Fontaine v. Phœnix Insurance

Headnote

Where a vessel, insured from. New-York to Bordeaux, after being out about SO days, was without firewood and oil or candles, so that for want" of the necessary light, she was obliged to slacken sail, at night, and was retarded in .her voyage; it was > held that she was not seaworthy, though it appeared that she was supplied with 4 gallons of oil when she left New-York.

THIS was an action on two policies of insurance on the brig called the Elisa, and her" cargo, at and from New-York to Bordeaux. The cause was tried at the New-York sittings, in November, 1811, before Mr. Justice Pan Ness.

The Elisa sailed from New-York the 1st November, 1811, on the voyage insured. ■ The master of the Elisa testified, that oh the 12th December, in lat. 45, 20 north, and 8 west of London,

she was boarded by the British frigate Cambrian, and warned off. At the time the Elina was boarded, she was in great distress for want of fuel and candles; the oil and Candles having been entirely exhausted a few days before. The frigate, at first, sent firewood and candles on board, but not concluding to capture the Elina, they were taken back to the frigate. The crew of the Elisa was obliged to burn the hencoops and other wood on deck, and could not, for the want of fire and candles, have proceeded to England or Ireland. The brig kept on a course in which she would be most likely to meet vessels, in order to obtain a supply of those articles. On the 14th December she was boarded by another British frigate, the Revohilionaire, who supplied the Elisa with wood sufficient for one day, but with no oil or candles. For the next 10 or 12 days, she was beating with the winds from E. to E. S. E. and E. N. E. and the weather bad and thick, so that no observation could be taken; that for want of light in the- binnacle, the compass was kept on deck with a man to observe it, and the vessel was under no more sail than was sufficient, during the night, to keep the head of the vessel in that direction, and tacking. It was judged necessary, in this distress, for want of firewood and candles, for the preservation of vessel and crew, to steer for the nearest coast, in hope of falling in with some vessel that would supply those articles. They could not reach ■ England or Ireland, and the French coast being much nearer, they made sail for the coast of France. On the 26th December, being 8 leagues distant from the Cordovan light-house, at the mouth of the Garonne, they were boarded by two British frigates, who took possession of the brig and cargo, and put a lieutenant and six men on board the Elina, and ordered her to Plymouth, where she arrived the 30th December, and was detained by the captors.

The witness, on his cross-examination, said, that after being boarded by the Cambrian, the Elisa was not, at any time, steering for the coast of France, but was “ wearing, tack and tack, steering to keep her own ground, in order to meet some vessel that would supply them with-firewood and candles, and had they been supplied with them, they would have steered for England;" and that (hey had no'intention, had it not’been for their necessities, of making the French coast.

A master of a ship testified that the mean time for such a voyage was from 30 to 35 days; that 4 gallons of oil would have been sufficient, but that oil was liable to accident; that 20 pounds of

candles would have been enough for light during such a voyage: that he thought a vessel unseaworthy, which, on a voyage from New-York to Bordeaux, should be out of oil, and candles, and firewood, in 42 days; that from the statement of the mate, of the situation of the Elisa, from the time she was boarded by the Cambrian until she was captured, she must have beat or tacked to have reached any of the ports near Bor deaux ; and that she was not out of her course to Bordeaux, or th'e near ports, at the head of the Bay of Biscay when she was taken.

It was proved, that four gallons of oil were purchased for the use of the vessel, before she left New-York. The jury found a verdict for the plaintiffs.

- A motiqn was made to set aside the verdict, and for a new trial.