
    The Union Insurance Company, ads. John Stoney.
    
      insurance on a vessel “at and from Charleston to Marseilles, and at and from thence to Havanna.” A separate policy on the.-bargo, executed the same day “from the loading, thereof at Charleston.” In the offer of plaintiffs, on which both policies were effected, every material circumstance was said to be disclosed. ' In fact the vessel had been laden at Havanna, and had touched at Charleston; the goods were not landed in Charleston, and the manifest shewed that they were shipped in the names of Spaniards. Held that the omission to, disclose these facts, (Spain and her colonies being at war,) was such a concealment of material circumstances, as vitiated the policy of the vessel.
    
    This was a policy of insurance on the schooner John “at .and from Charleston to Marseilles, and at and from thence to Havanna.” The schooner was lost on her voyage from Marseilles to the Havanna.
    When the policy was entered into, the vessel was lying at Charleston, and it was made upon the offer of the plaintiff, dated August 12th 1818, for insurance of the vessel and her cargo; in which the plaintiff stated that the vessel was safe at Charleston, and without intimating that the voyage had already commenced from another port, makes this memorandum, “that evc-circuinstance material for the underwriters to know, so as to form a just opinion of the above risk, was disclosed in the above offer.”
    On this offer, two policies were signed by the defendants. The policy on the vessel is in the form usual in cases of voyages to he commenced; and that on the goods, at the same date and upon the same offer, contains these words, “beginning the adventure upon the said lawful goods and merchandize, from and immediately after the loading thereof, on hoard of the said vessel at Charleston aforesaid.”
    It was admitted and even shewn by the plaintiff, under .tffe affidavit of De La Cruz, that the vessel was chartered at ilie Havanna, to sail to Marseilles, to touch at Charleston for a Meditterranean pass, and that the goods were laden at Hay an-na, and that the manifest delivered to the Custom-House officer, set forth the names of certain Spanish merchants as the •owners. But all these facts were unknown to the underwriter^ and concealed from them, and were not discovered until the selaim was put in.
    Thedefendants rested their defence on the following grounds :•
    1st. That the policy on the vessel had never attached, as the voyage sailed on was from Havannah to Marseilles, whilst the one insured was from Charleston to Marseilles.
    2nd. That there was misrepresentation and a material con-, cealmeut, in not disclosing the previous commencement of the voyage and the loading.
    It fully appeared in the course of the trial, that all the. schooner’s papers shewed the voyage to be from Havanna to Marseilles, and that the vessel neither entered at' nor cleared from the port of Charleston. The manifest shewed the goods to be shipped by Spanish owners, and although it was. stated that the course of trade required this, and that the true owner might have been American, yet this was not shewn, and this fact, artd that of her sailing from Havanna, subjected the vessel to detention by patriot privateers. It was also proved by the defendants that the premium taken was on the neutral risk from Charleston to Marseilles, and that had the true risk been ■disclosed, the premium would have been higher. The witnesses for the defendants were of opinion that these facts were not to be inquired into by the underwriters, who were to be governed by the plaintiff’s own statement solely, as contained in hie offer.
    The presiding judge charged the jury in favor of the defendant’s on both the grounds; as there was a breach of the warranty of a voyage to be commenced at Charleston, and a concealment of material facts, which ought to have been expressly disclosed b.y the plaintiff. The jury nevertheless found a verdict for the plaintiff, from which the defendants appealed and moved for a new trial or non-suit on the following grounds:
    1st. That the policy never attached or was vacated, as the. voyage described in the offer and covered by the policy ivas to commence at Charleston, on a vessel to be loaded there; whereas from the proof it appeared that the voyage had commenced at die Havanna, where the vessel was in fact loaded.
    
      2nd. That the policy was vacated by material misrepresentations and concealment, especially in relation to the mate-rial facts, that the vessel had commenced her voyage from a belligerent port, that she had belligerent property on board, that she was chartered at the Havanna, that the shippers were Spanish merchants, and that she was accompanied by documents which might have subjected her to capture or detention by patriot privateers, especially as there was no proof that either 'vessel or goods were American.
    3rd. Because the verdict of the jury was contrary to the charge of the presiding judge, on the law embraced in the first ground. The presidingjudge expressly charged that the policy was void; that, the voyage described on its face, and in its body, and which was therefore warranted, was not accurately set forth as a voyage previously commenced; that it ought to have been so, agreeably to law and agreeably to usug.ge, and therefore the Voy age,, in the course of which the vessel was lost, was different from the one described in the policy, and that therefore they must find for the defendants.
    4th. Because the verdict of the jury was contrary to law and evidence, and the charge of the presiding judge on that evidence. The evidence of the policy on the ship, and of the offer, especially if taken in connexion with the policy on the goods, which the judge considered inseparable, shewed an entire omission or concealment of the true commencement of the voyage and of the previous loading of the cargo; yet the jury found á verdict on the presumption, or the possibility of this knowledge having come to the underwriters, although instructed by the court that the general rule of law required pjl this to have; been expressly revealed by the insured, and that in an especial manner he was bound to do so, because of the express declaration in his offer, “that every material fact had been disclosed by him to the underwriters;” an averment which (if there would otherwise have been any propriety in their enquiring further,) confined the underwriters to the information contained in it, anc) fully authorized them to rely solely and exclusively on it.
    
      5th. Because in other respects the verdict of the jury was Contrary to law and evidence.
    Toomer, for the ■ motion.
    There is no dispute, about the fact that the cargo of the John was put on board at Savanna, and it is. proved that the oiler is precisely that which would have beenjnade, if the cargo had been put on board at Charles-tea, anti the question is, whether this was not such a misrepresentation or concealment as vitiated the policy. The same offer contains pr^iosals for insuring the cargo as well as the vessel. The policies are separate, but were both executed on the same day, and the whole ought to be taken as one entire contract. The policy on the goods expresses that the risk commenced from th^lading, evidently shewing tire understanding that the cargo vms not then on board. •
    Every circumstance necessary to enable the underwriters to form a just fúmate of the risk and premium must be disclosed; the time of departure, the termination of the voyage, the time when the risk is to commence, whether at the beginning or middle of the voyage, &c. Any misrepresentation or concealment on SSfciaterial point will vitiate the policy, 1 Marshall, 321,2, 454, 463, 4, 5, 7; 1 Parle, 319, 331.
    
    The words “at and from,” imply the commencement of a voyage, and if the voyage be commenced and the fact be not ■stated, it willy acate the policy. 1 Blac.Iiep. 463; 1 Marshall■, 322. This voyage did commence at Kavanna, and the fact was not disclosed.
    The evidence was, that the ship’s having cleared out from Havanna would have increased the .rate of insurance. Spain and her colonics were then at war, and her having cleared out from that port subjected her to detention or condemnation.
    From the manifest entered in the Custom-House it appeal’s that the goods belonged to Spanish merchants, and were there-' fore belligerent property, which increased the risk. With res-' poet to these circmnstances, the misrepresentation or conceal-' •ment ivas very material.
    If the policy contains a warranty, it is wholly immaterial whether it relate to a material risk or - not, if it be untrue it? vitiates the policy. 1 Marshall 348; 1 T. H. 343.. The policy, according to our construction, contained a warranty that the voyage was to commence at t harleston, when in fact it had commenced at Havanna. If a policy be executed on the ship and cargo, to -commence from the lading thereof, and the goods were before on board, the policy never attaches on the goods or the ship. 1 JUarshall, 461; 4 East, 130.
    The offer for insurance on the vessel is “at and from Charleston to Marseilles, and thence back to Havanna,” and it was insisted that the word back, imports that the vessel had •sailed from Havanna. This conclusion seems to be groundless, Jn common parlance, back implies a return either to the place of departure or to some other place in the course of the outward voyage.
    
      Hunt, contra.
    
      The case from 1 Blac. Rep. 463, is not analogous to the present. The insurance there was on perishable goods, and the vessel had lain by for six months at Genoa, and the court proceeded on the ground that it was impossible to know whether the injury sustained arose from causes'prior or subsequent to the insurance. In the case from 4 East, the only principle decided was, that where the occurrence from which the risk was to commence never happens, the policy never attaches. The insurance in this case was on the voyage of the vessel; she did sail on the voyage and the policy attached. That was the occurrence on which it was to attach.
    Whatever may be the general meaning of tire term voyage when it is applied to a vessel insured, it must of necessity mean from the place where the risk is to commence to that of its termination. Voyage means the passage of a vessel from one port or place to another. 1 Marshall, 180.
    “At and from” must be taken according to the subject ■matter of the policy. It is not necessary to shew that the voyage had not commenced; it is sufficient to shew that the ship is in port at the time, ii the risk is to commence there. 1 Caines 75, 79; 2 Cases in error, 158. There is nothing in the policy to shew that the goods were to be shipped in Charleston. It wag proved tnat the goods were American and not Spanish, it was necessary to ship them as belonging to Spaniards, because Ame--ricans cannot ship goods at Havanna in their own names. They were consigned to merchants in France, and goods always belong to the consignee.
    There could not have been any concealment or misrepresentation, because the arrival of the vessel from Havanna was published in the news-papers and she was actually registered in the insurance office. Concealment must be of something not known to the underwriters. 3 Burr. 1905.
    In effecting insurance, it is not necessary to disclose the mature of the trade, in which the vessel is engaged; at any rate, provided the trade be. lawful. Carrying belligerent property does not vitiate the policy. Lex. Mer. Amer. 304.
    Nothing can be a warranty, but what is written on the policy. Leaving her manifest at the Custom-House and taking a Mediterranean pass was an entry and clearance'.
    
      Prioleau, in reply.
    The voyage insured never commenced; it was at and from Charleston, and according to the policy on the goods, before the goods were put' on board. The terms of the offer, as interpreted by intelligent witnesses, are those which would be used for a vessel to be loaded in Charleston, and to-judge from the offer alone, that would be the conclusion. The rate of insurance is also calculated on this state of facts; to cover the war risk, the premium was proved to be greater. None but Spaniards are permitted to trade from Havanna, and if it had been known that the goods shipped were Spanish, the -rate of insurance would have been double. In point of fact, the voyage commenced at Havanna and was to terminate at Marseilles, and the whole object of coming here was to procure a Mediterranean pass.
    If the cargo had been discharged here and the vessel reloaded, then the voyage would have commenced here. For the meaning of the words “at and from,” see 1 Marshall, 473, n. 4 East, 130; 2 Taunt, 416; 4 Taunt, 628; 15 East, 46; 2 Maul & Seliv. 106.
    The omission to disclose the slightest material circumstance, will vitiate the policy; even a loose rumor of the loss of a vessel ought to be made known. Sailing from a belligerent port increases the risk and ought to be disclosed. Where there are several policies on the same voyage, and there is a concealment of material circumstances relating to one, the whole are void. 1 Marshall, 326; Id. 473, b. 1 Park, 287; Wharton’s Pig. 319,
    Here was not only a concealment of material circumstances, hut a misrepresentation: 1st. The fact that the voyage commenced at Havanna; 2d. That she was chartered by, and laden with the goods of Spaniards; 3d. That her papers were Spanish; 4th. That she w.as loaded before the policy. All these facts were material to enable the underwriters to form a just estimate. Spain and her colonies were at war. Admi.t that the goods were American property, yet her having cleared out from Havanna, subjected her to capture and condemnation.
    If the cargo had been discharged here and reloaded, and the vessel had cleared out from this port, she would not have been liable to capture. 16 East, 187. It was to this state of things the policy was to attach.
   The opinion of the court? was delivered by

Mr. Justice Cole oak.

I shall consider the second ground taken in the brief, first.

A full and fair disclosure of all the circumstances relating to the intended voyage, which may in any degree influence the determination of the underwriters in undertaking the risk or estimating the premium, should be made known to the underwriters; and a concealment which is only the effect of accident, negligence, inadvertence or mistake, will, if material, be equally fatal to the contract as if it were intentional and fraudulent.

The law being thus stated, I will enquire, 1st. Whether there was a concealment of á fact; if so, 2d. Whether ■ it was a material fact; and 3d. Whether it was of that character which underwriters are bound to know or abide the consequences resulting.

That there was a concealment, we need only look to facts disclosed and the offer. The ship had been loaded at the Havanna; she was lying in the stream here; yet this was not stated in the offer, which professes to disclose every circumstance necessary for the underwriters to know. Every witness Called on the part of the defendant stated that it was a material fact, for that the having been loaded at the Havanna, and her cargo being in appearance at least Spanish property, would under the existing state of things, subject her to the capture and detention of the patriot privateers; and one witness expressly said, that to his knowledge, such privateers were cruising in the Mediterranean sea at the very time that this vessel passed; all agreed too, that the premium would necessarily have been increased. The Spanish provinces had thrown off their allegiance to the mother country; war actually existed between them. The Havanna was therefore to all intents and purposes a belligerent port. Under these circumstances, a Mediterranean- pass would not have secured the vessel against the patriot privateers, had they fallen in with her.

But it is said that if the fact were material, it is of that character which the underwriters are bound to know, and therefore need not have been disclosed. The slightest examination of the subject, will shew that this is incorrect. The underwriter needs not be told what lessens the risk agreed upon, or is understood to be comprised within the express terms of the policy; he needs not be told what is the result of political speculations or general intelligence; he is bound to know every cause which may occasion natural perils; as the difficulty of the voyage, the variations of the heavens, the probability of lightning, hurricanes, Sic. &c.” 1st. Marshall, p. 473, all of which are of a general or public nature: but a particular fact, relating alone to the vessel to be insured, although of such a description as' may come to the knowledge of the underwriters, is not such a fact as they are bound to know.

Again, it is said they must have known it, for their inspector saw the vessel, and she was announced in the news-papers as having arrived from the Havanna Now neither of these circumstances prove that they did know it; for as to the inspector, he expressly said he did not commuuicate it; and as to the news papers, although her arrival was announced, it was not said she was loaded. But suppose the fact to have been known to the insurers, it is still a misrepresentation on the part of the insured. What is meant by an offer declaring that all material circumstances are disclosed? Why, it amounts to this! you need not enquire (as is your usual custom) into any matter relating to this vessel; you need not believe any thing you hear in relation to her, for we have told you the whole truth. How does it comport with this, for these very persons to say, ‘ but you did know, or should have known that we did not tell the truth.’ Again, suppose the underwriters could have been induced to believe the fact, that she was loaded and had been loaded at the Ka-vanna, may they not rationally have concluded that the insured meant to enter the vessel, discharge apart of the cargo, re-ship it and take a regular clearance; thus making outthe very risk insured; making it a voyage to commence here; making it in fact, the case stated in the offer. They certainly had a right to come to such a conclusion; for none other could have- excused the conduct.of the ensured. And I have no doubt that this was the truth of the case, that such was the intention of the insured when, the offer was made; but that some after considerations induced him to pursue another course; perhaps the expenses attendant on it, or some information which may have induced him to believe that the Mediterranean pass would be sufficient pro-' tection to the vessel.

It is contended however, that all this was matter for the consideration of the jury, and that the verdict ought not there- ■ fore to be disturbed. So much has been said in various cases by this court on that subject, that it is unnecessary now to enter into it. It is sufficient to remark, that when a verdict is clearly against evidence, it is the duty of the court to interpose, and that such is the case before us is sufficiently shewn. A new trial is therefore ordered on this ground.

On the first ground in the brief, that the voyage performed was not the voyage insured, or in other words that there was a breach of warranty, the court give no opinion. I am however individually, as well satisfied that there should be a new trial on this ground as on the ground of concealment. In ls¡f. Marshall 348, it is said, the breach of a warranty consists either in the falsehood of an affirmation or the non-performance of any executory stipulation; in either case, the contract is void ab ini-tio, the warranty being a condition precedent; and whether the thing warranted was material or not, whether the breach of it proceeded from fraud, negligence, misfortune or any other cause, the consequence is the same. The warranty makes the contract hypothetical; that is, it shall be binding if the warranty be complied with. With respect to the compliance with warranties, there is no latitude, there is no equity. The only question is, has the thing warranted taken place or not. If not,' the insurer is not answerable for any loss, even though it did not happen in consequence of the breach of warranty. — > The testimony proved clearly that the words “ at and from” in this policy, must mean the terminus a quo of the voyage; that the vessel was receiving her cargo here and was to sail from this to Marseilles. Every witness who gave an opinion on the offer, said it was in the form and language of a ship ■commencing her voyage here. What is the language of the policy on the goods? “ Loading at Charleston” — and how is it possible to separate die policies? they were entered into at the same time, by the same parties; goods and yessel both destined to the same point; how is it possible that the fact of departure can be true as to one and false as to the other? how can it be ■said this was the loading port as to the goods but not as to the ship? nor can the case in my opinion be distinguished as to principle, from the case of Robertson & Thompson, vs. French. 4 East p. 130, It is unnecessary at present to take any further view of the question.

Toomer Prioleau, for motion.

Hunt, contra

The motion is granted.

Bay, JVott, Johnson &/■ Huger. Justices, concurred.  