1815. GERNON and v. The ROYAL salvage. They relied on the words of Mr. Justice Buller in Mitchell v. Eddie, 1T. R. 608. "Where the voyage is lost, but the property is saved, the owners have an option to abandon; but unless they do elect to abandon, it is only an average loss." ASSURANCE. They contended, that the abandonment was in time; the owners only wanted to ascertain the real state of the sugars. It is true, they might have elected to abandon earlier; but it would then have been said that they abandoned prematurely. This is not a case in which they have been remiss; they did not hesitate when the real state of the sugars was known; the sugars being a perishable commodity, it was necessary to examine them with reference to the state of the markets for which they were intended; they only paused till the fullest inquiry could be made. GIBBS, C. J.-As the sugars were in existence, it could only be a total loss provided the assured abandon in proper time; but they are not justified in abandoning, unless the property be in such a state that it cannot be applied to the original purposes of the voyage. Was it in such a state as to be sent to its original destination? It is in evidence that no part was in a merchantable state. Ought it then in reason to have been sent? If not in a proper condition for the market, I am of opinion that the plaintiffs were entitled to abandon, provided such abandonment were in time. His Lordship left it to the jury to say, whether the property was in a fit state to be sent forward on the voyage; and with respect to the notice of 1815. abandonment, whether it was in proper time or not, GERNON and his Lordship reserved the question for the Court. Another v. The ROYAL EXCHANGE The jury thought the sugars not fit to be sent forward; and they found, under the direction of ASSURANCE. his Lordship, that the abandonment was in time, subject to the question of law. Verdict for a total loss. Lens and Vaughan, serjeants, and Scarlett, for the plaintiffs. The Solicitor General, Best and Bosanquet, serjeants, for the defendants. [Attornies, Messrs. Dawes and Co. and Kaye and Co.] In the ensuing term, the Solicitor General obtained a rule to shew cause why the verdict should not be set aside and a nonsuit entered. Lens and Vaughan, serjeants, shewed cause. The Court were of opinion, that, as the jury found the goods were not in a condition to be forwarded, there was no ground for saying that the insured were not entitled to abandon, or that the abandonment was made too late. Rule discharged. 2 Marshall's Reports, 92. See likewise Allwood Henkell, Park on Insurance, 172. Anderson v. Royal Exchange Assurance, 7 East, 38. In case of an insurance upon goods, what shall be deemed a total loss, so as to entitle the assured to abandon, has been a subject of much discussion, and is not as yet reduced to any certainty. It is true, every case must depend upon the circumstances; but no case has yet defined, with the due precision, what the general state of circumstances must be. If the voyage be lost, from whatever cause, it is said to be a total loss. Manning v. Newn v. The ROYAL The ship, 2 Maule and Selwyn, 241. EXCHANGE That was a policy on goods ASSURANCE. at and from London to Quebec, warranted free of particular average. owing to sea damage in the course of her voyage, was obliged to run into port, and undergo repair, and some part of the goods were damaged, and the repairs detained her so long as to prevent her reaching Quebec that season, and no other ship could be procured at that, or a neighbouring port, to forward the cargo in time, so that the voyage was abandoned, and the ship afterwards sailed ou another voyage. The court held that this was not a total loss of the goods, and the assured could not abandon. In this case Lord Ellenborough says, "I am well aware that an insurance upon a cargo for a particular voyage, contemplates that the voyage shall be performed with that cargo, and any risk which renders the cargo permanently lost to the assured may be a cause of abandonment. In like manner a total loss of a cargo may be effected, not merely by the destruction of that cargo, but by a total permanent incapacity of the ship to perform the voy age: that is a destruction of the contemplated adventure. But the case of an interruption of the voyage does not warrant the assured in totally disengaging himself from the adventure, and throwing the burthen on the underwriters. There is not any case or principle which authorizes an abandonment, unless where the loss has been actually a total loss, or in the highest degree probable at the time of the abandonment." Where the ship was wrecked, but the goods brought on shore, though in a very damaged state, so that they became unprofitable to the assured, it was holden that the underwriters on the goods, who were freed by the policy from particular average, could not be made liable as for a total loss by notice of abandonment. Thompson v. R. Exch. Ass. C. 16 East, 214. This decision, however, turned upon the clause in the policy which excepted the underwriters from particular average. The effect of which was to make them liable if the goods were wholly lost, but not if they were only damaged. But the underwriters were held liable to a total loss upon a cargo of corn, where the ship, from the perils insured against, became incapable of pursuing the voyage, and another vessel could not be procured to forward the corn to its destination. Wilson v. R. E. Ass. C. 2 Camp. 623. The difference between this case and Anderson v. Wallis is, that in the former case the Voyage was wholly lost, and the cargo, a perishable commodity, was deteriorating daily; whilst in Anderson v. Wallis, the voyage was only suspended or retarded, and the cargo, which was copper, could not be injured by delay. In M'Ivor v. Henderson, which was determined in K. B. in Hilary term last, 1816, the Court, in the judgment delivered in that case, have thrown new lights upon this very entangled but important subject of abandonment, The case was this:-A ship, insured from Liverpool to Sierra Leone, was captured in the course of her voyage by a French frigate, plundered of her stores, and of most of her guns and ammunition. She was then delivered by the captors into the possession (by way of gift) of the master of a Portuguese vessel, which had been previously captured by the privateer. The Portuguese took the vessel, with the British there laid claim to her in the GERNON and Another Vice Admiralty Court, which claim the British captain op v. The ROYAL posed; the Court however deEXCHANGE creed in his favour, and or- ASSURANCE. dered the vessel to be restored to him. The Portuguese appealed, and the British captain was obliged to deposit 4277. to abide the event of the appeal. In the mean time, he communicated what had happened to the plaintiff, who gave notice of abandonment to the defendant, which notice the defendant refused to accept. The vessel afterwards, and before the commencement of the action, arrived at Liverpool. The question was, whether the plaintiff was entitled under these circumstances to recover as for a total, or for an average loss. It was holden by the Court, that he was entitled to recover for a total loss: that he had a right to abandon when the news of the capture arrived; and nothing had occurred since to defeat that right. Lord Ellenborough, in delivering the judgment of the Court, observed, It is contended that a contract of insurance is a contract of indemnity; and that, therefore, the actual damage sustained in the result can only be recovered 1815. by the assured. And the cases of "Godsall v. Boldero," 9 GERNON and East, 72. "Hamilton V. Another Mendes," 2 Burr. 1210, and v. "Bainbridge v. Neilson," 10 The ROYAL EXCHANGE East, 329, and others, have ASSURANCE. been cited. But this case is obviously different from them all. Here there never was any restitution of the ship in the state in which it was insured. Here the guns and stores were never restored; the voyage was completely lost; and the ship itself was never fully liberated and restored, by reason of the actual deposit of the sum of 4271. to abide the event of the appeal. The sentence of appeal is to determine the right of possession; but is the plaintiff to wait for that decision, accompanied as it must be with damages, perhaps to a much larger amount than the interest which he has in the ship? Under these circumstances, what can be said to be the limits of the plaintiff's loss? If it be an average loss, who shall determine what the average is? Can it be safely said, that this is not a total loss? And what is to be the extent of the average loss under the circumstances of this case? Does the mere restitution of the hull of the vessel remove the idea of a total loss, if the plaintiff be compelled to pay more for that restitution than the ship is worth? Is the loss, under that circumstance, reducible only to an average loss? If no abandonment had been already made, we should have no hesitation in saying that there are sufficient circumstances to justify the abandonment at this moment. An abandonment would be well warranted at this instant. The voyage is lost; the cargo is lost; the stores are gone: and is the assured to pursue the hull with all the trouble, expence, and hazard of litigation in a foreign Court of Admiralty? Can it be said that the effect of the abandonment as for a total loss, by reason of capture and detention, is to be frustrated by the continuance of a loss of a similar kind? It appears to us, that there existed at the time of the abandonment a clear right to abandon; that the action was well brought for a total loss, and that there exists, at the present moment, circumstances fully sufficient to entitle the plaintiff to recover. See likewise Dyson v. Rowcroft, 3 B. and P. 474. Ritchie v. Falkner, 2 M. and S. 290. Everth v. Smith, ibid. 278. and for other leading cases on the subject of abandonment, vide Goss v. Withers, 2 Burr. 683. |