Lincoln v. Boston Marine Insurance , 159 Mass. 337 ( 1893 )

Holmes, J.

The policy originally insured “ $5,000 on freight, under deck, on board or not on board said vessel, at and from Hew York, via Philadelphia, to Seattle, and at and thence, privilege lumber port, to ports discharge, and/or loading west coast South America, and at and thence to port of advice &/or discharge in Europe or Atlantic United States, and fifteen days on vessel in port after arrival.” Then was added, “ Held covered in event of deviation or change of voyage, for not exceeding eighteen months from date of this policy, at tariff rates of premium.” The freight was valued at $15,000.

The doctrine of Thwing v. Washington Ins. Co. 10 Gray, 443, 453, 454, and of the Supreme Court of the United States, with regard to policies very like the present, is that “ the insurance was upon the freight of each successive voyage, and is to be applied to the freight at risk at any time, whether on the outward or homeward voyage, to the amount of the valuation.” Insurance Co. of the Valley of Virginia v. Mordecai, 22 How. 111, 118. Hugg v. Augusta Ins. & Banking Co. 7 How. 595, 610. It is true that it does not appear, as it seems to have appeared in the former Massachusetts case, what proportion the valuation bore to the freight actually earned or expected to be earned under the successive charters of the vessel. But it is enough that nothing is shown to contradict or render improbable the above interpretation. In one respect, indeed, this case is stronger than those cited. The clause giving liberty to deviate makes the policy more nearly a time policy, and so subject to a provision, which we shall quote in a moment, the space limits being inserted only for the purpose of fixing the length of the time and the cases in which a further premium must be paid. We are of opinion that the cases cited apply.

But it is argued that, even if our construction of the policy be adopted, when the vessel was unloading, as fast as the policy became unnecessary for the protection of the freight of a discharging cargo, the freight of the next cargo should be held to succeed to the protection, so as to keep up a constant insurance of $5,000 upon freight valued at $15,000. The implication of the decisions to which we have referred is the other way, and the conclusion is strengthened by another provision of the policy. The policy is a general form used for both vessels and freight, and containing clauses applicable to different classes _of risks. Among them is the following: “ It is also further agreed that voyage policies on freight on board or not on board shall attach at the first port specified, as soon as the inward cargo is landed, and no sooner, whether the vessel be under charter or not, and shall terminate at port or ports of destination with the landing of cargo, in proportion as amount hereby insured bears to full amount of freight or charter for the whole voyage insured.” Possibly this does not apply to an insurance like the present, or at any rate to an intermediate port. But it goes on: “ Time risks on freight shall attach and terminate in the same manner, applying to each cargo (or voyage, if in ballast and not chartered) successively, or to each charter successively in case vessel be chartered.” If these words do not apply literally to the case at bar, at least they furnish a striking analogy, and go far to confirm the implication of the rule laid down in the decisions. Apart from the question remaining to be considered, we are of opinion that, while the vessel was unloading, the policy covered only the freight of the voyage then ending, and did not insure any part of the freight of the next succeeding voyage, although there was a charter party outstanding, and although we assume that the plaintiff had an insurable interest. No doubt the distinction is arbitrary between the positions immediately before and immediately after unloading the cargo. But contracts always are arbitrary in what they do or do not undertake. There is nothing irrational, however, in a contract of insurance on successive voyages, keeping each distinct, and the policy shows the defendant’s habit and intent, in cases at least closely resembling this, to make that kind of policy. We refer to the clause which we have quoted as to time risks.

If the case stopped here we understand it to be agreed that by our construction the defendant would not be liable for freight. The freight on the cargo which was unloading at the time of the loss was all paid. But the vessel, instead of sailing to the west coast of South America from Tacoma, had gone to Sydney, where the loss occurred, and after her arrival there had been chartered for a voyage to Manila. On December 12, 1891, the defendant, being informed of the facts, made the following indorsement on the policy: “December 12, 1891. Having deviated from Seattle and Tacoma to Sydney, N. S. W., this policy now attaches at and thence via Philippine Islands to port of advice &/or discharge in Atlantic United States, and fifteen days on vessel in port after arrival. Addln. prem. @ 2|- $421. Fuller, Pst.” It is argued that the words “ now attaches ” made the policy attach at once to the Manila freight, and that otherwise the indorsement was unnecessary. But we think this is straining the word “ now ” too far. “ Now ” seems to us merely to mark the antithesis between the former and the present description of the voyage, and to accept the new description henceforth. It means “ after and in view of the deviation mentioned.” The indorsement may not have been absolutely necessary, considering the clause which we have quoted as to deviation, but it fixed specifically the additional .premium which by the terms of the original policy was to be paid, and gave the insured the advantage of an express assent to the very things done and intended, instead of a general permission which included them only by construction.

By the terms of the agreed statement, the plaintiff is entitled to judgment for $293.48, admitted to be due from the defendant as a general average charge on freight, but for nothing more.

•Judgment for the plaintiff for %%93.¿¡8.