
    Woodbridge Clifford & als. versus Thomaston Mut. Insurance Company.
    If a policy of insurance on a vessel expires while she is supposed to be on a voyage, and a second policy, for a different sum is taken, after the expiration of the first, there is, in this country, no rule of law which requires payment of that policy under which the vessel sailed, or was last heard from, in the absence of proof of the time of loss.
    It is a question of fact for the jury to determine when a presumption of loss arises. So, also, in case of loss, the time it occurred.
    On Report from .Nisi Prius, Davis, J., presiding.
    This was an action of assumpsit, upon a policy of insurance in the sum of $2000 on one fourth of the brig Hesperus, for one year, from the 13th day of January, 1855, at noon. The plaintiffs are said Clifford, Elbridge Huff and James Chase; — the policy was to " W. Clifford and whom it concerns.”
    The brig sailed from Boston for the Lobos Islands — a voyage of thirty or forty days — on the 4th day of January, 1856, as the plaintiffs contend, or, on the ninth day of the same month, as is contended by the defendants, and was never heard of afterwards.
    On the 26th day of January, 1856, said Clifford obtained from the defendants another policy upon Ms interest in the brig, for $1000 for one year from the 13th day of January, 1856, at noon; on which policy an action is pending, a suit having been instituted to save the limitation of the statute accepting the surrender of the defendant company. Abandonment was duly made.
    The question to be determined, is, under which policy the loss occurred. It was contended by the plaintiffs, that there is a rule of law, which requires that policy to be paid, under which the vessel sailed, or was last heard of, in the absence of proof of the time of loss. The defendants contended the burden was upon the plaintiffs to show that the vessel was lost before noon of the 13th of January.
    If the Court should be of the opinion, that, upon the facts reported, the defendants are liable in this action, they are to be defaulted; but if there is no such rule of law, as plaintiffs claim, and the defendant’s liability is a question of fact for the jury, the action is to stand for trial.
    
      M. H. Smith, for the plaintiffs.
    "In the case of missing vessels the loss is presumed to have happened immediately after the date of the last news, so that if an insurance be for three months, and the vessel not being heard from, a further insurance is made for a year, and the vessel is never heard from, in that case the first insurer pays the loss.” 3 Kent’s Com., 301.
    The law in France is the same. Boulay, Paty Droit Com.,. tom. 4, p. 248, ed. 1823.
    The G-uidon de la mer states that the assured "is to furnish valid attestation of the loss or capture, containing the hour and place where happened, if it may be. This expression, if it may be, decides the question against the insurer, so that if the assured cannot prove at what time the vessel has perished, it is to be -presumed that the loss happened before the final term of the insurance.”
    Another question, stated by Emerigon: — "I have caused my vessel to be insured for three months, reckoning from the day of departure. Not having any news of her after this, term, I effect second insurances. One year or two years pass away without its being known what has become 'of her. Shall the loss fall on the first insurers or on the second? I think that it shofild fall on the first, and that the second insurers are in the case of return of premiums. I rest on the example of the absent and I add that the second -insurances do not cover the preceding ones, which consequently remain in all their force, until the first insurers have shown that the disaster has happened after the time fixed by their policy.
    "The question is then the same, whether the insurances on time have been repeated or have not been so, provided the epoch of the loss be absolutely unknown. This repetition of insurance is a fact foreign to the first insurance.” Emerigon, translated by Meridith, p. 617, ed. of 1850.
    Emerigon also states, pages 613, 614 : —
    "The vessel of which no news is heard during a certain time is presumed to be lost; it is a legal presumption that the vessel is lost, because default of news is viewed as a legitimate attestation of loss.”
    The question presented has never been decided in this State. When a principle of commercial law is unsettled, the rule adopted by other commercial nations, and especially by so old a nation as France, approved as it is in the United States by authority so high as that of Mr. Chancellor Kent, is worthy of respectful consideration, if indeed it should not be implicitly followed.
    The rule as laid down by Kent and, as established in France, is one demanded by public policy, for reasons similar to those that caused the adoption of the rule deducting one-third new for old in the case of repairs. This is a positive rule, originating in the convenience of having a determinate and precise test in all cases, which, by its universality and uniformity, may render unnecessary inquiries into matters and circumstances necessarily uncertain, and which circumstances are rather calculated to perplex than elucidate. See Smith v. Bell, 2 Caines Cases in Error, 157.
    In the case at bar the vessel was never heard from after sailing, hence it is impossible to prove anything about her directly. She may have been lost by foundering at sea, by fire, by lightning, by a sudden squall, (and in no violent or long protracted tempest,) or from other causes, the existence of which could be known only in her immediate vicinity. The circumstances to be proved as contended for by defendants — as of the weather, &c., — are of a most uncertain and unsatisfactory character; the case at bar in effect finding that no positive proof of loss can be produced.
    The rule of deducting one third new for old has been adopted on the ground of public policy, and to prevent a multiplicity of suits, although by its application an exactly correct result can never be arrived at, and in many cases the result may be very far from correct; and although the value of the old and of the new is capable of being proved, while in the case at bar the time of the loss is not capable of being proved, nor is the loss itself .capable of proof except as a legal presumption arising solely from lapse of time, and not from weather, storms, &c.
    If the ruling contended for by defendants is adopted, in every instance of a missing vessel insured when last heard of, a trial must- be had to establish the fact of the time of loss, and the fact that there are two policies does not alter it. If this rule be adopted, if there had been no second policy, the plaintiffs in the case at bar must prove the vessel lost before the expiration of the first policy, or he could not recover, although the vessel had not been heard from for any number of years.
    In the case at bar the ship has not been heard of for a sufficient time to raise the legal presumption of loss, and abandonment has been duly made, as the case finds (abandonment, however, was not necessary, and so it is decided,) plaintiffs may go to the jury in this case, which has no necessary .connection with the suit on the second policy, nor is that suit now before this Court, the uncertain circumstances about weather, &c., that each party may be able to prove to the jury, may not satisfy them that the plaintiffs have proved the loss to have happened before the expiration of this policy, the onus- of doing which defendants contend to be on the plaintiffs, and the defendants may recover a verdict in this suit.
    Then upon a trial of the suit upon the second policy, the plaintiffs may not be able to prove such circumstances as to the weather, &c., as to satisfy the jury that they have proved the loss to have happened after the expiration of the first, and after the commencement of the second policy, and plaintiffs may lose the suit on that policy, and thus by establishing a rule that plaintiffs must prove not only that the ship is lost, (which loss is a presumption of law after a certain length of time of absence without being heard from,) but also the time of loss, the disastrous result may well be arrived at, that a party insured, although he constantly keeps an insurance on his ship, each policy of insurance taking effect at the moment -the one before it expires, may not be able to prove enough to authorize a jury to find a loss in a suit on any one particular policy, although the ship may have been unheard of for any number of years, and without any fault of his own, he may lose both ship and insurance, though constantly insured; and, if his policies should happen to be in different offices he could not unite them in one suit, nor in such case would the verdict in one suit be evidence admissible on the trial of any other, and this disastrous result might also be arrived at, if defendants should be allowed to introduce evidence of circumstances, as the weather, &c., to rebut the legal presumption of loss. If the only mode by which a loss could occur, such as would render insurers liable, was by a violent storm extending so far that its existence must be known to some one by whom it could be proved, there would be more reason for the rule contended for by defendants; but this is only one among many possible modes of loss. A vessel may be lost by sudden springing of a leak in pleasant weather, by lightning, by fire, by a water-spout, by collision whore both colliding vessels are lost with all on board, by a sudden squall of limited extent and short duration, by striking a ledge or rock the first day out, which resulted in her sinking that day or the next with the loss of all hands. There are many modes of loss in case of a ship not heard from, of the time of which loss no proof could be had, because the same proof that would establish such a loss, would also establish the existence of the ship at time of loss, and she would be heard from.
    The circumstances which defendants claim should or may be proved, only tend to prove that the vessel may or may not have probably been lost in some tempest or storm of sufficient duration and extent to be known at a distance from her, or, that as there was no storm known of that character, while she was under the first policy, she probably was not lost by any such storm. But these circumstances do not in the least degree tend to prove that she might not have been lost, even the very day she was last heard of, by some one of the accidents above named, and it will be readily perceived that of such accidents no proof could possibly be had, without at same time proving the existence of the ship at time of the accident, and then she would not be a vessel of which there was no news. And it would seem that, the legal presumption of loss existing, defendants should not be allowed to attempt to rebut the effect of that presumption, when it is self-evident that it is in the nature of things impossible to introduce any evidence tending even to prove that she was not lost before the policy expired, by some one of the great majority of the usual causes of loss. In the case at bar, the brig insured sailed from Boston either on the 4th or 9th day of January, 1856 ; the policy sued in this case expired January 13th, 1856. This policy was oh her nine days, as plaintiffs contend, but at least four days, as defendants admit ; within these nine or four days she may have been from 600 to 1300 miles distant from Boston, allowing her to have had only a. six knot breeze.
    Suppose, for the sake of the argument, that defendants could prove, with mathematical certainty, that she was not lost on or before the 13th day of January, 1856, by any storm or stress of weather (instead of only being able to introduce certain circumstances tending to prove this, which is all they claim to be able to do,) would such certain evidence in the least tend to prove that she was not lost by some one of the many other causes above named, and so long as it is possible that an insured vessel, not heard from, may have been lost within the time covered by policy of insurance, by any causo which would render the insurer liable, but which cause could not possibly be proved without at same time proving existence of the vessel at time of loss, does it not follow by the most strict rules of logic that defendants shall not be allowed to rebut the legal presumption of loss, arising from lapse of time since heard from, by introducing testimony tending to show that she probably was not lost by some one or more of many possible inodes of loss, they not contending that it was possible to introduce testimony even tending to show that there might not have been a loss occasioned by many of the causes, and. indeed by a majority of the causes, that usually occasion loss. The impossibility of doing this in many instances is perfectly apparent.
    Defendants should bo able to prove that the loss of the brig could not possibly have been occasioned within the time covered by the first policy, by any cause of such a character as would render the insurers liable. To do this is impossible; therefore plaintiffs should have judgment.
    To use the form of expression before quoted from the Guidon do la mer, the time of loss is to be proved " if it may be,” and as is there stated, this " if it may be decides the question against the insurer.”
    
      If it íwere possible for the insured to prove the exact time of loss, he would be obliged so to do, he taking the onus probandi.
    
    
      If it were possible for the insurers to prove, or even to produce testimony tending to prove that the vessel was not lost within the time covered by the policy, by any peril for which insurers would be liable, they woidd be allowed to prove it.
    
    
      JLs both these propositions involve an impossibility, it muy not be, and the proposed testimony as to time of loss is neither demanded nor to be allowed.
    
    It will be noticed that the proof of loss when a vessel is not heard from, does not depend in any degree upon evidence of storms, weather, &c., or of any snch circumstances, which may or may not tend to show a loss by storms, or in ,any other way, at any time, but it is a legal presumption of loss arising solely from lapse of time since the vessel was last heard from.
    Different rules have been adopted by different commercial countries, as to what length of time a vessel must be at sea and not heard from, in oi'der to raise a legal presumption of loss. In Spain, if on a voyage to the East Indies, this time is a year and a half. In France, the time is one year on common voyages, and two years on distant voyages.
    Emerigon states, p. 615, — "It suffices that after one year or two, the assured declares that there are no news of his vessel, to entitle him to claim payment, unless the insurers prove the contrary.” It is evident that this proof of the contrary, the onus of which is on the insurers, must be proof of being heard from, not proof of weather, season, &c., as contended for by defendants.
    In England and the United States, no certain time is fixed when a_ missing vessel shall be presumed to be lost.. Phillips on Insurance, vol. 2, page 661, states the rule to be, "A vessel not heard from for some while after reasonable time for intelligence, is presumed to have been lost by perils of the sea.”
    It will be perceived that the presumption of loss depends upon time alone since heard from — either one and a half years, as in Spain, one or two years, as in France, or a reasonable time, as in England and the United States. How long a time would be a reasonable time, within which a vessel must be heard from, would of course depend much upon the length of her intended voyage. In the cáse at bar,' defendants do not contend but that sufficient time had elapsed before the commencement of this suit, to raise the legal presumption of a loss of the brig. Nor can they contend that-the law requires any further or other proof than of the lapse of time since heard from, to establish the loss, and it would seem that the loss being admitted, they should not be allowed to say to plaintiffs in this suit, in addition to proof of loss by the legal presumption — you must also prove that the loss took place before January 13, 1856, to entitle you to recover. If defendants can take this position, what is the propriety, or what the use of proving the lapse of time since the vessel was heard from ?
    Such a position would in fact militate with and abrogate the principle that lapse of a reasonable time, since the vessel was heard from, proves the loss. This rule is well established, but of what benefit is it to the assured if he is also obliged to prove when the loss occurred, to entitle him to recover — or, if not exactly the day when, in the case at bar, that it occurred within the four or nine days before January 14, 1856, being a very small portion of the time necessary to raise the implication of loss.
    The ruling contended for by defendants also contradicts Mr. Chancellor Kent’s statement of the rule, which is, that the loss is presumed to have happened immediately after the date of the last news.
    It is much better to have a well established rule, preventing multiplicity of suits, rather than to leave each case to be settled upon a nice balancing of remote and uncertain circumstances and possible contingencies, when it is evident from the facts admitted, that no direct proof can be had, nor can any evidence be had of the most numerous class of causes which may have occasioned the loss — and this, too, when it may be, that although there is no doubt, by reason of lapse of time, that a ship is lost while under some one of many policies, it may be utterly impossible to prove any such circumstances as would authorize a verdict that she was lost within the time covered by any one insurance.
    When a defendant admits that a fact is incapable of proof, we contend that he should not be allowed to attempt to prove it; nor should he be allowed to throw upon the plaintiff the onus of proving it.
    In the case at bar, the insured vessel was known to be in existence when the first policy, being the one sued in this case, was issued. The second policy, alluded to in the report of the facts in this case, but which is not included in this suit, was applied for January 26, 1856, and is dated January 28, 1856, and is for one year from January 13, 1856, at noon. The plaintiffs, therefore, can prove that the brig insured had an existence when the first policy attached, and that they had an insurable interest in her when she was insured — and then proving that she has not been heard from for a reasonable length of time, which is admitted, they make out their case and should recover. The brig had not been heard from since the 4th or 9th day of January, 1856 ; this was either four or nine days before the second policy attached, if it ever did attach, and nineteen or twenty-four days before its date, and it is impossible for plaintiffs to prove that the vessel had any existence, or that they had any insurable interest in her, either on the 28th or on the 13th day of January, 1856. In this particular it differs from a case where a second policy is taken out while the vessel is in port, or known to be in existence, which policy is to take effect at a future time when a prior policy will expire, and the vessel sails before the expiration of the first policy, and is never heard from after, of which character may be found one or two exceptional cases, but none in this State. The difference is, that in the cases supposed the second insurance was agreed upon and the second policy issued, while the vessel was in port.
    I would call the attention of the Court to the fact, that the first policy in the case at bar is for $2000 on one quarter of the brig for Woodbridge Clifford and whom it may concern, being as the writ shows, Elbridge Huff and James Chase. The second policy is only on one-eighth of the brig, and is for $1000 only, and for Woodbridge Clifford alone, so that there is no second policy on one of the eighths of the brig which is included in the first policy; and the second policy is in no sense a renewal of the first policy.
    It is, I contend, wholly immaterial in the decision of this case, whether or not there was any second policy; but should the Court be of the opinion that this makes any difference, it will be seen that as to $1000, and as to one-eighth of the brig, there was no second insurance, and that Elbridge Huff and James Chase, two of the plaintiffs in this suit, had no second insurance on their interest in the brig.
    The rule contended for by plaintiffs is in accordance with right reason and sound logic, and is demanded by public policy as preventing a multiplicity of suits, and setting at rest a question of doubt and uncertainty.
    
      Gould, for the defendants.
    This case is now presented to ascertain upon what principles the trial of it should proceed. Is there any rule of law which will determine it ? Is proof of usage admissible to control it? Is there any presumption of loss in the case of missing vessels, and, if so, when will it arise? Is there anything which takes the case out of the general rule, that the burden is upon the plaintiff, to prove that the loss took place within the life of the policy? If not, what proof may be regarded as sufficient to authorize a jury to find a loss ?
    " When a missing vessel shall be presumed to have perished by perils of the sea depends upon circumstances, and there is no precise time fixed by the English law.” 3 Kent’s Com., 301. See, also, 2 Arnould’s Ins., 793-4; Greene v. Brown, 2 Strange, 1199 ; Iloustman v. Thornton, Holt’s N. P., 242 ; Newley v. Reed, cited in Marshall’s Ins., 490; Roster v. Reed, 6 Barn. & Cres., 19; Brown & al. v. Neil-son & al., 1 Caines, 525 ; Gordon v. Brown, 2 Johns., 150 ; Paddock v. Franklin Ins. Co., 11 Pick., 237; Cohen v. Hinkley, 2 Camp., 51; 2 Greenl. Ev., § 386; 3 Starkie’s Ev., 1165-6; Parks’ Ins., (7th ed.,) 106 ; 2 Phillips’ Ins., 465, (ed. of 1834.)
    But all the cases furnish no definite aid in this case. No presumption of loss could arise from lapse of time, the policy having but four days to run, when the vessel sailed on a voyage of thirty or forty days, and, so far as is known, no such storm occurred during the first of the voyage, as to render it reasonably certain that the vessel was lost during the life of the policy.
    What will the jury be authorized to do? In Goles v. Mar. Ins. Go., 3 Wash., C. C. R., 161, it is said that, "it is not enough for the assured to prove that there was a storm, or any other peril encountered by the ship during the voyage, but he must also show that the loss was caused thereby.” See also, Ooffin v. Phoenix Ins. Go., 15 Pick. 291.
    Kent,
    as cited by plaintiffs, is simply stating a rule of foreign law, (French,) while he expressly states that no such rule obtains in England or in this countiy.
    The question is not, whether the vessel is lost, but was she lost within the life of the policy ?
    The- present lapse of time, is, undoubtedly, sufficient to raise the presumption of loss; but did the lapse of four days after the vessel sailed, raise the presumption that she was lost within the life of the policy ?
   The opinion of the Court was drawn up by

Mat, J.

Insurance, for $2000, was effected by the plaintiffs, in the defendant company, by a policy upon one-fourth of the brig Hesperus for one year from the 13th day of January, 1855, at noon, upon which policy this action is brought. The brig sailed from Boston for the Lobos Islands not more than nine days before the expiration of said policy, the voyage, ordinarily, requiring from thirty to forty days, and has not been heard from since her departure. Subsequently, Woodbridge Clifford, one of the plaintiffs, effected another insurance in the same company, upon one-eighth of said brig, the risk commencing at the termination of the first policy.

• It is conceded by the defendants that the brig had been missing for a period of time, sufficiently long to raise the presumption of her loss prior to the commencement of this suit; and the only question now raised, is, whether the common law which prevails in this State, has any fixed rule by which the loss, in case of missing vessels, is to be presumed as having occurred immediately after the date of the last news, so that the loss must fall under the policy then in force, without regard to any evidence offered touching the state of the weather after sailing, the dangers of the voyage in its various parts, the season of the year, and other circumstances tending to show when the loss probably occurred. It is contended for the plaintiff, that such is the law.

The authorities cited by the counsel for the plaintiffs, in his very able argument upon the question presented, clearly show that the rule he contends for is the law of France; and the reasons which he presents, as tending to show the propriety and necessity of the rule, are not without great force. It appears, however, that this rule as stated by Emerigon, and other distinguished foreign writers, had its origin, not in the common law, but in an ancient ordinance of the French government. So, too, the same government, as well as Spain and, perhaps, some other European States, lias its fixed rule as to what length of time a vessel must be at sea, without being heard from, in order to raise a presumption of loss. The time, however, differs in different countries and in different voyages. The commercial policy of each of the governments referred to, has, however, made the rule as to time, when a presumption of loss shall arise, absolute in each particular case.

No case has been cited, in this country or from England, in which it has been held that the common law has any fixed time within which the loss of a missing vessel, unheard from, is to be presumed, and, when presumed from the facts and circumstances of the case, no case is found fixing the precise time of the loss or that it occurred immediately after the latest news. On the contrary all the cases,.so far as any have been cited or examined, ,show that the question when a presumption of loss arises, is a question of fact for the jury, to be determined in view of all the facts and circumstances in the case; and, when a presumption of loss has arisen, the question as to the precise time when it occurred, is to be determined in the same way.

In the case of Brown & al. v. Nielson & al., 1 Caines, 525, cited in defence, it appears that the missing vessel sailed from Norfolk, Va., for New York, March 4, 1801, the policy expiring the 28th of the same month; and the question, whether the loss happened within the life of the policy, was. submitted to the jury under instructions from the presiding Judge, that they must determine the time of the loss from the evidence in the case, and this instx’uctioix was held to be correct.

In Ax-nould on Insurance, vol. 2, (Perkins’ 2d ed.,) p. 797, the author, after stating the rule in Prance to be that, in the case of a missing ship, the loss will be presumed to have happened immediately after the last news, says that, " ixx our law no fixed periods ax-e established after which a ship not heard of shall be deemed to have perished at sea, but each case is left to depend on its own circumstances and the judgment of practical men.” • As no authority is cited •to the contrary from axxy court of common law, it may well be presumed that Chancellor Kent, in the extract cited from his Commentaries, vol. 3, page 301, had reference to the French rule before referx-ed to;, but, if it is not so, he is unsustained by any respectable authority. From the authorities which have been cited, and many others that might be, we have no hesitancy in coming tq the conclusion that no such x-ule exists at common law as that for which the counsel for the plaintiffs contends.

It may not, however, be needless to remark, that the conclusion to which we have arrived is gx-eatly strengthened by the decided cases in x'egard to the precise time of the death of a person, who has been absent from the place of his residence for seven yeax-s or mox*e, withoxxt being heard from. The cases are uniform that, although the presumption of his death arises at the end of seven years, yet there is no presumption of law as to what precise time it occurx’ed, and the time of his death is to be determined by a jury, upon the circumstances of the case. See 1 Greenl. Ev., § 41, note 3, and cases there cited. In one of which, that of Doe v. Nepean, 5 B. & Ad., 86, it appears that the person, the time of whose death came in question, was last known to have sailed in a vessel which was never heard from, and yet the Court held that the precise time of his death was for the jury, upon the facts in the case. In this case, in the absence of all other facts, there could have been no reasonable doubt that the death of the person in question, and the loss of the vessel in which he sailed, were simultaneous, and yet no such rule as is now urged, was contended for. See, also, Eagle v. Emmet, 4 Brad., 117; Spencer v. Roper, 13 Iredell, 333. This class of cases are so analogous to the question before us, that no reason is perceived why the same rule should not apply to both classes of cases.

The question, as to the admissibility of proof to show an existing usage among insurance offices, in the case of missing vessels, to presume that the loss took place immediately after the last nows, though somewhat discussed by the counsel for the plaintiffs, is not before us, and therefore is not considered. The result is, that, according to the agreement of the parties, the case is to stand for trial.

Action to stand for trial.

Tenney, C. J., Bice, Cutting, Goodenow and Davis, JJ., concurred.  