1822. Dorr ready to admit that the plea nul tiel record, which denies the fact of the award, would not lay a proper foundation for evidence to show partiality in the arbitrators. Insurance But it is enough for our argument, that an award may Company. be impeached for the misconduct of the arbitrators; V. The Pacific and whether for this purpose the resort be, as stated on the other side, to a Court of equity, or whether the common law tribunals are competent to the purpose, is a matter wholly depending on the municipal institutions of the country. Some remedy is confessedly provided. Now, here we had none but to impeach the survey, as we sought to do, on the trial. The opposing counsel showed how much he was pressed by this consideration, when he referred us to the Vice Admiralty Court at New-Providence, to have the proceedings overhaled in that tribunal. Such an application would be without a precedent. A survey is never granted, but upon the application of the ship master, founded on present necessity. The Holofern may now be at the bottom of the ocean, or if in existence, not at New-Providence; and if she were there, how could a survey now ascertain what her state was on the 8th of October, 1819, the time when the survey was had, and to which the question relates? Supposing that we are wrong in contending that the recitals of the decree are not evidence against us, inasmuch as we produced the decree, still it is competent to us to disprove them. The rule is merely that a party shall not impeach the character of his own witnesses. He may disprove any facts stated by them. This is the more essential in the case of a witness produced by necessity, e. g. the subscribing witness to a deed or will. The evidence in relation to the survey was in this case produced by us of necessit. But we are told that if the survey be struck out of the case, there is no ground to support the verdict for either a total or partial loss. There are these grounds: our policy,-a vessel seaworthy when the voyage commenced, the springing a leak, and being forced from her course by the violence of the winds and waves,-stranded in going into a port of necessity, there condemned for causes not legally shown, or not fully shown, or falsely stated,—the voyage lost,-ship and cargo sold, and the damages assessed. It is always to be remembered, that we produced the decree as that which, in point of fact, occasioned the loss, without reference to its being void or valid in point of law. Suppose the decree had shown that the ship had been libelled and sold for wages, would this have been more than prima facie evidence? The decree in question was that of an Instance Court. The cases cited against us of the conclusiveness of foreign sentences, are all those of prize Courts, and the conclusive effect of the adjudication of these tribunals, is founded on peculiar reasons of international law." This conclusive effect has been incautiously extended to cases between insurer and insured, where the title of the property is not drawn in question, but arises collaterally, and the ablest 1822. Durr V. The Pacific 1822. Dorr V. The Pacific judges have expressed their regret at this application of the principle," and the effort is now to restrict it within as narrow limits as possible. It is enough for us, however, that this principle has never been Company. applied to any but prize jurisdictions. It is against first principles, that a man should be bound by a decree to which he is not a party. The effect sought to be given to this decree of an Instance Court, is greater than could be claimed for a judgment of a Court of Westminster Hall, or even for a domestic judgment, unless against the same party, and after full notice. March 21st. Mr. Justice JOHNSON delivered the opinion of the Court. The material question in this cause arises on the construction of a clause in the policy, expressed in these words, "and lastly, it is agreed that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten," then the assurers shall not be bound to pay their subscription on this policy. The special verdict negatives the proposition of the vessel's being unsound at the time of her sailing, and it is contended for the plaintiff, that this neutralizes the condemnation and survey given in evidence; that contracts of insurance in their nature have reference to the commencement a Fisher v. Ogle, i Campb. N. P. Rep. 418. Marshall v. Parker, 2 Campb. 70. Robinson v. Jones, 8 Mass. Rep. 540. Sawyer v. Maine Fire Insurance Company, 12 Mass. Rep. 291. 1822. Dorr V. of the risk, at least with relation to questions of seaworthiness; and as it is impossible for a sound vessel to become rotten in a month, it is argued that the verdict of the jury ought to prevail against the evi Insurance dence, or influence of the condemnation. But we think otherwise. The words of the contract expressly look forward to a future event, "if the said vessel, upon a regular survey, should be thereby declared unseaworthy;" obviously contemplating two objects: first, that a state of rottenness ascertained at any period of the voyage insured shall be conclusive evidence of original unsoundness ; secondly, that the determination of that fact by means of a regular survey should be received as conclusive evidence between the parties. It is unquestionably true in the abstract, that a certificate of survey is not legal evidence; because the examination of the surveyors themselves would be better. But parties may by compact adopt that or any other, as the criterion for deciding on their relative rights; and in the case before us, the rights of the parties are made to depend on the fact of the survey rather than on the truth of it. They have chosen a rule of decision for themselves, and we are not to inquire into their motives or prudence in doing so. Whether the survey in this instance was duly substantiated, is the next question which the case presents. And here it becomes altogether unnecessary to decide whether a condemnation, in ordinary cases, carries with it the evidence of the fact or of the fairness of the survey. For, it must he observed that the exemplification of the proceedings in the Court of Vice Admiralty in New-Providence The Pacific Company. 1822. Dorr V. The Pacific was produced in evidence by the plaintiff himself. He claimed for a total loss, and to support this claim it became necessary to show that the vessel was condeinned and sold, and the voyage broken up in New Company. Providence. But if this exemplification should be admitted to prove those facts alone, without exposing the causes which led to them; if the eyes of the jury were to be shut against every thing but the outside of the record, non constat, but the vessel may have been condemned for some cause for which the underwriters were not liable, and his case would not have been made out. Such subtleties cannot be countenanced ; the survey was a part of the res gesta, and the plaintiff could not possibly have made out the loss without introducing the survey which led to it. The survey was, therefore, properly in evidence, and that it was" a regular survey," in the language of the covenant, is to be deduced from two considerations. First, if there was any irregularity in the survey, it is attributable to the plaintiff's own agents; for even the Storrs, in this case, although the general agents of the company, were voluntarily selected by the captain. But, secondly, the survey bears every evidence of regularity or authenticity that can reasonably be required. On this subject, the nature of the contract of insurance casts the parties on the municipal regulations of all the world. Every commercial country has its own regulations on the subject of surveys. It is properly a subject of admiralty jurisdiction; since mariners and freighters have to claim the aid of the admiralty to release them from their contract in cases of a defect of seaworthiness. A |