#### John Winn Junior *et al. versus*The Columbian Insurance Company.

In an action upon a policy of insurance upon a vessel, to recover for a total loss, in a case where the vessel was sold by the master in a foreign port after a survey recommending a sale, the jury were instructed not to give effect to the survey, if they believed from the evidence that the *facts*(not saying the *material*facts) stated in the survey were not true, but the judge proceeded to call their attention to the *material*facts upon which the recommendation of a sale was founded. The jury having returned a verdict for the defendants, thereby disregarding the survey, it was *held*that the plaintiffs were not entitled to a new trial on the ground of a misdirection to the jury.

In determining the question whether the cost of repairing a vessel which is insured in a valued policy, would amount to more than half the value of the vessel, so as to constitute a constructive total loss, the sum agreed on in the policy as the value of the vessel, is *primá facie,*and in the absence of all other evidence, to be deemed the true value.

Where a policy on a vessel contained an express stipulation, that the assured should not have the right to abandon for the amount of damage merely, unless the amount which the assurers would be liable to pay under an adjustment, as of a partial loss, should exceed half the amount insured, the cost of repairing the damage, after deducting one third new for old, must exceed half the value of the vessel, in order to warrant an abandonment.

Upon the question whether the sale of a vessel by the master was a matter of necessity, the jury were instructed to consider how an owner of a vessel would have acted under like circumstances 5 and it was *held*that this was not an unfit *284illustration 5 for the jury must have understood the instruction as referring to a prudent and discreet owner, and not to a rash and careless one.

A new trial may be granted in order to determine a particular point, or to correct a particular error in the former trial, without opening the whole case.

Thus, where upon the trial of an action on a policy of insurance the judge observed that it might be most convenient for the jury to decide only the question whether the loss was total or partial, and that if in their opinion it was partial only, assessors might be appointed to estimate and state the amount of the loss, and the plaintiffs did not express their dissent to this course, and no statement of the amount of a partial loss was offered by either party, and the jury found that the loss was a partial one, it was *held,*that the plaintiffs were not entitled to a new trial on the whole case, but as it appeared that they acted under a misapprehension of their rights in not expressing their dissent, a new trial was granted, upon their consenting that a verdict should be entered for a partial loss, and that the inquiry before the jury should be confined to the question of the amount.

Assumpsit on a policy of insurance, dated,February 6, 1829, underwritten by the defendants for $2250 on the ship Canton Packet, valued at $ 8500, on a voyage from Gibraltar to Salem.

At the trial, before *Putnam*J., it appeared that the ship sailed from Gibraltar on the 14th of-January, 1829, and that, having encountered boisterous weather and become disabled, she went into the port of St. Thomas on the 2d of April. A survey was there called, and the surveyors made a report, dated the 4th of April, stating the repairs which they deemed indispensable, and that it was impossible to obtain at St. Thomas the materials necessary to make the repairs, and that if the materials could be obtained the repairs would amount to more than the value of the ship ; but that it was impossible to make an estimate of the cost, as materials could not be had in the island ; they therefore recommended the sale of the ship, in lots. The ship was accordingly sold by the master’s orders, but sold entire, the master considering that mode to be most for the interest of all concerned.

The plaintiffs claimed for a total loss, on the ground that the sale by the master, under the circumstances of the case, constituted a total loss, without an abandonment.

The plaintiffs gave in evidence the survey ; and much other evidence was introduced by each party.

Upon the suggestion of the counsel for the defendants, the judge observed that it might be most convenient for the jury to decide only the question whether the loss was total or par*285tial, and if in their opinion it was partial only, assessors might be appointed to estimate and state the loss. The counsel for the plaintiffs then said that they went for a total loss, and had nothing to do with a partial one. No statement of the amount of a partial loss was offered by either party.

The Court instructed the jury, among other things, that in *1*egard to the necessity of the sale, much would depend on the manner in which they might think a ship-owner would conduct himself in the situation in which the master was placed. The main question is, whether a total loss has happened ; if in your opinion there was only a partial loss, the Court will take measures to have the amount of it ascertained. It is generally necessary for an owner to abandon, to enable him to recover for a total loss, but in case of a sale from necessity there is nothing to abandon. If from the perils insured against there is a necessity for a survey and the surveyors report that a sale is necessary, and their report is made on proper facts and cases, a sale by the master will be authorized. If the survey is imperfect and insufficient, the master is not bound to act upon it. Would you, if owner, and upon the spot, have acted upon that survey or called another ? If, for example, the surveyors report that a breast-hook is started, when it is not started, and the master knows it, he is not bound to follow their report. This will lead you to look critically into the case and to the circumstances attending the survey. (In regard to the right of the master to sell in a case of necessity, the judge read to the jury from the case of *Gordon*v. *Mass. F. & M. Ins. Co., 2*Pick. 264, 265.) If the surveyors acted fairly and the master acted fairly, his acts in conformity with their opinions will be justified, unless it should be made to appear, by those who contest the loss, that the facts on which they founded their opinion were untrue, or the inferences they drew from those facts were incorrect; and the burden of proof should be upon those who would impeach these proceedings. If it does appear that the facts stated in the survey were not true, you are not to give effect to the survey. The broad question is left open, was there a sufficient examination and survey ? Would the master have done as he did, if he had been the owner and without insurance ? The vessel leaked badly when *286she went in. Where was the leak ? That is an essentia, matter to be ascertained. To do it, would you pursue the usual mode, of first taking out the cargo, or would you strip off her copper ? The fact is, the vessel ceased to leak after the cargo was out. Was it necessary then to heave her down ? This is for your consideration, and it is a material part of the case, in the calculation of the expense of repairs and the necessity of a sale. The cargo was taken out, after the survey had been made, and the vessel did not then leak ; what is the inference ? Is it that the leak was above light water mark in her bottom ? If above, did the survey proceed on false principles ? Did the surveyors examine sufficiently and ascertain whether it was necessary to heave the vessel down ? If the leak was above light water mark, you are to judge whether it was necessary to heave the vessel down. The judge then referred to the breast-hook, which was said in the survey, to have been started, and observed, no new breast hook has in fact been put in ; had it then started ? Examine the evidence and say whether it had started from the timbers. Further, how much would it have cost to repair the vessel at St. Thomas ? We are left much in the dark on this subject. We know how much it would cost here, for she has been repaired. How much more it would have cost at St. Thomas, you must judge. The rule would be, to take the cost of repairs, and after deducting one third new for old, the balance must exceed $ 4250. But this is important, only as to the judgment of the surveyors.

*Nov. 10th.*

*April term*1833, *at Ipsioich.*

The jury returned a verdict for a partial loss, and the plaintiffs moved for a new trial on account of misdirections of the Court, and because the verdict was against law. and evidence.

*Fletcher*and *Choate*for the plaintiffs.

S. *Hubbard*and *Saltonstall*for the defendants.

Shaw C. J.

delivered the opinion of the Court. This action being brought to recover a total loss, on a policy upon a vessel, without abandonment, the only question upon this point was, whether the ship was sold under such circumstances of inevitable necessity, as in other cases has been held sufficient to warrant a sale by the master ; whether that sale under the circumstances was valid to pass the property to the purchaser, *287and thereby wholly to divest the title of the original owners, the plaintiffs in the present case. The subject had been so recently discussed, and the rules in relation to the agency forced upon the master by the necessity of breaking up the voyage and determining the enterprise, with the limitations and qualifications of these rules, had been considered so much at large, in the case of *Gordon*v. *The Mass. Fire and Marine Ins.*Co., *2*Pick. 249, that the judge who tried the cause took that case as his guide in the present.

The main question discussed at the bar, in the present case, was a question of fact upon the evidence, and whether the verdict was against the weight of the evidence. Upon this point, after considering the evidence, the Court were of opinion that there was no ground to set the verdict aside for this cause, that the evidence was quite sufficient to support the verdict, which was for the defendants, so far as to determine that the sale of the vessel was not necessary, that an agency was not forced upon the master, and a sale by him was not authorized and valid.

Several exceptions were taken by the plaintiffs’ counsel to the directions of the Court to the jury in point of law, which have been submitted to the Court on this report.

1. That the jury were instructed, that if they believed from the evidence, that the facts stated in the survey were not true, they were not to give effect *to*the survey ; whereas they should have been so instructed only in the event of finding *material*facts not true. The Court are of opinion, that this exception is not sustained.

Without placing much weight upon the obvious consideration, that all such general observations must be presumed to have been made with qualifications and restrictions arising out of the subject, it appears in this case by the report, that immediately after the direction excepted to, the judge proceeded to call the attention of the jury to the facts, first of the sufficiency, thoroughness and accuracy of the survey, and then of the truth of those material facts of damage, difficulty of procuring labor and materials, and costs of reparation, which were the material facts upon which the surveyors founded their conclusion, that a sale was necessary. The survey itself had been *288admitted in evidence by consent; it was upon the survey tha plaintiffs mainly rested the justification of the master in making the sale, and most of the evidence was brought to bear upon the two questions, of the sufficiency of the survey, and the truth of the facts contained in it. It was the great question involved in the issue between the parties. In leaving to the jury therefore to inquire whether the survey was sufficient, and whether the facts stated in it were true, the jury must necessarily have understood the direction as applying to those naterial facts, which if true constituted the master’s justification and authority, and they could not have been misled by the generality of the terms of the proposition, with which this part of the instructions of the judge to the jury commenced.

2. That in estimating the costs of repair, and determining the question, whether they would or would not amount to half the value of the vessel, the valuation in the policy was to be taken as the true value. Without stopping to consider whether, as a general rule, the valuation in the policy is to be taken as the true value of the vessel, for the purpose of determining whether it will cost more than half her value to repair, we think it a sufficient answer to the exception in this case, that no evidence of a different value of the ship at the time and place of proposed repair was offered, or any different rule of valuation claimed. In the case cited, *The Patapsco Insurance Company*v. Southgate, 5 Peter’s Sup. Ct. R. 604, the question was not upon a valued policy ; the question was whether the value at the place of proposed repair, or at the home port, should be taken for this purpose. In this case the trial appears to have proceeded on both sides, on the assumption that the valuation was the true value ; and the instruction of the Court merely went on the ground, that *prima facie*and in the absence of other evidence, the sum agreed on in the policy, as the value of the vessel, is the true value ; to which we think there could be no exception. Upon the more general question, whether in a valued policy, the valuation is conclusive, at all places and times during the continuance of the risk, for the purpose of applying the rule of repairs costing more than one half of the value, we give no opinion.1

*2893. That the judge instructed the jury, that in applying this rule, they were to take not the gross amount of repairs, but the amount expended for repairs, after deducting one third new for old, and that the amount after this deduction must exceed one half of the value of the vessel, to warrant an abandonment.

Whether this is the true rule upon general principles, has been the subject of some discussion; but we think that the parties intended to preclude any such discussion in this case, and have done so by the terms of their contract. It stipulates, that the assured shall not have the right to abandon the vessel for the *amount*of damages merely, unless the amount which the assurers would be liable to pay, under an adjustment as of a partial loss, shall exceed half the amount insured.

Here the vessel being valued at $8500, the sum insured $ 2250, in case of partial loss, the sum which the underwriter would have to pay, would be the same proportion of the whole damage, which 2250 bears to 8500. The question is the same therefore as if the defendants were insurers to the whole amount. It may be assumed, that if the loss was not of such a nature as to warrant an abandonment, *a fortiori*was it not such a case of irresistible necessity, as to warrant a sale by the master. The question then was, how would this loss be adjusted as a partial loss, and in that event what would the underwriter have to pay ? .The vessel was so damaged that she could not sail without repairs ; if she could not be repaired at St. Thomas, or elsewhere, it was an actual total loss, independent of any abandonment or sale. If she could be repaired, then it would resolve itself into a question of amount. The. policy prescribes a rule by which this is to be ascertained. It must amount to such a sum, that the underwriter would have to pay over $4250, on adjustment as of a partial loss. But upon such adjustment, there must be a deduction of one third new for old. The repairs must then exceed $6375, before the amount, which the underwriter would be liable to pay upon an adjustment as of a partial loss, would exceed one half of the *290amount insured, and therefore before the assured, under this policy, would have a right to abandon the vessel, for the amount of damage or cost of repair. I believe this clause in the policy is of modern origin, and I am not aware that it has been the subject of much discussion or adjudication. It seems to have been designed to settle, by the terms of the contract, a question which had been left unsettled by the general law of insurance.1

4. It was objected, that the jury were incorrectly instructed when they were directed to consider how an owner would have acted under like circumstances ; that this is not a true test to try the correctness of the master’s conduct, because an owner may do as he pleases with his own property, but a master is an agent, and not at liberty to subject the property to unusual or extraordinary perils. There are undoubtedly points of difference between the condition and powers of a master, and those of an owner. But it does not appear to the Court that it was •intended to suggest to the jury, that the parallel was complete in all particulars. It is the well known rule on this subject, that to warrant a sale, it must be made to appear to the satisfaction of the jury, not only that there was an actually existing, inevitable necessity for breaking up the voyage and abandoning the ship, but that in determining upon that measure, the master acted with competent skill and judgment, with due care, diligence and attention, and with strict fidelity. In testing the conduct of the master in these particulars, it seems to the Court not an unfit illustration, to inquire how an owner, interested to the amount of the property, would act under like circumstances. It is at least a test of the honesty and sincerity, the zeal and perseverance wdth which he acts, for the benefit of those concerned in the preservation of the property under his charge ; and with this view, it appears to us to • have been used. In the case already cited for another purpose, *The Patapsco Insurance Co.*v. *Southgate,*5 Peters’s Sup. Ct. R. *291604, a similar illustration was given by the court to the jury at the trial, and seems to have received the approbation of the Supreme Court. The judge said, after stating that if a sale was necessary, &c., 66 and that a prudent and discreet owner, placed in like circumstances, would have come to the same conclusion, and sold the vessel in like manner; and if,” &c. We think, that in referring the jury to the conduct of an owner, they must have understood the judge as referring to a prudent and discreet, and not to a rash or careless one. Then it comes to the common rule in regard to skill and diligence, where they are required, that it shall be that degree which a man of ordinary care and skill, conversant with the subject, would apply to his own affairs, under like circumstances.1

5. But lastly, the plaintiffs object to the verdict as irregular, and one upon which no judgment can be given, and move the Court to set it aside and grant a new trial. We should certainly be much surprised at this exception, but for the assurance of the counsel for the plaintiffs, that they did not mean to consent and did not suppose that they were consenting to any mode of trial, different from the ordinary course prescribed by law. In insurance causes, it is often of great convenience to the parties, the counsel and the court, to try the question of liability separately, reserving the evidence and all questions of law and fact in relation to the particular mode of adjustment, to be arranged afterwards; and for this purpose and to render the verdict effectual, it is usually agreed, either that the verdict be taken for a given sum, to be enlarged or reduced by an assessor or referee, subject to the order of court, or as in the present case, by assenting that the verdict be taken in general terms for a total or partial loss, to be amended and entered afterwards, conformably to the report of an assessor or *292otherwise as agreed. When this is done by consent of parties, there can be no objection to it, but on the contrary, it tends to simplify and facilitate the trial of causes, usually involving many complicated questions. Such course seems to be practised in England. *Hudson*v. Majoribanks, 7 Moore, 463.

In the present case, it appears that at the commencement of the trial, the Court observed that it might be most convenient for the jury to decide only the question whether the loss was total or partial, and if in their opinion it was a partial loss only, assessors might be appointed to state the loss. The counsel for the plaintiffs then observed, that they went for a total loss and had nothing to ■ do with a partial loss. And in point of fact no statement or computation of any partial loss was offered, and no proof of particulars was given, by which a partial loss could have been adjusted by the jury. We are of Opinion, that from these remarks, the Court were correct in considering as they did, that this, the usual course of proceeding, was assented to by the plaintiffs’ counsel; and if they did not mean to be so understood, they should have expressed their dissent explicitly. Besides, it is to be considered, that it is a well settled rule of law, that on a declaration for a total loss, the plaintiff may recover for a total or partial loss, according to his proof; and the common form of declaration is for a total loss. It follows of course, that a general verdict on such declaration and judgment upon it, would be a bar to any further action, as well for a partial as for a total loss. Therefore as the plaintiffs did not go for a partial loss, and in the opinion of the jury failed to establish a claim for a total, the result would have been, but for the power reserved of appointing an assessor, that the defendants would have been entitled to a general verdict which would have been a perpetual bar to all claim. So that the reservation of the right to appoint an assessor to adjust the partial loss, was a provision for the benefit of the plaintiffs.

Under these circumstances, when there has been a full and fair trial upon the merits, and a verdict, to which no valid exception can be shown, we think it would not be consistent with the plain principles of justice, to set it wholly aside and throw the whole open again, on account of the mistake or misapprehension of counsel. But if the plaintiffs’ counsel, through *293any misapprehension of the course proposed at the trial, were led to forbear offering evidence and going into a computation of a partial loss, we see no difficulty in affording relief, by setting aside the verdict upon suitable terms, and ordering a new trial, for the assessment of damages only. There are many cases so situated, that it would be highly proper to grant a new trial as to a particular point, or for the purpose of correcting a particular error or mistake. *Hutchinson*v. Piper, 4 Taunt. 555. This is analogous to the case of judgments, awards ara other legal proceedings, good in part and bad in part, where the court will, if the position of the cause will admit of it, preserve that which is good, and correct that only which is erroneous.

In this case, if the plaintiffs have acted under a misapprehension of their rights at the trial, and are desirous of going to the jury for the purpose of assessing the damages only, as upon a partial loss, the verdict will be set aside and a new trial granted for that purpose only, the plaintiffs consenting that a verdict shall be entered for a partial loss, and the inquiry before the jury be confined to the question of amount; otherwise an assessor will be appointed to adjust the partial loss, agreeably to the provision in the verdict.1

*Plaintiffs elected a new trial upon the terms proposed.*

1

 See *2*Phillips on Ins. *(2d*ed.) 273; *Deblois*v. *Ocean Ins. Co.*16 Pick 303; *289*Orrok*v. *Commonwealth Ins. Co.*21 Pick. 456; *Hall*v. *Ocean Ins. Co.*ibid. 472; *Bradlie*v. *Maryland Ins. Co.*12 Peters’s Sup. Court R. 378; *Allen*v. *Lugrue,*8 Barn. & Cressw. 561.

1

*Reynolds*v. *Ocean Ins. Co.*22 Pick. 196; *Pezant*v. *National Ins. Co.*15 Wend. 453; *Somali*v. *United States Ins. Co.*11 Pick. 90; *Deblois*v. *Ocean Ins. Co.*16 Pick. 303. But see 2 Phillips on Ins. (2d ed.) 276; *Bradlie*v. *Maryland Ins. Co.*12 Peters’s Sup. Ct. R. 399; *Robinson*v. *Commonwealth Ins. Co.*3 Sumner, 225.

1

*Robinson*v. *Commonwealth Ins. Co.*3 Sumner, 227. As to the authority of the master to sell the vessel, see *Peirce*v. *Ocean Ins. Co.*13 Pick. 83; *Bryant*v. *Commonwealth Ins. Co.*13 Pick. 543; *American Ins. Co.*v. Ogden, 15 Wend. 539; *Gardner*v. *Salvador,*1 Mood. & Rob. 116; *Idle*v. *Royal Exch. Ass. Co.*3 Moore, 115; *Robertson*v. *Clarke,*8 Moore, 622; *Somes*v. *Sugrue,*4 Car. & P. 276; *Alien*v. *Sugrue,*8 Barn. & Cressw. 561; *Read*v. Bonham, 6 Moore, 397; *Cambridge*v. *Anderlon,*4 Dowl. & Ryl. 203; *The Sarah*Ann, 2 Sumner, 206; New *England Ins. Co.*v. *Sarah Ann,*13 Peters’s Sup. Ct. R 287.

1

 See *Robbins*v. Townsend, 20 Pick. 345; *Sprague v.*Bailey, 19 Pick 436