Isaac Bradlie and John Gibbons, Plaintiffs In Error v. the Maryland Insurance Company

• Citation: 37 U.S. 378,12 Pet. 378,9 L.Ed. 1123
• Parties: ISAAC BRADLIE AND JOHN GIBBONS, PLAINTIFFS IN ERROR v. THE MARYLAND INSURANCE COMPANY
• Decision Date: 01 January 1838
• Court: United States Supreme Court

37 U.S. 378

12 Pet. 378

9 L.Ed. 1123

ISAAC BRADLIE AND JOHN GIBBONS, PLAINTIFFS IN ERROR v. THE MARYLAND INSURANCE COMPANY.

January Term, 1838

In error to the circuit court of the United States for the district of Marryland.

The case, as stated in the opinion of the Court, was as follows:

The original action was upon a policy of insurance, dated the 22d of November, 1832, whereby the defendants, the Maryland Insurance Company, caused the plaintiffs, by their agents, (William Howell & Son,) to be insured, lost or not lost, ten thousand dollars, at a premium of four per cent., on the brig Gracchus, Snow, master, (valued at that sum,) at and from Baltimore, for six calendar months, commencing that day at noon; and if she be on a passage at the expiration of the time, the risk to continue; at the same rate of premium, until her arrival at the port of destination. The declaration alleged a total loss by the casting ashore and stranding of the brig, on the 23d of March, 1833, in the river Mississippi. Upon the trial of the cause, it appeared in evidence that the brig sailed from Baltimore on a voyage to New Orleans, and safely arrived there, and took on board part of cargo, (pork and sugar) at that port, on a voyage for Baltimore; and about the middle of the 23d day of March, 1833, sailed from New Orleans, intending to proceed to Sheppard's plantation, on the river Mississippi, about thirty-three miles below New Orleans, to take in the residue of her cargo for the same voyage. At the English Turn, about twenty-two miles from New Orleans, the brig attempted to come to anchor, and in so doing lost the small bower anchor; and then dropped the best bower anchor, which brought her up. The next morning, while the brig was proceeding on her voyage, she struck on a log, broke the rudder pintles, when she fell off and went on shore. A signal was then made for a steamboat in sight, which came to the assistance of the brig, and in attempting to haul her off, the hauser parted. It was then found that the brig was making water very fast; help was obtained from a neighbouring plantation. They commenced pumping and discharging the cargo on board of the steamboat; and after discharging all the pork, and a part of the sugar, they succeeded in freeing the ship on the afternoon of the same day. She was then got off, and proceeded to New Orleans, where she arrived the same night; she continuing to leak, and both pumps being kept going all the time. The next day, the master understood that the steamboat claimed a salvage of fifty per cent., and intended to libel for it. On the 27th of the same month, the brig was taken across the river for repairs. On the same day the brig was libelled for the salvage, in the district court of Louisiana.

On the 25th of March, Snow, the master, wrote a letter to one of the owners, containing an account of the loss and state of the brig; and also of the claim by the salvors of fifty per cent., which the underwriters on the cargo and himself had objected to; adding, that they should hold the steamboat liable for any damage that might be incurred on account of the detention.

The following is a copy of the letter.

'New Orleans, 25th March, 1833.

'ISAAC BRADLIE, Esq., Seaford, Delaware.

'Dear Sir:—I left here on the 23d inst., to go thirty-six miles below, to complete loading the brig with sugars, for Baltimore; on the evening of the same day in coming to in the English Turn, in a heavy blow from the S. E., parted the small bower cable, and lost the anchor. I then let go the best bower, which brought her up, where we lay during the night; in the morning of the 24th, got under way and proceeded down the river; at 7 A. M., struck on a log, broke the rudder pintles, the brig fell off and went on shore. I then made a signal for a steamboat which was in sight; she came to our assistance and attempted to pull us off, but the hauser parted; we then found that the brig was making water very fast, and that she would soon fill; got thirty odd negroes from a plantation, and commenced pumping, and discharging the cargo on board of the steamboat; after discharging all of the pork and the greater part of the sugar, we succeeded in freeing of her, at 5 P. M.; we then got her off and proceeded up to town, where we arrived at 11 P. M. The owners of the steamboat claim a salvage of fifty per cent. on vessel and cargo, which the underwriters of the cargo, with myself, have objected to: we have not been able to discharge the balance of the cargo to-day; what the consequence will be I cannot say. We hold the owners of the steamboat liable for any damage that may occur on account of the detention; the brig continues to leak so as to keep both pumps going almost constantly. About one-half of the sugar is damaged. I have noted a protest and had a survey, and shall proceed to have every thing done in the most careful manner, as the survey may direct, for the interest of all concerned: as soon as I am able to inform you of what will be done, I will do so by the first opportunity.'

On the 22d of April, Messrs. Howell & Son addressed a letter to the company, submitting the letter of the 25th of March to the company; and say therein, 'In consequence of the damage, together with the detention that must grow out of a lawsuit, (in which it appears that the vessel is involved,) the voyage being broken up, we do hereby abaudon to you the brig Gracchus, as insured in your office per policy No. 13,703, and claim for a total loss.' On the same day, the company returned an answer, saying, 'We cannot accept the abandonment tendered in your letter of this date; but expect you to do what is necessary in the case for the safety and relief of the vessel.'

On the 9th of the ensuing May, the district court decreed onequarter of the value of the vessel and cargo, (estimated at seven thousand dollars) as salvage; the brig being valued at twenty-five hundred dollars. On the 14th of the same month, the master got possession again of the brig, the salvage having been paid. On the 3d of June, 1833, the brig was repaired and ready for a freight; and early in July she sailed for Baltimore, with a partial cargo on board, on freight; and duly arrived there in the latter part of the same month. The repairs at New Orleans amounted to the sum of one thousand six hundred and ninety dollars and fifteen cents; in the share of the brig, at the general average or salvage, to the sum of one thousand two hundred and forty-five dollars and seven cents; in the whole amounting to two thousand nine hundred and thirty-five dollars and twenty-two cents. To meet this sum, and some other expenses, the master obtained an advance from Messrs. Harrison, Brown & Co., of New Orleans, of three thousand seven hundred and fifteen dollars and forty-one cents, and gave them as security therefor, a bottomry bond on the Gracchus, for the principal sum, and five per cent. maritime premium, payable on the safe arrival of the brig at Baltimore.

On this bottomry bond, the brig was libelled in Baltimore, and no claim being interposed by any person, she was, by a decree of the district court of Maryland, on the 5th of September, 1833, ordered to be sold to satisfy the bottomry bond; and she was accordingly sold by the marshal, about the 20th of the same month, to John B. Howell, for four thousand seven hundred and fifty dollars; who, on the 24th of the same month, paid to the attorney of the libellant the full amount due under the decree of the court. On the same day the president of the company addressed a letter to Messrs. Howell & Son, in which they say, 'We have examined the statements of general and particular average, and the accounts relating thereto, which you handed us some days ago, respecting the expenses incurred on the brig Gracchus, at New Orleans. Although some of the charges are of a description for which the company is not liable by the terms of their policy; yet wishing to act liberally in the case, we have agreed to admit every item in the accounts, and the different amounts will be as follows.' Here follows a statement, deducting from the repairs one-third new for old, and admitting the sum of two thousand four hundred and nine dollars and eleven cents to be due to the plaintiffs, and enclosing the premium note and a check for the amount. The letter then adds, 'If you find any other charge, &c. has been paid at New Orleans, in order to raise the funds on bottomry; we will pay our full proportion of the same, upon being made acquainted with the amount.' On the same day Messrs. Howell & Son returned an answer, refusing to receive the premium note and check, adding, 'We should do them (the owners) great injustice to make such a settlement. Our opinion is, that in law and equity, they have a claim for a total loss.'

These are the principal facts material to be mentioned; though much other evidence was introduced into the cause upon collateral points, by the parties.

The counsel for the defendants, after the evidence on each side was closed, moved the court to instruct the jury as follows:

Defendants' 1st Prayer.—The defendants, by their counsel, pray the court to instruct the jury that the notice of abandonment of the 22d April, 1833, and the accompanying letter from captain Snow, of the 25th of March, as given in evidence by the plaintiffs, do not show or disclose facts which in law justifies the offer to abandon then made; and therefore, that in the absence of all evidence that said abandonment was accepted by the defendants, the plaintiffs are entitled to recover only for a partial loss.

2. That if the said notice of abandonment was sufficient, still the jury ought to find a verdict for a partial loss only; unless they shall believe from the evidence, that the Gracchus suffered damage from the accident that befel her on the 24th March, 1833, to more than one-half the sum at which she was valued in the policy: and that in estimating said damage, the jury...