Chesapeake Insurance Company v. Stark, 10 U.S. 268 (1810)

U.S. Supreme Court

Chesapeake Insurance Company v. Stark, 10 U.S. 6 Cranch 268 268 (1810) Chesapeake Insurance Company v. Stark

10 U.S. (6 Cranch) 268

ERROR TO THE CIRCUIT COURT OF

THE DISTRICT OF MARYLAND

Syllabus

The agent who makes insurance for his principal has authority to abandon without a formal letter of attorney.

If the abandonment be legal, it puts the underwriters completely in the place of the assured, and the agent of the assured becomes the agent of the underwriters.

A special verdict is defective which does not find whether the abandonment was in reasonable time. What is reasonable time of abandonment is a question compounded of fact and law which must be found by a jury under the direction of the court.

The informality of a deed of cession is unimportant, because if the abandonment be unexceptionable, the property vests immediately in the underwriters, and the deed is not essential to the right of either party.

Error to the Circuit Court of the district of Maryland in an action of covenant upon a policy of insurance upon goods on board the ship Minerva from Philadelphia to Laguira and back to Philadelphia.

The cause was tried upon the issue of non infregit conventionem, and the jury found a special verdict stating the following facts:

On 5 March, 1807, Christian Dannenberg, as agent of the plaintiff, who was a citizen of Pennsylvania, shipped for Laguira, on account and at the sole risk of the plaintiff sundry goods, being American property and regularly documented as such, to the value of $8,700 and upwards, on board the ship Minerva, and consigned them to William Parker, supercargo on board. On 12 March she sailed with the goods from Philadelphia for Laguira.

On 21 March, Charles G. Boerstler, for the plaintiff, effected an insurance with the Chesapeake Insurance Company, who are citizens of the State of Maryland, upon the goods, to the amount of $8,700, by the policy mentioned in the declaration, which was executed under the common seal of the company.

On the outward voyage she was captured by a British privateer and carried into Curracoa. On 20 April, 1807, the captain made a protest. On 13

Page 10 U. S. 269

June, 1807, the ship and goods being still in possession of the captors at Curracoa and there detained by them, the said Charles G. Boerstler, "for the plaintiff," abandoned to the Chesapeake Insurance Company, the goods shipped by Dannenberg for the plaintiff, by a letter to the president and directors of the Chesapeake Insurance Company, the defendants, in the words and figures following:

"Baltimore, June 13, 1807"

"President and Directors of the Chesapeake Insurance Company"

"Gentlemen,"

"Having this morning received a letter from Mr. O. Dannenberg, of Philadelphia, the agent for Mr. John Philip Stark, of Hanover, ordering me to abandon the goods shipped by him for Mr. Stark's account on board the American ship Minerva, Captain Newcomb, carried into and detained at Curracoa on her voyage from Philadelphia to Laguira, whereby the object of the expedition is totally frustrated and destroyed, I herewith abandon to you the whole of Mr. Stark's interest in the cargo of the Minerva, which you have insured in your office."

"I have the honor to be, gentlemen, your most obedient servant,"

"Charles G. Boerstler"

Which abandonment the defendants then refused to accept.

W. Parker, the supercargo, addressed a memorial to the Governor of Curracoa on 19 June, 1810, in which he complains of the detention as being of the most ruinous consequences to the owners.

On 25 July, 1807, the vessel and cargo being still detained at Curracoa in the possession of the captors, Parker entered into an agreement with I. F. Burke, the owner of the privateer, by which a certain

Page 10 U. S. 270

part of the goods should be appraised and the price paid by Parker, to be repaid by Burke in case the goods should not be adjudged good prize, and that a certain other part should be kept by Burke upon his engaging to pay the value thereof in the like case. In consequence of which agreement the vessel was liberated and proceeded to Laguira, where the goods were sold, and produced about $5,900.

Parker employed an agent to attend the trial at Tortola and to claim the goods for the plaintiff, but a trial was never had, nor any proceedings instituted for the purpose of obtaining an adjudication,

On 22 August, 1807, Dannenberg, as agent of the plaintiff, executed a deed to the Chesapeake Insurance Company transferring to them all his right and title to the goods as attorney of the plaintiff, which deed they refused to receive.

Page 10 U. S. 272

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as follows:

On the principal question in this case the Court can entertain no doubt. On the capture of the Minerva, the right to abandon was complete, and this right was exercised during her detention.

The objections to the form of the abandonment are not deemed substantial. The agent who made the insurance might certainly be credited, and, in transactions of this kind, always is credited, when he declares that, by the order of his principal, he abandons to the underwriters. In this case, the jury find that the abandonment was made for the plaintiff, and this finding establishes that fact.

The informality of the deed of cession is thought unimportant because, if the abandonment was unexceptionable, the property vested immediately in the underwriters and the deed was not essential to the right of either party. Had it been demanded and refused, that circumstance might have altered the law of the case.

If the abandonment was legal, it put the underwriters completely in the place of the assured, and Parker became their agent. When he contracts on behalf of the owners of the goods, he contracts on behalf of the underwriters, who have become owners, not on behalf of Stark, who has ceased to be one. His act is no longer the act of Stark, and is not to be considered as an interference on his part which may affect the abandonment. If any particular instructions had been given on this subject, if any act of ownership had been exerted by Stark himself, such conduct might be construed into a relinquishment of an abandonment which had not been accepted; but as nothing of the kind exists, the act of the supercargo is to be considered as the act of the persons interested, whoever they may be.

Page 10 U. S. 273

The only point which presents any difficulty in the opinion of the Court is the objection founded on the omission in the verdict to find that the abandonment was made in reasonable time.

The law is settled that an abandonment, to be effectual, must be made in reasonable time, but what time is reasonable is a question compounded of fact and law which has not yet been reduced to such certainty as to enable the court to pronounce upon it without the aid of a jury. Certainly the delay may be so great as to enable every man to declare without hesitation that it is unreasonable, or the abandonment may be so immediate that all will admit it to have been made in reasonable time; but there may be such a medium between these extremes as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide, then the law would determine, to a day or an hour, on the time left for deliberation after receiving notice of the loss. But the law has not so determined, and it therefore remains a question compounded of fact and law, which must be found by a jury under the direction of the court.

In this case, the jury has found an abandonment, but has not found whether it was made in due time or otherwise. The fact is therefore found defectively, and for that reason a venire facias de novo must be awarded.

It may not be amiss to remark that the judicial opinions which we generally find in the books on these subjects are usually given by way of instruction to the jury or on a motion for a new trial, not on special verdicts. The distinction between the cases deserves consideration.

Judgment reversed and the cause remanded with direction to award a venire facias de novo.