Odiorne v. New England Mutual Marine Insurance

Chapman, C. J.

As a policy of insurance is a written instrument, its language must be regarded as expressing what the parties intended to agree upon, and the court must construe it without being influenced by the oral statements of either party. Therefore, the oral statements of the president of the company as to the construction of the policy in this case, which were offered in evidence by the plaintiff, are inadmissible. The usage which was offered to be proved is also inadmissible. Seccomb v. Provincial Insurance Co. 10 Allen, 305 . It is merely a usage among underwriters in Boston to construe a clause of the policy in a particular way. The clause in question is: « Prohibited from the River and Gulf of St. Lawrence, Northumberland Straits, or Cape Breton, and Black Sea, between October 1 and May 1.” There is nothing in this language so technical or pecu liar, or having such application to a particular trade or branch of business, or a particular method of managing business, as to require the evidence of usage to explain it, within the principles stated in Eaton v. Smith, 20 Pick. 150 , Macy v. Whaling Insurance Co. 9 Met. 354 , or Crocker v. People’s Insurance Co. 8 Cush 79. But the proposition is, in effect, to resort to the underwriters in Boston as authority for the legal construction of a contract containing ordinary language. •

The evidence offered to prove that, in a prior year, the company insured the same vessel, by a similar policy, while she was in a prohibited port, and that the policy was treated as valid, is also inadmissible. The waiver of the prohibition in that *554 case does not aid us in the interpretation of the policy before us.

In March 1867 the vessel used a port in Cape Breton, and afterwards returned to New York in safety. On December 24, 1867, she sailed from St. Johns, Newfoundland, for Sydney, Cape Breton, a prohibited port; and, when a short distance out of St. Johns, she was struck by a gale and driven out into the middle of the Atlantic Ocean, where she was lost by the perils insured against, on January 10, 1868. The principal question presented is, whether the word “ prohibited ” constitutes a warranty that the vessel shall not go to the places designated within the prescribed time.

No particular form of words is necessary to constitute a warranty ; and though the assured has signed no writing, but has merely accepted a policy which the insurer has signed and delivered to him, yet its statements as to what he or the vessel shall do, or as to what condition she shall be in, are often regarded as warranties on his part. No case is cited in which the word “ prohibited ” has been construed by direct adjudication. But words which are equivalent to a prohibition are regarded as amounting to a warranty. Thus, in Colledge v. Harty, 6 Exch. 205, the clause which was held to be a warranty was a role, subjoined to the policy, that the vessels insured “ were not to sail to or from ” certain specified ports at certain specified seasons. In Sawyer v. Coasters’ Insurance Co. 6 Gray, 221 the words “ not allowed ” to carry grain in bulk, &c., seem to have been so regarded, though the point was not directly decided. See also Palmer v. Warren Insurance Co. 1 Story; 360. In the present case, the clause above cited amounts to a statement that the vessel insured shall not be allowed by the assured to enter the waters specified within the times prescribed, and such a statement comes within the proper definition of a waranty, and must be regarded as such.

A warranty is held to be a condition precedent; it must be literally fulfilled, and a breach of it makes the policy void. 1 Arnould on Ins. §§ 213-215. In the present case, there can be no doubt that, if the prohibition amounted to a warranty, it was *555 violated, in March 1867, by the use of a port in Cape Breton. It is not necessary, therefore, to consider the effect of the voyage to Sydney; for the policy had already become void.

Judgment for the defendants