Teutonia Ins. v. Boylston Mut. Ins.

20 F. 148, 1884 U.S. App. LEXIS 2167

• Court: U.S. Circuit Court for the District of Eastern Louisiana
• Decided: April 10, 1884
• Status: Published

Opinion

Pardee, J.

The question at issue is one of construction of the written clause in the policy, whether it is descriptive of the boats or of the freight; whether the excess for reinsurance was to be determined by the places the boats were from or by the places the freight was from. The question is one of great difficulty, and however decided the rule adopted would lead to contingencies evidently not contemplated by the parties. From the language of the clause in question it is clear that the defendant limited its risk to $15,000 on any one boat; that the policy was intended to protect plaintiff’s risk above $10,000 on any one boat on the Mississippi river, and above $5,000 on any one boat on the tributaries of the Mississippi; and this is conceded by the learned counsel for defendant. Now suppose the case of a boat running between New Orleans and Memphis. At Memphis she takes on $10,000 freight which is insured by plaintiff. At the mouth of the Yazoo she takes on $5,000 more freight, shipped from Yazoo City with privilege of reshipme'nt, and also insured by plaintiff. The plaintiff has then $15,000 risk on one boat running on the Mississippi. The contract in question was intended to reinsure all in excess of $10,000. To accomplish this intent of the parties the clause in question must be construed as descriptive of the boats carrying the freight and not of the freight, for if we contrue it as descriptive of freight, then the plaintiff has a risk of over $10,000 on one boat on the Mississippi and no re-insurance, because only $10,000 is from places on the Mississippi, and only $5,000 is from places on the tributaries of the Mississippi, and this is in conflict with the conceded intent of the parties. On the other hand, if we construe the contract as descriptive of the boats, then we have a case where the risk is determined, not by the route over which the goods are to be transported, which is the ordinary consideration, but by the fact as to where the boat had made her voyage before the risk was assumed.

The contention of the defendant with regard to the proper construction, as most clearly and concisely stated by the counsel, is that the words “on boats from places on the tributaries of the Mississippi river” must be construed with reference to the principal purpose of the contract, which is the insurance on cotton, etc., from points and places on the Mississippi river and its tributaries to New Orleans. There is no doubt the details of the contract should be construed with reference to the main purpose of the contract, but this concession does not relieve us of the difficulty in this case. Of course the purpose of the contract is the insurance of cotton, etc., in transit, and to reach it intelligently four things have to be provided for: (1) The territorial limit of the proposed risk; (2) the character and kind of property to be risked; (3) the character and kind of transportation to be employed, and (4) the amount of risk to be assumed. These things are provided for in this policy in order, to-wit, from points and places on the Mississippi river and its tributaries, on cotton, sugar, molasses, and cotton-seed, transported on boats from places on tho Mississippi river, and on boats from places on tho tributaries of the Mississippi river, and in the one case on the excess of the $10,-000, and in the other on the excess of $5,000. The construction claimed by the defendant would ignore all differences between the character and kind of boats plying on the Mississippi river and of tho boats plying on the tributaries, while the contract makes the two classes and provides different responsibilities for each class. The construction claimed would be the plain letter of the clause in controversy if we should strike out where they occur the words “on boats,” for it would read in this case “on their excess of $5,000 from places on the tributaries of the Mississippi river.” The rules of construction will not allow us to strike out these words, but do require us to give meaning and force to them if possible. If we take the words of the contract as the parties have left them, and in the connection that they have used them, it would seem to be more in consonance with the real intent of the parties and with the rules of construction of such contracts, to construe thorn as descriptive of boats rather than as descriptive of freight.

Ambiguous language in an insurance policy should be construed against the insurer. See May, Ins. §§ 174-176, and Wood, Ins. 140 et seq. This construction is in accord with the only adjudged case cited in argument. See Phœnix Ins. Co. v. Cochran, 51 Pa. St. 143. The insurance in that case was on two policies of same date for $5,000, each for one year, on oil in bulk or barrels, on board the good barges trading as to one policy, between the wells on Oil Creek, Allegheny (iiver, and Pittsburgh, as to the other between Oil City and Pittsburgh; the wells on Oil Creek are above Oil City, which is at the mouth of Oil Creek; and the court held that these points wore descriptive of the barges, and not the freight, and that whenever the oil was taken on or delivered between these points it was within the policies if tho barges were trading between these points. This construction is also in accord with what, from well-known facts, would seem to be the motive of the parties in discriminating as to the amount of reinsurance against the tributaries and in favor of the Mississippi, because it is well known that in quality of boats and in dangers of navigation the difference is largely in favor of the Mississippi. In deference to tlie very clear, earnest, and forcible manner in which counsel for defendant has presented bis case, I have most carefully considered the question presented, and while I am not free from doubt, I cannot avoid tho conclusion that tho clause in the policy in suit is descriptive of ti:e boats and not entirely of the freight. Pleaching this conclusion, under the agreed state of facts, judgment must go for the plaintiff for $1,275 and costs; and it is so ordered.