Mey v. Tunno , 2 S.C.L. 307 ( 1801 )

The Judges were unanimously of opinion, that the plaintiff had a right to abandon on the original capture ; and that this had been determined over and over again in our courts, but it did not follow that because this was a right which the insured might exercise, that they were bound in all cases to do it immediately after the capture ; for it was very much for the advantage of trade, and indeed for commerce in general, that this right should remain and continue until all prospects of regaining or getting back the property were at an end: otherwise, it would check and put a stop to all those laudable endeavours, which honest and faithful men have been in the constant exercise of in all parts of the world where captures are made, in order to reclaim and obtain a restitution of ships and cargoes ; and if the pursuit of those endeavours were to be the means of debarring men of their right of eventually abandoning the property to the insurers, very few if any would give themselves any trouble about it afterwards.

That in the present case, it appeared to them that the right to abandon continued in the insured until the sentence or decree of the court of vice-admiralty in Jamaica, and that it was by no means too late to make their election to abandon as soon as that event was known. But in the present case, they could not by any means consider the vessel and cargo as restored to the claimants; for upon the appeal being made, she was still subject to the right of the captors, and it was possible it might finally be given in their favour j and this was still a risk the underwriters were liable to, supposing them only liable to an average loss, although from the accounts produced, the loss exceeded the one moiety of the sum covered in the body of the policy of insurance.

That this order of restitution, however, by the vice-admiralty court at Jamaica, could be considered in no other light than as an interlocutory order; and the vessel and cargo, and the proceeds thereof, may well be compared to property seized at common law for rent and replevied, which was still liable to the landlord’s demand ; although the defendant had got back the possession of it till the right was finally determined, upon his giving security to return the property seized, or have it forthcoming to answer the demand in case the suit should go against him.

The Judges were therefore all of opinion, that the underwriters were liable, and that the rule for a new trial snould be discharged. Present, Grimke, Waties, Bat, Johnson and Treze-■'7ANT.