
    Mordecai & Co. vs. The Fireman’s Insurance Company.
    
      Insurance — -Abandonment—Master—Agent.
    Under all the circumstances of the ease, it was held that the assured were justifiable in abandoning the cargo of a wrecked vessel to the insurers, although the cargo was damaged to less than half its value, and it was further held, that from the time of the abandonment, the master became the agent of the insurers, and they were liable for his acts.
    BEFORE WITHERS, J., AT CHARLESTON, SPRING TERM, 1859.
    Tbe report of his Honor, the presiding Judge, is as follows:
    ■ a The action was assumpsit by the plaintiffs on a policy of Marine Insurance for four thousand eight hundred, and thirty-seven dollars, which was claimed in this action, with interest. The property insured was one-half of a cargo of lumber and rice, shipped by the plaintiffs on board the schooner Daylight, Daniel Chandler master, hence to Cardenas, and consigned to Harris & Co., at that place. The vessel was wrecked, totally, on one of the Bahama banks, off Nassau, N. P. The wreckers took possession, and carried the rice, at the instance of the master, to Nassau, (the lumber not being deemed worthy of saving,) and the rice was there placed in the warehouse of T. Darling & Go. They advised the master, and all the witnesses examined upon the point concurred, that it was wise to have the rice, and lumber and hull of the vessel sold, and the master adopted that course, the wreckers concurring as to their interest in the rice ; and under the like advice the master and the wreckers referred to arbitration the quantum of salvage, which was fixed at forty per cent. The rice was sold accordingly, for six thousand four hundred and eighty-one dollars and twenty seven cents, gross, from which was deducted the salvage and expenses ; the lumber and the vessel were sold as they lay, for a small sum, and the net proceeds of the whole were paid to the master, who never paid it over to anybody, but professed to have been robbed on a journey from Baltimore northward. He received at Nassau, in American gold, three thousand four hundred and thirty-six dollars and twenty cents. If the defendants were liable to plaintiffs, the master ought to have paid to the insurers one-half of what he received, and to another company, which had insured the half of the cargo, the other half. The defendants remitting the plaintiffs to Chandler for the one-half received by him, tendered three thousand and ninety-two dollars and ninety-one cents, which was refused, and they demanded in this action the whole sum insured.
    “ After the verdict of the jury, it is not to be doubted that the vessel was stranded by force of the peril of the seas, and that notice of abandonment was given to the defendants, in due time; that the voyage prescribed in the Daylight, was wholy frustrated ; and that if the cargo was sent forward to the original place of destination, it must necessarily have been done by means of some other craft; nor is there any question remaining that the forwarding, if done at all, must have been effected from Nassau; that the services of the wreckers were indispensable in conveying it to that place, whereby they founded upon it their lien for salvage, and that such claim would have to be satisfied by raising the money necessary. The master had no means to raise the money except by hypothecation of what was saved, so far as appeared. The evidence from Nassau was strongly and concurrently to the effect, that a re-shipment for Cardenas would be attended by delay, at all events; that though less than one-half the rice was damaged by sea-water, a portion of the residue was in bad order — some of the casks having suffered in the circumstances they had encountered; that the market for rice at Nassau was good at the time; that a sale was necessary, else the wreckers would have resorted to admiralty, and various other reasons were assigned which may be seen in the evidence, all in commission, and need not be recited here. An estimate was made,’ founded upon the idea of re-shipment, and the net proceeds for owners was set down at one thousand ' nine hundred and twenty-four dollars, the salvage having been deducted; whereas the actual sales produced, net, more than three thousand five hundred dollars, of which three thousand four hundred and thirty-six dollars and twenty cents was paid to Chandler — the estimated saving was, therefore, near one thousand six hundred dollars.
    “ The defence seemed to rest on the grounds:
    
      “ That by the law of Marine Insurance, damage by seawater of one-half the goods would alone authorize an abandonment, by assured, to the insurers; or if any other cause would, no such had been shown in this cause.
    “ 2. Upon certain words found in the policy, viz : “ In case of loss of the vessel, or a part of the cargo, or damage of the whole or part thereof, it shall be the duty of the master, or agent of the assured, to forward such parts of the cargo as may be saved in a fit condition to be shipped, to its port of destination, by the best conveyance obtainable at the place where the saved goods may be, or at any other place within a reasonable distance.” at the expense of the insurers. “ It is agreed that in case of damage to part of an invoice, the sound goods shall not, on that account, be sold.”
    , “ I thought the authorities cited authorized the positions, and I instructed the jury accordingly.
    “ 1. That if the ship was stranded by stress of weather, (which was not contested,) and in such position and circumstances as required the services of the wreckers, and they rendered them accordingly, and the captain had not the means to lift the lien of the wreckers on the cargo — the clause in the policy, hereinbefore cited, was not longer the law of tbe contract, and presented the question whether circumstances had occurred that rendered it impracticable to carry out that stipulation.
    “ 2. That if the voyage had been broken up, and the terms of the contract, as to its further prosecution, rendered impracticable ; or if it was not worth pursuing; or if the venture had been frustrated by a peril insured against; such causes were good causes 'of abandonment to the insurers.
    “ 3. If a cause for abandonment occurred, and such abandonment were made in due time by the assured, the act of abandonment related back to the period when the disaster warranting it occurred, and then and thenceforth the master became the agent of the defendants, and the plaintiffs were not responsible for his conduct and subsequent occurrences.
    “ The jury found a verdict for the plaintiffs to the amount insured, and interest.”
    The defendants appealed on the grounds :
    1. That by the testimony it appeared that the cargo which was the subject of Insurance, was landed at Nassau in specie, and but little damaged, and that his Honor, the presiding judge, erred in not charging the jury that no subsequent occurrences could warrant an abandonment.
    2. That the entire change made in the thing assured, by a sale by the Master, forbade a valid abandonment, and his Honor erred in not so charging the jury.
    3. That the sale of the cargo by the master was an error of judgment for which the underwriters were not liable, and his Honor erred in not charging the jury, that any loss thereby occasioned should fall upon the assured.
    4.That no legal necessity for a sale having been established by tbe testimony, tbe sale by tbe master was as agent of the owners of the cargo, and not as agent of the underwriters, and his Honor erred in not so charging the j ury.
    5. That his Honor erred in charging the jury, that an abandonment could be made of a cargo damaged much less than fifty per cent, of its value, by sea-water.
    6. That his Honor erred in charging the jury that the master became the agent of the underwriters under the circumstances of this case.
    
      De Saussure, for appellants.
    Porter, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The argument for the. defendant was earnest and elaborate, but it has not convinced us of any important error in the Circuit Judge. It is true that a large portion of the cargo insured was landed in specie at Nassau, but it was so landed by wreckers, whose claim for salvage, afterwards fixed at forty per cent., was demanded, and must have been promptly paid. The master had no means of payment except by a sale of the cargo, recommended to him by competent advisers. There was no ship in Nassau, nor, so far as we are informed, in any neighboring port, by means of which the cargo could be carried forward to Cardenas, the port of destination. The expenses of transhipment, if a vessel could have been procured after the stranding and loss of the Daylight, apparently would have amounted to fifty per cent, of the value of the cargo. We suppose, that under all the circumstances of the case, the abandonment by the insured was justifiable, and that thenceforward, the master became tbe agent of the insurers. His suspicious pretence of losing by robbery, the money paid to him at Nassau, half of which was payable to defendant, can justify no reduction in the verdict, if the master were, subsequently to the abandonment, the agent of the insurers. The facts were submitted, to the jury on instructions which seem unobjectionable.

It is ordered that the appeal be dismissed.

O’Neall, C. J., and Johnston, J., concurred.

Motion dismissed.  