Brown v. Neilson, 1 Cai. Cas. 525

Brown v. Neilson

1 Cai. Cas. 525 | N.Y. Sup. Ct. | 1804

The ufual paffage from Norfolk to New-York, was eftabliihed to be from five to fix or feven days ; one witnefs, a matter of a veffel, fwore, he never knew of an iuftance above 14 days; from the teftimony of two other perfons it appeared, that there had been one inftance of a fafe arrival after being 40 days out, and another after 60. On the defendarit’s part, the exiftence of a fevere tempeft, all along the New-York coaft, on the 29th of March, the day after the termination of the policy, was proved. They offered alfo, evidence, that the affured, when fully apprifed of the Cuff,

*526ftorm, effected, on the 14th of March, a policy on the cargo at 3 per cent, and another on the 18th, upon the freight at j g per cent;. This, however, the court refufed to admit. Upon thefe fafls, the judge charged, that there was not any time fixed by law after which a miffing veffel ihall be prefumed to be loft ; that if the jury thought the veffel was probably loft within the time limited by the policy, they ought, in his opinion, to find for the plaintiffs 5 that he thought the rule ought to be, if a veffel did not arrive within the moil ufual limits of the voyage ihe was profecuting, fhe ought to be prefumed to be loft, and that it would not be reafonable to calculate on the utmoft, or gfeateft limit of it; that they ought to decide, according to their judgment of the greater probability of her being loft in the firft ftorm, or in the laft.

On this the jury found for the plaintiffs, and faid, they had calculated intereft from the 5th of March.

A certificate of probable caufe for a ftay of proceedings, having been obtained by the defendants, a cafe was made on his part, in which the following points were raifed :

lft. That the judge was miftaken in ftating the rule of law, as to the prefumption of lofs from miffing veffels.

2d. That the fafls proved, were not fufficient to enable the jury to find the lifts to have been within the time for which the Almira was infured.

3d. That the infurances made by the plaintiffs on the freight and cargo of the fame veffel, after they were apprifed of thofe fafls, ihew, they did not themfelves confider them as fufficient to warrant the prefumption of lofs from the ftorm on the fifth of March, and the evidence of it, ought to have been admitted for that purpofe.

On the cafe being opened, the court drought there was no ground for ftaying proceedings, and ordered judgment for • the plaintiff according to the verdifl.