# Ogden v. Ash

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OGDEN verʃus ASH.
T
SHIPPEN,Preʃident.– The policy in this cafe, is on the outward bound voyage, wherein it is warranted " that (illegible text) will be ​
1786.
(illegible text) at the Ship ƒhall not cruiƒe.’’ Whether fuch orders have, or have not, been given, is the queftion before the Court.
The orders which were given, are produced. They confift of inftructions which, in the former part, relate to the outward bound voyage, and, in the latter, to an intended cruife for two or three months, after the outward bound voyage, which was the fole object of the infurance, fhould be completed.
The inftructions with regard to the outward bound voyage, begin with an account of the cargo, to whom it is configned, and give the ufual directions in mercantile voyages, how it is to be difpofed of, and how the proceeds fhall be applied. The captain is exprefsly directed not to touch at any port to the fouthward of Philadelphia, leʃt the inʃurance ʃhould be endangered, but no mention is made of a cruiʃe, except that the goods are to be fold for the purpofe of fetting her out afterwards for a cruiʃe."
It is, however, contended, that fufficient appears on the face of the inftructions, confidering the unwarlike condition of the Veffel, and the intent of the voyage, to fhew, that, though no exprefs direction is given and to cruiʃe, yet fuch an implied direction is given, as will fatify the words of the warranty.
The general intention of the owners, to be collected from the inftructions, is fufficiently clear, that they did not mean to give the captain a power to cruiʃe. But what was the intention of the parties in making the warranty? Was it, that fuch orders fhould be given as by conftruction or inference, fhould fhew that to tbe the intention of the owners ? or, was it not, that the captain fhould be directed in exprefs terms not to cruiʃe?
If the warranty had been that no orders ʃhould be given to cruiʃe, or that be ʃhould not be impowered by his orders in cruiʃe thefe inftructions would certainly have been a compliance with the warranty ; but the warranty is not negative, that he fhould not have orders to cruife, but poʃitive that he fhould have orders not to cruiʃe. And in which ever way the warranty had been expreffed, if the captain had cruiʃed and the veffel by that means had been loft, he would have been anfwerable – So that the refponfibility of the captain, is not any rule to govern the conftruction of the policy, becaufe if he had cruifed without orders he would have been equally liable, as if he had cruifed contrary to expreʃs orders. The underwriters have ftipulated that more fhould be done, than would barely make the captain anfwerable for cruifing. What their reafons were, we can only conjecture ; he might be tempted, bu an apparent profpect of gain, to do that which he would not dare to do in the ftate of exprefs orders. It is well known, that there have been many captains who have not fcrupled to break orders, which were plain and exprefs ; but there are many more, who, when their order (illegible text) or filent, or difcretionary, have run the risk of violating the (illegible text) of them, and relied upon the generally or filences of their (illegible text) them to their owners. ​
1786.
In the prefent cafe, the condition of the Veffel did not preclude the poffibility of crufing. She mounted 16 guns, fhe had leave, by the terms of the policy, to call at Beauƒort ƒor men, fhe was intended to be a cruifing veffel after the outward bound voyage was completed, and it might not be an unreafonable fufpicion in the underwriters, that the captain, unlefs exprefsly reftrained, might be tempted to curife in the outward bound voyage. Whatever their reafons were, the underwriters had certainly a right to make it a part of their contract ; without it, they might have refufed to infure at all, or they would perhaps, have demanded a higher premium ; and therefore being ftipulated, the owners fhould have complied with it.
Thefe warranties in policies of infurance are required by law, and by the conftant ufage of merchants to be ftrictly complied with ; they are generally expreffed in a few words, but where they are plain and clear, it would be of dangerous confequence to this ufeful branch of mercantile bufinefs, to introduce a loofe conftruction of them.
We are of opinion, upon the cafe ftated, and a view of the policy and orders that the warranty has not been complied with, and that judgment fhould be given for the defendant.
Judgment for the defendant.