Smith v. Steinbach

2 Cai. Cas. 158

Opinion

Per curiam, delivered by Lansing, chancellor.—

On this case, three points have been made. 1st. Whether there is proof that the freight is within the policy ? ' 2d. Whether the insurer is bound to respond for the loss occasioned by a seizure, on suspicion of a breach of neutrality ? 3d. Whether the abandonment was not too late to found any right* or recovery on ?

The plaintiff, by the demurrer to evidence, has admitted every fact which the jury could have found from the evidence.

Footnotes

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*

From the demurrer, it appears, that the defendant to maintain his issue, had proved that De Govert, on whose account the insurance was made, was owner of the vessel, the freight of which was insured by the policy ; that he was an American citizen, and that the ship was purchased in the United Statest of an American citizen. It is further stated, that in the policy she was described as the American ship Catharine, and that the defendant had produced the necessary preliminary proofs before the policy was read. These preliminary proofs, among others, from the obvious import of the terms, must have beert the evidence that the policy attached to the ship Catharine, and, of course, she was an American bottom. This has not been a point in controversy, but it is necessary to advert to it, in making certain deductions, which, I think, must determine the first point.

The policy, on freight, was on a voyage “ at and from Barcelona to BaltimoreThe ship was seized in the harbour of Barcelonan

It is laid down as a rule, that if an insurance be u at and from” a place, the risk commences from the time of subscribing the policy, if the ship is at home. If abroad,, from the first moment of her arrival at the place specified.

An insurance on freight, commences at the time the goods are first on board. It has been held that an intention to deviate, will not avoid the policy, and that a risk, once commenced, cannot be apportioned.

If these principles are correct, the policy attached on the freight the instant the goods were embarked at Barcelona, which, as related to the ship, was a foreign port. Whatever change in the destination of the vessel might have been contemplated, the risk having commenced, the insurer was entitled to the premium, and if the insured had, by changing the destination of the voyage, diminished the risk, by a deviation not warranted by the policy, he would have lost his money, without any correspondent benefit.

Until the destination of the vessel was actually altered, she was covered by the policy, and as she was at, the port of departure, unless the contrary appears, it is to be presumed she was there for the purpose of pursuing her voyage to Baltimore.

As to the second point, I know of no instance in which bare suspicion has been considered as proof of breach of neutrality. It is the every day’s practice of belligerents to capture and send into port, neutral vessels navigating the ocean, on the slightest suspicion, which, the rapacity of the captors converts into confirmation so vehement, as to amount to positive proof; but an allegation of the conviction by the captors, of the truth of such suspicion, can form no ground for j udicial decision, or to infer a breach of neutral duties. There is no other difference between this case and that of stopping a vessel on the seas, on suspicion, but that here, the seizure was in port, by an agent, more intimately connected with the government, than those agents who search and send in vessels. But the suspicions of neither can be a guide to the tribunals of our country (who only receive foreign judicial acts as prima facie, evidence) unless they have been proved to be well founded.

Within the intent, of the policy, this is a mere act of power—a restraint by a foreign prince.

The doctrine of abandonment is only adapted to the case of a partial loss, connected with a total one, by the operation of law. It is expressly founded on the consideration that the subject insured, though not totally annihilated, for then, nothing would be left for abandonment, is so much deteriorated by the perils insured against, as not to make it worth holding to the insured. It is a doctrine calculated to distinguish between average and technical total loss, as far as respects the insurer, not to create new duties, or impose new burthens on him, but to protect him from practices to which he might be exposed, by speculations on the state of the markets, or other contingencies, which may influence the value of the property insured.

The English doctrine on this subject' laid down by lord Mansfeld, in the case of Mitchell v. Edie,* and afterwards adopted and confirmed by lord Kenyon, in the case of Allwood v. Henkell,† and which appears to me well founded, is, that the insured must, in the first instance, make their election whether they will abandon or not.

In the case of Hamilton and Mendez,* lord Mansfield observes, “ the plaintiff’s demand is for an indemnity ; the action, then, must be founded on the nature of his damnification, as it really is at the time ofi the action brought. It is repugnant upon a contract of indemnity to recover as for a total loss, when the final event has decided, that the damnification, in truth, is an average, perhaps no loss at all.” So this would be equally repugnant to the nature of the contract, to apply the doctrine of average loss, to a case in which the final event, as far as it has any bearing on the point in controversy between the parties, has determined it a real total loss. For the ship is still detained, and, if she was liberated, the freight which was the object of insurance, is as completely lost, as if she had been sunk in the ocean.

Whence, then, is the estimate of average loss to be taken? and what would the abandonment transfer, from the insured to the insurer ?†

It is certainly not the interest of the insured to delay an abandonment. By doing so, he incurs many disadvantages. His rights on the policy are suspended, and any event which may restore the property insured, however much injured, places him in a si tuation to recover only an average loss.

Upon the whole, I am of opinion that the insured, when the loss on the policy happened, had it in his election to abandon. That by his delay, he has waived his right of abandoning, so far as might operate to convert an average, into a total loss, and has left the insurer the chance of enjoying the advantage arising from restoration, intermediate the time in which he waived it, and bringing his action, so as to preclude him from recovering for a technical total loss. But as the loss has continued really total’, that the defendant had a right to recover, as for such total loss. I am, therefore, clearly of opinion, that the judgment of the supreme court is correct, and that it ought to be affirmed.

Judgment of affirmance,,

Cocksedge v. Fanshaw, Doug. 127. Livingston v. Shutz, in this court.

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1 D. & E. 608.

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Park, 172.

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2 Burr. 1198.

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Dal. 280. Cumberland v. M'Call.