Coffin v. Newburyport Marine Insurance

An)' unnecessary delay during the course of a voyage, whether at sea or m port, amounts to a deviation. Under an insurance “to one or more ports heyond the Cape of Good Hope, one or more times, for the purpose of disposing of the outward cargo, and procuring a return cargo at and from them to her port of discharge in the U. S., with liberty to touch and trade,” &c., a voyage from the Isle of France to the Cape of Good Hope, and back to the Isle of France, was not protected. On a voyage insured as above, cotton was purchased at the Cape, with inten tian to sell the same at the Isle of F-ance, to which place it was carried; while there, the agent for the insured determined to bring it to the U. 8., and for that purpose it was repacked and invoiced at its value at the Isle of Frunce, which was higher than its cost at the Cape; and being captured and condemned on the homeward voyage, the underwriters were held answerable for the value as invoiced.

This was an action of the case upon a policy of insurance, for a total loss by capture, and a previous partial loss by stranding. The policy was in the common form, and against the usual risks, including capture, detention, &c. It was dated March 2, 1805. By it the plaintiff was insured 15,000 dollars on the ship Eliza, G. Hartón master, and her cargo, viz., 5000 dollars on the ship, valued at 10,000 dollars, and 10,000 dollars on the cargo, from Neioburyport to one or more ports beyond the Cape of Good Hope, one or more times, for the purpose of disposing of her outward cargo, and procuring a return cargo, at and from them, or either of them, to her port of discharge in the United States of America, with liberty to touch and trade at any ports and places on her out ward and homeward passages, at 18 per cent, premium. At the trial of this action, which was had on a writ of review brought by the original defendants, before Sciuall, J., at the sittings here after November term, 1809, the plaintiff’s property, as owner of one half of the ship insured, was admitted; one David Cofin, Jun., being owner of the other half. * The ship Eliza, with a cargo belonging to the owners of the ship, and amounting to 32,154 dollars 81 cents, according to the invoice prices, (and with sundry adventures and articles on freight, to be accounted for by the owners, shipped by Moses Broivn and several other persons, upon different agreements,) sailed upon the voyage insured, and arrived in safety at (he Cape of Good Hope, and on the 24th of July, 1805, anchored in Table Bay. There, after a few articles of the outward cargo had been sold, and the master had determined to proceed to the hie of France, and was preparing for the voyage, and taking water on board, the ship, in a violent gale of wind, was driven from her moorings, and stranded. By this accident, the hull and rigging of the ship, and several articles of the outward cargo, were damaged, nud some of the cables were lost; and, in consequence of it, the whole outward lading was taken out and landed, and the ship was sent round from Table Bay to another bay of the Cape of Good Hope, called Seaman’s Bay. There sundry necessary repairs were made upon the ship, for which purpose, and by an embargo, which took place in October, and continued until the beginning of November, the ship was detained at Seaman’s Bay. During this detention, the master purchased 600 bales of Surat cotton, part of the lading of an English prize ship, captured by a French squadron. As many bales as the vessel would -hold, were put on board her while she remained at Seaman’s Bay, and with that lading she returned to Table Bay, arriving there early in November, 1805. There part of the cotton was taken out and landed, and some articles, before landed from the ship, were put on board, not exceeding in amount the sum of 6000 dollars ; and on the 23d of December, 1805, the ship, with 538 bales of the said cotton, and these articles of her original cargo, sailed for the Isle of France, where she arrived on the 29th of February, 1806. From the testimony of the master, it appeared that he had some expectation of selling the Surat cotton at the * Isle of France, and that the articles of the original cargo carried there would not, alone, have been a sufficient inducement for the voyage. At the Isle of France, the master landed and stored the cotton and other articles carried thither from the Cape of Good Hope, and had some further repairs done upon the vessel; and from his testimony, and from a letter addressed by him to his owners, dated May 21, 1806, and also from the deposition of a Mr. Hodge, it appeared that the ship, after her arrival at the Isle of France, and by the beginning of May, was put in readiness for a voyage to the Cape of Good Hope in ballast, and that the master intended to leave at the Isle of France the cotton and the articles carried thither of the original cargo of the ship, and to return from the Cape of Good Hope with such articles of his original cargo as he should find remaining unsold at the latter place; and that the master actually proceeded so far on this intended voyage as to have the ship unmoored and winded, or placed conformably to a regulation of the port, by which every ship preparing to leave the island is required to be unmoored, and to lie with her stern towards the town forty-eight hours at least previous to her sailing; that after remaining in this situation for several days, fastened only by a single hawser, with a pilot on board, having a permit to depart, and in complete readiness for sailing, waiting only for the master to come on board, the further prosecution of this voyage was prevented by intelligence of the surrender of the Cape of Good Hope to the English ; which intelligence was received about the 7th of May ; and that, before and after this intelligence, the master intended and endeavored to sell the cotton at the Isle of France, holding it at the price of 10 cents per pound; and at the time of writing the letter before referred to, expected to sell it at that price, and to purchase a return cargo, conformably to the orders received by him from his owners at Newburyport. * After the intended voyage to the Cape of Good Hope was thus interrupted, the master, not having been able to sell the cotton at a price that suited him, had it repacked and put in order for a return cargo to the United States; and having invoiced it as the property of his owners, at 10 cents per pound, put it on board the ship, and with that lading and 96 chests of tea, which he included in the same invoice, and in his bills of lading, as the property of his owners, and with 50 chests of tea, shipped for Jonathan Russell on his account and risk, and by a separate invoice and bill of lading, the ship sailed from the Isle of France on the 25th of July, 1806, homeward bound; the master having sold at auction, before he sailed, the articles of the original cargo carried to the Isle of France. On the 17th of November, 1806, on her homeward passage, the ship, with the said cargo and lading, were captured by the Melampus, a British sloop-of-war, and being carried to Bermudas, was there libelled From the, proceedings in the admiralty at Bermudas, which were read in evidence, it appeared that the master claimed the ship as the property of himself, and of the said Messrs. Coffin, owners, &c. ; that he claimed the cargo of the ship, including the said 96 chests of tea, as the property of the said Messrs. Coffin, Moses Brown, and others, all citizens of the United Slates; that the 96 chests of tea were proved, by bills of lading found concealed in the master’s pocket, and produced in evidence before the Admiralty Court, to be the property of Shillebeck &/■ Paine, French merchants residing at the Isle of France, and consigned on their account to Messrs. Perkins of Boston; that the Admiralty Court admitted the claim for the ship, and decreed her to be restored, and also admitted the claim for the 50 chests of tea shipped for J. Russell; but decreed a rejection of the claim for the 96 chests of tea, and condemned the same as enemies’ property, or otherwise ; and also rejected the claim for the rest of the cargo, and directed the same to stand over for another claim, it being doubtful * whether it had not formerly belonged to British subjects ; that the captors appealed from the sentence, as to the restoration of the ship, and the master appealed as to the condemnation of the cotton, and as to the refusal of freight for the 96 chests of tea. The ship, after an appraisement, and ponds given to account for the appraised value, being 516/. 13s. Ad. Bermudas currency, was restored to the master, and arrived at Newhuryport in September, 1807. On the 6th of December, 1806, the plaintiff, immediately after he had intelligence of the said capture, gave notice thereof to the defendants, and offered them an abandonment of the said ship insured by them, which they refused to accept; and on the 30th of September, 1807, after the arrival of the ship at Newhuryport, this offer was renewed, and the plaintiff then offered also an aban donment of the cargo as insured. There was evidence, at the trial, to show that Seaman’s Bay is a suitable place for repairing vessels, which is usually, and between the first of May and the last of September, necessarily resorted to for that purpose by vessels at Table Bay, which require repair to their hulls, &c.; and in making such'repairs in Seaman’s Bay, there are frequent interruptions and delays from swells of the sea, and the nature of the bay. During the stay of the ship at the Isle of France, it was frequently known and understood that British cruisers were about the island, and in consequence the government there refused permits of sailing to the vessels in port. Embargoes were also frequent there, and one took place in consequence of the capture'of the Cape of Good Hope by the English. The said Surat cotton, when purchased at the Cape of Good Hope, was taken for the particular account of the Messrs. Cofin, and was paid for with the proceeds of their goods, at the price of 65 rix dollars the bale ; and when the purchase was made, rix dollars were at three for one Spanish dollar; but when payment was made of two thirds * of the amount, three months after the purchase according to the bargain, rix dollars were at one and a half for a Spanish dollar. The usual price of Surat cotton, at the Isle of France, was from nine to ten cents per pound. On the part of the defendants, sundry depositions were offered, to prove that in the trial before- the Admiralty Court at Bermudas, the conduct of the master, in shipping the property of belligerents under cover of a false bill of lading, and in falsely claiming the said property as belonging to citizens of the United States, had been observed upon by the counsel, and was within the notice of that Court. But this evidence was rejected. The defendants admitted a partial loss by the stranding at the Cape of Good Hope. They resisted the demand of the plaintiff for a total loss, upon the ground, 1st, of a deviation from the voyage insured, which had taken place before the commencement of the homeward passage; 2d, of a forfeiture of neutrality, and wilful misconduct of the master and agent of the insured, which had been the causes of the condemnation of the cargo at Bermudas. And they contended, further, that, if liable, the cargo of cotton, on board at the time of the capture, was to be estimated at the original cost thereof at the Cape of Good Hope, and not at the assumed price and value when shipped at the Isle of France. The directions of the judge to the jury were, that neither the going to Seaman’s Bay for repairs, if that was a place suitable and necessarily resorted to for the purpose ; nor the lading there of a cargo of cotton ; nor the alteration in the lading made after the return to Table Bay; nor the proceeding, with the residue of the cotton and part of the original cargo, to the Isle of France, even if there was an intention of selling the cotton there, were to be considered as deviations from the voyage insured; — that a return to the Isle of France from the Cape of Good Hope, if the voyage for which the ship was prepared and in readiness to sail from the Isle of France, *had been prosecuted, would have been a deviation; but that, upon the facts proved, it did not appear that the vessel had actually sailed out of the course of the voyage insured; — yet that, if the preparation for that voyage had been an unreasonable delay and neglect of the voyage insured, amounting to a dereliction or suspension of it, then a deviation, or what amounted to it in legal construction, had been proved, incurring a forfeiture of the insurance and a discharge of the underwriters ; and they were not liable for any loss happening after-wards, upon the homeward passage of the ship insured ; — that, if the defendants continued liable at the time of the capture of the ship and cargo, the alleged misconduct of the master, in shipping the property of French merchants, including it in the same invoice with the cargo of the plaintiff, or covering it by a false bill of lading, or claiming it as the property of citizens of the United States, or in any thing appearing in the proceedings of the Admiralty at Bermudas, could not operate to discharge the underwriters ; unless it appeared that such misconduct of the master had been the cause of the condemnation of the cargo; and that if a total loss of the caigo was proved, the cotton on board at the time of the capture was to be estimated, as the property of the plaintiff and the other part-owner of the ship, according to the value of Surat cotton at the Me of France, when the shipment was there made of the homeward cargo. The jury found for the plaintiff upon his first count, in which he avers a total loss of the ship by the capture proved ; and also upon his second count, in which he avers a total loss of the cargo by the same capture, and a subsequent condemnation at Bermudas ; also upon the fourth and fifth counts, — the plaintiff setting forth, in the fourth count, a loss by the gale of wind and the stranding of the ship at the Cape of Good Hope, and in the fifth count, a demand for money laid out and expended ; and upon all the other counts the jury found for the defendants. The verdict upon the first and second counts was taken subject to the opinion of the Court, whether, under all the * circumstances of the case, the plaintiff was entitled to recover for a total loss of the vessel and cargo. And in the fourth and fifth counts, the damages were assessed by the consent of the parties, subject to an inquiry and award by commissioners or referees, as to the amount of the partial loss to be recovered on those counts. The defendants filed a motion for a new trial upon the report of the case by the judge, for the following reasons: — First. That the verdict was against the weight of evidence, and unsupported by any of the evidence as to one point; or else was contrary to the law as stated by the judge ; inasmuch as the judge directed the jury that, if the master of the vessel did intend to sell the cotton at the Me of France, then to proceed to the Cape, of Good Hope and return to the Me of France, and if his stay at the Me of France was prolonged in consequence, or in pursuance of that intention, this would be a deviation, and that the verdict must be for the defendants on the first and second counts ; and the counsel for the defendants apprehend that the affirmative of that proposition was proved by the whole weight of evidence relating thereto, and that this was not contradicted by any other evidence ; yet the jury" returned their verdict for the plaintiff on the first and second counts, and thereby either disregarded the direction of the judge as to the said principle of law, or else made up their verdict, in this particular, against the evidence in the cause, or without any evidence. Secondly. That the judge misdirected the jury, as the counsel for the defendants humbly apprehend, in the following particulars, viz.: — 1. In instructing the jury that the lading of the cargo of cotton on board the ship at the Cape of Good Hope, afterwards unlading a part thereof there, and carrying the residue to the Me of France for sale, was not a deviation, provided the master intended to vest the proceeds of said cotton in purchasing a return cargo. *2. After instructing the jury that if the master did intend to sell at the Isle of France the cargo which he carried thither, then to proceed to the Cape of Good Hope, and to return again to the Isle of France; and if he prosecuted that intention, that this was a deviation ; the judge further instructed the jury, that the conduct of the master at the Isle of France in unlading said cargo, preparing to sail in ballast for the Cape of Good Hope, moving the vessel from her moorings, winding her, and lying two days and more, as required by the laws, there previous to leaving that port, and all his other preparations for his departure from that place, was not a prosecution of the said intention, and did not constitute a deviation , and that none of the acts of the master at that place constituted a deviation; unless his stay there was prolonged, as above mentioned, in consequence of his said intention. 3. In instructing the jury that the value of the cotton was to be estimated according to its value at the Isle of France, and not according to its price or value at the Cape of Good Hope at the time when it was laden there, nor according to the price actually paid for it at the latter place. 4. For that it appeared, on the trial, that the master, at the Isle of France, took on board said ship 96 chests of tea, the property of French merchants resident there, made a false invoice and bill of lading there, including the said tea with the cotton, and purporting that the whole had been shipped by him for account and risk of the plaintiff and one David Coffin, Jun., both citizens of the United States, and making his affidavit to the truth thereof before the consul of the United States; and also made out at the same place a true invoice and bill of lading of said tea alone, purporting that the same had been shipped by the said French merchants on their own account and risk, and consigned to Messrs. Perkins, of Boston; that the last-mentioned invoice and bill of lading were discovered in the pocket of the master, after he was captured, and all the afore-mentioned * facts were disclosed on the trial of the cause in the Court of Vice-Admiralty at Bermudas ; that the said master, in his claim filed in said Court of Vice-Admiralty, claimed the said 96 chests of tea, and the said cotton, as all belonging to the same persons, viz., the said plaintiff and others, all citizens of the United States, and made an affidavit there in support of said claim ; in which he swore that the said tea and cotton did belong to the persons named in his claim, and that no subject of France had any property or interest therein; and the defendants offered to prove that the afore-mentioned facts were noticed and commented on by the counsel on the trial in said Admiralty Court, and that they did not pass unnoticed, or escape the observation of said Court; but the judge, on the trial of this cause, rejected said last-mentioned evidence, and instructed the jury that the afore-mentioned facts, nor any other conduct of said master, in relation to said tea .and cotton, did not destroy or prejudice the right of the plaintiff to recover as for a total loss on said vessel and cargo. 5. For that the said judge should have instructed the jury, as the counsel for the defendants humbly apprehend, that the said vessel had deviated from the voyage insured prior to the capture; and that the nature and cause of the loss by the condemnation at Bermudas were such as, by the terms of the policy, the underwriters were not accountable for ; and that the jury might presume, from the evidence in the case, that the condemnation at Bermudas was founded on the improper conduct of the master, for which the underwriters were not responsible, and of course that they might find a verdict on the first and second counts for the defendants. This motion was argued, November term, 1810, by Jackson and Banister in support of it, and by Dexter and Prescott in support of the verdict; from which term the action was continued for advisement ; and at the last November term in this county, the opinion of the Court was thus delivered by