Marine Insurance Company of Alexandria v. Wilson, 7 U.S. 187 (1805)

U.S. Supreme Court

Marine Insurance Company of Alexandria v. Wilson, 7 U.S. 3 Cranch 187 187 (1805) Marine Insurance Company of Alexandria v. Wilson

7 U.S. (3 Cranch) 187

ERROR TO THE CIRCUIT COURT OF THE

DISTRICT OF COLUMBIA SITTING AT ALEXANDRIA

Syllabus

If a policy upon a vessel have a clause "that if the vessel, after a regular survey, should be condemned as unsound or rotten, the underwriters should not be bound to pay," a report of surveyors that she was unsound and rotten, but not referring to the commencement of the voyage, is not sufficient to discharge the underwriters.

Quaere whether such report, even if it related to the commencement of the voyage, would be conclusive evidence?

This was an action of covenant in the Circuit Court of the District of Columbia sitting at Alexandria, brought by Wilson, the defendant in error, against the Marine Insurance Company of Alexandria upon a policy of insurance on the brig George from Alexandria to Havre de Grace, &c.

One of the clauses in the policy was in the following words, viz.,

"If the above vessel, after a regular survey, shall be condemned for being unsound or rotten, the underwriters shall not be bound to pay the subscription on this policy."

The declaration was for a total loss, and averred that the brig sailed from Alexandria on 24 October, 1802, upon the voyage insured.

The defendants pleaded

"1st. That on 24 October, 1802, the said brigantine, called the George, was unsound in her timbers, and by reason of the said unsoundness was not capable of performing the voyage in the policy mentioned, viz., at and from Alexandria aforesaid, across the Atlantic ocean to Havre-de-Grace, Rotterdam or Bremen, with liberty to call at Falmouth for orders, and this they are ready to verify. . . ."

"2d. That after the said brigantine had gone from Alexandria aforesaid upon the voyage aforesaid, and while she was proceeding upon the voyage aforesaid upon the high seas, she sprung a leak, viz., on 31 October in the year aforesaid, in consequence of her not having been tight, staunch, and strong enough for performing the voyage aforesaid, on the said 24

Page 7 U. S. 188

October in the year aforesaid, at Alexandria aforesaid, and at the instance of her crew her voyage was interrupted upon account of her incapacity to perform the same. And the said brigantine was put back and conducted into a convenient port to be examined and repaired, viz., into Norfolk in Virginia, and that a regular survey of the said brigantine was made at Norfolk on the ___ day of _____ in the year ___, and thereupon the said brigantine was condemned for being unsound to that degree as not to be worthy of being repaired and rendered fit and able to perform the voyage aforesaid, whereof the plaintiff afterwards, to-wit, on the day and year last mentioned, at the County of Alexandria aforesaid, had notice, and this they are ready to verify. . . ."

To this last plea there was at first a general demurrer, which was afterwards withdrawn and general replications and issues to both pleas.

On the trial, two bills of exception were taken by the defendants. The first states that the defendants moved the court to instruct the jury to find a verdict for the defendants if it should be satisfied by the testimony that the George, on 24 October, 1802, after a regular survey, was condemned as being unsound or rotten by the surveyors, whose report is as follows, to-wit,

"The brig George, of Alexandria, Caspar Hayman, master, having put into this port in distress, we, the subscribers, at the request of said master, did this day attend on board for the purpose of ascertaining and reporting the situation of the said vessel and the circumstances of said distress. We found from the report of said master and others that they sailed from Alexandria on 24 October last past with a cargo of tobacco, coffee, and staves, bound on a voyage to Falmouth, in England; that on the 31st of the same month, in consequence of having met with heavy gales of wind, the vessel sprung a leak, and that with much difficulty and continued labor at the pumps, having seldom less than three feet water in the hold, they gained this port. Considering the foregoing circumstances and the appearances which in our minds confirm the same, we think proper to recommend that the vessel be hauled to some convenient wharf, the

Page 7 U. S. 189

cargo landed, and the hull carefully examined. Given under our hands at Norfolk, Virginia, 17 November, 1802."

"JAMES HUNTER"

"PAUL PROBY"

"The cargo of the brig George, of Alexandria, having been unladen pursuant to a recommendation contained in a report dated the 17th instant and signed by two of the present subscribers, we, the undersigned, at the request of Caspar Hayman, master of said brig, did this day attend on board for the purpose expressed in said report."

"We find, on a minute examination of the hull of said vessel, that without going into an extensive repair, the intended voyage cannot be prosecuted, and, considering the heavy expense that must necessarily attend such a measure, and which, in our opinion, would exceed the value of the vessel when completed, we are clearly of opinion that the vessel and materials in their present state should be immediately sold on account of those concerned. Given under our hands at Norfolk, Virginia, this 26 Nov., 1802."

"JAMES HUNTER, Merchant"

"PAUL PROBY, Shipmaster"

"JOHN JARVIS"

"THOS. NASH, Master Carpenters"

But the court refused to give the instruction as prayed.

The second bill of exceptions stated that the defendants' counsel moved the court to instruct the jury to find a verdict for the defendants if it should be satisfied by the testimony that the brig George, after a regular survey, was condemned as having been unsound or rotten on 24 October, 1802, by the surveyors, whose report is as follows: [here was inserted the same report] and shall also be satisfied by the evidence that the said vessel, while she was performing the voyage insured upon the high seas, sprung a leak on 31 October in the year aforesaid, and at the instance of her crew the said voyage was interrupted

Page 7 U. S. 190

upon account of her incapacity to perform the said voyage, and that the said brigantine was put back and conducted into a convenient port to be examined, namely into Norfolk in Virginia, where the survey hereinbefore-mentioned, was made, but the court refused to give such instruction.

Page 7 U. S. 191

MR. CHIEF JUSTICE MARSHALL declined giving an opinion, conceiving himself to be in a remote degree interested in the stock of the insurance company.

Page 7 U. S. 192

The other three judges delivered their opinions seriatim, as follows:

WASHINGTON, J.

It does not appear upon the record that any other evidence was offered to prove the vessel unsound on 24 October than the report of the surveyors. No parol testimony appears to have been offered to explain the report or to apply it to the time of commencing the risk. The bill of exceptions is repugnant. It asks an opinion predicated upon the unsoundness of the vessel on 24 October, and relies upon the report of the surveyors which applies only to 31 October. If it was intended to bring before this Court the propriety of admitting parol evidence to explain the report, that question does not appear to arise from the record.

I see no reason for reversing the judgment.

I do not, however, mean to be understood that if parol evidence had been offered, it would have been proper to receive it. I give no opinion upon that point.

PATERSON, J.

No parol evidence appears upon the record to show that the report of the surveyors referred to 24 October. The conclusiveness of the report therefore did not come before the Court. It is not a point in the cause.

CUSHING, J.

This is an action on a policy of insurance. The defense set up is that the vessel was unsound and rotten on 24 October, when the risk commenced, and it is alleged that the report of the surveyors is conclusive evidence of that fact. But the report does not apply to that time. Let the judgment be

Affirmed with costs.