ALBANY, Higgins V. John B Church obliged to discount, so much of his demand against the owner of theship, as the owner of the ship was entitled to receive from him, and cannot ask the whole loss from us. Suppose he Maggrath and had a right to receive more for the corn lost, than he was bound to contribute for the injury done to the ship? He cannot come against the underwriter for the whole of what would be due for the damage without this set-off. What he was to receive might be less than what he had to pay; can he have recourse to the underwriter for more than he did pay? On a total loss the underwriter is to pay a total loss; on a partial, a partial loss; and, when there is a general average, the quantum ascertained on a just calculation among all the parties. For the assured ought to recover only the amount of the loss occasioned by the jettison or other disaster, after deducting what he was entitled to receive, in contribution from the other parties concerned in the voyage. The underwriter ought not to pay, when the assured has a subject on which he has a right to claim. From the insurer he ought not to recover, when his agent has in his hands a pledge from whence it is to be taken. As to the arbitration, the defendant was no party to the submission, and therefore was not bound by it. The right to abandon must, or the principle of Le Roy and others v. Governeur, be denied. As the value of the corn was not less than the freight, there could not for that reason also, be any ground for abandoning, especially as the vessel was repaired and the owners willing to proceed. Harrison in reply. The former decision in a case acknowledged to be under this policy is greatly insisted on. Did this not essentially differ, the court would not now be addressed. When that was considered, the point now in contest, as to a total loss never arose. The question then raised was, whether an abandonment could be made under circumstances very different than those which now present themselves? Here the act was justified from the local situation of the subject. There the ground was that being injured to more than half the value, the party was entitled to abandon. The court must recollect that in Le Roy, v. Governeur, the plaintiffs could not give in evidence the time when the abandonment was made, they only being able E e to do it, and as parties to the record, inadmissible. The time is not unimportant, as on it, may depend the right of the party to a total or an average loss. For instance, suppose a capture, and the assured, a day before he hears of the vessels' safety, abandon? It will be good. If he delayed till after receipt of the information, it would be nugatory. The court will never say, that an abandonment made when the party had a right to abandon, shall be impeached by the memorandum. It is not contended that when the vessel was at New-Castle, she could have been repaired, or stores had, or that the cargo could have been conveyed to its place of destination. At that period then it clearly was a total loss. Had the assured lain by, it would have been otherwise, but they did not; they took immediate advantage of their right, which did not rest on the memorandum, but on the right to abandon. Goss v. Withers.* The principle now contended for is, that whatever the cargo may be, or its situation the right to abandon, turns the loss on the insurer, and this point is not the one decided by the court. The former consideration was, whether a deterioration, to more than half the value, authorised an abandonment? The consideration then turned on the distinction between the laws of England and France on that right. On this point both parties are agreed. But one question now is, whether this case ought to be sent back for examination to another jury? They were not to be bound by the relation of hearsay causes, said to have been acknowledged by the captain and others. They had facts before them, and from them they were justified in attributing the damage to ei ther one cause or the other. Are there not facts in the case from whence a jury might say the loss arose from the jetti son? There is nothing from whence they could infer it an tecedent to the cutting away the masts. Allowing all that has been said respecting the word principally; that it means exactly a little more than half, the jury have decided on the credit due to it, and they have not thought it enough to outweigh the evidence of the damage, arising solely from the jettison. They find the cutting away the mast neces 2 Burr, 694. This Auguft, 1803. Maggrath and V. JohnB.Church sary for the preservation of all, and the injury was an im- ALBANY, mediate direct consequence of that cutting away. then is clearly a loss within the meaning of general average; and being of the whole, is a total loss. But here it is said we have no right to look in the first instance to the insurer; we must take from the captain and others, and then apply to the underwriter for the balance. Is it not however a loss from the perils of the sea, from a general average arising out of those perils? And will the court turn us round from the words of our policy to the captain, because it is said he has a lien on what was to pay us, and being our agent ought to have thus applied it? Can he justify holding the ship till the owner of goods ejected, be paid? If he has not this power over the vessel, neither can he detain the cargo. Suppose my goods thrown over board, the owner of the vessel a bankrupt. The captain does not perform this duty, and she sold by his assignees on her arrival, can the underwriters say you must look to the owner, the casus fœderis has not taken place? All that can be done is to substitute the underwriter in our place, and he will have a right to use our names in the prosecution. It is from him we have to expect fatisfaction. The court will find the principles on which the contribution has been settled to be correct; as our loss is of the whole, and as that is to be contributed for, we contend both on the right to abandon, and on the settled rule of law in cases of general average, that we are entitled to resort to our policy, and leave the assurer to reimburse himself from the others. Per curiam. Delivered by Kent, justice. This cause comes before the court upon a special verdict, which states that Le Roy, Bayard and Mc. Evers, on the 10th September 1798, effected an insurance on goods on board the Ann and Mary from New-York to Madeira; but it was agreed by a memorandum, to the policy that salt, grain, of all kinds, indian meal, fruits, dry fish, and all other articles, perishable in their own nature, should be free from average unless general. That on the same day, defendant signed the said policy for 1000 dollars. That the above assurance by Le Roy and others was made on account of the plaintiffs, who had an interest in the cargo to the ALBANY, Auguit, 1803. Maggrath and V John B Church amount of the sum insured. That the cargo shipped by after deducting charges 924 dollars, which sum was paid to the owners of the vessel for freight, pursuant to an award ALBANY, August 1803. Higgins V. to which however the defendant was not a party. The Maggrath and vessel was repaired at Philadelphia, and ready to receive her cargo on the 28th of November. The questions arising upon this verdict are, whether the plaintiff ought to recover for a total loss, or for a general average, or a particular average? And if the plaintiff is entitled to recover as for a total loss, the jury assess their damages to 1231 dollars 54 cents. If for a general average, for the loss sustained by the injury done to the corn, then to 909 dollars 69 cents. If neither, then to 237 dollars 51 cents. And the parties agree, that, if in estimating the geneeral average, the freight of the cargo to Madeira, ought to be estimated, and not the freight actually paid at Philadelphia only, then the sum is to be altered accordingly: and they also agree that if the plaintiff was not bound to look to the owner of the vessel for the proportion to be borne by the vessel and freight, then the loss is to be considered as total, if plaintiff be entitled to recover a general average. The only evidence on the question is, whether the damage the corn sustained was wholly or in part only owing to the cutting away of the mast. Besides the facts found in the verdict, there was the deposition of a witness who declared that he was informed at Philadelphia, by the captain, mate and crew, that the damage the corn sustained was principally in consequence of cutting away the main-mast, and another point was submitted, whether the verdict was not in this respect, against evidence. This deposition was admitted by consent as competent evidence. Two questions have been made upon the facts stated in this case. 1. Whether the plaintiffs be not entitled to recover as for a total loss? 2. If not, then by what rule is a general average to be liquidated. The first point was settled by this court, in the case of Le Roy, Bayard, & Mc. Evers v. Goveneur. That case arose upon this same policy, and upon facts substantially the same. The question was on the construction of the John B Church January Term, 1800. |