Turner v. Protection Insurance

The opinion of the Court was drawn up by

Shebmy J.

This suit is upon a policy of insurance on the freight of goods composing the cargo of the barque Isadore during a voyage from Havana to St. Petersburg, with liberty to go to Matanzas to complete her lading. The vessel appears to have sailed from Matanzas on July 6, 1844, and to have been lost with her cargo on Trundy’s reef, near Portland, on the morning of the second day of August following. It was contended in defence, that the vessel was not seaworthy; and that she deviated from the course of the voyage. The jury having found under proper instructions, that she was seaworthy, that point of the defence is not now presented for consideration. A motion has been made to have a verdict for the plaintiff set aside on the ground, that the testimony does not show sufficient cause for the admitted deviation. It is also insisted, that the instructions did not state the law correctly, respecting the duties of the master in relation to it.

The motion to set aside the verdict on the alleged defect of proof will be first considered. It appears from the testimony of the master, that the vessel after leaving her port met with rough weather and a heavy, short sea. That she soon leaked so much as to require at times three thousand strokes of a pump in an hour to keep her free; that on the morning of the eighteenth of July the crew made a representation to him, that they were exhausted by their labors at the pumps, and that they requested him to make a port. He states, that it was perhaps safe to have kept on their course, and that he should have kept on his course had it not been for the crew’s coming aft, as they did, and refusing to pump. That during that day he altered his course with the intention of going into Boston bay to make a port. He then supposed his vessel to be in latitude 34° 13', and longitude 68¿-, and to be three or four hundred miles from the Chesapeake bay, and about the like distance from the Delaware. The wind, as he states, was fair for Norfolk, and that was a convenient port for making repairs. That he made Gay-head, on July 29, was within fourteen miles of Cape Cod on July 31, and he might, have run into Boston, but the weather was coming on thick and hazy, and he was afraid to, as a southeast wind drives the fog into the bay. That he was twenty or thirty miles nearer to Boston than to Portland. That he thought Portland the most safe and convenient port, and much easier to enter. That in going into Boston he must lay by for a pilot; that he was a sufficient pilot to take the vessel into Portland; that he knew more about the port, than he did about the port of Boston; that he considered the difference in distance between Boston and Portland more than compensated by his better knowledge of Portland harbor; and that it was as easy to make Portland as any other harbor, after he made the land. The defendants introduced the log-book and the testimony of a couple of masters of vessels. Their testimony does not greatly differ from that of the master in any essential particular.

The counsel contend, that the master should have made the port of Norfolk, and omitting that, the port of New York, or of Newport, or of Boston, as he had opportunity. They have caused a calculation to be made from the log-book by taking the bearing and distance of the vessel from great Bahama isle on July 10, and from Gay-head light, on July 29, to exhibit her position on the ocean during several intervening-days, and thereby to show, that on different days she was much nearer to some one of those ports than the master stated her to be. And it is said, that the winds appear by the log-book to have been fair for her to enter them. By that calculation she would appear to have been within 173 miles of Norfolk on July 19 ; within 39 miles of Sandy Hook on July 25 ; and within 18 miles of Newport on July 29.

It is insisted, that the master had no right to neglect or refuse to enter either one of them for the purpose of attempting to reach a port in Boston bay or the port of Portland. When the question for consideration is, whether the verdict of the jury was unauthorized by the testimony, the Court must judge of their conduct from the testimony presented for their consideration, and not from calculations, however correct, which were not presented in the testimony, and which they could not be expected to make. To enable a person to make such calculations he must be informed of the latitude and longitude of the several ports and points of land, and the results would still be subject to the uncertainty occasioned by currents in the ocean. Masters or pilots, having a knowledge of these, might be enabled to state the vessel’s place on different days with a sufficient degree of accuracy for practical purposes by an inspection of the-log book. But the Court would not be authorized to consider, that jurors had been negligent of duty, should they make no attempt to ascertain it. Especially in this case, when it appeared from the testimony of one of the masters introduced by the defendants, “that a ship’s place could not be accurately ascertained by the log-bookand from the testimony of both of them, that a master on the deck of his vessel could judge better than any other person, of the propriety of attempting to make a particular port. The Court is not authorized to set aside this verdict for any neglect of duty or misconduct of the jury.

With respect to the law applicable to the case the counsel insist, that the vessel should have proceeded to the nearest port, where she could have been conveniently repaired, in preference to one more distant and more nearly in her course and more convenient for making the necessary repairs; and that the jury should have been so instructed. They contend, that as soon as a vessel becomes unseaworthy, it is the duty of the owner to make her seaworthy with the least possible delay; that his interest to pursue the voyage as nearly as may be, and to find the most convenient port to repair, is not to be preferred to his duty to keep his vessel seaworthy. If this should be admitted, it could not be decisive in this case, as the testimony does not fully prove, that the vessel was in so dangerous a condition, as to make it necessary, that she should seek a port for repair, the master stating that he should have kept on his course, if the crew had continued their labors. If the vessel was not in such peril as to require an immediate departure from the course of the voyage, it could not have been justified, if the crew had not insisted upon it. If the master from prudential considerations should in such case defer to their judgment, influenced perhaps by their fears or desire of ease, he should yield no further, than the circumstances, in which he was placed, seemed to require; and should depart from the course of his voyage as little, as he could and secure their performance of duty; and provide for any anticipated danger.

But it cannot be admitted, that the law is correctly stated in those propositions. The primary purpose of the owner of the vessel and of the cargo, and of others interested, is to have the voyage completed without unnecessary delay. This is known to the insurer, when he takes the risk. If the vessel suffer injury during the voyage, that risk may be increased by her weakness, or loss of rigging, or of sails, occasioned by stress of weather; and yet that injury may not be so great, that the master would be justified in departing from the course of the voyage for repair. The insurer cannot insist, that the voyage shall be delayed or varied, that the increased risk may not be continued, or that it may terminate as soon as possible. Upon the same principle, if the vessel have suffered such damage, that she cannot safely proceed to her port of discharge without repair * yet so long as she may be expected by an intelligent and faithful master to pursue her voyage in safety, she will be entitled to do so. The interest, of the insurer is not, therefore, the controlling consideration, that should influence a master to depart from the course of his voyage. That consideration is the safety of life. Next to that is the preservation of the property entrusted to his care; and the pursuit and accomplishment of the voyage can be forsaken or delayed only so far as it may become necessary for the security of life and property. When this requires an instant and entire departure from that course, the duty of the master is determined, and he must seek the nearest land, which he can hope to reach, if the peril be so great as to outweigh all other considerations. When the vessel cannot safely pursue her course to its termination, and the danger is not imminent, her departure from it should be as little, and her delay as short, as it reasonably can be, for the purpose of making such repairs as may enable her to complete the voyage in safety. To determine what port to seek for repair, the master should consider the extent of the danger, its position as near to or more distant from the course of the voyage, and the facility and speed with which the necessary machinery, materials and labor can be procured and applied to the vessel’s use. The roaster in most cases must necessarily be the principal judge of the degree of peril, to which his vessel is exposed, and of her ability to proceed with safety to a nearer or to a more distant port, and of the facilities for repairing her at different ports. If he be competent and faithful, his decisions respecting these matters, made in good faith, should be satisfactory to all interested, although he should err in judgment. The position stated by Marshall, c. 12, <§> 2, has been in substance affirmed by cases decided in this country. Wiggin v. Amory, 13 Mass. R. 123 ; Graham v. Commercial Ins. Co. 8 Johns. R. 352. Marshall states, that one general principle pervades all the cases; that if the master in departing fi;om the usual course of the voyage from necessity, acts bona fide and according to his best judgment, and has no other view but to conduct the ship by the safest and shortest course to her port of destination, what he does, is within the spirit of the contract, and the voyage will still be protected by it. In the case of Lavabre v. Wilson, Doug. 284, Lord Mansfield stated, that a deviation from necessity must be justified both as to substance and manner. Nothing more must be done than necessity requires. This would not authorize a master, who judged, that he was in no imminent peril, to depart entirely from the course of the voyage to seek the nearest port, where he could conveniently refit. In the case of the Maryland Ins. Co. v. Le Roy, 7 Cranch, 30, the opinion states, that a deviation must be strictly commensurate with the vis major producing it. Probably the idea intended to be conveyed was, that the deviation must be as great and no greater than the impending danger required.

It is further contended, that if the master could be permitted to depart from the course of the voyage for a port in Boston bay, that he should have strictly adhered to his newly adopted course and voyage, and should not have departed again to seek the port of Portland. There can be no doubt that it was his duty to pursue that new course without delay or deviation, unless prevented by some unforeseen obstacle. Such he alleges, that he found in the state of the weather, by which the fog was carried into that bay to such extent as to render it dangerous to attempt to enter a port there. In his conclusion, that it was better under the circumstances stated by him to attempt to reach Portland, rather than Boston harbor, he appears to have been justified by the testimony of the masters introduced by the defendants. One of them states, that “ if the weather was thick he would keep off and keep out rather than make for Boston bay. That Massachusetts bay is worse than Casco bay in thick weather.” There is no testimony in the case tending to prove that he did not act in good faith in the selection of Portland harbor as the one which he might hope to reach with the least danger. There is no rule of law, which would control him so absolutely as to prevent his acting as he judged to be best for the preservation of the lives and the property entrusted to his care. It will be perceived, that the principles before stated would fully authorize the instructions, which were given, and there must be judgment on the verdict.