Story and Wharton v. Amos Strettel

Story and Wharton v. Amos Strettel. Evidence. — Instance, Protest of a master of a vessel admitted in evidence. A letter of instructions from the plaintiffs to the master of their vessel, admitted. Insurance: total or partial loss. Sur Policy of Insurance. The master’s protest in Jamaica under the seal of a notary-public there, given in evidence to prove the capture, and not opposed, Instructions from the plaintiffs (owners of the vessel insured), to the master, at the time of his sailing, sworn by the master to be the only instructions he had, were given in evidence by the plaintiffs, to prove they had given the master no orders to buy the vessel on their account, in case of a capture and recapture, slightly opposed by defendant’s counsel, and given up without debate. The defendant in this ease underwrote an open policy on the vessel from Philadelphia to Jamaica, she was taken by the enemy and retaken, and carried into Jamaica, where by agreement between the master and recaptors, without going into the court of admiralty, she was sold at public sale for about one-fourth of the sum insured, and bought by the master for the former owners, who afterwards acquiesced in the purchase, and now sued for the whole sum insured, as a total loss. The sale was proved to be fair, and the plaintiff’s counsel insisted that, from the moment of the capture, there was a total loss, and cited divers cases to show, that if there be a capture, though it be not such a one as, by the law of nations, would change the property, yet it would be sufficient to charge underwriters with a total loss, and the assured may abandon. Beawes’ Lex Mer. 268; Cunningham 225, 259, 300, 340. *On the part of the defendant, it was insisted, that he ought to pay p-no more on this policy than the actual loss sustained by the payment of [*11 salvage and other charges. That the master having set up the vessel to sale, without any orders of the court of admiralty, and purchased her himself in behalf of the owners, for about one-fourth of the sum insured, and this being acquiesced in by the plaintiffs, there was no abandonment, and therefore but an average loss. See the note to Nixon v. Long, ante, p. 6. See McClenachan v. McCarty, 2 Dall. 51, where a letter of instructions from the owners of a vessel (plaintiffs in the action) to the master, was admitted. [MAJORITY — The Court] The Court gave a charge in favor of defendant; and the jury accordingly gave the plaintiffs a verdict for so much only as they judged a compensation for salvage, charges and loss of time, on account of the capture, See Bohlen v. Del. Ins. Co., 4 Binn. 444; Dutilh v. Gatliff, 4 Dall. 446; Curcier v. Phila. Ins. Co., 5 S. & R. 113; Brown v. Phoenix Ins. Co., 4 Binn. 445; Seton v. Del. Ins. Co., 2 W. C. C. 175, &c.