after stating the report and decree, delivered his opinion as follows:
It has been contended by the defendants’ counsel, that this survey, which I have detailed somewhat at large, forms a complete bar to the plaintiff’s recovery; and unless it be so construed, it defeats the object of the company in inserting the clause in question; — that the conclusion of the surveyors, immediately after the word therefore, is necessarily founded on what they had seen in their last visit, the decay of timbers, breasthook, trunnels and ceiling; and that the finding of the *401brig to be unworthy of repair, and unfit for sea, having reference to the last antecedent, substantially asserted, that she was unsound and rotten, within the true meaning of the policy. Another cause on a policy on goods on board the brig, wherein a clause of like, import was not introduced, having been tried at the same-time, with the present action, precluded the defendant’s counsel from bringing the naked question before the court, by taking an exception to the evidence of sea worthiness, offered on the part of the plaintiff.
Unquestionably, courts pf justice are bound to construe all contracts, according to -the true intent and meaning of the parties, and to execute them accordingly. Where technical expressions are not used, the words are to be taken in their plain and obvious sense, and not to be strained on either side.
It has been said, on the part of the plaintiff, that in order to render the survey an estoppel to the plaintiff’s recovery, it must clearly appear, that there was a condemnation by the judge, on the ground, that the vessel was unsound and rotten; while it was admitted, that the necessity thereof would, be superseded in a country, where there was no legal .tribunal to make such adjudication. The difficulty, as I take it, dees not occur in the present instance. The judge on reading the captain’s petition, his own warrant, and the return of the surveyors, and hearing the arguments of counsel, was pleased to order &c. He judged de et super premissis; and if the report of the surveyors brought the case within the true meaning of the words of the policy, he, by adopting their conclusion, may be fairly said to agree therewith.
The real question is, whether the surveyors have established in their report, that the vessel was unsound or rotten, when the voyage commenced? It is perfectly clear, that general unsoundness could not be caused in a voyage of six weeks; but it is equally clear, that there may be a partial unsoundness in particular, timbers, which could not with propriety destroy the character of a vessel as seaworthy. The ship-carpenters testified on the trial, that scarcely a single vessel sails on the ocean, without having some unsoundness in part of her timbers; and hence it is evident, that in the view of persons conversant in the structure of marine .vessels, they *402cannot be denominated unsound, or unseaworthy, merely ' because individual constituent parts of their hulls are in a state of decay. It requires an assemblage of such defects, to ascribe justly to them the appellation of being unseaworthy. We must recur to the language of the report,'to ascertain what the surveyors have found.
They were thrice on board the brig, to execute the trust reposed in them.. In their first visit, they ascertained the extent of her leakage in a given period of time, while the cargo was on board, and the devastation and effects produced by the rage of the elements which she had encountered: — in their second visit they examined the damaged state of the cargo: — in their third and last visit, when her cargo was unladen, they examined the particular parts of her internal structure, as I have already enumerated. Here I may observe, that it was proved on the trial, that some error must have crept into the phraseology of the report, respecting the middle and lower futtocks meeting, which does not occur in shipbuilding. Examining the whole of this return with attention, can we with safety pronounce, that the conclusion of the surveyors, or the decree of the judge, was grounded on the single fact of the brig being unsound or rotten? Is it not more natural to suppose, that the effects of the storm, and the difficulty, if not the impracticability, of procuring materials for refitting her for sea, as well as the decay of her timbers, formed a capital consideration, in the result of their several decisions? My mind is strongly inclined to the latter opinion; and if I am correct herein, it brings the case before us, within the precise principle established by judge Washington, in Watson and Hudson v. The Insurance Company of North America, as to a mixed cause of condemnation, on a clause in a policy of similar import to the present; and also by the unanimous opinion of this court in Garrigues v. Coxe, upon a motion for a new trial in March term 1809. 1 Binn. 592.
Upon the whole matter, I am satisfied, that the present motion should be denied.
Brackenridge J.The question in this case depends upon the clause in the policy, “ if the above vessel, after a regular w survey, should be condemned for being unsound or rotten.” *403If this were to be considered as merely evidence, which goes to the question of seaworthiness at the attaching of the policy, it must go to the jury, coupled with other testimony in the case to bear upon the question of seaworthiness. But it would seem to be the intention of the parties, that this of itself should be the evidence, .and be conclusive on the fact of a want of seaworthiness. It is an agreement that this should be assumed as conclusive evidence of the fact. Not but that a want of seaworthiness might be proved independent of this; but that if such evidence should exist, it should supersede farther investigation, and be of itself conclusive. The difficulty of proving a want of seaworthiness, which is in its nature negative, seems to have given rise to the clause, It is for the benefit of the insurer, and amounts to an agree-, ment that this shall conclude. Taking it in this view, it ought to appear clearly and unequivocally, that the condemnation was upon this ground. But would it not be carrying it too far, to say, that it must be expressed, unequivocally in so many words, and in direct terms, that the condemnation was on this ground? It would be restricting it to the exact? ness of special pleading, to say, that though it substantially appears that this was the cause, yet that not having said so in express terms, it cannot bar. It would seem reasonable, however, that it should appear, it was not the principal cause, or a cause, but the cause of condemation; and I take it, that it will be sufficient if a sale is recommended for this eause, though it is not said, that the vessel is condemned for that cause onlv.
In the case of Watson and Hudson v. The Insurance Company of North America, the report of the surveyors was, that many of the timbers mentioned were found to be unsound and rotten, and that in the shattered and stranded situation of! the vessel, and the want of proper mechanics there, foF repairing her, the repairs -would cost more than the vessel was worth; and they recommended that she should be sold, and stn order of sale was given on this report. By judge Washington in this cause, there was not thought sufficient found to bar, on the construction of this clause. I should have thought so too; though strong evidence to the jury of a want of seaworthiness at the outfit, left the question still tfpen to the insurer.
*404In this case the report goes much further, and would seem to me to state the unsoundness and rottenness as the sole ground of the condemnation. On the 12th of November the surveyors had the brig pumped dry. In fifteen minutes she made six inches water. They found that the mainmast had been cut away five or six feet from the deck, that a timber head, and two quarter deck stancheons on the starboard side had been carried away, and they recommended that a part of the cargo should be discharged, in order to take a farther view of the vessel and cargo. As to matter of unsoundness or rottenness, there had been yet no examination, not having come to the hull of the vessel, which must be the subject of examination, with a view to this matter. On the 14th of November, a part of the cargo having been discharged, they repaired on board, and upon inspecting the cargo, they found many of the barrels and half barrels much damaged by the sea water, and directed the whole cargo to be landed, so that it might be carefully examined, to enable them to ascertain what further steps would be most eligible to be taken for the benefit of the parties interested. All this is but preparatory to the examination as to the soundness or unsoundness of the vessel; there is nothing that respects soundness or unsoundness in the parts examined.
On the 24th of November, they come to examine the vessel with a view to this, or at least the examination respects this. “ Having ordered the ceiling to be taken off, about the lower futtock head where the middle and lower futtocks met, “ from the main chains aft, we found the timbers quite decay- “ ed; that the upper breasthook and wing transom was in the “ same decayed state; ihat the trunnels were started in many “ places, and generally very loose and rotten, and that the “ ceiling throughout was decayed and loose. We therefore “ were of opinion that the said brig Fair American was un~ “ worthy of repair, and unfit for sea; and that it would be “ most to the advantage of the parties concerned, that she “ should be forthwith sold at pubiic auction.”
To say whether the word “ therefore” shall refer to the defects ascertained on the examination of the 24th, or shall relate to the defects ascertained on the examinations of the 12th and 14th also, ought not to be made a question of grammatical reference merely; for in that case I do not see how it could be restrained to the examination of the 24th, *405and not extend to all that preceded. But it must be restrained or extended by what follows. It seems to me to be restrained' by the words “ unworthy of repair.” What was unworthy of repair? The hull of the vessel. She had not such a body as was worth repairing; and that, by reason of unsoundness and rottenness. Repairs must respect chiefly the damaged parts, or deficient parts, apparent on the examination of the 12th or 14th. The unworthiness and unfitness for sea, that which had Been discovered on the examination of the 24th. The want of timber or mechanics to make the repairs of mast &c. is not stated, as in the case of Watson v. The Insurance Company of North America, as making any ground for which the sale is recommended; nor is the matter of cost, as in that case,hintedat; but that the body of. the vessel did not deserve any repairs that might be made. Unless therefore, we were to go so far as. tosay, that the report, or condemnation, or both, must in terms quadrate with theclause in the policy, andthat it must bestated expressly that she is unsound and rotten, and for that reason condemned, and that not the facts only on which the sale is thought advisable, must be stated, but the conclusion drawn, I must think that the report in this cause satisfies the clause in the policy. I cannot suppose it to have been in the intendment of the parties, to require on the one side, or to expect ©n the other, such conclusion in so many words to be drawn; but only that sufficient should be set forth to warrant a court and jury in drawing the conclusion from the facts, and the substance of the cause of sale or condemnation. I am of ©pinion therefore that a court on demurrer, or a jury under the direction of a court, would be bound to consider the evidence of this survey as a bar to the demand of the plaintiff; and that where, from a statement of facts in a report specially made, the court and jury cannot but infer that the •vessel was unsound and rotten, and that for that reason she was not worth repairing as to other defects, her situation is .brought within the clause. I think therefore, there ought to be a new trial.
Tilghman C. J. said he adhered to the opinion he expressed upon the trial, and therefore concurred with Judge Teat.es that the motion eught to be denied.Motion denied, and Judgment for plaintiff.