1. If there be no evidence to support facts assumed in a prayer
for a charge to have been supported by a greater or less weight of
evidence, it is the duty of the court to reject the prayer. It
would be error to leave a question to a jury in respect to which
there was no evidence.
2. Advances made in a foreign port to equip a vessel, and to
procure for her a cargo to a port of destination, are
prima
facie presumed to be made on the credit of the vessel.
3. They are a lien on the vessel and constitute an insurable
interest.
Error to the Circuit Court for the District of Louisiana, in
which court Baring Brothers & Co. sued the Merchants' Mutual
Insurance Company, of New Orleans, for advances made by them, as
the declaration in the case alleged, to the master and owners of
the British bark
Fanny for the purposes of her equipment
and to procure a cargo for the vessel in a voyage from Cadiz, in
Spain, to the port of New Orleans. The plaintiffs also alleged that
through their agents they had obtained a policy of insurance, dated
December 6th, 1867, from defendants. The insurance company above
named insuring the hull of the bark for $9,000, in the name of the
said agents, containing the clauses, "on account of whom it may
concern" and "lost or not lost," for the protection of those
advances.
They further alleged that the bark, though well officered,
manned, and equipped, suffered so much on the voyage from the
violence of weather that the master found it necessary to put into
a port of Cuba for such repairs as would enable him to prosecute
the voyage; that their agents gave due notice of those facts to the
president of the insurance company; that the company sent an agent
to the port to take charge of the interest of all concerned; and
that from the moment the agent arrived there, he took exclusive
charge of the repairs of the vessel and caused such work to be
performed as he thought necessary; that he obtained from their
agent there the funds necessary to pay for all such repairs; that
the bark completed her voyage; that after her arrival
Page 87 U. S. 160
at the port of destination, an adjustment of averages was made
by the adjusters of averages in that port for costs, charges, and
damages in making such repairs, and that in the said adjustment
they, the plaintiffs, were awarded $3,507 on the said policy of
insurance.
The defendants filed an answer (equivalent to the general issue
in an action of assumpsit) and a special plea that the bark was
unseaworthy.
The insurance company made three prayers for instruction:
(1) That if the evidence showed that the insurable interest of
the plaintiffs was a bottomry bond on the bark and that the vessel
arrived in safety at the port of destination, the jury should find
for the defendants.
(2) That it is only when the vessel insured is lost that the
assured on a bottomry bond can recover, and that if the proof was
that there was no loss or destruction of the bark, the jury should
find for the defendants if the plaintiffs had insured on a bottomry
bond.
(3) That the defendants were not bound to tender back the
premiums of insurance before availing themselves of any defense
against the validity of the policy of insurance or for its
avoidance by a subsequent cause.
Verdict and judgment went for the plaintiffs for the amount
awarded by the average adjusters. Exceptions were taken by the
defendants to the rulings of the court in refusing to instruct the
jury as they requested.
Nothing appeared in the record except the declaration, the
answer, the verdict and judgment, the three bills of exceptions to
the rulings of the court in refusing to instruct the jury as
requested, neither of which contained any report of the evidence,
and the motion for new trial, which merely stated that the verdict
of the jury was contrary to law and the evidence, without giving
any statement of the evidence which was submitted to the jury.
Evidence to show that the action was founded upon a bottomry
bond, or that such a bond was offered in evidence, or introduced at
the trial, was entirely wanting, nor was there
Page 87 U. S. 161
evidence, direct or circumstantial, to show that such a question
as that involved in the third prayer for instruction arose or could
have arisen in the case, or that the instruction was a proper one,
in any view of the controversy, for the consideration of the
jury.
Viewed in the light of these facts (as this Court said that the
case should be viewed), the several rulings of the court below in
refusing to grant the three prayers for instruction were considered
by this Court together.
MR. JUSTICE CLIFFORD, having stated the case, delivered the
opinion of the Court.
Correct instructions, if applicable to the case, the court, as a
general rule, is required to give unless the same are in substance
and effect embodied in those previously given by the court to the
jury; but the court is never required by law to give an instruction
to the jury which is not applicable to the case, even though it be
correct as an abstract principle or rule of law, and it may be
added that no prayer for instruction, whether presented by the
plaintiff or the defendant, can be regarded as applicable to the
case when it is wholly unsupported by the evidence introduced to
the jury. Competent evidence may be written or oral, direct or
circumstantial, but when there is no legal evidence of any kind to
support the theory of fact embodied in a prayer for instruction,
whether presented by the plaintiff or the defendant, the
instruction should always be refused, and such a ruling can never
become a good cause for reversing the judgment. It is clearly error
in a court, said Taney, C.J., to charge a jury upon a supposed or
conjectural state of facts of which no evidence has been offered,
as the instruction presupposes that there is some evidence before
the jury which they may think sufficient to establish the fact
hypothetically assumed in that way by the court, and if there is no
evidence which they have a right to consider, then the
Page 87 U. S. 162
charge does not aid them in coming to a correct conclusion, but
its tendency is to embarrass and mislead them, as it may induce
them to indulge in conjectures instead of weighing the testimony.
[
Footnote 1] When a prayer for
instruction is presented to the court, and there is no evidence
upon the subject in the case for the consideration of the jury, it
ought always to be withheld, and if it is given under such
circumstances, it will as a general rule be regarded as error in
the court for the reason that its tendency may be and often is to
mislead the jury by withdrawing their attention from the legitimate
points of inquiry involved in the issue. [
Footnote 2] Bills of exceptions ought to state that
evidence was offered of the facts upon which the opinion of the
court is prayed, else the court is under no obligation to give the
instruction. [
Footnote 3]
Though the judge may refuse to declare the law to the jury on a
hypothetical question, yet if he gives the instruction and it is
erroneous, it is the proper subject of revision. [
Footnote 4] But the true rule, if there be no
evidence to support the theory of fact assumed in the prayer, is to
reject it, as it is error to leave a question to a jury in respect
to which there is no evidence. [
Footnote 5]
Attempt is made in argument to maintain that the plaintiffs had
no insurable interest in the bark unless it be assumed that it was
created by a bottomry bond, but the Court is entirely of a
different opinion, as it is alleged in the declaration that the
advances were made to equip the vessel and to procure for her a
cargo in the voyage from a foreign port to the port of destination.
Founded as the declaration is upon the policy of insurance it must
be construed in connection
Page 87 U. S. 163
with the policy. By the terms of the policy, the insurance is
upon the bark, her tackle, and apparel, which is the proper
language to be employed in a case where the insured had an interest
in the vessel.
Advances made on the credit of a ship for necessary repairs or
supplies in a foreign port create a maritime lien upon the ship,
and it is well settled law that a maritime lien is a
jus in
re, and that it constitutes an encumbrance on the property of
the ship which is not divested by the death or insolvency of the
owner. [
Footnote 6] Such a lien
may be enforced by a process
in rem, which is founded on a
right in the thing, the object of the process being to obtain the
thing itself, or a satisfaction out of it, for some claim resting
on a real or
quasi-proprietary right in the thing.
[
Footnote 7] Liens of the kind
constitute an insurable interest, and it is quite clear that enough
is alleged in the declaration to warrant the conclusion that the
advances made in this case are properly to be regarded as
constituting a maritime lien upon the bark. [
Footnote 8] Contracts for repairs and supplies may
be made by the master to enable the vessel to proceed on her
voyage, and if it appears that they were necessary for the purpose
and that they were made and furnished to a foreign vessel or to a
vessel of the United States in a port other than a port of the
state to which the vessel belongs, the
prima facie
presumption is that the repairs and supplies were made and
furnished on the credit of the vessel, unless it appears that the
master had funds on hand or at his command which he ought to have
applied to the accomplishment of those objects, and that the
materialmen knew that fact or that such facts and circumstances
were known to them as were sufficient to put them upon inquiry and
to show that if they had used due diligence in that behalf
Page 87 U. S. 164
they might have ascertained that the master had no authority to
contract for such repairs and supplies on the credit of the vessel.
[
Footnote 9] Whenever the
necessity for the repairs and supplies is once made out, it is
incumbent upon the owners, if they allege that the funds could have
been obtained upon their personal credit, to establish that fact by
competent proof, and that the materialmen knew the same or were put
upon inquiry, as before explained, unless those matters fully
appear in the evidence introduced by the other party. [
Footnote 10]
Apply those principles to the case, and it is clear that the
objection that the plaintiffs had no insurable interest in the bark
utterly fails, as it is not controverted that the advances were
made to equip the vessel and to procure a cargo for her in the
described voyage, and it is sufficient that such an allegation
affords a
prima facie presumption that the advances were
made on the credit of the vessel, as the record fails to disclose
any fact or circumstance to overcome that presumption. Such
advances constitute a lien upon the ship, and such a lien gives the
lender an insurable interest in the ship. [
Footnote 11]
Absolutely nothing appears in the record to support the theory
that any such defenses as those assumed in the prayers for
instruction were in fact set up by the defendants in the
subordinate court except what is contained in the prayers for
instruction presented to the court. They pleaded a general denial
of the allegations of the declaration and that the bark was
unseaworthy at the inception of the risk and throughout the voyage,
but no mention is made of any such defenses as those implied in the
prayers for instruction in any other part of the record, nor is
there any evidence whatever upon the subject.
Page 87 U. S. 165
Defenses in avoidance of the claim made in the declaration must
be proved in the court of original jurisdiction, and if not proved
there, they cannot be successfully set up in the appellate court to
support an assignment of error.
Other matters were discussed at the bar, but it is not necessary
to examine any other of the propositions submitted, as these
suggestions are sufficient to dispose of the case.
Judgment affirmed.
[
Footnote 1]
United States v.
Breitling, 20 How. 254.
[
Footnote 2]
Goodman v.
Simonds, 20 How. 359.
[
Footnote 3]
Vasse v.
Smith, 6 Cranch 226;
United States v.
Dunham, 21 L.R. 591;
Caldwell v. United
States, 8 How. 366;
Blackburn v.
Crawfords, 3 Wall. 176.
[
Footnote 4]
Etting v. Bank of the United
States, 11 Wheat. 59;
Beaver v.
Taylor, 1 Wall. 637.
[
Footnote 5]
Chandler v. Van
Roeder, 24 How. 224;
Railroad v.
Gladmon, 15 Wall. 409.
[
Footnote 6]
The Young Mechanic, 2 Curtis 404;
Same Case, 3
Ware 58; 1 Parsons' Maritime Law 489; 3 Kent (11th ed.) 170;
General Smith,
4 Wheat. 438.
[
Footnote 7]
The
Commerce, 1 Black 580;
Buck
v. Insurance Co., 1 Pet., 164;
The
Maggie Hammond, 9 Wall. 456.
[
Footnote 8]
Seamans v. Loring, 1 Mason 127; 1 Phillips on Insurance
(5th ed.) § 204;
Hancox v. Insurance Co., 3 Sumner
132.
[
Footnote 9]
The Lulu,
10 Wall. 197;
The
Patapsco, 13 Wall. 333; 2 Parsons on Shipping 322
to 337.
[
Footnote 10]
The
Grapeshot, 9 Wall. 141;
Thomas v.
Osborn, 19 How. 22.
[
Footnote 11]
Seamans v. Loring, 1 Mason 127; 1 Phillips on Insurance
(5th ed.), § 204;
Godin v. Insurance Co., 1 Burrow 489;
Lucena v. Craufurd, 5 Bosanquet & Puller 294;
Wells v. Insurance Co., 9 Sergeant & Rawle 103.
