Robinson v. Commonwealth Ins.

| U.S. Circuit Court for the District of Massachusetts | May 15, 1838

STORY, Circuit Justice

(charging jury). The principle of law is very clear, that, as this is an insurance on a perishable cargo, the plaintiff is not entitled to recover, unless there has been a total loss of the cargo by some peril insured against. If the schooner had arrived at the port of destination, with the cargo on board, physically in existence, the plaintiff would not have been entitled to recover, however great the damage might have been by a peril insured against, even if it had been 99 per cent., or in truth even if the cargo had there been of no real value. This seems to be the result of the authorities; although it is certainly pressing the principle of the memorandum clause to an extreme. ² But in the present case, the cargo never did arrive at the port of destination. The question then is. whether there has been a total loss of the voyage and a non-arrival, by the peril of the seas. Now, the underwriters undertake that the cargo shall be capable of arriving at the port of destination, notwithstanding any of the perils insured against. It is, therefore, an insurance on the cargo for the voyage; and. if, by reason of the perils insured against, the cargo is permanently prevented from arriving at the port of destination, that constitutes a total loss, for which the insured is entitled to recover, upon a policy like the present. If the vessel, during the voyage, is injured by the perils of the seas to the extent of half her value, and no other vessel can be procured to carry on the cargo to the port of destination; or, if the vessel, though reparable, cannot be repaired within a reasonable time, and before the cargo, being of a perishable nature, will be irretrievably destroyed by the delay to repair; in such a case, the insured is entitled to abandon, and recover for a total loss.³ In calculating the half value, the rule laid down by the supreme court of the United States is, that the vessel, after she has been repaired, must be of double the value of the costs of the repairs, without any deduction of one third new for old; and that the deduction of one third new for old, is not to be made in cases of this nature; but is solely applicable to cases of a partial loss, where the owner has come again into possession of the vessel, and has received the benefit of the repairs.⁴ I am aware, that a rule somewhat different lias been laid down by the supreme court of Massachusetts, for whose judgments I entertain the most unfeigned respect.⁵ But questions of a commercial and general nature, like this, are not deemed by the courts of the United States to be matters of local law, in which the courts of the United States are positively bound by the decisions of the state courts. They are deemed questions of general com mercial jurisprudence, in which every court is at liberty to follow its own opinion, according to its own judgment of the weight of authority and principle. On the present occasion, I feel myself bound to follow the doc trine of the supreme court of the United States, by whose judgment, indeed, I am bound; although, even as a new question, I have no hesitation to say, that I entirely concur in that judgment. The clause in the policy, “That the insured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount, which the insured would be liable to pay under an adjustment for a partial loss, shall exceed half the amount insured,” does not vary the principle; for it is solely applicable to the case of an insurance on the ship, and has nothing to do with an insurance on cargo.

The questions, then, for the jury to decide on this point, are; (1) whether the vessel could have been repaired at St. Martin’s at all, or at a cost not exceeding half her value, after the repairs were made in a reasonable time to carry on the cargo to the port of destination. (2.) Whether, if she could be repaired for less than the half value, she could have been repaired before the cargo would have been so deteriorated as to have lost all value, or to have been totally destroyed. (3.) Whether, if the vessel were not so reparable, another vessel could have been procured to carry on the cargo to the port of destination, in its then damaged state. If the jury should find all these points in the negative, then the plaintiff will be entitled to recover, so far as this question as to the totality of the loss is concerned. Otherwise, he will not be entitled to recover at all in the present <_..se.

In regard to the necessity of the sale, it is to be regretted that the usual evidence in these cases, the survey, and the testimony of the surveyors, as to the state of the vessel, and the nature and extent of the repairs, and the expense of making the repairs, or even the practicability of making the repairs, are not before the court. It is certainly unusual for the assured to go to a trial, without the production of such documents and proofs. But it is also unusual for the other side wholly to rely upon the mere absence of such documents and proofs, and to make no inquiries, as to the state of the ship and the other facts, when they have been called upon to cross-examine witnesses, who might have spoken to such facts. Still, the plaintiff, notwithstanding the deficiency and infirmity of the direct proofs in these particulars, may rely, if he chooses so to do, upon the inferences deducible from the facts positively in evidence, as to the state of the ship, and the practicability and the costs of the repairs, and the necessity of the sale; and it will be for the jury to decide whether, under these circumstances, they are enabled to arrive at a satisfactory conclusion as to the facts, and as to the necessity of the sale. Now, certainly, the master has an authority to sell only in cases of extreme necessity, not indeed of physical necessity, but of moral necessity. By moral necessity, I understand, not an overwhelming and irresistible calamity or force; but a strong and urgent, and, if one may so say, a vehement exigency, which justifies and requires the sale to be made, as a proper matter of duty to the owner, to prevent a greater sacrifice, or a total •ruin of the property. In short, I know not, how better to put the case of such a moral necessity, than to say, that it is such an act of sale, as under like circumstances, a considerate owner, who was uninsured, would adopt for his own true interest, and that of all concerned in the voyaged .⁶

In cases of a sale of the ship by the master, it is certainly not sufficient, that he has. acted with good faith, and in the exercise of a fair discretion; but he must also have acted under the pressure of a moral necessity, such as has been already suggested. But the actual conduct of the master is certainly an ingredient to be taken into consideration, in con-nexion with the other circumstances, in order to ascertain the fact of the necessity of the sale. It is certainly the duty of the master, both to his owner and to the shippers, to repair the ship, and continue the voyage, if it can be done at a reasonable expense. It is equally his duty not to sell the ship, except in cases of necessity. Now, it is a general principle of law, that every man is presumed to do his duty, until the contrary is shown; and, a fortiori, this doctrine applies to the perilous responsibility of a master in ordering a sale of his ship. This presumption ought not, indeed, to prevail in the absence of all other proper proofs of the necessity of the sale; but it is certainly an ingredient, fit for the consideration of the jury, in cases like the present.

The judge then summed up the evidence on the other points made in the defence, and left the whole matters of fact to the jury, intimating, however, a strong opinion, that the weight of evidence was, that the damage to the potatoes was not by frost, but by the perils of the seas; and that there was no other vessel at St. Martin’s, in which the cargo could have been carried to Baltimore. The jury found a verdict for the plaintiff, for a total loss. A motion was afterwards made for a new trial by the defendants.

2 See Marcardier v. Chesapeake Ins. Co., S Cranch [12 U. S.] 39; Morean v. Chesapeake Ins. Co., 1 Wheat. [14 U. S.] 219; Dyson v. Rowcroft. 3 Bos. & P. 474 ; 3 Kent. Comm. (3d Ed.) 298, 299.

3 Patapsco Ins. Co. v. Southgate, 5 Pet. [30 U. S.] 604.

4 Bradlie v. Maryland Ins. Co., 12 Pet. [37 U. S.] 378.

5 Deblois v. Ocean Ins. Co., 16 Pick. 303, 313.

6 See 1 Phil. Ins. (1st Ed.) 409, 410; 2 Phil. Ins. (1st Ed.) 291-296; Abb. Shipp, pt. 1, c. 1, p. 10, and note; 3 Kent, Comm. (3d Ed.) lect. 46, pp. 174, 175, and note; Winn v. Columbian Ins. Co., 12 Pick. 279; Gordon v. Massachusetts Fire & Marine Ins. Co., 2 Pick. 264, 265; Hall v. Franklin Ins. Co., 9 Pick. 466; Hayman v. Molton, 5 Esp. 65; Idle v. Royal Exch. Assur. Co., 3 Moore, 145, 148, 8 Taunt. 755; Green v. Royal Exch. Assur. Co., 6 Taunt. 68; Read v. Bonham, 3 Brod. & B. 147; Robertson v. Caruthers, 2 Starkie, 571; Robertson v. Clarke, 1 Bing. 445; Allen v. Sugrue, 8 Barn. & C. 561; Somes v. Sugrue, 4 Car. & P. 276; Patapsco Ins. Co. v. Southgate, 5 Pet. [30 U. S.] 604, 620.