Cobb v. Lime Rock Fire & Marine Insurance , 58 Me. 326 ( 1870 )

Appleton, C. J.

This is an action upon a policy of insurance upon the schooner Republic, containing this clause, “prohibited from the River and Gulf of St. Lawrence between September first and May first.” These words constitute a warranty that the vessel shall not enter those waters within the time specified. Odiorne v. N. E. Mutual Marine Ins. Co., 101 Mass. 551.

The schooner sailed from St. Johns, Newfoundland, to Pictou, N. S., in December, where she loaded with coal. After leaving Pictou the vessel encountered a heavy gale, and was lost on her homeward voyage.

The vessel was in the Gulf of St. Lawrence within the prohibited time, if the Strait of Northumberland is within the gulf, and upon consulting the authorities to which counsel have referred, we are satisfied that it is. Bowditch, in his Navigator, the work most likely to be used by ship-masters or consulted by them, places Pictou in the gulf, and designates the Gut of Canso as the northern entrance to the same. If so, according to the plain language of the policy, the plaintiff must fail.

But, it is said, though the Strait of Northumberland and Pictou may geographically be deemed as within the gulf, yet that in mercantile acceptation they are not so regarded, and that evidence to show such to be the case is properly receivable. Robertson v. Clarke, 8 E. C. L. 373; Robertson v. Maury, 21 E. C. L. 383.

The construction of a policy is to be governed by the law of the plsice where it is made. The words used are to be understood in their ordinary and popular sense, unless by some known usage of trade they have a different meaning. An usage may be local or general. But if local, the contracting parties are not bound by the usages of other places, unless they are referred to or made part of the contract. It is immaterial what may be the usage or the construction given to particular words in Boston, they will not affect a contract at Rockland, unless a similar usage or the same construction to the same words is shown to exist there, if the contract is there made. The usage must be definite and brought home to the knowledge of the parties to be affected, or so general and well established that there must be ground to presume the parties had knowledge of it, or that they were bound to be informed of it.

Now the evidence entirely fails to show that in this State or at Rockland, there was any such meaning attached to the prohibitory clause as the plaintiffs claim. The evidence on the subject is contradictory. When the evidence is thus contradictory, and the defendants utterly deny any knowledge of such a construction as the plaintiff's contend for, the contract must be taken in the ordinary acceptation of the language used. Plaintiffs nonsuit.

Cutting, Kent, and Barrows, JJ., concurred. Dickerson, J., concurred in the result. Tapley, J., did not concur.