RUSSELL v. UNION INS CO - 4 U.S. 421 (1806)
U.S. Supreme Court
RUSSELL v. UNION INS CO, 4 U.S. 421 (1806)
4 U.S. 421 (Dall.)
Russel, for the use of Crucet, v. The Union Insurance Company. Circuit Court, Pennsylvania District. April Term, 1806
COVENANT on an open policy, for 10,000 dollars, at a premium of 10 per cent. upon goods on board the ship Hibberts, on a voyage at and from the Havanna to New-York. The case was this: the ship Hibberts and her cargo, the property of British subjects, were captured by a French privateer, and carried into the Havanna. They were there claimed by Mr. C. Frazier, (an English merchant) on the recommendation of captain Vansittart, commanding a British frigate, for the British owners, and an order for restitution was granted by the Spanish government, on security being given, for the appraised value, (to wit, the ship 9655 dollars, and the cargo 22, 400 dollars,) to abide the issue of an appeal, made by the captor, from the order of restitution. The captain had been removed at sea, at the time of the capture, and sent to the United States; but the first and second mates, who went in the ship to the Havanna, offered the security; which was given, at their instance, by Mr. Felix Crucet (a Spaniard, constituted their attorney) and the ship and cargo were thereupon delivered to him, on account of the original owners; but accompanied by a written declaration from Mr. Frazier, 'that ship and cargo were subject to Crucet's orders until the shall be finally indemnified, for his disbursements for costs of suit, outfits, commissions, &c. and be released from his security.' Crucet having determined to send the ship and cargo to the United States, wrote two letters, dated, respectively, the 7th and 23d of July 1804, to his correspondent, Henry Hill, at New-York, in which, after representing the facts above stated, and ordering insurance, he proceeds in these words: 'In my letter of the 7th inst. ordering insurance on the ship Hibberts and cargo, I stated fully the footing on which she was derivered to me, by the governor and auditor of war, on security and mortgage; and she now proceeds to your address, with all the papers then mentioned on board, besides the invoice, and bill of lading of the cargo. From what are herewith inclosed, you will observe, that the mortgage and security have been given for 22,410 dollars, value of the cargo, and 9655 dollars, value of the ship Hibberts, to hold that amount of stock, being 32,065 dollars, subject to the order of the court here, until the appeal, entered to the supreme council of war in Madrid, shall be decided. You will also observe, that my account of advances for law costs, repairs, sails, rigging, provisions, advance wages, &c. for the ship, in this port, amounts to 6444 dollars 1 3/4 cents; my commission of guarantee, on giving the security and mortgage, 5 per cent, on 32,065 dollars, is 1653 dollars 1 cent; and my commission for agency and trouble, 2 1/2 per cent, 826 dollars 4 cents, makes total 8923 dollars 7 3/4
cents, and that the last mentioned sum of 8923 dollars 7 3/4 cents, must be paid to me here, and I must be entirely freed and released in this city, for the security and mortgage I have given for the ship and cargo, before giving up any part of the proceeds thereof. I have wrote to the concerned in England, apprizing them of these circumstances, and that I shall give them due advice, from time to time, of the progress of the appeal. You will, I hope, exert yourself to dispose of the ship and cargo to the best advantage, for the benefit of the concerned, sending the account sales to me here, as soon as convenient, in order to be transmitted to them in England.'
The letter of instructions from Crucet to the captain of the Hibberts, directed him 'to proceed direct to New-York, and there deliver the letters, and other papers, to Mr. Henry Hill, jun.; and, in his absence, to Mr. Samuel Russel, merchant there, to whom the cargo is consigned. These gentlemen will, also, take charge of the ship in New-York, and will furnish you with money to pay off the officers and crew; and will pay you any balance that may be due to yourself.' And the invoice was headed, 'Invoice of the cargo on board the ship Hibberts, of London, John Haines, master, bound for New York, and consigned to Mr. Henry Hill, jun. merchant there, by Felix Crucet, on account and risque of the owners, underwriters, or others in England, or those who may be concerned in said ship and cargo.'
On the 13th of August 1804, I. S. Waln, for Samuel Russel, (the consignee appointed by Crucet, in case of Hill's absence) effected the insurance, which is the ground of the present action. The ship sailed on the voyage insured; but was captured by the Leander off Sandy Hook, on the 16th of August 1804, and sent to Halifax, where she arrived on the 31st of August: The vessel and cargo were there libelled in the court of vice- admiralty as prize, and claimed by the captain for Crucet: but by the decree of the court, pronounced on the 10th of October, the claim was rejected, and the judge 'pronounced the ship and cargo to be the property of British subjects, re-captured by his majesty's ship of war Leander, and decreed the said ship and her cargo to be restored to the original British owners, on payment to the re-captors of one-eighth part of the value thereof, and the claimant to pay costs.' [Footnote 1] From this decree the claimant appealed; but the vessel and cargo were delivered, on security, to the agent of the original British owners, and sent by him to England.
When the ship was captured, it was notified to the defendants, who agreed to pay a just proportion of the expense of recovering [4 U.S. 421, 423]