Coolidge & Oliver v. New-York Firemen Insurance , 14 Johns. 308 ( 1817 )

Spencer, J.,

delivered the opinion of the court. The points arising from the case, and to which the arguments of the counsel ^have been directed, are,

1. Upon the obligation.of the assured to have the necessary (jocuments on board, showing the national character of thé vessel, and whether there is legal proof that such documents were on board at the time of the capture. *

2. Upon construction warranty, in case capture, or detention, by the British or Americans, the usual peace sea-risk was to continue, as well during capture as after and before; and

3d. Upon the particular nature of the loss.

The warranty here is, that the ship was American property; and there can be no doubt that such warranty imports not merely that she should be American property, but that she should be accompanied, during th'e voyage, with all the accustomed and necessary documents evincing that character, and insuring respect to it as such, within the laws of nations. This point has been repeatedly and solemnly adjudged in this court. (Blagge v. The New-York Insurance Company, 1 Caines’ Rep. 545.; and Barker v. Phœnix Insurance Company, 8 Johns. Rep. 307.) This is also the doctrine of the English courts. (5 East’s Rep. 99. 398.)

Was this warranty complied with ? The plaintiffs gave in evidence a copy of the register, under the hands and seals of the collector and naval officer of the port of Boston and Charlestown, certified by them to be a true copy of the register of the ship Mark and Abigail, as recorded in that office; and that the certi. ficate of registry with which she was cleared for Cadiz, in December, 1812, was also a true copy of the record.

The 9th section of the act of congress of the 31st December, 1792, (Vol. 2, 131.,) requires the collector of the district, comprehending the port to which any ship or vessel shall belong, to make and keep a record or registry thereof, and to grant an abstract Or certificate of such record or registry, in the form prescribed; and the 10th section, after requiring the secretary of the treasury to prepare and transmit the forms of the certificate of registry, attested under the seal of the treasury, and tb,e hand of the register, directs the certificates to be signed and sealed by the collector before they are issuéd, and to be countersigned by the naval officer, when there shall be one; a copy of each of which shall be transmitted to the register, who is to cause a record to be kept of the same..

To prove the ownership of the vessel in the plaintiff, and to show that she was documented as an American ship, it was proved, that the signature of Mr. Dearborn to the certificate of registry, was his handwriting. This evidence was objected to, but the objection was overruled, and the copy was read. The record required to be kept by the collector of the registry of ships or vessels, is such a one, that a copy of it, compared with the original by a witness who can testify to its being a true copy, would be good evidence of the facts it sets forth; (4 Dallas, 415.,) but 1 have strong doubt whether the copy produced here is entitled to be admitted in evidence upon the proof of the handwriting of the collector. He is authorized to grant an abstract or certificate; but this accompanies the vessel, and is delivered to the owner or master, and it is authenticated under the seal of the treasury, and the hand of the register of the treasury ; the collector is not authorized to grant copies generally. Then the rule of law applies, which declares, that when an officer is not intrusted to make out a copy, and has no more authority than a common person, the copy must be proved in the strict and regular mode. (Phillips’ Law of Evid. 292.) The proof of Mr. Dearborn’s handwriting cannot alter the case, for if the copy was evidence, as emanating from a person entrusted for that purpose, it would require no other proof; and if he is not entrusted by law to give copies, proof of his hand would not verify the paper. Besides, here is no proof of the signature of the naval officer.

It would be proper, and it is certainly expected, that the court should pronounce an opinion on the merits of the case; and it is believed to be one of the first impression.

The insurers warrant the ship free from loss, by the British, or Americans, but in case of capture or detention by either the usual peace sea-risks are to continue. The case occurred of a capture by the British, and the question is, whether the loss of the vessel, or her irreparable condition, arose from a usual sea-risk during the capture.

We have decided, (Robinson v. Marine Ins. Co., 2 Johns. Rep. 89.,) that where the insurance was against sea risks only, and a deviation from necessity had taken place, the deviation excused the assured, as well in such a case, as where the insurance was general. This decision was urged as applicable to this case, but it does not seem to me to be so. If, after the capture, the ship had been lost by a sea-risk, strictly speaking, ununderwriters would be answerable; but if the im- mediate and proximate cause of the loss is attributable Loan act on the part of the captors, which act, if done by the assured, would absolve the insurers from the loss, then I cannot but think the insurers would not be liable. This leads us to the evidence in the case; and I think it perfectly clear, that the loss is attn- butable to the mooring the vessel in a dangerous and exposed situation in the bay of Gibraltar, instead of bringing her into the harbour. Whilst in that situation, several vessels ran foul of her, and she was exceedingly injured~ The survey, which has been given in evidence, calculates the expense of repairs ex- clusively on injuries received whilst she was thus exposed; and I think it cannot he doubted, that had the vessel been thus moor~ ed by the assured, and no capture had intervened, the insurers would not have been liable, on account of the culpable negli. gence of the master. To hold that the defendants are answerable, in consequence of an act of the captors, so highly culpable and improvident, when the defendants' liability is restricted to the usual peace sea-risks, would, in fact, render them responsible for a risk not a peace-risk. ALBANY, Augiist~

It is manifest to me, that the leaking of the vessel before the capture, did not render her innavigable; it is not proved, nor can it be pretended, that it did.

Judgment for the defendants.