1 Cai. Cas. 444 | N.Y. Sup. Ct. | 1803
From the fadts prefented to the court, it is manifeft, there was a capture of the veffeh This operates as a technical total lofs, and, therefore, whether an acquittal fubfequently took place or not, is immaterial; for the capture alone is fufficient to warrant the abandonment. After this, the affured, who from the moment of capture becomes the agent of the affurer, returns, and making a full avowal of what had taken place, fays, I have done all I could j but the event does not alter the law, I am now, for the firit time, able to communicate with you and abandon. It is not, however, from the capture alone that the plaintiff is entitled to abandon. A lofs of the voyage affords an equal right. Here the goods were bound to St. Jago de Cuba, and the veffel was carried into Jamaica, where ihe was condemned. The only queftion that can arife is, whether on Mr. Ferrers’ fettlement of the average account, the defendant is bound to pay what he has indorfed on the policy to be due ? But fuch is the ruin brought on this poor plaintiff, whofe little all has been locked up by the refufal of the defendant to pay, ever lince 1800, that rather than not have a decifion on the principal queftion this term, he is ready to give up his expenfes. As to thofe, without going minutely into the teftimony, the queftion ought to refolve itfelf into this: What is the relative fituation of Mr. Ferrers with the defendantAll claims, when made on the out-door underwriters, of whom the defendant is one, are referred to Mr. Ferrers, He gives his opinion whether liable to a total or a partial lofs. We do not fay, that when he gives his feniiments if he totally miftakes the law, that they are, on the fails fubmitted, obliged to pay a-
Pendleton contra. A principal queftion in this caufe is as to the expenfes in the vice-admiralty. The claim for thefe refts only on the report of Mr. Ferrers; for this is the only evidence in the cafe that any were incurred. Such teftimony, however, cannot bind the underwriters; for M. Ferrers himfelf ftates his employment to be merely that of reporting ; after doing which, his ftatement is frequently difregarded, and his adjuftment difputed. This would never be, had Mr. Ferrers an obligatory authority. The fa6t is, he is a mere examiner of accounts, and cannot bind his principals beyond the fcope of his authority. Pie ftates, his principals had a right to diffent from his ftatements, of which the prefent action is in itfelf the ftrongeft proof. But a queftion is certainly made, whether the abandonment was in due feafon. The veffel failed in May, was captured on her voyage, and the abandonment not made till November following. This, considering the diftance of Jamaica, was a grofs delay. We find, however, from the teftimony of the captain of the veffel, that this property was acquitted. The plaintiff, therefore, might have had it again had he fo pleafed. It is a pofition not to be controverted, that every court is invefted with power to enforce its own authority: therefore, if after reftitution awarded, it was not obtained, it muff have arifen from the neglect of the plaintiff, or fome
Hoffman in reply. That it is the duty of an affured on goods, in cafe of capture and reftitution, to fend on the articles to the port of their defJnation before he can be entitled
Per curiam delivered by Lewis C. J. The objections to the plaintiff’s recovery, on this ftatement of facts, are,
lit. That he had no right to abandon after the acquittal of the property infured.
2d. That the abandonment was out of time.
3d. That he was bound to have procured another vefleL
4th. That the defendant was not bound by the adjuftment.
It is ftated in the cafe, that the veffel failed about the 17th of May 1800 ; but when fhe was captured, or when condemned, does not appear. It appears, however, that though the trunk of goods, on which the infurance was made, was, by the fentence of the court of vice admiralty decree to be reftored, the plaintiff could not regain the poffeffion of it, and that he abandoned it to the underwriters, on the 22d of October following.
Within what precife period an abandonment ought to be made, has never been determined. The time permitted to elapfe between the condemnation, order of reftitution, and abandonment in the prefent inftance, connot be inferred from any thing in the cafe. It is certain, however, that the lofs was total on the 22d of October, and has fo continued
, The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permiffion in the policy, to labour See. without prejudice Sec. i, the infurer became liable to an average of the expence in-i'curred in the attempt to recover the captured property. It is true, he was not bound by the adjuftment of Mr. Ferrers, and was at liberty to have ihewn that it was erroneous. But this was not even attempted. A circumftance which, when taken in connexion with the character and employment of that gentleman, will warrant the conclufion, that his adjuftment is corred:. We are, therefore, of opinion, judgment be for the plaintiff, for the largeft fum found .by the jury.
See ante note 445.
to t A (hip own-carry^aftip-0 per does not; Lüereiore) 11c who does not verafe obliged