Columbian Insurance Company of Alexandria v. Ashby & Stribling - 29 U.S. 139 (1830)
U.S. Supreme Court
Columbian Insurance Company of Alexandria v. Ashby & Stribling, 29 U.S. 4 Pet. 139 139 (1830)
Columbian Insurance Company of Alexandria v. Ashby & Stribling
29 U.S. (4 Pet.) 139
Action on a policy of insurance on the brig Hope, from Alexandria to Barbadoes and back to the United States. On the outward voyage, the Hope put into Hampton Roads for a harbor during an approaching storm, and was driven on shore above high water mark. A survey was held, and she was recommended to be sold for the benefit of all concerned. The assured abandoned, and there was no pretense but that the injury which the vessel had sustained justified the abandonment. The question in the case was whether, by the acts of the assured, the abandonment had not been revoked.
There can be no doubt but that the revocation of an abandonment before accepted by the, underwriters maybe inferred from the conduct of the assured if his acts and interference with the use and management of the subject be such as satisfactorily to show that he intended to act as owner, and not for the benefit of the underwriters. But this is always a question of intention to be collected from the circumstances of the case, and belongs to the jury as matter of fact, and is not to be decided by the court as matter of law.
In the case of Chesapeake Insurance Company v. Stark, 6 Cranch 272, this Court lays down the general rule that if an abandonment be legally made, it puts the underwriter completely in the place of the assured, and the agent of the latter becomes the agent of the former, and that the acts of the agent interfering with the subject insured will not affect the abandonment. But the Court takes a distinction between the acts of an agent and the acts of the assured. That in the latter case, any acts of ownership by the owner himself might be construed into a relinquishment of the abandonment which had not been accepted.
But the Court in that case did not say, and we think did not mean to be considered as intimating, that every such act of ownership must necessarily and under all possible circumstances be construed into a relinquishment of an abandonment. The practical operation of so broad a rule would be extremely injurious.
This was an action on the case brought by Ashby & Stribling against the Columbian Insurance Company of Alexandria on a policy of insurance on the brig Hope on a voyage from Alexandria to and at Barbadoes and back to the United States, the vessel valued at $3,000, and the sum insured being $1,000. The loss was stated to be
"that while the vessel was proceeding on her voyage and before her arrival at Barbadoes, she was,
by storm and peril of the sea, sunk and wholly lost to the plaintiffs, and did not arrive at Barbadoes."
The declaration also avers that the plaintiffs did in due time and form abandon the vessel to the defendants.
The facts of the case are fully stated in the opinion of the Court, and the only question before the Court was whether, on the evidence laid before the jury, it was competent for the jury to infer and it ought to infer that Stribling, one of the assured, for himself and his partner, Ashby, had revoked the abandonment made, as stated, to the insurance company.
Mr. Jones, for the plaintiffs in error, contended that the conduct of Mr. Stribling was a revocation of the abandonment. The persons on board a vessel which may be wrecked are the agents of the assured and the owners, but this does not exclude the insurers from interfering and if they think proper from taking charge of the property, and if the party insured comes in and resists the authority of the assurers, he resumes the title to the property, and the assurers are discharged. Cited, Chesapeake Insurance Company v. Stark, 6 Cranch 268.
In this case, the agent of the insurance company was at the place where the vessel was wrecked and was ready to do everything for the safety of the property and to get it off. This was prevented by the sale made by the directions of the assured and against the wish of their agent.
If the owner or master of a vessel does acts wholly inconsistent with the rights of the assured, it is a waiver of the abandonment. 2 Marsh. on Insurance 614 and cases there cited.