Majority
p. 201John Sharp, survivor of Robert Sharp, against The United Insurance Company of the city of New York. NEW-YORK. May, 1817.
Headnote
In an action to recover back a premium of insurance, on the ground that the plaintiff had no interest in the vessel at tne time the insurance ivas made, the register, which was in i he name of other persons, is not even prima facie evidence to vow that the plaintiff was not the owner of the vessel.THIS was an action brought to recover back a premium which had been paid by the plaintiff to the defendants, for the insurance of the ship Hercules, on a voyage from New-York to Liverpool, and back to NewYork. The declaration contained a count for money had and received, and other common counts in assumpsit ; to which the defendants pleaded the general issue. The cause was tried before Mr. Justice Yates, at the New-York sittings, in November, 1816.
The policy of insurance was executed on or about the 24th of October, 1810, when it bore date, (after a written application to the defendants by the plaintiff and Robert Sharp,) and purported to be on account of the plaintiff and Robert Sharp. A note for the premium, amounting to 1,801 dollars and 25 cents, bearing the same date with the policy, and payable in nine months, was drawn by Robert and John Sharp, and endorsed by David Dunham, which note, after having been twice renewed, was paid, on or about the 2d oí April, 1812. In order to show that the plaintiff, at the time of effecting the insurance, had no interest in the vessel, a certificate of registry was produced in. evidence, which was admitted by the defendant’s counsel as sufficient proof of the registry, but its admissibility as proof of the ownership of the vessel was objected to, the judge, however, allowed it to be read in evidence. This certificate was dated the 22d day of June, 1809, and stated that David Dun- ham, of the city of New-York, had taken the oath required by the act of congress concerning the registering or recording of ships or vessels, and had sworn that he, together with Robert Sharp, of said city, merchant, were the only owners of the ship Hercules. It was admitted that there had been no change of the registry until after the termination of the voyage insured.
The defendant’s counsel moved for a nonsuit, on the ground that the register was not sufficient proof of the ownership of the vessel; that there was no sufficient proof of the payment of the premium by the plaintiff and Robert Sharp ; that by their application for insurance, and accepting the policy, they had admitted themselves to be owners; and that the acts of thp
p. 202The certificate of registry was not sufficient evidence, then, of a want of interest in the assured to entitle them to a return of the premium. 2, Acts of ownership are sufficient evidence of interest; and the very act of making the insurance is proof of ownership. 3. It was a fraud in the plaintiffs to represent themselves as owners, and obtain insurance as such, knowing, at the time,
plaintiff, and Robert Sharp and David Dunham, in making the insurance and giving and endorsing the note for the premium, and paying the same after the termination of the risk, recognised and admitted the 'ownership of the vessel to have been in the plaintiff and Robert Sharp at the time of effecting the insurance, The judge, however, denied the motion, and a verdict was found for the plaintiff for the amount of the premium, with interest, from the date of the policy. The defendants moved for a new trial.
S. Jones, jun., for the defendants, contended,
1. That the register alone was not sufficient evidence of ownership in David Dunham and Robert Sharp, at the time the insurance was effected. The act of congress for the registry of vessels, is solely for the purpose of giving them a national character, and constituting them American ships. In England, the register is not even prima facie evidence of ownership. In Frazer v. Hopkins and Long,[6] Sir James Mansfield held that entries in the custom-house books of the persons registered as owners of a ship, were not evidence of ownership; and in Flower v. Young,[7] Lord Ellenborough held the same doctrine. So the court of C. B., in the case of Pirie v. Anderson,[8] decided that, in an action on a policy of insurance, the certificate of registry was no evidence for the plaintiff that the interest in the ship was in the persons in whom it was averred, and in whose names the insurance was effected. The property in a ship is transferred by the bill of sale, and that, with the certificate of registry, or possession of the ship, must be shown, to support the averment of interest in the plaintiff.[9] The name of the true owner is not always inserted in the register of the ship.[10] An equitable or qualified interest may be insured; and proof of such an interest will support the action on the policy. The question in this case is, what is proper evidence of an insurable interest; not what is a legal, or technical ownership.
p. 203that it was not the fact. Can a person who effects insurance, with full knowledge that he has no interest, recover back the premium on the ground of a want of interest ? 4. If the registry was evidence, the plaintiffs could recover only in proportion to the interest proved by the register.[6] contended that the certificate of registry was, at least, prima facie evidence of ownership. It is made so by statute; the acts of congress relative to the registry of ships, require certain acts to be done to entitle the party to this evidence of ownership. The privileges of the American character, conferred by the certificate of registry, cannot be obtained without an affidavit of the ownership.[7] The collector keeps, in a book, a record or registry of the facts, of which the certifica te is an abstract. In the case of the United Stales v. Johns,[8] the circuit court of the United States, for the district of Pennsyhania, decided that, as it was made the duty of the collector to record, in a book, all manifests, a copy of the manifest, under the hands and seals of the custom-house officers, was admissible evidence. Philips, in his treatise on evidence,[9] lays it down as settled law, that the certificate of registry of a ship, is conclusive evidence of want of title against those who are not named in the register; that they cannot legally be joint owners, though the converse of the rule may not be true. In Curtis v. Perry.[10] Lord Eldon held, that where a ship is registered as the sole property of one of two partners, must be deemed the property of the one in whose name she was registered, as among creditors, in a case of bankruptcy. In Murray v. The Columbian Insurance Company, the register was produced. Again ; where no risk has been begun, whether it be owing to the fault, pleasure, or will of the insured, or to any other cause, except fraud, the premium must be returned.[11] Misrepresentation, without fraud, is nothing. If a vessel is insured as the properly of B., and it turns out that he has no interest, but the ship belonged to A., an action lies to recover back the premium.[12]
Caines, contra,
delivered the opinion of the court. The plaintiff seeks to recover back the premium of insurance on the ship Hercules, on a voyage from New-York to Liverpool, on the allegation, that he and his brother Robert Sharp were not owners
p. 204
when tile policy was effected. To prove this, the plaintiff offered in evidence the register of the ship, dated the 2d of June, 1809, by which it appears, on the oath of David Dunham, that he, together with Robert Sharp, were the owners ; the policy bears date the 24th of October, 1810.
The only question in the case is, whether the register is evidence, prima facie, that Robert and John Sharp were not the owners. The object of the register is, to show the character of a vessel, and to entitle her to the advantages secured by law to vessels of our own country. It was granted, on the oath of one of the owners, and there can be no reason for admitting this as proof of ownership, to contradict the fact set up by the act of procuring an insurance on the same ship, as owned by different persons. It would be incongruous to allow a person who applies for an insurance on a ship, representing himself to be the owner, to set up the act of obtaining a register, as evidence ¡to the contrary ; especially, after the lapse of several months after it hears date. Dunham was a competent witness, and he ought to have been examined, or some proof should have been offered, to show how the ownership stood, when the insurance was effected. The oath of the owner, in obtaining a register, is proof for no other purpose. The register would not be evidence against Sharp, unless it were shown that he sanctioned, or adopted it. The principles adopted by the court in this case," are fully supported by authorities. (4 Taunton Rep. 651. 2. Taunt. Rep. 5. 2 Campbell, 107. 3 Cowp. 240. 3 Taunt. Rep. 176. 6 East, 10. 4 East, 130. 14 East, 226. 16 East, 169.) There must be a new trial, with costs, to abide the event of the suit.
New trial granted.,