call CHAPTER THE NINTH. WE Of Abandonment. Traité du contrat d'Af E have formerly feen, that the infured, Chap. 4. p. before he can demand a recompenfe from 92. the underwriter for a total lofs, muft cede or Pothier's abandon to him his right to all the property that may chance to be recovered from fhipwreck, cap- furance 133ture, or any other peril, ftated in the policy. It has alfo been obferved, and from the preceding fentence it is obvious, that when we fpeak of a Vide c. 6. total lofs, with respect to insurances, we do not p. 110. always mean, that the thing infured is abfolutely loft and destroyed: but that by fome of the ufual perils, it is become of fo little value, as to entitle. the infured to call upon the underwriter to accept of what is faved, and to pay the full amount of his infurance, as if a total lofs had actually happened. Indeed, the word abandonment conveys the idea, that the whole property is not loft; for it is impoffible to cede or abandon that which does not exist. When the underwriter has difcharged his infurance, and the abandonment is made, he ftands in the place of the infured, and is entitled to all the advantages refulting from i Vez. 98. that fituation. From what has been faid then, it appears, that abandonment dates its origin from the period at which the contract of infurance was itself intro M duced; See Randall v. Cockran, ante c. 8. duced; because infurance being a contract of indemnity, the infured can recover no more than the amount of the lofs actually fuftained: but if he were allowed to recover for a total lofs, and might alfo retain the property faved, he would be a confiderable gainer, which the law will not alFrance, Rot- low. Accordingly we find, that the doctrine of terdam, il- abandonment has obtained a place in the laws of boa, Middle- all the maritime nations in the world, where inburg. furance has been known: and in all thofe laws the definition of it is the fame, namely, that when any goods or fhips, that are infured, happen to be loft, taken, or spoiled, the infured is obliged to abandon fuch goods or fhips for the benefit of the infurers, before he can demand any fatisfacPothier 133. tion from them. In this refpect alfo, they feem Ord. of Lew. to be agreed, that when an abandonment is made, 14. art. 47. it must be a total, not a partial one; that is, one part of the property infured fhall not be retained, and the other part abandoned; a regulation certainly founded in juftice. Ord. of Bil boa 32. The propriety and juftice of abandoning in certain cafes to the infurers being apparent, it will be proper to confider in what cafes, and under what circumstances, the infured is entitled to 2 Burr. 697. exercife this power: for although in all cafes the infured has a right to fay, he will not abandon; yet he cannot at his pleasure harrafs the insurer, by faying he will abandon, and thereby turn that, which, in it's own nature, was only a partial, into a total lofs. In questions of this nature, the opinion of learned foreigners must always have weight: because they are not queftions of pofitive regulation, or municipal law; but of general and extenfive import: not confined to any particular state, but founded on the great principles of reafon, juftice, and univerfal law. Roccus, Not The learned Roccus, who has accurately examined the works of thofe writers that went before him, and who, after ftating their various opinions, forms his own conclufions, has not been, 50. filent upon this occafion. He puts this question. Affecurator, qui jam folvit æftimationem mer"cium deperditarum, fi poftea dicta merces ap cr pareant et recuperatæ fint, an poffit cogere do"minum ad accipiendas illas, et ad reddendam " fibi æftimationem, quam dedit?" He anfwers, "Diftingue; aut merces, vel aliqua pars ipfa"rum appareant, et reftitui poflint, ante folutionem "æftimationis, et tunc tenetur dominus mercium "illas recipere, et pro illâ parte mercium apparenrk tium, liberabitur affecurator, nam qui tenetur ad certam quantitatem refpectu certæ fpeciei, dando illam, liberatur, et etiam, quia contractus "affecurationis, eft conditionalis, fcilicet fi merces "deperdantur: non autem dicuntur deperditæ, "fi poftea reperiantur. Verum fi merces non appareant in illa priftinâ bonitate, aliter fit æfti"matio, non in totum, fed prout tunc valent. "Aut vero poft folutam æftimationem ab affecuratore compareant merces, et tunc eft in "electione mercium affecurati vel recipere merces, vel retinere pretium." And although a fubfequent paffage in the fame author may feem to contradict that juft recited; yet when attended to, they are both perfectly confiftent. He fays, "fufficit femel extitiffe Roccus, No. "conditionem ad beneficium affecurati de amif- 66. "fione navis, etiam quod poftea fequeretur recuperatio; nam per talem recuperationem non poterit præjudicari affecurato." From this paffage it may be inferred, that a total lofs having once happened, it must always continue fo. But it must be understood, with reference to the context, and other parts of the work, from which it appears, that in order to entitle the infured to recover as for a total lofs, it must continue total, at the time when the offer of abandonment is made, at the time of the action brought, or at the time of the payment of the money. Chap. 7. f. 1. Ord.Lew. 14. In a French treatife, called Le Guidon, it is faid, that the infured may abandon to the underwriter, and call upon him for a total lofs, if the damage exceed half the value of the thing; or if the voyage be loft, or fo interrupted, that the purfuit of it is not worth the freight. The fame idea, with refpect to the circumOrd. of Bilb. ftances which will juftify an abandonment, feems to prevail in almost all the foreign ordinances. Ord. of Rot. 2 Magens. But in no country have the principles of abandonment been more accurately defined than in England and it must be remembered, that the decifions, from which the following principles are felected, are of the greateft authority; that they are not merely the opinions of private fpeculative men, but the folemn and deliberate judgment of the grave and learned judges of the English courts; judgments formed after mature deliberation, and ferious argument; eftablished upon the folid and permanent bafis of reafon and good fenfe. From thofe decifions we may collect, that the right to abandon muft arife upon the object of the infured being fo far defeated, that it is not worth his while to purfue it; fuch a lofs as is equally inconvenient to him, as if it had z Burr. 1209. been total. For instance, if the voyage be a Burr. 697. 1213. abfolutely loft, or not worth pursuing; if the falvage be very high, fuppofe a half; if further expence be neceffary; if the infurer will not engage at all events to bear that expence, though it fhould exceed the value, or fail of fuccefs under thefe, and many other like circumftances, the infured may disentangle himself, and abandon, notwithstanding there has been a recapture. It is evident, that there may be circumftances, in which it would be contrary to every principle of justice, to fuffer the infured to abandon; for a fhip might be taken, and efcape immediately, which would be no hinderance at all to the voy age: age; or the might be taken and inftantly ranfomed, which would amount only to a partial lofs; in which cafes, the insured fhall not be allowed to demand a recompenfe for a total lofs. It is alfo material to obferve, that the right to Burr. 1214. abandon must depend upon the nature of the cafe at the time of the action brought, or at the time of the offer to abandon: a determination founded, as I have faid before, on the nature of the contract between the parties; because an infurer ought never to pay lefs, upon a contract of indemnity, than the value of the loss; and the infured ought never to gain more. for Eafter, 26 Geo. 3. p. 191, From what has been faid, it will appear fuffi- Term Rep. ciently evident, that the owner cannot abandon, unlefs at fome period or other of the voyage there has been a total lofs: and therefore, if neither the thing infured, nor the voyage be loft, and the damage fuftained fhall be found, upon computation, not to amount to a moiety of the value, the owner fhall not be allowed to abandon. These principles are fully illuftrated and confirmed by the judgments given in the following cafes. The defendant had infured the fhip Succefs from Pringle v. London to Bermudas, and fo to Carolina; the fhip Hartley, in was taken by a Spanish privateer, and afterwards Chancery, retaken by an English privateer, and carried into 1744 3 Atk. 195. Bofton in New England, where, no perfon appearing to give fecurity, or to anfwer the moiety the recaptors were entitled to for falvage, fhe was condemned, and fold in the court of Admiralty there; the recaptors had their moiety, and the overplus money remained in the hands of the officers of that court. An action upon the policy was brought at law by the defendant here, who obtained a verdict against the now plaintiff. The plaintiff brought a bill, fuggefting the capture to be fraudulent, and done defignedly by the captain; and now moved for an injunction to ftay the proceedings at law. It was contended for the plaintiff, that though the capture might not be fraudulent, yet M 3 the |