Beale v. Pettit

2 F. Cas. 1109, 1 Wash. C. C. 241

• Court: United States Circuit Court
• Decided: April 15, 1805
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

charged the jury. This policy is made in the name of one Leamy, for and on account of all persons concerned in the cargo. The plaintiff states himself to have been owner of a part of the return cargo; and if so, it is clear that he has a right to sue. But proof of his interest, and, (the policy being open,) of the value of it, must be made out to your satisfaction. It is of the very essence of this action, that he prove his interest. The protest of the captain is inapplicable to this point. The bill of lading, for the outward cargo, is no proof that the plaintiff was interested in the return cargo. The evidence most relied upon is, a paper delivered by the defendants to the plaintiff, in which they state, that no proof of property had been laid before them, but the declaration, on oath, of the supercargo; for which reason they refuse to pay. Now this paper does not make that declaration evidence, which we have declared is not evidence; particularly as the defendants state it as the ground of their refusal. Should the jury not be satisfied with the proof of property, they will find for the defendants. If otherwise, they will, find, subject to the opinion of the court, in a case to be stated, so as to enable us to decide more deliberately, the question,² whether, under the circumstances of this case, the plaintiff could abandon, and go for a total loss. The plaintiff agreed to be called, as soon as the jury returned to the bar, and suffered a non-suit.

2 This question is more difficult than I at first supposed it. Marsh. Ins. p. 484, says, that if the assured at the time he receives advice of the loss, or before he has abandoned, receives advice also that the property is recovered, he cannot abandon; because he can only abandon while it is a total loss, and he knows it to be so; not after he knows of the recovery. The rule, he says, is, that if the thing insured be recovered before any loss is paid, the insured may claim for a total or partial loss, according to the final event; that is, according to the state of the case at the time, he makes his claim. In the case of Hamilton y. Mendes, 2 Burrows, 119S, Lord Mansfield says, “the question is, whether the plaintiff, who at the time of his action brought, at the time of his offer to abandon, and at the time of his being first apprized of the accident, had only sustained a partial loss, ought to recover as for a total one?” It is repugnant to recover as for a total loss, when the final event has proved it only an average loss. ‘.‘The assured cannot elect before advice of the loss; and if that advice shows the peril to be over, he cannot elect at all; for he cannot abandon, when the thing is safe.” The present is the first attempt that has been made to charge the insurer as for a total loss, upon an interest policy, after the thing was recovered. “If the thing in truth be safe, no artificial reasoning can set it up for a total loss.” “In ease the ship be taken, the insured may abandon; provided the capture, or the total loss occasioned thereby, continue to the time of abandoning and bringing the action.” He again lays down the principle in the following words; “That the plaintiff can only recover an indemnity, according to the nature of his case, at the time of the action brought, or at most, at the time of his offer to abandon.” I give no opinion how it would be in case the ship and goods were restored in safety, between the offer to abandon, and the action brought, or between the commencement of the action and the verdict.” Here the event had fixed the loss to be an average only, before the action brought, before the offer to abandon, and before the plaintiff had notice of any accident.

Parker, Ins. 145, says, that it may be collected from Roceus, that in order to entitle the plaintiff to recover for a total loss; it must continue total at the time the offer is made to abandon, at the time the action is brought, or at the time of the payment of the money.

Prom what is said above, it is clear, that if at the time of the offer to abandon, the assured had notice of the recovery, he cannot abandon. But the question is, if at that time the property was in fact recovered, and in safety, and this unknown to the assured, can he abandon, if afterwards the fact appears? In the case of Goss v. Withers, 2 Burrows. 683, and Hamilton v. Mendes, [supra,] the assured knew of the recovery before his offer to abandon. But the judge, throughout, in laying down principles, speaks of the fact of recovery, before action brought, or offer to abandon. Prom which I should conclude, that if before the action brought, or offer to abandon, it should appeal-, that the property was in safety, the assured can only recover as for a partial loss. But suppose at the time of the offer to abandon, she was still detained, by virtue of the capture, but liberated before action brought? This is the question which Lord Mansfield says he does not mean to decide. But I think it clearly proves, that the question depends upon the fact, not upon the assured having or not having notice of it. Indeed, I cannot see why that circumstance should make any difference in the principle, which certainly is intended to prevent a loss, partial in its nature, from being converted into a total one. In Marshall v. Delaware Ins. Co., decided in this court, [Case No. 9,127,] at a subsequent session, and affirmed in the supreme court, (4 Cranch, [8 U. S.] 202,) it was decided, that the right to abandon depends on the state of the fact, at the time of the offer, and not the state of the information received.