Majority
p. 663Brown and Kimberly against Neilson and Bunker.
Headnote
In judging whether a vessel has been lost in a voyage insured, the usual, and not the utmost length of such a voyage, is the period’on which the jury is to proceed. If two storms are given in evidence on a policy for time, the one within and the other without the period, it is for the jury to say in which the loss has happened. An insurance made on freight and cargo after a previous knowledge of a second storm, does not conclude a jury from finding that the vessel was lost in a prior storm.This was an action, brought after March, 1802, on a policy of insurance for four calendar months, commencing the 28th day of November, 1800, and expiring the 28th of March, 1801, upon the body of the schooner Almira.
The declaration averred the loss to be by perils of the sea, previous to the termination of the limited period.
The vessel sailed from Norfolk, in Virginia, on the 4th of March, 1801, bound to New York, and to prove the loss within the time, the plaintiffs offered evidence to show that a violent storm had taken place the day after her departure, in which, they contended, she had perished. To this the counsel for the defendants objected ; but, on its being overruled, the plaintiffs substantiated the fact, and by the same witnesses it appeared, that vessels who sailed with the Almira, arrived in about ten or twelve days, though, that she herself could hardly, with a head wind, have arrived so soon.
The .usual passage from Norfolk to New York was established to be from five to six or seven days; one witness, a master of a vessel, swore he never knew of an instance above 14 days; from the testimony of two other persons it
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appeared, that there had been one instance of a safe arrival after being 30 days out, and another after 60. On the defendant’s part, the existence of a severe tempest, all along the New York coast, on the 29th of March, the day after the termination of the policy, was proved. They offered, also, evidence that the assured, when fully ap[*526] prized of the first *s.torm, effected, on the 14th oí March, a policy on the cargo at 4 per cent, and another on the 18th. upon the freight at 18 per cent. This, however, the court refused to admit.
Upon these facts, the judge charged, that there was not any time fixed by law after which a missing vessel shall be presumed"to be lost; that if the jury thought the vessel was probably lost within the time limited by the policy, they ought, in his opinion, to find for the plaintiffs ; that he thought the rule ought to be, if a vessel did not arrive within the usual limits of the voyage she was prosecuting,[1] she ought to be presumed to be lost, and that it would not be reasonable to calculate on the utmost, or greatest limit of it; that they ought to decide, according to their judgment of the greater probability of her being lost in the first storm, or in the last.
On this the jury found for the plaintiffs, and said, they had calculated interest from the 5th of March.
A certificate of probable cause for a stay of proceedings having been obtained by the defendants, a case was made on their part; in which the following points were raised :
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1st. That the judge was mistaken in stating the rule of law, as to the presumption of loss from missing vessels.
2d. That the facts proved were not sufficient to enable the jury to find the loss to have been within the time for which the'Almira was insured.
3d. That the insurances made by the plaintiffs on the freight and cargo of the same vessel, after they were apprized of those facts, showed they did not themselves consider them as sufficient to warrant the presumption of loss from the storm on the 5th of March, and the evidence of it ought to have been admitted for that purpose.
On the case being opened, The Court thought there was no ground for staying proceedings, and ordered judgment for the plaintiffs according to the verdict.
Judgment for the plaintiffs.