The sole question in this case is whether the warranty not to use any ports in the British North American provinces, except between the' 15th May and 15th of August, was broken by sailing on a voyage from Boston to a prohibited port on 24th September, when the vessel was lost before .reaching the port.
■ I have to-some extent examined this question in Bearns v. The Columbian Ins. Co., decided this term, (a) but that case differs from this in the fact that here the loss occurred during the voyage from Boston to the prohibited port, while in the other case the damage happened in going in and out of a port within the terms of the policy.
This was a time policy, and the prohibition was against the hse of those ports, and under ordinary circumstances, if the voyage had been from Boston to some port in Europe the same route, might have been taken and the vessel would have been covered by the policy. On such a voyage, the prohibition not to use the ports in the British North American provinces would be properly construed to mean that the" vessel should not enter these ports, and that a mere intent to enter them would not violate the policy.
' In this case, however, it is argued that the whole voyage was undertaken with an express intent to violate the warranty, and that such an intent from the commencement of the voyage led to a route nearer to the shore and exposed the vessel to greater danger, and that the vessel would not have *477been where she was lost, but for the intended plan to enter the prohibited port. Thus in voyage policies, the policy ceases to cover the vessel at the point of divergence for the prohibited port.
The question is not free from difficulty. Ordinarily the term use a port, means to enter it, and until that takes place the port is not used and the warranty is not broken. But where the sole object of a voyage is to use a prohibited port, and in consequence thereof the vessel is wrecked upon the same coast within a short distance of the port intended to be used, the risk is undoubtedly increased, and in a way in which the insurer intended by the warranty to be protected against.
The question in this case has been lately examined in the Court of Appeals of this state in Stevens v. The Commercial Ins. Co., (26 N. Y. Rep. 397.) There Davies, J. in deciding the case applies to it the rules applicable to voyage policies, and says : “ In whatever aspect the case can be considered, it seems to be well settled that after the brig left the port of Laguira (not a prohibited port) to proceed to that of Sisal (which was prohibited) she ceased to be under the protection of the policy, and the underwriters were discharged. It was entering on a voyage not covered by the policy.”
If this rule is correctly applied to time policies, then the sole object of the voyage in the present case being to enter a prohibited port, after the schooner entered on the voyage to Lingan she ceased to be under the protection of the policy and the plaintiffs cannot recover.
There is another view of this case which ought to have some weight in its decision. The clear intent of the underwriters in this restriction is to guard against the danger which arises from navigating near the coast of the British provinces at certain seasons of the year. That intent is completely frustrated, if the insured can go to a prohibited port, and claim protection in going and returning, and being unprotected only while in the port. It is a fraud on the under*478writers, and as was said by Cowen, J. in Union Ins. Co. v. Tysen, (3 Hill, 118.) “ The voyage is undertaken in fraud of the policy."
[New York General Term, April 1, 1867.A fair construction of the contract between these parties would seem to require that the prohibition to use certain ports was intended to guard against the dangers incurred in reaching them ; and where the sole object of a voyage was to do an act forbidden by the policy, the insurer should not be held liable for any loss connected therewith.
The verdict should be set aside and a new trial granted, costs to abide event.
Sutherland, J. concurred. -
Ante, p. 445.