Gilfert v. Hallet

2 Johns. Cas. 296

• Court: New York Supreme Court
• Decided: July 15, 1801
• Status: Published

Opinion

Kent, J.

delivered the opinion of the court. Staying an unusual and unnecessary time at a port will amount to a deviation ; (Park, 295;) but I cannot say that this was the case with the vessel in question at Barracoa.(

a) The object of the voyage to that place was the sale of the cargo, and the supercargo made endeavors, but to no purpose, to effect a sale. From the facts found, we cannot now intend any unreasonable delay or negligence, on the part of the assured, at Barracoa. We are to consider the supercargo as having tried, from week to week, to sell the cargo, even by retailing it in small parcels ; and that *his long stay there was not singular nor probably unusual, since about twenty sail of American vessels tarried there nearly as long as the sloop Two Friends.

Nor do I consider that the breaking bulk at Barracoa put an end to the voyage or terminated the risk.(b) In respect to the plaintiff’s cargo, there was no breaking bulk. But what takes this case out of those that have been cited, (Park, 4th ed. 206 ; Still v. Wendell, 6 Term Rep. 531; Millar, 126,) is the special stipulation in the policy, that the adventure was to continue until the goods were safely landed at Barracoa, and one or two ports on the north side of Cuba.

It was evidently the intention of the parties to make this a trading voyage, and that the vessel might go from Barracoa to one or two ports on the north side of Cuba, disposing of the cargo by retail, as the vessel proceeded, within the prescribed Course. If the breaking bulk at one port was to put an end to the risk, the language of the policy would have been different. It would have been expressed that the adventure was to continue until the goods were landed at Barraeoa, or other port of discharge on the north side of Cuba. This is probably not an unusual provision in our policies of insurance, for in the cause of Smith v. Bates and Waterbury, which was on a policy to a market in the West Indies, and which was tried at the New York circuit, in 1795 ; it was shown to be the mercantile usage and sense on the subject, that on a policy to a market, the vessel might go from island to island until the whole of the cargo was sold, without being chargeable with a deviation.(a)

The other stipulation in the policy to return two and a half per cent, if the voyage ended at Barracoa, confirms the opinion that Barracoa was not understood to be, at all events, the terminus of the voyage, and the liberty to touch, which, had it stood naked and unexplained in the policy, could not have extended to a liberty *to break bulk, must mean leave to trade, and that too subsequent in the order of time to the arrival at Barracoa.

I see nothing, therefore, either in the stay or in breaking bulk, to prevent the plaintiff from recovering. Nor did the stay of three days before and off the -harbor of duibera,amount to a deviation. It was not an unreasonable delay or deviation, in seeking for a market, considering the nature and circumstances of that coast, and the character of Che natives»

So while the vessel was on her way to the Savanna,- the' departure to the island of Nassau arose from necessity ; from adverse weather which weakened the vessel, exhausted the necessaries of life, and the strength and competency of the crew.

The only question then is this, was the voyage broken up, so as to justify an abandonment on the arrival of the vessel at New Providence ? The whole cargo of the vessel amounted originally to 16,000 dollars and only a small parcel, probably not amounting to a third of the cargo, was sold at Barracoa. A great quantity of goods and 4780 dollars in cash: were lost by the act of the pirates, so that the net amount of the whole cargo remaining, when the vessel arrived at Providence, did'not exceed 3701 dollars. Considering the vessel was injured and the necessaries exhausted, owing to the state of the winds and sea, and the cargo so greatly diminish-' ed by the piracy, I think the voyage may be deemed to have been broken up, and not worth pursuing. The expense of pursuing it, would have exceeded the benefit arising from it. (2 Burr. Rep. 1269. 1 Term Rep. 615.) The remains of

the cargo could not justify the re-equipment of the vessel, and a continuance of the voyage; and the jury were warranted in finding a total loss.

We are, therefore, of opinion that the motion be denied.

Rule refused.(a)

(a.) [Old note.] See Earl v. Shaw, 1 Johns. Cas. 313. Smith v. Surridge, 4 Esp. N. P. Rep. 95 ; and Suydam and another v. Marine Insurance Company 3 Johns. Rep. 138.

(6) [Old note.] See Rain v. Bell, 9 East’s Rep. 195.

(a) [Old note.] See Maxwell v. Robinson and another, 1 Johns. Rep. 333

(a) See the note to Patrick v. Ludlow, infra, vol. 3, p. 10.