Carey v. King, Cases in B. R.

wicke, 304.

In the case of Mitchell v. Edie, (1 Term Reports, 608.) Mr. Justice Ashhurst said, it seemed to him, that the meaning of this clause was, that till the assured have been informed of what has happened, and have had an opportunity of exercising their own judgment, no act done by the master shall prejudice their right of abandonment.

In order to entitle the insured to recover the expences of salvage, it is not necessary to state them in the declaration, as a special breach of the policy; because an insurance is against all accidents, and salvage is an immediate and necessary consequence of some of those stated in a policy.

Thus in an action on a policy of insurance, for insuring goods on the ship A., the plaintiff declared, that the ship temp. Hard- sprung a leak, and sunk in the river, whereby the goods were spoiled: the evidence was, that many of the goods were spoiled, but some were saved. The question was, Whether the plaintiff might give in evidence, the expences of salvage, that not being particularly stated in the declaration, as a breach of the policy?

Lord Hardwicke." I think they may give it in evidence, for the insurance is against all accidents. The accident laid in this declaration is, that the ship sunk in the river: it goes on and says, that by reason thereof the goods were spoiled. That is the only special damage laid; yet it is but the common case of a declaration that lays a special damage, where the plaintiff may give in evidence any damage that is within his cause of action. It was objected, that such a breach of the policy should be laid, that the insurer may have notice to defend it. Now it is so in this case, for they have laid the accident, which is sufficient notice, because it must of course follow that some damage did happen."

But although the insured may recover from the insurer the expences of salvage; yet he shall only be entitled to an in demnity, and shall not receive a double satisfaction for the same loss. Thus if the insurer should have paid to the in sured the expences arising from salvage; and afterwards, or

accoun

account of some particular circumstances, the loss should be repaired by some unexpected means, the insurer shall stand in the place of the insured, and receive the sum thus paid to atone for the loss.

It was so determined in a case before Lord Hardwicke in Chancery. The king having granted general letters of reprisal on the Spaniards for the benefit of his subjects, in consideration of the losses they sustained by unjust captures, the commissioners would not suffer the insurers to make claim to part of the prizes, but the owners only; although they were already satisfied for their loss by the insurers, who thereupon brought the present bill. The Lord Chancellor was of opinion, that the plaintiffs had the plainest equity that could be. The person originally sustaining the loss was the owner; but after satisfaction made to him, the insurer becomes the owner. No doubt, but from that time, as to the goods themselves, if restored in specie, or compensation made for them, the insured stands as a trustee for the insurer, in proportion for what he paid; although the commissioners did right in avoiding being entangled in accounts, and in adjusting the proportion between them. Their commission was limited in time; they see who was owner; nor was it material to them, to whom he assigned his interest, as it was in effect after satisfaction. made.

Cases, however, may, and do frequently arise, where the salvage is so high, the other expences are so great, and the object of the voyage is so far defeated, that the insured is allowed by the laws of all trading nations to abandon his interest in the property saved to the insurer, and to call upon him to contribute as if a total loss had actually happened. What circumstances shall be deemed sufficient to justify the assured in making such an abandonment, will be the subject of the following chapter.

Randall v.
Cockran,

I Ves. 98.

Chap. 4. P. 108.

Pothier's

Traité du

Contrat d'Assur

ance, 133. Vide c. 6. P. 159.

CHAPTER IX.

Of Abandonment.

We have formerly seen, that the insured, before he can

demand a recompense from the underwriter for a total loss, must cede or abandon to him his right to all the property that may chance to be recovered from shipwreck, capture, or any other peril, stated in the policy. It has also been observed, and from the preceding sentence it is obvious, that when we speak of a total loss, with respect to insurances, we do not always mean, that the thing insured is absolutely lost and destroyed: but that, by some of the usual perils, it is become of so little value, as to entitle the insured to call upon the underwriter to accept of what is saved, and to pay the full amount of his insurance, as if a total loss had actually happened. Indeed, the word abandonment conveys the idea, See Randall that the whole property is not lost; for it is impossible to cede or abandon that which does not exist. (a) When the underwriter has discharged his insurance, and the abandonment is made, he stands in the place of the insured, and is entitled to all the advantages resulting from that situation.

v. Cockran, I Ves. 98. ante, c. 8. P. 227.

(a) And therefore the general convenience of making an abandonment has led to an opinion that it is more necessary than it really is. A party is not in any case obliged to abandon : neither will the want of an abandonment oust him of his claim for that which is, in fact, either an average or total loss, as the case may be. Where there is an abandonment, the risk is thrown on the underwriters; where there is no abandonment, the party takes the chance of recovering according to his actual loss. Without an abandonment, an average loss may be recovered: abandonment is only necessary to make a constructive total loss: but if a loss is actu ally total, no abandonment can be necessary. By Lord Ellenborough, in Mellish v. Andrews, 15 East, 13. and Mullett v. Sheddon, 13 East, 304. But, said His Lordship, upon another occasion, and quite consistently, (Tunno v. Edwards, 12 East, 491.) it is a clear, established, and familiar rule of insurance-law, that where the thing subsists in specie, and there is a chance of its recovery, there must be an abandonment.

From

Bilboa, Mid

From what has been said, then, it appears that abandonment dates its origin from the period at which the contract of insurance was itself introduced; because insurance being a contract of indemnity, the insured can recover no more than the amount of the loss actually sustained: but if he were allowed to recover for a total loss, and might also retain the property saved, he would be a considerable gainer, which the law will not allow. Accordingly we find, that the doctrine of France. abandonment has obtained a place in the laws of all the mari- Rotterdam, time nations in the world, where insurance has been known: dleburgh. and in all those laws the definition of it is the same, namely, that when any goods or ships that are insured, happen to be lost, taken, or spoiled, the insured is obliged to abandon such goods or ships for the benefit of the insurers, before he can demand any satisfaction from them. In this respect, also, they Pothier, seem to be agreed, that when an abandonment is made, it must be a total, not a partial one; that is, one part of the property insured shall not be retained, and the other part abandoned; a regulation certainly founded in justice.

s. 128. Ord,

of Lew. 14.

art. 47.

Ord. of Bilboa, 32.

The propriety and justice of abandoning in certain cases to the insurers being apparent, it will be proper to consider in what cases, and under what circumstances, the insured is entitled to exercise this power: for though in all cases the insured has a right to say, he will not abandon; yet he cannot 2 Burr. 697. at his pleasure harass the insurer, by saying he will abandon, and thereby turn that, which, in its own nature, was only a partial, into a total loss.

In questions of this nature, the opinion of learned foreigners must always have weight: because they are not questions of positive regulation, or municipal law: but of general and extensive import: not confined to any particular state, but founded on the great principles of reason, justice, and universal law. The learned Roccus, who has accurately examined Roccus, the works of those writers that went before him, and who, after No. 5o. stating their various opinions, forms his own conclusions, has not been silent upon this occasion. He puts this question: "Assecurator, qui jam solvit æstimationem mercium deperdi"tarum, si postea dictæ merces appareant et recuperatæ sint, "an possit cogere dominum ad accipiendas illas, et ad red❝ dendam

9 3

Roccus,

No. 66.

Chap. 7.

S. I.

Ord. Lew. 14. Ord. of

Bilb. Ord.

of Rot.

& Magens.

"dendam sibi æstimationem quam debit?" He answers, "Distingue; aut merces, vel aliqua pars ipsarum appareant, "et restitui possint, ante solutionem æstimationis, et tunc te"netur dominus mercium illas recipere, et pro illâ parte "mercium apparentium liberabitur assecurator; nam qui "tenetur ad certam quantitatem respectu certæ speciei, dando "illam, liberatur; et etiam, quia contractus assecurationis est "conditionalis, scilicet, si merces deperdantur; non autem "dicuntur deperditæ, si postea reperiantur. Verum si merces "non appareant in illâ pristinâ bonitate, aliter sit æstimatio, 66 non in totum, sed prout tunc valent. Aut vero post solu"tam æstimationem ab assecuratore compareant merces, et "tunc est in electione mercium assecurati vel recipere merces, ❝vel retinere pretium."

And although a subsequent passage in the same author may seem to contradict that just cited; yet when attended to, they are both perfectly consistent. He says, "sufficit semel "extitisse conditionem ad beneficium assecurati de amissione "navis, etiam quod postea sequeretur recuperatio; nam per "talem recuperationem non poterit præjudicari assecurato."

From this passage it may be inferred, that a total loss having once happened, it must always continue so. But it must be understood, with reference to the context, and other parts of the work, from which it appears, that in order to entitle the insured to recover as for a total loss, it must continue total, at the time when the offer of abandonment is made, at the time of the action brought, or at the time of the payment of the

money.

In a French treatise, called Le Guidon, it is said, that the insured may abandon to the underwriter, and call upon for a total loss, if the damage exceed half the value of the thing; or if the voyage be lost, or so interrupted, that the pursuit of it is not worth the freight.

The same idea, with respect to the circumstances which will justify an abandonment, seems to prevail in almost all the foreign ordinances.

But