THOMPSON, Circuit Justice.
Two grounds have, been taken in support of the application for a new trial in this case: (1) That the verdict is against the evidence given at the trial; and (2) for misconduct or irregularity on the part of the jury, for disclosing the verdict before it was delivered in court. The action is upon a policy of insurance, bearing date 'the 11th of January, 1830, $1,500 on the -schooner Director, and $1,000 on the freight, on a voyage at and from Ocrocoke in North Carolina, to Saint Bartholomew’s or Saint Thomas in the West Indies, and at and from thence to Tobasco, and at and from thence to New Pork. The schooner arrived safe at Tobasco, and took in her return cargo, and sailed on the 13th of September, 1829, on her return voyage,' and was lost on the bar at the mouth of the harbor of Tobasco. The jury at the trial in September last, found a verdict for the plaintiff for the whole amount claimed.
It is contended that the verdict is against the evidence, upon two points submitted to the jury: 1. With respect to the representation as to the age of the vessel; and 2. With respect to the deviation. The representation on procuring the policy to be underwritten was, that the vessel was six years old, and stood in New York on the books of the insurance companies A 2 good., whereas, in point of fact, it appears from the evidence that she was seven years and eight months old, and did not stand on any of the books of the insurance companies in New York as A 2 good; but in four of the companies as A 3, and in one in 1829, as A 2, but ought to have stood A 3 good, in the opinion of the inspector who kept the books. It is contended on the part of the assured, that this is matter relating to the seaworthiness of the vessel, and becomes immaterial by reason of the implied warranty of seaworthiness.
It is a general rule, that all facts material to the risk, and known to the one party and not to the other, and which may affect the mind of the underwriter, either as to the point whether he will underwrite at all, or at what rate of premium, must be fully and in good faith disclosed when the policy is effected. But as an exception to this general rule, it seems to be pretty well settled, that when the matter which it would be otherwise necessary to disclose is covered by a warranty, either express or implied, no representation need be made. But when there is a misrepresentation in answer to inquiries made by the underwriter, it will avoid the policy, although the matter misrepresented may be covered by a warranty. And this distinction grows out of the principle, that the contract of insurance is peculiarly one of good faith.2 So that in the present case, if inquiry had been made by the underwriters [616]*616as to the age of the schooner, and how she stood on the books of the insurance companies in New York, the information given might have been a misrepresentation that would avoid the policy, if the jury had found it material, and that it would have influenced the underwriters. 1 Kent, Comm. 233; 1 Phil. Ins. 89; Haywood v. Rodgers, 4 East, 590. It may be admitted that it was not necessary in the first instance for the assured to state the age of the vessel, or how she was rated by the New York insurance companies. He might have remained silent without its affecting the policy. But it is no way clear, that where such information is voluntarily given, although not drawn out by inquiries made by the underwriters, it will not equally affect the policy. The very reason for not making the -inquiry might have been, that the information had already been given, and the inquiry would have been useless if not impertinent To say that information volunteered, although false and material, shall not affect the policy where the facts misrepresented relate to matter covered by a warranty, is opening a door to fraud inconsistent with sound policy, and that good faith called for in the contract of insurance. I do not deem it necessary, however, to express any decided opinion upon that point. The materiality of the misrepresentation was matter for the jury, and if tne [617]*617motion for a new trial turned upon this point, I am not prepared to say that the verdict is ;so much against the weight of evidence as to justify setting it aside.
Whether or not there was a deviation which will defeat the right of recovery, depends upon the question of usage. The voyage as described in the policy is from •Ocrocoke to St. Bartholomew’s or St. Thomas, and at and from thence to Tobasco, and at and from thence to New York. That the policy only covers a voyage to one of the •other of the West India Islands mentioned, cannot admit of a doubt unless justified by usage. It was at the election of the assured to go either to the one or the other; but the language of the policy is too plain and explicit to admit of a construction that it authorizes a voyage to both. The shortness of the time, or of the distance of a deviation, is immaterial, if voluntary and without necessity, and not justified by usage; although neither the risk nor the premium would have been increased, if the assured had wished the policy so made as to authorize going to both ports. The outward cargo was discharged at St. Thomas, and the deviation complained of is the going previously to St. Bartholomew’s. Some criticism has been made at the bar upon the evidence as to the vessel’s actually so touching at any port in St. Bartholomew’s, as could be considered a [618]*618deviation. But no reasonable doubt can be entertained upon that point. The captain in his deposition describing the voyage, says: the vessel went from Elizabeth City to St. Bartholomew’s, and from thence to St. Thomas, where they delivered all the cargo; and again he says: the vessel went first to St. Bartholomew’s and thence to St. Thomas, and after that to Tobasco. The same language is here adopted in describing the voyage to St. Bartholomew’s as to St Thomas, and will not admit of a construction that the vessel only sailed by St. Bartholomew’s, or lay off and on the harbor. But the plain and obvious construction of the deposition is, that the vessel went to St Bartholomew’s, but a market for the cargo not being found there, she proceeded to St. Thomas, and there disposed of her cargo; and this was clearly a deviation unless justified by usage. If the policy gives no liberty of touching at any specified port or ports, it is a deviation to stop unnecessarily at any port where vessels bound on the same voyage do not usually touch.
[NOTE. An intended deviation not actually carried into effect will not vitiate the policy. Marine Ins. Co. v. Tucker, 3 Cranch (7 U. S.j 357: Maryland Ins. Go. v. Woods, 6 Cranch (10 U. S.) 29. Unjustifiable delay constitutes a deviation. Warder v. La Belle Greole, Case No. 17,165. But a delay of a few hours to take from a foreign vessel the crew of a deserted ship will not amount to a departure. Williams v. Box of Bullion, Id. 17,717. Trading at a port, at which liberty is given to touch, may, when it involves delay, amount to a deviation. Maryland Ins. Go. v. Leroy. 7 Cranch (11 U. S.) 26; United States v. The Paul Shearman, Case No. 16,012. But a discharge of cargo which causes no delay nor increases the risk is not a deviation. Hughes v. Union Ins. Co., 3 Wheat. (10 U. S.) 159: Same v. Same, 8 Wheat. (21 U. S.> 294. It is not a deviation to take necessary measures to prevent capture. Haven v. Holland, Case No. 6,229. To go out of the course to save property, merely, is a deviation, but otherwise if the turning aside is to save human life. The Boston, Id. 1,673; The Henry Eubank, Id. 6,-376: Bond v. The Cora, Id. 1,021. affirming Id. Free access — add to your briefcase to read the full text and ask questions with AI
THOMPSON, Circuit Justice.
Two grounds have, been taken in support of the application for a new trial in this case: (1) That the verdict is against the evidence given at the trial; and (2) for misconduct or irregularity on the part of the jury, for disclosing the verdict before it was delivered in court. The action is upon a policy of insurance, bearing date 'the 11th of January, 1830, $1,500 on the -schooner Director, and $1,000 on the freight, on a voyage at and from Ocrocoke in North Carolina, to Saint Bartholomew’s or Saint Thomas in the West Indies, and at and from thence to Tobasco, and at and from thence to New Pork. The schooner arrived safe at Tobasco, and took in her return cargo, and sailed on the 13th of September, 1829, on her return voyage,' and was lost on the bar at the mouth of the harbor of Tobasco. The jury at the trial in September last, found a verdict for the plaintiff for the whole amount claimed.
It is contended that the verdict is against the evidence, upon two points submitted to the jury: 1. With respect to the representation as to the age of the vessel; and 2. With respect to the deviation. The representation on procuring the policy to be underwritten was, that the vessel was six years old, and stood in New York on the books of the insurance companies A 2 good., whereas, in point of fact, it appears from the evidence that she was seven years and eight months old, and did not stand on any of the books of the insurance companies in New York as A 2 good; but in four of the companies as A 3, and in one in 1829, as A 2, but ought to have stood A 3 good, in the opinion of the inspector who kept the books. It is contended on the part of the assured, that this is matter relating to the seaworthiness of the vessel, and becomes immaterial by reason of the implied warranty of seaworthiness.
It is a general rule, that all facts material to the risk, and known to the one party and not to the other, and which may affect the mind of the underwriter, either as to the point whether he will underwrite at all, or at what rate of premium, must be fully and in good faith disclosed when the policy is effected. But as an exception to this general rule, it seems to be pretty well settled, that when the matter which it would be otherwise necessary to disclose is covered by a warranty, either express or implied, no representation need be made. But when there is a misrepresentation in answer to inquiries made by the underwriter, it will avoid the policy, although the matter misrepresented may be covered by a warranty. And this distinction grows out of the principle, that the contract of insurance is peculiarly one of good faith.2 So that in the present case, if inquiry had been made by the underwriters [616]*616as to the age of the schooner, and how she stood on the books of the insurance companies in New York, the information given might have been a misrepresentation that would avoid the policy, if the jury had found it material, and that it would have influenced the underwriters. 1 Kent, Comm. 233; 1 Phil. Ins. 89; Haywood v. Rodgers, 4 East, 590. It may be admitted that it was not necessary in the first instance for the assured to state the age of the vessel, or how she was rated by the New York insurance companies. He might have remained silent without its affecting the policy. But it is no way clear, that where such information is voluntarily given, although not drawn out by inquiries made by the underwriters, it will not equally affect the policy. The very reason for not making the -inquiry might have been, that the information had already been given, and the inquiry would have been useless if not impertinent To say that information volunteered, although false and material, shall not affect the policy where the facts misrepresented relate to matter covered by a warranty, is opening a door to fraud inconsistent with sound policy, and that good faith called for in the contract of insurance. I do not deem it necessary, however, to express any decided opinion upon that point. The materiality of the misrepresentation was matter for the jury, and if tne [617]*617motion for a new trial turned upon this point, I am not prepared to say that the verdict is ;so much against the weight of evidence as to justify setting it aside.
Whether or not there was a deviation which will defeat the right of recovery, depends upon the question of usage. The voyage as described in the policy is from •Ocrocoke to St. Bartholomew’s or St. Thomas, and at and from thence to Tobasco, and at and from thence to New York. That the policy only covers a voyage to one of the •other of the West India Islands mentioned, cannot admit of a doubt unless justified by usage. It was at the election of the assured to go either to the one or the other; but the language of the policy is too plain and explicit to admit of a construction that it authorizes a voyage to both. The shortness of the time, or of the distance of a deviation, is immaterial, if voluntary and without necessity, and not justified by usage; although neither the risk nor the premium would have been increased, if the assured had wished the policy so made as to authorize going to both ports. The outward cargo was discharged at St. Thomas, and the deviation complained of is the going previously to St. Bartholomew’s. Some criticism has been made at the bar upon the evidence as to the vessel’s actually so touching at any port in St. Bartholomew’s, as could be considered a [618]*618deviation. But no reasonable doubt can be entertained upon that point. The captain in his deposition describing the voyage, says: the vessel went from Elizabeth City to St. Bartholomew’s, and from thence to St. Thomas, where they delivered all the cargo; and again he says: the vessel went first to St. Bartholomew’s and thence to St. Thomas, and after that to Tobasco. The same language is here adopted in describing the voyage to St. Bartholomew’s as to St Thomas, and will not admit of a construction that the vessel only sailed by St. Bartholomew’s, or lay off and on the harbor. But the plain and obvious construction of the deposition is, that the vessel went to St Bartholomew’s, but a market for the cargo not being found there, she proceeded to St. Thomas, and there disposed of her cargo; and this was clearly a deviation unless justified by usage. If the policy gives no liberty of touching at any specified port or ports, it is a deviation to stop unnecessarily at any port where vessels bound on the same voyage do not usually touch.
[NOTE. An intended deviation not actually carried into effect will not vitiate the policy. Marine Ins. Co. v. Tucker, 3 Cranch (7 U. S.j 357: Maryland Ins. Go. v. Woods, 6 Cranch (10 U. S.) 29. Unjustifiable delay constitutes a deviation. Warder v. La Belle Greole, Case No. 17,165. But a delay of a few hours to take from a foreign vessel the crew of a deserted ship will not amount to a departure. Williams v. Box of Bullion, Id. 17,717. Trading at a port, at which liberty is given to touch, may, when it involves delay, amount to a deviation. Maryland Ins. Go. v. Leroy. 7 Cranch (11 U. S.) 26; United States v. The Paul Shearman, Case No. 16,012. But a discharge of cargo which causes no delay nor increases the risk is not a deviation. Hughes v. Union Ins. Co., 3 Wheat. (10 U. S.) 159: Same v. Same, 8 Wheat. (21 U. S.> 294. It is not a deviation to take necessary measures to prevent capture. Haven v. Holland, Case No. 6,229. To go out of the course to save property, merely, is a deviation, but otherwise if the turning aside is to save human life. The Boston, Id. 1,673; The Henry Eubank, Id. 6,-376: Bond v. The Cora, Id. 1,021. affirming Id. 1.620; St.urtevant v. The George Nicholaus, Id. 13,578; Crocker v. Jackson, Id. 3,39S. Nor is there a deviation when the departure is authorized by the usages of the trade. Bentaloe v. Pratt, id. 1,330; Haven v. Holland, supra. For a vessel insufficiently manned at the commencement of her voyage to go- out of her course to supplement her crew constitutes a deviation. Cruder v. Pennsylvania Ins. Co., Id. 3.452. And see. generally. Glidden v. Manufacturers’ Ins. Co., Id. 5,4S2; Martin v. Delaware Ins. Co.. Id. 9,161; Wintbrop v. Union Ins. Co., Id. 17,901; Govon v. Pleasants. Id. 5.647; Coles v. Marine Ins. Co., Id. 2,988; Wood v. Pleasants, Id. 17,961.]
Underwriters are presumed to know the particular usages of the trade, and the local situation and circumstances of the ports comprehended within the voyage insured. And matters of general notoriety, and equally open to the knowledge of both parties, are presumed to be known to both. Where, therefore, a policy is made upon a particular voyage, the usages relating to such voyage are impliedly made a part of the contract, although the policy contains no express provision on the subject; but such usage ought to be so certain knd uniform, as to warrant the presumption that it is generally known as the law of. that trade. 3 Wash. C. C. 150 [Collings v. Hope, Case No. 3,003]; 1 Gall. 444 [The Francis, Id. 5,032]. Where the usage set up relates to the right of touching at any particular ports in the course of the voyage, it ought to be so uniformly pursued, that it may be presumed to be known to the parties. And two instances of touching at a particular port was held not sufficient to establish a usage in the case of Martin v. Delaware Ins. Co. [Id.], cited, 1 Phil. Ins. 184.
It is deemed unnecessary to go into a particular examination of the testimony on tne subject of usage. The weight of evidence is clearly against any known and established usage, as set up on the part of the plaintiff. And indeed it may well admit of doubt, whether if the case stood alone upon the evidence of the three witnesses on the part of the plaintiff, the usage would be sufficiently established to justify going into St. Bartholomew’s, and afterwards unloading at St. Thomas. These witnesses do not state any facts showing any usage or actual practice on this subject; but rather seem to express an opinion as to the law of the case upon a policy like the present; for they say, unless there was liberty to touch at St Bartholomew’s, there would be no use in naming the two ports; and admit that on.a voyage direct to St. Thomas, no other port being mentioned, it would be a deviation to stop at- St Bartholomew’s. This policy must be considered in this light. It is not a policy covering a voyage to more than one port for any purpose whatever; it is to one or the other of two ports, at the election of the assured. This may be a very important advantage to the assured, and by no means implies a right of going to both ports. It would be confounding language to read the word “or” for “and.” One of the plaintiff’s witnesses thinks the vessel might, under a policy like the present, lay off and on the harbor of St Bartholomew’s long enough to send in her boat to make inquiry respecting the market, but that the vessel could not go into the harbor without vitiating the policy. So that according to this witness, the plaintiff cannot recover in this case; but when the testimony of fifteen witnesses on the part of the defendants is taken into consideration, the preponderance1 is too great to sustain the verdict; and the ends of justice require that it should be set aside and a new trial granted on payment of costs; and this view of tht case renders it unnecessary to notice the other ground upon which the motion has been rested.