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Samuel Hazard's Administrator, Plaintiff in Error v. the New England Marine Insurance Company 557 (1834)

handle is hein.slavery/ussccases0122 and id is 1 raw text is: JANUARY TERM 1834. SAMUEL HAZARD'S ADMINISTRATOR, PLAINTIFF IN ERROR V. TIE NEW ENGLAND MAR.INE INSURANCE COMPANY. Insurance was effected in Boston, Massachusetts, on the ship Dawn, from New York to the Pacific opean, on a whaling voyage, and until her return. The letter brdering insurance was written in New York, by the owner of the ship, who resided there ; and the ship was represented to be a cop- pered ship. The ship, on the outward passage struck upon a rock at the Cape de Verd Islands, and knocked off a part of her false keel, but proceeded on her voyage and continued cruising, and encountered some heavy weather, until she was finally compelled to return to the Sandwich Islands; where she arrived in a leaky condition, and upon examination by competent sur- veyors she was found to be so entirely perforated by worm, in her keel, stem and stern post, and some of her planks, as to be wholly innavigable: and being incapable of repair at that place, she was condemned and sold. The vessel, on her outward voyage, had put into St Salvador, and both at the Cape de Verds, and at St Salvador, her bottom was examined by swim- mers. It was in evidence, that the terms , a coppered ship,' had a different meaning, and were differently understood in Boston and in New York. Held, that the assured, in making the representation in the letter, was bound by the usage and meaning of the terms contained therein, in New York, where the letter was written and his ship was moored, and not by those of Boston, where the insurance was effected. Insurance. A representation to obtain an insurance, whether it be made in writing or by parol, is collateral to the policy; and as it must always influ- ence the judgment of underwriters, in regard to the risk, it must be sub- stantially correct. It differs from an express warranty; as that always makes a patt of the policy, and must be strictly and literally performed. The underwriters are presumed to know the usages of foreign ports to which insured vessels are destined; elso the usages of trade, and the political con- dition of foreign nations. Men who engage in this business: are seldom ignorant of the risks they incur ; and it is their interest to make themselves acquainted with the usages of the different ports of their own country, and also those of foreign countries. This knowledge'is essentially connected with their ordinary business; and by acting on the presumption that they possess it, no violence or injustice is done to their interests. It is upon the representation that the underwriters are enabled to calculate the risk,and fix the amount of the premium; and if any fact material to the risk be misrepresented, either through fraud, mistake or negligence, the policy is avoided. It is therefore immaterial in what way the loss may arise, where there has been such a misrepresentation as to avoid the policy. The judge of the circuit court, on the trial of the case, charged the jury, that if they should find that in the Pacific ocean worms ordinarily assail and enter the bottoms of vessels, then the loss of a vessel destroyed by worms would not be a loss within the policy. By the court: In the form in which this instruction was given, there was no error.

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