Action on a policy of insurance on the brig
Hope, from
Alexandria to Barbadoes and back to the United States. On the
outward voyage, the
Hope put into Hampton Roads for a
harbor during an approaching storm, and was driven on shore above
high water mark. A survey was held, and she was recommended to be
sold for the benefit of all concerned. The assured abandoned, and
there was no pretense but that the injury which the vessel had
sustained justified the abandonment. The question in the case was
whether, by the acts of the assured, the abandonment had not been
revoked.
There can be no doubt but that the revocation of an abandonment
before accepted by the, underwriters maybe inferred from the
conduct of the assured if his acts and interference with the use
and management of the subject be such as satisfactorily to show
that he intended to act as owner, and not for the benefit of the
underwriters. But this is always a question of intention to be
collected from the circumstances of the case, and belongs to the
jury as matter of fact, and is not to be decided by the court as
matter of law.
In the case of
Chesapeake Insurance
Company v. Stark, 6 Cranch 272, this Court lays
down the general rule that if an abandonment be legally made, it
puts the underwriter completely in the place of the assured, and
the agent of the latter becomes the agent of the former, and that
the acts of the agent interfering with the subject insured will not
affect the abandonment. But the Court takes a distinction between
the acts of an agent and the acts of the assured. That in the
latter case, any acts of ownership by the owner himself might be
construed into a relinquishment of the abandonment which had not
been accepted.
But the Court in that case did not say, and we think did not
mean to be considered as intimating, that every such act of
ownership must necessarily and under all possible circumstances be
construed into a relinquishment of an abandonment. The practical
operation of so broad a rule would be extremely injurious.
This was an action on the case brought by Ashby & Stribling
against the Columbian Insurance Company of Alexandria on a policy
of insurance on the brig
Hope on a voyage from Alexandria
to and at Barbadoes and back to the United States, the vessel
valued at $3,000, and the sum insured being $1,000. The loss was
stated to be
"that while the vessel was proceeding on her voyage and before
her arrival at Barbadoes, she was,
Page 29 U. S. 140
by storm and peril of the sea, sunk and wholly lost to the
plaintiffs, and did not arrive at Barbadoes."
The declaration also avers that the plaintiffs did in due time
and form abandon the vessel to the defendants.
The facts of the case are fully stated in the opinion of the
Court, and the only question before the Court was whether, on the
evidence laid before the jury, it was competent for the jury to
infer and it ought to infer that Stribling, one of the assured, for
himself and his partner, Ashby, had revoked the abandonment made,
as stated, to the insurance company.
Mr. Jones, for the plaintiffs in error, contended that the
conduct of Mr. Stribling was a revocation of the abandonment. The
persons on board a vessel which may be wrecked are the agents of
the assured and the owners, but this does not exclude the insurers
from interfering and if they think proper from taking charge of the
property, and if the party insured comes in and resists the
authority of the assurers, he resumes the title to the property,
and the assurers are discharged. Cited,
Chesapeake
Insurance Company v. Stark, 6 Cranch 268.
In this case, the agent of the insurance company was at the
place where the vessel was wrecked and was ready to do everything
for the safety of the property and to get it off. This was
prevented by the sale made by the directions of the assured and
against the wish of their agent.
If the owner or master of a vessel does acts wholly inconsistent
with the rights of the assured, it is a waiver of the abandonment.
2 Marsh. on Insurance 614 and cases there cited.
Page 29 U. S. 141
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This is an action upon a policy of insurance bearing date 28
May, 1825, on the brig
Hope on a voyage from Alexandria to
Barbadoes and back to a port in the United States. The vessel is
valued at $3,000, and the sum insured is $1,000.
The loss as alleged in the declaration is that the vessel,
whilst proceeding on her voyage and before her arrival at
Barbadoes, was by storm and peril of the seas sunk and wholly lost
to the plaintiffs. The whole evidence is spread out upon the
record, and upon which the defendants' counsel prayed the court to
instruct the jury that it was competent for it to infer and that it
ought to infer from the evidence that the plaintiffs had revoked
the abandonment which they had made to the defendants, which
instruction the court refused to give, and a bill of exceptions was
duly taken to such refusal. And whether the court erred in refusing
to give the instruction prayed is the only question is the
case.
Page 29 U. S. 142
From the evidence, it appears that captain Brown, the master of
the vessel, put into Hampton Roads for the purpose of making a
harbor and securing his vessel from an approaching storm, which,
from the appearance of the weather, threatened to be very severe.
And on 5 June, by the violence of the storm, the brig was driven on
shore above high water mark near Crany Island. On the next day, a
survey was held upon her and the surveyors, after examining her
situation and the injury she had received, recommended her to be
sold for the benefit of all concerned. And on 14 June, Stribling,
one of the owners, being at Norfolk, sent a letter of abandonment
to the defendants, which was received by them on 17 June. There was
no pretense but that the injury which the vessel had sustained
justified the abandonment. But the question was whether such
abandonment had not been revoked, and the circumstances relied upon
to show such revocation were that James Sanderson, the secretary of
the Columbian Insurance Company, arrived at Norfolk on the evening
of 16 June, being before the letter of abandonment was received by
the defendants, and on the same evening offered to Stribling, one
of the plaintiffs, to supply the money necessary to get the vessel
off. And two days afterwards he made the same offer to James D.
Thorborn, the agent of the plaintiffs, stating that he had come to
Norfolk at the request of the defendants and to take such measures
as he might think advisable for their interest, and to give every
aid to the owners of the brig, and he forbade Thorborn and
Stribling from proceeding in the sale, which was then about to take
place according to an advertisement which had been previously
published in the Norfolk papers. But Stribling, on consultation
with Thorborn, directed the sale to be continued. The refusal of
Stribling to accept the offer of Sanderson to supply the money
necessary to get the vessel off, and proceeding in the sale after
being forbidden by Sanderson, are the acts alleged to have
constituted a revocation of the abandonment.
The instruction prayed for to the jury ought not in its full
extent to have been given unless the evidence was such as
Page 29 U. S. 143
in judgment of law amounted to a revocation of the abandonment.
If the court had only been requested to instruct the jury that it
might from the evidence infer a revocation the prayer would not
have been so objectionable. But a positive direction that it ought
to infer such revocation would have been going beyond what could
have been required of the court under the evidence in the cause.
There can be no doubt but that the revocation of an abandonment
before accepted by the underwriters may be inferred from the
conduct of the assured if his acts and interference with the use
and management of the subject insured be such as satisfactorily to
show that he intended to act as owner, and not for the benefit of
the underwriters. But this is always a question of intention to be
collected from the circumstances of the case, and belongs to the
jury as matter of fact, and is not to be decided by the court as
matter of law. We do not, however, in the present case see any
evidence which would have fairly warranted the jury in finding that
the abandonment had been revoked. The injury was such as to
occasion almost an actual total loss of the vessel, and there could
have been no possible inducement for the assured to revoke the
abandonment. There is no evidence to justify the conclusion that
Stribling was acting for his own benefit, and not for that of the
underwriters. The assured, by operation of law, became, after the
abandonment, the agent of the underwriters, and was bound to use
his utmost endeavors to rescue from destruction as much of the
property as he could, so as to lighten the burden which was to fall
on the underwriters. The assured had received no information from
the underwriters, whether they accepted or refused the abandonment.
Nor did Sanderson, who professed to act as their agent, communicate
any information to Stribling on that subject, and it would seem
from the testimony of Thorborn that the conduct of Sanderson was
calculated to cast some suspicion upon his motives. He says
"He then thought and still thinks the course pursued by him must
have been designed to perplex and embarrass the persons who were
engaged in the management of the affairs of the vessel, since his
letter was not delivered until the sale had
Page 29 U. S. 144
commenced, and no authority was shown by him from the defendants
to make arrangements for getting the vessel off or to defray the
expense that had already been incurred on her account."
Although Stribling knew Sanderson, as Secretary of the Columbian
Insurance Company, he could not hereby know that he was clothed
with authority to bind the company by whatever arrangement he
should make. His authority as secretary did not clothe him with any
such power. It is true Stribling did not demand of him to show his
authority from the company, and this might be considered as open to
the conclusion that such authority was admitted, but all this was
matter for the consideration of the jury, and the court could not
assume that he was or was not authorized to bind the
underwriters.
In the case of
Chesapeake Insurance
Company v. Stark, 6 Cranch 272, this Court lays
down the general rule that if an abandonment be legally made, it
puts the underwriter completely in the place of the assured, and
the agent of the latter becomes the agent of the former, and that
the acts of the agent interfering with the subject insured will not
affect the abandonment. But the Court takes a distinction between
the acts of an agent and the acts of the assured; that in the
latter case, any acts of ownership by the owner himself might be
construed into a relinquishment of an abandonment which had not
been accepted.
The Court in that case did not say, and we think did not mean to
be understood as intimating, that every such act of ownership must
necessarily and under all possible circumstances be construed into
a relinquishment of an abandonment. The practical operation of so
broad a rule would be extremely injurious.
It would deter owners from interfering at all for the
preservation of the subject insured and leave it to perish for fear
of prejudicing their rights under the abandonment. All such acts
must be judged of from the circumstances of each case. The
quo
animo is the criterion by which they are to be tested.
If in this case Stribling, the owner, had become the purchaser
of the brig and had got her off and fitted her up, it
Page 29 U. S. 145
would have afforded very strong if not conclusive evidence of a
relinquishment of the abandonment. But such was not the fact, and
whatever he did appears to have been done in good faith and with a
view to the preservation of the property. But this case is very
distinguishable from that of
Chesapeake Insurance Company v.
Stark. There, the underwriters had refused to accept the
abandonment, and the Court applied the rule to that case. In such a
case, the assured is at liberty to revoke the abandonment. But here
the owner did not know whether the underwriters would refuse or
accept the abandonment. No answer had been received to the letter
of abandonment, and the assured was left in uncertainty as to his
right of revocation. We think, therefore, that there was no act of
ownership exercised by Stribling which the law would pronounce a
revocation of the abandonment or which called upon the court below
to instruct the jury that they ought to infer a revocation from any
such acts.
The other circumstance relied upon is that Sanderson, who
professed to act as the agent of the underwriters, offered to
supply the money necessary to get the vessel off and put her in a
situation to pursue the voyage.
What effect this offer would have had upon the right of the
assured to abandon until the experiment to get off the vessel had
been tried, provided such offer had been unconditional and made
before the abandonment, either by the underwriters themselves or by
an agent fully authorized for that purpose, is a question upon
which we give no opinion; the case does not require it. The
authorities on this point do not appear to be in perfect harmony. 6
Mass. 484; 5 Serg. & R. 509; 3 Mason 27; 2 Term 407; 2
Wash.C.C. 347.
The present case, however, is not accompanied with these
circumstances. The abandonment here had actually been made before
the offer to pay the expenses of getting off the vessel, and no
answer from the underwriters had been received, nor did Sanderson
undertake to decide that question for them. Although he professed
to act as the agent of the underwriters, he showed no authority for
that purpose, and
Page 29 U. S. 146
one of the witnesses swears that he thought the course pursued
by him was designed to perplex the proceedings in relation to the
vessel, and his letter to Thorburn making the offer of the money
has this condition: "I reserve to the company all right of defense
in case they should not be liable for any part of the expenses
attending the business."
Under such circumstances, it is very clear the assured could not
be required to waive an abandonment, which from anything that he
knew might at that time have been accepted, in a case too where
there was a clear and undeniable right to abandon.
The court below did not therefore err in refusing to instruct
the jury, that they ought to infer from the evidence that the
abandonment had been revoked. The judgment must be
Affirmed.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Columbia holden in and for the County of Alexandria and was argued
by counsel, on consideration whereof it is ordered and adjudged by
this Court that the judgment of the said circuit court in this
cause be and the same is hereby affirmed with costs and damages at
the rate of six percentum per annum.
