Opinion
APRIL TERM, 1764.
SUR Policy of Insurance. The Captain's Protest in Jamaica under the Seal of a Notary Publick there, given in Evidence to prove the Capture, and not opposed.
Instructions from the Plaintiffs (Owners of the Vessel insured) to the Captain at the Time of his failing, sworn by the Captain to be the only Instructions he had, were given in Evidence by the Plaintiffs, to prove they had given the Captain no Orders to buy the Vessel on their account in case of a capture and re-capture, slightly opposed by Defendants Council, and given up without debate.
The Defendant in this case underwrote an open Policy on the Vessel from Philadelphia to Jamaica, she was taken by the Enemy and ret ken, and carried into Jamaica, where by Agreement between the Captain and Re-captors, 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 Captain 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 Council insisted that from the moment of the Capture, there was a total loss, and cited divers cases to shew, 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. Conningham 225. 259. 300. 340.
On the Part of the Defendant it was insisted that he ought to pay no more on this Policy than the actual loss sustained by the Payment of Salvage and other Charges. That the Captain 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.
THE COURT gave a charge in Favor of Defendant; and the Jury accordingly give 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.