26 U.S. 151 | SCOTUS | 1828
BENJAMIN BUCK & THOMAS HEDRICK
vs.
THE CHESAPEAKE INSURANCE COMPANY.
Supreme Court of United States.
*154 The cause was argued by Mr. Hoffman and Mr. Mayer, for the plaintiffs and by Mr. Wirt, Attorney General, and Mr. Meredith, for the defendants.
Mr. Meredith, and Mr. Wirt, Attorney General, for the defendants.
*158 Mr. Justice JOHNSON delivered the opinion of the Court.
This cause comes up from the Circuit Court, for the Maryland District, on a difference of opinion.
The suit below, was instituted on two policies of insurance, the one for 6000 dollars, the other for 2000 dollars, upon the brig Columbia, Daniel Fitch master, at and from the Spanish island of Porto Rico to Baltimore, for whom it may concern. Buck & Hedrick were the agents of Fitch, and the policies were made in their name. The first policy was executed on the 6th of May, 1822, and stands unimpeached by any circumstances occurring at the time of its execution. But, when application was made for the second policy, which was on the 24th of May, the agents laid before the underwriters a letter, dated Ponce, April 27th 1822, to this effect:
Messrs. BUCK & HEDRICK
"I wrote you a few days ago by the brig Ospray, Captain Perkins, direct for Baltimore, requesting you to have insurance done for me on the brig Columbia, and her cargo, owned and commanded by me, to sail from this for Baltimore, about 5th to 10th of May, with a cargo of sugar. When I wrote you by the Ospray, I could not say what amount of cargo to have insured for me. I now think I shall have on board about 130,000 pounds, valued at 8000 dollars, which amount I wish you to have insured for me." &c.
The rest has no material bearing upon the cause. On the back of this letter was written the following inquiry:
*159 "What will 2000 dollars be insured at, agreeable to within letter, on cargo, of which you have 6000 dollars insured some time since?
BUCK & HEDRICK."The vessel and cargo were totally lost by the perils of the sea; and the interest proved at the trial, consisted of above 2000 dollars, the property of Fitch, and above 6000 dollars, the property of G. Medina, a Spanish subject, of Porto Rico, at that time affected with the character of a belligerent.
The whole cargo was consigned to Daniel Fitch, and documented as his Medina himself being on board, on the voyage.
The order for insurance, on which the policy of 6th May was effected, was in the following words: "Insurance is wanted against all risks, for account of whom it may concern, 3000 dollars on the brig Columbia, Daniel Fitch master, and on cargo, 6000 dollars, as interest may appear, at and from Ponce, Porto Rico, to Baltimore; a letter from Captain Fitch, dated 19th April, says, he expects to sail about 5th to 10th of May that the brig is in good order, perfectly tight and seaworthy. What premium?
Both policies, it appears, were done at a premium of 1¼, and on neither occasion was the letter of the 19th April called for by the office, nor was any warranty or representation of any kind made or asked for, respecting the cargo; beyond what was voluntarily made, and has been stated.
The first instruction on which the Court below divided, was prayed for by the plaintiffs, in these words:
"That as the policies of insurance in this case purport to insure the plaintiffs "for whom it might concern," they are not bound to prove, that at the time of effecting the insurance, or any other time, they disclosed to the defendants that Spanish property was intended to be covered by the insurance; and that in policies of such description, there can be no undue concealment as to the parties interested in the property to be insured.
Dangerous as it always is, in a Court of Justice, to generalize in the propositions which it decides, it is peculiarly so, in questions arising on policies of insurance.
The present proposition is obviously couched in terms too general to admit of an answer in the affirmative, without restriction or modification. And as Courts of Justice are not bound to modify or fashion the instructions moved for by counsel, so as to bring them within the rules of law, if this cause had come up on a writ of error to the judgment of the Court below, for refusing the instruction as prayed; it would be difficult to say, that in the terms in which it is presented, the Court was bound to give this instruction.
To affirm, "That in policies of such description, there can be no undue concealment as to the parties interested in the *160 property to be insured," is obviously going much too far; since the underwriter has an unquestionable right to be informed, if he makes inquiry the assured may be silent, it is true, if he will, and let the premium be charged accordingly but if the inquiry then made should be responded to, with information contrary to the verity of the case, this obviously gives a conventional signification to the terms of the policy; which may differ materially from the known and received signification in ordinary cases. He, for instance, who should insure "for whom it may concern," under an express assurance, that there is no belligerent interest in the cargo, could not, upon any principle, be held to have made assurance upon belligerent interest.
This is no more than the application of the general principle, that insurance is a contract of good faith, and is void, whenever imposition is practised.
That a policy "for whom it may concern," will, in ordinary cases, cover belligerent property, has been fully conceded in argument. Nor is it contested, that previous representation will be sunk or absorbed, or put out of the contract, where the policy is executed in obvious inconsistency with those representations. But the ground here insisted on for defendants, is, that the letter of April 27th, was a representation that the whole cargo was Captain Fitch's, and that it thereby operated as an imposition upon the underwriters, and as such, avoids both policies; or that it affixes a conventional meaning to the phrase, in these policies, which limits its ordinary import.
Is there any thing in the case sufficient to except these policies from the ordinary import and effect of the phrase "for whom it may concern?"
We are of opinion there is not.
Whatever turn of expression may be given to the question, or in whatever aspect it may be presented, it is obviously, at last, no more than the simple question, have these underwriters been entrapped, or imposed upon, or seduced into a contract, of the force, extent, or incidents of which, a competent understanding cannot be imputed to them?
A knowledge of the state of the world, of the allegiance of particular countries, of the risks and embarrassments affecting their commerce, of the course and incidents of the trade on which they insure, and the established import of the terms, used in their contract; must necessarily be imputed to underwriters. According to a distinguished English jurist, Lord Mansfield, in Pelly vs. The Royal Exchange, &c. (1 Bur. 341,) "the insurer, at the time of underwriting, has under his consideration the nature of the voyage, and the usual manner of conducting it. And what is usually done by such a ship, with such a cargo, in such a voyage, is *161 understood to be referred to by every policy. Hence, when a neutral, carrying on a trade from a belligerent to a neutral country, asks for insurance "for whom it may concern," it is an awakening circumstance. No underwriter can be ignorant of the practice of neutrals to cover belligerent property, under neutral names, or of the precautions ordinarily resorted to, that the cover may escape detection. The cloak must be thrown over the whole transaction, and in no part is it more necessary, than in the correspondence by other vessels, so often overhauled by an enemy, for the very purpose of detecting covers on other cargoes. Letters, thus intercepted, have often been the ground-work of condemnation in Admiralty Courts; and underwriters, to whom the extension of trade is always beneficial, must and do connive at the practice in silence. They ask no questions, propose their premiums, and the contract is as well understood, as the most thorough explanation can make it.
There is nothing in the letter, in evidence, calculated to mislead an insurer of ordinary vigilance, but what was fully explained away, by concomitant circumstances. It is true, that in the letter Fitch writes, to have insurance done for him, on "the brig Columbia and her cargo;" that he cannot say, what amount of cargo to have insured for him. Yet, when the offer was submitted, it was endorsed on the back of this letter, and expressly declared to be upon the same cargo, of "which you have 6,000 dollars insured, some time since."
The insurance alluded to, was made "for whom it may concern," and this second policy is expressed in the same terms.
Here, then, was a neutral, professing himself to be owner of a cargo, consisting of produce of the hostile island, on a voyage, having for its object, to find a market for that produce most unnecessarily, if himself the real owner, or if there were no owners, but neutrals most unwisely, subjecting himself, or them, to an increase of premium, which could not but result from such an offer.
This was a circumstance calculated to induce inquiry. The defendants had a right to make what inquiries they pleased, as to the real character of the cargo; and if they did not make those inquiries, the law imputes to them the use of the phrase, "for whom it may concern," in its ordinary effect and signification. We are, therefore, of opinion, that this instruction, if so modified as to be confined to the case before the Court, ought to have been given.
The second prayer, amounting only to an affirmance of the general proposition, as relates to the policy of the 6th May, we are of opinion, ought to have been given.
The third prayer, having the same bearing upon the policy *162 of the 24th May, we are of opinion, for the reasons expressed in the first prayer, ought also to have been given.
By the fifth prayer, the plaintiffs ask of the Court to instruct the jury, "That if the said Daniel Fitch, at the time of said policies, was legal and equitable owner of part of the cargo insured; and the legal, though not equitable owner of the residue, policies, "for whom it may concern," do cover the entire cargo; and said Fitch is competent, in law, to recover the whole, in his own name though the belligerent character of a part of said cargo, was not disclosed, at the time of effecting said policies."
The language in which this prayer is couched, obviously imports two propositions; 1st. That a policy, "for whom it may concern," will cover the whole cargo though the assured had only the legal, without the equitable interest in part, and a legal and equitable interest in the residue; and, 2d. That Daniel Fitch is competent, in law, to recover the whole, in his own name though the belligerent character of part was not disclosed, when the policies were executed.
It is a very great objection to this prayer, that the language used, is too general and abstracted; and not adapted to the case, with that studied precision which the law requires thereby rendering it scarcely possible for the Court to meet it with a simple, positive, or affirmative answer.
To the first of the two propositions, it may be further objected, that it is difficult to perceive, how it came to be introduced into the cause. Abstracted from the effect of belligerent interest in the cargo, the defence admits, that the policy covers all other interests, whether legal, or equitable.
And, with regard to the second, it is not easy to perceive, why the Court should be called upon, to charge the jury, that Daniel Fitch was competent, in law, to recover the whole in his own name, when the suit is, in fact, prosecuted in the name of the agents; and they count upon the interests of both Medina and Fitch.
But the cause has been argued, upon the assumption, that this prayer brings up the question of insurable interest, in Fitch, by whose instructions, Buck & Hedrick effected this insurance; and, as it is better to follow out the concessions of counsel, than to let the cause come up here again, upon this point, we will consider that question as being raised by this, in connexion with the other prayers.
And here, we think, the facts make up a clear case of insurable interest. The only doubt, probably, arises from one of the most prolific grounds of uncertainty on many subjects, viz the use of terms, originally unaptly selected, but now rendered legitimate, by use. It is only necessary to inspect a few cases *163 on this doctrine, to be satisfied, that the term interest, as used in application to the right to insure, does not necessarily imply property, in the subject of insurance.
In the case of Crawford et al. vs. Hunter, 8 D. & E. 13, the plaintiffs were commissioners appointed by the Crown, under an Act of Parliament, to superintend the transportation, &c. of Dutch vessels, seized in time of peace, without any present designation for whom whether to be held in trust, for the original owners, the Crown, or the captor. The vessel had been carried into St. Helena; and the policy was effected, with a view to her safe transportation, from that island, to England; and, after much consideration, it was adjudged, that this was a good insurable interest, and the plaintiffs recovered.
The same point was afterwards decided, in Lucena vs. Crawford et al. 3 Bos. & Pul. 75, on a writ of error, to the Exchequer, after three arguments, and great deliberation yet the seizures were made before declaration of war; and the interest of the plaintiffs, amounted to nothing but a power over the subject, with a claim by quantum meruit, for their services.
Putting down the present case, therefore, to its lowest grade of insurable interest, it is equal to that of the plaintiffs, in the two cases alluded to for Daniel Fitch was, at least, the agent or trustee of Medina, to transport his goods from Porto Rico, to a market, and to secure them from the chances of capture and loss.
But this case is stronger than the English cases cited; for, by the act of Medina himself, Fitch was exhibited to the world, clothed with all the national documents, which evidence an absolute property; and, for many purposes, the real owner would have been estopped to deny it.
We will instance the payment of duties; for which, either as owner, or consignee, our laws held Fitch absolutely liable. We have, therefore, no doubt of the sufficiency of the insurable interest, in this case.
The last prayer, on which the Court below divided, is in these terms:
"That the Court instruct the jury, that the letter of the 27th April 1822, with the order written thereon, do not, in law, amount to a representation; that the property to be insured, was the sole property of Daniel Fitch; or that the whole, or any part thereof, was not belligerent."
We have already expressed our opinion, on the proposition here presented. It is to be regretted, that this prayer also, is so defective, in precision. But, it was obviously intended, and so argued, to be confined to a representation, which would vitiate the policy. With relation to the first policy, we are all of opinion, that it was unaffected by the letter specified; and, *164 with regard to the second policy, whatever might have been the effect of this letter, had it stood alone yet, taken in connexion with the concomitant circumstances, it was not fatal to the contract.
On this point, a majority of the Court would be understood to express the opinion, that this letter connected with the order endorsed upon it, the previous insurance referred to, and, considered in relation to the state of the world, and the nature, character, and ordinary conduct of the voyage insured, was not such a representation, as, per se, vitiated the policy.
And this opinion will be certified to the Court below.
This cause came on, &c., on consideration whereof, This Court is of opinion 1. That as the policies of insurance in this cause, purport to insure the plaintiffs "for whom it may concern," they are not bound to prove, that, at the time of effecting the said insurance, or any other time, they disclosed to the defendant that Spanish property was intended to be covered by the said insurance, unless inquiries on the subject were propounded by the insurer, prior to the insurance. 2. That if the jury believe the policy of the 6th of May 1822, was founded on the order of the same date, the said policy being "for whom it may concern," does cover belligerent, as well as neutral interest. 3. That if the jury believe, that the policy dated 24th of May 1822, was founded on the letter of the 27th of April 1822, and the order written thereon, the policy being "for whom it may concern," does cover neutral, as well as belligerent property. 4. That if the said Daniel Fitch, at the time of the date of the said policies, was legal and equitable owner of part of the cargo insured, and legal, though not equitable owner of the residue; the policies being "for whom it may concern," do cover the entire cargo; and that the said Fitch had a good insurable interest in the whole cargo; and the plaintiffs, as his agents, are competent to recover the whole sum insured thereon, on proof of such legal and equitatable interest in the said Fitch. 5. That the letter of the 27th of April 1824, whatever might be its effect if taken alone, yet, taken in connexion with the endorsement thereon, with the previous policy to which it refers, the actual state of the world, &c., and the nature of such transactions, is not such a representation as vitiates the policy. All which is ordered and adjudged by this Court, to be certified to the said Circuit Court.
