Year: 1869

Supreme Judicial Court.


JANUARY TERM-wALToN j., PRESIDING.


WEDNEsDAY.-Benjamin Dunnng VS.. Merchants
Marine Insurance Co. of Bangor Action TO recover
the amount of insurance on Lie of the barque Jshn
Curtis $780, and freight $780, The facts in brief
are these;-The plaintiff is owner Of 3-16 of the
barqne John Curtis, Of $50 tons, on which, in May
1866, he procured policy of insurance of the de-
fendant company for the sum Claimed on time
policy of one year.


On the 23d of September, 1866, having obtained
charter for cargo Of salt from Turks Island, the
ship sailed for that port and on the way enc ounter-
ed gale which, ending in hurricane, threw the shil
upon her beam ends. Capt Sylvester, in commando
cut away her fore tormast and all the sails and rig
ging attached thereto. After the gale abated he
made for the port of Nassau. On arriving off the
harbor he was warned by signal that it was unsafe
to enter and bore away to The lee side of the island
and while endeavoring to make harbor there the
barque was thrown upon coral reef, from which
the crew were unable to extricate her; after some


five days, by aid of force OF wreckers, the barque
was got off the reef and carried into Nassau harbor
Capt. Sylvester reported to the American Consul, a
survey was called and report made ordering the
captain to 60 home and consult with the owners and
making estimate of repairs. The captain returned
home to Brunswick, where, upon his arrival he was
informed by of the that they had already
abandoned the barque to the underwriters, upon
which the captain took the return steamer, called
new survey, which reported that it would cost som
$4,000 to put the barque Into thorough and complete
repair. Upon their recommendation the captain
sold the vessel at public auction, the hull alone to
one party and the sails, rigging anchors &c. in sew
eral parcss to sundry parties, all the proceeds Of
which did not amount to 50 much as the actual ex-
penses of resouing from the rect and subsequent
surveys and


The hull of the barque was purchased by a resi-
dent, Mr.. Sanders, who repurchased part OF the
sails, rigging, anchors, &c, and with these and other
new or second hand materials reftted the ship at an
expense in all of about $74O0 and sent her to Liver
pool with cargo of cotton where other repairs were
put upon her of some $780, after which she was sold
by Sanders for $145O less than the entire cost to
him, he however, having made good thing out OF
the whole transaction by the large freight he received
on his cargo of cotton 1t appears in the case that
the captain, before sailing from Havana hypothecat-
ed the ship to raise 140O conditional to pay $2700 on
her safe arrival in Boston.


Much corroborative evidence was put in upon both
sides and the opinions of experts.


The case was ably argued by Gen. Shepley fol- the
plaintiff and by Mr. Rowe, of Bangor, for defendant.


This is the first case of maritime insurance tried
for the term and is contested, the defendants say,
not only tor the sake OF reducing the damages in the
case but because other suits pending in favor of
other owners including large amount Of damages
in the aggregate. To try cause of this kind re-
quires familiarity with naval architecture and nau
tical terms as well as knowledge of marine insur-
ance law. In the course of the trial much of the
learning OF this branch of the law was lavshed upon
the jury. They were informed of three sorts of
losses OF ship,-s partial loss where the ship re-
mains in possession of her owners and is repaired by
them; of total loss, where the ship founders or is
captured by enemies in war; does not admit of be-
ing repaired 80 as to be seaworthy and is therefore
total loss ship and worth only what the mate
rias will sell for; and of constructive total loss
where The ship has met with severe damage but
nevertheless admits OF being repaired. Early in the
history of maritime insurance it became an alIowa-
BILE custom in estimating the amount of partial loss
to deduct something from the actual cost Of repairs
on the ground that when new materials were SUD-
piled in place OF the old the vessel was worth more
after she repaired than before. As convenient
rule it came to be settled practice to deduct from
the cost OF repairs one third new for DID, Another
rule was recognized where it would cost more than
one half of the original value toput ship into per-
manent repair that the owners had right to aban
don to the insurers not being worth repairing In





claim that when it would cost but half of the oripi
nal value OF the ship the owners had no right to
abandon as for total loss, because they said that
after complete repairs were made the ship would be
worth more than her original value For instance.
ship valued at $780, 900 meets with loss where it will
take less than $4,000 to repair her. the owners would
have no right to abandon, because, by the rule of
new for old. $15 900 was only reckoned as &10 0Oo
which would establish loss of less than half OF her
value. In other words, that owners would have no
right to abandon where the ship can be put in mar
manent repair at sum not exceeding three fourths
of her original value. The Massachusetts Courts
have adopted the two thirds rule of new for old and
In other States most insurance companies insert in
their policies provision which gives them the bene
fit Of the Massachusetts, rule. There is also n con-
fict OF laws upon the question whether in arriving
at one half Of the value of the ship before loss the
stated value in the policy s to control or the actual
value. The Massachusetts rule is that the policy
value goveln; the Federal and English rule takes
the actual value. The policy in this case contains
provision that the Boston rule shall be followed in
adjusting the losses.


These and many other questions were fully dis
cussed by the learned counsel, and by arrangement
the jury returned special verdict The case will ba
sent to an adjuster or to compute the loss
upon the facts as found by the jury and upon the
other evidence in the case If the plaintiff had n
right to abandon to the insurers that is II II would
cost $4,000 or more to put the ship into thorouph
and compile repair, then the plaintiff will recover HIS
entire insurance as for constructive total loss:
otherwise, for partial loss or two thirds the ash
mated cost OF repair i. $3.50 tre


The Judge instructed the jury pro torma in sub
stance in reference to the bottomry bond that unon
the evidence in this case 1t did not defeat the mas
ters right to sell II necessary. His Honor also in
structed jury that when vessel is so injured b
the peril insured against that she cannot be reparad
without exceeding one half her value after deduct-
ing one third new for DID, she may be abandoned tn
the insurers Upon the right to sell he further said
to the jury, that his opinion of the law was that
when ship is in foreign port, so disabled that sba
cannot proceed on her voyage with safety the master
may lawfully sell her, if, in his judgment, sale will
best promote the interest of all concerned in form
ing sjudgment he must avail himself of the best
information he get, OF the best advice he can OH
tain, and then determine for himself whether the in
terests Of all concerned will be best protected bv
sale; and if his judgment dictates sale bv him
will be justifabe and legal and the in nsurers as wo
as the insured will be bound by 1t, and in contempa
tion of law the ship will Ibe total loss That such
was his opinion OF the law but as the plaintia,s
counsel in whose favor this ruling was d not wisb
to hazard verdict by doubtful ruling, he would
instruct the jury TO make qualification to his own
opinion as stated and he instructed them that in ad-
dton to the question whether the master in selling
acted in good faith and with the intention of doing
the best tor the interest of all concerned the iurv
viii consider whether there was an actual necessity
for the sale, and that this question for the jury
under the circumstances proved and If the evidence
failed to satisfy them that the necessity for sale
listed then the sale by the master was unustifiabe
and Illegal, and their verdict should be for the de-
fendants upon this point
The jury returned verdict that the plaintiff was
entitled to as for total loss; also that the
sale by the master iustifable under the circum
stances of the case as proved. Exceptions and mo-
ton to set aside filed by the defendants


Shepley & Strout. Rowe.


Wilson.
The jury were finally discharged, and case set
down for trial before his Honor Thursday afternoon.