Martin v. Fishing Insurance , 37 Mass. 389 ( 1838 )

Putnam J.

delivered the opinion of the Court. The loss alleged in this case is admitted, or not denied ; and several objections have been made to the payment of it by the defendants, which will now be considered. No fraud on the part of the plaintiff is suggested ; no concealment is pretended.

It was.insisted for the defendants, that there was a warranty that the vessel was sheathed. The words in the policy which are relied upon are, the “ company not liable for any damage to or from her sheathing.” The report thus states this part of the case. “ It being proved that the vessel was not sheathed at the time of the loss, the defendants’ counsel objected that the plaintiff had not made out his case in this particular, the plaintiff, at the time of making the insurance, having represented, that she was sheathed, and the description of the vessel in the policy being a warranty, the fulfilment of which was essential to his right to recover, and which he was bound to prove.” The case also finds, that there was no other representation upon this matter, excepting that which has been cited from the policy. „

If it is to be considered as a representation, and the defence put on the ground, that it has not been complied with, we think it cannot prevail ; for it is evidently touching a matter not material. The report states, that there was evidence in the case tending to show, that sheathing is not considered of advantage to a vessel in the coasting trade ; which was the employment in which this vessel was engaged.

And the clause was introduced evidently with another intent than to be a warranty, in the strict meaning of that term m the law of insurance. It was introduced for the protectiou of the defendants against the risk of loss for damage which might happen to the sheathing, which, as the report states, one of the directors of the company had examined when the vessel was in Boston, two or three weeks before the insurance, when it was found not to be very good. Now the defendants were unwilling to be subject to any loss on account of that old sheathing. It is not to be considered a warranty, any more than the clause which provides that the underwriters shall not be liable for any loss upon grain, &c., would be a warranty that the cargo consisted wholly or partly of grain, or than a stipulation that the defendants would not be liable for any damage to the stern boat, if suspended fronr the stern davits, would amount to a warranty to carry a boat astern.

And it was further argued for the defendants, that there was no evidence that the vessel was at or prosecuting her voyage from Calais on July 16th, according to the terms of the policy. We think the decision in Manly v. United Mar. and Fire Ins. Co. 9 Mass. R. 85, a good answer to this objection. There an insurance was made upon a vessel for one year, commencing the risk at B. on a day certain at noon ; in fact, however, the vessel had left the port of B. the preceding day, but was in good safety at sea on the day fixed, and was afterwards lost within the year; and the underwriters were held liable. Sewall J., who was a very able commercial lawyer, gave the opinion for the Court, and very properly observed, that the policy was made not with any distinct view to place, but merely regarding time. That case affords an illustration of the doctrine of warranty. If the intent of the parties was, that the policy was to attach on condition that the vessel was at B. on the day named, and that .the risk should begin there, excluding every other place, then the policy never attached. But the Court held, that the intent was to commence the risk on a day certain, and that the intent to insure at B. was not exclusive of any other place. It is a material fact in that case, and in which it is similar to the case at bar, that when the policy was made, neither narty knew when the vessel sailed from the port named ; and it was the clear intent of the parties to insuve on 1'me> without regard to the place where the vessel might then be, but with regard to the employment in which the vessel was engaged, viz., in the coasting trade. This objection, we think, cannot prevail.

It was then objected, that no evidence was offered of any preliminary proof before bringing the action, excepting an abandonment which was not accepted, and a demand of payment of the loss, and a written agreement of reference, and the testimony of one of the plaintiff’s witnesses, that the defendants had always resisted the right of recovery, on account of the unseaworthiness of the vessel.

But the report finds that there was no evidence, that the defendants, in their communications with the plaintiff, made the want of proof a ground of their objection to pay the loss claimed. And the court very properly left it to the jury to determine, whether the defendants had not waived their right to any further proof, or whether it was not evidence, that they had such proof. We all think that direction was right, and are satisfied with the result expressed by the opinion of the jury, for the plaintiff, as to that part of the case.

Then it was contended, that the vessel was unseaworthy, in respect that her chain cable was too short. Now the report finds, that in June previous to the date of the policy, the ves sel was at Boston, and that she was then equipped with chain cables of sufficient length ; that she sailed from New York for Boston on December 13, and was wrecked on the 15th, and came into Newport on the 24th ; and that soon after her arrival, she had but 49 fathoms of chain cable, which was confessedly insufficient to render her seaworthy, there being no evidence as to the time when the deficiency in the chain happened, although there was evidence tending to show, that there was sufficient when she sailed from New York. The question was, when the deficiency took place. The legal presumption was properly stated to the jury on this point, that if they found the vessel was seaworthy when the policy attached and the risk commenced, she so continued. The part of the cable might have been purloined at Newport. At any rate, there was no evidence introduced by the defendants to rebut the presumption of the law before stated, as to seaworthiness, or to show that there had been any neglect properly attributable to the plaintiff in that respect.

But the most material objection remains to be considered, viz., whether the plaintiff is entitled to recover for more than one half of the vessel. It is to be recollected, that the defendants caused the plaintiff, for whom it might concern, payable to him, to be insured the sum contained in the policy. Now it is contended, that the title to one half of the vessel was in one Lamson, when the policy was made, and that he sold out his half before the loss, and so had no interest at the time of the loss ; and so, by the adjudication in Carroll v. Boston Mar Ins. Co. 8 Mass. R. 515, Lamson could not recover, nor could the plaintiff recover for the use of Lamson, or of his assignee, who became such without the assent of the defendants.

The plaintiff has proved the loss, and he now claims to recover in his own name, for account of whomsoever the loss concerned. The money, by the terms of the policy, was to be paid to him. But it was to be paid only to those who were interested at the time of the loss ; for they only, in legal contemplation, were to be considered as concerned. The plaintiff insists, that he was so interested in the whole concern at the time when the policy was effected, and especially at the time when the loss happened, as to be entitled to recover the whole for his own use.

The report finds, that the plaintiff and Lamson bought the vessel together, and that the policy was made payable to the plaintiff, because Lamson had paid nothing for the vessel, and the plaintiff had indorsed Lamson’s notes given for his moiety. And this statement was made to the president and secretary of the insurance company. And the plaintiff paid the whole of the premium. The plaintiff therefore had an interest when the policy was made, that the loss, if any should happen, should be paid to him, to enable him to get an indemnity against the liability he had assumed as indorser for Lam-son for his half of the vessel. But there was no writing at tha time between the plaintiff and Lamson in the nature of a mortgage, or otherwise. But after * few months, and before the loss, viz., in October following t-he July when the policy was made, Lamson, like an honest man, gave a bill of sale to the plaintiff of his moiety, and he afterwards deceased. The plaintiff then became directly interested in the whole vessel, and continued to be and was interested in the whole at the time of the loss. The case does not resemble Carroll v. Boston Mar. Ins. Co., which was relied upon by the defendants, upon this point; for there the assignment was to a stranger tc the party named in the policy, here not.

If no assignment had been made by Lamson, there could be no doubt but that the plaintiff might have recovered the whole, and would be accountable to Lamson for the half; and he would, without doubt, have been thereby released from his liability as indorser. The intent of Lamson was to give the plaintiff an actual title, and not a mere contingent equitable interest. And can it be maintained, that the assignment shall be considered as operating so as to destroy the right which be before had to receive the whole money in case of loss ? We think not.

In Rhind v. Wilkinson, 2 Taunt. 242, it was considered that an averment of interest at the time of effecting the policy, is immaterial. The court held, that if the declaration had averred, that the plaintiff was interested at the time of the ship’s sailing, or that the policy was made on a certain day, and that afterwards, on a subsequent day, the plaintiff acquired an interest, it would be sufficient. The material allegation is, that the party assured had a legal interest at the time of the loss.

We are satisfied that the plaintiff had such interest, in the case at bar, and that none of the objections which have been raised, can prevail against the plaintiff’s legal claim to recover.

The plaintiff, in the agreement to refer, has waived his abandonment, and claim for a total loss, and the case must be submitted to an assessor to assess the damages as upor a partial loss.