delivered the opinion of the court. This is a clear case for the plaintiffs. Their claim is founded on sound principles in the law of insurance. The defendants abandon, and the plaintiffs accept and pay. They were then substituted for the defendants, and succeeded to the benefit of the acts of the agent abroad, in relation to the property in question. The master and merchants at Mala-ga acted, nominally, as agents for the defendants, but, in reality, they were agents for the party having the ultimate claim to the property. What they did was, undoubtedly, founded on previous instructions from the defendants, and on the connexion that the defendants had with the property, as former proprietors, and existing claimants. When the defendants abandoned the ship and cargo, and received their indemnity from the plaintiffs, they renounced all concern in the interference of their agents, and transferred to
There is no ground for considering the purchase by the house of Grrevigne & Co. as made for the defendants, in the character of strangers to the property. It was' made for the defendants as having an interest in it, and with intent to mitigate the loss. The law of abandonment applies to such a case with the greatest justice and good policy in making the previous instructions, and all acts of the agent enure to the insurer. To give to the insured a full indemnity on his policy, and also the advantages of these efforts of the agents to repair the loss, would be doubly injurious to the insurer. It would deprive him of the benefit of his substitution, tend to slacken the exertions of agents to recover the property, and invite them to resort to fraudulent speculations upon the loss. It cannot be admitted, that the condemnation at Malaga put an end to the interest of the insured, so as to render a purchase, ’by him, thereafter, equivalent to a purchase by a stranger. In the case of M’Masters v. Shoolbred, 1 Esp. Rep. 237, the vessel was condemned by the French consul, sold by him as a prize, and the captain purchased her at such sale on account of the owners. But it was considered as so much property recovered *by the assured, and it was likened, by Lord Kenyon, to the case of ransoms. The condemnation, and change thereby of the legal title, wafe not considered as .any impediment to the doctrine that the assured, by a recovery in that mode, had sustained only an average loss. That case differs from this in one particular only; that here was an abandonment and payment of a total loss. It was admitted in the case I have cited, that if the insured, upon the capture, had abandoned he might have recovered a total loss. But then upon the very principles of abandonment, (and which that case did not mean to question,}
In the case of Gross v. Withers, 2 Burr. 694, the doctrine of capture underwent a very learned investigation; and Lord Mansfield, in giving the opinion of the court, observed, that if after condemnation the owner recovers, or takes his captured ship, the insurer can be in no other condition that if she had been recovered or taken before condemnation. The reason is plain from the nature of the contract. The insurer runs the risk of the insured, and undertakes to indemnify. He must, therefore, bear the loss actually sustained, and can be liable to no more. So that, if after condemnation, the owner recovers the ship in her complete condition, but has paid salvage, or been at any expense in getting her back, the insurer must bear the loss so actually sustained. He observes, in another place, that no capture by an enemy, though condemned, can be so total a loss as to leave no possibility of recovery. Page 696.
I agree, that after a condemnation, the property is changed, so that a complete title can be transferred from the captor to a third person. But this rule does not apply between insurer and insured, so as to authorize the insured to be that purchaser, at the very time of the loss, and with the express view of indemnifying himself against a part of it. If he does, - and still claims a total loss from the insurer be must tender to bim tbe benefit of that purchase. Tbis rule is founded on tbe clearest justice, and is essential to prevent fraud. As long as tbe property remains in tbe bands of tbe captor, although a condemnation has taken place, there is still tbe possibility of a recovery. There still exists, as a rod over tbe captor, the right of appeal; and tbis, and other circumstances *which may be peculiar to tbe case, will always induce tbe chance of a favorable composition and purchase, on tbe part of tbe claimant. That chance is valuable, and ought, on abandonment, to go to tbe insurer. In tbe present case, however, tbe assured takes bis total loss from tbe underwriter, makes bis favorable terms with the captor, and insists on retaining both. This is not to be permitted, and I cannot pursuade myself that it ever was permitted by tbe insurance law of any country.
Tbe case of Saidler and Craig v. Church, decided in tbis court, in July term, 1799, is an authority in point, and must govern tbe present case. That was an insurance on a vessel, which was captured, condemned, and afterwards purchased by tbe master, on account of tbe owners, of whom be was one. As soon as tbe capture was known, and before tbe condemnation and purchase, tbe insured abandoned, but after tbe purchase, tbe owners fitted out the vessel, and sent her on another voyage. Tbe court held that tbe assured, by affirming tbe purchase of tbe captain, as their agent, bad waived tbe abandonment, and turned the total into an average loss. That if tbe insured bad intended to pursue their claim to a total loss, „hey ought not to have ratified tbe act of their captain, but left tbe insurer to reap, at bis election, tbe benefit of that purchase. Tbis case cannot be separated from the present one by any solid distinction; and I should be sorry to question, in any degree, the authority of that decision. The case of Abbott v. Broome, 1 Caines’ Rep. 292, was not intended, in any respect, to shake tbe force of it. I,took no part in tbe latter decision; but it appears, from tbe re*
Tbe more I reflect on tbe nature o* this claim, tbe more extraordinary, not to say extravagant, it appears. I am at a loss to discover any ground on which it can be supported. Those relied on are, tbat tbe purchase of tbe cargo being in trust for its ultimate owners, tbe plaintiffs must be exclusively entitled to the profits, inasmuch as by tbe abandonment, and payment of a total loss, they became proprietors thereof. These arguments proceed on tbe *hy|)otbesis, tbat goods, even after condemnation, belong to the original proprietors, or, in case of abandonment, to tbe assurer, and tbat tbe assured and his factors continue, after such an event, his agents, and are authorized to purchase for him tbe whole, or any part of tbe property condemned. But neither of these positions will be found correct. After condemnation there is an end of tbe interest both of tbe owner and underwriter in tbe property confiscated, except so far as regards the right of appeal; and even in case of reversal of tbe sentence, neither party would receive the property in kind, but its appraised value, or tbe price at which -it had been fairly sold. Tiras, if an appeal had been successfully prosecuted here, the underwriters, in virtue of the abandonment, wQuld have been, entitled, at most, to the sum at which the captor sold the property, admitting the sale to have been fair, and could not by action of trover, or otherwise, pursue the property itself, the title to which had been thus changed by condemnation. The moment sentence is pronounced, the right of the captors to sell is complete, and to such a sale all the world are, or may be, parties. The assurer may buy if he please; so may the
From these terms it is evident the authority of the assured and his factors contends only to cases in which, by their exertions, the property may, be rescued from an impending peril. That is, they may use all diligence, and incur any expense, on the underwriter’s account, to prevent a condemnation. But never before was it urged that he, or his consignees, had a right to purchase property for the account and risk of the underwriter.- Mischievous, indeed, would such an unlimited authority prove to the underwriters themselves. They would become merchants as well as underwriters, and be exposed to all the hazards to which the indiscretion or avarice of foreign agents, chosen by others, might expose them. They would never know when their liability on a policy ceased. * After paying their whole subscription, as they have done here, they might be called on for a second loss, greater, possibly, than the first, occasioned by an imprudent speculation abroad, which they themselves, if on the spot, would not have made. What has been done in this case, shows the hazards to which ^hey would be exposed, if the power of the assured or his agents be as great as has been asserted. Messrs. Grrevinge & Co. first purchase the cargo, and that before its condition is known; they then sell it, and after reimbursing themselves, invest the balance in brandy and wine, for account of the defendants, to whom they are accordingly shipped. These brandies and wines are sold by the defendants in New York,
But this demand, it is said, is not without precedent, and we are referred to a decision in England, and to another of our own, as authorities in point. The case of M‘Masters v. Shoolbred, 1 Esp. Rep. 236, decided by Lord Kenyon at nisi prius, resembles in nothing the one now under consideration. It was an action on a policy on a ship which had been captured and purchased by the master, after eon demnation, for the owners. As no abandonment had been made while the vessel was in the hands of the captors, and the loss continued total, Lord Kenyon considered the owners entitled to recover only the sum paid to the captors, with certain repairs that had been rendered necessary by the capture. The ship having come to the owners’ possession, before an abandonment, or a suit brought, he considered it as immaterial how this restoration took place, and regarded the price paid as the quantum of the loss occasioned by the peril insured against. So, says he, if a ship be sunk and weighed up again, and thus restored to the owners, they have *only a right to go for an average loss. It deserves notice, that even in this case his lordship, and the counsel, admitted “ that the insured might have abandoned and thus made the loss total.” It inevitably follows that the underwriters, if an abandonment had taken place, would have nothing to do with the purchase. If the defendants here were suing on the policy, and had made no abandonment in season, they would probably have recovered nothing more than the sum which they paid for the cargo; but having abondoned, they would, under this very opinion of Lord Kenyon, be mtitled to claim as for a total loss, notwithstanding the-purchase in Malaga. This decision, therefore, though cited by the plaintiffs, is an authority directly against them. They have been equally unfortunate in their allusion to the case of Saidler & Craig v. Church, in this court. That action was also on the p>olicy, and whether the loss were total, or partial, was the only question. The vessel insured, having been captured, libelled in the admiralty, and condemned, was purchased by the master for the owners, who had fitted her out, and sent her on another voyage. The owners, on advice of the capture, but without knowledge of the condemnation or the purchase, abandoned to the underwriters. The court gave judgment as for a partial loss only, considering the sum paid by Saidler & Craig as the amount thereof. Although this was going further than was done in the case of M‘Masters v. Shoolbred, where there was no abandonment, it will not help the plaintiffs, for in neither of these instances were the vessels, when repurchased, regarded as belonging to the underwriters, but, on the contrary, to the assured, and because they had been restored to them at a-certain price, the sum thus paid was considered as the injury sustained by the disaster, by a reimbursement whereof a complete indemnity
It was said, on the argument, that if the assured ransom, the underwriter is bound by his act, and must pay, whether it be a good or bad bargain. This is true, for such act being within his authority, he may, to avoid the greater evil of condemnation, or entire loss, pay a fair price for a restoration of the property, which then belongs to himself and not to the underwriter, who is only held to make good the loss occasioned by the capture, which is the sum paid as a ransom. The effect of a ransom is not to change the property, but to settle the extent of the loss. Upon the whole, I am of opinion, that after a capture, a condemna tion, an abandonment, and payment as for a total loss, the asssurer cannot call on the merchant to account for the profits which he may have made, in consequence of his agent’s purchasing, with Ms funds, the cargo of the captors subsequent to a condemnation; but that such purchase, being with the money of the assured, must be at his risk, and for his exclusive benefit, and that the defendants must of course have judgment. 1 Caines’ Rep. 303, n.(a)
not having heard the argument, gave no opinion.
Judgment for the plaintiffs.