Hagar v. New England Mutual Marine Insurance

Walton, J. Action on a marine insurance policy. The plaintiff’s right to recover is resisted on several grounds. First, it is said that the plaintiff’s ship was not injured by a peril of the sea. Second, that it would not have been injured but for the carelessness of the master. Third, that no one of the losses alone amounted to five per cent of the valuation of the ship, and that two or more losses by separate and distinct perils cannot be added together to make up that amount. [463] 1. All ships moored in tide-harbors are liable, as the tide ebbs, to take the ground in a mal-position, or to strike tlieir bottoms against some bard substance, and to be thereby injured. This danger constitutes one of the perils of the sea for which underwriters are responsible. Potter v. Ins. Co., 2 Sum. 197. 2. It is no defense to an action for such an injury that the ship was brought into peril through the carelessness of the master. If the plaintiff himself was not guilty of carelessness, the negligence of his servants will not deprive him of the benefit of his insurance. So settled both in England and in this country. The question is thoroughly examined in Copeland v. Ins. Co., 2 Met. 432, and Mathews v. Ins. Co., 1 Kernan (11 New York), 9. 3. It is true the plaintiff cannot recover unless his loss amounts to five per cent of the valuation of the ship, exclusive of all charges for ascertaining and proving the loss; for such is the express language of the policy. It is also true, that two or more distinct losses cannot be added together to make up that amount. Paddock v. Ins. Co., 104 Mass. 521; Brooks v. Ins. Co., 7 Pick. 258. But the plaintiff's right to recover is not limited to the amount actually expended for repairs, after deducting one-third new for old. Where, by the perils insured against, a vessel receives a strain which alters her shape so that she cannot be perfectly repaired without rebuilding her, and her value is thereby diminished, the underwriters are liable to the extent of such diminished value, in addition to the expense of repairs, although the vessel is made seaworthy by the repairs, and is afterward insured at the same premium and at the same valuation as before the injury. So held in Giles v. Ins. Co., 2 Met. 140. Whether the plaintiff will be able to bring his case within these principles is a question in relation to which we express no opinion. We think the evidence is sufficient to entitle him to have it submitted to a jury. Action to stand for trial. Appleton, C. J.; KeNT, Barrows, and Taplet, JJ., concurred.