Hyperlawhypertext legal database Merchants' Steamship Co. v. Commercial Mutual Insurance 51 N.Y. Super. Ct. 444

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Merchants' Steamship Co. v. Commercial Mutual Insurance

51 N.Y. Super. Ct. 444 19 Jones & S. 444 Court N.Y. Super. Ct. Decision date 1885-03-03 English

Contents

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p. 444
THE MERCHANTS' STEAMSHIP CO., Respondent, v. THE COMMERCIAL MUTUAL INSURANCE CO., Appellant.

Headnote

Marine insurance—sepa/t'ate valuations in policy—written and printed clauses “free from particular average”—“actual total loss’’-—premium notes.—Pleading—supplemental answer.—Appeal.
Separate valuations in the policy of marine insurance indicate separate sub- , jects of insurance, and the contract is to he enforced distributively as to the particulars under each valuation considered as a whole. Thus, where a policy was, “ the said vessel, tackle, &c., hereby insured, are valued at §20,000, on hull, tackle, apparel and other furniture; $20,000, on boilers and machinery,” and the sum insured was $4,000 on vessel, free of particular average, and there was an actual total loss of the hull, tackle, apparel and furniture by a peril insured against, the sum of $4,000. was recoverable, although there was no loss of the boilers and machinery by a peril insured against.
Written clauses restrict and modify printed ones whenever they are not con- . gruous. Thus, where there are printed clauses under which a technical total loss may be claimed, and a written one under which no claim, except for an actual total loss, can be made, the latter controls.
Under the clause “ free from particular average,” a constructive (or technical) loss cannot be claimed ; and if the clause be written it controls all printed clauses under which a claim for a constructive total loss could he made.
The evidence was such that it could not be affirmed that it showed that what was left, after the sinking of the vessel by a collision and her being raised, had the form of a vessel. Sold, that the fact that what was left was used as a coal barge, did not show that the materials had not become so far separated in their joint and relative positions, as to no longer constitute a part of a vessel, and yet have been capable of being used as materials for a coal barge by means of additional appliances not disclosed. Further held, that the finding of an actual total loss would not be disturbed.
p. 445
Decided March 3, 1885.
Where the contract for insurance itself limits the amount to which the plaintiff may recover, by stipulating that the premium notes, if unpaid, shall first be deducted, it is not necessary to entitle a defendant to such deduction that he should set up the non-payment of such notes in the answer by way of set-off or counter-claim.
Where there is a supplemental answer after trial and judgment for plaintiff, no proceedings having been taken below on it, it presents nothing to review, or that can be considered in connection with the judgment appealed from.
Order allowing supplemental answer after trial and judgment for plaintiff, but denying that part of the motion by which leave to serve the answer was asked, which asked that the judgment and trial be opened to allow proof of the matters set up in the supplemental answer, from which plaintiff appealed but defendant did not, was, under the circumstances of this case, reversed.
Before Sedgwick, Ch. J., and Truax, J.
Appeal from judgment in favor of the plaintiff, entered upon the findings of a judge sitting at trial term, without a jury.
The action was for loss upon a policy of marine insurance.
There were two policies, one for $4,000 on vessel, free of particular average ; the other for $2,000 on vessel, free of particular average. Each policy contained the clauses : “ the said vessel, tackle, &c., hereby insured, are valued at $20,000 on hull, tackle, apparel and other furniture; $20,000 on boilers and machinery; without any further account being given by the assured to the assurers, or any of them, for the same.” The judge found and decided that plaintiff was entitled to recover on the first policy $4,000 with interest, and on the second $2,000 with interest, less fifteen per cent, of the sum received from the sale of the wreck.
Other facts appear in the opinion.
Oliver Drake Smith, attorney, and David J. H. Willcox, of counsel for appellant,
argued :—I. The contract of
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insurance was made “free of particular average.” The form of policy used did, indeed, contain printed provisions regulating claims, for partial loss, particular average, or technical total loss. But so far as these printed provisions are inconsistent with the written warranty “ free of particular average ” they are controlled thereby (Burt v. Brewers & Maltsters’ Ins. Co., 9 Hun, 383 ; aff’d, 78 N. Y. 400 ; Leeds v. Mechanics’ Ins. Co., 8 N. Y. 351 ; Harper v. N. Y. City Ins. Co., 22 Ib. 444 ; Bargett v. Orient Ins. Co., 3 Bosw. 385 ). There is, therefore, no liability for any damage less than a total loss (Bargett v. Orient Mutual Ins. Co., 3 Bosw. 385 ; Wadsworth v. Pacific Ins. Co., 4 Wend. 33 ; Stephens & Benecke on Average, [Phillips] 341; 2 Burrill’s Law Dict. 277 ; Bargett v. Orient Ins. Co., 3 Bosw. 399 ; Lowndes Mar. Ins. Ed. 1881, § 267 ; 2 Phillips Ins. 767; Brooke, v. Louisiana Ins. Co., 4 Martin N. S. 640; S. C., 5 Id. 530 ; Murray v. Hatch, 6 Mass. 465 ; Wright v. Williams, 20 Hun, 320 ).
II. There was no actual total loss of the property insured. An actual total loss takes place when the thing insured “ wholly perishes or its recovery is rendered irretrievably hopeless ” (Burt v. Brewers & Maltsters’ Ins. Co., 9 Hun, 383 , aff’d, 78 N. Y. 400 ; Buchanan v. Ocean Ins. Co., 6 Cow. 318 ; Bryan v. Insurance Co., 25 Wend. 617 ; De Peyster v. Sun Ins. Co., 19 N. Y. 272 , and cases there cited ; Poole v. Protection Ins. Co., 14 Conn. 47 ; Insurance Co. v. Fogerty, 19 Wall. 640 ; Dyson v. Rowcroft, 3 B. & P. 474 ; Cologan v. London Assurance Co., 5 M. & S. 447 ; Roux v. Salvador, 3 Bing. N. C. 266 ; S. C., 4 Scott, 1; Wallerstein v. Columbian Ins. Co., 44 N. Y. 204 ; McCall v. Sun Ins. Co., 66 N. Y. 505 ).
The Falcon’s “planks still held together so that she retained the form of a ship” (6 Arnould Ins. 1013). Her cargo remained on board. She was reparable. The necessary repairs upon her hull would have cost $22,865, and the necessary repairs upon her machinery would have cost $2,300. But the injury to the machinery arose from causes not covered by the policies. And the policies pro
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vided that, in case of claim for loss or damage, the amount thereof should be ascertained by making a deduction of one-third from the cost of repairing. If this provision be applied to the cost of repairing the damage covered by the insurance—namely, $22,865—the actual net damage is ascertained to have been but $15,243. Even this, it should be observed, included cost of taking off sheathing, re-caulking and docking, for which, under the policy, defendant was liable, if at all, only in part.
The value of the vessel was fixed by the policies at $40,000. It was provided that this valuation should be conclusive between the parties. This, too, is the general rule of law (Providence, &c. Co. v. Phenix Ins. Co. 89 N. Y. 559 ). The property insured, then, was worth $40,000, and was damaged to the extent of only $15,243. Still further, the property insured was thereafter sold at auction, and under an order of court, for $3,800, and purchased by plaintiff. The balance of the purchase money remaining after paying salvage and expenses has been paid to plaintiff. Steam could have been and actually was got up in her boilers. Plaintiffs, after taking her machinery out, disposed of her in part payment for another vessel. She is now in use as a coal barge, carrying cargoes of about nine hundred tons. The Falcon was, therefore, not an actual total loss within the rules of law upon the subject (Barker v. Janson, L. R. 3 C. P. 303, 305) 2 Arnould Ins. [Ed. 1872], 882 ; Murray v. Hatch, 6 Mass. 465 ; Globe Ins. Co. v. Sherlock, 25 Ohio St. 50 ; Sewall v. United States Ins. Co., 11 Pick. 90 ; Peele v. Suffolk Ins. Co., 7 Pick. 254 ; Commonwealth Ins. Co. v. Chase, 20 Ib. 142; Insurance Co. v. Gossler, 96 U. S. 645 ). It is quite clear, then, that in the present case there was no actual total loss. Nor has the plaintiff ever claimed that there was. Its statement at the time was that the vessel was “practically a total loss ”—not actually. It accordingly attempted to abandon the vessel. That action would have been wholly 'unnecessary if there had been an actual total loss (Burt v. Brewers & Maltsters’ Ins. Co.,
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supra). And there is no suggestion in the complaint of any claim of an actual total loss. Plaintiff’s claim to recover can, therefore, be placed only upon the ground of a constructive or technical total loss.
III. The property insured has not been damaged to such extent as to make a technical total loss. The vessel was valued in the application and the policies at $40,000. The estimated repairs rendered necessary by causes covered by the policy amounted to $22,865. If a deduction of one-third be made from these estimated repairs the ‘ ‘ net cost ” of the repairs will be found to be $15,243. But, as has been said, the insured value of the vessel in the policy is $40,000. The net cost of the repairs is, therefore, considerably less than a moiety of the insured value of the vessel, and, under the terms of the policy above stated, the loss must be deemed “partial only” (Bullard v. Roger Williams Ins. Co., 1 Curtis, 148). Some weight may be claimed for the circumstance that the valuation of the vessel is made up of separate values placed upon the hull, tackle, apparel, &c., and upon the boilers and machinery ; 'and the suggestion may be made that this brings the case within the principle sometimes asserted, that, where the subject of insurance consists of distinct and separate classes of objects, there may be a technical total loss of one class, although the damage is not sufficient to make a technical total loss of the whole. Although this rule was announced in an early English case (Davy v. Milford, 15 East, 559), the weight of authority is decidedly against it (Guerlain v. Columbian Ins. Co., 7 Johns. 527 ; Waln v. Thompson, 9 S. & R. 115 ; Newlin v. Insurance Co., 20 Pa. St. 312 ; Humphreys v. Union Ins. Co., 3 Mason, 429 ; Hernandez v. Sun Mutual Ins. Co., 6 Blatchf. 317 ; Wadsworth v. Pacific Ins. Co., 4 Wend. 33 ; Biays v. Chesapeake Ins. Co., 7 Cranch, 415 ; Marean v. U. S. Ins. Co., 1 Wheaton, 219 ; Ralli v. Jansen, 6 Ell. & Bl. 422). But this doctrine has, at the utmost, been held applicable only where there were distinct and separate classes of objects insured. It has never been held that there
p. 449
could be a division of the contract of insurance among different parts of the same integral whole as to make a technical total loss of one component part where there was no such loss of the whole. It surely cannot be seriously claimed that, when the policy is upon a vessel, the hull can be regarded as one separate and distinct subject of insurance and the machinery as another. For, as was said in Oppenheim v. Fry (3 B. & S. 873), “the entire vessel consists of the ship and her machinery, which is as much part of the ship as her masts and rigging and as is said in Arnould on Insurance (1 Maclachlan’s Ed. 21), the term ship or vessel covers both hull and machinery.'
IV. Even if there was a constructive total loss, defendant is not liable therefor. The text-writers are agreed that a policy “free of particular average,” or “against total loss only,” does not cover a constructive total loss (Philips Ins. 1767 ; 2 Parsons Mar. Ins. 3 ; Arnould Ins. [Maclachlan Ed. 900]; Barber Ins. § 130 [ed. 1882] ; Le Roy v. Gouverneur, 1 Johns. Cas. 226 ; Maggrath v. Church, 1 Caines, 195; Neilson v. Columbian Ins. Co., 3 Caines, 108 ; Saltus v. Ocean Ins. Co., 14 Johns. 138 ; Buchanan v. Ocean Ins. Co., 6 Cow. 318 ; Astor v. Union Ins. Co., 7 Ib. 202; Wadsworth v. Pacific Ins Co., 4 Wend. 33 ; Bryan v. New York Ins. Co., 25 Wend. 617 ; Ogden v. General Mut. Ins. Co., 2 Duer, 204 ; De Peyster v. Sun Mut. Ins. Co., 19 N. Y. 272 ). The case of Wallerstein v. Columbian Ins. Co. ( 44 N. Y. 204 ), has sometimes been supposed to have changed the rule thus uniformly laid down by the courts of this state regarding the effect of the warranty against particular average. But that case was decided upon the ground that the voyage was lost and that this constitutes a total loss. In Chadsey v. Guion (46 Super. Ct. 118), this court says that the Waller-stein case did not hold (as would have been inconsistent with the previous decisions), that an entire destruction of value was sufficient in itself to constitute an actual total" loss, and expressly refrains from deciding whether or not
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an insurer “ free from particular average ” is liable for a technical total loss (p. 123). That, the supreme court has recently said, involves “interesting questions of law” (Wright v. Williams, 20 Hun, 220 ). See also Burt v. Brewers’ Ins. Co. ( 9 Hun, 383 ; S. C., 78 N. Y. 400 ). The same rule prevails in the federal courts (Biays v. Chesapeake Ins. Co., 7 Cranch, 415 ; Marcardier v. Chesapeake Ins. Co., 8 Ib. 39 ; Morean v. United States Ins. Co., 1 Wheat. 219 ; Hugg v. Augusta Ins. Co., 7 How. 595 ). There are numerous cases to the same effect in other courts (Williams v. Kennebec Ins. Co., 31 Me. 455 ; Aranzamenta v. Louisiana Ins. Co., 2 La. 432 ; Skinner v. Louisiana Ins. Co., 19 Martin, 373 ; Brooke v. Ins. Co., 4 Martin N. S. 322 ; Willard v. Millers’ & Mfgrs. Ins. Co., 24 Mo. 561 ; Navone v. Haddon, 9 C. B. 30 ; Hotchkiss v. Commercial Mut. Ins. Co., 1 Robertson, 489 ; Morean v. United States Ins. Co., 3 Wash. C. C. 356 ; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220 ; Waln v. Thompson, 9 S. & R. 115 ; Skinner v. Western Ins. Co., 19 La. 273 ). It cannot be denied that there are some authorities in Massachusetts holding that a policy upon a ship written against total loss only, charges the underwriter with liability for constructive total loss. They are placed upon the curious ground that the same words—free of particular average •—when applied to perishable articles mean one thing, and when applied to vessels mean quite another. But this distinction is unfounded in principle and totally unsupported by authority.
Y. If there be any recovery, the court erred as to its amomit. The answer alleged that the policies were issued in consideration of two notes, one for $521.25, and the other for $261.25, which were not yet due, and were unpaid. The policies provided that the amount of any note or notes given for premiums shall be deducted “ before payment ” of losses on the policies. The court has found that plaintiff is indebted to defendant for the aforesaid notes given for insurance upon the Falcon. Defendant
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requested a finding that it should be credited with the notes. This the court refused, and. found in plaintiff’s favor for the entire amount of the policies without making any credit for the notes. To this defendant duly excepted. This was in plain violation of the terms of the contract of the parties. Nor can it avail plaintiff to contend that defendant’s rights regarding the premium notes were not sufficiently set up in the pleadings. As has been seen, such notes were set up in the answer. And, in addition, the contract was that the amount due upon the policies should not be the whole amount thereof, but only the balance remaining after deducting the notes. That balance was the full measure of defendant’s liability, and it was error to give judgment against it for more. The plaintiff libeled the schooner Tryon for the damages sustained by the collision, and has recovered and collected $3,447. This defendant set up by supplemental answer, and claimed that, if it be hable on the policies, it should be credited with its proper proportion of the recovery. Plaintiff admitted the facts by faffing to reply to the supplemental answer, and the court found them. The court nevertheless found that plaintiff was entitled to judgment for the full amount of the policies without making this credit. To this defendant duly excepted. This was error. Plaintiff is claiming under an alleged abandonment. If this be effectual it vests in defendant the title to the property abandoned and subrogates it to plaintiff’s rights on account thereof (Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y. 173 ), including any recovery of damages (Atlantic Ins. Co. v. Storrow, 5 Paige, 285 Yeates v. Whyte, 4 Bing. N. C. 272). Plaintiff clearly cannot recover on the theory that it has abandoned, and retain the damages collected on the theory that it has not abandoned. As it appears in evidence that the amount in question, $524.05, has been collected upon account of the property abandoned, defendant’s liability, if any, has beén diminished by that amount.
p. 452
Burrill, Zabriskie & Burrill, attorneys, and John E. Burrill and George Zabriskie, of counsel for respondent,
among other things, argued :—I. The defendant claimed that, in determining the question as to technical total loss, the valuation of vessel, machinery and everything, must be regarded at $40,000, but we claim, and the court ( held, that while there was insurance only on the vessel there were two subjects of valuation—one, the vessel, hull, tackle, apparel, and other furniture valued at $20,000, and the other machinery valued at $20,000. The distinction between vessel and machinery is recognized by the policies, which not only place separate valuations on the two, but also provide for particular exemption from loss in respect to the machinery. It seems that the defendant used the ordinary printed form of policy, a part of which, relating to machinery, was inapplicable. The machinery is treated as entirely distinct from the vessel, and its value is not reckoned in counting the value of the vessel. The liability of the company for injuries to machinery is limited to injuries occasioned by stranding or fire, unless in the case of a total loss from other causes. In the event of the breaking of the main shaft, for example, in consequence of a collision, the company would not, where the machinery was insured, be liable for that injury ; while if the hull were injured by the same accident the company would, if it were a case for general average, be liable for the injury to the hull. Accordingly, the value of the machinery is not to be reckoned in computing the value of the vessel for purposes of abandonment. That the cost of repairing the vessel and putting her in the condition in which she was at the time of loss," exceeded her value when repaired, is proved by all the witnesses. As to the principles of law involved in the findings, see Suarez v. Sun Ins. Co. ( 2 Sandf. 482 ) ; McCall v. Sun Mutual ( 66 N. Y. 515 ) ; Wallenstein v. Col. Ins. Co. (44 Ib. 217); Center v. Am. Ins. Co. ( 7 Cow. 571 ).
II. The finding that the subject of the insurance was, at the time of the abandonment, a total loss, is sustained
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by the evidence, and the exception was not well taken (Suarez v. Ins. Co., 2 Sandf. 484 ). The evidence clearly estabhshed that at the time of the abandonment the vessel was at the bottom of Chesapeake Bay. She ceased to be a steamer and never again became one. When she was raised by a salvage service she ceased to be a vessel, and was, in the language used in the case, “ a mere congeries of materials ” (McCall v. Sun Mutual Co., 66 N. Y. 505 ; Wallerstein v. Col. Ins. Co., 44 Ib. 206 ; Wright v. Williams, 20 Hun, 320 ; Bullard v. Roger Williams Co., 1 Curtis, 148 ; Cambridge v. Anderton, 2 Barn. & C. 691; Williams v. Hartford Co., 22 Alb. L. J. 256 ; Wright v. Williams, 20 Hun, 325 ; Roux v. Salvador, 3 Bing. N. C. 266 ; Ins. Co. v. Fogarty, 19 Wall. 640 ). Under this finding no notice of abandonment was necessary, as that is required only where the total loss is constructive.
III. The use of the words “free of particular average ” did not exempt the defendant from liability for a constructive total loss, and the fifteenth exception, was not well taken (Wallerstein v. Columbia Ins. Co., 44 N. Y 204 , 324; Wright v. Williams, 20 Hun, 320 ; Adams v. Mackenzie, 13 Com. Bench, N. S. 442 ; O’Leary v. Stymest, 6 New Brunswick, 289 ; Forwood v. North Wales Co., 9 Q. B. D. 539 ; Kettell v. Alliance Co., 10 Gray, 144 ; Heebnes v. Eagle Co., 10 Ib. 131; Green v. Pacific Ins. Co., 9 Allen, 217 ; 3 Arnould’s Ins. 856, 860 ; Roux v. Salvador, 3 Bing. N. C. 277). In the policies in suit the defendant recognized the fact that there was a liability for constructive total loss by inserting certain clauses to that effect in the policies. ■
TV. The exception to the refusal to find that the “ bottom of the hull was in good condition ” was not well taken. The court properly refused to find that isolated fact, which by itself was wholly immaterial, and found very fully in regard to the condition of the vessel. Moreover, that evidence related to the condition at the time Roberts bought her, and not when the abandonment was made.
V. The court was correct in refusing at the trial to
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allow the defendants by way of offset or counter-claim the amount of the premium notes mentioned in the proposed findings, because no such defense was set up in the pleadings, and because the notes include premiums on other policies (Phil. Ins. 489 ; Rider v. Ocean Co., 20 Rich. 259 ; Diehl v. Ins. Co., 1 Sandf. 251 ).
VI. The court was also correct in refusing at the trial to allow the defendants any part of the amounts received from the proceeds of sale of the wreck, or for damages done to the Falcon, for the reason that these matters were not set up by way of defense in the pleadings.
VIII. The special term order allowing the supplemental and amended answer to be attached to the judgment-roll did not disturb or interfere with the judgment, and the court refused to vacate, open or disturb the judgment. The defendant has not appealed from so much of the order as denied the motion to open the judgment. The plaintiff has appealed from the order because it was in their view improper to make it, as it was a cloud upon the judgment, and it could not be readily seen what use the defendant might hereafter make of it. The order was not necessary to protect the interests of the defendant, because, among other reasons the additional defenses rest on the claims which defendant may assert in an independent action without prejudice to himself, and it should require a very clear case to induce the court to interfere, as asked for by the defendant, by opening the judgments and trial so as to allow them to be interposed here.

The policies described the subject of the insurance in the following terms : “On vessel, the body tackle and apparel, and other furniture of the good steamship called the Falcon. . . The said vessel, tackle, etc., hereby insured, are valued at $20,000, on hull, tackle, apparel and other furniture; $20,000 on. boilers and machinery. ” The two valuations indicate separate subjects of insurance, and the contract is to he enforced distributively as to the particulars under each valuation con

p. 455
sidered as a whole (Deidericks v. The Commercial Ins. Co. of N. Y., 10 Johns. 234 ; Wallerstein v. The Columbian Ins. Co., 44 N. Y. 204 ; Merrill v. Agricultural Ins. Co., 73 Ib. 452).

The policies, as usual, contained many clauses intended to be applied to different contingencies that might arise, according to the particular insurance and to the different circumstances of particular losses. Such of them as were in print were subjected to restriction or modification by such as were written, when the printed matter and the written matter were not congruous. It was provided in printing that in case of claim for loss or damage, c ‘ the usual deduction should be made of one-third new for old, etc., and that if a technical total loss be claimed, similar deductions shall be made from the estimated repairs, and unless the net cost thereof would exceed a moiety of the insured value of the vessel in this policy, after making such deductions, the loss shall be partial only.” This clause does not determine when a valid claim may be made for a technical total loss. The rest of the policy, and particularly the "written clause, c ‘ free from particular average, ” fixes what claim may be made. That under this claim a constructive total loss cannot be claimed is generally declared to be the law (2 Pars. Mar. Ins. 111, et seq. and notes). This is founded upon reason. The rule as to technical or constructive total loss was made from a necessity there was, many times, of determining whether, when some part of the thing insured remained after a loss, it could be correctly held that there was actual total loss. If what was left was inconsiderable as to any of the uses or advantages of the subject when whole, it would only be literally true that the loss was not total, while really the owner would be more likely to abandon the remnant, than try to save it. How large or great a quantity might be left and yet there be a total loss was determined, not by attempting to ascertain the value of the remnant directly, but by ascertaining what the loss was ; namely, the cost of repair after the deduction of new for old, and if the cost

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were more than one half of the value of the thing insured, then it was deemed that the remaining half, represented by the actual remnant, was not so considerable that its existence should prevent a legal conclusion that there was actual total loss. It was not denied that in such case the insurers paid for what was only a partial loss, indemnifying themselves by taking the remnant. In many cases there was no doubt that there was no total loss actually. If the parties contract against such a method of adjustment, the law will carry out their intent. The clause against particular average or partial loss, means that the insurer will not pay what is in fact a partial loss, under any circumstances, and therefore not for a constructive total loss, for the latter is really a payment for a partial loss, and for a constructive value of the remnants. There is no such thing as a constructive partial loss (2 Par. Mar. Ins. 111, et seq. and notes).

The inquiry as to the vessel, tackle, apparel and other furniture, is, whether there was a total loss of them. The case suggests that in some circumstances there could not be total loss, if anything separable from the rest of the particulars, under the valuation which was applied to them in the aggregate, had been saved in specie. This view of the possible case was not presented to the court on the trial or on this appeal, and probably the facts show that no separable part was in fact saved. When the vessel sank, and while she was on the bottom, and also when raising, the loose things were swept or fell from the vessel. The inquiry is to be confined, therefore, to the total loss of the vessel. The mere fact that the vessel sank in six fathoms of water, did not make her a total loss. That would depend upon the surrounding circumstances. It was good weather. She sank in the Chesapeake Bay, when the vessel had been out of Baltimore about six hours. The wrecking company began work on her within ' a very short time, and she was. lifted without difficulty. Nevertheless, the circumstances that have been adverted to, do not prove that she was not a total loss. The success

p. 457
in raising her may have disclosed the fact, that the vessel was no longer a vessel, in specie; that there was not mere deterioration, but such a dissolution of the continuity of the materials generally that were left, that there were only deteriorated materials for part of a vessel, but no vessel. The learned judge on the trial found that there was practically (by which is to be understood actually) a total loss. The evidence for this forbids that it shoiild be disturbed. The collision cut the vessel down to the water’s edge, where the schooner struck her. The judge found in particular, that by the collision and the sinking,'the steamer’s smoke-stack, mizzen mast, all the sails except the square-sail, all the deck-houses, and the furniture, and .appointments of the deck-houses, were carried away. The planking on the port side, extending about one hundred feet from the stern, was stripped off and carried away with the frame timbers and the between-deck waterways. The upper deck and the deck frame on the same side, and the between-deck water-ways were broken. The windlass side let was started. All the frame timbers of the ship, and all the planking which were not carried away, were started and loosened. The evidence in general, that is not particularly noticed by the judge, is to be construed in favor of this finding. One witness, no doubt credible, swore that the bottom of the vessel remained sound. The judge refused to find that this was the fact, in the words of the witness. His refusal cannot be reversed, for he perceived, better than an appellate court can, what in view of other established facts, the real sig- • nificance of the phrase used by the witness was. It cannot be affirmed that the testimony shows that what was left had the form of a vessel. It may have had the form of part of a vessel. "What was left was afterward used as a coal barge. This fact does not show that the materials left were used as a vessel to make the coal barge. The materials may have become so far separated in their joints and relative positions, as to no longer constitute a part of a vessel, and yet in that state be used as materials
p. 458
for a coal barge, by means of additional appliances which are not disclosed. There having been an actual total loss, there is no necessity of ascertaining whether an abandonment was made, so far as the vessel is concerned.

The facts concerning the boiler and machinery might lead to a different result as to them. They were raised with the wreck of the vessel and saved. The learned judge found that the “ engine was badly rusted, the rods bent and twisted, and its parts disarranged,” and further, “ that the machinery was removed from the wreck and the purchaser of said wreck cut down the sides of the hull where the same had been torn away by reason of the collision . . . and that the cost and expense of removing said machinery exceeded the value thereof, after it had been so removed, and that said machinery was of no value as machinery, but it only was valuable as old iron.”

It is unnecessary to make any reference to the loss upon the boiler and machinery farther than to say that as to them, other propositions than such as have been already adverted to, would perhaps call for examination. The policy provided that the insurers should be hable for loss on them only when occasioned by stranding. The learned counsel for appellant does not claim that if there were an actual total loss of the vessel, the defendants would not be liable for the gross sum insured, subject to deduction on other grounds.

The defendant claimed that there should be deducted from the amount claimed as loss, the amount of the premium notes. This being a valued policy, which in case of total loss, liquidated the damages, the premium notes might be set-off (Columbian Insurance Company v. Black, 18 Johns. 149 ). In this case, however, the contract itself limits the amount which the plaintiff may recover, by stipulating that the premium notes, if unpaid, shall first be deducted. Any part of a recovery that should represent the amount of the premium notes, would be unauthorized by the contract. The claim as to the premium

p. 459
notes it was not necessary to set up in the answer by way of set-off or counter-claim. The mere statement that such notes had been given and remained unpaid, was an assertion of a fact that put in issue the claim of the defendant to a part of the damages. The learned counsel for the respondent asserted on the argument that these notes were for other policies besides the present. It does not seem that there is any testimony for this. The amount of the promissory notes in evidence corresponds with the amount of premiums noted on the policies. The amount of the notes given for the premiums must be deducted from the recovery.

There was another claim for a deduction which the defendant did not make in the answer, upon which the action was tried. It was in the nature of a counter-claim for money had and received in a proceeding in which the plaintiff recovered damages against the schooner that struck the vessel in question, sinking her, and which was the loss under the policy. After the trial the claim was made in a supplemental answer. The leave to serve this was accompanied with a denial of the part of the motion which asked that the judgment and trial be opened, to allow proof of the matters set up in the supplemental answer. The plaintiff appeals from this order. The defendant does not, but says that as the plamtiff has not replied or demurred to the counter-claim, there should be a deduction from the amount of the judgment. As there has been no proceeding taken below on the supplemental answer, there is nothing to review, or that may be considered in connection with the present judgment. It stands like any other unanswered pleading, and some proceeding must be had upon it for review in this court. In order to prevent a litigation of very doubtful advantage to the defendant, it is best that the order granting leave to serve supplemental answer, be reversed, without costs.

The judgment should be modified by deducting the

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amount of the premium notes and interest, and as modified, should be affirmed, without costs of appeal to either party.

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