
    Charles Florian Mey against Tunno and Cox.
    
      Charleston District,
    
    1801.
    The insured have a right to abandon g“pUp^ ture, though not obliged to do so imme-ff there iíany recovering °f ^rivards^ therefore, it is not too late for the owners; make their election to a-after°afidec£ of "admiralty* °f prizeUorno t)rize-"W here an appeal is made tors^and^e-dered to be f^thcomin»16 of vessel a,N cargo, or the appraised \a-lue thereof by the claimants on getting possession of them, this is not to be considered as a restitution, onh* an interlocutory decree which may be compared to property seized for rent at common h w and replevied. It is not conclusive or definitive on the parties; the debv and uncertainty of decision are risks within the policy.
    CASE on a policy of insurance. Motion for a new trial. Verdict for plaintiff.
    This action was brought on a policy of insurance on the brig Harriet and Ann, bound to --. On her voyage ° ’ J ° outtvard she was captured and taken into Jamaica, where she was libelled and acquitted; but an appeal was made by the captors from the sentence of the vice-admiralty court in Jamaica ; in consequence of which, the supercargo, on board the vessel as agent for the concerned, was compelled to 1 give security for the production of the vessel and cargo, or r 1 , , , f- 1 payment or the appraised value thereof to the captors, m case the suit should bevdetermined in favour of the appellants before she was finally delivered over to him. 1 he supercargo, however, being a stranger in Kingston, and the plaintiff having no correspondent to value himself on, he , . was obliged to sell both vessel and cargo, and deposit the proceeds in the hands of the securities in order to indemnify them, in case the determination should be pro-raounced in favour of the captors. This was therefore a suit against the underwriters, as for a total loss of ves-u sel and cargo, on a valued policy for 6,756 dollars, in which , . . the jury gave a verdict for the whole amount. The present was therefore a motion for a new trial on the following grounds, viz:
    1st. Because there was no formal abandonment.
    2d. Because the insured ought to have made their election within a reasonable time after the capture, in order to have given the insurers an opportunity of making the most of the brig and cargo, and of sending on letters of credit* &c. to prevent the sacrifice of the property, for one-half, of one-third of its real value, as is usual in all such cases.
    3d. Because this ought to be considered as a nartial and not a total loss ; as the vessel and cargo sold for 4,618 dollars, as per account rendered by the supercargo.
    To this it was replied, on the part of the insured, in the first place, that the right to abandon in all cases accrued on the capture of the vessel, because then it is, that the object of the voyage is defeated ; and of this, the underwriters had due notice by the first opportunity after the vessel was carried into Jamaica. 1’hat the marine law has prescribed no precise form or mode of abandonment, as that must always depend upon circumstances which no m m can foresee or guard against; but in <he course of trade, letters of advice were considered as sufficient notice, and of this fací the underwriters had due notice by letters as soon as it was practicable ; and from that moment it was incumbent on the underwriters to have taken all legal and necessary steps to obtain the discharge of the vessel and cargo, but if they thought proper to rely on the exertions of the supercargo ; he from that time became their agent, and not the agent of the owners or shippers.
    Secondly, that it was not usual or customary for the insured in foreign ports or places where the underwriters-have no agents, finally to abandon the property on capture, and let it go totally to destruction, but to use all reasonable diligence to obtain restitution of vessel and cargo, or as much of it as was possible ; and thai when the result was known it was time enough to make this election, because it was at that period that the real loss was finally ascertained ; for instance, in the present case if the court of admiralty had decreed the vessel and cargo to have been given up without costs, and there had been no appeal, there would only have been a partial average loss, in which case the plaintiff could not have abandoned after the event was known ; this, therefore, shews the propriety of not determining finally to abandon till the result was known. And what was the result in the present case ? Why, the court of admiralty in Jamaica had decreed, that this vessel and cargo should be delivered up to the claimants upon payment of costs, from which decision there was an appeal by the captors; whereupon, and before the vessel and cargo were delivered over to the supercargo, conditions were imposed upon him, with which it was impossible for him to comply. He was ordered and directed to give security for the forthcoming of the vessel and cargo, or to pay the appraised value thereof in case this appeal should be determined in favour of the captors. What was to be done under these circumstances ? Why, either to sell the whole for the most that could be got for them, or allow them to remain, or probably to perish, in the hands of the marshal of the admiralty. He preferred the former as the wisest and best course for the benefit of all concerned, and deposited the proceeds in the hands of the securities for their indemnity, where it will remain to abide the determination of the appeal, and if it should go in favour of the claimants, the money will then be at the disposal of the underwriters. Then it was that the insured were enabled to judge of the whole of the circumstances of this case, and finally to make their election; and they did so ; and accordingly have gone over against the insurers as for a total loss, because it was, and is still, uncertain, whether the appeal will be determined in favour of the captors or the claimants ; and the proceeds are dependant on that event; which event is within the meaning of the policy, and was one of the principal risks the insurers undertook to warrant against when they under* wrot- on this policy ; and surely in the whole of this business, there has been no unreasonable delay or improper conduct on the part of the agent or supercargo ; and this appeared so evidently to the jury, that they gave a verdict for the plaintiff without the least hesitation.
    Thirdly and lastly, it was contended, that the insured had an undoubted right to abandon in all cases, whenever the loss amounts to a moiety of the sum inserted in the body of the policy, which is the amount covered by the insurance. The sum in this case, mentioned in the policy, was 6,756 dollars ; the gross amount of sales of vessel and cargo at Jamaica was 4,618 dollars; from which deduct the costs of the admiralty suit, disbursements and other incidental charges at Jamaica, as per account rendered 2,219 dollars, and there would only remain 2,389 dollars, even if the appeal should be dismissed ; leaving a clear loss of 4,367 dollars, considerably more than the moiety of the sum mentioned in the policy. It was therefore urged, that the defendants were not entitled to a new trial on this grounds.
   The Judges were unanimously of opinion, that the plaintiff had a right to abandon on the original capture ; and that this had been determined over and over again in our courts, but it did not follow that because this was a right which the insured might exercise, that they were bound in all cases to do it immediately after the capture ; for it was very much for the advantage of trade, and indeed for commerce in general, that this right should remain and continue until all prospects of regaining or getting back the property were at an end: otherwise, it would check and put a stop to all those laudable endeavours, which honest and faithful men have been in the constant exercise of in all parts of the world where captures are made, in order to reclaim and obtain a restitution of ships and cargoes ; and if the pursuit of those endeavours were to be the means of debarring men of their right of eventually abandoning the property to the insurers, very few if any would give themselves any trouble about it afterwards.

That in the present case, it appeared to them that the right to abandon continued in the insured until the sentence or decree of the court of vice-admiralty in Jamaica, and that it was by no means too late to make their election to abandon as soon as that event was known. But in the present case, they could not by any means consider the vessel and cargo as restored to the claimants; for upon the appeal being made, she was still subject to the right of the captors, and it was possible it might finally be given in their favour j and this was still a risk the underwriters were liable to, supposing them only liable to an average loss, although from the accounts produced, the loss exceeded the one moiety of the sum covered in the body of the policy of insurance.

That this order of restitution, however, by the vice-admiralty court at Jamaica, could be considered in no other light than as an interlocutory order; and the vessel and cargo, and the proceeds thereof, may well be compared to property seized at common law for rent and replevied, which was still liable to the landlord’s demand ; although the defendant had got back the possession of it till the right was finally determined, upon his giving security to return the property seized, or have it forthcoming to answer the demand in case the suit should go against him.

The Judges were therefore all of opinion, that the underwriters were liable, and that the rule for a new trial snould be discharged.

Present, Grimke, Waties, Bat, Johnson and Treze-■'7ANT.  