50 F. 613 | 2d Cir. | 1892
Lead Opinion
By the policy in suit the appellant insured the steamship for the benefit of all persons interested in her in the sum of $5,000 against the peril by which she became a total loss. By its terms the value of the steamship was agreed upon at $100,000. The libelants, the owners of the steamship, before this suit was brought, had been paid $95,000 by other insurers ol'the steamship upon policies similar to the one in suit. They had also been paid about $28,750 for
There are two questions for consideration in the case: First, whether the insurance effected at Lloyds’ “on advances” was an insurance upon the vessel herself, according to the proper construction of the policy; and, secondly, whether, although not denominated as such in the policy, it was in substance and legal effect an insurance upon the vessel. The first question is one of law, being one of the interpretation of a written instrument; the second is one of fact, because, if-the term “advances” signifies moneys expended to enhance the value of the vessel, like repairs, the subject of insurance was really the vessel. No effect ■can be given to the written w'ords “on advances” in the valuation clause of the policy, unless they mean that the particular property to be insured and valued is something else than that which is described in the printed parts. The policy is in the common form of Lloyds’ valued policies, which are printed with blanks for the insertion of the particular terms of the contract to be superadded to the printed forms. The printed parts describe generally the property covered by marine policies, the body, tackle, apparel, and any kind of goods and merchandise of and in the ship, and contain the general conditions of the risk insured against, while the blanks are left for the insertion of a description of the particular subject of insurance and the special conditions of the risk. In a valued policy we should naturally expect to find the property immediately in the contemplation of the parties as the subject of insurance mentioned in the valuation clause; and in Lloyds’ forms it is placed there, the printed part containing a description sufficiently broad to cover any part of the. ship herself and any part of her cargo, leaving a blank for any other subject of insurance not properly described by the printed language. Thus, for instance, when the insurance is on the freight which the ship may earn on a particular voyage or during a specified period, the words,-“on freight chartered or otherwise,” together with the agreed valuation, are inserted in writing. When the words “on advances,” together with the valuation, are inserted, they cannot be taken to mean any part of the ship or cargo, because all these are already described, not only in the valuation clause, but in the general clause descriptive of the insured property. Greater effect is to be attributed to the written parts than to the printed parts of such contracts, because they are the immediate terms selected by the parties, whereas the others are a general formula. The sensible construction, therefore, of a policy like that now in controversy is that it insures advances against risk from loss' of the ship, and the advances thus insured are something independent of and distinct from the ship herself. It is proved that the advances which were intended to be insured in this case were moneys advanced by the managing owners of the vessel in the business of the vessel, and which were in no sense represented by the vessel herself. They consisted largely of premiums for keeping her in
Concurrence Opinion
(concurring.) This case is very fully set forth in the opinion of the district judge. There can be no doubt that when the policies on so-called “advances” were issued both the assured and the insurers undertook to describe some interest other and different from the ownership of hull and machinery. It seems also very evident that, besides their pait ownership of the res, the managing agents, who earn interest and commissions on all moneys they advance from time to time, not for repairs, but to keep the vessel in service, deriving a profit to themselves from such advances, controlling the vessel and her earnings so as to secure their repayment from her profits, and finding their business in such management of the ship, have an interest in her, not identical with that which they have as part owners, entitled to share in her profits if she makes any, in her proceeds if sold, or her insurance if lost. It is not material in this case to determine whether such interest was insurable, or whether the policies on advances did insure it. If they were wager policies or the payments under them a gift, that is no defense to the claim on the policy in suit here. They were not intended to be hull policies, nor paid because they were construed to be. As they purported to cover a different interest from the one defendant has insured, their payment cannot avail to relieve him from liability.