The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-05-28
THE PACIFIC
SUPREME COURT.-IN BANCO.
April Term, 1881.
HARRIS, C. J. JUDD & MCCULLY, j. j.

Opinion of the Court by Harris, CT.
The plaintiff g vessel, the Eugenia NJ. Briggs,
was insured BY the defendant company against
total loss. By the terms of the policy, the risk
expired June 9th at midnight, and the question
for the jury is, whether the vessel was lost
totally, previous to the risk.
.s a loss of maritime property under insurance
is either actual THAT is to say real and ABSOLUTELY
or constructive e Parsons Marine Insurance,
68.) The first question that arises is whether
before midnight of the sixth day OF June, there
! ia any evidence to show that there was an actual
loss Of the vessel. Upon this point the protest
signed by the Captain, Mate and second Mate
and all the crew, at Huelo, Maui, on the 9TH OF
June Is conclusive. BY that exhibit, IL appears
that they were bound to this place OF Huelo from
Honolulu, where they arrived May 9Ist, when
was Monday, made fast by a line to the buoy
and let 90 an anchor in Is fathoms of water.
Whether they began to unload on the LIST day OF
June or not does not appear by the protest or by
any evidence in the case. But on the second
day Of June, they were dlscharglng cargo, Tor
tho protest states that they were a. much hinder
ed in unloading by heavy sea and winds" and
that on June 1st, the day before, at III o'clock
p. NJ, the schooner had Begun to drag the anchor
and moorings, and they let go another anchor
and held her. They continued to unload during
the 3rd, 4th, and 5th of the month. The protest
states 90 that the sea was heavy, the wind blow
ing in shore, SO that it was impossible to get the
vessel out, - though it appears they still continued
unloading. All the evidence is that the wind
was a little to the north of northeast, which is
the trade wind. The protest continues that they
put all hands ON the pumps but could not free
the vessel, and pumped all night (SatHrday.) On
Sunday morning June 9th, they attempted to
heave up anchor aud go to sea, but the chain
parted and they desisted from the undertaking.
About 4 p. NJ, Sunday the crew went ashore,
because it was dangerous to life to remain. In
this connection the Mate (Ferrier) states that the
Captain did not want to leave, and asked the
crew to stay as long as they could, the Captain
refused to 90 on shore before dark, the vessel
was sinking and had 4 or 5 feet of water in her
hold. All hands remained on the beach all night
and on Monday morning went on board and
found the vessel full Of water. Thus 1T will be
seen, that on the morning OF the 18th the vessel
was in the same place they had put her a week
before, that no accident had happened to her so
far, except that she was strained and leaking
badly. The fact that she was afioat on Monday
morning had demonstrated that she was not
sinking the night before, she was not only a6oat
and in the form of a vessel but carrying her cargo,
with her masts and rigging all standing. Thus
it is certain that she was not an actual loss before
midnight of the sixth of June. "There must be
no rational hope, no practical possibility of
recovering possession of the property, and pro-
scouting the adventure to its termination, for
only when such hope and possibility have ceased
is it an actual total loss" parsons on Marine
ms urance, Vol. 2, p. co. As we have said
DeIOTS Ut NGSSCl d CuO IL Ill al d =
Sunday night and on Monday morning after the
insurance had expired as the protest says, they
60 let 90 the chains and allowed her to 60 ashore
in order to sane as much of the cargo as possible,
for the benefit of whom it may concern Now
in setting the vessel ashore, they may have been
right, but the risk of the defendant company had
terminated some 8 hours before that. By no
construction, possible, was there an actual and
total loss of that vessel, before the termination of
the risk. There was not only no evidence before
the jury, that there was a total loss, but all the
evidence offered shows that there was none.
1t remains for us to consider whether there was
any evidence before the jury to show that there
was a constructive total loss. {" Much the larger
portion of losses, which are total become soby
abandonment or at least require an abandonment.
that they may have the legal effect of a total
loss" (2nd Parsons on Marine Insurance, p.
1917 " Where a vessel is abandoned it must be
clear that the vessel could not have been brought
into port at the time OF the abandonment and the
burden of proof Is on the owners to prove that
fact and if a substantial hope exists of getting
her again, the loss is neither total in a strict
sense or in any Just sense" 2. Parsons Marine
Law, 335. 1.-The questions which most frequently
occur in relation to this matter, are whether the
assured was under auy necessity of abandoning,
in order to make his loss total whether he had
any right to do so whether he exercised this
right in the proper time and way" Idem. 1884.
Abandonment, by Maritime law, means not
merely leaving the ship for a time, but abandon
ing her to the underwriters, so that they may
take possession of her, and do with her as their
interest may dictate. Now there was not one
word of testimony before the jury, that, previous
to IL o'clock at night on Sunday, the Captain
ever abandoned the vessel to the underwriters.
If he abandoned the ship, he must likewise have
abandoned her cargo. The Mate, in his testi-
mony, says that the Captain did not want to
leave, but exhorted the crew to stay. And when
they went ashore, they remained on the beach
all night, and that, too, in a well-peopled country,
as it is to be inferred in order to watch the pro-
perty and on the morning Of the 18th, the pro-
test says that they repaired on board, let go the
anchor chains, and allowed her to come ashore,
for what purpose does the Captain say? "In
order to save as much of the cargo as possible
The Mate says that : on the morning of the 7th,
she was anchored and moored to the buoy, one
anchor down, they cut the rope and unshackled
the chain-so as to let her 60 ashore and save
cargo" Surely this is absolute proof that the
ship was neither an actual total loss, nor aban-
doned to the underwriters, at any time. while
the policy was in force so as to become a con-
structive total loss.
1t is said by the plaintiff, in this action: 'It is
generally held to be discretionary with the Judge
who tried the cause to grant or deny a motion
for new trial on the ground that the verdict was not
sustained by the evidence and that a refusal to
grant such a motion Is proper whenever % there
was evidence which it was proper to submit to
the Jury, and upon which it was equally compe-
tent to find a verdict for the plaintiff of it's
weight as sufficient to sustain the verdict we do
not and cannot judge per Chapman, j.
Policy VS. Lennox Iron Works 4 Allen $685. $50
per Shaw, c. j. in Cunningham VS. Magown I8
Pick. l5.) Where the question is purely
matter of fact, where there is evidence for the
minds of the jury actually and fairly to weigh
and balance. where ~presumptions are to be raised
and differences drawn, and the jury may be pre-
sumed fairly to have exercised their Judgment, a
Court will not feel at liberty to set a verdict
aside
in this case. as we have seen, there is no testi-
mony whatsoever before the jury to show that
there was an actual or constructive total loss of
the vessel in question within the time in which
the defendant company took the risk.
Exceptions sustained. New trial ordered.
CHAs. c. HARRIS,
4. FRANCIS JUDD,
LAWRENCE MCCULLY.
AS. Hartwell for pltf. f.. Preston for dts.