1815. examinations made. By letter of 24th of December GERNON and they wrote to the plaintiffs, that the damage was not Another v. The ROYAL so great as was at first expected. On the 29th, after another examination, they stated that some of the EXCHANGE boxes of sugar were damaged, but that the rest of ASSURANCE. the cargo might be re-shipped. A few days afterwards a final examination took place; and the opinion on the survey was, that the sugars were all more or less damaged, and that it would be advisable to sell them for the benefit of the underwriters. The plaintiffs, on the 2d of January, had communicated to the underwriters the state of the cargo according to the information which they then had. The underwriters observed that they never gave any directions upon the sale of damaged goods; but required the damage to be made out in the usual manner. The report of the final survey on the 7th of January was received by the plaintiffs on the 9th; on the same day they handed over the report to the underwriters, and gave a formal notice of abandonment. With respect to the condition of the cargo, some of the boxes were half washed out, and others empty; no part of the cargo was in a merchantable state, and could not have been sent abroad but as damaged goods. The value of the sugars, if sound, would have been 9,2001. ; the plaintiffs were only interested in a moiety; deducting the expenses of the sale, the sugars netted 6,0477. 58. 5d. The Solicitor General, Best and Bosanquet, serjeants, for defendants. 1. This is not a case of total loss; it is not like v. The ROYAL the case of goods being put into a foreign port, 1815. where there is no agent of the party. The ship GERNON and returns to her loading port with her cargo damaged Another to the extent of not quite one-third. The owners under such circumstances cannot turn it into a EXCHANGE total loss. They say the voyage was lost because ASSURANCE. they would not send the goods to a foreign market in a deteriorated state; but there is no case, when the goods have been returned into the port where they were laden with a loss upon them of less than a third, in which it has been holden to be a total loss. The abandonment will not make a total loss unless there be one. 2. Election to abandon must be made immediately; the plaintiffs have not done so; they knew of their loss on the 24th and 29th of December, and it is to be inferred from their conduct that they meant to treat it as an average loss; but they do not give notice of abandonment till the 9th of January. Meantime the cargo was deteriorating from day to day. Lens, Vaughan, serjeants, and Scarlett; for the plaintiffs. It is impossible to do justice to this as an average loss. It is still a point, when the body. of a ship is saved, whether it can be a total loss. There are some new cases on this point: but as to the cargo it is another question; here there is an entire loss of the whole concern, the market is lost, the voyage is defeated, the whole speculation at an end; besides, where is the injustice of claiming a total loss, when the defendants have benefit of 1815. GERNON and 2. The ROYAL salvage. They relied on the words of Mr. Justice Buller in Mitchell v. Eddie, 1 T. 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 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.] Henkell, Park on Insurance, 1815. Another v. ham, 2 Marsh. 585. But the rule in that case is much GERNON and restricted by the decision of K. B. in Anderson v. Wallis, 2 Maule and Selwyn, 241. The ROYAL EXCHANGE That was a policy on goods ASSURANCE. at and from London to Quebec, warranted free of particular average. The ship, 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 on 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 |