Ellery v. New England Insurance , 25 Mass. 14 ( 1829 )

Putnam J.

delivered the opinion of the Court. It is con-r tended for the defendants, that they are discharged on the ground of deviation.

The argument is, that having elected at Bahia to go to Boston and actually proceeding upon that voyage, the plaintiff had no right to go to Salem.

We think that this construction would be too narrow. It would take away the liberty which was granted by the policy, to go to “ all ports and places on the globe,” within the term specified. The limitation would extend as well to the outward, or any intermediate voyage, as to the returning voyage, and would deprive the plaintiff of the commercial or other advantages which might occur, and from profiting by the advices which he might receive on the passages or elsewhere. Now it seems to us, that the parties have used the broad phraseology in the policy with the manifest intent to exclude the constrnetion for which the defendants contend. This policy was f°r tlme- The plaintiff was by implication of law required to have the ship properly manned and furnished, and employed in some lawful business ; but it was left'to his discretion to send her to such ports and places as he should think prop ;r. When she-was ordered to Salem, there were three or four months of the term unexpired. The repairs which were required, were from ordinary wear and tear. But it was lawful for the assured to make them, without prejudice to the policy, as it would have been if they had arisen from any perils for which the underwriters were liable. We are satisfied that the plaintiff had a right to order the ship to Salem for that purpo ;e, instead of terminating the policy at Boston by returning to t tat port.¹

It does not appear, whether the assured intended to send the ship to Boston or elsewhere, after she had been repaired. Nor is it material that it should. That was the concern of the assured, touching which the underwriters had no right to be informed. It was for the plaintiff to determine v hether he would put an end to the policy within the two years or not. After the ship had been repaired, she might have been employed in any lawful voyage or business. In short, t tere could be no deviation in regard to the port or place to which she might be ordered, for any lawful purpose, within the wo years.

It is further contended, that the loss was upon the land, and m the course of a dangerous process of repair, not practised in this country when the policy was made, and for nc use connected with the voyage, nor to enable the ship to c ampíete it within the time.

It is proved that the ship was in need of repairs, to enable her to make another voyage ; which might be undertaken, if not accomplished, within the time. These repairs could be more expeditiously and safely made upon a marine railway, than by heaving the ship out. The evidence upon this fact is clear. The new mode has almost entirely superseded the old one. The ship being within the protection of the policy when repairing, “ the means must be taken to be insured .is well as the end.” Per Lord Mansfield, in Petty v. Roí il Exch. Ass. Co. 1 Burr. 34S. The tackle and furniture' in the case cited, were burnt upon the land, in a store where they were properly placed while the ship was having repairs made ; and they were held to be at the risk of the underwriters. So it would unquestionably be, if the ship should be, for good reason, put into a dry dock to be repaired, and be burnt. She would be as much at the risk of the underwriters as if she had been burnt upon the high seas.

The case cited, of Thompson v. Whitmore, 3 Taunt. 227, proves that if a ship, hove down on the beach to be repaired, should be thereby bilged and damaged, it is not a loss by the perils of the seas, as the damage happened upon the land The averment in the declaration was for a loss by the perils of the seas, and the plaintiff was-nonsuited. That case was cited in Phillips v. Barber, 5 Barn. & Ald. 161, which in many particulars is like the case at bar. The policy was for time, “ at sea and in port,” and the ship was blown over when in the graving-dock for repairs, and bilged. The opinion of the King’s Bench was given by Abbott C. J., who stated, that “ the loss was occasioned by the violence of the wind and weather in port; and it seemed to him, therefore, to have been produced by a peril ejusdem generis with those specified, and to fall within the general words of the policy.” In the case at bar, the particular circumstances of the loss are stated with sufficient certainty in the first count. The loss comes within the general description of 11 all other losses ” ejusdem generis with those which are named in the policy. It falls within the scope of the policy. See Butler v. Wildman, 3 Barn. & Ald. 398, S. P.¹

The suggestion, that the parties did not contemplate the repairing of the ship upon a railway, we think would have had great weight, if this had been the first experiment; but the railway had been tested again and again. It was in common use when the ship was placed upon it. - Any prudent shipowner or master would be justified, if not required, to use it. The defendants would have had much more reason to complain of a claim for a loss which might have happened from heaving out or heeling the ship, as formerly practised, when she might have been placed upon a railway to be coppered The parties may reasonably be supposed to contení ilote, that the most approved means shall be employed in re lairing, as well as in the management of the ship.²

It is further contended for the defendants, that the verdict is against the evidence, upon the point of negligence o' the master of the ship, and of the superintendent of the railway. The jury have found, that the loss was not occasioned bj the carelessness or misconduct of either of them.

If it had arisen from the negligence of the mastei, it would have been a good defence. But upon examining the testimony very carefully, we do not perceive how that allega ion could be supported against him. He was bound to make a proper representation of his ship to the superintendent of thi railway, and from the testimony of the superintendent himself it would seem that a correct representation was made ; although the superintendent might not have fully comprehended it. The master said, that “the ship was very flat amidships and cut up at each end and so she was. He surrendered the ship to the direction of the superintendent, to have her prope rly placed upon the railway, and he did, and caused to be done, all things which the superintendent required.

Then it is argued, that there was negligence on the part of the superintendent, in not fashioning the blocks to tl e form of the bottom of the ship, and that the loss was occasio led thereby. If that were proved, it would not follow that :he underwriters should be discharged. The consequences of the negligence of the superintendent should not be visited upon the assured or the master, any more than the negligence of a pilot would be attributed to them. Carruthers v. Sydebotham, 4 Maule & Selw. 77. In that case the ship was lest by the misconduct of the pilot, but the underwriters were held to be answerable.

There is evidence upon both sides concerning the alleged negligence of the superintendent. Some witnesses think the ship was destroyed because she was not properly blocked, and others, that she would have gone upon the railway i i safety if the wind. had not blown so hard. One witness stated, that at “ the critical time ” when she touched forward and was waterborne aft, “ the squall struck her,” and blew her over. It was a question fairly submitted to the jury, and we do not think the Court would be justified in disturbing their verdict, upon that point, whichever way it might have been given.

Upon the view of the whole matter, we are all clearly of opinion that the plaintiff should recover for a total loss.

Judgment according to verdict.

1 2 Phillips on Ins. 158,159, 174.

1 2 Phillips on Ins. 191,194

2 2 Phillips on Ins. 176.