Palmer v. Great Western Insurance — 54 N.Y. Super. Ct. 503

Majority

p. 503

ACALUS L. PALMER, et al., Respondents, v. THE GREAT WESTERN INSURANCE CO., Appellant.

Headnote

Marine insurance—Seaworthiness—Barratry—Freight, when deemed earned though worthless cargo is shipped—Conspiracy between owner and shippers to ship worthless cargo and sink ship, evidence of when insufficient.

Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

Decided November 8, 1886.

Appeal from judgment entered on verdict in favor of plaintiff, and from order denying defendant’s motion for a new trial.

The facts appear from the following opinion of O’Gorman, J.:—“ The action was brought to recover $4,528.25 claimed to be due to the plaintiffs as owners of bark ‘ Brother’s Pride,’ on a policy of insurance of freight. The bark was abandoned and burned at sea, by order other master, while on the voyage from Cardenas to New York. This occurred three days after the bark left Cardenas, where she had shipped 860 hogsheads, said to contain a liquid called melada. The defendant had insured against the perils of the sea, fire, barratry, and all other loss occasioned by sea perils. Between the time of leaving Cardenas and the loss, the bark encountered no rough

p. 504

weather. At the time she was abandoned there was no wind. There is no evidence that she had sprung a leak, or that she was in any immediate danger. It is in evidence that an accident had happened to one of her pumps ; that the cross-bar had broken, and also that all vessels are liable to spring a leak at sea at any time. The abandonment of the vessel was deliberate, and accomplished without excitement, haste or confusion. The master and crew got into the boats, waited near the vessel for some time, and then, on her failure to sink, the master sent three men on board, who set the bark on fire and she burned to the water’s edge.

“ It was contended on the part of the defendant that, from these facts, it should be presumed that the vessel was unseaworthy when she left Cardenas. Some evidence, however, was given of examinations of the bark by several competent witnesses on various occasions, and at various places, and at Cardenas before she sailed from that port, and their opinions of her seaworthiness were, I think, sufficient to go to the jury and sustain a verdict for the plaintiffs on that issue. The evidence was, I think, also sufficient to sustain the charge of barratry by the master and mariners, but that was one of the acts insured against.

“ The defendant’s counsel also contended that there was no evidence of any bona fide shipment of any cargo, from which freight could have been earned. On this subject the evidence presented by the plaintiff is strangely meagre, incomplete and unsatisfactory. One witness’ testified that while the vessel lay at Cardenas he saw casks going on board and that these casks had the outward appearance of melada casks, and, judging from what he saw on the outside, he judged they contained melada. There was evidence that melada was a liquid thicker than molasses. One of the casks burst on deck a,t Cardenas and the contents were like dirty water,— thin and watery,—not as thick as molasses, and had a curious sour smell. This is the only evidence of the

p. 505

shipment on board of any cargo, and, considering the other suspicious circumstances of this case, I do not think it was. sufficient to go to the jury as proof of a bona fide shipment. It would as well sustain a verdict that a bona fide shipment of any cargo had not been made as that it had been made, and the preponderance of evidence was, in my opinion, in favor of the former finding.

“ The relations of insurer and insured require frank, open and candid dealing between them, and the exercise of mutual good faith. The testimony on behalf of the plaintiff in this case falls far short of that standard, and is, in itself, inadequate to sustain a verdict for the plaintiff.

“ In my opinion, the judgment and order appealed from, should be set aside and there should be a new trial with costs to abide the event.”

wrote as follows:—“ Although, in fact, the casks were filled with water and not with melada, the owners could collect freight, if cargo arrived. In the present case, the owners show a legal right to collect freight, unless there was some evidence that the owners conspired with the shippers to have a worthless cargo shipped and to sink the" vessel so that cargo should not arrive. No testimony in the case implicated the owners. The court directed the jury to find whether under the testimony there was a bona fide shipment. They found for the plaintiffs. The learned counsel for appellant argues that the verdict was against the testimony. The argument applies to the testimony that showed that the casks were filled with water and not melada. On this subject the testimony referred to a few only of the 860 casks shipped. It was not, however, clearly shown that the owners themselves were cognizant of a fraudulent shipment. The most favorable supposition for the defendant would be that the captain was implicated in such a shipment. That was a question for

p. 506

the jury. On this appeal it does not appear that the captain was guilty of this.

Evarts, Choate & Beman, for appellant.

W. W. Goodrich, for respondents.

“1 agree with Judge O’Gorman as to the rest of the case. Differing with him as to the point that has been discussed, I am of opinion that the judgment should be affirmed with costs.”

Trtjax, J., concurred.

Judgment and order affirmed, with costs.