Haff v. Marine Insurance , 4 Johns. 132 ( 1809 )

Thompson, J.

delivered the opinion of the court. .The question which this case presents, relates to the sufficiency of the preliminary proof. Although the. objection is, in some measure, a formal one, yet, if well taken, we are bound to give it effect. The documents required by the underwriters, as a part of the preliminary proof, was a survey of the vessel, after she had met with the disaster, and the voyage broken up at Port Antonio. By the policy it is agreed, “ that if the vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage, on account of her being unsound or rotten, then the assurers shall not be bound to pay their subscription.” The circumstances stated in the case will, I think, warrant me, in assuming it as a fact, that a regular survey of the vessel was made at Port Antonio. It was ascertained at that place, that the schooner would require “ great and extensive repairsand she was there condemned. These circumstances necessarily imply a survey duly made and certified, and it is to be presumed, prima facie, to be in the possession of the plaintiff. It is always made at the instance, and for the benefit of the owner or master of the vessel, and it goes of course into his hands. When this survey was called for, in the present case, by the defendants, the plaintiff made no answer; at least, none is stated. If it was not then in his possession, or under his command, he would naturally have accounted for its non-production ; and if the inferences which I draw were not correct, the plaintiff should have shown by proof, upon the trial, what was the real fact relative to the survey.

The question then arises, whether the assured who abandons a vessel to the insurer, on the ground that she had received injuries by perils of the sea, which rendered her unable to prosecute her voyage, and which would have cost more than she was worth to repair her, and who had in his possession the survey upon which she was condemned, is not bound to produce it to the insurer who calls for it, as part of the preliminary proof. By the usual clause in our policies, the underwriter is to pay, within a certain time, after proof of interest and loss ; and we have heretofore considered this stipulation as satisfied by the exhibition of the usual documentary evidence, such as the register, invoice, protest, &c. since the object of it was only to furnish reasonable information to the insurer, that a loss had happened for which, according to the "terms of the policy, he was responsible. In the present case, the underwriters did not stipulate to become answerable for any loss which should happen by reason of unsoundness or rottenness, and a survey was the document by which that was to be ascertained. It is possible that this survey might have shown, that the schooner was unable to prosecute her voyage, on account of her being unsound or rotten, which would have been sufficient, at least prima facie, to exonerate the underwriters. Good faith, and the true spirit and intention ef the clause, requiring preliminary proof of loss, required the plaintiff to disclose, at least, all the documentary ., . , . . . . . evidence m his possession, touching the nature and extent of the loss. The plaintiff contends, that the injury the vessel had received, was so extensive as to give him a right to abandon, and recover, as for a total loss. The survey must have been a material document to the insurers, in forming their judgment, whether the loss claimed was really total, because it is the opinion of competent judges, formed upon the spot, as to the state and condition of the vessel, and the extent of the requisite repairs. No good reason appears for withholding it in the present instance. The very fact of not producing it, was calculated to awaken suspicion. We are accordingly of opinion, that the plaintiff was bound to produce it, or give some account of its non-production, and that he ought accordingly to have been nonsuited upon the trial, and that a nonsuit be now awarded, upon the point reserved.

Judgment of nonsuit.