Bryant v. Commonwealth Insurance

23 Mass. 131

• Court: Massachusetts Supreme Judicial Court
• Decided: March 29, 1828
• Status: Published

Opinion

Putnam J.

delivered the opinion of the Court. The principal question in this case is, whether, upon the facts proved, the verdict for a total loss can be supported.

It is found that the schooner'was cast on shore by stress of weather, and without any fraudulent intent of the master, on the 28th of December, 1824, at a place in Virginia called the Wash woods. The vessel was not bilged, and the cargo sustained little or no damage by the stranding. The plaintiffs received a letter from the master on the 8th of January, 1825, giving information of this loss, and on that day they offered t.o abandon. The facts and circumstances attending the property at that time, must determine the rights of the parties as to making an abandonment. The cargo was not damaged, but the plaintiffs claim for a total loss on the ground that the voyage was lost by reason of the stranding of the vessel; and that the master was authorized, from the necessity of the case. to sell the cargo on the beach, and thus to put an end to the voyage. The defendants contend that this proceeding of the master was not warranted. They contend that the schooner might have been got off and the voyage completed with her, and that the cargo might by other means have been carried to the port of destination. In point of fact it was carried by land to Norfolk, by the purchasers, and it is proved that vessels might have been procured there to carry it to Castine.

Whether the schooner could have been got off or not, or whether another vessel could have been procured and brought to the Washwoods to receive and transport the cargo to Castine, or whether it could or could not have been carried by land to the North Landing, and from thence shipped in another vessel for Castine, is left doubtful upon the evidence, and is not settled by the jury. They only state the amount of the expense of completing the voyage, but do not give the items, nor state in which mode the voyage could have been best accomplished.

The law authorizes the master, in cases of shipwreck, stranding or other disasters which may happen without his fault, in the course of the voyage, to act for all parties interested, in their absence. If the ship should be stranded, it would be his duty, in behalf of the owner of the ship, to get her off and prosecute the voyage, if it could be done at an expense not exceeding half her value. So, if that could not be done, he has authority to procure another ship to carry the cargo to the port of destination. If the cargo were damaged by the stranding not exceeding one half the invoice value, it would be the duty of the master, as representing the owner of it, to cause it to be reladen on board the ship, if that were in a condition to transport it, or if not, on board any other ship which he could procure upon reasonable terms, on account of the ship-owner, to the end that the ship-owner may earn his freight, and the merchant have his goods at the port of destination. ¹ The master, in short, is, in such cases of disaster, to act reasonably and honestly, with a view to save the properly and to perform the voyage. Schieffelin v. N. Y. Ins. Co. 9 Johns. R. 21, and cases there cited.

These general principles are not supposed to be controverted. If it should be admitted that the ship could not have been got off, and that there was no other mode of performing the voyage than by transporting the cargo to Norfolk and shipping it from thence to Cas tine, and that the cost would amount to the sum (3,859 dollars) which the jury have fixed, the question would recur, if that state of things authorized the master to break up the voyage by a forced sale.

The whole cargo (deducting the 40 bags of coffee which were disposed of at Charleston to pay for the general average loss) amounted to 11,851 dollars. It has been contended for the plaintiffs, that duties were payable at the port of the district where the stranding happened, and that the master was not obliged to give his bond to pay them. There are some authorities which decide that duties are not to be paid upon goods which are wrecked, but only on such as are voluntarily imported and landed. Pcisch et al. v. Ware et al. 4 Cranch, 355. But if duties were demandable at Norfolk, the master, it must be supposed, might have raised the money by pledging the goods ; or he might have stored the goods (which were sound and not in a perishable state) and waited until he could have received funds from his owners at Boston. He could communicate with them by the mail in eight or ten days. If there were no other difficulty than the want of funds, it seems to us, that being so near his owners, he should have given them an opportunity to furnish them without a forced sale. It could make no material difference to the owners, whether the duties were paid or secured at the port of distress or at the port of destination. If they were paid at the former port, a certificate and permit would be granted for the exportation of the goods to the port of destination, and no duties would be required to be paid there. So in regard to the expense of transportation .from the Washwoods to Norfolk, it is not to be supposed but that money could have been procured for that purpose without a sale of the whole cargo. If the stranding had been in a foreign country, where no facilities of transportation could be procured, and no credit obtained, and ready money should have been required for all the scanty aid that could be. obtained, it would present a very different case. But this disaster happened within forty miles of one of the most convenient ports in the United States, where there are respectable mercantile houses, who would without doubt gladly have taken charge of this property and made the necessary advances, for the usual commissions, and the cargo could have been speedily transported thither by land.

But it has been contended for the defendants, that the master was not bound to transport the cargo so great a distance by land ; and on the authority of the cases in New York, that he is not obliged to go beyond the port of distress, or a port con tiguous or near at hand. It happens that Norfolk is in the same district in which the goods were landed. We do not however rely upon that point. It seems to us very difficult to lay down any geographical rule which could have a general application. And in the cases where the operations of the master have been so limited in New York, there were other circumstances which would have justified the conduct of the master ;n breaking up the voyage. Thus in Saltus et al. v. Ocean Ins. Co. 12 Johns. R. 107, the bulk of the cargo consisted oí hemp, which could not be taken out in bales, and the rebinding and restowing it in another ship would have been equal to its value. And besides, there were no machinery and screws to compress it ; so that it would have required three or four vessels to carry on the hemp from Kinsale (the port of distress) to New York. These circumstances would fully have justified the master in not hiring several vessels, which might have been procured at Cork (which was sixteen miles from Kinsale), to carry the cargo to New York.

So in Treadwell v. Union Ins. Co. 6 Cowen, 270, where the ship was disabled and no ship could be obtained in port, Woodworth J. says, if there be a vessel in the same or a contiguous port, the duty of the master to procure it to carry cn the cargo, is clear ; the rule is imperative. But if resort must be had to distant places, and, independently of procuring a vessel, there are further serious impediments in the way of putting the cargo on hoard, the rule is not obligatory.

After all, it becomes a question of reasonable care and con-duel jn the part of the master, and like other questions of that nature, after the facts are found, the law arising from them will be pronounced by the Court.¹

It may happen that a vessel might be procured at a port in another State, and not geographically contiguous to the port of distress, in convenient time and upon more reasonable terms, than one could be had in the port of distress. We should not therefore be disposed to limit the operation of the master to any particular port or place, in regard to procuring another vessel; but to require him to do so, if upon the whole it should seem reasonable, taking into view the nature of the voyage and the time, expense and risk of the transportation to the port of destination.

But it has been said that no case has been produced where the master has transported the cargo forty miles to re-ship it The testimony on the part of the plaintiffs proves that cargoes have been transported to Norfolk from the Washwoods, without having been sold there. Peter Lane mentions one instance of the transportation of a cargo of rum and sugar. William Lyford states another, of a cargo of cotton carried by land to Norfolk, where the consignee resided. Some transportation by land is necessary to reload the goods which have been cast on shore. It may happen that the transportation by land forty miles to a convenient port, might be more safe and expedient, than a transportation for a less distance to an open roadstead, for the purpose of re-shipping the cargo. Suppose, in the first case, that there were a good road and convenient baggage wagons from the place where the stranding was, to the ship which had been procured, lying at a convenient wharf, and that there were great impediments in the way from the place where the goods lay, to the shore ; and great difficulties in transporting from the shore in open boats to a ship beating in open and dangerous sea. It would be evident, that there would be a saving of time and expense, and there would be more safety, in the former than in the latter mode of re-shipment.

If there were sufficient evidence to satisfy the jury, that the ship was stranded without the fault or fraud of the master, his conduct after the stranding will not admit of a conclusion so favorable. The evidence proves that he did not act in good faith and for the interest of all concerned. After the disaster he seems to have had no object but to raise as much money as he could, and as soon as he could, and for his own use, by a forced sale. He went to Norfolk, where he might have procured another vessel for a reasonable freight, to carry the cargo from thence to Castine. But he made no attempt to do it, and discovered no disposition (as the report finds) to transship or otherwise transport the cargo to its place of destination. If the cargo had been destined for Norfolk, could it be seriously contended that a total loss had happened ? And the freight from Norfolk to Castine would have been so small as to malte no difference between the two places as ports of destination. It is obvious that no reasonable and honest man would have conducted himself as this master has done. He gave a false account of the situation of the property to his owners, which was received by them three days before the time of sale ; when it is evident that he should not only have given them a true account, but also, as he might by postponing the sale for a few days, have given them an opportunity to be present, if they should have thought it expedient, or to furnish pecuniary or other necessary aid, to prevent the enormous sacrifice of their property. It appears that the purchasers cleared from 40 to 70 per cent, in about one month.

But the plaintiffs relied much, at the trial, upon a usage to sell property on the beach in similar circumstances; and the jury have found that there was such a usage. We cannot think that such a usage was of any validity. We have seen that it was not uniform. Some cargoes have been carried to Norfolk, and not sold on the beach. It could not have any lawful commencement or continuance, in any case where there was no necessity to make the sale. It was against common faith and honesty. Necessity only will authorize the sale. A usage to sell without necessity would be void.¹ It would be of no more validity, than would be a usage for the master and people to turn pirates when the vessel should take the ground. So far as it could be proved, that property, situated in all re-. spects as this was, had been disposed of for the benefit of all concerned, on the spot, so far, and no farther, it would be evidence tending to satisfy the jury that the sale was reasonable and necessary. So that it comes to the question, after all, whether or not the master was justified by the circumstances and the necessity of the case, to make the sale as he did.¹ Upon that question we have all a strong opinion, that it was not reasonable or necessary.

But there was not sufficient evidence to warrant the jury in fixing so great a sum as the expense of transportation. Let us attend to some of the facts which were proved without any doubt. The cargo consisted of coffee in bags, sugar in boxes, and tea in chests. It was landed in a sound condition on the 29th and 30th of December, and sold on the 11th of January following on the beach. The master went immediately after the disaster to Norfolk, and entered the cargo, and made arrangements for selling it, but none for its transportation to the port of destination. It is proved that the purchasers of the cargo carried it by land from the beach to Norfolk in two days, in a perfectly sound condition, notwithstanding a storm happened while the carts and wagons were on their way. The property was covered in such manner as that it was not damaged in the least by the storm. The expense of transportation amounted to less than 1600 dollars ; which was nearly twice as much as would have been required in ordinary cases, the car-men taking advantage of an approaching storm, to insist upon an unusual compensation. These facts are proved by the merchants who bought the cargo. It is also proved, that vessels might have been procured at Norfolk for three or four dollars per ton to transport the cargo to Castine. The amount of the transportation thither would probably not have exceeded 2000 dollars, with all the impositions of the carmen. But the jareo remained twelve or thirteen days on the beach in fine weather. In half that time, with ordinary diligence, it might have been carried to Norfolk and laden on board another vessel, and by the time that it was sold upon the beach, it might have been delivered safe and sound at the port of destination, at an expense probably not exceeding one sixth part of the value. The burden is clearly upon those for whom the master was azint under such circumstances, to prove that there was a necessity for breaking up the voyage. But the facts which are proved would not have warranted that conclusion, even if the expense of transporting the cargo to the port of destination had been as great as the jury have stated it. The loss then would have been much less than 50 per cent; which is the general rule applicable to the cargo as well as to the ship.

The loss must fall upon the party whose agent the master became under the circumstances. If there hád been a necessity for the sale, the law would have constituted him the agent for the underwriters.¹ As there was not, the loss must fall upon the owners. It is clear from the evidence, that the voyage was worth pursuing, and that the master might, by reasonable care and conduct, have performed it in such manner as that the owners would have sustained only a partial loss. The law will not allow them, under such circumstances, to recover for a total loss.

Some technical objections have been made to the form of the declaration and proof. It is said for the defendants, that the plaintiffs declare in one count for a general average loss which happened at Charleston, and for a total loss afterwards by the perils of the seas, and that such a joinder of separate causes of action cannot be maintained. We do not think that die objection is of validity. The plaintiffs may well declare tiius specially upon their whole case, and recover damages according to the proof.

But it is further objected, that by the terms of the policy, the defendants were to have notice of any average loss, sixty days before they should be liable to pay it, and that this action was commenced widiin sixty days of the notice of the average loss. And this objection, so far as it regards the average loss, g°°d defence. The defendants might have paid that loss within sixty days, and have prevented any litigation as to that part of the case. No recovery can be had in this action for that loss. But there was a seasonable notice of the stranding at the Washwoods, and a demand sufficient to enable the plaintiffs to recover for the damages occasioned by that disaster.²

The verdict of the jury, which was for a total loss, must be set aside and a new trial granted.³

1 See Hunt v. Royal Exch. Ass. Co. 5 Maule & Selw. 47; 2 Phillips on Ins. 303 304.

1 See Bryant v. Commonwealth Ins. Co. 13 Pick. 549 el seq.; 2 Phillips on Ins 376,377; Eagle Bank v. Chapin, 3 Pick. (2nd ed.) 183, note 4; 1 Stark. Ev. (5th Am. ed.) 447 to 462.

1 See 2 Phillips on Ins. 25; Palmer v. Blackburne, 1 Bingh. 61.

1 See Gordon v. Mass. F. & M. Ins. Co. 2 Pick. (2nd ed.) 262, note 1; 267, note l, and cases there cited; Hall v. Franklin Ins. Co 9 Pick. 466; 3 Kent s Comm. (3d ed.) 173 to 175; Gardner v. Salvador 1 Moody & Rob 116 Bryant v. Commonwealth Ins. Co. 13 Pick. 543.

1 See 2 Phillips on Ins. 326 to 328.

2 See 2 Phillips on Ins. 382,383.

3 See Bryant v. Commonwealth Ins. Co. 13 Pick. 543.