No. 7. - Rankin v. Potter.

Notes.

ashore, taking the ground on a reef of rocks. While there in a state of imminent peril, she was sold by the captain (as master) under the advice of a surveyor and agent for the owners. The jury found that the master had acted throughout fairly and bonâ fide for the benefit of all concerned. Held (on a case agreed to be turned into a special verdict), that the assured might recover as for a total loss although no notice had been given of abandonment, and although the purchaser got the ship off and ultimately brought her into port. Idle v. Royal Ex. Ass. Co. (Ex. 1819), 8 Taunt. 755. It appears from a note to Read v. Bonham, 3 Brod. & Bing. 151, that on the case coming on for argument in K. B. in error, the court expressed the opinion that the necessity did not appear from the special verdict, and a venire de novo was awarded for the purpose of trying whether it existed. BAYLEY, J., said that the question whether the circumstances amounted to an abandonment might also be left open. The case is however cited in Roux v. Salvador (p. 62, supra) in a passage again quoted in Cossman v. West, 13 App. Cas. 176, as an authority for the proposition that no abandonment is necessary where there is a total loss of the subject-matter insured.

A case similar to Idle v. Royal Exchange Ass. Co. came into the Common Pleas in 1827. The court, including PARK, J., approved the decision of the former case by the Court of Exchequer, and gave a similar judgment. They also put the case on the ground that, the insurance being on freight, there was nothing to abandon. Mount v. Harrison (C. P. 1827), 4 Bing. 388.

Shipowner and charterer may agree by charter-party that a portion of the stipulated freight shall be prepaid: in which case the remainder of the freight may be incurred, and if the freight ultimately earned does not exceed what has been prepaid, so that no balance becomes payable on the performance of the voyage, the shipowner may recover as on a total loss. Allison v. Bristol Marine Ins. Co. (1876), 1 App..

Cas. 209.

In a policy on chartered freight, where the ship on the way to take up the cargo has grounded, and is delayed so long that the charterers justifiably throw up the charter and send the cargo by another ship, this is a total loss of the chartered freight by perils of the sea. Jackson v. Union Marine Ins. Co. (1873, 1879), L. R., 8 C. P. 592; 42 L. J. C. P. 284; 10 C. P. 125; 44 L. J. C. P. 27.

AMERICAN NOTES.

Where a vessel is so injured by a sea peril as not to be reparable, except at an expense exceeding its value when repaired, there is an actual total loss, and no abandonment is necessary. Bullard v. Roger Williams Ins. Co., 1 Curtis Circ. Ct. (U. S.) 148.

Abandonment is unnecessary where it cannot possibly be of benefit to the underwriter. Fosdick v. Norwich Ins. Co., 3 Day (Conn.), 108; Walker v. Protection Ins. Co., 29 Maine, 317. And where something still exists capable of abandonment. Burt v. Brewers', &c. Ins. Co., 16 N. Y. Sup. Ct. 383.

SECTION IV. Criterion of Time in cases of Abandonment and Total Loss.

ABANDONMENT is not effectual to entitle the assured to recover as for a total loss, unless the facts constituting a total loss exist at the time of the abandonment.

Semble, that they must exist also at the time of action. brought.

Hamilton v. Mendez.

2 Burr. 1198.

Monday, 8th June, 1761. This was a special case reserved at Guildhall, at the sittings there before Lord Mansfield after Michaelmas Term, 1760, in an action brought against the defendant as one of the insurers, upon a policy of insurance from Virginia or Maryland to London, of a ship called the Selby and of goods and merchandise therein, until she shall have moored at anchor twenty-four hours in good safety.

The case stated for the opinion of the court was as follows:

That the ship Selby, mentioned in the policy, being valued at £1200, and the plaintiff having interest therein, caused the policy in question to be made; and the same was accordingly made, in the name of John Mackintosh, on behalf and for the use and benefit of the plaintiff, and which was subscribed by the defendant, as stated, for the sum of £100.

That the ship, being of the burthen of two hundred tons, was on the 28th of March, 1760, in good safety at Virginia; where

she took on board 192 hogsheads of tobacco, to be delivered at London.

That on the said 28th day of March, she departed and set sail from Virginia for London; and on the 6th day of May following, as she was sailing and proceeding in her said voyage, was taken by a French privateer called the Aurora, of Bayonne, Captain Jean Piena Lesea commander; who, with his company were subjects of the French king, then being at war with our lord King George the Second.

That at the time of the capture, the Selby had nine men on board; and the captain of the said privateer took out six, besides the captain, Dorsdill; leaving only the mate and one man on board.

That the French put a prize-master and several men on board the said ship Selby, to carry her to France.

That as the French were carrying the said ship Selby towards France, on the 23d day of the said May, she was retaken off Bayonne, by the Southampton, an English man-of-war commanded by Captain Antrobus; who sent her into Plymouth, where she arrived the 6th day of June following.

That the plaintiff living at Hull, as soon as he was informed what had befallen his said ship the Selby, wrote a letter on the 23d day of June, to his agent John Mackintosh living in London, to acquaint the defendant, "that the plaintiff did from thenceforth abandon to him his interest in the said ship, as to the said one hundred pounds by the defendant insured."

That the said John Mackintosh, on the 26th day of the said June, acquainted the defendant with an offer to abandon the ship: to which the defendant said "he did not think himself bound to take to the ship; but was ready to pay the salvage and all other losses and charges that the plaintiff sustained by the capture."

That upon the 19th day of August, the said ship Selby was brought into the port of London, by the order of the owners of the cargo and the re-captors.

That the said ship Selby sustained no damage from the capture. That the whole cargo of the said ship Selby was delivered to the freighters, at the port of London; who paid the freight to Benjamin Vaughan, without prejudice.

The question therefore submitted to the opinion of the court in this case, is, "Whether the plaintiff, on the said 26th day of

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June, had a right to abandon, and hath a right to recover as for a total loss." If he is entitled to recover for a total loss; then the jury find a verdict for the plaintiff; damages £98, costs 40s. But if the court shall be of opinion, that he had no right to abandon on the said 26th day of June, or he ought only to recover an average loss, then the jury find a verdict for the plaintiff; damages £10, costs 40s.

The case having been argued by Mr. Morton for the plaintiff, and Mr. Aston for the defendant, and the court having taken time to consider,

Lord MANSFIELD now delivered the resolution of the court; having first stated the case, as settled at nisi prius.

The plaintiff has averred in his declaration, as the basis of his demand for a total loss, "that by the capture the ship became wholly lost to him."

The general question is, whether the plaintiff, who at the time of his action brought, at the time of his offer to abandon, and at the time he was first apprised of any accident having happened, had only, in truth, sustained an average-loss, ought to recover for a total one.

In support of the affirmative, the counsel for the plaintiff insisted upon the four following points:

1st. That by this capture, the property was changed, and therefore the loss total for ever.

2d. If the property was not changed, yet the capture was a total loss.

3d. That when the ship was brought into Plymouth, particularly on the 26th of June, the recovery was not such as, in truth, changed the totality of the loss into an average.

4th. Supposing it did, yet, the loss having once been total, a right vested in the insured to recover the whole upon abandoning, which right could never afterwards be devested or taken from him by any subsequent event.

As to the first point, -If the change of property was at all material as between the insurer and insured, it would not be applicable to the present case; because, by the marine law received and practised in England, there is no change of property, in case of a capture before condemnation: and now, by the act of Parliament, in case of a re-capture, the jus postliminii continues forever.

I know many writers argue, between the insurer and insured,

from the distinction "whether the property was or was not changed by the capture, so as to transfer a complete right from the enemy to a recaptor or neutral vendee, against the former owner." But arbitrary notions concerning the change of property by a capture, as between the former owner and a recaptor or vendee, ought never to be the rule of decision, as between the insurer and insured upon a contract of indemnity, contrary to the real truth of the fact. And therefore I agree with the counsel for the plaintiff, upon their second point," that by this capture, while it continued, the ship was totally lost," though it be admitted "that the property, in case of a recapture, never was changed, but returned to the former owner."

The third point depends, as every question of this kind must, upon the particular circumstances. It does not necessarily follow, that, because there is a recapture, therefore the loss ceases to be total. If the voyage is absolutely lost, or not worth pursuing; if the salvage is very high; if further expense is necessary; if the insurer will not engage, in all events, to bear that expense, though it should exceed the value or fail of success: under these and many other like circumstances, the insured may disentangle himself and abandon, notwithstanding there has been a recapture.

The Guidon, among other descriptions of a total loss where the insured may abandon, instances, "if the damage exceeds half the value of the thing; or if the voyage be lost, or so disturbed, that the pursuit of it is not worth the freight." But in the present case, the voyage was so far from being lost, that it had only met with a short temporary obstruction; the ship and cargo were both entirely safe; the expense incurred did not amount to near half the value; and upon the 26th of June, when the ship was at Plymouth, and the offer made to abandon, the insurer undertook to pay all charges and expenses the plaintiff should be put to by the capture.

The only argument to show that the loss had not then ceased to be total, was built upon a mistaken supposition, "that the recaptor had a right to demand a sale, and to put a stop to any further prosecution of the voyage." But that is not so. The property returned to the plaintiff, pledged to the recaptors for one-eighth of the value, as salvage for retaking and bringing the ship into an English port. Upon paying this, the owner was entitled to restitution; the recaptor had no right to sell the ship. If they differed about the value, the Court of Admiralty would have ordered a commission of appraise

ment.

In this case, it was the interest of the owner of the ship,