Janney v. Columbian Insurance Company

ERROR to the Circuit Court for the District of Columbia.

This was an action brought in the Court below by the plaintiff in error, Janney, against the defendants in error, the Columbian Insurance Company, on a policy of insurance on the brig Hunter, Grinnolds, lost or not lost, from Alexandria to Norfolk and New-Orleans; in which policy there was the following clause: 'It is declared and understood, that if the above mentioned brig, after a regular survey, should be condemned for being unsound or rotten, the insurers shall not be bound to pay the sum hereby insured, nor any part thereof.'

On the first trial of the cause, the jury, not agreeing on a verdict, was discharged; and, on the second trial, a verdict was found for the defendants, under an instruction from the Court to the following effect, as stated in the bill of exceptions:

And the plaintiff offered to prove, by parol evidence, that at the time that the said brig Hunter sailed from the port of Alexandria upon her voyage aforesaid, and at the time she was surveyed and condemned at New-Orleans as herein after mentioned, she was sound, and that the repairs of vessels, and materials of ship-building, at that place, were very high; and that the prices there would have amounted to two or three times as much as the prices would have amounted to in the port of Alexandria; and that the repairs of the said vessel, arising from the injuries which she had sustained in her voyage to New-Orleans, would not have amounted to less, in that place, than 2,000 dollars, independent of the detention of the vessel, and the other necessary expenses of the voyage. But the defendants produced, and read in evidence to the jury, a regular survey, called upon the state and condition of the vessel on her arrival at New-Orleans, by the said Capt. Grinnolds, master and part owner; and by him transmitted to the plaintiff to be laid before the insurance office as evidence of loss; and actually laid before such office by the plaintiff accordingly; and, at the former trial, read on the part of the plaintiff in evidence to the jury, in the words following:

'Port Wardens' Office,

New-Orleans, 13th January, 1819.

'We, the subscribers, the Wardens of this port, having been thereto required by Capt. Grinnolds, did repair on board the brig Hunter, commanded by him, and lately arrived from Norfolk, and, assisted by A. Seguin, carpenter, surveyed her condition. Found twenty-five feet of quarter rail, and seventy-five feet of waist boards, and the boat's david, carried away; the oakum of the break of the quarter-deck started, and also the strings and drifts; the cambouse stove, and its house carried away; the vessel was reported to have leaked much at sea. All which, therefore, according to the powers vested by law in the Master and Wardens of this port, we do hereby certify.

'(Signed,) JAMES RINKER,

E. MARCHAND,

J. M. CARTANDE.

'A true copy of the records in this office,

'GEORGE POLLOCK, Warden and Secretary.'

'Port Wardens' Office,

New-Orleans, 24th February, 1819.

'We, the subscribers, Wardens of this port, having been thereunto required by Captain Grinnolds to inspect the condition of the brig Hunter, commanded by said Captain Grinnolds, from Norfolk, did repair to the ship-yards, and assisted by Andrew Seguin and Robert Fell, ship-carpenters, and for the greater satisfaction of said master, by Captain Wayne of the ship Ariadne, and Captain Williams of the brig Maryland, surveyed her condition. We ordered one streak of plank fore and aft to be taken out, about three feet below the bends on the starboard side, and found the timbers and bottom plank so much decayed, that we were unanimously of opinion her repairs would cost more than she would be worth afterwards; and that it would be for the interest of all concerned, she should be condemned as unworthy of repair on that ground. We did, therefore, condemn her as not seaworthy, and as unworthy of repair; and, therefore, according to the powers vested by law in the Master and Wardens of this port, we do hereby order and direct the aforesaid damaged brig to be sold at public auction, for account of the insurers thereof, or whomsoever the same may concern.

'(Signed,) JAMES RINKER,

E. MARCHAND,

J. M. CARTANDE.'

'Port Wardens' Office,

New-Orleans, 22d March, 1819.

'We, the subscribers, Wardens of this port, do hereby certify, to whom it may concern, that the goods mentioned in the annexed account of sales, were sold at public auction, by our order in our presence, by Dutillet & Sagony, commissioned auctioneers, after having been advertised in due form of law; and that the said account of sales is, in all respects, just and true.

'In testimony whereof, we have countersigned the said account, and now grant this certificate as the law directs.

'(Signed,) EM. MARCHAND,

J. M. CARTANDE.

'A true copy of the records in this office,

'GEORGE POLLOCK, Warden and Secretary.

Whereupon the defendants prayed the opinion of the Court, and their instruction to the jury, that the said survey is conclusive evidence that the said vessel was condemned for being unsound or rotten; and that it is not competent for the plaintiff to produce evidence inconsistent with said survey, to prove that the said vessel was, in fact, sound at the time of such survey; and that, upon such evidence, the plaintiff is not entitled to recover under the policy given in evidence in this case; and the Court so accordingly instructed the jury, and refused to suffer the said evidence to be given to the jury. Feb. 25th.

A verdict and judgment thereon having been rendered for the defendants, the cause was brought by writ of error to this Court; and was argued by Mr. Swann for the plaintiff, and by Mr. Jones for the defendants. March 15th.

Mr. Justice JOHNSON delivered the opinion of the Court.