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Paddock & Field v. Commercial Insurance Company.

This being the rule of law as to damages, the custom of a particular port could not vary it. Dickinson v. Gay, 7 Allen, 29.

The contract being payable in gold, the judgment must be rendered for gold coin specifically. Bronson v. Rodes, 7 Walace, 229. Butler v. Horwitz, Ib. 258. Independent Insurance Co. v. Thomas, ante, 192. The pound sterling is to be esti mated in our coin at $4.84. Commonwealth v. Haupt, 10 Allen, 38.

It is admitted that the notes annexed to the defendants' answer, and declaration in set-off, cannot be made the subjects of a technical set-off. But each of the policies stipulates that in case of loss "all sums due to the company from the insured when such loss becomes due being first deducted, and all sums coming due being first paid or secured to the satisfaction of the president and directors, they discounting interest for anticipating payment," the loss shall be paid within sixty days after notice, proofs and adjustment of loss. The notes were not due when the action was commenced, but became due a few months afterwards. They are payable in currency, and, after finding their value in gold when they became due, that amount should be deducted from the plaintiffs' claim. If the parties cannot agree upon this amount, it must be ascertained by an assessor. The balance will be due to the plaintiffs with interest.

Judgment accordingly.

NANTUCKET COUNTY.

FREDERICK W. PADDOCK VS. COMMERCIAL INSURANCE COMPANY OF NANTUCKET.

EDWARD FIELD US. SAME.

At the trial of an action on a policy of insurance on a ship, the case was reserved for the determination of the full court, with an agreement of parties that if upon the evidence the jury would be warranted in finding a verdict for a total loss, judgment should de rendered for the plaintiff; if the plaintiff was entitled to recover for a partial loss, the amount thereof should be ascertained by an assessor; and if the jury would not be waranted in finding a verdict for either a total or a partial loss, the plaintiff should become

Paddock & Field v. Commercial Insurance Company.

nonsuit. The full court held that the plaintiff was not entitled to recover for a total loss ; but was entitled to recover for a partial loss, if it could be shown that the ship sustained damage to a certain amount upon a certain voyage; and the case was referred to an assessor to determine that question. Held, that at the hearing before the assessor, or before the court on the return of his report, it was not open to the defendant to contend that the partial loss was merged in a subsequent total loss; nor to the plaintiff to claim a general average loss.

Upon the question of the amount of an injury caused to a ship by perils of the sea, evidence of what it would cost to put her in repair at the end of the voyage, without reference to the causes which made such repairs needful, is incompetent.

In an action on a policy of insurance upon a ship, the plaintiff is bound to offer evidence by which injury by perils of the sea may be distinguished from defective condition arising from wear and tear and other ordinary causes.

The findings of an assessor in matters of fact may be revised by the court upon exceptions thereto and his report of the evidence introduced before him; but, especially when they depend upon a conflict of testimony, are not to be set aside unless clearly shown to be

erroneous.

The finding of an assessor, in accordance with the opinion of competent experts testifying before him, upon a question of fact referred to him, is not invalidated by his stating in his report that "it is of course impossible to determine this question with anything like certainty."

Under a policy of insurance upon a ship, which provides that the insurers shall not be liable for a partial loss, unless it shall amount to five per cent., successive partial losses by distinct gales or storms upon different passages cannot be added together to make up the requisite five per cent.; and the burden of proving a partial loss amounting to five per cent. from one gale or storm is upon the assured.

When a ship cannot be fully repaired at a port of distress, the needful temporary repairs to enable her to proceed on her voyage, as well as complete repairs made at a subsequent port, are subject to the deduction of one third new for old, in computing the amount of a loss under a policy of insurance.

ACTIONS OF CONTRACT upon two policies of insurance made by the defendants on October 7, 1851, one to the plaintiff Paddock in the sum of $5000, and the other to the plaintiff Field in the sum of $3500; and each against the usual perils upon the ship Rambler, valued at $15,000, and outfits valued at a like sum, on a whaling voyage from Nantucket to the Pacific Ocean and elsewhere and back to Nantucket; and containing this clause: "Provided, that the insurers shall not be liable for any partial loss on hemp and flax, unless the loss amount to twenty per cent. on the whole aggregate value of such articles; nor for any partial loss on sugar, flaxseed, bread, tobacco and rice, unless the loss amount to seven per cent. on the whole ag gregate value of such articles; nor for any partial loss on salt grain, fish, fruit, hides, skins or other goods that are esteemed

Paddock & Field v. Commercial Insurance Company.

perishable in their own nature, unless it amount to seven per cent. on the whole aggregate value of such articles, and happen by stranding; nor for any partial loss on other goods, or on the vessel or freight, unless it amount to five per cent.; exclusive, in each case, of all charges and expenses incurred for the purpose of ascertaining and proving the loss; but the owners of such goods shall recover on a general average." The two cases were tried and argued together throughout.

At the trial before the jury, at July term 1860, the plaintiffs introduced evidence of the following facts: The ship sailed from Nantucket October 23, 1851. In September or October 1854, she put into the Sandwich Islands to transship her oil and refit, and was there refitted and repaired, and left those islands in a seaworthy condition in all respects. About May 30, 1855, she encountered a heavy gale, (which continued for twenty-six hours,) and lost three boats, but proved tight and staunch. About the last of August 1855, while on the Japan cruising grounds, she met another gale, which continued for three or four days, with very bad seas and weather, such as would strain a staunch and seaworthy ship. During this gale she sprang a leak, the place of which could not be found until she got into port. The men were kept at the pumps one hour out of every six till she got into Lahaina in the island of Maui, October 5, 1855. There the master called a survey, and the leak was found in the scarf of the stem, where it laps upon the keel. The stem had started from the strain. The stem was refastened, the leak caulked and nearly stopped, and the ship rendered seaworthy for the voyage, though she still leaked three or four hundred strokes an hour. After receiving these repairs, she put to sea, and eight or ten days out encountered strong trade winds, which increased to a gale, with heavy cross seas. All hands were put to the pumps, and the try-works were thrown overboard to lighten the ship. The gale lasted three or four days; the casks were broken out; and a leak was found in the garboard seam, on the port side abreast the foremast, and was nearly stopped. The scarf of the stem and the keel re mained as when the ship left Lahaina, leaking somewhat. Th.

Paddock & Field v. Commercial Insurance Company.

new leak in the garboard seam increased or diminished accord ing to the sail carried on the foremast. Both pumps were kept going till the leak was found and partially stopped. The crew forced the master to put away for the Navigators' Islands, and the ship arrived at Apia on one of those islands, December 5, 1855. The officers and crew called a survey; the ship was condemned, and was sold by the consul; the master protested against calling a survey, and against the condemnation and sale. The ship then had on board a quantity of oil and bone, partly of her own catchings, and partly taken on freight at the Sandwich Islands, which the master immediately after the sale of the ship took out and put on board another vessel. Just as this transshipment was completed, a heavy gale sprang up, and both vessels were wrecked and broken up. The bone and oil were saved and stored. The consul afterwards instituted what he called an admiralty court, and had the whole cargo seized, confiscated and sold, and the proceeds distributed among his officials and other persons on the island.

The defendants contended that upon the evidence introduced by the plaintiffs they were not entitled to recover as for a total or partial loss; and the case was reported, at the request of the defendants and with the assent of the plaintiffs, by Merrick, J., for the determination of the full court, with the agreement that if upon the evidence the jury would be warranted in finding a verdict for a total loss, judgment should be rendered for the plaintiffs; if the plaintiffs were entitled to recover only for a partial loss, the amount of the same should be ascertained by an assessor; and if the jury would not be warranted in finding upon this evidence a verdict for either a total or a partial loss, the plaintiffs should become nonsuit.

Upon that report, the court at January term 1861 held that the plaintiffs were not entitled to recover for a total loss of either vessel or outfits, nor for any loss of that part of the outfits which had been converted into catchings; but 'were entitled to recover for a partial loss on the vessel, if it could be shown that she sustained damage to the amount of five per cent. before her arrival at Apia; and referred the case to Henry W

Paddock & Field v. Commercial Insurance Company.

Paine, Esquire, as an assessor, to determine that question. 2 Allen, 93.

At July term 1865 the assessor made his report, which stated the history of the voyage, and the subsequent proceedings relating to the ship and cargo, substantially as above; and the material parts of the residue of which were as follows:

"It was proved that the harbor of Apia was ordinarily a safe one, that vessels of the size of the Rambler could there be hove down, and that workmen and materials, except copper, could there be obtained.

"The plaintiffs produced the depositions of three experienced shipmasters, who had been at Apia, and also at Sydney in New South Wales, and had had opportunities to know what facilities there were at each of those places for the repairing of ships, aud what would be the expenses attending such repairs; and these deponents were asked, assuming the history of the voyage and the condition of the ship to be as before set out, whether the Rambler could have been thoroughly repaired at Apia, whether she could have been there so repaired that she might safely proceed to a port where thorough repairs could be made, what was the best and most accessible port where the vessel could be thoroughly repaired, what would be the cost of temporary repairs at Apia, and what the cost of thorough repairs at the best and most accessible port where these could be obtained. The defendants objected to these questions; but the objections were overruled and the questions were answered.

"There was no evidence showing or tending to show any specific damage sustained by the ship, except that in the scarf of the stem and that in the garboard seam; or what would have been the cost of repairing either.

"It was proved that, to render it prudent and safe for the ship to proceed on her voyage, it would have been necessary to strip the garboard streak, refasten and recaulk it; that this might have been done at Apia after discharging cargo and heaving the ship down; and that the expense, including the cost of procuring the money, would have been $3125. These repairs would have rendered it safe for the ship to proceed to Sydney, where thor

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