Center v. American Insurance , 7 Cow. 564 ( 1827 )

Curia.

In the suit upon the vessel policy, the plaintiff claims to recover for a constructive- total loss, founded or sea damage to more than a moiety of the ship’s value after the usual deductions. On the trial, the parties as sumed the valuation of the vessel in the policy, which was 10,000 dollars, as the measure with which the cost of repairs is to be compared, in' order to determine whether it ex ceeded one half the value of the ship.

Whether the proper principle of estimating the moiety was adopted at the trial; and, if so, whether the sale be fore abandonment rendered that abandonment invalid, ar< the only questions of law necessary to be considered ii the vessel cause, according to the view which we haw taken of it.

The Pallas was originally sheathed with copper. He disaster rendered a re-sheathing necessary. The defend ants’ counsel urged, that if she could be rendered seawoi thy, and fully competent to perform the voyage, by repair amounting to less than the moiety, as by a sheathing wit plank instead of copper, the plaintiff had no right to aban don. And they insisted on the question being put to th jury in thatshape. The counsel for the plaintiff contended that the legal measure of repairs was, what would- plac the Pallas in statu quo. And so the judge decided charging definitely, that the re-coppering made a part of the repairs.

It is abundantly settled, as a general rule, “ that if the ship or goods insured, be damaged to more than one-half of the value, by any peril insured against, the assured may abandon, and recover for a total loss.” (Phil. on Ins. 401, and the cases there cited.) Such deterioration is a substantive ground of abandonment. And the only question made on this head, relates to the meaning of "::'the words in the rule, “ one half of the value.” Is it one half of the ship’s value for the purposes of the particular voyage; or of the general market value ? A vesssel competent to cross the Atlantic with a full cargo, is insured for a short trip from one port to another in the same hemisphere; and meets with a ruinous disaster to nearly her full value. With some slight repairs, she may be rendered adequate to her particular duty. Have the insurers a right to insist on those repairs being made; and thus avoid payment for a total loss ? Is the insurance on the ship, or on the voyage ? [f we do not look to the simple abstract value of the ship, vhat becomes of the rule ? Are we not thrown upon what s contended to be the English doctrine ? We are made .n all cases dependent on foreign considerations; such as ;he length and hazardous nature of the voyage. The unnixed value of the ship, and the comparative value of epairs, were adopted by the American courts, to avoid complication and uncertainty. Insurance is an obligation >f indemnity. The insurers are bound to repair the ship, hat is, to amend or restore her, as the term imports; or, In the language of Mr. Justice Livingston, in Depeyster v. The Col. Ins. Co., (3 Caines, 85,) “ to defray all. expenses of ilaeing her in statu, quo." When and where is this to be .one? We answer, at the port of necessity. The insures have no right to split the repairs into parts; and say the caworthy portion for the particular voyage shall be permmed at that port; and the residue at the port of destinaren, or elsewhere. The obligation to repair on the spot is bsoluto. The voyage may never be completed. Disaster, eviation, or breaking up of the voyage by consent, would enable the underwriters to escape the subsequent repairs entirely. In any view, we are satisfied the value of repairs intended by the rule in question, is the expense of fully reinstating the vessel; and generally with the same kind of materials of which she has been deprived by the disaster The decision of the judge was, therefore, correct in poinl of law.^[1]

Was the question of fact, under this principle, fairly put > the jury? The Pállas could not be fully repaired at New Orleans, for want of copper: but this might have een obtained at Havre or New York. The charge of the udge is treated by the counsel-for the defendants as adopt-lg New Orleans prices for the repairs in wood, and the New York price for the copper sheathing; thus looking eyond both the port of necessity and destination for a irt of the repairs. This is said to be an unprecedented isis of estimate; and if intended by the judge in that iew, it might have been unwarrantable. But it was cer,inly most favorable for the defendants. We understand Le judge as entertaining a strong impression against them; id as vindicating it by taking the most favorable side, leir own evidence, to show the failure of the defence, even pon their best possible ground. He takes the testimony :-their best informed witness, Seguin, one of the survey's, ahd the master carpenter who repaired the Pallas for ie purchaser. From this he measures the value of repairs . wood at New Orleans. He then supposed the ship repairable by the copper sheathing at New York; a pía» where it would certainly be much cheaper than at New Orleans, even if copper could have been obtained there a the usual price. In this way, he still makes the repairs deducting one third new for old, and the value of the ole copper, overrun one half of the agreed value of the ship

The evidence as to the amount of repairs consists mainly in the extract from the preliminary proofs, and the esti mates made upon this by Mr. Hicks, the broker; to be com pared with the evidence given in chief by Fosdick, Bus sell, Seguin, Southerland, Grleazer and Eckford. Th< whole was submitted to the jury; having first been opei to,- and undoubtedly having undergone the criticisms oí counsel. The question was one of fact; and peculiarly within the province of the jury. The evidence was con flicting to a certain degree. But we do not see hov any man who reads it, can escape the strong impressioi which the judge communicated to the jury; and which we think he was justifiable in communicating. If we differec both from judge and jury, we should hardly feel autho rized to grant *a new trial, unless the verdict were clearly against the weight of evidence.

The ship was sold four day's previous to the abandon ment. In this there cannot be a doubt the agents actec with perfect good faith. The surveys concurred in recom mending a sale; and there was already a constructive tota loss; or what would be so upon abandonment. We inclim to think the captain had power to sell under these circum stances. (Phil. on Ins. 401, 411, 412.) But ifohe wantec the power, we do not think this could affect the right t< abandon. If he acted tortiously, the interest acquired by the defendants is in the ship. All their rights are saved In general, the master cannot impair the right to abandoi by any thing he does. The act of repairing is considera an exception. He may in his discretion repair; a.nd whei that is done, and the vessel fairly on her voyage, the righ of abandonment is taken away. (4 Cowen, 422.) He i acting in the line of his duty and power; and the grourn of abandonment is removed before it is made. Not so here The sale, if it had any effect, would seem rather to strengthen than impair the right to abandon.

The only remaining questions arise upon the freight policy. It is settled that the abandonment of the ship does not affect the remedy for loss of freight. (Phil. on Ins. 428, 429, 430, and the cases there cited.) It is not denied, however, that another vessel could have been procured to carry on the cargo from the port of necessity. When this can be done, it is, in general, the .duty of the master to tranship the cargo, and earn freight. If he neglect to do 'so, it has been held that the insurers are not liable. (Saltus v. The Ocean Ins. Co., 12 John. 107. Bradhurst v. The Col. Ins. Co., 9 John. 17.) The failure to earn freight is imputed, in such case, to the assured, through his agent, the master. The charter party of affreightment is not dissolved; and the underwriters are entitled to its execution, in order to be protected against a total loss if possible. Ho freight is, in strictness, due, until the goods reach the port of destination; unless they are voluntarily accepted at the port of necessity; or there be a refusal, upon offer made, to have the goods sent on in another vessel. (Bradhurst v. The Col. Ins. Co., 9 John. 17, per Kent, Ch. J.) These are the principles on which the master is bound to proceed. We lay out of view the fact that the vessel might have been made seaworthy short of an expense to one half her value, and have taken in the cargo; because the assured, having a clear right to full repairs, was entitled to abandon. This, we have seen, while it puts the vessel beyond his control, is not to interfere with the claim for loss of freight. The obligation to earn freight must have had reference exclusively to the employment of another ship. But cui bono, in this case, employ another vessel? Here had been no progress in earning freight. The vessel is driven back with the cargo to her port of departure; where she lies as a wreck, and is sold for the benefit of those concerned. The cargo is unladen, and finally received by the shippers. It seems to us that here was a loss of freight absolutely total. We cannot intend that the hire of a vessel for the same voyage, would have ^een at a ^ess that stipulated for in- the original charter party. There was, in truth, nothing to abandon. (Phil. on Ins. 382, 386, and the cases there cited.) There could be no salvage. It is strongly intimated in Green v. R. E. Ass. Co., (6 Taunt. 68,) that in a case like the present, no abandonment is necessary, as there is nothing to be transferred by the assured to the'insurer. ^[1]

But suppose this vessel is to be considered ias having proceeded on her voyage, pursuant to the contract, with the shippers. She met with a disaster which broke up that voyage. More than one half of her freight was gone at all events; and -the assured abandoned as for a total loss to the underwriters. The principles of constructive total loss are applicable to freight. Even supposing a pro rata freight actually earned to less than one half of the whole, we should think the assured might abandon ; thus throwing the whole loss on the underwriters; crediting them with what is earned by the lost ship as salvage. Take the case of a ship lost at an intermediate port of necessity. *The shippers may elect to receive their goods, and pay pro rata freight. (6 Co wen, 504.) It amounts, however, to but one fourth of the sum stipulated in the charter party. May not the assured abandon ? This is usually a question of no importance ; for when the pro rata freight is paid, it is the same thing to the underwriter, whether there be an abandonment or not; whether the loss be considered partial or total. If it be not paid, and the collection is thrown upon him, it makes a difference, provided the shipper prove unable to pay. We see no objection to an abandonment in either case, upon the principles that govern where ship or goods are deteriorated to more than a moiety of their value. But we are not without direct authority. In the case of Whitney v. N. Y. Fireman's Ins. Co., (18 John. 210,) there was an abandonment upon an insurance on freight. The plaintiff recovered; and one reason assigned was, that a vessel could not be procured for half the freight valued in the policy to carry on the cargo. It may be safely asserted, that when the vessel is disabled, so that she cannot proceed on -the voyage, the insured on freight may abandon as for a total loss, when another ship cannot be procured for less than half the freight in the policy. The three cases of ship, cargo and freight, seem, to rest on the same principle. The master discharged his duty. ■ The shippers elected to receive the cargo. In this case they acted prudently in doing so; and the underwriters are not injured by the a6t. I

The plaintiff is, therefore, entitled to recover in both causes, as for total losses.

New trial denied in the first cause.

Judgment for the plaintiff in the second, on the verdict.

[1] Itis understood, says Mr. Kent, to be a fixed rule, that if the ship be so in jured by perils as to require repairs to the extent of more than half her valuJ at the time of the loss, the insured may abandon; for if ship or cargo be dam agedso as to diminish their value above half, they are said to be constructive! lost. The rule came from the French law, and is to be found in the treatis of Le Guidon, (Condy, c. 7, arts. 1, 9,) where it is applied to the case oí goods; and in respect to both ship and cargo, the rule has been incorporate; into the American jurisprudence. (Valin’s Com. tome ii. 101; Pothier, de Ass. n. 121: Code de Commerce, art. 369.) There has been considerabl discussion in the text books, as to the right to abandon, when a part onl of the property insured is damaged above a moiety, or lost, and this will de pend upon the manner in which it is insured, if the insurance be upon di: fe rent kinds of .goods indiscriminately, or as one entire parcel, it is thpn a insurance upon an integral subject, and an abandonment of part only cannc be made. But if the.^rticles be separately specified and valued, it has beej considered so far in the nature of a distinct insurance on each parcel, thii the insured was allowed to recover as for a total loss of the damaged parcej when damaged above a moiety in value. Mr. Phillips has suggested a doul whether this distinction be well founded. The rule was taken from tt French treatises, and unless the different sorts of cargo bo so distinctly si parated and considered in the policy, as to make it analogous to distinct ii surances on distinct parcels, there cannot be a separate abandonment of | part of the cargo insured, Guerlain v. Columbian Ins. Co., 7 Johns. Re 527.

The meaning of the words in the rule, 11 one-half of the value,” has bet held to be, the half of the general market value of the vessel at the time c the disaster, and not her value for any particular voyage or purpose. (Bralie v. The Maryland Ins. Co., 12 Peters, 378.) The expense of the repairs the port of necessity, including the expense of getting the ship afloat, stranded, is the true test for determining the amount of the injury, and su snm is to be taken as will fully reinstate the vessel, and, in general, witht same kind of materials of which she was composed at the time of the disasb It has also been considered that the three objects of insurance, vessel, car and freight, stand on the same ground as to a total loss by a deterioration more than one-half of the value. (Center v. American Ins. Co., 7 Cowen Rep. 564.

In ascertaining the value of the ship, and the quantum, of expense or jury, difficulties have arisen, and they were fully discussed, and very clea plained, (in Peele v. Merchants' Ins. Co., 3 Mason’s Rep. 10, 18.) The valtion in the policy is conclusive in case of a totalloss; but in some respects, is inapplicable for the purpose of ascertaining the quantum of injury in se of a partial loss of goods. The rule in that case is, to ascertain the icunt of injury by the difference between the gross proceeds of the sound d damaged goods. (Johnson v. Sheddon, 2 East’s Rep. 681.) This is also e true rule as to the ship, though there is greater difficulty in the applieain. The value of the ship at the time and place of the accident, is the le basis of calculation. (Patapsco Ins. Co. v. Southgate, 6 Peters’ U. S. Rep. 604.) Aijd with respect to the arbitrary and fluctuating rule as to the owance of one-third new for old, there is no doubt of its application in ses of partial loss; but such a deduction is not allowed, and does not apply I cases of total loss. (Peele v. The Merchants' Ins. Co., 3 Mason’s Rep. 28, , 77.) The reason of this allowance to the underwriter, one-third of the pense of the reparations, is on account of the better condition in which 3 ship is put by them, than she was when insured, and the owner, when comes again into the possession of his vessel, receives the benefit of the pairs. But neither the reason of the rule, nor the rule itself, applies to the se of a ship suffering a partial loss on her first voyage, when she is new, d cannot be made better by repairs. (In Pirie v. Steele, 8 Carr. & Payne, 200.) ie half value which authorizes an abandonment, is half the sum which the ip, if repaired, would be worth, without any such deduction. (Lupuy v. Ins. Co., 3 Johns. Cas. 182.)

[1] It has been a very controverted question, says Mr. Kent, (3 Com. 333, et seq.) whether an abandonment of the ship transferred the freight in whole or in part. It was finally settled in the jurisprudence of New York and of Massachusetts, and adopted as the true rule in the Circuit Court of the United States for Massachusetts, that on an accepted abandonment of the ship, the freight earned previous to the disaster was to be retained by the owner, or his representative, the insurer on the freight, and apportioned pro rata itineris; and that the freight subsequently earned went to the insurer on the ship. (United Ins. Co. v. Lenox, 1 Johns. Cas. 377.) In the case of (Armroyd v. Union Ins. Co., 3 Binney’s Rep. 431,) the question was raised, but left undecided, whether the entire, or only a pro rata freight, in such a case, went, on abandenment, to the insurer of the ship. This litigated question has now been settled in England; and in (Case v. Davidson, 5 Maule & Selw. 19.) where ship and freight were separately insured, and each subject abandoned as for a total loss, it was adjudged that the abandonment of the ship transferred the freight as an incident to the ship, and that an abandonment was equivalent to a sale of the ship to the abandonee. The French jurisprudence on this subject has been equally embarrassing and unsettled. The ordinance of 1681 had no textual regulation relative to freight, in cases of abandonment. It was left to the decisions of the tribunals, and they denied to the insurer on the ship any freight for the goods saved. Yalin exposed the error, (Com. liv. 3, tit. 6; Des Assurances, art. 15,) and maintained that freight on abandonment, whether paid in advance or not, ought to go to the insurer. In 1118, it was settled at Marseilles, under the sanction of Emerigon, that freight was an accessory to the ship; and in abandoning the ship, the freight acquired during the voyage went with it. (Emerigon, tome ii. 217, 227.) The ordinance of 1119 followed that doctrine, and declared that acquired freight already earned on the voyage, was insurable, and did not go with the ship on abandonment, but tliat the future freight to be earned on the goods saved, would go to the insurer, if there was no stipulation to the contrary m the policy, save the wages of seamen and bottomry liens. The new code (Code de Commerce, art. 386,) declared that the freight of goods saved, though paid in advance, went, upon abandonment, to the insurer on the ship. The construction given to the code by the royal court at Rennes, in 1822, in the case of (Blaize v. Company of General Assurance at Paris, was, that the future freight did not go to the insurer on the ship, but only the freight on the goods saved and already earned at the time of the loss. (Boulay Paty, tome iv. 397, 417)