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of the assured to obtain under the form of a general, what he could not under that of a particular average. He, however, gave no opinion.

Livingston, justice, having been concerned in the cause, gave no opinion.

at

George Barnewall against John B. Church. This was an action for a total loss by perils of the sea, under a policy of insurance on the ship Hope, valued at 8000 dollars, and dated the 28th of December, 1799, "and from Kingston, in Jamaica, to Honduras, during "her stay there, and at and from thence to New-York." It appeared, that in April 1789, the plaintiff, wishing to purchase the vessel in question, employed two ship carpenters to examine her, which they did in every part. They bored her timbers fore and aft, near and between the chains, bends, transom, breast hooks, apron, and in other places, found her perfectly sound, and very strong. reported her bottom to be of English elm, which never decays under water. That she was collier built, about nine or ten years old, and would last 40 or 50 years. That she seemed as sound as a Connecticut vessel of two years old. Her iron work was good, her bottom perfectly sound, her bends doubled, the first at least five inches thick, her knees not started, but well fastened, and the chain bolts forelocked.

They

On this representation, the plaintiff bought her, and expended about 600 pounds in repairs. Whilst these were completing, some of her timbers were perceived to be tainted, and some of the planks in her wait defective; the first were mended, and the latter removed.

After this the ve sel sailed from New-York, where she was purchased, to Kingston, in Jamaica, from whence she sailed on the voyage insured, and arrived safely at Honduras. On her passage from thence to New-York, she sprung a leak, was obliged to bear away for Honduras, which she reached in a very disabled state, and was, after a survey on her duly held, condemned as not seaworthy. From two protests of the captain, which were read in evidence, by consent, it appeared that the vessel, soon after

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ALBANY,

August 1803.

Barnewall

V.

Church.

she left Honduras, experienced some heavy gales, but not such as to oblige him to strike top-gallant-masts, and hand his top-gallant-sails, though she, at this very time, sprung the leak which forced him, by advice of his crew, to bear away. It was not, however, alleged, that any extraordinary press of sail had been necessarily carried to avoid a lee shore. The captain had, in his first protest stated, that he had sailed from Honduras for Falmouth: in his second he explained it, by saying that he had cleared out for Falmouth, but actually sailed for New-York. This, it was proved in evidence, had been done to avoid duties to the amount of 105 pounds per ton, which must have been paid had the vessel cleared for any other than a British port: it was, however, established, that the thus clearing made no alte ration in the premium, for the New-York insurance company, after being acquainted with the circumstance, continued the risk on the policy they had underwritten, without demanding any thing additional.

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The state of the vessel, at the period of her survey and condemnation, was shewn to the jury, from the return of a commission, containing the evidence of the same persons, whose testimony, given on the survey, had been relied on by the plaintiffs, for proof of loss, and constituted a part of what had been adduced to the underwriters, in support of the claim against them. By this, it was proved, that above two-thirds of the ship's timbers were rotten, in consequence of which, and the decay of the fastenings, her planks had started, and several of them were also rotten; the bends in the same situation, and loose, particularly aft. That the defects in the timbers and upper works appeared to be of a considerable standing; the bends, in particular, were so bad that they might have been ripped up with a crow bar, for twenty feet aft. Many of the trunnels, chain bolts, and other fastening bolts, started; the bends totally so from the transom, and very much decayed. That the starting of the bolts and bends arose from the rotten state of the planks and timbers, which could not hold a nail. That the upperworks, inside and out, were mostly decayed, her water ways open. That she could not have been a staunch, tight, strong and seaworthy vessel, fit for the voy

age on the 21st November, 1799, (the day of her departure) and her general decay could not have taken place between the time of her leaving New-York, and that of her survey. To discredit the evidence under the commission, and rebut the testimony it afforded, the plaintiff adduced the two ship carpenters who had examined the vessel, and the master, who, previous to the purchase by the plaintiff, had last commanded her. The two first swore, they believed the persons examined under the commission, had testified falsely, and the latter deposed, that the vessel was staunch, tight, strong, and seaworthy, when he left her, and in her former voyage, had not made a pint of water. On this evidence the jury found for the plaintiff, as for a total loss.

A motion was now made for a new trial;

· 1st. Because the verdict was against evidence, the vessel not being seaworthy when she sailed.

2d. That she never sailed on the voyage insured.

3d. That if she did, and was seaworthy, there was not a sufficient disclosure, she having cleared for Falmouth, and by that means increased the risk.

Pendleton, for the defendant. Without totally rejecting the evidence under the commission, it is impossible to reconcile the verdict with the state of the vessel. That a ship was seaworthy, requires the strongest evidence to support it; it is not to be presumed that all are so, till the contrary is shewn but if this should be the rule, still it has been complied with. The testimony of want of seaworthiness could not have been resisted but by prejudiced minds; in this case, more than any other, it ought to have been conclusive.

The witnesses on the part of the defendant were first produced by the plaintiff himself, to substantiate his claim. Surely, no man shall present a person as credible, and when he has used him for such a purpose, immediately afterwards impeach his credit. By adducing him, a credit is given, which it is fraudulent afterwards to shake. The protest and survey go to establish the credit of the witnesses, under the commission, and the facts they testify to, when interrogated on a solemn examination, corroborate, in every

ALBANY, Auguft 1803.

Barnewall

Church

Auguft 1803.

Barnewall

V.

Church.

ALBANY, particular, the decayed and unseaworthy state of the vessel. They cannot be disbelieved without saying, almost in express words, that they are perjured: they must be so, if the vessel was not as they have represented, and they unanimously state the loss to have arisen from the rotten, unseaworthy state of the ship. To contradict this, no one extrinsic circumstance, or accident, is shewn. There is not a single fact which could work an injury to the vessel: not even a lee shore stated to give a pretext for a press of sail, and consequent straining of the ship: but this could not have rotted her planks; it might have caused her to leak yet that circumstance is otherwise satisfactorily ac counted for, by her seams being open. It is singular the plaintiff should not have produced his captain; a man who must certainly have been able to give the fullest insight into all matters relative to the present question. The exami nation, previous to the purchase of the vessel, and subsequent report of the ship carpenters, do not establish her seaworthiness. The same things happened with the Mills frigate. Had the Hope been reparable, she might have obtained all that was necessary at Honduras; the only person who says it could not have been done, is Williams, who never was there, whilst the man who had been, swears the reverse. The captain, too, deposes very equivocally; he states, that he believes she was seaworthy when he sailed from New-York, but not even a belief is mentioned when he left Honduras. Where there is evidence on both sides, the rule generally is, to let the verdict stand; but when it is against the weight of evidence, and some of the witnesses are foreigners, the court will give an opportunity of establishing their credit, especially in a case, like the present, of doubt and importance. The bias too, of juries, in subjects of this sort, cannot be unknown to the court. On the second point, the defendant had strong reasons to expect a verdict in his favor. The testimony of three persons evince the vessel sailed on a voyage to Falmouth, and not on one to New-York. Though this latter is afterwards stated by the captain to have been the real voyage, it is to be remarked that he flatly contradicts himself, and was, at ❤ Park, 122 (222)

See ante 29. note there.

the time of each assertion, equally upon his oath. If, indeed, he is to be believed, as to what he last says, the risk was increased and if the vessel did sail on a different voyage than that insured, a new policy ought to have been effected, for the first was clearly void.

Troup referred the court to 2 Marsh. 364, as to the inefficacy of the survey and report made before the voyage, and Park 192, 3, the last edition, for the Ostend case, int which the usage of trade was relied on.

Hamilton for the plaintiff. The cause is one of those in which the court will grant a new trial with extreme caution. It is true it has, in one instance been done; but in that the loss happened by the vessel's foundering at sea without any circumstance, by which it could possibly be accounted for.+ But though the accident should arise from any latent defect, a premium is in fact paid to insure against it. This will, on investigation, be found to be correct. The underwriter, in forming his calculation, considers the quantity of losses in proportion to the safe arrivals. On this datum he forms his estimate; seawor thiness must therefore be included. Of the number foundered at sea, many must have perished from latent defects, which ripping up alone, would discover. Therefore, these must have constituted part of the risks calculated. If then the calculation be founded upon this, latent defects are paid for, and premiums actually received for them by the underwriter. If, therefore, she was seaworthy at the inception of the voyage, the progressive decay is at the risk of the underwriter. The interest of trade requires this mode of reasoning; for it is the policy of commerce to divide the weight of loss, and throw the load upon many, rather than upon one. To warrant, therefore, a new trial on this ground, it should appear clear and manifest, that the vessel was not seaworthy when the risk attached; that is, on her arrival at Kingston. There is not a particle of evidence to that effect. There was therefore abundant reason for the jury to deliberate and to determine as they have done, The credibility of witnesses is also their exclusive province, and on this they have decided. That they might be fully

• Planche v, Fletcher, Doug. 238.

ALBANY, Auguft 1203.

Barnewall

V.

Church.

+ See Dow v.

Smith ante 33.

note in the

margin.

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