Field v. President of Insurance Co. of North America , 3 Md. 244 ( 1852 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an action of covenant, instituted to recover the amount of damage done to certain goods on board the schooner Emory, during a voyage from Baltimore to Ware river, Virginia. The execution of the policy and property in the goods were proven, and that on reaching Ware river and unloading the vessel, certain boxes of goods were saturated with water and seriously damaged, and that grains of wheat wf re found in the folds of some of the goods; that the vessel on her voyage io Baltimore had brought a load of wheat, in bulk, in good condition so far as the vessel was concerned. There was no direct proof of the seaworthiness of the vessel when she left Baltimore on her voyage to Ware river; and the only fact, it is alleged, from which it might be inferred, was the safe delivery of the wheat in Baltimore.

On this state of facts, the court instructed the jury the plaintiffs were not entitled to recover, because they had offered no testimony of any loss by perils of the seas within the terms of the policy.

In all contracts of insurance the seaworthiness of the vessel is understood; there is, in fact, a warranty of it on the part of the insured. This condition, however, is only to be presumed until the contrary is shown, but when shown the conclusion of law is, that the policy never attached. The defectiveness of the vessel may be established by the underwriters in various modes, only one of which, however, it is necessary to notice under the facts in this case. It is laid down that if the vessel spriug-a-leak, or becomes disabled, or some essential defect is discovered soon after the risk commences, without any apparent cause, from the perils within the policy, or rather when it satisfactorily appears that no accident can have happened to occasion the damage or defect, it is inferred she was defective at the beginning of the risk,, and not seaworthy. 1 Philips on Ins., 324.

In the case before us there is no proof whatever of any stress of weather, so far from it, some of the witnesses speak of the weather as mild. The plaintiffs below no doubt labored under disadvantage from the color of the crew which navigated the vessel, but the courts can only consider the case as presented to them. If there was no stress of weather to occasion a leak, and the vessel sprung-a-leak soon 'after she started on the voyage, the presumption arises to which we hive referred, and the plaintiffs could not recover.

The case in 1 Johnson’s Reps., 241, was decided by a majority of the court on the peculiar facts which constituted it. In the case of Talcott vs. The Commercial Insurance Company of New York, 2 Johns. Rep., 123, the case in 1 Johnson is fully reviewed, and it was there held, where a vessel, with a fair wind and moderate weather, and in the evening of the same day suddenly sprung-a-leak, in consequence of which she foundered, without any apparent cause or extraordinary accident to which the leak could be ascribed, in an action on a policy of insurance that the loss was to be presumed to have arisen from her not being seaworthy at the time she sailed, and that the insured were not entitled to recover.

In these cases it was proved that the vessels sprung-a-leak without any apparent cause, soon after they had left the port. In the present case the prayer assumes, that the damage was occasioned'by a leak to be ascribed to the defectiveness of the vessel, and to no other cause. The jury would probably have found the fact to be as assumed by the prayers, but the court erred in taking that question from their consideration. The presumption of law is, that the vessel was seaworthy. Whether the evidence removed that presumption was for the jury and not for the court. Ragan vs. Gaither, 11 Gill and John., 479. Charleston Ins. Co. vs. Corner, 2 Gill, 426, 427. Grove vs. Brien. 1 Md. Rep., 438; and Brown vs. Ellicott, 2 Md. Rep., 81.

Judgment reversed and procedendo awarded.