Walker v. Protection Ins. , 29 Me. 317 ( 1849 )

The opinion of the Court, (Howard J. concurring only in the result,) was delivered by

Wells, J.

These actions were upon policies of insurance, effected upon the barque Elizabeth, on the seventeenth of December, 1845, for one year, commencing and ending, at twelve of the clock, at noon. The preliminary notices were duly given, and offers of abandonment were made, on the eighth of January, 1847.

1. The opinion of master mariners, relative to the impracticability of saving the vessel, the probable expense of repairs, if she could have been taken to some port in the West Indies, and the course to be pursued, in making them, was admitted in evidence. As the jury have found a total loss, the two last named branches of testimony become immaterial:

On questions of skill, science or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. A shipbuilder may give his opinion as to the seaworthiness of a ship, even on facts stated by others. So of nautical men as to navigating a ship. 1 Greenl. on Evi. § 4, 40; Beckwith v. Sydebotham, 1 Camp. 117; Malton v. Nesbit, 1 C. & P. 70.

The opinions of experienced masters of vessels fall within the same principle. Cuique in sua arte, credendum est. The reasons for their opinions may be required, and the jury will be able to decide upon their correctness. The testimony was properly received.

2. The jury were instructed, that the risk would not expire, until the expiration of the year, the time being reckoned, according as it would be 12 o’clock, at noon, at Portland, on Dec. 17, 1846. The vessel having been lost, on the day when the policies expired, and as the defendants contended, after noon, at the place where she then was, this instruction was material.

The contract of insurance was for a year, and if the time of noon should be taken, at a place, east or west longitude of Portland, on the day when the risk .expired, the period of time would be lessened or extended, and might be less or more than a year. Such a construction wrould be in violation of the contract. The parties most be considered, as regarding the meridian of the place, where the contract is made, unless some other one is mentioned in it.

3. The jury were instructed, “ that a vessel, on the high seas, might be considered as totally lost, if she were found by reason of the violence of the. winds and waves, to have become a wreck, incapable of being saved and brought into port. Yet however great might have been her injuries, so long as it continued to be doubtful, whether she might or might not be brought into a port, there would be no actual total loss. The mere fact, that the master and crew might remain upon the wreck, would not prevent the loss from being considered total, if the vessel were incapable of being brought into any port. Nor would the mere fact, that the vessel continued as such a vessel, to float upon the seas, prevent the loss from being considered total, if she could not be brought into any port.”

It is unnecessary to consider, whether the jury might not have been well warranted, by the facts, in finding a total con¡-struciive loss. For as they have specially found an actual total loss, the correctness of the instructions must be tested, by such finding.

This is not a case, where an injury happens before the time-specified in the policy, and a loss after the time, resulting frota that injury. But the jury must have found, under the instruction, that the loss happened before the time, for which the vessel was insured, had elapsed.

Where there is a destruction of the property insured, so that nothing remains, which would be valuable upon abandonment to the insurers, it is an actual total loss. And in such case, no abandonment is necessary, for the obvious reason, that there is nothing to abandon. But if any part of the property survives the peril, as in case of a shipwreck, without a total: destruction of the thing insured, or if any rights or claims remain to the insured, as owner of the property, it is a case of technical or constructive .total loss, and an abandonment is necessary, for it is just, that the insured should transfer to the underwriters the remains of the property, or the rights accruing to him as owner, upon his receiving of them the amount insured. 2 Phil, on Ins. 230, 231.

According to the instructions, the jury must have found, that the vessel became a wreck, incapable of being saved and brought into port. The instructions imply that the jury must find the wreck to be incapable of being brought'into port by any human agency, and that it must be a case beyond all doubt in that respect, to constitute an actual total loss. If there were a doubt, that the wreck could be saved or brought into port, they were not at liberty to determine it to be an actual total loss. There then could be nothing, of which the underwriters might avail themselves upon an abandonment, and such an act would be useless.

If a vessel is sunk in the ocean, so deep that no human agency can raise her, she is lost to all beneficial purposes, although she may remain in rerum natura. Her existence is valueless, and no benefit could accrue to the underwriters upon an abandonment.

It may be said, that if the wreck could float, it might have been found and brought into port, and after the payment of salvage, the underwriters would be entitled to what might remain. The jury have not found any such state of facts, but on the contrary, that the wreck was incapable of being brought into port. Whether the verdict, for an actual total loss, could be sustained by the evidence, is not now the question presented, but whether the instructions were correct. If the finding of the jury, upon the point on which the verdict was rendered, should be considered questionable, still they might have found, with the most perfect propriety, a constructive total loss, and as an abandonment was in fact made, there could have been no just ground of objection to such conclusion.

But the instructions, upon a careful examination of them, will be found, we believe, to be correct, and not introducing any new doctrine as to what constitutes' an actual total loss.

Judgment on the verdict.