
    Bordes, Jun. against Hallet.
    Neither an acquittal, nor a restitution of goods, prejudice an abandonment once duly made. In case of a restitution of goods to the owner at the port into which a vessel is carried, he is not bound to send them on to their port of destination. Though an adjustment made by the agent of the outdoor underwriters (Mr. Ferrers) does not conclude the insurers from show- . • ing errors in it, if they do not dissent, they are bound.
    • This Was an action on a policy of insurance, dated the 21st May, 1800, to recover the amount of a trunk of merchandise valued at 800 dollars, and the expenses incurred in claiming the property in a foreign court of vice-admiralty.
    *The cause was tried before Mr. Justice RadclifE at the sittings in November, 1802.
    The case, as it appeared in evidence, was as follows:
    The plaintiff shipped the articles in question, on board the schooner( Trimmer, bound from New York to St. Jago de Cuba. On the 18th of May, 1800, he embarked with his property in the vessel; which, during the course of the voyage, was captured and carried into the port of Kingston, in the island of Jamaica, where she and her general cargo were condemned; but the trunk of the plaintiff, for which he had interposed a claim, was acquitted. Notwithstanding, however, this acquittal, and the decree for restoration, the agents of the captors refused to deliver it up. unless the plaintiff would'give security for its value; which, as a stranger, not being able to procure, they actually opened and took out the contents of the trunk, and the same were, for want of the security demanded, left in their hands.
    On the return of the plaintiff to New York, in November, 1800, he abandoned to the- defendant, and duly notified him of all the antecedent circumstances. He also, after proving his interest by a bill of lading, signed and acknowledged by the captain, submitted an account of his expenses in the prosecution of his claim for the goods insured; which in an average account, apportioning the whole, was settled on the back of the policy, at 9 dollars and 48 cents pei cent, by Mr. Ferrers, who acts for the defendant and other underwriters in adjusting claims against them. Mr. Ferrers, however, testified, that though he was thus employed, and though the underwriters did usually assent to, and pay according to his reports; still, he had no binding authority on them, for that they often disputed his statements; notwithstanding they had not, to his knowledge, on the present occasion, either assented to or dissented from the calculation he had made.
    To ihis testimony, the counsel for the defendant objected, and insisted that the plaintiff was not entitled to recover. A verdict was, however, taken by consent, in favor of the plaintiffs, .Vr 978 dollars and 74 cents, subject to the opinion of the -court on the following points:
    * Whether the plaintiff was entitled to recover [*446] for a total losv, and the expenses ? If so, the verdict to stand. But if, in the opinion of the court, the plaintiff was not entitle. 1 to recover for the expenses, but for a total loss of the goods, then the verdict to be reduced to 902 dollars and 90 cw.ts; and if'the plaintiff was not entitled to recover for a total loss, but for expenses only, then the verdict to be entered -br 75 dollars and 84 cents; otherwise, a verdict- to be enter nl for the defendant.
    
      Hbffiha-n, for the plaintiff.
    From the facts presented to the court, it is manifest there was a capture of the vessel. This operates as a technical total loss, and, therefore, whether an acquittal subseq rently took place or not, is immaterial ; for the capture alone is sufficient to warrant the abandonment. After this, the assured, who, from the moment of capture becomes the agent of the assurer, returns, and making a full avowal of what had taken place, says, I have done all I could ; but the event does not alter the law, I am now, for the first time, able to communicate with you and abandon. It is not however* from the cáptate alone that the plaintiff is entitled to abandon. A loss of the voyage affords an equal right. Here the goods were bound to St. Jago de Cuba, and the vessel was carried into Jamaica, where she was condemned. -The only question that can arise is, whether on Mr. Ferrers’ settlement of the average account, the defendant is bound to pay what he has endorsed on the policy to be due I But such is the ruin brought on this poor plaintiff, whose little all has been locked up by the refusal of the defendant to pay, ever since 1800, that rather than not have a decision on the principal question this term, he is ready to give up his expenses. As to those, without going minutely into the testimony, the question ought to resolve itself into this; what is the ¡relative situation of Mr. Ferrers with the defendant ? All claims, when made on the out-door underwriters, of whom the defendant is one, are referred to Mr. Ferrers. He gives his opinion whether liable to a total, or a partial loss. We do not say that when he gives his sentiments if he totally mistakes the law, that they are, on the facts submitted, obliged to pay a total, when only a partial loss is [*447] *due. But when an average loss is acknowledged, and the settling it referred to him, and he adjusts the sum, then, as the agent of the underwriters, they are bound by his report. This is not by affording an authority to settle a point of law, but as yielding a power over items of an account, the principles of which they acknowledge. Hay, even allowing the underwriters not concluded as to the principles, still, if in law at all liable, the quantum, except in cases of erroneous calculation, can never be questioned. It is like the case of a person deputed to audit the amount of claims; when the balance is struck, it is, errors ekcepted, final. The doctrine already relied on as to the right of abandonment is not impaired by subsequent rest! tution. For this the court will find authority in 2- Marsh, 484. ' '
    
      Pendleton, contra.
    A principal'question in this cause is as to the expenses in the vice-admiralty. The claim for ■these rests only on the report of Mr. Ferrers ; for this is the Only evidence in the case that-any were incurred. Such testimony, however, cannot bind the underwriters; fór Mr. Ferrers himself states his employment to be merely .that of reporting; after doing which, his statement is frequently disregarded, and his adjustment disputed. This' would never- be, had Mr. Ferrers an obligatory authority! .Thé fact is, he is a mere examiner of accounts, and cannot bind his principals beyond the scope of his authority. He testifies that his principals have a right to dissent from his statements of which the present action is in, itself the strongest proof. But a question is certainly made, whether the abandonment was in due season. The vessel sailed in May, was captured on her voyage, and the abandonment not made till November following. This, considering the distance of Jamaica, was a gross delay. We find, however, from the testimony of the captain of the vessel, that. this property was acquitted. The plaintiff, therefore, might have had it again had he so pleased. It is a position not to be controverted, that every court is invested with power to enforce its own authority; therefore, if after restitution awarded, it was not obtained, it must have arisen from the neglect of the- plaintiff] or- ,- some *other worse cause; for, he might have ap- [*448] plied to the court, and have obtained an order for it. In case of refusal, the process was easy, attachment for a contempt. See ante, note, 445. - It is said, however, that as the voyage was lost, that-circumstance would justify an abandonment. This will present a question to the court that has not, we believe, ever been decided. Whether an owner of gopds, where the vessel in which he ships is.-incapable of proceeding on her voyage, by reason of any acuident, is not obliged to proceed with his goods in some other vessel? Nothing of this sort appears to have been determined. Supposing him however, bound, ought not the assured, to entitle himself to a recovery, to show that no vessel could be obtained to forward the property; or ought the insurer to show, by way of defence, that there was ? The principle is, that the captain ought to get a vessel, if such a one be to be found; and it is only in cases of necessity that he is authorized to abandon the voyage; if in his power to proceed, he ought to do so; had it been otherwise, it ought to have appeared in the cage. 2 Marsh. 378. So in Manning v. Newnham, Park, 168, Lord Mansfield lays the stress of the case on the captain’s not being able to get another vessel to go on. It is settled, that when the bottom is necessarily changed by shifting the goods from one vessel to another, the underwriter continues liable. Sending on the goods, therefore, in another ship, would not have exonerated the defendant; and as it was the plaintiff’s duty, he ought to make out his case by showing another vessel could not be obtained. This, certainly, is more proper than for the defendant to be put to prove a vessel might have been procured; because the assured is to be presumed to have a correspondent where his property may be carried, but the underwriter is, not. Besides, the plaintiff was on the spot, and as he might have procured restitution from tne court of. admiralty, he may, admitting all the evidence in the case to be true, be now in another country with all the property in his possession.
    Hoffman, in reply.
    That it is the duty of an assured on goods, in case of capture and restitution to send on the articles to the port of their destination before he [*449] can be entitled *to recover, is a position, till now, unheard of in insurance law. He may, perhaps, do it under the general clause, empowering him, or his agents, to act for the insurers; and, if Iona fide done, they may, perhaps, be liable. But no authority, we presume, can he have • to change a neutral into a belligerent risk, as it is probable must be done, in sending from the port of a nation at war. But, allowing it to be as contended, it ought to come from the defendant, because it is urged as an excuse for not paying a total but a partial loss. The plain case is, there was a capture, and the voyage totally defeated. Either event will justify an abandonment. The restitution is for the benefit of the assurer, who may prosecute his claims upon it, by forcing the captors to go on with their appeal • but, on no principle can it be Contended, that the assured must follow it up, to entitle him to recover. This would destroy the very intent of insurance, which is in case of loss, to put the underwriter in the place of the underwritten.
    
      
      
         It seems from this, that the captors had entered an appeal from that part of the sentence, acquitting the trunk; in which case they were not bound to deliver the property, without security for paying the value, in case of a reversal.
    
    
      
      
         A ship-owner contracts to carry; a shipper does not; therefore, ho who does not engage, ca.i never be obliged to perform.
    
   Lewis, Ch. J.

delivered the opinion of the court. The objections to the plaintiff’s recovery, on this statement of facts, are,

1st. That he had no right to abandon after the acquittal of the property insured. See Muir v. United Ins Co., ante, 53, note (a).

2d. That the abandonment was out of time.

3d. That he was bound to have procured another vessel.

4th. That the defendant was not bound by the adjustment.

It is stated in the case, that the vessel sailed about the 17th of May, 1800 ; but when she was captured, or when condemned, does not appear. It appears, however, that though the trunk of goods, on which the insurance was made, was, by the sentence of the court of vice-admiralty decreed to be restored, the plaintiff could not regain the possession of it, and that he abandoned it to the underwriters, on the 22d of October following.

Within what precise period an abandonment ought to be made has never been determined. The time permitted to elapse between, the condemnation, order of restitution, and abandonment in the present instance, cannot be inferred from anything in the case. It is certain, however, that the loss was total on the 22d of October, and has so [*450] continued *to the present moment. The voyage to St. Jago de Cuba, was completely broken up, and the plaintiff has never had it in his power to convey the goods thither, even had it been incumbent on him so to do, for he has not been able to recover the possession of them. There is no ground, then, on which either the first, second, or third objections can be supported. Had the plaintiff even recovered the possession of his goods, it would not, in my opinion, alter the case. • Ho direct intercourse can be presumed to subsist between the colonial ports of two belligerents; and were the" contrary the fact, this is not a case imposing an obligation on the plaintiff to procure another vessel.

The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permission in the policy, to labor, &c. without prejudice, &c. the insurer became liable to an average of the expense incurred in the attempt to recover the.captured property . It is true, he was not bound by the adjustment of Mr. Ferrers, and was at liberty to have shown that it was erroneous. But this was not even attempted. A circumstance which, when taken in connection with the character and employment of that gentleman, will warrant the conclusion that his adjustment is correct. We are, therefore, of opinion, judgment be for the plaintiff, for the largest sum found by the jury.

Judgment for a total loss and expenses. 
      
      
         Though it exceed the amount of his subscription. Lawrence & Whitney v. Van Horne & Clarkson, 1 Caines’ Rep. 276. Watson r. Mar. Ins, Co., 1 Johns. Rep. 62.
     