2 Sumn. 366 | U.S. Circuit Court for the District of Massachusetts | 1836
No question is now before the court, as to any loss on the ship, as far as it is allowed by the auditors, or as to any general average, both of these having been admitted or adjusted between the parties. But the auditors have disallowed certain charges, enumerated in their report, as class fifth of charges for repairs on the ship, viz. materials for deck, outside, ■stanchions, rails, wales, &c., and labor incident thereto. Upon these items the auditors, in their report, made the following remarks. (Here the judge repeated them.) Now, in this view of the matter, the counsel for the plaintiffs object to this part of the report, upon two grounds: First, that the auditors have drawn a wrong conclusion, in point of fact, from the evidence submitted to them on these charges; secondly, that, in point of law, the seaworthiness of the vessel at the commencement of the voyage is prima facie evidence, that all subsequent repairs, necessary to be made during the voyage, did arise from some extraordinary peril; and, therefore, the auditors were bound so to consider it, at least in the absence of all contradictory and controlling evidence. Unless these items of charges are allowed, there is no loss exceeding 5 per cent, on the ship; and hence arises the importance of considering them in the cause.
As to the first point, it is not now properly before ¿his court upon the report. The auditors have not reported, what the evidence was before them upon this matter; nor did the plaintiffs require them to report it specially, as they ought to have done, if they meant to bring the conclusion of the auditors under the review of the court. The report of the auditors is in the nature of a report of a master in a suit in chancery; and, when exceptions are to be taken to the latter, the evidence, which furnishes the ground of the exceptions should be required, by the party excepting, to be stated by the master; for otherwise the court will not wander at large into the evidence in order to ascertain, whether, by possibility, the master was-•wrong in his conclusion or not. Still, however, as this is a mere mistake in practice, if the court were now satisfied, that the auditors had committed a gross and palpable error in any matter of fact to the injury of the plaintiffs, I should feel it a duty to recommit the report, in order that such an error might •be corrected. But if it be a matter of fair doubt, of a conclusion upon evidence in its. own nature ambiguous and uncertain, upon which different persons, equally impartial and intelligent, might entertain different opinions; there the court will not substitute itself for the judgment of the auditors, any more than it would for the judgment of a •jury, even though it might not perhaps have originally arrived at exactly the same conclusion. It is sufficient for the court to abstain from any interference, as to a matter of fact, that it is not clearly satisfied, that there has been an unquestionable error. My opinion is, in the present case, that there is no such error.
Then, as to the point of law. I agree, that the verdict admits the seaworthiness of the ship for the voyage from Batavia to Antwerp. But, in my judgment, it furnishes no sufficient ground to say, that all repairs, which may incidentally become necessary or proper in the course of the voyage, are therefore to be attributed to the extraordinary perils insured against. It is clear, that the underwriters are never liable for losses occasioned by the mere wear and tear of a ship during a voyage. Unless it can be established, that no losses by mere wear and tear can occur during a voyage, which it may be necessary or proper to repair, consistently with the warranty of seaworthiness, there is an end of the argument I know of no such presumption of evidence, and no such principle of law. On the contrary, I have always supposed, that there may be many small repairs, necessary and proper in the course of a voyage, from mere wear and tear, the existence of which would not impair the warranty of seaworthiness. Suppose some of the timbers of a ship are decayed. and yet not to such a degree as to destroy her seaworthi
But it is said, that the defendants have precluded themselves from any inquiry of this sort, by consenting to take a verdict against ■them; for that admits, that the plaintiffs have sustained some loss; and if so, then the cnly thing for the auditors to do, was to ascertain the amount of the loss, not to ascertain the cause of the loss; for the verdict admitted that. The ease has been likened to the case of payment of money into court upon a policy, which not only admits the loss, but the cause of the loss as stated in the declaration; and for this the case of Wald-ron v. Coombe, 3 Taunt. 1C2, has been relied cn.
It appears to me, that the argument is not maintainable, either upon principle or upon authority. By consenting to take a verdict against them, subject, to the report of auditors, the defendants have done no more than admit, that the plaintiffs had some cause of action against them, and had sustained some loss or damage within the perils cf the policy. The quantum of that loss or damage is precisely what the auditors were appointed to ascertain, as substitutes for the jury. The latter, tipon the trial, would have been bound to find, not only that there was some loss, but the nature and extent of that loss. If the defendants had admitted, before the jury, that the plaintiffs were entitled to recover some loss or damage, the inquiry would still have remained, what loss, and what damage; and that could be ascertained only by ascertaining the loss and damage properly attributable to the perils of the sea. The very same duty has now devolved upon the auditors. They are to ascertain, not what loss or damage has been sustained by the plaintiffs, but what loss or damage by the perils within the policy, and for which the underwriters are properly answerable. By referring the amount to the judgment of the auditors, it could never be supposed, that the defendants intended to make themselves liable for losses or damages not within the scope of the policy.
As to the case of Waldron v. Coombe, 3 Taunt. 162, it turned upon other considerations, and does not in any manner touch this doctrine. It is admitted, that payment of money into court admits, that the plaintiff has a good cause of action to that amount upon the peril specified in the declaration. Thus, for example, the payment of 50 per cent into court upon a declaration on a policy, alleging a loss by perils of the seas, admits a loss by such perils to that amount; but not beyond it. The argument in Wald-ron v. Coombe was not, that the plaintiff, without proof, could recover beyond the 50 per cent, paid into court; for proof was offered of that But the argument for the defendant was, that the plaintiff “had not, in fact, even proved, that there had been a storm or an hour’s foul weather during the voyage.” Now, the declaration averred a loss by perils of the seas. And Lord Chief Justice Mansfield said, in answer to the argument, “The payment of money into court admits the’ storm.” He did not say, that the payment admits all the loss claimed to have been by storms. And Lawrence and Heath, Justices, added, with reference to the evidence; “No facts are laid before the court, from which we can infer, that the defendant could put himself in a better situation, if he had the advantage of a new trial.” So that the court did not touch the point now in judgment; but the verdict was confirmed upon other grounds. Nothing, indeed, is better settled than the rule, that payment of money into court admits the contract and damages only pro tanto; and if the plaintiff does not establish more at the trial, he must be non-suited, or have a verdict against him. Rucker v. Palsgrave, 1 Taunt. 419; Gutteridge v. Smith, 2 H. Bl. 374. The case of Rucker v. Palsgrave, 1 Taunt. 419. is a direct authority to this very point of payment-.of money into court for a loss upon a policy. My judgment is, therefore, with the auditors on this point; and this disposes of the partial loss on the ship; for, under these circumstances, it does not amount to 5 per cent.
We come, in the next place, to the consideration of the real and difficult question in the cause; and that is. whether, under the exception in this policy, the plaintiffs are entitled to recover for two partial losses occurring to the cargo at two different points of the return voyage, each less than 5 per cent.,
In the case of Brooks v. Oriental Ins. Co., 7 Pick. 259, which was an insurance on ship, with the usual exception of any partial loss, unless it should amount to five per cent., the supreme court of Massachusetts held, -that the meaning was, that there must be five per cent, damage from disasters happening at one time, or - in one continued gale or storm, considered by itself. And the court seem to have founded themselves mainly in this decision on the English practice, as stated by Stevens in his work on Average. Now, although questions of commercial law are generally considered, as not justly included in that branch of local law, which the courts of the United States are bound to administer, as the state courts hold it to be; yet, such is my respect for the learning and ability of
Mr. Thillips, in his excellent treatise on insurance (volume 1, c. 18, pp. 493, 494, lays it down as clear, that in practice, the doctrine is not applied to the cargo; but that successive losses in the voyage may be added to make the five per cent. His language is: “The amount of damage'upon goods is usually ascertained at the port of delivery; and no distinction can ordinarily be made in regard to the damage occasioned at different periods. If the whole damage exceeds the rate per, cent of the exception, the insurers are considered to be liable. It would, in general, be impracticable to distinguish damage to goods by the same peril, as perils by the seas, for instance, at different times.” I agree to this reasoning; and it seems to me, in general, equally applicable to the ship. No one will pretend in regard to the ship, that if the degree of damage, done at any time to the ship, can be ascertained, one rule shall prevail; and if it cannot be, that a different rule shall prevail as to the ship. That would be, to make the rule depend upon the proof, and not the proof upon the rule. It would be to make the underwriters liable for successive losses on the ship during the voyage, where you could not ascertain the precise amount each time, or in each gale; and not liable, where each admitted of a distinct valuation, though the aggregate of the latter might be treble the former. Mr. Phillips, also, states a distinction between successive losses by .the same peril in the same voyage, and successive losses by different perils in the same voyage. With that distinction, I do not now intermeddle; for it is not before the court. All I can say is, that it is not pointed at by the words of the exception, however reasonable it may be. But the question as to the ship has recently undergone a solemn adjudication in England. I allude to the case of Blackett v. Royal Exchange Assur. Co., 2 Cromp. & J. 244, where the court of exchequer held, that, under the usual -words of the memorandum in English policies, “free from average under three per cent.,” successive losses on the ship, at different periods of the voyage might be added, to make up the amount Lord Lyndhurst, in delivering the opinion of the court, put the case upon a general ground in the exposition of all instruments, and very properly applied to policies, that words of exception in an instrument are to be taken (if doubtful) most strongly against the party, for whose benefit they are introduced (Earl of Cardigan v. Amitage, 2 Barn.
Upon the whole, my opinion is, that successive losses on cargo during the voyage, amounting in the aggregate to more than five per cent., are to be borne by the underwriters, and are not within the scope of the exception. The plaintiffs are accordingly entitled to judgment, in conformity to the auditors’ report for these partial losses on the cargo. And. upon the principles already stated, they are not entitled to any partial loss on the ship, the aggregate not amounting to five per cent