2 U.S. 219 (1794)

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U.S. Supreme Court

FULLER v. MCCALL, 2 U.S. 219 (1794)

2 U.S. 219 (Dall.)


Supreme Court of Pennsylvania

January Term, 1794

This was an action on a Policy of Insurance, upon the cargo of the Sloop Mary, William Southern master, at and from Philadelphia to Trinidad, in which the plaintiff declared against the defendant, one of the underwriters, as for a total loss. On the trial the following facts appeared: The plaintiff having shipped goods on board the sloop to the invoice amount of L 931, she sailed from Philadelphia on the 5th of May 1789, and soon afterwards encountered a gale of wind, during which she sprung a leak, that obliged her on the 20th of June, to make St. Bartholomews, the nearest port. A survey was there immediately had upon the sloop, which was found incapable of continuing longer at sea; and also on the cargo, which proved to be very much damaged; and on the 3rd, 7th, 20th & 27th of July, N. Dawes of St. Bartholomews communicated these circumstances, by letters, to the plaintiff, and further informed him, that as the cargo was not fit to be re-shipped, it had been sold for 3067 pieces of eight, which (together with the account sales) N. Dawes sent in specie by Capt. Southern, to the plaintiff. When the first account of the sloop's putting into St. Bartholomews arrived at Philadelphia (on the 23rd of July) the plaintiff was at Cape May; but his clerk (who had general instructions to transact his business) opened Mr. Dawes's first letter, and by the instructions of Mr. Fisher, whom the plaintiff had directed him to consult, he shewed it to the defendant, and to such other of the underwriters as were in the city, on the day it was received, or on the ensuing day. These gentlemen expressed no opinion upon the occasion; but the clerk, by the advice of Mr. Fisher, opened a policy upon the return cargo, for the benefit of whom it might concern, and the former underwriters

Page 2 U.S. 219, 220

were first offered the choice of also underwriting this policy. On the 28th of July, the plaintiff came back to the city, and approved what his clerk had done. On the 29th of July captain Southern arrived in the sloop at Philadelphia, bringing with him Mr. Dawes's last dispatches, but no money. The plaintiff thereupon called a meeting of all the underwriters, submitted the facts and papers to them; made a verbal claim as for a total loss, and it was agreed, on all hands, that without prejudice to either party, Capt. Southern should be arrested, to compel him to account for the money. It was not, however, 'till the 6th of November 1789, that the plaintiff addressed a letter to the underwriters, making a formal abandonment of all the property in the sloop; and, on the same day, they answered, that they did not think it proper to accept the abandonment, but offered to pay an average loss.

Upon these facts, a verdict was taken for the plaintiff, subject to the opinion of the Court, whether they established a total, or an average, loss?

On the argument, however, two positions were asserted, by the defendant's counsel; 1st. That the circumstances of the case did not warrant an abandonment, as for a total loss: And 2nd. That even if the plaintiff had a right so to abandon, he had not exercised that right in due time.

On the 1st position, they stated the general doctrine to be clearly established, that the owner of goods cannot abandon, unless at some period or other of the voyage, there has been a total loss; and where the loss is not an absolute destruction of the property, an abandonment will not be allowed, unless the damage amounts to a moiety of the value. Parke Inf. 164, 165, 188. This was not the fact in the present instance; the goods were not destroyed; they were not damaged to near the amount of a moiety of their value; nor can it be said, that the voyage was defeated, since the sloop, by returning to Philadelphia, has proved that she might have gone to Trinidad, where the superior price would have compensated for every expence. What, indeed, constitutes the defeating of a voyage must depend on the circumstances of each case; and notwithstanding the generality of the expression in Parke 164, it will be found, that when he, as well as other writers on the subject, enters into an exemplification of the rule, it is done by specifying instances of a total loss of the vessel, by tempest, capture, or decay, and by instances of a total destruction of the cargo, or, at least, of such damage, as does not leave sufficient to defray the expence of repair, &c. Parke Inf. 165. 174. 176. 187. 189.

On the second position they urged, that the abandonment was neither compleat, nor in time. The indulgence allowed under any circumstances to the insured, to convert a partial, into a [2 U.S. 219, 221]

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