Peters Another v. Phœnix Insurance , 3 Serg. & Rawle 25 ( 1817 )

Tilghman C. J.

After having stated the facts, delivered the following opinion.

No authority has been produced in support of the first objection. When a ship, which has received damage, puts into port to repair, the captain, or agent, who superintends the repairs, is bound to use due diligence. But it may be impossible to make a complete repair, either for want of materials, or of skilful workmen, or of accommodations for heaving the ship down, in order to make a thorough search. This objection was not urged at the trial. If it had been, the jury might have judged, whether there had been negligence. The law implies no warranty of sea-worthiness, except at the commencement of the voyage. To say, therefore, that a ship, which has suffered damage by a peril insured against, must, at all events, be so repaired at the port she puts into, as to render her sea-worthy, is to add to the contract a condition not contained in it.

On the second point the counsel for the defendants seem to have fallen into an error, from not attending to the distinction between an actual total loss, (by the sinking or burning of the ship,) and that kind of loss which is total not in fact, but in contemplation of law, viz. when damage has been suffered during the voyage to the amount of 50 per cent. In such case the assured is permitted to abandon. The loss is partial in its nature, and the only question is on the amount of the damage. If under 50 per cent, the assured is not permitted to abandon; if equal to 50 per cent, or above it,- he may abandon. This is the very point on which the case of Cazalet v. St. Barbe,^(a) turned. The jury found the damage to be only 48 per cent.; and for that reason only the plaintiff could not recover for a total loss. About the payment of 48 per cent., however, there was no dispute; for the defendant brought it into Court upon his plea of tender. But the defendant’s argument in the present case leads to this conclusion; that the plaintiffs could not have recovered even for a partial loss below 50 per cent.; a proposition so contrary to justice and common experience, that it will not be seriously asserted. Two cases were cited by the defendant’s counsel, which shall be noticed. In Lockyer v. Offley, (1 Term Rep. 252.) after the ship had been moored twenty-four hours, she was seized for an act of smuggling committed by the captain during the voyage, which amounted to barratry. It was held that the underwriters were not liable. The reason is plain; there was no loss till seizure, and whether a seizure would ever be made was uncertain, until it actually was made. At the time that the policy expired therefore, (twenty-four hours after the mooring of the ship,) the assured had lost nothing; which is altogether different from the present case, where the damage had been sustained before the mooring of the ship. In the other case, Meretony v. Dunlope, cited by Justice Willes, in Lockyer v. Offley, the ship received her death wound during the voyage, but was kept afloat by pumping, till after the policy was expired; and held that the underwriters were discharged. We have no report of this case which informs us °f die nature of the policy. It was probably of that kind . which precluded the assured from recovering for a partial, loss; otherwise this decision would be contrary to other cases °f unquestionable authority, and could not be law.

The defendant’s third objection is, that if they pay for a total loss, they are entitled to the freight earned by the brig after she received her death wound, which is supposed to have been on the bar near Charleston. ' If this point had been urged at the trial, and the Judge had given his opinion against the defendants, it would have been proper to take it now iñto consideration. But the claim of freight was not made then, and therefore cannot be a reason for a new trial. If indeed the defendants had a just claim, and would be without remedy in case the verdict stands, it might be a strong reason for listening to the argument, even at this late stage. But it is not so. The defendants not having brought the matter of freight before the jury in this action, are at liberty to prosecute it in another action.

The last reason offered for a new trial is, that the verdict was against the weight of evidence. Without entering into an examination of the evidence, suffice it to say, that the Judge who tried the cause is satisfied with the verdict; and although it is a case which admits of plausible arguments on both sides, yet the scale does not preponderate on the side of the defendants so decidedly as it ought to do, to justify the Court in granting anew trial. I am, therefore, of opinion that the verdict should stand.

Ye ates J.

The charge which I gave to the jury on the trial has not been questioned in point of law. It appeared clear to me, that if a vessel received her death wound by events which occurred during the voyage insured, without default in the master or crew, it was of no moment when the loss was ascertained, although subsequent to her arrival at her port of destination. It was left to the jury to decide whether the injuries were received during the outward passage to the island of Madeira; and the case chiefly turned on the credibility of the testimony of the captain and mate. I gave the jurors the instructions which I deemed proper as to weighing their testimony, telling them, at the same time, that, as mercantile men, they were much more competent judges of the facts than I could be; and that it was their peculiar province to determine the credibility of the witnesses. I see no reason to disapprove of their verdict, and therefore concur in denying a new trial.

Gibson J. expressed his concurrence.

New trial refused.

(a) Cited in 2 Marsh, 583.