General Mutual Insurance Company v. Sherwood

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.

It was an action of assumpsit brought by Sherwood against the General Mutual Insurance Company, upon a policy of insurance, dated New York, 17th of October, 1843, by which the company insured Sherwood to the amount of $8,000, for the account of whom it might concern, loss payable to him, upon the brig Emily, from the 17th October, 1843, at noon, until the 17th October, 1844, at noon, the vessel being valued in the policy at $16,000.

This policy was effected for the benefit, and to protect the interest of Frederick Sherwood and Abraham Sherwood, part owners of said vessel.

On the 13th March, 1844, the brig sailed from Charleston with a cargo of merchandise, bound for New York, being at the time provided with a skilful and experienced master, experienced and skilful mates, and a competent crew, and was in all respects seaworthy for the voyage.

About 5 o'clock in the afternoon of Tuesday, 19th March, a licensed pilot boarded them, and took the command and management of the vessel. The wind being unfavorable, the brig ran, closehauled, heading north and north by east, until the pilot considered himself up to the point of the Romer Shoals; he then tacked and stood in for Sandy Hook, heading to the southward and westward, closehauled. Between 7 and 8 o'clock at night, the pilot gave orders to go about; in attempting to execute this order, the brig misstayed, and the pilot then gave orders to wear ship. At this time, and whilst in the act of wearing, being very close to the shore, the rigging of the vessel having become entangled, and the crew being occupied with the manoeuvring of their vessel, the first mate, who was on the top-gallant forecastle, saw a schooner very close to them. Confused by this sudden appearance, his attention in keeping a sharp look-out having been distracted by his attending to the working of the vessel, he, in this sudden emergency, exclaimed, 'Helm hard down! luff! luff!' The man at the wheel obeyed, and almost instantaneously the brig struck the schooner, which proved to be 'The Virginian,' bound from Norfolk, with a full cargo of merchandise, for New York. The order given by the mate to 'luff,' was erroneous.

The brig Emily was injured by the collision to the amount of $300; the schooner Virginian was so much injured that she sunk, and with her cargo was totally lost.

On the 26th March, 1844, the owners of the schooner filed their libel in the District Court of the United States for the Southern District of New York, against the brig Emily, claiming that she was specifically liable for the loss and injury occasioned by the libel.

The owners of the Emily filed their answer, denying that the collision was occasioned by the fault of those in charge of her, and imputing the blame to the crew of the Virginian. On the 12th October, 1845, the cause was brought to a hearing, and witnesses examined on both sides.

On the 22d April, 1845, Judge Betts pronounced his opinion to be, that the brig Emily was to leeward of the Virginian when the latter was first seen; that no sufficient and proper look-out was kept on board her at the time; that the intermission, for the moment, of their precautionary vigilance on board the Emily, might very naturally spring out of a confusion likely to arise from the failure of the vessel to come round to the wind, her dangerous proximity to the shore, the entanglement of some of the running rigging which impeded her manoeuvre, and the distraction these circumstances were calculated to produce in the attention of the mate, who, at the moment, appeared to have been the only one acting as look-out forward; but that these circumstances did not relieve the vessel from maintaining these precautions, and from the consequences of the omission to do so; and the Judge accordingly held, that the collision occurred by the negligence or fault of the brig. He decreed in favor of the libellants for the value of the schooner Virginian, and of so much of the cargo as belonged to her owners. It was referred to the clerk to ascertain and report the amount of the loss and damage. The cause came on to be heard on the 3d of June, 1845, upon the clerk's report and exceptions thereto. The court ordered and decreed, that the libellants recover their damages by means of the premises, viz. $5,250 90/100, with their costs, and that the brig Emily be condemned for satisfaction thereof; the libellants' costs were taxed at $704 90/100. On the 3d July, 1845, the owners of the Emily appealed to the Circuit Court of the United States for the Southern District of New York, and in November, 1846, the appeal was argued before Mr. Justice Nelson.