Barker v. Phoenix Insurance

8 Johns. 307

Opinion

Kent, Ch. J.

delivered the opinion of the court. 1. The first objection to the plaintiff’s right of recovery is, that the preliminary proofs were insufficient. The plaintiff duly and formally abandoned in writing, on the 5th of October, and communicated with the letter of abandonment, a copy of the letter from Captain Corliss, of the 11th of July preceding, which contained all the in* formation that he had, at that time, received. The letter of the captain stated, that the cargo insured had been detained at Copenhagen by an embargo, and that he had been obliged to leave it behind. The plaintiff, upon, receiving this advice of a total loss, elected to abandon, and there is no doubt but that the fact of the detention of the cargo justified the measure. It was sufficient for the plaintiff to have stated, as he unequivocally did in his letter, his determination and offer to abandon, together with notice of the particular loss upon which it was ' grounded. This was all that the law required, to give validity to the act. (Marshall, tit. Abandonment, s. 3. Thelluson v. Fletcher, 1 Esp. Rep. 73. Emerigon, tom. 2. 189.) The requisite documents, and proofs of interest and loss, may be communicated, says Emerigon, (p. 192.) at any time after the abandonment. The act of abandonment, under the general law of insurance, and the furnishing the preliminary proofs, under the special stipulation in the policy, are distinct acts, and must not be confounded. The clause in the policy, that the loss is to be paid, thirty days after proof thereof, gave rise to what is termed, in our books, the preliminary proofs; and Us its object was only to furnish reasonable informa- . . , , . tion to the insurer, so that he might be able to form some estimate of his rights and duties, before he was obliged to pay, it has always been liberally expounded, is construed to require only the best evidence of the fact that the party possesses at the time. (Talcot v. Marine Insurance Company, 2 Johns. Rep. 130. Haff v. The Same, 4 Johns. Rep. 132.) But, in this case, more ample proof was furnished on the 21st of October, which was admitted by the counsel to have been above thirty days before the commencement of the suit. The papers which were then presented afforded sufficient proof of interest and loss, and the claim for a total loss was renewed. This claim was founded upon one plain, specific fact of loss, appearing upon all the papers, and never varied; and if it were necessary to connect the several communications, they might well be considered as one entire transaction begun on the 5th, and consummated on the 21st of October. But if we take the acts separately, there was a regular abandonment on the 5th of October, which was sufficient to satisfy the law, and to fix the technical total loss; and admitting the proof to have been then,insufficient to meet the special clause in the policy, it was fully supplied on the 21st, and gave the plaintiff his right of action at the expiration of the thirty days.

2. The next objection is, that the defendants are charged in the verdict with the cargo’s proportion of a general average arising from unloading and storage of the cargo, and the wages and provisions of the crew, during the time that the vessel was necessarily detained at Copenhagen to refit, and prior to the intervention of the embargo. That these expenses, incurred in a case ' of such necessity, form a general average, was, settled in the case of Walden v. Le Roy, (2 Caines’s Cas. 263.) and that the ship was driven into Copenhagen by the perils of the sea, is conclusively shown. These are expenses which the insurer is to pay, in addition to a total loss, and so it was lately declared by this court in Jumel & Desobry v. The Marine Insurance Company, (7 Johns. Rep. 412.) There is then no real foundation, nor even a plausible pretence, for any objection to this part of the recovery.

3. The last objection is, that the plaintiff had not shown a compliance with his warranty. The insurance was upon “ The good American ship, called the Rod-man." These words amount to a warranty that the ship was American, according to the settled construction of the phrase, both in this and in the English courts. (1 Johns. Cas. 341. 2 Johns. Cas. 168. 3 Bos. & Pull. 201. 506. 510. 514. 531. & East's Rep. 382.) A warranty that the property is American, undoubtedly means that it is not only so in fact, but that it shall be clothed with the requisite evidence of its American character, for the purpose of protection, and in reference to the law of nations, under the sanction of which the voyage in question was to be conducted, (l Johns. Cas. 365. 2 Johns. Cas. 148.) It was proved that the ship was owned by the plaintiff, and that he was an American citizen; and from the case we are to conclude, that the ship had all the papers requisite for an American vessel, except an American, register. The case is somewhat equivocal upon that point, but this we think to be the better construction of it. If she had not the documents required by our treaties, it ought to have been made a distinct, substantive ground of objection, at the trial. The case states, that “ the defendants’ counsel moved for a nonsuit, on the ground that the vessel was warranted by the policy to be an American vessel, and that the plaintiff had produced no proof of her being such; but that, on the contrary, it appeared, from the testimony in the cause, that she was only a sea-letter vessel, without an American register.” This was an admission that she was a sea-letter vessel, though the competent proof of that fact is not disclosed in the case, and the defendants - . , . , evidently placed their motion tor a nonsuit on the single ground of the want of a register. If any thing, was wanted to show a compliance with the warranty, except register, it ought to have been expressly so stated.; The presumption must be, after verdict, and upon this case, that every objection was supplied. We are then reduced to this single point, was the want of a register a breach of the warranty? At the time the policy was underwritten, there were two kinds of American vessels, the one registered, and the other unregistered and carrying a sea-letter, or an official certificate of ownership,- and both kinds were recognised by law, as American vessels, though the former was entitled to higher privileges under the laws of congress. (Laws U. S. vol. 6. 72.) But, in reference to the law of nations, and to security upon the high seas, both species of vessels were equally entitled to protection as American property. There was no use in requiring a register for any object within the purview of the warranty. The want of it did not enhance the risk. “ It is a known and established rule,” says Sir William Scott, in the case of the Vigilantia, (1 Rob. 113.) “ that if a vessel is navigating under the pass of a foreign country, she is considered as bearing the national character of that nation under whose pass she sails; she makes a part of its navigation, and is in eveiy respect liable to be considered as a vessel of that country.” What was said by Lord Alvanley in Baring v. Claggett, (3 Bos. & Pull. 201.) is not applicable, nor does-it affect this doctrine. He considered that the warranty of a ship to be American required an American register, under our navigation act and the French treaty, and that the privilege of carrying the American flag, as a safe conduct among belligerent powers, was to be denied to all ships not sailing under a compliance with that act. The act he referred to Was passed in 1792, (Laws U. S. vol. 2. p. 131.) and declared that none but registered vesA ' e . seis should be deemed vessels of the United States entitied to the benefits and privileges appertaining to such vessels. He was not then apprized of the distinction between registered and unregistered vessels, and of the legislative recognition of the latter as American vessels, entitled to privileges in port, as such, under the act of 1802. The act of 1792, to which he referred, seems» by its terms, to have left unregistered vessels as alien Vessels, and without the protection of the United States. Whether that was, or was not, the condition of such vessels at that time, is not now a material inquiry, since-the vessel in question, at the time of the warranty, was not only American property in fact, but entitled, by her sea-letter, under our law, and under the law of nations, to the immunities of the American flag. This was equivalent to what was termed by Sir William Scott a national pass, and so it was considered in the court of errors, in the case of Sleght v. Hartshorne. (2 Johns. Rep. 531.)

The court are accordingly of opinion, that the'motion, on the part of the defendants, be denied.

Motion denied.