have been carried on, so as to arrive in specie. But these cases were decided on the ground that the goods existed in specie; and there are also other cases, which are not only inconsistent with the English rule, but also with that laid down in many American cases.1

But the doctrine, that if the goods exist in specie at the intermediate port there is no total loss, is not founded on principle; for the insurers guarantee that the goods shall arrive at the port of final destination in specie, and if, therefore, owing to the perils insured against, they cannot be carried forward so as to arrive in specie, the underwriters should be liable, notwithstanding the goods exist in specie at the intermediate port.2 And if the

1 Thus, in Maggrath v. Church, 1 Caines, 196, the cargo, consisting of corn, was found at an intermediate port to be entirely unmerchantable, and unfit to be reshipped, yet the loss was held not to be total. In Depeyster v. Sun Mutual Ins. Co., 17 Barb. 306, the vessel put into an intermediate port, with a cargo of hides in a putrefying condition. It being thought impossible to carry the hides to the port of destination, they were sold; and it was held, that as they existed in specie, the loss was not total. See also, Neilson v. Col. Ins. Co., 3 Caines, 108; Saltus v. Ocean Ins. Co., 14 Johns. 138. In Bryan v. New York Ins. Co., 25 Wend. 617, 1,970 barrels of corn were insured on a voyage from Windsor, N. C., to New York. The vessel was wrecked on Beacon Island Shoals. The chance of recovering the corn was sold to different persons in lots, at a trifling sum per barrel. The risk and expense were so great, that some preferred to lose the money they had already spent, rather than to endeavor to recover any of the corn. Only twenty-seven barrels were saved. This was held to be a total loss, and Mr. Justice Nelson said: "It was in fact total, as much so, as if the cargo had gone to the bottom of the sea; upon every reasonable calculation, the amount saved was by mere accident and chance."

2 It was held, in Aranzamendi v. Louisiana Ins. Co., 2 La. 432, that if a damaged cargo is sold at an intermediate port, this is not a total loss, unless the goods were in such a condition that they could not have been carried on. What may, perhaps, be considered the true doctrine, was laid down in Williams v. Kennebec Mutual Ins. Co., 31 Maine, 455. It was held, that if the article was in such a condition at the intermediate port, that by the exercise of reasonable diligence and care, it could be carried to the port of final destination, so as to reach there in specie, although it might be worthless, the loss would be but partial, but otherwise, if it would not arrive in specie. In Poole v. Protection Ins. Co., 14 Conn. 47, insurance was effected on 280 hides, from Mobile to New York. The vessel was wrecked near Nassau, and the hides were under water for more than a week. They were then recovered, taken to Nassau, and sold by the salvors. They were never in the possession of the assured or their agents. The court held that the loss was total. The case was probably correctly decided on all its facts, but there are many dicta in it, which do not seem to us to be correct.

In Robinson v. Commonwealth Ins. Co., 3 Sumner, 220, the vessel was wrecked at an intermediate port; the cargo consisted of potatoes, which were nearly all rotten, or so much injured as to be of little value. There was but one vessel in port, capable of taking on the cargo, and that vessel had a cargo on board, and was bound on another

goods are in such a condition at the intermediate port, that they cannot be carried forward consistently with the health of the crew and the safety of the vessel, the loss is considered as total.1

voyage. Story, J., held that it was an insurance on the cargo for the voyage; and if, by reason of the perils insured against, the cargo was permanently prevented from arriving at the port of destination, that constituted a total loss, for which the insured was entitled to recover upon a policy like the present. And it was held, that in determining whether there was a loss at the intermediate port, the jury should find: "1. Whether the vessel could have been repaired at all, or at a cost not exceeding half her value, after the repairs were made in a reasonable time to carry on the cargo to the port of destination. 2. Whether, if she could be repaired for less than the half value, she could have been repaired before the cargo would have been so deteriorated, as to have lost all value, or to have been totally destroyed. 3. Whether, if the vessel were not so repairable, another vessel could have been procured to carry on the cargo to the port of destination, in its then damaged state."

The case of Hugg v. Augusta Ins. & Banking Co., 7 How. 595, is an important one on this subject. The insurance was on the freight of the vessel at and from Baltimore to Rio Janeiro, and back to Havana and Matanzas. The policy contained the usual memorandum clause. About four hundred tons of jerked beef were shipped to be delivered at Matanzas. The vessel was obliged to put into Nassau, where the cargo was found to be so much damaged, that the board of health refused to allow but about one hundred and fifty tons to be landed. This portion was wet and heated, and not in a fit condition to be shipped. The vessel could not have been repaired, except at an expense exceeding half her value, so as to have carried the cargo to the port of destination, and there was no vessel in port which could have been procured to take it on. This fact is so stated in the statement of the case on page 596, but Mr. Justice Nelson, in delivering the opinion of the court, says on page 605, that the point certified to the court assumes, that the ship was capable of carrying on the cargo, and that the only question was, whether the cargo was so much damaged as to have dispensed with that duty. It was held, that if the repairing of the vessel or the procurement of another, would necessarily have produced such a retardation of the voyage as would in all probability, have occasioned a destruction of the article in specie, before it could have arrived at the port of destination, or if, from its damaged condition, it could not have been reshipped in time consistently with the health of the crew or safety of the vessel, or if it would not have been in a fit condition from pestilential effluvia, or otherwise, to have been carried on, it then was the duty of the master to sell the goods for the benefit of whom it might concern. It was also held, that unless another vessel could have been procured at an expense not exceeding the amount of the freight to be earned by completing the voyage, the underwriter on freight would have had no right to insist upon this duty of the master.

In Tudor v. New England Mutual Ins. Co., 16 Law Reporter, 464, insurance was effected on a cargo of ice, a memorandum article. The vessel put into an intermediate port, and it was found that it would be necessary to unpack the ice, in order to repair the vessel, and that it was so much melted, that the whole of it would be gone before the vessel could be repaired, so that it could be reshipped. Held, that there was a total loss of the ice.

1 Hugg v. Augusta Ins. & Banking Co., 7 How. 595; Williams v. Kennebec Mutual Ins. Co., 31 Maine, 455; Poole v. Protection Ins. Co., 14 Conn. 47.

From the examination of the authorities which we have made in our notes, it is apparent that no case in this country distinctly decides the question, whether, in case the goods are in such a condition at the intermediate port, that the cost of unloading them, drying them if necessary, and the increased freight for sending them on, would exceed the value on arrival, the loss is total. The expenses may be separated into two classes.

First, those incident to the delay at the intermediate port, such as the unloading and reloading of the goods and all the expenses incurred to render them fit for reshipment.

Second, the increased freight, if any.

And, admitting that all these are properly chargeable to the underwriters on the memorandum articles, the question still remains, whether the insured is entitled to abandon the goods and recover for a total loss, if the goods would arrive in specie, though of no value, if these expenses should be incurred.

SECTION IV.

OF ABANDONMENT OF FREIGHT, PROFITS, AND COMMISSIONS.

There is a total loss of freight, when the ship and cargo are totally lost, or the vessel becomes wholly innavigable; 2 or is subjected to a detention of such a character as to break up the voyage. It is said in some cases, that if the loss of the ship be

1 In Idle v. Royal Exch. Ass. Co., 8 Taunt. 755, the vessel was beating on the rocks and was in imminent danger of going to pieces. The master sold her, with the cargo, as she lay. At the time of the sale, the cargo could not have been got out. The sale was held to be valid and the loss of freight total, although the ship was afterwards got off and repaired and took on a cargo.

2 See Mount v. Harrison, 4 Bing. 388.

3 Callender v. Ins. Co. of North America, 5 Binn. 525. In this case, the vessel was so much damaged, that it would have cost more than she would have been worth when repaired, to have repaired her. The cargo could not have been sent on, except at an exorbitant rate of freight, and that in a vessel not large enough to take more than half the cargo. It was admitted that the freight was totally lost, and the only question was, whether the defendants were entitled by the abandonment to a pro rata freight. The court held, that as the acceptance of the goods had not been voluntary, no freight was due.

only constructively total, that is, made so by abandonment, the owner may abandon also the freight, and claim as for a total loss of that.1 But if, although the ship itself be wrecked or otherwise lost, the master can transship and forward the goods by reasonable endeavors and at reasonable cost, we have seen that it is his duty to do so; and if he neglects this duty, the insurer is chargeable only in the same way and to the same extent as if the duty had been performed, and the loss will be partial or total, according to its amount when so adjusted. The master has a right to send forward the goods if he can; and if he offers to do so, the shipper must either pay him full freight, — in which case there is no loss, or let him send the goods forward, and on their arrival pay him freight.2 Though it has been held, that if

1 Ogden v. General Mutual Ins. Co., 2 Duer, 204; M'Gaw v. Ocean Ins. Co., 23 Pick. 405.

2 In Bradhurst v. Col. Ins. Co., 9 Johns. 17, the vessel was lost at an intermediate port, but the goods remained and were seized by government. The underwriters were exempt from loss by seizure in port. It was held, that if the goods could have been sent on but for the seizure, the defendants were not liable. Kent, C. J., said: "The point is, whether it be a good defence, in any case to an action on a policy on freight, that the ship-owner refused, or neglected, to forward the goods by another vessel, when he had it in his power. We have not met with any decided case on this point; but it appears to be reasonable, and consistent with the principles of the contract, that the insurers should, in such case, be discharged. The contract is, for the insurance of the freight of the cargo on board the ship Dean, from New York to Bremen. It is not of the essence of the contract, that the cargo should, in every event, be conveyed in the ship mentioned, because the party is allowed to change the ship from necessity. The delivery of the cargo is the cause of earning freight. The ship, on board of which the goods are laden, is the vehicle of conveyance agreed on, but it is only one of the means, and not, in all cases, the indispensable means, to attain the object. It is well understood and settled, that when the vessel is disabled in the course of the voyage, and the cargo remains, the captain is authorized to forward it by another vessel, and thereby to earn the freight. . . . . If other means to forward the cargo can be procured, it depends entirely upon the captain's volition, whether he earns freight or not; and if it be lost by that volition, it ought not to be at the expense of the insurer, who only undertakes to answer for the loss of freight arising from vis major, and not from the act, unless it be the barratrous act of the party. If the disabled ship be easily repairable, the ship-owner is bound to do it, and he cannot in that case, resort to the insurer for his freight. If it be equally in his power to procure another vessel, and he does not, there is the same reason that he should be precluded from placing the consequences of that neglect upon the insurer."

And the language of the court in Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 609, is no less explicit. The vessel put into Nassau in distress. She was so much damaged that it would have cost more than half her value to have repaired her so that

the vessel is lost and the goods cannot be sent forward at an expense less than the original freight, there is a total loss of freight; yet, if the goods were sent on by the master, this would be on the original contract,2 and, therefore, the ship-owner having earned his freight, would not be entitled to claim it from

she could have brought home her cargo. The cargo was much damaged and was sold. The case came before the Supreme Court on a certificate of division from the Circuit Court. One of the questions certified, was as follows: "If the jury find that, from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers upon the cargo, that it should be so sold, and not transported to Matanzas, is the plaintiff entitled to recover for a total loss of freight, provided his own vessel could have been repaired within a reasonable time, so as to perform the voyage in safety, or he could have procured another vessel and have transmitted to the port of destination, in its deteriorated state, the portion sold at Nassau." After full and elaborate arguments of counsel, the court directed it to be certified, that "If the jury find that from the condition of that portion of the cargo sold at Nassau, it was for the interest of the insured and insurers of the cargo that it should have been sold, and not transported to Matanzas, still the plaintiffs are not entitled to recover as for a total loss of freight, provided their own vessel could have been repaired in a reasonable time, and at a reasonable expense, so as to perform the voyage, or they could have procured another at Nassau, the port of distress, and have transshipped the portion sold in specie to the port of destination." It seems to have been assumed, in the case of Field v. Citizens' Ins. Co., 11 Mo. 50, that the underwriter would be liable for a loss of freight, if the original vessel was so much damaged, that she could not take on the goods in a reasonable time, but as the insured after the accident obtained from the insurers the following written document it was held that they were not liable for any loss consequent on the accident: "The Citizens' Company will consider themselves bound by their policy of insurance on cargo and freight bill, by the transfer of the same to steamboats Merrimack and Osage Valley on the part of the owners of the steamboat Glaucus." 1 Willard v. Millers' & Manufacturers' Ins. Co., 24 Mo. 561.

2 This was so held, in the case of Shipton v. Thornton, 9 A. &. E. 314, which was a suit between the master of a vessel and the owner of goods. The vessel put into an intermediate port in distress and the master forwarded the goods to the port of destination at a less freight than that originally contracted for, and the court held, that this was done under the original contract, and the consignees were liable for the whole freight which they had agreed to pay, and not merely for that paid to the substituted ship. And in Rosetto v. Gurney, 11 C. B. 176, 7 Eng. L. & Eq. 461, where in a case of insurance upon goods, the question was discussed, whether the master should have sent forward the goods from the intermediate port, the court said: "If the voyage is completed in the original ship, it is completed upon the original contract, and no additional freight is incurred. If the master transships, because the original ship is damaged, without considering whether he is bound to transship or merely at liberty to do so, it is clear that he transships to earn his full freight, and so the delivery takes place upon the original contract." The fact also, that the change of ship through necessity does not discharge the underwriters on goods or freight from any loss which may occur subsequently to such change of ship, shows, we think, conclusively, that the transportation is made under the original contract. See cases ante, p. 330, n. 1, and Field v. Citizens' Ins. Co., 11 Mo. 50, cited ante, p. 386, n. 2.