
    Andrews & Boerum against The Marine Insurance Company.
    ALBANY,
    Jan. 1812.
    A vessel insured from Charleston to New-York, was, during the voyage, stranded and lost on Little Egg Harbour Beach, on Monday, the 26thofMarchd, at 2 A. M about 90 miles from New-York. The insurance was effected by A. and B. part owners, for themselves and the other owners, of which the master was one, on the 9th of April following; but A. and B. knew nothing of the loss until after the insurance. The master was so much hurt, at the time of stranding, as not to be able to attend to business for two or three days; but he made immediate inquiry after the means of communicating information of the loss to New-York, and found that the only conveyance, by land, was the mail, from a place 10 miles distant from the wreck, and which went only once a week, and had previously left the place on the evening of the 26th, and would not leave it again until the Monday following. Several vessels lay near the place of the wreck bound to New-York, hut were detained by head winds. With a fair wind, a vessel would arrive at New-York in one day. The master having put the cargo which had been saved on board of three small vessels, embarked in one of them, on Saturday, the 81st of March, hut, on account of contrary winds, did not arrive until the 11th of April.
    
    It was held that there was no actual fraud, and that the master, not knowing of any intention to effect an insurance, was bound to use no more than ordinary diligence; and that under the circumstances, there was not such gross negligence, or constructive fraud, as would vacate the policy.
    THIS was an action on a policy of insurance, on the schoonel Maria, from Charleston, S. C. to New- York, on account of the plaintiffs, and M. & A. Clark, the latter being also master of the vessel.
    The cause was tried at the New-York sittings, in June, 1811, before Mr. Justice Thompson; and a verdict taken for the plaintiffs, subject to the opinion of the court, on the following case.
    The vessel sailed on the voyage insured, the 18th of March, 1811, with a cargo of cotton and rice; and on Monday, the 26th of March, at 2 A. M. was lost on Little Egg Harbour Beach, about 90 miles from the city of New- York. The insurance was effected on the 9th of April following, by the p1aintiffs.
    It was iiot pretended, that the plaintiffs had any knowledge of the loss of the vessel, at the time the insurance was made; and the only question was, whether A. Glark, the master and part~ owner, had been guilty of such gross negligence, in not commu~ mcating intelligence of the loss to the other part owners as would vacate the policy.
    When the vessel went ashore, the master was knocked down by " the tiller, and so much injured that he was carried to a place called Hankins, eight miles distant from the wreck, and was there for several days disabled. The witness, one of the seamen? did not know of any opportunity to Nen-York; but there were several vessels, at the time, at Little Egg Harbour, ready to sail? but were prevented from sailing; and none did sail, until the one in which he came up to Nen-York, which arrived there on the 11th .of April,
    On the morning of the shipwreck, the master inquired of an inhabitant of the place whether there was any post-office in the vicinity, and expressed great anxiety to write to Nen-York; and he was informed that the nearest post-office was at Tinkerton, 10 miles distant, but that the post left that place only once a week, on Monday morning; and that it was then too late for that post day, as the mail had already left Tinkerton for Nen-York.
    
    On Tuesday the captain went to a place abo.ut two miles distant, in a carriage, to make a protest; and on Wednesday he went to the wreck. A person might have been easily hired to carry a letter to the post-office at Tinkerton. The post went by the way of Philadelphia, wdiere it arrived on Wednesday in each week, and could not reach Nen-York before the next day? but a vessel leaving Little Egg Harbour, with a wind tolerably fair, would reach Nen-York in one day. On Saturday, the 31st of March, the captain put all the cargo saved on board of three small vessels, embarked in one of them for Nen-York, and, having proceeded about ten miles, they were obliged to anchor, on account of head winds; and, while so detained, the captain might have forwarded a letter to Nen-York, from the place opposite the vessel. On account of contrary winds, he did not arrive at NcnYork until the 11th of April.
    
    A master of a coasting vessel testified that he was at the wreck the day after the vessel went ashore, and inquired of Captain Clark if he had any freight for Nen-York; and he told the witness, that he had already engaged vessels to carry the cargo tq Nen-York. The witness mentioned that his was a fast-sailing vessel, and would reach Nen-York first. She lay out of the mouth of the harbour, and sailed the 2d, and arrived at NemYork on the 5th of April; but the witness said that he did n.ot mention the loss of the Maria to any person, though it was talked °f among the crew on board of his vessel.
    jn yie ¡\~em-York Gazette, published on the 29th of March, the arrival of the schooner Emily, in J5 days from Charleston, was mentioned; and, among the occurrences of the voyage, it was stated, that on Wednesday preceding they saw a schooner on shore, with yellow sides, on Little Egg Harbour Beach, with cotton floating around her,
    
      D. B. Ogden, for the plaintiffs.
    
      Golden and Sampson, contra,
   Per Curiam.

There is no trace of actual fraud in this case; and it is a question of constructive fraud merely, on the ground that Captain Clark did not use due diligence in communicating intelligence of the loss to his partners in Nem-York. It does not appear that Captain Clark had directed insurance, or was apprized of any intention of the plaintiffs, to cause insurance to be made. As we cannot, therefore, perceive any interested motive in him to withhold the intelligence, the case did not seem to require that extreme diligence that would have been due, had he known that application for insurance was pending. We ought, then, to exact from him, as part owner, that ordinary diligence only which the nature of such mercantile concerns, and common prudence and discretion would demand. Any thing like gross negligence, in communicating with his partners in such a crisis, would look like design, and justify the inference of fraud: but the circumstances of the case are proof of ordinary diligence. The captain was much injured by the stranding of the vessel, and was, for some time, disabled from bestowing attention to his business. He, however, made instant and anxious inquiries about the means of communicating with ]Slem-York,hy the mail, and was informed that no opportunity would occur, through the next post-office, which was ten miles off, under a week from that time. He had then good reason to believe he would himself arrive in Nem-York, with the cargo saved, before a letter would reach Nem-York by the mail. He had laden his cargo on board of other vessels, by Saturday next after the shipwreck, and embarked for Nem-York, and a fair wind would have carried him there in one day. He advanced about ten miles the same day, and was then detained by contrary winds, so as not to be able to arrive in Nem-York in eleven or twelve days.

Under these circumstances, there is no ground to charge him with a want of ordinary diligence, and the plaintiffs are entitled to judgment;

Judgment for the plaintiffs.  