McLoon v. Commercial Mutual Insurance

100 Mass. 472

Opinion

Gray, J.

An express warranty in a policy of insurance is a condition precedent, the burden of proving performance of which rests upon the assured. The nature and form of the warranty may affect the amount of evidence to be required of the plaintiff in the first instance ; but whether the terms used are affirmative or negative, the warranty is equally a condition precedent, performance of which must be proved by the plaintiff in order to maintain an action on the policy. The rule has accordingly been applied equally to warranties to sail with convoy or with a certain crew, armament or license, and to warranties not to carry a particular kind of merchandise. 3 Kent Com. (6th ed.) 288. Marshall on Ins. (5th ed.) 561. 2 Phil. Ins. § 2122. 2 Arnould on Ins. (3d ed.) 1072. Craig v. United States Insurance Co. Pet. C. C. 416. Campbell v. New England Insurance Co. 98 Mass. 390. McLoon v. Mercantile Mutual Insurance Co.

Footnotes

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The warranty in this case is, “ that the vessel be commanded by a captain holding a certificate from the American Shipmasters’ Association.” We concur with the learned counsel for the defendants, that this means a valid and subsisting certificate But we are of opinion that, upon the facts stated in the report the master of the Young Mechanic held such a certificate at the time of the loss of the vessel in April 1866. It is admitted that such a certificate was issued to him by the association in due form in December 1861, certifying that he had “ been registered by this association as an approved shipmaster,” and subject to “ be revoked at any time under the rules of this association, and at its option, either by notice to the holder or by advertisement in the public papers.” By a memorandum upon this certificate, the holder “ is required to present it at this office for indorsement at or before the expiration of one year; if on a voyage, then on return to New York.” But the certificate contains no provision that it shall expire by any limitation of time, or failure to comply with its directions, or in any other way except by being revoked by the association. It is immaterial whether Captain Grant or the association considered that he held a certificate at the time of the loss ; for the only question under the terms of the warranty is whether he actually held one; and a warranty must be strictly complied with according to its terms, whether such strictness operates in favor of the insurers or of the assured. Forbush v. Western Massachusetts Insurance Co. 4 Gray, 340, 341. Judgment for the plaintiff.

William McLoon vs. Mercantile Mutual Insurance Company.

Contract on a policy of insurance on the ship Young Mechanic, “ warranted by the assured not to carry coolie passengers or petroleum.” At the trial before Hoar, J., it appeared that the ship carried as cargo two thousand gallons of kerosene illuminating oil; and there was conflicting evidence upon the point whether kerosene was petroleum. The whole case was reported at the request of the defendants for the determination of the full court, before whom it was argued at the same time -and by the same counsel as the case in the text.

Chapman, C. J. Upon the warranty not to carry petroleum, the burden is on the plaintiff to prove that the article carried was known in commerce as a different article from that which is bought and sold as petroleum. This iy merely a question of fact, proper to be determined by a jury, and our opinioe in regard to it would not affect any future case. Case to stand for trial.