No. 6. - Roux v. Salvador. - Notes.

The proposition that no abandonment is necessary where the subjectmatter insured has been actually lost to the owner by the perils insured against, is involved in Idle v. Royal Exchange Ass. Co. (Ex. 1819), 8 Taunt. 755; and Mount v. Harrison (C. P. 1827), 4 Bing. 388; which are referred to more at length in the notes to the next ruling case (No. 7). A ship got upon rocks in the River St. Lawrence in foggy and tempestuous weather. Surveyors reported that the expense of getting her off if she could be got off and repairing her, would far exceed her value when repaired. The captain and agents for the ship then sold her. The purchaser did succeed in getting her off the rock, and she was afterwards repaired and sent on a voyage. In an action by assured on ship, who had given no notice of abandonment, the plaintiff had a verdict for a total loss. The court refused a rule for a new trial. ABBOTT, C. J., said: "Whether the ship was repairable or not was left a question for the jury, and I think they disposed of it correctly. If the subject-matter of insurance remained a ship, it was not a total loss; but if it were reduced to a mere congeries of planks, the vessel was a mere wreck; the name which you may think fit to apply to it cannot alter the nature of the thing." Cambridge v. Anderton (K. B. 1824), 2 B. & C. 691, 692. In other words, it might be put thus: "If the thing was properly considered to be a mere wreck, and was properly sold accordingly, the circumstance that the purchaser made a ship of it makes no difference."

Claim for total loss under policy on ship. The ship had put into Mauritius in a damaged state; and, after survey, had been sold by the master as not worth repairing. TINDAL, C. J., in his address to the jury, said: "The only question in this case is whether, under the circumstances, there has or has not been a total loss of the vessel in consequence of the sale, and that will depend upon whether the sale was necessary for the benefit of the parties concerned. . . . In the present case it appears that the vessel was in a place where the repairs could be done, and where money could be obtained, although at an exorbitant expense. Still the question is whether the expenditure was so great that no prudent man, in the exercise of a sound and vigorous judgment, would hesitate as to the propriety of selling. If you think that if the owner had been on the spot uninsured, he would, on the exercise of a sound discretion, have repaired the vessel; or that, if an agent of the underwriters had been there, he exercising such discretion. would have repaired, then this captain ought certainly to have done so. But, if they would not have done so, then I think this captain was not compellable to repair, and the sale in such case will have taken place under a justifiable necessity." There was a verdict for the defendant, and a motion was made for a new trial. The court were of opinion that

the case had been properly left to the jury; but granted a rule nisi for a new trial on payment of costs, on the ground that the verdict was against evidence. Somes v. Sugrue (1830), 4 Car. & P. 276.

Under a time policy on ship, the loss of the voyage will not make a constructive total loss of the ship. The sale by the master of a ship while in a wrecked condition does not affect the underwriters, unless it was necessary in the sense that it was done in the exercise of a sound judgment for the benefit of all parties. Doyle v. Dallas (N. P. 1831),

1 Mood. & Rob. 48.

The following is an important case upon the construction of the ordinary memorandum, "free from average unless general or the ship be stranded":

Under a policy containing the memorandum as to (inter alia) "seed," linseed packed in bags was shipped from Calcutta to London. The ship encountered a gale, and on arrival at the Cape of Good Hope, the state of the cargo was ascertained as follows: 505 bags had been thrown out to lighten the ship; 1023 bags were so damaged that no part of them could have been delivered in a merchantable state in England, and of the linseed in these bags a great part was thrown away as worthless and the rest sold for a few shillings; the remaining 1160 bags were carried on to London and delivered sound. The question was as to the 1023 bags. The insured claimed to be paid for these as totally lost; but the insurer (defendant), under the condition of the memorandum, refused to pay anything for them. The court, reversing the decision of the Queen's Bench (who considered themselves bound by Davy v. Mitford, 15 East, 559), gave judgment for the defendant. They summed up the principle of the judgment as follows: "Where memorandum goods of the same species are shipped, whether in bulk or in packages, not expressed by distinct valuation or otherwise in the policy to be separately insured, and there is no general average, and no stranding, the ordinary memorandum exempts the underwriters from liability for a total loss or destruction of part only, though consisting of one or more entire packages, and though such package or packages be entirely destroyed or otherwise lost by the specified perils." Ralli v. Janson — Janson v. Ralli (Ex. Ch. from Q. B. 1856), 6 Ellis & Bl. 422, 25 L. J. Q. B. 300. In the case of Davy v. Mitford, above referred to, flax packed in mats was insured f. p. a. The ship was wrecked. The assured did not abandon, and got possession of part of the cargo in specie, though it turned out to be very much damaged. The assured claimed to recover as for a total loss. Lord ELLENBOROUGH said that there being no abandonment the plaintiff could not claim unless there was an actual total loss, and therefore could not recover in respect of the portion of cargo which came to his hands. But he held that he was entitled to

No. 6.- Roux v. Salvador. — Notes.

claim as on a total loss in respect of the flax which was actually lost. The principle of the latter branch of the decision has since been treated as not maintainable, and it is expressly overruled by the judgment of the Exchequer Chamber in the above case of Ralli v. Janson.

Goods were insured on board ship from Liverpool to Matamoras against perils including "restraints and detainments of kings, &c." The ship was seized by a cruiser of the U. S. Government on suspicion of containing contraband of war. A suit being instituted by the captors in the Prize Court at New Orleans, judgment was given against the captors. The captors appealed, and subsequently, on hearing of the appeal, the assured gave notice of abandonment. The ship and goods were, by order of the court, detained pending the appeal, and ultimately, by order of the same court, sold. The owners of the goods might have prevented the sale by a deposit of, or giving bail for, the value; but the circumstances were such that a prudent uninsured owner would not have done so. Held, in the Queen's Bench, that although the notice of abandonment was too tardy, the sale was a consequence of the seizure, and a total loss for which the assured were entitled to recover without notice of abandonment. Stringer v. English, &c. Insurance Co. (1869), L. R., 4 Q. B. 676, 38 L. J. Q. B. 321. This decision was affirmed in the Exchequer Chamber (1870), L. R., 5 Q. B. 599, 39 L. J. Q. B. 214. Although that court did not expressly decide that the assured were so entitled to recover without notice of abandonment, it may be inferred that they would, if necessary, have held the notice to be immaterial.

The master of a vessel has no power to sell so as to affect the insurers except under circumstances of stringent necessity. So in a case where the vessel had grounded on a shoal, and the court, upon the evidence, came to the conclusion that she was uninjured and not in imminent peril, and that she might by greater exertions on the part of the captain and crew have been brought into safety, as she ultimately was brought off without much difficulty by the purchaser from the master, it was held that the assured were not entitled to recover as on a total loss. Cobequid v. Mar. Ins. Co. Barteaux (1875), L. R., 6 P. C. 319. There are a number of cases, not involving the question of a claim for total loss on a policy, where the circumstances under which the master of a ship is justified in selling the cargo have been considered. The principle is that as against the owner of the goods, the master, in order to justify the act of selling them, must establish (1) a necessity for the sale; (2) inability to communicate with the owner and obtain his directions. The leading case is Australasian Steam Nav. Co. v. Morse (P. C. on appeal from N. S. Wales, 1872), L. R., 4 P. C. App. 222. Other cases are Van Omeron v. Dowick (Lord Ellenborough at N. P. 1809), 2 Camp. 42; Campbell v. Thompson (1816), 1 Stark. 399; Free

No. 6. Roux v. Salvador. - Notes.

man v. E. I. Co. (K. B. 1822) 5 B. & Ald. 617; Tronson v. Dent (P. C. on appeal from Hong Kong, 1853), 8 Moore P. C. 419; Acatos v. Burns (C. A. 1878), 3 Ex. D. 282, 47 L. J. Ex. 566; Atlantic Mutual Ins. Co. v. Huth (C. A. 1880), 16 Ch. D. 474. The leading authority in affirmance of the master's power under such conditions is The Gratitudine (Adm. 1801), 3 C. Rob. 196. That was a question of hypothecating the cargo, but it impliedly covers the case of a sale, and imports the motive of prosecuting the voyage where that is possible, as entering into the question of necessity.

Upon a constructive total loss happening to an insured ship, where notice of abandonment is given by the owners to the original insurers, there is no necessity for the latter to give notice to the insurers upon a policy of reinsurance. Uzielli v. Boston Marine Ins. Co. (C. A. 1884), 15 Q. B. D. 11, 54 L. J. Q. B. 142.

The decision in Stringer v. English, &c. Assurance Co. was followed in 1885 by MATHEW J., in Levy v. Merchants' Marine Ins. Co., 52 L. T. 263.

A ship insured against (inter alia) barratry of the master and crew, is by their barratrous act left derelict; and subsequently brought in by salvors and sold, under decree of a competent court, for less than the actual cost of salvage services. Such a sale constitutes an actual, and not merely constructive, total loss; and the claim as for a total loss is good although no notice has been given of abandonment. Cossman v. West (P. C. 1887), 13 App. Cas. 160, 57 L. J. P. C. 17.

AMERICAN NOTES.

Without an abandonment, there can be no recovery for a mere constructive total loss arising from an injury to more than half the value of the vessel. Peirce v. Ocean Ins. Co., 18 Pickering (Mass.), 83; 29 Am. Dec. 567. Here SHAW, Ch. J., observed: "A question has been made, whether a claim for a total loss does not necessarily imply an abandonment. It is difficult to answer a question thus nakedly presented. Upon principle it would seem that a mere claim for a total loss does not necessarily imply an abandonment, because in some cases a total loss may be recovered without abandonment. Idle v. Royal Exch. Ass. Co., 8 Taunt. 755. But commonly a claim for a total loss will be accompanied by a statement of facts and circumstances, by the reasons and grounds of claim upon which the assured proceeds, and such statement of the grounds of claim may perhaps carry as plain an implication of actual abandonment as could be done by express words; though it was stated by Lord Ellenborough that an implied parol abandonment is too uncertain, and cannot be supported. Parmeter v. Todhunter, 1 Campb. 541."

But where a sale is necessarily made on account of injury, abandonment is not necessary to enable the insured to recover for total loss. Prince v.

Ocean Ins. Co., 40 Me. 481; 63 Am. Dec. 676; Howland v. India Ins. Co., 131 Mass. 254.

"When a steamboat, injured at or near a home port by a peril insured against, remains in specie, the assured cannot, without abandoning the vessel to the underwriter, claim indemnity as for a total loss, although the cost of repairing the vessel may exceed its value when repaired." Globe Ins. Co. v. Sherlock, 25 Ohio St. 50. The principal case was cited by counsel on both sides.

No abandonment is necessary where there is nothing which, on abandonment, can pass to be of value to the underwriters.

By a charter-party entered into respecting a ship on her outward voyage to New Zealand, the ship, after discharging in New Zealand, was to sail to Calcutta, and “being there tight, staunch, and strong, and every way fitted for the voyage," the charterer was to put on board a specified cargo for England at a stipulated freight. The owners shortly afterwards effected a policy on homeward chartered freight valued at £ The ship was damaged by perils of the sea on her voyage to New Zealand, and was patched up as well as could be done in a New Zealand port for her voyage to Calcutta. The ship was overhauled at Calcutta, and it was found that the expense of repairs would exceed the value of the ship when repaired plus the difference between the chartered and the current freight to England. The owners then gave notice of abandonment to the insurers of the ship. It was admitted that the damage to the ship was such as to amount to a constructive total loss if the notice had been given in time; but in an action against the underwriters on the ship it had been decided that the notice was not given in time: