Dorr v. Pacific Insurance CompanyAnnotate this Case
20 U.S. 581
U.S. Supreme Court
Dorr v. Pacific Insurance Company, 20 U.S. 7 Wheat. 581 581 (1822)
Dorr v. Pacific Insurance Company
20 U.S. (7 Wheat.) 581
Under a policy containing 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, then the assurers shall not be bound to pay their subscription on this policy,"
and it was found by the jury that the vessel was seaworthy at the time of the commencement of the risk and when she sailed on the voyage insured, held that proof, by a regular survey, of unsoundness at any subsequent period of the voyage, discharged the underwriters.
An exemplification of a condemnation of the vessel in a foreign court of vice-admiralty, reciting the certificate of surveyors that the vessel was unworthy of being repaired and unsafe and unfit ever to go to sea again, and produced in evidence by the insured to prove the loss, is "a regular survey" in the language of the above clause.
But the survey must correspond with the contract, and if the vessel be declared unseaworthy for any additional cause, besides being "unsound or rotten," it is not conclusive evidence of unseaworthiness.
This was an action of assumpsit upon a policy of insurance subscribed by the defendants on 8 September, 1819, whereby they insured the ship Holofern, 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 Holofern was the property of the plaintiff, and sailed on the voyage, insured, on 9 September, 1819, and in the course of the voyage she met with violent gales, in consequence of which she sprung a leak, and after attempting, in vain, to pursue her voyage, was compelled to bear away for New Providence, and arrived in the harbor she grounded from an insufficient depth of water, but was got off,
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, New Providence"
IN THE INSTANCE COURT OF VICE 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 he 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
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