Osborne v. New York Mutual Insurance , 2 Silv. Sup. 568 ( 1889 )

Pratt, J.

The most important matter for consideration is whether, upon the proofs introduced as to seaworthiness of the vessel, the plaintiffs were entitled to go to the jury on that question. The testimony on this point of Capt. Osborne is to the effect that on the voyage from Cape Town to Pernambuco the vessel was in splendid condition, and arrived at Pernambuco in good condition, December, 1885; was in good condition when towed out of the harbor to begin the voyage upon which the loss took place. The testimony of Capt. Osborne is criticised as being that of the person whose conduct is under investigation, and who may also be considered to have a money interest in the litigation; his wife being the plaintiff. But he is corroborated by the testimony of the official surveyor, who examined the vessel, June 29, 1885, and found her seaworthy, and 'so reported. He says he went all over her very carefully, and as far as he could see she was in good condition. He saw no signs of old age about her; there were no missing beams. Upon the report then made the rating of the vessel in the shipping record was continued for a year. The chief surveyor of the board of underwriters, of which defendant isione, testified for plaintiff, and explained that when a vessel had had her rating five years, and it was extended one year, except in a vessel built in the Mediterranean, she was pretty near her end. Seaworthiness is a relative term, not an absolute one; and, when it is held that it is a condition precedent to an insurance policy taking effect that the vessel be seaworthy, it is not intended that a vessel 14 years old, at nigh to lose her rating, must be understood as being equally sound as a new vessel with a higher rate. An illustration is found in the testimony of McLeod, called by defendant, who states that when in command of a sugar vessel he discovered a leak while at the wharf in Cuba, yet he started for New York with the leak, and considered it good seamanship. The vessel reached home in safety, and when put on the dry dock two planks in the bottom w-ere found broken. Being asked if he considered her séaworthy when in that condition, he says, “That is rather a difficult question" to answer,” but, under all the circumstances, considered that it was. The argument of defendant is that, in view of the facts shown by the log that no extraordinary weather prevailed, the loss of the vessel shows conclusively that she was unseaworthy when the voyage began. After some hesitation we are of opinion that the testimony justified the submission of the question to the jury, and that their verdict must control. The exception by defendant to the evidence of the prices demanded by mechanics in St. Thomas to make the repairs necessary to enable the vessel to continue her voyage was not well taken. The plaintiff had the burden of showing the expense of making such repairs. To do that the advertisements for sealed proposals were put in evidence, and also the lowest bids received. These were competent for the jury to consider in connection with the other evidence. In the absence of collusion or fraud, they would go far to show what would be the expense of making the repairs. The exceptions to the charge to the jury do not require discussion. Upon the whole case we are of opinion that the verdict should be affirmed, with costs.