Irvin v. Sea Ins. Co. He admitted that he had been informed by the owners of the vessel that the insurance company refused to pay on account of his carrying spirits, and being a drunkard; that they told him they had desired him not to carry liquors and that he ought not to have done it. That he thereupon procured certificates from merchants of Liverpool and St. John that he was a sober man, and not addicted to drinking, which he gave to the owners, who said they would send them on to NewYork. The chief justice of the superior court, in reference to the prohibition of spirits, charged the jury: that the fair construction of the contract in that respect was, that spirits were not to be allowed on board for use, nor to be in fact used, and if therefore the spirits were taken on board for cargo or transportation merely, and not for the purpose of being used or consumed on board, and if in truth no part thereof was used on board during the voyage, the fact that it was on board would not vitiate the policy. The chief justice also charged the jury on the subjects of the character of the vessel and its seaworthiness. To which charge, the counsel for the defendants excepted. The jury found for the plaintiff, and judgment was accordingly entered. The defendants sued out a writ of error removing the record into the supreme court, where the judgment of the court below was reversed. The plaintiff thereupon removed the record into this court. The judgment of the court below was reversed in the supreme court, on the ground of the misdirection of the jury in respect to the prohibition of spirits; the opinion was delivered by Mr. Justice CowEN, the portion whereof relating to this subject is in these words: "The representation 'no spirits allowed on board,' was in substance an assurance that the vessel should maintain the character of a temperance ship. Spirits were taken into the cabin as part of her stores, not expressly to be used, and none of them were in fact used; but, according to what was customary at Liverpool, they were embarked for transportation as a perquisite of the captain, to be sold by him on his own account. Not being on the bill of lading, they Irvin v. Sea Ins. Co. were subject, however, to be diposed of or used by him, or converted by him to the purpose of treating the crew. The charge was, that spirits might be taken for cargo or transportation merely; and, if not to be used, nor in fact used, the purpose of the representation was fulfilled. It is not easy, I suspect, to maintain this part of the charge in its full latitude. It might be to strong to say of a representation couched in language like this, that spirits should not be transported by way of regular cargo, entered on the bill of lading, with its three parts in different hands, for the purpose of detecting any fraudulent conversion. Even that might be unjust to the insurers. But to allow the carrying of liquor by the master or crew, under pretence of venture or perquisite, would be, in effect, to render the representation a very idle promise. Even a personal engagement not to drink, made by landmen, under every possible inducement to fulfil it-motives of health, reputation, fortune, the encouragement of friends and the influence of example, is but too often found to be a slender tie, when opposed to the force of opportunity, exerted upon an appetite in the least vitiated by habit. Sailors, beside being remarkable for general improvidence, are among the last who would even form resolutions of abstinence; they are far removed from many of the ordinary motives to that virtue, and reckless of such considerations as they cannot entirely escape. The usual allowance of spirits to ships' crews at a certain hour of the day, tends to create the appetite for spirits in its most imperious form. "Persons addicted to excessive drinking," says Paley, "suffer, in the intervals of sobriety, and near the return of their accustomed indulgence, a faintness and oppression circa præcordia, which it exceeds the ordinary patience of human nature to endure. This is usually relieved for a short time by a repetition of the same excess; and to this relief, as to the removal of every long continued pain, they who have once experienced it, are urged almost beyond the power of resistance. Pal. Phil. ch. 2, p. 314, 315, of the Philad. ed. of 1794. Opposed to such an influence, neither the suggestions of religion nor the love of life, are of any avail. Irvin v. Sea Ins. Co. An instance of insensibility to the latter, is mentioned by the late Dr. Rush, as occurring some years ago in Philadelphia. An habitual drunkard being strongly urged by one of his friends to leave off drinking, said: "Were a keg of rum in one corner of the room, and were a cannon constantly discharging balls between me and it, I could not refrain from passing before that cannon, in order to get at the rum." Rush on the Diseases of the Mind, ch. 10, p. 266 of Philad. ed. of 1812. Such kegs taken in the name of ship's stores, though for the avowed, and even the honest purpose of transportation as perquisites by the crew, would be quite sure even of a worse fate than that which, in the case at bar, appears to have attended the third keg before it left Liverpool. It is not very difficult to say what would have been the result of this captain's adventure in kegs, had the voyage proved prosperous. It ceased by the loss of the ship, when out a few days from Liverpool. Had it continued, I doubt the protection even of the king's seal. The temperance of the captain himself had, according to his own admission, been questioned; and he had been obliged to clear himself by his certificate to the owners. He admits they desired him not to carry liquors. They told him insurance could not be got on account of his carrying spirits and being a drunkard. Certificates of his sobriety, procured both at Liverpool and St. John, were transmitted to New-York; and these were followed by the representation in question: "the captain is a careful and steady man, has good officers and crew, and no spirits allowed on board." In all human experience, 1 ask, what kind of compliance with such a representation are kegs of spirits for private adventure, with a captain already suspected of a drunkard's appetite? But it is said they were not intended for use. In other transactions a man is holden to intend the natural consequences of his own act. If we allow this practice, every sailor may carry his regular supply of grog in the name of perquisite. The evasion would be worthy of the unlicensed grocer, whose trade is confined to the biscuit, but his spirits are uniformly given away. We are told that in this case, at least, the actual disallow Irvin v. Sea Ins. Co. ance of spirits, given in evidence and found by the jury, removed the legal imputation of collusion. Admitting that to be so, an isolated instance like the present, is not sufficient to warrant the law in allowing such a practice. Suppose the insurers to be told that no spirits will be allowed; but there will be liberty for each sailor to carry kegs of liquor for sale on his private account; and, on being sued for a loss, you must run the risk of collecting from them whether they used any of it. Would an underwriter of ordinary sagacity consider the representation as worth a cent? It is like saying to a ship's crew, take what means of intoxication you please; but be careful and not drink. In case of a representative or warranty of neutrality, it is not enough that the ship be in fact neutral. She must have the means of showing her neutrality; such documents on board as shall vindicate the character she has assumed at the suit of the belligerent cruis1 Phil. on Ins. 110. Hughes on Ins. 234, Am. ed. of 1833. It is no answer to say that she was in fact neutral. The reason is because by. gross negligence she has been left open to probable condemnation. The case at bar, and cases which must continually arise in ships represented or warranted to be temperate, should we allow the construction adopted by the court below, would be more than mere negligence. The officers and crew may introduce on board, at every port, the positive and certain means of drunkenness, eluding detection by appearances, by concealment, and a concerted system for the suppression or withholding of testimony. The result will be the leaving of temperance ships liable to become as miserably unseaworthy as any others; more so, I venture to say, than those wherein grog is openly and regularly distributed. er. It was, I take it, truly said on the argument, by the counsel for the plaintiffs in error, that, on showing the ship to have been lost through the actual intoxication of the captain, the action must have failed. But that they desired more; to place beyond his reach the ordinary means of intoxication, and avoid the almost impracticable task of proving, by his own servants, a degree of ebriety and its conse Irwin v. Sea Ins. Co. quences, which such men, even if they could be brought upon the stand, may be supposed not willing to disclose. We are referred by the counsel for the defendant in error to several cases of misdescription in written applications for the obtaining of fire policies, and other regulations, which are, in general, regarded as standing on the same footing with the ordinary representation in marine policies. Farm. Ins. and Loan Co. v. Snyder, 16 Wendell, 481, 488. Dobson v. Sotheby, 1 Mood. & Malk. 90. Delonguemere v. The Traders Ins. Co., 2 Hall's R. 589. Langdon v. New York Equitable Fire Ins. Co., 2 Hall's R. 226. 6 Wendell, 623, S. C. on error. These authorities sustain actions upon fire policies notwithstanding certain variances in parts of the building in question, or in the character of the building itself, from the description on which the policies were founded; or notwithstanding the alleged appropriation of the building, or some part of it, to a. more hazardous use than was allowed by certain clauses in the policy. The variances were holden either unsubstantial or not material to the risque, and the use alleged to be unwarrantably hazardous, was holden not to be within the prohibition of the policy. None of these cases apply to the one before us, unless it be denied that keeping intoxicating drinks on board a ship, is a circumstance in no way affecting her safety. I cannot bring myself to believe it so small a matter as the counsel for the defendant in error seemed to suppose, and as he seemed to think it is viewed by the shipping interest of the city of New-York. That it is looked upon as of some consequence at the insurance offices there, we derive from the testimony of the master who sailed the vessel in question. On the whole, we think the court below erred in telling the jury, that, if the spirits were taken on board for cargo or transportation merely, no part being in fact used, the representation was substantially complied with. We think the charge should have been, that receiving the spirits, under the circumstances disclosed by the captain's testimony, VOL. XXII 49 |