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uninterrupted navigation. In some cases, like | the navigation improved, and the canal conthe Fox River, they may be so great while they structed. These objects were, however, accomlast as to prevent the use of the best instru- | plished by a private corporation chartered for mentalities for carrying on commerce, but the the purpose, which was allowed to charge tolls vital and essential point is whether the natural as a source of profit. The exaction of these navigation of the river is such that it affords a tolls created dissatisfaction outside of the State, channel for useful commerce. If this be so, the and Congress, in 1870, in response to memorials river is navigable in fact, although its navi- on the subject of the importance of these rivers gation may be encompassed with difficulties by as a channel of commerce between the States, reason of natural barriers, such as rapids and passed an Act authorizing the General Governsand-bars. ment to purchase the property, and after it was re-imbursed for advances, to reduce the tolls to the lowest point which should be ascertained to be sufficient to operate the works and keep them in repair. 16 Stat. at L. 189. Although this legislation was not needed to establish the navigability of these rivers, it shows the estimate put by Congress upon them as a medium of communication between the lakes and the Upper Mississippi.

The views that we have presented on this subject receive support from the courts of this country that have had occasion to discuss the question of what is a navigable stream.

Moore v. Sanborne, 2 Mich., 519; Brown v. Chadbourne, 31 Me., 1; People v. Canal Appraisers, 33 N. Y., 461; Morgan v. King, 35 N. Y., 459; Flanagan v. Philadelphia, 42 Pa. St., 219; Monongahela Bridge Co. v. Kirk, 46 Pa. St., 112; Cox v. State, 3 Blackf., 193; Hogg v. Zanesville Can. Co., 5 Ohio, 410; Hickok v. Hine, 23 Ohio St., 527; Jolly v. Terre Haute Bridge Co., 6 McLean, 237; Rowe v. Bridge Co., 21 Pick., 346; Ill. Packet Co. v. Peoria Bridge Co., 38 Ill., 467; Harrington v. Edwards, 17 Wis., 586.

*It results from these views that [*445 steamboats navigating the waters of the Fox River are subject to government regulation.

Decree reversed, and cause remanded for further proceedings, in conformity with this opinion.

GEORGE HEARNE, Appt.,

v.

NEW ENGLAND MUTUAL MARINE
INSURANCE COMPANY.

(See S. C., 20 Wall., 488-494.)

From what has been said, it follows that Fox River is within the rule prescribed by this court in order to determine whether a river is a navigable water of the United States. It has always been navigable in fact; and not only capa- THE ble of use, but actually used as a highway for commerce, in the only mode in which commerce could be conducted, before the navigation of the river was improved. Since this was done, the valuable trade prosecuted on the river, by Marine insurance the agency of steam, has become of national importance. And emptying, as it does, into Green Bay, it forms a continued highway for interstate commerce. The products of other States and foreign countries, which arrived at Green Bay for points in the interior, were formerly sent forward in Durham boats, and since the completion of the improvements on the river these products are reshipped in a small class of steamboats. It would be strange, indeed, if this difference in the modes of conducting commerce, 444*] both of which, at the times they were employed, were adapted to the necessities of navigation, should operate a change upon the

national character of the stream.

Before the Union was formed, and while the French were in possession of the territory, the Wisconsin and Fox Rivers constituted about the only route of trade and travel between the Upper Mississippi and the great lakes. And since the territory belonged to us, this route has been regarded of national importance. To preserve the national character of all the rivers leading into the Mississippi and St. Lawrence, and to prevent a monopoly of their waters, was the purpose of the Ordinance of 1787, declaring them to be free to the public; and so important was the provision of this ordinance deemed by Congress that it was imposed on Wisconsin as a condition of admission into the Union.

Congress, also, when the State was admitted, made to it a grant of lands, in order that the Fox and Wisconsin might be united by a canal, their navigation improved, and the rivers made in fact, what nature meant they should be, a great avenue for trade between the Mississippi and Lake Michigan. The grant was accepted,

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1. Where a vessel was insured to port in Cuba, and thence to port of advice and discharge in inserting a clause allowing the vessel to go to a Europe, a bill to reform the policy of insurance by second port in Cuba cannot be sustained, after a loss, on the sole ground of a usage that vessels making a voyage to Cuba should visit one port to discharge their cargo, and another to take a return cargo.

2. Usage is never received to contradict what is plain in a written contract, nor will this court, if it declines to reform the contract, decree the return of the premium.

3. Where the case is one of mere deviation, the

law annuls the contract as to the future, and for

feits the premium to the underwriter, and equity in such case follows the law.

[No. 51.]

Argued Nov. 3, 4, 1874. Decided Nov. 23, 1874.
APPEAL from the Circuit Court of the Unit-

ed States for the District of Massachusetts. The bill in this case was filed in the court below by the appellant, for the reformation of a certain contract of insurance. A decree of dismissal having been entered, he took an appeal to this court.

The case is fully stated by the court.

Messrs. B. R. Curtis and Walter Curtis, for appellant:

In his letter to the defendants, the appellant described the voyage for which he wished in

NOTE.-Marine insurance, deviation-see note to Columbian Ins. Co. v. Catlett, 6 L. ed. U. S. 664. Usage and custom, admissibility of in construc tion of contracts see note, 14 L. ed. U. S. 805. Not admissible to vary written contract-see note, 13 L. R. A. 440.

surance, but did not undertake to say how the policy should be expressed.

He had a right to suppose that the defendant would carefully read his letter, and notice that what was described was a voyage to and at an island and thence to Europe, and not merely a voyage to a port in an island; and also to suppose it to be acquainted with the usages of the carrying trade between Liverpool and Cuba, and with the manner in which charters in that trade are usually drawn.

Had it actually possessed this knowledge and exercised a proper degree of care and attention, it would have made the policy what we now ask that it should be made.

Instead of this, while it accepted the trust imposed upon it by the appellant, and undertook to give him a policy which should cover the risk he had described in his letter, it actually made one of a very different character, and one which he had never requested it to make, and sent it to him as and for the policy he had requested. That there might be no mistake as to what it had intended to do, it then wrote to him expressly that it had entered the insurance as requested, stating the technical form in which it had described the risk in the policy.

This he was justified in considering and did actually consider, as a representation on its part that the terms employed were the proper ones in which to express what he had asked for, and he received the policy and paid the premium in the full belief that the representation was correct, and that his charter was fully insured in accordance with his application. This mistake on his part then was caused, primarily, by the carelessness of the Company and its ignorance of facts, which, as an underwriter, it was bound to know; and second, by its express misrepresentation as to what was the legal effect of the policy issued.

Washburn v. Great Western Ins. Co., 114 Mass., 175.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Massachusetts.

The bill was filed by the appellant, to reform a contract of insurance. He claims that the policy as made out does not conform to the agreement of the parties; supplementing that agreement with the usage or custom, which he insists entered into and formed a part of it.

On the 7th of May, 1866, he made his application by letter to the Company for insurance. He said: "The bark Maria Henry is chartered to go from Liverpool to Cuba and load for Europe, via Falmouth, for orders where to discharge. Please insure $5,000 on this charter, valued at $16,000, provided you will not charge over four per cent. premium." On the 9th of that month, the Company, through its President, replied: "Your favor of the 7th is at hand. As requested we have entered $5,000 on charter of bark Maria Henry, Liverpool to port in Cuba, and thence to port of advice, and discharge in Europe at four per cent."

The policy was made out on the same day, and described the voyage as follows: "At and from Liverpool, to port in Cuba, and at and thence to port of advice and discharge in Europe." Thereafter the policy was delivered to the assured and received without objection. The vessel was loaded with coal at Liverpool, and proceeded thence to St. Iago de Cuba. There she discharged her outward cargo. She went thence to Manzanillo, another port in Cuba, where she took on board a cargo of native wood. On the 13th of September, 1866, she sailed thence for Europe, intending to go by Falmouth for orders. Upon the 18th of that month, on her homeward voyage, she was lost by perils of the sea. Due notice of the loss was given, and it is admitted to have occurred as alleged in the bill. The Company refused to Underwriters, from the very nature of their pay, upon the ground that the voyage from St. business, are presumed not only to be acquaint-Iago de Cuba to Manzanillo was a deviation ed with the course of the trade which they in- from the voyage described in the policy, and, sure, but to know accurately the meaning of therefore, put an end to the liability of the the words and phrases used in the business of assurer. insurance, and the proper terms in which to express any particular risk presented to them. No such knowledge is to be presumed on the part of the insured.

Whether this misrepresentation was or was not made with fraudulent intent, is immaterial. If made with fraudulent intent, the appellant is clearly entitled to the relief asked for. The parties did not stand upon an equality.

Mr. Henry C. Hutchins, for appellee: The fact that the defendant's President in his letter stated that he had done as requested, makes no difference, because he states precisely

what he had done. If he had misunderstood the appellant's application, the appellant was informed precisely how he did understand it, and what he had done in pursuance of it. The proof is absolute of what the mind of the defendant was; and if the mind of the appellant was not the same, then their minds never met, and no contract was made.

The acceptance of the policy by the appellant without objection, and holding it two years and then bringing an action at law upon it, amount to a ratification of the policy as made, and a waiver of any right to have it altered or reformed.

On the 7th of December, 1868, two years after the loss occurred, Hearne brought an action

at law against the Company. The court held
that he was not entitled to recover, by reason
of the deviation before stated. He failed in
the suit.
filed this bill, and prayed therein to have the
On the 16th of January, 1871, he
contract reformed so as to cover the elongated
voyage from St. Iago to Manzanillo.

The reformation of written contracts for

fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense and are well settled. Where the agreement, as reduced to writing, omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred. Kerr, Frand and Mistake, 419, 420.

The party alleging the mistake must show exactly in what it consists, and the correction

that should be made. The evidence must be | 513, see, also, 1 Duer, Ins., 266 and the cases such as to leave no reasonable doubt upon the there cited. mind of the court as to either of these points. Beaumont v. Bramley, 1 Turn. & Rus., 41; Breadalbane v. Chandos, 2 Myl. & C., 711; Fowler v. Fowler, 4 De Gex & J., 255; Sells v. Sells, 1 Drew. & Sm., 42; Lloyd v. Cocker, 19 491*] Beav., 144. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. Rooke v. Kensington, 2 K. & J., 753; Eaton v. Bennett, 34 Beav., 196. A mistake on one side may be a ground for rescinding, but not for reforming, a contract. Mortimer v. Shortall, 2 Dr. & War., 372; Sells v. Sells, supra. Where the minds of the parties have not met there is no contract, and hence none to be rectified. Bentley v. MacKay, 31 L. J. Ch., 709; Baldwin v. Mildeberger, 2 Hall., 176; Coles v. Bowne, 10 Paige, 534; Calverley v. Williams, 1 Ves., Jr., 211.

This jurisdiction is applied, where necessary and proper, to the reformation of contracts of insurance. Harris v. Ins. Co., 18 Ohio, 116; Ins. Co. v. Powell, 13 B. Mon., 311; Ins. Co. v. Crane, 16 Md., 260.

Usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract. Blackett v. Roy. Exch. Ass. Co., 2 Cromp. & J., 250; Crofts v. Marshall, 7 C. & P., 607; Phillips v. Briard, 1 Hurl. & N., 21. If the words employed have an established legal meaning, parol evidence that the parties intended to use them in a different sense will be rejected, unless if interpreted according to their legal acceptation, they would be insensible with reference to the context or the extrinsic facts. Wigram. Wills, 11, 12. If no such consequence is involved, proof of usage is wholly inadmissible to contradict or in any wise to vary their effect. Yates v. Pym, 6 Taunt., 446; Blackett v. Roy. Exch. Ass. Co., supra. In no case can it be received where it is inconsistent with, or repugnant to, the contract. Otherwise it would not explain, but contradict and change the contract which the parties have made-substituting for it another and [*493 different one, which they did not make. Holding v. Pigott, 7 Bing., 465; Clarke v. Roystone, 13 Mees. & W., 752; Trueman v. Loder, 11 Ad. & El., 589; Muncey v. Dennis, 1 Hurl. & N., 216. To establish such inconsistency, it is not necessary that it should be excluded in express terms. It is sufficient if it appear that the parties intended to be governed by what is written and not by anything else. Hutton v. Warren, 1 Mees. & W., 477; Clarke v. Roystone, supra.

Here the application was to insure on a charter "from Liverpool to Cuba, and load for Europe, via Falmouth," etc. This was indefinite as to Cuba, and may have been regarded by the Company as ambiguous. The answer was, as "requested, we have entered $5,000 on charter to port in Cuba, and thence to port of advice and discharge in Europe." The answer shows clearly two things: (1) How the Com- The principle of the admission of such testipany understood the proposition. (2) That mony, is that the court may be placed, in rethey agreed to insure according to that under-gard to the surrounding circumstances, as nearstanding, and not otherwise.

There was no mistake nor misapprehension on their part. The circumstances show there could be none.

The correspondence between the parties constituted a preliminary agreement. The answer to Hearne's proposal was plain and explicit. It admitted but of one construction. He was bound carefully to read it, and it is to be presumed he did so. In that event there was as little room for misapprehension on his part as on the part of the Company. Such a result was hardly possible. There is nothing in the evidence which tends to show that any occurred. The inference of full and correct knowledge is 492* inevitable. It is as satisfactory to the judicial mind as direct evidence to the same effect would be.

So far, the complainant's case is as weak in equity as it was at law.

But it is said there was a usage that vessels going to Cuba might visit at least two portsone for discharge and the other for reloading. It is insisted that this usage authorized the voyage to Manzanillo; that the voyage was not a deviation; that it in nowise affected the liability of the Company in equity; and that hence the contract of the parties in this particular should be reformed accordingly.

It is not necessary that the usage relied upon in cases like this should have been communicated or known to the assurers. Lord Mansfield said: "Every underwriter is presumed to be acquainted with the practice of the trade he insures, and if he does not know it, he ought to inform himself." Noble v. Kennoway, 2 Doug.,

ly as possible in the situation of the parties— the question being: what did they mean by the language they employed? 1 Greenl. Ev., sec. 295a. What is implied is as effectual as what is expressed. U. S. v. Babbit, 1 Black, 61, 17 L. ed. 96. The expression and the impli cation in this case are equally clear. It is expressed that the vessel should proceed to a port in Cuba, and thence to Europe. It is implied that she should visit no other port in Cuba. Expressum facit tacitum cessare. Under these circumstances, usage can have no application, and proof of its existence is inadmis

sible.

But the usage relied upon is not sustained by the evidence.

It appears that a large portion of the vessels, perhaps four fifths, which go laden with coal to Cuba, take on their return cargo elsewhere on the island than at the port of discharge. A few use the same port for both purposes. But the proof is also that the contract in all such cases is expressed according to the intent. There is no proof that where the policy is upon a voyage to one port and back, the vessel may proceed to another port before her return, and that by usage or otherwise, the latter voyage as well as the former shall be deemed to be within the policy.

Viewing the case in this aspect, we find nothing that would warrant the interposition of a court of equity.

We are asked, if we decline to reform the contract, to decree the return of the premium. This we cannot do. *We regard the case as [*494 one of mere deviation. It is essentially of that character. In that class of cases, the law annuls the contract as to the future, and forfeits the

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It is about fifty years since this case was de cided. It is at least doubtful whether it would now be held to be law. The practice of issuing time policies has grown up, and voyage policies are more strictly construed than formerly.

But assuming that case to be good law, it does not affect this case for two reasons:

made by the letters did not in terms cover the 1. We have seen above, that the contract vessel at Cuba, and that the cases in which it is held that "at" may be implied in relation to an intermediate port, have never extended the doctrine beyond a single port.

2. That in that case, the doctrine that "at and from" an island, covered a vessel in going from port to port in the island, was applied to the little Island of Trinidad, fifty miles long and thirty wide; and even in that case, the court placed itself upon the authority of decided cases, and expressed doubts as to what their decision would be if the case were new. Looking into the cases on which the court relied, we find that the doctrine is in terms limited to "such islands as Jamaica and Guadalupe.”

We might as well apply the doctrine of Dickey v. The Baltimore Ins. Co., 7 Cranch, 327, to

Argued Nov. 4, 1874. Decided Nov. 23, 1874. the Island of Great Britain as to the Island of

from the

Court

ed States for the District of Massachusetts. The history and facts of this case, which arose in the court below, are fully stated by the court. Messrs. John C. Dodge and H. W. Paine, for appellant:

The correspondence, until the concluding letter of plaintiff, says nothing of insurance at either Liverpool or Cuba. In that letter plaintiff asks for insurance at Liverpool, but says nothing of insurance at Cuba. A preliminary contract usually leaves more or less to be understood. Plaintiff states what he expects more fully in this letter than before, and defendant fills up the policy, fully stating the contract as it understood it. It covers the charter at Liverpool, as requested, and to port of discharge in Cuba, and at and thence to port of advice and discharge in Europe.

A policy to a port terminates on the safe arrival of the vessel at the port; a policy to a place containing several ports, terminates on the safe arrival of the vessel at the first port of destination in that place.

Camden v. Cowley, 1 W. Bl., 417; Barrass v. London Ass. Co., cited in Marsh. Ins., Shee's ed., p. 214; Leigh v. Mather, 1 Esp., 412; 2 Pars. Ins., 53, and cases cited.

There are, however, cases that hold that "from," when applied to an intermediate port in a described voyage, as distinguished from the port of departure, covers the property at the intermediate port.

Bell v. Mar. Ins. Co., 8 Serg. & R., 98; Bradley v. Nashville Ins. Co., 3 La. Ann., 708. This is undoubtedly the law; but I am safe in saying that no case can be found in which it has been held that insurance to and from a country, district or island, in which there were several distinct ports, covered the property while coasting from one of these ports to another.

The case of Dickey v. The Baltimore Ins. Co. (1813), 7 Cranch, 327, is relied upon by the plaintiff.

Cuba.

for

Messrs. B. R. Curtis and Walter Curtis,

appellee:

The policy issued does differ from the agreement, because it only insures the charter from Liverpool to and at a port of discharge in Cuba, and thence to Europe, and does not cover that charter while the vessel does what is necessarily incidental to and included in a voyage under charter made at Liverpool to carry coal "from Liverpool to Cuba;" and bring a return cargo to Europe, and does not protect her either in going to. or while at the port of loading in Cuba.

The mutual mistake was in making and accepting this policy as and for the one agreed

upon.

are

When once the contract is agreed to, whatever that contract by a just and reasonable interpretation includes, the underwriters bound to insert in the policy, and if they omit to do it the insured has a right to insist upon a perfect conformity to the original proposition and agreement. Andrews v. Essex Ins. Co., 3 Mason, 11.

Suppose the policy had been made in the very language of the letter of application, and of respondent's letter of May 8th, "Liverpool to Cuba and to Europe, via Falmouth, for orders."

We submit that the charter would then have been covered while the vessel went from Liverpool to Cuba, when at the Island of Cuba, and from that Island to Europe.

It is well settled that insurance at and from an island covers a vessel in going from port to port in that island before sailing from it.

Cruikshank v. Janson, 2 Taunt., 301; Camden v. Cowley, 1 W. Bl., 417; Bond v. Nutt, Cowp., 601; Thellusson v. Fergusson, Doug., 340; Dickey v. Baltimore Ins. Co., 7 Cranch, 327.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Massachusetts.

The controversy grew out of a contract of in

surance upon the same charter-party as the case before stated, was: We will insure "as proof Hearne against the New England Mutual In- posed by you-Europe to Cuba-at 3 per cent. surance Company, just decided. It is worth something, you know, to cover the On the 2d day of May, 1866, Hearne ap-risk at port of loading in Cuba." This is the plied by letter of that date to the appellant to language of the parties, and it is the essence of Insure $4,000 on the charter-party to the bark the correspondence. Suppose the language of Maria Henry, valued at $16,000, if you will not these sentences had been incorporated in the charge me more than three per cent. Voyage policy in this form: This Company hereby infrom Liverpool to Cuba and to Europe, via sures $4,000 upon the charter of the bark Maria Falmouth, for orders where to discharge. She Henry, as proposed by the assured, from "Euwill take her registered tonnage of coal." rope to Cuba and back to Europe, at 3 per cent. re-net"-the premium is enhanced "to cover the risk at port of loading in Cuba”—what would have been the legal result? Can it be doubted that the policy would be held to cover alike the voyage to a port of discharge in Cuba, a voyage thence, if necessary, to a port of loading in Cuba, and a voyage from the latter to

On the fourth of that month the Company plied: "We cannot write the charter of the bark Maria Henry at your rate, viz.: three per cent., including coals from Liverpool to 495] Cuba. Our rate will be four per cent. for the voyage to include coals."

On the seventh of that month Hearne answered, arguing against the rate proposed, and offered "3 per cent., or 4 per cent., 1/2 per cent.

to be returned if no loss."

Europe?. The "port of loading" is the only

one mentioned in the letter. It seems to have On the day following, the Company respond-risk is referred to as a distinct and separate been uppermost in the mind of the writer. The ed: "We will write upon the charter of the one. The implication is that the port might

bark Maria Henry as proposed by you-Europe to Cuba, and back to Europe-at 32 per cent. net. It is worth something, you know, to cover the risk at the port of loading in Cuba."

On the next day Hearne wrote: "I accept your proposition in reference to the insurance of the bark Maria Henry. Please insure $4,000 at 3 per cent. on the charter value at $16,000, at and from Liverpool to Cuba and to Europe, via a market port for orders where to discharge."

The contract, as expressed in the policy, is for "$4,000 on charter of bark Maria Henry, at and from Liverpool to port of discharge in Cuba, and at and thence to port of advice and discharge in Europe." The facts of the case are the same, in all respects, down to the close of the litigation at law between the parties inclusive, as those in Hearne v. The New England Mutual Marine Insurance Company [ante, 395] as set forth in the opinion of the court in that ease. That opinion is referred to for the particulars. Hearne, having been defeated in his action at law, filed this bill for the reformation of the contract, as stated in the policy. The circuit court decreed in his favor. The Company has brought the case here for review.

He

It is not denied that the correspondence constituted a preliminary agreement. Such, clearly, 496] was its effect. The policy was intended to put the contract in a more full and formal shape. The assured was bound to read the letters of the Company in reply to his own with care. It is to be presumed he did so. had a right to assume that the policy would accurately conform to the agreement thus made, and to rest confidently in that belief. It is not probable that he scanned the policy with the same vigilance as the letters of the Company. They intended to prevent such scrutiny, and, if it were necessary, threw him off his guard.

The principles upon which a court of equity will exercise the jurisdiction invoked by the appellee were considered in the case before referred to. What was there said need not be re

peated. In this case Hearne's proposition to the Company was to insure upon the charter, "voyage from Liverpool to Cuba, and to Europe via Falmouth." The Company's response, as

be one other than the port of unloading. The right to go to both rests upon the same founda

tion, and it is not more clear as to one than the

other. What is implied is as effectual as what is expressed. The intent of the parties, as *manifested, is the contract. Upon any [*497 other construction the important language as to "the port of loading" would be insensible and without effect. No other interpretation, we think, can reasonably be given to it.

In Dickey v. Ins. Co. 7 Cranch, 327, the policy insured the vessel upon a voyage "from New York to Barbadoes, and at and from thence to the Island of Trinidad, and at and from Trinidad back to New York." This court held that the words "at and from" protected the vessel in sailing from one port to another in Trinidad to take in a part of her cargo. Marshall, Chief Justice, said: "It is the settled doctrine of the courts of England that insurance at and from an island, such as those in the West Indies, generally insures the vessel while coasting from port to port for the purpose of the voyage insured." He refers to Bond v. Nutt, 2 Cowp., 601, and to Thellusson v. Fergusson, 1 Doug., 361. The case of Cruikshank v. Jansen, 2 Taunt., 301, is to the same effect. These authorities fully sustain the proposition laid down. We are not aware that their authority has been questioned. They show the just liberality of construction which obtains where contracts of insurance are involved.

In this controversy the clear terms of the preliminary agreement warranted the court below in overruling the departure from it, found in the policy.

We have examined the case only in the light of its own inherent facts. We have not found it necessary to consider the usage alleged to exist at Liverpool touching voyages in the trade from that port to Cuba. It seems clear to us that the judgment below does not need further support. We, therefore, forbear to remark upon that subject.

The decree of the Circuit Court is affirmed.

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