Dennis and Williams against Ludlow

Dennis and Williams against Ludlow. Whether a vessel which moves down a river on the route in a voyage insured has actually sailed on it, is a fact depending on circumstances and the quo animo. If she has not taken her captain on hoard, it is á presumption that she has not commenced her voyage, though all her papers, clearance and lading bo taken in. The nautical day .begins at twelvo o’clock at noon. On a warranty depending on a matter of fact, the jury are the proper judges. This was an action on a policy of insurance on the body of the brig Brothers, Brown, master, valued at 4,500 dollars, at and from Savannah, in Georgia, to Martinique. In the margin of the policy was written “ sailed early in October at the bottom of the instrument were inserted the following words: “A brigantine Brothers, Captain Parsons, it is said, has been spoken with at sea with a sick crew, warranted not to be the brig Brothers insured by this policy.” At the trial, the subscription of tbe policy, the interest, abandonment, a sailing on the voyage, and that the vessel had never been since heard of, were admitted. That Williams, one of the plaintiffs, was then at Savannah, and Dennis, the other, in New York, and continued there till the 7th of November, when the policy was effected, were facts acknowledged to be true. The plaintiff also admitted that the bills of lading for the cargo were dated on the 14th of September, and the clearance on the 15th. By the testimony adduced under a commission issued to Savannah, it appeared that the vessel, about tbe date of her clearance, dropt down from tbe wharf with a pilot on board, to a place called Pive Fathom Hole, about three miles from the town of Savannah, That the crew were then all healthy and adequate to the ship’s duty. That from’thence she went about eleven miles further down the river to a place called Cockspur. That, both at Five Fa-tbom Hole and Coekspur, vessels of heavy burden finish their lading, and at the latter often wait for orders and overhaul their rigging. That the brig in question lay there sixteen days, on account of the sickness of the master, who on the evening of the 30th went on board, and sailed on the first or second day of October, on the voyage insured. That, in the opinion of one of the persons examined, Cock spur has always been considered as in the port of Savannah, and he ‘^should think a vessel not out of the port of New York, till after she had left Sandy Hook. The defendant on his part read in evidence a letter from the captain to the plaintiff Williams, dated the 30th of September, on board the brig Brothers. This epistle commences with these words: “ At last, my dear friend, Mr. Williams, I am at sea, with all hands sick except two, and in a few days expect to get my men once more on their legs ; they are all better to-day. The pilot says he shall charge six dollars extra for dropping to Five Fathom Hole, which I think unjust.” On the trial the defendant, after due notice, called on the plaintiffs to show an account of pilotage against the Brothers which had been presented to the underwriters as one of the documents in proof of loss. The plaintiffs alleged it had not been returned, but the judge admitted evidence of its contents to be given, on proof being made of its having been submitted to the insurers, though no testimony was adduced to show by whom it was written. The heading of this bill was thus : “ James Brown’s bill of pilotage of brig Brothers. Took charge the 13th September; detention on board from the 13th to the 30th September. dols. cts. “ At two dollars per day, - - 32 00 Vessel drawing 11 1-2 feet water, - 16 50 . Dropping to Five Fathom Hole,” - 6 00 54 50 The judge charged that if the vessel had not a competent crew when she sailed on the voyage insured, the un* derwriters were not liable. That the captain’s letter, was, in his opinion, more to be relied on than the testimony under the commission taken so long after the occurrence of the facts it stated. That in his opinion, the vessel could be considered, within the intention of the parties, as sailing on the voyage insured only from the time of her final putting to sea from Cockspur, and what that time was, was a matter of fact to be determined by the weight of testimony, of which they were the competent judges. Upon this direction, the jury found for the plaintiffs, and the defendant moved to set aside that verdict. * Pendleton, for the defendant. The learned judge before whom the cause was tried, misdirected the jury as to the compliance with the warranty, respecting .the sailing of the Brothers; because, when she broke ground with her clearance, cargo and papers on board in the river, she commenced her voyage, and the period of her departure must be dated from thence. If this be not so, ^he in fact went to sea on the 30th of September. Thus says the captain’s letter ; thus the calculation from the bill for pilotage': 16 days from the 13th of September make exactly the time, allowing one day for going to Five Fathom Hole. This, as evidence adduced by themselves, in support of their claim, is c.onclusive. Secondly, there was an undue concealment in not communicating that the vessel was detained two weeks in the river, this being proved to be material, from the health of the erew of another brig of the same name having been made a subject of warranty. The warranty of the vessel’s sailing has not been complied with, whether we consider her departure from Cockspur or the wharf the true criterion. That it was not in October is evident. The Captain says on the 30th of September he was at sea, and this letter in which he so says was shown to substantiate the loss. This, then, was previous to the day of departure warranted. ¥e contend that the judge was incorrect in his charge as to what shall be deemed the time at which a vessel sails on a voyage insured. When she has all her cargo and all papers on board, she must be considered as on her voyage from the time of making sail outwards. In Bond v. Nutt, (Cowp: 601,) on an exactly similar point, the whole question turned on whether the vessel was “ on her voyage homeward.” Cowp. 606. There, notwithstanding she, in strict terms, but not in law, deviated a little, for the purpose of meeting with convoy, the underwriter was liable, because her first departure was within the policy. So in Earl v. Harris, Doug. 343, 357; Thelluson v. Ferguson, ibid. 346, 361. On the point of concealment there can be very little doubt. The fact of all the hands being sick, but two, was known to Williams; the knowledge of one partner must, 'in this case, be the knowledge of both, especially a,s it was from such partner that the orders for insurance came, and the date *of Brown’s letter shows, that after its receipt, the instructions for insurance must have been forwarded. Biggs and Hoffman, contra. So far as matters of fact aro concerned, the jury have determined, and by their verdict it is evident they decided, that the vessel sailed according to the warranty, for that was the point submitted to them. It is a matter of fact as to time; that time they have found to be “ early in October.” If we suppose, what is very natural, the 13th to have been mistaken for the loth, which, as the clearance is on the 15th, is a reasonable supposition, then the 16 lay-days will bring it exactly to the time; 16 and 15 make 31; and on the 1st of October, the pilot swears sbe sailed. If tbe captain wrote his letter on tbe morning of the 1st of October, as all sailors, when at sea, compute by tbe nautical day, it would be tbe 30th of September. They begin their day at 12 o’clock at noon, con sequently, it does not determine till 12 o’clock in tbe next day, which is 12 hours after our day has run. The first day therefore, of any month is, to a sailor, 12 hours after that day has commenced, according to the reckoning of a landsman; because the computation at sea is from the meridian observation, from 12 to 12 in the day; but on shore, from 12 to 12 at night. It is manifest, then, the first part of a sailor’s day is one day behind that of the landsman ; and the last part of a sailor’s day is one day before it. This the jury took into consideration, and found accordingly. The true point of time at which we say a voyage commences, is that point at which a vessel weighs anchor, with the idea of no longer stopping. Everything else is in preparatorio. It is in evidence that the going to Cock-spur was for the health of the crew, and to wait for the captain. That vessels load there, and it is considered as in the port of Savannah. To say when a vessel, loaded and cleared, moves from a wharf is a commencement of a voyage, would be to say, if a vessel draws into the stream she is on her iter. A departure, with' intent to proceed, can never be asserted before the captain is on board. The case shows that did not happen till the 30th of September. In Park, 338, it is expressly said, that a vessel is not deemed to have left the port of London till she has quitted Gravesend, 20 miles below the place from whence she sails; because to that extent the port of London '^reaches. At Cockspur, therefore, the voyage commenced. The climate of Savannah, and the constant weakly state of the crews at the period when the Brothers sailed, is matter of general notoriety, and therefore need not be communicated. Garter v. Boehm,, 3 Burr. 1905; 1 Bl. Rep. 593, S. C. No concealment of a material fact can therefore be pretended ; and the testimony is con-elusive that the Brothers was a healthy vessel. The argument derived from the bill for pilotage can have no kind of weight; because the only reason why parol evidence of a paper can be given, is, that the party served with notice to produce it, has it in his possession. Nothing of that kind appears here. Besides, it was not evidence, nor would it have been so, had a regular protest been made. Harison, in reply. A protest is not repeived as evidence, because it is supposed the captain can be produced. It has been decided that a paper produced by a person, though not allowed to be evidence for him, was conclusive against him. If so, allowing the letter not to be regular testimony, it is by the act of the plaintiffs in bringing it forward made good. It is to be remembered, too, they were partners ; that the knowledge of the one was the knowledge of both, and on this account, as all that Williams knew is not pretended to have been communicated, there was an undue concealment. Whether the ship sailed pursuant' to the warranty, depends on what shall be the time and place of departing on her voyage. She must be considered as on her route from the instant when she begins to move towards her port of destination with an intent so to do. Otherwise, in a large port, such as New York, the policy, if it be from the port, will not attach during a period that may be as replete with danger, as any part of the voyage. This would expose all our commerce to be at the risk of the merchant, for the whole length of the ■ river, down to the Hook. The reason why a vessel sailing from the port of London may be said not to leave it till she passes Gravesend, is, that she there takes on board her last paper, the cocket. That reasoning will not apply here. Grozart v. Smith & Smith, sittings at New York, 17th November, 1802, before Livingston, J. The plaintiff had given in the amount of his freight claimed, to have his proportion of an average against the underwriters ascertained. On notice to produce it, and the adjustment, he did not comply. Parol evidence admitted, and the learned judge seemed to think him concluded by his statement. [MAJORITY — Kent, Ch. J.] Kent, Ch. J. delivered the opinion of the court. The defendant moves for a new trial on the following grounds: 1. Because the time of sailing was when the vessel broke ground at Savannah, with her clearance, - cargo, *and papers on board; 2. Because in fact, she went to sea on the 30th September; 3. Because tbe brig bad a, sick crew, and was detained in tbe rive? two weeks, and these facts were material and ought to have been disclosed, they showing that she was not competently equipped when she sailed. It is admitted as a fact ascertained since the trial, that William Brown, when he wrote the letter stated in the case, was part owner of the brig; and further, that the vessel cleared out at the customhouse at Savannah, for Martinique, on the 15th of September, 1799. 1. As to the inception of the voyage (see Henshaw v. Mar. Ins. Co., post, 274,) by sailing from the port of'Savannah, or from Oockspur; this will depend on the quo animo, or bona fide intent of the party. In the present case, it is very clear the voyage did not commence till the vessel left Oockspur. She left the port of Savannah for a temporary purpose, distinct from the object of the voyage, and the captain was left behind sick. I have no doubt that the sailing in the policy,' when accompanied with the explanatory facts, meant the going to sea from Oockspur. 2. With respect to the real truth of the case, whether the vessel did actually sail from Oockspur prior to the 1st day of October or not; and whether, when she sailed, she had a crew, in point of health, competent for the voyage, there is undoubtedly a contrariety of evidence, and a difficulty in arriving at a satisfactory conclusion. On the one side there is the written testimony of the captain’s letter, and the account of pilotage from James Brown (supposing it to be a true paper) in favor of the allegation, that the vessel must have sailed prior to the time stated in the warranty. On the other side, it was proved by the pilot who conducted the vessel to sea, and supported by the testimony of two other pilots who attended him, that the vessel did not leave Oockspur before the 1st of October. In deciding on the preponderance of these contradictory statements, I feel and acknowledge the force of the remark of Baron Gilbert, that written testimony must, from the nature of man, be of higher credit in the scale of probability; but on the other hand, there are just criticisms to be made respecting these papers, which must bring them down to a level, at least, with the underwritten documents. One is, that seamen reckon at sea from noon to noon, and would naturally date *a letter written at sea before 12 o’clock of the 1st of October, as of the preceding day; and another is, that the pilotage bill was probably mistaken as to figures, and that the 13th was intended for the 15th. If so, that account will correspond with the allegation that the vessel sailed on the 1st of October; and the reason to infer this is, from the facility with which such a mistake as to those figures may arise, and from the fact, that the bills of lading were not signed till the 14th, which would bring it a day after the sailing according to the one construction. The facts respecting the crew’s health seem to be involved in equal uncertainty, and as these were all questions of credibility and fact, proper for the decision of the jury, which were fairly submitted to them, and there is no reason to suppose any new light can be thrown on the subject, and the best informed man may, and would, probably, differ as to the facts, we are of opinion the verdict ought not to be disturbed. "We the more easily adopt this opinion when we consider that the principal point in the cause, whether the vessel did actually sail on the 30 th September, or 1st of October, is a matter of summun jus, and is to be reckoned among the apices of the law, rather than a part 'of the substantial merits of the case; therefore the defendant takes nothing by his motion. New trial refused.