HURTIN v. PHOENIX INS. CO., 12 F. Cas. 1047

"WASHINGTON, Circuit .Tustice (charging jury). The first objection, if well founded, goes to the destruction of both policies; but, it appears, that, as it is usual to carry general bills of lading, if you should be satisfied of this, then the assured was not bound to mention the circumstance. It would rather seem, that the risk was lessened, than increased, by having a general bill of lading.. But, if it is unusual to cany such bills, you are the proper judges, whether the not disclosing the circumstance, was material to the risk.

The important question is, whether the plaintiff can recover, as for a total loss on the vessel and cargo, or either; and, in considering each case, it will be proper to inquire, first, whether the plaintiff had a right to abandon; and, secondly, whether the abandonment was made in a proper manner, and was effectual. As to the cargo. 1st. Had the plaintiff a right to abandon? The cargo was destined for Gibraltar, but was captured and carried into Algesiras, from whence it could not be removed without security being given, not to carry it to a British port.

This amounted to a .complete destruction of the original voyage; and it ai>pears, that the supra-cargo, who, upon the spot, must have been the best judge what it was most prudent to do, considered it most for the benefit of the parties concerned, to sell it there.' under the sanction of the government. It does not appear that he could have done better, had he gone elsewhere; but, even if he could, he was not at liberty to leave the port, without giving security not to carry the cargo to a British port.

He was the agent of the assured; and, I admit, that as such, he could not. without necessity, convert a loss, but partial in its nature, into a total loss. But. here the voyage was broken up; it could not be further prosecuted; and, if he acted for the best, for all concerned, of which you are the judges, then the loss became total, and the plaintiff had a right to abandon. 2d. It is true, that, as soon as the assured receives notice of the loss, he must make his election to abandon or not; and, in the former case, he must, within a reasonable time, give notice of his intention.

What is a reasonable time, must always depend upon circumstances, to be judged of by a jury. If he waits a reasonable time to obtain advice, whether he may legally abandon or not, the delay, being in all respects fair and bona fide; it might well enter into the consideration of the question, whether his determination was communicated in due time. There may be other circumstances.

But, if he waits with a view to place the loss on the under•writer, as events might turn' up to render it prudent or otherwise, although he at last determines, before he has received any further-information on the subject; the delay would be less excusable. Now, in this case, the plaintiff made an absolute abandonment of the cargo, within five days after he appears to have received notice of the loss, which was accepted. It is said, however, that his refusing to make a cession, except upon terms with which the insurers were not bound to comply, amounted to a waiver of the abandonment.

If a cession, as it is called, had been necessary to make the abandonment complete, there might be something in the argument. But, this is not the case. The abandonment amounts to a legal transfer of .the right of the insured, so as to enable the underwriters to pursue, to manage, and to recover the property, as effectually as if a regular deed had been made to them. It is said to be the uniform practice in Philadelphia, for the insured to make a formal conveyance. This may be so; because, I presume it is never objected to.

But, when it comes to be made a question, whether the abandonment is invalid, if the cession is refused, we must say it is not; because, such an instrument is not necessary to pass the right of the insured to the underwriters. The refusal, therefore, of the plaintiff to execute such an instrument, did not affect the prior abandonment, which had been made and accepted. It appears, that he was ready to send forward all such papers, as might be required to prove the property. Upon the policy on the cargo, therefore, the plaintiff has a right to recover for a total loss. Next, as to the vessel— 1st.

Had the plaintiff a right to abandon? It is true, the vessel was detained for a short time, with a view to condemnation; but soon after, the captain was at liberty to go where he pleased with her; but he could not take the cargo with him, without giving security. not to carry it into a British port in the Mediterranean. If the captain had landed his cargo immediately, there was nothing to prevent the departure of the vessel, which was in perfect safety, free from injury by any of the perils insured against, except a temporary interruption. It is said, that the voyage was broke up.

As to the cargo, it was; and therefore the underwriters, on that and on the freight, are answerable; but this is nothing to the underwriters on the vessel. Suppose she had been met with at sea. by pirates, and plundered of all her cargo, and then dismissed; would the underwriters on the vessel be answerable, because the object of the voyage was put an end to? Certainly not. But it is contended, that she was detained for two months at Algesiras, as is proved by the depositions of the supra-cargo and mate.

The conclusive answer is, that the same letters, which informed the plaintiff of the loss, informed him also, that the vessel was clear, and would proceed to Malaga, to bring home a cargo of wine; and the supra-cargo, to prove his idea of her safety, desired the plaintiff to abandon only the cargo. Knowing, therefore, that the danger was over, at the same time that he knew of the capture, it was not competent to the plaintiff to abandon.

But, if these letters had informed the plaintiff, that the -vessel was still detained, so as to authorize an abandonment, the plaintiff is not entitled to recover, as for a total loss on her; because, 2dly, the abandonment was not made in proper time, and in a proper manner. As soon as the insured hears of the loss, he should make his election, and communicate to the underwriters his determination to abandon, if he chooses it.

But if he makes his election not to abandon, and particularly, if he communicate this determination to the underwriters, he cannot afterwards change his mind, and say, he will abandon; and thus throw the whole loss on the underwriters. And here is the difference between the vessel and the cargo, in the present instance. In the latter case, he made his election promptly, to abandon, and it was accepted.

In the former, he first determined to abandon all; but adopting the advice of his agent, he directed him to abandon only the cargo; assigning the very reason, which should prevent him from afterwards changing his mind, namely, that he should, by giving up the vessel, lose the freight, which the letter from the supra-cargo induced him to accept. This letter, confining the abandonment to the cargo, was shown to the defendants, on the f>th, at the time the abandonment of the cargo was accepted.

The plaintiff knew that he had barred himself of a right to abandon the vessel, by stipulating, afterwards, the acceptance of it. as the condition of his making a formal cession of the cargo. The plaintiff, therefore, cannot recover on the vessel, more than for any partial loss, which he may prove. 5th point. The argument, that the underwriter, in caso of abandonment, is entitled to the proceeds of the thing abandoned, and if they be invested by the agents of the insured, in other articles which produce a profit, to those profits also, is well founded, but does not fit this case.

It is clearly proved, and was at first admitted, that the brig and her cargo, purchased by the supra-cargo at. Algesiras, was paid for, by bills drawn on the plaintiff, and by money received on letters of credit; the defendants at first supposed, and insisted, that this brig and her cargo should be accounted for. But it would seem, that they were afterwards satisfied upon this subject. 6th.

It is contended, that the money for which the cargo was sold, is stated to have been laid out in the repairs and expenses of -the vessel, at Algesiras, which could not legally be done; and therefore, that sum, at least, must be considered as invested in the purchase of the brig and cargo, to the proceeds of which, the defendants are entitled. Whether the cargo could, or could not, be charged with the repairs and expenses, it is a sufficient answer to this claim, that they were in iact appropriated to the making of these repairs; and therefore could not also have been invested in the purchase.

It is not enough to sanction the claim, to say, that they might have been so invested; it cannot be supported, unless it appear, that in reality they were so invested, for the benefit of the insured, or for the concerned. It,, however, becomes a necessary question, what part of the proceeds of the cargo sold at Algesiras. is to go to the credit of the defendants. It appears, by the account, that the expenses, incurred during the detention at Algesiras, amounted to between four and five hundred dollars; and that the repairs of the vessel exceeded the sales of the cargo.

As to the former, that may properly be a subject of general average; but as to the latter, they are certainly not chargeable against the cargo, either in toto, or as general average; since, being landed at Algesiras, it was to receive no benefit from the future repairs of the vessel. They may be charged to the ship, if they were rendered necessary, from any of the risks mentioned in the policy; and as the defendants are underwriters, on both ship and cargo, it will come to the same thing. [For a similar trial, see Case No. 6,941.] NOTE. See Scriba v.

Insurance Co. of North America [Case No. 12,560]. .The court determined, that the protest of the captain, could not be read in evidence by either party. The counsel agreeing, that if the jury should find for a total loss on the cargo, and a partial loss on the ship, the adjustment would be made by consent, the jury found accordingly.