Gaty v. Phœnix Insurance , 30 Mo. 56 ( 1860 )

Napton, Judge,

delivered the opinion of the court.

Upon the facts found by the court, our opinion is that the Mayflower was engaged in the cotton trade at the time of the loss, and therefore the underwriters were not responsible.

The proviso in the policy was not an engagement simply against taking cotton on board the boat, but it was a stipulation that the boat would not, without the consent of the underwriters, engage in the cotton trade. If the intention was merely to prohibit cotton as an article of freight, it is apparent that a very unusual mode of expressing that intention was resorted to. Would a boat running from St. Louis to New Orleans, taking on board the articles which usually constitute the freight between these points, forfeit its policy, with a proviso like the present, by bringing up a bale of cotton from New Orleans ? Such was not, we think, the design of the prohibition. It was levelled against the cotton trade, not against an actual shipment of cotton on the boat whilst engaged in another trade.

Objections may exist against insuring a boat in a particular trade, altogether distinct from any objections to the character of the freight which that trade might imply.

What constituted the “ cotton trade” appears to be very well understood among persons engaged in our river navigation. Boats engaged in that trade are constructed or fitted up with reference to its demands. The Mayflower was altered with a view to the requirements of this trade, and was engaged in the trade for several months previous to her destruction by fire.

A permission to navigate the waters of the Mississippi, Ohio, Illinois, Tennessee and Cumberland rivers, contained in the policy, was not at all inconsistent with the prohibition against running in the cotton trade. The boat might have been a regular packet from this port (St. Louis) to Nashville, or Memphis, or New Orleans, and not, according to the evidence of all the witnesses, engaged in what is known as the cotton trade. To carry a single bale of cotton from Nashville to St. Louis does not imply that the boat is engaged in the cotton trade.

If the boat had left the cotton trade and embarked in a trade not prohibited, and an injury had been sustained covered by 'the policy whilst engaged in the trade allowed, the question would have been raised whether the previous breach of the stipulation did not wholly discharge the underwriters from liability. There is no doubt that in policies covering a single voyage a breach of a warranty would discharge the insurers, whether the loss had any connection with that breach or not. That rule is well established, however harsh its application may seem in particular cases. The principle was no doubt fixed with a view to ocean navigation, where disasters usually occur far from the observation of any human eye except of those who are the agents of the insured. Whether the principle ought to be applied to what are called time policies in our river navigation, is not necessary to be determined. The liability in such cases, like that of innkeepers under the common law, would be a strict and perhaps a harsh one; but not more so than the well settled law which exempts the underwriter from all responsibility where a ship is warranted to sail on one day and does not sail until the next. ■ It is difficult to trace a shipwreck occurring perhaps six months after the commencement of the voyage to the fact that she weighed anchor the day after dr before her policy required.

It is unnecessary, in the view taken of this case, to discuss the distinction between warranties and representations. The name by which the stipulation in this policy may be called will not change its character. It was clearly a declaration on the part of the underwriters that they would not be responsible for losses occurring whilst the boat was engaged in the cotton trade. The disaster happened when she was running ill that trade. Whether there was any connection between the loss and the breach of the engagement is immaterial. It occurred when the boat was actually in default, and it is well settled that in such cases it is hot incumbent on the insurers, in order to exempt themselves from liability, to be able to trace the loss to the default. It is like a case of deviation, where no inquiries will be allowed as to whether the accident might not have happened had the boat remained in her course.

Judgment affirmed.

Judge Ewing concurs.