Depau v. Ocean Insurance

Curia, per Savage, Ch. Justice. There can be no controversy as to the fact, that the expense of the repairs exceeded one-half the value of the vessel; and the cables must be considered and paid for as a part of her repairs. That the insurer is not at. liberty to show that the vessel had received part of the injury anterior to the voyage, has [66] not been disputed since the decision of Depeyster v. The Columbian Insurance Company, (2 Caines’ Rep. 85 :) unless she was, in fact, unseaworthy. Assuming these points in favor of the plaintiff, had he, under the circumstances of the case, a right to abandon for a technical total loss 1 In Dickey v. The New York Insurance Company, (4 Cowen’s Rep. 244,) it was decided that the assured could not abandon, after the vessel was repaired, and successfully pursuing her voyage. In that case, however, the vessel was considered as restored, the respondentia being no lien on the ship. In this case, the bottomry was executed at Rotterdam after the voyage had terminated, on account of the sugars sold at Halifax, and port charges at Rotterdam. In the case cited, the master sold part of the cargo at the Isle of France, and was obliged to borrow money upon respondentia on the cargo; and the Court say, “ The vessel was not pledged for the payment; she must therefore be considered as beneficially restored; no impediment was placed in the way of prosecuting the voyage to a successful termination. The plaintiff, then, is entitled to recover for a partial loss only.” This case is not to be distinguished in principle. Here, the master paid for the repairs at Halifax. To enable him to do this, he sold part of the cargo. No bottomry or respondentia was executed ; no money was borrowed ; and, according to the case cited, there was no lien on the ship. She was then beneficially restored. She did, in fact, prosecute her voyage; and was in the prosecution of her Voyage, on the 8th December, 1820, when the offer to abandon was made. In Da Costa v. Newnham, (2 T. R. 407,) the vessel was never beneficially restored. A bottomry bond was executed to raise money, with which to make the repairs; under process upon which, she was subsequently sold. In that particular, the case differs from the principal one. According to the principles settled by this Court, the plaintiff can recover for a partial loss only. He is entitled to the amount expended for repairs, deducting one-third new for old; and also the difference between [67] the price for which the sugars sold at Halifax and what they would have sold for at Rotterdam.; the residue of the expenses at Halifax to be borne upon the principles of gen-oral average; the defendants to pay the ship’s proportion of that average. Strong v. The Firemen Insurance Company, (11 John. Rep. 323,) decides, that when a general average is fairly settled in a foreign port, and the insured is obliged to pay his proportion of it, he may recoxrer the amount from the insurer, though the average may have been settled differently abroad, from xvhat it would have been at the home port. The averages settled at Rotterdam, upon xvhich money xvas paid, or the bottomry bond given, must accordingly govern. Rule accordingly.