by reason of that damage in such a state, though the skins be not utterly destroyed, that they cannot with safety be reshipped into the same or any other vessel; if it be certain that before the termination of the original voyage the species itself would disappear, and the goods assume a new form, losing all their original character; if, though imperishable, they are in the hands of strangers, not under the control of the assured; if *1166 by *any circumstance over which he has no control, they can never, or within no assignable period be brought to their original destination; in any of these cases the circumstance of their existing in species at that forced termination of the risk is of no importance, the loss is in its nature total to him who has no means of recovering the goods, whether his inability arises from their annihilation, or from any other insuperable obstacle." There is a total loss of the ship, if, by any of the perils insured against, it be rendered of no use whatever, though it be not entirely annihilated."(1)

Where, by means within the reach of the master, a ship can be treated so as to retain the character of a ship, he cannot, by selling her, even bonâ fide, convert the average into a total loss, for the underwriters are entitled to have those means used on their account.c

2. A constructive total loss is where, by one of the perils insured against, as by a capture, or embargo, or by the vessel being deserted by the crew on account of its perilous state, the voyage is frustrated, though there is a chance of the recovery of the goods; or where the goods, though existing in species, are so deteriorated as not to be worth the expense of bringing them to their destination; in all such cases the insured may entitle himself to recover as for a total loss, by giving notice of abandonment to the insurer. The fair inference from the authorities is that, where it is out of the power of the insured or of the underwriter to procure the arrival of the subject matter insured, in species, at its place of destination, there is an actual total loss; but it cannot be considered an actual total loss whilst there is a spes recuperandi, or possibility, however re

5 Per Lord Abinger, C. B., 3 Bing. N. C. 279. (32 Eng. C. L.)

Per Lord Ellenborough, C. J., in Cologan v. London Assurance Company, 5 M. & S. 455.

• Gardiner v. Salvador, 1 M. & Rob. 116.

(1) (Where a vessel is sunk in the sea, it affords strong primâ facie evidence of total loss, because it would in general preclude all hope of recovering her. But submersion, like stranding or other serious disaster, is to be taken in connection with other circumstances in determining whether the loss is or is not total. These circumstances, amongst others, are, the depth of the water, the distance from shore, the condition of the bottom, whether soft or rocky, the roughness or smoothness of the sea, the season of the year, and whether the means of relief are at hand. The ultimate question is, can she be raised and repaired at a reasonable expense of time and money; as in case of stranding the question is, can she be got off and repaired at a reasonable expense. Per Shaw, C. J., in Sewall v. The U. S. Ins. Co., 11 Pick. 94.)

mote, of the thing insured arriving in its form and species at its destination.(1)

necessary

cover for

3.-Nature and operation of abandonment.] The distinction between an actual and constructive total loss is, that in the *former case the insured is entitled to recover from the under- *1167 writer the whole sum insured without abandoning; whereas, in the latter case, he is not entitled to recover as for a total loss, unless he abandons; i. e. yield up to the insurer, within a reasonable time after he has received intelligence of the accident, all his right to the recovery of the property insured, so that the underwriter may be entitled to the benefit of what may still be of any value. "It has prevailed as a general rule," When an said Tindal, C. J., "and that from so early a time that it is abandondifficult to find a case in the books in which it is not taken as ment is an admitted principle, that in order to recover for a constructive to enable total loss the assured must first abandon." It is an established the insurand familiar rule of insurance law, that where the thing in- ed to resured subsists in species, and there is a chance of its recovery, in order to make it a total loss there must be an abandonment. a total On the other hand, Mr. Justice Bayley says, "I take the legal principle to be this; if by means of any of the perils insured against, the ship ceases to retain that character and becomes a wreck, that is a total loss, and the master may sell her, and the assured may recover for a total loss without giving any notice of abandonment." "Cambridge v. Anderton, is an express decision, that when the subject matter insured has by a peril of the sea lost its form and species, where a ship, for example has become a wreck, or a mere congeries of planks, and has been bona fide sold in that state for a sum of money, the assured may recover a total loss without abandonment; and when such a sale is justified by necessity, the nett proceeds becomes money had and received to the use of the underwriter upon payment by him of the total loss."

It is observable, that abandonment is only necessary to render a constructive loss an actual total loss; and that it is not incumbent on the insured to abandon in such a case; he may

loss.

Per Tindal, C. J., in Roux v. Salvador, 1 Hodges, 53. 1 Bing. N. C. 526. (27 Eng. C. L. 481.)

C

Per Lord Ellenborough, C. J., in Tuno v. Edwards, 12 East, 491.

Per Bayley, J., in Cambridge v. Anderton, 2 B. & C. 693, (9 Eng. C. L. 224,) who cites Read v. Bonham, 3 B. & B. 147, (7 Eng. C. L. 384,) as an authority for this position. And see Mullett v. Shedden, 13 East, 304, to the same effect. Per Lord Abinger, C. B., in Roux v. Salvador, 3 Bing. N. C. 288. (32 Eng. C.

L.)

(1) (In general where the injury is more than one-half the value, it is a technical or constructive total loss. 3 Johnson's Digest, 380. The Patapsco Ins. Co. v. Southgate, 5 Peters, 604. Sewall v. The U. S. Ins. Co., 11 Pick. 94. Bryant v. Commonwealth Ins. Co., 13 Pick. 543. Winn v. Columbian Ins. Co., 12 Pick. 279. Catlett v. Pacific Ins. Co., 1 Wend. 561. Dicky v. American Ins. Co., 3 Wend. 658. American Ins. Co. v. Center, 4 Wend. 45. Pezant v. The National Ins. Co., 15 Wend. 453. Hall v. The Franklin Ins. Co., 9 Pick. 466.)

*run the chance of any advantage that may result to him beyond the value insured, but he must also abide the risk of the arrival of the thing insured in such a state as to entitle him to no more than a partial loss. If in the event the loss becomes absolute, the underwriter is liable for a total loss. Where there is an abandonment, the risk is thrown on the underwriters. Where there is no abandonment, the party takes his chance of recovering according to his actual loss."(1) A few instances will illustrate the positions here laid down.

Where a ship was so much damaged by the perils of the sea, that in order to render her seaworthy it would cost more to repair her than she would be afterwards worth, and the captain sold her to a purchaser who partially repaired her, and sent her upon a voyage, which she never completed in consequence of her infirmity; held, that the assured were entitled to recover as for a total loss without giving notice of abandonment.b

Where a ship loaded with saltpetre was seized at the Cape of Good Hope on her voyage to America, and the cargo condemned, unshipped, and sold by order of the Court of Admiralty there, whose sentence was afterwards reversed on appeal here, and the property ordered to be restored, or its value paid to the owner, though upon payment of the captor's costs; the court held, that the assured might recover as for a total loss, without notice of abandonment; the thing insured being wholly

15 East, 16. 3 Bing. N. C. 287. (32 Eng. C. L.) Davey v. Milford, 15 East, 559. Cambridge v. Anderton, 2 B. & C. 691. (9 Eng. C. L. 224.) 4 D. & R. 203. Roux v. Salvador, ante, 1165.

(1) (No particular form of abandonment is necessary, nor is it indispensable that it should be in writing. But in whatever form it is made, it ought to be explicit, and not left open as matter of inference from some equivocal acts. The assured must yield up to the underwriter all his right, title, and interest in the subject insured; for the abandonment, when properly made, operates as a transfer of the property to the underwriters, and gives him a title to it, or what remains of it, as far as it was covered by the policy. The Patapsco Ins. Co. v. Southgate, 5 Peters, 604.

The insured is not compelled in any case to abandon. He has an election which rests in his discretion; but no right to claim for a constructive or technical total loss vests, until such election is made. An election to abandon cannot be made until receipt of advice of the loss. Intelligence of the loss derived from a newspaper is sufficient; but the information must be of such facts and circumstances as would, if existing in point of fact, sustain the abandonment. A mere apprehension that a total loss may have occurred, does not authorise the offer. The mere stranding of a vessel does not, of itself, form a substantive ground of abandonment. It depends on the circumstances. Bosley v. The Chesapeake Ins. Co., 3 Gill & Johns. 450.

The assured cannot abandon on the ground of imminent danger of a total loss. As if a ship, having sustained damages, is abandoned while on her way to a port to repair, the abandonment will have no effect in case she arrives and the repairs cost less than fifty per cent on her value. Hall v. The Franklin Ins. Co., 9 Pick. 466.

The right to recover of the assurer for a total loss is complete, if the loss which is the basis of an abandonment, continues at the time of abandonment. Maryland and Phœnix Ins. Cos. v. Bathant, 5 Gill & Johns. 160. An abandonment can only operate upon the property or thing saved at the time a loss occurs; not upon that which is safe and no longer exposed to the perils insured against. An abandonment accordingly has no operation on freight earned. Patapsco Ins. Co. v. Biscoe, 7 Gill & Johns. 305.)

lost to the owner by the unshipping and sale of the commodity at the Cape, under the order of the court there. So, where a ship was so shattered in a storm, that it was found, on survey, that the expenses of repairing her would far exceed her original value, and the captain sold her bona fide for the benefit of all concerned; and the purchaser shortly afterwards broke her up; it was held, to be a total loss without notice of abandonment.b

the abandonment.

*An abandonment will not have the effect of converting a partial loss into a total loss; but if there be a total loss by one Acceptof the perils insured against, an abandonment will entitle the ance of insured to recover as for a total loss, though the property be afterwards restored, if the insurer accede to the abandonment. But if the insurer does no act which implies an acceptance of the abandonment, and there be a restoration of the goods before the action be brought, the insured can only recover for the actual loss.

If a ship be captured, and the insured abandons before he has reason to believe that events have changed the nature of the loss, he can recover as for a total loss, though there be a subsequent restitution of the goods, if it be attended with such circumstances as to frustrate the voyage, or to render the prosecution of it a matter of doubtful policy. Where a vessel was placed in so much danger by the perils of the sea that the crew deserted her in order to save their lives, and the owner of the goods insured thereupon gave notice of abandonment; a few days afterwards some fishermen found the vessel, towed her into port, and repaired her; but the goods were so damaged that they were not worth the expense of forwarding them to the place of their destination; it was held, that the insured was entitled to recover as for a total loss. So, if the ship be prevented from proceeding, and no other ship can be found to carry the cargo to the port of destination, whereby the voyage is entirely lost, the insured may abandon.

* Mullett v. Shedden, 13 East, 304, and see Goldsmid v. Gillies, 4 Taunt. 803. Bondrett v. Hentigg, Holt, 149. (3 Eng. C. L. 57.)

Robertson v. Clark, 8 Moore, 622. 1 Bing. 445. (8 Eng. C. L. 373.) Green v. The Royal Exchange Assurance Company, 6 Taunt. 68. (1 Eng. C. L. 309.)

Brotherston v. Barber, 5 M. & S. 425, post, 1170. M'Carthey v. Abel, 5 East, 388. Hamilton v. Mendez, 2 Burr. 1198. Bainbridge v. Nelson, 10 East. 329. Where there was a loss by capture, intelligence of which was received, and an abandonment made, and a recapture took place before the notice of abandonment was given, but there was no intelligence received of such recapture until after some steps had been taken by the underwriters; held, to amount to an acceptance of the abandonment by them. Smith v. Robertson, 2 Dow. 474.

M'Iver v. Henderson, 4 M. & S. 576. Cologan v. London Assurance Company, 5 M. & S. 447. Falkner v. Ritchie, 2 M. & S. 290. Barker v. Blakes, 9 East, 283. Goss v. Williams, 2 Burr. 683. Hudson v. Harrison, 3 B. & B. 97. (7 Eng. C. L. 364) 6 Moore, 298.

e

Parry v. Aberdeen, 9 B. & C. 411. (17 Eng. C. L. 408.) Holdsworth v. Wyse, 7 B. & Č. 794. (14 Eng. C. L. 129.)

'Manning v. Newnham, Park. 260. Anderson v. Royal Exchange Assurance Company, 7 East, 42.

Notice of abandon

ment.

The in

sured can

INSURANCE.

[CHAP. XVI. *The barratry of the master is a ground of abandonment as for a total loss, though the goods ultimately reach their destination through the agency of strangers to the assured."

Notice of abandonment is necessary though the ship and cargo be sold and converted into money before notice of the loss had been received. But where, on an insurance on ship from Rio de Janeiro to Liverpool, she was captured, and afterwards recaptured; but in the interval, the assured having received intelligence of the capture, gave notice of abandonment; and after the recapture the ship arrrived at Liverpool, having sustained a partial damage; held, in an action brought to recover a total loss, that the assured could only recover as for a partial loss; for the abandonment did not preclude the insured from resuming all his rights de integro in the ship, as the goods were restored before action brought.

4.- When abandonment will not avail.] The insured can not by abandonment convert a partial loss into a total loss, he can only abandon in case of a total loss; if either the ship or the voyage be lost, that is a total loss. Where the jury found total loss. that the damage did not exceed 481. per cent., it was held not *1171 *to be such a loss as entitled the insured to abandon. So, it

abandon only in case of a

has been held, that the mere retardation of the voyage, the goods insured not being of a perishable nature or materially injured, was not a subject of abandonment.

The desertion of a crew does not of itself constitute a total loss, nor can the insured abandon so as to make it a total loss, unless he has exerted himself to the utmost in his power to prevent the necessity of it. Therefore, where a ship received considerable damage from tempestuous weather, and the crew, completely exhausted, deserted the ship on the high seas for the

• Dixon v. Reid, 1 D. & R. 207. S. C. 5 B. & A. 597. (7 Eng. C. L. 201.) Hodgson v. Blakiston, Park. 172.

• Brotherston v. Barber, 5 M. & S. 418. See Underwood v. Robertson. 4 Camp. 138. An insurance was effected on goods on board a ship consigned to Buenos Ayres. The ship, with the cargo, was captured by the Brazilian government, and condemned for an attempted breach of blockade. Notice of the capture was given by the insured to the underwriters, and an offer was made by the insured to abandon. The underwriters declined the offer of abandonment; and, after some negotiation, it was arranged that, on payment by the underwriters of 351. per cent. on the sum insured, the policy should be delivered up to be cancelled. The per centage was accordingly paid, and the policy cancelled. Some years afterwards, in pursuance of a convention between Great Britain and the Brazilian government, the goods were ordered by the latter government to be restored to the owners, and compensation to be made. A claim was made by the underwriters to the whole or a part of the sum awarded for compensation; but held, that the underwriters having declined the offer of abandonment, the payment of the 351. per cent. was a compromise of their liability under the policy, and that they were not entitled to any portion of the sum awarded for compensation. Brooks v. MacDonnell, 1 Y. & Col. 502.

& Per Buller, J., in Cazelet v. St. Barbe, 1 T. R. 191.

• Id.

Hunt v. The Royal Exchange Assurance Company, 5 M. & S. 47. Anderson v. Wallis, 2 M. & S. 240. Parsons v. Scott, 2 Taunt. 363.