Marcardier v. the Chesapeake Insurance Company

• Citation: 3 L.Ed. 481,12 U.S. 39,8 Cranch 39
• Parties: MARCARDIER v. THE CHESAPEAKE INSURANCE COMPANY
• Decision Date: 17 February 1814
• Court: United States Supreme Court

12 U.S. 39

8 Cranch 39

3 L.Ed. 481

MARCARDIER v. THE CHESAPEAKE INSURANCE COMPANY.

Feb. 17, 1814

ERROR to the Circuit Court for the district of Maryland.

The facts of this case were thus stated by STORY, J. in delivering the opinion of the Court.

This is an action on a policy of insurance, underwritten by the Defendants, on the 29th of October, 1806, for $31,000, upon any kind of lawful goods on board the brig Betsey, whereof Alexander M'Dougal was then

master, on a voyage at and from New York to Nantes. M'Dougal was the general owner of the brig, and, on the 1st day of October, 1806, by a charter-party of affreightment made with the Plaintiff, granted, and to freight let, to the Plaintiff, the said brig, excepting and reserving her cabin for the use of the master and mate and for accommodation of passengers, as therein mentioned, and so much room in the hold as might be necessary for the mariners, and storage of water, wood, provisions, and cables, for the voyage from New York to Nantes; and M'Dougal, by the same instrument covenanted to man, victual, and navigate the brig at his own charge during the voyage, and to receive on board any shipment of goods, not contraband, which the Plaintiff should tender at the side of the ship, or within reach of her tackles, at New York, and to stow and secure the same, and proceed therewith to Nantes, and there discharge the same. The passengers on board the brig were to be at the joint expense of the parties, and the passage money was to be equally divided between them. The other clauses in the charter party are not material to be stated, except that the Plaintiff covenanted to pay the stipulated freight and demurrage. The cargo, put on board by the Plaintiff, was of the invoice value of $29,889, of which $7,439 were in memorandum articles. The brig sailed on the voyage, under the command of M'Dougal, on the 9th of November, 1806, and during the voyage was compelled by stress of weather, and other accidents, to bear away for the West Indies, and arrived at the port of St. Johns, in Antigua, on the 22d day of December. There the master made application to the vice admiralty for a survey, &c. and such proceedings were had upon his application, that the cargo was landed, and by a decretal order of the Court, of the 31st of January, 1807, the same was ordered to be sold for the benefit of all concerned, reserving the question as to freight. Under this decree, the cargo was accordingly sold, and the sales completed before the 28th of March, 1807; and the nett proceeds of the whole of the Plaintiff's property amounted to $13,767. The nett proceeds of the memorandum articles, included in the same sum, were $6,863.30. The whole proceeds were paid over to an agent appointed by M'Dougal, and the freight for the whole voyage was allowed him by the admiralty, upon a report of commissioners, to whom the question was referred. The brig was repaired at Antigua, within a reasonable time, at the expense of one sixth only of her value, and capable of performing the voyage with the original cargo; but M'Dougal voluntarily abandoned the voyage at Antigua, for his own emolument and advantage. Of the cargo, 99 bags of coffee were spoilod and thrown overboard, and the residue greatly damaged by the perils of the seas; and the whole cargo, including the memorandum articles, sustained a damage, during the voyage, exceeding a moiety of its original value. On the 4th of Feb. 1807, and within a reasonable time after receiving information of the loss, the Plaintiff abandoned the whole cargo to the underwriters.

The declaration contained two counts, for a total loss; 1st. by the perils of the seas, and 2d, by barratry of the master. At the trial, the Court below, upon the facts and circumstances above stated, held that the Plaintiff was not entitled to recover, as for a total loss of the cargo insured, including the memorandum articles; and the cause came up to this Court, upon a bill of exceptions to that opinion.

HARPER, for the Plaintiff.

The great controversy between the parties in this case, turns on the question, whether the loss of the cargo now under consideration, was partial or total. It is contended, on the part of the Plaintiff, that it was a total loss.

1st. By the dangers of the seas.

2d. By the barratry of the master.

By the dangers of the seas——

1st. Because the voyage was broken up and lost by the deterioration of the cargo, to more than half of its value.

2d. Because there may be a total loss of memorandum articles, by the loss of the voyage; although the articles themselves remain in existence, and of some value.

By the barratry of the master——

1st. Because the acts imputed to him, amount to barratry, if he were in a situation to commit it.

2d. Because by the charter-party, the Plaintiff became owner pro hac vice, and M'Dougal merely master, so as to be in a situation to commit barratry.

The question to be first considered, may be stated as follows:

Whether, in case a cargo consists partly of memorandum articles, (on which no partial loss can be recovered,) a total loss is incurred by the breaking up of the voyage on account of such a deterioration of the whole cargo, (including a deterioration of the memorandum articles,) as reduces the value of the whole cargo more than one half.

We hold the affirmative of the question.

But there are two cases which have been considered as very strong in favor of the negative. These are,

1st. The case of Wilson & another v. Smith, 3. Burr. 1550, cited also in Marsh. (1st Am. ed.) 141. This was of a ship with a cargo of corn, which, having met with a storm, was obliged to run for the nearest port to refit, where she incurred a considerable expense in repairs. On her arrival at her port of destination, it was found that the corn was damaged to more than half its value. Lord Mansfield decided, that this loss, not being of the nature of a general average, nor arising from the the ship's being stranded, could not be recovered on the policy; for that the words of the memorandum, 'free from average, unless general, or the ship be stranded,' did not make a condition, but only an exception.

The answer to this case is, that the vessel had arrived at the place of destination; the voyage therefore was not broken up, and so no total loss could be claimed on the ground, that the cargo was deteriorated more than half its value 2d. The other case, and that which is chiefly relied upon by the Defendants, is the case of Cocking v. Fraser—Marsh. (1st Am. ed.) 144.

Here the voyage was broken up; and it was decided by lord Mansfield, and the other justices who sat in the cause, one of whom was Mr. Justice Buller, that if the articles for which the insurer is warranted to be free from average, except general, specifically remain after the voyage, though by sea damage they are rendered of no value, yet, if the ship has not been stranded, this is only a partial loss, for which the insurer is not liable.

The authority of this case, it must be confessed, would go far to prevent the present Plaintiff from recovering as for a total loss, were it not for the observations made upon it by lord Kenyon, in the case of Burnett v. Kensington, 7. T. R. 210.—Also Marsh. (1st. Am. ed.) 151. The opinion of the Court in that case tends very much to invalidate its authority.

The principle of Cocking v. Fraser, is also overruled in the case of M'Andrews v. Vaughan, Marsh. (1st. Am. ed.) 150—and Park, 114, which goes to show that, where a cargo consists of memorandum articles, if the voyage be lost, the insured may recover as for a total loss, though the cargo be not wholly destroyed. And there is, in fact, the same reason that the breaking up of a voyage, in case of memorandum articles, should constitute a total loss, as where the cargo consists of articles not mentioned in the memorandum. The general doctrine now is, with regard to both descriptions of goods, that there may be a total loss by the breaking up of the voyage.

Dyson v. Rowcroft, 3. Bos. & Pul. 474, is another case against the principle laid down in Cocking v. Fraser. The opinion of the Court here, was, that it is a total loss of memorandum articles, although they may remain in specie, if they become so much damaged as to be no longer worth carrying to the port of destination.

The next question is, whether there was a total loss by the barratry of the master; and this must be decided by ascertaining who was the owner of the vassel for the voyage; for it is agreed on all hands, that if the master was in a situation to commit barratry, he was actually guilty of that offence.

A person may be owner for the voyage, who is not the general owner of the ship; and barratry may be committed against such person by, the master, although the barratrous act of the master may have been done with the consent of the actual general owner. Cowp. 143, Vallego v. Wheeler. See 143, Vallejo v. Wheeler. See (1st. Am. ed.) 454.

In the case now before the Court, Marcardier, the Plaintiff, was owner of the vessel pro hac vice, although M'Dougal, the master, was the general owner. We contend therefore, that, according to the principles land down in the case last cited, the master was in a situation to commit barratry against the Plaintiff that he has actually done so—and therefore that the Plaintiff is intitled to recover as for a total loss.

PINKNEY, contra.

It has been contended for the Plaintiff, that there may be a total loss by the breaking up of a voyage, if the goods on board be deteriorated more than half. No English authority, to this effect, is recollected. The Courts in New York have so decided, it is true; but the principle may be considered as arbitrary, and the decision as local.

According to MARSHALL, (Eng. ed.) vol 2, p. 486, if the goods insured specifically remain, and are actually landed at the port of delivery, however damaged in the voyage, the injury will amount but to a partial loss. Why,...