Morean v. United States Insurance Company,
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14 U.S. 219 (1816)
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U.S. Supreme Court
Morean v. United States Insurance Company, 14 U.S. 1 Wheat. 219 219 (1816)
Morean v. United States Insurance Company
14 U.S. (1 Wheat.) 219
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
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.
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.