
    Acalus L. Palmer et al., Resp’ts, v. The Great Western Insurance Co., App’lt
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 3, 1889.)
    
    Insurance (marine)—Seaworthiness, when a question for the jury.
    Plaintiffs vessel was abandoned and burned by order of the captain within forty-eight hours after leaving port, in fine weather. Held, that although in an action to recover insurance, in the absence of other circumstances, the court would be justified in directing a non-suit on the ground that she was unseaworthy, yet where a large number of witnesses testify that she was seaworthy, the question is one of fact for the jury, as was also the question as to whether the wreck was caused by one of the perils insured against.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered on a verdict and affirming an order denying a motion for a new trial made on the minutes.
    This action was brought on an open marine policy of insurance for the recovery of the damages alleged to have been sustained by a loss oí freight. The policy, Ho. 64,118, was issued by the defendant October 28, 1878, “ upon all kinds of lawful goods and merchandise, laden or to be laden on board the good vessel or vessels as agreed at time of endorsement.” The risks assumed were as follows: “ Touching the adventures and perils which the said Great Western Insurance Company is contented to bear, and takes upon itself in this voyage, they are of the seas, winds, waves, rocks, sands, shoals and coasts, collisions and sinking at sea, fires, jettisons, loss by pirates, rovers, or assailing thieves, barratry of the masters and mariners, and all other losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods or merchandises, or any part thereof, occasioned by sea perils, subject, however, to such clauses, terms and rates of average as are contained in the memorandum in this policy, unless otherwise agreed upon in writing.” The endorsement was as follows:
    “Date of entry, March 24, 1879. Name of vessel, bark, The Brothers Pride. To be insured from port in Cuba to port north of Hatteras. The risk, freight. Amount to be insured, $5,000. Bate of premium, T|-. Amount of premium, $75.”
    The plaintiff claimed that the vessel was laden with 863 hogsheads of melado to be delivered at New York for $5.25 per hogshead, amounting to $4,530.75.
    At the close of the plaintiffs’ case, the defendant moved that the complaint be dismissed on the grounds: (1), that there was no loss of the vessel proved by the perils of the sea or by barratry; (2), that the evidence was insufficient to support a policy on freight, because it could not attach until there was a cargo laden on board; (3), that there was no evidence that the vessel sailed on the voyage insured against; (4), the vessel having met with no sea peril, the conclusive presumption is that she was unseaworthy "when she sailed; (5), that preliminary proofs of her loss must be true proofs, and it is not a presentation of true proofs of loss, or the proofs of loss required by the policy, for the plaintiffs to present a marine protest, as here presented, showing the absolute contrary of the facts in evidence. The motion was denied and the defendant offering no evidence, the case was submitted to the jury, which found a verdict of $4,528.25, with interest, for the plaintiffs.
    
      Treadwell Cleveland, for app’lt; W. W. Goodrich, for resp’ts.
    
      
       Affirming 22 J. & S., 503.
    
   Follett, Ch. J.

May 5, 1879, The Brothers Pride sailed from Cardenas, a port on the north side of Cuba, for New York, and was lost forty-eight hours after leaving port. The uncontradicted evidence is that from the hour of sailing to the hour when Wrecked the weather was fine, with about a four knot wind. She met with no accident, except the cross-bar to one of her pumps broke, but how, when, or whether the pump was rendered useless, or whether it was repaired does not appear. The vessel filled with water, it was testified, was abandoned and afterward burned by the order of its captain.

It seems to be assumed that the water came in through a leak, but the witnesses were silent as to the time when the leak was discovered or in what part of the vessel it occurred, if it did occur. Upon these circumstances, apart from others, the court on a trial by jury, under established rules, should presume that the vessel was unseawortly when it left the port, and direct a verdict for the defendant or a dismissal of the complaint. But the circumstances happening after the vessel left port are not all bearing on the question of her seaworthiness. In December, 1878, she entered the port of Cardiff, in Wales, and left January 5,1879, laden with coals for Cienfuegoes, a port on the south side of the island of Cuba. A shipwright testified that while she lay at Cardiff he repaired and put her in first rate seaworthy condition to stand a winter voyage to Cuba, and thence to the United States. The pilot who took her in and out of the port of Cardiff testified that she appeared quite seaworthy. The master of another vessel testified that while The Brothers Pride was lying in the port of Cardenas in May, 1879, he was on board on several occasions, and that she was seaworthy for a voyage with a full cargo from that port for New York. Three experienced stevedores, who assisted in loading her at Cardenas, and the pilot who took her out of that port, testified, or rather it was stipulated that they would testify, that in their opinion she was seaworthy. A mate employed on the vessel testified the vessel was laborsome in the rough weather that we had coming out from Cardiff towards Cienfuegoes; she rolled a good deal in the rough weather; during the rough weather the pumps were going nearly all the time for the first three weeks; after we got fine weather she did not make so much water.” The steward testified that after her cargo was discharged at Cienfuegoes she took in stone ballast, rocks and dunnage wood, no cargo, and proceeded to Cardenas, where the ballast was discharged and a cargo, said to be melado, was taken on board.

Under this state of evidence, the question of seaworthiness was one of fact for the jury, and they found that she was seaworthy. This greatly simplifies the case. The vessel being seaworthy when she left Cardenas only forty-eight hours before loss, the trial court, under the circumstances of this case, would not have been justified in holding that the wreck was not caused by any of the perils insured against, and very properly took the opinion of the jury upon that question. The learned counsel for the defendant did not ask that the jury be required to find by which peril the vessel was lost, nor did he pray for an instruction that there was no evidence that she was lost by this or by that peril, and so, by elimination, hold the jury to a «definite issue, nor did he except to the general instruction that the jury were to determine whether she was lost by any of the perils insured against, and so the record does not disclose which peril caused the loss. It looks like “ barratry of the master or mariners,” but that was insured against, and there is no evidence in this record that would have sustained a verdict that the owners participated in the fraud, if fraud there was.

Was there a valid contract under which the plaintiffs would have been entitled to collect freight equal to the amount of the verdict upon the delivery of the cargo in New York? The record contains the following: “ Plaintiffs’ counsel here offered in evidence the protest and bill of lading, which were admitted subject to the objection that they were not proof of their contents.” But the case does not contain the protest, nor the bill of lading, but a copy of the latter was presented on the argument; the counsel, however, disagree as to whether the trial court received it as evidence of the truth of the recitals therein, or only as part of the preliminary proofs of loss. A perfect record would have prevented a controversy which this court has no means of determining. The bill of lading was signed only by the master, and contained the words, “ weights and contents unknown.” The master was the plaintiffs’ agent, 3 Kent’s Com., 206, and being alive when this action was tried, the unauthenticated bill was not competent evidence, as against the insurers, of the kind or quantity of the cargo, nor the amount of freight <iue upon its delivery to the consignee. Paine v. Maine M. M. Ins. Co., 69 Me., 568; Dickson v. Lodge, 1 Stark., 180; Haddow v. Parry, 3 Taunt., 303; 2 Am. Ins., 6th ed., 1154; 2 Par. Mar. Ins., 528-534. But though the bill was received as evidence of the truth of the statements contained in it, no exception was taken to the ruling, and the record does not disclose an error in this respect which the appellant can avail itself of.

Roberts, a mate on the vessel, testified: “We took on board 863 hogsheads of this stuff at Cardenas.” A shipmaster who had carried melado, testified: “ I saw melado in casks going on board The Brothers Pride.” It is true that he did not examine the contents of the casks and judged only from external appearances. He also testified that the freight from Cardenas to New York was $5.25 per hogshead, and on cross-examination: “I know what the rate of freight was from what Captain Tower told me; he told me he had $5.25. I had $5.25 myself for molasses; the usual rate for molasses and melado was about the same.” The mate and steward testified to the appearance of "the leakage from some of the hogsheads and their description would seem to indicate that these casks were not filled with melado. "While the evidence in respect to the cargo and the contract under which it was to be carried is not as clear and as satisfactory as we could wish, still enough appears in the case to sustain the submission of this question to the jury.

The record does not contain the preliminary proofs of loss or the marine protest and furnishes no basis for considering the fifth ground of the defendant’s motion for a dismissal of the complaint.

The exceptions to the charge are in effect covered by the discussion of the right of the trial court to submit the case.

The judgment should be affirmed, with costs.

All concur.  