Stephenson v. Pacific Mutual Insurance

This case does not come before us in such form that we can intelligently and properly adjudicate on the rights of the parties. Under the instructions given to the jury as stated in the report, it does not appear that they were duly advised concerning the right and authority of a master to sell a ship or vessel in a foreign port, nor were the facts which would constitute a justification for such sale and furnish a valid claim for a total loss under the policy declared on distinctly submitted to the jury as the substantive ground on which the right of the plaintiffs to recover mainly depended. The law prescribes the elements which create such an exigency or necessity as to warrant a master in making a sale of his vessel, instead of repairing her or bringing her back to a home port, and the court should have stated these elements to the jury, and left to them the question whether the facts proved in the case constituted a justification for the sale. This the court omitted to do.

It was not sufficient to say to the jury that if the master acted in good faith, and could not obtain funds at Cardenas for the payment of salvage and other expenses otherwise than by sale, his acts were justified, and the plaintiffs could recover for a total loss. The plaintiffs were bound to go much farther, in order to justify the sale. Something more than good faith was required of ¿he master. He was bound to act with good *235judgment and discretion, as a prudent owner under like circumstances would have acted. 1 Arnould on Ins. 192. Robinson v. Commonwealth Ins. Co. 3 Sumner, 226. Gordon v. Massachusetts Ins. Co. 2 Pick. 262. Nor was it sufficient to show that funds could not have been procured at Cardenas. If by the use of reasonable means and without extraordinary or unreasonable delay the master could have communicated with the insurers and afforded them an opportunity to raise the needful funds, he was clearly bound to do so, before making sale of the vessel and throwing on to the defendants the burden of a total loss by reason of such forced sale. 1 Arnould on Ins. 192. Hall v. Franklin Ins. Co. 9 Pick. 478. Bryant v. Commonwealth Ins. Co. 13 Pick. 543, 554. Peirce v. Ocean Ins. Co. 18 Pick. 83, 88. These important elements in the necessity which justifies a sale were not included in the instructions given to the jury. We think, therefore, there was a mistrial; and the case must be again submitted to the jury. Verdict set aside.