
    HIRAM ALLEN, et al., Respondents, v. THE ST. LOUIS INSURANCE CO., Appellant.
    
      Marine insurance—construction of policy—effect of agent's approval of manner of lading.
    
    The policy in question purported to be an open and uniform canal cargo policy, and insured the several persons whose names were entered in the book containing it, which remained in the possession of the insurer. The plaintiffs’ names, the name of the boat, the voyage, property insured, amount of insurance, rate, &c., were duly entered in said book, and a certificate issued to plaintiffs, stating that they were insured according to the terms of said policy, “ in- - board cargo boat, W. S. Alden, ” &c. The policy provided that the company should not be liable, unless by special agreement indorsed thereon, for damage to goods on deck; but also provided that it should be lawful for said boats to load in such manner as is customary in such navigation, without regard to marine law or custom applicable to sea voyages, and that the company would make good all loss or damage on goods so laden as aforesaid.
    While on the voyage a portion of the cargo, laden on deck, was washed ■ overboard and greatly injured.
    No special agreement permitting lading on deck was proven, but it appeared that the boat was laden according to custom in canal navigation, and that the authorized agent of the company examined her when about to start, and approved the mode of lading.
    
      Held, that the certificate and policy should be construed together and against defendant, the insurer; that “ inboard ” is used in contradistinction to “ outboard,” and means not projecting over the rail of the vessel; that upon the whole case the conclusion is that the policy attached to the goods which were injured; that in any event the defendant was bound by the approval of its agent.
    Before Sedgwick and Freedman, JJ.
    
      Decided April 5, 1880.
    Appeal from judgment entered upon the verdict of a jury, and from order denying motion for new trial.
    
      The action was brought upon a policy of insurance whereby the defendant insured Allen Brothers against loss or damage to a cargo of paper upon the canal boat W. S. Alden, on a voyage from Troy, N. Y., to Philadelphia, Pa. The boat was towed to New York, and went alongside a certain pier in the North River. While there, the sea being heavy, the swell of a steamboat rolled her so that she spilled a part of the paper which was on her deck. The loss was thereby occasioned.
    No special agreement permitting lading on deck was proven.
    The defendant defended on the ground that the policy did not cover goods carried on deck.
    Upon the trial the defendant offered no testimony, but at the .close of the plaintiff’s case defendant’s counsel moved to dismiss the complaint upon the ground:
    
      First. That it was not shown that the plaintiffs were partners.
    
      Second. That it was not shown that the policy covered, the property lost.
    The motion was denied and defendant excepted.
    At défendant’s request the court submitted to the jury the question whether or not the loss was caused by carelessness on the part of those who had charge of the boat.
    The jury found for the plaintiffs.
    Defendant then moved for a new trial on the judge’s minutes, which motion was denied.
    Judgment having been entered, the defendant appealed from the judgment, and also from the order denying the motion for a new trial.
    The facts further appear in the opinion of the court.
    
      E. M. Neville, attorney, and George M. Curtis, of counsel, for appellant, urged :
    I. Groods laden on deck are not covered by a policy of insurance unless expressly mentioned (Lennox v. United States Ins. Co., 3 Johns. Cas. 178 ; 2 Philips Ins. 169 et seq.).
    
    II. The condition of the policy was not complied with. There was no waiver of the condition. The policy is void. One of the conditions of the policy was as follows: “ It is also agreed that the company shall not be liable for any loss or damage to box or bundle, railroad iron or hoop iron, unless total; nor for goods or property on deck, unless by special agreement in writing indorsed on their policy” (Rohrback v. Germania Fire Ins. Co., 62 N. Y. 47; Matson v. Farm Buildings Ins. Co., 73 Id. 310).
    III. The insurers assuming risks which the insured is unwilling to bear can only be held to those risks for which they have voluntarily anil knowingly undertaken, and the insured has no right to substitute any other (2 Parsons on Ins. 2; Hartley v. Buggins, 3 Dougl. 39 ; Maryland Ins. Co. v. Le Roy, 7 Cranch. 26). If the defendants were to be made answerable for the property on deck it would be holding it to a responsibility not considered and for which no compensation was given (Blockett v. Royal Exch. Ins. Co., 2 Crompt. &Jer. 250).
    IV. To entitle the plaintiff to a recovery it was necessary for them to show that it was usual for underwriters to pay for goods lost when carried on deck (Taunton Copper Co. v. Merchants’ Ins. Co., 22 Pick. 108). .
    V. The mere fact of unusual stowage by the insured of goods in a marine policy avoids the policy, if not known and assented to by the insurer (Leitch y. Atlantic Mut. Ins. Co., 66 N. Y. 100; Merchants’ Ins. Co. v. Alger, 32 Penn. 330; Blocket v. Assurance Co., 2 Crompt. & Jer. 250 ; Atkinson v. Gt. W. Co., 4 Daly, 207; Da Costa v. Edmonds, 4 Campb. 142; Taunton Copper Co. v. Mer. Ins. Co., 22 Pick. 108 ; Mar shall on Ins. 348, 349 ; The Delaware, 14 Wall. 579, 602).
    
      
      Man & Parsons, attorneys, and John E. Parsons, of counsel, for respondents, urged :
    I. “ Inboard ” is used in contrast to “ outboard it means cargo not projecting outside the rail of the vessel, and does not mean under deck. The policy is general; permits any mode of lading usual in canal navigation, and expressly provides that the rules applicable to ordinary marine policies shall not apply. If the defendants designed to vary the policy by the certificate, they should have done so in direct and clear terms. The certificate and the policy are to be construed together and against the defendants (McMaster v. Pres., &c. Ins. Co. of N. A., 55 N. Y. 222 ; Rann v. Home Ins. Co., 59 Id. 387; Love v. Pares, 13 East, 80 ; Doe v. Dodd, 5 B. & Ad. 689 ; Dow v. Whetten, 8 Wend. 160 ; Yeuton v. Fry, 5 Cranch, 335).
    II. The agents having approved the mode of lading, the defendants cannot now be heard to claim, that, by reason of the manner in which the paper was loaded, the policy did not apply (Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526; Carroll v. Charter Oak Ins. Co., 38 Bart. 402; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117 ; Trustees First Baptist Ch. v. Brooklyn Fire Ins. Co., 19 Id. 305 ; Sheldon v. Atlantic F. & M. Ins. Co., 26 Id. 460 ; Van Schoick v. Niagara Ins. Co., 68 Id. 434).
   By the Court.—Freedman, J.

There is substantially but one question involved in the appeal which deserves special notice, and that is whether the policy covered the injured property, laden, as it was, on the deck of the boat.

A general description does not, except under special circumstances, cover articles carried upon deck. The articles so stowed are thereby put out of the protection of the policy, unless their being carried in this way is provided for in the policy, or indicated by the description of the article itself in the policy, or justified by the usage of the specified trade (Phillips on Ins. 5 ed. § 460).

Where the article specified in the policy is uniformly so carried, or obviously must from its character be so, for its own safety1 or that of the ship, cargo and crew, the policy will attach to it, so carried, by the merely naming of it and describing the voyage (75.).

But whether the policy attaches to an article on deck that is merely named, without any express intimation in the policy that it is to be. so carried, where articles of the same kind are not necessarily or uniformly so stowed, but sometimes go on deck, and sometimes under, according to the quantity' and kind of cargo, is a question on which, as Mr. Phillips puts it, the jurisprudence is wavering and inconsistent.

The policy in question was a general policy, insuring the persons whose names were indorsed or entered in a book kept for the- purpose. It purported to be an open and uniform canal cargo policy, and remained in the possession of the defendant, until produced by it at the trial, upon the call of the plaintiffs. It was bound up in book form, with ruled leaves of paper following, upon which to make a note of statements of risks. It provided that the company should not be liable for damage to goods or property on deck, unless by special agreement in writing indorsed on the policy. But it also provided that it should be lawful for the boats insured or carrying insured goods or property, to load in such a manner as is usual and customary for vessels employed in such navigation to be laden ; without reference to any provisions on the same subject by marine law or custom applicable to vessels laden for sea-voyages ; and that the company would make good and satisfy unto the said insured, all such loss or damage on the said goods, wares, merchandise and country produce, so laden as aforesaid, &c., &c.

The risk in question was entered in the following words :

The certificate issued to the plaintiffs ran as follows :

“$9,000. No. 335.

CANAL CARGO CERTIFICATE. Incorporated 1837. THE ST. LOUIS INSURANCE COMPANY, OF ST. LOUIS, MO.

Cash assets over $350,000.

“This certifies that Allen Brothers insured under and subject to the conditions of open Policy No. 387, issued by. the St. Louis Insurance Company of St. Louis, in the sum of nine thousand dollars, inboard cargo of boat W. S. Alden.

“ On paper $9,000, at and from Troy, N. Y., to Philadelphia.
“$ at and from to
“Loss, if any, payable to themselves or order on return of this certificate.
“ J. B. S. LEMOINS, President.
“ JAMES D. HOUSEMAN, Secretary.
“This certificate of insurance is not valid unless countersigned by the authorized agent of the company at Troy, N. Y.
“NEHER & CALDER, Agent. '
“Troy, N. Y., October 12, 1876.
9,000-^46—36.00.”

. This certificate and the policy are to be construed together and against the defendant. “Inboard” is used in contrast to “outboard.” It does not necessarily mean under deck, but seems to mean a cargo not projecting over the rail of the vessel. No evidence explanatory of its meaning was given or offered at the trial. Under all the circumstances it is therefore but fáir to hold, and especially as the policy was general and permitted any mode of lading usual in canal navigation, and expressly provided that the rules applicable to ordinary marine policies Should not apply, that if the defendant intended by the certificate to limit the insurance to the cargo under deck, it should have said so in clear terms.

The paper was taken on board the Alden at Troy. About sixty tons were on deck, stowed inside of the rail about six inches. It was protected by tarpaulins tied down on both sides, and according to the proof it” was carefully laden in the manner usual and customary for vessels employed in the navigation in which the Alden was engaged.

Upon the whole case the conclusion seems irresistible that the policy attached to the goods which were injured. But if any doubt could still exist, such doubt has been wholly removed by the further proof which was given, that the authorized "agents of the defendant at Troy were informed how the paper was laden and secured, and that there was a portion on deck ; that they were requested to come and look at it, and that they said they thought it was all'right. This being an approval of the mode of lading, in consequence of which the boat proceeded on her voyage, the defendant’s present claim that, by reason of the manner in which the paper was stowed, the policy did not attach' to the injured goods, is both unreasonable and untenable.

As to the question of plaintiff’s partnership it is sufficient to say that the proof upon the point, uncontradicted as it stands, is sufficient.

The judgment and order should be affirmed, with costs.

Sedg-wiok, J., concurred.  