113 Mass. 326 | Mass. | 1873
The plaintiffs had two time policies underwritten by the defendants, one insuring them upon their interest in the schooner Annie Linwood, for the season, terminating on the thirtieth day of November, 1871, the other upon the outfits for the same time.
Each policy contains the following conditions : “ that no vessel shall sail from the harbor of Gloucester, on any voyage east of Cape Sable, after the tenth day of November next, at noon; or on a trip to Georges after the fifteenth day of November next, at noon ; nor shall any vessel sail upon any voyage whatever after the twenty-fifth day of November next, at noon, at the risk of this company.”
It is clear that this clause prohibits the sailing of the vessel insured from Gloucester upon a voyage to the fishing ground east of Cape Sable, after the tenth day of November, 1871, and if she had entered upon such a voyage when damaged by the perils of the sea, she was not covered by the policies, and the plaintiffs cannot recover.
It was admitted that she sailed from Gloucester on the thirteenth day of November, 1871, and was damaged on the twentieth day of the same month.
The defence relied upon was that she was upon a voyage to the fishing grounds east of Cape Sable, prohibited by the policy.
The uncontroverted evidence showed that when she sailed, she was manned and provided with every equipment and outfit suitable for such voyage, except bait; that her crew were shipped for B fishing voyage, and that when damaged she was on her way to Eastport, where she was to put in to procure bait. The plaintiffs
It was a question of fact for the jury whether she sailed from Gloucester on a voyage to the fishing grounds, or to Eastport. This would depend on the intentions of her owners and master when she sailed. If they had the full purpose of sending her on the adventure or enterprise of a fishing voyage to the east of Cape Sable, having fixed upon this as the terminus of the voyage, she was on a voyage to the fishing grounds, and it is not material that it was expected that in the course of the voyage she was to put into Eastport to obtain bait, even if the voyage might possibly be defeated by a failure to procure bait there. It is still a voyage to the fishing grounds, and the putting in to Eastport is merely an incident of the voyage. If this vessel had been insured upon a round voyage from Gloucester to the fishing grounds and back, the insurers could not have defended upon the ground that she had not entered upon her voyage because she was to go in to Eastport to procure bait, if it appeared that the owners had started her, fully equipped for a sea voyage, with the purpose and intent of sending her to the fishing grounds as the fixed terminus of the voyage. Bond v. Nutt, Cowper, 601. Merrill v. Boylston Insurance Co. 3 Allen, 247. Bowen v. Hope Insurance Co. 20 Pick. 275. Hobart v. Norton, 8 Pick. 159.
On the other hand, if in this case the voyage to Eastport was an independent voyage, not designed or understood to be a part of the voyage to the fishing grounds, the plaintiffs can recover.
The instructions to the jury were in accordance with these views. The presiding judge properly left it to the jury to determine what voyage the vessel was pursuing when damaged, instructing them that if she left Gloucester with the full purpose of going on a voyage east of Cape Sable, though liable to be defeated on her going to Eastport, the plaintiffs could not recover; but if a voyage to Eastport was intended, subject to a contingency of its being prolonged to the fishing grounds, the plaintiffs could recover. The statement that by voyage, in this connection, was meant the enterprise entered upon, and not merely the route, is Bot open to objection.
