No. 6. Roux v. Salvador.

"A partial loss of an entire cargo, by sea damage, if amounting to more than half, may under circumstances be converted into a technical total loss; but not if a distinct part of the cargo be destroyed, and the voyage be not thereby broken up or rendered unworthy of being prosecuted." Seton v. Delaware Ins. Co., 2 Washington (Circ. Ct. U. S.), 175. See also, as supporting the principal case, Globe Ins. Co. v. Sherlock, 25 Ohio St. 50.

The rule of the principal case is supported inferentially by Insurance Co. v. Fogarty, 19 Wallace (U. S. Sup. Ct.), 640; Insurance Co. v. Gossler, 96 U. S. 645.

WHERE by a peril insured against the owner is disabled from recovering in specie the thing insured at the termination of the risk, there is a total loss, without the necessity of notice of abandonment.

Insurance on hides per ship A., from (inter alia) Valparaiso to any port in France, &c. Hides shipped under this policy from Valparaiso to Bordeaux were damaged by perils of the sea and landed at Rio Janeiro, where it was ascertained that they could not, by reason of the damage, be sent to Bordeaux in a merchantable condition. They were accordingly sold at Rio for one fourth of their value. Held, that there was an actual, and not merely constructive, total loss of the hides; and that the assured might recover accordingly without having given notice of abandonment.

Roux v. Salvador.

3 Bing. N. C. 266 (7 L. J. Exch. 328).

Assumpsit on a policy of assurance, subscribed by the defendant for £200. Plea, non-assumpsit.

By a special verdict it was found, in substance, that

The policy on which the action was brought was effected on goods per the General La Fayette, and other ship or ships, at and

No. 6. - Roux v. Salvador.

from, among other ports or places in the Pacific Ocean, Valparaiso, to any port or ports in France and the United Kingdom of Great Britain, with leave to touch and trade at any place in America or anywhere else; to effect all transshipments; and including the risk of craft to and from the vessel or vessels. The usual perils were insured against; and the policy, which was for £700, had the following memorandum subscribed: "N. B. Corn, fish, salt, fruit, flour, and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides, and skins are warranted free from average under 5 per cent. ; and all other goods; also the ship and freight are warranted free from average under 3 per cent., unless general, or the ship be stranded." The policy was declared to be on goods, specie, or bullion, as interest might appear: to pay average on each species of goods by following landing numbers of the value of £100 each, as if separately insured. Cocoa and hides, free of particular average, unless the ship were stranded: in case of average on the hides, the assurers were to pay the expense of washing and drying in full.

Under this policy the plaintiff, on the 6th of May, 1831, caused to be shipped on board the ship Roxalane, at Valparaiso, for Bordeaux, in France, 1000 salted hides, of the value of £1117, his property, which hides were intended to be insured by the said policy, and were duly declared thereupon, and a bill of lading duly signed by the captain in the ordinary form.

On the 13th of May, 1831, the said ship being seaworthy, with the said 1000 hides, and other hides on board thereof, set sail from Valparaiso aforesaid, on her said voyage towards Bordeaux. On the 5th of June, 1831, in the course of her said voyage, the said ship, with the said goods on board thereof, encountered bad weather and sprung a leak, and it thereby became necessary, for the safety of the ship and cargo, that the said ship should put into a port for repair, and the said ship did accordingly put into Rio de Janeiro, in Brazil, being the nearest port, for repair. On the 7th of July, 1831, the whole of her cargo was there landed; and it was then found, that the said hides were damaged by the said perils and dangers of the seas, as follows; that is to say, that they had been washed or wetted by the sea-water which had entered into the vessel through the said leak, and also by the effect of the dampness produced in the hold by the leak, and in consequence thereof a partial fermentation ensued, the progress of which could not be

No. 6. Roux v. Salvador.

stopped by any means practicable in Rio de Janeiro; and, in consequence of the progressive putrefaction of the said 1000 hides, it was impossible to carry them, or any part thereof, in a salable state, to the termination of the voyage for which they were insured: if it had been attempted to take them to Bordeaux, they would, by reason of such progressive putrefaction as aforesaid, have altogether lost the character of hides before they arrived there. On the 27th of August, 1831, at Rio de Janeiro, the said 1000 hides in the said policy mentioned, according to the ordinances of the French consul-general there, were sold, by public auction, for the gross sum of £273: the same were bought by the purchasers for the purpose of being tanned, and were tanned accordingly. The ship Roxalane being repaired, and the leak stopped which was in her bottom, she, on the 3d of October, 1831, sailed from Rio de Janeiro without the said hides in the said policy mentioned, but with such part of her cargo reloaded on board as had not been sold; and, in the course of her voyage from Rio de Janeiro to Bordeaux, was stranded at the entrance of the river Garonne, on the 29th of December, 1831. The earliest intelligence of the damage, and of the sale of the said 1000 hides, was received at the same time by Messrs. Deveaux and Company, the agents for the said plaintiff, by a letter from Bordeaux.

The Court of Common Pleas, after two arguments, having given judgment for the defendant (see 1 New Cases, 526), the cause was removed by error into the Exchequer Chamber, where it was argued in Easter vacation, 1836, by Maule for the plaintiff, and the Attorney-General for the defendant.

Maule for the plaintiff.

First, there has been such a stranding of the ship as to entitle the plaintiff to claim and recover an average loss. The condition in the policy must be taken strictly, and the insurer having consented to abide by it without qualification, it is immaterial whether the stranding was connected with the loss or not. Thus in Burnett v. Kensington, 7 T. R. 210, upon a similar condition, the ship having been stranded in the course of the voyage, the underwriters were held liable for an average loss arising from the perils of the seas, though no part of the loss arose from the act of stranding; and so strictly has such a condition been construed, that a loss occasioned by the stranding of a lighter in conveying goods. from the ship has been held not to be a stranding of the ship

within the meaning of the condition: Hoffman v. Marshall, 2 New Cases, 383.

Secondly, there was a total loss of such a nature as, whether actually or only constructively total, to render unnecessary a notice of abandonment.

Such notice was unnecessary, because, notwithstanding a portion of the goods remained in an altered shape, upon the sale of them the adventure was at an end.

The court below, in deciding that notice of abandonment was necessary, relied mainly on Mitchell v. Edie, 1 T. R. 608, Allwood v. Henckell, Park Ins. 280, and Hodgson v. Blackiston, Park Ins. 281, n. In the first two of these cases the sale was not rendered necessary by perils insured against; and in neither of them was the state of circumstances before the sale such as to make the prosecution of the adventure impossible, and to amount to a total loss, independently of the assured choosing to treat it as such; consequently, if there had been no sale, a notice of abandonment would clearly have been necessary. In the third of those cases it is not stated what was the nature of the loss; the report only states that notice of abandonment was held necessary, though the ship and cargo had been sold and converted into money, when the notice of the loss was received. It, therefore, only amounts to an authority that the sale of the ship and cargo does not of itself render unnecessary a notice of abandonment; a proposition which is not denied by the plaintiff in this cause. The three cases are all of them consistent with the proposition contended for by the plaintiff, that where a loss is of itself total, independently of the election of the assured, that is, where the subject of the insurance is placed by the peril insured against in a situation which renders the prosecution of the adventure impossible, notice of abandonment is not necessary. The cases referred to only establish the proposition, not inconsistent with the preceding, that where the perils insured against have reduced the subject of insurance to such a state as not to render the adventure impossible, but to give the assured a right by notice of abandonment to throw it upon the underwriters, and when the loss, therefore, is only total at the election of the assured, and a notice of abandonment is necessary to show that he elects so to treat it, a sale will not excuse the want of such a notice. Those cases, therefore, are not authorities for the doctrine in support of which they are cited by the Court of Common Pleas; and the case

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No. 6. Roux v. Salvador.

of Cambridge v. Anderton, 2 B. & C. 691; 1 Car. & P. 215 (in which Hodgson v. Blackiston was cited), is directly in point in favour of the plaintiff. There, the ship having got on rocks, and experienced persons giving it as their opinion, that the expense of getting off and repairing her would exceed her value when repaired, the captain sold her; and it was held that the assured might recover for a total loss without abandonment, notwithstanding the purchaser afterwards got her off and dispatched her on a voyage to England. The court below, however, relied on principle as well as on authorities, and the reasoning of the court amounts to this, that an abandonment is necessary, because it would be convenient for the underwriter to have early notice of the intention of the assured to call upon him in order that he may the better prepare his defence, or exercise the rights belonging to him as underwriter, with respect to the subject insured. This would apply to make a notice of abandonment necessary in all cases whatever of total loss, and an early notice of claim in all cases of partial loss; and, indeed, to require a prompt notice in all cases, whether arising out of contracts of insurance or not, where the defendant might be prejudiced by delay; an object which the legislature must be taken to have provided for by the Statute of Limitations. The necessity of notice of abandonment, however, does not rest on this principle, but arises out of the election which the assured has in certain cases to treat the loss as an average loss, and to carry on the adventure, or to throw the risk on the underwriters by notice of abandonment; and where the perils insured against have rendered such an election impossible, no notice of abandonment is necessary. In Read v. Bonham, 3 B. & B. 147, a notice of abandonment having been given, which the court held sufficient, the plaintiff was not called upon to contend it was unnecessary and in Parry v. Aberdein, 9 B. & C. 411, the plaintiffs, having heard of the destruction of the ship before they heard of the subsequent occurrences, were bound to abandon if they meant to claim for a total loss. On the other hand, in Doyle v. Dallas, 1 Moo. & Rob. 48, the want of notice of abandonment appears to have been thought immaterial; in Robertson v. Clarke, 1 Bingh. 445, where the ship was sold and a total loss recovered, there does not appear to have been any notice of abandonment; in Mullett v. Shedden, 13 East, 304, it is admitted that abandonment is not necessary where goods are sold by the Court of Admiralty; and in Cologan v. London Assurance Company, 5 M. & S. 447, Abbott, J. says,