Maryland Insurance v. Bossiere , 9 G. & J. 121 ( 1837 )

Stephen, Judge,

delivered the opinion of the courts

This case comes up upon an appeal from the judgment of Baltimore, county court, rendered in an action of covenant, instituted in that court upon a policy of insurance, executed by the appellant, for the appellee, upon the return cargo of the schooner Argonaut, at and from St. Andreas to the port of Baltimore, with the liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. The parties to this controversy, differ about the true construction and operation of this policy, as to the voyage it was intended to cover. The Argonaut it appears by the proof in the cause, sailed from the port of Baltimore about the middle of November, 1830, for the Spanish main, and after visiting several places on the Spanish main, arrived at St. Andreas, according to some of the proof in December, 1830, or January, 1831, or as proved in another part of the testimony, on or about the 27th day of December, 1830. From St. Andreas, she proceeded to Cordea and San Bias, where she traded, and after leaving San Bias was lost by the perils of the sea, having capsized, and as proved by the captain, she went to pieces. In the deposition of Captain Maginney, which was inclosed in a letter by the assured, to the president of the Maryland Insurance Company, and given in evidence upon the trial — it appears that the Argonaut was at San Bias on the 14th day of February, 1831, on which day she left that place for St. Andreas on her way home, and on the 15th of the same month was struck by a heavy squall of wind, capsized and lost. It is to be observed that this testimony corresponds with the report of Captain Drinkwater on his arrival from St. Bias at Baltimore, and which report was contained in the order or proposal for an insurance. That order is in the following words:

“ 4,500 dollars insurance is wanted on cargo of schooner Argonaut, Captain Maginney at and from St. Andreas, with liberty of two other ports on the Spanish main, and at and from any of them to Baltimore, with a return for each port not used. Captain Drinkwater of the schooner Desiah, arrived here a few days since from St. Bias, and reports that the Argonaut sailed from St. Bias for St. Andreas about the middle of February to trade — which is the last account received of her proceedings.”

Upon this order the insurance was effected, and when the policy was executed the order was referred to and adopted as a part of it. The vessel and the greater part of the cargo having been lost after she left St. Andreas on her first arrival at that port, and before her second contemplated arrival when she was lost. The true construction of this policy becomes vitally important to the parties in this case, as upon it depends, the right of the assured to claim an indemnity for the loss he has sustained. After a careful consideration of the arguments which were urged in behalf of the respective parties to this controversy, we have come to the conclusion that the underwriters are not responsible for the loss which the assured has sustained, because we think that according to the true construction of their contract, the loss occurred before the inception of the voyage, which the policy was intended to cover; and consequently before the risk commenced, which they intended, and did in fact, assume. In the construction of the contract of insurance, as in all other cases, the intention of the contracting parties is to be regarded, and when it can be ascertained, it must govern and control their rights under it. The order being adopted into the policy, forms a part of it, and must of course be adverted to, and considered in giving a construction to the policy in this case. It is a well established principle in the law of insurance, that the underwriters are presumed to be acquainted with the nature and course of the voyage which they undertake to insure, and it is in proof in this case, that the vessel arrived at St. Andreas on or about the 27th of December, 1830, and left there a few days thereafter, and the insurance was effected on the 4th of April, 1831. If these facts had been known to the Insurance Company at the time the application for insurance was made, it is proved by the presidents of two Insurance companies, gentlemen of long and extensive experience upon such subjects, that the vessel would have been considered out of time, and the risk would according to common practice or usage in such cases have been declined. Such a risk then, it is fairly to be inferred would not have been assumed by the insurers in this case, if these facts had been known by them at the time they subscribed the policy. Nor do we think that such an insurance would have been suggested by the interest of the insured under the circumstances given in evidence, nor could the underwriters have supposed that such a risk was asked to be assumed. The vessel had left that port and had performed a great part of the voyage; had visited and traded at two of the ports to which she was privileged to go according to the terms of the policy, and in going to St. Andreas a second time, would have been guilty of a deviation, which would have vacated the contract of insurance, and discharged the underwriters. In giving a construction to this policy, it is moreover to be borne in mind, that the underwriters were distinctly and explicitly informed by Mr. Thompson, the agent of the assured, in the order for the insurance, that Copt. Drinkwater of the schooner Besiah, had arrived a few days before at the port of Baltimore from San Bias, and brought intelligence that the Argonaut had sailed from that place for St. Andreas about the middle of February to trade, which was the latest account received of her proceedings. What was the object of the communication of this intelligence ? The insurance asked for was to be on the cargo, at and from St. Andreas, with liberty of two other ports on the Spanish main. The object of the communication of the report of Captain Drinkwater was therefore, to give them the latest intelligence of the schooner, and when they might calculate upon her arrival at St. Andreas, that they might estimate the risk they were asked to assume accordingly. It was therefore, we think, clearly the intention of the underwriters in this case, and such is the legal effect, construction, and operation of the policy, on which this suit was instituted, that it was to attach, and the risk to commence on the arrival of the vessel at St. Andreas, on her sailing from St. Bias, as reported by Captain Drinkwater. Mr. Thompson’s communication of this information to the underwriters, was we think, evidently intended to describe and define with certainty and precision the voy age to be insured, and to obviate all mistake and misapprehension upon the subject of the risk he asked to be assured. There are other views which might be taken of this case, strikingly illustrative of what must reasonably be supposed to have been the intention of the parties to this contract, but it is deemed unnecessary further to enlarge the discussion or enter into a more detailed reasoning upon the subject. The application for insurance in this case was made on the 4th of April, 1831, and information of the report brought to Baltimore by the captain of the schooner Desiah, was very properly communicated to the underwriters, not only to enable them to estimate the risk they were asked to assume by forming an opinion as to the period when it would be likely to commence by the arrival of the vessel at St. Andreas, but also to describe and ascertain the voyage they were asked to insure.

The first prayer therefore made to the court by the counsel for the insurers, for their instruction to the jury, having taken an erroneous view of the true construction of the order for insurance, was properly rejected by the court; and we think that such refusal presents no ground for a reversal of their judgment; but we think that the court clearly erred in suffering the testimony taken under the commission to St. Andreas to be read to the jury. Torquil Bowie, who was associated with one of the commissioners in the execution of the commission, acted without authority; he derived no power for such a purpose from the court by whose order the commission was issued to the commissioners originally named therein. The commissioners are the depositories of the confidence of the court; it is a special trust and confidence reposed in them, and cannot be transferred, delegated, or usurped by another. It is moreover, a special authority, and must be strictly pursued.

We think also, that the court e,rred in suffering the testimony taken under the ninth interrogatory to go to the jury, it being propounded by the commissioners without authority, and it is impossible for this court clearly to appreciate the influence or weight which such improper and illegal testimony may have had with the jury in the formation of their verdict. For these reasons we think that the judgment rendered by Baltimore county court was erroneous, and ought to be reversed; but as the loss occurred in this case before the policy attached, or the risk commenced, no procedendo will be ordered,

JUDGMENT REVERSED.