
    Curcier against The Philadelphia Insurance Company.
    
      Monday, April 5.
    Whether an abandonment of a vessel insured has been waved, may be a question of law, or a mixed question of law and of fact, according to circumstances; and in the latter case it is properly a matter to be submitted to the jury.
    Where a vessel was insured from Philadelphia to Kingston, (Jamaica,) and a port in the island of Cuba, and being seized at Jamaica, an abandonment was made, which the insured refused to accept; but agreed that the voyage home should be insured: the vessel afterwards being released, on security given, by plaintiff’s agents, at Jamaica, they, without notice to defendants, purchased a cargo, and freighted the ship to St. Jago de Cuba, and thence to Trinidad, in Cuba, whence she returned to Philadelphia and was sold at auction, and there was no evidence of any intention to wave the abandonment, or suspicion of unfairness; held, that the jury were right in finding for the plaintiff, on the ground, that there was no waver of the abandonment.
    abandonment, if it turns out to be legal, to as agent insurer, so that he employ the ship to the best advantage.
    THIS was an action on three policies of insurance underwritten by the defendants on the brig B. and her cargo, on a voyage “from Philadelphia to Kingston, Jamaica, and a port in the island of Cuba.” The brig arrived .at Jamaica, where she was seized by the custom house officers for breach of the laws of trade, and after some detention acquitted and restored. The plaintiff having intelligence of the seizure, abandoned brig and cargo to the defendants, who refused to accept the abandonment. Messrs. Hardy, Morse, £s? Co. file plaintiff’s correspondents at Kingston, rendered all the services in their power to the captain, entered security in the court of admiralty when the property was restored, (the tom house officers having appealed,) and advanced funds for the purchase of a cargo to be brought home in the brig from the island of Cuba. The brig went from Jamaica to St. Jago de Cuba and thence to Trinidad, (in Cuba,) where she t0°k in a cargo of sugar on account of the plaintiff, and returned to Philadelphia. On her arrival at Philadelphia, the plaintiff offered her to the defendants, who refused to receive her, 7 and then, after giving notice to the defendants, sold her at public auction for their benefit. The plaintiff had insurance made on vessel and cargo on the homeward voyage, having first obtained the consent of the defendants; and it was agreed that the insurance should not prejudice the rights either party, in the dispute concerning the abandonment, The whole correspondence between the plaintiff and Hardy, Morse, Es? Co., his agents in Jamaica, was read at the trial. It did not appear, that the agents had any notice of the abandonment. In all their transactions they supposed they were ac^n8' f°r the plaintiff. The voyage from St. Jago to Triniclad, and thence home to Philadelphia, was planned by the captain of the brig, and the agents in Jamaica, without the knowledge of the plaintiff; but when informed he approved of it. The insurance first made on the homeward voyage, was only from St. Jago to Philadelphia; but an additional insurance was afterwards made, to cover the voyage to Trinidad, and then to Philadelphia. Of the additional insurance, the defendants had no notice. The cause was tried before Duncan J. at Nisi Prius, in January last. On the trial the plaintiff claimed for a total loss. The defendants contended, that though the abandonment might have been properly made, yet the plaintiff, by his conduct afterwards, had waved it, and was therefore not entitled to recover for a total loss. The Judge left it to the jury to decide the point of waver. The jury found a verdict for the plaintiff, for the amount he claimed. The defendants now moved for a new trial.
    
      Binney and Rawle, for the defendants,
    contended, that the abandonment of .the vessel by the plaintiff was waved, by his exercising a controul over it, inconsistent with the ownership of the underwriters, and beyond what was necessary for the protection of the property, and by approving the employment of the vessel in the voyage from St. Jago de Cuba to Trinidad on his own account, without , the consent, .of the defendants, and without even apprising them of his designs; and that whether there was a waver or not, was a question of law, and ought not to have been left to the jury. In support of these positions they relied on the cases of Abbot v. Seabor. 
      
       Ogden v. The Fire Insurance Company.
      
       Saidler v. Craig.
      
    
    
      C. J. Ingersoll and Chauncey, contra,
    insisted, that in sending the .vessel from St. Jago.de Cuba to Trinidad^ a port on the same side of the island, for a freight, the captain and agents acted with good faith, and did what was most for the intérest of all concerned, as there would otherwise have been no freight earned on the homeward voyage. That the cases cited were very different from the present; and that the question of waver was a mixed question of law and of fact, and was properly left to the jury. They cited 5 Johns. 325. 1 Caines, 292. 3 Johns. Cas. 293. 2 Caines, 280. 1 T. R. 611. 2 Marsh. 614. 1 Johns. Cas. 141.
    
      
      
        а) 3 Johns. Cas, 39.
    
    
      
       10 Johns. 179. 12 Johns, 27.
    
    
      
      
         3 Johns. Cas. 39.
      
    
   The opinion of the Court was delivered by

Tilghman C. J.

Concerning the right to abandon in this case, there is now no question; nor is there any question concerning the outward cargo. The only dispute respects the brig. The defendants contend, that although the abandonment was lawfully made, yet the plaintiff, by his subsequent conduct, waved the right of resorting to the defendants for a total loss. The Judge who tried the cause, submitted this point to the jury, with such remarks, both as to law and fact, as in his opinion the case required. But the counsel for the defendants consider the waver of the abandonment as matter of law, on which the charge of the Court ought to have been in their favour. No question on a waver of abandonment has hitherto occurred in this Court, but that subject has been brought several times before the Supreme Court of New Tork, and treated as matter of law. In my opinion, it may be proper to submit a question of this kind to the jury, or not, according to circumstances. A case may be attended with such prominent and decisive facts, as may warrant the Court in taking it from the jury. In the New York cases of Saidler v. Craig, &c. and Ogden v. The Fire Insurance Company, the insured, after making an abandonment, which was refused by the underwriters, acted in such a manner as was inconsistent with the idea of property, in any other than themselves. They sold the ship, bought her in (by their agents) for their own use, and sent her out on d new voyage. The Court, therefore, might be justified in saying, that they had precluded themselves from claiming for a total loss. But there may be cases where the facts are numerous, and not clearly ascertained;, and the question, whether the abandonment has been waved, may be so made up of law and fact, as 'to render it improper for the Court to pursue any other course than to leave it to the jury, with such remarks as are called for by the occasion. In our land trials, it has frequently been a question, whether a warrant has been abandoned by the person who took it out of the land office. It has usually been submitted to the jury, who draw their conclusion from the warrantee’s whole conduct. But it sometimes happens, that there are circumstances so strong as to induce the Court to consider and decide the relinquishment of the warrant as matter of law. It appears to me, that this waver of aban~ donment should be treated in the same manner, and therefore the question in the present case will be, whether the jury were so clearly wrong, as to render it proper to set aside their verdict. It will be seen at the first glance, that this case is widely different from those decided in New Tork. For here, the vessel was not sold ; neither was the. voyage altered, except in the circumstance of going from St. Jago to Trinidad, instead of proceeding straight from St. Jago to Philadelphia. And on her arrival at Philadelphia, the vessel was immediately offered to the defendants. When the insurers refuse to accept an abandonment, the insured is left in a difficult situation. Whether there exists a right to abandon, is often an intricate question. The insured, therefore, both for his own sake and for the sake of the insured, (for whom he is considered as an agent, should it turn out that the abandonment was legal,) should employ the ship to the best advantage, and not suffer her to go to destruction in a foreign port. With a little frankness and courtesy on both sides, an arrangement might easily be made, by which the ship might be employed, without prejudice to the rights of either. This was done in the present instance, as to the home insurance; but in all other respects, there was too much reserve. V/hat weighs much, however, with me, in favour of the verdict is, that the evidence throws no suspicion of unfair dealing, on the plaintiff; nor does it appear, that he ever had an actual intent to relinquish his abandonment. Neither have the defendants suffered by the plaintiff’s conduct; for, it has not been shewn that he could have acted more for their benefit. He varied the voyage a little, by going to Trinidad, a port lying on the same side of the island as St. Jago, and not far distant; and by this variation he procured for the defendants a freight home. I cannot consider this as so entirely a new voyage, as to estop the plaintiff from adhering to his claim for a total loss. I can perceive no injustice done to the defendants by the verdict, and therefore, without laying down any general rule for deciding what shall be a waver of an abandonment, I am of opinion, the jury might justly find, that there was no waver in the present instance. There were some minor objections to the verdict; that the premium of the home insurance, or at least part of it, was improperly charged to the defendants, and also, that they were unjustly charged with seamen’s wages, and provisions, &c. But it does not appear to the Court, to be sufficiently ascertained in what manner the verdict was made up, to warrant their setting it aside, for these objections. The motion for a new trial is, therefore, rejected.

Motion for a new trial rejected.  