
    Joseph Cohen, Jr., vs. The Charleston Fire and Marine Insurance Company.
    It is not necessary for the assured, on the vessel’s reaching its destination in a foreign port, to give notice to the underwriters of its condition, before the former can abandon for a total loss.
    Whenever the repairs of a vessel at the port where they are to be made, will exceed one-half of its actual value at such place, after the repairs are completed, the assured may abandon for a total loss.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TEEM, 1837.
    This was an action on a policy of insurance of the schooner Harriet, at and from the port of Charleston to Mobile ; sbe was insured in the policy at three thousand five hundred dollars. Her cost a. short time before the insurance, was three thousand dollars; her sea stores, wages of her seamen, insurance, &c. amounted to four hundred and twelve dollars and fifty-two cents.
    She sailed on the voyage insured, encountered heavy gales which materially injured her hull and rigging; she, however, reached her port of destination — was then surveyed, condemned as no longer fit for sea, and not worthy of repair, and recommended to be sold, which was accordingly done.
    The cost of repairing her, was stated by the ship-carpenter, at Mobile, thus: “to repair her hull, the carpenter’s work would be from one thousand seven hundred to two thousand dollars; to refit her rigging, would cost five hundred or six hundred dollars.” An average result of this estimation would have made the repairs two thousand four hundred dollars. All the witnesses concurred that the vessel was not worth more than three thousand dollars, when she sailed from Charleston.
    She was proved, by one witness, not to be sea worthy when she left Charleston; he said she ought to have been condemned at least two years before she sailed on this voyage. He had once seen her run on shore some time before she sailed. The other witnesses concurred in ascribing her situation, when she reached Mobile, to the storms which she had encountered. One of the plaintiff’s witnesses- proved that be bought the vessel for the plaintiff at three thousand dollars; that he examined her minutely; that she was seaworthy when she sailed. It was also proved that the company had inspectors, whose duty it was to inspect vessels before they were insured.
    His Honor instructed the jury, that to be sea-worthy, a vessel must be staunch, and well found for the voyage before her; in other words, that she must be capable in ordinary circumstances -of reaching in safety her port of destination.
    The question in this behalf was a mere question of fact, submitted to the jury after a recapitulation of the testimony, and after their attention had been pointed to such parts of it as seemed to be material.
    The insurance of the vessel was for a greater sum than she wras Worth; it, however, included the value of the vessel, her sea-stores, seamen’s wages, and insurance, which approached within .a few dollars of the sum set clown. _ But the policy was an open one; and in the opinion of the Court, the value of the vessel set down concluded-neither party, and did not affect its validity.
    His Honor ruled that notice of the condition of the vessel when she reached her port of destination, was not necessary to have been given before the vessel was sold, for and on account of all concerned. There was no offer on the part of the insurers to repair, and hence, the assured could not be affected by a right to do that which was not done.
    In relation to the question, whether the assured had the right to abandon for a total loss, it depended upon the cost of repairs. The rule seemed to be, that where the repairs would amount to one-half, the vessel was unworthy of repair, and it was a total loss. It was questionable, whether in estimating the value of repairs, in a case of total loss, one-third new for old was to be deducted. In this case, allowing the deduction, the repairs would still have been one thousand six hundred dollars, exceeding the half value of the vessel.
    The jury found for the plaintiff the value of the vessel, at three thousand dollars, deducting therefrom the net sale in Mobile; and two per cent, discount under the policy, with interest from sixty days after notice of the loss to the company.
    The defendants appealed, on the grounds,
    
      1st. That the evidence established that the vessel was unsea-worthy when she sailed from Charleston, and the policy therefore became vacated.
    2d. That it was clearly proved, that the vessel was overvalued.
    3d. That the underwriters ought to have had notice of the state of the vessel on her arrival at her destined port.
    4th That the amount of repairs required, did not authorize an abandonment, and that the charge was contrary to law on this point.
    oth. That it was a case of partial loss, which the assured had no right to convert into a total loss.
    6th. That the. insurer had a right to offer to repair, which would have deprived the assured of the right to abandon.
    7th. That the direction to the jury, by the presiding judge, and the verdict, were in other respects contrary to law and the evidence.
    
      Henry Grimke, defendants’ attorney.
    Petigru, contra.
   Curia, per O’Neall, J.

The first ground of appeal presents a naked question of fact which was properly submitted to the jury; their decision thereupon is fully sustained by the evidence, and cannot be disturbed.

The second ground was not seriously urged below, or here. The valuation of the vessel set down in the policy, was three thousand five hundred dollars, and her true value,, in eluding the sea stores, wages of seamen, and insurance, amounted to three thousand four hundred and twelve dollars and fifty-two cents. The policy in this instance was an open and not a valued one. The value set down in the contract had no effect upon the rights or interests of the defendants, and hence does not affect its validity. The plaintiffs, to recover, were bound to show the true value of the vessel, which they proved to be three thousand dollars.

The third ground presents a question of no difficulty. Notice of the state of the vessel on reaching her port of destination, was not necessary to be given before the assured could abandon, and treat her as a total loss. If the vessel had been in the port where she was insured, then, indeed, there would have been some reason in saying that the underwriters ought to have had notice before a sale of the vessel could be made. But in a foreign port, which Mobile must be considered to be, it could not be expected that any such notice should be given; if the state of the vessel was such as to constitute a total loss, then the subsequent disposition of the vessel by sale could not effect the right of the assured to claim accordingly. All that could be required, would be that the assured or the master of the vessel, should under such circumstances, do that which a prudent, man, uninsured would do. The testimony very clearly shows that the vessel was unworthy of repair. The sale was, therefore, the very act which, any man would have wished and directed. But a conclusive answer to this objection is found in the fact, that the very intelligent officer at the head of the insurance company, (Mr. Haslett,) by the authority of the board of directors, placed their refusal to pay the claim of the plain tiffs on the ground, that the injury done to the vessel did not justify an abandonment for a total loss.

In connection with this ground the defendant’s counsel argued that the company ought to have had notice of the abandonment, or rather that the plaintiff has abandoned as for a total loss, within a reasonable time. There is no doubt about the rule, and if there had been any foundation in fact for the argument', the objection would have been raised in Mr. Haslett’s letter to the plaintiff’s attorney, declining to pay the loss on a different ground. Indeed, no such ground was pressed below. The fact of abandonment within proper time was considered as either not disputed, or as plainly to be inferred from Mr. Haslett’s letter. After the jury, having all the circumstances of the case before them, have found for the plaintiffs, it is not to be slightly inferred that there was no evidence of an abandonment; from slight evidence we should be disposed to say that they had deduced a proper conclusion.

The sixth ground may be disposed of at once by saying that the insurers made no offer to repair, and hence they can claim no benefit from a right, (if any such exists,) which they did not exercise.

The whole merits of the case rested on the fourth and fifth grounds; these at the Court below, were very properly de-bateable matters, but the defendants had the advantage of the rule contended for by them, laid down as broadly as they could debire, and a verdict founded upon tbe facts under the law ruled as they contended it should be, cannot be disturbed. I have no doubt that in the case of a claim for a total loss, if the repairs at the port where they are to be made, will exceed one half of the actual value of the vessel at that place after she is repaired,' that the assured may abandon and claim for a total loss. Patapasco Insurance Company vs. Southgate et al. 5 Pel. 619. This may be illustrated in this case in this way. The cost of repairs according to the ship carpenter’s testimony may be set down at two thousand four hundred dollars. The vessel sold for eight hundred and ten dollars, mating her aggregate value when repaired three thousand two hundred and ten dollars; taking this as the true value at Mobile, the repairs would greatly exceed one-half of the value. The company would not, however, be bound by t^j^yds^ss^e estimating the value of the ship ; they mighjjKQtów l!|pit she Nffas sold for too small a sum. This is, how^jji^, n^ prfenqed on the present occasion. J j*j ^

But I did not confine the juryfto this .viejyi; I $©ld them that in a claim for a total losf? was ^guesttiongd by able jurists, whether in ascertaining Jfchfé\am^nt 'of repairs, one-third new for old ought to be de&u’ótéd Pliill^qm Ins. 403; and that they might in this case mtñ^mS-afBtóhative of the question as granted, and deduct one-third, new for old, and assume the value of the vessel to be as it was when she sailed, three thousand dollars — in this point of view, the cost of repairs exceeded one-half, for the total cost was estimated at two thousand four hundred dollars — deduct one-third, new for old, eight hundred dollars, would leave the cost of repairs one thousand six hundred dollars, exceeding by one hundred dollars, the half of the value of the vessel.

The motion for a new trial is dismissed.

Gantt, J., dissented.  