Thornton, J., dissenting: I dissent as to the reversal of the judgment. The case cited from 1ST. Y. has no application. The case of Gay v. Moss, 34 Cal. 135, is substantially overruled by the judgment here. I adhere to the opinion drawn up by me when the case was before Department Two.
The following is the decision of Department Two referred to:
Thornton, J.: This is an action on a policy of insurance to recover for a loss of three thousand nine hundred and fifty-one sacks of wheat, shipped by the plaintiffs with other wheat in sacks at San Francisco, and destined for Batavia.
The cause was tried by the Court, judgment was rendered for the plaintiffs, from which defendant appealed.
All the facts appear in the decision of the Court below, which was as follows:
[473]“The above entitled action came on to be tried by the Court, a jury having been expressly waived by the parties on the twenty-third day of July, 1879, and now the Court, having considered the pleadings and the evidence, finds the following to be all the facts of the case:
“ 1. On the twelfth day of August, 1874, the defendant, a corporation, issued and delivered to one J. W. H. Campbell, on behalf of the plaintiffs, who were then and are now doing business under the firm name of Busing, Schroeder & Co., the the policy of insurance, a copy of which is attached to the complaint.
“ 2. Subsequently, before the commencement of this action, said policy was assigned and transferred to plaintiffs, who at the commencement of this action were, and are now, the legal owners and holders thereof.
“ 3. On said day plaintiffs shipped on board the steamship Colorado, then in the harbor of San Francisco, and belonging to the Pacific Mail Steamship Company, the four thousand five hundred and fifty-one sacks of wheat mentioned in said policy, and which were during all the times mentioned herein, the property of, and owned by, the plaintiffs.
“ 4. The Colorado then proceeded to Yokohama, where the master of said steamship received instructions from said company to return to San Francisco, instead of going on to Hong Kong. The reason of these instructions was that the steamer Alaska, which should have sailed prior to that time from Hong Kong to San Francisco, was undergoing repairs at Hong Kong, and was unable to make the voyage and to carry the mails between said ports in the regular course of the business of said company. The agents of said company at Yokohama thereupon transshipped the said four thousand five hundred and fifty-one sacks of wheat from the Colorado into the steamships Sierra Nevada and Costa Mica, belonging to the company, by which steamships it was conveyed to Hong Kong.
“ 5. Six hundred of said sacks of wheat were thus placed on board the Sierra Nevada, and were by her and connecting steamers safely conveyed to Batavia.
“6. Three thousand nine hundred and fifty-one of said sacks of wheat, of the value of thirteen thousand eight hundred and eighty-seven dollars, were thus placed upon the Costa [474]Rica and were by her transported to Hong Kong, where they were received by the agents and servants of the said company and by them, as a matter of necessity, and in accordance with the established custom prevailing at Hong Kong, which was known to the defendants at the time of the issuance of the policy, placed and stored in a warehouse on the harbor front of Hong Kong, there to await the first opportunity to ship them to Batavia.
“ 7. While said three thousand nine hundred and fifty-one sacks of wheat were in said warehouse awaiting reshipment, and before any opportunity to ship them to Batavia had arrived, the said harbor of Hong Kong was visited by a typhoon, or storm of extraordinary violence, which drove the waters of the harbor up on to the land, so that they broke in the roof and windows of the said warehouse, drenched the said wheat with sea water, and flooded the interior of the warehouse to the depth of three or four feet.
“ 8. By reason of said flooding and drenching, the said three thousand nine hundred and fifty-one sacks of wheat Avere so thoroughly soaked with sea water and rain, that the wheat began at once to sprout, and became swollen and heated to such an extent that it would have been impossible to transport it to Batavia. No vessel would have received it on board, as there would have been danger during the voyage of its ignition from spontaneous combustion; and, if it had been been taken to Batavia, it would have arrived there as manure, and not as wheat.
“9. The said three thousand nine hundred and fifty-one sacks of wheat were thereupon surveyed by the Government surveyors at Hong Kong, and by their advice sold at public sale, for the sum of three thousand five hundred and forty-one dollars and ninety-two cents, on the twenty-second day of September, 1874.
“10. The custom and usage of the Pacific Mail Steamship Company, with reference to the voyages of their steamships between San Francisco and Hong Kong, with cargo laden for Hong Kong or Batavia, was for the vessel on which such cargo was taken at San Francisco, to carry the same to Hong Kong without transshipping it at Yokohama, at which port they touched or making connection with any other vessel or vessels, [475]at the last named port for such purpose. This usage had existed, without interruption, since the first day of January, 1867, the time of the establishment of the company’s line of steamers between San Francisco and Hong Kong, the only instance of such transshipment being that of the cargo in question. The defendant had knowledge of this custom, and charged a lower rate of premium on the policy sued on, because it expected that no transshipment of the wheat was to be made at Yokohama.
“And from the foregoing facts the Court now finds the following to be its conclusions of law:
“1. The said three thousand nine hundred and fifty-one sacks of wheat were, while in the warehouse at Hong Kong, insured and protected by the policy, from loss or damage by any of the causes enumerated therein.
“2. The said three thousand nine hundred and fifty-one sacks of wheat were totally destroyed.
“ 3. The cause of the destruction of said three thousand nine hundred and fifty-one sacks of wheat was a peril of the sea.
“ 4. The transshipment of the wheat from the Colorado, at Yokohama, was justified by the circumstances and by the policy and contract of the parties, and did not avoid the policy.
“ 5. The division of the four thousand five hundred and fifty-one sacks of wheat, and the putting of part of it on one vessel, and part of it on another vessel, were justified by the circumstances, and by the policy and contract of the parties, and did not avoid the policy.
“ 6. The total destruction of the three thousand nine hundred and fifty-one sacks of wheat was an absolute total loss, and not a partial loss or a particular average within the meaning of the policy.
“7. By the policy, the wheat therein mentioned was not insured only during or upon the usual voyage performed by the steamers appertaining to said company, from San Francisco to Hong Kong, but was insured while it should be upon said Colorado or any other steamer with which the Colorado might anywhere connect, or to which she might anywhere transfer her cargo.
“ 8. The ‘ connections’ in said policy of insurance mentioned [476]was not a connection in the first instance, to be made at the port of Hong Kong, by and between said steamship Colorado and some other vessel, but included the connection which was made by the Colorado with the Sierra Nevada and the Costa Rica at Yokohama.
“ 9. The plaintiffs are entitled to recover from the defendant the said value of the said three thousand nine hundred and fifty-one sacks of wheat, less the amount for which they were sold, with interest thereon at the rate of ten per cent per annum, from the twenty-second day of September, 1874, up to the sixteenth day of April, 1878, and from that date at the rate of seven per cent per annum, amounting in all to the sum of fifteen thousand and seventy-one dollars and forty-one cents.”
The policy was made part of the findings of fact by reference to it as attached to the complaint.
The wheat was insured at and from San Francisco to Batavia on board the steamer Colorado and connections, against perils of the seas, fires, pirates, etc.
As appears in the findings of fact, the wheat was shipped on the Colorado in the harbor of San Francisco and it then proceeded to Yokohama, where the ship-owner transshipped the wheat from the Colorado to the steamships Sierra Nevada and Costa Rica, belonging to the same owner, by which it was carried to Hong Kong.
This change was made, not from the fact that the Colorado had been in any way disabled or rendered unnavigable, or with the consent of the insurer, but from the fact that when it reached Yokohama the master received instructions from the owner to return to San Francisco instead of going on to Hong Kong (see fourth finding, where the fact is found, and the reason that these instructions were given to the master.)
It is contended that this transshipment was unjustifiable, and its effect was to change the risk, and, in consequence, the defendant insurer was discharged from its contract. If the contract was thus changed the defendant cannot be held liable. “It is an implied condition of the policy that the ship named in it, should not, after the commencement of the risk, be changed without necessity or the consent of the underwriters; for such unnecessary or unsanctioned change of the [477]ship would produce an alteration of the risk run by the underwriters, and, therefore, exempt them from their liability.” (1 Arnould on Ins., 177.) The author cites Emerigon, ch. xii, § 16, vol. 1, 419, 425, ed. of 1827, and Pothier Traite d’Assurance, Nos. 68, 69, 70,71.)
As to insurance on goods, freight, profits, etc., the same author says: “That if either before the commencement of the voyage or during the course of it, the ship named in the policy be changed without necessity, or without the consent of the underwriters, they will be discharged from liability.” (1 Arnould on Ins., 178.)
The author then proceeds and gives a reason for the rule:
“ So invariable is this rule, that it holds good even though the substituted ship may be of larger dimensions or greater strength than that originally named in the policy, for by the fact that a given ship is named in the instrument, the underwriter has a right to say that he had some peculiar reasons for insuring a risk on that very ship, which should not apply to any other.
“ On the same ground, if without consent or necessity, the cargo is either shifted from the ship named in the policy to one as good or better, or is originally loaded on board of the latter instead of on board the ship named, and both ships perish on the voyage, yet the underwriter shall be discharged from all liability, for the policy never attached upon the goods loaded on board the substituted ship.” (Id. 178; 2 Pouson’s M. Law, 276; Bold v. Pother am, 8 Q. B. 781; Winthrop v. Union Ins. Co., 2 Wash. C. C. 7, 20.)
If, however, the underwriters consent, or if the ship in the course of the voyage becomes so disabled as to be incapable, by any means at the master’s disposal of being repaired at all, so as to take on the cargo, the master may procure another ship in which to forward the cargo to its port of destination, and the liability of the underwriters of the goods, will still continue; and they will be liable for any loss occurring subsequent to the transshipment. (Id. 179; See Plantamour v. Staples, 1 Term. Rep. 611; Note, S. C. 3 Dougl. 1; Schieffelin v. N. Y. Ins. Co. 9 Johns. 21; 1 Phill. Ins., 485-6 ; Treadwell v. Union Ins. Co., 6 Cowen, 270; Saltas v. Ocean Ins. Co., 12 Johns. 107; S. C., 7 Am. Dec. 290; Abbott Ship., 6 Am. ed. [478365], Motes; 3 Kent, 5 ed. 257. See also Lee’s Law of Shipping and Insurance, 412.)
The necessity which will justify such action on the part of the master, only arises in case the ship is disabled by stress of weather, or other peril of the sea, from carrying on the goods to the place of destination. (Lee’s Law of Sh. and Ins., 412; Arnold on Ins., 185; Shipton v. Thornton, 9 Ad. and Ellis, 336.)
Mo such necessity appears in this case. The facts in relation to the transshipment appear in the fourth finding, and they were not sufficient to justify it.
But it is contended that such consent is implied and was given by the use of the word “ connections ” in the policy— the underwriters stipulating for indemnity as regards the steamer Colorado and its connections.
If such is the significance of this word, the change of ship is justified. This word is simple and clear in its meaning. It indicates the act of connecting with some means of carriage or forming a junction with such means. (See Webster’s and Worcester’s Dictionaries, word “ connection.”)
It is evident that the contract of insurance was entered into with regard to a state of things as to the connections of the ship Colorado existing at the time of the execution of the policy. Reference certainly was not made to a casual, unusual and unanticipated connection with a ship substituted for the occasion, upon a state of things temporary in its nature and unknown at the time that the contract was made. It surely was not in the mind of either of the contracting parties that the Colorado would be turned back when she reached Yokohama, for the reason that the Alaska was disabled from taking its place in the regular course of business of the company (owner), and was then undergoing repairs at Hong Kong. It does not appear, and therefore we can assume it as an established fact, that the parties did not know when the contract was made, those facts concerning the Alaska. It further appears from the facts found that the only connections which the Colorado had were those at Hong Kong—for it is stated in the tenth finding of facts that the custom and usage of- the owner, the Pacific Mail Steamship Company, with reference to the voyages of their steamships between San Francisco [479]and Hong Kong with cargo laden for Hong Kong or Batavia, was for the vessel on which such cargo was taken at San Francisco, to carry the same to Hong Kong without transshipping it at Yokohama, at which port they touched, or making connection with any other vessel or vessels at the last named port for such purpose, and that this usage had existed without interruption since the first day of January, 1867, the time of the establishment of the company’s line of steamers between San Francisco and Hong Kong, the only instance of such transshipment being that of the cargo in question. This in our judgment is enough to show that such were the connections and the only connections existing at the time that the policy was entered into—a connection to be .made at Hong Kong.
Why should it be held that such were net the connections referred to in the policy? The word was used as of something then in being. We find something in being fully answering to the word used. The Colorado was spoken of in the policy as having connections. It did have connections at Hong Kong as found, and had no connections elsewhere. Why are not these the connections mentioned in the policy, and not any such temporary connection availed of and created on and for the occasion by reason of an exigency which had just occurred, and which neither of the contracting parties was aware of, at the time they entered into the contract of insurance.
Certainly we are justified in holding that the parties contracted with reference to a state of things known, and would not be justified in holding that they contracted with reference to a state of things unknown, unanticipated and temporary in its nature. If they had any intention to contract with reference to a change in the usual course, it might have been easily and clearly expressed in the contract.
But it is said that the plaintiffs had no knowledge of the custom and usage found in the tenth finding of fact. If they did not, it was their own fault. They were in effect told by the use of the word in the policy, that there were connections of the Colorado. The use of the word put them on inquiry. If they did not know it, certainly they would have inquired. But surely they knew, what they were contracting about.
[480]They were contracting about the connections of the ship Colorado, and we think they should not be held to have been ignorant of them. It is not averred in the pleadings that they did not know it. If they did not, it might be claimed that it was a mistake on their part—whether of fact or law, it is unnecessary to say. If a mistake of fact or of law, it might have the effect of releasing them from the obligation of the contract; certainly it could not extend the obligation of the defendant, or create a new one binding it. If the contract was not the contract they entered into, they should have proceeded to have it reformed. Not having done do, it must be construed as it is.
Nor does it make any difference that the words “ custom and usage ” are used in the finding with regard to this matter. The words used indicate a course of business pursued by the owners of the ship Colorado for a series of years and establishing a state of things referred to in the policy of insurance as existing at the time it was signed and delivered. It would not be proper to hold of this that it was a mercantile custom or usage, which did not bind the plaintiffs, because there is no finding that they were aware of it. It signifies a course of business of a particular line of steamships with reference to which a contract was made (1 Greenl. Ev. Section 292; The Schooner Reeside, 2 Sumner, 567), referred to in the written contract in such language as to show to men of but little experience in business matters that a course of business in existence was alluded to and meant. To come to any other conclusion would be to hold that the plaintiffs did not know what they were contracting about, a conclusion which nothing appearing in the record indicates, and from which the law withholds any justification.
This course of business had existed from January, 1867, to the time the policy was executed, which was on the twelfth day of August, 1874, more than seven years before the date just mentioned. Under the pleadings, evidence should be received to show the meaning of the word “ connections,” but not to show that the plaintiffs did not know what that meaning was.) 1 Greenl. Ev., § 592, Schooner Reeside, wt supra)
The seventh and eighth conclusions of law are not proper deductions from the facts found. We understand them as [481]conclusions of law—as constructions of the instrument under the facts found, and not as findings of fact. If they were findings of fact they would he inconsistent with other findings, notably the tenth. As conclusions of law, they are not justly deducible from the facts.
The contract was made with reference to a voyage of the Colorado to Hongkong, where a connection would be made by a change of ship from that port to Batavia, unless the steamer became disabled and was rendered unnavigable, when a change of ship might have been made at Yokohama. Such change, at the port just named, might also have been properly made with the consent of the underwriters. Neither of these occurred, and therefore the change of ship was not allowable. The risk was changed, and the underwriters might well say non in haec foedera veni. Whether the risk was increased or diminished by the change, the result is the same. The terms of the contract do not allow it, nor does the law.
The loss at Hongkong occurred subsequent to the change of ship, and under the terms of the policy, the defendant was not responsible for any such loss occurring after that event. As the result here reached is conclusive, it is unnecessary to consider the other questions which were so ably discussed on the argument.
The judgment should be reversed and the cause remanded to the Superior Court of the City and County of San Francisco, with a direction to enter judgment for the defendant, and it is so ordered.
Sharpstein and Myrick, JJ., concurred.