Potter v. Providence Washington Ins.

STORY'. Circuit Justice. There is no ques- | ; tion in this case, but that there has been a total loss of the ship, for which the underwriters are liable. The injuries sustained by the hurricane were so great, that upon the ship’s arrival in the port of New York, it was found that it would cost more to repair her, than she would be worth after she was repaired. An abandonment, therefore, was rightfully and seasonably made. The question now in dispute, arises from another circumstance. During the storm, the masts and rigging were voluntarily cut away for the benefit of all concerned, and this sacrifice, beyond all doubt, constitutes, in ordinary cases, a claim for general average upon ship, cargo, and freight. The owner of the ship is also owner of the cargo. The voyage being defeated, no freight was earned. The cargo was insured by another policy. No expenses were in fact incurred for repairs on account of the general average, and no loss has been paid by the underwriters of the cargo as the contributory share of the cargo to the average. Upon this posture of the facts, the defendants contend, first, that the plaintiff being owner of both ship and cargo, they are entitled to receive from him the amount of the contributory share of the I cargo to this loss. Secondly, that this ; amount may and ought to be deducted from the sum received in the present suit. In respect to the first point, it does not appear to me, that there is any reasonable ground for disallowing the general average. This ease must be decided in the same manner as if a stranger were the owner of the cargo. The cargo has been preserved by a voluntary sacrifice, and the ship owner, if there had been no abandonment, would be clearly entitled to demand from the owner of the cargo, a contribution to the general average. It does not appear to me that the abandonment makes any difference in the case. A total loss of the ship, that is, total in construction of law. has arisen; but the cargo has been saved. Where indeed a partial loss or damage to the ship occurs in the course of a voyage, and afterwards, in the same voyage, a total loss of the ship, there the former is absorbed in the latter, unless expenses have, in the intermediate time, been incurred to repair it, and in that event, those expenses are payable by the underwriters in addition to the total loss. Jumel v. Marine Ins. Co., 7 Johns. 412, 424, note C. [1182] But here, though a total loss has occurred, the previous sacrifice constituted not a loss solely to be borne by the ship owner, but a contributory loss to be borne by all the property at hazard. The ship owner had a right to say, I subsequently lost my vessel, but your property was saved at my expense, and you must contribute to relieve me from this burthen. If the ship owner may say so, it appears to me, that the same claim belongs to the underwriters after the abandonment, for they succeeded to the rights of the assured. Then as to the second point. If this were a suit to recover the amount of the loss of the masts and rigging «fee. sacrificed for the common benefit, I am of opinion, that the ship owner would be entitled to recover the whole amount of the loss, without first seeking to recover against the owners of the cargo their contributory share; and the underwriters must be left to recover their recompense over. The ship owner is entitled to receive his full loss by a peril incurred against, without troubling himself with any remedies over against third persons. I follow, in this respect, the doctrine in Maggrath v. Church. 1 Caines, 196, and the other case's in New York, which have succeeded it (Vandenheuvel v. United Ins. Co., 1 Johns. 412; Watson v. Marine Ins. Co., 7 Johns. 57), in preference to that of Lapsley v. United States Ins. Co., 4 Bin. 502. I speak here of a case where the ship and cargo are owned by different persons. Where they are owned by the same person, a different rule may well apply. There the same hand that loses, pays. As between himself and the underwriter's on the ship, his real loss is only the contributory share of the ship to the loss. The other losses are borne by him as owner of freight and cargo, for which he directly is liable. If he actually repairs the loss, the expenses paid must be deemed expenses paid as well in his character of owner of the cargo, as of the ship. To declare that he would in such a case be entitled to recover the whole expenses against the underwriters, would be to decide, that he might recover a sum, which he was bound to pay on his own account; to recover that which he was bound immediately to pay back to the underwriters. The law does not justify such a doctrina And the authority of Jumel v. Marine Ins. Co., 7 Johns. 412, is directly opposed to it; and Williams v. London Assur. Co., 1 Maule & S. 321, goes with the latter. In principle, there ought to be no difference, whether the owner of the ship has repaired the loss or not In either case, he can recover only the amount of his loss. This loss must be in either case no more than what he has incurred as ship owner. In contemplation of law, as owner of freight and cargo, he is indemnified as to tlleir portions of the loss. My judgment accordingly is, that in this case there must be a deduction from the verdict of the amount of the contributory share of the cargo towards the loss, for to this extent the ship owner has actually in his own hands an indemnity. The case is precisely the same as if he had received from a third person, who was the owner of the cargo, the amount of his contribution. Pro tanto, it would be an indemnity going to diminish the total loss. The district judge concurs in this opinion, and there must be judgment accordingly.