NEWMAN v. ROW. 1
1848, June. BRADY, C. J.; DESBARRES AND SIMMS, J. J.
Marine Insurance—Meaning of word “ fish ” in Newfoundland trade.
The word “ fish ” without further addition means in the Newfoundland trade cod-fish.
THIS was an action upon a policy of insurance brought by the plaintiff to recover from the defendant the sum of thirteen shillings, being his proportionate share of a sum alleged to be due in respect of a policy of insurance effected upon some pickled salmon which had been shipped on board a vessel called the Mahone Bay Packet, in the month of November, 1844, and which subsequently ran on shore upon Green Island. By the terms of the policy the underwriters guaranteed “ that they would allow average when the loss, exceeding ten per cent. on the value of the property, happened on a foreign voyage, and did not arise from jettison or from injury or damage to corn, fish, salt, bread, flour, seed, sugar, tobacco, hemp, flax, hides or skins.” The point in dispute was therefore whether pickled salmon came within the article excepted in the policy, or whether the word fish according to the usage and custom of the trade of Newfoundland is simple confined to dried cod-fish.
Mr. Robinson, Q.C., for the plaintiff, called Mr. Boyd, who deposed—that as agent to the defendant, one of the under-writers, he had signed the policy of insurance. Witness had been connected with mercantile transactions in St. John”s for 42 years. If asked what was the price of FISH, he should say the question referred to dried cod-fish alone. If he sold a quantity of flour to be paid for in FISH, he would understand that cod-fish was meant thereby. If asked what a fish-store was, he should reply a store for the reception of dried cod-fish. The general and popular meaning of the term fish, in Newfoundland, is dried cod-fish.
Cross-examined by Mr. Row, Q.C., for the defendant.—Upon the wharves and in the stores the word fish means cod-fish ; in cases of total loss pickled fish is included in the term fish. The insurance was effected at the risk of Charles Fox Bennett, who is one of the underwriters ; if asked to insure fish, I would understand every description of fish. A question was then put to the witness, whether the words in the margin of the policy excepting specified articles, were not also found in Lloyd’s policies, but the Court refused to allow it to be answered, upon the ground that it was sought thereby to give parole evidence of the contents of a written document.
1 Newfoundland Reports, 1846–1853, pp. 22-25.
Re-examined.—C. F. Bennett is a subscriber to the policy, the manuscript part is in witness’s handwriting. The merchant’s clerk generally hands in the proposal for insurance, and his employer may not know about it. I have no hesitation in affirming what I stated upon my direct examination, that the general meaning of the word fish in Newfoundland is dried cod-fish.
To a Juror.—Suppose an insurance for the sum of £1000 was effected upon fish in your office, and that the insured had not the required quantity of cod-fish, would you admit salmon and herring to complete the specified quantity ?
Witness.—We have done so.
The Court thereupon observed—We will admit evidence of the general usage of trade, not the usual practice of a particular office.
Mr. Charles Warren examined.—Has been for a period of ten years connected with the trade of Newfoundland. Every person here, be he rich or poor, when the word “ fish ” is used, understands that cod-fish alone is meant. If anything is sold to be paid for in fish I should understand it to be intended. Fish store means store for cod-fish. Popularly speaking, the word fish, means cod-fish, and none other.
To the Court.—If I wanted to effect an insurance upon the articles : cod-fish, salmon, and herrings, I should enumerate each item specifically, in my proposal to the Insurance office.
Mr. M‘William.—Has been connected with the trade for upwards of 20 years. In mercantile transactions the term fish is always understood to mean cod-fish.
Mr. T. Smith.—Has been a clerk in the house of Messrs. C. F. Bennett & Co., and connected with business in Newfoundland for 16 years. Fish generally means, amongst the trade, cod-fish. If asked the price of fish would understand codfish to be thereby intended, and none other. Flour sold payable in fish means payable in cod-fish and none other.
Cross-examined.—Thinks he has given an order to insure, using the words “ fish, salmon and herrings.” Nine times out of ten in writing the term fish I should not pen the word cod-fish.
No witnesses were produced on behalf of the defendant.
The Chief Justice in charging the Jury thus expressed himself—This is a question entirely for you to decide, and your duty is simply to ascertain what is the precise meaning of the word fish. The underwriters agree to allow average when the loss does not exceed ten per cent., except in certain excepted articles. Does the pickled salmon fall within the items enumerated in the exception ? A very eminent writer on the law of insurance (Parke on Marine Insurance) says there are certain excepted articles, for partial loss of which the underwriters will not hold themselves liable, but only for general average. Is pickled salmon included or excluded from the exception ? because if salmon
be not contained, according to the usage here, in the generic term fish, your verdict ought to be for the plaintiff. The same question, namely the peculiar meaning of certain words in particular localities has frequently arisen in England. As for instance, rice has been decided not to be corn within the meaning of the usual memorandum of a Policy of Insurance. On the other hand corn was declared to include peas and beans. According to the doctrine laid down in another case malt is corn. And the question whether the word “ month ” is to be considered calendar or lunar, has been mooted—so then in this case what did both parties understand by the word fish when they used it in their contract ? If the evidence of the invariable meaning of the word fish satisfies you, you cannot have a doubt as to your verdict. The news-papers on every occasion that my attention has been called to them, always advertise for sale so many quintals fish, never cod-fish. ’Tis for you to decide if that invariable usage was carried into the contract between the plaintiff and defendant.
Verdict for the plaintiff—Thirteen shillings sterling.