Jumel & Desobry v. Marine Insurance

Kent, Ch. J. delivered the opinion of the court. Here was. clearly a case of total loss. The vessel was captured and condemned, and it is not pretended that there was a breach of warranty. The plaintiffs were therefore entitled to abandon, and they accordingly did abandon on the first of June, 1808. The master, in consequence of his abandonment, became the agent of the insurers, and the plaintiffs are not bound by his subsequent acts, unless they have adopted them. It was not in the power of the master, by any act of his, to change the total loss, thus fixed by the abandonment, into a partial loss, without the subsequent assent of the assured, and there is no evidence in the case of any such assent, or of an)' adoption of his acts. The purchase of the vessel by the captain was for the benefit of the insurer, if he chose to take it, and if he did not, still the refusal does not affect the abandonment, or the rights of the other party. These principles are well settled, and have frequently been brought into view in cases before this court. (Saidler & Craig v. Church, cited in 2 Caines’ Rep. 286. Abbott v. Broome, 1 Caines’ Rep. 292. United Insurance Company v. Robertson & Hartshorne, 2 Caines’ Rep. 280.) In the case of Miller & Graham v. Depeyster £i? Co. (2 Caines’ Rep. 301.) the master made a composition with the captor after a total loss followed by an abandonment, and the insurer was held to be answerable for the total loss, and to be [424] entitled to the benefit of the composition. The master is not bound to prosecute the appeal. (3 Term Rep.-4/7.) There is no case which imposes this as an indispensable duty upon the master. He is only bound’ to act with good fai$h, and sound discretion, in respect to the interest under his charge; and the compromise in this case appears to have been made under the influence of both these considerations. But whatever might have been the merit or demerit of his conduct, after the total loss became fixed, is immaterial in the present case. The purchase was not made until the 3d of June, and the loss continued total to the time of abandonment. Tf the captain had afterwards been wanting in a faithful discharge of his trust, he would have been answerable to the insurers. The plaintiffs are accordingly entitled to recover as for a total loss, and the remaining inquiry is as to the principles upon which the accounts are to be adjusted, taking the ground of a total loss. ■ According to the settled construction of the general permission granted by the policy, to labour, &c. the insurer is liable to expenses incurred in the attempt to recover the captured property, in addition to the payment of a total loss. The amount of the total loss chargeable upon the defendants is the sum subscribed* with interest thereon from the 1st July, 1808, and we are to determine what expenses they are chargeable with in addition to this subscription. The defendants are chargeable with their proportion of the expenses incurred in endeavours to protect and reclaim the property prior to the time of the composition made by the captain; and these expenses are to be apportioned upon the principles o¡ a general average. They were incurred for the joint benefit of the ship, freight and cargo, as all were equally put in jeopardy by the capture. The defendants ought not to be responsible beyond that sliare of the expenses, which, upon the [425] principles of a general average, will fall upon .the vessel. The rule in Maggrath Higgins v. Church, (1 Caines’ Rep. 215.) does not apply to a case like this, where ship, freight, and cargo belong to the same person, and when it does not appear .that the other subjects are insured. Why should the plaintiffs recover the whole general average of the defendants, when they would, by that very act of recovery, and immediately upon receipt of the money, become answerable over to the defendants for that proportion of the average which ought to be borne-'by the cargo and freight ? Nothing could be more disgusting than the operation of such a rule, and it would be perverting the very ground and principle of the other decision. In calculating these expenses, the defendants are not to be answerable for marine interest^ but only for the ordinary legal interest on the sums advanced. The defendants have never accepted of the ship, or chosen to avail themselves of the benefit (if a benefit it was) of the captain’s purchase. Had they elected to affirm the purchase, and take the ship, they must have taken her cum onere, and with the encumbrance of the bottomry bond. But they were not bound to ratify that purchase, and as they have not done it, they have nothing to do with the vessel, or the bottomry bond, or the net amount of the freight, or of the sale of the -vessel. They are only to pay the total loss with their proportion of the expenses incurred in labouring for the safety and recovery of the vessel, freight, and cargo, prior to the composition made with the captors. These expenses might undoubtedly have been raised by other means than by a bottomry bond, and that step ought- not to be resorted to until all other means have failed: This was so held by this court in Reade v. Commercial Insurance Company; (3 Johns. Rep. 352.) and it is a Well settled rule on the subject. It is for this reason [426] that the insurers are not hei~e to pay marine interest; and that they have nothing to do with the purchase ~of the vessel, unless at their election, is a general principle in insurance, for which it will be sufficient here to refer tota passage in Emcr~gon. (Torn. 1. 470.) "The insurers are not bound to avail themselves of the benefit of a composition. It is sufficient that they pay the total loss when demanded. If they will not take to themselves the profit of the composition, they are still bound to pay the total loss~ and in su~h a case they have no right to the subject repurchased; so there is flG foundation for a claim upon them to contribute to the expense of the repurchase, as it is an act to which they are strangers, and which they are at liberty not t~ adopt, lest it thight expose them to still greater loss." Upon these principles, the referees mentioned in the case are to adjust the amount of the recover~~.