Giles v. Eagle Insurance

Putnam, J. This was a policy on the schooner Good Hope and appurtenances, coasting one or more fishing fares, from May 15th to November 30th, 1837. She put into Chitecamp Harbor on the 12th of September, expecting a storm ; and while there she dragged her anchors and went on shore. The crew board ed on shore, and board was paid for them ; and by their labor, assisted by others, the schooner was got off. And the expenses in Nos. 2 and 3 of the schedule, were paid to the captain and crew and others. By reason of the damage she had sustained, the schooner could not pursue her course, on account of the necessity of repairs ; and in such cases, those expenses are a general average. 1 Phil. Ins. (1st ed.) 346. Bedford Commercial Ins. Co. v. Parker, 2 Pick. 1. These expenses were incurred within the time for which the schooner was insured, and were [144] incurred for the general benefit, and should be considered as general average, so far as concerns the people who were hired to assist the seamen who belonged to the schooner. Da Costa v. Newnham, 2 T. R. 407. But as the crew were not discharged, and worked as seamen, in getting off the schooner, no charge is to be allowed the assured on that account. In De Vaux v. Salvador, 4 Adolph. & Ellis, 420, it was held that the expense of wages and provisions of the crew during the time that the ship was repairing damage, which arose from collision with another ship, by perils of the sea, was not to be charged to the underwriter. The rule was laid down by Lord Mansfield, in Fletcher v. Poole, in 1769, Park on Ins. (2d Amer. ed.) 52, that sailors’ wages, and provisions expended while the ship is detained to refit, are not to be allowed as a charge against the insurer So in Robertson v. Ewer, 1 T. R. 132, Buller, J. said, if the ship had been detained in consequence of an injury received in a storm, though the underwriter must have made good the damages, yet the insured could not have come upon him for the amount of wages and provisions while she was under repair. The distinction is taken, in Da Costa v. Newnham, before cited, between the labor performed by sailors who are by contract attached to the ship and bound to do service, and the labor of others hired to work for the general concern. The latter constitute an item in the general average ; the former not, unless the sailors were discharged from the ship. In such case, they, as well as others, might be employed as day laborers and be charged accordingly. The first item in the schedule cannot, therefore, be allowed. The third item, viz. the loss in the sale of a quantity of salt, part of the schooner’s outfit, which was sold at Chitecamp to raise money to pay the expenses, should be allowed in the general average ; for it was a sacrifice of that property for the good of all concerned ; as the case finds that the master had no other means of raising the money. Orrok v. Commonwealth Ins. Co. 21 Pick. 469. In regard to the repairs made at Gloucester, one third should be deducted, new for old. And this deduction is to be made from the gross amount, as was settled in Brooks v. Oriental Ins. [145] Co. 7 Pick. 259. The charge for the survey at Gloucester cannot be considered as part of the loss. 7 Pick, ubi sup. The most material subject of inquiry is the fifth item in the plaintiffs’ claim, namely, “ damage of hogging and strain $835.” The facts relating to this claim are, that the plaintiffs lepaired die schooner in November, 1837, to the extent of making her seaworthy ; and she has been constantly employed and has performed her voyages well, and is insured at the same premium, and at the same valuation since, as she was before she received the damage. But the plaintiffs had a survey called, after she was thus repaired, to estimate the damage which had not been repaired. And it was proved that the whole body of the schooner was injured ; that some of the timbers were lifted ; some of her treenails started ; and that the injury from the strain or hogging could not be perfectly repaired, except by rebuilding her : That the hogging remained after the repairs, and that it affects not only the beauty but also the strength of the vessel. And the damage from the hogging and strain was estimated from $800 to $1000. It is contended for the defendants, that this is an imaginary damage, for which they are not responsible ; and that no such charge has heretofore been allowed in the law of insurance. Sage v. Middletown Ins. Co. 1 Connect. 243. Peele v. Suffolk Ins. Co 7 Pick. 254. The case is not without its difficulties. The assured cannot be permitted to claim for unseen and imaginary damage ; for there can be no standard to measure the correctness of the esti mate ; and the result would frequently be an allowance against the insurers commensurate with the wants to make up a total loss, wherewith to charge the underwriters. But in the case before us, in consequence of the damage within the perils of the policy, some of the timbers have been lifted, and a vessel, that is found to have been one of the first class, is left, after her repairs, so misshapen as essentially to affect her value. There is no room for mistake about the main fact. She is obviously so much hogged as not to be perfectly repaired, unless by rebuilding her. She has been made seaworthy ; but it is in [146] evidence that she is not so strong as she would be if she were as straight as she was built. Now the assured is entitled to an indemnity. If an insurance should be obtained upon the schooner as she now is, and a damage should happen to her, all that could be required of the underwriter would be to put her in as good a state and condition as she was when the policy was made. It could not, on any principle of indemnity, be required that she should be put in a better shape and condition. Here, at the time of the insurance, this schooner was of the'first class. By the perils of the sea, she has received an injury obvious to the eye, and essentially affecting and diminishing her value. How can it be said that the plaintiffs are indemnified, if compensation should not be made for this damage ? We do not intend to shake the doctrine which we have recognized touching imaginary or theoretical strains. It may be, beoretically speaking, that whenever a ship takes the ground, all her timbers, from the keel to the water-ways, must of necessity be in some degree disjointed. But this is not such a case Here the damage is actual, visible and tangible. And if this vessel should hereafter take the ground, or encounter extraordinary seas, it is not to be expected that she would stand the shock as well as if her timbers had not been lifted and disjointed. In the present instance, it is to be observed that there is no evidence of any design to make up a case, or to strain a point, with a view to a certain result. But the claim is put forth and proved as a real damage from the injury sustained within the nerils of the policy, and is to be allowed.