4 Yeates 115 | Pa. | 1804
Let the protest be read and be judged of by the jury, agreeably to the uniform practice. We consider this matter very fully, on the motion for the new trial, and adhere to the opinion we then delivered. The usage is founded on the convenience of trade, and is attended with salutary effects. If the defendant’s doctrine prevails, few losses will be recovered on policies of insurance.
The protest was then read, wherein the mate and one of the seamen had joined. It appeared thereby that the schooner sailed from Edenton on the 4th June 1797, and struck heavily on Ocra-cock bar, whereby she sprung a leak which afterwards increased. The captain then bore away, and on the 8th June met a severe gale of wind, which much augmented the leak, and necessitated him to come to Philadelphia, as the next port.
The schooner was afterwards captured on the 4th August by a French privateer and carried into Port de Paix in Hispaniola, and there condemned in the admiralty on the 15th August, on the ground of illicit trade; because Cape Nichola Mole and Port au Prince, were revolted colonies from France and in a state of siege.
The defendant now rested his defence on the want of seaworthiness in the schooner, and offered in evidence a warrant from the District Court of the United States for the district of Pennsylvania, dated 22d June 1797, to two persons, to survey the vessel and make return of her state and condition; and the return made thereon.
*This was objected to, on the authority of Wright v. Bernard, Park 436, that a return of survey is no evidence ^ 11 to prove the vessel not to have been seaworthy, but merely to shew a condemnation thereon.
The defendant’s counsel insisted, that they were bound to produce the written document, as the best kind of evidence. It was a judicial proceeding under an act of congress. By the act of 8th May 1792, the clerk of the court was impowered to take the affidavits of the surveyors, relative to their reports. The record can only prove itself.
As records, the warrant and survey surely may be read. Their operation will be considered hereafter.
The reports of the surveyors, made on the 24th June, stated, that upon examination, they found the plank of the schooner much worm eaten about the stem and stern and at the stern post, and that her leaking was occasioned thereby, and not by running on Ocracock bar.
The testimony being closed on both sides, the counsel addressed the jury on the head of the seaworthiness of the schooner; and it was agreed, that if it was established, that she was not seaworthy, the policy on the goods, as well as on the vessel herself, was thereby annulled. Park 249, 263, 1st ed.
The court submitted it as a question of fact to the decision of the jury. They laid down the rule to be, that the vessel insured, must in all respects, be fit for the trade wherein she is employed ; and generally, the proof lay on the party insured ; but if it appears that the loss may be fairly imputed to sea damage, or any other unforeseen misfortune, and the underwriter means to defend himself on the ground of her not being seaworthy at the time of her departure, the burthen of the proof lies on him who sets it up as a. defence. 2 Marsh 367, 8.
The jury found a verdict for the plaintiff for $836 and 82 cents.
A motion was afterwards made for a new trial, on the ground of the verdict being against evidence; but the court denied the motion.
