Reed v. Mutual Insurance Company

APPEAL from the Circuit Court of the United States for the District of Maryland.

The circumstances of this case, as gathered from the pleadings and evidence, particularly the agreed statement made by the parties themselves, are substantially as follows:--

In November, 1867, the libellant, Samuel G. Reed, of Boston, was owner of the ship 'Minnehaha,' then lying at Honolulu, in the Sandwich Islands, and about to sail from that place in ballast via Baker's Island, with the intention of there taking in a cargo of guano, to a port of discharge in the United States. Baker's Island is a small rocky island in mid-ocean, nearly under the equator, and about two thousand miles south-westerly from the Sandwich Islands, having no harbor or anchorage, and only frequented for its guano. When ships arrive there, they are moored in the open sea, in an exposed and perilous position. The mooring is effected by means of a heavy stationary anchor, weighing five thousand six hundred pounds, fastened to a coral reef in about one hundred fathoms of water, to which anchor a large buoy is attached by a heavy pendant chain. This chain is braced by two other chains, each over a thousand feet long, attached to anchors fastened to another coral reef nearer to the island. By still another chain the ship is moored to the first-mentioned pendant chain as long as she remains at the island; and her cargo is sent aboard from the island in small boats. The place is subject to strong currents and heavy gales, and vessels are, in consequence of the weather, frequently obliged to put to sea while loading.

On the 6th of January, 1868, the libellant, through a firm of insurance brokers in New York, made application by mail to the Merchants' Mutual Insurance Company of Baltimore for insurance on the said ship 'Minnehaha,' in the following terms:--

'Application for insurance is hereby made by Johnson & Higgins, as agents, in the name of Samuel G. Reed, account of whom it may concern. Loss, if any, payable to them or order. For [$5,000, at seven per cent net] on ship 'Minnehaha,' valued at $60,000, at and from Honolulu, via Baker's Island, to a port of discharge in the United States not east of Boston, with liberty to use Hampton Roads for order; the risk to be suspended while vessel is at Baker's Island loading.'

This application was enclosed in the following letter:--

'OFFICE OF JOHNSON & HIGGINS, &c.,

'87 Wall Street, New York,

'Jan. 6, 1868.

'GEORGE R. COALE, Esq., Secretary:

'DEAR SIR,-Enclosed please find two applications for Samuel G. Reed: viz., one on the 'Minnehaha' (our companies here are averse to Baker's Island risks, and for that reason the owners suspend the risk while at Baker's Island loading. The Atlantic have taken a large line on vessel and freight at seven per cent, with scrip); also, one on the 'Guiding Star,' now loading under inspection of Captains Ellis and Story, for underwriters. Please let us know how much your companies will take on each, and the lowest respective rates. Should like to hear by telegraph.

'Yours respectfully,

'JOHNSON & HIGGINS,

'Per TOOKER.'

In pursuance of this application, the company issued the policy on which the present suit is brought, the operative clause of which is in these words:--

'The Merchants' Mutual Insurance Company of Baltimore have insured, and do hereby insure, agreeably to order, Samuel G. Reed, for account of whom it may concern, lost or not lost, at and from Honolulu, via Baker's Island, to a port of discharge in the United States not east of Boston, with liberty to use Hampton Roads for orders, the risk to be suspended while vessel is at Baker's Island loading, $5,000, upon the body, tackle, &c., of the good ship 'Minnehaha."

The ship sailed in ballast from Honolulu the 7th of November, 1867, and arrived near Baker's Island on the afternoon of the twentie h day of that month. She came to her mooring near the island in safety; shortly after which a heavy gale and heavy surf arose, and continued with violence until the 3d of December, when the ship parted her moorings, and was totally wrecked and lost. At no time after her arrival at that island was it possible to discharge ballast or receive cargo, or commence the process of loading, or even the preparation for loading.

Proof of loss and of interest and adjustment was duly presented to the company, and payment demanded therefor and refused.

On May 20, 1872, Reed exhibited his libel in the District Court of the United States for the District of Maryland against said company. That court upon hearing dismissed the cause; and the Circuit Court having affirmed the decree, the libellant brought the case here.

The Statute of Limitations in force in Maryland provides as follows:--

'All actions of account, actions of assumpsit or on the case, actions of debt on simple contract, or for rent in arrears, detinue, and replevin, all actions for trespass for injuries to real or personal property, shall be commenced or sued within three years from time the cause of action accrues.'

Mr. Frederick E. Bryant and Mr. Charles B. Goodrich for the appellant.

1. The policy covers the voyage during which the loss occurred, and the appellant is prima facie entitled to recover the amount of such loss. The vessel was insured from Honolulu, via Baker's Island, to her port of discharge; and the intention of the assured and insurer that she should stop there is thus clearly manifested.

2. The excepting clause, 'the risk to be suspended while the vessel is at Baker's Island loading,' has no bearing upon the rights of the parties; because no loading was made or attempted. The appellee gives to that clause a broader signification than its terms justify, and makes it include a suspension of the risk before the process of loading began. If it be ambiguous (which we deny), it should receive a construction least favorable to the company. 2 Parsons, Contr. 19 (ed. 1860); Dann v. Spurrier, 3 B. & P. 399; Doe v. Dixon, 9 East, 15; Throckmorton v. Wacy, Plowd. 154; Melvin v. ''Prop., &c. on Merrimack River'', 5 Met. (Mass.) 27. Usage is never admissible to contradict what is plain. Hearne v. Marine Insurance Co., 20 Wall. 492; Haskins v. Warren, 115 Mass. 535; Dickenson v. Gay, 7 Allen (Mass.), 34; Black v. Bachelder, 120 Mass. 171. Nothing can be plainer than that the risk was to be suspended only while the vessel was at Baker's Island loading. Any other construction would do violence to the rule that full force and effect should be given to every word of a written contract. 2 Parsons, Contr. 16, 17 (ed. 1860); Evans v. Sanders, 8 Port. (Ala.) 497; Stratton v. Pettit, 16 C. B. 520.

The statement made in the letter of Johnson & Higgins, which accompanied the application for the policy, that the New York companies were averse to Baker's Island risks, &c., even if fraudulently made, which it was not, is immaterial, and does not vitiate the insurance, as neither the appellee nor its agent was thereby influenced to take the risk. 1 Phillips, Ins., sects. 539-541; Salem India-Rubber Co. v. Adams, 23 Pick. (Mass.) 256; 1 Parsons, Mar. Ins. 465; Flinn v. Tobin, 1 Moo. & M. 367; Flinn v. Headlam, 9 B. & C. 693.

In regard to the position taken on the other side, that the lapse of time bars this suit, it is submitted that statutes of limitation are, like all statutes in derogation of the common law, construed strictly. This, moreover, is a proceeding in admiralty. The act of Maryland cannot affect the status of the appellant in a court of the United States, nor even furnish any analogy to control the exercise of its jurisdiction. The company has not been injured by delay, and sustaining the bill will not produce public inconvenience. The imputed laches, therefore, furnish no legal or equit ble ground for depriving him of his right to a determination of the case upon its merits. Pickering v. Lord Stamford, 2 Ves. Jr. 583; Allore v. Jewell, 94 U.S. 506; Bingham v. Wilkins, Crabbe, 50; Brown v. Jones, 2 Gall. 477; Willard v. Dorr, 3 Mas. 95; The Key West, 14 Wall. 653.

Mr. John H. Thomas, contra.

The letter of Johnson & Higgins to the agent of the appellee was intended to produce, and did produce, on his mind the impression that the New York companies had excluded the risks of Baker's Island by suspensions coextensive with that mentioned in the application. If they had not, the policy was obtained by misrepresentation, and is null and void. 1 Parsons, Mar. Ins. 409, 410.

The policy without the suspending clause would not have covered the vessel at Baker's Island, but only during her voyage via that island. When property is intended to be covered by a marine insurance at a place, not constituting a part of the voyage, apt and express words adequate to that purpose are always used; as, for example, 'at and from,' 'to, at, and from,' 'to, while there, and thence,' 'with liberty to touch at,' 'with liberty to touch and stop at,' 'with liberty to touch and load at,' &c. 1 Phillips, Ins., sects. 928, 1005, 1014; 2 Parsons, Mar. Ins. 16, and notes; Park, Ins. 388; Barber v. Fleming, 5 Law Rep. Q. B. 59; Stitts v. Wardell, 2 Esp. 610; Sheriff v. Potts, 5 id. 96; United States v. The Paul Shearman, 1 Pet. C. Ct. 98-104; Cross v. Shuttliffe, 2 Bay (S.C..), 220.

The words 'via Baker's Island' are descriptive of the voyage. Without them the vessel would have been obliged to pursue the accustomed route. Passing that island, if unusual and unnecessary, and, a fortiori, stopping, loading, or even touching there, would have been a deviation, causing a forfeiture of the policy. The words suspending the risk, 'while at Baker's Island loading,' were introduced to limit and not enlarge the operation of the instrument. If the intention had been to suspend the risk 'while loading,' the collocation of them would have been 'while loading at Baker's Island.' Place is the controlling idea of the words as used; 'loading' is subordinate. It indicates the purpose of being at the place, not the terms of the risk. Devoux v. J'Anson, 5 Bing. N. C. 539.

If the construction here contended for is not the natural one, looking at the policy alone, it is proper to invoke, in aid of its interpretation, the letter enclosing the application, and therefore a part of it. Looking at the entire instrument, the object sought to be accomplished, and all the circumstances of the case, it seems impossible to resist the conclusion that the words in the clause were employed to describe the place at which the risk was to be suspended, and the purpose for which the vessel was to be there, without reference to the mode in which her crew might be employed. Courts have gone so far in this line of interpretation as to decide, that, although the literal and grammatical construction of a policy would make it attach only on goods 'at' a designated place, 'it may attach although the ship be at another place, if the policy and all the circumstances make it certain that the name of the place is either surplusage or a mere term of description.' 2 Parsons, Mar. Ins. 45.

If the name of a place can be so rejected, for the purpose of carrying into effect the intention of the parties, why, on the same principle, may not a word designating only the contemplated employment of the crew at a place be rejected? Id. 50.

Exceptions in a policy must always be construed according to the actual intention of the parties, so as to carry the contract into effect. 1 Parsons, Mar. Ins. 64, note 1; id. 623; Cross v. Shuttliffe, 2 Bay (S.C..), 23; Yeaton v. Fry, 5 Cranch, 335. When the policy was issued, it is clear that neither Johnson & Higgins nor the appellant considered t at it covered the vessel when at the island, whether she was engaged in loading or not. If there is any doubt as to the true meaning of the instrument, their construction of it, concurring with that of the appellee, is entitled to great and conclusive weight. Railroad Company v. Trimble, 10 Wall. 367. Resort may be properly had to the testimony of experts to aid in interpreting the clause of exemption. 1 Parsons, Mar. Ins. 77, 83, 627, 628; ''Salmon Falls Man. Co. v. Goddard'', 14 How. 447; Grey v. Harper, 1 Story, 574; Shaw v. Wilson, 9 Cl. & Fin. 555; Smith v. Wilson, 3 Barn. & Ad. 728; Williams v. Wood, 16 Md. 251; Merchants' Bank v. State Bank, 10 Wall. 667; 2 Taylor, Evid., p. 1009, 1010, sects. 1060, 1062, 1068; 1 Greenl. Evid., sects. 280-282.

This suit, when brought, was barred by the Statute of Limitations of Maryland. 1 Md. Code, p. 395.

In cases of concurrent jurisdiction, courts of equity adopt the period of limitation prescribed for courts of law. Lewis v. Marshall, 5 Pet. 470; Peyton v. Smith, id. 485; Miller v. McIntyre, 6 id. 61; Bank of United States v. Daniel, 12 id. 56; Elmendorff v. Taylor, 10 Wheat. 152; Thomas v. Harvies's Heirs, id. 149, 150; Burke v. Smith, 16 Wall. 401; Hirtle v. Schwartz, 3 Md. 383; Teackle v. Gibson, 8 id. 87; Knight v. Brown, 14 id. 7; Dugan v. Gittings, 3 Gill (Md.), 161.

Admiralty courts are chancery courts of the sea, and are governed by chancery rules in the administration of their remedies. Packard v. Sloop Louisa, 2 Woodb. & M. 60; Brig Sarah Ann, 2 Sumn. 212; Pittman v. Hooper, 3 id. 305; Willard v. Dorr, 3 Mas. 163; Joy v. Allen, 2 Woodb. & M. 304.

The Key City, 14 Wall. 653, was a proceeding in rem exclusively of admiralty jurisdiction. The principles there enunciated are expressly confined to such a case. It establishes nothing at variance with what is here contended for. In a matter solely within their cognizance, courts of equity do not inflexibly adhere to the common-law period of limitation. Wisner v. Barnet, 4 Wash. 640; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90. Nor do the admiralty courts; but that doctrine has no application to this suit.

MR. JUSTICE BRADLEY delivered the opinion of the court.