Summary
Error to the Circuit Court for the Southern District of New-York.
This was an action of assumpsit upon a policy of insurance subscribed by the defendants on the 8th September, 1819, whereby they insured the ship Holofem, belonging to the plaintiff, and valued at $6,125, on a voyage from Wiscasset in Maine to Havana in the West Indies. The policy contained the following clause:
“ And lastly, it is agreed, that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten, then the assurers shall not be bound to pay their subscription on this policy.”
A special verdict was found by the-jury, stating that the ship Holofem was the property of the plaintiff, and sailed on the voyage, insured, on the 9th September, 1819, and in the course of the voyage she met with violent gales, in consequence of which she sprung aleak, and after attempting,In vain, to pursue her voyage, was compelled to bear away for New-Providence, and arrived in the harbour she grounded,. from an insufficient depth of water, but was got and a regular survey was had upon her by surveyors appointed by the Vice Admiralty Court at said Nassau, and upon such survey the said ship was condemned in the manner stated in the sentence of condemnation, of which the following is a copy:
Bahama Islands, } IN THE INSTANCE COURT OF VICE New-Frovidence. $ ADMIRALTY. SHIP HOLOFERN, JOHN S. THOMPSON, MASTER. In the name of God, Amen-!
L. S. At a Court of Vice Admiralty held the twenty-sixth day of October, one thousand eight hundred and nineteen, before me,' the Worshipful Theodore George Alexander, Esquire, Judge and Commissary of the said Court, John S. Thompson, the master of the American ship Holofern, by William Kerr and Henry M. Williams, his Proctor in that behalf duly appointed, came into Court, and alleged, that on the twentieth day of this instant month of October, he did exhibit a libel or information against the said ship, when be gave the Court to understand and be informed, that on the eighth day of October instant, the said John S. Thompson, by his Proctor aforesaid, did make humble petition to the Court, stating.; that on the ninth day of September last past, he sailed in and with the said ship from Wiscasset, in the State of Massachusetts, bound on a voyage to Havana, in the island of Cuba, with a cargo of lumber, spars, oars, anchors, and coals, and on the eighteenth day of the same month, in latitude 28° 39 , by observation, he experienced a very violent gale of of wind, during which the said ship sprung aleak : that all hands were, in consequence thereof, employed at the pumps until the twenty -fourth of the same month, when he had proceeded on his voyage as far as the Bahama Bank : that at that time the people, being nearly exhausted by incessant labour at the pumps, they insisted on bearing up for New-Providence, which he thought it prudent to do as the wind was then westerly, and a-head for the Havana : that he accordingly proceeded for New-Providence with the said ship, and arrived in the harbour of Nassau on the twenty -sixth day of the said month of September : that since the arrival of the said ship in the said port, a part of her cargo had been landed, and, upon his inspecting and examining into her condition, he conceived her not only unfit to proceed to sea again in her present s' ate, but altogether unworthy of being repaired. Anc he therefore prayed that a warrant might forthwith issue out of this honourable Court, according to law and the usage and practice of the-said Court in such cases, to cause the said ship to.be surveyed and examined by persons duly competent in that behalf, who might report as to the true state and condition of the said ship. And. thereupon a warrant did issue accordingly, directed to William Gibson and John Russell, of the-island of New-Providence, shipwrights, and Samuel Clutsam, of the same aplace, late a master mariner, who did certify, on the nineteenth day of October instant, on oath, That on the eighth day of October instant they repaired on board the said American ship Holofern, John S. Thompson, master, riding at anchor in the harbour of Nassau, but not finding the said ship more than half discharged, they could not then properly proceed to examine into her state and condition. And they did further certify, that on the sixteenth day of October instant, the said ship being then nearly discharged, they were enabled to inspect and examine into her state and condition, and having done so minutely and diligently, they found her to be in a very leaky state, and having at the same time caused a part of her in^ side ceiling to be stripped off, they discovered the said ship to be in a very decayed condition. And they did further certify, that they were of opinion, that the said ship was altogether unworthy of being repaired, and that she ought to be condemned as being unsafe and unfit ever to goto sea again.
Wherefore the said William Kerr and Henry M. Williams, as the lawful Proctor aforesaid, prayed me, the Worshipful Theodore George Alexander, Esquire, Judge and Commissary as aforesaid, that right and justice might be duly administéred to them and their party in the premises; that the said ship Holoférn might, by the decree of this honourable Court, be condemned as unfit for further service, and together with boats, tackle, apparel, and furniture, be ordered to be sold by the Marshal of this Court, and the proceeds thereof might be paid to the said John S. Thompson, or his agent, for the use of the owners and proprietors and insurers thereof, and that such other proceedings might be had and done in the premises as should be agreeable to law, and the style and practice of the Admiralty. And whereas, the usual and proper monition hath been issued and returned in this cause, and no person having appeared . to show cause why the said ship should not be condemned agreeable to the prayer of the said master, therefore, 1, the said Theodore George Alexander, Esquire, Judge and Commissary as aforesaid, having considered the whole proceedings had and done before me in this cause, do hereby adjudge, pronounce, and declare the said ship unfit for the further service, and as such do condemn the said ship, and. direct that the same, together with her boats, tackle, apparel, and furniture, be forthwith sold by the Marshal of the said Court, and the proceeds paid to the said John S. Thompson, or his agents, for and upon account and use of the owner, proprietors, and insurers, thereof. In testimony wher.eof, I, the, said Theodore George
Alexander, Esquire, Judge and Commissary as aforesaid, have hereunto set my hand and caused the seal of the said Court to be affixed, at Nassau, the twenty-sixth day of October, in the year of our Lord one thousand eight hundred and nineteen.
(Signed.) TI-IEO. G. ALEXANDER, J. C. V. A*
Bahama Islands, ) W THE VICE ADMIRALTY INSTANCE Hem'-Providence. Í COURT.
In the case of the American ship Holofern, John S. Thompson, master, I certify the foregoing paper writing to be a true copy of the Decree made and given in the above cause.
In testimony whereof, I have hereunto set my hand, and caused the seal of the said Court to be affixed, this seventeenth day of July, in the year of our Lord one thousand eight hundred and twenty. ALEXANDER M, EDWARDS, Dep. Reg. C. V. A *- ®
The special verdict also found, that the.said con- . demnation was obtained through the agency of John and George K. Storr, a mercantile house at NeW-Providence, to whom the Holofern was consigned by her captain, and that the said John and George K. Storr, (though ignorant of the insurance in this case,) were the general agents of the defendants to manage their concerns at New-Providence.
The special verdict further stated, that in consequence of this condemnation the ship was sold, and the voyage lost: that the plaintiff exhibited to the defendants the requisite preliminary proofs of interest and loss, more than thirty days before bringing the action.
That the said ship was seaworthy at the time of the commencement of the said risk, and when she sailed upon the voyage insured; and assessed the plaintiff’s damages, in case he was entitled to recover, at.$6,625 20.
The record also contained a bill of exceptions, by which it appeared, that the plaintiff produced a copy of the record of the said Vice Admiralty Court, as preliminary proof of loss, and the judge charged the jury that the said copy of the said sentence of condemnation having been produced in evidence by the counsel for the plaintiff, as preliminary proof of loss, was, as against the plaintiff, sufficient evidence of a regular survey,, in the absence of any proof to the contrary: — to which opinion the plaintiff’s counsel . j excepted.
]t further appeared, that the said Admiralty proceedings at New-Providence were conducted under the directions of Messrs. John and George K. Storrs, a mercantile firm of that place, under whose charge the captain had placed the Holofern. The Messrs. Storrs were authorized by a general power of attorney, set cut in the bill of exceptions, to attend to the interests of the defendants at New-Providence, but there was no evidence that they were apprised that the defendants had insured the Holofern.
The counsel for. the plaintiff, for the purpose of proving that the said condemnation had been fraudulently obtained, inquired of the captain of the Holofern, who was a witnesá in the cause, whether he ever made the statement represented by the said sentence of condemnation, to have been made in his petition to the said Court, to wit, that he conceived that the Holofern was not only incapable to proceed to sea in her then state, but altogether unworthy of being repaired ? This question was overruled by the judge.
The same witness was then asked, by the plain- . tiff’s counsel, whether the inside ceiling of the said ship was ever stripped off, as stated, in the said sentence of condemnation, and whether she was not in such a situation, by reason of the position of such parts of her cargo and ballast as remained on board, and of the water in the hold, that it could not have been stripped off as there stated ? This question was in like manner overruled.
The witness was then asked, whether he had not been informed by Gibson, one of the surveyors, that the Holofern was not condemned on account of her being rotten, but because she could not be hove down to be repáred, for want of conveniences for that purpose at New-Providence ? This question. was also overruled.
The same witness was then asked, Whether he did not, by directions from the Messrs. Storrs, after the sale of the ship and cargo, (at which sale the witness was not present,) call upon the said Gibson, as having purchased part of the said cargo at auction, for the price thereof, and receive the same ? The judge haying ascertained, by inquiry of the plaintiff’s counsel, that they had been in possession of the account sales of the said cargo, signed by the Messrs. Storrs, but that the same had been sent to Maine, to recover a loss upon a policy on the cargo subscribed there, overruled the said question.
The plaintiff’s counsel excepted to the several decisions overruling the said questions.
The clause m question has always been considered, both in arguments at the bar, and in the decision of the Courts, not as varying the reciprocal rights and •7 J ® r ° duties of the parties, but simply as a stipulation in reia£on †0 evidence; nothing farther is required of the insured than to furnish a competent vessel: at the inception of the voyage, and all subsequent accidents and losses are at the risk of the insurer, and of consequence, it was held in the case cited, that a report of surveyors in regard to the state of the ship on the 16th of October, was not compepetent, or if competent, not conclusive evidence of her condition, on the 9th September precéding. It had been suggested, that , the decision in the Marine Insurance Company v. Wilson was founded on the particular state of the pleadings; but there was no'intimation in that casé, that 'the defence .would have been available in any other form, and the case was decided for the plaintiff on the ground .that it did not appear by the record that any. evidence was offered to prove the vessel unsound on the 24th October, except the report of. the surveyors, which was. made on the 26th November, arid that there was no.pavol testimony to explain the report, or apply it to the time of the .commencement of the risk.
2. It is necessary for the protection of the insúreys, that it should appear by the survey, that the rottenness of the ship was the exclusive cause of her condemnation. Such is the clear result of all the cases.a
Now here it does not appear that the ship w.as irreparable from unsoundness solely. On the contrary, it appears by the special verdict, that she “ met with violent gales, m consequence of Mch she sprang a leak.” The Folofern is stated by the survey to have been in a leaky state ; the cause of that leakiness is not stated, but it is to be referred to the leak sprung in consequence of the perils insured against. The rule has been laid down more strongly than we contend for. “ Springing a leak is a peril insured against, and any accident which can be traced to th e springing of a leak, in a calm or in a storm, and after a long or short absence from port.”a
The condemnation proceeded as well on the ground of the leakiness of the vessel, as of her decayed condition ; and it is sufficient for the plaintiff, if it appear that the leakiness was not, of necessity, to be-solely ascribed to the decay. In this case, the language of the record may fairly be considered as amounting to no more than this : “ By the extraordinary violence of the gale, the ship was so sprung, and started in her timbers and planks, as to be in a very leaky state, and to require a thorough répair to be made tight. She was decayed, as all ships are, and not so sound a vessel as to render extensive repairs expedient.”
It appears, from the whole record, that there was no proof that a regular survey had been had on the shiP*
The bill of exceptions is part of the record; and if necessary, the special verdict may be amended by it. a generaj rllie} aj¡ errors and defects may be amended when there is any thing by which the amendment can be made. The provision for amendments made by the law of the United States, is much more liberal than any of the English statutes of Jeoffails.a The practice of amending verdicts is familiar. It is often done from the notes of the judge, at the term subsequent to the trial, and such notes are certainly much less authentic than a bill of exceptions, settled at the time, and sealed by the judge as making part of the record.
Although the fact of a survey having been had. on the Holofern, is directly stated in the special verdict ; we have a right, therefore, to resort to the bill of exceptions, to see upon what evidence the fact is so stated.
It is obvious to remark a very striking difference between this case and every other to be found in the books, in which the application of this clause in a policy of insurance, was brought in question. In every other case the survey itself, or an authenticated copy, was produced in evidence, and is set out in the case. Here no survey was produced ; no copy proved, nor even an extract given from the survey. What the survey was, or whether it ever had any existence as a written document, does not appear. All the evidence we have of it, is an account or summary, (and probably an imperfect one,) which is contained in the rece d of the Vice Admiralty Court, and it is apparent from this record, that the words of the surveyors are not given. If there ever, was any paper in writing signed by the surveyors, it has been wholly re-rriodelled. All the tenses of the verbs are changed.
The defendants should have produced the survey itself, or, at least, have distinctly and unequivocally required the plaintiff to produce it. They did neither.
Upon what evidence then do the defendants rely to substantiate the fact in question ? Solely on the record of the Court of Vice Admiralty at New-Providence.
It is first to be observed that the clause in question in theNew-York policies (of which this isone) differs in one respect from the correspondent clause in the policies of the cities south ofNew-York, upon which adjudications have been had. In the southern policies, the phraseology is such as might seem to point to judicial proceedings ; here the words are, “ if the above vessel upon a regular survey should be thereby declared, he. distinctly placing the bar on the survey alone.
The great question between the parties is, whether the decree in the Vice Admiralty Court is conclusive evidence of a regular survey; for if not conclusive, the verdict in our favour will entitle us to judgment.
It will scarcely be pretended, that independently of the stipulation in the policy, the record of the Vice Admiralty Court, or even the survey itself, however au~ thenticated, would be conclusive evidence, or any evidence of the unseaworthines-s of the vessel.
It has been settled too often, and upon too solid ' . , ; •. . , , • , grounds, that admiralty surveys, and the decrees of Courts thereon, are ex.parte proceedings, and wholly inadmissible .as evidence between the insurer and insured, to make it necessary to do any thing more than refer to the authorities.a
The precise reason for introducing the clause in question into the policy, was because these surveys were not evidence antecedently, it is evident, therefore, that if the record in question have any validity, either as evidence of a survey or otherwise, such validity must be acquired wholly from the stipulation in the policywithout which the survey itself, and the adjudication of the Court thereon (however efficacious as a foundation of title in a bona fide purchaser) would, as between the parties to this suit, be mere nullities.
What then is the stipulation which is now pressed against us ? If we allow it all the effect contended for on the other side, it is no more than this — a regular survey shall be taken as conclusive proof of unseaworthiness. The stipulation regards thejfac^not the manner in which it is to be proved- — there is no stipulation as to evidence.
The just construction of the contract requires that there should be a written survey, under the hands of the surveyor. As has been observed, such a survey did exist, and was proved in everv case reported in the books. Now, we insist that our stipulation, which merely makes this document evidence, does hot in any degree dispense with the ordinary and regular proof of the existence arid conterits of the document itself. The record of the V.,A. Court was hot competent to establish this document, and, as before observed, it does not even attempt to do it.
If the record be conclusive evidence of the fact and contents of the survey, it must be for one of two reasons.
1. Because it was produced by the plaintiff — or, 2. By its own. efficacy.
1st. The plaintiff was bound, by a provision in the policy, to produce to the defendant preliminary proof' Of loss, thirty days before the commencement of the suit, and it was necessary to show on the trial, that he had exhibited this evidence to the defendant.
In point of fact, the decree of condemnation in the Y. A. Court of New-Providence occasioned, or rather consummated that loss, and, therefore, the plaintiff produced a copy of that decree. His having done so furnishes no reason why the recitals in that decree should be evidence against him, much less why they should be received as-incontrovertible; and the hardship of such a rule is the greater in a case like the present, where the plaintiff was required to pro~duce the evidence. A protest of the master is usually produced among the preliminary proof, but it was never supposed that the insured was conclusively bound by all the allegations the captain might choose to insert in it. On the contrary, it has been held to afford no legal evidence.a
The general rule is, that a document coming from the possession of a party is evidence against him, only where he claims under it, and then it is subject to explanation. Here we claim in opposition to it.
It may still be urged that the plaintiff was bound to produce the survey. If it were necessary, we should .wholly deny this position. The policy imposes no such obligation on the insured, but simply to produce to the underwriters “ proof of interest and loss” In every other respect the parties contest upon the usual principle, viz. that each produces the evidence in his own favour. Both parties so understood their reciprocal rights and duties. The defendants required the production, not of the survey, but of the decree of condemnation. The plaintiff furnished the document as the decree of condemnation, and nothing else. We say, then, as Lord Kenyon justly observed in a similar caseb the record of the Court of V. A. proves the fact of the condemnation, and proves nothing else.
It is a rule properly and fully settled that the underwriters can make no objection to the preliminary proofs at the trial, except such as they made at the time they were exhibited. The insured is only hround to produce what is Specially requiredc The special verdict in this case finds that the plaintiff, on the defendants’ requisition, produced the copy of the decree of the V. A. Court, t£ whereupon the defendants required no further preliminary proof, but refused to pay on the ground of unSeaworthiness.” Agreeably to the spirit of the rule, they ought now to be held to the ground then taken.
Again : this objection, viz. that we were bound to produce the survey, assumes a very important fact,which we by no means admit, viz. that there is or ever was a written document signed by the surveyors, which could be produced. This throws us back to the great and only question in this part of the cause, viz.' vdiether the record of the V. A Court is conclusive evidence.
But we contend, that independently of its production by the plaintiff, the sentence o ’ the Y. A. Court has not, by virtue of the stipulation of the parties, or its own efficacy, any such conclusive effect as is contended for by the defendants.
It may be said that the necessary effect of the clause is to refer the parties to the municipal regulations of any port where the vessel may happen to be in distress, for there the survey must be had. We admit this in its fullest extent. The foreign Court is to order the survey, appoint the surveyors, and the proceedings are all to be conducted according to the local regulations. But this is all. The parties here made no stipulation as to the mies of evidence, upon which the cause is to be tried here. It is universally true that the evidence is to be given according to the lex fori. We consented that the V. A. Court of New-Providence might order the survey; but then we were to be bound by the survey ftself, produced in Court here, dr a copy duly proved according to out rules of evidence, and not by a partial garbled statement of that survey which the register or other officer of that Court might choose to make.
The Court below erred in overruling the several questions put to the witness Thompson. The petition was the foundation of the jurisdiction of the Court.. The decree of a prize Court (a much stronger case) has been held void for want of a libel, as without it there could be no jurisdiction.a Suppose in this case there had been no petition, then the acts of the Court wrould have been wholly founded on the assent of the party.
The answer of the witness to the second question overruled by the judge, might have shown, not merely crassam negligentiam in the surveyors, but direct fraud and falsehood.
The third question is precisely similar to one W’hich was considered proper by the Supreme Court of the State of New-York.b The Court there says, “ the evidence of the declaration of Rogers (one of the surveyors) was admissible, because, though the plaintiff offered the survey as preliminary proof, yet the defendants offered it as proof in chief, and the plaintiff had a right to show the contradictory declarations of Rogers as a witness for the defendant.”
The object of the last question was to show that the conduct, of one of the surveyors proceeded from interested motives, and thus to render more probable . the fraudulent intent imputed to him. It was overruled on the ground that better evidence might have * ° been produced. But the account sales, which is a commercial document, only admissible by a relaxation of the rules of evidence in regard to foreign transactions, was not so good evidence, as the res gesta, which-he offered to prove. The witness, it is true, was not present at the sale, but he offered to prove the fact of his recovering payment from the surveyor, asa purchaser of part of the cargo.
The rule is universal, that fraud may be proved, and when proved, will vitiate all proceedings. It must be proved directly, when the party injured by it has á direct opportunity ; and, therefore, in the ordinary case of misconduct of jurors or arbitrators, the party must move to set aside the verdict or award. Butthis rule does not hold where.the person injured was not a party to the proceedings, and of course had no such opportunity. Whatever objections a party to the proceedings might take at the,time, a third person may take at any time, when the proceedings are made to bear against him. But it may be said, that the captain was our agent, and the proceedings were at his instance. This begs the question ; for if the loss were such as tb authorize the abandonment, then the captain by relation was the agent of the underwriters. Besides, the Messrs. Storrs were the agents of the defendants, Their interference in the proceedings is liable to strict scrutiny, and any impropriety ought to invalidate proceedings conducted under their direction, even though it were shown, (as it is not) that the Captain connived with them.
The case most analogous to this in common law proceedings, is that of a jury of view. Now, suppose it was shewn that such a jury never went on the land in question, would not their verdict ha e been set aside ? The evidence he offered was equivalent to this. It was not necessary for us to show any agency of the defendants in the alleged misconduct of the surveyors. The evidence of fraud is necessarily circumstantial. It was enough that they sought to profit by it.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
