
    Ogden and Murray against The New-York Fire Insurance Company. The Same against The Same.
    NEWYORK,
    May, 1813.
    A detention of a vessel under the embargo of the United States, is a justifiable cause of aban» donment.
    After an abandonment for a total loss, if a sale of the subject insured becomes necessary or expedient, the insuredcannot purchase it on. his own account,without a waiver of the abandonment, though he has given notice to the insurer of the time and place of sale<,
    THESE were actions of assumpsit, on two policies of insurance, one on ship, the other on freight. The ship, called the Canton, was valued at 20,000 dollars, and the freight at 15,000 dollars. The policy was dated the 21st March, 1812. The voyage insured was at and from Charleston to Liverpool. The ship being in safety at Charleston, with a full cargo on board, .and ready for sea, on the 3d April, 1812, was cleared out, and the next day set sail with an intention of proceeding on her voyage, and dropped down the river, but was obliged to come to anchor at Rebellion Roads, about half way between the city and the bar, on account of adverse winds, by which she was detained until the 10th of April, when she was boarded by the officer of the customs, and informed of the embargo laid by the United States, and that she could not be allowed to proceed on her voyage. On the 20th of April, the ship and cargo, being still detained by the embargo, the plaintiffs abandoned vessel and freight to the defendants, who refused to accept the same; and the vessel being detained until after the commencement of the present war with Great Britain, the plaintiffs, on the 2d July, 1812, gave notice to the defendants ,that unless they accepted the abandonment, and agreed to pay the plaintiffs as for a total loss, they should cause the cargo to be discharged, and the vessel to be sold at Charleston, for the benefit of whom it might concern, on the 23d of the same month. The plaintiffs not having received any communication from the defendants, in consequence of such notice, caused the vessel to be sold at Charleston, pursuant to the notice, and at such sale, she was purchased by one Stynets for the plaintiffs, by their directions and authority, for 6,300 dollars; and she was immediately thereafter chartered by the plaintiffs to one Buckley, for a voyage from Charleston to Cadis, and back to a port in the United States, and has actually proceeded on the voyage, under such charter-party, which was in the usual form, and the freight made payable to the plaintiffs. The ship’s papers were not changed, but remained as they were at the time the insurance was No communication was made to the defendants on the subject of the charter and employment of the ship, which was worth the sum insured.
    The causes were tied at the New-York sittings, in November, 1812, when verdicts were taken for the plaintiffs, by consent, subject to the opinion of the court, on a case containing the above facts, and to an adjustment, with liberty to either party to turn the case into a special verdict.
    
      Colden, for the plaintiffs,
    The question as to the embargo, after the decision in the case of M‘Bride v. The Marine Insurance Company, is not intended to be argued here.
    The only question now to be discussed is, whether the sale and purchase by the plaintiffs, after an abandonment and suit brought, and notice of the sale, was a waiver of the abandonment.
    The only difference between this case and those of Abbot v. Broome,
      
       and Walden v. Phoenix Insurance Company,
      
       is, that here the plaintiffs themselves became the purchasers. That circumstance alone, where the sale is fairly made at public auction, Cannot make any difference. Due notice of the sale was given to the defendants, who might have purchased if they had thought proper. Under these circumstances, the plaintiffs, considered even as trustees, might have purchased.
    
      S. Jones, jun. and Wells, contra.
    After an abandonment, the assured becomes the agent of the insurer, and if he repurchases the property, it is for the. benefit of the insurer, who may elect to affirm the act of purchase or not. In case of a subsequent purchase, if the insurer avails himself of the advantage of- the purchase, and employs the vessel on his own account, it is a waiver the abandonment. The case of Saidler & Craig v. Church
      
       is Precisely in point There the master, who was also part owner, not only purchased the vessel on account of the owners, but they fitted her out and sent her on another voyage. In the case of Abbot v. Broome, the vessel, was purchased by the agent of the insured, and brought home and sold at public auction. There was Ho subsequent employment of her by the owners. The assured did no act to affirm the purchase ; nor did he appropriate the vessel to his own use. She was fairly purchased at public auction by. á stranger, and the Court considered the sale as made for the benefit of the underwriters; and judgment was given for a total loss, des ducting the proceeds of such sale, and the homeward freight earned. These facts were considered as materially distinguishing that case from that of Saidler & Craig v. Church, which would, otherwise, have been in point, and which was recognised and confirmed. The principle of that decision, and the distinction for which we contend, were also recognised as well settled, in the case of Jurad S v. The Marine Insurance Company.
      
    
    The case of Walden v. The Phoenix Insurance Company is not applicable. There tlie ship was never employed by the insured, after the abandonment, but was sold at public auction, and purchased by an agent of the defendants.
    
      
       5 Johns. Rep. 299.
    
    
      
      
         1 Caines’ Rep. 292.
    
    
      
       5 Johns. Rep. 310.
    
    
      
       1 Caines’ Rep. 297. n. See also Abbott v. Sebor, 3 Johns. Cas. 457. S. P.
    
    
      
       7 Johns. Rep. 412, 413.
      
    
   Per Curiam.

There can be no question, since the decision ire M'Bride v. The Marine Insurance Company, (5 Johns. Rep. 299.) that the detention by the embargo ivas a justifiable cause of abandonment. The only real point in the case is, whether the purchase and employment of the vessel by the assured, subsequent to the abandonment, was not a waiver of it, and turned the total into a partial loss. If the decision in Saidler & Craig v. Church, in July term, 1799, (see the substance of this case in 2 Caines' Rep. 286.) is to be regarded as authority, there can be as little doubt on this point as on the other. The plaintiffs, after the abandonment, caused the vessel to be sold and purchased in by their agent on their own account, and they immediately, and without any change of papers, or any communication with the defendants, employ the vessel on another voyage, The doctrine in the case, of The United Insurance Company v. Robinson & Hartshorne. (2 Caines’ Rep. 280.) applies very strong to the one before us, and undoubtedly goes the whole length of deciding it, and that ease has since been affirmed in error. The assured, when he abandons and claims a total loss, and is reduced to the necessity of a sale of the subject, cannot purchase it on bis own account, without waiving the abandonment. If he persevere in the claim for a total loss, he must surrender to the insurer the benefits of the repurchase; and this rule is founded in sound policy, to prevent fraudulent speculations upon a loss, at the expense of the insurer. The decision in Saidler & Craig v. Church has never since been shaken. All the subsequent cases that allude to it deem its doctrine to be sound; and the decision in Abbott v. Sebor (3 Johns. Cases, 39.) was on the same point, and grounded on that authority. The cases of Abbot v. Broome, (1 Caines' Rep. 292.) and of Walden v. The Phoenix Insurance Company, (5 Johns. Rep. 310.) were carefully distinguished from it, and. the decisions in those cases evidently admitted that if the assured, after a va]j¿| abandonment, sold and purchased in the property, on his own account, and for his own benefit, and not as agent or trustee for the insurer, he waived his abandonment, and could not go for a total loss.

There are no data in this case, from which any partial loss can be adjusted. The jury have liquidated none, and there is no provision for a reference, and the defendants are, consequently, entitled to judgment.

Judgment for the defendants.  