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.
