Brown v. Girard

1 Binn. 40 | Pa. | 1803

Shippen C. J.

delivered the opinion of the court.

The question is whether the captain’s protest made in the port of Philadelphia, (where both insurer and insured resided) on a voyage from Edenton to the West Indies, can be given in evidence ? The protest of the master of a vessel was first ruled to be evidence in the case of Nixon v. Harper v. Long, in 1762. On every occasion since, both before and since the revolution, as between insurer and insured such protests have been admitted in evidence. But it is objected that the protest was not made in cl foreign port, but in a port where the parties resided. I take it that the reason of ever admitting it arose partly from its being an instrument which the insurance offices always expect to be produced to them, as a document to prove the loss, •and partly from the necessity of the case as a commercial transaction. What is the nature of this necessity? I take it that the. loss or damage arises on the ocean, and that the master is the, only persqH acquainted with all the facts; and he immediately 011 comlng to shore making a protest, it is admitted to be read in evidence in a commercial case, contrary to the general rules of law in other cases. Whether the parties reside here or elsewhere, this necessity is the same, as the damage was at sea, and the master is the best able to give an account of it. The calling the insurers before the notary when the protest is made, to give them an opportunity of cross-examination, would be a novel proceeding, and if done, would not by the rules of law make it better evidence, as no action then depended. Therefore let the nonsuit be set aside.

Nonsuit set aside.