
    Treadwell & Thorne against The Union Insurance Company.
    UTICA,
    Aug. 1826.
    a policy ⅞ insurance up-underwriters “ay show m that the vessel pefenf acrew, or a captain or petent°skm.m
    question9 ⅛ of fact to he sub-juryf upon the nature of the voyage, See.
    
    If the vessel bied^in such case, the un-have a right to claim that the master should pro-vessel ato0tfor~ ward the car-power.
    thiJsabject °is tha t if there the port ⅛*di™ tress, or in a contiguous port, the master should procure it.
    But where it appeared that resort must have been had to distant places ; and, independent of procuring a vessel, there were further serious impediments in the way of putting the cargo on board ; held, that the rule was not obligatory.
    A cargo was ensured at and from North Carolina to New-York; held, that if the vessel Was sea-worthy when she passed the boundary line of North-Carolina, this was sufficient ; and her unsea-worlhiness previo.us to that point of lime, would be no defence in asv action against the ■underwriters for a loss.
    Assumpsit upon a valued policy of insurance, dated September 22d, 1823, on part of 800 bushels of wheat, on board the schooner Lodge, Farrow, master, on a voyage at and from North-Carolina to New-York, containing the clause, “ the captain at liberty to act as pilot,’1 and the common memorandum, by which, among other things, grain of all kinds is warranted free from average, unless general.
    The cause was tried at the New-York circuit, January 3M> 1825> bef°re EDWARDS, C. Judge,
    On the trial, the plaintiffs proved, that on the 13fA of September, 1823, the schooner sailed with the wheat on board, from Perquimions river, at or near the town of _ 7 Hertford5 in the state of North- Carolina, on her voy-aSe ^or Neiv-York; and after experiencing a series of head winds, and, at last, very tempestuous weather, till the of November, she was run on shore upon Cape Halteras banks, about 18 miles north of Cape Hatteras light house ; this being deemed necessary by the master an<^ crew, to save the vessel and cargo from total destruction, and preserve the lives of the crew. In the act of running her on shore, she was so much injured as to be incapable of proceeding on her voyage, and was afterwards sold. The wheat was, in the end, so intermixed with san^ an3 water, as, in the opinion of the master, to be unfit for transportation, and was sold at public auction, after full notice by advertisement, for $70,55⅛ ; which, after defraying commissions, expenses, &e. left $22, afterwards paid to the consignees.
    Verdict for the plaintiffs for the sum insured, with interest, as for a total loss, deducting the net proceeds of the salvage.
    A motion was now made in behalf of the defendants, for a new trial, grounded on a very voluminous case, containing the evidence at large, which, so far as it is material, beyond what is above given, will be found stated in the opinion of the court.
    
      T. A. Emmet, for the motion,
    insisted, 1, that the vessel was not sea-worthy, either at the commencement of the risk, or any other time. (1 Caines’’ Rep. 32. Marsh on Ins. Condy’s ed. 154,5, 165 a, n. (16). id. 165 b, n. (17). id. 166, n. (18). I John. Cas. 184. 1 Mass. Rep. 436. Phil, on Ins. 114, 117. Sello. N. P. 4 ed. 954, n. (53.)
    2. That the master was guilty of so many and great delays in the prosecution of the voyage, as amounted to a deviation.
    9. That the voyage was broken up on account of the sale of the cargo, and not from the impossibility of procuring another vessel to send on the cargo to New- York ; and that such a vessel could easily have been procured. (18 John. 210,11. 14 John. 138. 1 Caines’ Rep. 196. 3 Caines’ Rep. 108. 1 John. Cas. 226. Condy’s Marsh, 221, 224, 233. 1 Wheat. 224. 7 East, 38.)
    
      G. Griffin, contra.
    1. The crew of the vessel was competent for the voyage. (Park on Ins. 299, note (a). 2 Campb. 235. 3 Taunt. 299. 2 B. ⅜ A. 320. 1 Caines’ Rep. 217.)
    2. There was no deviation, or unnecessary delay. (4 Esp. Rep. 25. 2 Condy’s Marsh. 840, l,note. . 2 Taunt, 301.)
    3. It was not, under the circumstances, the duty of the master to attempt to forward the cargo to its port of destination, in another vessel ; and there was, therefore, a loss of the voyage by a peril insured against. (Park on jng 3^221. Phil, on Ins. 489, 90,andthe cases there cited. 12 John. 107. 18 John. 208.)
   Curia, per

Woodworth, J.

Three points are raised by the defendants :

1. That the vessel was not sea worthy ;

2. That the master was guilty of so many and great de? lays, as amounted to a deviation ;

3. That the voyage was broken up, on account of the state of the cargo ; and not from the impossibility of procuring another vessel, to send on the cargo to New-York.

As to the vessel, it is satisfactorily made out, that she was tight, staunch and strong, on the 13fA of September, 1823. Having received her cargo onboard, she sailed on her voyage to New-York, down Perquimions river, from a place at or near Hertford, in the state of North-Carolina. The crew consisted of the captain, and one hand. On the 16⅞ of September, and while the vessel lay in Cape Halteras channel, detained by head winds, the master shipped another hand. It satisfactorily appears that the crew previously on board was competent for river and sound navigation. The weight of evidence is, that three hands were a competent number for the residue of the voyage. Owing to adverse winds, there was great delay, and little progress made; but there is no ground for believing that reasonable diligence was not used in the prosecution of the voyage. The risk commenced at and from North-Carolina. If the vessel was seaworthy at the time she passed the boundary line of that state, it is sufficient. The insurers not being responsible for a loss happening previous to her arrival at the point of departure, the inquiry as to her previous seaworthiness, I apprehend, becomes immaterial.

But it is contended that there was not a competent crew, because the master was not acquainted with the science of navigation. This question was not raised at the trial. The attention of neither the judge nor jury was called to the point. It was a question of fact, whether the coasting trade could be pursued with safety, without having on board a navigator capable of making an observation to find the latitude. From the finding of the jury, itmay be presumed they considered it unnecessary. Had the question been raised at the trial, we cannot say that the plaintiffs might not have given further evidence; and shown that, from the nature of this navigation, the proximity to land, the number of harbors, as well as from other facts, it was consistent with prudence and safety, to dispense with a scientific navigator, it is not, therefore, admissible, to allow the defendants the benefit of this exception now. It should have been made at the trial. Berrian testified, that not more than one fourth of the masters of vessels, of the size of the Lodge, engaged in this trade, understand the science of navigation ; and that that fact is generally known in New-York. This, it is true, does not prove a usage, sanctioned by the practice of the community generally ; but it goes far to show in what light the practice is considered by mariners and navigators of vessels. That proof of general usage would have been admissible, I think undeniable, provided it had been made out according to the rule in Smith v. Wright, (1 Caines, 45.) It is there observed, “ the true test of commercial usage is, its having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it ”

If this view be correct, it follows, that a new trial should not be granted, on the ground of an incompetent crew.

But the objection, if made in season, cannot avail. The assured, it is true, cannot recover, unless there be a sufficient crew, and a captain and pilot of competent skill. (7 T. R. 160.) But the plaintiffs have very satisfactorily proved the general competency of the master. Several witnesses speak of him as entirely competent for the voyage. If the alleged incompetency is founded on the fact that he was ignorant of navigation, it was incumbent on the defendants to have shown that such ignorance was a disqualification ; that it was not considered safe to make the voyage, v/ithout having a scientific navigator. No such testimony was given. The defendants’ witnesses da nof gjve an Opinion on this point. They say, they have taken a navigator; but they do not say, it might not be sa^e^ dispensed with.

I should not, therefore, be disposed to disturb the verdict, on the evidence stated in the case relative to this ground of the motion.

As to the third question, the general rule is, that when the ship becomes disabled, it is the duty of the master to procure another vessel, if it is in his power ; and the insurer is not answerable for his voluntary neglect so to do, unless such neglect is caused by an act of barratry. (9 John. 21.) What may be done, ought to be done, when the rights of third persons are essentially concerned in the act. This general rule, however, is restricted to reasonable limits. The circumstances of each particular case must be considered. From them it must be determined, whether the difficulties in the way were so great as to form an excuse for not sending on the cargo. In the case of Saltus v. The Ocean Insurance Company, (12 John. 107,) it was decided that the master was not bound to seek a vessel, out of the port of distress, or out of a port immediately contiguous, in that case, there were a number of vessels at Cork, 16 miles distant, which the master supposed might have been obtained ; but he made no attempt to procure them. The question resolves itself into this ; not whether a master, by going to a distant port or place, might have procured another vessel ; nor, whether by first conveying the cargo some distance over land, it was possible to effect a re-shipment; but whether, under the circumstances in which he was placed, the law required him to make the attempt. Some certain rule, to govern the discretion of the master, is desirable, wherever practicable. Although no general rule will govern every case, the approach to certainty will be considered beneficial to all parties. I think, then, the rule laid down in the last case is at once safe and reasonable. If there be a vessel in the same port, or a contiguous port, which is substantially Ihe same thing, his duty is clear. The rule is imperative. But where resort must be had to distant places, and, independent of procuring a vessel, there are further serious. impediments in the way of putting the cargo onboard, the.,rule is not obligatory.

In the present instance, the vessel was wrecked, and lying on the beach. There was no port within a number of miles. A vessel could not come along side, for the purpose of re-shipment. In the first place, the w'heat must have been carted across the beach. After that had been done, it appears from the evidence, boats would have been necessary to carry it to the vessel, a distance of several miles, it not being practicable to approach the shore. The conveyance in boats would have been attended with danger : in a calm, with but little ; but if a gale had come on, with almost certain destruction. Must this labor and hazard be incurred to make the underwriter liable ? The master was not bound to transport the wheat by land ; and then incur the risk of sending it in boats to the vessel. I think ihe application of so severe a principle unreasonable in itself; and not called for, in order to enforce, in good faith, the execution of the contract. The master, under the circumstances, was justified in not making an attempt to procure a vessel. The insurer has no cause for complaint.

An event happened beyond the control of all parties, which, in the given case, denies to the defendants the right of insisting on a re-shipment.

I am of opinion, that the motion for a new trial be denied.

New trial denied.  