
    De Longuemere against The New-York Fire Insurance Company.
    ALBANY,
    Jan. 1813.
    A vessel was Yucatan with liberty to pro-other portln southward of Xaguna de Términos, nor wardoi Cape hicktho’jrewYork ” After going to Sisal; the vessel proceeded to Sir lam, to take In a cargo of mahogany, and anchored about S miles from the shore, in the open sea, there being no harbour, and was .driven on shore in a gate of wind* Sisal, Silam, and other places, on that coast, though called ports are merely open roads, there being no harbours there;. and vessels lie at anchor several miles from the iandCándtake In their cargoes by the aid of boats; and the custom-house is at Merida, an inland town, a custom-house offi- ^ ¡eer only being stationed at’the places on the shore, it was held that the word jfro/ £ used in the y policy, must be taken in reference to the subject matter; and though generally meaning a harbour, J yet when applied tó Sisal, and the other trading places on the coast of Yucatan, it meant only a y road or anchorage place, for the purpose of unloading and loading cargoes. And that the insured ' was not bound to Inform the insurers of these facts, as they must be presumed to know the nature yy ■and situation of the places to which the contract of insurance relates; the topography of the places mentioned in the policy being matter of general knowledge, with which every underwriter lakes Hpon himself to he acquainted. ' * ’
    _ THIS was an action on a policy of insurance, on the ship dated the 14th of Avgust, 1810, for 2,000 dollars, at premium of 6 per cent, “at and from New-York to the port ®í"scí^ *n the province of Yucatan, with liberty to proceed to one other port in said province, not to the southward of Laguna dc Términos, nor to the eastward of Cape 'Catoche, and back to
    The cause was tried at the sittings, &S?%New-York” the city of New-York, T J ’ on the 19th of November, 1812, before Mr. Justice Spencer,
    
    The master of the Etheta deposed, that he sailed from New-011 the voyage insured, the 14 th of August, 1810, the vessel being, in every respect, duly equipped for the voyage. He arrived at Sisal the 6th of September, and landed the cargo, except two boxes of china, and some boards. Sisal is an open roadsted, or port, having no harbour. Vessels lie some miles from the shore, or beach, and land and receive their cargoes by the aid of boats. The custom-house of Sisal, and also of Silam, is at Merida, an inland toivn, where all vessels are entered and cleared. On the arrival of the Elheta at Sisal, her pers were sent to Merida, and a permission obtained to land her cargo. On the 4th of October the Etheta, being well and sufficiently ballasted for the residue of her voyage, sailed for the port of Silam, in the province of Yucatan, having obtained from Merida a clearance for that purpose, and also a permit to take in a return cargo at Silam. On the 8th of October the Etheta arrived at Silam, and anchored about 8 miles from the shore, being the usual and customary place of anchorage, for vessels lying there, for the purpose of taking in cargoes. Silam and Sisal are ports of the same kind; there being no harbour at either place; and vessels lie ^rom ® t° miles from the shore, for the purpose of landing and receiving their cargoes. They are both, however, called and known as ports, and a custom-house officer is stationed at each place. There are a few houses at Silam, near the shore, the town being 3 leagues back ; and there is a small house on the shore, near the water, in which the custom-house officer resides, and a signal house to denote the port. On arriving at Silam, the captain delivered to the custom-house officer the clearance and permit obtained from Merida, and was thereupon permitted to take on board a cargo of logwood, which had been previously contracted for, by the consignee, and was ready for delivery; the export duties for it having been paid by the consignee at Merida. The weather was so boisterous that no part of the cargo could be laden on board until the 17th of October, when a part was taken on board. The weather again became so boisterous as to prevent any further lading of the ship ; and on the 23d of October, the ship was driven on shore, in a most violent gale of wind, which continued for two days, and was wholly wrecked and lost.
    On his cross-examination, he stated that there was no harbour at Silam. A sand beach stretches along the coast. There is no inland bar, or other shelter, or protection from storms, and the anchorage is bad. The Etheta lay offi in the open sea, about 9 miles from the shore. She took in a ballast of sand at Sisal, and drew 12 feet water while she lay off Silam. When she began to take in logwood, part of the ballast was discharged, but the ship was an inch deeper in the water than before. Campeachy, about 180 miles from Silam, is a large city, and there is good anchorage there. The navigation is more dangerous on this coast in the autumn, than at other seasons. The northerly winds then blow with most violence. The wind usually begins at the S. W. and vessels usually put to sea, as the proper course for safety, in case of a storm. The captain would have put to sea before the wind changed, but he thought it safe while the wind was at N. E. and the sudden change to the N. and W. was deemed extraordinary; and as it then blew directly on shore, it was impossible to put to sea.
    Several other witnesses deposed to the same facts. It was stated, that Angostura, Rio Legarlos and Silam, and other places where vessels are permitted to take in cargoes, are all open roads.
    The defendants offered to prove that the trade to Yucatan was a recent trade, and by permission only of the Spanish government; that the consignee resided at Merida, and that the course of the voyage and the manner of loading vessels on the coast was knows the plaintiff, who was bound to communicate the information to the defendants; that had the defendants known the facts, they would have computed the premium at 18 per cent. This evidence was objected to by the plaintiff’s counsel, and rejected by the judge.
    The defendants produced a witness, who testified to a conversation between the master of the Etheta and one of the defendants, in which, being asked why he did not put to sea when the storm arose, the master replied, that so much ballast had been taken out, that the ship would not bear her canvass.
    The judge left the fact of seaworthiness to the jury, with au opinion that the weight of evidence was in favour of the plaintiff; and on the other points raised in the cause, he charged them that the plaintiff was entitled to recover for a total loss. The jury found a verdict for the plaintiff accordingly.
    A motion was made to set aside the verdict, and for a Hew trial.
    S. Jones, jun. for the defendants,
    contended, that the place called Silam, where the vessel was lost, was not a port, within the meaning of the policy; and that the ship was not in the due prosecution of the voyage described in the policy, at the time she was lost. Silam was not, in the ordinary, natural and proper sense of the term, a port, which signifies a harbour, or safe station for ships. A roadsted is an open port; but Silam is not even a roadsted; it lies on a naked beach, or shore, exposed to the-open sea. If the term port is to be considered as at all applicable to Silam, it must be on the ground of usage; and that usage must be proved to be established and notorious, so that all persons, in making their contracts, must be presumed to have reference to such well known acceptation, or usage. This was a recent trade, and it ought to appear that the usage was known to the defendants as well as the plaintiff.
    2. The vessel was not seaworthy ; for she had not on board, at the time of the loss, a sufficient quantity of ballast. The verdict ought to be set aside, not only for the misdirection of the judge, but as against evidence.
    
      Colden and Hoffman, contra,
    contended, that the term port had a political and commercial sense, well known in the commercial world, as a place of entry, where the customs are collected, without any regard to the natural signification, as being a harbour, or place of safety. Silam, therefore, may be a port, though not a harbour. Insurers are bound to know, as much as the insured, the nature and course of the trade. It cannot be pretended that there was any concealment in this case. The insurers must be presumed to know the geographical position, and relative situation r, „ . , , .?. !• . of the places described in the policy, or comprised m the voyage, as well as the insured. It could not be requisite for the plaintiff to inform the defendants of facts of which they cannot be presumed ignorant. Besides, Sisal is called a port in the policy; and it is in evidence that Silam is a place perfectly similar. The defendants cannot be allowed to say that these places are not ports, after calling them such in the policy.
    Whether the vessel was seaworthy or not, was a question of fact for the jury to determine, and they have decided it.
    
      Wells, in reply, insisted that the term port, in its ordinary and legal acceptation, meant a place of safety for vessels, as contradistinguished from the open sea. It is said, that as Sisal is called a port in the policy, the defendants are estopped to say that Silam, where the vessel was lost, was not a port, because it was proved to be like Sisal. But because Sisal is called a port in the policy, it does not follow that every other place not so described, is to be considered as a port; and as the vessel was not lost at Sisal, the plaintiff is not helped by the description of that place in the policy.
    Again, as Sisal is called a port in the policy, it ought to answer to that description; for though there may be a place bearing the name of Sisal, yet if there is no Port Sisal, the policy is void, for want of a terminus ad quern, by which the voyage is to be defined. If a vessel was to be insured from London to Pori Rockaway, that description would not make Rockaway a port; it being well known to be only a beach on the south side of Long Island. Would not the policy be void, because there was no such port ?
    
    Again, it is said that these places are reputed and called ports in the country in which they are situated, and it is the usage of trade so to consider them. But there was no sufficient evidence of a commercial usage on the subject. The evidence of reputation and usage ought to be very strong, in such a case. The trade between Nero-York and Yucatan was recent, and none of She witnesses had been on the coast before. The rule is well laid
    
      down in Smith v. Wright, that “the true test of commercial usage is, its having existed a sufficient length of time to have become generally known, and to warrant a presumption, that contracts are made in reference to it.” The assured are bound to communicate to the insurers what they do not know, and what the assured do know. 1
    The agent of the plaintiff resided at Merida, and the plaintiff must have known the situation of those places, and the course of the trade, and ought to have communicated the information to the defendants. Had they known the manner of taking in cargoes on that coast, they would have demanded a much higher premium. In all cases where the insurer has been held bound by a usage of trade, it has been found by a jury, on competent evidence, positively to exist.
    The ship was not seaworthy, for had she been kept properly ballasted, she might have gone to sea, when the storm commenced, and thereby been saved. Two witnesses testified, that the master, on being first questioned, declared he might have gone to sea had the ship been sufficiently ballasted.
    
      
       l Marsh, on Ins. Caines’ Rep. 45.
      
    
    
      
      
         Marsh, on, Ins 252. 258. Dang. 492. 2 Caines' Rep. 155.
      
    
    
      
       1 Caines' Rep. 45.
    
    
      
      
        Vallanca v. Dewar, Park (6th edit.) 606.
    
   Kent, Ch. J.

The principal ground of the motion is, that the place where the ship was lost was not a port, within the meaning of the policy, and that the ship was not in the due prosecution of the voyage when lost. The voyage insured. was from Nerv-York “ to the port of Sisal, in the province of Yucatan, with liberty to proceed to one other port in said province, not to the southward of Laguna de Términos, nor to the eastward of Cape Catoche and back to Nerv-York.” The ship had arrived at Sisal, and had proceeded to Silam, in the province of Yucatan, and within the specified limits, and was there lost by a peril of the sea. It was in proof that Sisal was an open roadsted, or port, having no harbour; vessels lying some miles from the shore, or beach, and that they land and receive their cargoes by the aid of boats. The custom-house of Sisal and of Silam was at Merida, an inland town. That the ship, when the storm came on that destroyed her, was at anchor at Silam, about eight miles from shore, being the usual and customary place of anchorage for vessels, when they lie for the .purpose of receiving a cargo on board. That Sisal and Silam are ports of the same kind, and both are reputed and known as ports, and a custom-house officer is stationed at each place.

The parties to the policy are to be presumed to have been acquainted, at the time of the subscription, with the nature and sitúation of the places to which the contract relates. The underwriter need not surely have been told the state of the coast of the province of Yucatan, nor the topography of Sisal. These are general topics of knowledge, of which every underwriter takes upon himself to be informed. The word port, in the policy, must be taken in reference to the subject matter to which it is applied. It may generally mean a harbour, or shelter to vessels from storms:

Insula portum Ej’icit objectu laterum, quibus omnis ab alto Frangitur, inque sinus scimlit sese undo reductos.

But when the term is applied to Sisal, or any other trading place on the coast of Yucatan, it cannot mean such a harbour, for it is well known, and was proved in this case, that there are none such on that coast. Humboldt says that there is not, properly speaking, a port, on the whole eastern coast of New Spain. The word was used here to designate landing places, at Sisal and elsewhere, within the prescribed limits, where ships usually delivered and received their cargoes. It is frequently defined, in the books, in this commercial sense, without any particular reference to its fitness for naval security. Molloy (b. 2. c. 14. s. 8.) defines a port to be a public place, to which the officers of the customs are appropriated.

It would be most extraordinary if the policy could not protect the vessel at the usual anchorage place at Sisal,, because there was not a safe and commodious harbour there. The defendants took upon themselves the risk of the vessel while at Sisal, and one other such port in Yucatan, with all the inconveniences of such an open and exposed shore, equally as they assured the extraordinary perils, if any, of the navigation of the Mexican sea. If Silam was a port of the same kind with that of Sisal, having only a practicable and usual place for anchorage, and loading and unloading of cargoes, it came within-the description in the policy, which was to the port of Sisal and “ one other port” on that coast. The one other port did not mean a better port, either for convemenee or safety, but another of the same kind. And, in fact, as the case proves, the ports were all of the same nature, the province affording no better; and they were used and known as ports, for all the purposes of external commerce. Clearly, then, the vessel was under the protection of the policy while at the usual anchorage, and engaged, in the usual way, in taking in her cargo at Silam.

. This point being disposed of, the others are not of much moment. The parol evidence offered by the defendants was properly overruled. The plaintiff was not bound to communicate to the defendants his knowledge of Sisal, and of the other ports or landing places in Yucatan. These were matters of fact and of general notoriety, equally open to the knowledge of both parties, and which both must be presumed equally to know. Whether the rate of premium might not have been higher, if the defendants had sufficiently informed themselves of the nature of the voyage, is a point not open for inquiry, so long as there was no undue concealment on the part of the plaintiff. The rate of premium may be resorted to as one guide to interpretation, when interpretation is wanting, but when the voyage is described with sufficient certainty, it cannot be admitted to vary the sense. As to the seaworthiness of the ship, it was a question of fact submitted to the jury, and there is no sufficient ground on which to question the justness of their conclusion.

Per totam Curiam.

Motion denied. 
      
       See Hargrave's Law Tracts, v. 1. 46. where Lord Hale, in his Treatise de portibus maris, defines the several terms road, haven, port and creek. “ A haven is a place for the receipt and safe riding of ships, so situate and secured by land circumjacent, that the vessels thereby ride and anchor safely, and are fully protected, by the adjacent lands, from dangerous or violent winds.” “ A port is a haven, and somewhat more.”
     