
    SAMUEL G. WHEELER, Jr., Plaintiff, v. THE NEW YORK MUTUAL INSURANCE COMPANY, Defendant.
    The defendant insured for the plaintiff the schooner “ Thomas Holcombe,” from Feb. 24, 1870, to Feb. 24, 1871.
    The policy contained a warranty, not to me foreign prn'ts and places in the Gv*f of Mexico.
    
    On May 14, 1870, the vessel cleared for the port of Frontera, in the Gulf of Mexico, and sailed for that port May 15. On May 26, 1870, and on this voyage towards Frontera, the vessel went aground on the coast of Cuba, from the perils of the sea, at a distance of seven hundred miles from the prohibited port, and for injuries and damages received by her on that occasion, plaintiff claims $1,531.67. Before the vessel sailed, application was made to defendant for leave to use the port of Frontera, and the application was denied.
    The defendant claims, that when the vessel cleared and sailed from the port of New York, for Frontera, the warranty was broken, and she ceased to be under the protection of the policy.
    
      Sdd, That when the words “ to use,” are employed in connection with “port” they mean, “ to go into a poj't, Jiarboi', or Jumen, for sJielter, commerce, or pleasure, and to derime a benefit or advantage from its protection.” That clearing for it, or sailing towards it, is not “ a use” of the port under the policy, and not a violation of the warranty (Snow v. Columbian Ins. Co., 48 Barb. 469, reversed in 48 W. T. 624, reviewed and held to be decisive of this case).
    Before Monell, Sedgwick, and Van Vorst, JJ.
    
      Decided February 1, 1873.
    Verdict by the direction of the court, subject to the-opinion of the General Term.
    The defendants on the 26th February, 1869, by a policy bio. 20,587, insured for the plaintiff the schooner “ Thomas Holcombe,” from the 24th day of February, 1870, to the 24th day of February, 1871.
    The policy contained a warranty not to use foreign ports or places in the Gulf of Mexico. On the 15th day of May, 1870, the vessel sailed from the port of blew York in ballast, bound for the port of Frontera, Mexico, for which port she had on the 14th day of May been duly cleared. The port of Frontera is a foreign port in the Gulf of Mexico. On the 26th day of May, 1870, the vessel ran aground on the coast of Cuba, about ten miles from the port of Havana, in consequence of which she was injured by the perils of the sea to an amount exceeding six thousand dollars, for one-quarter of which, to wit, $1,531.67, with interest from the 30th day of August, 1870, the defendant, if liable under the policy, is responsible.
    
      The port of Frontera is distant from the port of Havana about seven hundred miles.
    Before the vessel sailed from New York on her voyage, she made application to the defendant to use the port of Frontera. The defendant refused to grant such leave; due proof of the loss, and of the plaintiff’s interest in the vessel, was given to the defendant. The jury, under the direction of the court, found a verdict for plaintiff for the sum of §1.656.74, subject to the opinion of the court at General Term, on a case to be made.
    
      Thomas M. Wheeler, for plaintiff.
    
      R. S. Emmet, for defendants.
   By the Court.—Van Vorst, J.

The only question to be determined, and upon which the plaintiff’s right to recover depends, is whether there was a breach of the warranty, on the part of the assured u not to use foreign ports, or ports in the Gulf of Mexico.” When the vessel ran aground, she was seven hundred miles from the prohibited port, her objective point.

The defendant claims, that, directly the vessel sailed on her voyage towards the prohibited port for which she had cleared, the warranty was broken, and she ceased to be under the protection of the policy of insurance.

This view of the law appears to have been sustained in Snow v. Columbian Insurance Co., decided in the Supreme Court (48 Barb. 469).

In that case, the policy contained a warranty, not to use ports in the British North American provinces, except between the 15th day of May and the 15th day of August.

On the 20th September, the schooner sailed from Boston, bound for Lingan, in Cape Breton, Nova Scotia, one of the British North American provinces, for a cargo of coal. On the 24th September, before reaching Lingan. the vessel was wrecked on the coast, near LounsTbnrg, about fifty miles from Lingan.

Justice Ingraham, who delivered the opinion of a majority of the court, says, “The sole object of the voyage in the present case being to enter a prohibited port, after the schooner entered on the voyage to Lingan she ceased to be under the protection of the policy, and the plaintiff cannot recover.” Justice Leonard dissented, holding, that “the policy was not violated by an intent of the owner to violate it at a future time ; it is the actual entry or use of the port that violates the contract.”

Upon appeal to the Court of Appeals, the judgment of the Supreme Court was reversed, all the judges concurring.

The court deciding, that, when the words “to use” are employed in connection with the word “port,” they mean, to go into a harbor or haven for shelter, for commerce, or for pleasure, and to derive a benefit or an advantage from its protection.

That going in the direction of it, is not a use of the port (S. C. 48 N. Y. 624).

The case before us cannot be distinguished from the one above cited.

The defendant’s counsel on the argument urged, that it did not appear in Snow v. Columbian Insurance Co, that the vessel had “ cleared” for the prohibited port, as it does in the case under consideration. But it is difficult to perceive how in principle the conduct of the one is a breach of warranty, and of the other not.

In the case cited, the vessel sailed from Boston, in “ ballast,” bound for the prohibited port, which she intended, from the very outset, to use,” by taking in her cargo there. She could have expressed her intention no stronger if she had “ cleared ” for the port.

Judgment should be entered for the plaintiff on the verdict, with costs.  