transfer to the insurers; and if they accept-expressly or by implication - this makes the transfer irrevocable.1 The insurers may waive their right; they may consent to the revocation of the abandonment; and this also, they may do expressly or by implication. In like manner, the insured acquires by his abandonment certain rights of which he cannot be divested against his will; but he may waive these also, and either expressly or by implication of law.

If a sale is made by a Court of Admiralty having jurisdiction over the subject, it seems that the mere fact that the master purchased the vessel, would not affect the right of the assured to claim as for a total loss. But if the sale is made by the master

be released by the court, but required to give bonds to abide an appeal by the captors. But in Smith v. Delaware Ins. Co., 3 Wash. C. C. 127, it was held that if an abandonment is delayed to take the chance of an acquittal, and to speculate upon the high market for the goods, the delay is fatal. See also, Calbreath v. Gracy, 1 Wash. C. C. 219.

We are very much inclined to doubt the rule that the mere continuance of a peril, or the aggravated result of the peril should give the assured the subsequent right of abandonment. It is true that on the occurrence of a peril the assured need not abandon, but may exercise that right if another independent peril occur, but we should be inclined to limit it to this, and to deny him the right when the final loss was a consequence of the peril, more especially when there was a probability of its taking place. 1 See ante, p. 399.

2 One of the earliest cases on this subject is Welman v. Gray, Sup. Jud. Court, Mass., Nov. T. 1799, 2 Dane, Ab. ch. 40, art. 7, § 14. The vessel was captured by a priva teer, condemned and sold at public auction, and was bought by Welman, who was the owner and master. Mr. Dane says: "There was no doubt but that the property was changed; but it was urged by the defendant, that the master abroad is agent for the owners or underwriters, as the case may be, and that if he buy the vessel after condemnation, she shall be considered as recovered; and only an average loss paid. The court held, that Welman purchased for himself; and if a recovery, there was no change of property; had the owner confirmed the master's purchase, it had only been a partial loss." Although the final language of the above expression is ambiguous, yet we think the case decides that where the master and owner are the same person, and the master buys the vessel at a sale under a decree of the Court of Admiralty, this is considered as a purchase by him as owner, and the underwriters are only liable as for a partial loss.

In Storer v. Gray, 2 Mass. 565, the vessel was captured and recaptured, and sold by the Court of Admiralty to pay salvage. The vessel was bought by the master and by him delivered over to the former owners. They did not abandon, but offered to credit the defendants with the proceeds of the sale. The court held the loss to be total, on the ground, as stated by Sewall, J., in Oliver v. Newburyport Marine Ins. Co., 3 Mass. 37, 53, that the decree changed the property, that the master might purchase for himself, and make a present of the vessel or sell it to the assured, and that they then took it by a new title. So, in Sawyer v. Maine F. & M. Ins. Co., 12 Mass. 291, it was

himself, or by the decree of any tribunal which has no authority to order a sale,2 or even by the Court of Admiralty, if at the instigation of the master, and the master purchases the vessel for the benefit of the owners and they afterwards exercise any act of ownership over it, the abandonment will be considered as waived.1

held, that where a master in such a case, bought a vessel on his own account without any previous authority or posterior assent on the part of the owners, they were entitled to recover for a total loss. In Maryland Ins. Co. v. Bathurst, 5 Gill & J. 159, 231, it was held, that where a vessel is condemned, the assured is divested of all property in her, and may purchase her, and hold her as purchaser against all the world, except the underwriters, and the latter must elect within a reasonable time, whether to accept or not. If they decline to accept the abandonment, this is considered as a waiver of their right to object to the validity of the sale. But in some cases, no distinction is taken between a sale by a decree of a Court of Admiralty, and a sale by the master, and in either case, it has been held that the owner, if he afterwards received the property and exercised acts of ownership over it, waived his right to recover for a total loss. Saidler v. Church, cited 1 Caines, 297, note; Queen v. Union Ins. Co., 2 Wash. C. C. 331.

1 In Story v. Strettell, 1 Dall. 10, the vessel was sold by an agreement between the captain and persons who had recaptured the vessel. The captain bought her for the owners, who afterwards acquiesced in the sale, and the loss was held to be but partial.

2 M'Masters v. Shoolbred, 1 Esp. 237; Wilson v. Forster, 6 Taunt. 25.

8 Oliver v. Newburyport Marine Ins. Co., 3 Mass. 37; Abbott v. Broome, 1 Caines,

292.

4 Thus, if the owners fit out the vessel and send her on a new voyage, their right of abandonment is gone. Saidler v. Church, cited 1 Caines, 297, note. In Abbott v. Broome, 1 Caines, 292, the supercargo, who was also the part-owner, became the purchaser of the vessel on account of the owners at a port of distress, and took the vessel to her home port where she was sold by the plaintiff without the consent of the underwriter. Held, that the plaintiff under the circumstances of the case, had abandoned the vessel while the loss continued total, and that the act of sale was not a waiver of the abandonment, because as the underwriter refused to accept the abandonment, the plaintiff was justified, having possession of the vessel, to sell her on account of whom it might concern. So held also, in Walden v. Phoenix Ins. Co., 5 Johns. 310; Livingston v. Hastie, 3 Johns. Cas. 293. But it has been held in England, that if the master buys the vessel on account of the owners, they cannot refuse to accept it and thus make the loss total. Wilson v. Forster, 6 Taunt. 25, 1 Marsh. 425. And in New York, the court decided that if the owner sold as trustee of the underwriter, he could not buy the vessel himself. Ogden v. New York Fire Ins. Co., 10 Johns. 177, 12 Johns. 25.

And, generally, if the owner of the vessel or cargo buys it at a sale made by the master, he cannot claim a total loss. Robertson v. Western Marine & F. Ins. Co., 19 La. 227. In this case the court observed: "This rule is said to be founded in sound policy, to prevent fraudulent speculations upon a loss, at the expense of the insurer. It rests also, on the broad and well-known principle, that a trustee cannot

A sale, even by the owner himself, if justified by the circumstances, and having no purpose in view but that of saving the remaining property, as salvage for the insurers, from utter destruction, would not take from him any rights acquired by abandonment; and although he acted and gave title to the ship in his own name, it would be supposed that he acted as the agent of the insurers. It would be necessary, however, in order to make such a transaction correct and compatible with a valid abandonment, that the owner and insured should either have consulted the insurers and obtained their directions, or else be in a situation where he could not consult them, and could save their property by no other means than by an immediate sale. But it has been held that if, after an abandonment, the vessel is sold by the agents of the underwriters at a public sale, the former owner may become a purchaser without waiving his abandonment. Generally speaking, if an owner of a ship after abandonment, still keeps his ship in his hands, and repairs the injury, it will be regarded as a virtual waiver of his abandoument.3

If insurance is effected in the name of A, for the benefit of whom it may concern, although perhaps A may have the right

become the purchaser of the estate of his cestui que trust. After an abandonment the insured becomes the agent of the insurers, and standing in that relation he cannot purchase, except with the consent of his principals. If he does, and the purchase is not sanctioned by the insurers, the abandonment is waived and annulled." See also, Vaughan v. Western Marine & F. Ins. Co., 19 La. 54.

In considering, whether the assured has a right to refuse to accept the vessel when bought by the master, the question as to the time when the abandonment was made may be important. If it is made while the loss continues total, it relates back to the time of the disaster, and the master is then the agent of the underwriters, and acts for them, so that the assured in such a case may well refuse to receive back the vessel when it is bought by the master. But if the assured, at the time of the sale, continued to be owner, it may be, that a purchase by the master, would be for his benefit. See Chamberlain v. Harrod, 5 Greenl. 420; Chesapeake Ins. Co. v. Stark, 6 Cranch, 268; Columbian Ins. Co. v. Ashby, 4 Pet. 139.

1 See cases cited in the preceding note, also Brown v. Smith, 1 Dow, P. C. 349; Catlett v. Pacific Ins. Co., 1 Wend. 561, 1 Paine, C. C. 594. This principle would prevent the prosecution of a voyage after an abandonment from being necessarily considered as a waiver of the abandonment. Parker v. Towers, 2 Browne, App. 80.

2 King v. Middletown Ins. Co., 1 Conn. 184. But if the insured, acting as such agent, sells the vessel, he waives his abandonment by acting as purchaser. Ogden v. New York Fire Ins. Co., 10 Johns. 177, 12 Johns. 25.

3 See ante, p. 361, n. 1.

to abandon, and may be treated as the agent of the insured, yet they may disavow his acts. So, if a mortgagee is insured under such general terms, and the mortgagor, the nominal insured, abandons, and the mortgagee takes possession and sells the vessel, this is a repudiation of the abandonment.1

SECTION IX.

OF THE EFFECT OF AN ABANDONMENT.

It is a universal rule, that all rights, claims, and interests, which are indissolubly connected with the property insured, pass to the insurers by an abandonment of the property,2 so far as the same belonged to the assured and to the extent of the interest covered by the policy. As a right to contribution for general average; all claims for negligence or any misconduct causing

1 Marine Dock & Mutual Ins. Co. v. Goodman, Chancery Ct., Mobile, Ala. 4 Am. Law Register, 481.

2 The owners of the vessel, therefore, after they have abandoned her, have no right of action against a person claiming to hold the vessel as vendee, under a sale by the master. Hooper v. Whitney, 19 La. 267.

3 In Rice v. Cobb, 9 Cush. 302, the owner of a vessel mortgaged one half of her to one person, and subsequently mortgaged the whole to another person subject to the lien of the first. The last mortgagee insured his interest, and on a loss taking place, abandoned the vessel to the insurers. It was held, that only the interest of the insured passed, and that the first mortgagee was entitled to one half the salvage. See also, Phillips v. St. Louis Perpet. Ins. Co., 11 La. Ann. 459.

In Merchants' & Manufacturers' Ins. Co. v. Duffield, 2 Handy, 122, 4 Am. Law Register, 662; and in Cincinnati Ins. Co. v. Duffield, 6 Ohio State, 200, three fourths of a steamboat were insured. She was afterwards sunk and abandoned. The underwriters raised the vessel and realized from the wreck, after deducting expenses, the sum of three thousand dollars. The policy contained this clause: "In all cases of abandonment, the assured shall assign, transfer, and set over to said insurance company all their interest in and to the said steamboat, and every part thereof, free of all claims and charges whatever." It was held, that the abandonment transferred only the interest of the assured, so far as it was covered by the policy, and that the insured were entitled to recover one fourth part of the proceeds of the wreck. But see Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 541, 544.

Sturgess v. Cary, 2 Curtis, C. C. 59; Walker v. United States Ins. Co., 11 S. &

injury to the property, as for collision,1 or for injury to goods; 2 or for any indemnity from a foreign government. And the same rule applies where the government of the country to which the parties belong, grants letters of reprisal to obtain satisfaction from a foreign government for illegal captures, the underwriters who have paid for losses occasioned by such captures, are entitled to the benefit of the fund accruing from the reprisal. But if the underwriters refuse to accept the abandonment and the loss is settled by a compromise, the right of claiming indemnity does not pass.5 So, if no abandonment is made, but the loss is settled as a partial loss, the underwriters have no claim on the insured for any subsequent benefit derived from the adventure.6 So, too, we should say, on the prevailing authorities and what seems to us the reason of the case, that a mortgagee must transfer to the insurers by abandonment, so much of the debt due to

1 See Yates v. Whyte, 4 Bing. N. C. 272, where it was held, that the party in fault was liable for all the damage done, and could not deduct the sum which the injured party had received from the underwriters. This case proceeded on the ground, that the plaintiff would be considered as the trustee of the underwriters, although he brought the action in his own name, and on his own behalf.

2 Atlantic Ins. Co. v. Storrow, 5 Paige, 285. The case of Church v. Shelton, 2 Curtis, C. C. 271, was brought by an insurance company in the name of the shipper, though this fact does not appear in the report of the case. And in Garrison v. Memphis Ins. Co., 19 How. 312, the underwriters who had paid for a loss by fire, were held to be subrogated to the rights of the insured to recover from the carriers, in whose possession the goods were burned.

In Mellon v. Bucks, 17 Mart. La. 371, the action was brought by the shipper of goods against the owners of the vessel, and the insurance company, in which the vessel and freight and the plaintiff's goods were insured, was summoned as trustee. The plaintiff had abandoned the goods, but the abandonment was not accepted, and the insurers had not exercised any acts of ownership over the goods. It was held, that by the abandonment the title to the property passed to the underwriters, and that the plaintiff could not maintain this action, as it could not be considered a suit for the benefit of the underwriters, since the plaintiff sought by summoning them as trustees, to take the money out of their hands.

* Comegys v. Vasse, 1 Pet. 193'; Russel v. Union Ins. Co., 4 Dall. 421, per Washington, J.; Gracie v. New York Ins. Co., 8 Johns. 237. And in Rogers v. Hosack, 18 Wend. 319, it was held, that the spes recuperandi passed by the abandonment, although the loss had not been actually paid by the underwriters.

* Randal v. Cockran, 1 Ves. Sen. 98.

$ Brooks v. Mac Donnell, 1 Younge & C., Exch. 500; New York Ins. Co. v. Roulet, 24 Wend. 505.

• Tunno v. Edwards, 12 East, 488; Goldsmid v. Gillies, 4 Taunt. 803.