NEW-YORK, P. Kemble V. W. Bowne. It appeared from the teftimony of the captain who took May 1803 charge of the Helen on the 20th Nov. 1799, and continued to command her till the 6th February 1800, that in that time he expended in repairing and other neceffaries, 1335 dollars and 86 cents, including an item for wages in taking care of the ship, to a period after he refigned the command; his knowledge of the payment he said was derived from the information of the perfons employed in that duty: that the Helen was American built, copper bottomed, and would have been worth in New-York, with an American register, 25,000 dollars; during the time he remained on board there were occafionally fugars and cotton put on board her, and taken. out again to load other veffels at that place, belonging to Mr. Gobert. From the evidence of the fucceffor of the first captain it appeared, that, being at Guadaloupe in July 1800, he received orders from Gobert's agent at St. Thomas's, to take poffeffion of the Helen, man, victual her, and fend her to him there. That according to an account of one Brocha, Gobert's agent, "the purchase money, unrigging and tarring, safe "mooring and guarding the fhip, while at Guadaloupe, "amounted to 7000 dollars. The witnefs paid Brocha 3000 "dollars, part of the purchase money, and Brocha told him "Gobert paid him 4000 dollars." Some expenditures were made upon the ship before the witnefs took poffeffion of her as before stated, to the amount of which he could not say. But the bill of disbursements for the ship, paid by him for repairs and neceffaries to get her difpatched on the voyage from Point-Petre to St. Thomas's, came to 4461 dollars and 87 cents, amounting in the whole to 7461 dollars and 87 cents. The fhip failed from St. Thomas's fome time in September the witnefs was a paffenger; on the voyage the was captured, carried into Antigua and condemned as prize; a claim had been interpofed, in the profecution of which, £317:11:8 was expended, of which the proportion to be paid by the fhip was admitted to be about 500 dollars. The witnefs received poffeffion in July. That the repairs and outfits and the expences thereof done to her afterwards were particularly enumerated in the accounts rendered. Mr. Ferrers, an established Infurance Broker, faid it was ufual in estimating the value of the fhip to allow wages ad May 1803. P. Kemble V. W. Bowne. vanced to the captain and crew: commonly a month's pay NEW-YORK, as part of the outfit of a veffel, also provifions for the voyage, and all other charges for things requifite and proper to preThat no expenditures pare her for the voyage infured. whatever previous to the commencement of the voyage are charges against the infurers on freight. That fome of the items in the accounts, in his opinion and according to his practice, required vouchers, or it could not be known whether they were proper or not. That in fettling loffes in fuch cafes, vouchers were required by him. It was admitted that nine livres make one dollar. The Judge expreffed to the jury, as the inclination of his opinion, that the policy could not be confidered as attaching from the first purchase of the ship by Gobert at Guadaloupe, but from the time fome act was done towards equipping for the voyage. Whether however this was the case or not, and even to fuppofe it to have attached at the time of fuch first purchase, that it was not neceffary to disclose to the underwriters the length of time the veffel had remained at Guadaloupe, nor that she had been used as a store-ship at that place. He was of opinion that the account of the first witness ought to be laid out of the question; yet however, independently of that, there appeared to be intereft to the amount infured in this policy, beyond the prior infurance. The jury found for the plaintiff, a total lofs, without going from the bar or examining the accounts. The application was to set aside the verdict as being contrary to law and evidence. Pendleton for the defendant, made two points: First, that the policy was void for concealment; fecondly, that, allowing it to be otherwise, the verdict could not ftand, being against evidence in finding a total lofs when only a partial injury had been fuftained. On the first point he obferved, that a contract must be taken as it is worded, where there is no ambiguity, or it is no contract at all. In policies of affurance" at and from" a place, means first arrival at that place. Park 38, Leigh v. Maand the cafe cited by Lord Hardwicke in Motteux v. London Aff. Com. 1 Atk. 48. It is true that the construction is not univerfally the fame. In France it is interpreted to be from the time of failing. 2 Emer. 14. But in England it is regulated by fpecial contract. 1 Marth 173. Bird v. Appleton, 1 * * ther. NEW-YORK, P. Kemble V. W. Bowne. Marsh 60. That at and from" mean from the first arrival, fo that the whole cannot be due. 7500 dollars 5683 Hamilton contra. In this cafe the fituation and circumftances of the veffel antecedent to the orders for infurance were perfectly immaterial, and therefore needed not to have been disclosed. The only effect which the Helen's stay at Guadaloupe could have had, would have been to render her less fit for the voyage insured. That she was completely adequate to its performance, was a warranty implied in this as in every other policy. It is a fettled principle, that whatever is warranted againft, whether it be in exprefs terms or by implication, need not be disclosed, and the reafon is obvious, because it is May 1803. P. Kemble V. W. Bowne. a risk the affured takes on himself. Though the conftruction NEW-YORK, given to the words "at and from" could not be totally denied, it could not be univerfally acceded to. The interpretation relied on was applicable to only those cafes of insurance where a veffel was infured at and from a port to which fhe was going: but when the terms in question were used in reference to a veffel in a diftant port, from whence the voyage infured was to have its inception, the expreffion could mean only from the time fome act was done towards equipping for the voyage intended; at the utmost it could not relate back farther than to the orders for infurance. But as the voyage might, even after the orders given, be in fact deserted, it would perhaps be the fafeft interpretation to fay the policy should never attach but on fome overt act indicatory of carrying it into execution. On the other point, the accounts and the testimony on which they were founded were before the court, and carried their propriety or impropriety on their face. Per curiam. Two queftions are made in this caufe. I. Was every proper information given to the underwriter? On the first no doubt was entertained at the trial nor is any now. It was not neceffary to disclose how long the Helen had been at Guadaloupe, nor that she was a prize fhip. The first could be material only in cafe her being there antecedent to the insurance had enhanced the risk, and the latter in case of a warranty or representation which negatived her being a ship of that defcription. It is of no importance how long the had been at Guadaloupe unless the policy attached from the moment of her arrival there, although it might have been several years before it was effected. The conftruction contended for would be unnatural. In a cafe like this, when a veffel has been long in port previous to an infurance, the risk does not commence till fome act be done towards equipping her for the voyage, or on the day on which the is stated, as here, to have been in fafety in the port from which fhe was to fail-this was the 28th of July 1800. If fhe had been loft or injured before that day, the underwriters would not have been liable. When she is stated to have been at Guadaloupe on a certain day, it must mean that she was there in fafety, and that no preceding accident was to be England is, that made good by the affurers-it cannot therefore be material The rule ira when the words "at and from" NEW-YORK, where she was prior to that day, for the parties by agreement P. Kemble W. Bowne. effected on a veffel then and before in port, the risk begins from the fub : The other question relates to the value of the veffel. In forming this valuation, there were added to the first coft, are in a policy fundry charges, on the propriety of which we are now to determine. On the trial one account was rejected, and we still think those charges improper, because they accrued prior to the 6th of February 1800, five months before the policy atfcribing when tached; but principally because they are, with hardly any pected to arrive exception, of such natures as to have been occafioned folely at a certain place by her stay at Guadaloupe, and fuch as gave no permanent has not arrived, value to the veffel. They confift (except one anchor) of provifions, which must have been confumed while the veffel was used as a store-fhip, and of wages and other disbursements, Neither of thefe which became neceffary by fuch itay, and ought not to swell the computation when we are ascertaining her worth. on a veffel ex but at which fhe the risk com mences on the first arrival. principles it is evident would govern here. To the other account it is objected that the items are neither proper nor well proved. As to the proof, Davis, the first witness fays, "The bill of disbursements for the ship paid by "him for repairs and neceffaries to get the ship dispatched on "the voyage from Point-Petre to St. Thomas's, amounted " to 4461 dollars, as per account (A) annexed." nothing of hearsay in this-he paid the money himself, and There is ftates on what account. What he heard, related only to the purchase money, not to what was paid for repairs—it is truc there is no date to this account, but it is a fair deduction, from the depofition of Davis, that all these expences were incurred after he took poffeffion of her, which was in July 1800: for he exprefsly states, that he cannot fay what expenditures took place before the veel came to his hands. The propriety of many of these charges against an underwriter on the veffel is alfo denied. If these be deducted, there will still remain a fum large enough to entitle the plaintiff to retain his verdict. It is admitted that in eftimating the value of a veffel, it is ufual to allow a month's pay advanced to the captain and crew, provifions for the voyage, and all other charges for articles neceffary to prepare her for it. The counfel will be furnished with an eftimate of the court according to this opinion, in which the deduction muft be regarded as liberal as they respect the underwriters. |