
    Ludlow against the Columbian Insurance Company.
    Insurance on goods from NewCTork to Newbern in N Carolina. The vessel stranded on Occacobe beach.~Not bejng- “We to get ately, themas-vim ofpersons" ^ere concluded voyage. Two days after, the goods were landed, and ten sord$dpiM^r' auction. The consignees bought the vessel having116 been got off, the goods to ^ Newbern. They were not opened, but were paclcage^’and though one box injured, there tibe°extent of the damage, that the insured had n,° to abandon for a total loss. To ioimwirtincase of stranding, the deteriorated to Thefimired^in this ca-.e were bound to send the goods to their place of destination, as the accident happened at tiie mo ith of the harbour, and lighters might have been obtained to transport the goods.
    THIS was an action on a policy of insurance, dated the 18th of January 1804, on goods valued at 860 dollars, on a voyage from New-York to Newbern, in North Carolina, J ° on board the vessel called the Nantasket.
    
    when The loss was thus stated in the declaration ; “ that the said vessel, on the 1st of February, 1804, on her voyage, was, by and through the force and violence of the winds and waves and currents, and by the perils and dangers of the seas, forced and driven upon and against certain shoals and reefs, and by means thereof, the said goods laden on board of the said schooner, were then and there wetted, damaged and wholly spoiled, and became totally lost.” &c. J
    
    The cause was tried at the New-York sittings, on the 4th ®f January 1806, before Mr. Justice Livingston.
    The policy, abandonment, and interest were proved.— r The vessel sailed from New-York, on the 20th of January, 1804, on her voyage to Newbern, and arrived off Occacoke Bar, on the afternoon of the 31st of January. A signal was made for a pilot, to conduct the vessel over the Bar, which lies near the mouth of the inlet. 7
    _ _ In the morning of the. next day, a pilot came on board, who conducted the vessel over the bar, where, on account of the darkness of the night, they came to anchor. The anchor fouled, and dragged, and the- vessel was driven by the violence of the wind and current on the reef, from which, by cutting the cable, she was got off, and was driven on the beach at Occacoke point. In drifting over the reef, the vessel lost her rudder and boat, and a great 7 ° part of her sheathing. The master went to Shell-Castle, about six miles distance, to gain assistance and advice, and applied to the deputy Marshall of the District, of the name of Wallace, who refused, on account of the situation of the vessel, and state of the weather at that time, to furnish lighters to take the goods out of her. After’many inefTectual f . , . , attempts to get the schooner off, the master, with the best advice he could obtain from the persons there, had the cargo unladen, on the second day of February, and advertised £Qr saje at pUyjc anction, for the benefit of all concerned. The schooner was about fifty tons burthen, and when the goods were unladen, she had several feet of water in her hold, occasioned principally by the surf breakingover her as she lay. The master, after the first day, did not apply for lighters, nor endeavour to obtain another vessel to .carry the goods to Newbern, though lighters might have been obtained. The vessel belonged to Dewey and Stow, who were also the consignees of the goods. Stow was on board of the vessel, and Dewey came from Newbern to Occacoke, and gave directions as to the sale of the vessel and cargo, which took place, at public auction, on the 13th of February. Dezuey and Stozv, the owners of the vessel, attended and purchased most of the goods. One box was opened, and appeared wet, but the goods were not taken out, or examined, but were all sold by the package, without inspection. In consequence of a favourable wind, and high tide, the vessel was got off, and the goods purchased at auction, were put on board and carried to Newbern.— Occacoke is about 80 miles from Nczvbern; about six miles from Portsmouth, and the same distance from Shell-Castle. The vessel, in going up to Nezvbern leaked, but was easily kept free by the pumps, and the cargo was not damaged. It appeared to be the practice to sell the cargoes of stranded vessels on the beach at Occacoke. Lighters may be obtained, at regular prices, at Portsmouth and Shell-Castle, to carry goods to Newbern, or to other places in the vicinity.
    The jury, after going from the bar, returned into court, and asked the judge whether, if Dezuey acted with good faith, but mistook the law, respecting his obligation to early the goods to Nezvbern, after the accident, the defendants xvere liable. The judge said, that if the jury believed that Dewey acted with good faith, they ought to find for the plaintiff.
    
      The jury found a verdict for the plaintiff, for 871 dol- *> 1 1 7 lars and 83 cents.
    A motion was now made to set aside the verdict and for a new trial.
    Bogert, for the defendants.
    The declaration avers a total loss of the goods, by their being wet and spoiled ; but the evidence does not support this averment. On the trial, the plaintiff gave no evidence whatever of aloss by sea-damage, but attempted merely to prove that the vessel was stranded, and incapable of transporting the goods to their place of destination. If it were intended to recover for a total loss, occasioned by sea-damage, it should have been proved that it amounted to more than 50 per cent of the value of the goods. The cause of loss must be stated according to the truth of the case, and the party must support his averment by correspondent proofs.
    
    Mere stranding is not a sufficient ground to recover as for a total loss of cargo. It must be followed by a shipwreck, or the vessel be wholly disabled from proceeding on her voyage, before the insured can have right to abandon.  Nor, if the goods be safe, can the assured abandon unless it is impracticable to carry them to their place of destination. It is the duty of the assured to find another vessel, if one can be obtained in a reasonable time. In the present case the vessel was stranded at the mouth of the river, on which the very port of destination lay, at a short distance inland ; and lighters were easily to be procured to carry the goods to Newbern,. The vessel, in fact, a few days after the accident, was got off, and did proceed to her port of destination, in a fit condition to carry the goods.
    The goods laid eleven days without any survey of them having been made; and were, afterwards, purchased at auction by the consignee, and sent in the same vessel to Newbern. The proceedings relative to the sale show a great want of good-faith; and an attempt to recover of the defendants, under such circumstances of suspicion, and gross mismanagement, ought not to be countenanced.
    
      
      The Court stopped Bogert, and desired the counsel for the plaintiff to begin.
    
      Hopkins and Brinckerhojf I
    The averment of the loss, is made in the usual manner, where it arises in consequence of stranding.
      
       Where a total loss is averred, you may recover for a partial loss ; and in cases of stranding you may recover for a partial loss. The declaration states that the goods were wet, and there is proof that some were wet; and in this view the extent of damage is immaterial. The declaration and proofs do not vary. The insured may abandon whenever any of the losses or perils mentioned in the policy happen. He is bound to make his election without delay, and to give notice to the insurer. When the abandonment is once made, the property remains afterwards at the risk of the insurers, and the master and consignee are considered as their agents. It is not always easy to determine when stranding is such a loss as will justify an abandonment.
    [Livingston, J. There can be no doubt, if the goods, in consequence of stranding, be deteriorated to more than half their value, that the insured may abandon.]
    Stranding, with some loss or damage, is a cause for abandonment. The mere innavigability of the vessel is not always a ground of abandonment; but ship-wreck is so, though in fact, there is no loss of the goods. In this case, the innavigability arising from the stranding, and attended with some damage, is equivalent to a shipwreck, and affords an equally just cause for abandoning the property.
    Whatever the master does, bona fide, though he mistake, is binding on the underwriters.  If all the facts be duly examined, it will appear that every thing in this case has been done with good faith, and that there is no ground for the imputation of fraud. In regard to the stranding, or accident itself, no fraud is pretended. The determination to break up the voyage, on that event, was made, after a deliberate consultation with the most respectable people at the place, and pursuant to their advice. If the opinion thus formed was incorrect in point of law, still it ought to be binding. Efforts were made without effect to get the vessel off. It was necessary to decide speedily, without waiting for the possible result. The proceedings relative to the sale of the property, were conducted according to the uniform usage and custom of the place, in similar cases. It was made at the usual place, after a public notification of ten days, and under the direction of a public officer of the district; the goods were sold to the highest bidder. Selling goods by invoice, or package, is a customary mode.
    [Spencer, J. The goods having been sold to the consignee, can they be considered as purchased by him in any other character than that of consignee, and for the use of the consignor .?]
    That the owners, or consignees purchased the goods, affords no objection. There is no principle of policy nor reason that prevents the consignee from bidding at a public auction. It was beneficial to all persons interested, as it tended to raise the price. As the continuation of the voyage depended on the condition of the vessel, not on that of the goods, it was unnecessary to open them, before the day of sale. It was better to sell them by the package, than by the piece. In short, there is nothing, in the whole course of the business, but what was usual, proper, and most for the interest of those concerned.
    
      
      
        Marshall, 593, 594. Park, 62, 63.
    
    
      
       Marshall, 416, 502.
    
    
      
      
        Marshall, 378, 499, 502, 505, 506.
    
    
      
      
        Marshall, 595, 719, Park, 398.
    
    
      
      
        Marshall, 593. Park, 62.
    
    
      
      
        Marshall, 482.
    
    
      
      
        Marshall, 510.
    
    
      
       2 Caines, 284, United Insur. Com. v. Robinson & Hartshorne, affirmed in error, March, 1806.
    
    
      
       2 Emerigon, 187, 188.
    
    
      
      
        Marshall, 408, 410.
    
   Per Curiam.

There was not sufficient proof in this case of a loss or deterioration of the goods to more than half their value, in order to entitle the plaintiff to recover for a total loss. The only evidence of any loss or damage, is the result of the sale of the goods at Occacoke, which ought not to be the criterion ; since it was made without any previous survey of the goods, or any inspection or disclosure whatever, of the extent of the damage. Yet the consignee was present, and the goods were in safe keeping twelve days before the sale, so that they might have been thoroughly examined. The case is not free from suspicion of fraud, arising from the conduct of the consignee in forcing the sale of the goods, and becoming the purchaser of a great part of them, at an enormous discount. If it be alleged that the loss was total m a technical sense, irom the inabiiir , , , • „ , , bv °f the vessel to transport the goods to Nexvbern, the contrary is proved, for, it appears that the consignee, who was the purchaser, had the goods transported, immediately after the sale, to Newbern, without any difficulty, where he sold them for his own benefit, but for how much, does not appear. Carrying goods from the beach up to Newbern, by lighters, does not appear to be unusual or improper, and Occacoke bar may be considered as the mouth of the harbour. We are clearly of opinion that the plaintiff has not made out a case of total loss, and that the verdict must be set aside with costs to abide the event of the suit.

New trial granted.  