UNITED STATES SUPREME COURT DECISIONS ON-LINE

THIS was an action upon an open policy, dated the 10th of March 1793, on goods on board the Andrew, capt. Macken, bound from Charleston to Amsterdam. The ship, sailing on the voyage insured, was captured, on the 11th of April 1793, by a French privateer, and carried into L'Orient, where, after a few days detention, she was acquitted and restored. On the 26th of April 1793, however, the French government seized the cargo, for public use, promising to pay a liberal fixed price for it to the owners; but, after repeated solicitations, the consignee, in 1796,

Page 4 U.S. 272, 273

abandoned the hope of seeing a performance of the promise, and returned to America. It appeared, on the trial of the cause, that the captain's protest, dated the 17th of May 1793, had been transmitted to the owners of the ship, in Philadelphia, under cover of a letter from Amsterdam, dated the 17th of May 1793; and the notice of the capture was given by them to the plaintiff, at least, as early as the month of August 1793. The yellow fever soon afterwards made its appearance in the city; and the plaintiff retired, with his family, into the country, on the 10th of September; but, in common with the rest of the citizens, he returned, after the calamity had ceased, about the 19th of November; and then went on a journey of business to South Carolina. It was not, however, until the 21st of January 1794, that he intimated to the underwriters an intention of abandonment; and, even then, he did not directly abandon, but only stated, in a letter, 'that he meant to abandon.'

The general question was, whether the abandonment, had been made in due season, to entitle the plaintiff, in this case, to recover for a total loss?

The defendant contended, that the words of the letter from the plaintiff, did not amount to an actual abandonment; but only imported an intention to abandon; that by such equivocal language, he was enabled to take for himself all the chances of an advantageous settlement in France: while the defendant was not empowered to pursue the property on account of the underwriters; that, independent of the ambiguity of the letter, intimating his intention to abandon, the abandonment was not made in a reasonable time, on the 21st of January 1794, notice of the loss having been received in August 1793; and that the excuse of the yellow fever, though it would apply to a personal interview, would not apply to a communication by writing. Park, 161, 2. 2 Dall. Rep. 284. 1 Burr. 349. 2 Burr. 697. 5 Burr. 1241. 3 Atk. 195. 2 Burr. 683. 2 Burr. 1198. 1214. Doug. 219. 1 T. Rep. 608. 1 Esp. N. P. Rep. 237. Park, 192. 2 Mag. 175. 416. Park, 92. 82. 81. (a) 172.

The plaintiff's counsel insisted, that under the peculiar circumstances of the case, the abandonment was made in due season; and that the terms of the abandonment were sufficiently positive.

THE COURT.

The COURT, in the charge to the jury, stated, that no particular form of words was necessary to constitute an abandonment; that by declaring he meant to abandon, the plaintiff had made his election, and could never afterwards retract. That an abandonment must be made within a reasonable time; but that what constituted a reasonable time, was a question of fact, depending upon the relative situation of the parties, the time, and the place,

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after notice to the assured of the loss; and that, in the present case, there did not appear to have been any design to waive the right of abandonment, though its exercise was suspended by a public calamity, and other fortuitous occurrences.

Upon the whole, the opinion of the Court was in favour of the plaintiff, and the Jury gave a verdict accordingly.