Dow against Smith

Dow against Smith. • Two hands, including the master, are not a sufficient crew for a vessel of 35 or 40 tons, from New-York to Edenton, in North Carolina, and the court will decide on the insufficiency. An adjustment made on a full disclosure of all circumstances is conclusive, though some may be suspicious. Adjustment not to be opened except for fraud, or a mistake from facts not known. This was an action upon an adjustment at sixty per cent, on a policy of insurance, upon the schooner Industry, from Hew-York to Edenton, in Horth Carolina, valued at five hundred pounds. The policy was dated the 4th of April, 1795 ; on the 16th of the same month was made. At the trial of the cause before Mr. Justice Lewis, on the 3d of July, 1801, the plaintiff produced the adjustment, and there rested his cause. The defence set up was fraud. To prove it, the deposi tian of one Jonathan Stratton was adduced, stating, that in March, 1795, he sailed from the port of Hew-York, in the Industry; that there were no other persons but Joseph Dow, the master, and himself on board; that Dow said, the schooner was going to South Bay, on Long-Island, for which place the deponent was shipped; that the schooner had no cargo or ballast on board, but had provisions usual to go from Hew York to South Bay; that the schooner got aground on the beach, on the Jersey shore; that in a day or two after the accident, the captain left the schooner and went to Hew York, and returned to this deponent about a week after, and informed the deponent he had been to Hew York; that the schooner, to go to Horth Carolina, ought to have had four hands, including the master; thinks the scnooner was about forty tons burden; that he never was at Horth Carolina, and does not particularly know the navi gation, but has an idea of the necessity of four hands. To rebut this, the plaintiff showed the deposition of Joseph Dow, which stated, that about the 25th of March, 1795, he sailed from the port of New York, in the Industry, as master, on a voyage from thence to Edenton, *in North Carolina; that Jonathan Stratton was [*33] the only mariner on board, together with this deponent ; that another hand was engaged to go, but that he fell sick, and left the vessel before she sailed; that he was not in New York until he came with Stratton, after the said vessel had grounded, nor did he ever inform Stratton that he had been in New York while he was so absent from the vessel as aforesaidthat there was no cargo on board, but the witness had between five and six hundred dollars, some in specie and some in bank notes, for the purpose of purchasing naval stores; that the money was not insured; that the schooner was about thirty-five tons. To discredit Stratton, the plaintiff read a protest made before John Keese, Esq., a notary public, in which the said Stratton had joined, which was as follows: Before me personally came and appeared Joseph Dow, late master, and Jonathan Stratton, late mariner, of the pettiauger Industry, who, being duly sworn, depose as follows : That they sailed in and with the said pettiauger from. Coney Island the twenty-sixth day of March last, in ballast, bound to Edenton, in North Carolina, with a light breeze from the westward; that about one o’clock in the afternoon of the same day, the wind haled round to the north, and from that to the northeast, and then to the east, and then began to blow so hard that they were forced to take single reefs in the sails, and take in the jib, and soon after to double reef the sails: at four o’clock the wind blew so violent that it split the foresail so much that they could not set it: they then set the jib, and made the best of their way for Sandy Hook, and on the twenty-seventh got round the Hook, and then the sails were so much frozen that they could not handle them; that they were obliged to let go their largest anchor, but a very heavy sea running, and the vessel pitching bowsprit under, she parted; that they ' then endeavored to claw off shore, but the gale continuing very severe, and the mainmast sprung, and the vessel very leaky, they were under the necessity of running the vessel on shore on a sandy beach, in order to save her, and for the preservation of their lives; that they used every exertion in their power to get the vessel off, but without any effect. *Upon this testimony, the jury found for the plaintiff. Hoffman, on behalf of the defendant, now moved to set aside the verdict, as against law and evidence; for fraud, and unseaworthiness. The facts, he argued, were sufficien! to bear down any erroneous conclusion which had bee::, made. • The adjustment, on which the action is founded, was manifestly obtained by fraud, and the testimony coul. I never induce a contrary opinion. The verdict is not only thus against evidence, but against law ; for there was not a sufficient crew on leaving Hew York. • Heither this circumstance, nor any other, was communicated to the insurers; the vessel was aground in South Bay on the 26th of March, and on the 4th of April there was no information of it in Hew York. This is enough to excite suspicion. From the deposition of Stratton it appears the captain went to Hew York, and the policy is effected on the 4th of April, Avhen the vessel is laying aground. If he had tried to procure assistance, that should ha\*e been proved by "those he applied to. From the time of her getting on shore, notice of her situation might have been sent to Hew York by land in tAventy-four hours; by sea in less. This Avas like the case of Fitzherbert v. Mather, 1 D. & E. 12. There the agent of the plaintiff had sent orders for insurance by the post-, but was informed of the loss of the vessel before the post went out, and did not contradict them: it was held to vacate the policy, because a concealment of a fact, that might have been made known. So here the captain was to this purpose the agent of the underwriter. The vessel, too, had no ballast on board when she left- New York; the policy was at and from, and it was impossible to take it in at Coney Island, in the course of the night, so as to sail by daybreak next morning, with only one hand and a yawl, At all events, the going there was a deviation, as no usage is found to warrant it. The want of a bill of lading for the seven or eight hundred dollars, stated by the captain to have been aboard, must be taken- as a supplementary circumstance to impeach his credibility, especially as he is contradicted in essential points by Stratton. But on the testimony of both, the insufficiency of the crew appears • for two hands could not be adequate to the working a vesof forty tons, as she is stated by one, or even thirty-five, as by the other. That on the incompetency of the crew the court had *a right to determine in the [*85] same manner as on the point of seaworthiness. Jones, contra. This motion is made on two grounds: fraud, and the want of a crew. The court will observe, that the action is brought after an. adjustment, and therefore will demand very strong reasons for setting aside the verdict. It is remarkable, that every circumstance now relied on might have been availed of at the trial, and was in the full knowledge of the underwriter when he made the adjustment: for, by the protest submitted to the defendant, on the facts set forth, in which he made his adjustment, it appears every fact, date of sailing, &c., was told him. This protest was made on the 15th of April, and the adjustment on the 17th, with no other proof of loss submitted than the protest itself. In this Stratton joined; and, from the size of the vessel, the defendant must have known it was her • whole crew. Every thing, therefore, was taken into consideration before the adjustment; and it was made, it being thought there was not any grounds to warrant a refusal to ' pay. The captain denies going to New York when he first landed: this was a point of who should bé believed, the master or Stratton: the jury have decided. No one ever saw him in New York. There is no evidence of communication between the captain and plaintiff who resided at Islip, forty miles from New - York. On his arrival at New York he heard of a very severe gale of wind; it was a few days after his vessel sailed, and therefore he insured her. Fitzherbert v. Mather does not apply. There the agent was employed for the express purpose of making an insurance, and though a captain be an owner’s agent, he is not an agent to insure. In the case cited the agent had ordered the insurance; he, therefore, was the person to communicate. The crew was sufficient; the vessel.was only one of the South Bay craft, the captain says of thirty-five, not forty tons. A protest, though not evidence in chief, is admissible o contradict the testimony of the person by whom made. 2 Esp. Rep. 490. This position must, it is presumed, be taken with some qualification Whether it shall be within the province of the bench or the jury, depends, it is conceived, on its nature; if it be technical only, it appertains to the bench; if actual and matter of fact, to the jury. On the accuracy of this distinction the reader can decide by recurring to the case of Munro v. Vandam, Park, 221, note, and that oí Farmer v. Legg, 1 D. & E. 186, botli cited 1 Lex. Mer. Am. 309, 311. But in a case where the only circumstance was, that the vessel went down at once without any apparent cause, the supreme court decided that she was unseawortliy upon a ease reserved. Whether a vessel be seaworthy or not is a question of fact for the jury. Patrick v Ilállett and Bovine, 1 Johns. Rep. 241. And on a demurrer to evidence, the circumstance of suddenly springing aleak, without any apparent cause, but in consequence of which the vessel is lost, is not sufficient to presume she was unseawortliy, if there be testimony that she was seaworthy at her sailing. Ibid. But when such an event is stated in a case reserved, and the evidence of seaworthiness is not made out, the court will presume she was unseaworthy. Takot v. Marine Ins. Co., 2 Johns. Rep. 130. [MAJORITY — Lewis, Ch. J. Jones. Lewis, Ch. J. Per Curiam.] Lewis, Ch. J. Both may be right: one may speak of carpenters’ measurement, the other that of the customhouse. Jones. Not being seaworthy for want of a crew, is a matter of fact for a jury-: and on that they have determined ; their verdict, therefore, not to be disturbed. Jones. Yes, she had. The want of crew was insisted on *at the trial, and the verdict shows the [*36'] jury’s opinion. Dow had gone to North Carolina on the very voyage insured in a vessel larger than this with only three hands, including himself; this was only a pettiauger. As to the policy’s being at and from, it is a mistake, the words are from New York; but granted they were otherwise, Coney Island is part of the port of New York. Hoffman, in reply, insisted on the words at and from; • hat under them the vessel should be fit for sea when she first weighs anchor in prosecution of her voyage; that was done at her leaving the pier in New York, and had she been lost going to Coney Island, it would have been within the policy. The jury’s decision on the sufficiency of a crew is not conclusive. Suppose they had determined one hand only to be enough, the court would have set aside the verdict. If the captain was in New York, the communication between him and the plaintiff must be inferred. For this, Stewart against Dunlop, in the House of Lords, Park, 209, is an authority. Lewis, Ch. J. Does it appear how the vessel was rigged? Had she a bowsprit ? Per Curiam. This is a claim for a total loss after having exhibited the usual proofs, and on these an adjustment was made. It is upon this that the action is brought, to which several grounds of defence are taken: first, that the adjustment was fraudulent; secondly, that the vessel .had not any bal-. last on board when she sailed from the place at which the policy attached, and, therefore, was not sufficiently equipped ; thirdly, that she had not a sufficient crew. We shall lay wholly out of view the two first grounds. It appeasi that previous to the adjustment all the facts now relied on were communicated to the underwriters. The protest states the time of sailing from Coney Island, in ballast, the gale of wind, &c. All these circumstances and their dates appear from the protest to have been fully made known, and, therefore, all charge of fraud is at an end, because the adjustment ivas made by the underwriters with their eyes open. An adjustment cannot be opened except on the ground either of fraud or mistake from facts not known. On the third point we think them is sufficient reason to order a new trial. It now appears that the vessel was a schooner of thirty-five or forty tons burden, with three sails, and departed on a voyage from hence to Edenton, in Hortb Carolina, with only two bands, the captain included. [*37] The vessel was, therefore, in our opinion, not *equip• ped for the voyage, and on this ground we think there ought to be a new trial. One hand and the captai i were not a sufficient crew. Hew trial ordered. а) An adjustment, by the English authorities, is only prima facie evi deuce against the underwriter, impeachable for fraud, mistake in the law, o material fact. Christian v. Coombe, 2 Esp. Rep. 489 ; 2 Marsh. 542, et seq. Park, 117, et seq. Therefore, a legal exoneration, arising from facts known at the time of making the adjustment, may, at the trial, be availed oí) by the insurer, Herbert v. Champion, 1 Camp. 134, and a fact is not to be supposed as known by him, merely because he might have made himself acquainted with it, as of a notice stuck up in the coffee-house; it must be “blazoned” on him. Shepherd v. Chewter, 1 Camp. 274. It seems, from the above authorities, that an adjustment is a mere admission of the sum due, if there be no fraud; and, upon the facts known, a right to recover. S. P. Silva v. Low, Lex. Mer. Am. 310, 324, since reported 1 Johns. Cas. 184, with the facts at full length. See the eases in Lex. Mer. Am. ttbi snp. Want of sails, as well as insufficiency of a crew, will render a vessel unseaworthy. Wedderbwme v. Bell, 1 Camp. 1. To constitute her seaworthy, she must be equipped in such a manner as to render her secure against capture, as well as against the perils of the sea. As to unseawortliiness, from the want of documents, see Price v. Bell, 1 East, 663, and Elting and others v. Scott and Seaman, 2 Johns. Rep. 157, in which the court seem to 1 » against the implied warranty of seaworthiness extending to papers and doc •.< ments.