Of the con that whence the ship is to sail, or where the goods are to be struction of the loaded: but if a general and well known usage can be shown, policy. Usage as to commencement of risk in the Kingston v. Usage in the that the ship under certain circumstances is to sail, or the goods are to be loaded, not at that very port or place, but at some port near it, the underwriter will be bound by such usage, and not allowed to dispute his liability on the ground that the risk, under the precise terms of the policy, never commenced on the subject insured. Thus, where it was shown to be a well known usage in the Oporto trade, for ships to complete their loading for the Oporto trade, homeward voyage outside the bar, whenever, from the low state of water in the river Tagus, they cannot conveniently do so within side the bar, Lord Ellenborough held, that an underwriter who had insured a ship "at and from Oporto to London," could not object that he was discharged from his liability, because the ship, without his knowledge, had finished her loading outside the bar. (j) So, where it was proved to be customary in the Florida trade for ships to take in their homeward cargoes at Tigre Island in St. Mary's river, and then drop down to Amelia Island, a little lower down the river, for the purpose of paying dues and clearing; it was held, that an underwriter, who had insured goods "at and from the ship's loading port or ports in Amelia Island to London," was not entitled to object that the policy never attached, because the goods had been loaded, not at Amelia Island, but at Tigre Island, as the custom of the trade required they should be. (k) Florida trade, 3 Camp. 199. Usage as to the termination of the risk on goods in the port of Archangel, Brown v. 3 Camp. 160. It was formerly the well known custom at Archangel, immediately on a ship's arrival, to seal down her hatches, send a Custom-house officer on board till she was unloaded, and carry the goods to the government warehouses, where (j) Kingston v. Knibbs, 1 Camp. 507, in notis, a very strong case, as it appeared, that in such policies liberty is often expressly given to load on either side the bar; so that the underwriter might not unfairly have contended that he was misled by the omission of this stipulation. (k) Moxon v. Atkyns, 3 Camp. 199. In this case it should be remarked that, as there were no ports at all in Amelia Island, the policy could not be construed literally. struction of the they remained till the duty was paid; a merchant, who had Of the coninsured his goods from London to Archangel, "until they policy. should be there discharged and safely landed," was held to have no right of action against the underwriter for any loss that had occurred on the goods, after the ship's hatches had been sealed down and the revenue officer put on board of her in the manner described, for, as Lord Ellenborough said, the goods were then landed, according to the usual course of trade, at the port of Archangel, which was all the underwriter undertook for. (1) So, on proof of an ancient and well known custom prevailing in the port of Leghorn, that certain goods shipped for that port should be invariably landed at the Lazaretto, it was held in the United States that a merchant who had insured goods of this description, "till they were safely landed at Leghorn," could not protect them by such policy, after they were once landed at the Lazaretto, such being by the custom of the trade equivalent to a landing at Leghorn. (m) Such are some of the illustrations that have occurred in practice of the rule now under consideration: I will add one more, in order to show that, where the of the usage ticular trade with reference to which the underwriter insures, par is opposed to that general usage of trade with reference to which all policies are primâ facie supposed to be made, the former is to be taken as the true key to the construction of the policy in preference to the latter. On an insurance on goods, the underwriter is in general entitled to expect that they will be carried in that part of the ship usually appropriated to their stowage, and not on deck, which is regarded as an unusual and dangerous place for that purpose. Every policy, then, in the absence of any express stipulation to the contrary, is generally read as though it contained on the face of it, an exemption in terms against all liability on goods so carried. (n) (1) Brown v. Carstairs, 3 Camp. 160. (m)† Gracie v. Maryland Ins. Comp. 8 Cranch's Supreme Court Rep. 75. Such is the general rule; (n) See the judgment of Lord Lyndhurst in Blackett v. Royal Exch. Comp., 2 Cr. & Jer. p. 249, 250. Usage in the port of Leg horn. If the usage of the particular trade on which the underwriter insures, varies from general maritime usage, yet the former shall prevail in the construc tion of the on deck, if ac cording to the usage of the trade, are pro tected by com mon form of policy: if otherwise, they are not. Of the con struction of the policy. If the usage be co-extensive but whenever it can be shown that, by a well settled and generally known usage of the trade on which the underwriter insures, the specific description of goods on which the policy is effected are customarily carried on deck, the more general usage gives way to the more particular one, and the underwriter is liable for any loss upon the goods so carried, without any necessity of proving notice, on the broad principle that he must have contracted with full knowledge that they would be so carried by the usage of the particular trade. (0) In the same way it is a general usage of trade, incorporated, as we have seen, into all policies, that the ship shall pursue a direct course between the two termini of the voyage, without stopping at any intermediate places: if, however, it can be shown to be the clear and well settled course of any given trade, that voyages should be made between one place and another, stopping at certain interjacent ports, this usage of the particular trade, if clearly made out, will countervail the general usage, and the stopping at such ports be deemed no deviation. (p) If the usage proved be shown to have been general and well with, and of the known, it makes no difference that the trade in which it prevails is itself of recent origin. same duration as the trade, it will be binding, though the trade itself be recent, A particular course of trade between any two given places may only have been carried on for a very short time; but if it can be shown that ever since it has been opened it has been conducted in a certain course, and upon certain terms, that course and these terms form the usage of that trade, and, as such, are binding on all those concerned in carrying it on. Thus, when the trade to Labrador, which was first opened to English shipping after the peace of Paris, had been carried on only three years; Lord Mansfield held, that a custom, which had been invariably observed ever since its opening, (0) Da Costa v. Edmunds, 4 Camp. 142. Gould v. Oliver, 4 Bing. N. C. (p) Marshall, p. 186. Ins., vol. i. p. 54. pp. 354, 355. Phillips on And see post, But in order to must be proved be binding it uniformly was as binding on those who insured on Labrador risks, as of the conthough the trade itself had been of much longer continuance. (q) struction of the policy. In this case, Lord Mansfield considered that evidence of an usage which had prevailed in one trade, was rightly admitted to prove that the same usage was binding on those engaged in another trade of the same kind, carried on in the same way.(r) But the usage, in order to be binding, must be proved to have been uniformly adopted and generally known, by all those engaged in the particular trade on which the insurance is effected. "To to have been make an usage obligatory on the parties," says Mr. Justice adopted, and Story, "it should be so well settled, that all persons engaged known. in the trade must be considered as contracting with reference to it." (s) Hence, where, in case of an insurance effected from Liverpool to Jamaica, the ship put into the Isle of Man; and it appeared that ships bound on this voyage sometimes put in there, but not usually; it was held, that this proof did not amount to such a well-known and settled usage of the trade between Liverpool and the West Indies, as to prevent this from being a deviation. (t) generally of persons, can § 43. RULE II. The usage, moreover, in order to be binding, II. The usage must be either a general usage of the whole mercantile world, of a particular or a particular usage of universal notoriety in the trade upon particular class which, and of the place at which, the insurance is effected: not be binding the usage of a particular place, or of a particular class of dents or on persons, cannot be binding on non-residents, or on other persons, unless they are shown to have been cognisant of it. (u) The principle upon which evidence of usage is received at all to explain a policy is, that the parties to it are supposed to have contracted with reference to such usage: with regard to usages which are either common to all trades, or perfectly well known and settled in the particular course of trade to on non-resi other persons, unless they are shown to have been cognisant it. Of the con struction of the policy. The usage of which the insurance relates, it is obviously a fair presumption that the parties to the policy as mercantile men are conversant with such usages, and have contracted with reference to them; such usages, in fact, form part of the law merchant; and to incorporate them with the policy is merely to admit the addition of known terms not inconsistent with the tenor of the instrument, and well understood by the contracting parties; but with regard to usages which only prevail in a given place, or amongst a particular description of persons, the presumption is the other way; and in such cases, accordingly, it must be satisfactorily shown, that the party sought to be affected by the usage either had or might have had cognisance of it. This principle has been well illustrated in our law of Lloyd's is only Marine Insurance, by several cases which have been decided binding on parties who are as to the admissibility and effect of evidence of the usage at either proved, or may fairly be presumed, to be cognisant of it. Lloyd's. As the great majority of insurance business in England is still carried on by the private underwriters who meet at Lloyd's, it might have been considered no very violent presumption, that all parties resident in this country employing brokers to effect policies for them in the common course of business, should be considered to have done so with reference to the usages established at Lloyd's; especially where such policies have been actually effected for them at that house. Such, however, has not been the result of the decisions; but it has been held, especially by Lord Tenterden, that although clear proof may be given of a particular usage being established at Lloyd's, and even though the fact may be, that the policy was effected by a broker at Lloyd's, in the common course of business, for a party resident in this country; yet, that such party cannot be affected by the usage, unless it can be further shown, either that he was actually cognisant of it, or from his general modes of dealing, habits of life, or place of business, cannot be supposed to have been ignorant of it. (v) (v) Gabay v. Lloyd, 3 B. & Cr. 793. Bartlett v. Pentland, 10 B. & Cr. 760. Scott v. Irving, 1 B. & Ad. 605. Stewart v. Aberdein, 4 Mees. & Wels. 211. |