Feb. 1804, v. Smith. away to the nearest port to refit, and on the 15th of the fame ALBANY, month fhe put into Hamilton, in the island of Bermuda. After unloading the cargo a furvey was had upon her. She Mumford, &c. was bored by the furveyors in feveral places, and adjudged fea-worthy; they even declared they had fcarcely ever examined a tighter or ftauncher veffel. Upon a report being made to this effect, her repairs were commenced. In the course of their profecution, one of the caulkers ftruck his iron into a plank on the ftarboard quarter and found it fo rotten as to be unable to hold oakum. This induced a further examination round that spot, when four or five other timbers were discovered to be confiderably decayed. Two others alfo, on the larboard quarter, appeared fomewhat unfound. But those amid-ships, on both fides, were perfectly good. On this the captain procured a fecond furvey to be held, when the fame furveyors, after inveftigating her quarters, immediately pronounced her unfit for fea, obferving that her ftarboard quarter alone was fufficient to condemn her. No other parts, except her quarters, were examined; and, according to the mate's teftimony, (on which, as to the fituation of the veffel in Bermuda, the preceding facts were disclosed) fhe might have been refitted without much expenfe. Headded, that he would have been willing, after very little repairs, to have failed in her to any part of the world. In fails, &c. fle was well found. The furvey itself, dated the 2d of September, 1800, ftated, that a plank being taken off on both fides of the Sloop's waist, not one top-timber was found; on the contrary, they were generally rotten. That she could not have been made fit for fea, without renewing the whole of her fides, above the wales. That this would have been attended with a very heavy expenfe, and perhaps as much as fhe would fell for, when done. But that, however, the other parts of her hull appeared found. Nor was there any fault in her mafts or fpars; yet her fails and rigging were indifferent, having been much worn. The furveyors, who were admitted to be men of character, when examined under a commiflion issued for that purpose, ALBANY, confirmed the facts contained in the report, and they were further corroborated by the agent of the veffel. Feb. 1804. Mumford, &c. V. Smith. It was acknowledged, that the Mary, previous to her failing, had, in March, 1800, been hove down to get at her keel but her upper-works were not then examined, nor were her timbers bored. At that time one witnefs had offered 2000 dollars for her, confidering her ftaunch and tight. After the furvey fhe fold for only 34 pounds 10 fhillings, and was purchased by one of the furveyors, who, however, never put her into fervice, but broke her up as not worth repairing. It appeared that in 1800 there was but little intercourse between Bermuda and Kingston. During the fummer of that year, no neutral veffel could have been procured to go from thence to Jamaica, British bottoms might have been had at an enormous freight, and insurance was also immensely high. Workmen too were with difficulty to be obtained. It was admitted the cargo did not fuftain a damage amounting to an average, the injury being less than five per cent, On the trial the counfel for the defendant infifted the plaintiff was not entitled to recover for these reasons : 1ft. That the veffel was not fea-worthy. 2d. That if fea-worthy and reparable at less than half her value, fhe ought to have been repaired, and prosecuted her voyage. 3d. That if irreparable, another veffel fhould have been procured, and the cargo taken to the port of deftination 4th. That the damage was less than an average. The judge charged, that if the witneffes examined at Bermuda, and the witneffes examined on the part of the defendant in New-York, were to be believed, (and their characters were admitted to be refpectable) the verdict should be for the plaintiffs for the premium only, on account of the unfeaworthiness of the veffel. That if the damage sustained by the veffel, during the voyage, was reparable at lefs than half her value, the mafter fhould have repaired her, and proceeded to Kingston with the cargo, and on this ground the verdict should be for the defendant, there being no average, That, upon the first point, the weight of evidence was with the defendant, if the testimony taken under the commission and here on his part, was to be credited. That on the second point, he was ftrongly inclined to think the evidence in favour of the defendant. Upon this the jury found a verdict for the plaintiffs for a total lofs, and gave the following reasons : 1ft. That they confidered the veffel fea-worthy. 2d. That it would have coft more than half the value of the veffel to have repaired her at Bermuda, taking into view her whole condition; but as to the quantum of injury suftained by the perils of the fea feparately, they gave no opinion, resting their verdict upon the whole matter. These explanations making by agreement a part of the cafe, a motion was made to fet afide the verdict, as contrary to evidence. The fame points, made by the defendant at the time of trial, were now again insisted on, but as the decifion of the court went totally on the weight of evidence as to fea-worthiness, it is unneceffary to do more than state the decifion itself, which was delivered by Livingston, J. It is conceded that the right to recover, cannot exist, unless the veffel at the time of failing on the voyage insured, was feaworthy; that her not being fo, will affect as well an innocent shipper of goods, as the owner of the veffel. This is certainly fo, and however hard the law may bear on perfons of this description, the underwriter is entitled to the full benefit of it, and ought not to be held to payment when this implied warranty has been violated. Whether fuch has been the cafe is principally a queftion of fact, and we would not willingly disturb a verdict given against an affurer of goods on a defence of this kind, where there had been a contrariety of teftimony, or where the proofs were nearly in equilibrio; perhaps not unless their decifion was most manifeftly against the whole of the evidence; fuch we think is the cafe here. No one who reads the testimony can hesitate in saying that the breaking up of this voyage was not occafioned by any one of the perils infured against. The Mary muft then either not have been feaworthy when she left New-York, or fo far decayed as to re ALBANY, Feb. 1804. Mumford, &c. V. Smith. Feb. 1804. ALBANY, quire repairs at an intermediate stage of the voyage, which it was either impracticable to give her, or which would have Mumford, &c. coft more than fhe would, when repaired, have fold for. In V. Smith. either cafe the defendants are not liable. The mate does not ftate particularly what injury the received from the gales fhe encountered, except that of making more water, for the leaked when she left the hook; this induced the master to bear away. On her arrival at Burmuda, fhe is thoroughly examined and found to be in a most decayed ftate. This rottennefs in her timbers, it is certain could not have taken place info fhort a voyage, but must have existed when she left NewYork. If we give no credit to furveys of this kind, which befides being ex parte, are too eafily, and fometimes fraudulently procured, we must believe the furveyors when examined under our own commiffion. They bear the character of refpectable men, and the abandoned state of the veffel after her condemnation and purchase, is a great proof that they acted with integrity and good faith. Nothing to the contrary fhould be inferred from one of them becoming a purchafer. This he could not foresee would be the cafe in a fale at auction, and at any rate it does not appear that he made much by the bargain. The agent is also a strong witness on the fame fide. To all this, nothing is opposed but an opinion of the mate, that she might have been repaired, and proof that the Mary was well built, and once a ftrong veffel. A carpenter repaired her previous to her failing on her last voyage, but did not examine her upper works, or bore her timbers. Now all this may be true, and yet it does not, in any degree, derogate from the credit due to the witneffes who laft examined her; who were in a situation to form a correct opinion, and who pursued the best and only means of coming at an accurate conclufion. It must always be difficult to determine, with certainty, what portion of the injury is occafioned by latent defects, and what by perils of the sea; but here it is fufficient to fay, that the injuries which required repairing at Bermuda and produced a termination of the voyage there, could not have arisen from any accident insured against, because it is exprefsly stated, by the witneffes, that thefe repairs were rendered neceflary by the imperfect con Feb. 1804. Kimberly V. Neilfon and Bunker. dition of the timbers; not by her leaky condition, which was ALBANY, the only effect of the weather fhe met with. If no further defect had been difcovered but a leak, this could have been Brown and repaired and the veffel would foon have purfued her route. Our opinion is, that this is a verdict palpably against evidence, which established, beyond doubt, the innavigability of the veffel, and that a new trial muft, therefore, be had, on the payment of cofts by the defendant. It is, of course, unneceffary to decide the other point made in this caufe. Pardon Brown and Anson Kimberly against William Neilson and George Bunker. THIS was an action, brought after March, 1802, on a policy of infurance for four calendar months, commencing the 28th day of November, 1800, and expiring the 28th of March, 1801, upon the body of the schonner Almira. In judging whether a vef fel has been loit in a voyage in fured, the ufu al, and not the utmost length of fuch a voy The declaration averred the lofs to be, by perils of the fea, age, is the pe previous to the termination of the limited period. The veffel failed from Norfolk in Virginia, on the fourth riod on which the jury is to proceed. If two itorms are given in evidence on a policy for de- within and the To the period, it is other without being for the jury to of March, 1801, bound to New-York, and to prove the lofs within the time, the plaintiffs offered evidence to fhew, time, the one that a violent ftorm had taken place the day after her parture, in which, they contended, fhe had perifhed. this the counsel for the defendant objected; but, on its overruled, the plaintiff substantiated the fact, and by the fame witnesses it appeared, that veffels who failed with the Almira, arrived in about ten or twelve days, though, that the herself could hardly, with a head wind, have arrived fo foon. fay in which happened. An the lofs has infurance made on freight and cargo after a knowledge of a previous ftorm, does not conclude a jury The ufual paffage from Norfolk to New-York, was ef- from finding tablished to be from five to fix or seven days; one witnefs, a master of a veffel, fwore, he never knew of an inftance above 14 days; from the testimony of two other persons it appeared, that there had been one inftance of a fafe arrival after being 40 days out, and another after 60. On the defendant's part, the existence of a fevere tempeft, all along the New-York coaft, on the 29th of March, the day after the termination of the policy, was proved. They offered alfo, evidence, that the affured, when fully apprifed of the first, that the vellel was lo in fuch prior ftorm. |