
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1808.
    Trenholm v. Alexander.
    jn an acj.¡on on a p0]¡Cy 0f insurance, it appeared that other underwriters had compounded with the same plaintiff, and settled by the adjustment of a broker, at an average or partial toss ; and this award, indorsed on the policy, was permitted to go to the jury, without objection. Held, that this indorsement on the policy ought not to have been received in evidence by the jury.
    In the same action, where the evidence of a loss, to the extent allowed by the jury, was not sufficiently proved, a new trial was ordered.
    Action on a policy of insurance, tried in Charleston, before-. The insurance was on the brig Flying Fish, from Charleston to the coast of Africa; underwritten by the defendant for $80O', and $400 on the same policy ; premium five per cent. Dated 21st Ssptem-ber, 1801. The brig valued at $300. The voyage to end at the place or port where she should first break bulk. Plaintiff claimed an average loss of 67 4-100 per cent. The protest given in evidence stated, that the vessel, by accident, went ashore on a shoal in the river, Rio Pungos; that the crew were nearly all sick, and many of them died after arriving on the coast of Africa. That after the accident which befel the brig, there was a survey of her ; and the opinion of the surveyors, which was also in evidence, was, that she was totally unfit to proceed to sea, without such repairs as could not be bestowed on her on the African coast. Other evidence was given at the trial, which was in some degree contradictory, relative to the state and condition of the vessel after and before the accident. It appeared, however, that the vessel was old, and rather infirm, at the commencement of the voyage; but it did not appear that she was not sea worthy, i. e., incapable of performing the voyage in case no extraordinary accident had happened. The admission of the protest and survey was not objected to. It appeared that the vessel had been thoroughly repaired, just before the beginning of the voyage, in Charleston, and men, competent to decide on her condition, gave evidence, that in their opinion, she was seaworthy. Pritchard, a ship carpenter, before the voyage, and after the return of the vessel, examined her particularly, and his opinion was, that she was indisputably seaworthy. She was condemned, some years after, as not seaworthy. The captain sold the vessel on the coast of Africa, not being able to navigate her, or repair heiv Though it was not regularly in evidence, yet it appeared that several of the underwriters, on the same policy, had compounded with the plaintiffs, and settled by the adjustment of a broker, at an average, or partial loss, of fifty percent. The amount for which the vessel sold was deducted from the valuation in the policy. The vessel sold for $4000. The purchaser, it was proved, expended on her $1500 worth of repairs in Cuba, to which place she was carried soon after the sale. It was .proved that she was very leaky on the voyage from Africa to Cuba. The verdict was for the plaintiff for fifty per cent. The broker’s adjustment, seventeen per cent, was paid by the underwriters, who compounded. The composition, abovementioned, was in consequence of a reference to arbitrators, whose award was indorsed on the policy. This indorsement went to the jury without objection.
    Ward, and M’Cali., for the defendant,
    contended, on a motion for a new trial, 1. That the brig was not seaworthy at the commencement of the risk; and that the damage which the vessel was said to have sustained ought, in a great measure, to be imputed to her frail and insufficient state and condition at the time the policy was effected, and not to the accident which happened on the African shore. 2. That the protest and survey, and also the evidence of the sale of tne brig, after the accident, had been improperly admitted in evidence. 3. That the vessel having arrived, though not with damage, at the place of destination, the underwriters were discharged. 4. That the proof of actual loss was not sufficient to satisfy a reasonable juryjhat the loss amounted to fifty per cent.
    Cheves, contra.
    
    The protest was admitted by consent. The master, Trenholm, was present in court, and might have been examined. A protest per se is not evidence. But'it is the uniform prac. tice of our courts to allow protests in evidence, where there is other evidence to corroborate the facts to which the protest relates. The certificate of the sale of the vessel was admissible, on proof of the handwriting. This evidence is equivalent to a bill of parcels, which is admissible evidence to prove the nature and value of a cargo.. Such evidence is admissible in New-York and Pennsylvania. It is for the benefit of all concerned, and good policy dictates the admission of such evidence. Surveys are always admitted on the same principle. No particular form of a certificate of survey is necessary. It is not necessary that it should be on oath. In some cases it is impracticable to obtain a survey on oath. It is immaterial what facts are stated in a survey, so that light be thrown von the principal point in qaestion. It is for the convenience and benefit of trade that surveys should be admitted with restriction. írt questions of science, scientific men, or men versed in the particular science or art in relation to which the question arises, are the most competent to speak, and therefore, they are the most proper witnesses to be examined, and their evidence ought to have great weight. A ship carpenter is a better witness to speak to the worthiness of a sea vessel, than a mere merchant, or even a common mariner. The court ought not to doubt of the seaworthiness of tiie brig upon the evidence given, and the finding of the jury. The evidence was properly admitted. The loss was fully proved. The vessel did not leak until after the accident. She leaked afterwards the whole way from Africa to Cuba. The leak rendered her unseaworthy, and this was occasioned by thumping on the shoal. The sale of the vessel was prudent under the circumstances of the case. It is probable she sold for her full value. It is a reasonable rule by which to es-mate a loss, the difference between the value of the vessel prior to the damage sustained, and the price for which she se'ls after the damage done. It is not a question of abandonment, but of a partial loss. The plaintiff may go for a partial loss, and prove and recover a partial loss equal to the loss which would be total; or which would authorize an abandonment as for a total loss. The ship was not moored twenty-hours in safety, and had not broken bulk, before the accident happened and the loss was sustained, so that the risk was not over before the misfortune occurred ; and although the body of the ship arrived, yet the damage was sustained within the intent of the policy, and the plaintiff is intitled to indemnification. See 1 T„ R. 260. 2 Marsh. Park. 35.
   9th January, 1808.

Bat, J.,

delivered the resolution of the majority of the court, viz: Grimke, Waties, and Bat, Justices, Brevard, and Wilds, Justices, dissenting. That the defendant was intitled to a new trial. They were of opinion the indorsement on the policy ought not to have been received in evidence by the jury, although not objected to by the defendant; and that the evidence of a loss to the extent allowed by the jury was not sufficiently proved. The evidence of the sale of the vessel, was not, in their opinion, satisfactory as to her value at the time.

Brevard, and Wilds, Justices, expressed no opinion in court. It was their opinion, however, that the evidence which was before the jury, was properly allowed under all the circumstances of the case; and that upon the whole, it did not appear that the verdict was unjust.

In the course of the argument the following authorities were tilted. Park 55, 31, 164, 407, 400, 38, 228, 30. 1 D. and E. 187. 2 Marsh. 381. Peake’s Evid. 137. 1 New-York Term Rep. 54. Lex Mercatoria. Americana. 1 Bin. The jury may estimate the value of the spe recuperandi, and deduct that from the whole value" .  