Child v. Sun Mutual Insurance — 5 N.Y. Super. Ct. 26

Majority

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S. P. Child and others v. The Sun Mutual Insurance Company.

Headnote

The clause requiring “proof of loss” in marine policies, only exacts from the assured reasonable information to the insurer as to the nature and extent of the loss, ' so that he may form some estimate of his rights and duties before he is obliged to pay. It does not require legal proof, such as would carry a cause to a jury on the question of loss. It suffices that the assured gives the best evidence that he possesses at the time, and it is such as to furnish a reasonable presumption of the loss claimed.

Where the preliminary proofs under a policy on a whaling ship consisted of the ship’s register, and an affidavit of one of the owners (being also the managing agent of the vessel, in whose name she was insured), stating that she had sailed for home from the Sandwich Islands twenty months previous, and was last heard from fifteen months previous when on her way; it was held to be sufficient.

Under a valued policy on a whaling vessel and her outfits, and the takings homeward, in the name of C., as agent, loss payable to him; preliminary proofs by C. that he was an owner and the managing agent, and that the vessel had set out on her homeward voyage, full, were held to be sufficient, as to interest, and as to the contents of the cargo.

Where the objections to preliminary proofs are of a kind which may be obviated it made known at the time, they will be deemed waived, if they are then overlooked or withheld.

A newspaper is not competent evidence to prove the deviation of a missing vessel, or facts tending to show that she left a port in the region of the world where the-newspaper was published, in an unseaworthy condition.

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For the meaning of terms used in trade and commerce, the courts resort to the evidence of experts and those versed in the particular branch of trade.

Thus, in a policy of insurance “ on a whaling voyage,” the insured were permitted to prove that a whaling voyage, as understood and practised in commerce at the date of the policy, included the taking of sea elephants on the beaches of islands and coasts, as well as whales wherever found.

In respect of a policy executed in New York, on a Rhode Island whaling ship, the usage of insurers in New Bedford relative to policies on whaling ships, is inadmissible, because it is local, and it is not offered as the usage of both insurers and assured.

A deviation consists in increasing or varying the risks insured against, without necessity or reasonable cause.

If the risks be varied, it constitutes a deviation which will discharge the underwriter, although they be apparently diminished.

This defence is founded on justice and good sense. It is not technical, and may be taken by the underwriter without any imputation against his honesty or fairness.

Where the evidence is all on one side, or it depends on the construction of the policy,1 the judge at the trial should determine the question of deviation. But when the fact that the risk was or was not altered, depends on circumstances peculiar to the pursuit in which the vessel was engaged, and the evidence is not decisive to prove the fact, it is the province of the jury to determine the point.

The mating of two whaling vessels, does not, as matter of law, prove a deviation, under a policy insuring a vessel on a whaling voyage.—The question must go to the jury on that and the other circumstances appearing in the case.

The clause in a policy on a whaling voyage, giving the vessel liberty “ to stop at all ports and places for trade, refreshments, and recruits,” does not deprive the vessel of the right to enter bays or touch and stay at islands, for taking whales, or sea elephants, if shown to be the proper purposes of a whaling voyage.

(Before Oaklet, Ch. J., and Vanderpoel and Sandford, J. J.)

May 23, 24, 25 ;

June 30, 1849.

This was an action upon a policy of insurance, tried before Saitoford, J., on the 24th, 25th, and 2fjth days of October, 1848. By the policy read in evidence, dated August 7th, 1843, the defendants insured “ S. P. Child, agent,” on account of whom it might concern, in case of loss to be paid to him, “ at and -from Warren, July 30th, 1843, at noon, on a whaling voyage, and to continue during her stay and cruising, and until her return to Warren, with liberty to stop at all ports and places, for trade, refreshments, and recruits; on vessel and outfits, $9,000; on nautical instruments, $200; upon the body, tackle, apparel, and other furniture, outfits and takings of the good whaling ship called the Jane,” and “ upon the takings of the said vessel and her crew.”

The vessel, taclde, outfits, takings, &c., insured, were valued

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in the policy: the vessel at $13,500, and the outfits at $13,500 ; “ without any further account to he given by the assured to the assurers, or any of them, for the same.”

The -adventures and perils insured against were expressed in the usual form of the Hew York marine policies. The rate of insurance was five per cent, for two years, and pro rata for a longer time, warranting five per cent.; and in case of loss, such loss was to be paid in thirty days after proof of loss and proof of interest. The policy contained the following clause:—“It is agreed further, as follows: This policy attaches on provisions, oil casks, iron boilers, and whaling apparatus generally, outward, and on oil, bone, and other takings, empty casks, and whaling apparatus generally, homewards, including such other articles as may be received in exchange therefor, valuing whale oil at cents per gallon, sperm oil at cents per gallon, and whalebone at cents per pound, and other articles at such prices as they may be received at in exchange. As fast as oil, bone, and other articles of cargo are procured, this insurance is to attach on the ship-owner’s interest therein, exclusively, about two thirds of which is to apply to this policy, the crew’s share (about one third) not being covered by this insurance. One quarter part of takings to take the place of outfits. It is understood that in case the should be lost, and no person saved to prove the "amount of the return cargo, this insurance, in such event, is to be considered as proof of interest in the return cargo, to the amount of the sum hereby insured.”

Also the following clause : “ It is agreed that this policy shall not attach on oil catchings, until the blubber is boiled, and the oil put in casks, nor on the other articles of catchings, until stowed below deck, nor on oil while continued on deck longer than is necessary to prepare it for stowing below. Catchings lost or jettisoned previous to being so secured, in whatever state they may be, shall not be contributed for in general average.”

The plaintiffs offered in evidence as preliminary proofs, the policy of insurance, and the several documents following, which it was admitted were served on-the defendants on the 20th day of July, 1841.

1. A certified copy of the ship’s register, dated July 28th.

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1843, by which it appeared that the Jane was owned by the plaintiffs in this suit, together with her then master, B. Eddy, jun.; two of the owners residing in Warren, R. I., and others in Baltimore, Md.

2. An affidavit, sworn before a public notary at Warren, July 17th, 1847, in these words : 161, ShubaelP. Child, of Warren, in the county of Bristol, in the state of Rhode Island, &c., being of lawful age, and being duly sworn according to law, do testify and say, that I was the managing agent for the owners of the ship Jane, of Warren, Rhode Island, on her late whaling voyage; that said ship sailed from said Warren, on said voyage, on the 30th day of July, A.D. 1843; that said ship was heard from at divers times and at divers places on the route of said voyage; that said ship was reported at the Sandwich Islands, on the 18th day of October, 1845, full, and bound for home; that subsequently she was reported by Captain Taber, as spoken by him on the 18th day of November, 1845, lying off and on at the island of Wytatoche, taking in water for her voyage home; that said ship has never been heard from by this deponent, or by any one else to his knowledge, since said 18th day of November, 1845. And this deponent further says, that according to the regular and ordinary course of voyages in the whaling business, said ship should have arrived and was fully expected to arrive home in the course of the month of April, 1846, but that said ship did not arrive at that time, nor has she since arrived or been heard from by this deponent. And he has no doubt, but fully believes, that said ship and cargo has been lost at sea, and no person of her company been saved.”

3. A letter from the agent of S. P. Child to the defendant, dated New York, July 20th, 1847, in these words :—“ I draw your attention to the preliminary proof of interest and loss in the case of the policy on ship ‘Jane,’ outfits, &c., namely copy of register lately delivered, and affidavit of S. P. Child, agent and owner, now submitted, the policy itself being proof of interest.”

The defendants’ counsel objected to the preliminary proofs on the following grounds, viz.:

1. That as they did not show the usual length of a voyage

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from the Sandwich Islands to the United States, and as the affidavit was sworn to by only one of the owners, there was not sufficient evidence to authorize the inference of the ship’s loss.

2. That the interest of the owners of the cargo was not stated.

3. That the contents of the cargo did not appear.

The court overruled these objections, and decided that the preliminary proofs were sufficient, to which decision the defendants’ counsel excepted. (It appeared that the suit was commenced in October, 1847.)

The plaintiffs proved by a sister of the master of the vessel, residing at Warren, that the Jane was expected to return to Warren in March, 1846; and that neither the master nor the vessel has ever been heard from by his family since October 15, 1845, when the vessel was at Honolulu, about to proceed directly home. It is their belief that he has been lost at sea in the vessel.

They also proved by Ellery Hash, the master of a whaling vessel, that he saw the Jane and Oapt. Eddy at the Sandwich Islands in October, 1845, when the Jane was got under weigh to return home. She was deep in the water, as if full, and appeared fit for the voyage. The voyage from there home, is usually five months. (The plaintiffs subsequently gave further proof on this subject.)

The plaintiffs then rested. The defendants moved for a non-suit, on the ground of want of proof of loss and interest in the cargo; which motion was denied by the court, and they took an exception.

The defendants then proceeded to their defence, and proved by J. Bunker, the first officer of the whaling ship Eagle, that in October, 1844, the Jane came into the port of San Diego in California, for recruits, having on board about sixteen hundred barrels of whale oil. The Eagle next met the Jane off Ceros island, two or three days’ sail south of San Diego, on the coast of Lower California. The Jane was taking sea elephants from the island, and had taken there one hundred and twenty barrels

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of sea elephant oil. The Eagle and the Jane then commenced “ mcbteslivpthat is, working the two ships and their crews together, for the common benefit of both ships, in the taking of sea elephants. They continued thus mated, till February 7th, 1845, during which time they took about eleven hundred barrels of elephant oil. They took no whales during that period. While mated, the Jane lay at anchor in a bay of Ceros island, with the second mate and three men on board; the Eagle was lying off and on, on the west side of the island. The other men of the two crews were engaged in killing sea elephants on the island, and bringing the blubber on board the Eagle, where it was tried out. In this employment they used the boats of both vessels. The Jane went from Ceros down the coast, then to the Sandwich Islands, and then to the northwest coast in pursuit of whales.

A great deal of evidence was then given to show, on the part of the plaintiffs, that the taking of sea elephants was in the usual course of the business of whaling, and that it constituted a part of a whaling voyage, as understood and practised by those engaged in whaling from the various ports of the United States, at and before the period when the Jane sailed on her last voyage. This evidence was objected to on the part of the defendants, but admitted by the court. The defendants went into counter evidence on the same point. In the course of this proof, the respective parties called witnesses, who were masters of whaling vessels, and who had been engaged in that pursuit for various periods, from fifteen to forty-four years, from all the principal ports in the United States from which whalers usually sail,—several of whom had cruised for whales in every known sea on the globe where whales are taken. There were twenty witnesses examined on this subject, all of whom had thus been engaged in whaling. Their evidence is referred to in the charge of the judge, and although very intelligent, interesting, and instructive, it is deemed unnecessary to' state it at large in this place.

It appeared by the evidence, that sea elephants are amphibious animals, living in the water a considerable part of the year, and hairy like seals. They are killed on land with lances

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or harpoons, though a short lance is better for tue purpose than a harpoon. Sometimes they are shot with muskets. They collect in large numbers on the beaches on the coasts where they are found. The oil is tried out in the same manner as whale oil. It is a little more valuable in the market than right whale oil, and is known in commerce as elephant oil.

The plaintiffs gave evidence to show that whales had been seen and taken in the vicinity of Ceros Island, and it was considered whaling ground.- That the island is a good roadstead anchorage, sheltered from the prevailing wind, which is northwest. There was some contrariety of evidence as to the safety of the anchorage there. Also as to the comparative safety of whaling and sea elephanting. . •

It appeared that black whales, called also California greys, are taken along the coast of Lower California. The usual course of whaling ships in the Pacific was, after recruiting at the Sandwich Islands on their way out, to proceed to the Northwest coast, and whale from June until October, some of them cruising to Kamschatka; then to return to the Sandwich Islands or to the coast of California to recruit, and if not full, to fill up the intermediate season in whaling along the latter coast, or on the coast of Peru, and in the following spring again proceed to the Northwest coast.

The defendants’ counsel offered to read an article of marine intelligence from a file of the Seaman’s Friend, published at Honolulu, under date of April 15th, 1845, for the purpose of showing that the Jane was at Honolulu on the 30th of March, 1845, with certain quantities of whale oil and elephant oil, and that that fact was published.

It was proved that the Seaman’s Friend was sent to this country regidarly. The plaintiffs’ counsel - objected to the reading of the newspaper as evidence, and the court decided that it was inadmissible, to which decision the defendants’ counsel excepted.

The defendants called as a witness Captain Simmons, of the ' ship Magnolia of New Bedford, which in November, 1846, and before and after that month, was engaged in taking sea elephants at and near Ceros island. ■ He produced the policy under which

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the Magnolia saik d on 'that voyage. The defendants’ counsel then offered to prove by the witness, and by the terms of the policy under which he sailed, that although the policy was for a whaling voyage, express permission was given by an amendment thereon endorsed, at the request of the assured, to take sea elephants, and that for this permission an additional premium was paid; but the evidence offered was objected to, and the court decided to exclude it, to which decision defendants’ counsel excepted. Defendants’ counsel further offered to prove, that previous to the date of the policy in suit, it had been the general and uniform usage at ¡New Bedford of assurers, when it was intended to employ a vessel insured on a whaling voyage in taking sea elephants, to insert a liberty to that effect in the policy, and that for this liberty an additional premium was paid. This testimony was also excluded by the decision of the court, to which decision defendants’ counsel excepted.

It was proved that Talcahuana, in Chili, was about a month out of the course of a vessel sailing from the Sandwich Islands to the United States. The defendants’ counsel then produced a newspaper called “The Polynesian,” purporting to be published at Honolulu on the 22d day of May, 1847, and offered to show that it was in fact published there at that time, and was brought to this country, and that it contained an article of intelligence as follows, viz. “ Whaleship Jane, Captain Eddy, of Warren, R. I.—This vessel left here Oct. 15th, 1845, with 2900 bbls. of oil for the U. S. Nov. 18 she was spoken off the Society Islands. Since then, up to Dec., 1846, nothing had been heard of her by her owners. From Mr. Vida, of the firm of Vida & Yon Pfister of that place, we learn that late in Dec., 1845, or Jan., 1846, he does not recollect which month, the Jane anchored below Point Yincent, near Talcahuana, for potatoes. The officer of the port ordered her to Talcahuana that he might secure his anchorage dues, &c. Capt. Eddy refused to go, and sailed immediately for the island of St. Mary’s, farther down the coast, and anchored at high tide close in. Mr. Yida boarded her to purchase oil, and at the captain’s invitation stayed all night. When the tide fell, the ship thumped heavily, unshipped her rudder, knocked in her roundhouse, and began to

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leak. Mr. Vida advised the captain to put into Talcahuana and ascertain damages. He refused to do this, saying that if the leak should prove had, he could put into Chiloe. The next day he got under weigh and stood out to sea. Since then nothing has been heard of the ship, and the probability is that she foundered.”

Defendants’ counsel stated that his object in offering this evidence was to prove that the date of the last authentic intelligence published concerning the Jane and received by her owners, as this in fact was, was not so remote as they had represented it to be, and thereby to weaken the presumption of a loss which might arise from the testimony already introduced. Plaintiffs’ counsel objected to the evidence offered, and it was thereupon decided by the court to be inadmissible, to which decision defendants’ counsel excepted.

The testimony having been closed, the counsel for the defendants requested the court to charge the jury, that the provision in the policy giving liberty to stop at all ports, &c., was restrictive, and prohibited the entry into any ports or places other than those therein expressed. That the Jane, under the policy, had no right to go and stay at Ceros, for any purpose but for .trade, refreshment, and recruits, and her stay there was therefore a deviation. That if she had a right to go there to take sea elephants, then her mode of prosecuting it was improper, if she entered into a contract of mateship with the Eagle. That the court should instruct the jury that a “ whaling voyage ” in this policy means a voyage undertaken to apprehend whales ; and the contract showing that clearly upon its face, the evidence given to explain by usage or otherwise, the meaning of the term “ whaling voyage,” ought to be disregarded and stricken out.

The plaintiffs’ counsel also submitted certain propositions, which they requested should be charged by the judge.

The court charged the jury, amongst other things, as follows: “ The evidence is prima facie sufficient to warrant the jury in inferring that the vessel was lost by the perils of the seas.

“The defence set up is mainly an alleged deviation of the

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vessel from the voyage insured. A deviation consists in increasing or varying the risks insured against, without necessity or reasonable cause; and it may consist in a simple variation, without an apparent increase of the risks. The reason why a deviation discharges the underwriters is that which has been stated by the counsel, namely, the impossibility of discerning clearly the effect of the alteration, or of saying whether the disaster was or was not caused thereby. This, if established, is a good defence. It is not a technical defence, but is founded in justice and good sense, and is one which the underwriters may take without any imputation against their honesty or fairness. And its character as a defence is not to be affected by the question whether or not the deviation increased the risk.”

“ The clause in the policy giving liberty to stop' at ports, &c., for recruits, was inserted for greater caution, rather "than as a restriction. It did not deprive the Jane of the right to enter bays, or touch and stay at islands, for the proper purposes of a whaling voyage.”

“ It is a principle of law, that underwriters are bound and presumed to know the course of trade in the departments in which they insure. Keeping this in mind, and also remembering the nature of a deviation, yom* attention is called to the principal question in the case, namely, what were the takings m the usual course of a whaling voyage, at the time this policy was made ? I am asked to instruct you that by this piolicy the insured were restricted to the taking of whales only; but I cannot say as matter of law, what a c whaling voyage ’ is. That must be determined upon the testimony of those acquainted with the pursuit. This question you must determine according to the evidence before you; restricting yom* inquiry to vessels engaged in voyages undertaken for" the same purposes as that of the Jane, which was simply a whaling voyage. It may be stated, so as to be more particularly applicable to this case, in another way. Did the usual cov/rse of a whaling voyage, as understood i/n commerce, at the time this policy was effected, include the taking of sea elephants, i/n the manner and for the period pursued by the Jeme, as proved by the witness Bunker? This

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yon will decide upon the testimony, of which I can only state its outlines.

“ Ton have remarked by the testimony of several of the witnesses, that' some vessels are fitted expressly for the purpose of taking sea elephants. Such voyages are no criterion for the formation of your judgment in this case. Other vessels were fitted with peculiar equipments, such as short lances, shallops, &c., and these were called whaling vessels. Where voyages were undertaken for elephanting only, further ground tackle has been mentioned as necessary by some of the witnesses ; while others say that no more is requisite than is proper and is taken for whaiing, in modem times. All the witnesses agree, that whalers in qmrsuit of whales, take elephants and other sea animals yielding oil, if found in their cruisings. Some of the witnesses speak of Ceros and its vicinity as whaling ground, and as a usual cruising ground of whalers between the seasons on the ETorthwest coast. It also appears that only a few vessels in proportion to the whole number engaged in whaling, take sea elephants, and those take them only in small numbers. This is relied upon by the defendants as showing that it is not in the usual cotu'se of whaling voyages to take these animals. Whether it is for that cause, or it is because being found only on-beaches and coasts, and not very abundantly, there are thus fewer opportunities to take them, it is for the jury to say.

“Then, was the Jane, while at Ceros island, from ETov., 1844, to the 7th of February, 1845, engaged in a whaling adventure in the usual way, or had she entirely abandoned her whaling voyage, and was she devoted to a distinct purpose? Was she there spending the ‘between season’of the ETorthwest whale fishery, in a better climate, seeking whales, and filling up with such'sea elephants as she might meet; or was she seeking elephants exclusively, without at all aiming to capture whales ? If the latter was the case, the testimony will not sustain you in saying that she was in the prosecution of a whaling voyage. This part of the case is so important, that I repeat in substance what I have stated. Was the Jane, while at Ceros, in the pursuit of whales as she could find them, and taking sea

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elephants and whatever else came in her way to fill up ; or did she abandon the pmsuit of whales during that period, and make elephanting the object of her pursuit exclusively ? If the latter were the fact, the testimony will not sustain you in finding that she was in the usual course of a whaling voyage. If you find that she was in pmsuit of whales and sea elephants, it is a question for you, as I have before submitted, whether or not that was in the regular prosecution of a whaling voyage. If you find that it was not, or if you find that she was engaged exclusively in sea elephanting, having for the time abandoned the pursuit of whales, there was a deviation which discharged the defendants, whether the risk was thereby increased or not. That circumstance makes no difference, as I have already instructed you, and the result would be the same, if you should think that the risk was thereby diminished.

“ If no deviation of this kind is established to your satisfaction, you are next to inquire whether the mating of the Jane with the ship Eagle, as proved by the witness, Bunker, constituted a deviation. It depends upon the question whether or not it altered or Varied the risks insured against.’’ On this point the judge reviewed the testimony and put the question to the jury, “ Was the risk thereby altered or varied ? If it were, the mating constituted a deviation and discharged the underwriters. If the risk were not changed or altered, the mating furnishes no defence.”

The respective counsel excepted to the charge of the court, so far as it failed to conform to the points submitted by them respectively.

The jury rendered a verdict for the plaintiffs for the amount of the policy.

H. Ketchum, for the defendants, argued the following points:

I. The preliminary proofs did not furnish sufficient proof of loss to authorize a claim upon the defendants. The party should furnish the best evidence the nature of the case admits, and the facts stated, should be such as, at the trial, would carry the cause to the jury. Here the affidavit was not made by the owners, and it does not aver inquiry or any diligence to learn the fate of the vessel. (1 Park on Ins. 147, 148; 3 Steph. N. P.

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2213; Gordon v. Bowne, 2 John. R. 150; Oppenheim v. Leo Wolf, 3 Sand. Ch. R. 571.)

H. The court erred in refusing in evidence, the article published in a newspaper at Honolulu called “ The Polynesian.” This evidence ought to have gone to the jury to rebut the presumptive evidence of the loss of the vessel. So ought also the testimony offered from the “ Seaman’s Eriend.” (Williams v. East In. Co., 3 East 192; 2 Stephen’s N. P. 1550, 1553. Gordon v. Bowne, 2 John. R. 154.)

HI. The court erred in admitting the various questions as to what were the tailings in vessels fitted for whaling voyages, and as to what constituted a whaling voyage; because,

I. The expressions “ whaling voyage,” mean a voyage for apprehending whales.

2. The context of the policy confirms this view.

3. Proofs, therefore, that vessels employed on a whaling voyage take sea elephants, is contradictory of the terms of the contract, and is not admissible. (1 Duer on Ins. 176, § 27 and note (a) on page 177; Id. 179, § 30, and 182, 183; 4 East 135; 10 Barn & Cr. 817; 3 Kent Comm. 260 note; Renner v. B ank of Columbia, 9 Wheat. 587 .)

IY. The evidence offered, proposed to prove that a usage exists that a vessel on a whaling voyage may take sea elephants. Sea elephants are not taken at sea, but on the land. Therefore in order to take sea elephants, a vessel must touch and stay. Express provision is given in the policy, “ to touch and stay at any ports or places if thereunto obliged by stress of weather, or any other unavoidable accident;” also, “ to stop at all ports and places for trade, refreshment, and recruits.” These express privileges “ to touch and stay,” exclude the idea that the parties intended her to touch and stay for any other purpose. (Elliot v. Wilson, 4 Brown’s Parl. 470; Doyle v. Powell, 4 Barn. & Adolph. 267.)

Y. Ho usage was proved that a whaling voyage included a voyage for the taking of sea elephants. The court was bound so to instruct the jury. Out of 430 vessels, respecting which evidence was given, only thirty-one were engaged in taking sea elephants. ( 1 Duer 182 , 183; 1 Greenleaf 335, § 292, and

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note (4) on page 336; 3 Starkie Ev. 453; Smith’s Leading Cases 418 [310]; Dawson v. Kittle, 4 Hill 107 .)

VT. If the evidence of usage were properly submitted to the jury, it was not such as to prove the existence of the usage sought to be established, and the verdict is therefore contrary to the evidence.

VH. There being no usage to vary the plain and explicit terms of the contract of insurance, it stands before the court that the assured paid their premium for indemnity against the risks of a voyage in the pursuit and apprehension of whales only; and that on that voyage the vessel was not authorized to touch and stay for any but specific purposes, among which the taking of sea elephants is not included. Any departure from the voyage thus specified and agreed upon, is a deviation.

VHI. The detention of the Jane at the island of Ceros, was not authorized by the privilege inserted in the policy “ of liberty to stop at all ports and places for trade, refreshment, and recruits.” It is not pretended that she stopped at Ceros for either of these purposes, and she was not at liberty to stop for any other purpose. She might probably cruise for whales in a bay, because whales are sometimes caught in a bay, but she could not, under the terms of the policy, stop, come to, and anchor, and pursue any other purpose on shore, except the obtaining of refreshment and recruits. (Hammond v. Reed, 4 Barn. & Ald. 72; Sully v. Whitmore, 5 Ibid. 45.)

IX. The contract of mateship made and executed by the Jane with the Eagle, was not authorized by the policy, and the judge erred in charging the jury that if by entering into and executing such a contract the risks insured against were altered or varied, the insurers were discharged. (Tennant v. Henderson, 1 Dow. Parl. Ca. 324.)

X. The testimony offered by defendants as to the New Bed-ford policy taken by Capt. Simmons, and the usage at New Bedford, which port sends out twice a¡# many whalers as any other in the world, was improperly excluded. (Constable v. Noble, 2 Taunton, 403.)

XI. Most of the policies in this business are underwritten at

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that port; and the evidence was direct as to the usage and course of trade in respect of taking sea elephants.

D. Lord, for the plaintiffs, argued the following points.

First. 1. Evidence as to what whaling voyages embraced, by witnesses who had conducted them, was admissible. It was not evidence of usage, to give any peculiar sense to the language of ■the policy. It was evidence as to the state of the trade, to show the subject to which the policy in its ordinary language applied.

2. The question as to what whaling voyages, as actually carried on, embraced, was rightly submitted to the jury, and with instructions of which the defendants cannot justly complain. .

Second. 1. Evidence of an express permission to take elephants, endorsed after the voyage was begun, on the policy spoken of by Simmons, was rightly excluded.

It was no evidence of the whaling trade, as actually pursued.

It was not shown how far the parties to that policy were conversant with the trade.

Such an act by the parties to that policy could have no bearing on the whaling voyage insured by the policy in suit.

2. The evidence offered of the usage of underwriters at Hew Bedford to insert clauses, expressly permitting ’elephants to be taken for an increase of premium, was inadmissible. It was a local usage. It was evidence of the practice of underwriters only. ( 7 Wend. 72 ; Ibid. 270.)

The insertion of special clauses is as frequently caused by extra timidity as by any necessity.

It was no evidence of the open and public character of the whaling trade as in fact practised.

Third. 1. The law of deviation, in relation to the abandonment of whaling operating to defeat the policy, was laid down in such a manner as to give no just ground of complaint to the defendants.- *

2. If whaling voyages as in fact conducted, allowed of the taking of elephants at Geros island, then the law as to the mating of ships was correctly laid down.

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The ship being in the business insured, the master had a right to determine as to the best mode of conducting it.

The policy was on time, and allowed of every latitude of time so long as the business of the voyage was not abandoned.

3. The doctrines of deviation, in the strict form claimed by the defendants, are not applicable to whaling voyages and where the policy is on time.

The defendants’ first exception to the ruling of the judge at the trial, was on the admission of the preliminary proofs. It is objected that they did not furnish sufficient proof of the loss to authorize a claim for payment, because the affidavit presented was not made by the owners of the vessel, it did not aver any inquiry or any diligence to ascertain her actual state, it was not the best evidence the nature of the case admitted of, and it did not state facts, which, if proved at the trial, would have carried the cause to the jury on the question of actual loss.

On this subject, it is to be observed, that the '•'■proof of loss” required by the policy preliminary to the obligation to pay, is not legal proof j such as would be competent to carry the cause to the jury on the question at issue. (Talcot v. Marine Insurance Co., 2 John. R. 130.) It was said by Kent, Ch. J., delivering the opinion of the court in Barker v. Phoenix Insurance Co., 8 John. 307 , that the object of this clause in the policy, was only to furnish reasonable information to the "insurer, so that he might be able to form some estimate of his rights and duties, before he was obliged to pay; it has always been liberally expounded, and is construed to require only the best evidence of the fact that the party possesses at the time. This opinion was reiterated by Thompson, Ch. J., delivering the judgment of the court, in Lawrence v. The Ocean Insurance Co., 11 John. 242 ; and it is the well established law in this State. (See Pacific Insurance Co. v. Catlett, 4 Wend. 83 .) The protest in one case, and copies of the letters communicating intelligence of the disaster in others, have been held sufficient.

Here, the managing agent, in whose name alone the policy was effected, made the affidavit. The facts stated, and the lapse

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of time, were abundant to give the underwriters the requisite information to enable them to estimate what were their rights and then duty under the policy. If all the owners had joined in making the affidavit, it would not have communicated anything more to the insurers. The circumstances did not call for any particular exercise of diligence. The vessel had been due for fifteen months, and had not been heard of in twenty months by the managing agent. The nature of the case did not reasonably admit of anything more.

A further reason requires that the clause should be liberally expounded in this instance. Eo objection to the sufficiency of the preliminary proof was made by the defendants, when it was presented. All of those now raised, if they were well founded, are of such a nature that they might have been obviated if they had then been made known; and fairness to the assured, demands that if then overlooked or withheld, they should now be deemed waived.

The two other objections to the preliminary proofs, which appear in the case, were not urged on the argument. The suggestion made in regard to the case already examined is applicable to both of these. As to the one that the interest of the owners of the cargo was not stated, we will add, this was a valued policy on the vessel and outfits, insured by Child as agent, the loss to be paid to him, and it was claimed by him. This was clearly sufficient, as payment to him would have discharged the obligation.

The remaining ground, that the contents of the cargo did not appear, is wholly unfounded. The ship was a whaling vessel, which (the affidavit stated) had set out on her homeward .voyage full / the subject matter insured as outfits, having been converted into a full cargo of oil and bone, or “ takings,” as it is expressed in the policy. If these objections were intended to point at the extent of the interest of the assured, they would be equally untenable; a substantial interest appearing, and the policy being valued. (Atlantic Insurance Co. v. Lunar, 1 Sand. Ch. R. 97; 2 Phill. on Ins. 743.)

2. The newspaper testimony, offered to show that the Jane was at the Sandwich Islands in March, 1845, was entirely

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irrelevant in every aspect in which it was urged; the plaintiffs, in their preliminary proofs, having conceded that she was at those islands in October following.

The newspaper article which the defendants proposed to read from “The Pobynesicm,” of Hay 22, 1847, was also properly rejected. The ostensible purpose for which it was offered, so far as it affected the plaintiffs’ knowledge of the loss, was plainly incapable of being effected; for the preliminary proofs were submitted to the defendants on the 20th of July, 1847, at which time it was impossible for the plaintiffs to have seen or heard of the article in the Polynesian. And as to the proposed object, to weaken the presumption of the loss of the vessel, not only would the trifling difference of one month have failed to produce any such effect, when nearly three years had elapsed without any tidings from her, but the circumstances detailed in the newspaper were such as to corroborate very strongly her alleged loss by the perils of the seas.

If these were the only objects sought, the defendants could have attained them by reading that portion of the article which stated the touching of the Jane near Talcahuana; but this was not offered or proposed. The real gist of the article was the statement of facts, showing that the captain was far out of his proper course on his homeward voyage, that he carelessly anchored the Jane where her bottom was injured, and that he put to sea while she was in an unseaworthy condition. These were important facts undoubtedly, if they could have been proved; but no legitimate proof was offered. The newspaper was not competent evidence to prove such facts. It was hearsay testimony, twice removed; and it was the duty of the judge to exclude the article. It is unnecessary for us to consider, whether as to any portion of the article, if offered separately, the newspaper would have been a competent instrument of evidence.

3. The great mass of the testimony at the trial was advanced to show what was a “whalmg voyage,” as understood and practised in commerce, when this policy was effected. The defendants objected to the admission of the testimony offered on this point, so far as it went to show that it was the usage to take

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sea elephants as well as whales, in the prosecution of such a voyage. They contend, 1. That the expression “whaling voyage ” in this policy means a voyage for apprehending whales only; and the testimony admitted was offered to vary and contradict the plain and distinct terms of the contract between the parties. 2. That this construction of its terms was corroborated by the context of the policy, which spealcs of valuing whale oil, sperm oil, and whale bone,, but nowhere alludes to such an article as elepha/nt oil, which, it is proved, is known by that name, and not as whale oil in commerce.

As to these objections, we say:—1. We are not informed, judicially, what is meant by a “whaling voyage.” It is a term used in trade and commerce, for the meaning of which, like many others, the courts resort to the evidence of experts and those versed in the particular branch of trade. Whether this be* denominated proof of a usage, or evidence given to indicate the subject matter of the policy, and to point out its application; it is unquestionably competent, and was properly received at the trial. Hr. Justice Duer, in his admirable treatise on marine insurance, illustrates very folly this rule of evidence. He says,' in substance, that the law ascribes to the insurer a knowledge, not only of the general usages of commerce, but of the comse usually pursued in each particular voyage or trade that may be' the subject of an insurance; and when words which merchants employ in the prosecution of the trade to which an insurance relates, are introduced into the policy, the insurer must presume that they will be understood by the assured in the sense in which alone he has been accustomed to use them. (1 Duer on Tris. 181, 196, §§ 33, 42, 43.) Parol evidence to prove the existence of the general practice or course in which the trade or voyage has been pursued, is admissible in such cases, when such practice would not be embraced by the terms of the policy in their ordinary interpretation. (Ibid. 195, § 42.) The competency of this species of evidence was affirmed by this court in Hone v. The Mutual Safety Insurance Co., 1 Sand. R. 137, 150. We also refer to 1 Phill. on Ins. 489, and the cases there cited. Among the illustrations of this principle, which are quite analogous to the proof offered in the case at bar, will be found the

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instances of an “ India voyage,” a “ China voyage,” a “ voyage to Africa,” and a “ fishing voyage.” Evidence of other usages in whaling voyages has been sanctioned; as in Fennings v. Lord Grenville, 1 Taunt. 241, where it was proved to be the custom that he who strikes a whale with a loose harpoon, is entitled to receive half the produce from him who kills it; and in Baxter v. Rodman, 3 Pick. 435 , where a usage to mate whaling vessels was proved.

In truth, the proof offered in the case before us, did not go to show a practice beyond the terms of the policy, construed by their ordinary signification. Assuming that a “whaling voyage ” would in common parlance be taken to mean a voyage for the purpose of taking whales only, to the exclusion of other marine animals yielding oil, (the oil being the chief object of such voyages;) yet the other clauses of the policy, (adopting the same key to its construction,) show that something besides whales was intended, or was at least permitted. One clause declares that the policy attaches on oil, bone, and other taldngs, &c., homeward; which being followed by an enumeration of whale oil, sperm oil, and whale bone, with blank valuations, would lead almost irresistibly to the conclusion, that the word “ oil,” m the previous paragraph, related to sperm and whale oil, and that the words “ other takings,” related to some other object which fell within the purview of a whaling voyage. The evidence given to show what such object was, did not, therefore, extend the terms of the policy in any mode of construing it.

4. It was contended that the usage to take sea elejfiiants, which are only taken on land, necessarily involved the overruling of the written contract between the parties in this, that the policy, by giving express permission “ to stop at all ports and places for trade, refreshment, and recruits,” excluded the vessel insimed from touching or staying for any other purpose. It was also urged in a subsequent point, that the detention of the Jane at Ceros island, was a deviation; she having virtually touched and stopped there, and not for either of the purposes for which the express permission was given by the policy.

On this subject, the privilege expressed by these words in the • olicy, was inherent in every whaling voyage, with the excep

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tion of the right to trade. The judge held at the trial, that the clause did not restrict the vessel from going into hays and along coasts and islands, in the prosecution of the whaling voyage on which she sailed; and the counsel for the defendants did not dispute the accuracy of this ruling. (And see 1 Phill. on Ins., 502, &c.) The judge further held, and so instructed the jury in distinct and pointed terms, that if the Jane went to Ceros island for any object other than the usual purposes of a whaling voyage ; or stayed there for any other purpose; or if the vicinity of the island was not whaling ground : in either event, her voyage and stay there were a deviation, and discharged the defendants. This was sufficiently favorable to the defendants, and we need not further advert to the argument founded on the permission to touch and stay.

5. In the order of their argument, the two next points of the defendants relate to the sufficiency of the proof of the usage or practice to take sea elephants in the course of a whaling voyage. It is contended that the evidence in its support was too feeble to be submitted to the jury; and if it were properly submitted, that their verdict was contrary to the evidence. As to these points we have no hesitation in saying, that the judge would have .erred if he had withheld the question from the jury; and that there is no good ground for our interfering with their verdict on the score that it is against the weight of evidence.

6. The defendants at the trial offered to prove by one of the witnesses, a master of a whaling vessel belonging to Hew Bedford, which had taken sea elephants at and near Ceros island, in Hovember, 1846, that he sailed under a policy for a whaling voyage, and that the policy was subsequently amended, by indorsing an express permission to take sea elephants, for which an additional premium was paid. They also offered to prove, that previous to the date of the policy in suit, it had been the general and uniform usage of assurers at Hew Bedford, when it was intended to employ in taking sea elephants, a vessel insured on a whaling voyage, to insert a liberty to that effect in the policy, for which liberty an additional premium was paid. The judge excluded the testimony so offered.

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As to the first offer, it was an act Ínter aUos, neither of whom was present to show under what circumstances, or with what views it was done. The policy was so amended two or three years at least after the policy in suit was .effected, and, in fact, after the time when the loss probably occurred. The testimony did not tend to show how a whaling voyage was actually prosecuted in and prior to 1843, in respect of sea elephanting.

As to the offer of the ¡New Bedford usage, it should be stated on the one hand, it appeared that the port of ¡¡New Bedford was the most extensively engaged in the whale fishery of any in the United States, owning and employing about a third of the entire fleet of whalers; and on the other hand, that very few of the ¡New Bedford whalers were shown to have ever engaged in the pursuit of sea elephants; a great proportion of them seeking the sperm whale, which led them away from the resorts of the sea elephant.

On considering the point, we think the proposed evidence was inadmissible, for two reasons at least; viz.—1. It was a local usage, not extending to New York where the policy in suit was made; nor to Warren, R. I., where the assured resided, and to which port the vessel belonged. 2. It was the usage of the assurers only; and, although from the payment of premium, we might infer the assent of the assured, the limited terms of the offer would leave it in doubt, whether the assent was a ratification or admission of the usage, or was caused by greater caution and a' desire to leave no room for controversy. If it were the well established usage at New Bedford, that a whaling voyage did not include sea elephanting, the underwriters, and the owners and masters of whalers in that port, could have proved it far more satisfactorily than it could possibly be done by the production, without explanation, of the policies executed by and between them. It would then have appeared whether the insurers there refused to pay a loss in cases where" the vessel insured had taken sea elephants, without any permissive clause in the policy.

7. The defendants insisted that the contract of mateship made and executed by the Jane with the ship Eagle, was not authorized by the policy, and discharged the underwriters. It is only

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because the mating varied the risks insured against, i. e. constituted a deviation, that-it can be claimed to have avoided the policy. Ho complaint was made in regard to the judge’s instruction to the jury as to what in law constituted a deviation, and his charge as to the good faith of a defence on that ground, was warmly eulogized by the defendants’ counsel. But it is claimed that the mateship, as matter of law, was a deviation from the voyage insured, and that the judge ought so to have advised the jury.

To establish a deviation, the fact must appear, that the risks insured against, were increased or varied without necessity or reasonable cause. -This, like other facts, is to be drawn from the evidence. Where the evidence is all on one side; or where the point depends upon the construction of the policy, the judge should undoubtedly determine whether the deviation be proved. Thus, if the policy were on a voyage from Hew York to Liverpool, and it were proved that the vessel, on leaving this port, sailed direct to Madeira, without any necessity or reasonable cause, the judge in an action on the policy would be bound to instruct the jury that there was a deviation. But when, as in this case, the fact whether the risk was increased or altered, depends on a variety of circumstances, peculiar to the pursuit in which the vessel was engaged, and the evidence, to say the least of it, is not decisive to prove the fact; the decision of the question belongs to the jury, and not to the judge. The course pursued at the trial, in Thorndike v. Boardman, 4 Pick. 471 , illustrates and sustains our jiosition. In Berman v. Woodbridge, Dougl. 781, 783, 788, Lord Mansfield left it to the jury to say, (on the testimony of the only witness examined,) whether the deviation there in question was wilful or necessary. The defendants’ counsel relied very strongly on the case of Tennant v. Henderson, 1 Dow’s P. C. 324, as establishing that the mating was of itself, in law, a deviation fatal to the policy. That was a suit in the Court of Session in Scotland, on an insurance effected on the ship Imperial and her cargo on a voyage to the coast of Africa and the African Islands, and during her stay and trade there, and from thence back to Liverpool, with liberty to exchange goods with other ships.

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Soon after her arrival on the west coast, the Imperial met the George, another ship belonging to the same owners, which had been on the coast two or three months; put on board the George the goods she had then collected in her trading, and received from the George all that remained of the outward cargo and superfluous stores of the latter; the object being,,by means of the exertions of both ships, to despatch the George with a full cargo, before the Imperial began to trade on her own account. This mutual or combined trading was not communicated to the underwriters. The Imperial was captured by a French privateer; and the underwriters, in their defence, contended that the matters stated, established a concealment of a material fact, since the risk was varied and increased by the consequent protracted stay of the ship in the pestilential climate of the west coast of Africa. To rebut this defence, the Lord Ordinary allowed the assured to go into proof, that by the understanding of those engaged in the African trade, liberty to exchange goods with other ships, imported a liberty not only to barter and sell, but to aid another ship in providing her speedily with a homeward cargo, without regard to any proportion between the goods so delivered or received. The proof did not establish the usage to the satisfaction of the judge, who held that the subserviency of the Imperial to the George, prolonged her stay and increased the risk; and he pronounced a decree for the underwriters. On an appeal to the House of Lords it was held that the decree was right, and it was affirmed.

It is to be observed, that in 1809, when the case of Tennant v. Henderson was pending, there was no trial by jury in the court of session, and the court passed upon both the law and the fact. The case is, therefore, no authority in support of the position that the mating of two whaling vessels is of itself a deviation, as matter of law.

In Hartley v. Buggin, 3 Dougl. 39, also an action on an insurance upon a ship in the African trade, it was proved that she had been used as a receiving or factory ship on the coast; and it was left to the jury to say, whether the use thus made of the ship, had for its object the voyage insured. If it had not, there was a deviation, her stay being protracted by the use thus made

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of her. The lading of the judge in the case at bar, was more favorable than this to the defendants; because it left the jury to find a change of the risk in other modes, as well as by the longer stay of the vessel.

Upon the whole, we are satisfied that no error was committed on the trial, and the- motion for a new trial must be denied.

Cases cited

Jefferson Insurance v. H. & D. Cotheal. 7 Wend. 72 N.Y. Sup. Ct. p. 40