562
FEDERAL
to interdict such an assessment as that ohvhieh the plain. tiff complains, his right is sustained by a construction to such effect, and will be defeated by the opposite construction. The act of 1875 employs the identical phraseology by which the constitution defines the grant of judicial power which congress may confer upon the inferior federal courts, and, I cannot doubt, is intended to confer the grant to the full extent authorized by the constitution. J udgment ,is ordered for the plaintiff. Nom. See 5 F:\llD. REP.
254.
LUNT
and others v.
BOSTON MARINE INS.
Co.
(Circuit Oourt, 8. D. New York. --,1881.) L MARINE INSURANCE COMPLIANCE. PROMISSORY REPRESENTATION SUBSTANTIAL
A substantial compliance with a promissory representation is suffi. cient to sustain a contract fol" marine insurance. 2; SAME-SEAWORTHiNESs-BuRDEN OF' PROOF.
Seaworthiness must be show,'l by the assured, where proof of such fact is necessary excuse the non-compliance with a promissory representation. 3. :MOTION FOR A NEW TRIAL-ExCEPTION TO INSTRUCTION-SPECIFIC OBJECTION: ' "
The failure to specify the precise point of objection, upon a broad exception to an instruction, where the latter may· very possibly have had a material influence upon the verdict, will not defeat a motion for a new trial upon the ltround that such instruction was erroneous. 4. !URINE INSURANCE CoMPLIANCE. PROMISSORY REPRESENTATION ' SUBSTANTIAL
The cargo of a vessel which had been pronounced unseaworthy was insured upon, the representation that· she was "to be repaired." Upon a new survey, ,however, it was found that no repairs were. required, and the S/.l.me were therefore not made. Beld, that the fair constructionaf the representatIOn, assuming it not to have been the statement of an expectation, but a promissory'representation, was that the vesselw&s to be put i!1 a seaworthy condition for her before the cOIl1mencflmentof the risk; and that, if ,she was in that condition when she left the port from which the cargo was insured, I
the representation was stltisfied.
'
LUlilT V. BOf:jTOH . MAlUHE INS. CO. 5. BAIIB-SJIlAWORTHINBSB-BURDJIlN OF 'pROOF. ,
.
,Held, fwrther, that the fact, of non-compliance with such representation 'iD1posed the burden of proving seawurthlneSll upon the as·
sured;-[ED.
Motion for New Trial. Beebe, Wilcox et Hobbs,. for plaintiffs. Benedict,T.aft et Benedict, for defendant. WALLAC:E, D,' J. The plaintiffs having obtained a verdict,
the defendant now moves for a new trial, ftllegingerror in the rulings of the court on the trial. , The action is on a contract for marine insurance, evidenced by a certificate, whereby the defeI),dant undertook to insure the plaintiffs for $3,000. on a cargo of potatoes on board the schooner Lacon "at and from Yarmouth (Nova Scotia) to New York city."At the time the insurance was effected the vessel was at Shelburne,. to which port she had put in leaking and· in distress. A Burvey was ordered at that port, and the vessel was pronounced unseawprthy., By an arrangement between underwriters, who had humred the cargo, and the plaintiffs, the insurance was cancelled, and plaintiffs were paid $2,000. . They theJ;'eupon ,applied for new insurance to .agents of the defendant. The defendant's agents refused to insure ,the cargo from Shelburne, but agreed to insure from Yarmouth, to whioh port the vessel was to proceed from Shelburne. The action was defended upon the theory that the plaintiffs, represented ,that the vessel should be repaired at Yarmouth, and no repairs made; also upon the ground of conooallDent and of unf;leaworthiness. It was not clahned upon the trial that there was a warranty in reference to the repairs, but that there was. a promissory representation made orally, and in the application for insurance, that the vessel.was "to be repaired at Yarmouth," Evidence was given by the plaintiffs tQat upon the vessel's a new survey was had, and it was found arrival at, that no repairs were required. The. court upon ruled that the defence of concealmf:\nt.could notbe predicated upon the fltiln+eof the plaintiffs to disclose the fact of survey at Shelbprne,,or the cancellation of the previQus·:insurance,
564
PEDERAL REPORTER.
because the law implied a warranty of seaworthiness; and the underwriter is presumed to rely upon the warranty, and the applicant for insurance need not proffer any disclosures to the prejudice of the ship's seaworthiness, and ruled that the cancellation of the outstanding insurance was a fact extrinsic to the risk. The correctness of this ruling is not contested on the present motion. The court also ruled that if, when the ship arrived at Yarmouth and was examined, it was found no repairs were needed, and no repairs were in fact necessary, but the vessel was in a seaworthy condition for her voyage, the defendant could not prevail upon the defence of a non-compliance with the representation; that the fair construction of the representation, assuming it not to have been the statement of an expectation, but a promissory representation, was that the vessel was to be put in a seaworthy condition at Yarmouth for her voyage before the commence:' ment of the risk j and if when she left Yarmouth she was in that condition, the representation was satisfied.', To 'this ruling there was an exception, which: is now insisted on. , There was no conflict of testimony as to· the'te1'rris of the repteseritatlon, and no evidence·of usage respecting the meaning oithe used. It was therefore the duty of' the court to decide ,as: 'a matter of legal construction what was the force and effect of the representation. The' representation ;Was 'that the vessei "was'to be repaired, "'without specifyingthe character or extent of the repairs. 'Nothing had been stated between the parties as to what repairs shonldbe made. In the negotiations there had been nothing mentioned regarding the condition of the ship' except that she had put into Shelburne in distress, and leaking. If the particulars of her mishap had been further specified, this circumstance might have qnalifted and characterized the meaning of the language used. The insurers ,were informed in substance that the vessel was not in a seaworthy condition. This information having been given, the insurers could not rely upon the implied warranty of seaworthiness, and insisted , on an assurance that she would be repaired at Yarmouth, where the risk was to commence. The plaintiffs were not
LUNT V. BOSTON MARINE INS. CO.
iS65
the owners of the vessel, and could not be expected to have any voice in repairing her beyond the immediate necessities of the situation. Under these circumstances the inference seems almost irresistible that such repairs were contemplated as would render her seaworthy for the voyage, and when the insurance should take effect, and that any other repairs were a matter of indifference ,to the patties. I do not understand' it to be contested that if the representation was properly construed it was error to rule that there was not a breach of the representation; but if this is con· tended, I thin,k· the defendant cannot maintain its contention. It is not necessary to refer to the strict rules which require a warranty to be fulfilled. ·As to representlitions,' more lib.' eral rules obtain. In De Hahn v. Hastl'ey, 1 T. R. 343, Lord Mansfield said:' "A representation may be equitably. and substantially an·' swered, but a warranty must be strictly complied The two cases most frequently· referred to in 'illustration df' 'the rule are Suckleyv. D8lajieU,'2Caine's'Rep'. 222,' and PbJw80n v. (Jowp.785. ,: ' ," i : In Suckley v. Delafield, where the representati6n'wRsthat' the ship would sail "in a few daytl for the West Indies,lin ballast/' it was held to mean the vessel would not be ;exposEid to the sea' perils attending a IQaded 'ship, snd was' shbstan.) tially performed, although'the master secretly conveyecf into the ship and transported: a: small qnantityof merchandise, /. In Pawson v. Watson, Bupra, that the ship wasta sail with 19 guns and ,20 men; 'She sailed with 10 guns and 6 swivels, and with 16 men and 7 boys. It was held that as the represtlntation had not been departed from fraudulently, nor in a manner detrimental to the underwriter, the policy was in force. The elementary writers are unanimous to the' effect that it is sufficient if pro,mi,ssory representations are substantially complied with. Mr. Arnould states the doctrine thus: "When it appears reasonable to conclude, from the whole cumsfances of the case, that the failure to comply with the strict terms of the representation has not substantially altered
FEDERAL REPORTER.
will not discharge the undercontract." on Ins. 523. If it were repre,that; a. vessel should sail with convoy, or a certain {trmament, and peace be proclaimed before the voyage comit would be manifestly unreasonable to exact the performance of this representation as a condition of the underwriter's liability. Duer on Representations, 89. In Duer on Ins. 102, (Lecture 14:, § 36,) it is stated: uThere ,exists, .however, in regard to representations; this necessary exception: When they cease to be material before the risk commences, by an entire alteration in the state of things that led to their being made, and from which alone they derived. their value, a compliance with their terms is no longer requisite." In the present case it is to be assumed the jury found that after an. examination at Yarmouth it'was evident no repairs were needed, and the vessel was in a fit condition to 'proceed upo.n her voyage. This being so, it would seem too plain to doubt that neither the interests of the insur,ers north,e fair purport of the promise required that to be done by the plaintiffs which wouldqhave been superiluQua and·fuWe., It is alfilo contended that the court erred in instructing the jury that the bUl'den of proof was upon the defendant to the unseaworthiness of the vessel. If this instruction had been limited to that branch of the defence which upon a breach of the implied warranty of seawo.J:'thiness, I should; be disposed to adhere to it now as cop-ect. It is, everywhere conceded that in every policy of insurance on a vessel there is an implied warranty that the vessel is seaworthy, but many of the authorities declare that this warranty is a ,precedent to the obligation of insurance; and as the general rule is undoubted that the perforIll:ance of a condition precedent must be pleaded and proved whenever it enters into the cause of action, the application that rule to actions for marine insurance seems consisten;, and has therefore been enforced. On the other band, it would seeIU to tpe reasonable presumption of fact that a ship is seaworthy, in the abse:nce of any circumstances
LUNT V. BOSTON
JNS. CO.
D67
indicating the contrary j and as it is quite unnecessary to make proof of facts which will be assumed to exist in the of proof, it has been held in many cases that the onus of proving unseaworthiness is on the party thata.lleges it,. Out of this conflict of opinion the.commentators hav'edeJuced still another, which has been approved by high authority, but never adjudged.when necessarily under consideration in the particular case. Mr. Justice Duer, in Mose1' v. Sun 1lfut. Ins. Co. 1 Denio, 176,say8 the true rule deducible from .a full comparison of the cases appears to be that stated b; Mr. Arnould,(2 Arn. on Ins. § 447, p.1345:) ,"The assured is bound to aver ,and prove tllat the ship was seaworthy when risk commenced, but the proof to be given by him in the first need not be paclicu1ltr. and full. Although 'Slight and general, if not 90ntradicted it is deemed sufficient, .and when given it shjfts ,the burden upon the underwriter/' Mr. Phillips, after stating that, seaworthiness is said,to be presumed'in divers cltselif, "Wl;lether, however, it ieto be proved in the first by the assured, or is· to be pre.Bumed, is usually of very littW practical importance, since 'the proof required in .is necessarily only of a <lharacter, and may ordinarily be readily had." 1 on: Ins. § 724. In the present caSe, where.the t.estimony left the fact in grave doubt, the unsatisfactory characte.r of this middle view.is well illustra-ted., The burden was on the one side or the other to overcome a pres\lmption, either of law or of fa-ct, and the court W1l.B requi1:edto decide where the burden rested; and in a doubtful case like this the ruling might well be decisive with the jury. If the onus is shifted from, the plaintiff to the defendant, when the former has given "slight and geueral proof" of seaworthiness, it would seem to, be shifted back again when the latter ha-s given proof which is more cogent, and thus the court would· be required to,determine a of fact upon conflicting evidence before instructing the jury upon a question of law. .It is a. saier rule, because capable ot a certain application, to ,hold ihatthe one party.or Qtb,er .hl;tsthe onu8/of ; , .r There are .twocaaes in the federalcoul'ts .which
568
to great consideration, because of the learning and eminence of the judges before whom they were tried, where the question was directly considered, and instructions to the jury were delivered; but, unfortunately, they are in direct ant'agonism. Mr. Justice Story, in Tedmarsh v. Wash. Ins. Co. 4 Mason, 440, instructed the jury that the burden of proof to establish seaworthiness was upon the assured, while Mr. Justice Curtis, sitting in the same circuit, in the later case of Bullard v. Roger WiUiamslns. Co. 1 Curtis 148, instructed the jury-that the burden of proof was upon the insurer. The English cases favor the conclusion that seaworthiness is assumed as a fact, in the absence of countervailing facts, and therefore that the assured is entitled to the benefit of the presumption. Watson v. Clark, 1 Dow, 386; Parker v. Potts, 3 Dow, 23. And in the recent case of Peck'Up v. Thames Ins. Co., decided by the high court of appeals in 1878, (L. R. 8 Q. B. Div.594,) all -the judges agree that the presumption of law is prima facie in favor of seaworthiness, and the burden of proof to the contrary is on the insurer. That was an action on a policy, and it was proved on the trial that the vessel put back from inability to proceed 11 days after she started on her voyage. The judge directed the jury that this circumstance was sufficient to shift the onus of proof from the underwriter, and make it incumbent on the assured to prove that the unseaworthiness arose from causes occuring subsequently to setting sail. This was held to be error, all the judges agreeing that the presumption is prima facie in favor of seaworthiness, and the burden of proof to show-the contrary upon the insurer. The same conclusion is sanctioned by the weight 6f authority in onr own conrts. Taylor v. Lowell, 3 Mass. 347; Paddock 'v. Franklin Ins. 00. 11 Pick. 227; Mye1's v. Girard Ins. 00. 26 Pa. 192; Snethen v. Memphis Ins. 00. 3 La. Ann. 474. In the present case, however, the jury were instructed that the burden of proof was upon the defendant to show unsea· worthiness when it appeared that the plaintiffs had represented that the vessel shonld be repaired at Yarmouth, and no repairs had in fact been made. It thus appeared there
STEIGER
V. THffiD
-NAT. BANK.
569
had not been a compliance with the representation, and it then devolved upon the plaintiffs to excuse their non-compliance. This they attempted to do by proof that the vessel was seaworthy and needed no repairs. The plaintiffs held the affirmative as to this. The instruction imposed the affirmative upon the defendant. The manifest tendency of the instruction was to mislead the jury. Had my attention been specifically directed on the trial to the point now made, the instrurAiion would have been limited to the issue arising upon the implied warranty of seaworthiness. As it was, a broad exception was taken to the instruction, which would probably be unavailtng upon a bill of exceptions for failure to specify the precise point of objection. But on a motion for _ 'new a trial, and when the misdirection may very possibly have had a material influence upon the result, a technical criticism of the exception is out of place. The motion for a new trial is granted.
STEIGER and others v. TmRD NATIONAL BANK·
April 18, 1881.)
Under the statutes of Missouri a factor is not authorized to pledge the consignor's goods for an amount beyond the sum of the advances and charges thereon. 2. 8AME-CONVERsION-TENDER.
In such case a tender of the advances and charges must ftrst:be made by the consignor before suit can be maintained for the version of the goods.-[ED -
Demurrer to Answer. George A. Madiill and Henry E. Mills, for plaintiff. Overall,Judson et Tutt, for defendant. TREAT, D. J. The plaintiffs aver that they shipped'certain chattels (described) to their factors in St. Louis for sale; that said factors, without plaintiffs' consent, pledged the same to with full on the part of the defend-
