The Chesapeake Insurance Company v. Stark

Marshall, Ch. J. delivered the opinion of the court as follows: On the principal question in this case the cpurt can entertain no doubt.' On the capture of the'Minerva, the right to abandon was complete, and this right was exercised during her detention. The objections to the form of .the abandonment are not 'deemed substantial. The agent who made the insurance might certainly be crt dited, and, in transactions of this kind, always is credited, when he declares that, by the order of his principal,' he abandons to the underwriters. In this case, the jury find .that the abandonment was made for the plaintiff; and tljis finding’ establishes that fact. The informality of the deed of cession is thought unimportant, because, if the abandohment was unexceptionable, the property vested immediately, in the. underwriters, and the deed was not essential toffhe right of either party. Had it been demanded andlrjsfosed, that circumstance might have altered the law of the case. If the abandonment was legal, it put the underwriters completely in the place of the assured, and Parker became their agent. When, he contracts on behalf of the owners, of the goods, he. contracts on behalf of the underwriters, who have become owners, not on behalf of Stark, who has ceased to be one. His act is no’ longer the act of Stark, and is m ’ to bé consi- ' dered as an interference, on his part, which may affect the abandonment. If any particular instructions bad been given on this subject, if any act of ownership ' had been exerted by Stark himself, such conduct might be construed into a relinquishment of an abandonment which had not been accepted ; but as nothing of'the kind exists, the act of the- supercargo is to be considered as the act of the persons interested, whoever they may be. *273 The only point which' presents any difficulty in the opinion of the court, is the objection founded on the omission, in the verdict, to find that the abandoninent was made in reasonable time. The law is settled that an abandonment, to be effectual, must be made in reasonable time ; 'but what time is reasonable is a question compounded of fact and law, which has- not yet been reduced to such certainty as to enable the court to pronounce upon i% without the aid of a jury. Certainly the delay may be so great as to enable every man to declare, without hesitation, that it is unreasonable, or the abandonment may be so immediate, that all will admit it to have been made .in reasonable time : but there may be such a tmedium between these extremes, as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide,'then .the law would determine, to a day or an hour, on the time left for dt liberation, 'after receiving notice of the loss. But the law has not so determined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the court.- In this case the jury have found an abandonment, but have not found whether it was made in- due time or otherwise. The fact is, therefore, found defectively ; and for that reason a venire facias de novo must be awarded. It may . not be amiss to remark that tbe judicial ppinions which we generally find in the books, on these subjects, are usually given by way of instruction to tbe jury, or on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration,. Judgment reversed, and the cause remanded, with direction to award a venire facias de novo.