lead to the inquiry respecting the dis-
tinction between total and average
losses,

354

on

2. The doctrine of total losses "
goods" as distinguished from average
losses explained,
355
3. Whether a loss "on goods" be
total or average in its nature must
depend upon general principles, 357

4. The object of the policy is to
obtain an indemnity for any loss the
assured may sustain by the goods
being prevented, by the perils of the
sea, from arriving in safety at their
place of destination,
357

5. Whether, upon such an event,
the loss is total or average depends
upon circumstances; but the exist-
ence of the goods, or any part of them
in specie, is neither a conclusive nor
in many cases a material circum-
stance to that question, 357, 358

6. If the goods be of an imperish-
able nature, if the assured become
possessed of them, and have an oppor-
tunity of sending them to their desti-
nation, the mere retardation of their
arrival may be of no prejudice to them,
more than the expense of reshipment.
In such a case the loss can be but an
average loss, even though the assured
elect to sell them where they have
been landed,
358

7. But if the goods once damaged
by the perils of the sea, are, by reason
of that damage, in such a state, though
the species may not be utterly de-
stroyed, that they cannot be reshipped
into the same or any other vessel; if
that before the termination of the ori-
ginal voyage the species itself would
disappear, and the goods assume a
new form, losing all their original
character; if, though imperishable,
they are in the hands of strangers,
not under the control of the assured,
if by any circumstance over which he
has no control, they can never, or in
any assignable period, be brought to
their original destination; in any of
these cases, the circumstance of their
being in specie at that forced deter-

mination of the risk, is of no im-
portance. The loss is, in its nature,
total to him who has no means of
recovering his goods, whether his
inability arises from their annihilation
or from any other insuperable ob-
stacle,
358

8. When a total loss has thus taken
place before the termination of the in-
sured voyage, with a salvage of some
portion of the subject insured which
has been converted into money, the
assured may recover as for a total loss
without an abandonment, 360, 366
9. Some account of the origin and
history of abandonment,

361

thing insured shall arrive at its des-
tined termination in perfect safety, 364

17. The assured when he elects to
treat a case as a total loss, must make
a cession to the assurer of all his
right, and in a reasonable time, 365

18. The assured may prevent him-
self from recovering a total loss, if he
voluntarily does any act whereby the
interests of the underwriters may be
prejudiced,
366

19. In capture the chance of resti-
tution does not suspend the demand
for a total loss upon the underwriter,
371

20. In questions upon policies, the
contract as an indemnity, and nothing
else, is always liberally considered,

371

21. In all cases the assured may
elect not to abandon,
372

22. The master cannot sell the
ship in case of a loss, except in a
case of absolute necessity, 378

23. As between the assured and
assurer, the ship is totally lost by
capture, though by recapture it may
revert to the former owner,

382
24. If the voyage be so defeated
as not to be worth further pursuit,
the assured may abandon,

382

25. But it is repugnant on a con-
tract of indemnity to recover for a
total loss, when the event has de-
cided that an average loss only has
been sustained,

383
26. If the ship be recovered after
a long detention, it is not a total loss
even on a wager policy,
384
27. The assured shall not be al-
lowed to abandon, either to avail him-
self of having overvalued, or of the
market below the invoice price, 386

28. The assured can recover only
an indemnity, according to the nature
of his case, at the time of bringing
the action, or at the time of his offer
to abandon,

387

29. The effect of abandonment is,
that if the offer turns out to have been
properly made upon the supposed
facts which turns out to be true, the
ннн 2

assured has put himself in a condition
to insist on his abandonment, 390

30. The abandonment must be
viewed with regard to the ultimate
state of facts appearing before action
brought,
393

31. In deciding the question whether
a party not insured would prefer giving
up the adventure and repairing a ship
at an enormous price-it is proper
that the jury should take into their
consideration the national character of
the ship which materially affects her
value,
399

32. Where the defendant had paid
48. into Court, and the jury found
that there was only 48. per cent.
damage. It was held to be only an
average loss; though, when she ar-
rived at her port she was not worth
repairing,
402

33. Where a ship is obliged, by
sea-damage to put back into port, and
cannot be repaired there, and no other
vessel could be obtained, and the cargo
is much damaged, this is a total loss,
406

34. A mere retardation of a voyage
where the insurance was on the cargo
not of a perishable nature, is not a
ground for abandonment,

408

35. If a ship be in such a situation
that the master has the means within
his reach to restore it to the character
of a ship, it is not a total loss. There
is no principle of insurance law as loss
by sale,
409

36. A ship being wrecked was sold
by the owner, and soon after got off
by the purchaser, though at a great
expense. The owner cannot treat
this as a total loss, if the ship could
have been repaired so as to have sailed
home in ballast, or with some sort of
a cargo,
409.

37. In what cases abandonment
must be given,

411

38. Where the thing insured sub-
sists in specie, and there is some
chance of recovery, there must be an
abandonment,
39. Where a ship is so much in-

412

jured by the perils of the sea, that she
cannot be repaired at all, except at an
expense exceeding her value when
repaired, the assured may recover
without an abandonment,
412

40. The assured cannot abandon
on account of the port of destination
being shut against the ships of the
nation to which the ships belong, 414

41. If a ship insured to a foreign
port, learning in the course of her
voyage that an embargo is laid on the
ships of her nation, wait at a place as
near as she safely can till the embargo
is removed, the goods on board in-
sured, will in the meantime be pro-
tected by the policy,

417

42. But if instead of doing so, she
sails back to her port of outfit, and is
lost, she will be considered to have
abandoned her voyage, and the un-
derwriters are discharged,

417

44. The effect of abandonment of
the ship to the underwriters, so as to
pass to them the ship's future earnings
or freight,
420, 427
45. And where there are separate
insurances on the ship and freight,
and the owner abandons to the under-
writers both of ship and freight, the
abandonee of the ship has a right of
the after accruing freight, indepen-
dently of the abandonee of freight,
who may have his own remedy against
the owners, where he had insured
their freight, which being lost, was
paid by the underwriters on freight,
with an agreement that he was to
have the benefit of the abandonment
to him of the freight to be earned,

50. The assured by the law in
England must make his election
speedily. He cannot lie by and treat
the loss as average, and afterwards
abandon to the underwriters, 432

51. So an underwriter is bound to
say, within a reasonable time after
notice of abandonment, whether he
will accept it or not,
433

52. An abandonment may be by
parol, but it should be certain; the
word 'abandon' ought to be used, 433

II. AVERAGE LOSSES.

1. In an average loss the thing in-
sured is supposed to exist in specie,
but there is a possibility, however
remote, of its arriving at its destina-
tion, 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,

435

2. Whether a loss be total or
average in its nature, must depend
upon general principles,
436

3. If the goods be of an imperish-
able nature, if the assured become
possessed of them, or can have the
control of them, if they have an op-
portunity of sending them to their
destination, the mere retardation of
their arrival may be no prejudice to
them, except the expense of reship.
ment in another vessel,
436

4. And where the goods consisted
of copper which was wholly unin-
jured, and of iron, which was partially
damaged, and the assured had pos-
session of them, and the ship was
capable of repair, and might have pro-
secuted the voyage-this was held to
be an average loss,

437

5. And where some rice had arrived
at its destination, and though damaged,

was delivered to the consignees in a
saleable state, as rice—this is only an
average loss,
437

6. And where some tobacco and
sugar, though damaged by the perils
of the sea, were in the hands of the
owner, and might, for any reason that
appeared, have been forwarded to its
port of destination-held to be an
average loss,
437

7. And where some wheat was
partly saved, and was in the hands of
the shipper was kilndried, and might
have been forwarded, as the rest of
the cargo was, to its port of destina-
tion; but the shipper, after dealing
with it as his own, abandoned too late.
Held to be only an average loss, 438

8. So in the case of a ship, if she
be not bodily and specifically lost, and
there be no circumstances attending,
which would render the loss total by
the law of marine insurances: this is
only an average loss,
439

9. The loss of the original voyage
will not make a constructive total loss
of the ship; if she can be repaired so
as for her to sail to her destination, in
ballast, or with any kind of a cargo so
as, on her arrival, to be worth the
money expended on her, she ought to
be repaired for the purpose, where it
is possible to do it,

440

10. The rule for calculating the
average losses on goods, is laid down
by Lord Mansfield in Lewis v. Rucker,
and his Lordship said afterwards in
another case, that the rule laid down
in Lewis v. Rucker, should always be
followed where there was a description
of casks or goods,
440

11. But where the property con-
sisted of a variety of goods, and part
of them were lost by the perils of the
sea, the only rule was to go into an
account of the whole valued in the
policy, and take a proportion of the
whole value as the amount of the
goods lost,
441

12. Upon a policy on goods to
recover an average loss, it is imma-
terial whether the goods arrive at a

good or a bad market, for the true
rule to estimate the loss, is to take
them at the fair invoice price, 441

13. And the underwriter is not
liable to any loss that may arise from
the difference of the exchange, 441

14. The underwriter is not re-
stricted to the amount of his subscrip-
tion, but he may be subject to several
average losses, or to an average and
total loss, or to money expended "in
and about the safeguard and recovery
of the ship," to a much greater amount
than his subscription,
442

15. But the assured cannot recover
for more than he has been damnified,
and cannot recover for an average
loss, which has not been paid by the
underwriters, when it is afterwards
followed by other circumstances which
render the previous deterioration a
matter of perfect indifference to the
assured's interest,
443, 449

16. The assured cannot recover for
an expense which might have been
incurred, but never was incurred, 450

17. Where repairs are actually done,
and prudently done, they are a fit
measure of the assured's loss: he is
so much the worse for a peril within
the policy,

450

18. Expenses of this kind come
under the clause of the policy, which
enables the assured to lay out money
for the benefit of all concerned, 451

19. The proportion of the damage
which the assured has sustained, is to
be calculated from the gross and not
the net prices of the sound and
damaged goods at the port of de-
livery,

452

20. In an open policy the invoice
price, together with the premium of
insurance and commission, form the
basis of the value of the goods, 454

21. In policies on freight, the loss
is calculated on the gross and not on
the net amount,

456

See "STRANDING" IN THE ARTICLE
"SHIP."

24. On a policy on wheat, with the
common memorandum, and the wheat
sustained an average damage, 56l.
19s. 8d. per cent. The underwriters
held not liable,

465

25. A ship with a cargo of fruit, is
forced by stress of weather to put into
a port out of her regular course. The
fruit is so spoiled by the seawater,
and stinks so, that the government
prohibit the landing: the ship also is
so much damaged as not to be able
to proceed: held to be a total loss, 469

26. Where a cargo of fruit was
captured and recaptured, and brought
to its port of destination, but damaged
eighty per cent., held to be only an
average loss,
471

27. In an action on a policy on peas,
the peas arrived at the port of desti-
nation, but so much damaged, as to
be sold for three-fourth's less than the
freight; held that as the goods men-
tioned in the memorandum, arrived at
the market, the underwriters were not
liable,
472

28. Where the policy was declared
to be on hogsheads of sugar, and every
hogshead was saved with some sugar
in it, this was held an average loss, 473

29. The memorandum is likewise
usually modified by an express stipu-
lation to pay average on each species
of produce and on separate packages,

474

30. But this stipulation does not pre-
vent the average being calculated on
the whole cargo, if it amount to three
or five per cent. on the whole, 474
31. On the words "free from average
under three per cent." the underwriter
is liable for the amount of the aggre-
gate of several average losses, each
less than three per cent., but amount-
ing in the whole together to more, 475