Vos v. Robinson

9 Johns. 192 | N.Y. Sup. Ct. | 1812

Per Curiam.

The two points raised upon this case, are,

1. That the preliminary proof was not sufficient.

2. That there was a deviation, and the vessel lost in consequence of it.

1< The protest of the captain, stating the loss, was produced to the agent of the defendant. The register, proving the plaintiffs’ interest in the vessel, was not produced, but as the underwriter made no objection to the deficiency of the preliminary proof, and placed his refusal to pay, specifically and solely on the ground of deviation, he must be deemed to have admitted the plaintiffs’ interest in the vessel, or to have waived the necessity of producing the proof of it.

2. The question on the merits is, whether going to Susua was not a deviation. The voyage insured was at and from Pori Plata, St. Domingo, to New-York; and the vessel was shipwrecked and lost in going from Port Plata to Susua. She had a permit from the government at Port Plata to go there, for her loading of mahogany, and would have been obliged to return to Port Plata for her clearance. This Susua is a bay or open road, about 4 leagues east of Port Plata, and is dangerous when certain winds blow; and it is included within the district of Port Plata, which district stretches for 100 miles along the north coast of Spanish St. Domingo. The very statement of the fact is enough to show, that sailing from Port Plata to Susua was not sailing from Port Plata to New-York, for Port Plata and the revenue district of Port Plata, are very distinct objects, and the customhouse and port of entry are confined to Port Plata proper. The perils must be very distinct, and very greatly increased between a vessel sailing from Port Plata to New-York, and from Port Plata, along that extensive and dangerous coast, which the district embraces, and then to New-York. Nothing short of a most clear and well settled and well understood usage, would be sufficient to include both objects in the simple name of Port Plata. On this point the evidence in the case is decidedly against any such usage or understanding of the trade. It would appear, from the case, that a liberty to trade on the coast included in the district,, would not be granted without an increased premium, and would require a special clause for the purpose.

The defendant is, accordingly, entitled to judgment.

Judgment for the defendant