11 Johns. 287 | N.Y. Sup. Ct. | 1814
delivered the opinion of the court. This is an insurance on the brig Resort, on a voyage from Ncw-York to Bremen, or a port of discharge in the North Sea or Baltic, against capture only. The policy, among other warranties, contained the following: “ Also free from seizure in any port . or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control or in alliance with him.” The brig was taken on the coast of Holland, by two French privateers, and carried into the port of Amsterdam, and
The exception was intended for the benefit of the underwriters, and in order to give it any effect, must be so construed as to restrict the risk assumed by the general words of thé policy.. The insurance being against capture only", any exception out of that risk must have been intended to extend to some peril which, would have fallen under the denomination of capture; otherwise, the exception is senseless. The underwriters did not assume the risk of seizure for breach of any municipal regulations. It would, therefore, be giving" no effect to the exception to limit it to such risk. It is, ño doubt, a sound rule of construction, that terms made use of in contracts are to be understood in their plain, ordinary, and popular sense," unless the context evidently requires, in order to effectuate the intention of the parties, that they should be understood in some other special and peculiar sense. Seizure may, in general, be applicable to a taking or detention, for the violation of some municipal regulation; but where such meaning cannot be given to it, consistent with the obvious sense and understanding of the parties, it is no violation of any settled rule or principle of law, to give it some other interpretation, better comporting with the fair intention of the parties. The underwriters did not mean to assume any risk except that of capture, and not even that, if made in any river, port, or place under the jurisdiction of Napoleon, or under the jurisdiction of any power under his control, or in alliance with him.
It is no strained interpretation of- the term seizure to consider it as synonymous with capture; and then the underwriters, although they assume the risk of capture generally, exempt themselves even from that risk, if the capture is made under any of the circumstances mentioned in the warranty. In no other way can any rational interpretation be given to the clause; and the jury having found that the seizure or capture was, in fact, within the exception as to place, the underwriters cannot be made re
Judgment for the defendants.
In Dagleish and others v. Brooke, (15 East's Rep. 294.) the goods were warranted 61 free from capture or seisure in the ship’s port or ports of discharge.” The ship arrived in the outer road of Pillm, which is a bar harbour, where large ships, like the one mentioned in the policy, are obliged to discharge part of tbeir cargoes into lighters, in order to go over the bar into the inner harbour, where the remainder is discharged ; and the captain having anchored two miles and a quarter further out than ships usually lie for that purpose, which difference was decided by the jury to be immaterial, he went on shore to obtain permission to discharge his cargo, and returned in five or six days, in company with some Prussian soldiers and a pilot, who took possession of the ship and cargo, which was afterward confiscated; this was held to he an arrival at the elected port of discharge, and a seisure there within the meaning of the warranty, so as to discharge the insurers from the loss.
