Griswold v. National Insurance Co.

Curia, per Sutherland, J. This case comes before the Court upon several special demurrers to the plaintiffs’ replications to the defendants’ pleas in bar ; and the first question for consideration is, whether those pleas are substantially good ; for if not, although the demurrers may he well taken, still the plaintiffs will be entitled to judgment, unless the defects of the pleas are cured by the replications. The pleadings turn upon the rotten clause in the policy of insurance, which provides, “ that if the vessel, upon a regular survey, should be thereby declared unseaworthy by reason of her being unsound or rotten or incapable of prosecuting her voyage on account of her being unsound or rotten, then the assurers should not be bound to pay their subscription on that policy.” — 116 — The special plea to the 1st and 2d counts of the dcclarát¡0Dj ge(; forth, “ that upon and immediately after the arrival of the ship at Cadiz, in the course of the said voyage, and in reference to the said Voyage, and to any damage which the said ship had sustained in the prosecution thereof, a regular survey was had, S^c. on the 15th day of October, 1819, upon which survey the said ship was thereby declared unseaworlhy by reason of her being rottenwith a verification ; and for further plea to the first count, a regular survey as before, whereby it was declared that the said ship was in a very bad and rotten condition, and that she was not worth repairing, and that it was best for all parties that she should be condemned, &c. The same plea as the last was also pleaded separately to the 2d and 3d counts. These pleas are said to be substantially bad on three!, grounds. 1. Because the survey is alleged to have been made áfter' the arrival of the ship at the port of destination, and, of course, after the termination of the voyage insured ; and, 2. Because the pleas do not state the manner and circumstances of the survey ; but merely state it to have been regular. 3. Because the survey itself, as set out, is bad, and does not amount to a bar. 1. There is no validity in the first objection. The survey was made by the assured as a foundation for an aban-* donment of the ship as for a total loss, in order to charge the underwriters ; and they certainly have a right to avail themselves of it, for the purpose of showing that the injury sustained (and which caused the abandonment) was not owing to any of the perils insured against, but to the rottenness of the ship. The terms of the rotten clause do not. render it necessary that the survey should be made before the termination of the voyage, or before the ship arrives a£ her port of destination. Nor is it exclusively intended to guard the underwriters against the contingency of her being unable to prosecute her voyage on account of her being unsound or rotten; but also against all claims of the assured — 117 — far any loss or injury which can be traced to the unsoundhess, or rottenness of the ship. A regular survey, whereby the ship is declared unseaworthy by reason of her being unsound or rotten, is, by the agreement of the parties; made conclusive evidence of the fact ; and if the survey is made with reference to the voyage and perils to which (he policy relátes, within a reasonáble time after the termination of the voyage, it is sufficient. In many cases no survey could be made except at the port of destination ; and in most ¿ases it would be impossible to make it before the termination of the voyage, (that is, within 24 hours after the ship has come to her moorings, and cast her anchor ;) because it cannot be satisfactorily and thoroughly made until the vessel is unladen. But the plea in this case alleges the survey to have been made upon and immediately after her arrival, which, if it were necessary* would be intended to be before the termination of the voyage. 2. It was not necessary to set forth in the plea the manner and circumstances of the siitvey. It was not done in the case of Brandegee v. The National Insurance Company, (20 John. 328.) The pleas there are, in this respect, precisely like those in this case. They simply state, that a regular survey was had, and no objection was made to them on that ground. The survey is the act of the assured, in order td charge the underwriters. The latter are not parties to it. In Haff v. The Marine Insurance Company, (4 John. Rep. 135) Thompson, J. says, “ It (the survey) is to be presumed prima facie, to be in the possession of the plaintiff, (the assured.) It is always made at the instance, and for the benefit of the owner or master of the vessel, and it goes of course into his hands.” Whether they would be permitted to impeach the regularity of their own"survey, may well be questioned. But it certainly is not incumbent upon the defendants to set forth in their plea all the facts and circumstances which show it to be regular. Not being parties to the survey, they may not know those facts and circumstances. They must be known. — 118 — to the plaintiffs, and if they afford any ground forimpeacliing' the regularity of the survey, the statement would come moré properly from them, (provided it is competent for them to impeach it.) It falls within the general rule of pleading, that matter which should come more properly from the other side need not be stated. (1 Chit. Pl. 228, and cases there cited ; and vid. the opinion of Johnson, J. in Dorr v. The Pacific Insurance Company, 7 Wheat. 612.) 3. The survey, as set out in the second1 plea- to the first and second counts of the declaration, is undoubtedly a good bar to the action. After stating the arrival of the vessel at Cadiz, and that a regular survey was had upon her, it states the survey itself, and its result, in the following terms: “ Upon which survey the said ship was thereby declared unseaworthy, by reason of her being rottenP The test is, does it appear from the survey that rottenness was the sole cause of condemnation ? If it does, the survey is a good bar- But if the condemnation is in part for decay, and in part for damage occasioned by the perils of the sea, then it is no defence for the underwriters. (Steinmets v. The United States Insurance Company, 2 Sergt. & Rawle, 293. Garrigues v. Coxe, 1 Bin. 598. Armroyd v. The Union Insurance Company, 2 id. 394. Brandegee v. The National Insurance Company, 20 John. 328. Dorr v. The Pacifick Insurance Company, 7 Wheat. 581. Haff v. Marine Insurance Company, 8 John. 167.) In all these cases, the survey stated, with more or Jess particularity, the circumstances of the shines condition ; and the principal inquiry in each of them was, whether all the particulars stated, made out the fact of rottenness to be the sole ground of condemnation. It seems to be taken for granted, in all the cases, that if the survey states the condemnation to be for rottenness alone, without stating the particulars which are affected, it is conclusive. Tilghman, Ch. J. in Garrigues v. Coxe, 1 Bin. 595, says, “ If thesurvey should say she was unsound, and no-more, the plaintiff would be barred.” It is true that the. same learned Judge, in Steinmets v. The U. S. Insurance Company, (2 Sergt. & Rawle, 297) remarks, “ that, upon a •survey, the particular parts which are found in a decayed — 119 — state, are always mentioned ; and, indeed, it would not be proper to say, in general, that the vessel was rottend’ He was reasoning against the position which had been urged by the plaintiff’s counsel, that the survey ought to be in the very words of the policy. He thought, instead of confining themselves to the expressions used in the policy, it was proper for the surveyors to state the particulars of the decay. It is undoubtedly proper, but not indispensable. The third plea, which is to the first count alone, states, that a survey was had upon the vessel. &c. by which she was found to be in a very bad and rotten condition. This plea is bad. Rottenness does not appear to be the sole cause of condemnation. A vessel may be in a very bad condition, without being rotten. She may be rotten in some of her timbers, without being unseaworthy. The cause of her condemnation, then, upon this survey, is left doubtful; and that is a fatal objection to it in a plea in bar. Th e fourth plea, which is to the second count, is the same as the third, and is bad for the same reasons. The fifth plea is to the third count, and is the same as the two last, (except that part which relates to the general average) and is bad for the same reasons. These pleas being bad in substance, are not cured by the replication ; for a bar which wants substance cannot be aided by a replication. (Com. Dig. Pleader, (E, 37). 8 Coke, 120, b. Com. Dig. Pleader, (M. 1, 2). 2 Salk. 519. 15 John. 191, per Thompson, Ch. J.) It is unnecessary, therefore, to consider whether the demurrers to the replications to these pleas are well taken or not; for the pleas being bad, the plaintiff must have judgment. It remains, then, only to consider the causes of demurrer to the replication to the 2d plea. The first cause of demurrer assigned is, that the traverse seeks to put in issue matters not in the plea. The plea states a survey made at Cadiz. The replication traverses a survey at Cadiz or elsewhere. The issue must be as broad as the traverse ; but a rejoinder as broad as the replication would have been a departure from the plea, and have subjected the defendant to a demurrer. That cause is well taken. It is also a depar — 120 — ture from the declaration. It alleges the survey to have been at Cadiz, after the arrival, whereas ■ the declaration avers a physical total loss. The defendants are, therefore, entitled to judgment upon their demurrers to the replication to the second plea ; with leave to the plaintiffs to amend, on payment of costs : and the plaintiff must have judgment upon the replications to the other pleas. Judgment accordingly.