#### Coolidge and Oliver *against*The New-York Firemen Insurance Company.

ALBANY,

August, 1817.

A copy of the sei, certified to be a true copy i>y the collector, 3S not, on proof ting'iff'the* collector, evidence to show the in-mid!ill1‘comwírantyóilíM6' poUey1of in-grant a copy to accompany the vessel, and not to grant co-pins generally, copy given in trilíoirra ““use! Seated6 !ntb!h<> is,uiby'the’ lath to?compme" n with the ongia shi"?sntImerfpórtsrn!trmerely that she is *4-TriThobidtthif*ív!thmtheDidocuTMe?i!mvrtor ni? Uonai charac. tor«?s!!ndaUÜ ranted *freefrom, or*Amerians. *but in ca.se. of capture by either, the usual sea risks to continue,*and was captured by the British, and whi-'t detained by them, is lost inconsequt.cce os the negligence of the captors: it was held, that if the loss had arUen from a sea risk, strictly speaking, the insure^ would have been liable, but that as the immediate and cause of the loss was an act of the captors, which-if done by the insured, would have exonerated the insurer» •the insurer was in this case protected by the warranty.

THIS was an. action of *assumpsit*on a policy of insurance, on the ship *Mark 8c Abigail,*on a voyage from *Boston*to *Cadiz, 1*° *J*° underwritten by the defendants. The cause was tried before v Justice *Platt,*at the *New-York*sittings, in *December,*i p i *c*i01Ve

The policy was in the usual form of printed policies in the city of *New York,*in which the ship was valued at 8,000 lars, at four and a half per cent premium, and warranted *rican*property. The following written memorandum was joined :&emdash;“ Also warranted free from loss by the *British*or ° , Americans, but in case of capture or detention by either of the 1 v above named powers, the *usual peace sea-risks,*including cap-a r *r*7 o I ture by the *French*and *Algerines,*to continue as well during capture, as after and before; it is agreed that this policy shall endure until the cargo shall be landed.” On this policy thé' defendants underwrote 6,000 dollars.

The declaration contained two counts in the usual form; in. one the loss was averred, as followsBefore the arrival of the said vessel at *Cadiz*aforesaid, and in the due course of . a sait* voya§e? tae said vessel was, upon the high seas, near caPe *&t. Mary^s,*taken and carried as prize into the port of *Gibraltar,*by the *British*brig, or vessel of war, called the *Basilisk, George French,*commander; that the said vessel, whilst at *Gibraltar*aforesaid, was by force and violence of the winds *309and waves, and by stormy and tempestuous weather, strained, broken, damaged, wrecked, and spoiled, by means whereof she was totally lost.’’ The second count averred the loss to have happened, whilst the vessel was on the voyage insured, by perils of the sea. Among the preliminary proofs which were exhibited, none of which were objected to *as*preliminary proofs, was a paper purporting to be a register of the vessel, dated the 4th of April, 1812, granted by the custom-house at the port of *Boston*and Charlestown, which was accompanied by a certificate, dated the 3d of *May,*1814, under the hands of *H. A, S. Dearborn,*collector, and *James Lovell,*naval officer, and the seal of office, certifying that the within was a true copy of the register of the ship *Mark Sr Abigail,*as recorded in that office; that her certificate of registry, with which she cleared out at the office for *Cadiz,*on the fourth day *of December,*1812, was also a true copy of the same record, and that no change or transfer of the property in the vessel had been made at the office since the period of the clearance aforesaid.

The ship *Mark Sf Abigail*sailed on the voyage insured, on the 12th of December, 1812, ,with a cargo consisting of salted provisions, bread stuff, and lard, and was, at the time of her sailing, tight, staunch, and strong, and sufficiently fitted for the voyage. On the 20th of the month, a violent gale commenced, and there being a very heavy sea, the ship laboured much, and leaked to that degree that it was impossible to keep her free with pumps going, the water gaining two feet in the hold. It was considered necessary to lighten the vessel, and part of the cargo was, therefore, thrown overboard. The gale continued until the 30th, during all which time the ship was occasionally lightened by throwing over the cargo, and what was thrown over amounted to about one third part of the whole. After the gale had subsided; the ship still continued to leak badly, and the pumps were kept going almost continually. She continued on her course for *Cadiz*until the 24th of *January,*when she was captured by the *British*brig *Basilisk,*a prize master put on board, all hands except the captain, supercargo, mate, and cook, were taken out, and the vessel was ordered for *Gibraltar,*where she arrived on the 27th of *January,*1813. The ship was libelled in the vice-admiralty court, at *Gibraltar,*but was restored on payment of costs ; from this sentence the captors appealed, but about the 20th of April, the supercargo *310compromised with the captors, and she was liberated on the Payment of 1,000 dollars. From her arrival at Gibraltar, to this time, the captain, supercargo, and crew had not been allowed to *go*on board : when they came on board after her libe- . ° , ration, she was found to have been very much injured while in the possession of the captors, and was a mere wreck. She had been moored at the new mole in the bay of Gibraltar, a situation very much exposed, between other vessels, which had often run foul of her. On the 23d of *April,*a survey was had of the vessel, by two shipmasters and one ship carpenter, who computed the cost of repairing her, at 7,458 dollars. It was stated in the depositions of the master and supercargo, that it would have been very difficult and expensive, if not impracticable,- to have, repaired her at *Gibraltar,*(but there* was contradictory testimony as to this point,) and that it would have been dangerous to have proceeded in her from *Gibraltar*to *Cadiz.*She was then taken to *Algeziras,*in the neighbourhood of *Gibraltar,*when the cargo was taken out, and both vessel and cargo were sold. The purchasers of the vessel intended her for a store-ship, but she was broken up for fuel. It appeared that it would have been more difficult and expensive to have made the repairs at *Algeziras*than at *Gibraltar.*

During the trial, the plaintiffs called a witness to prove the handwriting of *Dearborn,*the collector of *Boston,*to the before-mentioned copy of the register of the vessel, and having proved it, offered to read it as evidence, in chief, to support the averment of interest in the plaintiffs, and the warranty of *American*property. This was objected to on the part of the defendants, but it was admitted as evidence by the judge. The defendants counsel then moved for a nonsuit, on the ground that the plaintiffs had failed to give sufficient proof of interest, but the motion was denied.

A verdict, was found, by consent, for the plaintiffs, as for a total loss, subject to a case to be made for the opinion of the court thereon.

*Colden,*for the plaintiffs.

The plaintiffs are entitled to recover for a total loss. The policy is in the usual form, except that the insurers, “ in case of capture, or detention, by the *British*or *Americans,*take upon themselves the usual peace seat-*H-isks.*Then what is meant by the usual peace sea-risks.? 'They *311are those perils which are produced by the elements without the intervention of human force, including, in this case, capture by the *French*and *Algerines.*War sea-risks are those which result from hostile force-. It will be said, perhaps, that the da*1*1 ... - mage, or loss, in this case, resulted from a war sea-risk, inasmuch as the vessel was put in a situation in which she would not have been placed, had it not been for the capture. But this could not be the meaning of the defendants, by the clause in the policy, as they had in view a capture, and provided, in that event, that they were to be answerable only for peace sea-risks. When a vessel,, insured by a limited policy, is led by a peril, not insured against, into a situation in which she encounters one of the perils against which she is insured, the underwriters are liable.*

Again; if the vessel, on her arrival at Gibraltar, was irreparable from the injuries previously received in her voyage, *.*then the insured are entitled to recover on that ground, independently of the damage she afterwards sustained at *Gibraltar.*The depositions taken in the case, show that there were no means of repairing her at *Gibraltar,*and she was broken up at *Algeziras.*[The counsel then went into particular examination of the evidence.] If the vessel could not be repaired, either for want of means, or from any other cause, so as to enable her to reach *Gibraltar,*there was a loss of voyage, which is a sufficient cause of abandonment.

It will, perhaps, be objected that the *warranty*has not been proved. It is a written warranty of *American property;*not that the vessel is an *American*ship. *Ownership,*or *property,*in a vessel, may be proved *by*parol; and *Cook,*in his deposition, proves that the vessel belonged to the plaintiffs. Exercising acts of ownership in directing the loading of a ship, *Sec.*has been held, *prima facie,*sufficient proof of ownership in a vessel.† In *Barker*v. *The Phœnix Insurance Company,**‡***it was held, that where a vessel sailed with a *sea-letter*only, that was sufficient evidence of her being an *American,*without producing a *register;*and it was admitted by the counsel for the defendants, *in*that case, that mere *ozonership*might be proved by parol»

The document produced in this case, was not properly a copy of the register, but a duplicate; the original register being deposited in the custom house. Where a public officer is erapnw*312ered to give copies, his official certificate to a copy, or dupltcate, must be deemed sufficient, especially in cases of this kind.

*S. Jones, jun.*and *Wells,*contra.

The meaning of the warr*a*nty is, that the vessel is American, and so documented as to support her national character as *American.*To maintain this warranty, the plaintiffs must show that she had such documents on board as would maintain her *American,*character. They produced a paper granted by the custom house, accompanied with a certificate under the hands of the collector and naval officer, and the seal of office, that' the paper was a copy of the register recorded in the office. Proof of the handwriting of the collector was the only evidence offered of this paper. If the register is matter of *record,*it must be proved, either by an exemplification produced, or by the oath of a person who has compared it with the original. • If the plaintiffs rely on the *seal,*that should have been proved, as well as the handwriting. It is not the seal of a court, but of an officer. If the paper was an original, the proof ivas not sufficient, unless the court had judicial knowledge of the seal. If it is an exemplification, it must be under seal, and that seal must be proved, or known to the court. Office copies are evidence in themourt to which the office belongs, and who is entrusted to make them out, but not in another court; but a copy given by an officer, not intrusted for the purpose, must be strictly and regularly proved, as in other cases.*

As to the question on the merits of the case, we contend that the plaintiffs have notcomplied with their warranty. Thegeneral risks are qualified by the warranty, and the policy is to be construed according to the special agreement in writing. This agreement must mean something different from the printed words. The defendants contemplated a species of sea risk encountered in time of war, but which is not encountered in time of peace; yet according to the explanation given by the plaintiffs, there is no difference between a peace and a war sea-risk. If the risk experienced during capture is not such a sea risk as she could have encountered *before,*or *after,*the capture, then it is not a peace sea-risk. If, after capture, a storm had arisen, and the vessel had sunk, it would have been a loss for which the defendants would have been liable precisely as in time of peace. But they ave nor responsible for any loss arising from the carelesness, negligence, *313or misconduct, of the captors. The exposed situation of the vessel, and the negligence of the captors were, in this case, the direct causes of the loss sustained. It was precisely against the perils arising from the known want of care in captors, that this clause was intended to guard the defendants. If other causes, arising out of war, are combined with sea-risks, they are not the hazards for which the insurers intended to be answerable.

But we contend that the loss, at *Gibraltar,*was not occasioned by a sea-risk at all, taking it in its broadest sense, without any qualification as to peace or war. If the vessel had gone to *Gibraltar*in the ordinary course of her trade, she would never have been placed in that exposed situation. If the captors had dismantled and cut up the vessel, that would not have been a sea-risk. The loss was not owing to the sea merely, but to the exposed situation in which she tvas placed by the captors. If a master does not properly moor his vessel in port, and a storm arises, by which she is injured, the underwriters are not liable for the loss.

Then, was the loss owing to the leak and other sea damage prior to her arrival at *Gibraltar ?*The evidence in the case does not show that; but, on the contrary, that had it not been for the capture, she would have proceeded to *Cadiz.*From *Gibraltar*to Cadiz, with a fair wind, the passage is not more than 24 hours. The survey makes no mention of the leak. To regard that as the cause of loss was, clearly, an after-thought.

*Colden,*in reply,

said, that in the construction of the policy, two kinds of sea-risks were to be considered; the one arising from the act of man, the other from the act of God. The latter is the *peace*sea-risk intended. Suppose the vessel when going into *Gibraltar,*had been fired upon by a fort and sunk; or, suppose another vessel had, by mistake, fired upon and sunk her, these acts would have been sea-risks. There is no evidence that this vessel was not placed in the same situation as all other prize vessels, and unless it can be shown that she was treated differently, and with peculiar neglect, the defendants are liable for the sea-risk.

*

 4 *Bos.*& *Pull.*181, *Scott*v. *Thompson.*2 *Johns. Rep. 89. 96, Robinson v. Mar. Ins. Co. Green v. Elmslie, Peak N. P. 212.*

†

 Amery *Rogers, 1*Esp. *Rep.*268. Robertson v. French. 4 East Rep. 130 Peak. 547. Marshall. 709, 710, 711, 712. 1 Term Rep. 205.

‡

8 *Johns. Rep.*807.

*

*Phillips' Law of Ev. 291 292. 4 Dallas, 415.*

Spencer, J.,

delivered the opinion of the court. The points arising from the case, and to which the arguments of the counsel ^have been directed, are,

*3141. Upon the obligation.of the assured to have the necessary (jocuments on board, showing the national character of thé vessel, and *whether there is*legal proof that such documents were on board at the time of the capture. *

2. Upon construction warranty, in case capture, or detention, by the *British*or *Americans,*the usual peace sea-risk was to continue, as well during capture as after and before; and

3d. Upon the particular nature of the loss.

The warranty here is, that the ship was *American*property; and there can be no doubt that such warranty imports not merely that she should be *American*property, but that she should be accompanied, during th'e voyage, with all the accustomed and necessary documents evincing that character, and insuring respect to it as such, within the laws of nations. This point has been repeatedly and solemnly adjudged in this court. (Blagge v. *The New-York Insurance Company,*1 Caines’ *Rep.*545.; and *Barker*v. *Phœnix Insurance Company,*8 *Johns. Rep.*307.) This is also the doctrine of the *English*courts. (5 *East’s Rep.*99. 398.)

Was this warranty complied with ? The plaintiffs gave in evidence a copy of the register, under the hands and seals of the collector and naval officer of the port of *Boston*and *Charlestown,*certified by them to be a true copy of the register of the ship *Mark*and Abigail, as recorded in that office; and that the certi. ficate of registry with which she was cleared for *Cadiz,*in *December,*1812, was also a true copy of the record.

The 9th section of the act of congress of the 31st *December,*1792, (Vol. 2, 131.,) requires the collector of the district, comprehending the port to which any ship or vessel shall belong, to make and keep a record or registry thereof, and to grant an abstract Or certificate of such record or registry, in the form prescribed; and the 10th section, after requiring the secretary of the treasury to prepare and transmit the forms of the certificate of registry, attested under the seal of the treasury, and tb,e hand of the register, directs the certificates to be signed and sealed by the collector before they are issuéd, and to be countersigned by the naval officer, when there shall be one; a copy of each of which shall be transmitted to the register, who is to cause a record to be kept of the same..

To prove the ownership of the vessel in the plaintiff, and to *315show that she was documented as an *American*ship, it was proved, that the signature of Mr. *Dearborn*to the certificate of registry, was his handwriting. This evidence was objected to, but the objection was overruled, and the copy was read. The record required to be kept by the collector of the registry of ships or vessels, is such a one, that a copy of it, compared with the original by a witness who can testify to its being a true copy, would be good evidence of the facts it sets forth; (4 *Dallas,*415.,) but 1 have strong doubt whether the copy produced here is entitled to be admitted in evidence upon the proof of the handwriting of the collector. He is authorized to grant an abstract or certificate; but this accompanies the vessel, and is delivered to the owner or master, and it is authenticated under the seal of the treasury, and the hand of the register of the treasury ; the collector is not authorized to grant copies generally. Then the rule of law applies, which declares, that when an officer is not intrusted to make out a copy, and has no more authority than a common person, the copy must be proved in the strict and regular mode. *(Phillips’ Law of Evid.*292.) The proof of Mr. *Dearborn’s*handwriting cannot alter the case, for if the copy was evidence, as emanating from a person entrusted for that purpose, it would require no other proof; and if he is not entrusted by law to give copies, proof of his hand would not verify the paper. Besides, here is no proof of the signature of the naval officer.

It would be proper, and it is certainly expected, that the court should pronounce an opinion on the merits of the case; and it is believed to be one of the first impression.

The insurers warrant the ship free from loss, by the British, or Americans, but in case of capture or detention by either the usual peace sea-risks are to continue. The case occurred of a capture by the *British,*and the question is, whether the loss of the vessel, or her irreparable condition, arose from a usual sea-risk during the capture.

We have decided, *(Robinson*v. *Marine Ins. Co.,*2 *Johns. Rep.*89.,) that where the insurance was against sea risks only, and a deviation from necessity had taken place, the deviation excused the assured, as well in such a case, as where the insurance was general. This decision was urged as applicable to this case, but it does not seem to me to be so. If, after the capture, the ship had been lost by a sea-risk, strictly speaking, un*316underwriters would be answerable; but if the im- mediate and proximate cause of the loss is attributable Loan act on the part of the captors, which act, if done by the assured, would absolve the insurers from the loss, then I cannot but think the insurers would not be liable. This leads us to the evidence in the case; and I think it perfectly clear, that the loss is attn- butable to the mooring the vessel in a dangerous and exposed situation in the bay of Gibraltar, instead of bringing her into the harbour. Whilst in that situation, several vessels ran foul of her, and she was exceedingly injured~ The survey, which has been given in evidence, calculates the expense of repairs ex- clusively on injuries received whilst she was thus exposed; and I think it cannot he doubted, that had the vessel been thus moor~ ed by the assured, and no capture had intervened, the insurers would not have been liable, on account of the culpable negli. gence of the master. To hold that the defendants are answerable, in consequence of an act of the captors, so highly culpable and improvident, when the defendants' liability is restricted to the usual peace sea-risks, would, in fact, render them responsible for a risk not a peace-risk. ALBANY, Augiist~

It is manifest to me, that the leaking of the vessel before the capture, did not render her innavigable; it is not proved, nor can it be pretended, that it did.

Judgment for the defendants.