Deidericks v. Commercial Insurance — 10 Johns. 234

Majority

p. 236

Deidericks against The Commercial Insurance Company of New-York.

NEW YORK,

May, 1813.

Headnote

Policy of insurance on a cargo, to wit, sugar, mace and logwood, the quantity of each being specified, and separately valued. More than a moiety of the sugar having become damaged by the perils of the sea, the insured a» abandoned the whole of the sugar, and claimed payment for a total loss of the same. It was held that if different sorts . of goods are specified, and separately va* lued in the same policy, the insured may abandon any one sort, or article, in case of loss, and retain the rest, in the same manner as if the different articles were insured by different policies.

THIS was an action on a policy of insurance on the cargo of the schooner Paulina, on a voyage from New-York to Falmouth, to wit, upon 150 boxes of Havanna sugar, weighing 59,499 pounds net, valued at 6,650 dollars; 5 hampers of mace, weighing 757 pounds net, valued at 5,700 dollars, and 4 tons of log-wood, valued at 250 dollars.

The vessel sailed on the voyage insured, the 2d of February, 1811, and experienced such bad weather, and sustained such injury, that she was compelled, from necessity, td put into the port of Philadelphia. On a regular survey, 131 boxes of the sugar insured were found wet and injured by sea damage, and rendered wholly unfit to be reshipped to the port of destination, after the repair of the vessel.

On the 27 th of February, 1811, the plaintiff abandoned the sm gars insured to the defendants,' and claimed payment for a total loss of the same. The defendants refused to accept the abandonment, and the whole of the sugars were sold by a mutual agent at Philadelphia, without prejudice to the rights of the parties, and the net proceeds of the sale amounted to 3,718 dollars and 30 cents.

The question submitted to the court was, whether the plaintiff' was entitled to recover for a total loss of the sugars, or only for a partial loss. If for a total loss, it was agreed that judgment should be given, for the plaintiff for 1,144 dollars and 32 cents, with interest from the 1st of April, 1811, being the sum due, on that calculation. But if the court should be of opinion that the plaintiff was entitled to recover for a partial loss only, it was to be decided on what principles the same should be adjusted, whether according to the New-York, or Philadelphia weight, there being a difference in the allowance of tare in the two places. According to the former, allowing 15 per cent, for tare, the weight would,

p. 237

be 531 cwt. By the latter the weight would be 558 cmt. The sound and damaged were both sold according to the Philadelphia weight.

Hoffman, for the plaintiff.

Wells, for the defendants.

delivered the opinion of the court. This case was submitted to the court upon two points: 1. Whether the plaintiff is entitled to recover as for a total loss of the sugars, without abandoning the other part of the cargo insured; and, 2. If not, then upon what principles shall the partial loss be adjusted?

The first point is entirely new with us, and does not appear ever to have been discussed and decided in the English courts. Marshall, (tit. Abandonment, s. 3. p. 600.) however, lays down the right of a partial abandonment in a case like the present. He admits the general rule that the abandonment ought to be made for the whole of the effects insured, and not for a particular part, but he confines the rule to the case where the contract is entire, as where I have divers sorts of goods on.board a ship, and I insure 1,0002. on the whole, without any distinction. But he says that if I insure the articles by different policies, or if in the same policy they be separately valued, I may abandon one article and retain the rest, because these are, in effect, distinct insurances, though in the same policy. In the present case, the insurance was upon a specified quantity of sugar, mace and logwood, and each article separately and distinctly valued; there was no insurance upon the whole articles in a gross sum, and the sugars alone were damaged beyond a moiety of their value, and were alone abandoned. The case is, therefore, brought within the principle advanced by Marshall, and the only question is, whether this court will adopt it as law. This will depend upon the good sense or authority of the rule.

The rule stated by Marshall is taken from the French law.

It is laid down in Le Guidon, (c. 7. s. 8, and 9.) that if part of the cargo be damaged, and part not, the assured can abandon the damaged part, if it be above a moiety in value, and reserve the sound part. But if the cargo consists of the same sort or kind of merchandise; as, for instance, fruits, grain, salt, &c. in that case, it is said, you cannot abandon the part which is damaged and retain the residue; though if the cargo consists cf different kinds or sorts

p. 238

of merchandise, and one sort be damaged, you may abandcii~ the whole of the sort, or species of the cargo, to which the da~mage applies, and retain the other sound articles. Enierigoni (tom. 2. 214.) notices these distinctions in Le Guidon, and says that the ordinance of the marine, in art. 47, has established a more simple rule which forbids an abandonment of part only. But this rule of the ordinance, he observes, requires explanation; and,, therefore, if by one policy I insure my sugar, and by another policy my indigo, or if in the same policy I insure, distinctly and separately, such a sum upon my indigo, I can, in case of loss, retain one of the subjects and abandon the other, because they are the same as distinct insurances. Valin (tom. 2. 111.) seems to adopt the same construction of the ordinance, and to confine the article to the case of insurance upon the totality of a cargo, without distinction of objects. Emerigon (tom. 2. 215.) illustrates the same distinction, by the case of an insurance in the same policy of ship and cargo, distinguishing how much upon the one and how much upon the other, and the ship becomes disabled, the assured may abandon the ship without abandoning the cargo, though he says the rule would have been different, if both had been insured by one entire sum without distinction.

■ There is nothing very unreasonable in this doctrine, and upon the sanction of such authority, and in the absence of all authority to the contrary, the court do not feel themselves at liberty to reject it.

The plaintiff is accordingly entitled to recover for a total loss of the sugar, and judgment is rendered according to the provision in the case.

Judgment for the plaintiff.