Potter v. Ocean Ins. Co.

Case No. 11,335. Marine Insurance—General Average—Absence or Cargo—Survey at Foreign Port—Expense—Consul’s Pees—Repairs. 1. The wages, provisions, and other expenses of the voyage to a port of necessity, for the purpose of making repairs, constitute a general average. [Cited in The Star of Hope, 9 Wall. (76 U. S.) 236.] 2. It makes no difference in the application of the principle to policies of insurance, that there happens to be no cargo on hoard, so that there is, in fact, no contribution to he made by cargo or by freight; for general average does not depend upon the point, whether there are different subject-matters to contribute, but whether there is a common sacrifice for the benefit of all, who are, or may be, interested in the accomplishment of the voyage. [Cited in The Star of Hope, 9 Wall. (76 U. S.) 236; Hobson v. Lord. 92 U. S. 409.] [Cited in brief in Alexandre v. Sun Mut. Ins. Co., 51 N. Y. 257. Cited in Greeley v. Tre-mont Ins. Co., 9 Cush. 419: Orrok v. Commonwealth Ins. Co., 21 Pick. 470.] 3. Neither does it make any difference in the application of the principle, that the insurance, on which the question arises, is not for a particular voyage, hut on time. 4. If the ship is so disabled by a storm that she becomes unmanageable, and thereby her boat is lost, and the loss is properly attributable to the crippled and disabled condition of the ship by the storm, the loss is properly attributable to the storm, although the cause of it did not occur ■during the actual continuance of the storm. The rule, causa próxima non remota spectator, does not apply to such a case. [Cited in McCargo v. New Orleans Ins. Co.. 10 Rob. (La.) 202: Greene v. Pacific Ins. Co., 9 Allen, 217; Indianapolis Ins. Co. v. Mason, 11 Ind. ISO: White v. Republic & R. Ins. Co., 57 Me. 93.] 5. Where a survey is properly made at a foreign port, in order to ascertain the amount of damage and the propriety of making repairs, if the damage is a peril insured against, the underwriters are to bear the expense of the survey.' 6. A survey need not be. though it commonly is. ordered by a court of admiralty. It may be directed by an American consul, as, by usage, a part of his official duty; or even be made by persons voluntarily appointed by the master, if. under the circumstances, that is a sound exercise of his discretion. 7. There is no law positively requiring, that, in case of a survey, the surveyors should be under oath. 8. There is no statute of the United States fixing the fees to be charged by an American consul for services connected with a survey. 9. In cases of repairs of the damage done to a ship by the perils insured against, the customary deduction of one third new for old, is applicable only to the labor and materials employed in the repairs, and to the new articles purchased in lieu of those which are lost or destroyed: and it does not apply to other incidental expenses, having no connection with the repairs or new articles furnished, and from which the assured can possibly derive no enhanced benefit or value beyond his loss, such as steamboat towage, boat hire, &c.

Action on a policy of insurance,' dated the 4th of March, 1836, whereby the Ocean Insurance Company insured the plaintiff [Robinson Totter], “fourteen thousand dollars on the bark Hannah, at sea and in port, for and during the term of one year, commencing the risk on the 3d of March, lS3(i, at noon. Should this vessel be at sea on a passage, on the expiration of the year, the risk to continue, at pro rata premium, until her arrival at her port of destination, paying one half per cent, additional premium, &c., at and after the rate of five per cent, premium.” The policy contained the usual risks, and the usual provisions in the Boston policies, and, among other things, a clause, that “the company are not liable for wages or provisions, except for general average.” The demand-ant alleges a loss by the peril of the seas. Plea, the general issue. At the trial it appeared in evidence, that the bark Hannah sailed from New Orleans on the 4th of November, 1836, with a cargo destined and to be landed at Tampico. In course of the voyage, on the 9th of the same month, in a severe squall from the north, both of the masts were carried away; and, on the 11th of the same month, a heavy gale was experienced, in which a heavy sea struck the stem boat from the stern, and stove it t© pieces; and. on the 5th of December following, the bark arrived at Tampico, and delivered her cargo. The necessary repairs, to enable the bark to prosecute any further voyage, could not be obtained at Tampico; anil the bark returned to New Orleans, and there the repairs were made. The amount of those repairs, and the incidental expenses of the return to New Orleans, as in' case of a general average, and the value of the stern boat, were claimed by the plaintiff from the insurance company. The insurance company paid into court the sum of $947, being the sum admitted by them to be due on account of the repairs. But the company contended that they were not liable for the wages, provisions, and other expenses incurred in the return voyage to New Orleans, as a general average; (1) because the contemplated destination of the bark was, in the regular course of her projected voyage, intended to be directly back from Tampico to New Orleans; (2) because it could not be treated as a case of general average, since there was no cargo intended to be taken back from Tampico to New Orleans. The company, also, contended, that they were not liable for the loss of the boat, as it was lost in another and a distinct storm, and that the loss would not amount to five per cent. It appeared, in evidence, that the crew were shipped at New Orleans, on a voyage “from New Orleans to Tampico, and from thence back to a port of discharge in the United States.” The cargo was shipped under a charter party, which contemplated the landing of the cargo at another port (Metamoras) at the election of the agent of the shippers at Tampico. The master, in his deposition, swore that the voyage ■was not intended to be directly hack to New Orleans; that, on the contrary, it was his intention, after delivery of the cargo, to employ the hark in that way which should he most for the interest of the owner. At the time, he had it in contemplation, to go to Tohasco, for a load of wood to carry to New York. But he was prevented from employing her in that way or any other hy the disaster. He also swore that his return to New Orleans was not in the regular course of the projected voyage; but solely for, and from the necessity of the repairs to he made there, as the nearest and mosC convenient port for that purpose. The counsel for the plaintiff contended (1) that, under the circumstances, the voyage to New Orleans was a voyage of necessity for repairs; that the company were liable to the usual expenses of wages, provisions, &c., for that voyage, as in the nature of general average; (2) that the loss of the boat was solely attributable to the disabled and crippled condition of the bark by the first storm, and her being nnable to be kept from rolling in the trough of sea by the want of any proper sails. The jury were directed to consider these points. If they were of opinion that the return to New Orleans was in the regular course of the voyage, then their verdict on that point ought to be for the defendants; — if, on the contrary, it was a new voyage of necessity for repairs, then their verdict on that point ought to be for the plaintiff. As to the loss of the boat, they were instructed, that if it was a direct result, properly attributable to the disabled and crippled condition of the hark hjr the preceding storm, and would not have occurred but from that disabled condition, then they were to find for the plaintiff on that point; otherwise, for the defendants. The jury found a verdict on both points for the plaintiff; and hy agreement of the parties, a verdict was taken for the plaintiff, for $1,250, subject to the opinion of the court upon the report of an auditor (Willard Phillips, Esq.) appointed to ascertain and report the amount of the loss. The auditor, having heard the parties accordingly, made his report as follows: The parties having been heard on the subject of the above report, the defendants object: 1. To including the fees for the survey at Tampico, on the ground, 1st, that the consul had not jurisdiction to order a survey, and that it should have been ordered by a maritime court; 2d, that the surveyors do not appear to have been sworn; and, 3d, that the fees exceed the rate which an American consul is authorized by law to charge. 2. That the defendants are not liable for any of the expenses of the passage to New Orleans, on the ground, 1st, that a pending voyage was not interrupted to seek a port of necessity; 2d, that the Hannah would have probably gone to New Orleans, had she not needed repairs, as the shipping articles provided only for a return to a port of discharge in the United States. 3. That the second, third, and fourth items on the second page cf Gerard, the blacksmith’s bill for iron work on the jib-boom (as the auditor reads the account) amounting to $3.50, ought to be struck out, there being no evidence of loss or injury to the jib-boom. (They are included in the adjustment, because the schooner appears by the evidence to have been nearly new and well fitted out and furnished, and the master and mate both mention in their depositions, injury to the iron work in the disaster, by which the loss was occasioned, without undertaking to specify every particular, which the auditor supposes would have been impracticable.) 4. That the charge of $10.53, and a proportional part of labor, in Baily and Marcy, carpenter’s bill, for a boom, 38 feet long, should not be allowed, on the ground, that there is no evidence of two booms being broken at the time of the disaster occasioning the loss. (This is included by the auditor for the reason that the schooner is proved to have been in good condition previous to the voyage, and that the spar rather appears by the log-book and other evidence, to have been broken or carried away at the time of the principal disaster, than at any other, and the survey at New Orleans alleged the captain to have stated to the surveyors, that two booms — viz. the topmast and lower studding sail booms — -were lost on the ninth of November. This is the only direct evidence of the loss of the two booms on that day. The log-book, November 9th, and the captain and mate’s depositions, answer 12, omit mentioning specifically, the loss of any booms on that day, the statement in all being that the heads of the foremast and mainmast were both carried away above the eyes of the rigging, and topmasts, tops, crosstrees, trussel-trees, and “some of the small spars” broken. One of the booms in the carpenter’s bill is described to be the studding sail boom, 2G feet long, the other is not described, but is. said to be 3S feet long; but the rate per foot, and the price at which it is carried out. show a mistake in the length, and that it was but 2S feet long. And it has been stated to the auditor, by an experienced person, that these spars may well enough come under the description of “small spars,” on board of a schooner of the size of the Hannah.) 5. That the charge of $1.75 for three paintbrushes in shipchandler’s bill should not be allowed, on the ground that the vessel ought to have paint-brushes as a part of its outfit. (Considering that the owners are not obliged to use their own paint-brushes, if they have any, for repairs of damac--s within the risks insured against, and That the three brushes purchased were probably not worn out in painting the schooner at New Orleans, but remained the use of the owners, the auditor has included one half of the cost of them.) 6. That the charge in the same bill for pump leather, $4.50, and pump tacks, 88 gents, ought not to be included, as there was mo evidence of any extraordinary injury to the pumps, and the owner ought to repair damage occasioned by mere wear and tear. (But as the auditor understands, that these descriptions of articles are not intended exclusively for the pump, but are used for divers purposes about a vessel; that the leather particularly is used in putting up and repairing rigging; and as there does not appear to have been any extraordinary wear and tear of the pumps, the probability seems to be, that these articles were used for other purposes than repairing the pumps.) 7. That the copal varnish charged in the same bill, $3.00, is rather for ornament than utility, and so ought not to be charged to the underwriters. (The auditor, however, understands from an experienced person, that this article is ordinarily used on the deck, and often on the sides.) 8. That the deterioration of the sails from the 9th of November to the time of arrival in New Orleans ought not to be allowed for in adjusting the average. That is, that the underwriters ought to be liable only for the repairs of the sails in the state in which they were directly after the damage insured against was done. The damage to the sails by such wear and tear might be from $20 to $25. (This deduction is not made in the adjustment reported, because the auditor understands the allowance of one third for new to cover it, and that makes no difference whether the depreciation for which the allowance is made, is occasioned by use before the loss, or afterwards, before repairs can be made.) 9. That there is no proof of damage by the disaster of the 9th of November to the main royal sail, that rendered a new one necessary, and that the new one accordingly ought not to be charged in the adjustment. (The survey at New Orleans recommends this hew sail, and the auditor considers the evidence of the circumstances of the disaster as well as the general statement in the log-book, protest, and depositions as to damage to the sails, sufficient proof of this part of the loss.) 10. That the old sails, which were directed by the surveyors to be sold, do not appear to be accounted for. (The plaintiffs have produced the affidavit of the master, dated November 20, 1837, stating, that the old sails were included in the proceeds of old materials accounted for.) 11. That the item for wharfage, $40, ought not to be included. (The auditor understands that every vessel is subjected to a charge on coming up to the levee at New Orleans, varying according to the tonnage, and covering the two expenses of dockage and wharfage charged in some other ports. The charge is exacted on the vessel’s coming to the levee; and is the same, whether she discharge or takes in a cargo, or does not. The auditor, therefore, considers it as among the expenses incidental to making the port to refit, and that, though the vessel after-wards takes on board a cargo there for Boston, without any additional charge for wharfage, still this advantage, if any, is considered to be merely casual and incidental, and not to be taken into account in adjusting the average.) 12. That the fees of the port-wardens for survey at New Orleans ought not to be charged, on the ground of there being no necessity for a survey, and that it was not an authentic survey. (This charge is included, because the auditor understands it to be usual to survey in that port under similar circumstances, and because it appears to him, that the master acted prudently in having the survey made independently of any consideration of the customary course at that port. As to the survey being an authentic one, it appears by the testimony that the port-wardens are sworn officers; and the auditor understands, from the testimony in the case, that the matter came before them as port-wardens. The auditor is not aware of any particular forms being very rigidly required in making surveys. The master having pursued the customary course, the charge is included.) 13. That the expense of towing the schooner from the shipyard across the river back to the Levee, after she was repaired, ought not to be included. (The auditor understands that a ship at a ship-yard across the Mississippi, for repairs, is not in a position for commencing any enterprise, and that to be in such a position she must be towed across the river to the Levee again. The expense of towing her back is accordingly included in the adjustment.) 14. That Captain Barker’s bill of $335.12 for labor, not being receipted, is not a sufficient voucher for that payment. (This bill appears to have been one of the documents annexed to Captain Barker’s affidavit made before Mr. Boswell, notary public at New Orleans. That affidavit states, “All the materials and work charged in the annexed bills were furnished or done to the schooner."’ This is considered by the auditor as rendering the bill a sufficient voucher.) 15. That, as the Hannah did not sail from Tampico until the 5th of January, 1837, the charge for wages and provisions of the crew, if made at all against the underwriters, should not commence until that time. (The charge is begun from the 17th of December, 1S3U, in the adjustment, because the schooner was then fully discharged, and began to refit by temporary repairs and otherwise, to New Orleans.) 16. That, if the defendants are chargeable with the expenses of going to New Orleans, they ought to be credited with the proceeds of the sand ballast brought from Tampico. (This the auditor would have credited and asked the plaintiffs for an account of such proceeds. The captain makes affidavit, November 20, 1837, that the expenses attending the "discharge of this ballast, were equivalent to the proceeds, viz. $32.) 17. That the wages and board of the mate during the repairs, $80, ought not to be included, on the ground that one person, the captain, was enough to attend to the repairs. (This charge is included in the adjustment, because the mate o-r some other person was wanted, as a ship keeper, and also because it does not appear but that the mate was as usefully employed about the repairs, as any other person who was employed about them.) 18. That the charge $10, by Mr. Boswell, the notary public at New Orleans, for arranging and authenticating the documents relating to the repairs, ought to be rejected. (This charge is included because it seems, under the circumstances, to have been the prudent step on the part of the master, to authenticate and forward to his employers, the vouchers for his expenses, and though the charge for this service by the notary, is higher, perhaps, than would be made in some other ports, yet the charges and fees at New Orleans, are well known usually to be high.) The plaintiff objects: That the expense of towing the schooner across the Mississippi to be repaired, $15, and that of assistance in getting her across, and boat hire, $10.50, and that of towing her back after the repairs had been made, $20, ought not to be subject to the deduction of one third for new. (The adjustment was made by a deduction of a third from the items in question, merely because it is the more usual and general, though not the invariable practice, so to adjust a particular average in Boston. The auditor understands from a very experienced insurer, that there are exceptions to, or variations from, this practice, in the port of Boston. The adjustment was made in the above manner, without any evidence of, or reference to, any general commercial custom beyond Boston, in support of it, and without any consideration, on the part of the auditor, of the rule on this subject, to which the principles of the maritime law and the law of insurance would lead.) Willard Phillips.