Lovett v. China Mutual Insurance

Lathrop, J.

The policies in question are time policies for one year, and contain the following clause: “ Prohibited from the Eiver and Gulf of St. Lawrence, ports in Newfoundland, Northumberland Straits, Cape Breton and Black Sea, between October 1 and May 1, and from all Guano or Phosphate Islands, except the Peruvian, ports in Greenland, ports in Alaska, the Arctic Ocean, Mexican ports and places in the Gulf of Mexico: from loading (Atlantic United States coastwise voyages excepted), more than one-half registered tonnage of Grain in bulk, except at the ports of Baltimore, Philadelphia, New York, Boston, Portland (Maine), and Montreal from May 1 to September 1.”

The principal question in the case is whether the word “ ports,” in the first part of the sentence, applies to Cape Breton as well as to Newfoundland. In other words, Is the prohibition applicable to all the waters about Cape Breton, or only to the ports of that island?

It is no longer open to question that this clause is what is called in the law of insurance a warranty, and that the insured must strictly comply with it. Odiorne v. New England Ins. Co. 101 Mass. 551. Whiton v. Albany City Ins. Co. 109 Mass. 24. Birrell v. Dryer, 9 App. Cas. 345.

In Odiorne v. New England Ins. Co. the clause was in this form: “ Prohibited from the Eiver and Gulf of St. Lawrence, Northumberland Straits, or Cape Breton, and Black Sea, between October 1 and May 1.”

In Birrell v. Dryer, 9 App. Cas. 345, the clause was “ Warranted no St. Lawrence between the 1st of October and the 1st of April.” This was held to include both the Eiver and Gulf of St. Lawrence.

In the case before us, the policy has amended the clause used in the policy in Odiorne v. New England Ins. Co. by inserting the words “ ports in Newfoundland ” as among the places prohibited, and has added other prohibited places : but where “ ports ” only are prohibited the language is clear and precise: “ ports in Greenland, ports in Alaska, the Arctic Ocean, Mexican ports and places in the Gulf of Mexico.” We have not overlooked the fact, somewhat relied on by the plaintiffs, that the clause in relation to loading grain excepts certain ports, naming them: But we do not think that this clause throws any light upon the question before us.

It seems to us that the true construction of the contract is that the waters of Cape Breton, and not merely its ports, are prohibited ; and that the vessel was clearly within the waters of Cape Breton, whether she was within the port of Sydney or not. The first six requests for instructions were, therefore, rightly refused, and the rulings and finding of the judge of the Superior Court were right. Exceptions overruled.