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Avery v. New York Mutual Insurance

58 N.Y. Super. Ct. 226 26 Jones & S. 226 Court N.Y. Super. Ct. Decision date 1890-06-27 English

Contents

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EDWARD AVERY, Respondent v. THE NEW YORK MUTUAL INSURANCE COMPANY, Appellant.

Headnote

Marine insurance—Total loss—Sale of wreck by master after reaching a har bor— Circumstances of justification.
In this case, abundant evidence was given to the effect that plaintiffs loss under the freight policy was a total one. There was also sufficient evidence that under the vessel policy the loss was total to the insured and also to the insurers (subject to salvage) if the sale by the master was justifiable, and consequently the main question in the case was in regard to the sale of the vessel by the master in the port of distress and as to whether it was justifiable. The vessel had met with a disaster on the high seas which practically left her a wreck, could not be navigated but was at the mercy of the winds and waves, but
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was finally brought in to a barbor, where there were no docks, wharves, materials or men to repair her, nor any facilities to place her in condition to go to sea. The master called upon the constituted authorities for advice and counsel, and after three successive surveys was advised that the vessel was not worth repairing and should be sold. That such advice corresponded with the judgment of the master and he sold the vessel. Such sale took place under the direction of the consul. Held, that the question was one for the jury and could not be withdrawn from their consideration. That a sale by the master is justified or not, as to the underwriters, according to the apparent circumstances and facts existing at the time and place and the statements and advice of competent persons first sought and obtained. The jury having found that, under all the circumstances, the sale of the vessel was justifiable, no notice of abandonment was necessary.
Before Freedman and Truax, JJ.
Decided June, 27, 1890.
Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury and from order denying defendant’s motion for a new trial.
John Berry, attorney and of counsel, for appellant, argued:—
Philips, in his standard treatise on insurance says, section 1491: An abandonment is requisite in order to recover the whole amount insured by a policy in case of a technical or constructive total loss. § 1497. The decisions against the recovery of a total loss without abandonment when the subject remains in specie and has been sold, are upon the grounds that the underwriters have not had notice by an abandonment before the sale was made so as to give them an opportunity to examine the circumstances, and the Objection is confined to cases where some delay may be made without risk of destruction of the subject and the distance is not too great for communication. § 1526. In case of shipwreck or stranding without severe injury to the ship, or. to
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prevent it from being got afloat and repaired within a reasonable time, at a reasonable expense, the assured has no right to abandon. § 1528. The question is, whether the ship can, at a reasonable expense, and within a reasonable time, be impaired where she is, or taken to a suitable port and repaired, so as to be fully restored. § 1565. It is the duty of the master before hypothecating the ship or breaking up the voyage and selling the ship for want of the means to proceed to communicate with the owners, if the distance and other circumstances admit of so doing. § 1570. The master derives his authority to make any sale wholly from the necessity for such proceedings, and if there is no necessity there is no such authority. § 1571. The character of the loss as being total, does not result from the sale, but from the circumstances rendering the sale necessary, and if those circumstances do not constitute a total loss, a sale by the master will not make it such. § 1578. Where the master can communicate with the owners, if he neglects to do so, his sale may be repudiated by them, and accordingly in respect to the underwriters the loss will be adjusted in the same manner as if there had been no proceeding purporting to be a sale. § 1579. The exercise of the authority, etc., conferred by extraordinary emergencies on the master, to act as agent for all parties concerned, is regarded with jealousy and watchfulness by the courts, and the necessity of the sale must-be clearly made out, and it must appear that no other course could be reasonably taken. Abbott on Shipping, Amer. Ed. p. 11, treating of what justifies a master to sell a vessel, refers to the case of the ship Fannie and Elmira, reported in Edw. Ad. Rep. This vessel having been damaged upon rocks in Sligo Bay, the master caused her to be surveyed by competent persons, who reported that it would require £1,500 to repair her, a sum exceeding her value, and that it
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would be for the interest of all concerned to have her sold. She was sold for £350, was repaired at .an expense of £800. The court said: “ In the first place it must be shown that there was a necessity, and then it remains to be considered whether it was such as by law would give the master a right to sell.” Abbott also refers to the case of the ship Lucy Banks, where the master sold the vessel. The jury found that the master acted on good faith and according to his best judgment; that the sale was conducted, fairly and honestly, but there was no necessity for the sale of the ship, and the insured recovered for a partial loss only, and not for a total loss, as was claimed. Also the case of the Royal Ins. Co. v. Odle, in the Court of King’s Bench. The ‘vessel, having met with disaster in the St. Lawrence River, was run on shore to save her from sinking. The master caused two surveys to be made by competent persons, whose report was that it was prudent, and, for the benefit of all concerned, to sell her as soon as possible', which was done at public auction. The ship was impaired and carried a cargo to England. The jury found that the master had acted thoroughout fairly and bona fide for the benefit of all concerned, and that the sale was honestly and fairly-conducted, with a view to the interest.of all parties concerned. The court held that necessity for a sale, did not appear, and awarded a new trial; In New England Ins. Co. v. Sarah Ann, 13 Pet. 387 , the court said that the master of a stranded vessel, which in his opinion cannot be got off, should, if practicable, notify the owners before making the sale. In order to justify the sale by the master of his vessel in a distant port in the course of her voyage, good faith in making the sale, and the necessity therefor must both concur, and the purchaser, in order to have a valid title must show their concurrence. The question is not whether it was bet
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ter to break up a voyage and sell the ship, but whether there was a legal necessity to do it. The Amelie, 6 Wall. 18 ; The Henry, Blatch. and How., 465; The Lucinda Snow, Abb. Adm. 305; The William Carey, 3 Ware, 313 . Chancellor Kent, in his Commentaries, Vol. 3, page 173, says: “ Bub if the voyage be broken up by ungovernable circumstances, the master in that case may even sell the ship and cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which sweeps all ordinary rules "before it.” In-. East India Company,7 E. L. C. 339, Bayley, J., says: —“It must be of absolute necessity.” Park, J., in Skeen v. McGregor, 8 E. L. C. 309, says : “A sale can-only be made in case of inevitable necessity.” There is no doubt but that, in order to justify the sale of a cargo at an intermediate port, several things must concur: 1. There must be a necessity for it arising, either from the nature or condition of the property, or from the inability to complete the voyage by the same ship or to procure another. 2d. The captain must have acted in good faith. 3d. He must if practicable, consult with the owner before selling. Abbott on Shipping, 447 and notes; New England Insurance Company v. Brig Sarah, 13 Pet: 387; Bryant v. Commonwealth Ins. Company, 13 Pick. 543 . The master is not required to sell the ship or cargo except in case of absolute necessity, where he is not in a situation to consult with his owner, and where the destruction of the property makes it necessary for him to act as the agent of whom it may concern American Ins. Co. v. Center, 4 Wend. 45 . In Butler v. Murray, 30 N. Y. 88 , Mullen, J., says: “The master of a vessel is for the most purposes the agent of the owners of the ship and cargo, but that agency does not extend to a sale of either, unless there is a necessity at the time for so doing. Abbott on Shipping, 365 and notes. In 2 Smith's Leading Cases, 574, the
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author of the notes says : “In order to make out a case for a sale without express authority it would appear necessary to show that the property at risk has been placed in a position of such" imminent danger that it may be destroyed or materially injured before recourse can be had to those to whom it belongs unless the intervention of other means is resorted to than those which can be commanded by the master.”
The general rule as to what constitutes the total loss of a ship is stated by Sewall. J., in Murray v. Hatch, 6 Mass. 465 . If the ship is ’afloat, or it is practicable to put her afloat, and if she is capable of being repaired, at any expense, it is not a total loss within the meaning and intent of the policy. In Brindley v. Maryland Ins. Co., 12 Pet. Rep. 378 , the court held : The mere retardation of a voyage by any of the perils insured against, not amounting to or producing a total incapacity of the ship eventually to perform the voyage, cannot be admitted to constitute a technical total loss which will-authorize an abandonment. A retardation for the purpose of repairing damage from the perils insured against, that damage not exceeding one moiety of the value of the ship, falls directly within this doctrine. Under such circumstances, if the ship can be repaired and is repaired, and is thus capable of performing the voyage, there is no ground of abandonment founded upon the consideration that the voyage may not be worth pursuing for the interest of the shipowner ; or that the cargo has been injured, so that it is not worth transporting further on the voyage ; for the loss of the cargo for the voyage has nothing to do with the insurance upon the ship for the voyage. Supreme Ct. 1888, Brindley v. Maryland Ins. Co., 12 Pet, 378 . In Maryland Ins. v. Ruden, 6 Cranch, 338 , it was held that an abandonment to be effectual must be made within a reasonable time. In Dimsan v. Koch,
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Wall. C. Ct., 33, it was held that the 'insured must elect to abandon or not, and notify the owners of abandonment, within a reasonable time after he receives notice of the loss. McConochie v. Sun Mut. Ins. Co., 26 N. Y. 471 was an appeal from a judgment in favor of the plaintiff on demurrer to complaint and here reversed. The action was for a constructive total loss of cargo under abandonment, the vessel having put into port in distress. The court said: “A valid abandonment cannot be made unless there be sufficient cause for it, that is to say; the ship or goods must have been actually damaged to more than one-half the value, and the notice of abandonment to the insurance company or underwriters must state the true cause thereof. They must be informed of the grounds, of abandonment so they may determine whether to accept,” citing. 2 Phill. on Ins., § 1684, and the language of Livingstone, J.. in Suydam v. Marine Ins. Co., 1 Johns. 190 . “ Though no form be prescribed by this act of (notice of abandonment), yet care should be taken that it be unconditional, explicit and on sufficient ground, and particularly that the accident occasioning it be described with certainty, so as to enable an underwriter to determine whether he is bound to accept.” Washington, J., in King v. Del. Ins. Co., 2 Wash. C. C. R. 309, held that it is incumbent on the insured to state to the underwriter a sufficient reason for the offer to abandon, so that the latter will have an opportunity of judging whether he is bound to accept the offer or not. In Bulland v. Roger Williams Ins. Co., 1 Cirt., 148, it was held that in order to recover as for a total loss there must be in fact what is equivalent to a total loss or a sufficient abandonment must be reasonably tendered to the underwriters. In Cort v. Del. Ins. Co., 2 Wash. 375 , it was held that where a vessel is damaged and it is not proved that it was impossible to repair her at an expense exceeding her
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value, the master has no right to break, up the voyage and convert a partial into a total loss. To the same effect, Jordan v. Warren Ins. Co., 1 Story, 342 , In Oliverd v. Union Ins. Co., 3 Wheat. 183 , it -was held that a technical total loss must continue to the time of abandonment. In Ruckman v. Merchants’, &c., Ins. Co., 5 Duer, 361 , the court says : “We consider the law to be jui?t,as clearly settled, that it is quite immaterial whether the impracticability of making repairs when the vessel is in a port of distress proceeds from the want of materials and workmen, or of the necessary funds or credit. It is the existence of the fact and the necessity of breaking up the voyage which it creates that justify an abandonment. The true and sole inquiry is, what is the measure of the diligence that for the purpose of repairing the vessel, when repairs are necessary, the master is bound to exercise ? It is only when all means have been resorted to with proper diligence and have proved ineffectual that he is justified in breaking up the voyage, or his owner; if insured, has any title to abandon. It by no means follows that the diligence and vigilance of the master in procuring the means of repair are in all cases to be limited to the port in which the disabled vessel has found a refuge. Although neither the proper materials nor workmen are there to be found, or the requisite funds there to be procured, it is by no means a necessary consequence that he may at once abandon the voyage and sacrifice, by an immediate sale, the property entrusted to his charge. His obligation to repair the vessel, if repairable, at an expense of less than one half her value may still subsist, and his failure to perform the duty operate to discharge the underwriters from all liability beyond the payment of a partial loss. If, without any prejudicial delay or increase of expense beyond a moiety of the value, the want of materials or work
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men could have been supplied from a neighboring port, or the necessary funds have been obtained by a communication with his owner or consignee, the conduct of the master in breaking up the voyage and selling the vessel and cargo it seems to us could never be justified and would furnish no ground for the recovery of a total loss. The breaking up of the voyage ought never to be sanctioned without it is certain that the shipowner, if insured, would have continued to prosecute it, nor consequently the abandonment of a vessel as unnavigable ever be sustained without it is certain that the owner, if insured, would have elected to repair. When the policy is valued, it may frequently happen that the breaking up of the voyage, if a total loss may be recovered, would be far more advantageous to the shipowner than its successful termination. It is plain that in these cases there is a direct temptation to dishonesty and fraud, nor can it be doubted that this is a temptation which it is the duty of a court of justice as far as possible to remove. So long as the valuation in the policy is held to be conclusive it cannot be wholly removed, but its force can be lessened by confining the power of abandonment within those limits which the nature and objects of the contract, the intention of the parties and the dictates of reason and policy evidently prescribe. The true principle upon which the whole doctrine of abandonment may be said to rest and by which qlone its application in converting a partial into a total loss can be sustained, is that in which the leading case of Anderson v. Wallace (2 M. & Sel., 240) is stated by Lord Ellenboroegh to be that, an abandonment is never to be authorized except when at the time the loss was actually total or in the highest degree probable.” In the case of The Henry, 1 Blatch. and How. 465, U. S. District Court, Judge Betts says: The master of a vessel, has complete
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authority in everything relating to the management and conduct of his vessel, but it is apparent that no general authority from his owners to sell her can be implied. The master’s agency to sell arising by operation of law and being exercised by him vertvti officii both necessity and good faith must concur to render the sale by him valid (citing various authorities). Neither necessity nor good faith is alone sufficient to make valid a sale by the master which is offered as a bar to the title of the previous owned, both must concur and be affirmatively shown by the party setting up the sale, and the courts will not infer the existence of either of these requisites from the most ample proof of the other. There must be clear proof that the necessity of a sale is actual and not merely apprehended, or one which, upon the balancing of chances may turn out to be absolute and real or only threatening or imaginary. I am persuaded that principle and authority are opposed to any further relaxation of the rule and that the same necessity and good faith which are required when the question arises between the owner and the master or purchaser must exist to give validity to the sale as between the underwriter and the insured. So far as the case of Center v. Am. Ins. Co. 7 Cow. 582 , and 4 Wend. 45 , indicates a different principle, it may be considered as controlled by the decision in Patapsco Ins. Co. v. Southgate, 5 Pet. 621 . The judgment and determination of the master himself, no matter how careful his consideration of the circumstances of the case may have been, is manifestly not conclusive upon the subject his decision is subject to review in the home tribunal, and he or the party who claims under his acts must sustain that decision. Nor is the opinion of by-standers, however intelligent or disinterested and unanimous they may be adequate proof of the accuracy of the decision. The law adheres to the ordinary rules of evi
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dence in this matter, and requires proof of the facts and circumstances themselves, in view of which the master decided, in order to a determination whether the decision was correct. It will then devolve upon the party who upholds the proceedings of the master to prove the circumstances necessary to confer the power and of the faithful execution of the power so created. All that was determined in McCall v. Sun Mutual Insurance Company, 66 N. Y. 505 , was that where a vessel is injured by sea peril, and for that reason is justifiably sold by the master, the loss is a total one and no abandonment is necessary. Under the circumstances of that case it was held that the sale was justifiable. Also held that “ the sale when justifiably made is not the cause of the loss, but the sea peril which made the sale necessary.”
John A. Mapes, attorney and of counsel, for respondent, argued :—■
I. Under the vessel policy the loss was total to the insured, and" was also total as to the insurers (sub-.ject to salvage) if the sale by the master was justifiable. Manning v. Newnham Trinity Term, 22 Geo. 3, Cited in Park on Ins., 168 ; McCall v. Sun Mutual Ins. Co., 66 N. Y. 505 ; 2 Arnauld on Mar. Ins. §§ 365, 366 ; Robertson v. Clarke, 1 Bing., 445 ; Cambridge v. Anderson, 2 Barn. & Cres., 691 ; Farnsworth v. Hyde, 18 C. B, N.S., 858. If it is impracticable to. repair the ship it is an actual total loss, although: considerable salvage may remain. 2 Phil on Ins., §¡ 1519. If it appeared at the time that the ship could, not be recovered or repaired, it is an actus 1 total loss. The question is not to be judged by events, for vessels have been recovered though there was no reasonable hope at the time. 2 Phil on Ins., § 1577 : 2 Parsons on Mar. Ins., p. 85, etc. “ The loss is in-its nature total to him who has no means of recovering his property, whether his inability arises from
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its annihilation or from any other insuperable obstacle.” Roux v. Salvador, 3 Bing. N. C. 279 ; Crosby v. N. Y. Mutual Ins Co., 5 Bosw. 377 ; Wallenstein v. Columbian, Ins. Co., 44 N. Y. 217 . The fact that the vessel is finally saved by the efforts of speculating strangers does not change the total loss to a partial one. She is not saved to the owner. Robertson v. Caruthers, 2 Stark. 571 ; Roux v. Salvador, supra; Poole v. Protection Ins. Co., 14 Conn. 54 ; Peele v. Mchts. Ins. Co., 3 Mason, 40. Where the master has, in good faith, believing the vessel to be past saving, abandoned and sold her, the fact that it afterwards turns out that she might have been saved, is not conclusive against the right of the insured to recover as for a total loss. Robertson v. Caruthers, supra ; Moss v. Smith, 9 C. B., 102 . “ If after encountering a sea peril from which it sustained injuries, it is for that reason justifiably sold by the master, the loss then, as between the insured and the insurer, becomes a total one. The title is by such a sale irrevocably gone from the' owner, and cannot by abandonment be transferred to the insurer. The insurer may, under such circumstances, claim a total loss, accounting to the insurer for the proceeds of the sale, as salvage received for his benefit.” The sale when justifiably made is not the cause of the loss, but the sea peril which made the sale necessary.” McCall v. Sun Mutual Ins. Co. 66 N. Y., 505 . In the above case the purchaser got the ship off and repaired her. The title having passed by a sale made necessary by the perils, the perils are deemed the proximate cause of the loss which is total. 2 Arnauld on Mar Ins., § 366, p. 1006 marg. Ruckman v. Merchants Ins. Co., 5 Duer, 367 .
II. The sale of the vessel was justifiable under the circumstances of the case. She had met with a disaster which left her a wreck. She could not be * •navigated, but was at the mercy of the winds and
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waves, and could only go where she was driven by them. She had brought up at an harbor where there were no docks, wharves, materials, or men to repair her, nor facilities of any kind to put her in condition to go to sea, She was in a hot climate in the worst season of the year, the copper stripped from her sides, leaving her subject to the ravages of the worms which invest those waters, with no materials to cover and protect her from the weather or the worms. Every day made her condition worse, and delay in action would imperil the interests of all concerned. Under these circumstances, the master pursued the course which was the most natural: he called upon theconstituted authorities to advise him what to do, Three successive surveys made under the appointment of the consul decided respectively: 1. What was necessary to be done to put the bark in condition to go to sea. 2. That she could not be so repaired in that place ; and, 3, That she was not in condition to go to any other place to be repaired, and had better be sold. This advice corresponding with his own judgment, the master accepted it, and-the sale took place under the direction of the consul. The master used his best judgment under all the circumstances, and the result of the effort after-wards made by the buyer to make something out of the hulk by sending her to Boston to be repaired clearly showed that the master was right; that the bark was not worth repairing, and that while necessarily lying at Gronaives, she had been so far damaged by the weather and the worms as to be of no value. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time, the statements and advice of competent persons first obtained and not according to the result of an experiment by the purchaser, but such experiment may show conclusively that the sale was'a necessity. 2 Phillips on Ins., §1577 ; 2
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Parsons on Mar. Ins., p, 85, etc ; Brig Sarah Ann, 2 Sumn., 215 ; Fuller v. Kennebeck Ins. Co., 31 Me. 327 ; Prince v. Ocean Ins Co, 40 lb. 488 ; Fitz. v. The Amelia, 2 Cliff. 442 ; The Amelia, 6 Wall. 26 . In this connection a survey is entitled to great weight. 2 Phil. on Ins. § 2096. Also testimony of experts to show the impracticability of repairs. Walker v. Protection Ins. Co., 29 Me. 320 ; Butler v. Murray, 30 N. Y. 101 ; Gordon v. Mass. Ins. Co., 2 Pick. 263 . The necessity required is merely a high degree of expediency, taking into view the rights of all the parties interested, Butler v. Murray, 30 N. Y. 88 ; The Amelia, supra. In determining this necessity the rule is that the master should act as a prudent owner would have done at the time. Ruckman v. Mchts. Ins. Co., 5 Duer. 363 . If his best discretion is prudently exercised, the act is justified, though events proved that he judged erroneously. Fontaine v. Phœnix Ins. Co., 11 John. 293 ; Idle v. Royal As. Soc., 8 Taunt. 770; Read v. Boatham, 3 Brod. & Bing. 147 ; Gordon v. Ins. Co., 2 Pick. 261 ; Patapsco v. Southgate, 5 Peters, 620 ; N. E. Ins. Co. v. Sarah Ann, 13 lb. 400; Post v. Jones, 19 How. U. S. 157. Where a master has, in good faith, believing his vessel to be past saving, abandoned and sold her, the fact that it afterwards turns out that she might have been saved is not conclusive against the right of the insured to recover as for a total loss. “ The question is not whether by possibility if a different conduct had been pursued by the master, the ship might not eventually have been saved, but whether exercising the best discretion he could in the matter he was not justified in abandoning the ship without entering into a nice and minute calculation. ” Abbott, Lord Ch. J., Robertson v. Caruthers, 2 Stark, 571. In the above case the master had sold the ship and she was afterwards got off. See also Roux v. Salvador, 3 Bing. N. C. 279 ; Brig Sarah Ann, 2 Sumn.
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215 ; Peele v. Mchts. Ins. Co., 3 Mason, 46. In Moss v. Smith, 9 C. B. 102 , the court says : “It may be that the injury sustained by the ship is irreparable with reference to the place where she is. For instance, the ship may have met with a disaster at a place where no workmen of requisite powers are to be met with, or where the necessary materials are not to be found, so that to repair her is altogether impracticable, and in such a case the loss would be a total loss. In matters of business a thing .is said to be impossible when it is not practicable. If a ship sustains such extensive damage that it would not be reasonably practicable to repair her, the ship is said to be totally lost. Where the repairs are impossible from place or other circumstances and the ship is not at a port of destination, the master may sell the ship from necessity.” 2 Parsons on Contracts, p. 385, marg. ; Also 2 Phil: on Ins. § 1537. In Butler v, Murray, 30 N. Y. 88 , a sale was made by the master without abandonment; the vessel was afterwards repaired and saved by the purchaser. The court says, p, 91 : “ The master may sell the property entrusted to him in case of extreme necessity, and in the exercise of a sound discretion. Nor need this necessity be actual in order to justify the master and make the sale valid. If the ship was in peril which as estimated from all the facts within his means of knowledge was imminent, and made it the most prudent course to sell the ship as she was, without further endeavors to get her out of her dangerous position, this is enough, and the sale is justified and valid, although the purchasers succeed in saving her, and events prove that this might been done by the master.” So also in Gordon v. Mass. Fire & Mar. Ins, Co., 2 Pick. 264 . “When a vessel has been so far injured by a peril of the sea as to make a survey necessary, and the master with perfect good faith calls such a survey, and the persons
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appointed to take it are competent in point of skill, and disinterested, and they, after a full and sufficient examination, find her essentially injured and come to a fair conclusion that from the high price of materials and of labor, or the difficulty of procuring them the expense of repairing will be more than the worth of the vessel after she is repaired, and therefore they advise for the interest of all concerned that the vessel be sold, it seems to me that a moral necessity is imposed on the captain to act according to their advice.”
III. The fact that the master was acting under the advice of competent surveyors regularly appointed is a very important element in determining the necessity for a sale. In Hathaway v. Sun Mutual Ins. Co., 8 Bos., at pages 68, and 69, the court says : “ A survey by competent surveyors, containing a clear statement of the injuries and a strong recommendation to sell, will be an important element in the proofs in determining the character of the emergency, and especially the good faith of the master.” In Potter v. Ocean Ins. Co., 3 Sumn. p. 43, the court says: “Indeed, the course is so universally adopted in practice that a master who should venture to deviate from it would be treated as guilty of some improvidence, if not of gross rashness and neglect of duty.” In Fontaine v. Phenix Ins. Co., 11 John. 295 , Ch. J. Kent charged that as the surveyors had certified the vessel ought to be sold, the certificate, if made bona ficle, was strong evidence. This was sustained on appeal. In Gordon v. Mass. Fire & Mar. Ins. Co., 2 Pick. 264 , it was held that when a survey is made and advice to sell given, there seems to be a moral necessity laid upon the master to act according to their advice. This was cited and approved in Butler v. Murray, 30 N. Y. 100 , 101. It is very evident from the evidence given in this case as to the expense of getting the vessel to Boston, and her condition when
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she arrived there, and of the enormous expense which the speculator who bought her was put to, that the surveyors were right in their conclusion, and the master’s judgment, based in part upon the surveys and in part upon his own experience, was good. As he expected, the effects of the climate, of her exposure to the ravages of worms, and of her crippled condition, had converted a once good ship into a useless wreck.
IY. The sale of the vessel being justifiable, and the loss thereby being deemed in law a total one, on notice of abandonment was necessary. 2. Arnauld on Ins., §§ 365, 366 ; Idle v. Royal Exchg. 8 Taunt. 755 ; Robertson v. Clarke, 1 Bing. 445 ; Robertson y. Caruthers, 2 Stark, 571 ; Cambridge v. Anderson, Ry. & Mood. 60 ; Roux v. Salvador, 3 Bing. N. C. 288 ; Winn v. Columbian Ins. Co., 12 Pick. 280 ; Amer. Ins. Co. v. Center, 4 Wend. 52 ; Williams v. Suffolk Ins. Co. 3 Sumn. 514 ; Patapsco Ins. Co. v. Southgate, 5 Peters, 604; Poole v. Protection Ins. Co., 14 Conn. 54 ; McCall v. Sun Mut. Ins Co., 66 N. Y. 505 ; Butler v. Murray, 30 lb. 88.

This action was brought upon two policies of marine insurance, one on the vessel Anna L. Taylor, and the other on her freight. Both policies were valued. They were issued while the vessel was at sea and they covered a voyage from Barbadoes to Turk’s Island and thence to Baltimore. The action proceeded upon an alleged total loss subject, however, to salvage on the vessel policy. The question of total loss was fully and fairly submitted to the jury under a charge which carefully guarded all the rights of the defendant. There was no error in the charge or in the refusals to charge otherwise, if the case was one for the jury, nor can I discover any error constituting ground for

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reversal in the admission 'of testimony. The real question therefore is whether the defendant was or was not entitled to a dismissal of the complaint as matter of law. Upon an examination of the whole case it appears that abundant evidence was given to the effect that plaintiff s loss under the freight policy was a total one. There was also sufficient evidence that under the vessel policy the loss was total to the insured, and was also total as to the insurers (subject to salvage), if the sale by the master in the port of distress, viz : Gonaives on the island of St. Domingo, was justifiable. Upon that point the facts were quite complicated, but inasmuch as the plaintiff clearly showed that the vessel had met with a disaster on the high seas which practically left her a wreck ; that thereafter she could not be navigated, but was a t the mercy of the winds and waves ; that she had brought up at an harbor where there were no docks, wharves, materials or men to repair her, nor facilities of any kind to put her in condition to go to sea ; that the master had called upon the constituted authorities to advise him what to do ; that, after three successive surveys, he had been advised that the vessel was not worth repairing and should be sold ; that such advice corresponded with the master’s own judgment ; and that the master had sold the vessel in pursuance of such advice and that the sale had taken place under the direction of the consul, the question was one for the jury and could not be withdrawn from their consideration. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time and the statements and advice of competent persons first obtained, and not according to the result of an experiment by the purchaser at the sale. The jury having found, upon a consideration of all the circumstances shown by both parties, that the sale of the
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vessel was justifiable, no notice of abandonment was necessary.

The judgment and order should be affirmed with costs.

Truax, J., concurred.

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