The New England Insurance Company v. the Brig Sarah Ann, Woodbury and Others, Claimants

• Decision Date: 01 January 1839
• Citation: 13 Pet. 387,10 L.Ed. 213,38 U.S. 387
• Parties: THE NEW ENGLAND INSURANCE COMPANY, v. THE BRIG SARAH ANN, WOODBURY AND OTHERS, CLAIMANTS
• Court: U.S. Supreme Court

38 U.S. 387

13 Pet. 387

10 L.Ed. 213

THE NEW ENGLAND INSURANCE COMPANY, v. THE BRIG SARAH ANN, WOODBURY AND OTHERS, CLAIMANTS.

January Term, 1839

APPEAL from the Circuit Court of the United States for the district of Massachusetts.

In September, 1834, in the District Court of the United States for the district of Massachusetts, the New England Insurance Company filed a libel stating that they were the true owners of the brig Sarah Ann, then in the district of Massachusetts, and in the possession of Obadiah Woodbury and others, claiming to be the owners of the said brig, and who are about to carry her to sea without the consent of the libellants.

A summons was issued to Obadiah Woodbury and others, commanding them to appear and show cause why process should not issue against the brig, as prayed for in the libel; and they appeared, and gave stipulations to abide by the final decree of the Court, on an appeal, and put in an answer to the libel.

The case was proceeded in by the libellants, and the respondents in the District Court, and after testimony had been taken to the matters in controversy, a pro forma decree for the respondents, dismissing the libel, was given by the district judge, by the consent of the counsel of both parties; and the libellants appealed to the Circuit Court of the United States, for the district of Massachusetts.

Further evidence was taken in the Circuit Court by the appellants, and the defendants; and at May term, 1835, the Circuit Court gave a decree in favour of the defendants; from which the New England Insurance Company prosecuted this appeal.

The facts of the case were as follow:

On the first day of March, 1828, the appellants, at Boston, underwrote a policy of insurance on the brig Sarah Ann, valued at four thousand dollars, in port, and at sea, during the term of one year, from the 22d of February, 1828. On the 25th of March, 1828, the brig was stranded on the shore of the Island of Nantucket, and on the following day an abandonment was made by the owners for a total loss by the perils of the sea. The abandonment was expressly refused by the assurers, but it was not withdrawn by the owners of the vessel; and on the third of October, 1828, a compromise was made between them and the assurers, and all the right and title of the assurers in the brig was assigned to the appellants. The claimants of the brig, the appellees, asserted a title derived under a sale made by the master after the stranding, on the ground of an absolute necessity for such a sale.

In May, 1828, the brig was brought into Boston, after having been gotten off from the shore at Nantucket, and having been repaired. The repairs of the brig, and her cost at the sale made by the master, amounted to twenty-four hundred and ninety-four dollars and sixty-seven cents; and she was sold in Boston, in July, 1828, for $2736 41. On the 14th of May, 1828, the president of the Insurance Company, wrote to the agent of the former owners of the brig, the assured, stating that the brig was then in Boston, and saying, 'As she is now within your own control, as agent for the owners, if you do not take possession of her in their behalf, the Company must consider the sale of her at Nantucket, as affirmed by them; and that she is sold for their account. We of course shall contest the validity of the sale as it regards ourselves, and we think the owners ought to contest it themselves.'

At this time the title to the brig was in contest between the assured, and the assurers. The abandonment was denied to be good; and neither party was in a situation to assert a title without compromitting rights then actually in contestation. There were no allegations or proofs in the cause that after the final acceptance of the abandonment, in October, 1828, the brig had been within the ports of Massachusetts, and within the reach of the process of the Court for a reasonable time, within the knowledge of the appellants.

The facts of the case, as stated in the protest, and as detailed in the decree of Mr. Justice Story, in the Circuit Court, 2 Sumner, 213, were: 'The brig having on board a cargo of rice and cotton, sailed on a voyage from Savannah for Boston, and on the 23d of March, 1828, was stranded on the south-west side of the island of Nantucket. On the next day assistance was obtained from the shore, and the anchors were got out and hove tight, in order to start the vessel, but without success. In the course of the forenoon the wreck master came on board, with twenty men, and pursuant to his directions, the deck load was thrown overboard. They then hove the cables again, but with no beneficial effect. They then proceeded to open the hatches and discharge the cargo from the hold; and then hove out the cables again, but to no purpose, as the tide had fallen, and there was a considerable surf rolling in shore.

The captain and crew remained on board that night, and the day following nothing could be done, as the wind blew strong at the south-east, and there was a heavy surf. After the weather moderated, the cargo was, with great difficulty, got on shore. The protest stated, that the wind and the surf of the sea had driven the brig so far on shore as to render it impossible to get her off.

It further appeared from the evidence, that the place where the brig was stranded was on a sandy beach, about twelve miles distant by sea, and six miles by land, from the town of Nantucket; and that the brig was at no time high and dry there. The depth of the water about her varied; sometimes it was six feet, and sometimes it was ten feet; and she was at no time of tide out of water. The cargo was discharged in about five days; and the spars, sails, and rigging were then stripped off, and carried on shore, and sold in small lots to the highest bidder. After the cargo was sold, the brig became loose in the sand, and slewed round, and lay with her broadside to the shore. She was sold on the 28th of March, by the master, at public auction, where she lay, for $127; at the same time the spars, sails, and rigging were sold, for $422 40. No efforts appeared to have been made to get the brig off the shore, though she had not then sustained any serious injury. Three intelligent surveyors, at a subsequent period, estimated the repairs of her hull, as not exceeding $492 25. The brig was got off by the purchasers soon after the sale; and was carried to the port of Nantucket, and there repaired. The whole cost of the brig to the purchasers including the repairs, and outfits to Boston, was represented to have been, $2494 67; and she was sold under the order of the purchasers, as stated, at Boston, in July, 1828, for $2736 41.'

The case was submitted to the Court, on printed arguments, by Mr. Pickering for the appellants; and by Mr. Saltonstall, for the appellees.

The argument for the appellants stated;

The appellants contend that this case was not such as to require or justify a sale of the vessel by the master, upon the alleged ground of necessity, as the owners' agent and the underwriters were in Boston, and there was an easy and regular communication by mail between Boston and the island of Nantucket where the vessel was ashore; and they might and ought to have been consulted by the master before making such sale.

In cases resting upon the same principles, for example, hypothecation by the master in cases of necessity, the rule laid down by the English Courts is, that the master can hypothecate only when the vessel is in some other place than an English port. No English case, it is believed, can be found, in which the master has been authorized to do it while in England; the English writers consider that every port in England is a home port, and the residence of the English owner.

The learned author, Abbott on Shipping, 123, adds that Ireland has been held to be a foreign country; but that since the Union it is doubtful whether the rule is not altered. See also the case of the Lavinia, Barclay, before Mr. Justice Washington, 1 Wash. C. C. R. 49. So in cases of the lien of material men the Courts of the United States have held, that when a vessel was repaired in a port of a state to which she did not belong, there was a lien by the general marine law; but if the repairs were made in her own state, there was no lien, unless established by the local laws of such state. The General Smith, 4 Wheat. 438. 4 Peters' Cond. Rep. 439.

As to the necessity of the sale, generally, it is a prominent fact that the vessel was got off very soon after she was sold on the sandy shore, which was a smooth beach without any rocks, and she was immediately repaired and fitted for sea again.

The brig Pearl, 2 Sumner's Rep. 217, to which the Circuit Court alludes in giving the opinion of the case at the bar, was stranded nearly in the same place with the Sarah Ann, and lay there through the winter, and was got off in the following spring. Several other vessels which went ashore on the same island have been got off, as appears by the depositions in the case.

In the case of Gordon vs. Massachusetts Fire and Marine Insurance Company, 2 Pick. Rep. 249, the vessel belonged to Portland, Maine, and was stranded in St. Domingo, and the sale was held justifiable. In Idle vs. Royal Exchange Insurance Company, 8 Taunton, 755, (cited in the Massachusetts case just referred to,) a ship from London took the ground in the river St. Lawrence, below Quebec: but in this case, it is to be noticed that two of the owners resided in Quebec, and the sale was considered to be sanctioned by them; which distinguishes it from the ordinary case of sales by the master upon his own authority alone. In Hayman vs. Molton, 5 Esp. Rep. 65, the vessel went from London to Jamaica, where she got aground. In Read vs. Bonhom, 3 Brod. and Bing. 147, a London ship was lost in the East Indies.

The case of Thorneley vs. Hebson, 2 Barn. and Ald. 513, was that of a New York vessel insured in London, and, while on her...