Kemble against Bowne

Kemble against Bowne. In a policy on a vessel in a distant port from whence she is to sail, and stated to be there on a certain day, “ at and from,” mean the day on which she is mentioned to be there, and the policy takes effect from thence. It is not necessary to disclose how long a vessel has lain in port antecedent to the policy. The two per cent, dedusted on'a total loss, is, in case of disaster, a part of the premium. This was an action on an o}«n policy, 7,500 dollars, on the ship Helen, “ at and from Point Petre, Gruadaloupe, to St. Thomas’s, beginning the adventure at, and from Gruadaloupe, and to continue till her arrival at St. Thomas’s and there safely moored,” at a premium of 17 1-2 per cent. The policy was dated 3d September, 1800. The Helen was a prize ship, and had been purchased for Charles Globert, on the 20th November, 1799, whilst lying at Point Petre, for 6,450 dollars and 48 cents, including commission for buying. The defendant received no other information from the broker, than that the vessel was at Gruadaloupe on the 28th of July, 1800. The declaration contained an averment that the insurance was effected on account of Grobert. The cause was tried before Mr. Justice Livingston, on the 9th of April, 1802. It was admitted that a prior insurance had been made at St. Thomas’s, on the same risk, for 6,400 dollars, on which Grobert had received 4,349 dollars and 35 cents, being the net sum after deducting premium and commissions. [*76] *It appeared from the testimony of the captain, who took charge of the Helen on the 20th November, 1799, and continued to command her till the 6th February, 1800, that in that time he expended, in repairing and other necessaries, 1,335 dollars and 86 cents, including an item for wages in taking care of the ship, to a period af ter he resigned the command; his knowledge of the pay ment, he said, was derived from the information of the persons employed in that duty : that the Helen was American built, copper bottomed, and would have been worth, in New York, with an American register, 25,000 dollars. During the time he remained on board, there were occasi anally sugars and cotton put on board her, and taken- out again to load other vessels at that place, belonging to Mr. G-obert. From another witness it appeared, that being at Gruadaloupe, in July, 1800, he received orders from Gobert’s agent at St. Thomas’s, to take possession of the Helen, man, victual her. and send her to him there. That according to an account of one Brocha, Gobert’s agent, “ the purchase-money, unrigging and tarring, safe mooring and guarding the ship, while at Guadaloupe, amounted to 7,000 dollars. The witness paid Brocha- 3,000 dollars, part of the purchase-money, and Brocha told him Gobert paid him 4,000 dollars.” That some expenditures were made upon the ship before the witness took possession of her, to the amount of which he could not speak. But the bill of disbursements for the ship, “ paid by him for repairs and necessaries to get her despatched on the voyage from Point Petre to St. Thomas’s, was 4,461 dollars and 87 cents,” amounting in the whole to 7,461 dollars and 87 cents, paid by him. The ship sailed from St. Thomas’s some time in September ; the witness was a passenger; on the voyage she was captured, carried into Antigua, and condemned as prize; a claim had been interposed, in the prosecution of which, 317 pounds 11 shillings and 8 1-2 pence, was expended. The proportion of this to be borne by the, ship was admitted to be about 500 dollars. Mr. Farrers, an insurance broker of great eminence, said it was usual, in estimating the value of the ship, to allow wages advanced *to the captain and crew, [*77] (commonly a month’s pay,) as part of the outfit of a vessel; also provisions for the voyage, and all other charges for things requisite and proper to prepare her for the voyage insured. That no expenditures whatever, previous to the commencement of the voyage, are charges against the insurers on freight. That some of the items in the accounts, in his opinion, and according to his practice, required vouchers, or it could not be known whether they were proper or not. That in settling losses in such cases, vouchers were required by him. It was admitted that nine livres make one dollar. The judge, in charging the jury, stated, as the inclination of his opinion, that the policy could not be considered as attaching from the first purchase of the ship by Gfobert, at Gruadaloupe, but from the time some act was done towards equipping for the voyage. Whether, however, this was the case or not, and even to suppose it to have attached at the time of such first purchase, that it was not necessary to disclose to the underwriters the length of time the vessel bad remained at Gruadaloupe; nor that she had been used as a storeship at that place, He was of opinion that the account of the first witness ought to be laid out of the question; yet, however, independently of that, there appeared to be interest to the amount insured in this policy, beyond the prior insurance. The jury found for the plaintiff a total loss, without going from the bar, or examining the accounts. An application was now made to set aside the verdict, as being contrary to law and evidence, and grant a new trial. Pendleton, for the defendant, made two points: first, that the policy was void for concealment; secondly, that allowing it to be otherwise, the verdict could not stand, being against evidence in finding a total loss when only a partial injury had been sustained. On the first point he observed, that a contract must be taken as it is worded where there is no ambiguity, or it is no contract at all. In policies of assurance “at and from” a place, means first arrival at that place. Park, 38, and the cases cited by Lord Hardwicke, in Motteux v. London Assurance Company, 1 Atk. 548. It is true that the construction is not universally the same. In France it is interpreted to be from the time of sailing. 2 Emer. 14. But in England it is regulated by special contract. 1 Marsh. 173. Bird v. Appleton, 1 [*78] *Marsh. 60. That “at and from” mean from the first arrival, is obvious from the words themselves, and the two first cited authorities. If not so, when did the risk commence? The judge’s opinion would make a new contract. It would be from beginning to equip for this voyage. But how is this to be ascertained ? The accounts of expenditure are without dates: they can show nothing, and this very circumstance is enough to throw' aside any other interpretation than the one contended for; because if the commencement of the risk he not mentioned, the policy is void. 1 Marsh. 182. If this lie so, then there was a material concealment in not disclosing the vessel’s having lain nine months at Guadaloupe, and used during that time as a storeship, or the stay was a deviation. On the point of concealment, it is settled that every fact not disclosed, which would increase the risk, is material and vacates the policy. 1 Marsh. 354. The difference of premium is decisive on the importance of communicating her stay. At St. Thomas’s it was 30 per cent.; here 17 1-2. To prove that concealing the length of stay would vacate the policy, he relied on Hodgson v. Richardson, 1 Black. 463. The stay would deteriorate the vessel, and increase the hazard; it was, therefore, a material fact to be disclosed, and if so, whether the loss was occasioned by the fact concealed or not, was perfectly immaterial. Fillis v. Bruton, Park, 182. Seaman v. Fonnereau, 2 Str. 1183. But allowing the verdict not to be void, the plaintiffs are not entitled to a total loss; the amount insured was . . 7,500 dollars, the first cost of the vessel was, including the' commissions and necessary disbursements, but throwing out the month’s wages and charges previous to the policy . . . so that the whole cannot be due. - 5,683 dollars, Hamilton, contra. In this case the situation and circumstances of the vessel antecedent to the orders for insurance were perfectly immaterial, and, therefore, needed not to have been disclosed. The only effect which the Helen’s stay at Guadaloupe could have had, would have been to render her less fit for the voyage insured. That she was completely adequate to its performance, was a warranty implied in this as in every other policy. It is a settled principle, that whatever is warranted against, whether it be in express terms, or by implication, need not be dl» closed, and the reason is obvious,' because it is [*79] *a risk the assured takes on himself. Though the construction given to the words “at and from” could not be totally denied, it could not be universally acceded to. The interpretation relied on was applicable only to those cases of insurance where a vessel was insured at and from a port to which she was going: but when the terms in question were used in reference to a véssel in a distant port, from whence the voyage insured was to have its inception, the expression could mean only from the time some act was done towards equipping for the voyage intended; at the utmost, it could not relate back farther than to the orders for insurance. But as the voyage might, even after the orders given, be in fact deserted, it would, perhaps, be the safest Interpretation, to say the policy should never attach but on some overt act, indicatory of carrying it into execution. On the other point, the accounts and the testimony on which they were founded, were before the court, and carried their propriety, or impropriety on their face. Leigh v. Mather. But though what is implied!y warranted against need not be disclosed, questions relating to it must be answered truly. [MAJORITY — Per Curiam.] Per Curiam. Two questions are made in this cause. 1. Was every proper information given to the underwriters? 2. Were the charges proper and sufficiently proved ? On the first, no doubt was entertained at the trial, nor is any now. It was not necessary to disclose how long the Helen had been at Guadaloupe, nor that she was a prize ship. The first could be material only in case her being there antecedent to the insurance had enhanced the risk, and the latter, in case of a warranty, or representation, which negatived her being a ship of that description. It is of no importance how long she had been at Guadaloupe, unless the policy attached from the moment of her arrival there, although it might have been several years before it was effected. The construction contended for would be unnatural. In a case like this, when a vessel has been long in port, previous to an insurance, the risk does not commence till some act be done towards equipping her for the voyage, or on the day on which she is stated, as here’ to have been in safety in the port from which she was to sail; this was the 28th of July, 1800. If she had been lost or injured before that day, the underwriters would not have been liable. When she is stated to have been at Gruadaloupe on a certain day, it must mean that she was there in safety, and that no preceding accident was to be made good by the assurers; it cannot, therefore, be material * where she was prior to that day, for the par- [*80] ties, by agreement, have ascertained that the risk shall commence on the 28th July, 1800. The other question relates to the value of the vessel. In forming this valuation, there were added to the first cost sundry charges, on the propriety of which we are now to determine. On the trial one account was rejected, and we still think those charges improper, because they accrued prior to the 6th of February, 1800, five months before the policy attached; but principally because they are, with hardly any exception, of such natures as to have been occasioned solely by her stay at Gruadaloupe, and such as gave no permanent value to the vessel. They consist (except one anchor) of provisions, which must have been con sumed while the vessel was used as a storeship, and of wages and other disbursements, which become necessary by such stay, and ought not to swell the computation when we are ascertaining her worth. To the other account it is objected that the items are neither proper nor well proved. As to the proof, the witness says, “The bill of disbursements for the ship paid by h'im for repairs and necessaries to get the ship despatched on the voyage from Point Petre to St. Thomas’s, amounted to 4,461 dollars, as per account (A) annexed.” There is nothing of hearsay in this; he paid the money himself, and states on what account. What he heard related only to the purchase money, not to what was paid for repairs; it is true there is no date to this account, but it is a fair deduction, from the deposition of Davis, that all these expenses were incurred after he took possession of her, which was in July, 1800 : for he expressly states, that he cannot say what expenditures took place before the vessel came to his hands. The propriety of many of these charges against an underwriter on the vessel is also denied. ,If these be deducted, there will still remain a sum large enough to entitle the plaintiff to retain his verdict. It is admitted that in estimating the value of a vessel, it is usual to allow a month’s pay advanced to the captain and crew, provisions for the voyage, and all other charges for articles necessary to prepare her for it. The counsel will be furnished with an estimate of the court according to this opinion, in which the deductions must be regarded as liberal as they respect the underwriters. *Upon the whole, we are satisfied that the first cost of the vessel, and the expenses of such repairs and outfits as are properly chargeable against the underwriters on her, are fully equal to the sums covered by the two policies, and that therefore, a new trial ought not to hr granted. New trial refused. |5P“ By a statement which was read, as forming a part of the opinion of the court, the value of the Helen was thus estimated. Dollars. The Helen cost . . . 6,450 48 There was received on a prior policy . ■ 4,349 35 This leaves of her first cost for this policy 2,101 13 To this must be added the following Livres. Dollars. items of the account (A) : The hire of sundry hands for rigging and ballasting, &c. . . . 7,020 Old cordage.....360 Do. 630, an anchor, 540, . . . 1,170 fPlank, 81, carpenters, 540, . . • 1,421 Beef and pork, 864, cable, 2,070, . 2,934 Cordage bought at vendue . . . 1,440 Caulking the long boat . . . 180 Bill for plank..... 74 Blacksmith’s bill, 474, caulker’s, 756 . 1,230 Two bills for crockery for cabin, 540, and 198 ...... 738 Paid for a boat . . 576 ‡ A topgallant-sail and some others . 2,142 Two spars, 389, cooper, 270 . . 657 Shipchandler.....2,994 Carpenter’s bill, water, &c. 594 Wages to captain, &c., advanced . 3,672 * 27,202 Commissions at 5 per cent. . . 1,361 9 livres = to one dollar . 3,173 00 *Add also premium, of insurance on second policy for dollars 7,500 1,312 50 Commissions on do. at 5 per cent. 65 62 Expenses of reclaiming her after capture . 200 00 6,852 25 A mistake in adding the items marked ‡ . 44 00 Interest as usual on this sum after deducting 2 per cent. .... 137 93 6,758 32 The two per cent., which, by contract of the parties, are to be deducted in case of loss, we regard as part of the consideration for the insurance, or as so much additional premium in the event of a disaster. To add it, therefore, to the valuation would be a violation of this agreement. The passages referred to in Wesket only show how an insurance ought to be made to be completely covered, not that two per cent, of the value shall not be retained where it is so stipulated. He admits this was formerly the practice in England, but the policies there do not now contain this clause: on the whole, we think two per cent, must be deducted from the preceding valuation and interest calculated on the balance, to wit, on the sum of dollars 6,758 32. Mistake of dollars 88 88 in the item marked f makes the true sum dollars 6,669 44. а) The rule in England is, that when the words “at and from” are in a policy effected on a vessel then and before in port, the risk begins from the subscribing; when on a vessel expected to arrive at a certain place, but at which she has not arrived, the risk commences on the first arrival. Neither of these principles, it is evident, would govern here. If an insurance be “at and from” a foreign port, where a vessel then is, in the course of her voyage home, the policy attaches if she be in physical safety, though' she may be in political danger. Bell v. Bell, 2 Camp. 415. But if she arrives a wreck, and has never been once in safety, it does not. Parmeter v. Cousins, Ib. 235. But there is a degree of seaworthiness commensurate to the risk, which gives the technical safety required to render the policy effectual; for a vessel maybe seaworthy under the word “at,” while undergoing repairs, and when she would not be seaworthy “from ” her port, on the voyage, (Forbes and another v. Pilson, Park, 6th ed., p. 299, n. a, and the cases there,) though the policy be on her “at and from” her original port of departure. See also Garrigues v. Coxe, 1 Binney, 594. The value of a ship is what she may be worth at the time of sailing on the voyage insured, including repairs, value of her furniture, provisions and stores, money advanced to the sailors, and every expense of outfit, adding the premium of insurance. Marsh. 623, last ed. Agreeably to the above rule the estimate in the case was made, which, in order to be as explici on this subject as possible, is inserted at length.