Gardere v. Columbian Insurance

7 Johns. 514

Opinion

Kent, Ch. J. You need not argue that point.

Then there is no legal evidence that the master did. not put in a claim. The sentence is evidence only of the fact of a condemnation as good and lawful prize. If the condemnation was sufficient to enable the plaintiff to bring his action within six months, it was all that was requisite. But we contend that the master is not bound to put in a claim. The introduction of the words, it shall be lazvful and necessary for the assured, &c. in the policy, instead of the words, “ it shall be lawful,” does not vary the meaning or effect of the whole clause taken together. The insured, immediately, upon receiving intelligence of a capture, may abandon; he is not bound to make any claim or appeal to the courts of admiralty, or to litigate the validity of the capture, but may leave that to the underwriters.

Footnotes

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‡ After the abandonment, the master becomes the agent or servant of the insurer; and if the insurer sustains any injury, in consequence of his neglect, he may bring his action against the agent. The point decided in the case of Cheviot v. Brooks, is in favour of the plaintiff. The observation, that the master ought to have interposed a claim, is merely an obiter dictum, of the judge. The plaintiff claims a loss by capture, not by the fault of the master. If the subsequent conduct of the master is such as to amount to barratry, it does not follow that the plaintiff may not recover on the first ground, as it was a valid cause of abandonment. But the property was not cohdemned solely on the ground that no claim was interposed, but on the examinations taken in preparatorio. The captors were bound to show by the answers to the standing interrogatories, that they had a right4 How does it appear that the master was guilty of any negligence i lie may have been m prison, or sick. The vessel was carried into Nevis, and the proceedings were in the admiralty court at Antigua.

S. Jones, junior, in reply.

Examinations in preparatorio are merely for the purpose of enabling the captors to decide whether they will file a libel or,not. If a libel is filed, and no claim is put in, a condemnation follows of course. Sufficient appears in this case to show that no claim was interposed. I contend that the master is bound to put in a claim; by his neglecting to do so, the plaintiff has acquired the right to abandon in this case. The property was warranted American, and if a tlaim had been interposed, the condemnation would not have taken place. The master may not have been guilty of intentional fraud; but his conduct was grossly negligent. In Cheviot v. Brooks, which was an action brought by the principal against the agent, the court said, that a master was bound to put in a claim; but as in that case he acted bona Jide, he was not answerable to his principal. Here a third person, the insurer, is to be affected by the negligence of the master, and the principal ought to be responsible.

Yates, J. delivered the opinion of the court.

It was not necessary to produce all the proceedings of the court of admiralty previous to the decree. Sufficient appeared by it to answer the legal purposes of the plaintiff. His object was to show that the sugar had been condemned ; and that fact is fully established by the sentence. If there could possibly exist a doubt, as to the sentence of condemnation, by omissions or ambiguity appearing on the face of the record, it might be proper to require such proof. This could not exist here. The decree read in evidence explicitly states the fact material to be proved by the plaintiff. The case of Jones v. Randall (Cowp. 17.) shows that such proof is sufficient, unaccompanied with the previous proceedings. That was an action upon a wager, whether a decree in the court of chancery would be reversed on an appeal to the house of lords; and upon a rule to show cause why there should not be a new trial, among the objections stated by the defendants, one was, that the previous proceedings in the house of lords ought to have been shown, whereas the decree only was produced ; and the court decided, that proof of the decree and of its reversal was sufficient, without such previous proceedings.

The sentence of the court of vice-admiralty at Antigua, given in evidence, was sufficiently established by the deposition annexed to it, stating that the seal affixed thereto, was the seal of the court, and also proving the signature and official character of the person whose name was subscribed. It is, therefore, unnecessary to notice the distinction urged in the argument, between foreign municipal tribunals, and courts of admiralty. There was a sufficient authentication in this case, to receive the proceedings of the court of admiralty in evidence, although not signed by the judge. (Peake’s Evid. 48.) Their decree, in this instance, was, consequently, properly admitted ; and the condemnation was fully proved. The condemnation gave the plaintiff a right of action, and there is no force in the objection, that no such right existed when this suit was commenced. The action might be brought, without violating the clause in the policy, that “ in case of capture or detention, the insured were not to abandon, if the property is acquitted or released, in six months after advice is received and notice thereof given to the company.”

Another objection relied on, in the argument, was founded on the alteration in the language of the policy, by the insertion of the word necessary, in the clause, which now is, “ that in case of any loss or misfortune, it shall be lawful and necessary for the assured, his factors, servants, and assigns, to sue for, labour and travel in and about the defence, safeguard and recovery of the property,” &c.

Previous to this alteration, the construction of the above clause was well understood ; and I can discover no substantial reason why the insertion of the word necessary should so essentially alter the construction, as to create a different operation. It imposes no additional duties on the master. He was before bound to labour diligently for the recovery of the property, and to alleviate the burdens of the insurer. This is a well settled rule ; yet it is equally" well established, by the law of insurance, that this does not affect the right of abandonment. The case of Tyson v. Guerney (3 Term Rep. 477.) is in point; that if a ship be taken and condemned as prize, the assured might call on the insurer, without being under the previous necessity of appealing, or even making a claim. By abandoning and calling on the insurers, the assured yields up to them all his right, title, and interest in the subject insured, and it operates, in judgment of law, as a transfer of the property; and the captain, from that time, becomes the agent of the insurers. This doctrine has been frequently recognised by this court. (2 Caines’ Rep. 284. 5 Johns. Rep. 324.) The captain, consequently, is answerable to the insurers for his default, if any exists. The assured is not obli ged to put in a claim; nor can the clause warranting it to be neutral property, create this duty. The judgment •of the court of admiralty was not grounded on a want of claim, but on proofs, and as being enemies’ property. But admitting the neglect to claim the goods was barratry, in the captain, the loss is still by capture and condemnation. And if, even, the plaintiff had a right to recover on the barratry, that cannot devest him of his right to recover on an event which has happened, and against which he was insured. If the condemnation is illegal, the remedy must be sought by the underwriters, and they may appeal. A contrary construction on those clauses in the policy, would make the putting in the claim, &c. a condition precedent, and necessarily introduce principles, in relation to the rights of the assured, materially different from what are now allowed to-be the law on the subject.

Besides, if the captain’s neglect in not putting in a claim, created a sufficient defence in the suit, (and that could only be on the ground that he still continued the agent of the assured, and that the loss proceeded immediately from him, which cannot be the case here,) yet the fact ought to have been affirmatively proved by the defendant, and not left to inferences drawn from the language of the sentence of condemnation; when, for aught that appears, the captain may have put in a claim which might have been adjudged insufficient. Although the sentence is conclusive evidence of the condemnation, it is not evidence of such neglect. It would be a dangerous principle, that a fact within the power of the defendants to prove directly, should, when thus collaterally introduced, be allowed to defeat the recovery of the plaintiff. We are, therefore, of opinion, that the plaintiff is entitled to his judgment.

Judgment for the plaintiff.

Marsh, 504. 2 Burr. 696. 3 Term. Rep. 479.

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Home’s Compendium of Statutes, &c. 35.39. 47.