that inasmuch as freight may be the subject of a separate insurance, it may also be separately abandoned. But this argument is built upon an assumption that an abandonment of freight convey to the abandonee a right to the freight, in preference to the right of the abandonee, of the ship, which is assuming the whole question. As well might it be argued that as the underwriter on freight is aware that the ship may be separately insured, he must be, therefore, taken to know than an abandonment of the ship will convey all the incidents belonging to it to the abandonee. The practice, therefore, of insuring ship and freight separately, seems to me to afford no argument whatever either way to show what the law is or ought to be. If it had been the practice that upon separate insurances, the abandonee of freight should take the freight notwithstanding an abandonment of the ship, such a practice might have afforded a construction, but we do not find that there has been any such practice." Holroyd, J.-" It appears to me that when the shipowner abandons his ship to the underwriter, the latter stands in all respects as to future benefit in place of the owner. It follows, as a consequence of abandoning the ship, that the owner divests himself of his right to freight, which is incident to the ship, and the same becomes vested in the abandonee, to whom it is competent to possess himself of the ship, and if she be unfreighted, to endeavour to obtain for her a freight. And if the ship be freighted, yet, as it seems to me, the underwriter is not bound to complete the voyage, because the rights of the owners of the goods laden on board, personal, lying in contract with the shipowner and not running with the ship, and being in respect of a personal chattel, an action lies not against the underwriter, but the shipowner alone." (a) are Semble, that if freighted, yet the ship be the underwriter is not bound to complete the voyage, because the rights of the owner of the goods on board are personal only In Green v. The Royal Exchange Company, (b) which against the (a) A learned foreign writer in commenting on the 15th article, tit. Insurance, which prohibits the insurance on freight, is of opinion that freight is an incident to the shipowner and not running with the ship. Within what time the aban be made. 1. By the laws of foreign countries. was an action on a policy on freight, and where the ship after having received her cargo was, by sea-damage, so disabled as to make it impossible for her to bring it home, the question was whether an abandonment was necessary? The Court of Common Pleas held it was not, Lord Chief Justice Gibbs observing, "he could not understand what there was to be abandoned." (a) 1. In many of the maritime countries on the continent of donment must Europe, the time, within which the abandonment must be made, is fixed by positive regulations. Thus in France, (b) it is ordained, that all cessions or abandonments, as well as demands in virtue of the policy, shall be made as follows:In six weeks, for losses happening on the coasts of the country where the insurance was made; in three months, in other provinces of our kingdom; in four months, on the coast of Holland, Flanders, and England; in a year, Spain, Italy, Portugal, Barbary, Muscovy, Norway; and in two years, for the coast of America, the Brazils, Guinea, and other distant countries. When these terms are elapsed, the demands of the assured shall not afterwards be admitted. In cases of detention, the same ordinance provides, that the abandonment shall not be made before six months, if it happen in Europe or Barbary. If in a more distant country in a year; both to commence from the day of the notifying this detention to the insurers. A similar regulation to that lastmentioned is to be found in the ordinances of Bilboa. (c) 2. By the law of England, the assured ought to aban don as soon as they receive intelligence of the loss. In the law of England till lately we had no limitation of time, with respect to abandonment. But from what has been said in the preceding part of this section, it would appear, that the insured has a right to call upon the underwriter for a total loss, and of course to abandon, as soon as he hears of such a calamity having happened, his claim to an indemnity not being at all suspended by the chance of a future recovery of part of the property lost: because, by the abandonment, (a) See also Idle v. Royal Exch. Comp. 8 Taunt. 755. Harrison, 4 Bing. 388. Mount v. (b) Ord. of Lou. XIV., tit. Insurance, art. 48. (c) Art. 49; 2 Mag. 416. that chance devolves upon the underwriter, by which means the intention of the contracting parties is fully answered, and complete justice is done. (a) Thus in the case of Allwood v. Henckell, (b) an action on a policy of assurance on linen on board the Amphitrite, at and from London to Jamaica. The Amphitrite was taken by a French privateer within a few leagues of Jamaica. Part of the property insured was plundered and taken out of the ship. The captain, boatswain, and all but seven men, were taken out of her; a fortnight after she was captured, as the captors were making their way to America, the ship, with the remainder of her cargo, was retaken by an English frigate, and taken under a prize-master to Antigua. The ship and cargo were both sold under a decree of the Vice-Admiralty Court of Antigua, by a prizeagent, who received the proceeds, and was to pay them over to the concerned, upon payment of one-eighth salvage pursuant to the last Prize Act. The capture and recapture were entered at Lloyd's on the 15th of February, 1795; but it was not known where the ship was carried till the 30th of March, when a letter was received at Lloyd's addressed to the owners and freighters and underwriters on ship Amphitrite and cargo, from the Judge of the Vice-Admiralty Court of Antigua, informing them of the arrival and sale of the ship and cargo, under a decree of the Court, and desiring to have some agent appointed to remit the proceeds to England. Powers of attorney were sent out in April by the assured for this purpose; and the proceeds were desired to be remitted to the banking-house of Smith, Payne, and Smith, one of which gentlemen was agent to the assured. The defendant was acquainted in April of the loss (a) See ante, p. 371; and see ante, p. 364, where Lord Abinger, in Roux v. Salvador, says, "But if he elects to do so, as the insured, or a portion of it still exists, and is vested in him, the very principle of the indemnity requires that he should make a cession of all his (b) Guild. sit. in B. R. after but no abandonment was proved to have been made till August, near four months after Mr. Payne, who was the plaintiff's agent, had sent out the power of attorney. On the part of the plaintiff, it was contended that, admitting there was no abandonment, in this case the property having been absolutely sold and converted into money, before the parties knew where the ship was taken to, the loss was absolutely total in its nature; and, therefore, there was no occasion for an abandonment. Lord Kenyon, though he did not give any decided opinion upon this point, inclined to think, "that an abandonment was necessary, and that the case was the same as if the property had remained in specie at Antigua, and had not been sold. That the assured is not bound to abandon in any case; and might, in case the sales had been very advantageous, have taken the benefit of them in the same manner as they might have retained this property, if it had remained in specie. But the assured must make his election speedily, whether he will abandon or not, and put the underwriter into a situation to do all that is necessary for the preservation of property, whether sold or unsold. He cannot lie by and treat the loss as an average loss, and take measures for the recovery of it and afterwards without communicating that fact to the underwriters, and abandon to the letting them know that the property is abandoned to them." (a) Verdict for plaintiff, subject to an account as for average loss. The assured must make his election speedily. He cannot lie by and treat the loss as an average loss, underwriters. The making the election to abandon speedily, or in the first instance, means the earliest opportunity after they have examined into the state of the cargo; but they are not to lie by, in order to govern their determination by the rise or fall (a) See also Anderson v. The Royal Exchange Assur. Comp. 7 East, 38, and Barker v. Blakes, 9 East, 283. See also Parmeter v. Todhunter, 1 Camp. 591. In the case of Hodgson and another v Blackiston, sitt. after Hil. Term, 38 Geo. 3, in the King's Bench, it was held, that a notice of abandonment was necessary, though the ship and cargo had been sold and converted into money when the notice of the loss was received. of the market. (a) Nor can the assured, when they have not abandoned in the first instance, afterwards do so, when they find in the result that the salvage and expenses exceed the value of the ship. (b) But if the insured, hearing that his ship is much disabled and has put into port to repair, express his desire to the underwriters to abandon, and be dissuaded from it by them, and they order the repairs to be made, they are liable to the owner for all the subsequent damage occasioned by that refusal, though it should amount to the whole sum insured. Because the reason why notice of abandonment is deemed necessary, is to prevent surprise or fraud upon the underwriter; but in the case put, they have, by their own act, superseded the necessity of notice. (c) And where the assured were guilty of a laches of five days in offering to abandon after the time, when by the usual course of the post they must have received intelligence of the loss, the notice was held to be too late. (d) And so an underwriter is bound to say within a reasonable time after notice of abandonment, whether he will accept it or not. (e) An abandonment may be by parol, but it should be certain; and therefore a statement of the facts, a request to settle for a total loss, and to direct the disposal of the ship, have been held insufficient. The word "abandon" ought to be made use of. (f) And where a letter, addressed to the assured, stating that the ship had been forced on shore and a quantity of sugars damaged, was shewn by the broker to the underwriters, and they in answer directed that "the assured would FF |