DUTILH v. GATLIFF, 4 U.S. 446 (1806)

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U.S. Supreme Court

DUTILH v. GATLIFF, 4 U.S. 446 (1806)

4 U.S. 446 (Dall.)


Supreme Court of Pennsylvania.

December Term, 1806

THE following case was stated for the opinion of the Court: 'Case. On the 24th of September 1799, the defendant, Samuel Gatliff, underwrote seven hundred and fifty dollars upon a policy of insurance on the schooner Little Will, belonging to John Dutilh and Thomas Lillibridge, for whom the plaintiff was agent, on voyage at and from Philadelphia to Havanna.

On the 26th of September 1799, the Little Will sailed on her voyage; from Philadelphia for Havanna, and on the 8th day of October following, she was captured by three British privateers, and carried into the port of Nassau, New-Providence, where she arrived on the 13th of the same month.

Upon her arrival in Nassau, the said schooner was libelled in the Admiralty Court, and on the 9th day of November following, was regularly acquitted; and in the whole, she remained thirty seven days at Nassau, during thirty five of which she was in custody of the captors; but the fact of her acquittal was not known

Page 4 U.S. 446, 447

to the plaintiff, until subsequent to the abandonment hereafter mentioned: although it was known to John Dutilh, one of the owners, and supercargo, who was with her at Nassau.

On the 13th day of November, the plaintiff wrote the letter of abandonment, enclosing the papers therein referred to, which was received by the defendant the same day.

On the 20th November, the said schooner sailed from Nassau for Havanna, where she arrived on the 21st of the same month, and sold her cargo, except three boxes plundered at New-Providence. Afterwards the said schooner sailed from Havanna for Philadelphia, where she arrived on the 26th or 27th of February in the year 1800, with a cargo of sugars, on which freight became due and was received by Stephen Dutilh, for the benefit of those who were entitled to it. Each party refusing to accept the schooner, she was sold for wharfage, and the whole proceeds of sale applied to the payment thereof.

The schooner Little Will was American property, as warranted.

The QUESTION for the Court is, whether the plaintiff is entitled to recover as for a total loss?

If the Court shall be of opinion that the loss was total, then it shall be referred, in the usual form, to three person , to be appointed by the Court, to ascertain what is due, after the legal and just deductions.

If the Court shall be of opinion it was not a total loss, it shall, in like manner, be referred to three referrees, or any two of them, to be appointed by the Court, to ascertain the partial loss, to which the defendant is liable.

J. Ingersoll, for the plaintiff.

W. Lewis, for the defendant.' [447-Continued.]

After argument, the chief justice delivered the unanimous opinion of the Court.

TILGHMAN, Chief Justice.

On the case stated, the question submitted to the Court is, whether the plaintiff is entitled to recover for a total loss?

In resolving this question, I shall divide it into two points.

1st. Did there ever exist a total loss?

2d. Supposing that there once existed a total loss, has any circumstance occurred, which excludes the plaintiff from recovering for more than a partial loss?

1st. The case before us, includes one of the risks expressly mentioned in the policy, a taking at sea. But it has been objected, that this taking was not by an enemy; and that when a belligerent takes a neutral, it is to be presumed that the taking is only for the purpose of searching for the property of his enemy, or goods contraband of war; and that, in the end, justice will be done to the [4 U.S. 446, 448]

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