Dorr v. Pacific Insurance Company, 20 U.S. 581 (1822)

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

ERROR TO THE CIRCUIT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

Syllabus

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.

Page 20 U. S. 582

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,

Page 20 U. S. 583

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"

"

I N 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�39', by observation, he experienced a very violent gale of wind, during which the said ship sprung a leak;

Page 20 U. S. 584

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"

brk:

"that time, the people being nearly exhausted by incessant labor 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 ahead for the Havana; that he accordingly proceeded for New Providence with the said ship, and arrived in the harbor 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 state, but altogether unworthy of being repaired. And he therefore prayed that a warrant might forthwith issue out of this honorable 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 place, 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 harbor of Nassau, but not finding the said ship more than half

Page 20 U. S. 585

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 inside 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 go to 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 administered to them and their party in the premises; that the said ship Holofern might, by the decree of this honorable 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

Page 20 U. S. 586

to show cause why the said ship should not be condemned agreeable to the prayer of the said master, therefore, I, 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 whereof, 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."

"THEO. G. ALEXANDER, J.C.V.A."

"Bahama Islands, New Providence"

"

I N THE VICE ADMIRALTY INSTANCE 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

Page 20 U. S. 587

our Lord one thousand eight hundred and twenty."

"ALEXANDER M. EDWARDS"

"Dep.Reg. C.V.A."

The special verdict also found that the said condemnation 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,

Page 20 U. S. 588

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 excepted.

It 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 out 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 witness 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 plaintiff'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

Page 20 U. S. 589

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 repaired 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 having 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.

Page 20 U. S. 610

MR. JUSTICE JOHNSON delivered the opinion of the Court.

The material question in this cause arises on the construction of a clause in the policy, expressed in these words,

"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. The special verdict negatives the proposition of the vessel's being unsound at the time of her sailing, and it is contended for the plaintiff, that this neutralizes the condemnation and survey given in evidence; that contracts of insurance in their nature have reference to the commencement

Page 20 U. S. 611

of the risk, as least with relation to questions of seaworthiness, and as it is impossible for a sound vessel to become rotten in a month, it is argued that the verdict of the jury ought to prevail against the evidence, or influence of the condemnation.

But we think otherwise. The words of the contract expressly look forward to a future event, "if the said vessel, upon a regular survey, should be thereby declared unseaworthy," obviously contemplating two objects -- first, that a State of rottenness ascertained at any period of the voyage insured shall be conclusive evidence of original unsoundness; secondly, that the determination of that fact by means of a regular survey should be received as conclusive evidence between the parties. It is unquestionably true in the abstract that a certificate of survey is not legal evidence, because the examination of the surveyors themselves would be better. But parties may by compact adopt that or any other, as the criterion for deciding on their relative rights, and in the case before us, the rights of the parties are made to depend on the fact of the survey rather than on the truth of it. They have chosen a rule of decision for themselves, and we are not to inquire into their motives or prudence in doing so. Whether the survey in this instance was duly substantiated is the next question which the case presents. And here it becomes altogether unnecessary to decide whether a condemnation, in ordinary cases, carries with it the evidence of the fact or of the fairness of the survey. For it must be observed that the exemplification of the proceedings in the Court of Vice-Admiralty in New Providence

Page 20 U. S. 612

was produced in evidence by the plaintiff himself. He claimed for a total loss, and to support this claim it became necessary to show that the vessel was condemned and sold, and the voyage broken up in New Providence. But if this exemplification should be admitted to prove those facts alone, without exposing the causes which led to them; if the eyes of the jury were to be shut against everything but the outside of the record, non constat, but the vessel may have been condemned for some cause for which the underwriters were not liable, and his case would not have been made out. Such subtleties cannot be countenanced; the survey was a part of the res gesta, and the plaintiff could not possibly have made out the loss without introducing the survey which led to it.

The survey was therefore properly in evidence, and that it was "a regular survey," in the language of the covenant, is to be deduced from two considerations. First, if there was any irregularity in the survey, it is attributable to the plaintiff's own agents; for even the Storrs, in this case, although the general agents of the company, were voluntarily selected by the captain. But secondly, the survey bears every evidence of regularity or authenticity that can reasonably be required. On this subject, the nature of the contract of insurance casts the parties on the municipal regulations of all the world. Every commercial country has its own regulations on the subject of surveys. It is properly a subject of admiralty jurisdiction, since mariners and freighters have to claim the aid of the admiralty to release them from their contract in cases of a defect of seaworthiness. A

Page 20 U. S. 613

regular survey must, therefore, in every instance, be such as is known to the laws and customs of the port in which a vessel happens to be. In this instance, both from the jurisdiction assumed by the court and the known habits of British jurisprudence, the mode of passing a survey through a court to give it authenticity, may well be adjudged a regular survey according to the laws of the port into which this vessel was forced. If this be the case, it follows that the exemplification of the proceedings of that court is not only admissible evidence, but perhaps the only evidence that could be received of the survey. And as to the idea of extracting the original return from the files of that court, to produce it here, it will not bear reflection. The same considerations fully justify the court below in rejecting the evidence of the captain, offered to rebut the decision of a court, and that decision, both procured by the plaintiff's own agent, and produced by himself in evidence.

But it is contended that though the construction of the covenant be with the defendants, and the survey be held to be legally before the jury, and "a regular survey" within the meaning of the policy, still it is not conclusive against the plaintiff, inasmuch as it certifies the existence of other causes of loss, besides the decayed state of the vessel.

It is unquestionably true that the survey must respond to the covenant, and if the vessel be declared unseaworthy, for any additional cause, besides her being, in the language of the policy, "unsound or rotten," the defeasance, if it may be so called, will not avail the defendant. But what is the case here?

Page 20 U. S. 614

All the facts to be gathered from the exemplification of the condemnation, taking it from the commencement to the close, are that the vessel encountered tempestuous weather, that she was forced to put into New Providence in consequence of springing a leak, that the Captain "conceiving her not only unfit to proceed to sea again in her present state, but altogether unworthy of being repaired," libeled her in the admiralty and prayed a warrant of survey upon her; upon issuing the warrant, the surveyors proceeded to an examination, and finding the vessel very leaky, stripped off part of her ceiling, and found her, as they report, "in a very decayed condition." They thereupon certified her to be "altogether unworthy of being repaired, and that she ought to be condemned as being unsafe and unfit ever to go to sea again." Here decay is exhibited exclusively as the mortal disease, and everything else is either inducement or consequence. A bad vessel might have made a safe voyage, had she experienced no trying weather, and a good vessel would have encountered gales without injury. Springing a leak was the consequence of that state of decay which weakened the whole fabric, and her being unworthy of repair or unfit to go to sea, was no additional cause of condemnation, but the mode in which her disease produced her destruction. Causes upon similar policies, and under similar circumstances, have in several instances passed in review before the tribunals of this country, and received decisions consonant to this. The case between Marine Insurance Company of Alexandria v, Wilson, decided in this Court, did

Page 20 U. S. 615

not resemble this in any prominent feature, except that the policy contained the same clause, and the defense was attempted under the protection of it. But neither in the evidence nor in the pleadings, did the defendants bring themselves within the provisions of the clause.

This Court is therefore of opinion that there was no error in the decision of the court below. But an inconsiderable omission (made palpable by the briefs furnished by both parties) having been committed in copying the record, and which leaves it doubtful in what form this decision is to be certified to the court below, this Court will, for the present, order a certiorari to issue, that the correction may be duly made.

Certiorari awarded.