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cases, the court of admiralty, deems a person incompetent as a witness, who is a party to the cause, or has an interest in the event of it. The civil law has the same rule; Nullus idoneus testis in re sua intelligitur. It has accordingly been held by some judges, that seamen are not witnesses for each other in cases where an embezzlement is charged upon all of them, to which they must contribute. This would seem to be correct, where all are parties to the suit; but is not, it is a several suit, and the decree in one case has no legal bearing on that in another. In such a case, the objection goes to the credit (as an interest in the question) and not strictly to the competency.
The rule is not only regularly true in the admiraliy, that a person is incompetent as a witness, on account of interest ; but it is sometimes pressed beyond the rule of the common law. Thus, where a joint capture is set up from the party being in sight at the time of capture, the testimony of witnesses of the ship, asserting to be a joint captor, is not sufficient, per se, to found the claim, although they are releasing witnesses.
But there are some exceptions to the rule, as to interest, founded upon necessity ; such as in cases of salvage, where the facts must often come in a great measure, if not exclusively, from the salvors themselves. What for instance, could otherwise be done in cases of naked derelict, unaccompanied by any possibility of getting information from the crew of the deserted ship? The constant course of practice has been in salvage cases to allow the testimony of salvors to be taken as to the facts occurring at the time of the salvage service, and especially where they are exclusively within their knowledge. Of course the evidence being of interested persons is in the nature of semiplenary evidence only, and will weigh little, unless corroborated by other circumstances. It will be of less weight, where it leaves behind it disinterested testimony, which might be taken ; and it will greatly be abated in force by opposing testimony from persons belonging to the crew of the saved ship. Cases
1 Dig. Lib. 22. tit. S. e. 10, Domat B. 3. S. art. 6, 8. See also the Hope 2 Gallison Rep. 48.
2 See Hoyt v. Wildfire, 3 John, R. 518. Lewis v. Davis, 3 John. R. 17. Spurr v. Pearson, 1 Mason R. 104.
8 See also La Belle Coquette, 1 Dodson R. 18. The John, 1 Dodson R. 363. The Galen, 2 Dodson R. 19. The Arthur, 2 Dodson R. 423, 428.
4 See the case of the Charlotte Caroline, 1 Dodson R. 192.
furnishing a like analogy may be found in the prize court.' But I am not aware, that the rules of evidence have been relaxed beyond this point. Salvors have not been admitted, as far as I know, to give testimony to other facts, capable of distinct and independent proof; but are admitted, ex necessitate, to such only as found the original claim.
Indeed, in strictness, the testimony of persons, whether salvors or others, who are parties to the suit, ought not to be taken except under a special order of the court for this purpose, showing a cause, as is done in the ordinary course of chancery proceedings. In the looseness of our practice, it is often done without such an order. But it is irregular; and it would be well, that the irregularity were corrected, as the court might in its order limit the inquiries to matters properly within the scope of the exception.
Upon the whole, my opinion is, that the testimony of the master and the mate of the Magnolia, not being to the res gestæ of the salvage service, but offered as general evidence to all matters touching the embezzlement, is inadmissible in point of law, and must be suppressed. It is incompetent upon the general principle, because it is from parties, who are interested. It is within no known exception to that principle, for it is not ex necessitate. It might have furnished matter fit for a special replication to the charge of embezzlement; and, if thus put in upon oath, it might have been in the nature of an expurgatory reply. It can now be deemed of no more efficiency in the cause, than a proffer of a personal examination and denial of the charge upon oath, which has not been accepted on the other side ; and which, therefore, relieves the cause from the suggestion of any voluntary concealment by the parties implicated of their own knowledge of the facts.
But if the testimony were admissible, it could avail but little against the opposing testimony of persons not similarly situated. If releasing witnesses in the case of a common interest are heard with so much reluctance and so much distrust by courts of admiralty, that no decree will ordinarily be pronounced upon their upcorroborated evidence, how much more forcible must be the objection to persons who testify under the strong sense of a present, deep, personal interest, and who stand, as it were,
i The Galen, 2 Dodson, 19.
in vinculis, to disprove a charge made against them of deliberate fraud and embezzlement? The law, indeed, with the most entire justice, as well as humanity, presumes them innocent of such a charge, until it is established by credible evidence. But if it is so established, it is difficult to perceive upon what legal ground the court could admit the mere denial of the parties, however solemn, to outweigh what, it is bound to believe, is satisfactory proof. I do not know, indeed, whether under all the circumstances of the present case, iny judgment is materially affected by the consideration, that the testimony of the master and mate is in or out of the record. I have gone at large into the subject more from a regard to the principles of evidence, than from any great importance, which the testimony bears in the cause — taken under all its aspects.
The charge is — that the master and mate of the Magnolia, have embezzled a number of barrels and half barrels of flour of the cargo of the Boston, of the value of one hundred dollars ; and a part of the rigging, furniture and appurtenances of the vessel itself, of the value of two hundred dollars. Of course the burthen of proof of such a charge is upon the claimants; and the question is, whether it is sufficiently made out in the evidence beyond a reasonable doubt. If it is not, the court is bound to dismiss it from its consideration ; if it is made out, it is equally the duty of the court, however painful to itself, or disagreeable to the parties accused, to pronounce the proper sentence.
[The Judge then goes into an examination of the testimony, by which he considers the fact of embezzlement by the captain and mate to be fully established.]
My judgment accordingly is, that the decree of the District Court, as to the amount of salvage, ought to be affirmed. As to the distribution of the salvage there being no appeal, whatever might otherwise be my opinion, I do not feel at liberty to disturb it. But — I do decree, that the shares of Captain Davis, both as part owner and as master, in the salvage, be decreed forfeit, to the owners of the Boston, and cargo; and also, that the share of the mate, Kateng, be in like manner decreed forfeit. lo all other respects the decree of the District Court, is to be affirmed ; and under all the circumstances of the case, I shall direct the costs of all parties, libellants and claimants, in this
court, to be a charge upon the property saved, and to be deducted therefrom accordingly. Each party here, bas prevailed to certain extent, and therefore, may well claim some indemnity; and the master and mate, have been sufficiently punished by the forfeiture of salvage without attempting to press upon them any separable item of the costs. I shall reser it to the clerk to ascertain and report, what sums are due to the salvors respectively, according to the principles of this decree, and the amount of the shares of the inasier and mate, which are decreed to be forfeited.
ART. III.-INSURANCE DAMAGE TO SAILS AND RIGGING.
ADDITION OF DISTINCT LOSSES. The ship Goldhunter, sailed from Havre, October 20, 1831, for New York, with a cargo and many passengers. Immediately after the commencement of the voyage, she experienced a gale of wind, and rough sea, which caused her to leak considerably. On the 3d and 4th of October, and on the 5th and 6th, the weather was generally rough, with the exception of short intervals, during which it appears to have been moderate. On the 7th, according to the Protest, there were heavy gales; the ship labored much, and shipped many seas; the foresail was split; the seams on deck opened ; and the vessel continued to leak.
On the 8th, the weather was about the same; the vessel still laboring and straining ; the leak continued, and the ship sprung her mizzen topsail yard.
The 9th commenced with light breezes, but there was a rough sea, and for most of the day, heavy gales. The long boat was 'fetched away,' and the vessel continued to labor heavily, and to leak in every part of her, and, as is said, sustained other damage.
The 10th, began with heavy gales, but the latter part of the day
the weather was moderate. The 11th, commenced with fresh gales ; latter part moderate. The 12th, began with light winds, and the weather was fine; for a part of the day all sails were set. But on the 13th, the weather became rough again, and for a part of the day there was a tremendous gale. This was the case on the 14th, and on this day the camboose house and long boat were carried away, and the foresail and mainsail were split. The gale continued until the 15th, when it moderated. On the 16th, there was fine weather and all drawing sails were set. 17th, light breezes. The 18th, commenced with strong gales; split foretopsail. 191h, rough weather; split the jib. 20th, heavy gales ; upper rudder iron carried away by a sea. The weather was much the same until the 26th; the provisions of the passengers having been damaged in the mean time by leakage, and three men having given out from fatigue. On the 26th, there were tremendous squalls, and the ship sustained the following injury, viz. ; split fore and maintopsails and foresail, and stove in the bulwarks. 27th, the weather continued much the same, but more moderate. On the 29th, it is stated, that there were light breezes and good weather, and it was concluded to bear away for Fayal, for repairs and supplies. On the 30th, in a squall three topgallant sails were split. From this time to the 11th of November, when the vessel arrived at Fayal, the weather appears to have been good.
The insured claims the whole amount expended by him for repairs, (after deducting one third, new for old) made necessary by the occurrences on the passage from Havre to Fayal, and the insurers object to paying any thing; because as they contend the injuries specified were the result of ordinary wear and tear, occasioned by the operation of ordinary causes, and did none of them arise from those extraordinary perils, against which it is the object of a policy of insurance to protect and indemnify the individual insured. And secondly, if the losses specified were of such a nature, that the underwriters would be liable to pay for them, admitting them to have been of sufficient magnitude, yet as in this case each distinct loss was less than five per cent, and as there was no one loss or series of losses, in any one gale or storm, which amounted to that sum, and as all these losses (losses under five per cent) are excepted from the policy; therefore, they say, that they are not to be