
    Steinmetz against The United States Insurance Company.
    ; If the survey and condemnation of a vessel, state certain facts which amount to genera] unsoundness,the underwriters, upon a policy which contains a clause, that, “If the vessel, after regular survey, should be condemned for being unsound or rotten, the assurers shall not be bound to pay their subscriptions,” are discharged.
    COVENANT upon a policy of insurance, on the schooner Mary Ann, Wood, master; valued at S3,000; at, and from Philadelphia to Kingston, in Jamaica; at and from ; thence to Trinidad, in Cuba ; and at and from thence to Philadelphia.
    
    The policy contained the following memorandum. “ If “ the vessel, after regular survey, should be condemned for “ being unsound or rotten, the assurers shall not be bound to “ pay their subscription on this policy.”
    The declaration set forth a loss arising from the perils of the seas, storms, gales, and tempests, by which the schooner was so much damaged as to be wholly unfit for the further prosecution of her voyage, on her arrival at Kingston, where she was condemned.
    It appeared, in evidence, that the Mary Ann sailed from' Philadelphia on the 20th December, 1811, laden with flour, com-meal, &c. On the 21st December, she was assailed by violent gales, which continued during the 22d and 23d of the month, and increased on the 24th, when she sprang a-leak. On the following day she leaked fast. She made the island of Jamaica, however, on the 14th January, 1812, and the next day came to anchor at Kingston.’
    
    On the 25th January, in consequence of a warrant issued by the deputy naval officer of Kingston, a survey was held on her by two masters of vessels and two shipwrights, who reported as follows : “ Her stern, apron, bends, and the most “ part of her timbers, are decayed, as also a considerable part “ of her planks, from which circumstances, in our opinion, “ to make her a good, strong, staunch and sea-worthy vessel, «it would cost a great deal more than she would be worth “ when finished. We are therefore of opinion, that it would “ be more to the benefit of the concerned to sell her in her “ present state.”
    A sale accordingly took place, the nett proceeds of which amounted to 407/. Is. Id. Jamaica currency, equal to 1221 dollars, and the plaintiff now claimed 1719 dollars, with itr “terest from the 27th May, 1812.
    At the trial, which took place before the Chief Justice, at Nisi Prius, on the 1st May, 1815, three points were made. 1. As to the form of abandonment, which the Chief Justice, charged the jury was good. 2. Whether the report of the surveyors amounted to such a condemnation for unsoundness or rottenness as discharged the insurers ; a point which was reserved for determination in Bank. 3. Whether the schooner was sea-worthy at the commencement of the voyage; to prove which, the plaintiff produced some testimony, and the Chief Justice left it to the jury as a mere question of fact.
    The jury found a verdict for the plaintiff, and the defendants moved for a new trial; but the argument, in this court, was principally confined to the point reserved.
    
      Hallowell and Condy for the plaintiff.
    The clause in the policy, upon which the point reserved turns, is peculiar to American policies. It is calculated to exclude the truth of the case, by preventing an investigation of the fact of seaworthiness at the commencement of the voyage. It should, therefore, receive a strict construction. It should appear that the condemnation was for unsoundness or rottenness, unconnected with any other cause. It is not, indeed, necessary that every timber should be rotten; but the vessel should be in such a state of general unsoundness as to be incapable of being repaired. That it is not worth while to repair her is not enough; for that may depend upon a variety of circumstances, besides decay; but, to bring the case within the memorandum, it must appear that she is unable to receive repairs. This, too, must be the decision of the surveyors, and not of the Court. In the present instance, the vessel was not condemned by the surveyors. Her timbers were declared to be decayed, but to what extent was not stated. The decay might have been partial. It is true, the surveyors recommend a sale, but that recommendation was, no doubt, founded, in a great measure, upon the expense of repairs in a West India port; a circumstance which has nothing to do with unsoundness. In Watson v. The Insurance Company of North America,
      
       Judge Washington distinguished between rottenness of some of the timbers, and rottenness of the vessel. And in Garrigues v. Coxe,
      
       and Armroyd v. Union Insurance Company,
      
       it was decided that condemnation for a mixed reason will not bring the case within the clause in the policy, but that it must be for unsoundness alone. The cases of the Mills frigate, and The Marine Insurance Company v. Wilson,
      
       were also cited.
    
      Binney and Rawle for the defendants.
    The clause in question was introduced in order to avoid the difficulty of proving such unsoundness as made a vessel unseaworthy at the commencement of the voyage. It should be construed fairly and reasonably, and not with such severity as amounts to striking it out of the policy. In long voyages it may operate hardly upon the assured, but it is the agreement of the parties, and they must be bound by it. Sir T. Raym. 133. 3 Lev. 241. In short voyages, however, there can be no hardship, for no such rottenness can arise subsequent to the commencement of the voyage as will justify a condemnation. We agree that it must appear, from the report, that the condemnation was founded, exclusively, upon unsoundness; and so it does, in the present instance. A regular survey of the vessel was made, and the report of the surveyors stated, that her stern, apron, bends, and the greater part of her timbers, were dccayed; and for this reason, alone, they recommend that she should be sold. This is fully equivalent to a condemnation for unsoundness or rottenness. It is not necessary to say, in express terms, that the vessel is rotten, if the language used amounts to the same thing. This was clearly the case, with respect to the Mary Ann, for if she was decayed in the parts mentioned in the report, the body of the vessel must have been rotten. The cases cited, on the other side, establish the doctrine we contend for. In the Marine Insurance Company v. Wilson, the injury was occasioned by bad weather. In Watson v. Insurance Company of North America, the vessel was condemned, not only because many of her timbers were unsound and rotten, but because, from her shattered and strained state, and from the want of proper docks, it would have cost more to repair her than she would have been worth when repaired. In Armroyd v. Union Insurance Company, the survey stated injuries from storms as well as decay, and, for that reason, the condemnation was' held not to be a bar under the memorandum; and in Garrigues v. Coxe, the unsoundness was produced by the gnawing of rats. The present case does not resemble any of these. The survey assigns no other reason for condemning the vessel than rottenness and decay in so many and suth important parts, as rendered her wholly unfit for navigation. It is, therefore, a case clearly within the clause.
    
      
      
         Circuit Court of the U. S. for Penns. Dist.
    
    
      
       1 Binn. 592.
    
    
      
      
         2 Binn. 394.
    
    
      
      
        Parke, 228. (5th edit.)
      
    
    
      
       3 Cranch, 187.
    
   Tilghman J.

The policy of insurance in this case has the usual clause, “If the vessel,after regular survey, should be con- “ demned, for being unsound or rotten, the assurers shall not “be bound to pay their subscription.” There was a regular survey, and the surveyors reported as follows: — “ Her stern, “ apron, bends, and the most part of her timbers are decayed, “ as also a considerable part of her planks, from which cir- “ cumstances, in. our opinion, to make her a good, strong, “ staunch, and sea-worthy vessel, would cost a great deal “ more than she would be worth when finished, and we are “ therefore of opinion, that it will be more for the benefit of “ the concerned to sell her in her present state.” .

The question is, whether, upon this condemnation, the underwriters are discharged. The clause in the policy may sometimes bear hard upon the assured, because it precludes them from shewing, that the vessel was sea-worthy at the commencement of the voyage. It is, however, the contract of the parties, and therefore obligatory upon both. The intention of it was to prevent disputes. It is exceedingly diffi» cult to prove what was the condition of a vessel, as'to soundness, when the voyage commenced. Both parties therefore agreed, that if on a survey there should be a condemnation for unsoundness, it should be taken for conclusive evidence, that the vessel was not sea-worthy- at the commencement of the .voyage. The construction of this part of the policy has been discussed in this Court, in the cases of Garrigues v. Coxe, and Armroyd v. The Union Insurance Company, And I think it may be considered as settled, from the opinion of the Court in those cases, that where the condemnation is for unsoundness from decay, and for no other cause, the underwriter is discharged, but he remains chargeable where the condemnation is in part for decay and in part for damage occasioned by perils of the sea. Now the condemnation in the present instance is founded solely on decay. No other. cause is mentioned. To be sure, it is not said in express terms, that the vessel was unsound or rotten, but it is said, that her principal parts, enumerating them, were decayed, ( which is the same as rotten,) and no other cause is assigned for her being not sea-worthy. If this be not a condemnation within the meaning of the policy, the clause will be nugatory, because upon a survey the particular parts which are found in a decayed state are always mentioned, and indeed it would not be proper to say in general that the vessel was rotten. Then, when the particular parts found to be decayed are first mentioned, and afterwards the general conclusion drawn, that the vessel is not sea-worthy, I know not how we can understand it otherwise than that rottenness is the cause of condemnation. I'am, therefore, of opinion, that the plaintiff ought not to recover.

Yeates J.

The clause in the policy on which the point reserved rests, should be construed fairly according to the true intention of the parties. It would be highly unreasonable to expect, that the return of the surveyors should minutely conform to the expressions used in the policy, which was not open to their inspection, if in fact and substance it agrees therewith. No objection is taken to the form of procedure under the warrant of survey issued by the deputy naval officer at Kingston, and it is admitted that the schooner was condemned under it. The persons appointed were two masters of vessels and two shipwrights, who must be supposed to be the most competent judges of the question of seaworthiness. They return upon oath, that upon examination of the schooner they find u her stern, apron, bends, and the most part of her timbers, are decayed, as also a consider- ble part of her plank f from which circumstances they express their opinion, “ that it xvould be eligible to sell her in her “present state.” A sale took place accordingly. The survey exhibits a particular statement of facts equivalent to general unsoundness or rottenness in the hull of the vessel. A voyage of twenty-six days could not produce such effects, although attended by strong gales of wind. Stormy weather may cause partial fracture, or may dislodge certain timbers or planks, but it cannot cause general decay in the course of three or four weeks. The decay of wood is gradual in its nature, imperceptible in its progress, and necessarily involves unsoundness or rottenness. The word decay, in its appropriate sense, shews the true source of unsoundness or rottenness in the particular instance, and I am of opinion, that this survey brings the schooner within the true meaning of the clause in the policy, and that the assured, by his own agreement, has discharged the insurers from all responsibility. Every fair mercantile contract should be performed with the utmost good faith. A new trial must be awarded.

Brackenridge J. was absent.

New trial awarded.  