Osborne v. New York Mutual Insurance — 25 N.Y. St. Rep. 719

Majority

p. 719

Elizabeth J. Osborne, Resp't, v. The New York Mutual Insurance Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Insurance (marine)—Seaworthiness—Question op pact.

In an action on a policy of marine insurance, the captain testified that the vessel was in good condition when she started on the voyage upon which the loss took place, and his testimony was corroborated by that of the official surveyor who examined the vessel some six months before and reported her seaworthy. Another witness testified that when a vessel had her rating five years, and it was extended one, she was "pretty near her endthe vessel in question was fourteen years old. Held, that the question as to seaworthiness of the vessel was properly submitted to the jury.

2. Same—Evidence—Necessary repairs.

Evidence of the prices demanded by mechanics to make the repairs to enable the vessel to continue her voyage was competent, the burden being upon plaintiff of showing that the expense of making such repairs justified the abandonment.

Appeal from a judgment in favor of the plaintiff, rendered on the verdict of a jury, and from an order denying a motion for a new trial.

The action was upon a policy for marine insurance upon the bark “ Aurelie.” A copy of the policy is annexed to the complaint.

The complaint alleges that during the life of the policy, the bark was so damaged by perils of the sea as to be compelled to put into the port of St. Thomas, and upon a survey, then and there made, was found to be so injured as to become a total loss, and on February 3, 1886, was abandoned to the defendant upon due notice.

The defense alleged was that Samuel Osborne, the master of the vessel, with the fraudulent intent of procuring the bark to be wrongfully condemned, put into the port of St. Thomas without necessity, and that while there he fraud

p. 720

ently pretended that the bark had suffered injuries and was in need of repairs, and, by such false pretences and false appearances, produced by him, fraudulently caused the bark to have the appearance, and repute of being injured by sea peril.

George A. Black, for app’lt- James K. Hill and Wing & Shoudy, for resp’t.

The most important matter for consideration is whether upon the proofs introduced as to sea-worthiness of the vessel, the plaintiffs were entitled to go to the jury on that question. The testimony on this point of Captain Osborne is to the effect that on the voyage from Cape Town to Pernambuco the vessel was in splendid condition, and arrived at Peruambuco 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 Captain 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 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 is one, 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.

Sea-worthiness is a relative term, not an absolute one. And when it is held that it is a good condition precedent to an insurance policy taking effect that the vessel be seaworthy, it is not intended that a vessel sixteen years old at nigh to lose her rating must be understood 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 Hew 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 were found broken. Being asked if he considered her seaworthy 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,

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the loss of the vessel shows conclusively that she was unsea worthy when the voyage begun.

After some hestitation 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 in connection with the other evidence.

In the abssence 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 f discussion.

Upon the whole case we are of opinion that the verdict should be affirmed, with costs.

All concur.