Page images

Catlett and Keith v. Pacific Insurance Company

vessel was American property, but that she was duly documented as such, so as to show her national character. It was intimated by one of the counsel, that other documents than the register were necessary for this purpose, but it was not distinctly pointed out what those documents were; and the objection to this extent has not been urged by the other counsel. And I understand it, therefore, to be conceded, that an American register, if on board, would have been a compliance with this warranty; and I am not aware of any other document that could have been required. There being a state of universal peace, and no treaty provisions applicable to the voyage, the register was all that could be necessary to show the national character of the Sphinx. No question of neutral or belligerent rights could arise.

This objection, however, under the testimony that has been offered, divides itself into two branches.

Ist. Whether the register has been sufficiently proved ? 2d. Whether it was on board the vessel ?

The proof of the register consists of the official certificate of Joseph Nourse, Register of the Treasury of the United States, that the document produced in evidence is a true copy of the original register on file in his office, together with a certificate of the Secretary of the Treasury, under the seal of the department, that Joseph Nourse is the Register, and that the document is duly authenticated.

It is said, however, that this is at best but a copy of a copy, and therefore not evidence. If the fact were so, the objection might be well founded. But, according to the provisions of the registry act, as I understand it, this is a copy of the original. The register is a document issued from the office of the Register of the Treasury, signed by the Secretary of the Treasury, and under the seal of the department. It is sent in blank in many parts to the Collector of the port where it is to be used, and by him filled up as occasion may require; of

Catlett and Keith v. Pacific Insurance Company.

which he is required to keep a copy in a record for that purpose provided, and also to transmit a copy of the same to the Register of the Treasury to be recorded ; and when any vessel is lost, as in the present case, it is made the duty of the master to send the original register to the Register of the Treasury to be cancelled. And the document now produced is a copy of the original so returned. No further provision is made by the act for the disposition of the register after it is cancelled; but I believe it is the practical construction given to the act, not to destroy the register so returned, but to keep it on file in the office. It may, therefore, be well considered a document required by law to be deposited in the Register's office, there to remain ; and if so, a copy thereof was admis- . sible, and was duly authenticated.

The proof that the register was on board the vessel, is not very satisfactory. There are, however, some circumstances affording such a presumption, and this is matter for the jury.

3. The next objection is, that there is not sufficient evidence of the loss of the vessel.

The proof offered to show the loss, consists of the ViceAdmiralty proceedings, on the survey and condemnation of the vessel at the Isle of France, and the deposition of the captain.

These Admiralty proceedings were not offered in evidence until after the motion for a nonsuit had been made, and were admitted subject to objection, without any opinion having been expressed by the Court as to their admissibility.

These proceedings purported to be under the seal of the Court, certified by the Register, and accompanied by a certificate of the American Consul, under his seal of office, that he was such Register.

These proceedings I think are not so authenticated as to entitle them to be read in evidence. The seal does not prove

Catlett and Keith o. Pacific Iosurance Company.

itself. There is no impression from which any conclusion can be drawn, that it is the seal of that or any other Court: And some proof aliunde is always required, either that it is the seal of the Court by a witness who knows the fact, or by proof of the handwriting of the Judge or the Clerk, or by an examined copy, compared with the original in the proper office, or some other evidence of a similar character. They do not alone, unaided by extrinsic evidence, carry with them that verity as to make them evidence in foreign Courts.

I attach no credit to the consular certificate. It has been said that he is an officer recognised by the law of nations, and entitled to credit. The law of nations recognises him only in commercial transactions, but not as clothed with any authority to authenticate judicial proceedings. These proceedings must, therefore, be laid out of view.

There is evidence, however, in the deposition of the captain tending to show the loss, and which must be submitted to the jury for that purpose. He describes the injury which made it necessary to put into the Isle of France to repair, and swears that no other vessel could be obtained to carry on the cargo, which affords a strong inference that the Sphinx could not be repaired at that place, so as to prosecute the voyage at a less expense than that estimated by the surveyors. I do not mean to intimate that his testimony proves, or is admissible to prove, the proceedings of the surveyor, any further than will warrant the conclusion, that he coincided with them in opinion; he making the report of the surveyors the basis of his application for a condemnation of the vessel as unseaworthy: All which affords a pretty strong inference that, in the judgment of the captain, the vessel could not be repaired at that place at a less expense than twenty thousand dollars. At any rate, this is testimony proper to be submitted to the consideration of the jury, and the Court cannot say there is no evidence of loss.

Catlett and Keith v. Pacific Insurance Company.

4. The next objection is, that the averments in the declaration are not supported by the proofs in the cause--that the averment is, a joint interest in the plaintiffs in this cause, and that the proof shows that Thomas R. Keith was either jointly interested with them in the specie insured, or that there was no joint interest in the three, but a separate interest in one moiety in Catlett, and a joint interest in the other moiety in the two Keiths, and that in neither case does the evidence support the averment.

This necessarily calls for the inquiry, in the first place, for whom was this policy effected, and whose interest does it cover ? The policy is in the name of Le Roy, Bayard, & Co. and on account of owners. And it is said on the part of the defendants, that this is on account of the owners at the commencement of the voyage, and when the policy attaches, and not the owners when the policy is effected. This perhaps would be the legal construction, in the absence of all proof, explanatory of the term owners as used in the policy.

It is very well established by the evidence, that Thomas R. Keith had no interest in this specie when this policy was underwritten ; and that in point of fact, the only interest intended to be insured, was that of the plaintiffs in this cause.

There can be no question but that one or more joint owners may insure their interest in joint property. The only question to be determined is, whether it has been done in this instance.

It is equally clear, that if the insured aver an entire interest in themselves, in the subject insured, such averment cannot be supported by evidence of a joint interest with others. Nor can an averment of a joint interest with others, be supported by proof of a sole interest. As I understand the declaration in this cause, it only avers a joint interest in Catlett and James Keith, jr., to the extent of thirty thousand dollars, and not an exclusive interest in the entire cargo.

[merged small][ocr errors]

Will the policy then admit of the construction, that the insurance is for the benefit of Catlett and James Keith, jr., and not for the benefit of Thomas R. Keith? It must be borne in mind, that application for insurance was not made by the plaintiffs themselves, but through their agents, pursuant to instructions; and the policy was filled up in the name of the agents for account of owners. The term owners, is only descriptive of the persons intended to be insured, and they cannot sue on the policy without bringing themselves within that description. It is equally important and necessary, that they should show for what owners the agent acted, or who were intended to be insured under that description. Owners may include all concerned in interest, but such a construction is not necessarily to be given to the instrument. It is a proper subject for explanation. It does not contradict the policy to show who were the owners intended to be insured. The term owners, as here used, necessarily refers to matter out of the policy, and cannot be explained by any thing appearing on the face of the instrument. It must, of course, be open to explanation by extrinsic evidence.

It certainly does appear from the facts, that no property was intended to be covered but the property of Catlett and James Keith, jr. Whatever may have been the interest of Thomas R. Keith, it is manifest that Catlett, in instructing his agent to insure, did not mean that he should insure Thomas R. Keith's interest, but only his own and James Keith, jr.'s, for Thomas R. Keith had not, at that time, any interest in the specie. If the underwriters understood when they underwrote the policy, that it was the agent's intention to insure only for Catlett and James Keith, jr., and not for Thomas R. Keith, they cannot now set up that he was one of the insured, because he afterwards became part owner; for they never undertook to insure his interest. Their contract was with Catlett and James Keith, jr., and no one else. That such was

« PreviousContinue »