Foster v. Jackson Marine Insurance , 1 Edm. Sel. Cas. 290 ( 1846 )

The Circuit Judge:

The exception as to the preliminary proofs ought to be overruled.

There was, indeed, evidence that a survey was made on the 22d of December, that is, that “ surveyors came on board and surveyed the ship,” but there was no evidence that they made any report, of that survey. In regard to the first survey, on the 26th November; to the fourth, on the 11th January; and to the fifth, on the 13th January, it is stated not only that they surveyed, but also that they “reported accordingly;” but that is not said of the survey on the 22d December. And so of the second survey, it is said the surveyors came on board and “recommended accordingly,” but of the survey.of the 22d of December, this is not said. Why such different language should be used, in regard to these several surveys, if a report had been made in all instances, it is difficult to imagine. The inference justly to be drawn from these facts would be that there was no report of the 22d December, while the defendants insist that from these facts, independent of all other evidence, the inference is that there was a report made, and that, in order to enable the defendants successfully to interpose what has been characterized as a mere formal defense, not involving the merits.

The inference drawn by the court is further warranted by the consular certificate, which furnishes copies of all the surveys, where it is said that the surveyors reported or recommended accordingly, which omits any mention of a report of the 22d December, and declares that “ those annexed is a verbatim copy of the minutes of survey,” all the reports running into and forming part of a general minute of survey.

In the case of Haff v. Mar. Ins. Co. (4 J. R. 132), it is said, the circumstances necessarily imply a survey duly made and certified, and it is to be presumed, prima fade, to be in the possession of the plaintiff. But that was said in reference to the survey on which the vessel was condemned, which had been demanded of the assured by the underwriters—to which demand they had made no reply—in regard to which they had given no account on the trial—and which was an absolute prerequisite to the plaintiffs’ recovery. Yet, under all these circumstances, it was only -presumed phnaffade to have been in the plaintiffs’ possession, and it was held open to proof on the trial what was the real fact relative to the survey. Here the case is widely different. The missing survey was not that on which the condemnation rested, was not a prerequisite to the recovery, was not demanded by the underwriters until the day of trial, and was accounted for, so far, at least, as to show that if any report ever was made it went with the others into the hands of the consul, who was the agent of the underwriters. If the court with reluctance applied the rule in Haff v. Marine Ins. Co., they would hesitate long in applying it under the circumstances of this case. Good faith and the true spirit and intention of the clause requiring the preliminary proof of loss, required the plaintiff to disclose at least all the documentary evidence in his possession touching the nature and extent of his loss, but it must first be shown, either by proof or by fair presumption, that there is such a document and that it is in plaintiffs’ possession, and that is not done in this case.

But this objection does not come with a very good grace at this time, and it does not therefore commend itself particularly to my favorable consideration. The defendants knew as much about the survey of the 22d December, immediately after the plaintiffs’ proofs were put in, as they do now. They called for additional matter as to other things, yet were silent as to this survey until it was too late for plaintiffs to remedy the defect. Good faith is to be exercised on both sides in these contracts of insurance, and that would have required from the defendants that they should have, at the earliest opportunity, apprised the plaintiffs of their demand in this matter. If they intended to apply the rule of Haff v. Marine Ins. Co., they should have laid the foundation, as was done in that case, by making their demand in due season. Having omitted to do so, I cannot persuade myself that it would be just to allow them now to avail themselves of a mere formal defect to defeat the merits of this ease.

The question put to Capt. Townsend in regard to the contents of the survey made by him, was properly overruled, because he proved that his survey was signed and sworn to by him and sent to or left with the consul, who was the agent of the underwriters, and there was no evidence offered of its loss. To have allowed this evidence would have been to violate one of the most familiar rules of evidence.

As to deviation. There are two reasons why the exception as to deviation must be overruled.

1. It is too broad. It was interposed to “ all that part of the charge which related to the question of deviation.” Whether any part which related to that subject is unexceptionable, becomes therefore the question, not whether any part is exceptionable. This is a well established rule, and founded in good sense, for it would be intolerable to allow a party to make so general an exception, and afterward hunt up some particular expression to which attention was not called at the time, and in regard to which no opportunity was afforded of correction or explanation.

The defendants in their points, and afterward in the argument, direct their objections only to a part of that portion of the charge, viz., to that where, alluding to the ten days when, according to the log book, the vessel might have proceeded to sea, it says the inquiry is, was it discreet and proper for her to do so? Was it varying or increasing the risk without necessity or reasonable cause? and submitting it to the jury to say whether the delay was in the exercise of good faith, and sound discretion, and by necessity, or for a reasonable cause. Even if this was erroneous, there was still much in the charge on this topic, which was unquestionably correct, and which is, at least impliedly, admitted to be so by the course of the argument. It surely was right to say that delay was equivalent to a deviation, or may be a deviation in fact. And it was equally correct, according to the cases, to declare that vessels have delayed many days without a deviation, having reasonable cause so to do, yet tiiese matters are as much embraced in the exception as any other.

2. But, independent of this consideration, the exception ought to be overruled. After charging the jury that the delay in the port of Trieste might be a deviation, the court submitted it to them to say whether it was in the exercise of good faith and sound discretion, cmd by necessity or for a reasonable cause. This was a question of fact properly left to the jury. But the defendants insist that the jury should have been instructed, that there was no proof offered that the vessel was detained by stress of weather, or that, in the judgment of the captain, it was not safe, on account of the prospects of the weather, to proceed to sea. There was proof offered on this subject—the point was elaborately discussed, and whether it was enough to justify the delay, or so without cause as to create a deviation, was of necessity submitted to the jury, because it was purely a question of fact. In Raine v. Bell (9 East. 195), the court were unanimous in holding as to the temptation held out to the master; that must always be a question for the jury, whether the delay arose from the trading, or from necessity. And so, where the jury found expressly that taking in the goods occasioned no .delay, it was no deviation. (Laroche v. Oswin, 12 East. 131).

In all cases, in order to determine whether a diversion from the direct course of the voyage is such a deviation as in law vacates the policy, it will be proper to attend to the motives, end, and consequences of the act as the' true criterion of judgment. (2 Park. [8th ed.], 641.) It is rare indeed that an inquiry into the motives, end, and consequences of an act, is not properly within the province of the jury. And this writer finishes his chapter on deviation, by declaring that, subject to the rules already advanced, deviation or not is a question of fact to be decided according to the circumstances of the case. (Id. 659; Bermon v. Woodbridge, Doug. 789).

And it must of necessity be so, unless a diversion from the course of the voyage,, from whatever cause, is of itself a deviation, which it is not, for a deviation is a voluntary departure, without necessity or any reasonable cause; and whether a deviation or not, must always involve the questions of fact whether the departure is voluntary or not, whether with or without necessity, and whether with or without any reasonable cause. I do not understand the cases cited for the defendants as establishing a different rule, for the delay may be implied from opening hatches, as in Kane v. Col. Ins. Co. (2 J. R. 264), and must be accounted for as in Iímne v. Bell; yet whether accounted for or not, is still a question of fact. In Baine v. Case, (3 Carr. & P. 496), the vessel remained in port 109 days in the hope of being permitted to land the cargo, and it was held that it was for the jury to say whether the delay was unreasonable. In Langhorn v. Allmett (4 Taunt. 511), it was insisted that a delay of four months was, in judgment of law, a deviation, but the court held it to be a question for the jury whether the delay was unreasonable. That was precisely the question which was put to the jury in this case, and rightfully so,-1 think.

This view necessarily disposes of all the other grounds of exception, excepting that mentioned in the last point of the defendants, viz., the comments of the judge on the testimony of Townsend and Latham. No error in law is assigned in this regard, and I am not aware, that any error in fact by the judge is just ground of exception. It may be good ground for moving for a new trial on a case, but is not available in this form, and need not, therefore, in this connection, be defended or justified.

There must be judgment for the plaintiff.