1 Johns. 241 | N.Y. Sup. Ct. | 1806
We shall adhere to that decision, unless a demurrer to evidence, or any new facts, make a difference in the case.
Whatever doubts may have once existed in England respecting an underwriter’s liability, in case of a vessel not being sea-worthy, when the risk commences, it is now well settled there, as well as in every other commercial country, of whose laws we have any knowledge, that this is an implied warranty in every contract of insurance. If it, however, turns out, that she is not so, or in other words, not in the condition to encounter the ordinary perils of the voyage proposed, the policy is without consideration, and void. Though this be the law, about which there is no dispute, it must be very difficult, in many cases, to shew the state of a vessel at the commencement of a voyage, with sufficient certainty, ■to satisfy a jury that she was sea-worthy; for it is admit-Í ted, if she be so then, it is enough, whatever may be her condition immediately after. This is purely a question of fact, and like all others, will, sometimes, admit only of circumstantial proof; if there were any evidence, now, from which a jury might have drawn this conclusion, it -must be considered as admitted by the demurrer,
' Two other witnesses depose, that they repaired the Peggy, in the summer preceding her loss in November, that- she was tight when she went out of their hands, and that they thought hersea-worthy. She was built too of very good oak timber, and was only two years old when lost; in addition to this, it is admitted by the defendants on the record, that she was sea-worthy, only three months prior to the shipwreck. If the jury, on this positive testimony of the mate, and on the circumstances of her being a young vessel, built of durable materials, of her being admitted sea-worthy only three months before her loss, and on the general presumption, that every vessel is so, until the contrary appears, might not very fairly have found for the plaintiff, I hardly know what would have justified their so doing.
In opposition to all this, it is said, she was lost the day after sailing, “ without any stress of weather, or apparent cause or accident,” and that then the fair and natural presumption is, against her being sea-worthy. Without controverting or acceding to this proposition, which must frequently bear very hard on the assured, it is not true in point of fact, that her loss cannot be ascribed to any apparent cause or accident; and if it were so, it would only throw on the insured the onus of shewing, (which, as has been stated, the jury may very fairly have thought was done,) that at the time of her departure from Turks-Is land, she was in truth, sea-worthy. But there is no occasion to have recóurse to these inferences, because the mate expressly ascribes the loss to a “ sudden springing of a leak,” Or will it be denied, that springing a leak, is a peril insured against, or in face tif the positive declaration Of another witness, who was a sea-faring man, that it may happen to the best vessel and in mild Weather. I am not prepared to push to this length, the doctrine of sea-worthiness,
Thompson, J. Spencer, J. and Tompkins, J. conchirred.
The question is, >vhether the plaintiff is entitled to recover, upon the testimony he has produced, and to which the defendants have demurred.
A verdict was taken for the plaintiff in this cause, upon the same evidence, in April 1801, and at January Term 1802, a new trial was awarded, because, the law will intend a want of sea-worthiness, when no visible or rational cause of the loss appears, or any other than some latent and inherent defect in the vessel.
The vessel when she sailed from Turk’s Island, ought to have been tight, staunch and strong, and competent to resist the ordinary action of the winds and waves, during the voyage insured. The question is, what will the law presume, when she suddenly springs a leak, within a few hours after her departure, “ without its being occasioned by storms, violent winds, currents or accidents of the sea.” I continue of the opinion given when the new trial was awarded, that the law will presume the vessel not sea-worthy; and such is the conclusion which the law draws from the testimony before us.
There is but one English decision, that relates in any material degree, tq the subject, and that is the case of the ■Mills Frigate, in. the court of exchequer. (Park 222.) In that case, there was also a demurrer to the evidence; The principal fact was, that the frigate sailed from Nevis in the West-Indies, for London on one day, and on the next, she sprung a leak by starting a plank, without any bad weather, or extraordinary swell of the sea. The
Marshall is decidedly of opinion, (p. 367, J that-where a ship is lost, or incapable of proceeding on her voyage, and this cannot be ascribed to stress of weather, or any accident in the voyage, the fair and natural presumption is, that she was not sea-worthy; and it is incumbent on the insured to show, that at the time of her departure, she was in fact sea-worthy; that it is a wholesome rule, that the insured should be held to pretty strict and cogent proof of this. If, on the other hand, it appear from the facts in the case, that the loss may be fairly attributed to sea-damage, or any other unforeseen misfortune, the onus probandi will lie on the insurers, if they allege that the ship Xvas not sea-worthy.
This opinion is supported by that of Casaregis, and by a decision of the Rota of Florence in 1726, in which it was decided, that the assured was bound to prove affirmatively, that the loss happened by one of the perils insured against, otherwise, the innavigability of the vessel from inherent defects, would be intended. (Marshall 365,) The same presumption is adopted by Valin; (Vol. 2,103,) but the French law had, in part at least, drawn a different conclusion from one of the articles of the ordinance of 1682, relating to freight, (Ord. de la Mar. tit. du fret Art. 12,) and which had nothing to do with the question of insurance. The deduction, drawn from that
I am therefore of opinion, that judgment ought to be rendered for the defendants.
Judgment for the Plaintiff.
Douglas, 119 —2. Hen. Bl. 187.
P.371. The 5th edition of Park, was published the same month. Marshall cites the case from Park, probably, from tiie earlier editions. In a noteheobserves Cp. 372) that an action on the same policy was tried in the common pleas, before Lord Camden, who directed the jury to find for the plaintiff) but on a motion for a new trial, he altered his opinion, and the court unanimously determined, that the ship not being sea worthy, the plaintiffs, however innocent, could not recov» er.