Badger v. Ocean Insurance

delivered the opinion of the Court. The counsel for the plaintiff have, as we think, very properly *355waived the ground, that there was any justifying necessity for a sale on account of any injury sustained by the vessel’s having been stranded, which would, in a pecuniary point of view, amount to a constructive total loss.

After the abandonment, the defendants sent one or more agents to take possession of the vessel and repair her for the assured, but the purchasers would not give her up ; and she was purchased for about five thousand dollars, of the vendees of Captain Sawyer. She stands in the name of John Preston, but it is not denied by the defendants, that they furnished the money to pay for her ; and they have taken and fitted her up, and employed her for their own use, and Have not offered her to the original owners, the assured.

Under these circumstances, the owners contend, that they are entitled to recover for a total loss ; not, to be sure, because even an apparent or probable technical total loss has happened, but because the underwriters have so conducted themselves, as that in the eye of the law they have accepted the offer of abandonment. The plaintiff says, that the vessel has been stranded, and has received damage from perils within the policy, within the year ; that after an offer of abandonment was made, the defendants took the vessel and repaired her, and employed her on their own account, and have never, to this day, offered to restore her to the former owners. It is argued for the plaintiff, that this case falls within the case of Peele v. The Suffolk Ins. Co. 7 Pick. 254, and that the defendants have rendered themselves liable, notwithstanding their declared intent not to accept the offer of abandonment. And it is true, that the Suffolk Insurance Company did not intend to make themselves liable, but were made so against their intent, in consequence (as the jury found) of not making the repairs which they undertook to make upon the vessel, in a reasonable time.

It is very clear, that if the conduct of the party implies an acceptance of the abandonment, such acceptance is to be legally presumed, notwithstanding the declared intent of the party to the contrary ; the actual intent in such case being immaterial. It is for the defendants to explain the transaction, and they rely upon the other facts in the case for an explanation of their conduct, as being consistent with their declared intent *356The question is, whether the defendants have so conducted themselves, as that they have acceded to the offer of abandonment and made the vessel, or the proceeds of the sale of the same, their own, against their protestations to the contrary. They deny the proposition, that they have taken the vessel under the abandonment, and contend that they have taken her under a purchase from the vendees of the owners.

The legal operation of an abandonment is to transfer to the underwriters all the property which is offered to be ceded, to the end that they may take and have it free from any incumbrances caused or made by the assured upon the same. Now, in the case at bar, the vessel was sold by the assured, and as it regarded them and the purchasers, the property specifically vested in the latter. Right or wrong as the sale might be considered, as between the assured and the underwriters, it was good as between the owners and the purchasers. At the time when the assured offered their abandonment, they knew that they had sold the vessel. They had nothing to cede or offer to the underwriters, but the proceeds of the sale. And the underwriters have not meddled with the proceeds ; so there has been no acceptance of the property which was abandoned, which was in the control of the assured. If the defendants had accepted the proceeds as offered, the act would have been a conclusive ratification, if done with a full knowledge of the circumstances. But nothing of that kind is pre tended in the case at bar.

Again ; the assured do not contend, that they had any right to sell the vessel on account of any injury sustained by any risks within the policy. Yet they have sold the vessel. The right to do so must be ascribed to some other reason than to any derived under a policy, and that cause obviously was, that they were owners ; as such, they had a perfect right to sell her when and for what consideration they pleased. The purchasers might do what they pleased with the vessel after the sale, and the vendors would have no right to regulate the course which the vendees should pursue, nor to complain of the manner in which the vendees should manage the vessel; whether they should keep and employ her on their own account, or sell her to any other persons. And the assured, who were the *357former owners and vendors, would have as little legal reason to call the second purchasers to account, as they would have to interfere with the doings of the first purchasers. The argument, therefore, that the second purchasers have taken the vessel to themselves, and rendered no account to the first vendors, seems to us to be of no force, if she was taken under the sale by the vendees of the former owners, and not under their cession or abandonment. To what account were they entitled ? They had sold, and their vendees had taken the actual possession of the vessel and had conveyed her to the defendants, for a valuable consideration. We are at a loss to perceive, that the defendants, by taking the vessel, under this new title and new consideration, were to render any account to the first vendors in this matter. It was not an acquisition under the abandonment, but under an independent right and title derived me diately from the first vendors themselves.

The defendants were undoubtedly desirous of obtaining the possession of the vessel as insurers, to repair her if any damage had happened to an extent for which they were liable under the policy, and to demonstrate that the plaintiff’s claim for a total loss was utterly groundless, and then to restore her to the assured ; but they found the vendees of the master in the possession, standing upon their right. It was the sale of the vessel to Briggs and others for some other cause than sea damage within the policy, which prevented the defendants from carrying their original intent into effect; which intent is legally to be inferred from the facts proved in the case.

Now the sale which was made by Captain Sawyer, was certainly good to pass his interest in the vessel to the vendees. As has been said, he was a part owner, and as between him and the purchasers his part vested in them. And it appears that he was the agent for the other owners to procure the policy. But he undertook to sell the whole vessel as she lay upon the beach, for the consideration paid to him by Briggs and others, If he was authorized to make the sale, by the other owners, so far as they were interested, then the title to the whole went with the possession to the vendees ; if he was not authorized originally, but his sale was adopted by the other owners and ratified by them, then .also the property m the *358whole vested in the vendees. If the owners knew of the sale, and did not disaffirm it in a reasonable time, they must be considered as having ratified it. Now the facts in the case do prove, that the master went to Portland, and that a communication was made by him to the other owners, and they joined :n the offer of abandonment which accompanied the account of the sale of the vessel. This action is brought for the use of Captain Sawyer, as well as for the other owners. They knew of the sale immediately after it was made, and they have not to this day disaffirmed the sale, or any conduct of the master in this matter. The legal result is, that they have ratified the sale which was made. It was the owners then who prevented the defendants from taking the vessel under the abandonment.

The question recurs, have the defendants accepted the offer of abandonment, or adopted the sale as having been made for any damage within the policy ? We think such an inference is not warranted by the facts.

In the case of Peele v. The Merchants Ins. Co. 3 Mason, 81, a proposition is laid down by the learned judge, which is applicable to the case at bar. “ Whenever the underwriter does any act in consequence of an abandonment, which can be justified only under a right derived from it, that act is of itself decisive evidence of an acceptance, and cases may even be put where the act of the underwriter, will in law prevail over his express declarations.” In the case at bar the defendants could not do any act under the abandonment, but were prevented by the prior sale of the vessel to strangers. Their conduct may reasonably be ascribed to their purchase from the vendees of the owners. When the abandonment was offered, the assured had no interest in the vessel. The offer could only embrace the proceeds of the sale. Now acceptance is defined to be an act by which one receives voluntarily, that which is proposed, offered or given. Is there a single ciicumstance in the conduct of the defendants, which manifests such an acceptance ? We think not. It would be very unreasonable to refer the conduct of the defendants to a cause clearly without foundation, when it may be referred to a cause or reason which is well supported. The sale by auction might well be sustained *359as between the vendors and the honest purchasers. The defendants may well admit the right of the owners to sell on their own account, and a ratification of such sale would operate as a confirmation of the title which was fairly derived from the first vendees ; a title, it should be remembered, acquired for a consideration wholly unconnected with and independent of the abandonment. The extent of the admission of the defendants was, that the assured had a right to sell the vessel to Briggs and others ; and that admission is satisfied by the fact, that they were the owners, and in that capacity might sell, and riot that they as the assured had any right to sell for any cause within the policy.

We are all of opinion, that there is not sufficient evidence m the case arising from the conduct of the defendants, or otherwise, to prove that they have accepted the abandonment, or that the plaintiff is entitled to recover for a total loss.

By the agreement of the parties at the trial the case might, on motion of the plaintiff, be sent to an assessor to ascertain whether there has been any partial loss to an extent for which the defendants are liable, and the amount of the same. And the Court will receive such a motion, if the plaintiff shall think fit to make it. The assessor however is to allow only for such loss or damage as was occasioned by the perils of the sea and the stranding, and not for cutting away the masts arid other unnecessary strip, waste and loss voluntarily committed and done by the master as the vessel lay upon the beacn or otherwise