
    Moses and others against The Columbian Insurance Company.
    ALBANY,
    August, 1810.
    insuvance Q11 floL,from!yVcroí‘ X01*t0 pond°nDuring the voyage, it became necessary, for the preservation throw6 over 16 go’amL^vhitii o^'th^flour'Tñan<^n were so much damaged, that it became necessary to sell them at Norfolk, into which port the ship went from necessity. The 123 barrels of flour, lost by Üié jettison, estimated at the invoice price, together with the SO barrels, sold at Norfolk, after deducting the net proceeds, amounted to less than a moiety of the prime cost of the whole 300 barrels. The insured, on hearing of the loss which had been sustained, abandoned; but the ship was afterwards repaired, and arrived at London in safety, where she delivered the residue of the flour, being 147 barrels, to the consignees. " It was held, that there being a loss of more than a moiety of the article specifically insured, the insured had a right to abandon, and was entitled to recover for a total loss. -
    THIS was an action on an open policy of insurance, on 300 barrels of flour, the property of the plaintiffs, laden on board of the ship Herkimer, on a voyage from L * vo New-York to London. The sum insured in the policy, was - . ■ 2,750 dollars, at a premium oi live per cent. 1 he amount of interest covered, was 2,691 dollars and 14 cents.
    The Herkimer was a general ship, and sailed from New-York, on the voyage insured, the 18th of March, 1807, with a cargo belonging to different shippers. • Meeting with tempestuous weather, and having sprung a leak, which increased so as to render, it necessary to seek .the nearest port, she piit into Norfolk, on the 17th of April, after having sustained considerable damage, and . having been obliged to' throw over a part of her-cargo, among which were 123 barrels of the flour belonging to the plaintiffs. On the 25th of April, that part of the cargo which was damaged by the perils of the sea, was sold at Norfolk ; among which were 30 barrels of flour, belonging to the plaintiffs, the prime cost of which, was 269 dollars and 12 cents; but, on account of its being damaged, it sold only for 5 dollars and 67 cents per barrel, prbdu- ■ cing the net sum of 165 dollars.
    The ship took in, at Norfolk, (to replace that part of the cargo thrown overboard and sold,) 32 hogsheads and 5 -barrels of tobacco, 36 ceroons of indigo, and 31 bales of cotton, for,London, the freight of which amounted to 150 ^pounds sterling. - .
    . After being repaired, the ship left Norfolk, in June,, and arrived in London, the latter end of. July following. ■ .
    On the 22d of June, 1807, the plaintiffs wrote to the defendants, stating, that the Herkimer had met with bad weather and sprung a leak; that 148 barrels of the flottr insured, had been thrown overboard; that 25 barrels being damaged, had been sold at Norfolk, and the remaining 127, sent in the ship to London; and that they, therefore, abandoned the whole to the defendants, and claimed of them payment for a total loss. This letter was accompanied with the usual proofs of interest and loss.
    By letters from the consignees in London, dated the 16th of September, and the 5th of November, 1807, it appeared that they had received 147, barrels of flour, belonging to the plaintiffs, that 21, barrels were, damaged, and sold at 32 shillings a barrel, and the remainder at 34 shillings and 6 pence per barrel. ,', > /. "
    
      On the 14th of January, 1808, the plaintiffs again wrote to the defendants, that they had received an" ac- . count of sales from London, from which it appeared, that .147 barrels only of the flour had been received by their consignees ; and adverting to the errors, as to the quantity lost, in their former letter, they confirmed and renewed the abandonment made on the 22d of June.
    
    In February, 1808, the account of sales at Norfolk, was delivered to the defendants, and an action commenced against them, as for a total loss, stated to have happened by a jettison of a part, and the damaged state of the remainder.
    By the account of the adjustment and settlement of the general average and loss, at London, which was delivered to the defendants in June, 1808, it appeared that the amount payable to the plaintiffs on the adjustment,-including the proceeds of the flour, was 430 dollars and 66 cents, which sum was received by the consignees in London, and passed to the credit of the plaintiffs.(a)
    A verdict was found for the plaintiffs, subject to the opinion of the court, on the above case, as to the question, whether the plaintiffs were entitled to recover for a total or a partial loss; the amount to be ascertained by-persons, named by the parties, according to the opinion of the court.
    
      
    
    
      
      T. L. Ogden, for the plaintiffs.
    The contract of in- . ... . . surance is on the subject insured for the voyage. If the subject be lost, or the voyage defeated, the insured may J ^ ; b , ’ . abandon, I he contract between the parties was, that tjle gOOCjg insured should arrive at the port of London. But less than a moiety of them arrived. What is a loss of voyage ? What frustrates an adventure ? What renders a voyage not worth pursuing ? It is where a specific article is insured, and a moiety of it is lost.
    
    The case of Vandenheuvel v. The United Insurance Company, is perfectly analogous to the present. The court said, that “ where a moiety of any portion of a cargo, specifically underwritten, has been lost, the owner ■may abandon, however small its proportion may be to the whole lading.” It is enough that more than half of the specific subject insured has been lost. The value is. . , . . , not to be regarded m such a case.
    
      C. L Bogert and S. Jones, jun. contra.
    The rule is, that the insured may abandon, when there has been a deterioration to more than half the value of the subject insured. The whole amount of the jettison does not make a technical total loss; and if the loss on the sale of the 30 barrels at Norfolk is added to that amount, it will not equal one half of the value of the article insured. Suppose that 160 barrels had been damaged, the insured would have no right to abandon, until the extent of the damage was ascertained. And the quantum of damage is to be ascertained by a survey, not by a sale of the goods. b
    u T •, , . IIow can there be a loss ox voyage, when the vessel proceecjecq^ an¿ arrived at the port of her destination', with the residue of her cargo ? The rule laid down in Vandenheuvel v. The United Insurance Company, does not apply, unless there has been, in fact, a deterioration of ihe goods to half their value.
    
      Hoffman, in reply.
    This was an insurance on a'sp§cific number, being 3QQ barrels. By the jettison, 123 barrels were completely lost, and 30 were so much damaged, that they were necessarily sold, and could not he transported to the port of destination. The vessel, is true, afterwards, proceeded to the port of destination,, with the residue of the cargo; but the insurance is, that the goods insured shall arrive at the destined port. Suppose only 10 barrels had remained; would there not have been a loss of the voyage, a frustration of the adventure ? Or, suppose the whole had been damaged and sold at Norfolk, and the net proceeds had amounted to more than the invoice price; would not this have been a loss of the voyage ? The inquiry as to a moiety of the value being lost, takes place only, when the goods arrive at the port of destination. In the case of Ludlow v. The Columbian Insurance Company, the goods might have gone to, and did actually reach the port of destination, after the accident. In the present case, a moiety of the goods did not arrive at London. A loss of more than a moiety happening at an intermediate port, has ever been held a sufficient ground of abandonment.
    
      
      
         Marshall, b. 1. c. 13. s. 1. Park, 193, 198.
      
    
    
      
       1 Johns. Rep. 406, 411.
    
    
      
       1 Term Rep. 187. Cazalet v. St. Barbe.
      
    
    
      
      
         1 Johns. Rep. 339. Ludlow v. Columbia Insurance Company.
      
    
   Van Ness, J.

delivered the opinion of the court. The question here is, not whether the moiety of the whole cargo on board the ship was lost; but whether there has ■ been a loss of a moiety of the property specifically insured by the plaintiffs, at any period of the voyage ?

“ In settling and distributing an average loss, it is proper to look to every thing on board; but where a moiety of any portion, specifically underwritten, has been lost, its owner may abandon, however small its proportion may be to the whole cargo.’7 (Vandenheuvel v. United Insurance Company, 1 Johns. Rep. 411.)

- This was an insurance, upon an adventure from New-fork to London; and if this has been frustrated, by any of the perils within the policy, the insured have a right to a£,an¿[on^ an¿i recover as for a total loss. ■ The contract between the parties is, that the’ whole of the article insured shall be delivered at the port of destination; . and it a moiety should be lost m the transportation, by a peril within the policy, the insurer is liable for a total loss.

■ The ■ plaintiffs calculated upon the delivery of the .subject insured, at a particular market; and though it is- true, that the insurer has nothing to do with •the state of the market, yet he is answerable, in case the goods are not delivered there, , either for a partial or total loss, according to circumstances. Here .has been a loss of more than a moiety of the property insured, by the perils of the sea, in the course of the voyage; and within 9 reasonable time after advice of . the loss, the insured abandoned, and they have done pothing to waive the abandonment since it was made..

Of the 300 barrels of flour insured, 123 were thrown overboard, and 30 barrels were so much damaged as to render a sale of them proper and necessary, on the arrival of the ship at Norfolk. Not more than 147 barrels, therefore, arrived at the port of delivery. The 30 barrels sold at Norfolk, were as much lost to- the plaintiffs, within the meaning and spirit of the contract, as though they had been cast into the sea. They were lost to them, for all the useful and intended objects of the shipment; inasmuch as they were not in a state fit to be carried to the market to which they were intended to be sent.

The argument, on the part of the defendants is, that the loss arising from the jettison, and the damaged flour sold at Norfolk, estimating the flour at prime cost, and crediting the money, arising from the sale of the 30 barrels of .damaged flour, amountéd to less than a moiety of the prime cost of the whole 300 barrels; and that, ■therefore, there was not such a loss as to authorize an abandonment.

This argument, at first view, appears plausible, but its fallacy is easily detected. The contract is not, that there shall be a delivery at London, of a part of the property insured, and so much money as will be equal to a moiety in value of the 300 barrels. The insurer undertook, that the whole of the article insured should arrive at the port of destination; and the insured have nothing-to do with the money for which the damaged goods were sold.

The sale became necessary by reason of an injury to the flour, for which the insurers are liable, and the proceeds of the sale, passed by the abandonment, to the insurers.

This being the only point insisted upon, on the argument, though several others were made, we are of opinion that the plaintiffs are entitled to judgment, as for a total loss: the amount to be ascertained according to the provisions of the case.

Judgment for the plaintiffs,  