
    Charles Cleveland versus Edward Fettyplace and Others.
    A policy of insurance is effected on property on board a ship from Bourdeaux to India, the risk to finish when the ship shall have safely arrived, and the master shall have safely landed the property, and entirely invested it in the produce of India. Another policy is effected upon effects on board the same ship from India to a port of discharge in the United States, with liberty to stop and trade at tire Isles of France or Bourbon, or both ; the risk of this latter policy “to commence when the outward insurance ceases, which it was understood was to continue till the outward cargo of merchandise and money was disposed of, and the return cargo on board.” The ship arrived at Sumatra, disposed of part of the cargo for produce, with which, and the remainder of her outward cargo, on the report of hostilities between Great Britain and France, she departed for the Isle of France, where the remainder of the outward cargo was invested in the produce of the island, and the ship arrived with her cargo in safety, at her port of discharge in the United States. It was held that the second policy attached, and, therefore, that the premium was not returnable.
    Assumpsit on a promissory note. By a case submitted for the opinion of the Court, it appeared that the note declared on, was given for the amount of the premium upon a policy of insurance, effected in the office of the plaintiff, an insurance broker. The defendants claimed a return of the premium, on the ground that the policy never attached, and this f action [ * 393 ] was to be decided on the same principles, as if it had been brought by the defendants against the underwriters for a return of premium, supposing the same to have been paid ; in other words, if the Court should be of opinion, from the facts stated, that in an action for money had and received, brought by the defendants, for a return of the premium, they would be entitled to a return of the whole, judgment in this action to be for the defendants; and if entitled to a return of a part only, judgment to be rendered for the plaintiff for the amount of the note declared on, deducting such part.
    The policy was upon effects on board the brig Essai, from the island of Sumatra, or any other port in India, to a port of discharge in the United States, with liberty to stop and trade at the Isles of France, or Bourbon, or both; the rislc of the present policy to commence when the outward insurance ceases, which it is understood was to continue till the outward cargo of merchandise and money was disposed of, and the return cargo on board. Premium twenty per cent.
    The outward insurance referred to, was effected in France, from whence the vessel sailed for India, and was upon merchandise .of whatever nature it may be, laden, or to be laden, on board the vessel named the Essai, from Bourdeaux, for India, with liberty to go to any port or ports whatever; the rislc to finish when the said vessel shall have safely arrived, and the master shall have entirely invested the above-mentioned dollars in the produce of said country, and have safely landed the merchandise.
    
    The vessel sailed from Bourdeaux for India, with French papers, and under French colors, on the 12th of January, 1803, with a cargo of merchandise and specie, with intent to dispose of said cargo at Sumatra, and there to purchase a return cargo of pepper. On the 25th of June following, the vessel arrived safely at Sumatra, where a part of the cargo was disposed of for pepper. The residue was not landed, the master having at this time received information of the renewal of hostilities between Great Britain and France; in consequence of which he judged it necessary, for the preservation of the vessel and cargo, to depart immediately from * Sumatra, there being English cruisers in the seas there- [ * 394 ] abouts; and accordingly, without completing his investments, he sailed, with the remainder of the outward cargo, and with the pepper purchased as aforesaid, for the Isle of France, where he arrived on or about the I Oth of December following, and vyhere he invested the remainder of his outward cargo in the produce of that island. From thence, after changing his French papers and colors for those of the United States, he sailed for Boston, where he arrived in April, 1804.
    It was agreed that the premium on a policy and risk like the piesent, from Sumatra to the Isle of France, would be six per cent.; and that among merchants the Isle of France is usually considered as being in India.
    
    If, upon these facts, the Court should be of opinion that the plaintiff is entitled to recover the whole, dr any part of the premium secured by the note declared on, judgment to be entered accordingly; otherwise judgment is to be rendered for the defendants.
    
      For. the defendants, it was contended that the policy on the outward voyage being to continue until the whole of the outward cargo was invested, and this not having been effected until the vessel was at the Isle of France, on her return; and the risk of the policy on which this premium is claimed, not commencing until the outward insurance should cease, the latter policy never attached, unless the Isle of France be held a port in India.
    
    That the parties to this policy did not contemplate the Isle of France as in India, is plain from the liberty reserved to stop and trade at that island, on the passage home from India. The case, indeed, finds that it is usually considered to be in India, but every reputable geographical writer places it in Africa, while every one knows that the whole of India is in Asia. The opinions of any class of men can have no effect upon facts. Suppose our merchants entertained the idea that the island of Jamaica was in South America, would this Court yield to such erroneous opinion ?
    The facts find a sufficient reason for the vessel’s going to the Isle of France in pursuit of the outward voyage. It was a voyage of necessity; and, in pursuing it, she was still protected [ * 395 ] * by the first policy until her whole outward cargo was sold and delivered. The second insurance was to commence in India, as the terminus a quo, and this after the first had ceased to protect the property. To attach this second policy to the property, it was necessary, under the words of the contract, that it commence in India, and this after the whole of the outward cargo was delivered. These two circumstances never concurring, the defendants consider that they were never protected by the second policy, and, therefore, ought not to be held to pay the premium.
    
      For the plaintiff, it was insisted that India, in the common understanding of mercantile men, includes not only Indostan, or India proper, but also all the islands in the Indian Ocean, which extends, according to the most approved maps and charts, from the Cape of Good Hope to the island of New Holland.
    
    The permission to stop and trade at the Isle of France was inserted to prevent incurring a deviation after the outward voyage was completed. It is not uncommon for our vessels to sell part of their homeward cargoes at that place. But this cannot be done under an insurance from India to the United States, unless the right is expressly reserved in the policy.
    The construction given on the other side to the French policy leads to the absurd conclusion, that so long as any the most insignificant portion of the specie or merchandise composing the outward cargo remained on board the vessel, the whole property, including all the cargo purchased at Sumatra, and the Isle of France, was under the protection of that policy.
    What we contend to be the true construction of the two policies is this; that the French underwriters assumed the risk of the specie and merchandise shipped outward, until they were landed in safety; and that from the time they were invested in a return cargo, and that cargo laden on board the vessel, the second policy attached to it. For the risk thus undertaken and sustained, the note declared on was given, and the plaintiff is well entitled to recover the whole amount of it.
   The Court took time to consider the cause, and afterwards (the Chief Justice having been of counsel in it) the opinion of the Court was delivered as follows, by

* Sedgwick, J.

In deciding upon controversies which [ * 396 ] arise on policies of insurance, the proper inquiry is, What was the true meaning and intention of the parties? And in this inquiry it is peculiarly important that we should guard against being influenced by verbal criticisms.

In this case the insurance is “ from the island of Sumatra, or any other ports in India, with liberty to stop and trade at the Isle of France, or Bourbon, or both; and the risk of the policy to commence when the outward insurance ceases, which, it is understood, was to continue until the outward cargo of merchandise and, money was disposed of, and the return cargo was on board.”

If this policy ever attached, the plaintiff is entitled to recover the premium for which this action is brought, and if otherwise, not.

To determine whether the policy ever did attach, it is necessary to advert to the outward policy, and in doing it, much that has been said as to the extent of the responsibility of the insurers on the outward voyage, it is not necessary to decide upon. On attending to this policy, it is very clear that it was intended to protect the property risked, so long as it should continue the cargo of the outward voyage, and no longer; and that the moment it should become so exchanged and invested, as to be properly denominated return cargo, and the homeward voyage should have commenced, from whatever circumstances, it should cease to be protected by that policy; and it is equally clear, by considering the other policy, in reference tithe subject matter, that, from that time, it should be protected by it No one can doubt that it was the understanding of the parties, that the cargo, as far as the policies extended, should, at all times, be protected by the one policy or the other.

Jackson, for the plaintiff.

Prescott and Story, for the defendants.

The intention of the voyage was “to dispose of the outward cargo at Sumatra, and there purchase a return cargo of pepper.” In pursuance of this intention, pepper, to the amount of 12,650 dollars, was there purchased, shipped on board, and became return cargo. It was not then outward cargo, and of consequence, as to it, the outward policy had ceased (the words of the out- [ * 397 ] ward policy, however *■ comprehensive, evidently confining the risk taken to ports in India) ; and here, in my opinion, the policy on the return cargo attached, and of course the plaintiff is entitled to recover, provided the Isle of France is not to be considered, in construing this contract, according to the meaning and understanding of the parties, at the time it was entered into, as in India. On the other hand, if it is to be so considered, then, for the reason which has already been suggested, the policy did attach at the Isle of France; and, therefore, on either construction, the plaintiff is entitled to his premium, and must have judgment in this case.

The opinion of the Court proceeds thus far upon the idea that the Isle of France was not, in the intention of the parties, in India; but if it is so to be considered, then, upon the same ground, the policy did there attach; so that, upon any construction, the plaintiff is entitled to recover.  