Majority
p. 423Lewis K. Bridge versus The Niagara Insurance Company. Feb. Term, 1829.
Headnote
All losses and expenses necessarily, prudently or reasonably incurred in respect to property saved from shipwreck, from the time of the shipwreck, to the time when the property can be directly transported to the place of its ultimate destination, are proper charges upon the property so transported and are, where the property has been insured, to be borne by the Insurers.Sums paid for transporting the master and crew, and for their support during the same period, while they are guarding and protecting the property, are also to be borne by the insurers. The master and seamen, after becoming disconnected from the vessel by the shipwreck, are entitled to compensation as labourers or salvors for their services in transporting and saving the property, to be allowed according to the nature of the services.
Where dollars taken by the master and crew from a stranded vessel, carried on shore and buried in the sand, were afterwards stolen before they could be reclaimed, they were not considered as landed in “good safety” and the loss was held to fall upon the underwriters. But the expenses incurred by the master in searching for the dollars are to be apportioned on the dollars alone.
Where the adjustment of a loss is referred to a referee by a stipulation in a case, the referee is to he satisfied as to the character of the charges in such manner as he may think reasonable ; and in case of difficulty, application is to be made to the court for directions.
This was a motion to set aside an adjustment of the loss in this case, made by O. H. Hicks, Esquire, to whom the adjustment was referred under a stipulation in the case. [See page 247. ante.]
On the trial, the plaintiff did not prove any abandonment, nor the delivery of such preliminary proofs, as showed the defendants with exactness, the amount of the property lost: some part appearing to have been saved. The court had, thereupon, decided, that the defendants were liable only for a partial loss and that without interest. On a reference of the testimony to the adjuster, he declared, that he could not state the loss on the testimony at the trial and needed other papers, (which he named) from the plaintiff. The plaintiff furnished these, (objecting however to going out of the testimony on the trial) accompanying the same.
p. 424
with copies of a letter of abandonment, of all the preliminary proofs rendered, and also of the documents upon which the referee finally adjusted the loss: all which he alleged to have been given before action brought. The property saved, consisted of dollars, gold dust, and doubloons. The crew, after the wrecking, landed at first from their boats, at a desert part of the Musquito Shore, and were obliged to bury the dollars, and proceed south, in search of some place of safety. After a few days, two of the crew gave out, declaring that they could proceed no further, and were abandoned by the rest, who proceeded along the coast, carrying the treasure about their persons, and exposed to extortionate charges from the Indians, for services rendered until they arrived at Corn Island. There a small vessel was procured, and sent for the dollars which had been buried; • but on arrival at the place, the dollars were not. found, but had been stolen, and probably by the two men who had separated from the rest of the crew. The vessel returned, and the crew proceeded with the gold from Corn Island to St. Juan de Nicaragua, whence the captain took passage, with the treasure in his charge, to New-York, where he arrived with it in safety. He accounted for the balance (deducting the expenses) to the assured, under a consent from the assurers. Among the charges which the captain deducted, were the following:
Cash paid sundry Natives, from the time We fell in with them on the Musquito Shore, for transporting us, &c. until we arrived in Corn Island - - -[3] 710 00
Amount of charter of schooner Sea Gull, to proceed in quest of the specie, &c. buried in the sand per charter party - * 300 00
Paid J. R. for proceeding to Pearl Key Lagoon, and the adjacent coast, in quest of the same[2] 150 00
Paid for my board in Corn Island - - - † f 49 50
“ Passage, myself and crew, from Corn Island to St. Juan de Nicaragua” - - - - - † 60 00
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“ To crew, to compensate them for their services, tranpovting t.he gold from the Mosquito Shore to St. Juan de Nicaragua ------[3] 355 24
“ Captain’s expences in St. Juan - - - † 16 “
66 “ passage from St. Juan to New-York - f 120-“
On the trial, to a question by the plaintiff’s counsel to one of the witnesses, as to what had become of the property saved, the witness answered, that the amount of the cargo received by the plaintiff from the captain, was $3,661 only. Theinvoiceat the time of shipwreck, was proved on the trial to have been $10,983. At the trial, Mr. Hicks was produced as a witness by the defendants, and gave in evidence a statement of the loss as made by him. By the report of the referee, the only items allowed out of the above as charges on the insurers were the two items of $300 and $150, for going to search for the specie.
The motion now made, was founded upon an affidavit setting forth the delivery in season, (and previously to commencing the action,) of the notice of abandonment, and of the accounts, from which the items and correctness of all the charges on and loss of the shipment appeared. The affidavit also set forth the statement made at the trial by Mr. Hicks, and that it was only referred to him for adjustment, because there was no time for the plaintiff’s counsel, to examine the calculations, and that it much exceeded his present report.
An affidavit of Mr. Hicks was read by the defendants, stating, that in his judgment, it was impossible on the testimony contained in the case, to adjust the loss on the principles of a partial loss, and that the statement by him produced at the trial, was made on the principles of a total loss.
Upon these facts and papers Mr. Lord for the plaintiff, contended,
I. That the adjustment must be upon the testimony given at the trial.
p. 426
Evidence was then given as to the amount saved : if this were imperfect, it should have been then objected to : not being objected to, the parties had a right to go to the Jury on it. Besides, there was an unqualified statement produced by the defendants at the trial, proved by their own witness, upon which we had a right to go to the j ury.
If the adjustment now made had been produced at the trial, we should have given other evidence. A reference to adjust, supposes an adjustment on the facts proved at the trial; it is not to he supposed that we meant to substitute the referee for a jury, or permit him to inquire into facts not proved at the trial, in any way he might think proper.
By the referee’s goingout of the testimony at the trial, it happens, that while on the trial and argument, we are turned from a total loss with interest to a partial loss without interest; yet on the adjustment, we are met with papers to reduce our loss; the knowledge of which came to the defendants, by our delivery, before the suit, and which delivery, if proved, would have given us interest at least, if not a total loss.
II. If, however, the court thinks that the adjustment may be upon other testimony than that at the trial, then the cause ought to be open to both parties, and the plaintiff to be permitted to show the abandonment and delivery of preliminary proofs, entitling him to interest. It now appears, that the defendants, who refused to admit an abandonment, actually made out a statement limiting the recovery against them, as for a total loss: and they have not denied the receipt of the letter of abandonment, or the other papers. They had the statements showing all the items of the loss, of which they deny us the benefit at the trial, and enjoy the benefit themselves on the adjustment.
III. But upon the papers on which the referee acted, lie has rejected sundry charges which ought to fall on the assurers, as a diminution of the property saved, and as parcel of the loss. The policy covers the goods from the time of lading until landed 24 hours, in goodsafety,” and all expenses, charges, aiullossesbefall
p. 427I. This is an attempt, after the court have decided that the case is to be settled as a partial loss, to turn it into a total loss. If the plaintiff is willing to take a new trial, we are willing to have one; but this is not his wish or application, and this is all which the court have the power to do in this respect. The court cannot refer it to any other person than the referee .object to whose adjustment the verdict was taken.
ing the property, directly resulting from the perils insured against, are to be borne by the underwriter. [See Mumford v. Commercial Ins. Co. 5 John. R. 262. Jones' arguendo.] Here the property was not in safety when the crew landed, nor when they proceeded on the deserts of America with the specie about their persons. Their expenses were really salvage charges ;—expenses accrued in bringing the property to safety, and resulting solely from the disaster. The crew were also entitled to an allowance for their services ill transporting the treasure as salvors. [Two Catharines, 2 Mason R. 335.] The loss ought to have been settled as a salvage loss. [Stevens on Average, 76.]
Mr. G. Griffen contra for the defendants.
II. It is impossible to adjust the loss on the principles of a partial loss, on the testimony at the trial. That merely shows what the plaintiff received from the captain, not what the plaintiff ought to have received and the captain to have paid. The captain was the agent of the plaintiff there having been no abandonment : and the defendant’s liability is not for that, which the captain omitted or refused—perhaps unjustly—to pay to the plaintiff. Besides, an adjustment, (where an attempt to recover on the principles of a total loss, ends in a recovery on the principles of a partial loss,) must always involve questions of amounts which could not be settled on a trial; which must be shown from other examination and testimony; and in the present case, the plaintiff cannot complain, since the adjustment has "been made upon papers delivered by him.
p. 428III. As to the charges rejected—they were properly rejected by the referee ; they were expenses incurred by the master and crew in getting home, and must have been incurred equally whether they had had the treasure in their hands or. not. The gap01:g were not to have a present of $¡355 made to them by the captain at the expense of the insurer. ' The captain’s board and passage home, are also improper charges, and were properly re- , jected. Besides, there was no evidence before the referee as to the actual disbursement of these sums. Again,- the referee has allowed the plaintiff the specie buried; this was a land plunderage, not a loss by sea perils. (Jones C. J. That specie was never landed in good safety: it is the same as if it had been sunk in the sea: it was' buried in. the beach on landing.) As to the charges for the salvage the expense of the crew and captain while transporting the gold, they were charges to which the property became exposed by the shipwreck. Neither principles of humanity nor the circumstances in which the captain and supercargo stood to the crew, as to physical strength, permitted them to prevent the crew from continuing with them and using the gold for the purposes of their common return. The necessities of the crew would have compelled the captain to allow such use of the treasure. Besides, in their numbers there was greater safety, greater probability of transporting the whole property, and it was actually saved by this' means. Policy and justice, as well as law, require the allowance of these charges. As to the evidence of them, it is exactly the same as that upon ‘ which the referee allowed the expenses for going after the specie; and as to those expenses they chiefly differ from the rejected charges in, that the latter resulted in the safety of the property, and the former resulted in a disappointment. Those which were fruitless are allowed, those which were successful rejected.
Mr. Lord in reply.
after taking time to advise upon-this case directed the following order to be entered.
p. 429
On hearing the report of O. H. Hicks Esquire, the referee in this cause, and the affidavits and documents presented by the parties: and after hearing the counsel of the parties, it is ordered, on motion of Mr. Lord for the plaintiff that the said reports with the documents annexed, be referred back to O. H. Hicks Esquire, with these directions of this court in relation to the matters in question.
That all losses, charges, and expenses necessarily, prudently or reasonably incurred in respect to the property saved, from the time of the shipwreck to the time when the property could be directly transported to its ultimate destination are proper charges,, upon the property so transported and ought to-be borne by the assurers. That the sums paid for transporting the master and crew, for their support, board, and lodging and passages during the same period, are also proper charges upon the property, and ought to be borne by the assurers. That the master and seamen-also, after becoming disconnected from the vessel by the shipwreck are. entitled to compensation as labourers, or salvors for then-services in transporting and in saving the cargo; to be allowed according to the nature of the services. That the sums for going after the dollars buried as allowed by the referee, were properly allowed and properly apportioned on the dollars, alone. That the loss of the dollars, was rightly allowed against the assurers. That the referee is to be satisfied of the character of the charges, and the payment thereof, in such manner as may be reasonably thought fit by him, and reference may be had to either of the Judges of this court for directions.
[D. Lord, Att’y for the plff. G. W. Strong, Att’y for the defts.]