1 Johns. 181 | N.Y. Sup. Ct. | 1806
delivered the opinion of the court.
It is said, here was no abandonment, or, that the reason assigned for it, was not sufficient, and that, therefore,, the abandonment made, was a nullity. A denial of entry: at. the port of destination, without any seizure or arrest by government, appears to me, after considerable reflection and many doubts, not a loss within this, policy, which contains an express agreement, “ that for a seizure or detention “ _on account of prohibited trade, there shall be no remedy.” How then can underwriters, who do not assume the greater risk of seizure, which in common cases constitutes a techni cal total loss, be answerable for a smaller one, proceeding too from the same cause, that is an illicit trade ? But as the Mason’s Daughter had a right to go to another port, and was driven into Port Republican on- her way thither, it is supposed that the abandonment must be considered as founded on the latter accident, especially as it was not made until after her arrival there, and intelligence of it received here. But if this were really the cause of abandoning,, it is not the otie assigned by the assured. On the contrary, it is placed en*
Another objection to a recovery, which applies as well to a partial as a total loss, is, that the lorig stay at St. Jago de Cuba, or at the mouth of the river, amounted to a deviation ; but the jury having determined otherwise, we are satisfied to consider this question at rest. Í will only add that the agreement of counsel, to adjust the accounts, must have referred only to the case of the defendants being liable for a total loss, and that, therefore, the plaintiEs have iid right, under that agreement, so to model the verdict as to give them what would be a compensation for a partial loss, admitting a right to that extent to exist. To ascertain this point, and what in such case will be a proper rule of damage, there must be a new trial with costs to abide the event of the suit.
I observe further that it is not intended to say, what would
New trial granted.
2 Vol. p. 197.