Fontaine v. Phœnix Insurance

10 Johns. 58

• Court: New York Supreme Court
• Decided: January 15, 1813
• Status: Published

Opinion

Per Curiam.

A ship, tobe seaworthy when she sails,'must, among other things, be provided with all necessary stores for the voyage. From the deposition of the mate, it appears very clearly, that the brig Elisa was not duly provided with the essential articles of firewood and oil, or candles. The great distress arising from the want of these articles, evidently retarded the voyage in the Bay of Biscay. She could not carry full sail at night, from the difficulty of seeing the compass; and if the weather had been dark and tempestuous, she would have been exposed to the greatest danger. She likewise kept wearing arid tacking, in order to meet some vessel to relieve her distress; and her object, for some days, was rather, searching for relief, than making the best of her way directly, diligently, and with full sail, for her port of destination. She lingered and delayed her voyage, in the Bay of Biscay, without any cause, other than what was imputable to the negligence of the master or owners.. No reason, is given why those articles failed; nor is it shown that she was duly supplied when she left port. It is unreasonable and unjust that the underwriters should be exposed to losses arising from such gross negligence in fitting out the ship. It is very probable that if the vessel had been seaworthy, she might have escaped the capture; and the verdict, on this point, is too plainly against . evidence to be supported,. ;

New trial granted, upon payment of costs.