A total loss, for which only the insurer on memorandum articles
is liable, can never happen where the cargo or any part of it is
sent by the insured and reaches the original port of its
destination.
Thus, where the ship being cast on shore near the port of
destination, the agent of the insured employed persons to unlade as
much of the cargo (of corn) as could be saved, and nearly one-half
was landed, dried, and sent on to the port of destination and sold
by the consignees at about one quarter the price of sound corn,
leaving a very inconsiderable sum for the owner, after paying the
expenses, this was held not to be a total loss, and the insurer was
held not to be liable.
This was an action commenced by the plaintiff in error upon a
policy of insurance dated 14 December, 1812, on goods on board the
brig
Betsey, at and from Cape Henry to Lisbon, at a
premium of six percent, on which $5,000 were underwritten by the
defendants, and valued at that sum, declared to be against all
risks except British capture, warranted American property. The jury
found a verdict for the plaintiff, subject to the opinion of the
court upon the following facts agreed by the parties. The cargo
consisted of 4,406 bushels of Indian corn, 100 barrels of navy
bread, and 20 barrels of corn meal. The brig sailed from Baltimore
on 11 November, 1812, and from Cape Henry on 13 the same month. She
experienced on the voyage many and severe gales of
Page 14 U. S. 220
wind. On 18 December, she passed the rock of Lisbon and came to
anchor about four miles below Belem Castle. She leaked considerably
in consequence of the injury she had sustained from the severe
gales to which she had been exposed. After passing the rock, the
wind died away, and the current being adverse, she came to anchor.
The master and supercargo landed, went through the customary forms
at Belem to obtain a permit to pass the castle, and then proceeded
to Lisbon. The health boat visited the brig and ordered her to get
above the castle as soon as possible.
On the 19th, she was again exposed to a heavy and fatal gale,
and drove ashore near to Belem Castle, the sea breaking over her,
and the crew hanging by the rigging to preserve their lives. The
supercargo considered both vessel and cargo as totally lost. By
directions of the custom house, as much of the cargo as could be
got out was unladen by a number of French prisoners who were
employed for that purpose. The cargo was all wet, and the part of
it which was then taken out was carried to the fort, where it was
spread and dried. From thence it was carried to Lisbon in lighters,
and was sold in the corn market by the consignee of the cargo. The
quantity so saved and sold amounted to about 1,988 bushels, which
was sold at 50 cents a bushel, whereas the price of sound corn was
$2.25 a bushel. The supercargo petitioned for liberty to sell the
corn at the place where it was first deposited and dried, which
could not be granted, and he was obliged to submit to the custom of
the place and allow it to be sold at the corn market.
Page 14 U. S. 221
The brig was so completely wrecked that she was sold, with her
materials, where she lay, in lots. Had the supercargo been left to
the free exercise of his own judgment, he would not have attempted
to save any part of the cargo, in consequence of the total damage
and the great expense of saving it. The net proceeds of the cargo
were not much more than the expenses of saving it, including those
of the supercargo. The port of Lisbon commences above Belem Castle,
and the custom of the place is to discharge cargoes of corn between
that castle and Cantara, which latter place is from one to two
miles below Lisbon. The vessel never arrived at her port of
discharge. On 22 December she was entered at the custom house by
the American vice-consul, which he said was necessary, but port
dues do not attach to vessels till they pass the castle. Still, as
part of the cargo was carried to Lisbon, the entry was made by the
consul, and the dues were paid. On 11 March, 1813, the plaintiff,
having received notice of the shipwreck, offered to abandon, which
was refused. Upon these facts, the circuit court gave judgment for
the defendants and the cause was brought by writ of error into this
Court.
Page 14 U. S. 224
WASHINGTON, J., delivered the opinion of the Court, and after
stating the facts, proceeded as follows:
All considerations connected with the loss of the cargo, in
respect to quantity or value, may at once be dismissed from the
case. As to memorandum articles, the insurer agrees to pay for a
total loss only, the insured taking upon himself all partial losses
without exception.
If the property arrive at the port of discharge reduced in
quantity or value to any amount, the loss cannot be said to be
total in reality, and the insured cannot treat it as a total and
demand an indemnity for a partial loss. There is no instance where
the insured can demand as for a total loss that he might not have
declined an abandonment and demand a partial loss. But if the
property insured be included within the memorandum, he cannot under
any circumstances call upon the insurer for a partial loss, and
consequently he cannot elect to turn it into a total loss. These
principles are clearly established by the case of
Mason v.
Skurray, Neilson
Page 14 U. S. 225
v. Columbian Insurance Company, Cocking v. Frazer, McAndrews
v. Vaughan, Dyson v. Rowcroft, and
Magrath and Huggins v.
Church. The only question that can possibly arise in relation
to memorandum articles is whether the loss was total or not, and
this can never happen where the cargo, or a part of it, has been
sent on by the insured and reaches the original port of its
destination. Being there specifically, the insurer has complied
with his engagements; everything like a promise of indemnity
against loss or damage to the cargo being excluded from the policy.
If the question turn upon the totality of the loss, unconnected
with the subject of loss by deterioration of the cargo in value or
reduction in quantity, there is no difference between memorandum
and other articles. If the loss be total in reality or is such as
the insured is permitted to treat as such, he is entitled to
abandon and recover as for a total loss in the case of memorandum
articles, but always with this exception that he is not permitted
to turn a partial into a total loss. Keeping this distinction in
view, the loss of the voyage by capture, shipwreck, or otherwise
may be treated as a total loss. This is the doctrine in the case of
Dyson v. Rowcroft, in which the right to abandon was
placed not upon the ground of deterioration of the cargo, but upon
the justifiable necessity which resulted from it of throwing the
cargo overboard.
Page 14 U. S. 226
This was in effect the same thing as if it had in a storm been
swept from the deck. Such too was the case of
Manning v.
Newnham. In
Cocking v. Frazer, no such necessity
existed, and the breaking up of the voyage was attempted to be
justified by the damaged state of the cargo, which
per se
did not justify the insured in putting an end to the voyage, and
thus to turn a partial loss, for which the insurer was not liable,
into a total loss.
Magrath and Huggins v. Church
establishes the same doctrine.
Now what is the present case? The ship being thrown on shore
within a mile or two from her port of destination, the agent of the
insured employs persons to unlade as much of the cargo as could be
saved, and nearly one-half was, by his exertions, landed, dried,
and sent to the market at Lisbon and sold by the consignees at
about one quarter the price of sound corn, leaving a very
inconsiderable sum for the owner after paying the expenses. Is not
this precisely the case of
Neilson v. Columbian Insurance
Company and
Anderson v. Same, with this difference
only, that in the first case the insured declined sending on the
corn when he might have done so, and consequently he was not
permitted to turn a partial into a total loss by his own neglect,
and in the latter case, part of the cargo having been rescued from
the wreck before the offer to abandon was made, the insured could
not claim as for a total loss, either on account of the injury
which
Page 14 U. S. 227
the corn had sustained, or of his own act in not sending it
forward to its port of destination. In the case now before the
Court, the cargo which was saved was sent forward and sold at the
port of its destination.
In addition to the cases above referred to, the cases of
Biays v. Chesapeake Insurance Company
Page 14 U. S. 228
and
Marcardier v. Same, in this Court, are strongly
applicable to the present, and seem in a
Page 14 U. S. 229
great measure to settle it. But it is contended by the counsel
for the plaintiff, that if the loss be such
Page 14 U. S. 230
as that the insured might at one time have treated it as total,
it continues to be so, unless at the time
Page 14 U. S. 231
when the offer to abandon is made clear of the effects of the
peril, and in a condition to prosecute the voyage, it is restored
to his possession. Now this is certainly not the condition of
property which, at the time of the offer to abandon, is in the
possession of a recaptor, who has a right to retain it until he is
paid his salvage. But in the present case the corn never was out of
the possession of the agents of the insured, who exercised every
act of ownership over it, subject, nevertheless, to the laws and
customs of the country to which it was sent, with which the insurer
and insured are supposed to have been acquainted at the time they
entered into this contract and to which they impliedly agreed to
submit. The cargo which was landed not only continued in the
possession and under the direction of the agents of the insured,
but it was relieved from the effects of the peril, as between the
insurer and insured, and it was not only in a condition to
prosecute the voyage, but it did in reality complete it. Upon the
whole, it is the opinion of the Court that this is not such a loss
as the defendants engaged to indemnify against, and that judgment
should be given in their favor.
Judgment affirmed.
