Reynolds v. Ocean Insurance

39 Mass. 191 | Mass. | 1839

Shaw C. J.

delivered the opinion of the Court. The most material question in the present case is, whether under the circumstances the expense of getting the vessel off, or any part of such expense, is to be computed, in determining whether the vessel sustained damage to the amount of one half of the value, so as to constitute a technical total loss, to warrant an abandonment.

The provision in the policy is, that the assured shall not have the right to abandon for the amount of damage, unless the sum to be paid by the underwriter, upon an adjustment as of a partial loss, will amount to one half of the agreed value of the vessel. Under this rule, the one third new for old must be deducted from the cost of repairs, and no sums are to be included, except such as come under the denomination of partial loss; general average charges are not to be included.

As to the charge of $ 1500 in the present case, for the expense of getting the vessel off, the Court are of opinion, that instead of the qualified instructions given on the trial the law should have been stated thus ; that if the cable was voluntarily-cut and the vessel was voluntarily run on shore as the best expedient for saving life and property, although the vessel was in imminent peril, and although there was every probability, that she would soon sink at her anchors, or part her cables and drive ashore if not cut, still the loss was to be considered as coming within the principle of general average, and is to be adjusted as a general average, and not as a partial loss, and this without regard to the consideration, whether the voyage is resumed or the cargo again taken on board, or not. The Court are also of opinion upon the evidence, which upon this part is undisputed, that the loss occasioned by the vessel’s going ashore, being in consequence of the voluntary cutting of the cable, was a general average loss, not to be computed in an adjustment as of tt partial loss, in estimating the fifty per cent, cost of repairs, [t follows from this, that the $ 1500 charged as the expense of ¡getting the vessel off, is not to be included in the fifty per cent, tf this is deducted, there is no ground, we believe, to contend, that there was a technical total loss, sufficient to warrant the abandonment.

In regard to another material point, the constructive accept anee of the abandonment, on the part of the underwriters, by their acts, the Court are of opinion, that the rule should have been laid down with some further qualifications. It may be stated thus ; that if the underwriters, after having refused to accept the abandonment, took possession of the vessel, for the actual and declared purpose of getting her off, repairing and restoring her to the assured, and in good faith intended and with reasonable diligence proceeded to make full and complete repairs, and in good faith, according to their intent, did make what they considered and believed to be a substantia] repair and restoration of the vessel to as good a condition as she was in before, and in this state tendered her to her owners, it was a substantial performance of their contract, and the assured were bound to accept her ; that if, at the time of such tender, the assured made no objection to the sufficiency or completeness of the repairs, nor pointed out any deficiency, the tendel should be deemed good, although it might be discovered after-wards that there were deficiencies in the repairs. And inasmuch as it may happen, that after what may be deemed, and what may seem to one or both parties to be a complete repair, some deficiencies may appear, the Court are of opinion, that the acceptance of the vessel, by the assured, would not preclude them from claiming any further loss or damage, which might be discovered, but according to the principles of the contract, securing to the assured an indemnity, an action might be maintained, after such acceptance, to recover for any such deficiency, or unrepaired damage, as a partial loss.

The jury should have been instructed, that if the cost of repairs, exclusive of general average charges, among which were the expenses of getting the vessel off, would not amount to fifty per cent after deducting one third new for old, and making the other usual and stipulated deductions and additions, as upon an adjustment of a partial loss, there was no constructive total loss, and no right to abandon.

The question would then be upon the constructive acceptance of the abandonment. And as to this, if the vessel was thus got off, and in good faith repaired and restored, and with in reasonable time tendered to the assured, and they made no objection on account of the insufficiency of the repairs and pointed out no deficiencies, the assured were bound to accept the vessel, and the underwriters shall not be considered as having accepted the abandonment ; and the result will be the same, although it is shown, that there were in fact deficiencies in the repairs or equipment of the vessel.

But if the defendants did not in good faith and with reasonable diligence proceed to make a full and complete repair and re-equipment of the vessel, or if at the time of the offer to restore the vessel as fully repaired and equipped, the assured pointed out deficiencies which actually existed, and the underwriters refused or unreasonably neglected to supply these deficiencies, and complete the repair and equipment, then the assured were not bound by the tender, and as the underwriters, after the offer to abandon, had taken the vessel into their possession, for the avowed purpose of repairing, but had not made such repair, they must be considered as having made her their own, and as having accepted the abandonment, and then the assured would be entitled to recover for a total loss. After such a recovery, by force of the abandonment, and by such acceptance of the abandonment as established by the judgment, the vessel would remain the property of the underwriters.

The Court are also of opinion, that the jury were rightly in structed, that if the vessel was not got off, repaired and ready, and offered to be restored, within a reasonable time after the underwriters had taken possession of the vessel for that purpose, they must be considered as having made her their own, and accepted the abandonment, and would then be liable as for a total loss.

Some other questions were considered, which perhaps may not now be regarded as material. The Court are of opinion, that the plaintiff Reynolds was duly authorized, prima facie, to make the abandonment for himself and those for whom the insurance was made in his name, and that as there was no evidence of dissent on their part, the abandonment made by him for himself and his associates, is sufficient; also, that tht directions in regard to the form, sufficiency and seasonableness of the abandonment, were correct. But in the position in which the case now stands, these questions are not very material, because if the abandonment was accepted, which seems to be the only serious question, all question in regard to its seasonableness or sufficiency must be considered as waived.

Verdict set aside and neio trial granted.