Monroe v. British & Foreign Marine Ins. Co.

• Decision Date: 05 October 1892
• Docket Number: 8.,7
• Citation: 52 F. 777
• Parties: MONROE v. BRITISH & FOREIGN MARINE INS. CO., Limited. SAME v. UNION MARINE INS. CO., Limited.
• Court: U.S. Court of Appeals — First Circuit

52 F. 777

MONROE v. BRITISH & FOREIGN MARINE INS. CO., Limited.

SAME v. UNION MARINE INS. CO., Limited.

Nos. 7, 8.

United States Court of Appeals, First Circuit.

October 5, 1892

The property covered by the policies consisted of 264 cattle shipped on the steamship Missouri at Boston, and consigned to James Nelson & Son, Liverpool. The bills of lading also provided that, 'if animals are landed at Birkenhead consignee is to take delivery of them there. ' The contracts of insurance were alike, except that one was for $16,000 and the other $17,000. Plaintiff had a general blanket policy issued by each company through their agents in Boston, Endicott & Macomber, under which his shipments of cattle from time to time were insured. This was effected in each case by the issuance of a 'domestic certificate' in the following form:

'This is to certify that on the 18th day of February, 1886, this company insured, under and subject to the conditions of policy No. 10,550, for A. N. Monroe, for account of whom it may concern, sixteen thousand dollars, on 264 head of cattle valued at $33,000, per Str. Missouri, at and from Boston to Liverpool. Loss, if any, payable to the order of A. N. Monroe in funds current in the city of Boston, at the office of Endicott & Macomber, upon the surrender of this certificate.

(Signed) 'ENDICOTT & MACOMBER, Attorneys.

'Premium,-- .'

On the margin of each certificate was printed the following:

'Against absolute total loss of vessel and animals only, but this company to be liable for its proportion of the assured's assessment in general average levied upon all interests.'

The policies contained the so-called 'sue, labor, and rescue clause,' as follows:

'And in case of any loss or misfortune, it shall be lawful and necessary to and for the assured, factors, servants, and assigns, to sue, labor, and travel for, in and about the defense, safeguard, and recovery of the said goods and merchandises, or any part thereof, without prejudice to this insurance; nor shall the acts of the insured or insurers, in recovering, saving, and preserving the property insured, in case of disaster, be considered a waiver or an acceptance of abandonment.' Also the 'jettison clause,' in the following terms:

'In all cases of loss by jettison, the same shall be settled on the principles of general average only.'

Early on the morning of March 1, 1886, the ship went ashore on the Welsh coast at a place called Port Darfach, a few miles from Holyhead, and finally became a total wreck. In the attempts to get her off, many of the cattle were jettisoned by order of the master, some of which swam ashore or were towed ashore by salvors. Owing to injuries, it was necessary to butcher some of these, and only 108 were left. Soon after the vessel went ashore the Liverpool Salvage Association, an association of seven underwriters, of whom two were officers in the defendant companies, was requested by the underwriters to send an agent to the vessel 'either to take charge of the property, or to advise the master or owners, and to act in reference thereto as may be considered best for the interests of all concerned. ' It was also agreed 'that the association is to have an absolute lien upon all property saved and taken charge of by it, and its proceeds, for the amount to become due under this agreement, with power of sale for or towards their reimbursement. ' The agent of this association arrived early at the scene, and the cattle, when landed, were in his charge. The consignees, James Nelson & Sons, had sent one Thomas Colebourn to the wreck, and by an arrangement with the salvors' association the cattle were placed in his charge, and sent to Birkenhead, and thence to Liverpool, consigned by the association of salvors to James Nelson & Sons, who sold them, and accounted to the association for the proceeds, in whose possession they still remain. In all that was done by Nelson & Sons, they acted apparently as the consignees of the salvors, and not as the consignees of the plaintiff under the bills of lading.

Plaintiff testified as to certain interviews had by him with the Boston agents, Endicott & Macomber, immediately on learning of the wreck, tending to show that he verbally abandoned the property to the underwriters, and demanded his insurance, and that they made statements to the effect that the money would be paid, or that 'it would be all right.'

Thomas P. Proctor and Chas. Theo. Russell, Jr., for plaintiff in error.

The court ought not to order verdict for the defendant if plaintiff has offered any evidence to sustain the allegations in his declaration. Lamb v. Railroad, 7 Allen, 98; Todd v. Railroad, Id. 207; Witherby v. Sleeper, 101 Mass. 138. In these cases the order of the court was based upon the fact that there was not a scintilla of evidence, or that there were no facts in dispute. 'There does not seem to us to be even a scintilla of evidence to prove any act of delivery or acceptance. ' Denny v. Williams, 5 Allen, 1, 9. 'If the evidence is such that, though one or two verdicts rendered upon it would be set aside on motion, yet a second or third verdict would be suffered to stand, the cause should not be taken from the jury, but should be submitted to them under instruction. ' Id. 5.

The plaintiff contends that there was evidence for the jury of an absolute total loss of vessel and animals, within the meaning of the contract of insurance, and places his contention upon five grounds: First. The drowning or jettison of all the insured cattle took them, by peril insured against, out of plaintiff's possession or control, even if some of them were landed and sold by salvors. As there was no restitution, or offer of restitution, to plaintiff, the loss to him is absolute and total.

Second. There was evidence for the jury that the defendants, through their agents, so acted in taking, selling, and retaining the proceeds from the sale of the wrecked cattle that they thereby accepted the loss as total.

Third. There was evidence for the jury that the defendants, by their agents Endicott & Macomber, agreed to pay the loss in suit, in consideration of plaintiff's continuing his insurance upon other shipments of cattle, and defendants thereby waived all defense.

Fourth. There was evidence for the jury of an absolute total loss by the necessary sale of the wrecked and damaged cattle by and for the salvors.

Fifth. Under the contract of insurance the plaintiff can recover, upon his proof of notice of abandonment, a constructive total loss, if more than one half of the cattle were drowned.

(1) Three fifths of plaintiff's cattle were drowned in the ship. About two fifths were jettisoned to lighten ship, got ashore, and were taken and retained by salvors. The wreck ended the voyage and the contractual relation between vessel and cattle. The cattle ceased to be a consignment, and the remnant became merely salvage. The latter were either in the possession of the defendants' agents or of an independent salvor, with a paramount lien for the salvage service. The evidence is clearly to the effect that they were sent to Liverpool, not to complete the voyage under the bill of lading, but merely as salvage, to be disposed of for the salvage association, and they were sold by their agent for them. No freight was paid for the carriage of the cattle, and they were taken by the salvors and sent to their broker without delivery of any bill of lading. The cattle were merely flotsam and jetsam.

This, then, was evidence for the jury that there was an absolute total loss of the cattle to the plaintiff. The test is not annihilation, but deprivation. The defendants contracted that no peril of the sea or jettison should prevent the arrival of the ship in Liverpool, not as salvage covered with salvage lien, but as a consignment of use to and under the control of the plaintiff. If none of the cattle arrived at their destination, as property of the plaintiff, with the right of possession in him, they were as absolutely lost as though they sank with the ship in mid-ocean. The loss is total in the absence of proof not only of rescue, but of restoration, or offer of restoration, to the insured.

An absolute total loss is defined in the leading case of Roux v. Salvador, 3 Bing.N.C. 286, by Lord ABINGER: 'But if the goods were damaged by the perils of the sea, and necessarily landed before the termination of the voyage, and are by reason of that damage in such a state, though the species be not utterly destroyed, that they cannot with safety be reshipped; * * * if, though imperishable, they are in the hands of strangers, not under the control of the insured; if, by any circumstance over which he has no control, they can never, or within no assignable period, be brought to their original destination,-- in any of these cases the circumstance of their existing in specie at that forced termination of the risk is of no importance. The loss is in its nature total to him who has no means of recovering his goods, whether his inability arises from their annihilation or from any other insuperable obstacle.'

Mr. Parsons says: 'Goods are totally lost as to the insured when he has lost all possession of, or power or control of, them, although they may continue to exist in specie as before. It is this lost condition to the insured that is usually intended when total loss is spoken of. * * * Actual total loss occurs either if the thing insured is wholly destroyed as that thing, or if the property insured, while remaining in specie what it is, is wholly lost to the insured, which means that it is entirely out of his power or that of the insurer to recover the property.' 2 Pars.Ins.pp. 68, 74; 2 Arn.Ins.p. 952.

Says Mr. Phillips: 'A total loss of a subject of...