necessary to settle that; but, before it could be adjusted, ALBANY, the defendant died. This induced the present action, in which the point first mentioned, was to be decided. August 1803. Maggrath and V. Harrison, for the plaintiffs, disclaimed all intention of John B Church impeaching the former determination, but distinguished the case now before the court, from that which they had formerly adjudged, by remarking on the diversity of the verdicts, as to the periods of abandonment. He now made two points. 1st. That the plaintiffs had a right to abandon, whilst the vessel was at New-Castle, and had exercised that right. 2d. That even if they had no such right, still the loss being occasioned by the jettison, it was to be paid for by a general average, and therefore, the underwriter answerable. It is a settled and acknowledged principle in the law of insurance, that whenever the voyage is lost, the assured has a right to abandon, though the article remain in specie. Manning v. Newnham, Park, 168, 9, 2 Marsh. 505. This exists as well in cases of perishable articles, as in any others. M'Andrews v. Vaughan, 1 Marsh. 150. For the warranty "free from average," &c. does not destroy or impair the right to abandon. It only regulates the cases in which compensation for average shall be claimed. Upon these principles, it will be barely necessary to examine the circumstances, and see how fully they apply. The vessel is driven with her cargo into a port, foreign to, and out of the course of her destination; on hearing of this, and her disabled state, an abandonment instantly takes place. The right of the parties was then compleat; the voyage could not be prosecuted, and it was impossible to know how long the incapacity to pursue it would continue. This would justify the abandonment then, and then the right of the assured was ascertained. This did not depend on the memorandum; the court, therefore, will see this is a case where the effect of the memorandum could not apply. In all cases there is a memorandum, yet it was never heard to work a difference in a loss, arising from a peril of the sea in defeating the voyage. ALBANY, Maggrath and John B Church Auguft, 1803. 80, and crew. That the articles insured, excepting such as were ejected, were, by consent of parties, sold at Philadelphia, for the benefit of those who might be concerned, and produced, after deducting charges, 924 dollars, which sum was paid to the owners of the vessel, for freight, in pursuance of an award made by arbitrators chosen for that purpose, but the defendant was not a party to the submission. That the Ann and Mary was repaired at Philadelphia, and ready to take in a cargo on the 28th of November, but as no corn of the kind of that before purchased, could be obtained, it being flint Jersey corn, the voyage was given up, and the vessel returned to New-York." It was agreed that if, in estimating the general average, the freight of the cargo to Madeira, ought to have been taken into account, and not the freight actually paid at Philadelphia only, then an alteration to be made accordingly in the sum to be recovered; and, that if the assured were not bound to look to the owners of the vessel, for the propor tion to be borne by the vessel, and freight, then the loss to be considered as total. On the preceding facts and agreement, a case was reserved for the opinion of the court, whether the underwri ters were liable in any, and what degree? In a former trial on the same policy, in which Le Roy, and Co. were plaintiffs, the abandonment was, by the special verdict then given, found to have been made whilst the vessel lay at Philadelphia, where she could have been repaired for less than half her value, and the question at that. time agitated between the parties was, whether the corn being damaged more than one half of its value, was susceptible of abandonment, and the underwriter responsible; or whether he was protected by the words of the memorandum? It was contended that he was not, because they applied only to average losses, and not to those which were, like the present, total. In support of this idea, the authority of the French writers was relied on, but the bench decided, if the subject insured be in existence, there cannot be a recovery. However, there being still an average, occasioned by the jettison, for which the assurer was bound, it became necessary to settle that; but, before it could be adjusted, ALBANY, the defendant died. This induced the present action, in which the point first mentioned, was to be decided. Harrison, for the plaintiffs, disclaimed all intention of impeaching the former determination, but distinguished the case now before the court, from that which they had formerly adjudged, by remarking on the diversity of the verdicts, as to the periods of abandonment. He now made two points. 1st. That the plaintiffs had a right to abandon, whilst the vessel was at New-Castle, and had exercised that right. 2d. That even if they had no such right, still the loss being occasioned by the jettison, it was to be paid for by a general average, and therefore, the underwriter answerable. It is a settled and acknowledged principle in the law of insurance, that whenever the voyage is lost, the assured has a right to abandon, though the article remain in specie. Manning v. Newnham, Park, 168, 9, 2 Marsh. 505. This exists as well in cases of perishable articles, as in any others. M'Andrews v. Vaughan, 1 Marsh. 150. For the warranty "free from average," &c. does not destroy or impair the right to abandon. It only regulates the cases in which compensation for average shall be claimed. Upon these principles, it will be barely necessary to examine the circumstances, and see how fully they apply. The vessel is driven with her cargo into a port, foreign to, and out of the course of her destination; on hearing of this, and her disabled state, an abandonment instantly takes place. The right of the parties was then compleat; the voyage could not be prosecuted, and it was impossible to know how long the incapacity to pursue it would continue. This would justify the abandonment then, and then the right of the assured was ascertained. This did not depend on the memorandum; the court, therefore, will see this is a case where the effect of the memorandum could not apply. In all cases there is a memorandum, yet it was never heard to work a difference in a loss, arising from a peril of the sea in defeating the voyage. Dd August 1803. Maggrath and Higgins V. John B Church The vessel arrived at Wilmington, where there were no stores, no possibility of repairs, or of pro-ecuting the voyage. Safely, then, may we say, with Lord Mansfield, "if, "by a peril insured again t, the voyage be lost, the assu"red may abandon." Because the cargo is composed of perishable articles, is it to remain for ever at the risk of the underwritten? Has he no right to abandon, and call for indemnification? It is presumed that he has, and that the court will say he is not bound to wait for an eventual change of circumstances. If, in the case of an embargo, which may be taken off in two or three days, the right now contended for, exists, and the assured immediately on receiving advice, may abandon, will he not be entitled, in a case like the present, where the voyage is broken up? Surely this will be considered as a case within the spirit and letter of all the rules of abandonment. But admitting (which is not to be supposed) that the court should be of a contrary opinion, we have still to rely on the second position we have taken. That this is a loss arising from a general average, and we therefore, in that point of view, entitled to recover. The special verdict finds, that the vessel met with gales of wind, which laid her on her beam ends, in consequence of which she was obliged to cut away her mast. That in doing this, the cloth round it, called the coat, was torn away, and considerable quantities of water rushed into the hold. That from this arose the injury to the corn, and that it was in consequence of cutting away the mast for the pre ervation of all. What is this but saying, in so many words, that it was a loss arising immediately from the jettison? If so, we are entitled to recover for the whole of the injury attributed to it. It is not the mere article thrown overboard, that is to be made good, but every thing is to be compensated for, that receives injury in consequence of the act done for the preservation of all. Abb. on Ship. 278.* Therefore, the finding is conclusive on the fact, and the law is but a necessary consequence. But, this very circumstance is to be arged as a reason for a new trial at least, and a question is to be made in the present discussion, whether the jury, from * Sec. I Lex Mer. Amer. 231, 286. the testimony given, were justified in finding the effect of the jettison. It was no doubt proper for them, because facts must be submitted to their determination. There is no other cause stated in the evidence which can account for the damage, but the jettison itself. The vessel was not leaky, nor was there any injury before. There is then sufficient stated to ascertain the origin of the damage. Having that before them, and nothing else, to which to attribute the loss, they had a right to infer the whole, occasioned by the jettison, made for the preservation of vessel and cargo. That there was evidence adduced, that there was a person who had spoken to the captain, who had told him, the damage was principally owing to the jettison, is immaterial. They ought not to have been influenced by mere hearsay. The captain himself ought to have been examined as to other causes; and what does he say? that, in his opinion, the jettison was the principal. It is impossible to discriminate between the same damage occasioned by other causes, and that which arose from the jettison. These declarations ought, therefore, to be laid totally out of view. The court may well imagine the captain mistaken; they will be warranted in saying, there is no adequate cause assigned for the damage but the jettison, and that the jury have expressly found. The court will do well to consider, if they ought to enter into nice disquisitions, where cause sufficient is suggested. There is no rule of discovery in these cases. If the party shew sufficient cause, the jury ought to say they cannot examine every trifling injury, it is sufficient that this is the greatest. Will the court, on mere hearsay, open this cause, having no document to discriminate what part was injured under the policy, and what not? Why was not the other side prepared to shew the quantum ? they had equal opportunity with the plaintiffs: we have given absolute evidence to satisfy the jury that the injury arose from the jettison exclusively; they rely on mere hearsay alone. If then the loss is the result of a jettison, this must be a general average, and according to the statement in the verdict, the court will be of opinion that the parties. are entitled to look for their proportion to the underwriters, and not to the owner. This, then, amounts to a total loss, ALBAN Y, Auguit 1803. Magrath aud V. John B Church |