VIII. By the 13 Geo. II. ch. 4. and 29 Geo. II. ch. 34. Par- CHA P. liament fixed and afcertained the rate of falvage, in cafe of a recapture, proportioning the amount of the reward to the length of time the fhip or goods had been in the poffeffion of the enemy; becaufe the longer they remained in the hands of the enemy, fo much the lefs was the hope of recovery. At the fame time, however, those ftatutes fixed a boundary, beyond which the allowance fhould, not pafs; namely, that in no cafe whatever, fhould the recaptors be entitled to more than a moiety of the property rescued from the enemy. But the ftatute 33 Geo. III. ch. 66. f. 42. (which section fee at length ante, p. 72.) has destroyed that proportion, and has ascertained the rate in all cafes, however long the ship has been in the enemy's poffeffion, to be one-eighth, if the recapture has been made by any of his majesty's ships, and one-fixth, if made by a privateer or other ship. Merc. 147. It is faid in the ftatute, that the falvage fhall be a proportion of the ships and goods fo restored: but a writer upon Beawes Lex. mercantile law obferves, that the wearing apparel of the mafter and feamen are always excepted from the allowance of falvage. The ftatute has alfo faid, it must be an eighth, or a fixth, c. of the true value. Now the valuation of a fhip, in or-, Beawes 147. der to afcertain the rate of falvage, may be determined by the policy of infurance, if there is no reafon to fufpect the is undervalued; and the fame rule may be observed as to goods where there are policies upon them. If that, however, fhould not be the cafe, the falvers have a right to infift upon proof of the real value, which may be done by the merchant's invoices, and they must be paid for accordingly. The only question then is, how far the infurers are affected by this allowance of falvage. By their own contract, they ex- Vide the Apprefsly agree to indemnify the infured against fuch charges. pendix, No. "And in cafe of any lofs or misfortune, it shall be lawful for "the affured, their factors, fervants, and affigns, to fue, la"bour and travel for, in and about the defence, fafeguard, "and CHAP. Carey v. King, temp. Hard- "and recovery of the faid goods and merchandizes, and fhip, &c. or any part thereof, without prejudice to this in"furance; to the charges whereof we the affurers will contribute, each one according to the rate or quantity of his "fum herein affured." In the cafe of Mitchell v. Edie (1 Term Reports, 608.) Mr. Justice Afbburft faid, it seemed to him, that the meaning of this claufe was, that till the affured have been informed of what has happened, and have had an opportunity of exercising their own judgment, no act done by the master fhall prejudice their right of abandonment. In order to entitle the insured to recover the expenfes of falvage, it is not neceflary to ftate them in the declaration, as a fpecial breach of the policy; becaufe an insurance is against all accidents, and falvage is an immediate and ne ccffary confequence of fome of those stated in a policy. Thus in an action on a policy of infurance, for infuring goods on the thip A. the plaintiff declared, that the thip fprung a leak, and funk in the river, whereby the goods were fpoiled; the evidence was, that many of the goods were fpoiled, but fome were faved. The question was, Whether the plaintiffs might give in evidence, the expenses of falvage, that not being particularly ftated in the declaration, as a breach of the policy? Lord Hardwicke." I think they may give it in evidence, for the infurance is againft all accidents. The accident laid in this declaration is, that the fhip funk in the river: it goes on and fays, that by reafon thereof the goods were spoiled. That is the only special damage laid; yet it is but the common cafe of a declaration that lays a fpecial damage, where the plaintiff may give in evidence any damage that is within his caufe of action. It was objected, that fuch a breach of the policy fhould be laid, that the infurer may have notice to defend it. Now it is fo in this cafe, for they have laid the accident, which is fufficient notice, because it must of courfe follow, that fume damage did happen." But VIII. But although the infured may recover from the insurer CHA P. the expenfes of falvage; yet he shall only be entitled to an indemnity, and fhall not receive a double fatisfaction for the fame lofs. Thus if the infurer fhould have paid to the infured the expenfes arifing from falvage; and afterwards on account of fome particular circumstances, the lofs fhould be repaired by fome unexpected means, the infurer fhall ftand in the place of the infured, and receive the fum thus paid to atone for the lofs. It was fo determined in a cafe before Lord Hardwicke in [142] Chancery. The king having granted general letters of re- Randalv.Cockprifal on the Spaniards for the benefit of his fubjects, in con- ran. I Vez. 98. fideration of the loffes they fuftained by unjust captures, the commiffioners would not fuffer the insurers to make claim to part of the prizes, but the owners only; although they were already fatisfied for their lofs by the infurers, who thereupon brought the prefent bill. The Lord Chancellor was of opinion, that the plaintiffs had the plaineft equity that could be. The perfon originally fuftaining the lofs was the owner; but after fatisfaction made to him, the infurer becomes the owner. No doubt, but from that time, as to the goods themselves, if reftored in fpecie, or compenfation made for them, the infured ftands as a trustee for the infurer, in proportion for what he paid; although the commiffioners did right in avoiding being entangled in accounts, and in adjusting the proportion between them. Their commiffion was limited in time; they see who was owner ; nor was it material to them, to whom he affigned his intereft, as it was in effect after fatisfaction made. Cafes, however, may, and do frequently arife, where the falvage is so high, the other expenfes are fo great, and the object of the voyage is fo far defeated, that the infured is allowed, by the laws of all trading nations, to abandon his intereft in the property faved to the insurer, and to call upon him to contribute, as if a total lofs had actually happened. What circumftances fhall be deemed fufficient to juftify the infured in making fuch an abandonment, will be the fubject of the following chapter, 143 CHAPTER THE NINTH. CHAP. Pothier's Traité du contrat. d' Affurance 133 Of Abandonment. WE have formerly feen, that the infured, before he can demand a recompenfe from the underwriter for a Chap. 4. p. 82, total loss, must cede or abandon to him his right to all the property that may chance to be recovered from fhipwreck, capture, or any other peril, ftated in the policy. It has alfo been observed, and from the preceding fentence it is obvious, that when we fpeak of a total lofs, with refpect to inVide c. 6. p.98. furances, we do not always mean, that the thing infured is abfolutely loft and deftroyed; but that by fome of the ufual perils, it is become of fo little value, as to entitle the infured to call upon the underwriter to accept of what is faved, and to pay the full amount of his infurance, as if a total lofs had actually happened. Indeed, the word abandonment conveys the idea, that the whole property is not loft; for it is impoffible to cede or abandon that which does not exist. When the underwriter has discharged his infurance, and the abandonment is made, he stands in the place of the insured, and is entitled to all the advantages refulting from that situation, See Randal c. 8. From what has been faid then, it appears that abandonment dates its origin from the period at which the contract of infurance was itfelf introduced; because insurance being a contract of indemnity, the infured can recover no more than the amount of the lofs actually fuftained; but if he were allowed to recover for a total lofs, and might also reFrance, Rotter- tain the property faved, he would be a confiderable gainer, dam, Bilboa, which the law will not allow. Accordingly we find, that Middleburgh. the doctrine of abandonment has obtained a place in the laws of all the maritime nations in the world, where infur rance has been known: and in all thofe laws the definition of it is the fame, namely, that when any goods or ships, that are infured, happen to be loft, taken, or ipoiled, the in[144] fured is obliged to abandon fuch goods or fhips for the benefit of the insurers, before he can demand any fatisfaction from them. In this refpect alfo, they feem to be agreed, of Bilboa 32. that when an abandonment is made, it must be a total, not Pothier 133. Ord. of Lew. 14. art. 47. Ord. a partial IX. a partial one; that is, one part of the property infured fhall CHA P. not be retained, and the other part abandoned; a regulation certainly founded in justice. The propriety and juftice of abandoning in certain cafes to the insurers being apparent, it will be proper to confider in what cafes, and under what circumftances, the infured is entitled to exercise this power for although in all cafes the infured has a right to fay, he will not abandon; yet he 2 Burr. 697, cannot at his pleasure harass the insurer, by faying he will abandon, and thereby turn that, which, in its own nature, was only a partial, into a total lofs, In questions of this nature, the opinion of learned for eigners must always have weight; because they are not questions of pofitive regulation, or municipal law, but of general and extensive import: not confined to any particu lar ftate, but founded on the great principle of reason, juftice, and univerfal law. The learned Roccus, who has accu- Roccus, No. 5a. rately examined the works of those writers that went before him, and who, after ftating their various opinions, forms his own conclufions, has not been filent upon this occafion. He puts this question: "Affecurator, qui jam folvit æsti"mationem mercium deperditarum, fi poftea dictæ merces appareant et recuperatæ fint, an poffit cogere dominum ad 66 accipiendas illas, et ad reddendam sibi æftimationem, quam "dedit?" He answers, "Diftingue; aut merces, vel aliqua pars ipfarum appareant, et reftitui poffint, ante folutionem "æftimationis, et tunc tenetur dominus mercium illas recie pere, et pro illâ parte mercium apparentium, liberabitur "affecurator, nam qui tenetur ad certam quantitatem refpectu certæ fpeciei, dando illam, liberatur, et etiam, quia "contractus affecurationis, eft conditionalis, fcilicet fi merces deperdantur: non autem dicuntur deperditæ, fi poftea 66 reperiantur, Verum fi merces non appareant in illa prif"tinâ bonitate, aliter fit æftimatio, non in totum, fed prout "tunc valent. Aut vero poft folutam æftimationem ab "affecuratore compareant merces, et tunc eft in electione ❝mercium affecurati vel recipere merces, vel retinere pre❝tium." And |