12 F. Cas. 876 | U.S. Circuit Court for the District of Massachusetts | 1824
The first question is, as to the right of the plaintiff to recover for a total loss of the vessel. She sustained an injury, the repairs of which cost more than' half her value. A bottomry bond was executed to secure the payment of the amount of the repairs. She sailed on the voyage and safely arrived at ■ Boston. The abandonment was made, while she was on the high seas in the prosecution of her voyage in good safety, a few days only before her arrival in port. She was subsequently proceeded against upon the bottomry bond, sold by a degree of court, and the proceeds applied to the payment of the bond. Under these circumstances the question arises, whether the abandonment was valid, so as to bind the underwriters. It has been settled in the courts of the United States, that an abandonment is not good, unless the loss is, in fact, total at the time of the abandonment. The state of the information, or the existence of a total loss at an antecedent period, if it has no longer a continuance, gives no title to abandon. And when once the right of abandonment is fixed and acted upon, no subsequent events, which change the total into a partial loss, have any effect to divest the antecedent right of the parties. Such are .the principles decided by the court, whose judgment I am bound to follow; and, as far as I have knowledge, they have received the sanction of the state tribunals most conversant with subjects of this nature throughout the Union. Rhinelander v. Insurance Co. of Pennsylvania, 4 Cranch. [8 U. S.] 29; Marshall v. Delaware Ins. Co., Id. 402; 6 Mass. 479; 3 Bin. 287; 7 Johns. 412; Peele v. Merchants’ Ins. Co. [Case No. 10,905].
Applying this doctrine to the present case, how can It be said, that at the time of the abandonment there was a total loss? The vessel was physically safe, and in good repair. The voyage was not lost, for it was then in a successful progress, and was aft-erwards accomplished without further loss. It is true, that the vessel has been injured more than half her value; and if the owner had then elected to abandon without repairing her, he would have been justified by the established law on this subject. But the owner is in no case bound to abandon. He is entitled to repair the injury, however great, at the expense of the underwriter, and proceed in the voyage. In the present case, he elected through his agent, the master, to make the necessary repairs and continue the voyage; and for this purpose, the hypothecation of the vessel became necessary. The underwriters do not object to pay These expenses; but the attempt is made after the adventure is again put successfully in motion to compel them to pay a total loss. If there had been no bottomry bond given for the repairs, there would be no pretence to say, that the loss was total. But it is said, that the bottomry bond constituted a lien, which encumbered the vessel in her whole progress, and that she never came free to the possession of the plaintiff. The existence of such a lien is not per se a cause of abandonment. The vessel is not either technically or physically lost by it. It constituted during the voyage a contingent right If the vessel had been subsequently lost in the voyage, all right under it would have been gone from the bottomry holder. But nevertheless the plaintiff would have been entitled to recover for a total loss from the underwriters. In the present case, the bottomry bond was not at the time of the abandonment a fixed and absolute lien; and the proceedings, under which the vessel
The next point is. as to the deduction of the one third new for old from the repairs. The case of Da Costa v. Newnham, 2 Term R. 407, as to this point need not be disputed. There the court said, that the ground, why the deduction of one third new for old was ordinarily made, was because the owner had the possession of the vessel, and she was so far made better by the repairs. But in that case, by the default of the underwriters, the owner never had possession again of the vessel: and therefore the court very properly held, that he ought not to pay for a benefit, which he had never received. But in the present case, the loss has been voluntary on the part of the owner by his own default. He was never dispossessed of his vessel but under a decree, which he suffered, because he did not choose to pay the ship’s debt contracted for his benefit and by the order of his own agent. The underwriters are therefore entitled to the deduction, because they have done no act to prevent the fullest possession by the owner.
As to the third point, the question is, whether the underwriters are to pay the actual expense at its true and real amount, or an increased amount by calculating it at a nominal value in a depreciated currency. The real sum paid by the owner was in milreas calculated at 96 cents, and he now attempts to get, not what he has paid, but an increased sum, such as the milrea would amount to, calculated in a depreciated currency at 125 cents per milrea. It is sufficient to say, that the underwriter is to pay the real, and not the imaginary expenses.
As to the fourth point, the practice in this state .has long been in cases of general average to ascertain the contributory value of the freight by deducting one third of the gross amount. The rule was doubtless originally arbitrary, but founded upon a general average estimate of the usual deductions of wages and expenses from the freight in ordinary voyages. The object was to relieve each particular case from the embarrassment of nice calculations and questions about small items, which could not always be fixed by evidence absolutely exact. It has the benefit of certainty and universality in its application; and this consideration outweighs any slight deviation from principle, which may possibly be involved in it. It as often works in favour of one party as the other. If such a practice, existing for a long time by the acquiescence of tlie commercial community, were now for the first time in question, I should not hesitate to adopt it as reasonable. But it has been long acted upon by the profession, and has received general sanction in our courts. It cannot now be departed from without removing landmarks. See Phil. Ins. 363. The auditors, in their report state: “The nett freight brought into contribution is, according to usage, two thirds of the freight,(viz. $745). The assured proposes to determine the amount of the contributory interest of freight by deducting from the gross freight, i. e. $1117.50, the whole amount of the wages actually paid, viz. $540.58, leaving the contributory value of freight to be $570.92. But as wages are allowed in general average from the time of turning off for Lisbon to the time of sailing from that port (4 Mass. 548; Phil. Ins. 348; 14 Mass. 74), if the wages for this time be deducted, the remainder of wages' will be less than one third of the gross freight.” The rule, therefore. adopted by the auditors is, in this particular case, the most favourable for the assured. But I confirm it, as standing upon a reasonable and settled usage.