Post v. Phœnix Insurance

Kent, Ch. J. delivered the opinion of the court. The counsel for the defendants have moved to set aside the verdict on the three following points: 1. That the deviation in going into St. Sebastians was not justillable, and discharged the insurer. • ' .% That the total loss, as to the ship, ceased, by her liberation before the abandonment was made. 3. That the sum recovered is much greater than the sum insured, as the ship and the cargo were insured to only one fourth of the valuation mentioned in the policy.- 1. The taking of a pilot and going into St. Antona was a justifiable deviation under thé circumstances of the case. The want of wind is mentioned, but the governing cause of the deviation was, undoubtedly, the fear of capture by the British brig which was pursuing the Radius, and which, according to the information given to the captain by the pilot, had recently captured several American vessels bound to St. Sebastians. It was decided, in the case of Murray v. The United Insurance Company, (2 Johns. Cases, 263.) that the capture of a neutral by a belligerant cruiser, ' was a loss within the policy and a justifiable cause of abandonment. Being a peril insured against, it follows, of course, that the assured js justifiable in a deviation to avoid it; and it is always a question of fact whether the peril be so present and palpable as to excuse the deviation. In the case of Reade v. The Commercial Insurance Company, (3 Johns. Rep. 352.) a deviation by an American vessel, to avoid capture by a British cruiser, was allowed to be justifiable, if the facts were such as to render the deviation necessary or prudent. There was no question raised on the general point, as to the lawfulness of deviation by a neutral, to avoid capture by a belligerant. , In this case we think the jury were warranted from the facts in drawing the conclusion, that the deviation ip going into St. Antona was founded in a justifiable necessity. 2. The vessel and cargo, as soon as they had arrived at St. Antona, were seized by the French. The cargo was carried to Bayonne, and never restored; and the ship, after being for six months in the possession of the French power at St. Antona, was recaptured by the British and Spaniards, and carried to Corunna; and in October following, she was given up to her owners on the- payment of salvage, but was not permitted to clear out or sail for SL Sebastians. All the ship’s papers, such as her register, Mediterranean pass, role d’equipage, and the invoice and bill of la [84] ding, had been seized at St. Antona, and were never restored. therefore, left naked, without any documentary title or voucher to give her protection on the high seas; and'all she, obtained at Corunna was the certificate of the British commodore an the American consul, to protect her on her return to New-York. Under these circumstances, the capture continued its destructive effects down to the time of abandonment. The ship was not so recovered as to be in a legal capacity to perform the voyage ; and what was said by Mr. Justice Paterson, (3 Cranch, 396.) as to the necessity of these papers, is entitled to great weight. They are the requisite insignia to distinguish a vessel navigating the ocean with permission v of her sovereign, and under the sanction of treaties and the law of nations, from a piratical or lawless rover. A vessel without her papers is liable to capture in time of war; and the French Ordinance (art. 6. tit. 9. Des Prises,) declares every such ship good prize. We do not wish to press this principle to extreme lengths, and to say, that in every case the loss of the ship’s papers, as by being dropped overboard, or by fire, &c. would justify the breaking up of a voyage. This will depend, in some degree, upon circumstances, such as the place where, the time when, the cause why, and the portion of the voyage that has been, or that remains to be performed. But we think that, under the circumstances in which this vessel was placed at Corunna, the voyage insured was necessarily broken "up by means of the capture, and that to have pursued it without papers, and against the leave of the power surrendering the ship, would have been an act of indiscretion and folly. The jury were, therefore, warranted in finding a total loss by capture, for to that peril the breaking up of the voyage is justly to be charged. In Goss v. Withers (2 Burr. 683.) there was a capture, recapture, and bringing into England, but the salvage was so high that the court of K. B. held that the 'insured was justified in abandoning, and considering the loss as total, by the capture. 3. The third point is without any solidity. One fourth of the ship was insured, and the vessel “ thereby insured” was valued at 5,500 dollars. This valuation applied to the interest insured, and not to the whole ship. The endorsement on the policy is conclusive evidence that this was so understood by the parties, for the premium was paid on the whole valuation. The payment of premium is often resorted to, as a guide to interpretation. (Pothier, [85] Traité du Prét á la Grosse, s. 32.) The same observation applies to both policies. The motion for a new trial ought, therefore, in each cause, to be denied. Motion denied.