CURELL ET AL. vs. MISSISSIPPI MARINE AND FIRE INSURANCE COMPANY, 9 La. 163

Mathews, J., delivered the opinion of the court. This case was before the Supreme Court in February term, 1832, and was remanded to the District Court for a new trial, ‘in consequence of a belief that the' verdict of the jury, on which the judgment had been based, was not supported by the evidence. The cause on the new trial, was finally submitted to the decision of the court, without the intervention of a jury, and judgment being rendered for the defendants, ■ the plaintiffs appealed.

A correct decision of the case depends mainly on one fact, viz. whether there was concealment or misrepresentation on the part of the insured relative to the time at which the vessel sailed from the port a qua. The plaintiffs having' insured the amount of commissions to which they would be entitled on goods shipped to their consignment, by the ship Edward Downs, from Belfast, in Ireland, to New-Orleans. All the important facts disclosed by the testimony, are detailed in the opinion heretofore pronounced by this court. See 3 Louisiana Reports, 353.

In the evidence then offered, allusion was made to letters been received by the plaintiff, Kilsharv, from Belfast., from which it was presumed he had derived know-le(%e of the true date on which the ship sailed. These letters were not shown on the first trial of the cause in the court below, but were exhibited on the last. They do not, however, in our opinion, materially vary the state of the case. If they be admitted to have any effect on it, the conclusion or influence to be drawn from them, would be rather prejudicial to the pretensions of the appellants.

In obtaining the insurance, the plaintiffs assumed as a fact, and so represented it to the insurers, that the vessel did not sail before the 18th of October, 1830. Now by one of the letters alluded to, dated Belfast 13th October, and received in New-Orleans on the 22d of December following (about twenty days before the insurance was effected) mention is made of goods similar to those per Edward Downs, as being on hand. The inference from this expression (as we understand it) would be that the ship had sailed before the date of this letter.

The only question in the case is, whether the information or representation given by the insured to the insurers at the time of making the contract, and which is shown by the evidence to have been incorrect, was of a fact material to the risk assumed.

We state this as the only question, because considering the obligation of the insurers complete and binding from the time the terms of insurance were accepted by them, (if the contract be one entered into in good faith and without error,) in considering the case, we leave entirely out of view the subsequent occurrences disclosed by the testimony, as to the observations of the president of the company about the time the policy was delivered to the plaintiffs, and after some additional facts relative to the progress of the ship on her voyage, had come to the knowledge of the insurers.

These facts can have no influence on the cause, for it was not known at the time of making the contract, that the vessel had been seen' near th,e coast of the island of Jamaica. The insurance must be considered as one from Belfast to New-Orleans. The representation made by the plaintiffs at the time when it was obtained, showed the ship to be out from the port a quo seventy-two days, when in truth ninety days had elapsed from the period of her sailing, making a misrepresentation or suppression of the space of eighteen days.

Whether this misstatement arose from a deliberate intention to deceive, or from error, is not material, the fact being assumed on the part of the applicants for insurance; if it be material in relation to the risk taken, and was afterwards shown to be false, it suffices to avoid the contract. ^ An whenS a’vessel insurance is et-fected, will be misrepresents!- * tionand conceal-time, whether intenfon^shffi-f,ient av01<} release the insu- knmvledge of the true date saii^'íaiihn-P01'tant t0 insurers, who are about to take the risk of her thíport of deí «nation.

The testimony shows, that an ordinary voyage from Belfast to New-Orleans, is performed in about fifty or fifty-five days. But when western winds prevail, the period may be lengthened. .... , ... .

From this it is seen that the ship, m the present instance, was greatly out of time when the insurance was effected, The knowledge, therefore, of the true date at which she left the port a quo, (as it appears to us) was all important to those who were about to take on themselves the risk of her safe arrival in the port of destination ; and they cannot be presumed to have been conusant of this fact, as they were not directly interested in such knowledge previous to the time when the erroneous representation was made to them by the plaintiffs. ■ It is seen that we have considered the case solely in J relation to the doctrine of representations in insurance, and as not coming within any of the rules relating to warranties, and as a proof of the correctness of this mode of treating it, we refer to Condy's Marshal, page 450, et seq. and Phillips on Insurance, pages 85-6.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.