Catlett v. Pacific Insurance , 1 Wend. 561 ( 1828 )

By the Court,

Sutherland, J.

The most important inquiry in this case is as to the relation in which Thomas R. Keith stood to the plaintiffs on the record at the time when the insurance was effected, or the policy attached, and also when the loss occurred at the Isle of France.

If he was one of the assured, then he was a party to the contract, and should have united in the action; and upon that hypothesis, it seems also to be conceded that his interference with the property after the disaster at the Isle of France, would discharge the underwriters. (Ogden & Murray v. N. Y. Ins. Company, 10 Johns. R. 177, and 12 Johns. R. 25, S. C. in error, and cases there cited. See also 6 Crunch, 272.)

The policy bears date on the 2d day of February, 1818. The only designation which it contains of the assured is in its commencement, where it states, “ that Le Roy, Bayard Co. on account of the owners, did make insurance.” The authority under which they acted in procuring the insurance, is proved to have been the letter of Charles J. Catlett to them of the 29th January, 1818. In that letter, Mr. Catlett requests that the insurance may be effected on the joint account of Mr. James Keith, jun. and himself. That such was the intention of Catlett and Keith at the time, and that they supposed that the policy in question was on their sole account., is further proved by the testimony of captain Page, who states, that when Catlett was first apprised of the intention of Mr. James Keith to give his brother an interest in the adventure, and was asked by James Keith whether that interest was an insurable one, he replied that it was, and that they (Catlett and James Keith) were then insured about $30,000, and that he would write to Mr. Perkins, of Boston, to effect further insurance, and that Thomas R. Keith’s interest should be insured in the Boston policy.

We accordingly find, that on the 5th of March, 1818, Mr. Catlett writes to Mr. Perkins, his Boston correspondent, and requests him to effect insurance on $26,000 of the specie, for account of James Keith, jun., Thomas R. Keith and Charles J. Catlett, and states in his letter, that James Keith, jun. and himself had already had insurance effected on $80,000. But this evidence is objected to as incompetent on the following ground : That it appears from the deposition of captain Page and the other evidence in the case, and indeed is not denied, that Thomas R. Keith had an interest in the cargo to the amount of one sixth, previous to the lading it on board the vessel; that the term owners in the policy means, in judgment of law, owners at the time when the policy attaches, which is when the cargo is put on board ; that such being the construction of law upon the policy, and it appearing that Thomas R. Keith was at that time interested in the cargo, he was an owner, and therefore one of the assured within the meaning of the policy; and that parol evidence was inadmissible to control or explain the intendment of law. The principle here advanced, I apprehend, is not applicable to a case like this; the assured were not named in the policy ; who they were, must therefore be ascertained by extrinsic evidence. The general term owner is used not, as it seems to me, in its strict technical and legal sense, but as equivalent to whomever it may concern, leaving the party who may claim the benefit of the policy, to establish by evidence, that he caused it to be effected for his own security. This principle seems to be fully recognized in the case of Lawrence and Whitney v. Van Horne and Clarkson, (1 Caines, 276.) There it was a joint adventure by three parties, having distinct interests. The plaintiffs being one of the parties, effected an insurance to a certain amount, on the cargo generally, whether in their own names or as owners does not appear ; and it was contended that the legal construction of the policy was, that the whole cargo was insured, and that it was not competent for a party, under such a policy, to aver in his declaration an interest of one third and recover accordingly ; that he was bound to specify in his policy the interest in the cargo which he intended to insure. But it was held by the court that the assured is not required to slate the particular interest or proportion of interest which he intends to have insured; that it is sufficient if he have an insurable interest to the amount insured, and it is immaterial whether it be a distinct or undivided share. And it is remarked, that it may often be difficult to ascertain the interest of each with certainty; that the owners are equitably entitled to their shares in severalty, and that the interest of each ought to be permitted to be severally enforced under a general policy. In the present case, (it is further observed by the court,) it appears that the insurance was in fact intended for the several interest of one of the parlies, and a witness, who was one of the partners, testified that the plaintiffs had no authority to insure except on their own account. Now if it be admissible to show by extrinsic evidence, that the term cargo, as used in a policy, means not the whole cargo, but an undivided share or interest in it, why is it not competent to shew 'by the same species of evidence, that the word oimiers, in a policy, was not intended to embrace all the owners, but such of them only as caused the insurance to be effected 1 The evidence contradicts the policy as much in the one case as in the other; but in truth, it is no contradiction ; it is only reducing to certainty that which was left uncertain by the general phraseology of the policy. (Murray v. The Columbian Ins. Company, 11 Johns. R. 311. Marsh, on Insur. 682, 710, 730. Lawrence v. Sebor, 2 Caines' R. 203.) I am of opinion, therefore, that the plaintiffs were properly admitted, to show that the insurance was effected by them, to cover their own individual interest in the adventure, and that they have shown it by competent evidence. The action, therefore, is properly brought in their names only, and they cannot be prejudiced by the acts of Thomas R. Keith, on the ground of his being one of the assured.

If Thomas R. Keith was not one of the assured, then it seems to me not very important, to determine what was the precise character of his interest in the adventure. If he was a partner, it was in a limited and special partnership, confined to this transaction only ; and I am inclined to think that the views of judge Thompson on this point are sound; that, under the. circumstances of this case, admitting Thomas R. Keith originally to have been a partner, his power and authority as partner were, when the voyage commenced, merged in his character of supercargo. (1 Paine’s R. 619.) I do not perceive the legal absurdity which this position is supposed, by the .defendant’s counsel, to involve. An adventure is agreed upon, upon the joint deliberation and advice of all the parties concerned. Its details are arranged, and all the precaution taken to render it successful, which the joint wisdom of all can suggest. Cannot one of the partners be deputed, under special instructions as supercargo, to carry the views of all into effect, without arming him with authority to substitute his own judgment and discretion in lieu of his special instructions % It may be conceded, without affecting the argument in this case, that, in relation to third persons, ignorant of his special character, dealing with him as partner, his acts in relation to the partnership property, would still bind all the partners; for here, the special character in which Thomas R. Keith acted for the voyage, was known to Capt. Page. He admits that he had frequently seen his letter of instructions, and his own letter of instructions discloses the fact that Mr. Keith accompanied him as supercargo. It directs him to proceed to Canton, in China, and there deliver his cargo to Mr. Thomas R. Keith, supercargo on board. The bill of lading, signed by the master, speaks the same language, and binds him to deliver the cargo at Canton, to Thomas R. Keith, supercargo. As supercargo, he had no control over the cargo, until it arrived at the port of destination ; and the master had no right to deliver it to him in that character until then. After the disaster, the master became the agent of whomsoever it might concern. If there was a valid abandonment, he became the agent of the underwriters; and his delivery of the cargo to Thomas R. Keith, (if it is to be considered as a delivery to him,) was a delivery to him as his own agent; and the subsequent acts of Keith are to be considered as the acts of the master. They were, at all events, not the acts of an owner. (7 Johns. R. 412, 514.)

2. The proof of loss was prima facie sufficient. The master states, in his deposition, that the surveyors, after a thorough examination, reported that the vessel could not be repaired at the Isle of France for less than §20,000; upon which report, and the request of the deponent, the court of vice-admiralty directed her to be sold. It is said that the master does not even state that he believed the report of the surveyor in this respect to be true; but that is the necessary inference, when he made it the foundation of an application to the court of vice-admiralty, for her condemnation and sale. The only proof of the value of the vessel, is contained in the letter from Mr. Catlett to Le Roy, Bayard & Co., of January 29th, 1818, under which they effected the policy. It is there valued at §10,000 ; and if that letter is competent evidence, it is sufficient. No doubt was ever expressed by the defendant, that the technical total loss was sufficiently established. They put their refusal to pay on other grounds.

8. The warranty of American property was sufficiently established. It is proved, by the affidavit of Charles J. Keith, of the 2d April, 1819, that she was owned by citizens of the United States. She cleared from an American port; and I am inclined to think that the register -was sufficiently proved. A copy was produced from the treasury department of the U. S., (where the original is required to be filed after a vessel is condemned,) certified by the register of the department, and the fact of his being register, attested by the secretary of the treasury, under the seal of the department. Proof that there was a register, was prima facie evidence that it was on board during the voyage. (2 Serg. & Rawle, 133.)

4. As to the question of interest: it commenced 30 days after the preliminary proofs were exhibited to the officer. There is no direct positive proof in the case when they were exhibited. The abandonment was made on the 24th February, 1819; and the principal documents to establish the interest of the plaintiffs, appear t.o have been prepared as early as February and April of that year. I allude to the affidavit of Charles J. Catlett and James Keith, jun., of the 27th of February, 1819, and the separate affidavit of Catlett, of the 2d April, 1819. The agreement between the plaintiffs and the defendants, of the 26th July, 1819, which is attached to and made a part of the case, shows, 1. That the plaintiffs at the time knew that the cargo had been invested in cotton at the Isle of France, and shipped to Liverpool; and 2. That a suit was then contemplated against the underwriters.

Now the . probability is extremely strong, that the knowledge of the defendants as to the transaction at the Isle of France, was derived from the preliminary proofs; and it is also very improbable that the parties, in a formal article of agreement, would speak of a contemplated suit, if the foundation for a suit had not already been laid, by the exhibition of preliminary proofs, and the refusal of the underwriters to pay; this evidence is corroborated, in some degree, by the testimony of Sands and Jones, the former secretaries of the company. Mr. Jones was secretary at the time of the loss; and payment, he says, was resisted on various grounds. Payment could not be demanded until the preliminary proofs were exhibited, and the grounds on which it was resisted grew out of them also.

I think it is established prima facie, by the testimony of Mr. Bayard, that the letter of Catlett to Le Roy, Bayard & Co., of the 29th January, 1818, which requested insurance to be effected, was exhibited to the underwriters when the insurance was effected.

On the whole, I think a jury would be authorized in inferring from the facts and circumstances in the case, that the preliminary proofs were made some time during the year 1819, and the interest, therefore, ought to commence, say from January, 1820.