(1) Implied by Lord Eldon, 2 N. R. That a court of chancery will, upon sufficient proof, correct a mistake in filling up the policy, has been repeatedly decided.(1) Lord Chancellor Hardwicke says, 'No doubt this court has 322; Living- jurisdiction to relieve in regard to a plain mistake in contracts in ston, J. Graves writing, as well as against frauds in contracts, so that if reduced & al. v. Mar. into writing contrary to the intent of the parties, on proper proof, that would be rectified. But there ought to be the strongest proof possible.'(2) And the Supreme Court of the United States appears to assume, very distinctly, that a court of equity may correct a mistake in a policy.(3) Ins. Co. 2 & Washing ton J. Hogan v. Del. Ins. Co. Condy's Marsh.345. n. (2) Henkle v. Roy. Ex. Ass. Co. 1 Vez. 317. (3) Graves & al. v. Boston ker v. Paine, 1 Vez. 456. Section 10. Usage affects the construction of the Policy. The subject matter of marine insurance and other mercantile Mar. Ins. Co. Contracts, makes it necessary to go out of the written instrument 2 Cranch,441. in order to interpret it, more frequently than in most other conSee also Ba- tracts. It was early laid down as a rule, that, in determining the meaning of a policy, regard must be had to the course of the As to liberal trade to which it relates.(4) Hence a notion seems to have construction been entertained, that the principles of construing this contract, of the policy. (4) Lethuare not the same that are applicable to others. It is said that lier's Case, 2 policies are to be construed largely,'(5) according to the intention of the parties, and for the indemnity of the assured and the advancement of trade.(6) Salk. 443, D. 1743. & strument. 663. c. 12. s. (8) Agailar & al. v. Rodgers, 7 T. Ř. 419. 6 The principles of construction are, however, the same in reEtherington, 1 gard to these, and all other contracts in writing, in which the inBur. 348, A. tention of the parties is always to be sought for in the instru(6) Park, 49, ment itself. The contract,' says Emerigon,' is a law from which per Yates, 2 it is not allowable to depart, under the pretext of a pretended Bin. 373. equity, which would only introduce uncertainty and inconsistenPolicy to be construed like Cy into decisions.'(7) Lord Kenyon says, ' it would be attended any other in- with great mischief and inconvenience, if, in construing contracts of this kind, we were not to decide according to the words used by the contracting parties ;'(8) and Lord Ellenborough, that the same rule of construction 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 (9) Robertson effectuate the immediate intention of the parties, be understood & al. v. in some other special and peculiar sense.'(9) The principle of French, 4 East, 135. construing according to the intention, applies to other instruments (10) Per Mar- as well as policies. "There are many cases on the construction shall, C. J. 3 of bonds, where the letter of the condition has been departed Cranch, 235. Cooke v. Gra- from, to carry into effect the intention of the parties."(10) That policies of insurance are governed by the same laws of con ham. struction, as other written contracts, has been many times decided, either directly or in effect.(1) (1) Per Kent, Cas. 341; Mumford v. and Marshall, C. J. Graves v. Bost. Mar. The meaning of the words and phrases in policies as well as J. Goix v. other instruments, must in general be ascertained by going out Low, Johns. of the instrument. Where the assured undertook that his vessel Marsh. Ins. should have a sea-letter on board; to ascertain what the parties 304; Per meant, or must be supposed to have meant by a sea-letter, it was Livingston, J. necessary to resort to the public statutes and treaties, or, if this Hallet, 1 document was not defined, and its form prescribed in these, the Johns. 439; construction of the stipulation was to be determined by the common usage and understanding among men of business.(2) Parties have been allowed to prove that words have a meaning in policies different from that in which they are commonly used. Where a policy provided that no other than a total loss should be paid on roots, and a loss which was not total happened on a quantity of sarsaparilla, the court was of opinion that it should be paid, notwithstanding it came literally within the ex- n; Sleght v. ception, it being shown that the provision was introduced in re- & al. 1 Johns. ference to trade, principally from Connecticut to the West In- 192. S. C. in dies, in beets and other garden roots, which were green and per- Err. 2 Johns. ishable, whereas the sarsaparilla being a dry, hard root, is less 531, and see liable to decay from its internal qualities, than merchandize in 351. general, and had never been considered, in practice, as one of (2) Sleght v. the articles excepted in the policy.(3) (a) A question arose under the agreement, that the underwriter should not be liable for a partial loss on corn, whether rice was comprehended in that term, and, Sir James Mansfield said, that no one reading the policy would be apprised that rice was intended, yet if a clear usage to the contrary were shown,' rice might be considered as comprehended in the word corn in policies of insurance.(4) Ins. Co. 2 Rhinelander also 2 John. Rhinelander, 1 Johns. 192. 2 id. 531. (3) Coit & al. .Col. Ins. Co. Johns. 385. 7 (4) Scott v. Bourdillion, 2 N. R. 213. Insurance being made from London to any port in the Baltic, the vessel sailed for Revel in the Gulf of Finland, a distinct sea from the Baltic, among geographers, but as it was comprehended in the Baltic in commercial language, the court gave this extent to the term in the policy.(5) And where a policy was at (5) Uhde v. and from Amelia Island,' and the vessel loaded at Tigre Island, Walters, 3 Camp. 16. it being customary for vessels nominally bound to and from Amelia Island, to discharge and load there, the court held that 6 (a) The memorandum in this policy was, that roots and all other articles perishable in their own nature,' should be free from average unless general, and it would not seem to be a forced construction to qualify the expression, roots by what follows, and restrain it to such roots only as are perishable in their own nature. And without resorting to this support, the case seems to go very far towards allowing the parties to show that their contract is different from what it evidently appears to be on the face of it. The court was prevented probably from resorting to the subsequent words, out of respect to one of its former decisions, viz. Barker v. Ludlow, 2. Johns. Cas. 289, in which it is said that the 'subsequent words are not applicable to the articles previously enumerated, nor can they repel the implication arising from the enumeration of them.' (1) Moxon v. Atkins, 3 Camp. 200. (2) Cockran v. Retberg, 3 Esp. 121. taking a cargo on board at Tigre Island, and sailing from thence, satisfied the terms of the policy,(1) for this being the voyage usually made by vessels said to sail from Amelia Island, must have been the voyage intended in the policy. The obvious meaning of the policy was controlled by usage, in a case where the shipper was to allow something for demurrage, unless the cargo should be discharged in fourteen days; Lord Eldon said, if it were left to the construction of law, he should be of opinion that holidays were to be included, but if the fact was clearly made out that the fourteen days meant working-days,' according to usage and common acceptation, the contract should receive that construction.(2) Goods being insured to Bordeaux, with an agreement not to abandon if the ship should be turned away,' the vessel was forbidden by the French government to enter the Garonne; as it appeared that, by the common usage and understanding, the turning away contemplated by the parties was a turning away by blockade, the court did not consider the ship to be turned (3) Speyer v. away within the meaning of the policy.(3) N. York Ins. Co. 3 Johns. 88. Goods insured at and from Lyme, were put on board of the vessel at Bridport harbour, a member of the port of Lyme, about nine miles distant from that place. The court said, if the assured could prove any usage for vessels to load at Bridport, under a policy from Lyme, it might make the insurance good. No (4) Constable such usage could however be proved.(4) 1. Noble, 2 Taunt. 403. 6 In the case of a policy from New-York to the port of Sisal,' there being no port belonging to Sisal in the proper sense of the word, as it has no harbour or haven where ships may lie in safety, but they lie off in an open road-stead, while discharging, and loading, the court gave a construction according to the fact, and considered the voyage in the policy, to be a voyage to Sisal, as such a voyage is ordinarily performed, and must have been un(5) De Lon- derstood by the parties.(5) And where the policy was from the last port of lading,' and the vessel completed her lading off Angostura which has properly no port or harbour, yet the court decided that it should be considered the last port of lading' within the terms of the policy.(6) So an insurance of a vessel for four months from St. Michael's to any port or ports, is held to be equivalent to an insurance to any place or places, and the sailing to a place that had no port, and where vessels are discharged in an open road-stead, was held to be within the policy.(7) guemere v. N. York F. In. Co. 10 Johns. 120. (6) S. C. id. 126. (7) Cockey v. Atkinson, 3 B. & A. 460. Usage of the trade impliedly referred to in the contract. (8) Noble & al. v. Kennoway, Doug. 513. (9) Per Lord An underwriter is supposed to be acquainted with the usages of the trade which he insures.(8) Every man who contracts under does it as if the point of usage was inserted in the a usage, contract in terms.(9) It was the uniform and well known practice of the British East India Company, to reserve in the charterparty the liberty of employing the vessel on an intermediate voyage from one port to another in India. Accordingly, under a policy on a ship employed by the company, though nothing was said of an intermediate voyage in the policy, yet, because the voyage was decribed to be an India voyage, it was held, that the underwriter should be presumed to know what was incident to such a voyage, and that the construction of the con tract should be the same as if liberty had been expressly reserved in the policy to make such intermediate voyage.(1) 6 Bur. 1707. (1) Salvador A vessel was insured either with or without letter of v. Hopkins, 3 marque,' the intention of course being to have the liberty of using it, but to what extent, whether in acting on the defensive, or in giving chase to vessels that hove in sight, or in cruising, were questions not settled by the obvious and general import of the words. Lord Ellenborough said, 'it may be material to ascertain in what manner parties to contracts containing this form of words have acted upon them in former instances, and whether they have obtained, as between assureds and assurers, any known and definite import.'(2) 6 Goods insured 'till they were safely landed at Leghorn,' were landed at the Lazaretto, about half a mile from the city of Leghorn, as was customary in regard to goods of the kind insured, where a loss happened upon them, before the period of quarantine had expired, and permission could be had to transport them to the city. Marshall, C. J. giving the opinion of the court, says, whatever might be the effect, if the establishment of the Lazaretto, and the laws of quarantine, had been of so recent date, as not to have been in the contemplation of the parties to the contract, this cause may well be decided upon the usage found in this case, a usage of ancient date and general notoriety. When the parties stipulated that the adventure should continue till the goods were landed in safety at Leghorn, they knew that the place of landing was the Lazaretto, and that the landing would be made under the direction and control of the local authority. This then, must be the landing contemplated in the policy. It is the landing which terminates the risk. Had the parties intended to continue the risk, during the continuance of the goods in the Lazaretto, they would have inserted in the policy, words manifesting that intention.'(3) (2) 6 East, 207. Parr v. Anderson. 8 Cranch, 75. 589. (3) Gracie v. In all matters of trade,' says Justice Buller, 'usage is a sacred Mar. Ins. Co. thing,(4) and in policies of insurance in particular, a great lati- (4) Newman tude of construction as to usage, has been admitted; and he . Cazalet, even says, that usage not only explains, but also controls the Park, 630. policy.(5) It is a well established principle, however, that usage (5) Long v. cannot control and set aside, what appears by the policy to be Allen, Park, the plain intention of the parties. Where goods were insured 'till landed,' it was proposed to show that this expression meant till the ship was moored twenty-four hours in safety, but Lord Kenyon would not permit it, because it was inconsistent with the meaning of the policy, which was too clearly expressed to admit of any such explanation.(6). And the Supreme Court of (6) Parkinson Massachusetts held that 'the usage of no class of citizens could. Collier, be sustained in opposition to the principles of law;' the Park, 470. tion being whether a policy should receive a construction conformable to the uniform usage in Boston, where it was effected.(7) And where it was proposed to introduce the slip, for the (7) Homer r. purpose of showing what kind of policy the parties intended to Dorr, 10 Mass. make, and that it was different from that which was actually Rep. 26. ques 18 (1) Pawson v. Barnevelt, Doug. 12. n. (2) New York Ins. Co. v. Johns. Cas. 1. The written, controls the printed part of the Policy. Chap. I. made, Lord Mansfield would not permit it, for the contract itself was a conclusive proof of the intention of the parties; and though a usage should be proved that the slip was to be considered as a part of the contract, it could not avail to control or set aside the policy.(1) And Mr. Justice Kent said, 'I know of no rule better established, than that parol evidence shall not be admitted to disannul, or substantially vary, or extend, a written instrument."(2) 6 A usage, to be binding upon a party, must be definite, general, uniform, and well known. The true test of a usage,' says the Supreme Court of New York, 'is its having existed a sufficient length of time to have become generally known.'(3) To make a usage obligatory on the parties it should,' says Mr. Justice Story, be so well settled, that persons engaged in a trade must be considered as contracting with reference to it.'(4) In a case of insurance from Liverpool to Jamaica, the ship put into the Isle of Man; it appearing that ships bound on this voyage sometimes put in there, but not usually, it was held not to be a n.; Vander- usage.(5) Where a trade had existed and been carried on in voort & al. . the same manner for three years, and another similar trade had Caines, 162; been carried on in the same way for many years, it constituted Higginson v. a usage. And Lord Mansfield said, 'it is no matter if the usage Dall, 13 Mass. has only been for a year.'(6) Smith, 2 Rep. 96. 1 Gal. 444. (5) Marsh. Ins. 186. (6) Noble v. Kennoway, lenborough in Robertson & al. v. French, . Phoen. Ins. Co. Whar Section 11. The written, controls the printed part of the Policy. The policy being a printed form with the blanks filled up in writing, if there is any doubt upon the sense and meaning of the whole, the words superadded in writing are entitled to have a greater effect attributed to them than the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning.'(7) Words written in the margin of the policy apply indefinitely to the whole of the policy, and are considered as controlling the sense of the parts of the printed policy to which they apply. ton's Dig. 329,As for instance, where the word ship is written in the margin of a policy; or freight, or goods; in such case the general terms of the policy, applicable to other subjects besides the particular one mentioned in the margin, are thereby considered as narrowed in point of construction to that one.'(3) h. t. no. 118. Robinson v. Stark. 336. |