Bowen v. Hope Insurance , 37 Mass. 275 ( 1838 )

Shaw C. J.

delivered the opinion of the Court. The policy in the first of these cases was on time, for one year, and if the vessel should be at sea when the year expired, then the risk was to continue until her arrival in port, at a pro rata premium. The loss occurred after the expiration of the year, and the question is, whether the risk continued, upon the contingency stated, within the meaning of the policy. The term at sea may have different meanings, according to the connexion in which it is used. Here it is used in contradistinction to arrival in port. If the vessel has sailed or commenced a voyage from one • port to another, she must be considered to be at sea, within the meaning of this clause, from the com mencement to the termination of that voyage, although during parts of it she may have sought shelter in a place on the way. Then what is a departure on a voyage, and what an arrival, must be settled by the law and usage as established in reference to cases where the terndni of the voyage, and not periods of time, determine the commencement and termination of the risk. The law upon this subject.seems to be well settled, that when a vessel quits her moorings, in complete readiness for sea, and it is the actual and real intention of the master to proceed on the voyage, and she is afterwards stopped by head winds and comes to anchor, still intending to proceed, as soon as wind and weather will permit, this is • sailing on the voyage within the policy. Bond v. Nutt, Cowper, 601 ; Lang v. Anderson, 3 Barn. & Cressw. 495 ; Pettigrew v. Pringle, 3 Barn. & Adol. 523.

In an early case in this Commonwealth, it was held, that under a similar clause, a vessel might be deemed “ at sea,” whilst on a foreign voyage, though at the time the vessel was actually in port, having been captured, carried in and detained. Wood v. New England Mar. Ins. Co. 14 Mass. R. 31.

In the present case, the Court are all of opinion, that upon the facts proved, the vessel had left her moorings and commenced her voyage, when she left the city of Bangor, where she had taken her cargo, with a full purpose of prosecuting her voyage, and fully prepared for sea, and that she was therefore at sea within the meaning of the policy, on the 6th of October, when the year expired ; and then by force of the clause cited, the policy continued until the loss occurred.

In the other policy, the contingency upon which the risk is to continue at the end of the year, is a little differently expressed, the words being, if the vessel shall then be “ on a passage.” We think the meaning and legal effect are the same in this as in the other policy. A vessel is on a passage after she has left her port of .lading, fully prepared to proceed to her port of destination, and with a real intent to do so, although she comes to anchor again on account of head winds, and the intention of proceeding as soon as wind and weather will permit is not relinquished.

The Court are of opinion, that the plaintiff is entitled to recover in both cases, and that an assessor must be appointed, conformably to the agreement of the parties, to ascertain ‘he amount of loss.