails in a certain sea, is not a risk of injury from them as common to every vessel which sails on that sea as the ordinary wear and decay of a vessel on other seas? The progress of the injury may be far more rapid in the one case than in the other, but do they not both arise from causes peculiar to the different seas, and which affect in the same way all vessels that enter into them? In one sea the aggregation of marine substances which attach to the bottom of the vessel may possibly produce a loss; in another a loss may be more likely to occur through the agency of worms. Can either of these losses be said to have been produced by extraordinary occurrences? Does not the cause of the injury exist in each sea, though in different degrees and against which it is as necessary to guard, as to prevent the submersion of a ship by having its seams well closed.

In the form in which the instruction under consideration was given, this Court thinks there is no error. If it be desirable to be insured against this active agent which infests southern seas, it may be specially named in the policy.

The third instruction objected to is:

"That if there was no misrepresentation in regard to the ship, and she substantially corresponded with the representation, still, if the injury which occurred at the Cape de Verds were reparable, and could have been repaired there or at St. Salvador or at any other port at

Page 33 U. S. 586

which the vessel stopped in the course of the voyage, the master was bound to have caused such repairs to be made if they were material to prevent any loss. And if he omitted to make such repairs because he did not deem them necessary, and if by such neglect alone the subsequent loss of the ship by worms was occasioned, the underwriters are not liable for any such loss so occasioned."

If the loss by worms is not within the policy, as has already been considered under the fourth instruction, it must at once be seen that the court did not err in giving this instruction. The negligence or vigilance of the master could be of no importance under the circumstances in regard to the liability of the underwriters.

The other instructions in the case relate to the loss of the vessel by worms and the representation made by the plaintiff, and as they do not raise any distinct point which has not already been substantially considered, it is unnecessary to enter into a special examination of them.

The judgment of the circuit court must be

Reversed and the cause remanded for further proceedings.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts and was argued by counsel, on consideration whereof it is the opinion of this Court that the said circuit court erred in instructing the jury that in ascertaining what is to be understood as a coppered ship in applications for insurance on a voyage of this nature, the terms of the application are to be understood according to the ordinary sense and usage of those terms in the place where the insurance is asked for and made unless the underwriter knows that a different sense and usage prevail in the place in which the ship is then lying and in which the owner resides and from which he writes asking for the insurance, or unless the underwriter has some other knowledge that the owner uses the words in a different sense and usage from those which prevail in the place where the insurance is asked for and made, but there is no error in the other instructions given by the said circuit court. Whereupon it is ordered and adjudged that the judgment of the said circuit court be and the same is hereby reversed for this error,

Page 33 U. S. 587

and that in all other respects the said judgment be and the same is hereby affirmed. And it is further ordered by this Court that this cause be and the same is hereby remanded to the said circuit court with directions to award a venire facias de novo, and that further proceedings be had in said cause according to right and justice and in conformity to the opinion of this Court.

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