Average loss. Insurance against total loss. p. 170. "If a part of the goods, the profits on which are insured, is lost, this is certainly a partial loss of the profits."-Id., p. 171; Loomis vs. Shaw, 2 Johns. Cases, p. 36. In this case "profits," it was said, “are necessarily incidental, and subject to the final disposition of the goods on which they are expected to accrue." These references show sufficient good reasoning, if not indeed a necessity, for the rule of the text. 2711. Where it has been agreed that an insurance upon a particular thing or class of things shall be free from particular average, a marine insurer is not liable for any loss not depriving the insured of the possession, at the port of destination, of the whole of such thing, or class of things, even though it becomes entirely worthless. NOTE. When by agreement freight is not subject to particular average, if the insured is not deprived of the possession at the port of destination.-De Peyster vs. The Sun Mut. Ins. Co., 19 N. Y., p. 272; 17 Barb., p. 306; Roux vs. Salvador, 3 Bing. N. C., p. 266; 1 id., p. 526; Navone vs. Haddon, 9 C. B., p. 30; Hugg vs. Augusta Ins. Co., 7 How. U. S., p. 595; Williams vs. Kennebec Ins. Co., 31 Me., p. 455. Of the whole thing or freight so free from average. Maggrath vs. Church, 1 Caines, p. 196; Neilson vs. Columbian Ins. Co., 3 id., p. 108; Le Roy vs. Gouverneur, 1 Johns. Cas., p. 226; Saltus vs. Ocean Ins., 14 Johns., p. 138; Rosetto vs. Gurney, 11 C. B., p. 176; see Bargett vs. Orient Ins. Co., 3 Bosw., p. 385. Or class of things, or of freight so free.-Wadsworth vs. Pacific Ins. Co., 4 Wend., p. 33; Biays vs. Chesapeake Ins. Co., 7 Cranch, p. 415. The insurer is not liable for any loss. 2712. An insurance, confined in terms to a total loss, does not cover a constructive total loss, but covers any loss which necessarily results in depriving the insured of the possession, at the port of destination, of the entire thing insured, and also a general average loss. NOTE. If actual total loss is alone insured against it does not embrace a constructive total loss.-See 2 Pars. Mar. Law, pp. 338-343; and the notes to last section. The contrary has, however, been recently held in Massachusetts.-Heebner vs. Eagle Ins. Co., 10 Gray, ARTICLE VIII. ABANDONMENT. SECTION 2716. Abandonment, what. 2717. When insured may abandon. 2719. When may be made. 2720. Abandonment may be defeated. 2721. How made. 2722. Requisites of notice. 2723. No other cause can be relied on. 2724. Effect. 2725. Waiver of formal abandonment. 2726. Agents of the insured become agents of the insurer. 2727. Acceptance not necessary. 2728. Acceptance conclusive. 2729. Accepted abandonment, irrevocable. 2730. Freightage, how affected by abandonment of ship. 2732. Omission to abandon. ment, 2716. Abandonment is the act by which, after a Abandonconstructive total loss, a person insured by contract of what. marine insurance declares to the insurer that he relinquishes to him his interest in the thing insured. NOTE.-Emerigon, Chap. 27; see Jardine vs. Leathley, 3 Best & Sm., p. 700. An absolute total loss gives the insured a right to claim from the insurer the whole amount of his subscription without notice of abandonment.-See Sec. 2709, ante. A constructive total loss exists when the property cannot be retrieved except at a great outlay, etc.-See Sec. 2717, post. "Whether a partial loss may be converted by abandonment into a constructive total loss must necessarily depend in all cases upon the amount of the injury. When the vessel is stranded the question whether the loss shall be deemed partial or so far total as to warrant an abandonment will depend upon the nature and extent of the peril in which the vessel is involved and the probable difficulty, hazard, and expense of attempting to deliver and When insured may abandon. repair her. When it appears that by proper exertions she might have been gotten off and have been fully repaired at a moderate cost (as provided in Sec. 2717), the abandonment is void and a partial loss only can be recovered; and to warrant the recovery of a total loss it must be proved that the delivery of the vessel from the peril was, upon reasonable grounds, judged to be impracticable or not to be effected, unless at an expense that would absorb her value (or at such an expense as warrants an abandonment as provided in the succeeding section). In other words, it must be proved that a loss, actually total, although not then existing, was in the highest degree probable." Fontaine vs. Phoenix Ins. Co., 11 Johns., p. 295; The Sarah Ann, 2 Sumner, p. 255; Dixon Marine Insurance, p. 198. 2717. A person insured by a contract of marine insurance may abandon the thing insured, or any par-. ticular portion thereof separately valued by the policy, or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against: 1. If more than half thereof in value is actually lost, or would have to be expended to recover it from the peril; 2. If it is injured to such an extent as to reduce its value more than one half; 3. If the thing insured, being a ship, the contemplated voyage cannot be lawfully performed without incurring an expense to the insured of more than half the value of the thing abandoned, or without incurring a risk which a prudent man would not take under the circumstances; or, 4. If the thing insured, being cargo or freightage, the voyage cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the ship is also abandoned. NOTE.-"Separately valued by the policy."-Deid erick vs. Commercial Ins. Co., 10 Johns., p. 234. "Or otherwise separately insured."- Vandenheuvel vs. United Ins. Co., 1 Johns., p. 406. Subd. 1.-American Ins. Co. vs. Center, 4 Wend., p. 45; Gardiner vs. Smith, 1 Johns. Cases, p. 141. Subd. 2.-Saurez vs. Sun Mut. Ins. Co., 2 Sandf., p. 482. Subd. 3.-"Voyage cannot be lawfully performed." Ogden vs. N. Y. Fire Ins. Co., 10 Johns., p. 177; aff'd 12 id., p. 25; McBride vs. Marine Ins. Co., 5 id., p. 299; Walden vs. Phoenix Ins. Co., id., p. 310. "Half the value of the thing insured."-American Ins. Co. vs. Center, 4 Wend., p. 45; 7 Cow., p. 564; Deblois vs. Ocean Ins. Co., 16 Pick., pp. 303, 309, 310; see Hall vs. Franklin Ins. Co., 9 Pick., p. 466. "Incurring a risk which a prudent man would not take, under the circumstances."--Schmidt vs. United Ins. Co., 1 Johns., p. 249; Post vs. Phoenix Ins. Co., 10 Johns., p. 79. Subd. 4.-Code de Com., Art. 393. If at the time the abandonment is made the master has commenced to repair the vessel, it has been held that the abandonment is invalid, and that the insured could only recover for the expense incurred, although it exceeds half the value of the vessel.-Humphreys vs. Union Ins. Co., 3 Mason, p. 429; Dickey vs. Amer. Ins. Co. of N. Y., 3 Wend., p. 658. These decisions proceeded on the ground that the state of facts existing at the time of the abandonment determines the right of the insured to abandon. But in Saurez vs. Sun Mutual Ins. Co., 2 Sandf., p. 482, it was held that if the repairs are made merely to carry the vessel from one port to another, in order to make full repairs at the latter port, the right to abandon was not gone. The authorities have been very conflicting as to whether the insurer had the right, in case of loss, to offer to repair the vessel, and thus to escape liability for more than the actual cost. In those cases where this was allowed, it was said that if the insurer repairs he must do it in a reasonable time, and must tender back the vessel in as good condition as she was in before the accident, or supply or pay for any deficiencies; and it was in some instances also held that if, in so repairing, expenses are necessarily incurred by the underwriters (insurers) for which they would not have been liable in an action on the policy, they may recover the amount of them from the insured.-Consult Ritchie vs. U. S. Ins. Co., 5 S. & R., p. 501; Hart vs. Del. Ins. Co., 2 Wash. C. C. R., p. 346; Peele vs. Merch. Ins. Co., 3 Mason, p. 27; Peele vs. Suffolk Ins. Co., 7 Pick., p. 254; Reynolds vs. Ocean Ins. Co., 22 Pick., pp. 191, 197; Commonwealth Ins. Co. vs. Chase, 20 Pick., p. 142. This section (2717), however, determines definitely, so far as the power of this State extends, that if the facts described in Subds. 1, 2, 3, and 4 occur, the insured may abandon, though questions must ever arise as to when the facts or emergencies stated really exist. In some cases, perhaps, there may be a total loss by the sale of a ship by the master. Such sale can only, of course, be made from actual and urgent necessity; but this necessity is judged of from the facts existing at the time, and not by the result.-See Secs. 2378, 2379, ante, and notes, and Sec. 2040 and note; see, further, Patapsco Ins. Co. vs. Southgate, 5 Peters, pp. 604–621; Ruckman vs. Merchants' Louisville Ins. Co., Duer R., pp. 342, 368; Tanner vs. Bennett, Ryan & M., p. 182; Church vs. Marine Ins. Co., 1 Mason, p. 341; Prince vs. Ocean Ins. Co., 40 Maine, p. 481. Abandonment of cargo.-If the health or safety of the crew or passengers demand it, of course the cargo may be abandoned. Heretofore it has been held that if the voyage is broken up merely for the season (as where, at an intermediate port, the ship requires extensive repairs), or where the ship is lost but the cargo is saved, and a delay of months ensues while awaiting for the means of forwarding it, the insured could not abandon. 2 Pars. Mar. Law, p. 370; Manning vs. Newman, 3 Doug., p. 130; Ruckman vs. Merch. L. Ins. Co., 5 Duer R., pp. 342, 365; Anderson vs. Wallis, 2 M. & S., p. 240; Hunt vs. Royal Exch. Ass. Co., 5 M. & S., p. 47. This section says, "when the voyage cannot be performed within a reasonable time." What is a reasonable time must, of course, often depend upon the circumstances of the case. The following are many of the leading decisions on this subject: Maggrath vs. Church, 1 Caines, p. 196; De Peyster vs. Sun Mutual Ins. Co., 17 Barb., p. 306; Neilson vs. Col. Ins. Co., 3 Caines, p. 108; Saltus vs. Ocean Ins. Co., 14 Johns., p. 138; Bryan vs. N. Y. Ins. Co., 25 Wend., p. 617; Aranzamendi vs. Louisiana Ins. Co., 2 La., p. 432; Williams vs. Kennebec Mut. Ins. Co., 31 Maine, p. 455; Robinson vs. Commonwealth Ins. Co., 3 Sumner, p. 220; Hugg vs. Augusta Ins. and Banking Co., 7 Howard, p. 595. |