If without abandonment a total loss is paid, this must proceed only on the ground that it was unnecessary, from the entire absence of salvage; and therefore if any salvage comes up afterwards, it would pass to the insurers as paid for by them. And if an abandonment is wanting in any formality, the insured

total loss, without the cause of the loss being stated, or any offer to abandon made, was held sufficient to entitle the assured to recover. This case is wholly unsupported by authority. Mr. Phillips, in his work on Insurance, § 1682, says: "A letter to the underwriters, containing a statement of the loss, and inclosing an account of the sale of the property, and claiming the balance of the amount insured, after giving credit for the salvage, was held to be a sufficient abandonment. Patapsco Ins. Co. v. Southgate, 5 Pet. 604. Mr. Justice Thompson, giving the opinion of the court said, that a letter making such a statement and claim, "leaves no doubt as to the intention and understanding of the parties." This brief statement of the case may, we apprehend, lead to an erroneous impression, not only of the point decided, but also of the meaning of the language of Mr. Justice Thompson, above cited. The plaintiffs stated in their letter that they forwarded thereby the protest and surveys of the vessel, and said they had heard before of the condemnation of the vessel, but did not know the cause till then, and also stated that they would forward by the next boat a statement of the loss, with the necessary vouchers. The receipt of this was acknowledged by the underwriters, who said that the further proofs of loss should receive immediate attention on arrival. When these were sent, together with a statement of the loss, the underwriters replied that they had resolved to take time to consider about the adjustment of the loss. The protest contained an abandonment by the master. Mr. Justice Thompson said: "This correspondence, independent of the protest, leaves no doubt as to the intention and understanding of the parties with respect to the abandonment. This would, however, be matter of inference only. But the protest is direct and explicit both in form and substance."

Lord Ellenborough in Parmeter v. Todhunter, 1 Camp. 541, held that a demand for a total loss did not amount to an abandonment, and the same was assumed to be the law in Watson v. Ins. Co. of N. A., 1 Binn. 47. See also, Martin v. Crokatt, 14 East, 465. In Murray v. Hatch, 6 Mass. 465, 478, Sewall, J., said: "If a loss had been proved in this case, total in its own nature and in the sense of the parties to this contract, limited as it is by the memorandum which has been considered, a statement of the salvage remaining is all that would be requisite in my opinion, to the claim of the assured to a total loss; that is to enable him to recover the sum insured, deducting the amount of salvage received by the assured or his agent. In this opinion, however, my brethren do not concur with me." The question was raised in Peirce v. Ocean Ins. Co., 18 Pick. 83, 93, but was not decided; Shaw, C. J., said: A question has been made whether a claim for a total loss does not necessarily imply an abandonment. It is difficult to answer a question thus nakedly presented. Upon principle, it would seem, that a mere claim for a total loss does not necessarily imply an abandonment, because in some cases a total loss may be recovered without abandonment. But commonly a claim for a total loss will be accompanied by a statement of facts and circumstances, by the reasons and grounds of claim upon which the assured proceeds, and such statements of the grounds of claim may perhaps carry as plain an implication of actual abandonment as could be done by express words."

66

may waive all objection; and they do this by calling for the proof and acting as if the abandonment were altogether sufficient.1

SECTION VI.

OF THE ACCEPTANCE OF ABANDONMENT.

This is never necessary to the full effect of an abandonment, because the rights of the insured do not depend on the acknowledgment or assent of the insurers. But if formally made, by those having authority, it binds the insurers, admits an abandonment and a valid claim for total loss, and supplies all

1 In M'Lellan v. Maine F. & M. Ins. Co., 12 Mass. 246, the underwriters were informed of the loss, and a demand was made for the whole sum insured, and sundry payments were afterwards made on account of this demand. It was held that "the jury were warranted to conclude either that there had been an offer to abandon, or that both parties considered the chance of recovery as altogether hopeless, and that an abandonment would therefore be an idle ceremony; and that the loss was thereupon adjusted, and the defendants agreed to pay the sum demanded. If such an agreement were made," said the court, "without any fraud or mistake, the defendants are bound by it; and cannot now object the want of evidence of a formal offer of abandonment." See also, M'Intire v. Bowne, 1 Johns. 229. In Calbreath v. Gracy, 1 Wash. C. C. 219, it was urged that the underwriters when they received notice of the loss, instead of offering to pay, called for the papers to prove the loss, and thus dispensed with the necessity of a formal offer to abandon. Mr. Justice Washington said: "It is a sufficient answer to say that on the 10th July (the day, notice was given), no demand of payment was made or offer to abandon. The underwriters were not bound to hasten the assured in making their election, nor offer to pay before it was demanded. The demand of payment never was made until December, nearly four months after the assured had received notice of the capture. Whether the demand then was equivalent to a more formal abandonment, I will not determine, but if it were, it was unreasonably delayed, and so as to defeat every chance of recovery, which the underwriters would have had, if the demand had been made on the 10th of July, or in a reasonable time afterwards."

2 In Beatty v. Marine Ins. Co., 2 Johns. 109, the act incorporating the company provided that "no money on losses, arising on any policy, should be paid without the approbation of at least four of the directors, with the president and his assistants, or a majority of them." It was held that an acceptance of an abandonment made by the president and his assistants without the concurrence of the four directors, was not binding on the company.

want of formality in the abandonment.1 And because the acceptance is not necessary to give the insured his rights, there is no obligation on the insurers either to accept, or to declare that they do not accept. If they say nothing and do nothing, the conclusion should be that they do not intend to accept, and then the insured is left to whatever rights and remedies he may have upon his contract.2 There is no especial form for an acceptance; whatever indicates sufficiently an intention to accept will have this effect; and it has been said, and on good grounds, that if the insurer refuses to accept, and expressly declares that he intends not to accept, but nevertheless does some act which can be understood or justified only as the exercise of a right which nothing but an acceptance could give, his act controls his words, and he will be held to have accepted the abandonment. On the other hand, if the assured does what might

1 In Smith v. Robertson, 2 Dow, 474, 482, the vessel was captured, abandoned, and the abandonment accepted. On the afternoon of the same day, news came that the vessel had been recaptured. The underwriters were held liable on the ground that 'they could not be allowed to say that the loss was not total, after they had admitted that it was, and acquiesced in the abandonment as for a total loss."

2 Mr. Justice Story in Peele v. Merchants' Ins. Co., 3 Mason, 27, 81, states the law as follows: "The underwriter is not bound to signify his acceptance within a reasonable time; nor can his silence, per se, be proof of his acceptance. If he says nothing and does nothing, the proper conclusion is, that he does not mean to accept. And this conclusion, so reasonable in ordinary cases, applies with still more force to corporations, because from their mode of doing business, deliberation of the board of directors is usually required; and silence in such a case is certainly less significant, than it might otherwise be presumed to be." See also, Badger v. Ocean Ins. Co., 23 Pick. 347. But in Hudson v. Harrison, 3 Brod. & B. 97, a case decided a year earlier, it was held that underwriters who intend to refuse an abandonment, must do so within a reasonable time, and their not having refused in this case till three months after the abandonment was made, was held to prove their acquiescence. We do not think that this would be regarded as law by the American courts. 1

3 Peele v. Merchants' Ins. Co., 3 Mason, 27, 81, per Story, J.; Badger v. Ocean Ins. Co., 23 Pick. 347, 355. We have before considered the effect which the act of the repairing the ship by the underwriters has upon their refusal to accept the abandonment, and merely refer to it here. See ante, p. 362, n. 1.

In Griswold v. New York Ins. Co., 1 Johns. 205, 3 Johns. 321, which was an action on a policy on freight, the vessel was damaged and put back to her port of departure, and the agent of the defendants, who were also the insurers of the ship, was on board and superintended and directed the unloading of the ship. It was claimed that this amounted to an acceptance of the abandonment, but the court held that the acts of the agent were only such as were requisite to the unloading and repairing of the ship, and

defeat and avoid his abandonment, the insurers may waive the effect of these acts, and they do so by continuing to treat the abandonment as originally invalid.1

As a demand for a total loss is not conclusive proof of abandonment, so neither is a payment of a total loss conclusive proof of abandonment and acceptance; but it would raise a strong presumption to that effect, and if made with a knowledge of all the circumstances, would doubtless bar the insurers from availing themselves of any want either of abandonment or acceptance. It has been held that a purchase of the ship by insurers, from those who bought at a sale by the master without necessity, was not equivalent to acceptance, and no admission of liability for a total loss.3

SECTION VII.

AT WHAT TIME THE ABANDONMENT MAY OR SHOULD BE MADE.

In general, the insured has the right of abandonment when the ship, for all the purposes of the voyage, is taken from the master's control by a peril insured against, and it is uncertain

were not referable to the subject of freight. Lord Kenyon, C. J., held in Thelluson v. Fletcher, 1 Esp. 73, that where a partial loss had taken place, and the insured wrote to the underwriters informing them of the particulars of the injury, and the answer was returned that they desired that the assured would do the best they could with the damaged property, this was not an acceptance of an abandonment if any were made.

1 Maryland Ins. Co. v. Bathurst, 5 Gill & J. 159.

2 In Tunno v. Edwards, 12 East, 488, the underwriter brought an action to recover back money paid under the following circumstances. The cargo insured was seized and confiscated by the Dutch government. Before the proofs of the loss arrived, the plaintiff agreed to pay the defendant £50 per cent. on account, which was accordingly done. The cargo was valued in the policy at £1,500. The Dutch government finally consented to restore half the proceeds of the cargo, which, after deducting all expenses, amounted to more than the sum at which it was valued, and this amount was paid over to the defendant. The court held that if the loss had been total, the underwriter could have maintained his action, the assured having received more than indemnity, but the loss not being total, there being no abandonment, the defendant was entitled to a verdict.

8 Badger v. Ocean Ins. Co., 23 Pick. 347.

when he can again have the control of the ship, in a condition to renew the voyage, or the cost of putting her in that condition is out of proportion to her value.1

While we may look only at the facts as they seemed then to be, when we inquire into an exercise of extraordinary power by the master, as in selling a ship, it is said to be the rule in respect to an abandonment, that it must be justified, not by seeming, but only by existing facts. If a vessel be captured and the owners upon receiving intelligence of this, abandon her, and, before the abandonment is made, she is restored to the captain in condition to prosecute the voyage, this makes the abandonment void, although neither the insurers nor insured had, or could have had any intelligence of this restoration.2 But this does not prevent the abandonment from being valid, if the circumstances existing at the time it is made, are such as would

1 In Peele v. Merchants' Ins. Co., 3 Mason, 27, 65, Mr. Justice Story said: "If there be any general principle, that pervades and governs the cases, it seems to be this, that the right to abandon exists, whenever from the circumstances of the case, the ship, for all the useful purposes of a ship for the voyage, is, for the present, gone from the control of the owner, and the time when she will be restored to him in a state to resume the voyage is uncertain, or unreasonably distant, or the risk and expense are disproportioned to the expected benefit and objects of the voyage." This language seems to be applicable to the case of capture, and perhaps to blockade and embargo, but not to the submersion or stranding of the vessel, unless the loss is in the highest degree probable. See post, p. 404, n. 2 and 3.

2 Church v. Bedient, 1 Caines, Cas. 21; Hallett v. Peyton, 1 Caines, Cas. 28; Penny v. New York Ins. Co., 3 Caines, 155; overruling Mumford v. Church, 1 Johns. Cas. 147; Slocum v. United Ins. Co., 1 id. 151; Murray v. United Ins. Co., 2 id. 263; Livingston e. Hastie, 3 id. 293. This point was raised but not decided, in Dorr v. New England Marine Ins. Co., 4 Mass. 221, Mr. Chief Justice Parsons observing, that in a case in the Circuit Court for the Massachusetts District, it was admitted by counsel to be the usage of merchants to be governed by the facts of which intelligence had been received, and the court considered the law to be in accordance with the usage. The law was so laid down in Scotland, Robertson v. Stewart, Bell, Comm. 520, but when the case came before the House of Lords, it was decided on another point. Smith v. Robertson, 2 Dow, 474. But in this country, although a doubt was formerly expressed by Mr. Justice Washington, in Beale v. Pettit, 1 Wash. C. C. 241, yet the law is now well settled, that the state of facts actually existing at the time of the abandonment determines the right of the assured. Marshall v. Delaware Ins. Co., 4 Cranch, 202, 2 Wash. C. C. 54; Alexander v. Baltimore Ins. Co., 4 Cranch, 370; Adams r. Delaware Ins. Co., 3 Binn. 287. In England, the point was presented in some cases, Bainbridge v. Neilson, 10 East, 329; Naylor v. Taylor, 9 B. & C. 718; Parsons v. Scott, 2 Taunt. 363; but under the English rule, stated infra, it was not necessary to decide it. Lord Ellenborough, however, in the first of these cases, at Nisi Prius, held that the insured was entitled to recover.