possession of the assured. From that time it became to them a total loss. The payment of the wages at Barbadoes, and the sending home the one hundred and eighty-six logs, were not the acts of the assured, or of any person authorized by them. I think, therefore, that this was a total, and not an average loss." In the case of Gardiner v. Salvador (a), which was an action on a policy of insurance, where a total loss by perils of the seas was alleged in the declaration, it was proved that the ship was driven by a current on a rock. The captain consulted with several persons, who were of opinion that it was impossible to get her off, and that the best course was for him to sell her as she lay, which he accordingly did. The purchaser succeeded in getting her off in five days, and the whole cost to him, including the price he paid for the stores, amounted to 750%. Her value, after the repairs, was stated to be 1,2001. Bayley, B., told the jury, "The ques tion in this case is, whether you are satisfied there has been a total loss by perils of the seas. I know no such head of insurance law as loss by sale. If the situation of the ship be such, that by no means within the master's reach it can be treated so as to retain the character of a ship, then it is a total loss. If the captain, by means within his reach, can make an experiment to save it with a fair hope of restoring it to the character of a ship, he cannot by selling it turn it into a total loss." The defendants had a verdict. In a recent case of Doyle v. Dallas (b), tried before Lord Tenterden, at Guildhall, on a policy of insurance on the ship Triton, averring a total loss by perils of the sea, it appeared that the vessel, having been taken by a pilot to the inner roads at Buenos Ayres, and anchored there, struck upon an anchor, and, in spite of the efforts made to move her, ultimately sunk, and lay on her side, completely under water at high tide and partly under at low ebb. The cargo was almost entirely discharged. The ship was surveyed by some captains (a) 1 M. & Rob. 116, and see Tanner v Bennett, R. & M. 182. (b) 1 M. & Rob. 48. A ship being sold by the owner and soon wrecked was afterwards got off by the purchaser, though at great expense. The owner cannot treat this as a total loss if the ship was likely to be repairable so as to come home which would owner for the cannot be made fit to carry the cargo origin ally intended for her. The loss of the voyage will not of ships, approved of by the owner and by Lloyd's agent at with any cargo Buenos Ayres, and they advised that she should be sold, on remunerate the the ground that the expense of raising her would probably sum laid out on be greater than she was worth. She was therefore sold, and her, though she was ultimately got off by the purchaser, but at great expense. The value of the Triton before the accident was about 2,3002. or 3,000%., the insured valued was 2,500l.; the expense of raising her and having her repaired amounted, in the whole, to about 1,350. If she had been coppered (which she ought to have been in order to carry the cargo in question) she would have cost 300l. more. But, repaired as she had been, she might have sailed for England in ballast, or with some kind of a cargo: and she was in fact used by her owner as a coasting vessel at Rio Janeiro. On this state of facts, the plaintiff claimed to recover for a total loss; the defendant contended that it was an average loss only, and paid into Court a sum sufficient, as he alleged, to cover the amount. make a con structive total loss of the ship on a policy on the ship only. Lord Tenterden, in summing up to the jury, said:"The only question is, whether this amounts to a total loss? The ship is not bodily and specifically lost; but circumstances may have occurred which, according to the law established in cases of marine insurance, are equivalent to a total loss. I think the circumstances in this case will have that effect if at the time of the sale that measure, on the sound exercise of the best judgment, appeared most beneficial to all parties. It is not enough that the owner acted honestly in the sale, and intended to do for the best: the underwriters are not liable, unless he formed a correct judgment, that is to say the best and soundest judgment which could be formed under the circumstances which then existed. Nothing less than this will make a total loss, while the ship continues in existence." His Lordship, then, after referring to the evidence respecting the probability of raising the vessel, and of the expense of repairing her, proceeded thus:-"Besides this evidence of expense, it is proved that, after all these repairs, the ship was still unfit to sail for England with a cargo of hides—such a cargo as the plaintiff had contracted for. I do not think that circumstance enough to justify the sale. The underwriters do not undertake that the ship shall be able to take this or that cargo. If the ship could have come to England even in ballast, I think (certainly with any cargo), so that on her arrival she would have been worth the money expended on her, she ought to have been repaired for the purpose. The loss of the voyage will not, in my opinion, make a constructive total loss of the ship. Some cases have been so decided; but as the thing insured remained in specie, I do not think that amounted to a total loss. The best thing for the underwriters must be done not merely for the owner, and as they indemnify only against the loss of the ship, the loss of the royage would not injure them. Taking all the circumstances into your consideration, if you are of opinion that the plaintiff, acting as he did, exercised a sound judgment as well for the benefit of the underwriters as for his own interest as owner, and did what at the time was best for all parties, your verdict will pass for the plaintiff; if otherwise, for the defendant." Verdict for the defendant. A motion was afterwards made for a new trial, which was refused. The general convenience of making an abandonment, has led to an opinion that it is more necessary than it really is. A party is not, in any case, obliged to abandon, neither will the want of abandonment oust him of his claim for that which is an average or a total loss, as the case may be. Where there is an abandonment, the risk is thrown upon the underwriters; where there is no abandonment, the party takes the chance of recovering according to his actual loss. Without an abandonment, an average loss may be recovered: abandonment is only necessary to make a constructive total loss (a). But where the thing subsists in specie, and there is a chance of its recovery in order to make a total loss, there must be an abandonment (b). (a) By Lord Ellenborough in 309. Mellish v. Andrews, 15 East, 14, and in Mullett v. Shedden, 13 East, (b) By Lord Ellenborough in Tunno v. Edwards, 12 East, 491. In what cases donment must be given, notice of aban Where the thing insured subsists in specie and there is some chance of its recovery there must be an abandonment. Where there is tion of the The question as to the necessity of making an abandonment in certain cases in order to enable the assured to recover for a total loss, it has already been observed, has been the subject of many recent and important decisions, by which the law appears to be now quite settled (a). The case of Mellish v. Andrews (b), and Mullett v. a total destruc- Shedden (c), just referred to, fully support the doctrine that where there is a total destruction of the subject-matter of the insurance, no notice of abandonment is necessary. thing insured abandonment is not neces sary. Where a ship jured by perils is so much in able at all without an expense exceeding her value when repaired, the assured may recover without abandonment. So in the case of Cambridge v. Anderton (d), which was tried before Abbott, C. J., at Guildhall, it appeared that the ship, which was insured from Quebec to Bristol, set sail from of the sea as not Quebec, and about two hundred and twenty miles below to be repairQuebec, got upon the rocks in the river St. Lawrence in foggy and tempestuous weather; she was there much injured, and surveyed by experienced persons, who gave it as their opinion, that the expense of getting her off (if it could be giving notice of accomplished) and repairing her, would far exceed the value of her when repaired. Under these circumstances, the captain and the agents of the plaintiff sold the ship with her certificate of registry. The purchaser did succeed in getting her off, took her back to Quebec, and repaired her; she afterwards sailed on a voyage to England, but was lost in the Gulph of St. Lawrence; the plaintiff never gave any notice of abandonment to the underwriters. The Lord Chief Justice told the jury that if, under the circumstances in evidence, they thought that the ship was not repairable at all, or that when repaired, she would not be worth the expense of doing the repairs, the plaintiff was entitled to recover for a total loss, but that otherwise they could claim for an average loss only. The jury found a verdict for a total loss. Upon a motion for a new trial, Abbott, C. J., said, "If the subject-matter of the insurance remained a ship, it was not a total loss, but if it was reduced to a mere congeries of planks, the vessel was a (a) See the judgment in Roux v. Salvador, 4 Scott, p. 32, and ante, pp. 149, 353, 355, of this Treatise. (b) 15 East, 13. (d) 2 B. & C. 691. mere wreck, the name which you think fit to apply to it cannot alter the nature of the thing” (a). And the same learned Judge expresses himself in nearly the same terms in the case of Allen v. Sugrue (b), which was an action of a policy of insurance on a ship valued at 2,000l., and averring a total loss by perils of the sea. The ship had been stranded at the entrance of the Hull dock; it was proved that it would have cost 1,450l. to have repaired her, and when repaired, she would not have been worth that sum. It was contended for the defendants, that the plaintiff could not recover for a total loss, as in that case they would receive 2,000, whereas the expense of repairing the damage would not be more than 1,450., and that as the defendant had paid sufficient into Court to recover that sum, the plaintiff should be nonsuited. On the rule nisi, Lord Tenterden thus expresses himself, "I am of opinion that the question whether the loss sustained is an average or a total loss, is precisely the same when the value of the ship has been mentioned in the policy, and when that has been left open. If the value has not been mentioned, it must be ascertained by evidence; if it has been mentioned, then all further inquiry is unnecessary, as the parties have agreed as to what shall, in the event of loss, be considered the value. If underwriters find, by expe rience, the practice of entering into valued policies is injurious to them, they may very easily avoid it for the future. Then was this a total loss? The jury have found that the ship was so much damaged as not to be worth repairing, or in other words, that although the materials of the ship remained, the ship itself did not. That in my mind constitutes a total loss, and it would be strange if this were otherwise, for the ship ceased to exist for all useful purposes as a ship. A total loss of the ship, therefore, ought to be paid for, and that is the sum agreed upon as the estimated value of the ship, minus the value of the materials saved." The case of Hadkinson v. Robinson (c), which is a leading (a) And see Robertson v. Clarke, 1 Bing. 445. (b) 8 B. & C. 561. |