29 F. Cas. 1406 | U.S. Circuit Court for the District of Massachusetts | 1839
It appears to me, that the assessor is right in the conclusion, which he has drawn, that there was a loss of the voyage by necessity, from the capture and other events stated in his report. I cannot treat this as the case of a voyage to a port of necessity for the mere purpose of new equipments and repairs to resume the voyage; but there was a total loss of the voyage itself. The sealing season was lost. The vessel was compelled to return home. A new master and crew were to be hired, and to be hired upon new terms, exactly as if a new voyage was commenced. New outfits were required, and to be useful they must be co-extensive with the whole period of the new voyage. Besides, the vessel .was liable to, and was libelled, and sold for, salvage. That. sale put an end at once to the original ownership and voyage; for after the sale it was utterly impossible to resume the voyage insured. New interests, new, rights, and new parties had intervened. The necessary sale of a vessel in the course of a voyage to defray salvage creates of itself a total loss of the vessel for the voyage; and in a case like the present, there was thereby a total loss of the voyage also as to the outfits insured.
The question, therefore, of general average, which might arise, if the voyage to Stonington were a mere voyage to a port of necessity to refit and resume the original voyage, does not in my judgment become material to be considered. General average can only arise, where the sacrifice has been made for the common benefit, and has accomplished the object. The expenses and charges of going to a port ,of necessity to refit can properly be a general average only when the voyage has been, or might be, resumed. If it has been abandoned from necessity, then it is not a case for the application of the doctrine. The present case must be treated upon the basis of a constructive total loss by the perils insured against, where there has been a due abandonment to the underwriters.
As I understand the policy, the value insured upon the outfits is to continue undiminished during the whole voyage; that is to say, it is to be treated as a ease where the outfits are valued at the sum insured for the whole voyage, without any regard to their diminution by waste, or by consumption, or by the transshipment of any of the seal skins, the product of the enterprise, in any other vessel during the voyage. I do accordingly confirm the report of the assessor, and recommit the report to him, with directions to ascertain and report the amount due to the plaintiffs, upon the basis of a constructive total loss of the Breakwater, and her outfits, during the voyage.
