26 US 170 James McLanahan Wilhelmus Bogart and John Joseph Coiron v. The Universal Insurance Company

26 U.S. 170

1 Pet. 170

7 L.Ed. 98


January Term, 1828


THE action, in the Circuit Court for the district of Maryland, was instituted by the plaintiffs in error, on a policy of insurance, in the usual form; and a verdict was rendered for the defendants, under the opinion of the Court, upon the first of nine exceptions, taken by the plaintiffs.


The material facts in the case were.—Insurance was effected in Baltimore, in the name of Thomas Tenant, to the amount of 10,000 dollars, on the brig Creole, for a voyage from Havre de Grace to New-Orleans, with liberty to touch and trade at Havana. The policy was dated upon the 22d day of December 1823. The insurance was made for the plaintiffs, the sole owners of the vessel, under the following circumstances:——


John Joseph Coiron, one of the plaintiffs, while at Havre de Grace, on the 19th of October 1823, addressed to Mr. John Stoney, of Charleston, the following letter:——


Havre, October 19th 1823.


Mr. John Stoney, Charleston——


DEAR SIR:—Please to have in red, for my account, for the account and risk of whom it may concern, ten thousand dollars on the brig Creole, of New-Orleans, Captain Jacob Goodrich, for New-Orleans, touching at the Havana. The brig and boats in the best order, having a round house on deck, containing fourteen births; the crew are seventeen in all. We intend sailing to-morrow. I have with me my family, consisting of two children and two nephews. The wind having shipped round suddenly, I write this in haste; my first will be more satisfactory to you, for particulars. The new Georgia upland cotton, twenty sous; rice, thirty francs.


Your devoted servant and friend,




And also another letter, as follows:——




Havre, October 20th 1823.


Mr. John Stoney, Charleston——


DEAR SIR:—I have yesterday requested you to have insured, on my account, for the account of whom it may concern, ten thousand dollars, on the brig Creole, of New-Orleans, Captain Jacob Goodrich, from this port back to New-Orleans, touching at the Havana, the vessel and boats in the best order, having a roof on deck, containing fourteen births, manned by seventeen hands. You know the vessel—I have only to add, that I have made a thousand dollars' worth more of repairs and improvements on her. She is now a very convenient packet. I will feel gratified to hear from you, at the Havana. I intend but making a very short stay there, having two children and two nephews with me, and being anxious to meet Mrs. C., I cannot give you any favourable information respecting business, in this part of Europe.


With the pleasing expectation of being soon near you, I remain, respectfully, dear Sir, your devoted servant and friend,




This letter was enclosed in another, addressed by Quartier and Drogy, of Havre, to Mr. Stoney, dated 23d of October 1823, and stamped with the post mark of Savannah, December 10th; which, with the endorsements thereon, were as follows:——


P. Hesperus.


Havre, October 23d 1823.


John Stoney, Esq., Charleston——


SIR:—We are indebted to our mutual friend, Mr. J. J. Coiron, from whom we beg leave to hand you the enclosed letter, for an introduction to your respectable firm, and should feel particularly happy, if it became the means of an active correspondence between us; the produce of your country, and particularly cotton, being always of an easy and frequently advantageous sale in this part of France, on account of the vicinity of the metropolis, and the principal manufacturing towns, which gives Havre a decided preference over the other commercial ports of France. Georgia short staple, sells at 27 c. 29, and the stock on hand not considerable, few arrivals being expected, until the new crop, which can hardly reach our market before the month of December. It would, however, not be prudent to speculate on the present prices, as they will be likely to give way, on arrival of the new crop, and occasion considerable losses. Our opinion is, that purchases ought to be made at from 11 to 13d, and not to exceed 14d, to offer a benefit here.


Should you feel disposed to enter into a connexion of business with us, and honour us with an answer, we could, if you are so inclined, commence with an adventure of a hundred bales of cotton, for mutual account, and successively enlarge the speculation, if the result prove satisfactory. As to the reimbursement for our share, we authorize you to draw on us, at Paris, at sixty or ninety days sight, if the exchange be advantageous; else we may either make you remittance, or open you a credit at New-York. In case it should suit you to speculate for your own account, we beg to offer you the facility of an anticipation of half the amount of the consignments you may please to intrust to our care, on receipt of the bills of lading and order for insurance. We are also ready to offer the same facilities on shipments which you may sway to us, for account of other houses, and to grant you a share in the commission on the same.


Would oblige us to render us the following service, viz:—to procure acceptance of the enclosed bill of 420 dollars, sixty days sight, on Barbet & Esnard, of your city; and, when accepted, to hand the same to Mr. Sam Simon, at Augusta, &c.


Believe us, with due regard, Sir, your most obedient servants,




John Stoney, Esq., Charleston, S. C.


No. 9, 1823.—QUARTIER & DROGY, Havre, Oct. 23.—Received 13th December.




The letter of the 19th October, was despatched, in a single form, from Havre, on the 20th, by a vessel sailing on that day, for Philadelphia; and was received by Mr. Stoney, on the 15th December—a duplicate of the letter of the 20th, was despatched on the 23d of October, by the Hesperus, via Savannah.


On the 12th of December, 1823, Mr. Stoney applied to the Fire and Marine Insurance Company, and to the Union Insurance Company in Charleston, for insurance on the Creole, and both offices refused the risk, upon the ground that they ought to have received account of the arrival of the brig before that time. The offers were withdrawn, and upon the 13th of December, he wrote to Thomas Tenant Esqr. at Baltimore, the following letter. The letter was post marked at Charleston, on the day of its date; and was received, in Baltimore, by Mr. Tenant, on Saturday, the 20th December, in due course of mail.


Charleston, 13th December, 1823.

THOMAS TENANT Esqr. Baltimore:


DEAR SIR—I received, the day before yesterday, a letter from John Joseph Coiron, via Savannah, (extract annexed,) in which he requests me to have insurance effected on the Creole, on his account, and others, valued at ten thousand dollars, $10,000. The two offices here are afraid of their own shadow, and will not underwrite her. I must, therefore, request the favour of your having the insurance done, agreeable to his order annexed, and I will be answerable to you for the premium, &c. Good upland cotton 14 cents, and declining. I have only to confirm my respects of the 3d inst. which I hope you have received before this. If the insurance cannot be done with you, please write to New-York, to have the same effected.


Expecting the pleasure of hearing from you soon, I am, very respectfully,


Your most obedient servant,



Duplicate. (Enclosed.)


Havre, 20th of October, 1823.

MR. JOHN STONEY, Charleston:


DEAR SIR—I have yesterday requested you to have insured, on my account, for the account of whom it may concern, ten thousand dollars on the brig Creole, of New-Orleans, Captain Jacob Goodrich, from this port, back to New-Orleans, touching at the Havana. The vessel and boats in the best order, having a roof on deck, round house, containing 14 births, manned by 17 hands; you know the vessel. I have only to add, that I have made one thousand dollars' worth more of repairs and improvements on her. She is, now, a very convenient packet.


Extract Thomas Tenant, Esqr., of Baltimore, Maryland.


No. 1. John Stoney, Charleston, 13th Dec. 1823, and 20th Dec. [mail,] order for insurance.


On the 22d of December, 1823, Mr. Tenant applied to the defendants, the Universal Insurance Company, for insurance, by the following written order for the same; and, upon the contract thus made, the policy was on the same day filled up and executed. 'I want insurance, for account whom it may concern, on the brig Creole, Jacob Goodrich master, at and from Havre de Grace to New-Orleans, with liberty to touch and trade at Havana, against all risks—and in case of loss, the same to be paid to me. The vessel valued, independent of freight, to this sum—10,000 dollars.


The Creole was completely rebuilt and coppered at Charleston, S. C. in last summer, at great expense, and is now considered a remarkably fine vessel. She was, and I presume still is, owned by McLanahan and Bogart, and J. J. Coiron. The latter gentleman was on board her, and I presume is returning in her to New-Orleans: He writes from Havre, under date of 20th October, but does not say when the brig would sail. She sails under a certificate of ownership. What will be the premium on the above risk?





Baltimore, 22d Decr. 1823, 8 per cent


Accepted. T. Tenant.


On the day the insurance was so made, Mr. Tenant had made application, in the same terms, to the Maryland, Chesapeake, and Baltimore Insurance Companies, all of which declined the risk. The Phoenix Insurance Company, upon application, declined, on the ground that the time of sailing was not ascertained; and the Patapsco Company were willing to take 5000 dollars, at 5 per cent. premium. The insurance effected by Mr. Tenant, was the only one made upon the Creole.


No information relative to the loss of the Creole was received in Charleston, nor was her loss known there, until the 15th of December; on which day the brig Panther arrived at Charleston, and about 2 o'clock, Mr. Stoney was informed thereof.


On the 19th of October, 1823, by entries in the log book of the Creole, at Havre, it was shown that 'the brig was getting ready for sea on the 20th; at 9 A. M., the pilot came on board, and warped out into the basin, made sail, hove to in the offing, for the captain, owner, and passengers and crew.' At 10 A. M. they came off, and the pilot left the vessel. Tuesday, the 21st October, 1823, the following entry was made in the log book:——






1 7 Commences with fine breezes and pleasant


2 7 weather. This day contains 12 hours, ending


3 7 at noon. At the commencement of the civil


4 7 account, that at midnight, Cape De Here bore


5 7 per compass S.S.E. distant five leagues. The


6 7 detention of Captain on shore, being in want


7 7 of the national certificate of the owners of


8 7 this brig, having been carried off by the former


9 7 captain, Leonard Fash, who was dismissed. It


10 7 was, therefore, necessary for the present


11 7 captain to go through the requisite formalities,


12 7 before the American consul, to prove the want of this important document.


The protest of Captain Goodrich, master of the Creole, stated that the Creole sailed from the port of Havre de Grace, on the 21st of October 1823, bound for Havana in Cuba; that on the 29th of December, the brig was wrecked, and lost on Sugar Key, while on the voyage; and himself, the passengers and crew, were picked up, and some of them carried to New-Orleans, by the ship Trumbull, which ship arrived on the 17th of December 1823. The second mate of the Creole, and five passengers, among whom were Mr. Coiron, and his family, left the ship Trumbull off the Havana, in the small boat of the Creole, and were landed there upon the same day. It also appeared, from the evidence on the part of the defendants, that the schooner Chase, Captain Richard S. Pinckney, master, sailed from Havana for Charleston from the 1st to the third of December 1823, and arrived at Charleston on the 12th of the same month. Captain Pinckney stated that he did not hear, in Havana, any report of the loss of the Creole. The schooner Eliza and Polly sailed from Havana for Charleston, three hours before the Chase, and Captain Pinckney left Havana to go on board the Chase, three hours after the sailing of the Eliza and Polly.


The following letter from Lemuel Taylor to Mr. Tenant, was also admitted as evidence:


Havre, June 28th 1824.


MY DEAR SIR:—Your favour of the 5th instant was received yesterday; and, in reply, I have only to say, that I left Havana on the 3d of December last, in the schooner Chase, captain Pinckney, for Charleston; and that, some days previous to my departure from Havana, I see a person land on the wharf, a crowd seemd to get round him, and I see several taking him by the hand; I asked who he was; his name was mentioned, but I do not now recollect it, and that he was passenger in the brig Creole, from Havre, for Havana, and lost on some of the Keys; and that he was an old trader to Havana, from France, and had a large adventure on board. His name, and time of landing, can be ascertained at Havana, if wanted. I never heard the case mentioned on the passage, or in Charleston; and I am sure I never thought or heard of it after leaving Havana, till one day, while in Baltimore, Mr. Parker, speaking of losses, mentioned the Creole; and I observed I heard of her loss, while in Havana; he then observed they should have to refuse to pay the loss, and that it would be one of the most painful disputes he ever had as President, on account of the great respectability of yourself and Mr. Stoney, and mentioned something about dates. From that time, until I received your letter yesterday, I never heard or thought of the case. And I again repeat, that I am sure I did not hear the loss mentioned on the passage, or in Charleston, and that I see the passenger land as mentioned; and that his name and date can be furnished from Havana, if wanted.


I am, dear Sir, very sincerely, your friend and servant,




It was also proved, that the northern mail closed in Charleston at ten o'clock in the morning, and generally arrived in Baltimore in seven days, exclusive of the day the letter was mailed, but never at an earlier day; though sometimes in eight or nine days;—that it generally arrived from half past one to two o'clock, and the letters of Mr. Tenant were never delivered by the penny post to him, until after three o'clock, on the day of the arrival of the mail. The hours of business of the insurance companies in Baltimore, terminated, daily, at two o'clock.


The fullest testimony was given of the high character of Mr. Stoney and Col. Tenant, to negative the possibility of a presumption of intentional fraud, or concealment, on the part of either of those gentlemen, relative to the loss of the Creole.


The plaintiff, on the trial, tendered nine exceptions to the opinions of the Circuit Court, all of which are stated on the record; but, as in the opinion of this Court, no notice is taken of any other than the first exception; and the Court justified the refusal of the Judges of the Circuit Court to sign the bill of exceptions to any other than the first, it is deemed necessary to insert the first exception only. That exception is as follows: 'The defendants, by their counsel, praved the Court to instruct the jury, that, upon the whole evidence in the case, the plaintiffs are not entitled to recover, and the verdict of the jury ought to be for the defendants; which instruction and opinion the Court accordingly gave; and thereupon the plaintiffs, by their counsel, prayed leave to except, and that the Court would sign and seal this, their bill of exceptions, which is accordingly done, this 10th day of January 1826.


'G. DUVALL, (Seal.)


'ELIAS GLENN,' (Seal.)


The cause was brought by writ of error to this Court; and was argued by Mr. Tawny, and Mr. Jonathan Meredith, for the plaintiffs in error; and by the Attorney General of the United States, and Mr. Ogden, for the defendants.


For the plaintiffs.—Two general grounds of defence were taken at the trial below.——


1. A concealment of material circumstances in effecting the insurance.


2. Want of proper diligence, in not countermanding the order for insurance, after the loss had occurred.


As to concealment.


Four instances of concealment were charged.——


1. The time of the sailing of the brig from Havre.


2. An offer for insurance was made at Charleston, and its rejection.


3. The arrival of the two vessels from Havana at Charleston.


4. The description of the brig in Coiron's letter of 20th October, 'she is now a very convenient packet.'


As to negligence.


The want of due diligence, in not countermanding the insurance, was charged.——


1. By Coiron, in not communicating the loss to Stoney, while off Havana.


2. By Stoney, in not revoking the order to Tenant, on hearing of the loss on the 15th of December.


The general principle as to the doctrine of concealment is, that the assured is bound to make a full disclosure.


The exceptions are—1. As to facts which the insurer ought to know. 2. What he takes on himself the knowledge of. 3. Which he waives being informed of. 4. Which are not material, as not varying the contract. Carter vs. Bochme, 2 Burr, Rep.


1. As to the charge of concealment of the time of sailing; Coiron could only state his expectation on this subject.


Coiron was not bound to state a mere expectation of the time of sailing; because, if he had, it would not have bound him as a representation. Phill. on Ins. 83, and cases cited.


There is no general rule on the subject. It depends, like every other species of concealment, on its materiality to the risk, and it was not material here. Foley vs. Moline, 5 Taunt. 430. 1 Camp. 116. Fort vs. Lee, 3 Taunt. 381. 1 Marshall, 483, 484. Mackay vs. Rhinelander, 1 John Cas. 408. 1 Sergeant & Lowber, 144.


The usage in Baltimore, is to calculate the sailing on the day of the last advices in port; which the order in this case stated to be 20th of October. The duty of disclosure is confined to facts, not to the conclusion of other men from the same facts. Phill. 100. Bell vs. Bell, 2 Camp. 479. 1 Parke, (7th edit.) 292. Cited, 2 Dane's Abr. 121.


The usage in Baltimore corresponds with the legal principle; and that usage may be applied to this case. But if the laws were otherwise, still the question would be, was the alleged concealment material, or was it not, in this case?


2. Concealment, as to arrival of vessels from Havana.


The answers are—1. There is no proof that Mr. Stoney knew of their arrival. 2. Immaterial, because when they left Havana, the Creole could not be considered missing. Littledale vs. Dixon, 1 New. Rep. 151.


3. Concealment, as to the Creole's being a packet:——


1st. It is not necessary to describe the particular construction of the vessel offered for insurance. Haywood vs. Rogers, 4 East, 590.


2d. General ground—not countermanding the insurance.


The rule of law is, that if, after an order for insurance, a loss happens, it is the duty of the assured to countermand the order, where there is probable ground to believe, that, by the exercise of reasonable diligence, it will arrive in time. See Fitzherbert vs. Mather, 1 Term Rep. 12. Watson vs. Delafield, 2 Caines' New-York T. Rep. 224.


Coiron might fairly have presumed, that one of the three letters, ordering insurance, might have reached Mr. Stoney, long before the loss, particularly the one via Savannah.


The questions in this cause are all unmixed questions of fact, and they were improperly decided by the Court below.


The language of the instruction is peremptory, not by way of advice as to the facts, and was considered as binding on the jury. The question of materiality as to concealment, is always a question exclusively for the jury. 1 Park, 7th edit.) 289. 301. 314. 317. Hull vs. Cooper, 14 East, 479. 1 Maul & Selw. 16. Littlesdale vs. Dixon, 1 New Rep. 151. Mackay vs. Rhinelander, 1 John Gases, 408. Williams vs. Delafield, 2 Caines, 329. Fireman Insurance Company vs. Walden, 12 John. 513, and the cases cited in the opinions of Ch. Kent.


A question of due diligence is also a question of fact, 1 Stark. E. 412, &c.; and see notes in Moore vs. Morgan, Cowp. 479. Wake vs. Atty, 4 Taunt. 493. Bateman vs. Joseph, 2 Camp. 461. Reese vs. Rigby, 4 Barn. & Ald. 202. Watson vs. Delafield, 2 Caines, 224.


In reply to the argument of the counsel of the defendants, it was said; the question of seaworthiness is one of fact, and should have been submitted to the jury. As to the casual absence of the Captain, Phill. 118.


The brief delay occasioned by the want of a paper, was not material; and was not a deviation to avoid the policy. Phill. on Ins. 191, and cases cited. The Court have the right to decide upon the law of the case, but the facts are exclusively for the jury. Nor is it admitted that the Court may advise upon matters of fact, in this case. The Court assumed to determine the facts, and took them entirely from the jury.


The practice under the laws of Maryland, is in conformity to the principles, claimed by the plaintiffs, and the Court are prohibited by law from advising upon the facts. This course of proceeding has not been found inconvenient, nor has it been disapproved of by the people; and it may therefore be considered judicious.


Mr. Wirt, and Mr. Ogden, for the defendants.


The facts of the case justified the opinion of the Court, which is the subject of the first exception: the whole of the case rests upon that exception.


Was the vessel seaworthy, at the time of her departure from Havre? The log book shows, that she got under weigh before the master and crew were on board. At the time of the sailing of the vessel insured, she must be properly manned for the voyage—she must be seaworthy when the voyage commences. Phill. on Ins. 117. Cases cited, 3 Bur. 1419, 7 Term R. 705. 1 T. Rep. 343, 186.


2d. There was such a deviation as to discharge the underwriters.


Delay for documents a deviation. 1 Phill. 181. 1 Marsh. 499.


Upon the first exception, two question present themselves.——


1. Did this Court err in giving the instruction?


2. Did the Court invade the privileges of the jury?


The time of the sailing of the Creole, was not communicated by Coiron, nor did he write, as he ought, and could have done, on his arrival at Havana, after the loss of the brig; and his omission to do this, avoided the policy. Phill. 96. 2 Caines, 224. 1 Johns. Rep. 150. 2 Johns. Rep. 526. 9 Johns. Rep. 32. Mr. Stoney should have inquired, at Charleston, of those who arrived from Havana, for information about the Creole.


The Courts of the United States, are not bound by the recent law of Maryland, in reference to the power of Courts to advise or instruct the jury upon facts; the law continues unaffected by the statute. What is concealment, is now become a question of law. Marshall, 467. In all cases, when a vessel insured is to sail from abroad, the time of sailing is material.


Upon authorities, this was a case in which the Court had a right to say the insured could not recover. Phill. on Ins. 468. 1 New Rep. 4. Marsh. 470. McAndrew vs. Bell, 70. 1 Esp. 371, 407. Phill. 104.


It is objected, that the Court took upon themselves to decide the materiality of the fact; and that this, by the law of insurance, is exclusively for the jury.


This is to say, the Court can give no opinion or instruction on the materiality of the facts.


This authority is frequently exercised. 6 Cranch 274, 339. 13 Johns. Rep. 334. 8 Mass. Rep. 336. Questions of fact, on which the law was to be settled, have been taken from the jury. What is notice of non-payment of a bill of exchange, is no longer a question of fact. So questions of abandonment. 6 Cranch, 338. Breaking up of a voyage, has become a question of law, 'or it may be considered in the chrysalis state, part grub and part butterfly.' 6 Cranch, 71.


The point now to be settled by this Court, is a question of political jurisprudence; and the Court is called upon, first, to decide and establish a rule for the proceedings of the Courts of the United States; and to say how far these Courts can interfere in questions of fact.


In the inquiry one which cannot be touched, because the barrier is established, 'that the law is for the Court, and the fact is for the jury?'


In England, the same principles prevail, and yet the Courts have broken down this barrier.


It is expedient that Courts should thus interfere—while it is entirely conceded that the preservation of the trial by jury, in criminal cases, is essential; in civil cases, what would be the trial by jury without the interference of Courts, and 'if the law was left to the shifting sands of jury jurisprudence?' It would be 'a world without a sun;'—like chaos before the command 'Let there be light!'


Mr. Justice STORY delivered the opinion of the Court.——


This is a writ of error to the Circuit Court of the district of Maryland. The original action was brought by the plaintiffs in error against the defendants, upon a policy of insurance underwritten by the defendants, whereby 'they caused Thomas Tenant, for whom it may concern, to be insured, lost or not lost, at and from Havre de Grace to New-Orleans, with liberty to touch and trade at Havana;' ten thousand dollars upon brig Creole and appurtenances. The declaration averred the interest in the plaintiffs, and a total loss by the perils of the seas. The defendants pleaded the general issue; and upon the trial, after the whole evidence on both sides had been given in, the Court, upon the prayer of the defendants' counsel, instructed the jury, 'that upon the whole evidence in the case,' as stated; the plaintiffs are not entitled to recover, and the verdict of the jury, 'ought to be for the defendants.' Nine different instructions were then prayed for on behalf of the plaintiffs, which were all refused by the Court, upon the ground that the opinion already given, disposed of the whole cause upon its merits. If that opinion was correct, this refusal was entirely justifiable; for the Court was under no obligation to discuss or decide other points, when the plaintiffs' case was already shown to possess a fatal defect.


The general question, then, before this Court, is upon the propriety of the instruction so given to the jury.


A suggestion has been thrown out at the bar, that this instruction was not intended to be positive and absolute, but merely advisory to the jury; that it was not meant to take away the right of the jury to decide freely on the facts; but merely to offer for their consideration those views, which the Court had arrived at, and which it might at all times properly suggest to the jury. It is, doubtless, within the province of a Court, in the exercise of its discretion, to sum up the facts in the case to the jury, and submit them, with the inferences of law deducible therefrom, to the free judgment of the jury. But care should be taken in all such cases, to separate the law from the facts, and to leave the latter, in unequivocal terms, to the jury, as their true and peculiar province. We do not, however, understand that the present instruction was in fact, or was intended to be, merely in the nature of advice to the jury. It is couched in the most absolute terms, and imposed an obligation upon the jury to find a verdict for the defendants. It assumed there were no disputable facts or inferences, proper for the consideration of the jury upon the merits; and that, upon the unquestioned facts, the plaintiffs had no legal right of recovery. It is in this view, that it is open for the consideration of this Court; and in this view, it will now be discussed, as it was discussed in the argument at the bar.


Four grounds have been presented to justify the opinion of the Circuit Court; which, it is said, are apparent from the record itself, and each of them is decisive upon the case. The first is, the unseaworthiness of the ship, at the time when she broke ground at Havre, and commenced the homeward voyage; by reason of the master and a sufficient crew not being then on board. The second is, the laying off and on, near the port of Havre, after departure on the voyage, for several hours, waiting for the master to come on board; which, it is said, was an improper detention, and amounted to a deviation. The third is, the omission of Coiron to communicate to his agent, or other persons in America, the knowledge of the loss, by the way of Havana; so as to countermand the order of insurance, which it contended was a fatal omission of duty. The fourth is, the omission to mention the time of the vessel's sailing from Havre, in the letter of the 20th October, ordering the insurance; which, whether fraudulent or not, was a material concealment, and misled the underwriters in the same manner, as if there had been a representation that the time of the sailing was uncertain.


It is to be considered that these points do not come before this Court upon a motion for a new trial after verdict, addressing itself to the sound discretion of the Court. In such cases, the whole evidence is examined with minute care, and the inferences which a jury might properly draw from it, are adopted by the Court itself. If, therefore, upon the whole case, justice has been done between the parties, and the verdict is substantially right, no new trial will be granted, although there may have been some mistakes committed at the trial. The reason is, that the application is not matter of absolute right in the party, but rests in the judgment of the Court, and is to be granted only when it is in furtherance of substantial justice. The case is far different upon a writ of error, bringing the proceedings at the trial, by a bill of exceptions, to the cognizance of the Appellate Court. The directions of the Court must then stand or fall, upon their own intrinsic propriety, as matters of law.


The first and second points appear to us, in the present case, to resolve themselves into matters of fact; and the facts are too imperfect and too general, to enable the Court to draw any legal conclusion from them, either as to seaworthiness or deviation. There is no doubt, that every ship must, at the commencement of the voyage insured, possess all the qualities of seaworthiness, and be navigated by a competent master and crew. But how is this Court to arrive at the conclusion, that the brig Creole was not in that predicament at the commencement of the present voyage? The argument assumes, that the ship ought not to have got under weigh, or proceeded into the offing, until the master, and all the crew, necessary, not for that act, but for the entire voyage, were on board. If the law were so, we have no means of ascertaining what crew was actually on board at the time; nor whether the voyage was absolutely intended to be commenced on that day; nor whether the departure was merely contingent and dependent upon the master's procuring the proper ship's papers, and the breaking ground, and standing off and on in the offing, were preparatory steps, only for this purpose; nor whether for such purposes the pilot and crew on board were not amply sufficient. But we are far from being satisfied that the law has interposed any such positive rule, as the argument supposes. Seaworthiness in port, or for temporary purposes, such as mere change of position in harbour, or proceeding our of port, or lying in the offing, may be one thing; and seaworthiness for a whole voyage, quite another. A policy on a ship, at and from a port, will attach, although the ship be at the time undergoing extensive repairs in port, so as in a general sense, for the purposes of the whole voyage, to be utterly unseaworthy. What is a competent crew for the voyage; at what time such crew should be on board; what is proper pilot ground; what is the course and usage of trade in relation to the master and crew being on board, when the ship breaks ground for the voyage; are questions of fact, dependent upon nautical testimony; and are incapable of being solved by a Court, without assuming to itself the province of a jury, and judicially relying on its own skill in maritime affairs. In this view of the point, it is not necessary to rely on the doctrine of Lord Chief Justice Abbott, in Weir vs. Aberdeen, (2 Barn. & Ald. 320,) which goes the length of asserting, that if there be unseaworthiness at the commencement of the voyage, and the defect is cured before loss, a subsequent loss is recoverable under the policy. This is an important doctrine, and well worthy of discussion, whenever it come directly in judgment.


The like answer may be given to the point of deviation. This Court cannot intend, that here there was any unnecessary delay in the commencement or course of the voyage. The delay, for the want of papers, may have been entirely justifiable; and indeed may have corduced to an earlier inception of the voyage, by putting the ship in a situation to depart at a moment's warning. The usage of trade may be generally, or at least in that particular part, to get the ship under weigh as in this case, and wait in the offing, until the master is ready to come on board—and that usage may be not only convenient and beneficial to all parties, but absolutely necessary, in given cases, from the nature of the port, and the winds, and seasons. How then can this Court undertake to decide, as matter of law, apparent upon the record, that any delay, admitting of such explanations, amounts to a deviation?


The next point is the omission of Coiron to communicate information of the loss to his agent, so as to countermand the order for insurance. The contract of insurance has been said to be a contract uberrimae fidei, and the principles which govern it, are those of an enlightened moral policy. The underwriter must be presumed to act upon the belief, that the party procuring insurance, is not, at the time, in possession of any facts, material to the risk which he does not disclose; and that no known loss had occurred, which by reasonable diligence might have been communicated to him. If a party, having secret information of a loss, procures insurance, without disclosing it, it is a manifest fraud, which avoids the policy. If, knowing that his agent is about to procure insurance, he withholds the same information for the purpose of misleading the underwriter, it is no less a fraud; for under such circumstances, the maxim applies, qui facit per alium, facit per se. His own knowledge, in such a case, infects the act of his agent; in the same manner, and to the same extent, which the knowledge of the agent himself would do. And even if there be no intentional fraud, still the underwriter has a right to a disclosure of all material facts, which it was in the power of the party to communicate by ordinary means; and the omission is fatal to the insurance. The true principle deducible from the authorities on this subject is, that where a party orders insurance, and afterwards receives intelligence material to the risk, or has knowledge of a loss; he ought to communicate it to the agent, as soon as, with due and reasonable diligence, it can be communicated, for the purpose of countermanding the order, or laying the circumstances before the underwriter. If he omits so to do, and by due and reasonable diligence the information might have been communicated, so as to have countermanded the insurance, the policy is void. This doctrine is supported by the English as well as the American authorities, and particularly by Watson vs. Delafield, (2 1 John. R. 152. 2 Caines' R. 224. 2 John. R. 526;) where most of the early cases are collected, and commented upon; and it is well summed up by Mr. Phillips, in his treatise on insurance, (p. 96.) We do not go over the cases at large, because there is no controversy as to the general result. The only matter for observation is, whether the rule as to diligence, may not, in certain cases, be somewhat more strict, so as to require, what in Andrew vs. Marine Insurance Company, (9 John. R. 32,) is called 'extreme diligence;' or what in Watson vs. Delafield is left open for discussion, as extreme diligence; the duty of communication, where the countermand may not only probably but possibly arrive in season. We think, however, that the principle of the rule requires only due and reasonable diligence, to be judged of under all the circumstances of each particular case; and that the expressions thrown out in the cases above mentioned, were, not so much intended to point out a stricter rule, as to intimate, that there might be cases, in which a very prompt effort for communication might be fairly deemed not due and reasonable diligence, as where the loss takes place very near the port, at which the insurance is to be made, and the means of communication, by mail or otherwise, are regular or numerous; or where, from the lapse of time, and the date of the order for insurance, the party cannot but feel, that every moment's delay adds many chances in favour of the insurance being made before knowledge of the loss. Under such circumstances, in proportion as the delay would properly give rise to stronger suspicion of intentional concealment, the duty of prompt communication would naturally seem to press upon the party a more vigilant diligence. The case of Wake vs. Atty, (4 Taunton's R. 494,) lays down no new rule; but merely applies the old one, to circumstances, somewhat nice and peculiar in their presentation.


What constitutes due and reasonable diligence in cases of this nature, is principally matter of fact for the consideration of a jury. When, indeed, all the facts are given, and the inferences deducible therefrom, the question may resolve itself into a mere question of law. But it is, in general, impossible to lay down a fixed rule on the subject, from the almost infinite variety of circumstances which may affect its application; much must depend upon the means of communication, the situation of the parties, the knowledge of conveyances, the fair exercise of discretion, as to time, mode, and place of conveyance, the course of trade, and nature of the voyage, and the probable chances of the countermand being effectual. All these are matters of fit inquiry before the jury, and must, from their very nature, apply with very different force to different cases.


To bring these remarks home to the present case, there are certainly circumstances, which deserve the most careful consideration of a jury upon the point of due diligence. The loss occurred at no given distance from the port of Havana; and if letters had been sent ashore at that port, there is strong reason to believe, that they could have reached Mr. Stoney in time for a countermand, and at all events, if the loss had been made generally public at the Havana, the news might have reached Baltimore before the insurance. But the record does not contain facts enough to establish a want of reasonable diligence on the part of Mr. Coiron. It is no where stated that he was in a situation to make such a communication, or that he knew of the mate and crew being landed, or that vessels were about to depart for the United States from Havana. Nor is it shown, what were the means and facilities of communication, in the course of trade and voyages, between that port and the United States, regular or irregular, from which we might deduce his knowledge of these means and facilities. Nor is it shown, that the parties contemplated a stoppage off the Havana, so as to put him upon diligence in writing; nor that this mode of conveyance of news was more certain, or quicker than others, which might have been resorted to, in the ordinary course of the voyage of the ship Trumbull, to New-Orleans. We may indeed conjecture how these matters were, by general surmise or personal information; but judicially we can know nothing beyond what the record presents of the facts; yet, all these circumstances must or may be material to the point of due diligence. In their very essence, they are matters of fact, and not conclusions of law.


The opinion, therefore, to which the learned counsel wish to conduct us, that the policy is void, because there has been gross negligence in not countermanding the order for insurance; is one, to which, upon this record, we cannot judicially arrive. It would be assuming the rights and exercising the functions of the jury upon matters not proved, or wholly indeterminate in their own nature. This ground for maintaining the instruction of the Circuit Court, must then be abandoned.


The next point, is the omission in the letter of the 20th October, of any mention of the time of the vessel's sailing. This is put to the Court in a double aspect; first, as the concealment of a material fact, and secondly, connecting the language of the letter with the accompanying circumstances, as a virtual representation that the vessel was not then ready or about to sail on the voyage.


Whether this omission in the letter was merely accidental, or with design to mislead the underwriters; and whether, if so designed, it had the effect, (which, upon the testimony in the case, would be a matter of serious doubt,) it is not now necessary to inquire. If accidental, it would not prejudice the insurance, unless material to the risk; if fraudulently intended, it might not in fact mislead; and whether fraudulent or not, was matter of fact for the jury. That there was no virtual representation as to the time of sailing, seems to us conclusively established, by the language of the letter of Colonel Tenant, requesting insurance. He there says 'He (Coiron) writes from Havre, under date of the 20th October; but does not say, when the brig would sail.' Now, this letter, in direct terms, negatives any intention to represent any particular time of sailing. It leaves the question freely open to the underwriters, either for further inquiry, or for any presumptions most unfavourable to the assured. The natural result ought to be, that the underwriters should calculate the time of sailing as very near the date of the letter, so as to ask a premium equal to the widest range of risk, from the intermediate lapse of time. The underwriters had no right to presume, that the ship would sail at some future indefinite period, and to bind the assured to that presumption. The letter told them in effect, that the assured would bind themselves to no representation as to the time of sailing; but asked for insurance whenever the ship might sail, be it on that day, or any future day. In this view, the point as to representation vanishes; and the like consideration would, in a great measure, dispose of that of concealment.


But the question, as to this latter point, has been argued at the bar upon much more broad and comprehensive principles; upon which it seems proper for this Court of express an opinion, especially as this case may again undergo the consideration of a jury.


It is admitted, that a concealment, to be fatal to the insurance, must be of facts material to the risk; and, certainly, of this doctrine, there cannot at this time be any legal doubt. It is further admitted, (and so is the unequivocal language of the authorities,) that generally, the materiality of the concealment is a question of fact for the jury. But it is said, that there are exceptions from the rule; and that concealment of the time of sailing belongs to the class of exceptions, and is a question of law for the exclusive decision of the Court. It is necessary to maintain this position in its full extent, to extricate the present case from its pressing difficulties; and if this shall be successfully made out, it will still remain to be decided, whether the facts stated in the record, are sufficient to enable the Court to pronounce the conclusion of law.


That the time of sailing is often very material to the risk, cannot be denied; that it is always so, is a proposition that will scarcely be asserted, and certainly has never yet been successfully maintained. How far it is so, must essentially depend upon the nature and length of the voyage, the season of the year, the prevalence of the winds, the conformation of the coasts, the usages of trade as to navigation, and touching and staying at port, the objects of the enterprise and other circumstances, political and otherwise, which may retard or advance the general progress of the voyage. The material ingredients of all such inquiries, are mixed up with nautical skill, information, and experience; and are to be ascertained in part, upon the testimony of maritime persons, and are in no sense judicially cogmizable as matter of law. The ultimate fact itself, which is the test of materiality, that is, whether the risk be increased so as to enhance the premium; is, in many cases, an inquiry dependent upon the judgment of underwriters and others, who are conversant with the subject of insurance. In this very case, the introduction of testimony was indispensable, to show the usual length of the voyage; and it was quite questionable, whether, in a just sense, the vessel could be deemed a missing vessel, at the time of the insurance. Upon such a point, it would not be a matter of surprise, if different underwriters should arrive at different results. In the nature of the inquiry, then, there is nothing to distinguish the time of sailing of the ship, from any other fact, the representation of concealment of which is supposed to be material to the risk. It must still be resolved into the same element.


It has been said, that there is no case in which the materiality of the time of sailing has been doubted, where the ship was abroad at the time; whether this be so or not, it is not important to ascertain, unless it could be universally affirmed, (which we think it cannot,) that the time of sailing abroad, must always be material to the risk. If it may not always be material, the question, whether it be so in the particular case, is to be decided upon its own circumstances. Indeed, we cannot perceive how the place of sailing, whether from a home or foreign port, can make any difference in the principle. The time of sailing from a home port, may be material to the risk, and if so, the concealment of it will vitiate the policy; but whether material or not, opens the same inquisition into facts, as governs in cases of foreign ports. There may be less intricacy in conducting it, or less difficulty in arriving at a proper conclusion, but it is essentially the same process. The case of Fort vs. Lee, (3 Taunt. R. 381,) did not proceed upon the ground, that the time of sailing from a home port, was never material to be communicated; but, that under the circumstances of that case, the underwriter, if he wished to know whether the ship had sailed, ought to have made inquiry. It was a mere application to the discretion of the Court to grant a new trial, where the plaintiff had obtained a verdict, and there was no pretence of any misdirection at the trial. In Foley vs. Moline, (5 Taunt. 145,) the Court said, that there was no pretence for the proposition, as a general rule, that it was necessary to communicate to the underwriters whether the vessels on which an insurance was proposed, had sailed or not. There might be circumstances, that would render that fact highly material; as if the ship were a missing ship, or out of time. So that here, a denial of the proposition now asserted before us, was, in the most explicit terms, avowed and acted on.


Two nisi prius cases before Lord Mansfield, have been relied on, to establish the supposed exception to the general rule of cases, relative to the time of the sailing of the ship; in which it is argued, that his lordship undertook to decide the point of materiality, as matter of law, and to give it as a rule to the jury. It is proper to remark, that little stress ought to be laid upon general expressions of this sort, by Judges, in the course of trials. Where the facts are not disputed, the Judge often suggests, in a strong and pointed manner, his opinion as to the materiality of the concealment, and his leading opinion of the conclusion to which facts ought to conduct the jury. This ought not to be deemed an intentional withdrawal of the facts, or the inferences deducible therefrom, from the cognizance of the jury; but rather as an exprfession of opinion addressed to the discretion of counsel, whether it would be worth while to proceed further in the cause. And the like expression in summing up any cause to the jury, must be understood by them merely as a strong exposition of the facts, not designed to overrule their verdict, but to assist them in forming it. And there is the less objection to this course in the English practice; because, if the summing up has had an undue influence, the mistake is put right by a new trial, upon an application to the discretion of the whole Court. This is so familiarly known, that it needs only to be stated, to be at once admitted. It is with reference to these considerations, that the cases above alluded to should be examined.


The first is Ratcliff vs. Shoobred, cited from Marshall on Insurance, p. 290. It would certainly seem, at the first view, that Lord Mansfield did decide that concealment was material. But even by Mr. Marshall's report, brief as it is, it by no means appears that the materiality was in question at the trial, but only the effect of the concealment in avoiding the policy. The same case is reported more fully and more accurately by Mr. Park on Insurance, p. 290, where it is perfectly clear, that the point of materiality was left to the jury. 'The question is, (said his lordship,) whether this be one of those cases which is affected by misrepresentation or concealment. If the plaintiffs concealed any material part of the information they received, it is a fraud, and the insurers are not liable;' and the jury found a verdict for the defendant, under this direction. So that the point was left fully open to them.


The next case is Fillis vs. Berton, cited in Marshall on Insurance, 467, and reported also in Park on Insurance, 292. The insurance was on a ship from Plymouth to Bristol; and it appeared, that the broker's instructions stated that the ship was ready to sail on the 24th of December, when, in fact, she had sailed on the 23d. Mr. Marshall states, that Lord Mansfield ruled, that this was a material concealment and misrepresentation; but Mr. Park, from whose work the report is professedly taken, uses no such expression. His words are, Lord Mansfield said this was a material concealment and misrepresentation; and the jury hesitating, he proceeded to expound to them the general principles of law on the subject of misrepresentation and concealment; and he seems to have taken it for granted, that the misrepresentation was material, (as from the short duration of such a voyage might naturally be infered,) and that the only point was, whether the ship had sailed or not. The same explanation disposes of the case of McAndrews vs. Bell, (1 Esp. Rep. 373.) Indeed, in any other view, it would be impossible to reconcile these decisions with the judgment pronounced by Lord Mansfield, and other Judges, upon more mature deliberation, when causes have been brought before them in bank. Take, for instance, what fell from the Court upon the motion for a new trial, in McDowell vs. Praza, (Doug. R. 247. 260.) Shirley vs. Wilkinson, (Doug. R. 236.) Hodgson vs. Richardson, (1 Bl. Rep. 289.) Littledale vs. Dixon, (4 Bos. & Pul. 151,) and Hull vs. Cooper, (14 East, R. 79.) In the case of the Maryland Insurance Company vs. Ruden's Administrators, (6 Cranch, 338,) this Court expressed the opinion, that 'it was well established, that the operation of any concealment on the policy, depend on its materiality to the risk, and that this materiality is a subject for the consideration of a jury.' That opinion was acted upon by the Court of Errors of New-York, in the case of the New-York Fireman Insurance Company vs. Walden, (12 John R. 513;) where Mr. Chancellor Kent, in a very elaborate judgment, reviewed the authorities, and laid down the doctrine in a manner that merits our entire approbation.


We think, then, that the exception insisted upon at the bar, cannot, upon principle or authority, be supported; and that the question of materiality of the time of the sailing of the ship to the risk, is a question for the jury, under the direction of the Court, as in other cases. The Court may aid the judgment of the jury, by an exposition of the nature, bearing, and pressure of the facts; but it has no right to supersede the exercise of that judgment, and to direct an absolute verdict as upon a contested matter of fact, resolving itself into a mere point of law. If, indeed, the rule were otherwise, the facts in the record are not so full as to enable the Court to reach the desired conclusion. There is not sufficient matter upon which we could positively say, that the time of sailing was, in this case, necessarily material to the risk.


For these reasons, the judgment of the Circuit Court must be reversed, and the cause remanded, with directions to award a venire facias ne novo.


This cause came on, &c., on consideration whereof, It is considered by this Court, that there is error in the opinion of the Circuit Court, given to the jury upon the prayer of the defendants' counsel;—that upon the whole evidence in the case, as stated in the record, the plaintiffs are not entitled to recover, and that the verdict of the jury ought to be for the defendant; that opinion having withdrawn from the proper consideration of the jury, matters of fact in controversy between the parties.


It is therefore further considered and adjudged, that the judgment of the said Circuit Court, in this case, be, and the same is hereby reversed; and that the cause be remanded to the said Circuit Court, with directions to award a venire facias de novo.