Majority
p. 79Post, Grinnel and Minturn against The Phœnix Insurance Company of New-York. The Same against The Same. ALBANY, Jan. 1813.
Headnote
one quarter vai!£ ?d at the sum insured, 5,500 dollars, and her cargo, were insured from New-York to St. Sebastians; the insured were not to abandon, if captured or detained, until six months after notice given of the capture, &c.Being off St. Antona, about 8 leagues distant, they took a pilot for St. Sebastians, but being informed that a vessel which had, been and was then following them, was a British cruiser, which had taken several American vessels bound to St Sebastians, and the wind being light and unfavourable, the master, with the advice of the pilot, put into St. Antona, for fear of capture and detention, with intent to proceed, with the first fair wind, to St. Sebastians. On arriving at St. Antona, the Radius and her cargo were seized by the officers of the government there, acting under the orders of the French emperor; on the 12th January, 1810, the ship’s register, roll of her crew, and other papers were taken from the master, and never returned; the cargo was taken out and sent to Bayonne, mil the'vessel detained until the 8th July, 1810, when St. Antona having been taken by the English and Spaniards, the Radius was taken by an English frigate, and carried to Corunna, and there detained by the English and Spaniards until 30th October, 1810, when she was given up, on payment of salvage, and permitted to return to New- York in ballast, but not to proceed to St. Sebastians, and the master, to pay the salvage, and necessary expenses, borrowed money_ on bottomry, and the ship arrived at New-York, the 0th November, 1810. ■ On the 1st May, the insured gave notice of the capture to the insurers, and on the 1st November, 1810, gave notice of abandonment, and on the 7th November gave proofs of interest and loss, and demanded payment for a total loss. It was held, that the going into St. Antona was justifiable and not a deviation ; and that the insured were entitled to recover for a total loss for the whole sum insured; the ship not having been so recovered, as to be in a legal capacity to prosecute her voyage, and the valuation being applicable to the interest insured, and not to the whole ship.
THESE were actions on two several policies of insurance, on the vessel called the Radius, and her cargo, “ at and from New-York to St. Sebastians or Pasdge, and if turned off, or the cap- . , i m tain thinks it prudent not to enter, with liberty to proceed to Ion
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mugeit.” The policy ori the vessel was on one fourth, valued at gum ¡nsuret¡. (5,50(y dollars.) The policy on the goods was on one fourth of 767 bales of United States cotton, “ valued at the sum insured,” which was 10,000 dollars. The policies contained (¡le usuai clause :• warranted American property; proof to be required here only: also not to abandon, if detained or captured, until six months after notice given to the office, unless previously condemned; nor if refused admittance or turned away, but may proceed to any other near open port.” . ..
The loss was averred to have happened by the property insured being attached, seized, captured and taken possession of by certain subjects of the Emperor of France. On the 1st May, 1810, the plaintiffs gave notice to the defendants that the Radius had been captured and carried into St. Antona; on the 1st November, 1810, they made an abandonment for a total loss, and on the 7th of the same month they wrote to the defendants confirm- ■ ing their abandonment, and enclosing the protest and other proofs of loss and interest.
The Radius sailed from Nem-York, the 12th December, 1809, on the voyage to St. Sebastians, and on thé 11th January, 1810, at IP. M. made St. Antond’s Head, bearing south, distant 2 or 3 leagues, and saw a number of fishing boats bearing east, and at the same time a brig, bearing E. N. E., standing direct for the Radius, -having tacked for the purpose, which brig they had discovered, at a great distance, 2 hours before. From an apprehension- and belief that the brig was a British cruiser, the cáptain and chief mate thought it prudent, for fear of capture, to obtain a pilot from' the fishing boats, and get into St. Sebastians as soon as possible; and having procured a pilot, they stood on direct for St. Sebastians, then 20 or 30 leagues distant; and the brig continued to stand on for the Radius. The pilot' informed the master of the Radius that the brig was an English cruiser, and had been cruising off that port for some ,days, and had captured several American vessels. The wind being light, and finding that the brig gained on them, and that the Radius could not continue her course to St. Sebastians, without being overtaken, and a manifest risk of capture and detention by the brig, it was thought best, and by the advice of the pilot, to stop at St. Antona, as. a place of safety, and from thence to proceed, with the first fair wind, to StSebastians, then about 20 leagues distant; and the Radius accordingly stood in direct for St. Antona, but, on account of the
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wind and tide, was obliged to anchor at 1-2 a league off; and Was watched by the brig all night; early the next morning the Radius got under way, intending to get into St. Antona, the wind being very light, when a pilot and 5 men came on board, who said they were sent by the commandant to take charge of the ship and assist in getting her in; and soon afterwards an officer and a party of soldiers came on board, and ordered the captain and mate of the Radius and six men to go on shore, with the ship’s papers, for the inspection of the commandant. The captain and men were detained by the commandant, who said he had orders to send the papers to St. Andero, and to seize and take possession of the ship and cargo. The ship having been brought to anchor in the port, the master and mate, in the afternoon of the 12th January, 1810, were permitted to go on board, but the men and papers were detained. The ship was found to be in possession of a guard of soldiers, who refused to give her up. The ship’s papers, among which were the American register, a Mediterranean pass, list of the crew, invoice and bill of lading of cargo, were never afterwards returned. The cargo, against the remonstrances of the master, was taken out of the Radius, in lighters, and sent to Bayonne, and was never afterwards restored. The vessel remained in possession of the persons who had so seized or captured her, until the 5th July, 1810, when St. Antona was taken by the English and Spanish forces, and the Radius was boarded by Spanish privateers and row-boats, who kept possession until the 8th July, when an English frigafe arrived and took possession of her, at which time the master of the Radius had gone to St. Andero. On the 9th July, the English frigate took the Radius, as a prize, to Corunna, where they arrived the 15th July. The Radkis was detained in possession of the English and Spaniards, at that, place, until the Sd October, 1810, when the mate, in the absence of the master, with advice of the American consul, for the interest of all concerned, agreed to pay a salvage of 2,666 dollars and 66 cents, but having no money, he borrowed that sum, and also a further sum of 1,102 dollars and 84 cents, to defray the expenses of equipping the Radius for Nerv-York ; for which sums and the interest, he executed to the lender a bottomry bond, on the ship, for 4,617 dollars and 60 cents. The Radius left Corunna, under the command of the mate, on the 9th October, and arrived at New-York the 9th November, 1810, under "the bottomry,
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The mate testified that he could not have proceeded with the Radius from Corunna to St. Sebastians, without great danger of capture and loss during the voyage; and if she had arrived there in safety, without certainty of seizure, capture and loss, under the decrees and orders of the French government; as all American vessels arriving, at that time, at St. Sebastians, had been seized by that government, and that the want of the ship’s papers was aloné sufficient to prevent her from going to St. Sebastians; and besides, he was informed by the American consul, that the Radius would not be allowed to clear out for St. Sebastians, and the British commodore informed him, that he could not proceed to any Other port but Nerv-York, in ballast, under pain of capture. When the Radius left Corunna for New-Yórk, he obtained a certificate from the British commodore, and another from the American consul, to protect the ship and her crew from British or Spanish cruisers, during her voyage to New-York.
It appeared that American vessels bound to St. ¡Sebastians, frequently touched at St. Antona, when the winds were light and unfavourable, to take pilots there, or at any of the places along the coast.
The counsel for the defendants objected ; 1. That the plaintiffs were not entitled to recover at all, because there was a deviation in going to St. Antona. > .
2. That even if there was no deviation, that the plaintiffs were not entitled to recover for a total loss, as to the vessel, as she was liberated and restored before the first abandonment, and before the expiration of 6 months from the notice of the capture.
3. That if the plaintiffs were entitled to recover for a total or a partial loss, yet in the policy on the vessel, they were only to bé considered as insured to the one fourth part of the sum of 5,500 dollars, which was the valuation of the vessel in the policy.
These objections were overruled by the judge, who declared his opinion that the plaintiffs were entitled to recover for a totalloss, and that they must be considered as insured to the full amount of the sum expressed in the policy. And a verdict was taken for the plaintiffs, subject to the opinion of the court, on a case agreed on by the parties; the amount to be adjusted afterwards by persons named.
Hoffman and Colden, for the plaintiffs.
Wells, T. A. Emmet and S. Jones, jun. for the defendants.
delivered the opinion of the court. The counsel for the defendants have moved to set aside the verdict on the three following points:
1. That the deviation in going into St. Sebastians was not justillable, and discharged the insurer. • '
.% That the total loss, as to the ship, ceased, by her liberation before the abandonment was made.
3. That the sum recovered is much greater than the sum insured, as the ship and the cargo were insured to only one fourth of the valuation mentioned in the policy.-
1. The taking of a pilot and going into St. Antona was a justifiable deviation under thé circumstances of the case. The want of wind is mentioned, but the governing cause of the deviation was, undoubtedly, the fear of capture by the British brig which was pursuing the Radius, and which, according to the information given to the captain by the pilot, had recently captured several American vessels bound to St. Sebastians. It was decided, in the case of Murray v. The United Insurance Company, (2 Johns. Cases, 263.) that the capture of a neutral by a belligerant cruiser, ' was a loss within the policy and a justifiable cause of abandonment. Being a peril insured against, it follows, of course, that the assured js justifiable in a deviation to avoid it; and it is always a question of fact whether the peril be so present and palpable as to excuse the deviation. In the case of Reade v. The Commercial Insurance Company, ( 3 Johns. Rep. 352 .) a deviation by an American vessel, to avoid capture by a British cruiser, was allowed to be justifiable, if the facts were such as to render the deviation necessary or prudent. There was no question raised on the general point, as to the lawfulness of deviation by a neutral, to avoid capture by a belligerant. , In this case we think the jury were warranted from the facts in drawing the conclusion, that the deviation ip going into St. Antona was founded in a justifiable necessity.
2. The vessel and cargo, as soon as they had arrived at St. Antona, were seized by the French. The cargo was carried to Bayonne, and never restored; and the ship, after being for six months in the possession of the French power at St. Antona, was recaptured by the British and Spaniards, and carried to Corunna; and in October following, she was given up to her owners on the- payment of salvage, but was not permitted to clear out or sail for SL Sebastians. All the ship’s papers, such as her register, Mediterranean pass, role d’equipage, and the invoice and bill of la
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ding, had been seized at St. Antona, and were never restored. therefore, left naked, without any documentary title or voucher to give her protection on the high seas; and'all she, obtained at Corunna was the certificate of the British commodore an the American consul, to protect her on her return to New-York. Under these circumstances, the capture continued its destructive effects down to the time of abandonment. The ship was not so recovered as to be in a legal capacity to perform the voyage ; and what was said by Mr. Justice Paterson, ( 3 Cranch, 396 .) as to the necessity of these papers, is entitled to great weight. They are the requisite insignia to distinguish a vessel navigating the ocean with permission v of her sovereign, and under the sanction of treaties and the law of nations, from a piratical or lawless rover. A vessel without her papers is liable to capture in time of war; and the French Ordinance (art. 6. tit. 9. Des Prises,) declares every such ship good prize. We do not wish to press this principle to extreme lengths, and to say, that in every case the loss of the ship’s papers, as by being dropped overboard, or by fire, &c. would justify the breaking up of a voyage. This will depend, in some degree, upon circumstances, such as the place where, the time when, the cause why, and the portion of the voyage that has been, or that remains to be performed. But we think that, under the circumstances in which this vessel was placed at Corunna, the voyage insured was necessarily broken "up by means of the capture, and that to have pursued it without papers, and against the leave of the power surrendering the ship, would have been an act of indiscretion and folly. The jury were, therefore, warranted in finding a total loss by capture, for to that peril the breaking up of the voyage is justly to be charged. In Goss v. Withers (2 Burr. 683.) there was a capture, recapture, and bringing into England, but the salvage was so high that the court of K. B. held that the 'insured was justified in abandoning, and considering the loss as total, by the capture.
3. The third point is without any solidity. One fourth of the ship was insured, and the vessel “ thereby insured” was valued at 5,500 dollars. This valuation applied to the interest insured, and not to the whole ship. The endorsement on the policy is conclusive evidence that this was so understood by the parties, for the premium was paid on the whole valuation. The payment of premium is often resorted to, as a guide to interpretation. (Pothier,
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Traité du Prét á la Grosse, s. 32.) The same observation applies to both policies.
The motion for a new trial ought, therefore, in each cause, to be denied.
Motion denied.