Clarkson v. Phœnix Insurance

| N.Y. Sup. Ct. | Jan 15, 1812

Per Curiam.

The capture in this case created the total loss, and the special stipulation in the policy only suspended, for six months, the general right to abandon. At the expiration of the time, the abandonment was duly made, and it related back to the capture, and took its operation and effect from that loss. The only question is, whether the act of the captain, in the intermediate time, destroyed or impaired the plaintiffs’ right. During the' interval of time between the notice of the capture and the abandonment, the property remained in the hands of the captors without restoration, and the captain, acting with good faith, and upon the best advice that could be obtained, entered into a composition with the captors, and abandoned the property, upon payment of 25 per cent. The parties to the policy neither authorized, nor have since adopted, the act of the captain; but as he was, ex necessitate, the mutual agent of both parties during that time, to do what was right, his acts, done in good faith, and for the benefit of all concerned, could not prejudice the rights of either under the contract. The doctrine laid down by Lord Mansfield, in Mills v. Fletcher, (Doug. 231.) was to this effect. The captain, in that case, had no authority but what was implied in his general, trust as master of the vessel, and after a capture and recapture, and while the consequence of the capture rendered the case an extreme one, the master sold the vessel and cargo prior to an abandonment, and the court put the cause upon this point, whether the captain had acted with good faith and for the benefit of all concerned, and as there was no doubt of the fact, the assured recovered a total loss. This case is within the principle of that decision. There is every reason to believe that the composition in this c.ase was prudent, and most for the interest of the parties to the policy; and there is no ground for a distinction between a composition by which the subject, or a portion of it, shall be specifically restored, or an equivalent given for the subject itself. The question never turns upon the mode, or nature, or value of the composition, but upon the prudence or integrity of the act.

The abandonment being supported by the capture, and resting upon it, by relation, the benefit of the intermediate composition belongs to the defendants and not to the plaintiffs, and they must look for their proportion of it to the master. The plaintiffs are entitled to recover as for a total loss, to the extent of their interest im4flre~1.

Judgment for the plaintiffs.