
    Wiliam Neilson and others against the Columbian Insurance Compony.
    NEW-YORK,
    May, 1805.
    If the articles complained in the memorandum in a policy respecting corn &c physically exist the underwriter is not liable for a total loss on account of their being perfectly rotten. When the assured rests on a loss of voyage to warrant his recovery he should shew it most clearly, and of this a survey is always a proof of good faith.
    UPON a policy on two thousand three hundred bushels of corn, from New-York to Madeira, with the usual memorandum excludin grain &c. from average unless general, effected on account of Joaquim de Barros, a Portugese, resident at Bonavista, and master of the vessel in which laden.
    The ship, after a passage of more than 40 days, in which, she was under a necessity of throwing overboard 500 bushels of her cargo, arrived at the north side of the island, where she was obliged to come to as a southerly wind then blowing, rendered it impossible to go round to the harbour of Funchall. While thus at an chor, a vessel hove in sight, from whose manoeuvres imagining b her a privateer or pirate, they weighed and stood to the east-ward the strange sail following the same course. During the night they lost sight of her. but whilst keeping on they concluded, from the state the vessel and crew, in consequence of the bad weather they had experienced, to run for the Capede Verds, as they were in want of water, and might fall in with the privateer in attempting to regain their port of destination, which, even after making it. they would be unable, from the continuance of the south wind, to enter. In two days from the making this determination ; they fell in with the trade winds, and in 9 or 50, after putting about for the Cape de Verds, reached Bonavista, where, upon opening the hatches, the com was found so damaged and offensive, that it was forbidden to be landed, but was sold, as it lay on board for about 400 dollars. Here they remained 30 days, received some partial supplies from other vessels ; but not having it in their power to procure materials or workmen; to repair the sea-damage sustained on the voyage, the captain sailed for Bravo to refit. This island however, he was unable to fetch, and therefore, made for St. Vincent's, another of the Cape de Verds, at which he repaired the residue of the injuries his ship had suffered in her quarterboards and seams, and from the loss of her main and jib boom. This being accomplished the vessel sailed on a voyage to Lisbon, and no claim was ever made against the underwriter on her.
    The point ought also to be specifically submitted to the jury.
    It was in evidence, that with a south wind, the assured might in 3 or 4 days after leaving Made, a have reached Lisbon, ox Mogadore; that in going to Btmcrvh.a she must have passed the Canaries, that at either of these places she might hare been repaired and that the winds at Madeira and along the coast to the Cape de Verds, were as variable as at New-York. The testimony however, against this was, that after falling in with the trade winds, it was impossible to reach Lesbon ; that the supposition of a war between Spain and Portugal, prevented touching at the Canaries. and the constant hostilities between the Moors and Portuguese forbade the going to Mogadore,
    
    Upon this evidence the judge charged, that if. on reaching it:, port of destination, the grain was ‘‘ of no value as nutriment “ for men.” it made the loss total. But, that he left it to them to determine, whether the vessel could, or ought to have gone to any port nearer then Bonavista, where she might have been repaired. That if this could have been done, and the vessel had afterwards arrived at Madeira, the loss would have been a general average only.
    The jury found a verdict for a total loss, to set aside which, the defendants now applied, for misdirection and as being contrary to evidence.
    
      Bogert,
    Bogert, in support of the motion. Under the clause contained thpolicy, the insurers were protected from all average losses' except such as might be general. For the decay of those arti-cles’ specified in the memorandum, the underwriter is never liable ; were he to be so, a deterioration to half the value would be cause of abandonment. A proposition that is not to be maintained. Nothing short of the annihilation of the subject matter, can make the loss total, and it is immaterial whether the commodity be at a port of necessity, or that of its destination. Cocking v. Frazer, Park 114. But, without recurring to the English authorities, the decision in this court, in Maggrath and Higgins v. jB. Church, 1 JV. Y. T. B. 196, is in point. To capacitate the assured to recover, except for an average loss, it must be shewn that the voyage was defeated, by the vessel’s not being in a condition to proceed. The case ought to have been submitted on this alone; and then we say, the evidence will not support the verdict. The whole tenor of the master’s conduct shews an en-deavour to create a pretext for defeating the voyage, that he might claim a total loss.
    
      T. L. Ogden and Hoffman contra.
    We admit that no intrinsic damage will warrant a claim on the underwriter. But if the voyage be defeated, then whether the article be perfectly sound, or perfectly rotten, he is liable. It was certainly justifiable to leave Madeira on sight of a vessel apparently hostile. On the third day after this, the trade winds were fallen in with, and rendered it impossible to do otherwise than bear away. This, and the other circumstances, excuse the not going to any place nearer than Bonavista. The impossibility of repairs there, defeated the Voyage ; it was there broken up, and -the cargo sold. That the vessel was afterwards made fit for sea, is no argument against this conclusion; for if it be allowed, nothing short of the destruction of the ship would be a loss of voyage. A reparation at any indefinite period of time, would be a bar to a recovery.
    
      Pendleton, in reply,
    was stopped by the court.
   Per curiam.

A new trial must be awarded with costs to abide the event of the suit. The charge of the judge, as stated in the case was clearly wrong. So long as the corn physically existed, there could not be a total loss. Though good for nothing, the defendants were not liable, being protected by. the clause in the memorandum. The direction was contrary to our determination in Maggrath and Higgins v. Church. It ought also to have been left to the jury, as a material point whether the vessel could not have been repaired at the Cape de Verd Islands, so as to perform her voyage. This does not appear to have been distinctly submitted.

Livingston, J.

I think when the underwritten wishes a jury to find for him, on account of a loss of voyage from the vessel’s not being able to reach her port, or for want of repairs, it ought to be very fully shewn. There was no survey in this case ; and though I do not say, that fact is absolutely necessary, yet it is always a circumstance evincive of good faith.  