Adams v. Delaware Ins. Co.
| Decision Date | 05 January 1811 |
| Citation | 3 Binn. 287 |
| Parties | ADAMS v. The DELAWARE INSURANCE COMPANY. |
| Court | Pennsylvania Supreme Court |
An abandonment after acquittal, and after an order of restitution has been given by the court of last resort to the agent of the assured, is too late, notwithstanding it be made before actual restitution by the captors.
It is the state of the fact, and not the state of the party's information at the time of an abandonment, that is to test its validity.
THIS cause was argued upon a statement of facts, which in substance were these:
The plaintiff, on the 15th April 1806, caused insurance to be effected by the defendants upon goods by the schooner Hazard, at and from Philadelphia to St Jago de Cuba, and at and from thence to Philadelphia; 7000 dollars at eight per cent. The schooner, having the plaintiff's goods on board to the amount insured, was taken in the prosecution of her voyage outward, on the 10th of May, by two French armed vessels, who took out part of her crew, replaced them with a prizemaster and men, and carried her to Samana, a small island near the east side of St Domingo, where she arrived on the 21st of May. On her arrival, proceedings were instituted against her in the tribunal de première instance at Santo Domingo, to which place the captain went leaving his mate, a cook, and boy on board the schooner, the hatches of which were sealed by the French commissary, and her sails unbent, and put below. On the 6th of June the schooner and cargo were acquitted. The captors appealed; and on the 10th of June the sentence of acquittal was affirmed in the tribunal of the last instance, and the property ordered to be restored. The captain returned as soon as possible to Samana, carrying with him the decree of acquittal, and the order of restitution. He arrived on board his vessel about 9 o'clock on Saturday evening the 21st of June, and being fatigued, immediately retired to rest. The next morning, being Sunday, the French officer, on the exhibition of the order of acquittal and restitution, took off the seals from the hatches, redelivered to the captain possession of the vessel which till that time he had retained as before mentioned, and the captain immediately prepared for his departure. On the 25th of June he sailed from Samana, and arrived in safety at St. Jago.
On the 21st of June, the insured having on that day received from the captain a letter of 22d May, informing of his capture and arrival at Samana, communicated it to the defendants, and tendered an abandonment, before nine o'clock in the evening.
The question for the opinion of the court, was whether the plaintiff was intitled to recover for a total loss, or only for a partial loss.
Levy for the plaintiff. The point has been many times decided that while the owner is kept out of the possession and control of his property by the captors, their agents, or government, he is intitled to abandon, provided he does it within a reasonable time. It is this circumstance, the having lost his power over the property insured, that intitles him to substitute the insurer in his place. Hence as between insurer and insured there is a total loss, although the property is never condemned or carried infra præ sidia. Goss v. Withers. [a] Hence he is not obliged to wait the event of capture. 2 Marsh. 510. At any time during the detention he may make his election. 2 Marsh. 563. And whether the detention be by friends or enemies, 2 Marsh. 511., by hostile capture, or by embargo, 2 Marsh 508., this privation of the control of his property, is a total loss within the policy, if he elects so to consider it. By the law of France indeed, the ship being once captured, it is always a total loss; and the legal effect as to abandonment continues, though the ship be released or retaken. 2 Emerig. 188. From these principles it results, that whatever be the futility of the pretence under which the capture or detention takes place, or however clear and immediate the prospect of restoration, still if the owner has not possession and control at the time of abandonment, that act is valid. The case of Dutilh v. Gatliff [b]is in point. The vessel there was carried into Nassau, libelled as prize, and on the 9th of November acquitted. The abandonment was made four days afterwards, when she was still in the custody of the captors, and in five days after that she was delivered over to the claimant. By what argument could this court sustain the abandonment in that case, and not do it here? The actual, involuntary custody of the captor, existed at the time of abandonment here as well as there, and this was the governing circumstance. We are therefore intitled to a total loss.
But there is another fact. The plaintiff had no notice of the restoration at the time of the abandonment; and there are respectable authorities to shew, that under such circumstances the abandonment is valid. It was precisely the point decided by the Supreme Court of New York in Murray v. The United Insurance Company, [a] where the vessel was released on the 18th of June, and the abandonment was made on the 3d of August; and there is something in the nature of the contract, and something also in one of the stipulations of the insurer, which strongly countenances this opinion. The assured is bound to make his abandonment in a reasonable time, or he loses his right. His obligation to abandon depends upon the intelligence he has received; his right therefore would seem to depend upon the same thing. He can act only upon what he knows; and where a capture as prize has actually taken place, giving him a right to abandon, if he exercises it while it appears to continue, a restitution should be considered as for the account of the insurer. But the insurer positively agrees to pay within thirty days after proof of loss. In case of capture as prize, the loss may be proved without difficulty; and although at the time of abandonment the restitution be made, still if there is no knowledge of it until thirty days thereafter, the stipulation binds the underwriter to pay. It seems to amount to an agreement to take the state of the party's information as the rule, where there has actually been a technical total loss, of which proof can be made.
Condy and Rawle for the defendants. The point is a very short one, whether after an order of restitution by the court of last resort, the assured may abandon. If the effect of an acquittal can be defeated by an appeal, as in the case of an acquittal by a subordinate tribunal, if any legal arrangement may supervene, before actual restoration, to continue the custody of the captor against the will of the captured, there may be good reason for arguing that the abandonment is in time. That was the case in Dutilh v. Gatliff, where the acquittal was in the vice-admiralty of New Providence, and the captors might at any time have entered an appeal to England, until actual redelivery. It does not appear indeed, that in that case there was a writ of restitution. But in the present instance, the acquittal and order of restitution were by the court of last resort, whose decree could not be impugned. The vessel in point of law was therefore restored. The custody of the captors was only until demand could be made by the captured. It was not against the will of the latter. The property was under his control, the instant he could claim to exercise authority over it, and what is this but restitution? The delay was attributable to the captain, not the captor. It lies upon the plaintiff to shew, that at least there was danger that the custody of the captors would continue notwithstanding the decree and order, as by a reconsideration of the sentence, or the like; for otherwise the court must presume there was none. The very case has been decided in Marshall v. The Delaware Insurance Company, [a] where the actual restoration of the vessel was made on the same day with the abandonment, but the restitution was ordered before.
The same case decides that the loss must continue total to the time of the...
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