Melcher v. Ocean Issurance Co. , 59 Me. 217 ( 1871 )

Walton, J.

This is an action on a marine insurance policy. The property insured is described in the policy as follows:

“ Sixty-five hundred and fifty dollars on charter, twenty-six hundred and fifty dollars on primage, and also fifteen hundred dollars on property on board ship ‘ Charles S. Pennell,’ at and from New York to San Francisco.”

It will be noticed that the defendants insured among other things a charter, meaning, undoubtedly, the freight to be earned under a charter. At the time the vessel was lost she was sailing under two charters, one requiring her to carry coal and other merchandise from New York to San Francisco, and the other to carry a cargo of guano from the Chincha Islands to Hamburg or Rotterdam. The vessel was lost on her outward voyage. The question is, whether extrinsic evidence is admissible to show which of the two charters was the one insured by these defendants. The plaintiff offers to prove that it was the guano charter; and the defendants resist upon the ground that the words “at and from New York to San Francisco,” which occur in the policy, are descriptive of the charter insured, and that extrinsic evidence to show that any other was intended is not admissible, as its effect would be to vary and not explain the policy.

We think the words “ at and from New York to San Francisco,” do not describe any portion of the property insured, but simply tbs voyage during which the risk was to continue.

It will be noticed that these words do not immediately follow the mention of the charter; that the primage and the amount insured upon it, and the other property on hoard the ship-and the amount insured upon it, intervene between the mention of the charter and the words which the defendants claim are a description of it. It seems to us highly improbable that words descriptive of a thing should be allowed to be thus separated from the mention of the thing described.' Besides, they are not, in our judgment, such words as would be likely to be selected to describe the charter, while they are precisely such as were necessary to describe the voyage. It seems to us that a charter, if described at all, would be more likely to be described by the character of the merchandise to be carried, while the voyage, during which the insurance was to run, would almost invariably be described by the mention of the ports from which and to which the vessel was to sail. Nor can we believe that the words in question were used to describe both the voyage and the charter. The property insured, and the voyage during which the risk is to run, are very different matters; and we cannot believe that any writer would employ the same words to describe both. It is difficult to conceive how he could have a description of each in his mind at the same moment, — how he could intentionally pen a single sentence that should answer two such distinct purposes. We cannot believe that the words in question were written for two such distinct objects.

We have, then, a policy in which a charter is insured. Two charters are shown to exist, either of which will answer the call in the policy. Which of these charters did the defendants insure ? Upon this point the parties are at issue. How shall it be determined ? Why is not this the precise case of a latent ambiguity, to remove which extrinsic evidence may be resorted to ? We think it is. Our conclusion, therefore, is that the plaintiff’s evidence was admissible for that purpose. Storer v. Ins. Co., 45 Maine, 175; 1 Greenl. Ev. §§ 287, 288, and authorities there cited.

Plaintiff's evidence admissible.

Action to stand for trial.

AppletoN, O. J.; Bappows, DaNfokth, and Tapley, JJ., concurred.