VIII.

CAHA P. For inftance, if a ship be found adrift at fea, having been abandoned by the master and crew, it feems reasonable, that the allowance for falvage fhould be greater than in a cafe where a man merely picks up goods caft upon the fhore, and carries them to a place of fecurity. Thus much for salvage in cafe of a wreck.

Vide ante, c. 4.
P. 71.

We have formerly feen, that when the fhips or goods of British subjects were retaken from an enemy, the original owner was entitled, by the marine law, to have them reftored, upon paying to the recaptors a reasonable falvage, provided the recapture was before condemnation. It was alfo obferved, that the ftatute law had extended the right of the original owner; fo that he was entitled to have his fhip and goods restored to [139] him, whether they were retaken after condemnation or before, however diftant the time of recapture might be from that of the original taking. The ftatutes have alfo fixed the precife rate of falvage, which the recaptors fhall be entitled to demand.

[140]

By the 13 Geo. II. ch. 4. and 29 Geo. II. ch. 34. Parlia ment fixed and ascertained the rate of falvage, in case of a recapture, proportioning the amount of the reward to the length of time the ship or goods had been in the poffeffion of the enemy, because the longer they remained in the hands of the enemy, fo much the lefs was the hope of recovery. At the fame time, however, thofe ftatutes fixed a boundary, beyond which the allowance should not pass; namely, that in no case 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 deftroyed 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 majefty's fhips, and one fixth, if made by a privateer or other ship.

VIII.

It is faid in the ftatute, that the falvage fhall be a propor- CHAP. tion of the fhips and goods so restored: but a writer upon mercantile law obferves, that the wearing apparel of the mafter Beawes Lexand feamen are always excepted from the allowance of falvage.

The ftatute has also faid, it must be an eighth, or a fixth,"

Merc. 147.

c. of the true value. Now the valuation of a ship, in order Beawes 147. to ascertain the rate of falvage, may be determined by the policy of insurance, if there is no reason to fufpect she 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 again ft fuch charges. pendix, No. 1. "And in cafe of any lofs or misfortune, it fhall be lawful for "the affured, their factors, fervants, and affigns, to fue, la

“bour and travel for, in and about the defence, safeguard, [141] and recovery of the faid goods and merchandizes, and ship, "&c. or any part thereof, without prejudice to this in"furance; to the charges whereof we the affurers will con"tribute, 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. Juftice Afbhurft faid, it seemed to him, that the meaning of this clause was, that till the affured have been informed of what has happened, and have had an opportunity of exercifing their own judgment, no act done by the mafter shall prejudice their right of abandonment.

In order to entitle the infured to recover the expences of falvage, it is not neceffary to ftate them in the declaration, as a special breach of the policy; because an insurance is against all accidents, and falvage is an immediate and neceffary confequence of fome of those stated in a policy.

CHAP.
VIII.

Cafes in B. R. temp. Hardwicke, 304.

Thus in an action on a policy of infurance, for infuring goods on the fhip A. the plaintiff declared, that the ship Carey v. King, fprung a leak, and funk in the river, whereby the goods were spoiled: 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 expences of falvage, that not being particularly stated in the declaration, as a breach of the policy?

[142] Randal v. Cockran, I Vez. 98.

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 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 case of a declaration that lays a special 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 should be laid, that the insurer 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 course follow, that fome damage did happen."

But although the infured may recover from the infurer the expences of falvage; yet he shall only be entitled to an in demnity, and fhall not receive a double fatisfaction for the fame lofs. Thus if the infurer fhould have paid to the infured the expences arifing from falvage; and afterwards, on account of fome particular circumftances, the lofs fhould be repaired by fome unexpected means, the infurer fhall ftand in the place of the insured, and receive the fum thus paid to atone for the lofs.

It was fo determined in a cafe before Lord Hardwicke in Chancery. The king having granted general letters of reprifal on the Spaniards for the benefit of his fubjects, in confideration of the loffes they sustained by unjust captures, the commif fioners would not fuffer the infurers to make claim to part the prizes, but the owners only; although they were already fatisfied for their lofs by the infurers, who thereupon brought

of

the

VIII,

the prefent bill. The Lord Chancellor was of opinion, that CHA P.
the plaintiffs had the plaineft equity that could be. The perfon
originally fuftaining the lofs was the owner; but after fatisfac-
tion made to him, the insurer becomes the owner. No doubt,
but from that time, as to the goods themselves, if restored in
fpecie, or compenfation made for them, the infured stands as a
trustee for the insurer, in proportion for what he paid; al-
though the commiffioners did right in avoiding being entangled
in accounts, and in adjufting 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 fal vage is fo high, the other expences 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 interest in the property faved to the infurer, and to call upon him to contribute, as if a total lofs had actually happened. What circumftances fhall be deemed fufficient to justify the insured in making fuch an abandonment, will be the fubject of the following chapter.

CHAP.
IX.

Chap. 4. p. 82.
Pothier's

Traité du con

trat. d' Affurance 133.

CHAPTER THE NINTH.

Of Abandonment.

WE have formerly feen, that the infured, before he can de

mand a recompenfe from the underwriter for a total lofs, muft cede or abandon to him his right to all the prochance to be recovered from fhipwreck, capperty that may ture, or any other peril, ftated in the policy. It has alfo been observed, and from the preceding sentence it is obvious, that when we fpeak of a total lofs, with refpe&t to insurances, Vide c. 6. p. 98. we do not always mean, that the thing infured is abfolutely loft and destroyed: but that, by fome of the usual 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 difcharged 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 fituation.

See Randall v. Cockran,

Vez. 98. ante, 8, p. 142.

France, Rotter

dam, Bilboa, Middleburgh.

From what has been faid then, it appears that abandonment dates its origin from the period at which the contract of insurance was itself introduced; because infurance being a contract of indemnity, the infured can recover no more than the amount of the lofs actually sustained: but if he were allowed to recover for a total lofs, and might also retain the property faved, he would be a confiderable gainer, which the law will not allow. Accordingly we find, that the doctrine of abandonment has obtained a place in the laws of all the maritime nations in the world, where infurance has been known and in all those laws the definition of it is the fame, namely, that when any goods or fhips, that are insured, happen to be lost, taken, or spoiled, the insured is obliged to abandon fuch goods or ships for the benefit of the infurers, before he can demand

any