Allen v. Commercial Insurance , 67 Mass. 154 ( 1854 )

Thomas, J.

The question raised upon the report is, whether the plaintiffs can recover for a total loss, the defendants conceding that they are liable for a partial one. It is plain there was not an absolute total loss. And we think the claim for a constructive total loss cannot be maintained. These policies contain the provision now so common in the policies made in this commonwealth, “that the insured shall not have a right to abandon the vessel for the amount of damage merely, unless the amount which the insured would be liable to pay, upon adjustment as for a partial loss, shall exceed half the amount insured.”

It is a general rule in this country, that if a ship is damaged to more than half the value by any peril insured against, the assured may abandon, and recover for a total loss. Though a different rule is adopted in England, and this may perhaps be regarded as a departure from the original economy of insurance, which was indemnity to the assured, it has the advantage of affording a fixed and definite standard, and is too well settled to be the subject of controversy. In this estimate the valuation in the policy is conclusive. Mr. Phillips, in his excellent treatise on insurance, supposes the weight of the authorities to be in favor of taking the actual value of the ship, when repaired, unless it be otherwise stipulated in the policy. 2 Phil. Ins. (3d ed.) § 1539. But in this commonwealth, and especially in policies containing the clause before recited, the question must be deemed to be at rest. Deblois v. Ocean Ins. Co. 16 Pick. 303. Orrok v. Commonwealth Ins. Co. 21 Pick. 467. Hall v. Ocean Ins. Co. 21 Pick. 472. And in reviewing the grounds on which these decisions are based, we see no reason to question (heir soundness.

It is equally well settled in this commonwealth, that there must be a deduction of one third new for old. See the cases before cited; and Sewall v. United States Ins. Co. 11 Pick. 90; Winn v. Columbian Ins. Co. 12 Pick. 279; and Reynolds v. Ocean Ins. Co. 22 Pick. 191.

It needs but arithmetic to determine, that, upon the application of these rules, the plaintiffs could not abandon and claim for a total loss, upon the amount of damage merely.

But the right to abandon and claim for a total loss', existing in cases of injury to an amount greater than half the value of the ship, is not restricted to them. If this vessel had been in a port of necessity, in the condition described in the report, and the master had found it impossible to obtain the requisite funds for her repair by bottomry or otherwise, or to consult the owners, a sale might have been justified; and upon abandonment, no lien or incumbrance having been created to deprive the underwriter of the rights which it is the object of an abandonment to secure, a total loss might have been claimed, though the cost of repair would have been less than fifty per cent.

But the brig had reached her port of destination; her voyage, the voyage covered by the policy, was not broken up; the owners were present, and might have been consulted; and though the í master, when the owner is not present, and cannot be consulted, may allege the impossibility of raising funds as a reason for selling, it is otherwise if the owner is present, and the loss is less than half the value. 2 Phil. Ins. (3d ed.) §§ 1533, 1578. Bryant v. Commonwealth Ins. Co. 13 Pick. 552. Peirce v. Ocean Ins. Co. 18 Pick. 83. Marsh. Ins. (3d ed.) 589. American Ins. Co. v. Ogden, 20 Wend. 287. To say that when a vessel had reached her port of destination, and the owners were present, and she was damaged to an amount less than half her value, the master could sell from inability to get funds for her repair; and that on such sale an abandonment and claim for a total loss could be made; would be to extend without reason or authority the power of the master, and the liability of the underwriter. The power of the master to sell grows out of the necessities of his condition, and is to be limited by them. The liability of the underwriter is measured by the same rule which defines and limits the power of the master.

The sole ground of sale and abandonment in this case was the inability to procure funds for repairs. If there were others, the plaintiffs cannot now avail themselves of them. It is not open to them to show that causes existed other than those upon which the sale and abandonment were in fact made. 2 Phil. Ins. (3d ed.) § 1684. The evidence offered in relation to the harbor of Valparaiso, the want of facilities for rep ah at that port, and the danger of putting the brig on the beach, was therefore immaterial; as the report of the presiding judge and the deposition of the master show that the sole ground of sale was the inability of the master to get funds for repair.

This brig was bottomried for necessary recruits; that lien was not discharged before the abandonment; and it may well be doubted, though it is not necessary to determine this point, thvse before stated being conclusive, whether the plaintiffs could make a valid abandonment before discharging the fien so created. 2 Phil. Ins. (3d ed.) § 1554. Depau v. Ocean Ins. Co. 5 Cow. 63. Gordon v. Massachusetts F. & M. Ins. Co. 2 Pick. 249. 2 Arn. Ins. 1161.

And whether this abandonment was seasonable, it is not necessary to decide, the point not having been argued by the counsel, and the want of cause for abandonment being decisive as to the plaintiffs' claims.

Cases to be sent to an assessor to assess the damages as for a vartial loss.