Palmer v. . Great Western Ins. Co.

Follett, Ch. J. Hay 5, 1879, The Brothers’ Pride sailed from Cardenas, a port on the north side of Cuba, for 27ew York, and was lost forty-eight hours after leaving port. The uncontradicted evidence is that from the hour of sailing to the hour when wrecked the weather was fine, with about a four-knot wind. She met with no accident except the cross *603 bar to one of her pumps broke, but how, when, or whether the pump was rendered useless or whether it was repaired does not appear. The vessel filled with water, it was testified, was abandoned and afterwards burned by the order of its captain. It seems to be assumed that the water came in through a leak, but the witnesses were silent as to the time when the leak was discovered or in what part of the vessel it occurred, if it did occur. Upon these circumstances, apart from others, the court, on a trial by jury under established rules, should presume that the vessel was unseaworthy when it left the port, and direct a verdict for the defendant or a dismissal of the complaint. But the circumstances happening after the vessel left port are not all bearing on the question of her seaworthiness. In December, 1878, she entered the port of Cardiff, in Wales, and left January 5, 1879, laden with coals for Cienfuegos, a port on the south side of the Island of Cuba. A shipwright testified that while she lay at Cardiff he repaired and put her in first-rate seaworthy condition to stand a winter voyage to Cuba, and thence to the United States. The pilot who took her in and out of the port of Cardiff testified that she appeared quite seaworthy. The master of another vessel testified that while The Brothers’ Pride was lying in the port of Cardenas, in May, 1879, he was. on board on several occasions, and that she was seaworthy for a voyage, with a full cargo from that port for Uew York. Three experienced stevedores, who assisted loading her at Cardenas, and the pilot who took her out of that port, testified, or rather it was stipulated that they would testify that, in their opinion, she was seaworthy. A mate employed on the vessel testified: “ The vessel was laborsome in the rough weather that we had coming out from Cardiff towards Cienfuegos ; she rolled a good deal in the. rough weather ; during the rough weather the pumps were going nearly all the time for the first three weeks ; after we got fine weather she did not make so much water.” The steward testified that after her cargo was discharged at Cienfuegos she took in stone ballast, rocks and dunnage wood, no cargo, and proceeded to Cardenas *604 where the ballast was discharged and a cargo, said to be melado, was taken on board. Under this state of the evidence, the question of 'seaworthiness was one of fact for the jury, and they found that she was seaworthy. This greatly simplifies the case. The vessel being seaworthy when she left Cardenas, only forty -eight hours before loss, the trial court, under the circumstances of this case, would not have been justified in holding that the wreck was not caused by any of the perils insured against, and very properly took the' opinion of the jury upon that question. The learned counsel for the defendant did not ask that the jury be required to find by which peril the vessel was lost, nor did he pray for an instruction that there was no evidence that she was lost by this or that peril, and so, by elimination, hold the jury to a definite issue; nor did he except to the general instruction that the jury were to determine whether she was lost by any of the perils insured against, and so the record does not disclose which peril caused the loss. It looks like “barratry of the master or mariners,” but that was insured against, and there is no evidence in this record that would have sustained a verdict that the owners participated in the fraud, if fraud there was. Was there a valid contract under which the plaintiffs would have been entitled to collect freight equal to the amount of the verdict upon the delivery of the cargo in Hew York? The record contains the following: “ Plaintiffs’ counsel here offered in evidence the protest and bill of lading, which were admitted subject to the objection that they were not proof of their contents.” But the case does not contain the protest nor the bill of lading, but a copy of the latter was presented on the argument; the counsel, however, disagree as to whether the trial court received it as evidence of the truth of the recitals therein or only as part of the preliminary proofs of loss. A perfect record would have prevented a controversy which this court has no means of determining. The bill of lading was signed only by the master and contained the words Weights and contents unknown.” The master was that *605 plaintiffs’ agent (3 Kent’s Com. 206), and being alive when this action was tried, the unauthenticated bill was not competent evidence, as against the insurers, of the kind or quantity of the cargo nor the amount of freight due upon its delivery to the consignee. (Paine v. M. M. M. Ins. Co., 69 Me. 568; Dickson v. Lodge, 1 Stark. 180; Haddow v. Parry, 3 Taunt. 303 : 2 Arn. Ins. [6th. ed.] 1154; 2 Par. Mar. Ins. 528-534.) But, though the bill was received as evidence of the truth of the statements contained in it, no exception was taken to the ruling and the record does not disclose an error in this respect which the appellant can avail itself of. Roberts, a mate on the vessel, testified: “We took on board eight hundred and sixty-three hogsheads of this stuff at Cardenas.” A shipmaster, who had carried melado, testified : “ I saw melado in casks going on board ‘ The Brothers’ Pride.’ ” It is true that he did not examine the contents of the casks, and judged only from external appearances. He also testified that the freight from Cardenas to ¡New York was $5.25 per hogshead, and on cross-examination: “ I know what the rate of freight was from what Captain Tower told me; he told me he had $5.25 ; I had $5.25 myself for molasses; the usual rate for molasses and melado was about the same.” The mate and steward testified to the appearance of the leakage from some of the hogsheads, and their description would seem to indicate that these casks were not filled with melado. While the evidence, in respect to the cargo and the contract under which it was to be carried, is not as clear and as satisfactory as we could wish, still enough appears in the case to sustain the submission of this question to the jury. The record does not contain the preliminary proofs of loss or the marine protest,and furnishes no basis for considering the fifth ground of the defendant’s motion for a dismisal of the complaint. The exceptions to the charge aré, in effect, covered by the discussion of the right of the trial court to submit the case. The judgment should be affirmed, with costs. All concur. Judgment affirmed.