Saltus v. Ocean Insurance

Yates, J. delivered the opinion' of the court. There can be no reasonable doubt of the seaworthiness of the vessel when the policy attached. The captain does not declare, satisfactorily, what her situation really was when she left Riga; but is explicit as to her ability to perform the voyage' had he experienced ordinary weatherand he says, that a perfectly sound vessel would hardly have withstood the storm he experienced, yet, if he had known her. situation, he would not have gone in her. This opinion, however, appears to be formed altogether on the discovery of the decayed timbers in her at Kinsale. The carpenter states that the rottenness of those timbers, in the part of the vessel described by the master, could- not make her unseaworthy, as little or no stress could come on the place where they were found:. The weight of evidence appears decidedly in favour of Tier seaworthiness, and, of course, warranted the verdict of the jury, and they having passpd upon it, their decision ought to be conclusive. [112] The policy being on freight, it is urged that the master OUght to have sent home, the whole cargo by another vessel or vessels. That the master lias a right" to hire another vessel and carry on the cargo, so as to entitle him to his freight, has at all times been allowed ; and the decision of this court, in Schieffelin v. New-York Insurance Company, (9 Johns. Rep. 21.) establishes the principle that it is his duty to find another vessel by which to carry the goods to the place of destination, if it is in his' po wer to do so. It never was intended by this decision to make it incumbent on the master to procure a vessel elsewhere, out of the port of distress, or out of a port immediately contiguous ; and such limitation is perfectly correct, because the extension of this rule, as contended for, would be attended with insurmountable, difficulties and embarrassments to masters. In thé present case he would have been obliged to travel áxteen miles, the distance between Kinsale and Cork, and what his conduct ought to be, if the distance had: been greater, could not be ascertained. It would be requiring an act, as a duty, the extent of which the master could not at all times know.or understand; A due regard, therefore, to the protection of masters of vessels, as well as the interest, of the assured, renders some limitation" "indispensable; and that must necessarily be by confining the inquiry or search for another vessel, to the same port, and no other, unless it be a port contiguous and at hand. In this case, no vessel could be obtained at Kinsale; he was, therefore, under- no obligation to procure one at Cork; and such being the true and correct definition of the master’s duty, it was not necessary for the plaintiff to show that the attempt had been made to procure a vessel at Cork. Admitting, however, that it would be-the captain’s duty, with an ordinary cargo, to procure a vessel at Cork to send it, on, no such obligation could possibly exist in this ^ose, as the situation of thé cargo'rendered a reshipment improper. It appears evident that the master, throughout the whole business, acted in good , faith. He consulted one of the most respectable mercantile houses at Cork, as well as two American captains, who were there at the same time, and who saw the situation of the cargo. They all concurred in advising the sale of the hemp, no doubt from a conviction that to carry it. to the place of destination would be detrimental to the owners. [113] It appears that it would have required three or four vessels of the Hudson’s size to take it, in consequence of its elasticity; and that the Friendship could have carried but thirty tons of it. The captain could not, therefore, be chargeable with negligence for not separating the article and shipping so small a part of it loose, and at an extra expense, when obliged to dispose of the residue. It would have been a measure manifestly against the interest of the owners, for all the witnesses agree that a reshipment of the hemp, in a merchantable condition, would have increased the expenses enormously ? and some of them declare that to stow it in a vessel, as it had before been in the Hudson¡, would have made the expense equal to its value, for the want of proper machinery for the purpose, at Kinsale; and such must have been the opinion of the jury, under the directions given them, and expressed by their verdict, that those expenses would have amounted to a sum so extravagant, as to forbid a reshipment with such a cargo. It is, therefore, to say the least, extremely questionable whether the master, who acted in good faith, was not perfectly justifiable. Having, however, before shown that the inquiry ought to be confined to the same port, or one contiguous to it, it is not necessary to decide this cause on any other ground. It is contended that the underwriters ought to be allowed the amount expended on account of a part of the cargo which reached its port of destination. They, are certainly not entitled, upon any principle, to a deduction beyond a proportionate allowance for freight actually earned ; and to authorize such deduction, it was incumbent on the defendants to show that those articles had been delivered to the plaintiffs, at the port of destination, or to bring home to them notice of their arrival and seizure, but no delivery or notice to them appeared on the trial. They, therefore, cannot claim a compensation in this instance. Judgment for the plaintiffs.