
    Saltus and others against The Commercial Insurance Company.
    NEWYORK,
    Oct. 1813.
    a^oUcyot insurance, a shl'Jfas to her ¡®aJi°e2/“ar<e document and in chief on the pontiff, unby the defend a»6-
    Where & ves* sei during her a’portof and _ afterceetk otTiher *titiedUto re'* cover the par. tial loss arising from the repairs, and general average consequent thereon, in addition to the total loss.
    THIS was an action on a policy of insurance on the ship Hudson, at and from New-York to her port of discharge, not blockaded, in Europe, and at and from thence back to New-York, with liberty to go to Cottenburg and wait for orders. The policy contained the usual clause, “ that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage, on account of her being unsound or rotten, then the assurers should not be bound,” &c.
    The ship having performed her outward voyage, set sail from Riga, with a cargo of hemp, on her homeward voyage, the 9th October, 1810. During her voyage, she experienced very tempestuous weather, in the north sea, and sprung a leak, and still experiencing bad weather and heavy seas, and the leak increasing, with the advice of his officers and crew, the captain bore away for a port, and on the 12th November arrived at Kinsale, In Ireland, when the captain made a protest, and had the ship surr r r veyed by two shipmasters and two carpenters. A copy of the survey made being shown to the captain, wrho was examined as á witness, he said he was present when the survey was made, and that the facts stated in it were true. The plaintiffs’ counsel then offered to read the copy of the survey in evidence, which was objected to by the defendants’ counsel, first, because, it was a copy of the original survey: and, secondly, because the survey could not be read in evidence in chief, without its being proved by an examination of the surveyors. The judge overruled the objections, and the copy of the survey, dated the 16th No vember, 1810, was read in evidence. The captain testified that the ship was repaired at Kinsale, and was then again surveyed, and a notarial copy of the second survey, dated 24th December, 1810, was offered in evidence, the captain having testified to the truth of the facts contained in it; it was objected to on the same grounds as above stated, but was admitted and read in evidence. The captain further stated, that he sailed from Kinsale homeward, the 28th December, and on the 1st January, 1813, encountered a very heavy gale of wind, in which the ship received a stroke of the sea whichx injured her very much, in consequence of which she became very leaky, and high winds, &c. continuing, on consultation, it was judged necessary again to make a port to refit; that he met a frigate and privateer, both of which advised him to abandon the vessel; but he arrived again at Kinsale, in 14 days after his departure. Two surveys were made on the ship, by persons appointed by the master; one on the 19th January, the other on the 15th April, at which the captain was present; and he testified to the truth of the facts contained in the original surveys, which were produced and read in evidence, though objected to by the defendants’ counsel.
    The captain said, that the repairs of the ship would have cost more than 2,500 pounds Irish sterling; that he could not get carpenters who would repair her for that sum; that to make the necessary repairs, it would have been necessary to take off her sheathing, which alone would have cost 700 pounds sterling. The ship was condemned as unfit to be repaired, and sold at Kinsale. Other evidence was given as to the seaworthiness of the ship; and the judge charged the jury that the surveys did not, of themselves, form a defence, under the clause in the policy; and he left the question of seaworthiness to their decision, but directed them, that if they thought the vessel seaworthy, and that it would have alter the ucual de~uct~on of one th~rdI~ new for old, more than a moiety of her value to repair hers the plaintiffs would be enti~ fled to recover for a total loss; and that the plaintiffs were also m~titled to recover a partial toss~ arising from the repairs put on the ship at Kinsale, together with the general average produced by such loss. The jury found a verdict for the plaintiffs, for a total loss, and also for the partial loss and general average«
    A metion was made to set aside the verdict, and for a new trial.
    Wells, for the defendants, contended,
    1. That from the evidence. It ivas a clear case of unsea worthiness, arising from the vessel’s being unsound and rotten, within the clause of the policy.
    2. That the surveys were not evidence in chief on the part of the plaintiffs. They were not called for by the defendants. In Hoff v. The Marine Insurance Company, the survey was regarded only as a necessary part of the preliminary proofs.
    3, That the plaintiffs cannot recover both for a partial and a total loss oh the same policy and for the same voyage. The defendants ¡have been paid a premium only for the amount subscribed; and they ought not to be held to pay more than the sum subscribed, or for a total loss; otherwise, the defendants would be made liable for a sum for which they have received no premium or consideration. The assurer undertakes to indemnify the assured no farther than to the amount of the sum subscribed to the policy.
    Hoffman and Colden, contra,
    ~ns~sted, that the defendanta having used the surveys in their defence, to show that the vessel was not seaworthy, the plaintiffs had a'righi to give them in evidence. By the decision in Haff v. The Marine Insurance Company, the plaintiff is bound to produce the surveys, as part of the preliminary proof; and he is equally bound to produce them at the trial. In Neilson v. The Columbian, Insurance Company, Livingston, J. considered it as evincive of a want of good faith on the pari of the assured, that no survey was produced. A survey is a paper equally Important, and as much entitled to credits and to be received with the same degree of proof, as many other commercial documents. It is not pretended that a survey ought, ~f itse~f to be evidence. But it st~md~ on the same footing as bills of lading, lavoices, bills of parcels, bills of health, &c. A bill of parcels with a receipt to it has been received, on proof of the ven~ do~'s handwriting, as sufficient evidence of propcrfy.
    
    
      The rght of action for a partial loss accrues as soon as the loss happens. The expense of repairs is for the benefit of the in~ surer, and in order to prevent a total loss. A subsequent total loss is a distinct and independent ground of action. If the pIain1ifF~ cannot recover for both, they are not indemnified.
    
      
       4 Johns. Rep. 132.
    
    
      
       2 Caines Rep. 408.
    
    
      
       Marsh. on Ins. 709. See Condy's Marsh. 159. a. and notes.
    
    
      
       2 Stra. 1127.
    
   Per Curiam.

The survey was not evidence on the part of the plaintiffs, unless called for by the defendants. It is altogether an ex parte document. (3 Johns. Cases, 46.) But the point need not have been raised in this case, for if the surveys be excluded, there was no evidence of a want of seaworthiness, and on the question of seaworthiness, as the testimony stands, the court do not think it would be proper to interfere with the finding of the jury.

The plaintiffs were likewise entitled to recover the partial loss, (in addition to a total loss,) arising from the repairs put on the vessel at Kinsale, in November and December, 1810. As soon as these repairs were made, a right of action for those damages accrued; and to deny to the plaintiffs a right to recover them, would be denying them an indemnity. They were not connected with the subsequent total loss. They were a previous distinct loss. It was, at the time, a reparation in which the interest of the insurers was concerned, and as much for their benefit as for that of the assured. The motion on the part of the defendants to set aside the verdict is denied.

Motion denied.  