keep her afloat, remove her from the dry dock and hold her subject to the order of insurers and at their risk, but demanding payment of the amount of the policy. The making of these repairs was agreed to and were made, after which defendant tendered the steamer to plaintiff at the dock in Detroit, in her otherwise wrecked and damaged condition, without offer to pay the amount necessary to restore her to her former condition, which tender was refused and she was libeled and sold for the bill of the dock company.

The jury found that the steamer could have been gotten off in November or December, so as to be repaired for the next season's business, if defendant had used due diligence, and the abandonment to defendant by plaintiff of the vessel, and rendered a general verdict in its favor for the full amount of insurance covered by the policy.

Held, that the jury must have further found an acceptance, by the defendant, of the abandonment, in which case it was immaterial whether the total loss exceeded fifty per cent. of the value of the vessel or not. That an abandonment made under the circumstances of this case and accepted by the insurers, was sufficient to fix their liability as for a constructive total loss, even though the damage should afterwards be found to be less than the requisite amounts. That after abandonment and acceptance neither party can recede, the title passes to the insurer and a deed of abandonment is not essential to the rights of either party, and unless required by the policy the abandonment need not be in writing and no particular form of words is necessary.

Held, further, that the execution by plaintiff's president of the notice of abandonment, of December 13, 1883, operated as a discharge of his mortgage on the steamer, and upon defendant's acceptance of the abandonment, he was precluded from ever after asserting any interest in the property antagonistic to that conveyed by the abandonment and acceptance.

Held, further, upon a review of the facts that such acceptance was fully made out and justified the verdict of the jury.

Error to Wayne. (Jennison, J.) Argued November 18, 1885. Decided January 20, 1886.

Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinion.

Maynard & Swan, for appellant:

There being no actual total loss of the vessel, proof of an abandonment by the insured was an essential condition of recovery, even though the loss exceeded in amount the sum fixed by the policy: Kaltenbach v. Mackenzie, L. R. 3 C. P.

Div. 467, 471; Hubbell v. Great Western Ins. Co., 74 N. Y. 246, 260; Globe Ins. Co. v. Sherlock, 25 Ohio St. 60-5; and the exercise of this right is limited and must be measured by the policy under which plaintiff claims, which requires a written notice signed by assured and delivered to defendant or its authorized agents, and efficient, if accepted, to convey an unencumbered title to the vessel: Wallace v. T. & M. Ins. Co. 22 Fed. Rep. 70; Orrok v. Commonwealth Ins. Co. 21 Pick. 467, 470; and it must state the reason for abandonment: King v. Delaware Ins. Co. 2 Wash. 300, 307; Bullard v. Roger Williams Co. 1 Curtis, 148; McConochie v. Sun Ins. Co. 26 N. Y. 477 ; Hazard v. New England Ins. Co. 1 Sumner, 218; Peirce v. Ocean Ins. Co. 18 Pick. 83; while the letter and notice introduced in evidence might be admissible were the plaintiff a domestic corporation, and the subject matter of the abandonment controlled by our laws, it and defendant being British subjects, and the conveyance of the steamer subject to the laws of her flag, it was incumbent on plaintiff to make affirmative proof of same in support of its alleged conveyance: Chapman v. Colby, 47 Mich. 46; but to remove all doubt of the defectiveness of the letter of December 13, defendant made proof of the Merchants' Shipping Act, 17 and 18 Victoria Statutes, 445; the effect of which is to nullify said letter in law and equity, as a transfer of the steamer: Liverpool Borough Bank v. Turner, 2 Deg. F. & J. 502, 507: s. c. 1 John & Hem. 159; the position of plaintiff is analogous to that of a vendor asking specific performance of a contract, and it cannot ask defendant to accept a doubtful title: Powell v. Conant, 33 Mich. 299; and it must make a case showing to a moral certainty that defendant would receive such a title as it had contracted to take, as a condition precedent to payment of the whole loss: Hinckley v. Smith, 51 N. Y. 21; but independent of this provision of the policy the law is settled that in a policy on time or for a voyage, a merely temporary retardation of the voyage by any of the perils insured against, not amounting to or producing a total incapacity of the ship eventually to perform the voyage, does not constitute a technical total loss, which will authorize an abandonment; 2 Phillips on Ins. 249, 250; Bradlie v. Maryland Ins. Co., 12 Peters, 400.

The mortgage on the vessel, to the president of plaintiff, was sufficient to invalidate this notice: Hughes v. Tindall, 18 C. B. 98; Gordon v. Mass. F. & M. Ins. Co. 2 Pick. 249; Bidwell v. N. W. Ins. Co. 19 N. Y. 179; and defendant was under no moral or legal obligation to point out these

defects. If the insurer says and does nothing the proper conclusion is that he does not intend to accept, which applies with peculiar force to corporations: Peele v. Merchants' Ins. Co. 3 Mason 27, 81; Badger v. Ocean Ins. Co. 23 Pick. 347; 2 Parsons on Marine Ins. 177.

Moore & Canfield, for plaintiff :

The situation of the stranded steamer was such as prima facie entitled plaintiff to abandon her and claim for a total loss. It is not necessary that the vessel should be totally destroyed in order to be regarded as a total loss: Parsons' Marine Ins. 71; Sewall v. U. S. Ins. Co. 11 Pick. 90; Lee on Ins. 462; Irving v. Manning, 1 H. L. Cases, 287; 2 Arnould on Ins. 1021; Gracie v. N. Y. Ins. Co. 8 John. 244; Cologan v. London Assurance Co. 5 M. & S. 447.

The right of abandonment depends upon the facts at the time and the conclusions, which reasonable men ought then to draw from them in the exercise of a sound discretion: Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 547; Bradlie v. Md. Ins. Co. 12 Peters, 378; 3 Kent Com. 322; and the right to claim for a total loss is not defeated, because by reason of some fortuitous event the vessel is subsequently rescued and brought into port. The insured is not bound to wait indefinitely the experiments, which the underwriters mav conclude to try: Kemp v. Halliday, 6 B. & S. 749; 2 Phil. on Ins., § 1536; Peele v. Ins. Co. 3 Mason, 65-7; Norton v. Lexington Ins. Co. 16 Ill. 246; 3 Phillip's Ev. (C. & H. notes), page 259 and note 833; and we insist that the loss in this case was constructively total and justified the abandonment made: Provinical Ins. Co. v. Leduc, 6 L. R. P. C. C. 242; 11 Eng. 100; Cincinnati Ins. Co. v. Bakewell, 4 B. Mon. 543; Heebner v. Eagle Ins. Co. 10 Gray, 131. The notice of abandonment was sufficient: N. W. Trans. Co. v. Continental Ins. Co. 24 Fed. Rep. 171, 179; it was the act of plaintiff through its president and general manager, acting officially. He had the authority, and no resolution by the directors was necessary, but the record shows a ratification by plaintiff and the suit is sufficient evidence thereof: Finney v. Ins. Co. 5 Metc. 192; Williams v. Ins. Co. L. R. 1 C. P. D. 757; 18 Eng. 305; 1 Phillip's Marine Ins. 889; the form of abandonment was sufficient and no express set of words is necessary: Lee on Ins. 485; 2 Phil. on Ins., 1678; Columbian Ins. Co. v. Catlett, 12 Wheat. 383; Patapsco Ins. Co. v. Southgate, 5 Pet. 604; 2 Parsons on Ins. 172; Barber on Ins. 357; Heebner v. Ins. Co. 10

Gray 139; Chesapeake Ins. Co. v. Stark, 6 Cranch, 268; Reynolds v. Ins. Co. 22 Pick. 192–9.

The sufficiency of the notice is not affected by the British statute offered in evidence; it was never intended to apply to transfers by abandonment, and no evidence was offered to show that the section relied upon was in force in the Dominion of Canada; Currie v. Bombay Native Ins. Co., L. R. 3 P. C. App. 72; Provincial Ins. Co. v. Leduc, 6 P. C. 224; Knight v. Faith, 15 Q. B. 649; Lee on Marine Ins. 485; 2 Arnould on Ins. 1174; Kaltenback v. Mackenzie, L. R. 3 C. P. D. 477, 478, 484; Rankin v. Potter, L. R. 6 H. L. Eng. & Irish App. 118, 119; Ins. Co. v. Younger, 2 Curtis, 329.

The notice of abandonment being given by the mortgagee, who was plaintiff's president estopped him from asserting any claim under mortgage, and rendered the abandonment efficient to transfer title free from that incumbrance: N. W. Trans. Co. v. Continental Ins. Co. 24 Fed. Rep. 179; Herman on Chattel Mortgages, 355; Dann v. Cudney, 13 Mich. 239; Truesdail v. Ward, 24 Mich. 117; Meister v. Birney, 24 Mich. 435; Hayes v. Livingston, 34 Mich. 387.

The abandonment whether justified by the extent of the damage, or not, if accepted entitled plaintiff to recover as for a total loss: 2 Phillips on Ins., 391, 392, 394-5; 2 Greenl. on Ev. § 392; 2 Parsons' Marine Ins., 177; Barber on Ins. § 144; and such acceptance may be express or constructive: 2 Phillips on Ins. §§ 692, 1693; Peele v. Ins. Co. 7Pick. 254; Badger v. Ins. Co. 23 Pick. 355; Peele v. Merchants' Ins. Co. 3 Mason 81; Reynolds v. Ocean Ins. Co. 22 Pick. 191; the jury found, and the fact is therefore considered as established, that the defendant did not act with reasonable diligence in rescuing the steamer after having taken possession of her for that purpose. The following authorities seem to be conclusive on this point: Copelin v. Ins. Co. 1 Woolw. 280 (9 Wall. 461-7); Norton v. Lexington Ins. Co. 16 Ill. 235; 2 Parsons' Marine Ins. 142-3; Reynolds v. Ins. Co. 22 Pick. 191; Marman v. Melledge, 123 Mass. 174; Young v. Union Ins. Co. 24 Fed. Rep. 279; Peele v. Suffolk Ins. Co. 7 Pick. 254; 3 Phil. Ev. (C. & H. notes), 263, particularly note 833, p. 259; 2 Phillips on Ins., 1693; Badger v. Ins. Co. 23 Pick. 355.

CHAMPLIN, J. Plaintiff brought an action upon a policy of marine insurance, issued by the defendant upon the steamer Manitoba, whereby the plaintiff, as owner, was insured in the sum of $7,500, against total loss and general

average only. The steamer was valued in the policy at $36,000. She was also insured by the Insurance Company of the State of Pennsylvania in the sum of $3,350; by the Continental Insurance Company, $10,000; and by the Union Insurance Company in the sum of $10,000—leaving $5,150 at owner's risk. On the sixth of November, 1883, the policies being then in force, the steamer left the port of Port Arthur, on Lake Superior, bound for Sarnia, Ontario. She reached Southampton, on Lake Huron, November 11th. The wind was then blowing from the southwest. Soon after her arrival at Southampton, and while she was moored alongside the breakwater, the wind suddenly veered to the northwest, and came down in a terrific gale, and increased to a hurricane, which caused the steamer to part her moorings and drift into the harbor. Both her anchors were dropped, and the cable of the small anchor parted. Her large anchor, with full scope of chain, was not able to hold her, and she drifted away to leeward. About 4 o'clock the next morning her large anchor chain parted. She was then run inside the breakwater, and to save her from going ashore, her large hawser was gotten out to a snubbing-post, which, however, snapped and was carried away at once. Lines were then gotten out on her starboard side forward, which held her for a time, when a terrific blast from the northwest struck her with such force as to part her lines, and fearing that she would be driven upon a lee shore and totally lost, her master voluntarily stranded her on the shore of Chantry island, near the mouth of the harbor. The storm continued with little intermission for about eight days, causing the steamer to roll and pound upon the rocks at the place where she was stranded, and to spring a leak; and, to prevent greater damage, the sea-cocks were opened, the steamer was allowed to fill and settle upon bottom. After the steamer was thus voluntarily stranded, her passengers, to the number of 16, were taken ashore. She was without cargo except 160 barrels of salt fish, which were landed. about the same time at Southampton. Efforts were made as promptly as possible by the plaintiff to rescue and care