Coggeshall v. American Insurance

3 Wend. 283

Opinion

By the Court,

Savage, Ch. J.

The policy in this case being on time, is subject to the rules of construction in other cases, except as to the commencement and termination of the voyage. The risk is made to commence on the loading the goods on board the vessel on and from the 10th of July, jggg. The policy was entered into in October following.But parties may contract, and have done so in this case, so as to incur risks antecedent to the date of the contract. The risks commenced upon goods on board the vessel on the 10th July, provided any were then on board. The evidence on that point is, that the nine baskets of plata pina which belonged to the plaintiff, were purchased with Ms share of the outward cargo. The plaintiff’s goods on board, then, must have been of much greater value than the amount insured ; and this I think is conclusive, being uncontradicted, to shew that the policy attached upon the goods with which the plata pina was purchased.

Did the policy attach to the plata pina, or was the voyage ended ? Where the adventure was to run six months, with the privilege to the insured to extend it two months longer, a trading voyage was evidently contemplated by both parties ; and it cannot be fairly construed to be at an end at the first port which the vessel makes, but is to continue in the same manner as if a trading voyage had been expressed, with liberty to touch and trade at such ports and places on the globe as the insured shall choose, subject to the accustomed and usual mode of transacting business at the several places visited by such vessel; and however often the goods may be changed, the policy attaches. Any other construction would suppose extreme folly and weakness in the insured. The idea that a person engaged in shipping goods intends to sail upon the ocean for six or eight months with the goods, and return them in specie to the port of departure, or any other port without the liberty of disposing of them, is too preposterous to be for a moment admitted.

In Grant v. Paxton, (1 Taunton, 474.) Mansfield, chief justice, speaking of the case of Grant v. Decarvin, where the policy was in terms similar to what I contend was the meaning of'the parties in this case, says, “ It was on goods laden in London, and to continue on the same goods, which, literally taken, would be absurd, because goods are taken out for the purpose of trading and barter, not to be brought home again in specieand that consequently the captain (the agent of the insured) had a right to trade with his goods as often as he pleased, and the insurance attached upon the goods acquired by him in the course of his trading. “ If the goods described in the policy are exchanged at any port in the course of the specified voyage, the policy will apply to the substituted goods, without any express provision for this purpose, where the insurance is to several ports, which seems to imply the liberty of exchanging the goods.” (Phillips on Ins. 69, citing Valin, 2 vol. p. 78, n. t. a. 27.) A policy on time simply, where no ports are mentioned, must, as already remarked, necessarily imply a trading voyage, which again implies liberty to dispose of the goods insured. It seems to me, therefore, no doubt can be entertained that the policy attached to the proceeds of the goods insured.

It is objected, however, that the substituted goods were not on board of the vessel, but were lost in their passage from the shore to the vessel in the plaintiff’s own lighter. Could we reasonably entertain the opinion that these were the first goods of the plaintiff on board the vessel, or attempted to be put on board subject to the policy, then undoubtedly the policy would never have attached. By the terms of the policy, the adventure commenced from the hading the goods on board on or after the 10th July; but as the plaintiff had previously goods on board, with the proceeds of which the plata pina was purchased, the supposition cannot be admitted. As the transaction in question cannot, therefore, be considered the beginning or the termination of the adventure, the cases referred to, shewing that where the insured has taken his goods into his own possession in his own lighters the risk ceases, can have no application to this case. Where the defendants insured the plaintiff’s goods upon a trading voyage, the insurance was intended to cover those goods, and any other goods, the property of the plaintiff, procured with their proceeds, until the expiration of the term insured for. As the goods were not on board the vessel when lost, the liability of the defendants must depend upon the known course of trade and established usage, with which insurers are supposed to be conversant. Upon this principle, the plaintiff recovered in Pelly v. The Royal Exchange Co. (1 Burr. 341,) for the sails, tackle and apparel of the ship while in a bank saul or ware bouse built for their protection upon an island, while the ship was refitting; it being usual for vessels in the same trade to c*ear an<^ re^ their vessels in that place. So, also, the case of Tierney v. Etherington, referred to by Lord Mansfield in the former case, (1 Burr. 348,) the insurance was on goods in a Dutch ship from Malaga to Gibraltar, and from thence to England or Holland: the goods might be unloaded at Gibraltar, and re-shipped in an English ship for England or Holland. When the ship arrived at Gibraltar, there was no British ship there, and the goods were put into a store ship, which was considered as a ware house, and were lost in a storm. Ch. Justice Lee said, the construction of the policy should be according to the course of trade in this place, (meaning Gibraltar) and this appears to be the usual method of unloading and re-shipping in that place when no British ship was there. So in this case, it appears that the balsas were the usual and indeed the only means of loading and unloading vessels; and even if we were to adopt the doctrine that the underwriter is discharged by the plaintiff tak-' ing his goods in his own lighter, (which is certainly not an established point in this country,) still it does not apply in this case, 1. Because this was not the termination of the adventure ; and 2. Because the balsa was not the balsa of the plaintiff, although employed by him and paid by him ; yet as to him it was a public lighter. Whether it belonged to the custom-house at that place does not appear; but if not, it was a conveyance public to all who chose to transmit goods to or from the shore, and was, as to its navigation, not under his (the plaintiff’s) control. This opinion is fortified by the opinion of the court in Parsons v. Mass. Fire & Marine Ins. Co. (6 Mass R. 202, 8,) where Sedgwick, justice, says: “ For although in the commencement of the voyage the insurance did not attach upon the goods while in the act of transportation in boats to the brig, nor until they were on board, and this from the terms of the policy, yet during the voyage the goods were as much protected by the policy in the boats, while they were employed as auxiliary to the legitimate purposes of the voyage, as they were on board the ship. For all the purposes of the voyage, boats so employed are very reasonably considered as part of the ship.” These remarks are applicable here; for though the words of the policy in this case are not the same as those in the case last referred to, yet I have considered the policy equally comprehensive in the construction which must be given to it, if it must be supposed to have any rational meaning.

The plaintiff is entitled to judgment.