V. Of total Losses and Abandonment. A TOTAL loss is of two kinds; one, where the whole property insured perishes; the other, where the property exists, but the voyage is lost, or the expense of pursuing it exceeds the benefit arising from it. In the latter case, the assured may elect (27) to abandon to the underwriter all right to such part of the property as may be saved, and having given due notice of his intention to do so, the assured will then be entitled to demand a compensation as for a total loss; but if the assured does not in fact abandon (28), or if he omits to give the underwriter notice (29) of his having abandoned, or if, being required by the underwriter to assign over his interest in the property insured, he refuses to do so? (30), he will not o If the voyage be defeated, it is the same thing for this purpose as if the ship be lost. Lawrence J. 6 T. R. 425. But see Parsons v. Scott, 2 Taunt. 363, and Anderson v. Wallis, 3 Camp. 440. 2 Maule & Selwyn, 240. and post. p. 911. See also Hunt v. Royal Exch. Ass. B. R. Sittings at Serjeants' Inn, before East. T. 56 G. 3. p Havelock v. Rockwood, 8 T. R. 268. more fully reported by N. Atcheson, SVO. 1800. (27) The assured is not in any case bound to abandon. See 15 East, 15. (28) An insurance was effected on some hogsheads of sugar on a voyage from Ostend to Havre. The vessel sailed from Ostend, but was forced on shore, and the cargo damaged. The assured wrote to the underwriters, to inform them of the circumstances, and of the injury which the sugars had sustained. The underwriters in answer desired," that the assured would do the best with the damaged property." It was holden, that the letter, coupled with the answer, did not amount to abandonment. Thelluson v. Fletcher, 1 Esp. N. P. C. 73. per Kenyon, C. J. (29) Notice of abandonment is necessary, although the ship and cargo have been sold and converted into money, when the notice of the loss was received. Hodgson v. Blackiston, Park, 172. a. n. (30) In Havelock v. Rockwood, the insurers offered to settle with the insured, he first making an assignment of one-fourth part of the value of the ship for their benefit. The sum insured not amounting to one-fourth, the plaintiff declined making the assigument. The court were of opinion, that, under these circumstances, the assured could not be considered as having abandoned; Kenyon, C. J. observing, that the refusal to assign seemed to him to be equivalent to a refusal to abandon; and Grose, J. intimating, that there should have been an offer on the part of the assured to assign such part as he was entitled to. See Atcheson's Report, p. 18. be entitled to claim as for a total loss; unless, in the conclusion, there be an actual total loss. Insurance on goods. The vessel was wrecked, part of the goods were lost, and part got on shore, but (whilst on shore) were destroyed and plundered by the inhabitants of the coast of the Isle of France, so that no portion of them came again into the possession of the assured. Held that this was a total loss by perils of the sea, and no abandonment was necessary. When the assured has received intelligence of such a loss as entitles him to abandon, it is incumbent on him to make his election to abandon, and to give notice thereof to the underwriter within a reasonable time (31), after receipt of the intelligence; otherwise the assured will be considered as having waved his right to abandon, and in case any part of the property insured be saved, he can recover as for a partial loss only. Abandonment is necessary to make a constructive total loss; but if there be an actual total loss, the circumstance of the assured having previously given an ineffectual notice of abandonment, will not prejudice his claim". Where a ship was chartered from Liverpool to Jamaica, there to take on board a full cargo for Liverpool, at the current rate of freight, to be paid at one month from the discharge of her cargo at Liverpool; and the ship-owners effected a valued policy on the freight, at and from Jamaica, to her port of discharge in the united kingdom; and the ship arrived at Jamaica, and, after taking on board one-half of her cargo, was lost by storm, the remainder of her cargo Mellish v. Andrews, 15 East, 13. r Bondrett v. Hentigg, 1 Holt's N. P. C. 149, C. B. Gibbs, C. J. s Mitchell v. Edie, 1 T. R. 60s. All- t Barker v. Blakes, 9 East, 283. (31)" An abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time, under the circumstances.” Per Lord Ellenborough, C. J. in Anderson v. Royal Exch. Ass., 7 East, 43. cited by Ld. E. in Davy v. Milford, 15 East, 563. "The assured must make his election speedily, whether he will abandon or not. He cannot lie by, and treat the loss as an average loss, and take measures for the recovery of it, without communicating that fact to the underwriters, and letting them know that the property is abandoned to them." Per Lord Kenyon, C. J. in Allwood v. Henckell, Park, 172. being on shore and ready to be shipped: held that the assured were entitled to recover, as for a total loss. It may be collected, from the two following cases, under what circumstances the assured may elect to abandon and claim as for a total loss. A ship was freighted with fish', and was insured on a voyage from Newfoundland to the port of discharge in Portugal or Spain, without the Streights, or England. During the voyage a violent storm arose, in consequence of which it became necessary that part of the cargo should be thrown overboard, and the ship was so much disabled as to render it necessary for her to go into port to refit; but before she could reach any port, she was captured by the French, who took out nearly the whole of the crew, and sent them into France. The ship having remained eight days in possession of the enemy, but not having been carried into port, nor within the enemies' fleet, was recaptured and brought into Milford Haven. The assured immediately gave notice of their intention to abandon. The remainder of the cargo was spoiled whilst the ship lay at Milford Haven, and before she could be refitted. It was holden, that the loss being in its nature a total loss, at the time when it happened, the assured had a right of election to abandon; that the subsequent title to restitution, arising from the recapture of the ship, which was not in a situation to pursue her voyage, could not take away a right vested in the assured at the time of the capture, and consequently that the assured having given immediate notice of abandonment, were entitled to recover against the insurers for a total loss. A ship and goods were insured for a voyage from Mountserrat to London. The ship was taken by an enemy who took out all the crew, part of the cargo (which consisted of sugars) and the rigging. She was afterwards recaptured and carried into New York, where the captain arrived on the 23d of June, and taking possession of her, found that part of what had been left of the cargo had been washed overboard; that 57 hogsheads of what remained were damaged, and that the ship was in such a state, that she could not be repaired without unloading her entirely. The owners had not any storehouses at New York, where the sugars could have been deposited while the ship was repairing, nor any agent there to advise the captain. No sailors were to be had. There x Davidson v. Willasey, 1 M. & S. 313. * Milles v. Fletcher, Doug. 220y Goss v. Withers, 2 Burr. 683. was an embargo on all vessels at New York until the 27th of December, and by the destination of the ship, she was to have arrived at London in July. Thus circumstanced, the captain sold the cargo, and contracted for the sale of the ship, conceiving that he was thereby acting most beneficially for his employers. The captain did not know of the insurance. The assured, upon receiving intelligence of what the captain had done, offered to abandon to the underwriters, and made a demand as for a total loss. An action having been brought to enforce this demand, it was holden, that the assured were entitled to recover as for a total loss; Lord Mansfield, C. J. observing, that it had been laid down, "that if the voyage was lost, or not worth pursuing, if the salvage was high, if further expense was necessary, if the insurers would not at all events, undertake to pay that expense, &c. the insured might abandon, notwithstanding a recapture." It may be observed, that the preceding cases were cases of peculiar circumstances, that it ought not to be inferred from them, that in the case of a mere capture, followed by a recapture, that the insured may, after the recapture (32) abandon, and demand as for a total loss. The impropriety of making such an inference will appear from the following case: A ship, valued at a certain sum, was insured on a voyage from Virginia or Maryland to London; during the voyage, the ship was captured by the French, who took out nearly the whole of the crew, and put in a prize-master to carry her to France. Having remained 17 days in possession of the enemy, she was recaptured by an English man of war, and carried into Plymouth, whence she was brought into the port of London, by the order of the owners of the cargo and the recaptors. The assured having received intelligence of what had happened, gave notice to the underwriters of his intention to abandon. It appeared, that no damage had been sustained from the capture, except what arose from the temporary interruption of the voyage, and a charge for a Hamilton v. Mendez, 2 Burr. 1198. 1 Bl. R. 276. (32) The assured, upon intelligence of a capture, may abandon, and claim as for a total loss. Admitted per Lord Kenyon, C. J. in M'Masters v. Schoolbred, 1 Esp. N. P. C. 237; but if they neglect this opportunity, and afterwards the ship is recovered, the assured can only claim for the loss actually sustained. S. C. The salvage, which the underwriter had offered to pay. cargo had been delivered to the freighters, who had paid freight for the same. An action having been brought, in which the assured claimed as for a total loss, it was holden, that in cases of insurance, the plaintiff's demand is for an indemnity, consequently his action must be founded upon the nature of the injury sustained at the time of action brought; that, as it was repugnant, upon a contract of indemnity, to recover as for a total loss, when the final event had decided that the real injury was an average loss only, the plaintiff, in the present case, was entitled to recover for an average loss only. At the conclusion of the judgment, Lord Mansfield said, that the court desired it to be understood that the only point determined was, "that on a valued policy, the plaintiff could not recover more than the actual loss, which had happened at the time when he chose to abandon." A late decision on this subject, and which was admitted to be new in specie, must not pass unnoticed. The defendant had subscribed two policies, one on ship, and the other on freight of the same ship, on a voyage from Liverpool to Jamaica. The ship was captured on the 21st of September, and recaptured on the 25th; after which, the plaintiff having received intelligence on the 30th of the capture, but not of the recapture, gave notice of abandonment on the 31st, which he persevered in after the 6th of October, when news of the recapture arrived, and that the ship was safe in a port in Ireland, but which notice the underwriters did not accept. And it appeared, that instead of a total loss, there had been only a small partial loss of 137. and a fraction, for salvage and charges on the policy on freight, and 157. and a fraction on the ship and policy, and that no damage whatever was sustained by the ship in the possession of the enemy. The question was, whether that which in the result turned out to be only a partial loss to a trifling extent should, because of the notice of abandonment given when a total loss appeared to exist, be recovered as a total loss. The court were of opinion, that they must look to the real nature of the contract in a policy of insurance, which was nothing more than a contract of indemnity, and, consequently, as that which was supposed to be a total loss at the time of the notice of abandonment first given had ceased; and as only a small loss had been incurred in the salvage; that was the real amount of the indemnification which the plaintiff was intitled to receive h Bainbridge v. Neilson, 10 East, 329. |