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Wallace v. Ohio Insurance Co.

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expenses of the captain and crew while the ship was repairing, and principally upon the ground that the ship arrived at her port of discharge, delivered her cargo, and thereby earned her freight.

The judge in this case is made to say that unless these expenses of repairs can be brought into general average, the underwriters on the ship can not in any case be made liable. To the correctness of this doctrine wo can not subscribe, but the circumstances of the two cases are so different that we need not combat it. It is conceded by the judge that in the case of Walden v. Leroy, 2 240] Caine, 263, that the expenses *incurred for wages and provisions during the detention of a vessel for repairs was a proper subject of general average, and that the insurers upon the ship were liable. Suppose it were conceded that unless the expenses of wages and provisions were items of general average, in cases of insurance, for a particular voyage, the insurers would not be liable, yet the rule could not be safely applied here. The insurance upon the steamboat Hercules was not an insurance for a particular voyage, but for the term of six months. Any injury, therefore, which is within the terms of the policy, and which shall compal her to put into a port for repairs during the time for which she is insured, must be likened to a case when a ship, on a particular voyage, is compelled, from distress, to put into a port for a similar purpose, in order to enable her to prosecute her voyage. If a ship, during the voyage, or a steamboat, during the season for which she is insured, is compelled to put into a port for repairs, the insurers are liable to pay the expenses during the time necessary to make those repairs. It is important to the owners of steamboats that they should be able to run during the entire season for which they are insured, or that a ship should be able to prosecute her voyage and earn her freight. The principle of general average can not be made to apply to a case like that of the IIercules, even if the doctrine of Justice Thompson be correct. See also the case of Paddleford v. Boardman, 4 Mass. 432; Power v. Whitmore, 4 Maule & Selwyn, 141; Plummer v. Wildman, 3 Maule & Selwyn; 3 Kent's Com. 188, 250.

We might also urge the necessity of retaining the crew on board for the safety of the boat. Suppose the entire crew had been discharged, a rise in the river, the boat driven from her moorings, and a loss had been sustained, would the insurers have been liable

Walluce v. Ohio Insurance Co.

on their policy for such loss? We think it a condition annexed to all policies of insurance upon ships and steamboats that they shall be well manned and found, or the insurers are not liable for any loss which may happen.

According to the view we have taken of the case, the plaintiff is entitled to judgment for the entire bill of repairs of the Hercules, and the expenses of the crew while she was repairing. Whether a deduction should be made upon the bill of furniture, is respect. fully submitted to the court without argument.

*HAMMOND & GARRARD, for defendants :

[241 Two points are raised for consideration in this case :

1. Is the doctrine of one-third new for old repairs, applicable to repairs on steamboats ?

2. Where the repairs are made at the home of the boat, can a charge be made against the insurer for wages and provisions?

The marine law establishes both these propositions in favor of the insurer. But it is contended that neither ought to be applied to insurance on steamboats. The argument of the plaintiff's counsel does not seem to us satisfactory. The reason for the rule, new for old, is explained in all the elementary books. It does not proceed upon the ground of actual advantage in the particular case. But upon the ground that if, in every case, the actual damage should be inquired into, controversy would be endless. 3 Ma

fon, 73.

If the boat be not injured half her value, she can not be abandoned, but must be repaired at the charge of the insurer. If a steamboat is ever worth repairing, there must be cases in wbich, when repaired, her value is increased. If this be conceded, there is an end of the argument. The reason is as strong for establishing the rule in regard to steamboats as to ships at sea.

The reason of the rule, respecting wages and provisions, is also applicable to the repairs of steamboats. It is not varied by the fact that that insurance is taken for a period of timo certain. When the repairs are made at home, there is no voyage on hand; no freight to earn, no cargo to preserve. And it is because, when repairs are made on a voyage, when all these require attention, that the expenses are allowed.

The value, furnishing the rule for abandonment, for injury, is the worth of the vessel when the accident occurred. 3 Mason, 71.

Wallace v. Ohio Insurance Co.

72. A steamboat very old and worn is worth repair. The dam-
age is less than half her value. She is injured near her home,
and is brought there for repair. Repairing does not make her as
good as new, but more valuable than before the injury. The
plaintiffs claim that she shall be thus improved at the charge of
the insurer, and that a mate, steward, cook, captain, clerk, pilot,
242] and deck bands, *shall be maintained at the insurer's ex-
pense during the repairs. The argument would as well cover fire-
men and engineers, for when repaired and ready for navigation
the boat can not move without them. We think it untenable.

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By the Court:

In its practical application, the whole doctrine of insurance is new to us. We can not, therefore, undertake to settle principles so as to conclude us, should further litigations arise, and further investigations diffuse new lights upon the subject.

The question now necessary to decide is, whether an established doctrine of the law of maritime insurance shall be applied to tho case of insurance upon steamboats navigating our interior rivers. The plaintiff contends that it is wholly inapplicable, and should, for that reason, be rejected.

It is admitted that if a sea vessel be injured to an extent less than one-half her value, she shall be repaired at the expense of the insurer. But in that case, one-third of the charges of repair shall be borne by the owners. The reason upon which the rule seems to be founded is, that the repairs place the vessel in a better condition than when she was insured. In this case, it is agreed that the vessel was not improved by the repairs, and the drift of the plaintiff's argument appears to be that when the reason for the rule ceases, its obligation is at an end. We understand that the rule is of universal application, and that it is not one adapted to each particular case. It is so laid down by Judge Story, in Peel and others v. Merchants’ Insurance Co., 3 Mason, 73.

" The rule itself is somewhat arbitrary, and not founded upon an exact calculation with reference to the particular vase.

The ship may be almost entirely new, and then the reason for the deduction would altogether cease. The ship may be very old, and the reason for a much greater allowance would apply. The gen. eral principle upon which the rule is founded is, as stated by Ma. gens, that the underwriters ought to pay for the actual damage or

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Wallace v. Ohio Insurance Co.

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injury, but not for the wear of the things lost or injured; and, therefore, proper allowance ought to be made for the difference in value between the new and the old. But if this difference were to *be ascertained in every particular case by actual inspection [243 and estimates, there would be no end to controversies, and, there. fore, general usage, which the law follows, as founded on general convenience, has applied a certain rule to all cases, not upon the notion of perfect justice, but as generally reaching, in substantial equity, the mass of them.

The doctrine, as here asserted, makes it wholly immaterial whether, in the case before us, the steamboat was actually improved or not by the repairs. So we must declare that the principle, new for old, is applicable to steamboats, or else that fact in the case can have no weight in deciding our judgment.

We are not prepared to say, that, in general cases, steamboats, when not injured more than half their value, at the time of injury, may not be greatly improved by repairs. That is, improved from the actual condition when the injury was sustained. We think this may be the case, and if so, we are not now willing to declare that this branch of the law of marine insurance should not extend to steamboat insurances.

If we understand the counsel for the plaintiff rightly, they propose that we shall take upon ourselves to revise the whole doctrine of marine insurance, and retain part as properly applicable to the case of steamboats, and reject part as wholly inapplicable. We think this work, if necessary to be performed, should be undertaken where there is more experience and knowledge on the whole subject. Steamboats commenced running in the waters of New York before they did in the western waters. The city of New York is the great commercial emporium of the Union. Her jurists, both bench and bar, are eminent for their deep and sound learning. Questions of insurance must have arisen, yet neither in the books of reports, nor in the excellent elementary treatise of Chancellor Kent, have we any intimation that the general doctrines of the law of marine insurances are inapplicable to steamboat insurance. Steam boats have been in use in England for years. We have no information that the principle now pressed upon us has been urged there. Under these circumstances we hold it safest to adhere to the doctrine as we find it settled, and administer it as an entire system, to those who claim at our hands the administration of a VOL. IV-15

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Ludlow's Heirs v. Kidd's Ex'rs et al.

244] part of it. When the amount of one-third is deducted *from the whole charge for repairs, the loss is reduced to a less sum than eight hundred dollars. This not being ten per cent. upon the actual value, the terms of the policy do not entitle the plaintiff to recover. The whole case is thus disposed of, and it is unnecessary for us to say anything upon the other points presented in it. Judg. ment for defendants.

LUDLOW'S HEIRS v. Kidd's EXECUTORS AND OTHERS.

Where the legal title is fraudulently obtained, against a better equity, and

conveyed to an innocent purchaser, without notice, complainants prevailing in equity may have a decree for the value against him who ob tained such legal title by fraud.

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This cause was adjourned here for final decision, from the county of Hamilton. It is the same cause reported in 2 Ohio, 372, and 3 Ohio, 5+1, and now comes up for final decision upon the merits of the original equity of the complainants. The facts are briefly these : In the month of January, 1789, the town of Cincinnati was laid out by Matthias Denman, Robert Patterson, and Israel Lud. low. Afterward, Denman and Patterson sold out to Joel Williams and Samuel Freeman. John Cleves Symmes was the original grantee of the government for a large tract of land between the Great and Little Miami rivers, the patent having been issued to him, in trust for himself and his associates, in the month of September, 1794. The proprietors of the town of Cincinnati agreed that the title should remain with Symmes, who should make deeds for the lots to the purchasers, upon the certificate of any two of the proprietors. At the original laying out of the town, the proprietors each selected a lot for themselves, which was not put into market. The complainants claimed that the lot in controversy was selected by their ancestor, who took possession, cleared off the timber, and inclosed it with a fence, and cultivated it.

John Kidd, under whom the defondants claim, in the month of July, 1799, rented the lot of Ludlow, and took a written lease for the term of eight years, and entered into possession under that lease, as Ludlow's tenant. In August, 1799, J. C. Symmes con

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