20 F. Cas. 1269 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1862
As neither the case of Small v. Gibson, 17 Jur. 1131, and 24 Eng. Law & Eq. 16, nor that of Jones v. Insurance Co. [Case No. 7,470], decide that all time policies differ from voyage policies as to the implied warranty, but as each decide, only that the peculiar species of time policies then under consideration (which, as will appear, was the same in both cases), did not come under the rule applicable to voyage policies, it will be necessary to notice more particularly the covenants of those policies, and then examine the reasons given for not subjecting the assured to this implied covenant of warranty. For if the reasons for this exception of the time policies in the cases referred to, do not apply to the form and species of time policy now under consideration, the same rule ought not to apply.
The words of the policy in Small v. Gibson are as follows: “On the good ship or vessel called the Susan, lost or not lost in port and at sea, in all trades and services whatsoever and wheresoever, during the space of twelve calendar montlis, commencing,” &c.
The vessel was on a distant ocean; neither party could know what her condition was; if she had been seaworthy when she left her home port, neither party could know what storms she had encountered after her departure. The very object in affecting the policy is to pay a sum of money or premium for the purpose of easting upon another the perils and chances of the voyage during the period insured. If the ship was in existence at the time the policy was made, and in a storm, which dismantled her and rendered her wholly unnavigable, if she should go to the bottom the next day from leaks sprung before the date of the policy, it was evidently the intent of the parties that the underwriter was Iiaid for taking upon himself the hazard. It Is true a policy may be made on a ship from Calcutta to New York, and the owner may not know whether his vessel is seaworthy or not. But he knows that the master of his vessel will not leave Calcutta without putting his vessel in a condition to meet the usual perils of the voyage, and may well be presumed to warrant that fact with regard to his absent vessels. It is his bounden legal duty towards the mariners for the safety of their lives, and towards the merchants who load their goods, that the ship should be stout, stanch and strong, or in other words, seaworthy, before she commences a voyage either from or to a distant port. And it may most properly be implied, that in this contract with the underwriter the owner should be taken to warrant, as a foundation of the contract, that the ship shall be at the time of sailing from Calcutta, a seaworthy vessel. This rule is founded on policy, also, and courts should enforce strict compliance with it; otherwise the effect of insurance might be to render those who are protected from loss by the policy, exceedingly careless about the condition of the ship, and the consequent safety of the crew. Every vessel at the commencement of each particular voyage, requires appliances commensurate and appropriate to the ordinary risks of navigation during the particular voyage contemplated. In such a case there can be no difficulty in fixing the commencement of the risk, and making proof of the vessel’s condition. But it is otherwise in a time policy like that in Small v. Gibson [supra], where the risk begins to run on a ' given day, wherever the ship may be. Whether the vessel is seaworthy or not is clearly one of the risks assumed by the underwriter, who has covenanted to bear a part of the risk of the owner for a given period.
The words of the policy in Jones v. Insurance Co. [supra] — -the ease I mean in our own circuit — were also “lost or not lost,” and in point of fact, the vessel, was on the main at the time when the assurance was effected.
But there- are many policies of insurance which may be classed under the genus time policies, as distinguished from voyage policies. to which this course of reasoning would be wholly inapplicable. Let us take the case before us: It is true, it is a time policy, but it is not on a vessel in a distant ocean, or in parts unknown, where the parties have contracted without a knowledge of her situation, and with a premium paid for assuming the risk of her seaworthiness at the time by the underwriter. It is, in fact, but an agreement to insure the vessel in so many voyages between New York and Galveston, as she may choose to make within a year. If the insurance had been for twelve successive voyages back and forth, it would have been classed as a voyage policy, and the same implied warranty of seaworthiness would have applied to each, as if there had been several policies for each voyage. Can the fact that the number of voyages is indefinite, and
Parke, B., in delivering the opinion of the court of exchequer chamber, in Small v. Gibson, after stating the reasons why the implied warranty of seaworthiness, which it is the policy of the law to enforce, did not apply to that peculiar form or species of time policy, is careful to exclude the idea that this same rule would apply to all time policies; and very justly, as the decision in that case first established the doctrine, that any time policy should be held as excepted from the general rule as to seaworthiness.
Martin, B., in his opinion, delivered in the house of lords, says: “If the record in this case had shown that the policy had been effected upon the ship upon her setting out from her original port, I am of opinion that from analogy to the case of a voyage policy, the warranty ought to be implied. If a time policy be effected on a ship about to sail from a given port on a voyage or voyages the ship must, in my opinion, be seaworthy at the time of'sailing.”
“Such a condition or warranty,” says Platt, B., “is intelligible; its observance is practicable, and would be calculated to extend to the assured and the underwriter respectively every reasonable protection.”
Lord Campbell, C. J., admits there might be an exception to the general rule of implied seaworthiness where the time policy is effected on an outward bound ship in a port where the owner resides, but thinks it better to have a short, sharp rule, applying to all time policies — and thinks it more expedient that the rule should remain without any exception.
It. seems not to have occurred to that learned judge that the exception to the general rule as to seaworthiness was, itself, a “judge made” one, then for the first time decided, and that to include other cases bearing no analogy to the one before the court (and to which the reasons given would not apply), within that exception, would be “gratuitous,” however it might facilitate the business of a court to follow “plain rules” without distinguishing between things that differ.
Judgment for defendant.
