
    Frederick Reck, App’lt, v. The Phenix Ins. Co., Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 1, 1891.)
    
    1. Insurance (Marine)—Warranty—“ Commercial lasts.”
    The vessel in question was originally an American ship with a register of 916 tons. Subsequently she was placed under the flag of Hanover and registered 351.97 “ commercial lasts,” which the court held was equivalent to ¿792 tons, and that consequently she exceeded her tonnage and broke her warranty. Held, error; as the law of the German Umpire which provided the rule by which the equivalent of lasts could be ascertained in tons as estimated by the court was not enacted until 1872, after the loss of the ship, and so did not apply to the case, .and a commercial last being equivalent to 6,000 pounds, her tonnage was about 942 tons, and so her registered carrying capacity was in excess of her cargo and the warranty was not broken.
    2. Same—Registered tonnage.
    The term “ registered tonnage ” refers to the vessel’s carrying capacity as stated in the ship’s papers under which she was sailing at the date of the policy.
    3. Same—Waiver.
    As defendant insured the vessel while lying at Rotterdam, a port north of Antwerp, it waived the warranty not to use ports north of the latter city.
    Appeal from an order of the general term of the first judicial department, wbicb set aside a verdict in favor of the plaintiff, directed by the trial court, and ordered a new trial.
    Exceptions ordered to be heard in the first instance at the general term.
    
      Esek Cowen, for app’lt; George A. Black„ for resp’t.
    
      
       Reversing 27 St. Rep., 500.
    
   Brown, J.

This action was upon a policy of marine insurance issued by the defendant to Ruger Brothers, for account of whom it may concern, and which insured the ship “ Elise Ruger” against the perils of the sea for one year from December 29, 1865. The ship, at the date of the policy, was owned by Theodore Ruger, and the insurance was effected for the benefit of the plaintiff, a creditor of said Theodore and a mortgagee of the vessel.

The policy, among other things, contained the following warranties : “Warranted not to load more than her registered tonnage with lead, marble, coal or iron on any one passage.”

Also, “ not to use ports on the continent of Europe north of Antwerp, between 1st of November and 1st of March.”

The vessel sailed from New York for Yokohama, Japan, on May 26, 1866. She was loaded with about 901-J gross tons of coal. There was evidence that she was seen in October of that year at a place called Pitts Passage, but she was never seen or heard, from subsequent to that date, and plaintiff claimed that she was lost on the voyage with all on board.

The defenses urged at the trial were, first, that the warranties above quoted had been broken; second, that the proof did not establish a loss within the lifetime of the policy; third, that there was no evidence of a debt to the plaintiff, and hence no insurable interest in him; and, fourth, a counterclaim upon certain promissory notes made or endorsed by Ruger Brothers.

At the close of the trial the defendant moved to dismiss the complaint, which was denied. It then moved that a verdict be directed in its favor. It was conceded by the plaintiff that the question whether the vessel was lost before the policy expired was one of fact, but the defendant refused to go to the jury upon that question, and each party thereupon requested the court to direct a verdict in its favor.

The court was apparently of the opinion that the case presented questions of fact, but stated that as neither party desired to have them submitted to the jury, and drawing such inferences from the evidence as he was under the circumstances permitted to do, he directed a verdict for the plaintiff.

The question, therefore, presented to us is, whether the conclusions of fact which the court made in its decision have support in the evidence.

The general term sustained the defense resting upon the allegation of a breach of warranty against overloading, and held that the proof showed the registered tonnage of the vessel to be 792.

It appeared that the vessel was built in the United States, and when first launched had an American register which stated the tonnage to be 916. Subsequently,. however, she was sold to a citizen of Hanover, and received á Hanoverian register, and sailed under the Hanoverian flag. This register was lost with the ship, but what was substantially a copy was produced on the trial from the official records of the port where the register was recorded, from which it appeared that the ship’s capacity was 351.97 commercial lasts.”

This latter term was one indicating the vessel’s capacity or ability to carry a given weight, and a “ last” was taken as the equivalent of 6,000 pounds.

The general term was of the opinion, and in it we concur, that the term “ registered tonnage ” referred to the vessel’s carrying capacity as stated in the ship’s papers under which she was sailing at the date of the policy, but that learned court fell into the error of holding that 792 tons was the equivalent of 351.97 commercial lasts.

This conclusion was drawn from a law of the German Empire, which included Hanover, and which provided the rule by which the equivalent of lasts could be ascertained in tons, but that law was not enacted until 1872, long after the loss of the ship, and therefore was not applicable to the case.

It seems to us that the question arising upon the warranty was whether the cargo of coal taken on at Hew York was of greater weight than that specified in the ship’s register as her carrying capacity.

The evident purpose of the provision was to prevent • overloading with heavy merchandise, and, therefore, the policy limited her cargo to the official rating of the ship or the stated carrying capacity as appeared from the official register under which she sailed. And, it appearing that a commercial last was the equivalent of 6,000 pounds, the capacity of the ship to carry the specified merchandise was limited by the policy to 2,111,820 pounds, or about 942f- gross tons.

Thus her registered carrying capacity was in excess of her cargo and the warranty was not broken.

The learned counsel for the respondent refers to the law of measurement existing under the acts of congress, by which 100 cubic feet of space within the ship’s hold is taken to be a ton, and has argued that the intent of the policy was to limit the cargo to be carried to one ton in weight for each ton of measurement of the ship, and he proved upon the trial an official measurement of the ship as a foreign vessel made at New York in May, 1866, by which her tonnage capacity appeared to be 857. But we are of the opinion that our law had no application to the case, as the vessel, having been a foreign one, and under our law not qualified to obtain an American register, the use of the term “ registered tonnage ” may fairly be presumed to have had reference to the capacity of the ship as it should appear in the register under which she sailed and which, of course, could not have been ascertained under the law of measurement prevailing in this country.

The warranty not to use ports in Europe north of Antwerp, between November 1st and March 1st, we think was waived.

The written application for the policy bearing date January 23, 1866, stated that the ship was then at Rotterdam. That was a port north of Antwerp, but having insured the vessel while lying at that port the defendant cannot now be permitted to claim that that fact was in violation of any clause of the policy. The argument presented now to the court, however, is that the vessel was not permitted to leave that port during the prohibited months. But there is no evidence in the case which shows that she did leave Rotterdam prior to March 1st.

The charter party for the ship’s voyage, dated May 10, described the vessel as then lying at New York.

The complaint alleged that she arrived in New York about April 14th, and one witness stated that she was at that port for about a month before she sailed on her last voyage.

But there is no evidence of when she left Rotterdam, nor of the usual length of the voyage between that port and New York, and assuming that allegation of the complaint to be correct, the court could not determine as a fact that the voyage could not have been made between the dates named.

The question whether the vessel was lost within the lifetime of the policy was one of fact, .and in view of the refusal of the defendant to have it submitted to the jury, the court was permitted to draw the inference fairly arising on the evidence, and we think the conclusion reached has support in the testimony.

The evidence of the debt to the plaintiff was ample, and there was no legal basis for the counterclaim of the notes against Ruger Brothers.

We find no error in any of the rulings upon admission of testimony.

The order of the general term must be reversed and judgment, entered upon the verdict, with costs.

All concur.  