Forbes v. Manufacturers' Insurance , 67 Mass. 371 ( 1854 )

Dewey, J.

The case stated shows a loss of more than fifty per cent, on the teas insured by the policy. The plaintiff contends that, in consequence of such loss, he might properly abandon the whole goods invoiced, and recover as for a total loss. To this it is answered, that the loss was wholly occasioned by the goods having been sacrificed by jettison for the common safety of the whole cargo, and that the plaintiff has thereby acquired a right of contribution from the other interests for such loss by jettison, and that this claim should be first satisfied from such contributors, leaving the balance only chargeable upon the underwriters, and the latter sum to be computed as the loss, and that so a loss would be shown of less than fifty per cent. We do not, however, adopt this view, and, in the opinion of the court, the assured may at once recur to the insurers for the loss of goods by jettison, and he is not bound first to recur to the other owners for contribution to the loss suffered for the common benefit. Goods lost by jettison may therefore properly be taken into the estimate in making up the amount of more than fifty per cent, necessary to authorize an abandonment

The second point of inquiry is, whether an abandonment of the residue of the goods, with the right of a recovery as for a total loss, can be made after such-residue has arrived in safety at the port of destination ? As to this, the court are of opinion, that after any considerable portion of the goods insured, as in the present instance, thirty eight per cent, of the whole amount of the number of boxes of teas, has arrived at the port of destination, and been landed in a perfect state, the assured cannot then abandon and recover for a total loss, upon the ground of the loss of more than fifty per cent, at some former period of the voyage. 2 Phil. Ins. (3d ed.) § 1611. Seton v. Delaware Ins. Co. 2 Wash. C. C. 175.

The further inquiry is, upon what principle, as to the valuation, are the goods jettisoned to be computed, in an adjustment of the loss to be paid by the insurers. It is to be remarked, that this inquiry is confined to the liability of the insurers, and is not the question of valuation as between contributors liable to contribute to the loss of goods sacrificed for the common benefit. We have already stated that the plaintiff cannot recover of the insurers as for a total loss. The right of recovery is confined to the case of a partial loss. But it is a partial loss upon a valued policy. This value was fixed by the parties at the value in the invoice, with an advance of twenty per cent. As to a valued policy, this would be the unquestionable rule. 2 Phil. Ins. (3d ed.) § 1203. To a certain extent the valuation is opened, but not so as to change the rule of damages from that of a valued to an open policy. In a case like the present, when the subject of insurance is capable of separation into parts or parcels, and a partial loss occurs, the valuation in the policy may be taken as the standard price, and a proportional part charged upon the insurers, as upon a valued policy. Such is the case here, being that of a loss of a certain definite number of chests or boxes of teas, the value of which by the invoice can be easily ascertained by computation.

The plaintiff is therefore entitled to recover as for such partía loss, upon the principles above stated.

Judgment for the plaintiff.