Mason and Leef vs. The Franklin Fire Insurance Company, 12 G. & J. 468

Archer, J., delivered the opinion of this court. We agree with the court below, that the policy did not cover the articles, for the loss of which by fire, this suit was instituted to recover. We have no proof of usage in the port of Baltimore, in relation to this subject, which would control or govern the contract of the parties. What was the usage in other ports of the Union, could not be considered as entering into the views of the parties in the formation of the contract. The case must, therefore, be decided by the language which the parties themselves have used in the covenant of insurance.

This is a valued policy “on a new barque now being built,” and the question is, what do these words import; do they apply to the ship and such materials as from time to time are placed upon her in a process of construction, or are they to be considered of more extensive signification, and as covering whatever materials were brought into the ship yard, and were necessary to her construction, whether fitted and prepared or not, to be placed upon the vessel, though not placed on the ship, or in any way attached to it, or as constituting in fact, a part of the corpus insured ?

This is a case of the first impression in this State. No cases have been cited, bearing upon the question directly. The contract of insurance is, it is true, one of indemnity, but the terms of it ought not to be carried beyond their ordinary and legitimate signification. The extent of this indemnity is to be ascertained, by arriving at the true intention of the parties, as expressed by the words they have used.

The thing injured, “is a new barque now being built” and the design of the parties was to cover the ship in the process of construction, ana indemnity was agreed to be furnished for her loss by fire, whatever might be her progress towards completion, when the fire occurred. The articles, the value of which is claimed, it is proved, were made for the ship, and were in the ship yard, and were in a condition to be fitted and attached to the vessel, if she had been ready to receive them. But they never had been placed upon or fitted to the vessel, so that the policy could attach to them.

Authorities have been cited to show, that an insurance on ship, covers her tackle apparel and furniture, ex vitermini, and that the sails of a vessel, taken on shore for repair, are also covered, there being a usage proved, that vessels engaged in such trade, removed their sails from the ship for repair.

But these cases do not, we apprehend, apply to this case, where the insurance is not on a ship, but on a barque being built, and by which the articles alleged to be insured never constituted a part, and wh ere there is no usage in the port of Baltimore where the insurance was effected, to show that the articles lost were considered within the terms of the policy.

In short, we believe that the insurance in this case covered the barque itself, as it then lay on the stocks at the time of the insurance, and operated on such materials as should be from time to time in a course of construction, put upon and attached to the vessel, so that they might be considered as a part of the vesssl. judgment affirmed.