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Section 29 of chapter 118 of the Revised Laws provides that a company duly authorized to transact the business of marine insurance may
insure upon the stock or mutual plan vessels, freights, goods, money, effects, and money lent on bottomry or respondentia, against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation.
The clause in question in the policy submitted to me is similar to the usual collision clause in marine insurance, but altered to fit the case of an automobile. It provides as follows:
This policy is extended to cover, whilst not in any conveyance, the risk of loss or damage to the automobile hereby insured, caused by collision with another object, whether moving or stationary, excluding always all claims for damage through detention, demurrage or loss of use.
And it is further agreed, that if the automobile hereby insured shall come in collision with another object, whether moving or stationary, and the assured become liable to pay and shall pay, any sum or sums for damages resulting therefrom to said other object, in such case these assurers will contribute towards the payment of the total amount of said damages, in the proportion that the sum insured under this policy bears to the total valuation of the automobile, as stated herein, provided that these assurers shall not in any event be held liable under this agreement for a greater sum than the amount insured under this policy.
It is also subject to the condition that there shall be no liability for any damage resulting from collision occurring while the automobile is being operated by any person under eighteen years of age, or in any race or speed test.
On Oct. 8, 1904, the Attorney-General gave an opinion to you to the effect that automobiles might properly be insured under a marine form of policy, but he did not have before him the collision clause which is now brought in question.
Section 29 of chapter 118 of the Revised Laws was first enacted in the insurance law of 1872 (c. 375, § 1), which provided as follows:
Any ten or more persons residents of this Commonwealth, who shall have associated themselves together . . . with the intention to constitute a corporation for the purpose of transacting the business of
insurance, either upon the stock or mutual principle, against loss or damage by fire, by lightning, by tempest, or by the perils of the sea, and other perils usually insured against by marine insurance companies, including risks of inland navigation and transportation, shall become a corporation. . . subject to all the duties, liabilities and restrictions set forth in all general laws which are or may be in force relating to insurance corporations.
Prior to that time there had been in force Gen. Sts., c. 58, § 32, providing as follows:
Companies thus organized may insure vessels, freights, goods, money, effects, and money lent on bottomry or respondentia, against the perils of the sea and other perils usually insured against by marine insurance; and dwelling houses and other buildings, merchandise and other personal property, against loss by fire, according to their respective charters.
Section 65 provided that:
No life insurance company shall issue policies insuring fire or marine risks.
Thus it appears that the phrase "perils usually insured against by marine insurance" is an old one in the statute law of Massachusetts, but that the additional words, "including risks of inland navigation and transportation," were added thereto in 1872. I do not find any case in which the phrase "and other perils usually insured against by marine insurance" has been thoroughly analyzed or discussed, but in Gage v. Tirrell, 9 Allen, 299, 307, it was said as a dictum that:
Perils of the seas embrace not only inevitable accidents arising from tempests, floods, earthquakes and other dangers happening without the intervention of man, but also those caused by collisions, fires, pirates and other occurrences, to the happening of which human agency directly contributes.
Although this case indicates that perils arising from human agency may be included in the phrase "perils of the seas" when used in an insurance policy, I think that the phrase "other perils usually insured against by marine insurance," when used in the statute, must be considered as referring to the other
perils which are usually stated in marine insurance policies, as the perils from men of war, fire, enemies, pirates, rovers, thieves, jettison, letters of mart and countermart and reprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever, and barratry of the master and mariners.
The phrase "including risks of inland navigation and transportation" was probably added to make clear the right of a marine insurance company to make a policy upon goods immediately prior or subsequent to marine shipment when the transportation or situation of the goods on land could be considered as part of the marine voyage.
Marshall, in his book on marine insurance, published in 1865 (part I., chapter I., page 2), defines it as follows:
Marine insurance is that which is applied to maritime commerce, and is made for the protection of persons having an interest in ships or goods on board from the loss or damage which may happen to them from the perils of the sea during a certain voyage or a fixed period of time.
I am informed by you that it has been customary for a number of years for marine insurance companies to make policies upon property in transit over land, and having no connection with any marine voyage, and also to make policies upon the liability of common carriers to the owners of property carried by them, and upon a number of other sorts of property and liability having no reference to marine transportation.
In the absence of any judicial determination, however, I do not think that the acts of the insurance companies themselves can be used to enlarge the plain meaning of the words in the statute, which give marine companies the right to make insurance covering only the perils of the seas and other perils usually insured against by marine insurance, including risks of inland navigation and transportation.
This construction is strengthened by the fact that R. L., c. 118, § 29, expressly authorizes companies to be formed for the purpose of effecting eleven kinds of insurance other than marine, of which one is
against loss or damage to property arising from accidents to elevators, bicycles and vehicles, except rolling stock of railways.
The obvious intention of the Legislature was to provide distinct classes of insurance companies for making distinct forms of policies, and it limited the rights of each class of company by providing at the end of the section that:
No such corporation shall transact any business other than that specified in its charter or agreement of association.
I am of opinion, therefore, that marine insurance companies in Massachusetts are not authorized to issue policies insuring an automobile owner against loss and liability caused by the collision of his automobile with another object.
SAVINGS BANKS LEGAL INVESTMENTS - BONDS OF A RAIL-
A railroad company incorporated in the State of Rhode Island and Providence Plantations, under an act containing the provision, among others, that if such company fails to complete the location, lay-out and construction of its railroad on or before May 15, 1909, the charter shall be void and of no effect, which has filed its location and acquired by condemnation the land upon which to build its road, but has not otherwise complied with the conditions of its charter, and has constructed no physical railroad, is not a railroad company whose road is located wholly or in part in one of the New England States within the meaning of R. L., c. 113, § 26, cl. 3, par. b, which provides that savings banks may invest "in the first mortgage bonds of a railroad company incorporated in any of the New England states and whose road is located wholly or in part in the same."
My opinion is requested by you as to whether the Providence To the ComTerminal Company is a railroad company within the meaning Savings Banks. of R. L., c. 113, § 26, cl. 3, par. b. This section provides that April 3. savings banks may invest:
In the first mortgage bonds of a reilroad company incorporated in any of the New England states and whose road is located wholly or in part in the same, guaranteed by a railroad company described in the preceding paragraph which is in possession of and is operating its own road.
The New York, New Haven & Hartford Railroad Company is undoubtedly "a railroad described in the preceding para
graph," and in possession of and operating its own road; so that the only question is whether the Providence Terminal Company is "a railroad company incorporated in one of the New England states and whose road is located wholly or in part in the same."
The company was chartered by an act of the General Assembly of the State of Rhode Island and Providence Plantations, passed April 13, 1904, and entitled "An Act in amendment of and in addition to an act entitled 'An Act to incorporate the New York, Providence and Boston and Old Colony Railroad Terminal Company,' passed by the General Assembly at its May session, A.D. 1891."
Section 1 provides that:
The name of the New York, Providence and Boston and Old Colony Railroad Terminal Company, created by an act passed at the May session, A.D. 1891, is hereby changed to "The Providence Terminal Company."
Section 3 provides:
Said company is hereby authorized and empowered to locate, lay out, construct, maintain, and operate, by steam or other power, a railroad of one or more tracks from a connection with the tracks operated by the New York, New Haven and Hartford Railroad Company, at some point near the Union Station in the city of Providence, thence crossing over Canal street and North Main street, keeping at least fifty feet north of the northeasterly corner of North Main street and Thomas street, and at least eighty feet north of the northwesterly corner of Thomas street and Benefit street, and running easterly, by a tunnel and the approaches thereto, to a point on the westerly bank of the Seekonk river between Red Bridge and Washington Bridge, thence easterly across said Seekonk river to connections with the tracks of the Providence and Worcester Railroad Company and of the Boston and Providence Railroad Corporation, and for this purpose said company may acquire a location not exceeding one hundred feet in width between said points of connection, and as much greater width at said points of connection as may be required to make such connections by proper curves and approaches, and said company may construct, maintain, and operate a bridge of one or more tracks across said river, with a suitable draw therein not less than ninety feet in the clear, so as not unnecessarily to obstruct navigation, and subject to the approval of the secretary of war.