under this contract of indemnity. Lord Ellenborough ob served, "that it has been said in argument, that the offer to abandon having been rightly made at the time, a right of action vested in the assured, which could not be defeated by the subsequent events; but that proposition is not only not true in the whole, but it is not true in its parts. The effect of an offer to abandon is truly this, that if the offer appear to have been properly made upon certain supposed facts which turn out to be true, the assured has put himself in a condition to insist upon his abandonment; but it is not enough that it was properly made upon facts, which were supposed to exist at the time, if it turn out that no such facts existed, or that other circumstances had occured which did not justify such abandonment. It may be said to be properly made upon notice received, and bonâ fide credited, by an assured, of his ship having been wrecked, whether such intelligence were true or not, and though the letter conveying it turned out to be a forgery: and yet, clearly no right of action would vest in him, founded upon an abandonment made upon false intelligence, and without any thing, in fact, to warrant the giving of such notice. What is an abandonment more than this, that the assured, having had notice of circumstances, which, if true, entitle him to treat the adventure as a total loss, he, in contemplation of those circumstances, casts a desperate risk on the underwriter, who is to save himself as well as he can? But does not all this presume the existence of those facts on which the right accrues to him to call upon the underwriter for an indemnity? And if they be all imaginary, or founded in misconception, or if at the time it had ceased to be a total loss, and there be no damage to the assured, or at least if the only damnification arise out of the very act (the recapture) which saves the thing insured from sustaining a total loss, the whole foundation of the abandonment fails."

The loss of the voyage occasioned by the detention of the ship will not enable the owner to recover upon a policy on the ship as for a total loss, the ship having been released before abandonment".

Where the ship was wrecked, but all the goods were brought on shore, though in a very damaged state, so that they became unprofitable to the assured: held that the underwriters on the goods, who were freed by the policy from the particular average, could not be made liable as for a total loss, by a notice of abandonment.

b Parsons. Scott, 2 Taunt. 363.

c Thompson v. Roy. Ex. Ass, Comp. 16 East, 214.

Policy of assurance on goods (copper and iron) at and from London to Quebec, warranted free of particular average, and the ship, owing to sea damage in the course of her voyage, was obliged to run into port and undergo repair, and some part of the goods were damaged, and the repairs detained her so long as to prevent her reaching Q. that season, and no other ship could be procured at that or a neighbouring port to forward the cargo in time, so that the voyage was abandoned, and the ship afterwards sailed on another voyage: held that this was not a total loss of the goods, and that the assured could not abandon.

Insurance on ship. The ship during her voyage, while loading her homeward cargo, was seized by the crew and carried away to a distant country, and her cargo plundered, and the ship deserted, but was afterwards retaken by another ship, and was brought with a small remaining part of her cargo to an English port (not the port of her destination) and part of her rigging was gone, and she could not be made fit for a voyage again without considerable expense in providing a crew and stores: held that this was not a total loss so as to entitle the assured to abandon after, notice of the recapture.

Upon a hostile embargo in a foreign port, the ship-owner, who had separately insured ship and freight, abandoned them to the respective underwriters at the same time; the abandonment was accepted by the underwriters; afterwards the embargo was taken off, and the ship completed her voyage and earned freight. The freight having been paid by the freighters to the underwriters on the ship, the ship-owner, the assured brought an action against one of the underwriters on freight, claiming as for a total loss; it was holden, that the assured could not recover, the freight having been in fact earned: or supposing it to have been in any other sense lost to the assured, by the abandonment of the ship to the underwriters thereon, it was so lost, not by any peril insured against, but by the voluntary act of the assured in making such abandonment, with which, and the consequences thereof, the underwriters on freight had not any concern.

Policy on fruit from Cadiz to London, with the usual memorandum. In the course of the voyage the fruit was

d Anderson v. Wallis, 2 Maule & Selwyn, 240. recognized in Everth v. Smith, 2 Maule & Selwyn, 273. and in Hunt v. Royal Exchange Assurance, B. R. Sittings at Serjeants' lun before E. T. 56 G. 3.

e Falkner v. Ritchie, 2 Maule & Sel.
wyn, 290.

f M'Carthy v. Abel, 5 East, 398. See
post. Case v. Davidson.
g Dyson v. Rowcroft, 3 Bos. & Pul.

474.

so much damaged by the sea-water that it became rotten and stunk, and on the ship's arrival at an intermediate port, into which she was driven, the government of the place prohibited the landing of the cargo. The ship also, being too much damaged to proceed on her voyage, was sold, and the cargo necessarily thrown overboard. It was holden, on a case reserved, that the assured were entitled to recover for a total loss; and Chambre, J. said "the ship is expressed to have been so much damaged that she could not proceed, but was sold; now this must certainly have made a complete end of the voyage. We do.not construe special cases so strictly as we do special verdicts; on the whole, therefore, it seems to be that the loss was total, and though the cargo might be said to exist in specie, yet in value it did not exist at all. If that be so, the inference of law is plain. What is it against which the underwriters protect themselves by the memorandum? Against partial damage. For what reason? Because, as the commodities enumerated are perishable in their nature, it might be impossible to ascertain, with exactness, what part of the loss arose from the nature of the commodity, and what from sea-damage. If ever there was a case of total loss, it certainly is the present."

After satisfaction made as to the goods themselves, if restored in specie, or compensation made for them, the assured stands as a trustee for the insurer, in proportion for what he has paid.

A ship-owner having chartered his ship to J. S.1 insured the ship and freight with different sets of underwriters. Having notice of an embargo laid on the ship in a foreign port, he abandoned the ship and freight to the respective underwriters, and received the whole amount of their subscriptions as for a total loss; first undertaking, by a memorandum on the ship policy, to assign to the underwriters thereon his interest in the ship, and to account to them for it; and afterwards undertaking, by a similar memorandum on the freight policy, to assign to the underwriters on freight all right of recovery, compensation, &c. The ship having been afterwards liberated, returned home, and earned freight, which was received by the assured; it was holden, that however the question of priority as to the title to the freight might have been, as between the different sets of

h Randall v. Cockran, 1 Vez. 98.

i Thompson . Rowcroft, 4 East, R. 34. See also Leatham v. Terry, 3 Bos. & Pul. 479.

underwriters litigating out of the same fund, and however the weight of argument might preponderate in favour of the underwriters on the ship (33), yet that the assured, who had received the freight, was at all events liable on his express undertaking to pay it over to the underwriters on freight. But in a subsequent case, which arose on the same embargo, it was holden, that although the underwriter on freight was entitled to recover the freight received by the assured, yet the assured might deduct out of it the following expenses: 1. The expenses of ship and crew in the foreign port, including port charges, (besides the expenses of shipping the cargo, which exclusively belonged to the underwriters on freight). 2. Insurance thereon. 3. Wages and provisions of crew from their liberation in the foreign port till their discharge here. 4. Wages (provisions were supplied by the foreign government) to the crew during their detention. But it was further holden, that the assured was not entitled to deduct out of such freight: 1. Charges paid at the port of discharge on ship and cargo. 2. Insurance on ship. 3. Diminution in value of ship and tackle by wear and tear on the voyage home.

In case of a total loss, where the policy is a valued policy, the value inserted in the policy must be paid by the underwriter.

Goods protected by a valued policy, being captured, are condemned as lawful prize, the captors paying freight. The assured may recover as for a total loss'.

Where the subject matter of the insurance is at first of the value mentioned in the policy, and there is not any imputation of fraud, the underwriter will be bound, in case of a loss, by the valuation in the policy, although the loss happens at the latter end of the voyage, at which time the prok Sharp v. Gladstone, 7 East, 24. 1 Marshall v. Parker, 2 Camp. N. P. C. 69.

(33) See Sharp v. Gladstone, 7 East, 30. where Lord Ellenborough, C. J. observed, that as to the general question, whether an abandonment could be made to the underwriters on freight after an abandonment to the underwriters on ship, he desired to be understood as giving no opinion. But in Case v. Davidson, B. R. E. T. 56 Geo. 3., it was determined on a special case that the insurer of ship to whom abandonment is made is entitled to freight, though the freight has been abandoned to the insurer on freight. Per three Judges. Bayley, J. dissentiente.-N, On the last day of the term leave was given to turn this case into a special verdict.

perty insured is considerably diminished in value: as where an insurance was made on ship, stores, and provisions, valued, on a certain voyage, and the ship foundered on her arrival at the port of discharge: it was holden, that the loss being total, and no fraud, the underwriter was liable to pay the value inserted in the policy, although it appeared that provisions to the amount of half that value had been expended (34).

In an action upon a valued policy, the defendant paid into court 301. per cent. It was contended, that as the contract admitted the value, and as the payment of money into court admitted the contract, the defendant had made an admission, which furnished at least a primâ facie case for the plaintiff, of a total loss to the amount insured, and that it was incumbent on the defendant to shew that the loss was less than the whole value in the policy. But the court were unanimous, that the defendant's rule was merely an admission that a loss of 30l. per cent had been sustained and no

more..

Where there is not any valuation in the policy, the prime cost, or invoice price, together with all charges until the goods are put on board, and the premium of insurance, will be the foundation upon which the loss shall be computed. If part of a cargo, capable of distinct valuation, be lost, the value of such part must be paid.

Where there is insurance on goods, as may be thereafter declared and valued, the assured may, by duly declaring and valuing before the loss, make it a valued policy; but if the assured do not so declare and value, it is then an open policy, and the interest must be proved at the trials.

VI. Of partial Losses.

A partial loss upon a ship or goods', is such a proportion

o Shawe v. Felton, 2 East, 109.

p Rucker v. Palsgrave, 1 Taunt. R. 419.

q Per Lord Ellenborough, C. J. Har

man v. Kingston, 3 Camp. N. P. C,

152.

r Marsh. 535.

(34) "Valuation at the sum insured is an estoppel in case of a total loss." Per Lee, C. J. in Erasmus v. Bank, M. 21 G. 2. and Smith v. Flexney, Dec. 13, 1747.