Van Ness, J.
The question arising in this case, is, whether the policy ever attached upon the subject insured ; and if it did, though only for a single moment, it it is admitted there can be no return of premium. On the part of the plaintiff, it is contended, that as the ship did not sail from the port of Bristol, until after the 1st December, the goods were never at the risk of the assurer, and the vessel and cargo having arrived in safety, the premium ought to be returned. The defendant, on the other hand, insists that the insurance being at and from Bristol, the goods were covered whilst in port, and that the warranty to have sailed, applies to the risk on the voyage, and not to the risk in port. This, at first view, would seem to be a case of difficulty, but I think, [7]*7when well understood, it is clearly with the defendant, J as well upon principle as authority.
In the construction of this, as well as of every other written contract, efficacy must, if possible, be given to every part of it. If the construction relied upon by the counsel for the plaintiff be correct, then the word at in this policy is altogether nugatory. The insurance here, upon the face of the policy, is as well at the port of Bristol, as for the voyage, and we are to presume that the rate of premium was regulated accordingly. If there had not been a warranty respecting the time the vessel should sail, there could not be a return of premium. It is to be examined, therefore, whether in this case we are compelled to reject this part of the contract, as being repugnant to the terms of the warranty. That the assured contemplated that these goods should be protected at the port of Bristol, provided the goods were put on board the vessel there, before the 1st December, is not to be disputed, because such are the express terms of the contract. If the words in this warranty had been such as are ordinarily inserted, viz. warranted “ to sail” on or before a particular day, it is settled that there can be n© return of premium, even if the voyage is never commenced. This was so decided in the case of Meyer v. Gregson. (Marsh. 558.) Butter, J. said that in all insurances from Jamaica, the policy runs, “ at and fromf' and though in many instances the voyage has not been commenced, yet there never was an idea of the premium being returned: and to show there could be no apportionment in that case, he adds, “ and no usage has been found by the jury.” And in the case of Long v. Allen, (Marsh. 570.) the same principle was admitted, though in that case there was an apportionment of the premium, the jury having found the usage. So in the case of Tyrie v. Fletcher, (Cowp. 666.) Lord Mansfield says, “ a case of general practice was put by Mr. Dunning, where the words of the policy are at and from, provided the-ship sail on or[8]*8ter the day; but if a question should arise about it, as at present advised, I should incline to be of opinion that Stevenson v. Snow, and that there are two parts or contracts of insurance with distinct conditions. The first is, I insure the ship in port, provided she is lost in port, before the tst of August; and second, if she is not lost in port, I insure her then during her voyage, from the 1st of August till she makes the port specified in the policy.” And here I would observe, that the case put by Mr. Dunning, and to which Lord Mansfield gives the answer, is a much stronger case than the present. it would fall within the reasoning of the determination in
The principle upon which these cases were decided, is this, that the warranty to sail applies to the voyage, and not to the risk in port, which is a previous and independent one, whenever the policy is at andfrom. That this is the principle is apparent from the reason of inserting this kind of warranty in the policy. In Marshall, 253. it is said, that “ the time of sailing is so material, that in many policies there is a warranty to sail on or before a certain day. Independently of the effect which a difference of seasons may have upon the risk, and of the necessity there is that the voyage shall end in a reasonable time, it is of great importance when the policy is at and from a place, that there be a day fixed, for the ship’s departure, in order that the duration of the risk at the place may he ascertained.” If this be the true reason, as it undoubtedly is, the policy attaches the moment it is effected, and the risk having been run in port, there can be no return of premium, even if the voyage is never undertaken. Consequently, here can be no return of premium.
The rule in England now appears to be, to apportion the premium, vt here usage has settled the rule of apportionment. (Long v. Allen.) With us, however, there never is an apportionment, because we have no usage.
[9]*9Lord Mansfield may not always have been consistent in what fell from him on the doctrine of dividing the risks and apportioning the premiums; but I believe that in every case he will be found uniformly to have considered the risk at the port and on the voyage, to be distinct; ‘ and that when the subject insured had been at the risk of the assurer for one moment, the policy attached. But it has been said that the words in this case are different from those used in the cases I have mentioned. They are so. The words here are, “ warranted to have sailed,” &c. Will this make any difference in the construction of the contract ? I think not; and that the legal effect in both instances is precisely the same. In the first place, there ought not to be a different effect given to these words, because the difference in the phraseology arises altogether from a difference in the time when they are used. If a'policy be effected before the day when the Vessel is warranted to sail, the words are “ warranted to sail,” &c.: because in such case the event to which they refer is yet to happen. When, however, an insurance is made upon a vessel abroad, with a warranty that she shall have sailed on a day already past, the phraseology must necessarily be varied accordingly. It would, therefore, in the Case before us, have been absurd to say, “ warranted to sail (the policy being dated 21st December, 1808) on or before the 1st day of December instant.” This, then, being the reason for the difference in the words, it would seem to me to be unjust and unreasonable to give them a different effect, contrary to what must have been the contemplation of the parties. The reasons for inserting them in this policy were precisely the same as they would have been, if this insurance had been effected before the day' when it was agreed the vessel should have departed from, Bristol. The words (taking into view the time when this policy was effected) are substantially the same; the risk is the same: the premium of course would be the [10]*10same; and yet, strange as it may seem, the legal consequences, it is contended, are different.
To show that what has been said, as to the true construction of these words, is correct, I refer to the case of Bond v. Nutt. (Cowp. 601.) There, as in this case, the insurance, which was “ at and from,” was effected after the day stipulated for the sailing of the ship, and the words are precisely similar to those in this policy, “ warranted to have sailed.” Lord Mansfield,
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Van Ness, J.
The question arising in this case, is, whether the policy ever attached upon the subject insured ; and if it did, though only for a single moment, it it is admitted there can be no return of premium. On the part of the plaintiff, it is contended, that as the ship did not sail from the port of Bristol, until after the 1st December, the goods were never at the risk of the assurer, and the vessel and cargo having arrived in safety, the premium ought to be returned. The defendant, on the other hand, insists that the insurance being at and from Bristol, the goods were covered whilst in port, and that the warranty to have sailed, applies to the risk on the voyage, and not to the risk in port. This, at first view, would seem to be a case of difficulty, but I think, [7]*7when well understood, it is clearly with the defendant, J as well upon principle as authority.
In the construction of this, as well as of every other written contract, efficacy must, if possible, be given to every part of it. If the construction relied upon by the counsel for the plaintiff be correct, then the word at in this policy is altogether nugatory. The insurance here, upon the face of the policy, is as well at the port of Bristol, as for the voyage, and we are to presume that the rate of premium was regulated accordingly. If there had not been a warranty respecting the time the vessel should sail, there could not be a return of premium. It is to be examined, therefore, whether in this case we are compelled to reject this part of the contract, as being repugnant to the terms of the warranty. That the assured contemplated that these goods should be protected at the port of Bristol, provided the goods were put on board the vessel there, before the 1st December, is not to be disputed, because such are the express terms of the contract. If the words in this warranty had been such as are ordinarily inserted, viz. warranted “ to sail” on or before a particular day, it is settled that there can be n© return of premium, even if the voyage is never commenced. This was so decided in the case of Meyer v. Gregson. (Marsh. 558.) Butter, J. said that in all insurances from Jamaica, the policy runs, “ at and fromf' and though in many instances the voyage has not been commenced, yet there never was an idea of the premium being returned: and to show there could be no apportionment in that case, he adds, “ and no usage has been found by the jury.” And in the case of Long v. Allen, (Marsh. 570.) the same principle was admitted, though in that case there was an apportionment of the premium, the jury having found the usage. So in the case of Tyrie v. Fletcher, (Cowp. 666.) Lord Mansfield says, “ a case of general practice was put by Mr. Dunning, where the words of the policy are at and from, provided the-ship sail on or[8]*8ter the day; but if a question should arise about it, as at present advised, I should incline to be of opinion that Stevenson v. Snow, and that there are two parts or contracts of insurance with distinct conditions. The first is, I insure the ship in port, provided she is lost in port, before the tst of August; and second, if she is not lost in port, I insure her then during her voyage, from the 1st of August till she makes the port specified in the policy.” And here I would observe, that the case put by Mr. Dunning, and to which Lord Mansfield gives the answer, is a much stronger case than the present. it would fall within the reasoning of the determination in
The principle upon which these cases were decided, is this, that the warranty to sail applies to the voyage, and not to the risk in port, which is a previous and independent one, whenever the policy is at andfrom. That this is the principle is apparent from the reason of inserting this kind of warranty in the policy. In Marshall, 253. it is said, that “ the time of sailing is so material, that in many policies there is a warranty to sail on or before a certain day. Independently of the effect which a difference of seasons may have upon the risk, and of the necessity there is that the voyage shall end in a reasonable time, it is of great importance when the policy is at and from a place, that there be a day fixed, for the ship’s departure, in order that the duration of the risk at the place may he ascertained.” If this be the true reason, as it undoubtedly is, the policy attaches the moment it is effected, and the risk having been run in port, there can be no return of premium, even if the voyage is never undertaken. Consequently, here can be no return of premium.
The rule in England now appears to be, to apportion the premium, vt here usage has settled the rule of apportionment. (Long v. Allen.) With us, however, there never is an apportionment, because we have no usage.
[9]*9Lord Mansfield may not always have been consistent in what fell from him on the doctrine of dividing the risks and apportioning the premiums; but I believe that in every case he will be found uniformly to have considered the risk at the port and on the voyage, to be distinct; ‘ and that when the subject insured had been at the risk of the assurer for one moment, the policy attached. But it has been said that the words in this case are different from those used in the cases I have mentioned. They are so. The words here are, “ warranted to have sailed,” &c. Will this make any difference in the construction of the contract ? I think not; and that the legal effect in both instances is precisely the same. In the first place, there ought not to be a different effect given to these words, because the difference in the phraseology arises altogether from a difference in the time when they are used. If a'policy be effected before the day when the Vessel is warranted to sail, the words are “ warranted to sail,” &c.: because in such case the event to which they refer is yet to happen. When, however, an insurance is made upon a vessel abroad, with a warranty that she shall have sailed on a day already past, the phraseology must necessarily be varied accordingly. It would, therefore, in the Case before us, have been absurd to say, “ warranted to sail (the policy being dated 21st December, 1808) on or before the 1st day of December instant.” This, then, being the reason for the difference in the words, it would seem to me to be unjust and unreasonable to give them a different effect, contrary to what must have been the contemplation of the parties. The reasons for inserting them in this policy were precisely the same as they would have been, if this insurance had been effected before the day' when it was agreed the vessel should have departed from, Bristol. The words (taking into view the time when this policy was effected) are substantially the same; the risk is the same: the premium of course would be the [10]*10same; and yet, strange as it may seem, the legal consequences, it is contended, are different.
To show that what has been said, as to the true construction of these words, is correct, I refer to the case of Bond v. Nutt. (Cowp. 601.) There, as in this case, the insurance, which was “ at and from,” was effected after the day stipulated for the sailing of the ship, and the words are precisely similar to those in this policy, “ warranted to have sailed.” Lord Mansfield, in the course of his opinion, says, “ The policy was made on the 20th August, 1776, upon the contingency', &c. of a fact which must have existed one way or the other, at the time the policy was underwritten. That contingency was that the ■ship should have sailed on or before the 1st August; consequently it must have taken place, or not, upon th'e 20th of that month. The port from whence the ship was to be insured, was, if I may use the expression,1 the whole island of Jamaica; but from which of the ports neither party knew; therefore they have used the words *■ at and from Jamaica,’ &c. by force of which she certainly was protected from port to port, and till she sailed?' In the case of Tyrie v. Fletcher, decided about six months after, Aston, J. who was a party to the decision in Bond v. Nutt, in speaking of the latter case, says, “In Bond v. Nutt, the losses insured against were distinct and unconnected with each other. 1. A loss of the ship in port, if any should happen there. 2. A loss in the passage home, provided she sailed on a certain day. Again, in Bermon v. Woodbridge, (Doug. 780.) Lord Mansfield, in referring to the case of Bond v. Nutt, says, “ It was held in that case, there were two risks ; at Jamaica was one; the other, viz. the risk from Jamaica, depended on the contingency of the ship having sailed on or before the 1st August. That was a condition precedent on the voyage from Jamaica io London.”
There can, after this, be no difference of opinion, I imagine, as to what was declared to be the law in the case of [11]*11Bond v. Nutt, and this alone would be decisive in the pre- . . . sent case. And is not this a reasonable interpretation of this policy ? It gives effect to every part of the contract, and effectuates the undisputed intention of the parties. The vessel in this case was warranted to have sailed before the 1st December. Now suppose she had been burnt or sunk in port, after the goods were on board, so that it became physically impossible she could comply with the warranty, can it be possible that the assurer would not have been liable for the loss ? If the warranty had been “ to sail,” it is admitted the defendants would, in such a case, have been liable ; and why not, when the words are “ warranted to have sailed P” At the time when this policy was executed, it was unknown to both parties whether the ship and goods were in safety or not; and in such a case, it is too well settled to be any longer controverted, that the validity of the policy is not affected by the circumstance, that the loss had already happened at the time of underwriting the policy, especially, when this is matter of express stipulation.
It may be supposed that the decision in the case of Hore v. Whitmore, (Cowp. 784.) is opposed to the construction which I have adopted. That case turned upon a very different point. The ship sailed after the day, and was captured on the voyage, and the assured claimed as for a loss by capture. The warranty applied to the voyage, and being broken, the underwriters were properly held to be discharged. If the ship had been lost in port, before the day she was to sail, there can be no doubt the assurer would have been liable. Neither can there be a doubt that the detention, in that case, was one of the perils insured against, and for which, while it lasted, the assured might have abandoned, and thus charged the assurer with the loss in port.
There is still one ground taken by the counsel for the plaintiff which it is necessary to notice. It is urged that every warranty is a condition precedent, and that the [12]*12condition upon the performance of which this policy was to attach is, that the ship had sailed on a day past. To this several answers may be given, each of which appears to me to be equally conclusive. In Marsh. 248, 249. warranties are said to be “ either affirmative, as when the assured undertakes for the truth of some positive allegation, as that the ship sailed on such a day,” (which is the present case,) “ or they may be promissory, as where-the assured undertakes to perform some executory stipulation, as that a ship shall sail on or before a given day,” &c. But whether the warranty be the one or the other, is perfectly immaterial; both are equally conditions precedent. In case of a stipulation that a ship shall sail, &c. the warranty is a condition precedent, as much as in this case, when it was warranted that the ship had sailed. In the first, I have already shown, indeed it is admitted, that the condition applies to the risk for the voyage, and not to the risk in port. If the condition in this case applies to both risks, I beg to know upop what principle ? Surely not because the warranty is more a condition precedent in the one case than it is in the other. Another answer is, that the risk in port is neither increased nor diminished by the performance or violation of the warranty, because the risk terminates on the day the ship is to sail, whether she commences her voyage or not. Neither the degree of danger nor the duration of it, is changed by the difference in the words of the policy. The last answer is, that this point has been solemnly adjudged otherwise, and upon principles and for reasons with which I am perfectly satisfied. My opinion, therefore, is, in every view I have been able to take of this question, that the defendants are entitled t® judgment.
Thompson, J. and Kent, Ch. J. were of the saipe ©pinion. ,