27 Ala. 77 | Ala. | 1855
It is a rule of construction, settled by numerous authorities, that every usage of trade, which is so well settled, or so generally known, that all persons engaged in that trade may fairly be' considered as contracting with reference to it, is regarded as forming part of every policy designed to protect risks in that trade, unless by the express terms of the policy, or by necessary implication, such inference is repelled. — 1 Duer on Ins. 195, §§ 42, 43 ; ib. 265, §§ 60, 61,62; Arnould on Ins. (1850 edit.) p. 65 ; Hughes on Ins. 109-10; 1 Phillips on Ins. (edit. 1853) 19, et seq.
The contract declared on is essentially a marine policy, providing for protection of goods shipped on board the Helen, upon a sea voyage, and against sea risks ; and there is nothing contained in this policy which, by a fair construction, can bo made to extend to and cover terrene risks after the cotton shall have been safely landed at the usual place of discharging her cargo by the vessel; unless, indeed, under the facts, we are required to hold that the port of New Orleans means the port at the city, and not the port which is known by the same name on Lake Pontchartrain, where the cargo was put on shore.
It is conceded, that the policy is to be construed liberally for the benefit of the assured, and with a due regard to its design and object as an undertaking to indemnify.- — Kent v. Bird, Cowp. B. 585; Godsall et al. v. Boldero, 9 Bast, 72, 82; Hughes on Ins. 145, marg. page; — per Lord Ellenborough, in Bainbridge v. Neilson, 10 East, 144; Pelley v. Royal Exchange Assurance, 1 Burr. 349; Wolfe v. Horncastle, 1 Bos. & Pul. 322 ; Káins v. Knightly, Skinn. 55; 3 Saund. R. 200 a, note 1. “ It is certain,” said Lee, C. J., in Pelley v. Royal Exch. Ass., supra, “ that in 'construing policies, the strictum jus, or apex juris, is not to be laid hold on; but they are to be construed largely for the benefit of trade and for the insured. Nevertheless, as was said by Lord Ellenborough, O. J., in Robertson v. French, “ the same rules of construction which apply to all other instruments, apply equally to this instrument of a policy of insurance- — -namely, that it is to be construed according to its sense and meaning, as collected in the first place from the térms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect of the subject-
The language in the policy before us, as we have said, provides against loss from certain perils, while the goods are in process of ■marine transportation. They are shipped on board the Helen, upon a voyage from the port of Mobile to the port of New Orleans, enumerating the perils and adventures usually inserted in marine policies'; and it fixes the termini of the risk, the point a quo being the port of Mobile, “ and to continue and endure until the said goods shall be safely landed at the port of Now Orleans.”
We must not. confound the obligation of the insurer with that of the carrier. The boat, by the bill of lading, was obliged to have the cotton taken to the city, and the consignees' were not bound to receive it at the lake depot of the railroad; but -it by no means follows, that the insurance extends to this terrene transportation. According to its terms, it closes with the terminus of the voyage of the Helen after the goods shall have been safely landed. There is no proof whatever to show that such policies were regarded by merchants, insurers, or shippers, as usually embracing such
The parties, then, knew that the Helen landed her goods at the port of New Orleans, on the wharf at. Lake Pontchartrain. They knew this vessel did not go to the city of New Orleans; — they insert no words in the policy making the liability of the insurance company co-extensive with that of the carrier, nor extending it beyond a “ safe landing of the goods” upon the termination of the voyage; no custom or usage is shown to extend the voyage, and of consequence, the risk, to the city of New Orleans; and such being the case, we should do violence to the terms of their contract to continue the risk after the voyage had terminated and the goods were safely
It follows from what we have said, that the court erred in the charges, which held the insurer liable until the goods were delivered to the consignee, or some one for him. So, also, in the qualification given to the charges asked, which assumed that the goods must be landed at the place where it is usual for the consignee to receive and take charge of them. , The delivery to the consignee, as well as the usual place where he was accustomed to receive and take charge of the goods, could not affect the liability of the insurer, so as to extend the risk beyond the terminus of the voyage. These were questions between the consignee, or owner, and the carrier. It was certainly competent for the parties to contract for covering losses which should come to the goods upon their marine passage and until safely landed, leaving their overland passage unprotected by the policy. This, we have held, was the effect of the policy before us; and as the terminus of the marine risk was not the terminus of the transportation contracted for by the carrier, it was erroneous to make the liability of the insurer depend either upon the delivery of the goods to the consignee, or at a place where he usually received and took charge of them.
The next question which arises is, did the errors which we have noticed injuriously affect the rights of .the insurer. If they did not, we cannot reverse; for it is well settled, that an error which can do no injury, works no reversal. — Porter v. Nash, 1 Ala. 452 ; Caruthers v. Mardis’ Adm’r, 3 ib. 599; 9 Por. R. 403 ; Donley v. Camp, 22 Ala. 659; 8 ib. 737, 37.
If the contract was entire — if, in other words, the engagement to safely land the 198 bales of cotton was not complied with until the whole were landed in safety, then the errors of the court worked no injury, since it is conceded that only 134 of the bales were landed, and these were consumed by fire before the others were put on shore.
The case of Gardner et al. v. Smith, 1 Johns. Cas. 141, is relied upon by the counsel for the appellees. In that, by the terms of the policy, the risk was to continue until twenty-four hours after the goods named in the margin were landed; the risk providing against seizure of the goods as illicit trade. A portion of the goods had been landed more than twenty-four hours, when the whole were seized as illicit. Justice Lansing said, “ The insurance being entire, we are of opin- ■ ion, that the risk continued on the entire goods, until twenty-four hours after all of them were landed.”
Perhaps a distinction may be taken between the case cited and the one before us; but if it be parallel, we are not disposed to follow it. Nor are we alone in doubting its authority. An able writer upon the law of insurance does not “ hesitate to doubt it, and to state it as the better doctrine, that the risk terminates on each parcel' at the' end of the twenty-four hours after it is landed.” — See 1 Phillips on Ins. (edit. 1853), p. 539, § 972.
After the best consideration we have been able to" bestow upon the case, we are satisfied the court below mistook the law in the charges which conflict wi th the views above expressed. The judgment is, therefore, reversed, and the cause remanded.