Snow v. Union Mutual Marine Insurance

| Mass. | Mar 7, 1876

Gray, C. J.

The evidence introduced at the trial would warrant the jury in finding that the Helen Snow, being jammed fast in the ice in the Arctic Ocean, with no open water in sight, and drifting northwards with the current, her officers and crew, finding it impossible to extricate her with the utmost efforts, and nearly worn out with fatigue and want of sleep, in order to save their lives, left her and took to the boats, bringing away the guns and whaling gear; and by passing through narrow strips of water, and hauling the boats over the ice for two or three days, reached the whaling fleet, fifty or sixty miles south of where they left the vessel; that the officers and crew, with the boats, guns and whaling gear, being scattered in other vessels, and some of them having gone homewards, ten days after-wards, by a change of the wind and currents, the ice loosened and the Helen Snow was brought out by the master and crew of another vessel, and held by them for salvage ; and that the master of the Helen Snow, although he made reasonable efforts so to do, was not able to obtain a sufficient crew or whaling craft, or to regain possession of the vessel so as to pursue the voyage on which she was employed and for which she was insured, and she was brought by the salvors to San Francisco, and, before her arrival at that port, abandoned by her owners to the underwriters.

By our law, the right to recover for a constructive total loss, or abandonment to the underwriters, depends upon the state of , facts when the abandonment is made 5 and the abandonment, if justified by those facts, relates back to the time of the loss. It is true that a loss of the voyage is not necessarily a loss of the ship, within the meaning of a policy of insurance upon her. But if the ship herself is once totally lost by a peril insured against, and the master, using due diligence, is unable to regain possession of her in such a condition and under such circumstances as to enable her to pursue the voyage for which she was insured, the right to abandon and to recover for a constructive total loss still remains, without regard to the question whether at some future time, over which the master has no control, he might be able to regain possession of her on payment of salvage, and without regard to the proportion between the amount of the salvage and the value of the vessel.

In the present case, the leaving of the vessel in the ice, made necessary by a peril insured against, was a constructive total loss, and would clearly have warranted an abandonment to the underwriters at any time before she was rescued. Her subsequent rescue by salvors, her master never having been able to resume possession of her so as to prosecute her voyage, did not cut down this total loss to a partial one, but there was still a constructix e total loss of the vessel at the time of the abandonment to the underwriters.

The case is within the principle of Greene v. Pacific Ins. Co. 9 Allen, 217. See also Peele v. Merchants’ Ins. Co. 3 Mason C.C., 27" court="None" date_filed="1822-10-15" href="https://app.midpage.ai/document/peeks-v-merchants-ins-co-8635653?utm_source=webapp" opinion_id="8635653">3 Mason, 27, in which the principal English cases relied on by the defend» sat are fully considered and distinguished.

The declaration alleges a total loss substantially in the form allowed by the practice act, as well as by the rules previously established by this court. Gen. Sts. p. 665. 24 Pick. 406. The allegation of a total loss, like the corresponding words in a policy of insurance, covers a constructive as well as an actual total loss. Heebner v. Eagle Ins. Co. 10 Gray, 131. It is not necessary, under our practice, to allege the abandonment or other facts necessary to constitute the total loss relied on.

The evidence at the trial being sufficient to prove a constructive total loss by the cause alleged in the declaration, it follows that, according to the terms of the report, there must be

Judgment for the plaintiff for a total loss.