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the plaintiff must still more closely unite the subjects of in- AL

August 1803 surance. He niust advert to the incompetency of the vessel to bring home the cargo, and urge this as the foundation

V. of his demand; and because the voyage is broken up on the Br "cargo, the loss of the ship is necessarily to be inferred. This is in direct opposition to Shaw and Goold, the contrary of which was expressly determined. The trifling variations of that case from this, cannot alter the point, for it is not every little change and alteration of circunstances, or any "slight change, that would take one out of another. Should that decision not be sufficient to incline the court in favor of the defendants, Saidler and Craig v. John B. Church, will govern the question. In that, as in this, it niust be evident from all the circumstances, that the purchase was for the benefit and on account of the assured. The property, when in the power of the plaintiff, was never offered to the defendants, and that alone is a waiver of the abandonment. In favour of such a construction, the facts uów before the court are stronger than those of Saidler and Craig v. Church. There the sale was involuntary and compulsive, here it was not only voluntary once, but twice ; and the first sale, even at the request of the supercargo and joint owner. Nor was this the whole from whence the construction of the purchase being on account of the defendant, might be drawn. There was a shipment, a cargo taken on board on account of the assured. In other respects the cases were alike. In that, an abandonment not accepted, in this, an abandonnent refused. In one case the vessel was employed, in the other she was sold. Had not the underwriters a right to be consulted as to the time, place, and manner of the sale ? How does it appear that they were not willing to retain ber? The plaintiff should have offered them the freight, with the amount of the charges for repairs, &c. and then have claimed compensation under his policy. Instead of pursuing such a line of conduct, the property is disposed of without their knowledge, and is now held. If this can be done, the sccurity of underwriters is destroyed. There wouid, it must be confessed, be a difference, if the


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transaction had taken place in a foreign country, where no August 1803.

application could be made to the underwriters'; but here,

when all concerned were on the spot, the parties who were Broome.

so active, and without making any communication, must be held to have acted for themselves. In addition to these circumstances, the court, doubtless, will observe, that the plaintiff has received the freight earned by her, after her being bought in by the supercargo and joint owner. This, it is conceived, is tantamount to fitting out and employing her, and is evidence of her being in the service of her former owners.

. '

' Hamilton in reply. It is difficult to conceive how Shaw and Goold could be connected with the present case; the dissimilarity is so great, it is scarcely possible to imagine how it could be pressed into the service. The case was an endeavour to constitute a total loss of the vessel, on account of a loss of the cargo. It was by the special verdict expressly found, that she could have been repaired for less than half her value ; in the present instance it is as expressly stated, “That she cannot be repaired for the « full value of her when repaired.” I shall, after this preliminary observation, endeavour to shew, that the princi. ples of that determination will bear on this, and materially aid the plaintiff's demand. For that purpose, it will be necessary to recur to the general position of the court: that in insurances, the various subjects are totally distinct:

that in construction of law, vessel, freight, and cargo, are • They do not separate interests ;* and it is fully conceded, with the op. rable according posite side, that the loss of one does not constitute a loss

United of either of the others. On these data the court proceedpany of New

Com- ed in Shaw and Goold. In that case, there was no inabiYork v. Lenox. lity in the vessel; she could have pursued her voyage with Amer. 197. her cargo, here she could not. The ability of a vessel to

perform her voyage with her cargo, is the very essence of the contract of assurance upon her: it is the substratum of the policy. The assured warrants that she is so at the commencement of the voyage, and the assurer engages that so she shall continue, against all the perils enumerated, until it be terminated. If the vessel become unable




V. Broome.


to complete it with her cargo, the court must consider it !

August 1893. as a total loss with respect to her, and the policy forfeited. Nothing is now advanced, which is not perfectly reconcileable with the distinctness of the subjects of insurance : for the cause of the loss of the voyage was wholly the ship’s : it arose from her inability, against which the policy was meant to protect. When that inability could not be removed for half her value, then she, the very subject of insurance, was technically destroyed, and, abstracted from subsequent circumstances, it became a total loss. The after purchase then, was the only thing which could alter or prevent the result. Suppose her purchased for, and by any other person, how would that vary the underwriter's liabilities or rights? In either one case or the other, he is not defrauded or injured. The purchase on his account by the assured, can never be detrimental ; he has the ves. sel at what she cost, and he has also what she sells for. In the case of Saidler and Craig v. Church, the abandonment was overruled, solely because the employing the vessel was deemed a waiver. I must again beg leave to insist on the agency from necessity of the plaintiff, and to deny that being merely passive in cases of abandonment, is equivalent to a positive refusal. The underwriter has 30 days, before he is under any obligation to decide on the offer to abandon'; during that period, circumstances may require him to be cautious, and hesitate in pronoun. eing his determination ; at this time he is passive. The defendants here refused at once without hesitation. The decision must be whether the offer to abandon ought to have been, and in all future cases must be, repeated after a positive refusal to accept. Living on the spot, does not alter the question. To offer a second time, would be from courtesy : for after one party has explicitly taken his around on that, the other may act and make it the line of this future conduct. Whether this rule is to be adopted or anot, is now to be determined, and votloq otit 10

Per curiam, delivered by Radcliff J. In this case, the general question is, whether the plaintif' is entitled to re


ALBANY, cover a total or a partial loss? Two objections have been
August 1803
V made against the recovery for a total loss.

sly Abbott

Ist. That the case of a total loss never existed. lt Broome. __ : 2d. That the purchase at St. Christophers, by the super

cargo, who was also a part owner of the ship, and the subsequent sale at New-York, without the consent of the des fendant, or a previous offer or tender of the ship to him, amounted to a waiver of the abandonment, and an adop tion of the vessel as his own."122.1931

With respect to the first, it appears that the ship was condemned at St. Christophers, as unfit to proceed on her voyage, on account of the injuries she had received; and the persons appointed to survey her there, certified, that in their opinion, she could not be repaired for her full value when repaired. It is also admitted, on the part of the defendant, that in consequence of the disasters experienced on the voyage, she was so much injured, that it was impossible, from the high prices of wages and materials, to repair her at St. Christophers for half her value, so as to enable her to bring on her whole cargo. It is again admitted on the part of the plaintiff, that in the spring following, the ship came to New-York with a light cargo of molasses and rum, being about sufficient for ballast, and that she might have brought a full cargo of rum, which was proved to be very light and buoyant.

On these facts, I am of opinion, that there existed a case of a technical total loss, and that the assured had a right to abandon. The question, in such cases, is not whether the vessel be in a capacity, or in a situation to be repaired, so as to prosecute her voyage with a half, or any other portion of her cargo, but whether she is capable of proceeding, or of being refitted to proceed, and carry the 1 whole. A vessel is not seaworthy, unless she be in a condition to carry a full cargo. The coutrary idea is novel and inconsistent with every principle of propriety, and safety in navigation. The vessel was insured' to perforti her: voyage, and carry her cargo from Batavia to New-York. This she was disabled from doing. The enterprize, there

COM DEUS. 1933

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fore, failed, by means of the perils insured against, and ALBANY,

August 2803 the plaintiff had a right to abandon, and claim a total loss.

The second question is, whether he has waived this Abbott "-' right. The vessel was ordered by the court of admiralty Broome. at St. Christophers, to be sold for the benefit of all concern- ed. The supervargy, who was one of the owners, purchased her on account of the assured. The assured had previously, on receiving advice of her condemnation, and before any notice of the purchase, abandoned his interest to the underwriters, who refused to accept the abandonment. ļo what manner the supercargo, being also one of the owners, might be affected by the purchase, it is unnecessary to determine. The question is, whether the plaintidl ratified his acts subsequent to the abandonment, and rccognized the purchase as his own, In the case of Saidler and Craig F. Church, after an abandonment, a similar purchase was niade, and the assured adopted it as their own, by availing themselves of the adyantage it offered, and fitting out and sending the vessel on another voyage for their own account. Under these circumstances, we considered

July Termit, the assured as having affirmed the purchase, and waived the abandonment. w. The present case differs in this, that the plaintiff has Idone no act to affirm the purchase. He has not appropriated the vessel to his own use, and has not attempted to derive any benefit from the purchase. The vessel was :0.0

at auction on her arrival at New-York, and purchased by ja stranger. Although it be not expressly stated in the case, the sale must be presumed to have been made for the benefit of the underwriters. It is objected that the plaintiffought again to have offered to deliver them the vessel, or hare consulted them as to the propriety of the sale. I think this was not strictly necessary. The abandonment was an offer to | cede all his title and the possession of the vessel, as far as under the circumstances it was capable of being delivered. The plaintiff was not bound to do more, and it being a fase proper for an abandonment, the defendant ought to have accepted it; or, at least, the refusal was at liis peFul. He did not accept, and the plaintiff was nečeö



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