ALBANY, August 1803. Barnewall V. Church tination of this vessel was for New-York, as described in the policy, and not for Falmouth, as the clearance purported. There is no contradictory testimony on that subject, except, that in the first protest it is said, as in the clearance, she sailed for Falmouth and a market, but as to the actual place of destination of a vessel, I think the captain, unless his testimony is impeached, is entitled to full credit. He, of all others, is the most likely to know this fact; and he, when examined as to that point particularly, declares explicitly, that she sailed for New-York, though her clearance was for Falmouth and a market; and in this he stands corroborated by the testimony of Alexander Anderson, the plaintiff's agent at Honduras. I therefore take it for granted, that the vessel sailed on the voyage insured. So far as any reasons could be discovered for taking out a clearance for Falmouth, it was to avoid the payment of certain charges, that would otherwise have been incurred at Honduras. There was no warrranty or representation, and it has been settled in this court, in the case of Murray v. U. July term 1800 1. Company, that in such cases, the underwriters take upon themselves war risks. Under a policy of this description, I cannot conceive how this clearance could, in any manner, prejudice the underwriter, or increase the risk; and therefore immaterial whether disclosed or not. In all the cases cited from Robinson's admiralty reports, where false and colourable papers came under consideration, the question was, as to the neutrality of the property; the papers purporting a different voyage or owners from the other testimony, and so considered a circumstance of fraud and suspicion. But as the present insurance is general, and includes war risks, this clearance was immaterial. I am therefore of opinion, that judgment ought to be rendered for the plaintiff upon the verdict of the jury. Radcliff, justice. On the trial of this cause, the defendant rested his defence principally on the want of seaworthiness. This objection was relied upon in the argument for a new trial, and two other grounds were also taken, viz. 1st. That the ship sailed from Honduras for Falmouth, and not on the voyage insured. ALBANY, Barnewall V Church I shall begin with considering the two points last mentioned. As to the first of these, the evidence is, that the ship cleared at Honduras for Falmouth and a market. The captain and mate, and one of the seamen, who made the original protest, therein swore, that they sailed from Honduras, bound for Falmouth and a market. On this eviden ce alone, I should have no doubt that the voyage from Honduras ought to be considered as destined for Falmouth. But the captain, in his second protest, explained that he in fact sailed for New-York, although he cleared for Falmouth. How far this explanation can be reconciled with his former deposition in the first protest, or ought to be received without further proof to establish the fact of his sailing for New-York, it is not important, under the circumstances of the present case, to decide. There is other evidence; to wit, the deposition of Alexander Anderson, and the letter of the plaintiff of the 3d of October, 1799, explaining the object of the clearance for Falmouth, which I think sufficient to justify the verdict, on the ground that the vessel actually sailed for New-York. 2d. Assuming the position, that the vessel was in fact bound for New-York; the second point has been treated as more delicate and important. She was bound for NewYork, but cleared for Falmouth. It is not stated in the case whether the cargo was consigned to any person at NewYork, nor in what manner her other papers appeared. The objection is therefore founded on the clearance alone. If In considering this question, it is material to observe, that the insurance was general, without any warranty or representation that the property was neutral. It follows, according to the decision of this court, in the case of Murray v. the United Insurance Company, that it extended to protect belligerent, as well as neutral property. the risk, therefore, was not increased beyond what it would have been in the case of belligerent property, the cir cumstance of a false paper, or a clearance for a port of one of the nations at war, could not be material. The underwriter must be deemed to have received the premium adequate to the risk, which this circumstance implies, and ought, therefore, to be liable. Besides, I think it too uncertain, and too great a refinement to establish a 'rule, that every paper, which, in the opinion of the cruisers of a belligerent nation, may be deemed suspicious, and induce them to carry in a vessel for adjudication, should be held necessary to be disclosed. It would be impossible to meet the ingenuity, or avoid the cupidity of that class of men, and prescribe a safe and practical rule on the subject. 3d. On the point of seaworthiness, there was much contrariety of evidence. On the part of the defendant there appeared, 1st. A survey of the vessel made on her arrival at Honduras, by eight persons, at the instance of the captain, who certified upon oath, that she was wholly defective in her timbers aloft, her upper works, inside and out, plank rotten, and otherwise generally decayed; that on account of these defects, and other injuries which she had received, she was, in their opinion, unseaworthy; and, from the difficulty of procuring workmen and materials, and the high price of labour and provisions, she was incapable of being repaired for her full value, after the repairs should be completed. 2d. The depositions of four of the above persons, who made the survey, taken under a commission, who testify, generally, to the same effect. Three of them add, that they verily believe it was impossible the ship could have been seaworthy on the 21st November 1799, at which time she commenced the voyage insured. Two of the three last mentioned witnesses, are ship carpenters, and the third at mariner. The fourth is a merchant, and speaks with more diffidence of his knowledge of vessels, but say, that he firmly believes that some of her timbers had been rotten a long time. In opposition to this, the plaintiff produced, 1st. The protest of E. Atkinson, the master, of the chief mate and one seaman, who swore, that when they sailed from Honduras, on the 27th of January, they firmly believed the ship was tight, staunch, and well fitted and provided for the voyage. The master, in a supplementary protest, again positively declared, that she was tight, staunch and strong, and well fitted for sea. ALBANY, August 1803. Barnewall V. Church. ALBANY, August 1803. Barnewall v. Church. 2d. A deposition of Andrew Dorgan, who testified, that he had been master of the ship immediately before the plaintiff purchased her, for the period of fourteen months; that during that time, she was twice hove down and examined, and none of her timbers were found rotten or defective; that during all the time he sailed in her, he thought her as strong, staunch, and good a vessel as any he had ever sailed in, and when he left her, which was in April 1799, she was, in his opinion, fit to go to any part of the world. 3d. The testimony of Thomas Williams, examined at the trial, and the deposition of William Peacock, two ship carpenters, of the city of New-York. They examined the ship at the request of the plaintiff, previous to the purchase by him, in April 1799, and reported her to be generally a sound and strong ship; after the purchase, they made some repairs to her, fitted her for sea, and had a full opportunity then to ascertain her real condition; they add, every thing was done which was necessary to render her seaworthy, and that after such repairs, she was perfectly sound in all her parts, and fit for any voyage. One of these witnesses, Thomas Williams, also said, that from the state of the ship when he repaired her in April 1799, it was impossible she could be so decayed, at the time of the survey at Honduras, as was represented by the surveyors there, and that in his opinion, they must have sworn falsely. Bird, the plaintiff's 4th. The testimony of Samuel Middleton, and one Bird, the plaintiff's clerk. The first of these proved, that he helped to repair the ship in the year 1795, and from her condition at that time, he was fully of opinion, that she could not have been so rotten as was stated in the survey, and the evidence taken at Honduras. clerk, established, that the charges of the ship, after the purchase, and including her outfits, amounted to 3040 dollars, and that the purchase money was 5000 dollars. He could not distinguish how much was expended for the repairs alone. The defendant also produced one Rose, a witness, who was a captain of a ship, and had been often at Honduras since the year 1795. He testified, that William Gibson, one of the surveyors, was a respectable merchant, and trea surer of the settlement; that Thomas Potts, another of the surveyors, was one of the richest merchants there, but he knew nothing particularly respecting him. That he was acquainted with two of the other surveyors, but could say nothing of their character. This witness also said, that the vessel must have been very strong to carry the sail described in the protest, with a hard north wind, and he thought she could not have done it, if the wind had been very high. Two other witnesses, judging from the sail she carried, also testified, that in their opinion the weather could not have been so violent as to injure a sound and strong vessel. This was the principal evidence concerning the question of seaworthiness, which was submitted to the jury as a fact to be determined by them. As that fact appears to have been generally submitted, I think it not material to examine the substance of the charge in other respects. But I take this opportunity to observe, that the opinions and directions of judges, at the circuits, as made by the parties, appear too frequently very different, both in form and substance, from what they really were. In the present case, from the face of the charge, and the simple nature of the question under consideration, it is manifest, that it can neither be correct nor entire. This, however, appears to me unessential to the decision of the question between these parties. I view it as a question depending on the weight of contradictory evidence. The witnesses at Honduras had, no doubt, the best opportunity for correct information. They saw the vessel immediately after the disaster happened, and examined her. They could not be mistaken in their knowledge of the fact, whether she was so rotten or decayed, as they have represented, and if they speak the truth, she must have been extremely deficient and unseaworthy. On the other hand, it is difficult to reconcile their evidence with the testimony of the plaintiff's witnesses. The depositions of Dorgan, and the two ship carpenters in the city of New-York, prove, that the vessel at, and shortly before the time she left that port, was apparently seaworthy, and in a condition, which it seems impossible could admit ALBANY, Auguft 1803. Barnewall V. Church. |