1 Cai. Cas. 196 | N.Y. Sup. Ct. | 1803
Before it can be - known whether the case which was argued on a former occasion is not the
Hamilton on the, same side. It is objected that the testimony, which goes to controvert the conclusion of the jury as to the cause of damage, is only hearsay. It will be well worth while to consider by whom it was adduced. It was by a clefk of Le Roy & co. sent by them as an agent, who related what their other agent, the captain, had said 5 he himself did not testify. This therefore was the declaration of their own agent, produced by themselves, and certainly from them at leasts entitled to credit. He says, the damage wasprincipally owing to the cutting away the mast j the inference therefore is, it was not wholly. The two ideas are not convertible, the one into the other. They are con»
Harrison in reply. The former decision in a case acknowledged to be under this policy is greatly insisted on. Did this not essentially differ, the court would not now be addressed. When that was considered, the point now in contest, as to a total loss never arose. The question then raised was, whether an abandonment could be made under circumstances very different than those which now present themselves? Here tire aft was justified, from the local situation of the subject. There the ground'lvas that being-injured to more than half the value, the party was entitled to abandon. The court must recolleót that in Le Roy, v. Governeur, the plaintiffs could not give in evidence the time when the abandonment was made, they only being able
The principle now contended for is, that whatever the cargo may be, or its situation the right to abandon, turns the loss on the insurer, and this point is not the one decided by the court.
The former consideration was, whether a deterioration, to more than half the value, authorised an abandonment ? The consideration then turned on the distinction between the laws of England and France on that right. On this point both parties are agreed. But one question now is, whether this case ought to be sent back for examination to another jury? They were not to be bound by the relation of hearsay causes, said to have been acknowledged by the captain and others. They had faCts before them, and from them they were justified in attributing the damage to either one cause or the other. Are there not faCts in the case from whence a jury might say the loss arose from the jettison? There is nothing from whence they could infer it an-, tecedentto the cutting away the masts. Allowing all that has been said respecting the word principally; that it means exaCtly a little more than half, the jury have decided on the credit due to it, and they have not thought it enough to outweigh the evidence of the damage, arising solely from the jettison. They find the cutting away the mast neces
Per curiam. Delivered by Kent, justice. This cause comes before the court upon a special verdiSr, which states that Le Roy, Bayard and Me. Evers, on the 10th September 1798, effeóted an insurance on goods on board the Ann and Mary from New-York to Madeira; but it was agreed by a memorandum, to the policy that salt, grain, tf all kinds, Indian meal, fruits, dry fish, and all other articles, perishable in their own nature, should be free from average unless general. That on the same day, defendant signed the said policy for 1000 dollars. That the above assurance by Le Roy and others was made ■ n account of the plaintiffs, who had an interest in the cargo to the
The questions arising upon this verdi it are, whether the plaintiff ought to recover for a total loss, or for a general average, or a particular average ? And if the plaintiff is entitled to recover as for a total loss, the jury assess their damages to 1231 dollars 54 cents. If for a general average, for the loss sustained by the injury done to the corn, then to 909 dollars 69 cents. If neither, then to 237 dollars 51 cents. And the parties agree, that, if in estimating the geneeral average, the freight of tire cargo to Madeira, ought to be estimated, and not the freight actually paid at Philadelphia only, then the ' sum is to be altered accordingly: and they also agree that if the plaintiff was not bound to look to the owner of the vessel for the proportion to be borne by the vessel and freight, then the loss is to be considered as total, if plaintiff be entitled to recover a general average.
The only evidence on the question is, whether the damage the corn sustained was wholly or in part only owing to the cutting away of the mast. Besides the fails found in the verdiil,. there was the deposition of a witness who declared that he was informed at Philadelphia, by the captain, mate :;nd crew, that the damage the corn sustained was principally in consequence of cutting away the main-mast, and another point was submitted, whether the verdidt was not in this respect, against evidence. This deposition was admitted by consent as competent evidence.
Two questions have been made upon the fadts stated in this case.
1. Whether the plaintiffs be not entitled to recover as for a total loss ?
2. If not, tiren by what rule is a general average to be liquidated.
The first point was settled by this court, in the case of Le Roy, Bayard, & Mc. Evers v. Goveneur. That case arose upon this same policy, and upon fadts substantially the same. The question was on the construótion of the
This decision was warranted and governed by the case of Cochin v. Fraser, which was a strong and unanimous determination of the court of King’s Bench, upon a case reserved on the very point in question. In that case the insurance was upon a cargo of fish from Newfoundland, to a port of discharge in Portugal, and which was Figara. On the passage the crew hove overboard part of the fish, for the general preservation of the ship and cargo, and the ship was obliged to put into Lisbon, which was upwards, of one hundred miles from her port of discharge. It was there found upon survey that the fish were rendered of no value, through sea damage, and the ship did not proceed on her voyage. The court held the insurer liable for no more than what he had paid into court as a general average on the cargo, and a particular average on the ship. Lord Mansfield observed “ that the insurer was liable only for a totallobS, and that the total loss here was the loss of the thing itself, and not anydamage however great while it exists. That in common cases 'when the voyage is obstruEled and not 'worth pursuing, it is a total loss. But the memorandum goes on the idea that the insurer is not to be liable for any damage however great.” Buller J. observed also “ that the voyage being defeated, might be very material in cases not within the memorandum.” This decision therefore goes the whole ; length of settling that, although in certain cases a total loss i mayjhShiVhatever defeats the voyage, and will authorize an | abandonment, this will not hold in the case of perishable t articles within the memorandum. The insurer there is se~ ¡cure against all damage to them, whether great1 or small j whether it defeats the voyage, or only diminishes the price .of the goods. The memorandum prevents the loss from be
I have been the more particular in explaining the former decision, and giving it my full acquiescence, from an impression which I received at the argument of this cause, that the decision was not sufficiently understood, or that it did not give all desirable satisfaction. The observation of Lord Kenyon, in die cause of M'Andrews v. Vaughan would seem also, as it stands at present without explanation, to be opposed to the rule we have adopted; for, he said the insurer was liable not only when the article was actually destroyed, but when the voyage was lost. If by this observation was meant that the insurer was held when the voyage was lost, by some cause or peril not arising from the condition of the articles in the memorandum, it is not contrary to the rule contended for; but if it is to be understood as extending to a loss of voyage, in consequence of damage, however great, to the articles in the memorandum, it is direftly contrary to the decision of Cocking v. Fraser, and cannot be received as law.
It is to be observed that it is not stated in the verdict that no other vessel could be had at New-Castle, to carry the cargo, but that the vessel in question could not there be repaired; and it is found that she was speedily repaired at Philadelphia, and was ready for the voyage, but that it was given up and deemed lost in consequence of the unmerchantable condition of the cargo, and because no other cargo of the like kind (it being Jersey flint corn) could be there obtained. This was evidently the real cause of the loss
As the plaintiff is not entitled to recover as for a total loss, the next point that arises for consideration is, whether' the plaintiff be not entitled to recover a general average, as fixed hy the ver.didl.
A question here preliminarily arises, and that is, whether the verdiit be contrary to evidence in stating, that “ the -whole of the damage sustained by the corn, -was occasioned, by, or in consequence of the cutting a-way the mast of the vessel, for the general preservation
To support this finding, the evidence was; that in cutting away the mast, it splintered off at and below the partners, and tore away a piece of cloth which was nailed to the deck and mast; and, by means of the splintering, and the removal of the cloth, vast quantities of water continued to rush into the hold of the vessel, until the stump of the mast was cut off and a new coat nailed over the same, which occupied about an hour and a half; during all which time, and for several hours afterwards, the water made a free passage over the decks, and one pump was continually going, the other having been carried away, and become totally disabled by the fall of the mast. In addition to these.' fails, there is the deposition of a witness, who heard the captain, mate, and crew say, that the damage the corn sustained, was principally in consequence of cutting away the mainmast, &c.
Upon these fails, I am not dissatisfied with the conclusion drawn by the jury. No other cause of direit injury to'the corn is found. The one stated must have essentially injured the corn. The injury was inevitable, and the cause was sufficient to have produced the -whole effeEl. I think ■ the conclusion a reasonable one. • We - are, therefore, to consider the mast as sacrificed for the general safety of the ship and cargo, and that in the act cf sacrificing the mast
The one is, whether, in the adjustment of average, the freight of the cargo to Madeira ought to have been estimated, and not the freight only paid at Philadelphia. In this case, I think the adjustment, as settled by the award, ought to stand"; for that the freight actually gained or earned in the voyage, and not what the vessel would have earned if she had gone to Madeira, ought to be the rule of contribution.
The other question is, whether the totality of the contribution due to the plaintiffs, for the loss of his corn, is recoverable in the first instance from the insurer.
I am of opinion that it is, because the loss arises wholly from a peril within the policy, and the plaintiff has a right to look for his indemnity from the person who has engaged to indemnify him from the peril. This argument appears to me to be conclusive. This will not lead to a multiplicity of suits, any more than a different rule, for if the plaintiff could recover only a contributory share from the defendant, he would be compelled to resort to the owner of the ship for the residue; and this suit over, may as well be brought by the insurer as the plaintiff, for one great objeft of insurance is, promptly to re-invest the assured with his capital, lost by the perils of the sea, and thereby enable him to continue his commercial enterprises.
In addition to this, it appears to be the English praitice for the insurer to pay, in the first instance, the adjusted ave-
Lewis, chief justice observed, he had delivered the opinion of the court in the case of Le Roy, Bayard and M‘Evers, against Governeur, on the same policy, and that as far as the present decision turned on the import of the exception, free from average unless general, when applied to the corn, he fully assented to it. That the other questions arose upon an argument between the counsel, subjoined in a note at the foot of the case, which had been omitted in copying the case delivered to him. He therefore had not considered them. He saw no objection, however, in concurring with/the adjustment as to the quantum of freight to be charged with contribution to the general average: nor with/thejprinciple that the underwriters, and not the owners and shippers, were to respond, in the first instance, to the assured for the general average receivable on the corn, if entitled to any .within the terms of the contradi of indemnity.^ But that he had great doubts on the other point, viz. Whether the injury received by the corn from the jettison j of the mast, and the consequent irruption of the sea water, could entitle it to a general average as between insurer and / insured. He was strongly inclined to think it within the spirit and meaning of the terms of the exception: the obje£t and design of which is, to avoid and shut out, between the parties to the policy, every question on the cause of injury to the corn, where it might equally arise from the perishable nature of the commodity, as from external causes. This was a case of that description, and actually involved the question, the assured intended to steer clear of. For that the evidence is, that the injury sustained by the corn was principally owing to the sea water getting in thro’ the partners, before the coat - could be replaced. That it appeared to him rather an ingenious Contrivance on the part
Livingston, justice, having been concerned in the cause, gave no opinion.
If the goods be faved from the fecond peril, they (hall contribute for an ejecting, which has faved from a firft danger, Tho’ the (hip be loft in the fesond. See 1 Lex Mcr. Amer. 230. and the authorities there.
Though eonfcquential, it would not be immediately ib,
2 Burr, 694.