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JO MARINE LITIGATION. pity THE FAMOUS SWAIN CASE. INSURANCE CO., OF -NORTH AMERICA (VS. HENRY J. JOHNSON. 1... MarIngE. INSURANCE—ABANDONMENT—In | the absence of a requirement thereof in the policy, it is not” necessary that an abandonment to the insurer of the interest of the assured, so far as covered by his policy, in a vessel of which there has been a constructive total loss, should specify the exact fractional interest con- veyed. 2. SAME—WAIVER OF FORMAL OBJECTIONS.—An abso- lute rejection by a marine insurer of an abandonment which contains an offer to make any further conveyance or assurance of title to the abandoned vessel which may be required is a waiver of the right to object to the form of the abandonment. 3. SAME—PRESUMPTION OF TrrLE.—Where a person is shown to be the owner of a ship, or an interest therein, and conveys the same, with an agreement to warrant the title as free and unincumbered, there is a ‘presump- tion, in the absence of other evidence, that the title is unincumbered. In Hrror to the Circuit Court of the United States for the Rastern Division of the Northern District of Ohio. Judges Taft, Lurton and Séverens. : This was an action by Henry J. Johnson against. the Insurance Company of North America on a policy of marine insurance. ‘The plaintiff recovered judgmentin the circuit court. Defendant brings error. C. E. Kremer, for plaintiff in error. Harvey D. Goulder, for defendant in error. Taft, Circuit Judge. The action below was by Henry J. Johnson, against the Insurance Company of North America of Philadelphia, torecover the sum of $10,000, the full.amount of a policy issued by the company to Johnson, asthe owner of three-fourths interest inthe V. Swain. The steamer was valued, by agreement in the pol- icy, at $33,000 and the limit of insurance on interest insur- ed was $21,600. The policy covered only total loss and general average. The vessel was burned to such an ex- tent that Johnson claimed that under the terms of the policy it was a constructive total loss, giving him the right to abandon the vessel and recover the full amount of the policy. It was conceded that, in order to estab- lish his right to abandon, Johnson was obliged to show that it would have cost more than $25,200 to repair the vessel and to restore it toits former condition. ‘The de- fendant company made two points below, and makes but two here. The first is that there was no lawful abandonment, and the second that there was not suffi- cient evidence to show that it would have cost the re- quired amount to repair the vessel. The abandonment was in the following terms: : November 20, 1893. To the Insurance Company of North America, George L. McCurdy, Manager, Chicago, Ill.—Dear Sir: Please take notice that I hereby abandon to you my interest in the steamer V. Swain, so far as covered by your hull policy No. 1,967, insuring $10,000 on my three-quarters interest upon a valuation of $33,600 for the whole vessel. Said steamer caught on fire, by which, om or about Oct. 10, 1893, she was so greatly damaged as to become a con- structive total loss, under the terms and agreements of your said policy. In making this abandonment I re- serve all the uninsured interest to which I am entitled. ‘I further hereby warrant and agree to defend the in- terest hereby conveyed and abandoned to you against all and every person or persons whomsoever, and against all claims of every nature, and propose to make, execute and deliver to you any further conveyance or assurance of title which you may reasonably require. Very respectfully yours, H. J. JOHNSON. CHICAGO, November 23, 1893. H. D. Goulder, Ksq., Cleveland, O.—Dear Sir: Your favor of the 22d received. I note that you have brought suit in the matter of the Swain. I received: the notice of the abandonment, and hereby notify you that I decline to accept same. Isit necessary for me to notify the assured, or will this notice of declination be sufficient? I regret that the assured has seen fit to take this matter into court. * * * Yours truly, GEORGE L, McCurpy, Manager. Upon the question whether the cost of the necessary repairs to restore the vesselto its former condition would exceed $25,200, so as to create a constructive total loss, the issue was fairly presented to the jury, and the jury found the fact in favor of the plaintiff. The evi- dence set forth in the record is quite sufficient to justify the verdict. Itis not for this court, on a proceeding in error in a case at law, to weigh conflicting evidence. The verdict of the jury is conclusive upon this issue. With reference to the sufficiency of the abandonment, it is first objected that there is no evidence before the jury toshow that Johnson had an unincumbered title to THE MARINE RECORD. the vessel, as required by the policy. Tne language,of the policy upon this point was as follows: Moreover, no abandonment. in any case whatever, even when the right to abandon may exist, shall be held or allowed as effectual or valid, unless it shall be in writing signed by the insured, and delivered to the said company.or its authorized agent; nor unless it shall be efficient, if accepted, to convey to and vestin the said insurance company an unincumbered and perfect title to the subject abandoned. The evidence did show that Johnson was the owner of the interest insured. This was admitted in the plead- ings. No instruction was asked from the court, based on the alleged defect in the plaintiff’s proof, and we think it too late now, for the first time, in the Court of Appeals, for the defendant below to make it. More than that, we are of opinion that where a person is shown to be the owner of a ship, or an interest therein, and conveys the ship with an agreement to warrant the title as free and unincumbered, there is a presumption, in the absence of other evidence, that the title is unin- cumbered. : Finally, it is objected that the abandonment is not in proper form, because it does not set out the exact inter~ est of the plaintiff intended by him to be reserved in the ship. We are not called upon to decide whether the plaintiff had an uninsured interest in the vessel, which he was entitled to reserve on abandonment, for the af- firmative of the question is conceded by defendant’s ‘counsel. The only question presented to us, therefore, is whether the abandonment is fatally defective because the, plaintiff did not give by the exact fraction the in- terest sought to be abandoned. It is well settled that no particular form of words in an abandonment is nec- essary to make it legal, and that the mere form of ex- pression used is not material, provided the policy does not stipulate otherwise. All that is necessary is that the intention to abandon shall be made clear enough fully to advise the underwriter that the vessel is turned over to him for the purpose. We have found no author- ity which prescribes that an abandonment must state with mathemetical exactness the interest conveyed. The terms in this policy require a certain form of aban- donment, but there is no requirement that the exact in- terest of the assured shall be Specified. The policy re- quires that it shall be in writing signed by the insured, and delivered to the company or its authorized agent. In these respects the abandonment in question is cer- tainly sufficient. A further provision is that it must be sufficient, if accepted, to convey to and vest in the insur- ance company an unincumbered and perfect title to the. subject abandoned. The abandonment was of the plaintiff’s interest, so far as covered by the policy. The reservation was of the uninsured interest to which Johnson was entitled. Reading the two together, all that Johnson reserved was that which was not covered by the policy. Certainly this written abandonment worked a transfer of the title to the insurance company, in accordance to: the requirements of the policy, to the subject abandoned. That was its legal effect, and it could leave no doubt in the mind of the company of its right, if it chose to accept the act of abandonment, to proceed at once to take charge of the vessel and repair and sell the interest insured under the policy. If the plaintiff below had any interest which was uninsured, he, of course was entitled to hold the company as the trustee for that part of the proceeds of the vessel. More than this, even if the form of abandonment was objectionable because of the indefiniteness of the reser- vation, this cannot be. made the basis of an objection. The abandonment was rejected absolutely, as we see from the letter of July Sth. If it was based on any for- mal grounds, as, for instance, the indefiniteness of the abandonment, it would have been but fair in the defend- ant to say so at the time. The plaintiff proposed, in his letter of abandonment, to make any further convey- ance or assurance of title which might be required. This was an invitation to object to the form of abad- donment if unsatisfactory. Under such circumstances, a failure to object to the forms of the abandonment at the time must be held to have been a waiver of any such objection, doctrine which obtains in presenting claims for fire in- surance indemnity. In such a case, if the insurer makes only a general objection to payment of the loss, on the ground that it did not exist, and points out no specific defect in the proof of loss, the company cannot thereafter set up a defect therein as a defense to recov- ery. The judgment of the court below is affirmed, with costs. This is a reasonable application of the same ~- NEWLY ENROLLED TONNAGE. : Following is a list of lake vessels to which official numbers and signal letters have been assigned by the Commissioner of Navigation, for the week ending May 30: TONNAGE. = | Where Built Gross. | Net. Rig. Home Port Official No. Name. Sip. |Cora 6.53 | 6.53 |Clayton iaaes Sehr. Ellen 37.57 | 32.88 |Pincoming |Port Huron — 86351 |St. s.|@, B. Raser | 369.54 | 258.74 |Ashtabula |Cleveland 96,330 |St. s.|Harriet* 8.63 6.62 [Chicago ~~ |Chicago *Built in 1895. rrr or oe VISIBLE SUPPLY OF GRAIN. As compiled for THE MarINE REcorD by George F.- Stone, Secretary Chicago Board of Trade, June 6, 1896: WHEAT. CORN. OATS, RYE, BARLEY CITIES WHERE | Bushels. | Bushels. | Bushels, | Bushels, | Bushels, Albany ois. cscgeesse| sees scree 5.000 10.000) occ sseesclsevcuenmen Baltimore ...........- 448,000) 1,001.000 252,000 28,000) 0... ..eee Boston ......e.ceeee+-| _ 688,000 91.000 18:000):,.. 5.0205) aoan esau Buffalol 2320. fb 40. 977,000 17,000 343,000 129,000} 215,000 “ afloat., pa asabelooey Shale coh Chicago,..... 544, 10,000 - « afloa' é * assieed Cincinnati, .... 000 Detroit. ,....: 2,000 ‘* - afloat , Ss'l ese Sn bis pin alae = mpecleiale lie aus gietanata micat oea ee Duluth ana Supe. dedevecsl Os1-000 84,000} 160,000 ‘lp rend al Py meee cocleeces cavslecereceeesl es ecseues. Indianapolis ,........... TO000|ccscgeucechecwascsnen wie ceae oe Kansas City,......... 65,900 31,000 29,000!.... 2... Milwaukee.,......... D000 sie naiet 402 000 ne afloat Sea Na siaisl cies sesseree| sles aenae Minneapolis, 81 000 21,006 Montreal. ... 6 000 63,000 — New York... 65,000) 4,000. of afloat be . Acpianuhane 8,000 - Oswego .... sc cesvpcl cote swale cd POONA ec accrumccses 2. eee Moti Philadelphia Saar aes eeeumuees St, Louis........ 29,000 weeees PROPOSALS. TREASURY DEPARTMENT, Office of General Superintendent U. S. Life-Sav- ing Service, Washington, D. C., May 28, 1896. Sealed proposals will be received at this office until 2 o’clock p. m. of Wednesday, the 24th day of June, 1896, for furnishing supplies required for use of the Life-Saving Service for the fiscal year ending June 30, 1897; the supplies to be delivered at such points in New York City, Grand Haven, Mich., and San Francisco, Cal., as may be required, and in the quantities named in the specifica- tions. The supplies needed consist of ' beds and bedding, blocks and sheaves, cordage, crockery, furniture, hardware, lamps, lanterns, etc.; lumber, medicines, etc.; paints, oils, etc.; ship chandlery, stoves, etc.; tools and miscellaneous ar- ticles; all of which are enumerated in the specifications attached to the form of bid, etc., which may be obtained upon application to this office, or to the In- spector of Life-Saving Stations, 24 State Street, New York City; Superintendent Eleventh Life-Saving District, Grand Haven, Mich.;. and Superintendent Twelfth Life-Saving District, New Ap- praisers’ Stores, San Francisco, Cal. Envelopes containing proposals should be addressed to the ‘‘General Superin- tendent U. S.. Life-Savin Service, Washington, D. C.,’’ and marked on the outside ** Proposal for Annual Supplies.” The right is reserved to reject any or all bids, and to waive defects, if deemed for the interests of the government. S, I. Kimpaty, General Superintendent. 23-24 U.S, ENGINEER OFFICE, 213 Woodward Ave., Detroit, Mich., May 19, 1895. Seal- ed proposals for furnishing all labor, materials and appliances for (E) widen- ing channel below Islands at Little Rapids; (F) widening channel at angle, foot of Hay Lake; and (G) widening channel from dike to angle at Little Mud Lake, will be received here until 2 p- m., June 18, 1896, and then publicly opened. Information furnished on ap- plication. G. J, LypEcKgr, Lieut. Col. Engineers. 21-24 CapeVine’nt poole ACB 90,000] "*"'99,060) 02 2.00102. -, 91,000) ..:. 2 -,...|) |. 20,00e 1,078,000] "89,000 8,315,000| 1,547,000] 802,000 8,749 000] 127,000] — 102,000 ¢ \ "