
    
      S. & L. Mowry vs. The Charleston Insurance and Trust Company.
    
    After abandonment as for a total loss, and notice to the insurer of the abandonment, who refused to accept it, the master sold the vessel on account of all concerned: — Heidi that such sale did not affect the insured’s right to recover.
    
      Before Witheíis, J., at Charleston, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows;
    
      “ This action was in assumpsit on a policy of insurance for the sum of $5,000, taken by the defendant upon the steamer Wateree, valued at $6,000, to run between Charleston and Che-raw, via Georgetown.
    “ It is enough for the case to say, that among other perils insured against, were “ perils of the seas” — many particular events being specified, the policy proceeds, “ and all other unavoidable perils, losses, and misfortunes” — “for which assurers are legally accountable according to the usages of trade in the city of London, and no other.” Loss was to be paid in sixty days after regular proof of the same, provided it amounted to five per cent, of the value of the vessel.
    
      “ The contest was on the question whether the damage (which the plaintiffs contended they had proved to be such as warranted a claim for a total loss) arose from an unavoidable peril — or was the result of negligence in-the management of the steamer, or other cause which would exempt the insurers.
    “ The two first grounds of appeál seem to offer that question of fact to the Court of Appeals. '
    
      “ As to the errors imputed to the presiding Judge, it- seems necessary to make the following statement of what was in evidence, to elucidate the points made.
    
      “ The boat was sunk and treated as lost, on her way from Cheyaw to Charleston, in the Pee Dee river, at Allison’s wood-, landing, on the night of the 6th December, 1850. A protest was made by the master, (White,) the mate, and one Anderson, but I do not know that the date of it appeared, perhaps soon after the 11th December. It was in evidence that a copy of it was in the possession of the defendant about the 7th February, 1851, and of affidavits by the master, and others.. Two letters were introduced from the president of the Insurance Company, addressed to the plaintiffs, one Dec. 14th, 1850, in which he said the Company declined accepting- the abandonment, the other dated March 14, 1851, informed plaintiffs that the Company declined payment of the policy till information of the cause of the loss could be obtained-, which the Company was then seeking.
    “ The master (White) said he regarded the loss total; if owner, he would have sold, and accordingly advised the sale of the wreck. J. C. Blum, by his authority, advertised in the Charleston Courier from the 21st to 27th-December, 1850, the sale of the boat on account of all concerned ; and he' made sale of the same, at auction, to James Hanahan, for §720 gross — nett §693 95.
    
      “ The writ in this case, though dated in the teste oh the 15th April, 1851, is accepted for defendant without date.
    
      “ Supposing the loss to have arisen from a cause which fixed the defendant with liability under the policy, and to have involved such per centum of the value as authorized the plaintiffs to abandon, as for a total loss, I held, that the sale was regular, and its nett proceeds furnished the measure of deduction from the sum insured to which defendant was entitled. I thought this resulted from the previous offer of abandonment by the plaintiffs, and the absolute refusal of it by the defendant.
    “ A verdict for the plaintiffs was rendered for $4,422 71, and interest from 8th April, 1851.”
    The defendant appealed and now moved for a new trial on the ground, inter alia,
    
    3. Because his Honor erred in ruling, that after the abandonment in this case, the captain, or owner, or both, had authority to sell, without the directions of the defendant.
    
      Magrath, for the motion,
    cites Hughes on Ins. 289, 328, 305.
    
      Moiory, Memminger, contra,
    cited, 13 Peters, 387 ; Arnold, 1103; 3 Kent, 32; 2 Sumner, 206; IDowP. C. 349; 4 Wend. 561; D. & Loyd, 190 ; 5 Serg. & R. 113 ; 1 Caine, 292; 4 Peters, 139; 5 Johns. R. 310 ; 10 Johns. R. 177 ; 2 Phil, on Ins. 440; 2. Arnold, 190.
   The opiirion of the Court was delivered by

O’Neall, J.

In this case, the appellants have relied alone on their 3d ground of appeal, and hence we do not notice the others.

The third ground presents no difficulty. For looking to the facts proved in this behalf, it appears the Company on receiving notice of abandonment, refused to accept it. What was to be done ? A sale by the master in possession seems to be the only safe and prudent course. This has the sanction of the most approved authorities. In 3rd Kent’s Commentaries, 273, the-learned author states, that “ in a case proper for abandonment th'e insured may stand upon his rights uncontrolled by the underwriter, for the option to abandon rests with him.” At page 277, he further 'says, that, “upon a valid abandonment, the master becomes the agent of the insurer, and the insured is not bound by his subsequent acts, unless he adopts them.” Hughes on Insurance, p. 32S, says, that when an effectual abandonment is made, the underwriters from that time stand in the same situation as owner.”

From these authorities, it is plain that the insured could not be affected, if the sale by the master "had been improper. For his act is the act of the insurer. But it seems that the master sold under notice, constantly within the observation of the officers of the Company : and made the sale at a place where they could have controlled it, and where, if there had been anything wrong, they could have pointed it out. They chose not to act or even observe, and hence they cannot complain, if the master having the boat in charge, which was disclaimed by insurer and insured, did the best he could for all concerned, by selling as well as he could.

The motion is dismissed..

Wardlaw, Frost, Withers, WhitNer and Glover, JJ. concurred.

Motion dismissed.  