Boardman v. Boston Marine Insurance

Holmes, J. This is an action upon a policy of insurance on freight on hoard or not on board schooner Theresa for one year. The freight is “ valued at twenty-five hundred dollars, unless a larger amount at risk, then at actual freight ”; and the policy provides that time risks on freight shall apply “ to each cargo (or voyage, if in ballast and not chartered) successively, or to each charter successively in case vessel be chartered.” Thwing v. Washington Ins. Co. 10 Gray, 443, 453. The only question is, whether the court erred in refusing to rale that upon the evidence the plaintiffs could not recover for a total loss. The defendant’s main reliance is upon the following clause in the policy: “And it is agreed, that the insured shall not have the right to claim for total loss on account of the estimáted amount of repairs exceeding the valuation of the vessel, nor under any circumstances to abandon, provided the vessel remain in specie, unless the amount which the insurers would he liable to pay (exclusive of all general average charges, and charges for getting off or raising and bringing into port a vessel stranded or submerged, and of all repairs consequent upon decay) under an [451] adjustment, as of partial loss, after making all the usual deductions, including the proportion or whole of cost of remetalling, docking, and calking, as provided for in this policy, shall exceed half the value of said vessel, as declared in this policy; and the highest valuation under which the vessel is insured, in any policy, shall be the basis for ascertaining a technical total loss of freight under this policy.” The defendant contends that all parts of this clause apply to insurance on freight, and limit the right to abandon it to the case there expressed. We have not found it necessary to consider whether this clause in any way limits the right to claim for a total loss of freight, except to provide that when the claim is based upon a constructive total loss and abandonment of the vessel as the foundation, the value of the vessel is to be taken at the highest valuation in any policy, and then to leave the question to be determined as in Ellicott v. Alliance Ins. Co. 14 Gray, 318, 320, so far as the defendant is concerned. For even if we should follow the plaintiff’s argument to that extent, still it would be impossible to make out a total loss of freight on this footing consistently with the statement in Thwing v. Washington Ins. Co. 10 Gray, 443, 457, 458, — that where the cargo can be forwarded at a cost of less than half the stipulated freight, there is no total loss, — if in a case like the present the freight is to be taken at the valuation in the policy for the purpose of determining that question. Thwing v. Washington Ins. Co. at p. 461. Whitney v. New York Firemen's Ins. Co. 18 Johns. 208, 210. Allen v. Commercial Ins. Co. 1 Gray, 154, 157. But we think it too plain for argument, that, whatever its scope, the clause does not extend beyond the case where the claim for a total loss of freight is based upon the loss of the ship. It has no application where the claim is based upon the loss of the cargo. If it did apply to a claim on the latter ground, it would do so simply in the sense of excluding it altogether. But nothing of that sort is intended, as the next sentence regulates a claim for freight based upon loss of perishable goods, and an earlier one deals with loss of freight on ice or lime caused by destruction of those articles. The plaintiff claims on the ground of the loss of cargo in specie by perils of the seas, as well as on that of the loss of the ship. [452] The whole cargo, which consisted of two hundred and seventy-four tons of coal, was not lost. The whole actual freight was only five hundred and twenty dollars and sixty cents, or much less than half the valuation in the policy. If, therefore, we are to follow the rule which has been applied in this Commonwealth for the purpose of determining whether there is a constructive total loss of a ship under a valued policy, there has been no constructive total loss of freight, and there could not be so long as a single ton remained which could be forwarded for less than about seven hundred and thirty-two dollars, or half the valued freight less the actual freight supposed to be lost. We have no disposition to depart from the rule so far as it is settled, but in the existing state of the decisions elsewhere it should not be extended. Bradlie v. Maryland Ins. Co. 12 Pet. 378, 398, 399. Irving v. Manning, 1 H. L. Cas. 287, 306. Stewart v. Greenock Ins. Co. 6 Ct. of Sess. Cas. (2d series) 359. Phillips, Ins. § 1539. It is to be noted that in Allen v. Commercial Ins. Co. 1 Gray, 154, 157, while the rule is adhered to, some stress is laid upon the fact that it was embodied in the words of the policy before the court, as is usual in Boston. Phillips, Ins. § 1539, n. It is to be noticed further, that the reasons offered in Deblois v. Ocean Ins. Co. 16 Pick. 303, 312, other than that abandonments for technical total losses are not to be favored, have no application here. The actual value of the vessel will fluctuate, according to the time when and place where the loss occurs. Furthermore, it is a matter of estimate, on which opinions may differ widely. It may well be said that such estimates are excluded by the agreement of the parties, and that, as the only way of ascertaining whether the loss is more than half is by comparing the cost of repairs with some valuation, the valuation in the policy must be accepted. But in the case at bar there is no element of fluctuation or of valuation. If the freight of a whole homogeneous cargo is conclusively presumed to be worth the valuation in the policy, there seems to be no reason why the freight of one half of it should not be presumed to be worth one half of that valuation. A loss of one half of the cargo in specie by perils of the seas entails a loss of one half of the actual freight, and the policy establishes that that freight is worth twenty-five hundred dollars. In any case [453] of loss of freight by loss of cargo, the question whether the loss is total can be determined by the simple rule of three. There being no question of fraud, or suggestion that the ship did not take a full cargo, or at least all that she could get, (Coolidge v. Gloucester Ins. Co. 15 Mass. 341, 344,) we are of opinion that a loss of more than half the cargo in specie by the perils insured against authorized the plaintiffs to abandon the freight, and claim for a total loss. See Denoon v. Home & Colonial Ass. Co. L. R. 7 C. P. 341, 351. Clark v. United Ins. Co. 7 Mass. 365, 373. Fay v. Alliance Ins. Co. 16 Gray, 455, 459. We are also of opinion that there was evidence from which the jury would have been warranted in finding that there was such a loss of more than half the cargo. We do not say that they might not have found otherwise, but as the defendant did not wish to go to the jury after the court had declined to take the case from them by a ruling in its favor, we have nothing to do with that possibility. The total amount of coal was two hundred and seventy-four tons, one half of which is one hundred and thirty-seven. The witness Baker estimated that on March 12 he took forty tons out of the vessel at Hyannis, the port to which she was taken when raised. It is true that he says he does not know whether any coal was taken out between February 3, the day of arrival, and March 12, when he got there. But plainly he means merely that he does not know by the direct evidence of his senses ; for he also says, “ She was not discharged of coal before I got there, the 12th; she was filled full of water.” So that it is a fair inference from what he saw, that no coal was taken out before. Baker further estimates that they threw over forty or fifty tons in a vain effort to save the vessel, which was abandoned, and that there were put on board the lighter thirty or thirty-five tons ; in another place he says forty-five, of which ten or fifteen tons reached Hyannis, and the rest was used or thrown overboard. The coal was very light, and the great seas washed it out of the vessel, but he could not say how much. Giving the defendant the benefit of all the above amounts, (see Forbes v. Manufacturers' Ins. Co. 1 Gray, 371, and Griswold v. Union Ins. Co. 3 Blatchf. C. G. 231,) and of the highest figures stated, they are only one hundred and thirty-five tons, or less than half, unless the “ very [454] little ” used by the steam pumps is to be added, and exceeded two tons,'j and the fair inference is that the rest was lost by perils of the sea. The only reason for doubt is in the vagueness of Baker’s estimates. But they seem to have been the best evidence to be had under the circumstances, and the jury would have been warranted in accepting them, and would have accepted them perhaps the more readily in view of the fact that the defendant paid the owners of the cargo for a total loss. If then the jury had inferred that the coal not accounted for by Baker was lost by the perils insured against, and that it amounted to more than half the cargo, the verdict could not have been set aside as not warranted by the evidence. Verdict to stand.