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however of opinion, that the rule which rests on the weight of authority, and on the stronger reason, would not sanction an action under a policy restricted to a total loss, by any of the many phrases which are used for that purpose, unless the loss be total without abandonment.

In this country, the ship, cargo, and freight are seldom jointly insured in the same policy. If they are, it would seem that an abandonment cannot be made of either of these interests separately. If one sum is insured by the policy upon a cargo consisting of various kinds of merchandise, it would seem to be clear that there can be no abandonment of a part, and not of the whole. If insurance is made, therefore, against the total loss by actual destruction of the whole only and some portion of one of the kinds of merchandise on board is saved, there is no valid claim whatever against the insurers.2 But if the several parts

tobacco, and rice, they were to be liable for all loss over seven per cent. of the aggregate value. Then, near the end of the policy, was the clause, "partial loss on sheetiron, iron wire, Braziers' rods, iron hoops, and tin plates, is excepted." From the fact, that the words "unless the vessel be stranded," were omitted, we think it clear that the underwriters regarded these articles as the most liable to damage, of all enumerated in the policy. But the court deduced a different result from the same facts. After mentioning that the underwriters would have been liable if the goods had been in the common memorandum, as the loss happened by stranding, Shaw, C. J., said: "What, then, is the extent of this exception? The natural construction is, that it leaves the insurer liable for all total losses, but it makes no distinction between absolute and constructive total losses, and in case of a constructive total loss, which gives the assured a right to abandon, and he exercises the right, it becomes a legal total loss, as if absolute in its nature." We are, however, constrained to say that this does not, in our judgment, seem to be the most natural construction, and accordingly, after a careful review of the authorities, we consider the law to be, that the effect of the words, "partial loss excepted," or "against total loss only," is to exempt the underwriter from all loss but an actual total loss. But in Massachusetts, the tendency of the late decisions seems to establish the rule, that the assured may abandon if the article be not perishable in its nature; although the court once declared itself in favor of restraining the right of abandonment to those cases where it was compelled to recognize it by settled law. Deblois v. Ocean Ins. Co., 16 Pick. 303.

1 In Stocker v. Harris, 3 Mass. 409, the position was taken by counsel, that in such a case, the interest in the ship could not be alone abandoned, but the point was not decided by the court. See Marsh. Ins. 601.

2 Guerlain v. Col. Ins. Co., 7 Johns. 527. See also, Humphreys v. Union Ins. Co., 3 Mason, 429; Morean v. United States Ins. Co., 1 Wheat. 219; Waln v. Thompson, 9 S. & R. 115. But in England, it has been held in a recent case, that where insurance was effected on goods described as "master's effects," those lost might be recov

or kinds of merchandise are severally and distinctly valued, it has been held, that this divides the loss so entirely, that there may be an abandonment of one of these parts, and not of the rest.1

A similar question arises, when a cargo consisting of bales, packages, etc., of the same kind of goods, is insured against total loss only, or free from average, under a certain per cent. But this subject we have already considered, and refer to what we then said.2

It is obvious, from the nature and purpose of abandonment, that no person can abandon, who has not the power of making a legal transfer of the interest or property which he abandons. If, therefore, the property passes from him by his own voluntary act or by a peril not insured against, before the underwriters can take possession of the vessel, the loss is to be considered as partial only. But if the sale of the vessel is rendered necessary by

ered, although not separately valued. Duff v. Mackenzie, 30 Law Times, 103, 20 Law Reporter, 701.

1 Deidericks v. Commercial Ins. Co., 10 Johns. 234. So, if different parts of a cargo, belonging to one person, are insured by the same underwriters by different policies, it seems, that an abandonment may be made upon one policy. Valin, tome 2, p. 109. And if a certain sum is insured on each article, this is the same as if it was separately valued. Emerigon, c. 17, s. 8; Pothier, Ins. n. 132.

2 See ante, p. 273, 274.

8 In Higginson v. Dall, 13 Mass. 96, the ship was insured by a valued policy to the full amount of her valuation in Calcutta, and also by an anterior open policy by the defendant. The vessel had been abandoned to the underwriters on the Calcutta policy, who accepted the same and paid as for a total loss. There was evidence tending to show, that the vessel was worth more than the valuation in that policy, but the court held, that the plaintiff could not recover as for a total loss, from the defendant, as he had voluntarily parted with all title to his ship. So, in Rice v. Homer, 12 Mass. 230, where loss by capture was exempted, and the vessel was damaged by perils of the sea, to an amount exceeding half her value, but no abandonment was made, and she was afterwards captured, the court held, that as the assured could not deliver up the vessel, he could not recover as for a total loss. And if, after an insurance is made, the property is mortgaged, no abandonment can be made, if the mortgage subsists at the time of the loss. Gordon v. Massachusetts F. & M. Ins. Co., 2 Pick. 249. See also, Smith v. Columbia Ins. Co., 17 Penn. State, 253. In Williams v. Smith, 2 Caines, 13, the vessel, at the time the assured purchased her, was under a bottomry bond of an amount greater than her value, but of this fact the assured was ignorant. During the voyage, the vessel was abandoned for want of funds to carry on the voyage, but was sold under the bond before the underwriter obtained possession of her. Held, that the underwriter was liable only for the balance which remained after the sum for which the vessel was

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a peril insured against, the insured may still abandon and claim a total loss, if the sale was caused in no way by his default.1 And if after an abandonment, but before the underwriters can take possession, the master sells the vessel, this act will be considered as done by him as agent of the underwriters; and if the facts, at the time of the abandonment, showed the loss to be total, the sale will not in any way affect the rights of the assured.2

It has been held, that if there be an abandonment, and the insurers require an instrument of cession and transfer of the salvage, and the insured refuse to give it, he may still claim as for a total loss, because the abandonment did all that an instrument of cession could do. If, however, the insurers had reason for their request, because without such further instrument and the authority it gave, they could not recover the salvage, doubtless such cession would be held to be an essential part of the abandonment, and the latter would therefore be incomplete without it.4

sold, was deducted from the valuation. And if a bottomry bond is given during the voyage, which has not been paid, although the owners had an opportunity of paying it, it would seem, that the assured could not abandon. Allen v. Commercial Ins. Co., 1 Gray, 154. See also, Badger v. Ocean Ins. Co., 23 Pick. 347, 356.

1 See, for sale to pay salvage, post, p. 370, n. 2; for sale under bottomry bond, post, p. 360, n. 1; and for sale by master, post, p. 365, n. 2.

2 Center v. American Ins. Co., 7 Cow. 564; Ruckman v. Merchants' Louisville Ins. Co., 5 Duer, 342, 369; Bryant v. Commonwealth Ins. Co., 6 Pick. 131.

3 Hurtin v. Phoenix Ins. Co., 1 Wash. C. C. 400.

4 Hurtin v. Phoenix Ins. Co., 1 Wash. C. C. 400, 405, per Washington, J. In Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, a deed of cession was given, but it was objected to, on the ground of its being informal. Marshall, C. J., said: "The informality of the deed of cession is thought unimportant, because, if the abandonment was unexceptionable, the property vested immediately in the underwriters, and the deed was not essential to the right of either party. Had it been demanded and refused, that circumstance might have altered the law of the case."

SECTION II.

OF ABANDONMENT OF THE SHIP.

If the insurance be on a ship, and it is wrecked, and becomes "a mere congeries of planks," it is still usual to abandon, although it is said not to be necessary to do so.1 So, if a ship be not heard from for a sufficiently long time, the presumption of an actual total loss will arise, and there may be a claim as for a total loss, without abandonment.2 But here too, the insurers, by payment of a total loss, would be entitled to her, or any part of her, which should afterwards be recovered.3

The property insured may have passed from the persons insured, by a sale which was justifiable, because rendered necessary by a peril insured against. Then there need, perhaps, be no abandonment, but the claim may be for a total loss. The cases on this question are numerous and irreconcilable, as our note will show. But we think the better rule to be, that if the

1 Cambridge v. Anderton, 2 B. & C. 691, per Abbott, C. J.

2 Gordon v. Bowne, 2 Johns. 150. This point was raised but not decided, in Camberling v. M'Call, 2 Yeates, 281, 2 Dall. 280. See also, cases cited ante, p. 223, n. 1, in many of which, it seems to have been assumed, that no abandonment was necessary in such a case.

8 Houstman v. Thornton, Holt, N. P. 242, per Gibbs, C. J.

* It is obvious, that if the circumstances are such that a total loss can be recovered without an abandonment, such a sale of the salvage would not affect the rights of the assured. The proceeds, if retained by the assured, must be deducted from the amount of the total loss. See the following note. The precise question, then, is, whether a sale will, in any case, take the place of an abandonment, or under any circumstances, give a claim for a total loss, when there would not have been one without the sale.

In England, the question came up in Allwood v. Henckell, Park, Ins. 239; Martin v. Crokatt, 14 East, 465; Bell v. Nixon, Holt, N. P. 423; Cambridge v. Anderton, 2 B. & C. 691, Ryan & M. 60, 4 D. & R. 203, 1 C. & P. 213; Doyle v. Dallas, 1 Moody & R. 48; Gardner v. Salvador, 1 Moody & R. 116; Roux v. Salvador, 1 Bing. N. C. 526, 3 Bing. N. C. 266.

In Allwood v. Henckell [1795], the vessel was captured and recaptured, and sold under a decree of the Vice-Admiralty Court of Antigua, to pay one eighth salvage. There was no abandonment, but a total loss was claimed. Lord Kenyon was in doubt, but was inclined to think, "that an abandonment was necessary, and that the case was

sale be justified by a sufficient necessity, and is free from objection as to the manner of it, it passes the property completely ·

the same, as if the property had remained in specie at Antigua, and had not been sold." The verdict was for an average loss. See Hodgson v. Blackiston, Park, Ins. 240, note. In most of the cases which followed this, the effect of a sale was not much considered, but the courts appeared to assume that it did not affect the nature of the claim. In Martin v. Crokatt [1811], there had been a sale, but Lord Ellenborough said: "When the thing exists in specie, as it did here, I cannot say, but that an abandonment is necessary." In Gardner v. Salvador [1831], Bayley, J., said: "The question in this case is, whether you are satisfied that there has been a total loss by perils of the sea. I know of no such head of insurance law, as loss by sale." In Cambridge v. Anderton [1824], the vessel "got upon rocks in the river St. Lawrence, in foggy and tempestuous weather. She was there much injured, and surveyed by experienced persons, who gave it as their opinion, that the expense of getting her off the place where she was lying (if that could be accomplished), and repairing her, would far exceed the value of her when repaired; under these circumstances, the captain and the agents for the plaintiff, sold the ship, with her certificate of registry. The purchaser did succeed in getting her off the rock, took her back to Quebec, and repaired her." 2 B. & C. 691. The assured recovered a total loss, although there was no notice of abandonment. The decision was questioned by Tindal, C. J., in Roux v. Salvador, 1 Bing. N. C. 488, and the broad rule laid down, "that whenever the assured claims for a total loss, there being any thing saved, he must first relinquish to the underwriter all his interest in what remains." But the case of Roux v. Salvador was carried to the Exchequer Chamber, and the decision of the court below was overruled, and Cambridge v. Anderton was sustained. Lord Abinger, C. B., referring to that case, said, “it 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 bonâ fide sold in that state, for a sum of money, the assured may recover a total loss without any abandonment." This is the extent to which the English decisions have gone in determining the effect of the sale of a ship.

It does not appear, that if a ship were sold, on the ground that the expense of repairs would exceed her value when repaired, and on that ground alone, a total loss could be recovered without an abandonment. See Fleming v. Smith, 1 H. L. Cas. 513.

Substantially the same principle seems to have been adopted, where the cargo has been necessarily sold at an intermediate port.

In Roux v. Salvador, 3 Bing. N. C. 266, the cargo of hides, on a voyage from Valparaiso to Bourdeaux, were necessarily unloaded at Rio Janeiro, where the vessel was obliged to put in for repairs. They were found to be in such a state of progressive putrefaction, that, if it had been attempted to carry them to Bourdeaux, they would have lost their character of hides before their arrival. They were sold as hides, and brought the sum of 273/., the valuation in the policy being 1,1177. No notice of abandonment was given. In the Court of Common Pleas, it was held that it was not a total loss, on the ground above stated. But in the Exchequer Chamber, the decision of the Court of Common Pleas was overruled, and it was held to be an actual total loss. In that case, no expense would have caused the hides to arrive in specie, "they never could have arrived in the form of hides." A distinction was taken between the case in which "it is wholly out of the power of the assured, or of the underwriter," to

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