De Longuemere v. New-York Fire Insurance

10 Johns. 120

• Court: New York Supreme Court
• Decided: January 15, 1813
• Status: Published

Opinion

Kent, Ch. J.

The principal ground of the motion is, that the place where the ship was lost was not a port, within the meaning of the policy, and that the ship was not in the due prosecution of the voyage when lost. The voyage insured. was from Nerv-York “ to the port of Sisal, in the province of Yucatan, with liberty to proceed to one other port in said province, not to the southward of Laguna de Términos, nor to the eastward of Cape Catoche and back to Nerv-York.” The ship had arrived at Sisal, and had proceeded to Silam, in the province of Yucatan, and within the specified limits, and was there lost by a peril of the sea. It was in proof that Sisal was an open roadsted, or port, having no harbour; vessels lying some miles from the shore, or beach, and that they land and receive their cargoes by the aid of boats. The custom-house of Sisal and of Silam was at Merida, an inland town. That the ship, when the storm came on that destroyed her, was at anchor at Silam, about eight miles from shore, being the usual and customary place of anchorage for vessels, when they lie for the .purpose of receiving a cargo on board. That Sisal and Silam are ports of the same kind, and both are reputed and known as ports, and a custom-house officer is stationed at each place.

The parties to the policy are to be presumed to have been acquainted, at the time of the subscription, with the nature and sitúation of the places to which the contract relates. The underwriter need not surely have been told the state of the coast of the province of Yucatan, nor the topography of Sisal. These are general topics of knowledge, of which every underwriter takes upon himself to be informed. The word port, in the policy, must be taken in reference to the subject matter to which it is applied. It may generally mean a harbour, or shelter to vessels from storms:

(a)

Insula portum Ej’icit objectu laterum, quibus omnis ab alto Frangitur, inque sinus scimlit sese undo reductos.

But when the term is applied to Sisal, or any other trading place on the coast of Yucatan, it cannot mean such a harbour, for it is well known, and was proved in this case, that there are none such on that coast. Humboldt says that there is not, properly speaking, a port, on the whole eastern coast of New Spain. The word was used here to designate landing places, at Sisal and elsewhere, within the prescribed limits, where ships usually delivered and received their cargoes. It is frequently defined, in the books, in this commercial sense, without any particular reference to its fitness for naval security. Molloy (b. 2. c. 14. s. 8.) defines a port to be a public place, to which the officers of the customs are appropriated.

It would be most extraordinary if the policy could not protect the vessel at the usual anchorage place at Sisal,, because there was not a safe and commodious harbour there. The defendants took upon themselves the risk of the vessel while at Sisal, and one other such port in Yucatan, with all the inconveniences of such an open and exposed shore, equally as they assured the extraordinary perils, if any, of the navigation of the Mexican sea. If Silam was a port of the same kind with that of Sisal, having only a practicable and usual place for anchorage, and loading and unloading of cargoes, it came within-the description in the policy, which was to the port of Sisal and “ one other port” on that coast. The one other port did not mean a better port, either for convemenee or safety, but another of the same kind. And, in fact, as the case proves, the ports were all of the same nature, the province affording no better; and they were used and known as ports, for all the purposes of external commerce. Clearly, then, the vessel was under the protection of the policy while at the usual anchorage, and engaged, in the usual way, in taking in her cargo at Silam.

. This point being disposed of, the others are not of much moment. The parol evidence offered by the defendants was properly overruled. The plaintiff was not bound to communicate to the defendants his knowledge of Sisal, and of the other ports or landing places in Yucatan. These were matters of fact and of general notoriety, equally open to the knowledge of both parties, and which both must be presumed equally to know. Whether the rate of premium might not have been higher, if the defendants had sufficiently informed themselves of the nature of the voyage, is a point not open for inquiry, so long as there was no undue concealment on the part of the plaintiff. The rate of premium may be resorted to as one guide to interpretation, when interpretation is wanting, but when the voyage is described with sufficient certainty, it cannot be admitted to vary the sense. As to the seaworthiness of the ship, it was a question of fact submitted to the jury, and there is no sufficient ground on which to question the justness of their conclusion.

Per totam Curiam.

Motion denied.

See Hargrave's Law Tracts, v. 1. 46. where Lord Hale, in his Treatise de portibus maris, defines the several terms road, haven, port and creek. “ A haven is a place for the receipt and safe riding of ships, so situate and secured by land circumjacent, that the vessels thereby ride and anchor safely, and are fully protected, by the adjacent lands, from dangerous or violent winds.” “ A port is a haven, and somewhat more.”