Osborne v. New York Mutual Insurance — 6 N.Y.S. 103

Majority

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Osborne v. New York Mut. Ins. Co.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

1. Marine Insurance—Seaworthiness.

In an action on a marine insurance policy, the vessel having been abandoned during the voyage on account of alleged damage by perils of the sea, the captain testified that the vessel was in good condition when she started, and he was corroborated by the official surveyor, who reported her seaworthy shortly before the voyage. She was 14 years old at the time of the voyage, and one witness testified that when a vessel had had her rating five years, and it was extended one year, she was “pretty near her end. ” The captain testified that cross-seas were encountered on the voyage, but the log did not expressly so state, though it showed that considerable wind prevailed. Held, that the court properly left it to the jury to say whether the vessel was seaworthy.

2. Same—Abandonment—Evidence.

Evidence was admissible to show the prices demanded by mechanics in the port of distress, in response to advertisements for sealed bids, for the repairs necessary to enable the vessel to continue; the burden of proof being on plaintiff to show that the expense of such repairs justified the abandonment.

Appeal from circuit court, Kings county.

This was an action by Elizabeth J. Osborne against the New York Mutual Insurance Company, upon a policy of marine insurance issued by defendant, J une 25, 1885, for one year, on account of whom it might concern, upon the body, tackle, and apparel, etc., of the bark Aurelia. Plaintiff was mortgagee of one-fourth of the bark, in the sum of $2,125, and the insurance was for $2,000. The bark was built in 1872. The complaint alleged that on or about December 22, 1885, “said bark departed from the port of Pernambuco, Brazil, upon a voyage to the port of New York, with a cargo of sugar in bags, being then staunch, strong, and in every respect seaworthy, with competent officers and crew; and that said bark, while proceeding on said voyage, was, by the perils of the sea, damaged in her hull, rigging, and appurtenances, insomuch that for safety said bark put into the port of St. Thomas, where, in the month of

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January, 1886, upon a survey duly called upon the plaintiff’s behalf, said bark Aurelia was found to be, and in fact was, so seriously damaged and injured as to become a total loss, and was thereafter, and on or about February 8, 1886, abandoned by the plaintiff to the defendant, and due notice thereof, in writing, given to the defendant.” Among other defenses, defendant contended that the bark was not seaworthy at the date of the policy, and that the damage was not caused by perils of the sea, but was the consequence of her-bad condition at the beginning of the voyage. The log kept during the voyage was introduced in evidence, and showed that “fresh breezes” and “moderate” and “light” winds prevailed during the voyage, and that heavy seas were encountered, but there was no record of “cross-seas,” though the captain testified that frequent cross-seas were in fact encountered. The other material facts are sufficiently stated in the opinion. There was a verdict and judgment for plaintiff, and defendant appeals.

Geo. A. Black, for appellant. James K. Hill and Wing & Shoudy, for respondent.

The most important matter for consideration is whether, upon the proofs introduced as to seaworthiness of the vessel, the plaintiffs were entitled to go to the jury on that question. The testimony on this point of Capt. Osborne is to the effect that on the voyage from Cape Town to Pernambuco the vessel was in splendid condition, and arrived at Pernambuco in good condition, December, 1885; was in good condition when towed out of the harbor to begin the voyage upon which the loss took place. The testimony of Capt. Osborne is criticised as being that of the person whose conduct is under investigation, and who may also be considered to have a money interest in the litigation; his wife being the plaintiff. But he is corroborated by the testimony of the official surveyor, who examined the vessel, June 29, 1885, and found her seaworthy, and 'so reported. He says he went all over her very carefully, and as far as he could see she was in good condition. He saw no signs of old age about her; there were no missing beams. Upon the report then made the rating of the vessel in the shipping record was continued for a year. The chief surveyor of the board of underwriters, of which defendant isione, testified for plaintiff, and explained that when a vessel had had her rating five years, and it was extended one year, except in a vessel built in the Mediterranean, she was pretty near her end. Seaworthiness is a relative term, not an absolute one; and, when it is held that it is a condition precedent to an insurance policy taking effect that the vessel be seaworthy, it is not intended that a vessel 14 years old, at nigh to lose her rating, must be understood as being equally sound as a new vessel with a higher rate. An illustration is found in the testimony of McLeod, called by defendant, who states that when in command of a sugar vessel he discovered a leak while at the wharf in Cuba, yet he started for New York with the leak, and considered it good seamanship. The vessel reached home in safety, and when put on the dry dock two planks in the bottom w-ere found broken. Being asked if he considered her séaworthy when in that condition, he says, “That is rather a difficult question" to answer,” but, under all the circumstances, considered that it was. The argument of defendant is that, in view of the facts shown by the log that no extraordinary weather prevailed, the loss of the vessel shows conclusively that she was unseaworthy when the voyage began. After some hesitation we are of opinion that the testimony justified the submission of the question to the jury, and that their verdict must control. The exception by defendant to the evidence of the prices demanded by mechanics in St. Thomas to make the repairs necessary to enable the vessel to continue her voyage was not well taken. The plaintiff had the burden of showing the expense of making such repairs. To do that the advertisements for sealed proposals were put in evidence, and also the lowest bids received. These were competent for the jury to consider

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in connection with the other evidence. In the absence of collusion or fraud, they would go far to show what would be the expense of making the repairs. The exceptions to the charge to the jury do not require discussion. Upon the whole case we are of opinion that the verdict should be affirmed, with costs.