Duncan v. Great Western Insurance , 3 Keyes 394 ( 1867 )

By the Court.—Bockes, J.

—(After stating the facts.) Accepting the facts to be as proved and found—that the vessel had received a fatal injury prior to the 24th April; that after such injury she was a mere wreck, kept afloat by the utmost exertion of the master and crew, unable to proceed on her voyage, or indeed to make headway toward any port, save under the most favorable circumstances of wind and tide—and the judgment of the court below was' obviously right.

As the case comes before us, we must regard these facts as definitely and conclusively established. Immediately after the injury was apparent, the vessel was directed toward the nearest accessible port; and although changes were afterwards made in'the direction, they were deemed necessary by reason of the shifting of the wind and the extremely hazardous condition of the ship ; and notwithstanding the exercise of the utmost prudence, and after exhausting efforts from all on board, she sank at sea. The loss should, therefore, be deemed effectual and certain from the time the vessel was so injured and crippled as that her destruction became inevitable ; and in this case the claim for damage must be deemed to have attached when the injury was received which ultimately, and before she could be brought to port, caused the destruction of the vessel (3 Johns. Cas., 16 ; 7 Ohio, 284 ; Phill. on Ins., 685-86 ; Arn. on Ins., 1000-1004). The sale of the one-fourth on the 24th April to Kendall and Richardson, the vessel then being a mere wreck, on the supposition and understanding of the parties that she was seaworthy, was of no force as a contract of sale. If the consideration was unpaid, it could not be recovered ; or, if paid, could be recovered back.

In my opinion the superior court ruled correctly in holding that the defendants were liable for the full amount of the insurance; and the judgment appealed from should be affirmed with costs.

Judgment affirmed. .