do the best they could with the injured property," this letter was held not to amount to a notice of abandonment, but merely to impart a wish that the assured would make the average loss as light as possible. (a)

OF AVERAGE LOSSES.

We come now to the second division, which we mentioned at the commencement of this section, of "losses and misfortunes," which are the words expressed in the policy, and have been taken, with the concluding sentence, for the subject of the present section. We have already seen that in many instances the law, as well as the terms of the policy (which it in fact only interprets), justifies and enjoins the assured to act, in the case of an accident, in the best manner that they are able, in regard to the thing insured, for the benefit of all concerned. And we have, in many of the preceding cases on the subject of total losses and abandonment, seen in the cases either where, as has been laid down, an abandonment is necessary to render a constructive loss a total one, by which the assured can recover from the underwriters the whole sum insured, and in the other cases where, as we have also seen, that the adventure and thing insured is so absolutely destroyed in whole or in part, so as to render the loss total, without any need of notice of abandonment, it is in both of these cases proper for the assured, or his agents, to save as much of the thing insured as they are able; and in the case of a sale either of a ship which is not considered worth repairing, or in the case of goods which are, although perhaps in existence in specie reduced to a certain degree, yet would be most clearly and entirely annihilated and good for nothing, if attempted to be sent by another ship to the end of their original destination: it is, I say, the duty of the assured to take care of the money proceeding from such sale while

(a) Thelluson v. Fletcher, 1 Esp. 73.

invested in him, for the benefit of all concerned in the adventure. As Lord Abinger, in the judgment of Roux v. Salvador (a), observes that, in all these cases, "not only the thing assured, or part of it, is supposed to exist in specie, but there is a possibility, however remote, of its arriving at its destination, or at least of its value being in some way affected by the means which may be adopted for the recovery or preservation of it. If the assured prefers the chance of any advantage that may result to him beyond the value insured, he is at liberty to do so; but then he must also abide the risk of the arrival of the thing insured in such a state as to entitle him to no more than an average loss. If in the event the loss should become absolute, the underwriter is not the less liable upon his contract, because the assured has used his own exertions to preserve the thing insured, or has postponed his claim till that the event of a total loss has become certain which was before uncertain." This principle must equally apply to all cases, whether they turn out total losses or merely average ones. I must, however, observe, before we enter on the consideration of average losses in particular, that there is in the after part of the policy a clause, called the

memorandum," by which the underwriters protect themselves from the payment of average losses on the insurance of some particular goods, unless general, or the ship be stranded. Of this more hereafter, when we come to the memorandum itself.

In the case I have just mentioned, where one point of the case was, whether the loss was an average or total loss, Lord Abinger observes, "that upon the first point it had been contended that even if these goods (hides) had not been excepted from average loss by the memorandum (unless upon condition of the stranding of the ship), there would not in that case be a total loss, and that, a fortiori, being goods so expressly excepted from average loss by the policy, they could not become totally lost so long as any part of them remained in specie at the termination of the risk; that the

(a) 4 Scott, 33.

The object of

the policy is to

attain an in

demnity for any loss that the assured may sustain by the goods being prevented, by the perils of the sea, from arriving in safety at the place of

their destination.

risk terminated when the goods were taken out at Rio de Janeiro, when they were so far from being destroyed by the perils of the sea, that they were actually sold as hides, and were capable of being tanned. It seems to us that there is no ground whatever for this assumed distinction between goods that are subject to an average loss unconditionally, and goods excepted by the memorandum from such a loss. The interest which the assured may have in certain cases to convert a loss into a total one, may be a fair argument to a jury upon a doubtful question of fact as to the nature of the loss, or the motive of abandonment. But there is neither authority nor principle for the distinction in point of law: whether a loss be total or average in its nature must depend upon general principles. The memorandum does not vary the rules upon which a loss shall be average or total: it does no more than preclude the indemnity for an ascertained average loss, except on certain conditions.

There is a fallacy in applying the words "termination of the risk," to the determination of the adventure before that period by peril of the sea. The object of the policy is to obtain indemnity for any loss that the assured may sustain, by the goods being prevented, by the perils of the sea, from arriving in safety at the port of their destination. If by reason of the perils insured against, the goods do not so arrive, the risk may in one sense be said to have terminated at the moment the goods are finally separated from the vessel. Whether, upon such an event, the loss is total or average, no doubt, depends upon circumstances. But the existence of the goods, or any part of them in specie, is neither a conclusive, nor in many cases, a material circumstance to that question. If the goods are of an imperishable nature, if the assured become possessed of or can have the control over them, if they still have an opportunity of sending them to their destination, the mere retardation of their arrival at their original port, may be of no prejudice to them beyond the expense of reshipment into another vessel. In such a case, the loss can be but an average loss, and must be so deemed,

even though the assured should for some real or supposed advantage to themselves, elect to sell the goods where they have been landed, instead of taking measures to transmit them to their original destination. Accordingly, in the case of Hunt v. Royal Exchange Company (a), the judgment of Lord Ellenborough contains a very important passage, which distinguishes it from the present case. He says, “if, indeed, the cargo has been of a perishable nature, this would not have been a case of retardation only, but of the destruction of the thing insured;" and further, he says, "I cannot necessarily infer that the flour would be changed in quality and condition by the delay from November to April, so as to incur any material damage operating a destruction of the thing insured." And in the case of Anderson v. Wallace (b), the goods consisted of copper which was wholly uninjured, and of iron which was partially damaged; the assured by their own agent had possession of them, the ship was capable of repair, and might have prosecuted the voyage, and did, in four weeks after the accident, sail upon another voyage; upon which ground, combined with other circumstances, the Court held the loss not to be total. But it is clear, from the judgment of the Court, that if by reason of the perils of the sea, the goods could never be sent to their destination, the loss would have been held to be total. In like manner, it will be found in other cases cited, that there has always existed one or more circumstances in combination with that of the goods existing in specie, to induce the judgment that the loss was not total: as in Glennie v. The Royal Exchange Company (c), the rice had arrived at its port of destination, and though damaged, was delivered to the consignees, and in a saleable state as rice. In Thompson v. The Royal Exchange Company (d), the tobacco and sugar, though damaged by the perils of the sea, were in the hands of the owner at Heligoland; and as stated by Lord Ellenborough,

(in his judgment), might for any reason that appeared, have been forwarded to the port of their destination. In Anderson v. The Royal Exchange Company (a), the wheat was partly saved, was in the hands of the shipper at Waterford, was kiln-dried, and might have been forwarded, as the rest of the cargo was, after the same operation to its port of destination; but the owner, after dealing with it as his own, abandoned it too late, even if he had a right to abandon it at all. In the case before us, the jury have found that the hides were so far damaged by a peril of the sea, that they never could have arrived in the form of hides; by the process of fermentation and putrefaction which had commenced, a total destruction of them before their arrival at their port of destination, was as inevitable as if they had been cast into the sea, or consumed by fire. tion not being consummated at the time they of the vessel, they became in that state a salvage for the benefit of the party who was to sustain the loss, and were accordingly sold; and the facts of the loss and the sale were made known at the same time to the assured. Neither he nor the underwriters could at that time exercise any control over them, or by any interference alter the consequences. It appears to us, therefore, that this was not the case of what has been called a constructive loss, but of an absolute total loss of the goods: they could never arrive; and at the same moment when the intelligence of the loss arrived, all speculation was at an end."

Their destruc

were taken out

We see from this part of the judgment in Roux v. Salvador, in what consists the essential difference between a total and an average loss in the case of goods.

It is the same with respect to the difference between the average or total loss of the ship. The case of Cambridge v. Anderton (b) is, as Lord Abinger says in the same judgment, similar in all points to the case of Roux v. Salvador, the one relating to the goods, the other to the ship: and that case is