Samuel Hazard Administrator, Plaintiff In Error v. the New England Marine Insurance Company

• Decision Date: 01 January 1834
• Citation: 33 U.S. 557,8 L.Ed. 1043,8 Pet. 557
• Parties: SAMUEL HAZARD'S ADMINISTRATOR, PLAINTIFF IN ERROR v. THE NEW ENGLAND MARINE INSURANCE COMPANY
• Court: U.S. Supreme Court

33 U.S. 557

8 Pet. 557

8 L.Ed. 1043

SAMUEL HAZARD'S ADMINISTRATOR, PLAINTIFF IN ERROR v. THE NEW ENGLAND MARINE INSURANCE COMPANY.

January Term, 1834

IN error to the circuit court of the United States for the Massachusetts district.

In the circuit court, an action of assumpsit was instituted by the plaintiff in error, as the administrator of Thomas Hazard, deceased, on a policy of insurance, dated 26th December 1827, whereby the defendants caused to be assured Josiah Bradlee & Co., for Thomas Hazard, Jun., of New York, fifteen thousand dollars on the ship Dawn, and outfits at and from New York to the Pacific ocean and elsewhere, on a whaling voyage, during her stay and fishing, and until her return to New York, or port of discharge in the United States, with liberty, &c.

The declaration contained various counts, stating a total loss of the vessel, and a partial loss of the cargo, and also a partial damage to the vessel by perils of the seas.

It appeared in evidence, that the vessel sailed on the 29th of December 1827; and on her outward passage struck upon a rock at the Cape de Verd Islands, and knocked off a portion of her false keel, but proceeded on her voyage, and continued cruising, and encountered some heavy weather, until she was finally compelled to return to the Sandwich Islands, where she arrived in December 1829, in a very leaky condition; and upon an examination by competent surveyors, she was found to be so entirely perforated by worms in her keel, stem and stern post, and some of her planks, as to be wholly innavigable; and being incapable of repair at that place, she was condemned and sold.

It also appeared in evidence, that after the vessel sustained the injury at the Cape de Verds, she put into St Salvador; and that both at the Cape de Verds, and at St Salvador, the bottom of the ship was examined by swimmers.

The defence to the action was rested on the following grounds.

1. That there was a misrepresentation of a fact material to the risk, in the application made for the insurance, which was by letter, and in which the vessel was represented to be a coppered ship. It being alleged by the defendants, that by the terms 'coppered ship,' applied to a vessel destined upon a whaling voyage in the Pacific ocean, it would be understood, according to the usages of insurance in Boston, that the sides and bottom of her keel were covered with copper; and they adduced evidence to prove this position, and also that the keel of this vessel was not so covered.

And upon this point the plaintiff produced evidence to prove that the keel was so covered, or if not, that it was nevertheless covered with leather, and which was alleged to afford an equally permanent and effectual protection against worms.

The letter referred to was as follows:

New york, Twelfth month 22, 1827.

JOSIAH BRADLEE & Co., BOSTON.

Respected Friends:—My ship, the Dawn, of New York, Henry Gardiner master, is now nearly ready for sea, and will probably sail in the course of next week on a whaling voyage to the Pacific ocean and elsewhere. I wish you to have twenty-five thousand dollars insured for my account, on the ship and outfit, the ship valued at fifteen thousand dollars, and the outfit valued at ten thousand dollars, each subject to its own average—the outfit to be transferred to my share of the oil, which will be about two-thirds of the oil, as fast as it shall be obtained; the oil valued at sixty cents a gallon. If any part of the oil should be sent home by any other vessel or vessels, that part of the oil not to be deducted from the sum insured on the outfit. Our ships sometimes take oil on their outward passage, and wish to send it home; therefore you will please to have it stipulated in the policy for liberty to do it, and also for liberty to stop from time to time to procure refreshments, as is usual and customary on such voyages. This is the same ship that you had insured for me in Boston some years since. I will only observe, that I believe her to be one of the strongest and best ships in the whole fishery: she has been newly coppered to light water mark, above which she is sheathed with leather to the wales, and fitted in every respect in the best manner, and commanded by an experienced, capable and prudent master, which entitles her to be insured at as low a premium as any ship in that business. You got her insured for me the last time, on a similar voyage, against all risks, for six per cent, although I understand that premiums have risen a little in Boston. I can but hope that you will be able to get this assurance effected at six and a half or seven per cent—indeed I should not be willing to give more than eight per cent. Hoping to hear from you soon on the subject of this insurance, I remain, with great respect, your assured friend,

THOMAS HAZARD, JUN.

The plaintiff also gave in evidence a letter from his intestate, of which the following is a copy.

New York, Eighth month 20, 1824.

JOSIAH BRADLEE & CO.

Esteemed Friend:—My ship, the Dawn, of New York, John H. Butler master, sailed yesterday morning on a whaling voyage to the Pacific ocean and elsewhere. I wish you to have twenty-five thousand dollars insured, provided you can get it effected at seven per cent or under. This ship is about three hundred and twenty-seven tons, built in this city, of excellent materials; is between seven and eight years old, copper fastened, newly sheathed with wood, which was put on with composition nails, and then sheathed over the wooden sheathing with sole leather, which was also put on with composition nails. Ship valued at fifteen thousand dollars, and the outfit at ten thousand dollars, each subject to its own average; the latter to be transferred to the oil as fast as it may be obtained (say my proportion, which will be about two-thirds of all that may be obtained), the same to be valued at forty cents per gallon; if part should be sent home by any other vessel or vessels, that part not to be deducted from the amount insured on the outfit. Sometimes our ships take oil between here and the Cape de Verd Islands, and wish to send it home; therefore I wish you to stipulate in the policy for liberty to do it. Hoping to hear from you soon on the subject of this letter, I remain, your assured and very respectful friend,

THOMAS HAZARD, JUN.

P. S. It must be stipulated in the policy that the ship have liberty to stop for refreshments, as is usual and customary on such voyages.

The evidence was submitted to the jury under the following charge, by the presiding judge of the circuit court.

That, as to the objection taken to the plaintiff's right of recovery, upon the ground, that there was no sufficient abandonment made out, whatever might be his opinion of the validity of the objection, he should, for the purposes of the trial, rule, and he accordingly did rule, that under all the circumstances of the case, the abandonment was sufficient in point of law. 2. That the representation and facts stated in that letter (the letter of the plaintiff's intestate to his agents, left with the defendants at the time application was made for insurance), so far as they were material to the risk, must be substantially true: that if the ship was not coppered, as stated in that letter; and the ship did not, in that respect, correspond with the representation, and the difference between the facts and the representation was material to the risk, then the plaintiff was not entitled to recover upon the policy: and he left the facts as to representation and the materiality, to the jury. That, in ascertaining whether the vessel was coppered, it was for the jury to determine what constitutes a 'coppered ship;' and if the jury should find from the testimony, that in order to constitute what is called a coppered ship, the bottom of the keel, and the sides of the keel, as well as the sides of the vessel, must be coppered; and they should further find that this vessel was not so coppered, and the deficiency was material to the risk: then there was not a compliance with the terms of the letter left with the underwriters, and the underwriters were not liable upon the policy. Or, if they should find that a ship coppered on her sides, and also on the sides of the keel, and not on the bottom of the keel or false keel, would meet the representation of a coppered ship on other voyages, but that in whaling voyages in the Pacific ocean, the usual and customary mode is to copper the bottom of the keel or false keel; and it is understood by underwriters, when application is made for insurance on such voyages, that vessels are so coppered, unless the contrary is stated; then, inasmuch as the letter applying for insurance is an application for insurance of a vessel on a whaling voyage in the Pacific ocean, the underwriters had a right to consider the representation in the letter as describing the vessel as coppered, in the manner in which vessels are usually coppered for such voyages: and if the ship was not so coppered, and that deficiency was material to the risk, the terms of the letter were not complied with, and the defendants were not bound by the policy.

1st. The court further charged, that in ascertaining what is to be understood as a coppered ship in applications for insurance on a voyage of this nature, the terms of the application are to be understood according to the ordinary sense and usage of those terms in the place where the insurance is asked for and made; unless the underwriter knows that a different sense and usage prevail in the place in which the ship is then lying, and in which the owner resides, and from which he writes asking for the insurance; or unless the underwriter has some other knowledge that the owner uses the words in a different sense and usage from that which prevail in the place where the insurance is asked for and made.

2d. The court further charged the jury, that although the terms of the letter applying for insurance...