Cort v. Delaware Ins. , 2 Wash. C. C. 375 ( 1809 )

WASHINGTON, Circuit Justice,

charged the jury. As to the objection to the want of seaworthiness in this vessel, there is nothing in it. Although she was not particularly examined by the witnesses, they nevertheless state, that when she left New York, she was sound, and in all respects fit to perform the voyage insured. The witnesses are, the-ship-carpenter, who repaired her at New York, before she left that port, her former master, and the one who commanded her on this voyage. Although she was exposed to-bad weather on her outward voyagfe, she was yet so tight and staunch at Campeachy, as to require no repairs. The necessity she-was under of putting into Havana, on her-return, is accounted for by the severe gales she encountered. This evidence is sufficient to prove her seaworthy when she left New York, unless the contrary had been proved by the defendants. But they have given no evidence upon the subject If a vessel, after she commences her voyage, becomes unfit to-prosecute it, and has been exposed to no extraordinary perils of the sea, this circumstance may raise so strong a presumption of her having been unseaworthy at the time of her departure, as to call upon the insured to-give strong evidence to repel the presumption — much stronger than has been offered in this case. But no such presumption is raised against this vessel.

The next objection to the plaintiffs’ recovery, is, the want of evidence to justify the sale at Havana. This is certainly a well-founded defence. All that we know about the matter is, that the vessel sustained such injuries, on her return voyage, as to render it necessary for her to put into Havana, to repair. What ought the master to have done, after his arrival at that port? He-ought to have had her repaired, if he could; or, if she were unfit to be repaired, or the expenses would have been so great as to-have rendered the measure improper, lie should have had a regular survey and condemnation, if in his power. But instead of this, he sells the vessel, breaks up the voyage, and thus attempts to convert a partial into a total loss, without showing that it was not in his power to repair, or that the vessel was not worth repairing, and without showing what the repairs would have cost. The sum for which the vessel sold, is no proof at all of the extent of the injury she had sustained. Though valued in the policy at 1500 dollars, she might not have been worth 500-dollars, or she might have been sold at an unfavourable market, or under unfavourable circumstances. If the insured would justify the conduct of their agent in breaking up the voyage, they should have satisfied the jury, by legal evidence, that the measure was proper, and not leave them to unsatisfactory conjectures as to this important fact

On this point, the verdict ought to be only for such partial loss as the plaintiffs have proved.

Verdict for 500 dollars.