John McLean

“ The cases relied on by the plaintiff, tend to establish merely this doctrine, that the implied warranty of seaworthiness relates only to the commencement of the voyage, so that if complied with, the contract still subsists, though there be subsequent unseaworthiness, which might have been repaired. They do not sustain the doctrine, that if a loss happened from such unseaworthiness, the insurers will be liable for that loss, however they might be for one arising from any other cause. ”

“ A representation to obtain an insurance, whether it be made in writing or by parol, is collateral to the policy; and as it must always influence the judgment of the underwriters, in regard to the risk, it must be substantially correct. ”

“ And, if a vessel so circumstanced be lost, with or without the occurrence of a new peril, which would not have proved fatal to her but for the omission to repair the damage, the subsequent loss is not one by a peril insured against. Thus, if a vessel be strained, and arrive at a port where repairs can be made, the expense of such repairs is the amount of the loss. The peril and its legitimate consequences have terminated. If she sail without repairs, and founder in smooth weather, the foundering is not by a peril insured against, for there was none at the time. ”

“ It is suggested in reply, that if he knew the actual extent of the injury, he must make only such repairs as are reasonably required. If he make more, the insurers will not be answerable for the excess; and in case of controversy, a jury must pass upon the propriety of his proceedings. If, on the other hand, the extent of the injury or its probable consequences be doubtful, it is better for the interest of all that they should be ascertained, at any expense short of a total loss; than that a further one of property, and it may be of life, should be hazarded. ”

“ No perfect rule, infallible for the protection of both parties, can be prescribed; but that which places the responsibility of honest discretion and reasonable care upon the insured and his agent, must be far less liable to abuse and to produce injury and injustice, than that which exonerates them from all responsibility whatever. ”

“ The court, in their instruction, did not lay down the rule broadly, that a destruction by worms was not within the policy but the jury were told, that if, 'in the Pacific occan, worm ordinarily assail and enter the bottoms of vessels, then the loss of a vessel destroyed by worms, would not be a loss within the policy.' In other words, if the vessel was lost by an ordinary occurrence in the Pacific ocean, it was loss against which the underwriters did not insure. In an enlarged sense, all losses which occur from maritime adventures, may be said to arise from the perils of the sea ”

“ The vessel was engaged in the slave trade, and the destruction was produced by her lying in the rivers in Africa. Her death wound was received during that time. But in this case the injury from worms took place while the ship was on the high seas, in the regular prosecution of the voyage insured. The loss was the consequence of her navigating the Pacific ocean. The destruction was not from the age of the vessel, but by a cause which operates on new well as old ships.
The authorities upon the law of insurance do not sustain the position laid down by the circuit court in the charge to the jury. ”

“ From the imperfection of human nature, it must be anticipated that the perils insured against will thus sometimes occur, and it is not unreasonable therefore to consider them as comprehended in the contract; whereas a neglect or voluntary omission to make necessary repairs is not accidental, nor to be anticipated, but is like any other omission to fulfil a contract, the consequences of which must fall upon the guilty party. ”

“ If the plaintiff's doctrine be sound, then, as it took two years after the happening of the peril for the worms to complete the destruction of the vessel, she is to be considered as having been kept, for that time, under the perpetual and incessant operation of the consequences of the peril, by the mere will or neglect of the insured, at the hazard of the underwriters.
If the master, by his omission to make repairs while in port, may render the insurers liable for a subsequent loss at sea, happening by reason of their omission ”

“ An implied warranty is in the nature of a condition precedent to the inception of the contract, without the performance of which it never takes effect. The duty of keeping the vessel in a seaworthy state is a continuing obligation, consequent upon the contract; the breach of which will not destroy it, though it will visit upon the insured the consequences of such breach. ”

“ The comments of the plaintiff's counsel upon the evidence to this point, are believed to be irrelevant; for the fact of the misrepresentation of a circumstance material to the risk being established, we are stopped in limine, we cannot go farther to argue what effect the want of copper upon the keel might or might not have had upon the interest, or rights, or obligations of the parties; for there are no rights, nor obligations, nor parties; there was no contract. That this rule has been universally recognized, appears by all the elementary writers. ”

“ Where a policy is underwritten upon a foreign vessel, belonging to a foreign country, the underwriter must be taken to have knowledge of the common usages of trade in such country, as to the equipments of vessels of that class for the voyage on which she is destined. ”

“ A cause cannot be said to be immediate, within the meaning of the law, where the consequence is not inevitable; but may be avoided by reasonable skill, care and diligence. To say, as is contended in this case, that the loss of the copper was the immediate cause of the destruction of the vessel, because the entrance of the worms is the inevitable consequence; is to beg the question. ”

“ If he knows that they admit two or more senses, he either knows that the party to whom they are addressed will construe them in one rather than in the other, or is bound to explain the meaning; and if he is ignorant of any meaning differing from that in which he understands them, he should abide the consequences, if the other party, honestly and without fault is misled ”

“ The court further charged the jury, that if in consequence of the injury sustained at Port au Praya, in the Cape de Verds, the false keel was torn off, whereby the vessel became exposed to the action of the worms, and that they thereby obtained entrance and destroyed the vessel, that the loss would not come within the policy; it being a consequential injury, against which underwriters are not considered as taking the risk. ”

“ That this doctrine is opposed to received opinions, is manifest from the consideration that no decided case, no judicial obiter dictum, no opinion of an elementary writer, is adduced in support of the plaintiff's position. The doctrine contended for, if established, would seem to constitute one, if not the only exception to the elementary rule, that no man shall take advantage of his own wrong. ”

“ It is asked by the plaintiff's counsel, what would have been the consequence if the question before the court had come up in the form of one of seaworthiness instead of one of construction, and it had been proved that this vessel was seaworthy for the voyage, according to the understanding of merchants in New York, though not so considered in Boston? The answer is obvious. Admitting, that in such case the insurers would be liable, because by underwriting a New York ship they must be presumed to have known, or been willing to take the risk of such preparation as is usual in that port ”

“ It is but a presumed knowledge of usage in both cases; and which, in both cases, must have the same effect on the rights of the parties. If, therefore, the rule be applicable to a case of seaworthiness, it must be equally so to a case of representation.
The underwriters are presumed to know the usages of foreign ports to which insured vessels are destined; also the usages of trade, and the political condition of foreign nations. Men who engage in this business, are seldom ignorant of the risks they incur ”

“ The plaintiffs brought an action of assumpsit, in the circuit court from the district of Massachusetts, on a policy of insurance, dated the 29th of 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. ”

“ Does not the cause of the injury exist in each sea, though in different degrees: and against which it is as necessary to guard, as to prevent the submersion of a ship, by having its seams well closed. ”

“ And if he omitted to make such repairs, because he did not deem them necessary; and if, by such neglect alone, the subsequent loss of the ship by worms was occasioned, the underwriters are not liable for any such loss so occasioned. ”