Fay v. Alliance Insurance

82 Mass. 455

Opinion

Hoar, J.

The rule for the assessment of damages, which was adopted for the purposes of the trial, was erroneous. This was a case of partial loss, and the underwriters were responsible only for the proportion of the amount of the entire valuation of freight in the policy, which the freight actually lost by the peril insured against bore to the actual value of the entire freight. 1 Arnould Ins. 305. Forbes v. Aspinall, 13 East, 327. Wolcott v. Eagle Ins. Co. 4 Pick. 436. The rule adopted at the trial would deprive the defendants of the whole benefit of the valuation in the policy, as applicable to the freight lost; while the rule for which the defendants contended would deprive the plaintiff of the benefit of the value of the freight which was earned, above its proportionate valuation in the policy. The latter would operate very injuriously to the underwriters in a case in which there should be an overvaluation of freight and the partial loss should be a very small one. The more equitable course for both parties is to treat the valuation as applicable to any part lost, in like proportion as it would be to the true value of the whole.

The other instructions which were given at the trial seem to the court to have been substantially correct;

Footnotes

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* but we have not given to them all the full and particular consideration which, their importance and the novelty of some of them might demand if the decision of the case depended upon the disposition made of them; because we are all of opinion that the defendants were entitled to one ruling which was refused, and that for this reason the verdict must be set aside and a new trial granted.

The insurance was upon the freight of the ship Columbia on a voyage from New York to a port of discharge in Australia. The ship arrived at Geelong in the bay of Port Philip, and there discharged a part of her cargo. About two weeks after she proceeded from Geelong to Hobson’s Bay, which is an anchorage ground for the port of Melbourne, twenty five miles from Geelong; and there the vessel and a part Of the cargo were burned. If Geelong was a port of discharge, and going to Hobson’s Bay was leaving that port and going to another, the risk had terminated before the loss occurred. The insurance being to a single port of discharge, the first port at which bulk was broken was the terminus of the voyage insured. Coolidge v. Gray, 8 Mass. 527. King v. Middletown Ins. Co. 1 Conn. 184. Lapham v. Atlas Ins. Co. 24 Pick. 1.

But the plaintiff contended that the whole bay of Port Philip, with its several places of anchorage and discharge, constituted, by the general commercial usage and understanding, at the time this policy was made and the voyage performed, a single port of discharge in Australia; and were allowed to offer evidence in support of this proposition. The defendants then asked the.court to instruct the jury, “ that this evidence, if believed, will not entitle the plaintiff to recover.”

We think this instruction should have been given. There was, it is true, some evidence on the part of the plaintiff, and the weight of evidence is for the jury to determine. But if all the evidence offered, with all the inferences which can be drawn from it, is not legally sufficient to establish the fact in issue, it is not to be left to the jury to find the fact. Evidence may be competent, as tending to establish a fact, and yet be wholly insufficient, for the want of other evidence essential to its completeness. Parks v. Ross, 11 How. 362.

It was proved that Geelong and Melbourne were legally two distinct ports, each having a custom-house, and with a coasting trade between them ; and a part of the cargo was destined for Geelong, and the remainder for Melbourne. They were twenty five miles apart, in the bay of Port Philip, which is thirty miles deep by forty wide; and the bay is not itself a port of entry. The usage which the plaintiff undertook to establish was a usage to treat the bay of Port Philip for all commercial purposes as a single port of discharge, including Geelong, Hob-son’s Bay and Melbourne as merely separate landing-places within it. To give such a usage any legal effect in the construction of the contract between these parties, it must appear to have been uniform, settled and well understood at the time the contract was made, in November 1853.

On examining carefully the evidence offered, it does not appear, in the first place, that prior to November 1853 there had ever been a loss adjusted under a policy of insurance, in which the question arose whether Port Philip was commercially regarded as a single port in Australia; or that any policy was then made upon which such a question afterward arose. It appears that some policies were made to Port Philip, and that charter parties and bills of lading were made in which Port Philip was named as the place of destination; but it does not appear that uniformly, or usually, and perhaps not in a single instance, these contracts were made in reference to shipments to more than one of the ports within the bay. The usage was certainly not uniform, because a large proportion of the instruments named Melbourne, and some of them Geelong, specifi cally, as the port of destination. John S. Tyler, the witness whose testimony was perhaps the strongest for the plaintiff, speaks of the naming Port Philip, when shipments were designed for Melbourne or Geelong, as arising from ignorance of the geography of the country, and from a want of accurate information as to the particular landing-places for goods destined to one place or the other. He says that Port Philip was used as a more general and comprehensive term, in the same way that Australia or a port in Australia was used, without indicating the particular port. But it would hardly be argued that under a policy to Australia, or to a port in Australia, there would be included a right to go to successive ports, at any distance from each other, in that country. The custom which he indicates would seem to be only a custom to insure to Port Philip, and under that insurance to go to either of the ports or landing-places included within that description; giving a similar extent of choice as in the case of an insurance to Australia, but not including more than one. The testimony of the plaintiff as to the statement made by the president of the defendants’ company, which would not in itself be sufficient to establish a usage, does not show that he knew that goods were to be shipped for more than a single port of discharge.

A case somewhat resembling this is the case of Vos v. Robinson, 9 Johns. 192. There a vessel was insured “ at and from Port Plata, St. Domingo, to New York; ” and in going from Port Plata to Susua, which is in the district bearing the name of Port Plata, and about eighteen miles east of the port, in order to take in a cargo, she was driven into the bay of Isabella, in the same district, and there lost. She had a permit from the custom-house at Port Plata to go to Susua to obtain her cargo, and would have been obliged to return to Port Plata to pay the duties and get a clearance, such being the usual course of trade there. The custom-house and port of entry were confined to the particular place called Port Plata, and the district, for the purposes of revenue, which bears that name, extended nearly a hundred miles along the coast of St. Domingo. Port Plata is a safe harbor, but Susua and Isabella are open roads, and dangerous when particular winds prevail. It was held that Port Plata proper and the district of Port Plata were different objects and the perils distinct; that the going from Port Plata to Susua was a deviation; and that nothing but a clear, well settled and well understood usage of trade, which the evidence did not show, would be sufficient to include both objects under the simple name of Port Plata.

We think that the evidence in the case at bar fell far short of showing that Port Philip was by a distinct, well settled and uniform commercial usage regarded as a single port of discharge, in which Melbourne and Hobson’s Bay and Geelong were merely landing-places. On the contrary, it showed that while ignorance of the particular ports often led to the use of Port Philip in commercial instruments as a general term to include whatever port within it might be the port of destination, Melbourne and Geelong were to a large extent known commercially, as they were legally, as distinct ports, and that distinct contracts were very commonly made in reference to them.

New trial granted.

In the argument were cited, upon the question of the competency of the plaintiff as a witness, Sts. 1856, c. 188; 1857, c. 305 ; 1859, c. 230, § 2; Almgren v. Dutilh, 1 Seld,, 28; and upon that of the construction and effect of the bills of lading, Brittan v. Barnaby, 21 How. 527; Griggs v. Austin, 3 Pick. 20, Strong v. Natally, 1 New Rep. 16 ; Abbott on Shipping, (7th ed.) 406-409] 1 Parsons Marit. Law, 222.