
    Crosby et al, Plaintiffs and Respondents, v. The New York Mutual Insurance Company, Defendant and Appellant.
    1. In an action upon a marine policy upon a ship, to recover for a total loss, the ship having sunk at sea, it is not a defense that the insured sold and transferred his interest in her before she sunk, where it is shown that, prior to such transfer, she received an injury from the perils insured against, which rendered it impossible to keep her afloat, and made her subsequent actual loss inevitable.
    2. Where a vessel is so injured by the perils insured against that the assured has no means of saving her, and she subsequently sinks solely in consequence of such injury, the loss of the assured, from the time such injury is inflicted, is, practically and in substance, total, notwithstanding he may, in ignorance of the facts, have sold and transferred his interest in her after sho received such injury, and before she was actually sunk.
    (Before Bosworth, Oh. J., and Woodruff 'and Monorief, J. J.)
    Heard, June 15;
    decided, November 26, 1859.
    This is an appeal by the New York Mutual Insurance Company, the defendant, from .a judgment in favor of Seth Crosby, Ferdinand Crocker, and George Lovell, composing the firm of Crosby, Crocker & Co., the plaintiffs, entered on a verdict rendered on a trial had before Mr. Justice Pierrepont and a jury, on the 21st of May, 1858.
    The action was commenced on the 5th of November, 1856, on a Policy of insurance on the ship Adriana, for a voyage at and from New York to San Francisco and Benicia, and at and thence, &c. The Policy is dated March 21, 1856, and in it the vessel is valued at $10,000, the sum insured. The insurance is, in terms, “ on account of whom it may concern,” and the loss, if any, is payable to the plaintiffs. The action was brought to recover for a total loss. The complaint states that the insurance was made for the account of the plaintiffs, who, then and since, were interested in, and had a lien on, the vessel, her tackle, &c., to the amount of $10,000, together with all prior insurance thereon, “ which interest was and is, by reason and by means of advances and supplies and outfits furnished by said plaintiffs to said vessel for said voyage,” and also as trustees for 0. 0. Duncan, mortgagee in possession, and also as trustees for David Croolcer, William D. Orooker, Thomas D. Wilder, Augustus Palmer, Howard P. Wig-gin, Samuel Swanton 2d, Horace Parlin, Silas W. Parlin, William H. Parlin, Theodore Ripley, and Isaac Preble, part owners of said ship, and also as trustees of W.-S. Lindsay, Edgar P. Stringer, George Gladstone, and Edward Pembroke, mortgagees and bottomry holders in possession of said ship.
    The answer denied all the allegations óf the complaint, and. alleged that the ship was unseaworthy.
    At the trial, the defendants, when the cause was opened, stated “ that they now admitted their liability for three-fourths of the loss, and only. offered. defense as to one-fourth, and that they defended as to this one-fourth solely on the ground of change of interest as to this one-fourth, after the inception of the Policy and before the loss.” The Policy, the protest of the master and mariners belonging to the ship, and the ship’s register, were read in evidence, and proof was given of service of the protest as proof of loss, and of a certified copy of the register as proof of interest. Depositions as to the fact of a loss and its cause were read. It was proved that the vessel encountered a storm on the 16th-of April, and sunk on the 6th of. May, 1856. It was also proved that William D. Orooker, a registered part owner, by a bill of sale, dated April 18, 1858, conveyed one-eighth of the ship to George W; Kendall and John G. Richardson; and that David Orooker, a registered part owner, by a bill of sale, dated April 21, 1856, conveyed one-sixteenth to the same parties; and that Theodore. Ripley, a registered part owner, by a bill of sale, dated April 17, 1856, conveyed one-sixteenth of the ship to said Kendall and Richardson ; and that these three bills of sale were delivered on the 24th of April, 1856. The plaintiffs’ claim, by reason of the stores'and ship-chandlery furnished the ship for the voyage, and their lien on- the ship therefor was proved to be $4,161.50, with interest from Miarch 19, 1856. The other facts material to be known are sufficiently stated in the.charge of the Judge.
    The defendants requested the Judge to charge,
    “That the defendants under this policy are liable only for- the proportions of' the interests existing at the- time the insurance was made, subsisting at the time of the loss, and that the plaintiffs must prove the interests as alleged in their complaint, -and can recover only for such; interests- existing at the time of the insurance, and averred in the complaint, as subsisted at the time of the loss.
    “ That the change of interest by the conveyances to Kendall and Richardson, by the bills of sale of April, completed by the 24th of April, precludes any recovery but for three-fourths of the amount insured.
    
      “ That the existence of the mortgages on the vessel is immaterial, the Company being bound only for the shares of the ship in which the owners’ interest, covered originally by the policy, subsisted at the time of the loss.”
    The Judge refused to charge the jury otherwise than as hereinafter stated, to which refusal defendants’ counsel then and there excepted.
    The Judge in charging the jury spoke as follows:
    “ You will be very much limited in your inquiry in this case, as the questions are few indeed upon which you are' to pass at all. There is no dispute about the loss of the vessel, about the insurance, and the question of seaworthiness is not made.
    "The defense is, that on the 24th of April, there was a change or sale of a quarter interest of the ship, and that in consequence of that change (the Insurance Company never having given assent to it one way or the other) this policy does not cover the interest of parties who acquired it on the 24th day of April. They claim that the loss happened on the 6th of May following, and consequently that the parties who got one-fourth on the 24th of April were not insured under this policy. The plaintiffs on the other side contend, 1st, that this change of interest does not affect the recovery, and 2d, that this loss did occur on the 18th of April, prior to this transfer of the one-fourth interest. It is very clear that the ship went down on the 6th of May, and if you believe the testimony, it is very certain that she encountered a severe thunder storm on the 16th of April, as she was bound around Cape Horn, going south, and sprang a leak. On the 18th of April there was another storm, which increased the leak, and on the 21st or 22d of April, after a consultation of the officers of this vessel, they came to the conclusion to put in to the nearest port for safety, and they made for Bermuda. But the wind changed, and they were not able, as they supposed, to make that port with safety, and they turned about for another port, and sailed for Halifax. The rest of the testimony is all before you. The mere fact that the vessel sank on the 6th of May, does not prove that she was not destroyed so far as to be covered by this Policy at an earlier date; the vessel might have been injured days before she went down, and though she did not sink until sometime after the injury, yet the ruin might have been done at the time she received the injury as effectually as though the vessel had gone down on the same day, if she did sink solely in consequence of that injury.
    “ If the hands had all left the vessel on the 18th when they encountered this storm, and the vessel had tossed about for some time, and then gone down; yet if the injury which caused her to go down was such as to excuse the desertion and to cause the destruction, this loss did occur in contemplation of' law before the 24th of April; so that, if you come to the conclusion that the storm which she encountered on the 16th or 18th of April, or at any time prior to the 24th of April, produced the fatal injury to this vessel, which caused her to sink, then the plaintiff is entitled to your full verdict in any view of the law which has been presented. But if you should come to the conclusion that she was lost in consequence of the storm that occurred after the 24th of April, after the transfer of the one-fourth interest, then your verdict will be for three-fourths; otherwise for the whole amount claimed. I do not see that I need to comment at all upon this evidence; it has been clearly presented; it has been nearly all in writing, and distinctly read; you will observe that the storm commenced on the 16th, and that on the 22d of April they put about for a port of necessity; on the 6th of May the vessel went down; yojr have heard that described; if you come to the conclusion that she received her fatal injury (as heretofore explained) prior to the 24th of April, your verdict will be for the plaintiffs,, for the whole amount; but if you come to the conclusion that the fatal injury was received after that date, your verdict will be for three-fourths, and the calculations can be made by the counsel without detaining you."
    The defendants’ counsel then and there excepted to so much of the charge of his honor the Judge:
    1. As instructed the jury, that “ the mere fact that the vessel sank on the-6th of May, does not prove that she was not des-
    
      troyed so far as to be covered by this Policy, at an earlier date; the vessel might have been injured days before she went down; and though she did not sink until sometime after the injury, yet the ruin and damage might have been done at the time she received the injury as effectually as though the vessel had gone down on the same day, if the vessel did sink solely in consequence of this injury.”
    2. As instructed the jury, that “ if you come to the conclusion that the storm which she encountered on the 16 th or 18th of April, or at any time prior to the 24th of April, produced the fatal injury to this vessel, which caused her to sink, then the plaintiffs are entitled to your full verdict in any view of the law which has been presented. But if you should come to the conclusion that she was lost in consequence of the storm that occurred after the 24th of April, after the transfer of the one-fourth interest, then your verdict will be for three-fourths, otherwise for the whole amount claimed.”
    3. As instructed the jury, that “ if you come to the conclusion that she received her fatal injury as heretofore explained, prior to the 24th of April, your verdict will be for the plaintiffs for the whole amount; but if you come to the conclusion that the fatal injury was received after that date, your verdict will be for three-fourths.”
    The jury rendered a verdict in favor of the plaintiffs for the full amount claimed, ten thousand two hundred and twenty-seven dollars and sixty-six cents ($10,227.66.)
    A stipulation was entered into between the parties, by which the defendants paid three-fourths of the verdict, and the plaintiffs were permitted to enter judgment, in form, fos the other fourth and costs, and the defendants appealed from the judgment so entered, in order to test the question of their liability for the remaining one-fourth. The stipulation provided that if the defendants succeeded on the appeal, the plaintiffs should not be entitled to costs previous to the appeal, and that the costs of the appeal should abide the event.
    
      Wm. M. Evarts, for defendants, (appellants.)
    I. The insurance having been effected upon the interest of the owners, and the owners of one-fourth part having by the bills of sale, made respectively on the 17th, 18th and 21st of April, and delivered and recorded on the 24th, conveyed away all interest in that portion, the plaintiffs can recover under the Policy for three-fourths only, unless the Adriana became a total loss prior to such conveyance.
    1. The interest, in respect of which the insurance was effected, must, in order to entitle the insured to recover on the Policy, be a subsisting interest during the risk, and until and at the time of the loss. (1 Arn. Ins., 281; Phil. Ins., §§ 87 and 185, and cases cited; Powles v. Innes, 11 Mees. & Welsb., 10; Carroll v. Boston Marine Ins. Co., 8 Mass., 515 ; Gordon v. Mass. F. & M. Ins. Co., 2 Pick., 258.)
    2. The complaint avers interest in the plaintiffs as trustees of the parties who conveyed the fourth part in question to Kendall & Richardson.
    II. The vessel insured had not become a total loss when the change of interest in the one-quarter was effected.
    1. The complaint alleges the loss to have taken place on the 6th of May, and not before.
    2. When the transfer was made she was still a ship, waterborne, pursuing her voyage, and transporting her cargo; and, as to the one-quarter, she was sold as such.
    3. At no time between the discovery of the leak and the transfer was the condition of the ship such as to justify an abandonment to the underwriters, for prior to May 1st she could be kept free from water.
    4. The case is to be considered as if the policy upon the one-fourth had expired at the time when the sale was effected; the insured could not, under such a policy, recover for a total loss on a vessel which continued on her course in the condition of the Adriana a full week after the termination of the risk. (Meretony v. Dunlop, 1 T. R., 260; Arn. Ins., 451, 452; Phil. Ins., §1148.)
    III. If it were true that she was fatally damaged or received her death blow on the 16th of April, or at any time before the transfer, still the fact that the quarter was sold and the price received, would preclude the possibility of a recovery under the policy by the vendors for a total loss. They sustained no loss, and there is nothing for which they could ask indemnity. The plaintiffs representing the vendors, as trustees, can recover no more than the vendors could.
    1. The owners of the portion sold have received their own price for it, as acknowledged by the bills of sale, and on their behalf) the plaintiffs are struggling to make the insurers pay for it again.
    2. The purchasers of the quarter in question might have insured that portion, and would have been entitled to recover for a total loss. There cannot be two parties with an insurable interest as owners of the same subject, and so entitled to exact double indemnity for its loss.
    3. The plaintiff’s fallacy consists in confounding the fatal damage to the structure of the ship with actual loss to its owners of their property in it.
    IV. The Court below erred in directing the jury to find for the plaintiffs for the full amount claimed, if they came to the conclusion that the Adriana received her fatal injury prior to the 24th of April. There is no evidence in the case to justify such a finding, or to warrant the submission of the question to the jury.
    1. No leak was discovered prior to the morning of the 19th of April, and up to that time the ship had encountered no unusual perils, except upon the 16th, “heavy rain and lightning,” which, however, could not have caused the leak.
    2. After the discovery of the leak, and before the storm of May. 1st, the ship met with no disaster or storm or bad weather or extraordinary peril, and was all the while kept free from water.
    3. During this whole interval she was daily within reach of assistance, but her officers spoke no vessel and sought for no assistance, and made no efforts to lighten or relieve their ship until after the storm of May 1st.
    4. The proximate cause of the loss, the real death blow, was the hard gale from the eastward of May 1st, which continued until the 3d. This caused the ship to labor very heavily, and first made the leak dangerous. It was followed by the bursting of the pump on the 4th of May, and not till then did the ship become unmanageable.
    V. If the vessel can in any sense be said to have become a total loss at any time before the transfer of the quarter in dispute, the price received by the owners of that portion as ascertained by the bills of sale, was in the nature of salvage, and went as such by abandonment to the underwriters, and this amount should have been accounted for to the defendants, and their proportion deducted from the verdict. (2 Phil. Ins., § 1714; 2 Arn., p, 1178, and cases cited.)
    The judgment should be reversed; and under the stipulation the complaint dismissed, with costs of the appeal.
    
      Dexter A. Hawkins, for plaintiffs, (respondents.)
    Insisted that a change of interest as to the one-quarter, after the inception of the risk, and before the loss, does not terminate the Policy pro tanto, but that it continued in force for the benefit of the purchasers, and that the plaintiffs may sué on it for the benefit of such purchasers. (Sparks v. Marshall, 3 Scott, 174; 2 Bing. N. C., 774; Perchard v. Whitmore, 2 Bos. & Pul., 155.)
    That even if such transfer terminated the Policy, pro tanto, as to such owners, still it continued in force to cover the merchant’s lien for outfits supplied on the credit of the vessel for this voyage ; and that those having such lien were parties concerned at the date of the Policy, and up to and' at the time of the loss. (1 Arn., 219, 252; Irving v. Richardson, 1 M. & Rob., 153; S. C., 2 B. & Ad., 193; 4 Dall., 424 ; 3 Burr., 1394; 1 Bos. & Pul., 316.)
    That the verdict is conclusive that the fatal wounds on account of which the vessel was lost, were received by her in the storm of the 16th and 18th of April, and before the 24th. She was, for any beneficial purpose, as completely out of existence then as though at the bottom of the sea, where she soon sunk. The subsequent transfer (and which was made under a mistake of facts) could not in any way affect the defendant’s liability for the loss or damage previously sustained, and that loss was in substance total. (Barr v. Gibson, 5 Mees. & Wels., 390; 2 Duer on Ins., 5, 6; id., 570; Coit v. Smith, 3 Johns. Cas., 16 ; Howell v. Protection Ins. Co., 7 Ohio R., 284; 4 Kern., 143; 2 Arn., 1000-1004; Roux v. Salvador, 3 Bing. N. C., 266; Mellish v. Andrews, 15 East, 15; Hare v. Travis, 7 B. & C., 14; 1 Phil. on Ins., 706, 707.)
   By the Court—Moncrief, J.

The words in the Policy, for whom it may concern,” must be applied to the interest of the parties, and only the parties for whom it was intended by the person who effects or orders the insurance. (7 Har. & Johns., 417; 2 Caines, 203 ; 4 Wend., 75; 8 id., 144; 24 id., 276.)

Those terms are always controlled by proof of the parties for whose benefit the insurance was in fact intended. (Sharp v. Whipple, 1 Bosw., 567.) Proof was given showing that William D. Crooker, David Crooker and Theodore Ripley were the owners of the one-fourth interest in said vessel up to the 24th of April, 1856, on which day bills of sale therefor (of previous dates) were delivered to Kendall & Richardson, the purchasers.

On the opening of the case on behalf of the plaintiffs, thé defendants stated that they defended as to this one-fourth solely, on the ground of change of interest as to this one-fourth, after the inception of the Policy and before loss.

The jury, upon the evidence in the case, found, as a matter of fact, that the vessel, “ before the 24th of April, received the fatal injury which caused her subsequent loss by sinking, on the 5th or 6 th of-May following.”

The vessel having received a death wound before she was sold, then it is true that by the perils insured against she was damaged while owned by the insured, and they should recover to the extent of that damage, though they sell her subsequently and before the destruction is visibly complete.

The question then arises, what, on such a state of facts, was the extent of the damage or the loss ? Wherever it appears that neither the assured nor the underwriters could exercise any control over the vessel, and that in the course of the voyage the vessel had been placed in such a position that it was totally put of the power of the assured or the underwriters to procure her arrival, the voyage being arrested and the vessel receiving a damage which, considering its nature, rendered it certain that she could not reach her original destination, the loss is absolutely and of Itself total, independently of the election of the assured to treat it as such.

The loss is in its nature total to him who has no means of recovering his property, whether his inability arises from its annihilation or from any other insuperable obstacle. (It is only in case of a constructive, not of an absolute total loss, that an abandonment is necessary.) (1 Curtis, 152; 9 Barn. & Cress., 411; 2 Maule & Selw., 240; Park., 169; 3 Bing. N. C., 266; 14 Conn., 50.)

If the damage was such that the vessel could not get into port, but sunk at sea, the loss was practically total, and in substance .and good sense amounted to the sum insured, and the defendants are bound by the very terms of their contract to pay the whole sum insured. (3 Johns. Cas., 16; 3 Bing. N. C., 266;. 6 Mass. R., 465; 7 Ohio R., 283.)

No cases say that the bare existence of the hulk, “ the mere congeries of plank and iron ” of the ship, prevents the loss from being total.

The exceptions, therefore, not being well taken, the judgment will be affirmed in conformity to the stipulation between the parties.

Judgment was ordered accordingly. 
      
       The case of Duncan et al. v. The Great Western Insurance Company, was argued at the same term as the above, involved substantially the same questions, and was similarly decided.
     