The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-01-15

was afterwards recovered at less ex-
pense."
This expression Of the law was cited
approvingly by the Supreme Court OF the
United States in Bradlie V. The Mary
land Insurance Co, u Peters S9S, and has
been followed, we believe, in the Admir-
ally Courts without question. See Snow
v. Union ms. Co. 119 Mass. 592. Wallace
V. Thames & Mersey ms. Co. % Fed. Rep.
66. Orient ms. Co. V. Adams. 123 Z. S. 81.
We do not consider that the fact that
the vessel in this case was recovered and
repaired is conclusive nor is It the best
evidence" that II was practicable to re-
cover and repair It. Orient Inssv. Adams,
i'd. rs On the other hand the bare fact
that the maser thought that his vessel
was in extreme peril and that the prob
able cost Of her recovery and repairs
would exceed half her value under the
Sun policy, would not justify the aban-
Comment. The evidence shows that no
adequate means were taken to ascertain
the probabilities. The Waimanalo had
been driven by the surf over the sand spit
and lay on her bilge and her position
seemed critical, but no soundings
were taken by the Master of the
water alongside of her, care
full examination of the neighboring
channels and reefs and no plan matured
by him as to how she could be recovered
and brought into deep water, and no de-
ermined effort made for her recovery.
He called to his counsel Capt. Smythe Of
the "WaiaIeale," and his estimate that
the vessel should be abandoned is the
only disinterested opinion that we have.
Capt. Smythe, however, says that he
stood on the shore some hundreds of
yards distant from the "Waimanalo,"
Capt Dudoit or taken by him. and that
if he had been told that there was eight
and a half feet of water under her stern
it would have made a difference in his
Judgment that the vessel should be
abandoned. He made no estimate of the
probable cost Of repairs. AS above stated,
in few days the vessel was righted by
contractors of the insurers, her hole
patched up, pulled over the reef into deep
water and brought to Honolulu and re-
paired for less than half her agreed value.
This, though not the best evidence" is
evidence that the abandonment was has
tily and improvidently decided upon.
This is not the case where changed cir
cumstances after an abandonment made
In good faith, make it practicable to re-
cover and repair the vessel for less sum
than would make the insurers liable.
judge, had not changed.
From a careful review of the very
evidence taken, we are of
opinion that the abandonment was not
justified and that no sufficient examina-
ton was made by the master upon which |
to base his Judgment, and no energetic
means taken to recover his vessel. The
insured We're bound to do all in their pow |
err to save the insurers from any pay-t
ment under their policies. The insurers |
did, in recovering the vessel what the
insured should have done, and were jus
titled in refusing to accept the abandon
ment, and as they were not liable (the
Sun Company for loss not exceeding
half of the agreed value and the Alliance 7
Company for q loss not exceeding the |
value, they are entitled to recover of the
insured the amount of the expenses in
Cured by them in saving and repairing
the vessel. The principles sustaining
this right of action are fully discussed |
and settled in Commonwealth Ins. Co. v.
Chase, 20 Pick. 142.
The decree appealed from is reversed
and judgment ordered for the insurers,
the amount Of which is referred to the
Clerk Of the Court for computation and
report The libels of the insured against
the Insurance Companies are dismissed.
F. NJ. Hatch for the Insured: L. A.
Thurston and Paul Neumann for the
Insurers.
Honolulu, jan 9, 1896.