Majority
p. 75Muir and Boyd against The United Insurance Company of the City of New-York.
Headnote
A vessel captured, recaptured, and carried into a port of the country to which bound, and in the way to that of her destination; information of all these circumstances being received at the same time, the assured cannot abandon. If, in such a case, she be restored on salvage, and after-wards, together with her cargo, be sold at auction, the charges of sale fall on the assured; the underwriter being liable for no-more than the amount of the salvage, and the damage sustained under the policy.Qwxre, if newspaper information be such on which an abandonment can be made?
This was an action of assumpsit on a policy of insurance, effected in the name of Archibald Gracie, on the cargo of the ship Dauphin, valued at eighty-seven thousand one hundred and sixty dollars, on a voyage from Surinam to London.
The cause was tried before Mr. Justice Badcliff, at the June sittings, in Uew-York, 1802, when a verdict was taken for the plaintiffs, subject to the opinion of the court on a case to be made.
By the case, the interest of the plaintiffs, the subscription of the defendants, and the sailing of the vessel on the voyage insured were conceded.
It- was also admitted that the ship and cargo were cap
p. 76
tnred by a French privateer, and, after being-in her possession thirteen days, recaptured by two British frigates, carried by them into Plymouth, and there-libelled for salvage; that a claim was interposed by the captain on behalf of the plaintiffs; that information of the capture, recapture, and arrival at Plymouth were received at the same time, through the medium of a London newspaper, and the cargo abandoned to the defendants the next day.
That a bona fide compromise for the salvage was made between the consignee of the plaintiffs and the captors, at one-eighth of the appraised value of the cargo, after deducting an eighth for sea damage, the amount of which was, on a reference, fairly estimated by the captain and prizemaster, but without unloading.
That on payment of the compromise, the vessel and cargo were delivered up to the consignee, and by him sent to the port of destination, where the cargo was sold at auction foi the benefit of the underwriters. That, had it been sold at Plymouth to pay the salvage, it would not have produced, by 30 per cent., so much as it did in London.
That by the Act of Congress of the 2d March, 1799, s. 7, one-half of recaptured property is allowed as salvage, if it be in possession of the enemy above 96 hours. That the Supreme Court of the "United States had determined the subjects of France to be enemies within the act.
That the rule of salvage adopted by the British Court of Admiralty, in London, as- to American property, is that which is applied to British property under the 33 Geo. III. c. 66, s. 12.
That by this statute one-eighth of recaptured property is allowed if retaken by a single king’s ship; if by more than one, so much as the judge of the Court of Admiralty, or other court having cognizance thereof, shall order.
That in consequence of the sale at auction, the cargo wag subjected to charges, amounting in the whole to 772l. 3s. sterling.
*It was agreed, if the court- should be oí
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opinion that the plaintiffs were entitled to recover a total loss, that judgment should- he entered in their favor for twenty-five thousand five hundred and eighty-one dollars. But if the court should be of opinion, that the plaintiffs were entitled to recover only the amount paid for salvage, the auction duties, together with the expenses incident to the sales at auction, and also the damage, loss, and injury the cargo sustained while in the hands of the captors and recaptors, then the verdict should be for the sum of nine thousand five hundred' and sixty-one dollars and twenty-four cents; but if the court should be of opinion, that the damage sustained by the cargo had not been properly ascertained, or that the charges attending the sale at auction in London were not properly incurred, then and in such case, a proportionate deduction to be made for the benefit of the defendants.
The question arising from these facts is, as to the extent of the plaintiffs’ right to recover.
This, we think, is not a case of a total loss. The news of the capture, recapture, and arrival at Plymouth, all come together:[2] and the only pretence of a total loss ex-
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isfcing when the abandonment was made, is founded on the claim of salvage. The amount of this could not be ascertained with certainty, from any information possessed by the assured, at the time of the abandonment. Although by the act of Congress of 2d of March, 1799, s. 7, the salvage of vessels and goods recaptured from the enemy, after having been in their possession ninety-six [*54] *honrs, is established at one-half their value; and the rule adopted in the English admiralty, as to salvage, is founded on principles of reciprocity, and regulated by the laws of that country to which the recaptured property belonged, yet Sir William Scott declared, on the 7th of December, 1798, that it was the practice of the English admiralty to restore American property on the rule of the English admiralty, without inquiring into the practice of America. The English rule of salvage is one-eighth, if recaptured by a single ship; and if by the joint operation of two or more, the salvage is left to be settled by the admiralty, according as it shall judge fit and reasonable. Under the circumstances, then, of this case, the rule of salvage would-not be considered as going beyond one-eighth. There was not, at least, any definitive or certain ground for estimating it higher. And as matter of fact, we find that the salvage was, at the time, liquidated and settled between the consignee and recaptors, at one-eighth. The information received by the insured, upon which the abandonment was made, was a mere newspaper account; and if information, in any case, derived through such a channel, would be sufficiently authentic to warrant an abandonment,[2] we think, in the present instance, it was too imperfect to afford sufficient data to the insured to calculate his actual loss.
(a) (a) A mere report sufficient, if it prove true. Bainbridge v. Neilson, I Camp. 237.
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We are of opinion, therefore, that the plaintiff is not entitled to recover as for a total loss; nor, that the charges attending the auction can be considered as a loss, within' the policy, to be borne by the underwriters. It was a voluntary act of the consignee; done, probably, in consequence of information of the abandonment; and made, therefore, at the peril of the owner. Had the sale at auction been to ascertain the injury the cargo had received, and limited to such parts as were damaged, it would have been a reasonable charge; but that appears not to have been the object or effect of the auction. The damage had been previously liquidated by the captain and prizeraaster; and if those damages, together with the salvage paid, be allowed against the defendants, it is all the case will warrant.
We are, therefore, of opinion, judgment ought to be for the plaintiffs, for the salvage and damages only.
Judgment for salvage and damages.
Footnotes
- (a) (a) It is universally conceded, that in such a case there is no right to abandon. Hamilton v. Mendes, 2 Burr. 1198. But whether the right shall be governed by the knowledge of the facts on which founded at the time of abandonment made, or whether, by the real facts as existing then, or at the time of action brought, has been rescata questio. In Church v. Bedient and others, 1 Caines’ Cas. in Err. 21, and Hallett v. Peyton, Ibid. 28, the court determined that if the facts at the time of abandoning prove the loss only partial, a total loss cannot be recovered. In Bainbi'idge and another v. Neilson, 1 Camp. 231, Lord Ellenborough seemed to be of opinion, that the actual state of facts, and not their known or supposed state, at the time when the abandonment is made, ought to determine the right; but, on an -argument at bar, in the" same case, the K. B. appear to incline to the opinion that the right to abandon ought to be regulated by the state of things at the time of action brought. See also M’Carthy v. Abel, 5 East, 388, and Thelluson v. Sheddon, 2 N. R. 230. In Massachusetts the loss, as at the time of the offer to abandon, decides the right. Lee v. Boardman, 3 Tyng, 248 , but in Dorr v. New England Ins. Co., 4Tyng, 220 this principle seems doubted. In Rhinelander *78 v. Insurance Company of Pennsylvania, 4 Cranch, 29 ; Marshall v. Delaware Ins. Co., Ib. 202, and Alexander v. Baltimore Ins. Co., Ib, 370, the real state of the loss at the time of the abandonment made, is said to be the proper and safe criterion. The same rule is adopted in Pennsylvania. Dutilh v. Gatliff, 4 Dall. 440 .