King v. Hartford Insurance Co. ( 1815 )

Swift, Ch. J.

The question is, whether the plaintiff is entitled to recover for a total or partial loss. He claims to recover for a total loss ; and this depends on the validity of the abandonment.

In the case of King v. The Middletown Insurance Company, it was decided, that if the injury of the vessel be such only as to delay the voyage, and there was no extreme hazard of her loss, even if she were stranded, but under such circumstances that she might be got off without danger of sinking, or going to pieces ; this would not be a total loss, at any time ; but if the situation of the vessel is extremely hazardous, and she is in danger of being utterly lost, this would be a total loss, and the insured might abandon, unless the insurers would consent to bear the expense of getting her off and of repairing her. It is now a question of fact upon the case and evidence stated, whether the situation of this vessel was extremely hazardous so as to warrant an abandonment.

To constitute extreme hazard, the situation of the vessel must be such that there is imminent danger of her being lost, notwithstanding all the means that can be applied to get her off ; all the means within the power of the crew to use, and all the assistance within the power of the master to obtain. A vessel may be in a situation where her loss would be inevitable, without the application of means to save her, and yet by the application of such means there would be no difficulty in preventing a loss. This certainly would not be called extreme hazard : for on this principle there could be few instances where vessels are stranded, in which the insured could not abandon, unless the insurers would agree to be at the expense, of getting them off. This would be introducing a novel principle into the law of insurance. Extreme hazard, then, can only exist where the situation of the vessel is such that there is little prospect or chance of saving her with all the means and assistance that can be obtained ; for then, as the insured can recover nothing for his expense if the vessel is lost, it would seem unreasonable to require him to incur expense for the probable benefit of the underwriters only. But if there is a reasonable prospect that the vessel can be extricated from her dangerous situation, by the exertion of means at command, then the insured is bound to use them, and wait the event.

The question then is, on the facts stated, whether this vessel was in extreme hazard of being lost, notwithstanding any means within the power of the master or insured to make use of, to extricate her. It appears that the vessel had remained on the rocks four days at the time of the abandonment without increase of danger ; that the chances were in favour of getting her off, though good judges differed as to the success of the experiment. Under these circumstances, it cannot be pretended, that this vessel was in extreme hazard of being lost. There was such reasonable prospect that she might be extricated from her situation by the use of means within the power of the master to command, that he was bound to make the experiment. Until the issue of that experiment was known there could be no right to abandon ; for it would be a solecism to say, that when the situation of a vessel that is stranded is such that the insured are bound to use all the means in their power to extricate her, they can have a right at the same time to abandon her to the insurers unless they will agree to be at the expense. This would be adopting the principle that a vessel when stranded may be abandoned unless the underwriters will agree to be at the expense of getting her off. But it is a most unquestionable rule in the law of insurance, “ that mere stranding of itself can never be deemed a total loss so as to enable the insured immediately to abandon. If by some fortunate accident, by the exertions of the crew, or by any borrowed assistance, the ship can be got off and rendered capable of continuing her voyage, it is not a total loss, and the insurers are liable only for the expenses occasioned by the stranding. It is only where the stranding is followed by Shipwreck, or where the ship in any other way is rendered incapable of prosecuting her voyage, that the insured is entitled to abandon.” Marsh. Insur. 582. c. 583. (Condy’s edit.) The vessel in question was got off the rocks by the exertions of the crew and borrowed assistance, and rendered capable of prosecuting her voyage at an expense much less than half her value ; of course, there never was that actual or technical total loss that would warrant an abandonment; and the plaintiff is entitled to recover for a partial loss only.

But it is insisted, that the voyage was defeated, and was not worth pursuing : for which the plaintiff had a right to abandon. But it appears, that part of the cargo had been saved ; that the vessel had been repaired, and rendered capable of pursuing her voyage, at an expense much short of half her value ; and had arrived at New-York, within a few days sail of her port of destination. From these facts it does not appear that the voyage was not worth pursuing.

Admitting, however, that such was the loss that the voyage, as it respected the cargo, was defeated ; this can make no difference, for the policy was on the vessel only. The engagement in such policy is, that the vessel shall be of sufficient ability to perform the voyage, not that she shall actually perform it; for this may depend on the will of the insured. There may be such a loss of the cargo by the perils insured against as to render the voyage not worth pursuing, while the vessel sustains no material injury. To say, under such circumstances, it is optional with the insured to give up the voyage, abandon the vessel, and call on the insurers for a total loss, would be to subject them for a loss where no injury had arisen from the perils insured against, and where there had been no violation of the contract; it would subject the underwriters on the vessel for damage done to the cargo ; they would be obliged to pay for the vessel when in a state of safety, capable of prosecuting her voyage, uninjured by the perils contemplated in the policy. No case can be found to warrant such a doctrine as this.

In this opinion Smith, Brainard, Baldwin and Goddard, Js. concurred. Trumbull and Hosmer, Js. dissented.

Judgment to be entered for a partial loss only.