In the caption of a deposition, taken before the Mayor of
Norfolk, to be used in a cause depending and afterwards tried in
the Circuit Court of the United States held in Baltimore, the mayor
stated the witness "to be a resident in Norfolk," and in his
certificate he states that the reason for taking the deposition is
"that the witness lives at a greater distance than 100 miles from
the place of trial, to-wit, in the Borough of Norfolk." It was
sufficiently shown by the certificate, at least
prima
facie, that the witness lived at a greater distance than 100
miles from the place of trial.
The provisions of the thirteenth section of the act of Congress,
entitled "An act to establish the judicial courts of the United
States," which relate to the taking of depositions of witnesses
whose testimony shall be necessary in any civil cause depending in
any district in the courts of the United States who reside at a
greater distance than 100 miles from the place of trial are not
confined to depositions taken within the district where the court
is held.
In all cases where, under the authority of the act of Congress,
a deposition of a witness is taken
de bene esse except
where the witness lives at a greater distance from the place of
trial than 100 miles, it is incumbent on the party for whom the
deposition is taken to show that the disability of the witness to
attend continues, the disability being supposed temporary and the
only impediment to a compulsory attendance. The act declares
expressly that unless this disability shall be made to appear on
the trial, such deposition shall not be admitted or used on the
trial. This inhibition does not extend to the deposition of a
witness living at a greater distance from the place of trial than
100 miles, he being considered beyond a compulsory attendance.
The deposition of a witness living beyond 100 miles from the
place of trial may not always be absolute, for the party against
whom it is to be used may prove the witness has removed within the
reach of a subpoena, after the deposition was taken, and if that
fact was known to the party, he would be bound to procure his
personal attendance. The
onus probandi thus would rest
upon the party opposing the admission of the deposition in
evidence. For a witness whose deposition is taken under such
circumstances, it is not necessary to issue a subpoena. It would be
a useless act; the witness could not be compelled to attend
personally.
By the Act of 2 March, 1793, subpoenas for witnesses may run
into districts other than where the court is sitting, provided the
witness does not live at a greater distance than 100 miles from the
place of holding the court.
Damages to a vessel by any of the perils of the sea on the
voyage insured, which could not be repaired at the port to which
such vessel proceeded after the injury without an expenditure of
money to an amount exceeding half the value of the vessel at that
port after such repairs, constitute a total loss.
The rule laid down in the books is general that the value of the
vessel at the time of the accident is the true basis of
calculation, and if so, it necessarily follows that it must be the
value at the place where the accident occurs. The
Page 30 U. S. 605
sale is not conclusive with respect to such value. The question
is open for other evidence if any suspicion of fraud or misconduct
rests upon the transaction.
As a general proposition, there can be no doubt that the injury
to the vessel may be so great as to justify a sale by the master.
There must be this implied authority in the master from the nature
of the case. He, from necessity, becomes the agent of both parties,
and is bound in good faith to act for the benefit of all concerned,
and the underwriter must answer for the consequences, because it is
within his contract of indemnity.
There must be a necessity for a sale of the vessel and good
faith in the master in making it, and the necessity is not to be
inferred from the fact of the sale in good faith, but must be
determined from the circumstances. The professional skill, the due
and proper diligence of the master, his opinion of the necessity,
and the benefit that would result from the sale to all concerned
would not justify it unless the circumstances under which the
vessel was placed rendered the sale necessary in the opinion of the
jury.
There is some diversity of opinion among the elementary writers
and in the adjudged cases as to what will constitute a valid
abandonment. It seems, however, agreed that no particular form is
necessary, nor is it indispensable that it should be in writing.
But in whatever form it is made, it ought to be explicit, and not
heft open as matter of inference from some equivocal acts. The
assured must yield up to the underwriter all his right, title, and
interest in the subject insured, for the abandonment, when properly
made, operates as a transfer of the property to the underwriters,
and gives them a title to it, or what remains of it, as far as it
was covered by the policy.
The consul of the United States at the port where a vessel was
sold in consequence of her having, in the opinion of the master,
sustained damages, the repairs of which would have cost more than
half her value at that port, declared in the protest of the
captain, made at his request, that the captain abandoned the
vessel, &c., to the underwriters. This protest, as soon as it
was received by the assured, the owners of the vessel, was sent to
the underwriters, and the owners wrote at the same time that they
would forward a statement of the loss with the necessary vouchers,
and they soon afterwards did forward the further proofs and a
statement of the loss to them. This constituted a valid
abandonment.
The defendants in error instituted an action against the
Patapsco Insurance Company in the circuit Court of Maryland on a
policy of insurance on the schooner
Frances, Seaward,
master, from Curacoa or a port of departure in the West Indies or
on the main to a port in the United States. On her voyage from
Carthagena to Norfolk, the Frances encountered a severe gale and
sustained such injuries as made it necessary for her, after two
days, to put back to Carthagena. On entering that port, she struck
several times on a sand bar, and on examination it was found that
she required considerable repairs in her hull and rigging. She was
placed by the
Page 30 U. S. 606
captain under the care of the American consul at Carthagena, and
was sold by him at private sale to Evans for $140, with the consent
of the captain. Evans afterwards sold the
Frances to
Palmer for $200. She was repaired by Palmer and returned to the
United States. The plaintiffs claimed a total loss from the
underwriters.
On the trial in the circuit court, the defendants took
exceptions to the opinions of the court, on points submitted by the
plaintiffs and by the defendants, for instructions to the jury,
which, with the facts of the case, are fully stated in the opinion
of the Court.
The deposition of Thomas Evans was offered in evidence by the
plaintiffs below, and after exceptions to its legality by the
defendants, was admitted by this Court. The deposition was taken
ex parte at Norfolk before the mayor of that place. In the
caption, the mayor states the witness to be a resident in Norfolk;
and in his certificate declares the reason for taking it to be that
the witness "lives at a greater distance than 100 miles from the
place of trial, to-wit: at the Borough Norfolk." No subpoena was
issued for Evans, and no other evidence was offered of the place of
his residence, than the caption of the deposition in the
handwriting of the Mayor of Norfolk.
The jury having found a verdict for the plaintiff in the circuit
court, the defendants prosecuted this writ of error.
Page 30 U. S. 615
MR. JUSTICE THOMPSON delivered the opinion of the Court.
The action is on a policy of insurance, dated 20 March, 1824,
upon the schooner
Frances, Seaward, master, valued at
$2,500, lost or not lost, on a voyage from Curacoa or a port of
departure in the West Indies or on the main to a port in the United
States.
The schooner sailed from Norfolk on the outward voyage in
January, 1824, and arrived and remained at Curacoa six or seven
days, and proceeded thence to Carthagena, where she arrived on 15
February following, and having taken in a return cargo, proceeded
on her return voyage to Norfolk, and after being at sea about
twenty hours, she encountered a very heavy gale of wind and
received such injury that it was deemed necessary to return to
Carthagena. The captain reported the vessel to the American consul,
who ordered a survey to be held upon her, and she was afterwards
sold by the consul to Thomas Evans for $140, who purchased the
schooner in his own name; but it was understood that Captain
Seaward was to be concerned with him, and he furnished the money to
buy her, and Seaward afterwards sold her to Ralmer for upwards of
$200, who repaired her and returned with her to the United
States.
Upon the trial, several bills of exceptions were taken on the
part of the defendants in the court below and who are the
plaintiffs here, upon which bills of exceptions are presented the
questions brought into this Court for review. The first question
relates to the admissibility, as evidence, of the
Page 30 U. S. 616
deposition of Thomas Evans, taken
ex parte before the
Mayor of Norfolk. In the caption of the deposition the witness is
stated to be a resident of the Borough of Norfolk. And the mayor in
his certificate states that the reason for taking his deposition is
that the witness lives at a greater distance than 100 miles from
the place of trial, to-wit, "in the said Borough of Norfolk." It
was admitted that the Borough of Norfolk is more than 100 miles
from the place of trial, but the objection was that no subpoena for
this witness had been issued, nor any evidence out of the
deposition produced at the trial to show his residence or inability
personally to attend the trial. These were the particular
objections taken at the trial, but on the argument here, a broader
ground has been assumed: that no
ex parte deposition taken
out of the district where the trial is had is admissible, but that
the testimony should be taken on a commission issued for that
purpose. We think neither of these exceptions sufficient to exclude
the deposition.
In support of the latter objection the case of
Evans v.
Hettick, 3 Wash.C.C. 417, has been relied on, and which would
seem to sustain the objection. Mr. Justice Washington does there
say that the act of Congress must be so construed as to confine its
operations to depositions taken within the district when the
witness lives more than 100 miles from the place of trial, but when
a witness lives out of the district and more than 100 miles from
the place of trial, his deposition, if taken, must be under a
commission.
We think, however, that this is not the true construction of the
act of Congress, 2 L.U.S. 68. It declares that when the testimony
of any person shall be necessary in any civil cause depending in
any district in any court of the United States who shall live at a
greater distance from the place of trial than 100 miles, &c.,
the deposition of such person may be taken
de bene esse,
&c. The language here used is general, and is not certainly, in
terms, confined to depositions taken within the district where the
court is held. And if the provision was intended for the
convenience of parties, it applies equally to depositions of
witnesses living without as to those living within the district at
a greater distance than 100 miles from the place of trial, and all
the
Page 30 U. S. 617
dangers supposed to arise from the taking of
ex parte
evidence, apply with equal force to the one case as to the other.
It is said, however, that the act declares the deposition may be
taken
de bene esse, and if allowed in cases when the
witness lives out of the district, it necessarily becomes absolute,
as the law stood in the year 1789, because a subpoena could not be
issued into a district other than where the court was sitting. But
no such consequence is perceived by the court to follow. The
permission to take the deposition of a witness on account of his
distant residence is connected with a number of other cases where
the deposition may be taken, as when the witness is bound on a
voyage to sea, or about to go out of the United States, or out of
such district and to a greater distance from the place of trial
than as aforesaid before the time of trial, or is ancient or very
infirm, the deposition may be taken
de bene esse. In all
these cases, except where the witness lives at a greater distance
than 100 miles, it will be incumbent on the party for whom the
deposition is taken to show at the trial, that the disability of
the witness to attend personally continues, the disability being
supposed temporary, and the only impediment to a compulsory
attendance. The act declares expressly that unless the same (that
is, the disability) shall be made to appear on the trial, such
deposition shall not be admitted or used in the cause. This
inhibition does not extend to the deposition of a witness living at
a greater distance from the place of trial than 100 miles, he being
considered permanently beyond a compulsory attendance. The
deposition in such case may not always be absolute, for the party
against whom it is to be used may prove the witness has removed
within the reach of a subpoena after the deposition was taken, and
if that fact was known to the party, he would be bound to procure
his personal attendance. The onus, however, of proving this would
rest upon the party opposing the admission of the deposition in
evidence. It is therefore a deposition taken
de bene
esse.
It was sufficiently shown, at least
prima facie, that
the witness lived at a greater distance than 100 miles from the
place of trial. This was a fact proper for the inquiry by the
officer who took the deposition, and he has certified that such is
the residence of the witness. In the case of
Bell
v.
Page 30 U. S. 618
Morrison, 1 Pet. 356, it is decided that the
certificate of the magistrate is good evidence of the facts therein
stated, so as to entitle the deposition to be read to the jury.
It was not necessary to issue a subpoena. It would have been a
useless act. The witness could not have been compelled to attend
personally. By the Act of March 2, 1793, 2 L.U.S. 365, subpoenas
for witnesses may run into districts other than where the court is
sitting, provided the witness does not live at a greater distance
than 100 miles from the place of holding the court.
The other exceptions arise upon the instructions given by the
court upon the prayers of the parties respectively. After the
testimony had been closed, each party submitted to the court
several prayers upon which the instruction of the court was
requested, and the record then states as follows.
"Upon which prayers of the plaintiffs and defendants,
respectively, the court gave the opinions and instructions and
directions to the jury, following: "
" 1. That if the jury find from the evidence that the damage
done to the schooner
Frances by any perils of the sea on
the voyage insured could not be repaired without an expenditure of
money to an amount exceeding half her value at the port of
Carthagena, after such repairs, then such damage constitutes a
total loss, and the plaintiffs are entitled to recover."
" 2. That if the jury finds from the evidence that Captain
Seaward was a man of competent skill in his profession and that
before he sold the schooner
Frances to Palmer in the
manner stated in the testimony, he used due and proper diligence to
ascertain whether a sale was necessary and for the interest of the
concerned, and if upon the information so obtained and the
circumstances known to him at the time, after due and diligent
inquiry, it was absolutely necessary and for the interest of the
concerned that the vessel should be sold, and that a prudent and
discreet owner, placed in like circumstances, would have come to
the same conclusion and sold the vessel in like manner, and if from
all the circumstances of the case the jury should be of the opinion
that the sale was justifiable, that then the plaintiffs are
entitled to recover."
"On the prayers of the defendants, the court's directions were
as follows: "
" 1.
Page 30 U. S. 619
That the plaintiffs are not entitled to recover for a total loss
unless the sale at Carthagena was in consequence of urgent and
inevitable necessity; that no necessity will justify a sale by the
master unless it be urgent and inevitable -- in other words,
justifiable."
" 2. That in weighing this necessity, the fact of the sale's
having been made as disclosed by the testimony is not to be
conclusive, but the necessity is to be tested by a consideration of
all the circumstances."
" 3. That if the jury shall find from the evidence that the
damage which had been sustained by the vessel at the time she put
back to Carthagena was of trivial amount, that this damage could
have been repaired at Carthagena for a small sum, and the vessel
thus enabled, after a short delay, to proceed on the voyage
insured, and that the master had the funds to make the necessary
repairs, and if it shall be of opinion that it was not such a case
of urgent necessity as to justify the sale, then the plaintiffs are
not entitled to recover for a total loss, but can recover only for
a partial loss according to the circumstances of the case."
" 4. The court is of opinion that the abandonment was
sufficiently made in this case."
In considering the exceptions taken to the opinion and direction
of the court, we think, from the manner in which the prayers were
presented and the instructions given, they may well be considered
together as one entire direction to the jury, and not as a separate
instruction upon each prayer, and this is the manner in which they
have been treated on the argument at the bar.
The question arising upon the first instruction relates to the
place where the value of the vessel was to be ascertained in order
to determine whether there was a total loss. The court instructed
the jury that if the vessel could not have been repaired without an
expenditure exceeding half her value at the port of Carthagena
after such repairs, it constituted a total loss. This direction we
think entirely correct. It was not denied but that the cost of
repairs must be ascertained at that place. But it is said, the
value of the vessel after such repairs should be determined by the
value in the home port or in the general market, as the injury
might occur in a place
Page 30 U. S. 620
where the vessel would not be saleable, and the property might
be sacrificed. It is true this may occur, but it is a circumstance
incident to the risk assumed by the underwriter, and any other rule
would be in many cases impracticable. The purpose for which the
value is to be ascertained is to determine the right to abandon,
and a delay in doing this might be considered as waiving the
abandonment, and the value at the time the injury happens must
necessarily be the rule by which that right is to be decided.
No case has been referred to or has fallen under the notice of
the Court intimating the distinction here set up, and we do not
think it warranted by the general principles of insurance law. The
rule laid down in the books is general that the value of the vessel
at the time of the accident is the true basis of calculation. 3
Kent's Com. 277. And if so, it necessarily follows that it must be
the value at the place where the accident occurs. The sale is not
conclusive with respect to such value. The question is open for
other evidence if any suspicion of fraud or misconduct rests upon
the transaction.
The other questions arising upon the instructions relate to the
sale of the vessel and the sufficiency of the abandonment.
As a general proposition, there can be no doubt that the injury
to the vessel may be so great and the necessity to urgent as to
justify a sale. There must be this implied authority in the master
from the nature of the case. He, from necessity, becomes the agent
of both parties, and is bound in good faith to act for the benefit
of all concerned, and the underwriter must answer for the
consequences, because it is within his contract of indemnity. This
was the doctrine in the case of Mills v. Fletcher, 1 Doug. 231; and
which has been repeatedly sanctioned by the later decisions both in
England and in this country. It is a power, however, that is to be
exercised with great caution and only in extreme cases. It is
liable to great abuse, and must therefore, in the language of some
of the cases, be carefully watched. The difficulty in all these
cases consists principally in the application of a rule to a given
case, and not in determining what the rule is. It was not denied by
the counsel for the plaintiffs in error that in cases of extreme
and urgent necessity, the master has the power to sell if he acts
in good faith and the circumstances
Page 30 U. S. 621
are such that a jury will find the necessity existed. All the
circumstances must be submitted to the jury, and it must find both
the necessity and good faith of the master in order to justify the
sale. Necessity and good faith must concur, and the necessity is
not to be inferred from the fact of sale in good faith, but must be
determined from other circumstances. 4 Serg. & Lowb. 275; 7
id. 386; 1
id. 375; 2 Pick. 261; 5 Esp. 67.
The complaint on the part of the plaintiffs in this case is that
the court placed the right to sell upon the good faith of the
master and the existence of the necessity, according to his
opinion. And the second instruction on the prayer of the plaintiffs
below, if standing alone, would be open to this interpretation, and
if so would be erroneous. The professional skill, the due and
proper diligence of the master, his opinion of the necessity, and
the benefit that would result from the sale to all concerned would
not justify it unless the circumstances under which the vessel was
placed rendered the sale necessary in the opinion of the jury.
But whatever ambiguity may appear in this instruction standing
by itself, it is entirely removed, when taken in connection with
those given upon the defendant's prayers. The jury was explicitly
told that the plaintiffs were not entitled to recover for a total
loss unless the sale was in consequence of urgent and inevitable
necessity, and that the fact of sale was not conclusive, but that
the necessity must be tested by a consideration of all the facts,\
as they existed at the time; that if the damage sustained was of
trivial amount and would have been repaired at Carthagena for a
small sum and with little delay, and that if in their opinion it
was not such a case of urgent necessity as to justify the sale,
then the plaintiff was not entitled to recover for a total loss.
This instruction is according to the defendant's prayer, except
that the court was requested to instruct the jury that the fact of
sale was to have no influence, but that the necessity was to be
tested solely by the facts as they existed anterior to the sale. We
think the instruction, although not in the terms of the prayer, yet
when connected with the other instructions, is substantially
according to the prayer. For the jury was told in terms that the
plaintiffs were not entitled to recover for a total loss unless the
sale was the consequence of urgent and inevitable necessity.
Page 30 U. S. 622
Whether the evidence was sufficient to warrant the finding of
the jury, is a question that cannot arise here, upon this bill of
exceptions.
The only remaining inquiry is whether there was a sufficient
abandonment proved.
There is some diversity of opinion among the elementary writers,
and in the adjudged cases, as to what will constitute a valid
abandonment. It seems, however, agreed that no particular form is
necessary, nor is it indispensable that it should be in writing.
But in whatever mode or form it is made, it ought to be explicit,
and not left open as matter of inference from some equivocal acts.
The assured must yield up to the underwriter all his right, title,
and interest in the subject insured. For the abandonment, when
properly made, operates as a transfer of the property to the
underwriter, and gives him a title to it or what remains of it as
far as it was covered by the policy. 3 Mar.Ins. 599; Phil.Ins. 447,
and cases there cited.
The evidence in this case to support the abandonment consists of
the correspondence between the parties and the documents
accompanying the same.
On 1 May, 1824, the plaintiffs wrote to the defendants as
follows:
"We are sorry to have to forward to you protest and surveys of
the schooner
Frances, insured with her cargo in your
office. Captain Seaward arrived yesterday in the schooner
Enterprise. We had before seen, by an arrival at
Charleston from Carthagena, that the Frances had been condemned,
but were ignorant until now of the cause. By the next steamboat we
shall forward you a statement of the loss, with the necessary
vouchers."
The protest enclosed to the underwriters contained the following
clause:
"I, the said consul, at the request of the said master, Joseph
Seaward, do hereby intimate, declare, and make known to the
underwriters of the said schooner
Frances and to the
underwriters upon her cargo that the said master, for himself and
in behalf of the owners of the said schooner
Frances and
her cargo, doth abandon, cede, and leave to them, the said
underwriters, and to each and every of them, all his the said
master's and theirs, the said owners', right, title, interest,
profit, property, claim, demand, and produce of and in the said
schooner
Frances and her cargo and to the tackle, apparel,
and furniture of the said schooner, and
Page 30 U. S. 623
that the aforesaid master doth claim, on behalf as aforesaid,
reimbursement for the same as a total loss,"
&c. The receipt of this was acknowledged by letter of 4 May,
and saying that the further proofs of loss on arrival should
receive immediate attention. On 5 May, the further proofs, and a
statement of the loss, were forwarded to the underwriters, the
receipt of which was acknowledged by letter of 7 May, in which the
underwriters say they have resolved to take time to consider about
the adjustment of the loss.
This correspondence, independent of the protest, leaves no doubt
as to the intention and understanding of the parties with respect
to the abandonment. This would however be matter of inference only.
But the protest is direct and explicit, both in form and in
substance.
It is said, however, that this was an unauthorized act. It is
true no authority is shown from the assured to the master to make
the abandonment, and had it been communicated direct from the
master to the underwriters, the objection would apply with full
force. But this protest, containing the abandonment, was
communicated to the underwriters by the plaintiffs. It became
thereby their act, adopted and ratified by them, and must have the
same legal effect and operation as if it had originated with the
assured themselves and constituted a valid abandonment.
This renders it unnecessary for the Court to express any opinion
upon the question made at the bar, whether any abandonment was
necessary in this case. It may not, however, be amiss to observe
that there is very respectable authority, and that too founded upon
pretty substantial reasons for saying that no abandonment is
necessary where the property has been legally transferred by a
necessary and justifiable sale. 2 Pick. 261, 265.
The judgment of the circuit court is affirmed with six
percent damages and costs.
