
    Miller & Brown vs. South-Carolina Insurance Company, et alias.
    The protest of the Captain of a ship is admissible evidence in an action 1>3' the owners on a policy.
    If a ship, within a day or two after her departure, become leaky and founders at sea, or be obliged to put back without an}' visible or adequate cause, to produce such an effect, the natural presumption. r/mst be, that slie was not seaworthy when she sailed; and it will then be incumbent on the insured to shew the state she was in at that time.
    Charleston district, May term, 1821.
    THIS was án action brought for the sum-of $ 7000, heing the insurance on the General Armstrong, from Charleston to Havana, at 2 1-2 per cent, premium, 2nd September, 1818.
    
      John Michell, the mate, (the captain being dead,) stated that the vessel was lost by á leak occasioned by the springing of a butt ; that this had frequently happened to the best, of vessels ; that he thought she was seaworthy, and that Charleston was as handy as any port, though there was not much difference between that and Savannah. Upon his cross examination he said he had seen, but knew' nothing of the vessel; the leák began a few hours after she left Charleston : She was laden With looking glasses and coffee boilers, and balasted with stone : The wind was from the north east when the leak began, and nearly so when they 'determined to run : He knew not if there was any other leak : They ripped off a part of the ceiling and removed the baiast: Nothing but the starting of a butt could have admitted so much water:1 A part of the ceiling was a little rotten : He supposed she was not carried on the shore, because she was sharp built and would have gone on her beam end : He had no opportunity of knowing the sea worthiness of the ship, and that they anchored in safety.
    The protest of the Captain, Henry JD. Hill, written 14th September, 1818 ; 24 hours after his arrival, stated that the vessel Was staunch, sound and well ironed, and that a butt was started in the garboard streak.
    Captain Butler was next sworn. He stated that he was the surveyor of the Union Insurance Company ; he thought that after the vessel had received her out-fits she was sea worthy ; that he thought she would make water, having laid up for a long time ; she was a fine vessel in 1806 ; she bad made one cruize as a privateer, and was a' well built vessel; he thought a little more was put on by the company to which he belonged, in consequence of his representations about the probability of her leaking. He repeated that he thought she would make some water for Some days, but would arrive safe ; that it did happen to the best of vessels to start a butt; particularly at the first Voyage. He had known many instances : It was not likely to occur without stress of weather : The protest was read to him : He said he would not call that stress of weather ; that it was ordinary in that latitude, in that season,On his cross examination, he said that his opinion of tho vessel was founded on a general knowledge of her from the time she came to Charleston ; that he saw her timbers laid bare above water, but not down to the keel; she was an iron fastened vessel. She lay hi Charleston port a great while ; he thought two years : She came from Wilmington, where she had been a long time. The copper would corrode the iron fastenings, let her lie where she would. It was probable this may have resulted in this case. That when a vessel is coppered, it is usual to put in additional copper fastenings. She was heavy rigged, though of great beam as a merchantman : It would have been better to have had less, though many now have aS much. Her springing a leak so soon after she sailed, and in such weather, would seem to indicate that there was-some defect which might have made her unseaworthy, and it was easier and nearer to go into Savannah. A north east wind would have carried her directly up to that place. He thought it a critical point and would not say whether he would have got her nearer in ; that he would not have run her on shore : He thought she cost at least $ 7000, but he did not think she was worth it: He did not think that she would have brought more than $ 3500 in Charleston, owing to the depreciation of that kind of property : She Was about 11 years old.
    Captain Paine, surveyor of the South Carolina Insurance Company, being duly sworn, deposed that he wasyn board of her before she went into the hands of the ship carpenter ; that he did not inspect her bottom, but only her upper works; that the timber which he did see appeared sound ; that he made no report of her bottom: that she lay in Chisolm’s dock for two years; that he supposed the company knew it; that she was what they call shipped, and that there was an old man oh board as .ship keeper. Upon his cross examination, he said that he saw some copper bolts which eame through ; that he. thought she was about 12 years old, according to the inr formation he got from the captain.; that he should think a vessel springing a leak so soon, and in good weather,, had been defective and not seaworthy : He should have thought it safer to have gone to Savannah. That four fa-idioms is pretty near in, and that if he had intended to run her, he would «have run her plump on shore, if not, near enough: He knew no objection to her being run on shore : If a pilot had been with them, they might have been saved : She was French built; which is strong built.
    
      John F. Knox, a ship carpenter, said that he knew the ship General Armstrong; she was in his hands in 1812 : He repaired her : She was French built: He did not examine her below the bends : He said he fitted her out for a privateer; that his work was on her upper part: There was a part of the vessel which he found sound, much heavier above ; that he never examined her after that ; He should have supposed her about 7 years old : She had an uncommonly fine frame. Upon his cross examination, he said she up set while lying between Gadsden’s and Fasten’s wharves: He supposed she was in Charleston two years altogether : She sunk as they hove her down : She was a sharp vessel: He never knew her hove down, keel out, and he had seen the iron fastenings destroyed in two years by the copper.
    .Mr. James Poyas was a ship carpenter: He stated that in 1818, this vessel was put into his hands by Miller $ Henry D. Hill, then being Captain ; that when he began to work, he found shp had been worked on before; that he stripped her down to the waters edge and dubbed her, to see if she was sound, and found her so : He then stripped off three or four streaks below the waters edge, and found her perfectly sound ; that he did not believe he put in five feet of plank; that the? copper was well put on ; the paying sound : After taking off the above quantity of plank, Captain Hill and himself concluded that it was unnecessary to take off any more, because vessels were more apt to rot about light water mark'than any where else: He examined the copper below,- and'found it in good order : He removed a pa'rt of the 'ceiling below the after hatch, (below light water mark,) and found the timbers strong : She had copper butt bolts, which he saw on the out side and bent down, which convinced him they were copper : If there had been iron fastenings, they liad been hacked out and copper put in, and that Jyingin the water does not injure vessels copper ; this was the opinion of many : that daring the embargo, many w'ere laid up in thr t way ; that when he turned her out of his hands, he regarded her as seaworthy, and he thought that all who saw her thought so ; and that he coppered her again up to the wale. Upon his cross’examination, he stated that there was a leak aft, near the stern port, which he stopped ;' that there was a small part of a seam open : He did not know whether she' had a false keel or not; that vessels never rot below, for salt water preserves wood'; that, it is common for vessels to, start a butt, and it is impossible to tell from what cause it arises.
    Mr. Taylor said, that to the best of his recollection she was ensured for less than she cost Mr. Chisolm.
    
    ■ On the part of the defendant," Mr. Charles Cromwell was'examined. He said that he knew the ship General Armstrong', that he sailed in her in December, 18 IS — ■ that 8 or 10 days after he sailed from Charleston, she sprung a leak' in á gale of wind, and that she made a great deal of water.' Under the lower breast hook, the carpen? tor discovered it'about four feet fr'oni the-joining of the kc'el and stern. ' He had to cut away a part of the ceiling And found the wooden end started ; stopped it so that she required to be pumped only once in two hours ; that they had a sort of an engagement with a British vessel, which lasted about two or three hours, and that she then had 3 feet water ; that in returning, they were chased off by the Sappho, a British ship, and that they went to Wilmington, got on the bar, grounded there, pumped out the water, and the next tide floated her and got in. That after-wards, at Charleston, she got a ground on an old wreck between Gadsden’s and Johnson’s wharves. He said he should think that she should have been overhauled completely before she went to sea. After the thumping on. Wilmington bar, and the old wreck, she was carried into Chisolm’s dock ;■ captain Hill called on him and asked if she had leaked with him, he told him that she did, and where the leak was. He, Hill, said that he had taken possession of her the night before, and that she had 5 feet water in the morning, which he had just pumped out. — ■ The next time he saw her she was in the possession of Mr. Poyas, at which time she sunk, and the people on the shore cried out she was settling ; that Poyas told him the view of the owner was to be at as little expense as possible as she Avas fitting out for sale in the Havana; that no .doubt she should have been examined down 1°1 her keel, and all the copper should have been taken off; and that he told Poyas of the leak. Upon being cross examined, he said he never had applied to. captain Hill or the owner to be taken as mate, and that he had no enmity against Mr. Miller.
    
    Captain Williams said that the night before she sunk he saw her, ran alongside, and got in. The captain said they were in a horrid condition, 7 or 8 feet water in the hold ; then begged him not to let his boat go aAvay.— He hailed, and ordered her to stay. He saw some of her plank coming up ; the water was making in nearly as large as his body. The captain said be believed she Avas as rotten as spunk ; that the leak was forward, about the heel of the foremast, about the garboard streak. He made a mark, and found the water gained on her. He told the captain that he might as well stop pumping, and go into about 31 or 4 fathoms water, and by that means something might be saved. In four he anchored. He wanted to go into three. He wished her gunwales to be out of water; that she. sunk about 13 o’clock the next day; that all night they transported things. The captain gave no reason for preferring four fathoms, but said that it was near enough; that the wind was North-East, and fair for Savannah, and that the captain wanted to run the vessel on shore. On his cross examination, he said that be saw some pieces of wood coming in with the water, but that he did not take them up to examine them, and would not have noticed them if the captain had not; that the captain appeared to he alarmed ; that the leak was such a one as he should suppose would proceed from the starting of a butt; that the captain tried all he could to save the vessel; that no man could try more, and that there was no appearance of design in not going in nearer. He said that the vessel went down bow foremast, leaning on the side, carried by the anchor, and that her tops were under water. He thought the pieces of wood which came up were rotten ; be then said he knew they were rotten. He did not think. n good vessel in moderate weather would start a butt.— The wind was pretty fresh the day before. Their sails were reafed, and he also stated that a north east wind makes a heavy swell on our coast, and in the gulph.
    Mr. Stains said ho carried her out when she left this place ; that the weather was moderate ; that he continued on board for 5 or 6 hours, and that they crossed Charleston the middle of the day.
    Mr. Calhoun, keeper of the Charleston Light-house, said that he saw a ship on the 11th sailing alone. On the 12th, she was at anchor; that he thought her too near the Folly Breakers ; he went on top of the house, and came down to dinner ; after which, he discovered she was down ; that she went down about 12 or 1 o’clock, a good breeze from the north east. That two or three days after she went down, he took off a piece of the vessel with bis hand.
    
      Mr. Sinclair said that copper sheeting destroys iron fastenings; that originally she had iron fastenings ; and he mentioned a ease of a vessel built in Beaufort in ISOS, which being examined lately, proved to have lost all her iron bolts; that she could not have resisted any violence. She was sheated with wood before the copper was put on. That there was an offer to sell this vessel for $ 3000, by Mr. Chisolm. That the conversation was between Mr. Chisolm and himself, and that it was their calculation that @1,300 more would be necessary to put her to sea. The log book of the ship thus remarks, “ 7th September, 1st day, moderate breezes, baffling winds, &c.” 9tb— Light breezes and pleasant weather, one pump constantly going, without intermission. At 8 P. M. tacked to the S. E. handed the square mainsail. Midnight, strong gales, attended with thunder and lightning, with a heavy swell; in all, small sails ; double reefed the fore and main-topsails ; handed the mizeu ; the leak very fast, &c.
    Mr. Poyas was again called ; he said that he did not recollect ever telling Cromwell chat the object of the owner was to sell and save expense ; that he did not point out any leak to him, and that the vessel sunk from falling over, and so taking in water in the hatches.
    Mr. Shilloch was the mate of the General Armstrong, under Captain Ilill, in August, 1818. He said he was on board about a month, that the vessel was tight. He raised her timber boards, and examined with his knife fore and aft. Would not give a spell of pumping in 48 hours ; that he did not sail in the vessel because of a dispute ; that Cromwell told him he asked for the birth of mate, and that he would have been willing to have gone round the world in her. Starting a‘ butt is an accident which will happen to a good vessel; it happened to the British frigate Narcissus, while he was aboard of her. On being cross examined, he said he did not see all her timbers, nor all tbe ceiling ripped off, which was done by Poyas* hands. When the accident occurred to the Narcissus frigate, it was mild weather, and all thought the butt had .been badly fastened on at ih’st. He said that when they took the fire wood on board, he remarked that it was bad ; that refuse rotten pine and oak were put into the hold of the vessel.
    Mr. Salter said he knew the ship General Armstrong when she first came here in 1807 or 8 — she was then a brig, but was made a ship during the war; that he worked on her, and believes she was a good vessel. She was as tight inside as out, and that she was ceiled and corked ; and that in 1818, he again.‘worked on her, and never saw any thing rotten about her.
    
      John Belmore was a Rigger : He said that he rigged the General JLrmstrong completely : His bill was $ 75 ; but before that, all he had done was by days work; that he did not discover any wreck on which the vessel was, when he went to assist in getting her off, to bring her into Chislom’s dock, and thought she was seaworthy at the time she sailed. Upon his cross examination, he stated that it was seventy or eighty fathoms hi Johnsons, from where she was lying ; that she was between that and Gadsden’s wharf, but nearer the first 3 that the mate requested him, and he assisted in raising the timber boards.
    Mr. Cromwell was again called : He denied the evidence of Shillock, as to his applying for a mates place : He was then engaged in a place: He said that he never saw the wreck, and knew of it from the information of others ; that when he saw her, she was in an aukward predicament.
    Mr. Ghaides Graves was then examined as to Mr. Cromivett’s character. He said he did believe from a knowledge of his character, that he would not swear to a lie ; that he thought he would rather cut off a joint of his finger than do so, and that he was always too high minded for a poor man.
    Mr. Toomer said that he had known Captain Cromwell for many years ; knew his character and was sure that he could not tell a falsehood. In 1820, he was discharged from the service at his own request.
    
      Cap lain Lord said he knew nothing against him, and Would believe him on oath. Upon his cross examination, he said that he had heárd that he was high tempered, but never that he was dishonest or unworthy of belief.
    Verdict for thd plaintiffs.
    And a new trial was moved for, in which it was insisted :
    1st. That the protest made by the captain in Charleston ought not to have been received in evidence, because' a protest is an ea: parte affidavit, in which the party whose rights or interest are to be affected by the evidence, have necessarily no opportunity to cross-examine; and although this species of testimony has had the sanction of the judges formerly, yet it was then decided- rather upon a usage that had obtained sub silentio, when the business of underwriting was new, and not fully understood. — ■ That this species of testimony is repugnant to the prinplos of the common law, productive of great injustice, and is abolished in every Federal Court, and almost every State Court in the United States of America ; and is contrary to the English law, which, the policy in this casé expressly refers to. That more particularly it ought not to be admitted where the case comes not in a foreign port but at home, and all the parties are on the spot.
    2d. That the verdict in this case is contrary to law, for as much as the vessel sprung a destructive leak directly after her getting to sea, and without any stress of weather, and that the law of itself concludes it to be decisive evidence of the rotten or decayed state of the vessel, which can only be rebutted by strict proof heing made of her soundness in the part where the mischief arose, and no proof was made on that point at all, as every Witness confessed that he had never seen or examined that part of the ship. That general opinions of sea-wórthiness, without such examination, are insufficient to repel the presumption» of law ; and that his honor the judge ought to have instructed the jury to that effect.
    3d. For that the verdict is contrary to the weighted testimony, in as much as the plaintiff’s witnesses contó' not, and did not testify to the sea-worthiness of the vessel’s bottom (which they had never seen or examined) farther than to give' theii' opinion or inferences from the state of her upper works. That their opinions not only were insufficient for'the jury to go upon, but were strongly encountered by the opinions Of other witnesses, by several facts as to the history and state of the vessel, and by positive testimony that the captain himself, whose protest was ¡relied upon, did, while at sea, declare to the pilot who hoarded her in her leaking state, that the ship was rotten.
    4th. For that insufficient evidence was given of the value of the vessel. The documeiits thatoughtto have been produced in the case of an open policy being withheld by the plaintiffs, and the general opinion of a witness given, instead of the usual proof in such cases ; and that the value found by the jury was contrary to the evidence.
   Mr. Justice Colcock

delivered'the opinion of the court:

On the first ground taken in this brief, it is only necessary to observe, that it has been the long established doctrine in this state, that the protest of the master and mariners should be received in evidente ; and this was solemnly determined by the unanimous opinion of the bench of judges in 1800, in the case of Campbell vs. Williamson, (2 Bay’s Rep. 242. J It is not perceived how it can be said that the verdict of the juiy is contrary to law, (as the^ second ground states,) for it is admitted on the ground itself that the legal- presumption may be rebutted, and whether it was rebutted, is certainly a question of fact for the jury.' They have a right to determine according to their view of the evidence, and consequently their verdict is a determination of fact, and not of law. The law was distinctly stated to them. That sea-rvorthiness was in the first instance' to be presumed, but that- if a ship within a day or two after her departure became leaky and foundered-at sea, or should be obliged to put back, without any visible of adequate cause to produce such an effect,- the natural presumption must be that she was not sea-worthy when she sailed, and it will then be incumbent on the insured to sheip the state she was in at that time. They were instructed that the whole doctrine was before them, and it was left to them to determine it. The proof was that she started a butt. Was this, in the language of the law, a visible and adequate cause for the leak, and such as would have happened to a vessel sea-worthy at the time of sailing ? But it is incorrect to call this a legal presumption. Marshall and Park call it a natural presumption. As to the other grounds, they are predicated on the facts of the case. — ■ There was a great deal of evidence on both sides, ,and it is therefore immaterial what the court may think of the verdict. They cannot say it was against or without evidence, nor that it is against law.

Toomer, for the motion.

Prioleau, contra.

The motion is dismissed.

Justices Gantt, Richardson, Johnson and Nott, concurred,  