son and Walker, in whom such interest is by the declaration averred to be. Secondly, that the policy on this ship and cargo never attached; the adventure on the cargo being by the terms of the policy made to commence from the loading the goods aboard the ship on the coast of Brazil - an event which, as it was contended by the defendant, never happened, inasmuch as the goods were not loaded there, but at the Cape of Good Hope. And it was also contended on the part of the defendant, that the adventure on the ship, being by the terms of the policy made to begin in the same manner with that on the goods, could of course have no commencement, if that on the goods never attached. [After stating the policy as before mentioned, his Lordship proceeded.]

In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a policy of assurance which are not equally applicable to the terms of other instruments and in all other cases; it is therefore proper to state upon this head, that the same rule of construction which applies to all other instruments, applies equally to this instrument. of a policy of insurance, viz., that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade. or the like, acquired a peculiar sense distinct from the [136] popular sense of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The only difference between policies of assurance and other instruments in this respect, is, that the greater part of the printed language of them, being invariable and uniform, has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject, indeed, always to be governed in point of construction by the language and terms with which they are accompanied) are entitled, nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general

formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects.

*

As to the first point made in this case on the part of the defendant, viz., that the ownership alleged was not sufficiently proved, it was proved by the captain (Brooks) in the ordinary way that the owners by whom, as such, he was appointed and employed were the persons in whom the ownership is by the declaration averred to be. And though it afterwards appeared by his answers on cross-examination that the ownership was derived to those persons under a bill of sale executed by himself as attorney to one Lawrence Williams, the former owner, it did not on that account become necessary for the plaintiffs to produce that bill of sale or the ship's register, or to give any further proof of such their property; the mere fact of their possession as [137] owners being sufficient primâ facie evidence of ownership, without the aid of any documentary proof or title-deeds on the subject, until such further evidence should be rendered necessary in support of the prima facie case of ownership which they made, in consequence of the abduction of some contrary proof on the other side. No such contrary proof was, however, in this case given on the part of the defendant. For the prior register in the name of Lawrence Williams as owner in 1799, and a subsequent register to the same person upon a sale at the Cape in 1802, under, a decree of the Court of Vice-Admiralty, and which were given in evidence by the defendant, were perfectly consistent with a title in other persons in the mean time, agreeable to the averment in the declaration.

As to the second point made in this case, viz., that the policy on the ship and goods never attached, it is asserted on the part of the defendant that the adventure in question as to its commencement, according to the natural and obvious meaning of the language and terms of the policy, depends upon and is limited by the coexistence and concurrence of three several circumstances; viz., one of place, one of time, and one of event or fact. And first, of place, that it is to attach on the coast of Brazil; secondly, of time, that it should attach there after the 17th of September; and thirdly, of event, that the goods should have been then loaden at some port or place on the coast of Brazil. The adventure upon the ship is in terms declared to begin "in the same manner," i. e. at the time, and place, and after the happening of the events

No. 52. Robertson v. French, 4 East, 137-139.

*

before described and specified in respect to the cargo. But it is argued on the part of the plaintiffs that the latter circumstance of event or fact, as I have termed it, does not affect the commencement of this adventure; and that the words "from [* 138] the loading thereof aboard the said ship" are either to be rejected wholly, in which case the policy will stand thus, "beginning the adventure upon the said goods and merchandises at all, any, or every port and place where and whatsoever on the coast of Brazil," without regard to the place at which such goods may have been in fact antecedently laden; or that the words, "from the loading thereof aboard the said ship at," are to be understood from the time of the ship's being with the goods laden on board her, or having such her cargo on board her, at the place mentioned in the policy, i. e., in this case, at the coast of Brazil. The objection to the first of these constructions (besides the difficulty of wholly rejecting words having an apparently significant meaning, and referring distinctly to an act to be done at a given place) is stated to be this, that if the cargo insured be understood to be generally a cargo at, or a cargo on board on the coast, and not one actually and originally taken in upon the coast, the policy would in that case cover the risk on two successive cargoes, i. e. on the outward cargo with which the ship should be in a loaded state on the coast after the 17th of September, and the homeward, or that which it should take in there; and that it would not be just towards the underwriter so to construe the words as to cover thereby at his risk two successive cargoes, when one original cargo only, according to all the ordinary usages of trade and practice of insurance as applied to such form of words must be understood to be meant, in addition to the liberty of sale, barter, and exchange, given by a subsequent part of the policy; and further, to reject emphatical words, in order to accomplish a construction so much to the apparent disadvantage

of the underwriter. And indeed if only one original [139] cargo were meant to be covered, a Brazil cargo appears to

have the best claim to be considered as that one. For it would be preposterous to consider the policy as meant, in preference to any other one cargo, to cover a cargo taken in at the Cape of Good Hope, and which should remain unprotected as far as this policy is concerned, wherever it should be, till the 17th of September, and from that day, if it were then on the coast of

No. 52. Robertson v. French, 4 East, 139, 140.

Brazil, should be protected there, and during the course of its barter, sale, and exchange at the island of St. Catharine and elsewhere, and during its reconveyance afterwards back to the Cape, from which it had originally proceeded. The same objection in a great measure applies to the second construction, which, without wholly rejecting the words " from the loading thereof aboard the said ship," considers the goods as the subject of insurance when, after the 17th of September, they should be in a loaded state at the coast of Brazil; for this construction would equally exclude the possibility of covering by this policy a homeward cargo taken in at the coast of Brazil to be carried to the Cape, provided the ship should have arrived on the coast of Brazil with an original cargo on board; unless, indeed, two successive cargoes could be covered by a policy conceived in these terms. But the most natural construction of the words, if the immediate letter of them were less directly applicable to a cargo taken in on the coast, seems to be to make them apply to a cargo to be carried to the terminus ad quem upon and within the immediate limits of the voyage described in the policy, rather than to a cargo conveyed, as it should seem, in the course of useless circuity from the place from which the ship originally proceeded before the voyage in question had commenced; continuing, except inasmuch as it might be altered by barter, sale, and exchange, on board during the voyage, and to be delivered at the [140] place at which the voyage is at last appointed to terminate. But the question naturally occurs, Is there anything to be found in the policy which assigns to these words a sense thus apparently different from the ordinary grammatical sense of them? And looking, as we are obliged to do, to the policy, and to the policy alone, in order to collect the intention of the parties as to the commencement and duration of the adventure thereby protected, we cannot feel ourselves at liberty to disjoin in point of effect and construction the words, "at all or any port or place on the coast of Brazil," from the words, "from the loading thereof aboard the said ship," by which they are immediately preceded, and with which by immediate context they appear to us to be necessarily united. If the same words had not been thus incorporated with the body of the text of the printed words, and made to form therewith one entire and continued chain of words, and one unbroken sentence of intelligible expressions all

No. 52. - Robertson v. French, 4 East, 140, 141.

applicable to the same subject-matter, it might perhaps have been open to us to have given them a different meaning, and to have considered them as words written in the margin of the policy (and applying, therefore, indefinitely to the whole of the policy, and not to any particular part of it), are usually considered; that is, as controlling the sense of such parts of the printed policy to which, in sound construction, and by reasonable reference, they may appear to apply. As, for instance, where the word "ship" is written in the margin of the policy, or "freight," or "goods;" in such case the general terms of the policy, applicable to other subjects besides the particular one mentioned in the margin, are thereby considered as narrowed in point of construction to that

one. And this is done in cases where the subject meant [*141] to be insured is still more remote from *"ship and

goods," the only subjects of insurance in the printed policy; viz., where the object of the insurance, as declared by the marginal memorandum, is, money lent on bottomry or respondentia, or the like; the meaning of which marginal memorandum may be translated thus: We mean to insure the subject so named, "freight," for instance, arising and accruing during the limits of the voyage within described, from the carriage of goods on board the ship within mentioned, against the perils within enumerated, and upon the premium herein specified. In other words, we adopt the general language of the policy, as far as it may serve to effectuate this object, and no further. Had, indeed, the subject-matter of the insurance itself, or the character, situation, and description of the persons making it, or any other circumstance attending the insurance, pointed out and required a narrower rule of construction, the ordinary effect of these words. might perhaps have been in such case controlled; but can any such restrictive rule of construction be applied to the words “at all, &c., ports and places on the coast of Brazil," as they occur here, without shaking the fundamental rules of construction as applicable to all deeds and instruments whatsoever? Feeling, therefore, the impossibility of assigning to these words any other place in or with reference to this contract than what the parties themselves have done, and feeling the impossibility of assigning to them in that place, and with the context which attends them, any other meaning than what they obviously and in their plain grammatical sense import, we are obliged to say that the adven