Schieffelin v. New-York Insurance

9 Johns. 21 | N.Y. Sup. Ct. | 1812

Kent, Ch. J. delivered the opinion of the court.

There is no proof, in this case,;that the goods were damaged to the amount of a moiety of their value, or to any considerable extent, by the stranding and loss of the ship. If the claim for a total loss can be supported, it must be on accomit of the loss of the voyage. The evidence does not warrant any suggestion that there was an acceptance of the cargo by Field, as the authorized agent of the shippers. But it has been strongly contended, that the loss was to be imputed to the seizure by the Dutch government; and if this was so, the defendants are not responsible, inasmuch as the insurance was against “ the dangers of the seas only.” There are two points of view in which the seizure may be considered as the cause of the loss; 1. As being the proximate and efficient cause which absorbs all inquiry into the previous loss by the stranding of the ship; and, 2. As'destroying the power, otherwise existing, of the captain to forward the goods by another vessel. The counsel, upon the argument, dwelt principally upon the former mode in which the seizure operated; but I think the loss'is rather to be imputed to the seizure, in the last point of view. The seizure would seem not to affect the case, if the loss was total prior to its taking place. ( An abandonment, when founded upon a statement of facts justifying it, relates back to the time of the loss, and renders the insurer proprietor of the subject from that time, with the rights and risks attached to that relation. / (2 Emerigon, 196. 235.) If a loss ceases to be total, when the abandonment is actually made, as iii the case of a capture and subsequent restoration, the rights of the parties will be determined by the state of things existing at the time of abandonment. But the previous loss of the voyage in this case, if such a loss had actually happened, did not the less continue to exist after the seizure.

In cases of partial loss, followed by a subsequent total loss, the former may properly be considered as merged in the latter, and the authorities which were cited to this point, of Green v. Elmslie, (Peake’s Cases, 212.) and Levie v. Janson, (12 East, 648.) were cases of that description. But these cases do not apply when the first loss is, in judgment of law, total. If a succession of perils ensue, and the first, in the order of time, produces only a partial injury, every one must concur in the good sense of the observation , of Lord Ellenborough, that “ we are not to be seeking about for odds and ends of previous partiallosses, when, at last, there was an overwhelming cause of loss which swallowed up the whole subject matter.” But suppose the policy was against capture only, and the vessel was captured and then shipwrecked, while in the hands of the captor, I should think the assured would have a right to abandon, and to maintain that his right to recover, as for a total loss, attached upon the capture, and that the subsequent casualty was one with Avhich he had no concern. When the first loss is distinct, and so far total as to justify an abandonment, Avhich is at> cordipgly made, and there is no after recovery to defeat it, the rights of the parties are fixed, and we are not to be casting our eyes forward to see Avhat further perils awaited the property. Those inquiries belong to the insurer, in whom the residuary interest has vested.

The case is then brought to this point; was here a loss of voyage, by the loss of the vessel, so as to authorize the demand for a total loss ? There undoubtedly was, if we lay out of víbav the seizure, and admit that the goods could not have been fonvarded by any other vessel. But the master ought to have provided other means to send on the cargo, if he had it in his power; and if he can and avíII not, it would seem to be the better opinion that the insurer is discharged.

In Manning v. Newnham, (Park, 221. 6th edit. 2 Campbell, 624. note, S. C.) there was an insurance on ship, cargo and freight, and after the voyage was commenced, the ship Avas so disabled by the perils of the sea, that she put back in distress, and could not proceed nor be repaired, nor could any other vessel be procured to take on the cargo. The assured, therefore, recovered for a total loss, by reason of the loss of the voyage. Lord Mansfield, in giving the opinion of the court, laid stress upon the fact, that there Avas no other ship to be had, and his opinion evidently implies, that if another vessel could have been procured, it would have been the duty of the master to have forwarded the cargo, and the assured Avould not have been entitled to recover a total loss upon it If the captain has other means to ward the cargo, and save the voyage, and earn the freight, he( ought to do it. What may be done, ought to be done, when the | rights of third persons are essentially concerned in the act. The ( for- / master is bound to act for the best interest of all concerned. He j is the agent of the assured until an actual and valid abandonment, j an¿ they ought to bear the consequences of his neglect if the voy- i age be thereby lost, unless barratry be the cause of that neglect j The late case of Wilson v. The Royal Exchange Assurance Company, (2 Campbell’s N. P. 623.) which was tried before Lord Ellenborough, is a direct authority on this point. That was an insurance upon a cargo of wheat from London to Lisbon, and the ship was disabled after the voyage had begun, and could not be repaired, without an expense much greater than her entire value. The demand was for a total loss, on account of the loss of the voyage; but as it appeared that there was another vessel lying at Dover, where the injured ship lay, in which the cargo might have been forwarded, his lordship held that the plaintiff could not recover.

It may be a question whether it belongs to the plaintiffs, in such cases, to show that another vessel could not be had. The circumstances of each case may, perhaps, be sufficient to turn the presumption on the one side or the other; but, as a general rule, it belongs to the plaintiff to make out a complete case, and his case is not complete, unless it appear that the voyage was lost by a peril within the policy. It is not lost, as to the ship, if he has the means to repair her; nor as to the cargo and freight, if he has the means in his power to send on the one, and to earn the other. But in this case, as the cargo lay in the midst of vessels, at the Texel, or was in the neighbourhood of Amsterdam, and as the seizure formed at once an insuperable obstacle, the omission to forward the cargo must be imputed to the seizure. Nothing short of proof of diligent inquiry, and fruitless exertions to procure means, could rebut this presumption. When one sufficient cause for the omission appears affirmatively, , we are not to be searching for latent ones.

The small partial damage which the cargo sustained by sea perils previous to the seizure, is not to be regarded; for here the doctrine in Lmlie v. Janson properly applies. There was no total loss of any distinct portion of the cargo. “ Fifty hogsheads of sugar were found to be damaged by sea water, and part of the sugar had dissolved and run out, and a part of the drugs was also damaged.” But the extent of the damage is not stated, and cannot' now be ascertained. It may have been one or more entire hogsheads, or only a small proportion of the contents of each. The subsequent total loss by seizure has closed these inquiries.

The court are, accordingly, of opinion, that the voyage was lost by the seizure preventing the captain from sending on the cargo, and that the defendants are entitled to judgment.

Judgment for the defendants.