New York County NyArchives Court.....Thebaud, Edward Vs Phoenix Insurance Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

EDWARD V. THEBAUD and Others, Respondents, v. THE PHOENIX INSURANCE COMPANY, 
Appellant.

Marine insurance — implied warranty of seaworthiness — a vessel built for inland 
navigation used for ocean traffic — duties of the assured with respect to her 
equipment.

In an action, brought to recover upon a policy of marine insurance issued by the 
defendant, which insured the steamboat Dos Hermanos in the sum of $5,000, at and 
from Philadelphia to Frontera, Mexico, a defense was interposed that the vessel 
was unseaworthy. It appeared upon the trial that the vessel was built simply for 
river navigation, and that it sank during the ocean voyage.

Held, that it was not sufficient to show that the vessel was strong and staunch 
for the purpose of river and smooth water navigation, but, in order to comply 
with the implied warranty, the plaintiff was obliged to show that everything 
which could be done to render this vessel fit for the voyage in question, taking 
into consideration her structural weakness, had been done.

While the question of seaworthiness is peculiarly a question of fact for the 
jury, yet, where the evidence is without dispute that the voyage in question is 
one for which the vessel is not fitted, and that no precaution has been taken to 
provide for perils, which must necessarily be encountered, there is no question 
for the jury and a verdict is properly directed in favor of the defendant.

Quoere, whether it was necessary for the plaintiff to prove that the vessel was 
seaworthy, as a sea-going vessel, or whether it was sufficient, the vessel 
having been built simply for river navigation, to show that she was good and 
staunch of her class, and that a proper outfit had been added for the ocean 
voyage.

Appeal by the defendant from a judgment entered, on the verdict of a jury 
rendered at the New York Circuit, in the office of the clerk of the county of 
New York on the 17th day of April, 1886, and from an order denying a motion for 
a new trial, entered in said clerk's office, April 15, 1886.

G. A. Black, for the appellant.

H. Putnam, for the respondents.

Van Brunt, P. J. :

This action was brought to recover upon the defendant's policy of marine 
insurance which insured the steamboat Dos Hermanos in the sum of $5,000 at and 
from Philadelphia to Frontera, Mexico. The vessel sank in the ocean on September 
13, 1884. The issues tried were that the Hermanos was not seaworthy for the 
voyage, that she deviated and, therefore, discharged the policy. In the 
consideration of the questions raised upon this appeal it will not be necessary 
to consider other than the first above mentioned. In order that the plaintiffs 
should succeed in this action it was incumbent upon them to establish that at 
the time the vessel started upon her voyage she was seaworthy. This obligation 
was acknowledged by the allegations of the complaint that the steamboat departed 
from the port of Philadelphia upon said voyage on or about the 17th day of 
August, 1884, being then staunch, strong and in every respect seaworthy, with 
competent officers and crew. It is conceded that at least a part of the voyage 
which the steamer was expected to make was required to be upon the open ocean; 
and the question presented is as to what degree the proof should go in 
establishing the seaworthiness of the vessel insured.

It is claimed, upon the part of the defendant, that there being no exception 
whatever in the policy, it being the ordinary marine policy insuring the 
steamboat against marine risk, that it was necessary before there could be a 
recovery for the plaintiff, to prove that the vessel was seaworthy as a sea-
going vessel. Upon the other hand it was claimed by the plaintiffs that the 
vessel having been built simply for river navigation it was not necessary for 
them to show that she was equal to a regular sea-going steamer, but all they 
were required to establish was that she was good and staunch of her class, and 
that a proper outfit had been added for the ocean voyage. 

Strange as it may appear when we consider the number of adventures which would 
be calculated to raise the question here involved, we have been unable to find 
any principle established by the adjudicated cases which controls the 
construction of a marine policy in this respect where such policy is entirely 
silent as to the dimensions and capacity of the vessel insured. The ordinary 
rule is that parol evidence cannot be admitted to contradict or qualify the 
implied warranty of seaworthiness, any more than it could have been if the 
warranty had been express. If this were the law, it would be perfectly clear 
that no recovery could be had upon the policy in question, because the vessel 
insured was not seaworthy for the voyage for which it was insured in the 
ordinary acceptation of the term. And the only difficulty is as to whether, in 
the consideration of a policy of insurance of this kind, it is admissible to 
consider extraneous facts for the purpose of showing that there has been a 
waiver of the rigor of the warranty implied in the policy. In the case at bar it 
is not necesary to determine this question, because if we concede, for the 
purposes of the decision of this case, that the latter rule must prevail, yet 
even under this contraction no recovery could be had. It is clear that the claim 
that all that it was necessary to show in respect of seaworthiness was that the 
vessel was strong and staunch for the purpose of river and smooth water 
navigation is not well founded; and none of the cases which are cited by the 
learned counsel for the plaintiffs in any way support any such proposition.

The case of Burges v. Wickham (3 Best & Smith, 669) establishes no such 
proposition as is claimed for it. In that case a policy had been issued insuring 
a boat, called the Ganges, from Liverpool to Calcutta, built for navigating the 
Indus river, and on this account unfit generally for ocean navigation. The 
assured had, before the policy was entered into, informed the defendants of the 
original construction and character of the Ganges, telling them at the same time 
that additional strengthening was in progress, and that everything that possibly 
could be done by temporary appliances to render a vessel of her construction as 
strong as could be made to encounter the perils of the voyage would be done, and 
the evidence showed that an additional premium was paid commensurate to the 
increased risk arising from the character of the vessel. In that case it was 
held that the warranty of seaworthiness must be taken to be limited to the 
capacity of the vessel, and, therefore, was satisfied if, at the commencement of 
the risk, the vessel was made as seaworthy as she was capable of being made, 
though it might not make her as fit for the voyage as would have been usual and 
proper if the adventure had been that of sending out an ordinary sea-going 
vessel. 

This case extended the right to explain what was intended by the implied 
warranty in the policy, as far as any which we have been able to find has ever 
done. And the court held that because it was a river steamer that, therefore, 
the rigid warranty which would be applicable to a sea-going vessel could not 
necessarily have been intended when the vessel was insured, because no such 
warranty could possibly have been complied with. In that case it appeared that, 
because of the weakness of the vessel, an increased premium was charged. In the 
case at bar no such evidence appears.

It is argued that the premium taken was a high premium, in that the insurance 
company took a premium showing a computation of one loss in twenty; whereas, 
from the evidence in this case, it would seem that it would have been more 
proper, if an augmented premium was to be taken, that it should have been based 
upon a computation of nineteen losses out of twenty.

The evidence in the case at bar, not only in respect to the question of 
insurance, but also in respect to another important feature of the case cited, 
utterly fails. The judgment of the court in the case cited was based upon this 
consideration:  "Taking all these considerations into account, I think that on 
such an adventure as this, viz., sending a river steamer across the ocean, the 
warranty of seaworthiness was complied with if as much was done to make her fit 
for the voyage as was in such adventures usual and proper, though it might not 
make her as fit for the voyage as would have been usual and proper if the 
adventure had been that of sending out an ordinary sea-going vessel." And it was 
upon this consideration, and because the evidence showed that everything had 
been done to render the vessel as fit for the voyage as was possible, that the 
recovery was sustained.

There is no evidence of this kind in the case at bar. All that the evidence 
shows is that the vessel was fit for river and smooth water navigation. There 
was not a particle of evidence tending to show that any substantial precaution 
was taken to protect her against the dangers to which a vessel of this 
construction was peculiarly subject, namely, the action of the sea upon her 
hull. The case is entirely barren of any evidence tending to show that any 
extraordinary precautions of any kind whatever were taken; and it would appear 
from the evidence that the vessel was lost because of the very causes which 
might have been anticipated, and, perhaps, might have been guarded against.

If it was necessary, in order to comply with the warranty, to show that 
everything which could be done had been done to render this vessel fit for the 
voyage, taking into consideration her structural weakness, it was necessary that 
the plaintiffs should have proved that fact, and not limited themselves to 
evidence tending to show that the vessel was staunch and strong of her class, 
and was fit for river navigation when she was insured for an ocean voyage. This 
was no proof of the allegation contained in the complaint that she was strong, 
staunch and seaworthy at the time she commenced her voyage.

Our attention has been called to another case (Bouilon v. Lupton, 15 Com. Bench 
[N. S.], 113), in which three steamers, intended for the navigation of the 
Danube, were insured at and from Lyons to Galatz, with leave to call at all 
ports and places in the Mediterranean for all or any purposes, beginning the 
adventure at Lyons. These vessels left Lyons and duly arrived at Marseilles. All 
three of the vessels were in a fit and proper state for the voyage down the 
Rhone to Marseilles, but from the nature of the navigation they could not, on 
leaving Lyons, be in a state of readiness as to masts and sails, chains and 
anchors, sea crew, etc., for the sea portion of the voyage to Galatz. They all 
left Marseilles properly manned and equipped for the residue of the voyage, and 
it was held that the implied warranty of seaworthiness was complied with. The 
question discussed upon this point was a claim made upon the part of the 
insurance company that the warranty applied to the whole voyage, and that the 
change in the condition of the vessels at Marseilles did not fulfill the 
warranty; and that these vessels proceeded from Aries to Marseilles upon the 
Mediterranean without having been prepared for a sea voyage.

In discussing this question the court say: "There is an implied warranty in 
every insurance of a ship that a vessel shall be seaworthy. By which it is meant 
that she shall be in a fit state as to repairs, equipment and crew, and, in all 
other respects, to perform the voyage insured and to encounter the ordinary 
perils at the time of sailing upon it. That is the general rule. If it be 
applicable here, of course, there can be no doubt that the defendants are right 
and they ought to succeed, because the warranty of seaworthiness has not been 
complied with at Lyons in respect to the whole voyage. If the insurance attaches 
before the voyage commences, it is enough that the state of the ship be 
commensurate to the then risk; and if the voyage be such as to require a 
different complement of men or state of equipment in different parts of it, as 
if it was a voyage down a canal or river, and thence to and on the open sea, it 
is enough if the vessel be at each stage of the navigation in which the loss 
happens, properly manned and equipped for it."

It thus appears that the last case cited in no way conflicts with any rule which 
has been established with reference to the implied warranty attaching to 
policies of marine insurance. And the later case of Clapham v. Langton (5 Best & 
Smith [Q. B. Rep.] 729), is in entire accord with the principles which have been 
laid down. In that case the action was brought upon a policy of insurance upon a 
ship at and from the Tyne to Odessa or another port in the Black sea. The 
length, breadth, draught and tonnage of the vessel were specified in a 
memorandum on the face of the policy at the time of making the same. The defense 
was unseaworthiness. On the trial it appeared that before the execution of the 
policy the plaintiff wrote letters to the defendant describing the dimensions, 
etc., of the ship, and stating that she was a new iron steamer and took no 
cargo, but only coals enough for her use to Gibraltar, where she would coal 
again. The dimensions of the ship were also stated in a memorandum on the 
policy. The ship was intended, after accomplishing the voyage, to be employed in 
river navigation only, and was, as to her hull, built and adapted to such 
navigation exclusively, and could not, by any strengthening appliances, be 
rendered fit to encounter the ordinary perils of the voyage. But before 
commencing the voyage certain appliances were put into and upon her hull to 
assist her in encountering the perils of the voyage. The judge directed the jury 
that if the plaintiff had, before the execution of the policy, brought to the 
knowledge of the defendant the nature and description of the vessel, and the 
more than ordinary risk that she would necessarily encounter on the voyage, and 
if the vessel at the time of commencing the voyage had been, by the 
strengthening, made as seaworthy as a vessel of such a nature and description 
could reasonably be made, they should find for the plaintiff. The jury found for 
the plaintiff, and it was held that the direction was right, in that the 
warranty of seaworthiness, under the circumstances disclosed in this case, was 
limited to the capacity of the vessel, and, therefore, was satisfied when such 
strengthening appliances had been resorted to as made the vessel as seaworthy as 
a vessel of such nature and description could reasonably be made.

Upon an examination of the opinions there seems to have been a delightful 
contrariety of opinion, and although the court agreed that the judgment should 
be affirmed, they arrived at this conclusion for different reasons, and no 
opinion whatever was expressed upon the question whether parol evidence, as to 
the character of a vessel, is admissible to qualify the ordinary warranty of 
seaworthiness in a policy; and it would seem that the turning point of the case 
was that the policy contained the dimensions of the vessel, which showed that 
she could not possibly be seaworthy as a sea-going vessel. This conclusion, 
perhaps, is somewhat conjectural, as the case is not explicit on this point, and 
the only point which seems to be established is that where a vessel is made as 
seaworthy for the voyage as a vessel of such nature and description could 
reasonably be made, the character of the vessel being known to the insurers 
there is no breach of the implied warranty of seaworthiness. We have not thought 
it necessary to comment on the evidence in this case in detail, because of the 
principle on which it is sought to uphold the verdict. It does not seem to be 
contended that if the rule which has been laid down as the one most favorable 
for the plaintiff which can possibly govern contracts, such as the one sued 
upon, is to prevail, there is any evidence that there has been a compliance with 
its requirements. Indeed, the whole course of the plaintiff's argument is based 
upon the claim that if the defendant knew that the vessel was built for river 
navigation, all that it was necessary for the plaintiffs to prove was that she 
was good and staunch of her class, notwithstanding the peril insured against was 
an ocean voyage, and that there was no necessity to prove that any additional 
precautions, which were at all substantial, had been taken because of the 
additional risk, nor that the owner had put the vessel in the state in which she 
ought to be put on beginning such a voyage. It was held in the cases of Burges 
v. Wickham and Clapham v. Langton (supra) that the assured warrants that she 
shall be put in that state.

The only other point necessary to be considered is the claim made on the part of 
the respondent, that the question of seaworthiness is always one of fact to be 
determined by the jury; and our attention is called to the decision of the Court 
of Appeals, in the case of Walsh v. Washington Insurance Company (32 N. Y., 
427), where the court say that "the jury having found for the plaintiff, and the 
court below having approved the findings upon the facts, there would seem to be 
no serious question for consideration here, in regard to the seaworthiness of 
the vessel; for it is agreed by all the authorities that this is peculiarly a 
question of fact for the jury." This case fails to establish any such claim as 
is made for it. Undoubtedly the question of seaworthiness is peculiarly a 
question of fact for the jury; but where the evidence is without dispute that 
the voyage is of a character for which the vessel is not fitted, and that no 
substantial precautions whatever, have been taken to provide for perils which 
must necessarily be encountered, there seems to be no question for the jury 
because there has been no compliance with the law, and the jury have no power to 
find contrary to the evidence. If there is any conflict of evidence upon the 
subject, and the jury find, and the verdict is approved by the court, of course 
the Court of Appeals have no power to review the same upon the facts.

The conclusion at which we have arrived is that there was a breach of the 
implied warranty contained in the policy, in that there was no attempt to put 
the vessel in the state in which she ought to have been put upon the beginning 
of an ocean voyage.

The judgment must be reversed and a new trial ordered, with costs to the 
appellant to abide the event.

Macomber, J., concurred.

Bartlett, J.:

I concur. I think the testimony established the unseaworthiness of the vessel, 
tested by any rule properly applicable to the case.

Judgment reversed and new trial ordered, with costs to the appellant to abide 
the event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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