No. 1. Goss v. Withers.

loss as to leave no possibility of a recovery. If the owner himself should retake at any time, he will be entitled; and by the act of Parliament, if an English ship retakes at any time (before condemnation or after), the owner is entitled to restitution upon stated salvage. This chance does not suspend the demand for a total loss upon the insurer; but justice is done by putting him in the place of the insured, in case of a recapture.

In questions upon policies, the nature of the contract, as an indemnity and nothing else, is always liberally considered. There might be circumstances under which a capture would be but a small temporary hindrance to the voyage, perhaps none at all, as if a ship was taken, and in a day or two escaped entire and pursued her voyage. There are circumstances under which it would. be deemed an average loss; if a ship taken is immediately ransomed by the master and pursues her voyage, there the money paid is an average loss. And in all cases the insured may choose "not to abandon."

In the second part of the "Usage and Customs of the Sea" (a French book translated into English), a treatise is inserted called a "Guidon," where,1 after mentioning the right to abandon upon a capture, he adds, "or any other such disturbance as defeats the voyage, or makes it not worth while, or worth the freight, to pursue it."

I know that in late times the privilege of abandoning has been restrained for fear of letting in frauds; and the merchant cannot elect to turn what, at the time when it happened, was in its nature. but an average loss, into a total one by abandoning. But there is no danger of fraud in the present case. The loss was total at the time it happened. It continued total as to the destruction of the voyage. A recovery of anything could be had only upon paying more than half the value (including the costs). What could be saved of the goods might not be worth the freight for so much of the voyage as they had gone when they were taken. The cargo from its nature must have been sold where it was brought in. The loss as to the ship could not be estimated, nor the salvage of half be fixed by a better measure than a sale. In such a case there is no color to say that the insured might not disentangle himself from unprofitable trouble and further expense, and leave the insurer to save what he could. It might as reasonably be argued 1 G. 7, § 1

that if a ship sunk was weighed up again at a great expense, the crew having perished, the insured could not abandon, nor the insurer be liable, because the body of the ship was saved.

We are therefore of opinion that the loss was total by the capture; and the right which the owner had after the voyage was defeated, "to obtain restitution of the ship and cargo, paying great salvage to the recaptor," might be abandoned to the insurers, after she was brought into Milford Haven.

Let the postea be delivered to the plaintiff in both causes.

ENGLISH NOTES.

Insurance on ship "at and from Liverpool to the coast of Africa during the stay and trade there, and from thence to ports of discharge, &c., in West Indies and America." The perils insured against included barratry. While the captain is on shore in Africa, the crew mutiny and take possession of the ship, with intent to carry her to Cayeene. But the boatswain, to whom they entrust the navigation, sails her to Barbadoes, where she is boarded by a King's ship: the ringleaders are seized and some executed. Government agent, having taken charge of the ship, found it necessary to sell cargo and stores; and on his advice reaching the owners of the ship, they abandon. Subsequently the Government agent, after giving the owners the opportunity of buying the ship, sells her. Decision, by Lord ELDON, that the assured were entitled to abandon and recover as for a total loss. Brown v. Smith, H. L. appeal from Scotland (1813), 1 Dow, 349.

When, upon intelligence of capture of ship, the assured have given notice of abandonment, and the abandonment is accepted by the underwriters, the assured are entitled to recover as on a total loss, although before action is commenced intelligence has arrived of a recapture having actually occurred before the abandonment. Acceptance may be inferred from a statement by an authorized agent of the underwriters, in regard to the abandonment, to the effect that he is satisfied. Smith v. Robertson, H. L. on appeal from Scotland (1814), 2 Dow, 474. Upon this case it is to be observed that there were some expressions of Lord ELDON which suggest a doubt as to the principle of the decision of the King's Bench in England in Bainbridge v. Neilson (No. 9, post); namely, that the facts constituting a total loss must exist at the time of the abandonment. The decision in Bainbridge v. Neilson, however, confirmed as it is by Naylor v. Taylor (K. B. 1829), 9 B. & C. 718, and the authorities there cited, must now be considered as having settled the principle so far as relates to English law.

No. 1.-Goss v. Withers. - Notes.

Insurance on ship for a voyage.

The ship, having sprung a leak, was deserted by the crew bonâ fide for preservation of their lives. She was found the following day, taken possession of by another crew, and towed into a place of safety. Before news of the latter circumstance reached the owners, they had abandoned. The salvage services and repairs were such as to equal or exceed the value. Held, that the owners, who had abandoned immediately on hearing of the ship being a derelict, might recover as for a total loss. Holdworth v. Wise (K.B. 1828), 7 B. & C. 794; 6 L. J., K. B. 134. It is to be observed that in the judgment delivered by BAYLEY, J., some reliance is placed on. the circumstance that the abandonment was made before news arrived of the ship's safety. He says (p. 799): "If at one period of time there was a total loss and an abandonment before news of the vessel's safety had been received, her subsequent return did not entitle the underwriters to say that it was no longer a total loss." This is not the law. It is now clear upon the authorities that if, at the time of the abandonment, the circumstances constituting a total loss had been in fact displaced, although at the time of the abandonment the news of safety had not arrived, the assured would not be entitled (the abandonment not having been accepted) to recover as on a total loss. Patterson v. Ritchie; Naylor v. Taylor, supr. cit. But in Holdsworth v. Wise the ship was at no point of time recoverable by the owners except at a cost exceeding her value; and the decision on this ground is still an authority.

Ship insured from Valparaiso to Liverpool was captured by pirates, recaptured by a British war-vessel, and brought back to Valparaiso in charge of a prize-master. On intelligence of these facts reaching the shipowner together, he gave notice of abandonment, which the underwriters refused to accept. Under the charge of the prize-master the ship sailed from Valparaiso for Liverpool; and meeting with bad weather put into an intermediate port, where she was unjustifiably sold. Held, that the owners, never having since the capture had the actual possession, or the means of obtaining it, were entitled to recover as for a total loss. Lord CAMPBELL, C. J., said, "The cases referred to (Holdsworth v. Wise, 1828, 7 B. & C. 794; 6 L. J., K. B. 134; Parry v. Aberdein, 1829, 9 B. & C. 411; 7 L. J., K. B. 260; McIver v. Henderson, 1816, 4 M. & S. 576) establish the principle that, if once there has been a total loss by capture, that is construed to be a permanent loss, unless something afterwards occurs by which the assured either has the possession restored, or has the means of obtaining such restoration." Dean v. Hornby (Q. B. 1854), 3 Ell. & Bl. 180, 190; 23 L. J., Q. B. 129.

As to the inference of acceptance of abandonment, see also Provincial

No. 1. Goss v. Withers. Notes.

Ins. Co. of Canada v. Leduc, P. C. on appeal from Canada, 1874, L. R. 6 P. C. App. 224; 43 L. J., P. C. 49 (cited under No 10, post).

Silk goods of the plaintiff's were insured from Japan to London under a policy which included overland transit through France, and covered the risk (inter alia) of "restraints and detentions of kings, &c." The goods were on their transit through Paris at the time when all traffic was stopped in consequence of the blockade (in 1870) by the German armies. This state of things continued until after notice of abandonment had been given, and the action commenced. Held, by the judgment of the Court of Common Pleas, affirmed in the Exchequer Chamber, that the plaintiffs were entitled to recover as on a total loss. Rodonachi v. Elliot (1873, 1874), L. R. 8 C. P. 649; 9 C. P. 518; 42 L. J., C. P. 247; 43 L. J., C. P. 518.

On an insurance effected by the charterer of a ship, where it was expressly stipulated that the underwriters should pay a total loss in case the ship should not be allowed by the Russian Government to load a cargo at St. Petersburg on the chartered voyage, it was held that this was a lawful and not a wagering policy, and that, the event having happened, the assured was entitled to claim as on a total loss. Puller v. Staniforth (1809), 11 East, 232. 10 R. R. 486.

AMERICAN NOTES.

Where a policy provided that no abandonment of the neutral property should take place in case of capture or detention by the British, until condemnation and production of the court and sentence of condemnation, nor in case of capture or detention by any other power, until production of a similar document or satisfactory reasons for its non-production, it was held that the right to abandon for capture was restrained until after condemnation, whether by the British or another power. De Peau v. Russell, 1 Brevard (South Carolina), 441; 2 Am. Dec. 676. It was also held that there could be no abandonment, if before giving notice thereof, the insured learned that the vessel had been released, and had proceeded on her voyage and arrived in safety at her destination.

But when the vessel was captured, and the insured notified the insurer and abandoned her during her detention, and the insurer refused to accept, this was held to fix the insurer's liability as for total loss although the vessel was subsequently restored and arrived safely at her destination. The test was the situation at the time of the abandonment. Lee v. Boardman, 3 Mass. 238; 3 Am. Dec. 132; Marshall v. Delaware Ins. Co., 4 Cranch (U. S. Sup. Ct.), 202. And in New York, in Church v. Bedient, 1 Caines Cases (Ct. of Errors), 21, in 1804, it was held, overruling previous decisions, that a restoration previous to the abandonment, although unknown to the insured, defeats the abandonment. Citing the principal case.

Where the loss by the terms of the policy is payable at a given time

after notice, it subsists as for total loss, although during the period of credit it ceased to be total. Munson v. New England Ins. Co., 4 Mass. 88.

The capture must be actual. Fear of capture and consequent discontinuance of the voyage will not justify abandonment. Richardson v. Maine Ins. Co., 6 Mass. 102; 4 Am. Dec. 92 (citing Hadkinson v. Robinson, 3 B. & P. 388); Craig v. United States Ins. Co., 6 Johnson (N. Y.), 226; 5 Am. Dec. 222; Brewer v. Union Ins. Co., 12 Mass. 169; 7 Am. Dec. 53; Savage v. Pleasants, 5 Binney, 403 (Penn.); 6 Am. Dec. 424.

The abandonment, having duly been made, is not prejudiced by subsequent efforts of the captain to effect a compromise with the captors. Jumel v. Marine Ins. Co., 7 Johnson (N. Y.), 412; 5 Am. Dec. 283.

The right of abandonment is not affected by the supercargo's neglect to put in a claim to the vessel. By WALWORTH, Chancellor, Ocean Ins. Co. v. Francis, 2 Wendell (N. Y.), 64; 19 Am. Dec. 549.

The vessel may be abandoned if the difficulty of recovering her is great and the probability small. Thompson v. Mississippi, &c. Ins. Co., 2 Louisiana, 228; 22 Am. Dec. 129, citing the principal case.

Where a vessel is prevented from entering any port mentioned in her instructions, and compelled to terminate the voyage at a place to which she was ordered by a vessel of war, she may be abandoned. Symonds v. Union Ins. Co., 4 Dallas (U. S. Circ. Ct.), 417; and so where she is prevented from entering by an embargo, McBride v. Marine Ins. Co., 5 Johnson (N. Y.), 299; or by blockade, Schmidt v. United Ins. Co., 1 Johnson (N. Y.), 249.

There is a constructive total loss of cargo where it is captured, seized, or detained. Marine Ins. Co. v. Tucker, 3 Cranch (U. S. Sup. Ct.), 357 ; Dorr v. New England M. Ins. Co., 4 Mass. 221; Clarkson v. Phoenix Ins. Co., 9 Johnson (N. Y.), 1; Dutilh v. Gatliff, 4 Dallas (Penn.), 446.

WHERE insured ship is so much damaged by a peril insured against as to be not worth repairing, which is a question for the jury, it is a total loss; and the assured may abandon, and recover the value stated in the policy, although it exceeds the estimated repairs.