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

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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

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

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