1 to have prevailed (favoured unquestionably by certain reported expressions of the earlier Judges) that sea-policies were not amenable to the rules of construction generally applicable to all other mercantile contracts, but were to be interpreted so as to carry out the assumed intentions of the parties, even though repugnant to the terms in which their intentions purported to be expressed on the face of the instrument itself, must now be regarded as erroneous. Parol evidence, whether of usage or otherwise, can in no case be admitted to contradict or materially vary the plain and express terms of a sea-policy. It can only be admitted either to explain those terms where technical or ambiguous, or to modify and add to them where they are plainly employed with reference to some usage of trade, and without such reference would, accordingly, be incomplete as an expression of the mind of the parties contracting. In such cases the Courts may resort to any means of interpreting the policy, so as to effectuate the real intention of the parties, which may be supplied either by the rules of the Common Law, the general usages of trade, or the particular circumstances of the case.' and controlling really does exist. Where the words to be interpreted are indeterminate or ambiguous the usage explains them; but when they convey a definite meaning that the Court would be bound to adopt, or their construction has been settled by law, the usage controls them; and in these cases it does set aside what, judging only from the terms of the policy or the rule of law, was the plain intention of the parties, but, in controlling, the usage does not contradict the words, it merely varies, by restraining or cularging, their application." 1 Duer, 245, 246. 1 See 1 Emerigon, c. i. s. 5, p. 17, and c. ii. s. 7, pp. 55, 56; see the judg ment of Lord Denman in Trueman v. Loder, 11 A. & E. 589; and that of Story, J., in The Schooner Reeside, 2 Sumn. 567; see also the admirable "The same rule of construction," said Lord Ellenborough, which applies to other instruments, applies equally to this, viz., that it is to be construed according to the sense and meaning, as collected in the first place from the terms used in it, which terms are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from the popular sense of the same words, or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties, be understood in some other special and peculiar sense." The following are some of the more prominent rules of General rules. construction that appear to have been acted upon by our Courts in the interpretation of sea-policies. I. Every usage of a particular branch of maritime trade which is so well settled, or so generally known, that all persons engaged in that trade may fairly be taken as contracting with reference to it, is considered to form part of every seapolicy, designed to protect risks in such trade, unless the express terms of the policy decisively repel the evidence. Nor need any evidence be given in such cases, that the usage has been communicated to the underwriter; for, as Lord Mansfield says, "every underwriter is presumed to be remarks of Mr. Chancellor Kent, (Com. v. iii. p. 260, and noteƒ); and especi ally the two very able and elaborate chapters (with their notes and illustrations) which Judge Duer devotes to the consideration of this subject (1 Duer, 158-311). "The meaning of the rule excluding parol evidence is, that such evidence shall never be received to show the intention of the parties to have been directly opposite to that which their language expresses or substantially differing from any meaning which the words they have used upon any construction will admit or convey; but there are cases in which the language of a policy, in en- 135. I. Every wellsettled usage of trade is prima facie part of the policy. Cases. acquainted with the usage of the particular trade he insures; and if he does not know it, he ought to inform himself." The description of the voyage in the policy, he says, in another case," is an express reference to the usual manner of making it, as much as if every circumstance were mentioned" on the face of the instrument. "What is usually done by such a ship, on such a cargo, in such a voyage, is understood to be referred to in every policy, and to make a part of it as much as if it was expressed." It had been the custom for many years in the China trade for all European ships, while at Canton, to store their rigging and furniture in houses, built for that purpose on sand banks in the Canton river, called bank-sauls, it was held, therefore, that every underwriter ensuring a risk in the Canton trade, must be considered to have done so with reference to this usage; and that the underwriter was, therefore, as much liable for a loss by fire happening to the rigging so stored, as for any similar loss occurring in any other part of the adventure.❜ It was formerly the uniform and well-known practice of the East India Company to reserve in their charter-parties the liberty of employing the vessel in what is called the country trade, that is, on intermediate voyages from one port to another in India; and all parties engaged in this trade were taken to be fully cognizant of the usage. Accordingly, under policies on ships employed by the company, though nothing was said of an intermediate voyage in the policy, yet, because the voyage insured was known by the underwriter to be an East India voyage, the courts held that he must be presumed to have contracted with reference to all the known usages of the East India trade; and, therefore, that the construction of the policy should be the same as if liberty had been 1 Lord Mansfield in Noble v. Kennoway, 2 Dougl. 510, 513; and Lord Ellenborough in Da Costa v. Edmunds, 4 Camp. 142, 143. 2 Lord Mansfield in Pelly v. Royal Exch. Ass. Co., 1 Burr. 341, 350; per Lord Lyndhurst, Blackett v. Royal 3 Pelly v. Royal Exch. Ass. Co., 1 Burr. 341; Brough v. Whitmore, 4 T. R. 206. expressly reserved on the face of it, to make such intermediate voyage. In the Newfoundland and Labrador trades, where the main Usages of the Newfoundland object of the voyage is to take fish, it was a well-known and trade. general usage that the cargoes insured on such voyages, being chiefly salt and provisions, are taken out as they are wanted, and not landed, like other cargoes, on arrival; under an insurance, therefore, on such a fishing voyage, on "goods" in the usual form, "until discharged and safely landed,” it was held that the underwriter must be taken to have insured with full cognizance of this usage, and could not exempt himself from liability for a loss, although it had not taken place until long after the time when, but for the custom of the trade, his liabity under the mere terms of the policy would have been at an end.' It is also a well-understood and familiar usage of the Newfoundland trade, that the ships engaged in it, after their arrival at Newfoundland, are either engaged for some time in fishing (called banking), or they make intermediate voyages from one American port to another, before beginning to load a cargo for the homeward voyage. It has been ruled by Lord Eldon and by Lord Ellenborough, that underwriters, who had insured homeward risks on ships engaged in this trade, under policies "at and from Newfoundland," were bound to know this usage; and were not entitled to contend that such intermediate voyages vitiated the policy, by varying the risks they had intended to insure." According to the general import of the words 'at and from," says Lord Ellenborough, in one of these cases, "the policy would attach on the ship's first mooring in a harbour on the coast, but it doubtless may be explained differently by usage, and as between these parties, the policy 1 Salvador v. Hopkins, 3 Burr. 1707; Gregory v. Christie, 3 Dougl. 419; Farquharson v. Hunter, 1 Park, Ins. 105. 2 Noble v. Kennoway, 2 Dougl. 510. The voyage in this case was to the coast of Labrador, but evidence was admitted to show the usage in such case to be the same as on fishing 3 Vallance v. Dewar, 1 Camp. 503; T Usage affecting the commence nation of the risk. In the Oporto trade. must be taken to be the same as if it had been expressed to attach on the expiration of the banking or intermediate voyage. This certainly seems an instance of usage being permitted to control the general import of a clause in the policy, as fixed by legal construction. The commencement and termination of the risk may be ment and termi- Varied from that which is the general construction of the policy, by the customary usages of particular ports. Thus, by a well-known usage in the Oporto trade, ships complete their loading for the homeward voyage outside the bar, whenever, from the low state of water in the Tagus, they cannot conveniently do so within, and an underwriter on a policy "at and from Oporto to London," was not discharged from liability by the ship, without his knowledge, loading outside according to usage. So, in the Florida trade, ships customarily 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; an underwriter, on 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.3 In the Florida trade. At Leghorn. "Arrival." On proof of an ancient custom at the port of Leghorn, that certain goods for that port should be invariably landed at the Lazaretto, it was held in the United States, in the case of an insurance on such goods, "till they were safely landed at Leghorn," that such landing at the Lazaretto was in virtue of the custom equivalent to a landing at Leghorn.* Under a policy on ship to the Mauritius and for thirty days after arrival, evidence was admitted of a usage to anchor 1 1 Camp. 508. 2 Kingston v. Knibbs, 1 Camp. 508, 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. 3 Moxon v. Atkins, 3 Camp. 200. 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. Gracie v. Maryland Ins. Co., 8 Cranch's Sup. Ct. R. 75. |