Thomas v. Rockland Insurance , 45 Me. 116 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

Assuming that here was a constructive total loss, the first question presented is, was there an abandonment ? It seems that no form of an abandonment has been prescribed by law, and it has been held that it need not be in writing; that any words which directly, and in terms, abandon the property insured to the underwriters, in consequence of a loss by a peril insured against, are sufficient to comply with the provisions of law. But the cause of the abandonment must be communicated to the underwriters, that they may judge whether to accept or not. 2 Phil, on Ins. (4th ed.) 384; Macy & al. v. Whaling Ins. Co., 9 Met. 358. Pierce v. Ocean Ins. Co., 19 Pick. 83.

Neither the telegraphic dispatch of Dec. 18, nor the letter of Dec. 23,1854, directly, and in terms, authorize a legitimate inference that the owners designed thereby to abandon the vessel. It is true, they speak of the vessel as abandoned by the crew at sea, and brought into port by salvors, but no cause for such abandonment is assigned — no amount of damages or claims of salvors are stated or estimated. The dispatch only inquires as to “ what shall be done,” and the letter gives knowledge of the libel suits, and requests information if the underwriters wish to make any defence — information as necessary and proper to be given in case of a partial as a constructive total loss, since, if the former, the insurers would be interested in the amount of salvage to be recovered, and the expenses in defending against the same, and notice to them of the pendency of the suits might prevent any subsequent controversy in the adjustment of the salvage and costs, on settlement as for a partial loss.

But, secondly, it is contended that, if no abandonment was made, none was necessary, because the vessel was taken possession of by the salvors, libeled and sold by authority of law, and the proceeds paid into Court, and that the sale, under such circumstances, is similar to that made by the master from necessity, as explained and illustrated in Prince v. The Ocean Ins. Co., 40 Maine, 481, and cases there cited.

The circumstances constituting the necessity in those cases, and the one under consideration, are wholly dissimilar. In those cases, the vessels were in foreign ports and in peril from which they could not be extricated without an expense exceeding their real value. In this case, the vessel is brought into a home port within a short distance of the insurers, with whom the agents of the plaintiffs could have had daily communication, and yet the vessel was not abandoned and thereby subjected to the sole control of the defendants, subject, perhaps, to the salvors’ lien. It is true that the vessel may have been in the custody of the law, and so she might have been, had the salvage claims been nominal in amount.

Our conclusion then, is, that the plaintiffs cannot recover for either an actual or constructive total loss, but may recover for a partial loss. The vessel, in the policy, was valued at $5000, on which was insured one half of that sum; consequently, by a rule of law, applicable to marine insurance, the parties are to share equally the loss. The expenses of repairs, as found by the jury, were $1000, from which one third is to be deducted, new for old; reducing them to $666,66, to which is to be added the salvage and expenses, including $90 counsel fees; viz., $1547,04, amounting in all to the sum of $2213,70, of which the plaintiffs are entitled to a judgment for one-half; viz., for $1106,85, and interest on that sum from the time it became payable, which, according to the terms of the policy, was sixty days after proof and adjustment of the loss. Interest in this case should be computed only from the date of the writ; viz., Dec. 14, 1855. Upon this subject, see 2 Phil, on Ins. 700, and cases cited.

Tenney, C. J., Rice, Appleton, Hathaway, and Goodenow, J. J., concurred.

CASES IN THE SUPREME JUDICIAL COURT, EOE THE WESTERN DISTRICT, 1858: COUNTY OE CUMBERLAND.