Where a party proposed to insurers to insure his vessel on a
"voyage from Liverpool to Cuba
and to Europe via
Falmouth" at a rate named, and the company offered to insure at a
somewhat higher rate, saying, "It is worth something, you know, to
cover the risk at the port of loading
that it was implied that "the port of loading" might
be different from the port of discharge, and where the assured
accepted this offer, and told the insurer to insure "at and from
Liverpool to Cuba and to Europe via a market port," &c.,
that a policy which insured "to port of
in Cuba, and to Europe via a market port,"
&c., did not conform to the contract, and was to be reformed so
as to do so.
The controversy in this case grew out of a contract of insurance
upon the same charter party as in the preceding case, though here
the insurance was by a different company from the insurance there.
The present case was thus:
On the 2d of May, 1866, Hearne addressed a letter to the
Equitable Insurance Company as follows:
"Insure $4,000 on the charter party of the bark Maria Henry,
valued at $16,000, if you will not charge me more than 3 percent;
voyage from Liverpool to Cuba, and to Europe via Falmouth, for
orders where to discharge. She will take her registered tonnage of
On the 4th of the same month, the company replied:
"We cannot write the charter of the bark Maria Henry
your rate, viz.,
3 percent, including coals, from
Page 87 U. S. 495
Cuba. Our rate will be 4 percent for the voyage, to include
On the 7th of the month Hearne answered, arguing against the
rate proposed, and offered "3 percent, or 4 percent, 1 1/2 percent
to be returned if no loss."
On the day following the company responded:
"We will write upon the charter of the bark Maria Henry as
proposed by you -- Europe to Cuba and back to Europe -- at 3 1/2
percent net. It is worth something, you know, to cover the risk
at the port of loading in Cuba.
On the next day, Hearne wrote:
"I accept your proposition in reference to the insurance of the
bark Maria Henry. Please insure $4000, at 3 1/2 percent, on the
charter valued at $16,000, at and from Liverpool to Cuba, and to
Europe via a market port, for orders where to discharge."
The contract, as expressed in the policy, was for
"Four thousand dollars on charter of bark Maria Henry,
at and from Liverpool to port of discharge in Cuba, and at and
thence to port of advice and discharge in Europe."
The facts of the case were the same in all respects, down to the
close of the litigation at law between the parties, inclusive, as
those in the case immediately preceding, where the controversy was
with the other company. That case is referred to for the
particulars. Hearne having been defeated in his action at law,
filed this bill for the reformation of the contract, as stated in
the policy. The circuit court decreed in his favor. The company
brought the case here for review.
MR. JUSTICE SWAYNE, having stated the case, delivered the
opinion of the Court.
It is not denied that the correspondence between the parties
constituted a preliminary agreement. Such clearly was
Page 87 U. S. 496
its effect. The policy was intended to put the contract in a
more full and formal shape. The assured was bound to read the
letters of the company in reply to his own with care. It is to be
presumed he did so. He had a right to assume that the policy would
accurately conform to the agreement thus made, and to rest
confidently in that belief. It is not probable that he scanned the
policy with the same vigilance as the letters of the company. They
tended to prevent such scrutiny, and, if it were necessary, threw
him off his guard.
The principles upon which a court of equity will exercise the
jurisdiction invoked by the appellee were considered in the case
which precedes this. What was there said need not be repeated. In
this case, Hearne's proposition to the company was to insure upon
the charter, "voyage from Liverpool to Cuba, and to Europe via
Falmouth." The company's response, as before stated, was: we will
insure "as proposed by you -- Europe to Cuba -- at 3 1/2 percent.
It is worth something, you know, to cover the risk at port of
loading in Cuba." This is the language of the parties, and it is
the essence of the correspondence. Suppose the language of these
sentences had been incorporated in the policy in this form: this
company hereby insures $4,000 upon the charter of the bark
Maria Henry, as proposed
by the assured, from "Europe to
Cuba and back to Europe, at 3 1/2 percent net,"
-- the premium
is enhanced "to cover the risk at port of loading in
-- what would have been the legal result? Can it be
doubted that the policy would be held to cover alike the voyage to
a port of discharge in Cuba, a voyage thence, if necessary, to a
port of loading in Cuba, and a voyage from the latter to Europe?
The "port of loading" is the only one mentioned in the letter. It
seems to have been uppermost in the mind of the writer. The risk is
referred to as a distinct and separate one. The implication is that
the port might be one other than the port of unloading. The right
to go to both rests upon the same foundation, and it is not more
clear as to one than the other. What is implied is as effectual as
what is expressed. The intent of the parties, as
Page 87 U. S. 497
manifested, is the contract. Upon any other construction the
important language as to "the port of loading" would be insensible
and without effect. No other interpretation, we think, can
reasonably be given to it.
In Dickey v. Baltimore Insurance Co.,
] the policy insured the vessel
upon a voyage "from New York to Barbados, and at and from thence to
the Island of Trinidad, and at and from Trinidad
New York." This Court held that the words "at and from" protected
the vessel in sailing from one port to another in Trinidad to take
in a part of her cargo. Marshall, Chief Justice, said:
"It is the settled doctrine of the courts of England that
insurance at and from an island,
such as those in the West
Indies, generally insures the vessel while coasting from port to
port for the purpose of the voyage insured."
He refers to Bond v. Nutt,
] and to Thellusson v. Fergusson.
] The case of
Cruikshank v. Jansen
] is to the same effect. These authorities fully
sustain the proposition laid down. We are not aware that their
authority has been questioned. They show the just liberality of
construction which obtains where contracts of insurance are
In this controversy, the clear terms of the preliminary
agreement warranted the court below in overruling the departure
from it found in the policy.
We have examined the case only in the light of its own inherent
facts. We have not found it necessary to consider the usage alleged
to exist at Liverpool touching voyages in the trade from that port
to Cuba. It seems clear to us that the judgment below does not need
further support. We therefore forbear to remark upon that
11 U. S. 7
2 Cowper 601.
1 Douglas 361.
2 Taunton 301.