BATCS"ELDEn
v.
INSURANCE CO.
459
and another
'D.
INSURANCE Co. OF NORTH AMERICA!
(JJi8trict Court, E. D. Pennsyl1;ania. April 1, 1887.) 1.
Ordinarily the burden of proving that a vessel was unseaworthy at the time an in.suranceQn the cargp.was effected is on the insurer; but Where. a vessel has been forced to put back into port by a storm, and an insurance is then effected, and the voyage resumed without notice to the insurers of the storm, the burden is shifted, and the insured must show tb,at the vessel was sea· worthy when she made the second start. SAJ,fE-8oRVEYOns' REPORT.
OF VESSEL-BURDEN OF PROOF.
2. 8.
" Unless overcome by competent evidence, the report of the surveyors of a port is sufficient evidence that a vessel is seaworthy.
S.um-Loss BEFORE AND AFTER INSURANCE.
When part of the dama$'e to a cargo was sustained prior to the placing of the insurance, and no notICe of such damage/iven to the insurers, the duty of allcertaining what part of the 108S occurre before and what after the iJi· surance devolves on the insured.
In Admiralty. "Driver andston, for libelants. Charles Gibbrms, Jr., for respondent. "BUTLER, J. The lumber merchants" at Norfolk, Virginia, chl1.l'te!ed the barge Americus in February, 1884, to carry a cargo of lumber from their landin?; below Norfolk, to Philadelphia. Soon after, the barge took on about 200,000 feet, and proceeded to Norfolk. On the eighteenth of the same month she started up the bay in tow of the tug Monitor. During the night of the eighteenth, while the barge and were lying at anchor near Hampton bar, below Fortress Monroe, a heavy gale arose, which continued during the next day and night, and about 9 o'clock P. M. of the nineteenth, caused both vessels to drag and ground upon the beach. .The barge remained there for three days, and was then taken off by wreCkers, (who first removed the deck load,) and conveyed to Norfolk, where she remained for several days. She had mken in some 18 inches of water as she lay on the beach, which was While at Norfolk a survey was made, and she was reo pumped ported tight and safe for her contemplated voyage. On the twentyseventh of February she again left Norfolk, in tow of the tug Rattler, and proceeded up the bay. After being out for several hours, she encoun· tered another severe storm, which caused her to roll and pitch dangerously. After. passing the Horse-shoe bar she leaked badly, and was in such condition as to make it necessary to enter the York river for harbor, where she came to anchor about midnight. The storm continued during that night, and the next day and night. She filled with water soon after the .leak was· discovered, and a part of the deck load was washed off ana lost. After the storm abated she wastakento the Pian1 Reported
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
460
FEDERAL REPORTER.
katank river, and beached. Another barge was obtained, and the lumber taken by it to Philadelph,ilt. After the Americus had been towed to Baltimore, it was ascertained that she had a hole under her bilge, apparently made by striking against some hidden obstruction. The lumber, when delivered, (saving what had been on deck,) was wet, mildewed, apd stained. Previously, on the twenty-seventh of February, Batchelder and Collins had effected insmance on the lumber in the sum of $2,000, with the respondent. When the insurance was effected the first storm, and grounding of the company was npt informed of barge or wetting of the cargo. The defense set up to the claim under the policy is two-fold: Ff-rst, that the barge was unseaworthy; and, second, that important facts were suppressed. As respects the first, it ,conceded, I think, that the bmden of proof is on the libelants. Ordinarily, in such an issue, this is otherwise. But the facts stated in the libel respecting the first storm; and grounding of the vessel, are sufficient to shift the burden. In the absence of evidence to the contrary, I think it must be presumed that the consequences of this storm and gruunding would render the vessel temporarily unseaworthy. The libelants' counsel seem to have entertained this view, and prepared themselves to meet it, by,producing testimony to the vessel's condition when she left Norfolk the second time. As we have seen, the surveyors reported her in good condition. If this report was unattacked it would be conclusive. It is not a.ttacked by direct testimony that it is untrue. It is,"however,severely criticised; the survey is said to have been ca.relessly made, with little or no examination; and it is urged that, in view of the grounding, and the severe strain to which the barge was subjected during the first storm, it is not reasonable to believe that she escaped serious injury; and therefore that the surveyors' report is entitled to little or no weight; especially in view of the manner in which the smvey was made.. This was urged with much earnestness and ability, and I have deemed it worthy of serious consideration. It seems to me that the survey was not as full and minute as it might, and probably should, have been. Still, however, the surveyors, who were disinterested, experienced, and competent, considered it sufficient to warrant the judgment they expressed; and those who had it made were interested to see that it wal'? sufficiently thorough. I attach no weight to the circumstance that one of the surveyors is an agent of the respondents. At the time of this survey the respondents had no interest inyolved. and in assisting to he in norespect represented them. . There are other facts bearing on the question under consideration, of great significance. The filling oithe barge during the second stOl'Iil., and the beaching which became necessary, resulted from the hole in her side, under the bilge. This is entirely clear. If the hole was made during the second storm, it settles the qllestion against the respondents. If made during the first, it settles the question the other way. It is evident that this hole did not exist when the barge left Norfolk the second time. If it had been made during the first storm, or when she was aground, near
BATCREI,DER V. IKSURANCE CO.
461
Fortress M<;mroe, she would have immediately filled with water. As the libelants' witnesses say, she could not have run qistance of her length with such a hole, without. filling·. : Yet she was taken back to Norfolk, where she laid for severa1 days, without exhibiting any material leakage. Of course, as she lay upon the bottom near Fortress Monroe, her seams would open slightly, and some water be taken in. The comparatively small quantity she took in, can thus be accounted for. When she left Norfolk again, and as sbe passedl¢p the bay, she did not leak materially, if at all. It must be concluded, therefore, that the hole did not exist at that time. It cannot be supposedtha,t the planks at this part had been previously so injured as to render them unsafe, and tho's lead to the disaster which followed. hole was evidently madeby striking against some obstruction under water. It would be unreasonable to believe that she struck at this point against,such an object, du!ing each storm, a,nd that, though rendered unsafe by the first blow, the hole was not actually made or completed untilthe second. I esteem itquite clear that some such. obstruction was encountered during. the seconq storm, possibly in passing the Horse-shoe bar,and that the injury was thus inflicted.' As the ho1.e is only cause or eVidence of the vessel'sunseaworthine$s at the tilDe .she filled and was peached, it must be conclUded that she:was seaworthy when she left Norfolk, and up to the time it was made.· . . As respects the sec,ond question, I find no eviden¢eofthesnppression of any fact material to the contract of insurance. The jnsurers were not aware of the first grounding of the vessel. This,however, is unimportant. They did not insure h&t. The libelants were not called UpOll to make any statement respecting the vessel in w:hicb theiJ; cargo was to be carried. They warranted her seaworthy. The entire responsibility respecting he,r condition was upon them. No ma,tterwhat they might represent or withhold, iftbevessel was notseaworthy, the insurers were relieved, and the insured lost the benefit of their policy. Having this guaranty, the insurers had no interest in the vessel calling for informatiqn. They were not informed, either, that the cargo had been wet. This also seems to be unimportant. The policy covers future risk simply; and the are bound, therefore, only for such'future.loss as can be proved. I do not think the rules of law governil;lg cases where there is suppression of material facts, have any application here. Nothing was suppressed respecting the risk assumecl,-future injrlry to or loss of the cargo. The previous wetting could have no influence on this. What extent of injury was sustained to the cargoltfter the date of the policy is not shown, and the subject must go to a commissioner. , Some part of the lumber was washed off, and thus lost. The remainder was wet, and became mildewed and stained. How much the injury is due to the, second wetting, it may possibly be difficult to ascertain. The libelants IDust, however, ascertain it w.ith reasonable certainty, or be denied this part of their .claim.. Under the circumstances, the burden of disthe consequences of the two occasions when the lumber was wet, is upon them. I have not alluded to the to;yage of a raft
'ilstern, as this method of making up a tow in such navigation is usual, a119 thf;1refore is nniIl1porta:nt .to the' ease. '·A.decreemust be entered sustaining the libel. , .; -. ! - i' , ,
i ·
; :.
,
DILLENBACK
v.THE
RoSSEND CASTLE.
(Diatrict Oourt, S. D. NeuJ York. April 5, 1887.) 1·. -LJV1I:-STOClt-PROII'IT8 EXCLUDED· TO TAKE GOODB-RULE OF DAMAGES
. by the ship to receiv:e goods, pursuant to charter, for tranBportation'to a foreign port, the rule of damages is: (1) The difference in the price of transportation; or, (2) if there be no market price a.nd the adventure is not broken up, the actual cost of subsequent transportatIon by anotherv(lssel, together with the expense. in the case of live-stock, of keeping for a reasonable time until other transportation could be procured, with an' aiIowan'ce for depreciation, and the difference in the market value, if any',. during the delay. Where such proof is available. it ",,'ords a complete . indeml,1ity by a rule comparatively simple, and comPI.icated computations of estfm,ated.profits, not allegedin tlle pleadings, should be excluded. 2. TENDER--PAYMENT INTO COURT-AcCEPTANCE-CoBTS.
. A. tender and payment into court isa continuing offer; which may be accepted at any time. The libelant is .entitled to the benefit of the amount depositl,ldat all events; but If he does not accept the offer, and In subsequent litigation recovers no more; be must pay costs from the time of the deposit. STATED-:CARRIAGEOF SirtilEP-FoREIGN MaKET.
8.
The libelant c()ntracted.f9r the rigpt to transport she.ep on the deck of the steam.er R. C. from New York to N.ewcastle. AfterwardB the R. C. refused .to tl;lke the sheep, The libelant in the mean time had sold the right of transportation of · portion of the 8heep at an advanced rate of 25 cents per head, Thl,l residue transported to Bristol, England, bYllnother steamer that sailed six days afterwards, and at:rived at nearly the same time. There was no substantial difference between the market at Bristol and at New. castle.· It 'appearing that therew8.s no market price for the transportation of sheep at Y{)rk at the thne the breach of the. charter, and there being no daUlage, that the rule of damages was (1) the actualloss Of 25 cents per head upon the rights sold; (2) upon the residue, the difference' in the. actual cost of subsequent transportation to Bristol, with the expense for keeping the sheep during the and the depreciation and difference in the market price in the mean time, If any.
Exceptions to Commissioner's Report. George o. Coffin; for libelant. B'l£tler, Stillrrian & Hubbar'd and. Wm. Mynderse,for claimant. BRowN,J. 'On the sixteenth 'of July, 1879, by a charter executed by the agents of the Rossend Castle, lhe libelant became entitled to load all the available spnee on' deck torthe transportation of sheep fro111 New York tp Tyne at five shillings per head, allowing five superficial feet to 'each sheep. The deck space was sufficient for from 800 'to 1,000 sheep.' The ship sailed on the eighth of August following.