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THE

AMERICAN

Law Journal and Miscellany.

No. IV.

Supreme Court of the United States.

FEBRUARY TERM, 1808.

David Alexander, v. the Baltimore Insurance
Company.

Opinion of the Court.

ESPERANCE-ABANDONMENT. The Underwriter upon a vessel does not undertake for the cargo; he engages only for the ability of the vessel to perform her voyage, not that she shall perform it at all events; and to bear any damage which she may sustain during that voyage.

HIS action was brought against the underwriters to reco

THIS

ver the amount of a policy of insurance on the John and Henry, from Charleston to Port Republican, or one other port in the Bite of Leogane. On the 3d October, 1803, the John and Henry, while prosecuting her voyage, was seized, by a French privateer, and carried into the port of Mole St. Nicholas, where the cargo was taken by M. de Noailles, the French commandant, for the use of the garrison. On the same day, the captain of the vessel, received a written engagement from M. de Noailles to pay for the cargo in coffee, after which the vessel was unladen. The captain remained at the Mole, in expectation of receiving payment, until the 29th of October,

when he sailed in the John and Henry for Cape Francois, with an order on that place for payment in coffee. On the 4th of November, she was seized, by a British squadron, then blockading Cape Francois, and condemned as prize. Cape Francois is not in the route to Port Republican, nor to any port in the Bite of Leogane, nor in the route to return from Mole St. Nicholas to the United States. The abandonment was made in December, on account of the capture by the French privateer. The declaration claims the amount of the policy in consequence of that capture.

It has been decided in this court, that during the existence of such a detention, as amounts to a technical total loss the assured may abandon: but it has also been decided that the state of the fact must concur with the state of the information to make this abandonment effectual. The technical total loss, therefore, occasioned by the capture and detention at the Mole St. Nicholas must have existed in point of fact in December, when this abandonment was tendered, or the plaintiff cannot proceed in this action.

Previous to that time the vessel had been restored to the captain, all actual restraint had been taken off, and it does not appear that the ability to prosecute her voyage was, in any degree impaired. But her cargo had been taken by M. de Noailles, the commandant at Mole St. Nicholas, and had not been paid for. The restoration of the vessel without the cargo is said not to terminate the technical total loss of the vessel.

The policy is upon the vessel alone and contains no allusion to the cargo. Had she sailed in ballast, that circumstance would not have affected the policy. The underwriters insure against the loss or any damage to the vessel, not against any loss or damage to the cargo. They insure the ability to perform her voyage, not that she shall perform it.

If in such a case, a partial damage had been sustained, no person would have considered the underwriters as liable for that partial damage; why then are they responsible for the total destruction of the cargo? It is said, by taking out the cargo, the voyage is broken up. But the voyage of the vessel

is not broken up; nor is the mercantile adventure destroyed from any default in the vessel. By this construction, the underwriter of the vessel, who undertakes for the vessel only, is connected with the cargo, and made to undertake that the cargo shall reach the port of destination in a condition to answer the purposes of the assured. Yet of the cargo he knew nothing, nor does he make any inquiry concerning it.

If it be true, that the technical total loss was not terminated until the cargo was paid for, because the voyage was broken up, then the underwriters would have been compellable to pay the amount of the policy, although the vessel had returned in safety to the United States. To prosecute the voyage, it is said, had become useless, and therefore the engagement of the underwriters was forfeited, although this state of things was not produced by any fault of the vessel. If this be true, it would not be less true, if, instead of proceeding to Cape Francois, the John and Henry had returned from Mole St. Nicholas to the port of Charleston. The contract then, instead of being an insurance on the ability of the ship to perform her voyage, an insurance against the loss of the ship upon the voyage, would be a contract to purchase the vessel at the same mention in the policy, if circumstances not produced by any fault or disability in the vessel, should induce the captain, or the assured, to discontinue the voyage after it had been undertaken.

This is termed, pushing a principle to an absurdity, and therefore no test of the truth of the principle. But if it be a case which would occur as frequently as that which has occurred, and if the result which has been stated flows inevitably from the principle insisted on, the case supposed merely presents that principle in its true point of view, deprived of the advantages which it derives from its being adapted to the particular and singular case under argument. Either the technical total loss of the ship did or did not terminate when she was restored to the master uninjured, and as capable of prosecuting her voyage as when she sailed from the port of Charles-, ton. If it was then terminated, this action cannot be sustained.

If it was not then terminated, on what circumstances did its continuance depend? At one time it is said to depend on the ability or inability of the owner to employ her to advantage. But this position requires a very slight examination to be discarded entirely. So far as respected the vessel herself and her crew, she was as capable of being employed to advantage as ever she had been. Only the funds were wanted to enable her to purchase a return cargo on the spot, or to proceed to her port of destination, and there purchase one. Or she might have returned immediately to the United States; and if any direct loss to the vessel was sustained by being turned out of her way, that, after restoration, would be a partial not a total loss. Besides, what dictum in the books will authorize this position? And what rule is afforded to ascertain the degree of inconvenience which, when in point of fact the vessel was in safety, in full possession of the master, and capable of prosecuting her voyage, shall warrant abandonment?

No total loss of the vessel, then, existed after her restoration, so far as that total loss depended upon the incapacity of the owner to employ his vessel to advantage. If the total loss continued after the restoration, that continuance was produced singly by the nonpayment for the cargo which is said to have broken up the voyage. If then the vessel had returned to a port in the United States, the voyage would still have been broken up, and the right to abandon would have been the same as it was while she was in the full possession of the captain.

But it is apparent that the captain had terminated the voyage on which the vessel was insured. Had his contract with de Noailles been complied with at Mole St. Nicholas, or at Cape Francois, he would not have proceeded to the Bite of Leogane. Had it not been complied with he would have had no more inducement to go to the Bite of Leogane from Cape Francois than from Mole St. Nicholas. The voyage to Port Republican, then, which was the voyage insured, was completely terminated at Mole St. Nicholas; the voyage to Cape Francois, in making which, he was captured, was a new voyage

undertaken, not for the benefit of the underwriters of the vessel, but for the benefit of the owners and underwriters of the cargo. Consequently, so far as respects the underwriters of the vessel, who insured only the voyage to the Bite of Leogane, the capture at Cape Francois is an immaterial circumstance; and the technical total loss, by carrying the vessel into Mole St. Nicholas, was either terminated when she was restored without her cargo, or would have continued had she returned to an American port without her cargo.

Upon principle, then, independent of authority, it is very clear that the underwriter of the vessel does not undertake for the cargo; but engages only for the ability of the vessel to perform her voyage, and to bear any damage which the vessel may sustain in making that voyage.

But it is contended that adjudged cases have settled this question otherwise.

The case has frequently occurred, and a direct decision might be expected on it, if a construction so foreign to the contract had really been made. It often happens that the cargo of a neutral vessel is condemned as enemy property, and the vessel itself is discharged. Not an instance is recollected in which the right to abandon in such a case, after the vessel was restored, has been claimed. Yet if the loss of the cargo amounted to a destructiou of the voyage, so far as respected the vessel, and thereby created a total loss of the vessel herself notwithstanding her restoration to the captain uninjured, and in full capacity to prosecute her voyage, and such claims would be frequently asserted, and vessels would be valued high in the policy for the purpose of selling them on a contingency which so often occurs. It would be strange indeed to admit, that if this cargo had been condemned in Mole St. Nicholas, and the vessel had been liberated, the right to abandon would not have been produced by the loss of the cargo, and yet to contend that nonpayment does not produce that right.

In recurring to precedent, no direct decision by a court on the point, no affirmance of the principle has been adduced; but the counsel for the plaintiff relies upon general dicta in the

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