COVENANT on an open policy, for 10,000 dollars, at a premium of
10 per cent. upon goods on board the ship Hibberts, on a voyage at
and from the Havanna to New-York. The case was this: the ship
Hibberts and her cargo, the property of British subjects, were
captured by a French privateer, and carried into the Havanna. They
were there claimed by Mr. C. Frazier, (an English merchant) on the
recommendation of captain Vansittart, commanding a British frigate,
for the British owners, and an order for restitution was granted by
the Spanish government, on security being given, for the appraised
value, (to wit, the ship 9655 dollars, and the cargo 22, 400
dollars,) to abide the issue of an appeal, made by the captor, from
the order of restitution. The captain had been removed at sea, at
the time of the capture, and sent to the United States; but the
first and second mates, who went in the ship to the Havanna,
offered the security; which was given, at their instance, by Mr.
Felix Crucet (a Spaniard, constituted their attorney) and the ship
and cargo were thereupon delivered to him, on account of the
original owners; but accompanied by a written declaration from Mr.
Frazier, 'that ship and cargo were subject to Crucet's orders until
the shall be finally indemnified, for his disbursements for costs
of suit, outfits, commissions, &c. and be released from his
security.' Crucet having determined to send the ship and cargo to
the United States, wrote two letters, dated, respectively, the 7th
and 23d of July 1804, to his correspondent, Henry Hill, at
New-York, in which, after representing the facts above stated, and
ordering insurance, he proceeds in these words: 'In my letter of
the 7th inst. ordering insurance on the ship Hibberts and cargo, I
stated fully the footing on which she was derivered to me, by the
governor and auditor of war, on security and mortgage; and she now
proceeds to your address, with all the papers then mentioned on
board, besides the invoice, and bill of lading of the cargo. From
what are herewith inclosed, you will observe, that the mortgage and
security have been given for 22,410 dollars, value of the cargo,
and 9655 dollars, value of the ship Hibberts, to hold that amount
of stock, being 32,065 dollars, subject to the order of the court
here, until the appeal, entered to the supreme council of war in
Madrid, shall be decided. You will also observe, that my account of
advances for law costs, repairs, sails, rigging, provisions,
advance wages, &c. for the ship, in this port, amounts to 6444
dollars 1 3/4 cents; my commission of guarantee, on giving the
security and mortgage, 5 per cent, on 32,065 dollars, is 1653
dollars 1 cent; and my commission for agency and trouble, 2 1/2 per
cent, 826 dollars 4 cents, makes total 8923 dollars 7 3/4
Page 4 U.S.
421, 422
cents, and that the last mentioned sum of 8923 dollars 7 3/4
cents, must be paid to me here, and I must be entirely freed and
released in this city, for the security and mortgage I have given
for the ship and cargo, before giving up any part of the proceeds
thereof. I have wrote to the concerned in England, apprizing them
of these circumstances, and that I shall give them due advice, from
time to time, of the progress of the appeal. You will, I hope,
exert yourself to dispose of the ship and cargo to the best
advantage, for the benefit of the concerned, sending the account
sales to me here, as soon as convenient, in order to be transmitted
to them in England.'
The letter of instructions from Crucet to the captain of the
Hibberts, directed him 'to proceed direct to New-York, and there
deliver the letters, and other papers, to Mr. Henry Hill, jun.;
and, in his absence, to Mr. Samuel Russel, merchant there, to whom
the cargo is consigned. These gentlemen will, also, take charge of
the ship in New-York, and will furnish you with money to pay off
the officers and crew; and will pay you any balance that may be due
to yourself.' And the invoice was headed, 'Invoice of the cargo on
board the ship Hibberts, of London, John Haines, master, bound for
New York, and consigned to Mr. Henry Hill, jun. merchant there, by
Felix Crucet, on account and risque of the owners, underwriters, or
others in England, or those who may be concerned in said ship and
cargo.'
On the 13th of August 1804, I. S. Waln, for Samuel Russel, (the
consignee appointed by Crucet, in case of Hill's absence) effected
the insurance, which is the ground of the present action. The ship
sailed on the voyage insured; but was captured by the Leander off
Sandy Hook, on the 16th of August 1804, and sent to Halifax, where
she arrived on the 31st of August: The vessel and cargo were there
libelled in the court of vice- admiralty as prize, and claimed by
the captain for Crucet: but by the decree of the court, pronounced
on the 10th of October, the claim was rejected, and the judge
'pronounced the ship and cargo to be the property of British
subjects, re-captured by his majesty's ship of war Leander, and
decreed the said ship and her cargo to be restored to the original
British owners, on payment to the re-captors of one-eighth part of
the value thereof, and the claimant to pay costs.' [
Footnote 1] From this decree the claimant
appealed; but the vessel and cargo were delivered, on security, to
the agent of the original British owners, and sent by him to
England.
When the ship was captured, it was notified to the defendants,
who agreed to pay a just proportion of the expense of
recovering
Page 4 U.S.
421, 423
the property; but no actual abandonment, or offer to abandon,
was made, until the 2d of November, when the decree of the
vice-admiralty had been received by the plaintiff. On the trial of
the cause, the plaintiff's counsel read to the jury, the policy,
the orders of Crucet and his agents for insurance, (which had been
communicated to the defendants at the time of effecting the
insurance) and the whole of the record of the proceedings in the
court of vice- admiralty; but neither the original hypothecation to
Crucet, nor the original bill of lading, nor the original invoice,
nor any other proof of the special property of the plaintiff, in
the ship and cargo was produced: and as soon as the plaintiff's
coun el began to argue upon the papers found on board the ship, and
spread upon the record, (to wit, the hypothecation, bill of lading,
and invoice,) as proof of property, the opposite counsel objected,
that although the whole record must be read, it was only evidence
of the sentence of restitution. The general defence was then placed
on these grounds: 1st. That the abandonment was not made in due
season; which, however, was an objection mentioned, but not
strenuously urged. Park. 82. 81. (a.) 172. 1 T. Rep. 608. 2d. That
the insurance was effected upon ship and goods, on account and
risque of the original British owners, not on the special interest
of Crucet, for his use and indemnity. Park. 267. 8. 1 T. Rep. 309.
3d. That the decree is conclusive to prove that the property was
not in Crucet; and the restitution to the original owners, was
restitution to him as their agent. 4th. That the statements of
Crucet and his agents, to the underwriters, are not evidence of the
facts contained in them upon the present trial; nor are the papers
set forth in the record of the court of vice-admiralty, legal, or
conceded, proofs of property. For the plaintiff, it was contended,
1st. That his interest was of an insurable nature. 2d. That the
nature of his interest was communicated to the defendants, at the
time of effecting the insurance. 3d. That the loss of his
possession, on the capture and restitution, was the loss of his
lien, and, in its effect, total. 4th. That the record being read,
without previous objection, or restriction, every part of it became
evidence in itself; and the property of the plaintiff was proved by
it. 5th. That, however, the question of property was a question of
fact; and the papers on the record must, at least, be regarded, as
corroborating the statements of the plaintiff and his agents, to
prove his interest in the subject insured. The charge of the court
was delivered by the presiding judge, in substance as follows:
WASHINGTON, Justice. Though the case involves points of some
novelty, and of considerable difficulty we have so far satisfied
our minds, that we will not request the jury, to reserve any
thing
Page 4 U.S.
421, 424
for future consideration, although either party is at liberty to
move for a new trial.
The first and principal difficulty is, whether Crucet has proved
his interest in the subject insured, by proper evidence. The record
of a court of admiralty is always evidence to prove a condemnation;
but, certainly, in cases between the insurer and insured, it is
only evidence, according to the general rule, to prove the cause of
condemnation. On the present occasion, however, the record was read
to the jury without opposition; and, on this ground alone, we
decide it to be an exception to the rule. For, if the objection had
been made, the plaintiff would have enjoyed an opportunity to
supply the proof by other means.
The record is, therefore, considered as proof of facts, so far
as it exhibits documents, which, if now produced, would be evidence
in the cause. This still excludes, on the one hand, letters written
by Crucet; while, on the other hand, it admits those papers,
authenticated by other sources, that show the extent of his
advances, the nature of his engagements, and the lien which he
acquired upon the ship and cargo.
Upon the evidence, thus admitted, Crucet papers clearly to have
acquired a contingent interest in the property; but it was, at
first, a question of great doubt with us, whether it was an
insurable interest. As to his actual advances of money, there could
be no doubt, provided there was (as there is not) satisfactory
evidence on that point, independent of what proceeds from himself.
But to the right of insurance, the obligation of abandonment, in
case of loss, would seem to be an inseparable incident; and we
doubted, whether Crucet had any thing in the property, which he
could abandon upon a loss, and, of course, which he was entitled to
insure. On reflection, however, we conclude, that, upon an
bandonment, the underwriters acquire all Crucet's rights and
remedies against the British owners: And, as to the manner of
insuring his interest, it is clear, that a person having a lien
upon a cargo, may cover it by an insurance on goods.
It is true, that the assured should communicate to the
underwriter, the nature of his interest in the subject insured,
though it need not be specified in the policy; and, on this ground,
a question of fact arises, for the consideration of the jury. If
the insurance of the special interest, and not of the principal
ownership, made a material difference in the risque, or would have
altered the amount of the premium; and the fact was not
sufficiently disclosed to the defendants, the omission would vacate
the policy.
After this view of the case, it only remains to inquire, whether
a loss has happened, which entitles the plaintiff to recover? He
has lost his possession: and although we will not decide, whether
the capture and sentence have
Page 4 U.S.
421, 425
destroyed his lien; we think, that as they have rendered it
necessary to pursue the property, though an expensive, troublesome,
and doubtful, medium; he has a right to consider the occurrence as
a total loss, and to recover the amount of the insurance.
Verdict for the plaintiff. [
Footnote 2]
Ingersoll and Rawle, for the plaintiff.
E. Tilghman and Dallas, for the defendants.
Footnotes
Footnote 1 In speaking of
the decree of restitution, taking the property from the hands of a
Spaniard, who had so fairly obtained a lien upon it, the court was
reminded, that although war was declared between Great Britain and
France on the 16th of May 1803, Spain did not become a party to it
till the 11th January 1805.
Footnote 2 A motion was
afterwards made for a new trial, on the single ground, that there
was no proof of property in the plaintiff, except the ship's
papers, spread upon the record of the court of vice-admiralty. An
affidavit was filed, stating that Mr. Ingersoll had applied to Mr.
Dallas, before the jury were sworn, to admit the record as proof of
property, which was refused; and that the application of the record
to that purpose ( after it had been read) was opposed, as soon as
it was attempted. But the motion was rejected, as Judge WASHINGTON
adhered to the opinion delivered in the charge, and Judge PETERS
said, that he had decided as well on that ground, as on the
corroborative evidence, arising from the sameness of the documents
found in the ship, and those described in the communications to the
defendants, when the insurance was effected.
