Fleming against The Marine Insurance Company. New Trial, 3 Watts & Serg. 144

The opinion of the Court was delivered by Gibson, C. J. The only material questions raised by these reasons for a new trial, are: Was the master’s protest properly rejected in the first instance; and was there, without it, any evidence at all to support the allegation of loss from a peril of the sea 1 In all beside, the reasons are either immaterial or unfounded.

That a mariner’s protest is competent evidence of the facts set forth in it on the trial of an insurance cause, is an anomaly peculiar to the law of our own state; for it is elsewhere only one of the preliminary proofs of loss which the assured is bound, by custom or the terms of the contract, to furnish the insurer before compensation can be demanded. And it is one which has its root in an imperfect note of an erroneous decision of this court at a time when its bench was not occupied by judges bred to the law. I believe that neither of the judges who ruled the point in Nixon v.

Long, (1 Dall. 6), had been admitted to the bar; yet their decision, wrong as it palpably is, has been followed till it has become too deeply seated in precedent to be. abruptly eradicated. This is remarkable; because the error was not merely speculative, but mischievous in practice. A protest is

an act of the master and some of his people, all of whom are answerable to the owners for negligence, where it has existed; and it is consequently their interest to saddle the insurers with the consequences of it. In any circumstances, therefore, it is a dangerous sort of evidence; and the principle of Nixon v. Long, if not overruled, must be restrained to protests regularly made. But the course to be pursued on the vessel’s arrival at her port of destination, has not been particularly defined.

It has been said by Mr Weskett, under the head of protest in his digest of the law of insurance, that this document had become, in his day, a matter of form in which it was the practice to recite any foul weather that had been experienced, and any trifling sea that had been shipped, on a supposition that it was necessary to do so in order to free the master from liability for contingent damage to the cargo—certainly no very great recommendation of a protest as an instrument of legal proof.

Originally the practice was to protest in 24 hours after the vessel was moored; and in this instance the protest was noted within that time, but it was not extended till the 17th day, when it was decisively too late. The act bears date on that day, and as a whole it is referrible to no other; for it is a mistake to suppose that a protest noted in time may be extended at any time after-wards. The better opinion seems to be, that it must be made, and consequently completed, if not within the 24 hours, yet certainly before the goods have been landed, or the condition of the cargo has been ascertained.

Such, at least, was the ordonance of France, which precluded the master from alleging, after delivery of the goods, any other accidents than those mentioned in his protest ; and which, as it tended to lessen the master’s temptation to collude with the consignee, seems to have been founded in principles of general jurisprudence. The noting of a protest, therefore, must not be taken for the material part of it, because it would still leave the framing of it open to be influenced by the condition of the goods when sent on shore.

The practice seems to have originated in the port of London, where shipmasters seldom did more in the first instance than have their intention to protest noted, or entered as they at first called it, before a notary public, instead of giving notice, according to the practice of Hamburg, to the consignees, importing a fear that the cargo was injured, and inviting them to inspect the stowage of it before it should be discharged. Such is the origin ascribed to the practice of noting by the writer already quoted; and it is obvious that it is open to be abused.

In the instance under consideration, the master swears that the extension was procured from him, against the dictates of his judgment, by the importunity of the consignee. As, then, the act of protest was not concluded till the goods were landed, it was properly rejected as a document to show the cause of the loss; and was there any other proof to supply its place ? The sum of the evidence is, that the packages were found to be wet in the custom-house store; and the legal presumption of innocence negatives the gratuitous imputation of foul play by the consignee and custom-house officers.

The bill of lading, too, is prima facie evidence that the goods were taken on board in good condition : so that the question is, whether the naked fact that they were damaged .by’the contact of sea-water, is evidence of a loss from a peril of the sea within the meaning of the contract. From the language of the books, it would seem that an opinion has sometimes been entertained that there is a distinction between those perils which are extraordinary, and those which are only ordinary.

A loss by an immediate act of God, such as a tempestuous state of the weather, or by unforeseen causes, such as shoals or collision, which human sagacity or force could not prevent, certainly belong to the former; but such as happen when the elements are propitious and in a clear'sea, have been thought to be excluded from the range of the policy.

But this distinction, if it ever existed, has been nearly, if not altogether, obliterated by the later cases in which it has been held that any damage from the immediate impulse of the winds or the waves, in whatever degree of excitement, is a proper subject of indemnity; for instance, damage from collision even by the negligence of those who had the injured vessel in charge.

Still, may not a cargo become wet with sea-water by the agency of causes with which the winds and waves have no connexion 1 The contact may be produced by bad stowage, defective calking, imperfect closing of the hatches, or want of pumping, to say nothing of rat-holes, which in Garrigues v. Coxe, (1 Binn. 592), and in no other case, have been classed with perils of the sea; and damage from any of these but the last, must, by our law, be compensated by the master or the owners.

It is expressly said by Mr Marshall in his treatise on insurance, (b. 1, ch. 6, § 4), that the master and owners are liable for damage from exposure of the goods to wet: that is, as I understand it, exposure by negligence, but not by an opening of the ship’s seams from straining in a storm or on a shoal. But it certainly assumes that damage may be done by sea-water without constituting a loss by a peril of the sea within the meaning of the policy. Now it was not sufficient for the plaintiff to establish a loss which might, or might not, have proceeded from such a peril.

It was necessary distinctly to set forth, in his declaration, the accident which was the cause of the loss, and it was consequently necessary to trace it, by proof, distinctly to the peril alleged. So. far is this carried, that a ship is always presumed to have been defective when she sailed, unless her disability be proved to have been occasioned by the perils of the voyage. (Marsh, h. 1, ch. 11, § 1).

A doubt seems to have been entertained as to the fitness of the principle in its application to the circumstances of the case which gave rise to it; but it seems not to have been doubted, that when a ship, which has not been disabled in her voyage by an accident or stress of weather, is found unable to reach her place of destination, there is a presumption that she was unseaworthy when she sailed, which it is incumbent on the assured to disprove; and the presumption ought equally to hold in a case of damage from a leak not shown to have been caused by any accident or force insured against.

What proof, then, have we that these goods were not damaged by the contact of sea-water occasioned by bad stowage, want of pumping, or defectiveness of the vessel.? We have not a particle of evidence that violence was done to the hull, or that the brig had lost a tack or a spar; and without it, the presumption is that the loss is referable to some one of the causes just mentioned. In that state of the case, there was nothing for the jury to do but find a verdict for the defendant. New trial awarded.