Joseph P. Bradley

“ When it was urged upon the chamber of peers of France, in 1841, to pass a law requiring the abandonment of insurance, as well as of ship and freight, in order to relieve the owner from liability, the suggestion was not entertained. The opinion of the majority was that the relations between the ship-owner and lenders or shippers ought to remain entirely independent of contracts of insurance which either could make; that an obligation to abandon insurance would have no other tendency than to prevent insurance by the owner, since he would be deprived of the benefit of it in case of loss. ”

“ Generally, a sufficient portion of the value of the thing insured remains uncovered by insurance to prevent indifference to loss; and if the temptation to wish it does exist in any case, the retributions are so fearful as to repress the thought. To the honor of human nature, the exceptions to the rule are exceedingly rare.
It is also contended that the right to proceed for a limited liability is waived and lost by a surrender of the vessel to the insurers, because it is then out of the owner's power to abandon the ship to the claimants who have liens upon her. ”

“ It is not an irrelevant consideration in this regard that the owner of the property is under no obligation to have it insured. It is purely a matter of his own option. And being so, it would seem to be only fair and right, and a logical consequence, that if he chooses to insure he should have the benefit of the insurance. He does not take the price of insurance from the thing insured, but takes it out of the general mass of his estate, to which his general creditors have a right to look for the satisfaction of their claims. ”

“ So, where property is sold, the insurance does not follow it, but ceases to have any value, unless the insurer consent to the transfer of the policy to the grantee of the property. In other words, the contract of insurance does not attach itself to the thing insured, nor go with it when it is transferred. It is hardly necessary to cite authorities for a rule which has become so elementary. ”

“ Payment and satisfaction of the decree will be a discharge of the owner as against all creditors represented in the decree.
To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man's liability for a demand against him is measured by the amount of property that may be taken from him to satisfy that demand. In the matter of liability, a man and his property cannot be separated, unless where, for public reasons, the law exempts particular kinds of property from seizure, such as the tools of a mechanic, the homestead of a family, etc. ”

“ After showing the difference between abandonment to the lien creditors and surrender to the insurers, and that the latter does not interfere with or prevent the former, he says: 'The product of the insurance is the price of the premium which the ship-owner has paid to insure the ship. This premium is not bound as a security for debts and obligations contracted by the captain; the law expressly binds the ship and freight alone to that. The Code of Commerce gives to shippers a lien only on ship and freight, consequently they have none on the insurance. ”

“ The argument that to allow the owner to keep his insurance would encourage negligence and recklessness on his part, can always be made in every be made in every case of insurance. It has been made and answered a hundred times. ”

“ If the vessel arrives in port in a damaged condition, and earns some freight, the value at that time is the measure of liability; if she goes to the bottom, and earns no freight, the value at that time is the criterion. And the benefit of the statute may be obtained either by abandoning the vessel to the creditors or persons injured, or by having her appraisement made, and paying the money into court, or giving a stipulation in lieu of it, and keeping the vessel. ”

“ The Prussian Code, adopted in 1794, allowed ship-owners to 'free themselves from responsibility in all cases by a surrender of the ship, including all benefits of the voyage and their rights against the insurers.' But Prussia was the only country that adopted this rule in relation to insurance. ”

“ Does not the provision made in section 4284, for compensation pro rata to each party injured, apply to all cases of loss and damage happening during the entire voyage,-happening, that is, by the fault of the master or crew, and without the privity or knowledge of the owner? Pending freight is of no value to the ship-owner until it is earned, and it is not earned, if earned at all, until the conclusion of the voyage. Does this not show that every 'case' in which the principle of limited liability is to be applied means every voyage? We think it does. ”

“ The time when the amount of liability should be paid into court will depend upon circumstances. If the owner sets up his claim to limited liability in his answer, and does not seek a general concurrence of creditors, it will be sufficient if the amount is paid after the trial of the cause, and the ascertainment of the amount of liability in the decree. ”

“ Dufour attempted to renew the controversy, although he admitted that the views of Emerigon had been acquiesced in even by Pardessus, and that Valin stood alone. He says: 'Doctrine and jurisprudence, after some hesitation, pronounced themselves, as is well known, against the existence of a privilege or hypothecation on the indemnity due from the insurer; and in that way the general principle which Emerigon had adopted as the basis of his theory penetrated men's minds as an indisputable truth which ought thenceforth to govern all indemnities of insurance. ”

“ Emerigon strenuously opposes Valin's opinion. His reasons are that liens are stricti juris, and are not to be extended by construction; that if Valin's rule is well founded, a vendor on credit would have a lien on the price arising on a subsequent sale of the same thing by his vendee after the thing itself had ceased to exist, which was contrary to repeated decisions; that by stronger reason, material-men and workmen have no lien on the assurance of a ship which never belonged to them, for there is nothing essentially common between the right of pledge and that of property ”

“ That object was to enable merchants to invest money in ships without subjecting them to an indefinite hazard of losing their whole property by the negligence or misconduct of the master or crew, but only subjecting them to the loss of their investment. ”

“ It would be otherwise, undoubtedly, if the debtor, in borrowing upon an hypothecation of a house insured, should at the same time assign to his creditor the contingent benefits of the insurance, to serve for his discharge to that extent, and if the creditor should duly notify the insurer,' etc. This passage shows that even Pardessus admitted the law to be as Emerigon had declared it. ”

“ Congress has declared that it is, and they, and not we, are the judges of that question.
Having, as we think, ascertained the true construction of the statute, the point in dispute is really settled. It is a question of construction, and does not require an examination of the general maritime law to determine it. ”