6 F. 562 | U.S. Circuit Court for the District of Southern New York | 1881
The plaintiffs haying obtained a verdict, the defendant now moves for a new trial, alleging error in the rulings of the court on the trial. The action is on a contract for marine insurance, evidenced by a certificate, whereby the defendant undertook to insure the plaintiffs for $3,000 on a cargo of potatoes on board the schooner Laeon “at and from Yarmouth (Nova Scotia) to New York city.” At the time the insurance was effected the vessel was at Shelburne, to which port she had put in leaking and in distress. A survey was ordered at that port, and the vessel was pronounced unseaworthy. By an arrangement between underwriters, who had insured the cargo, and the plaintiffs, the insurance was cancelled, and plaintiffs were paid $2,000. They thereupon applied for new insurance to agents of the defendant. The defendant’s agents refused to insure the cargo from Shelburne, but agreed to insure from Yarmouth, to which port the vessel was to proceed from Shelburne.
The action was defended upon the theory that the plaintiffs represented that the vessel should be repaired at Yarmouth, and no repairs were made; also upon the ground of concealment and of unseaworthiness.
It was not claimed upon the trial that there was a warranty in reference to the repairs, but that there was a promissory representation made orally, and in the application for insurance, that the vessel was “to be repaired at Yarmouth.” Evidence was given by the plaintiffs that upon the vessel’s arrival at Yarmouth a new survey was had, and it was found upon examination that no repairs were required. The court ruled that the defence of concealment could not be predicated upon the failure of the plaintiffs to disclose the fact of survey at Shelburne, or the cancellation of the previous insurance,
There was no conflict of testimony as to the terms of the representation, and no evidence of usage respecting the meaning of the language used. It was therefore the duty of the court to decide as a matter of legal construction what was the force and effect of the representation. The representation was that the vessel “was to be repaired, ” without specifying the character or extent of the repairs. Nothing had ■been stated between the parties as to what repairs should be made. In the negotiations there had been nothing mentioned regarding the condition of the ship except that she had put into Shelburne in distress, and leaking. If the particulars of her mishap had been further specified, this circumstance might have qualified and characterized the meaning of the language used. The insurers were informed in substance that the vessel was not in a seaworthy condition. This information having been given, the insurers could not rely upon the implied warranty of seaworthiness, and insisted on an assurance that she would be repaired at Yarmouth, where the risk was to commence. The plaintiffs were not
I do not understand it to be contested that if the representation was properly construed it was error to rule that there was not a breach of the representation; but if this is contended, I think the defendant cannot maintain its contention. It is not necessary to refer to the strict rules which require a warranty to be fulfilled. As to representations, more liberal rules obtain.
In De Hahn v. Hastley, 1 T. R. 343, Lord Mansfield said: “A representation may be equitably and substantially answered, but a warranty must be strictly complied with.” The two eases most frequently referred to in illustration of the rulo are Suckley v. Delafield, 2 Caine’s Rep. 222, and Pawson v. Watson, 1 Cowp. 785.
In Suckley v. Delafield, where the representation was that the ship would sail “in a few days for the West Indies, in ballast,” it was hold to mean the vessel would not be exposed to the sea perils attending a loaded ship, and was substantially performed, although the master secretly conveyed into the ship and transported a small quantity of merchandise.
In Pawson v. Watson, supra, the representation was that the ship was to sail with 12 guns and 20 men. She sailed with 10 guns and 6 swivels, and with 16 men and 7 boys. It was held that as the representation had not been departed from fraudulently, nor in a manner detrimental to the underwriter, the policy was in force.
The elementary writers are unanimous to the effect that it is sufficient if promissory representations are substantially complied with. Mr. Arnould states the doctrine thus: “When it appears reasonable to conclude, from the whole circumstances of the case, that the failure to comply with the strict terms of the representation has not substantially altered
In Duer on Ins. 702, (Lecture 14, § 36,) it is stated: “There exists, however, in regard to representations, this necessary exception: "When they cease to be material before the risk commences, by an entire alteration in the state of "things that led to their being made, and from which alone they derived their value, a compliance with their terms is no longer requisite.” In the present case it is to be assumed the jury found that after an examination at Yarmouth it was -evident no repairs were needed, and the vessel was in a fit condition to proceed upon her voyage. This being so, it would seem too plain to doubt that neither the interests of the insurers nor the fair purport of the promise required that to be done by the plaintiffs which would have been superfluous and futile.
It is also contended that the court erred in instructing the jury that the burden of proof was upon the defendant to establish the unseaworthiness of the vessel. If this instruction had been limited to that branch of the defence which was' predicated upon a breach of the implied warranty of seaworthiness, I should be disposed to adhere to it now as correct. It is everywhere conceded that in every policy of insurance on a vessel there is an implied warranty that the vessel is seaworthy, but many of the authorities declare that this warranty is a condition precedent to the obligation of insurance; and as the general rule is undoubted that the performance of a condition precedent must be pleaded and proved whenever it enters into the cause of action, the application of that rule to actions for marine insurance seems consistent, and has therefore been enforced. On the other hand, it.would seem to be the reasonable presumption of fact that a ship is seaworthy, in the absence of any circumstances
Mr. Phillips, after stating that seaworthiness is said to be presumed in divers cases, says: “Whether, however, it is to be proved in the first instance by the assured, or is to be presumed, is usually of very little practical importance, since the proof required in such case is necessarily only of a general character, and may ordinarily be readily had.” 1 Phil, on Ins. § 724. In the present case, where the testimony left the fact in grave doubt, the unsatisfactory character of this middle view is well illustrated. The burden was on the one side or the other to overcome a presumption, either of law or of fact, and the court was required to decide where the burden rested; and in a doubtful case like this the ruling might well be decisive with the jury. If the onus is shifted from the plaintiff to the defendant, when the former has given “slight and general proof” of seaworthiness, it would seem to be shifted back again when the latter has given proof which is more cogent, and thus the court would bo required to determine a question of fact upon conflicting, evidence before instructing the jury upon a question of law. It is a safer rule, because capable of a more certain application, to hold that the one party or the other has the onus of proof.
There are two eases in the federal courts which are entitled
In the present case, however, the jury were instructed that the burden of proof was upon the defendant to show unseaworthiness when it appeared that the plaintiffs had represented that the vessel should be repaired at Yarmouth, and no repairs had in fact been made. It thus appeared there
The motion for a new trial is granted.