ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK, In AUGUST TERM, in the TWENTY-NINTH YEAR of our John Depeyster and Gerard Depeyster, against the THIS was an action to recover a total loss by perils of the sea, on a policy of insurance on goods on board the schooner John, for a voyage from New-York to Curracoa. From the testimony of the mate and master, who also owner of the vessel in question, it appeared, that the circumstances of the case were these. was ALBANY, August 1804. If a plaintiff ex amine his wit ness and deliver defend ant to him over to the cross examine, and before any opportunity of tion, the witness The bottom of the John was, at the time of her sailing, fer to enable the a little worm-eaten; but she was notwithstanding a staunch, plaintiff to ask him any questitight, and strong vessel, completely found, manned and ons in explana equipped for the voyage. On arriving a little to windward fall down in a of her place of destination, the captain perceived the day tiff go on to exfit,and the plaintoo far spent to admit of running into his port before dark, amine other witnesses, and try and therefore lay too, lest he should pass it in the night. the cause, the Notwithstanding this precaution, on looking out at day- terwards grant a break, they found themselves considerably to leeward of new trial to give the plaintiff an Curracoa. In order, however, to gain their port, they con- letting in the fur opportunity of tinued ineffectually endeavouring to beat to windward, till ther testimony their wood and water were nearly exhausted; when, M court wil not af of the same wit the ness. If the defects in a vessel ALBANY, August 1804. ster, C. Insurance Co. rance, be not a the vessel unsea not to be taken ing whether the her exceed half which does not cording to which the courtwill not al. vessel being so leaky, from bad weather which she had encountered as to require one pump to be always kept a going, J. & G. Depey and sometimes both; being also shattered and damaged in her rigging and sails; it was, on consultation, with the officers and crew, determined to bear away for Kingston, in existing previous Jamaica, where they in a few days arrived, with the cargo policy of insu- uninjured. The state of the vessel requiring repairs, she such as to render was surveyed, not in a regular manner under a warrant worthy they are from the court of admiralty, but at the request of the masinto considerati- ter, by some seafaring captains, who pronounced, as the on in deterrain witnesses deposed, that she could not be repaired for her repairs put upon worth at the time of her sailing from New-York. On this, her value. If a and after a fruitless attempt to procure a vessel to carry on judge misdirect in on point, the cargo to Curracoa, the captain broke up the voyage and go to the merits sold the cargo, part of which consisted of perishable artieles, of the case, ac for the benefit of whom it might concern, at a loss howethe jury decide, ver, of nearly 50 per cent. So impossible was it to proon that account cure a conveyance from Kingston to the port of original desorder a new tritination, that a passenger, who went out in the John, was obliged to return to New-York, and again embark from thence to Curracoa. Having in some degree refitted the vessel, she sailed in ballast for Savannah: but on her passage, (as out of her crew, composed of only five persons and a boy, two had died) she put into the Havanna, where she was hove down, repaired and refitted, and a cargo of one hundred and fifty boxes of sugar taken in, with which she arrived safely in the United States. When at the Havannah, she was examined and her bottom found very much injured by worms, but as the expense of repairing was much less at the Havannah, than at Kingston, they were bestowed at the former place, without doing of which, the schooner could not have proceeded. On the trial, the master, while on his cross examination by the defendant, was seized with a fit, and could no further testify; but neither party desired the trial to be put off on that account. The judge charged, that if the jury believed the vessel to be sea-worthy when she sailed, and that the expense of repairing her when at Kingston, would have cost half her value, they ought to find for the plaintiffs for a total loss, but in calculating the repairs, if they were of opinion, any were necessary on account of injuries received by means of worms before the vessel sailed, ALBANY, August 1804. the repairs for such injuries ought not to be calculated to the prejudice of the defendants, but that they should confine their estimate to the damages subsequently sustained, dur- J. & G. Depeying the voyage. On this a verdict was given for the defendants, to set aside which, the court was now applied to. Jones for the plaintiff. The circumstance of the captain's being seized with a fit, prevented our re-examination, as to points which the defendants' cross examination rendered necessary. The sale of the cargo was unavoidable, as it was impossible to convey it to the port of destination, and as the amount of repairs at Kingston, was more than half the value of the vessel, it constituted a loss of the voyage, on which the assured had a right to abandon, as it arose from perils of the sea. Wherever a vessel is, from perils of the sea, unable to reach the port to which bound, the owner of goods insured may abandon, unless it appear that the ship was not seaworthy at the time of her sailing. This she is, notwithstanding any little defects, if, in her then state, adequate to the voyage. Should she in the course of performing it demand repairs, the quantum induced by such anterior defects, are not to be deducted from the amount, in order to prevent the conclusion of a loss of voyage; because it is, in the first place, impossible to discrimi nate between the value of the repairs for the injuries prior to her sailing, and those which arise subsequently. In the next place, the underwriter is always compensated to the supposed extent of such previous injuries, in the deduction which is constantly made of one third, new for old. This allowance is made him as a kind of premium for his responsibility for subsequent accidents, inducing a deterioration to more than half the worth of the vessel. In the estimation the judge charged the jury to make, there was therefore an evident misdirection, and this is sufficient to induce an order for a new trial. Bogert contra. The application cannot be granted to let in the evidence of the captain. His testimony was inadmissible, for as he was owner, he was interested in proving the seaworthiness of his vessel at the commencement of the voyage, and her becoming so from perils of the sea, to prevent an action against himself by the owner of the goods. ster, V. C. Infurance Co. ALBANY Auguft 1804. fter, V. C. Infurance Co. in this cafe the To render him competent, he ought to be released. Peake J. & G. Depey- ton. Peake, N. P. Ca. 84. But if competent, the plaintiffs prudential mo on the fecond trial. the voyage. Hamilton in reply. Where testimony has been omitted by a party, in consequence of advice from his counsel, by which he was misled, the court will grant a new trial. A fortiori when the act of God prevented its being adduced. In 1 East. is a case to this. Where the defects are not such as to create unseaworthiness at the time when the policy attaches, they are at the risk of the underwriter. Millar, 110. et seq. In Da Costa v. Newnham, the discrimination in the charge was not even touched on, though old and new injuries were the subject of litigation. Percuriam, delivered by Livingston, J. A motion for a new trial is made on the following grounds. 1. Because the plaintiffs were deprived of the full benefit of the testimony of one of the witnesses, by reason of his sudden illness. This witness was not seized with a fit until the plaintiffs had examined and given him over to the defendants; but had it been otherwise they should have suffered a nonsuit. Instead of this, they proceed with the trial, examine other witnesses, and take the chance of a verdict on the testimony then in their power. After this they come too late for a new trial. 2. It is alleged that the verdict is against evi dence. The extent of the injury sustained, and expense of repairing were fairly submitted to the jury as questions of fact, and there is no room to say they have decided them contrary to the evidence. What the repairs cost does not exactly appear; those at Kingston amounted to near four hundred dollars. After mending her sails and rig ging and bowsprit, and caulking her upper works at Kingston, the John sailed for Savannah, but having a dying vey. ALBANY, August 1804 fter. V. C. Infurance Co. and sickly crew, and the schooner continuing leaky, she was obliged to put into the Havanna. There she receiv ed a new bowsprit, topsail, square-sail and flying-jib; she J. & G. Depeywas also hove down, caulked and graved, but not sheathed; her bottom was somewhat worm eaten, and, the captain believes, that was in some degree the case when she left New-York: after these repairs she took in a cargo of 150 boxes of sugars and returned to Philadelphia. From this statement it is impossible to say that satisfactory evidence was offered to the jury, that her repairs would cost a sum sufficient to justify breaking up the voyage. The mate swears as to this point only from hearsay, and the captain who was very much interested in making a good story, only gives his opinion, without producing any surThe repairs actually put on her, the good condition of her cargo, and her returning to the United States with a heavy lading, are strong circumstances against the plaintiff's claim. 3. It is also said, the jury were misdirected on a point of law. In calculating the cost of repairs, they were told, that if they believed any were necessary on account of injuries received from worms prior to the vessel's sailing, the expense of such repairs should not be included in the estimate. This direction is supposed to be incorrect, inasmuch as it prescribes a rule difficult if not impracticable to follow. How, it is asked, are the jury to distinguish between repairs rendered necessary by perils of the sea, and those which are become so in consequence of some damage or defect existing at the commencement of a voyage? And from this difficulty of making the proper separation, as well as from the nature of the contract, it is insisted that the true rule is the one laid down by Millar, in his treatise on insurance, which is, "that "underwriters are responsible for pre-existing defects, "unless they be so great as to render the vessel not sea"worthy." It may at first seem hard to hold an insurer in any way liable for the defective nature of the thing insured, but so long as the subject of insurance be seaworthy, is it not part of his contract that in case of accident, he will defray all the expense of placing her in statu quo? If she be totally lost, he pays the whole sum subscribed without any inquiry into her condition, any far • P. 136. |