and afterwards recaptured; but in the interval the assured, having received intelligence of the capture, gave notice of abandonment, and after the recapture the ship arrived at Liverpool, having sustained a partial damage; it was held, that the abandonment was not binding, and that the assured could recover for a partial loss only (i).

The loss of the voyage, occasioned by the detention of the ship, will not enable the owner to recover upon a policy on the ship as for a total loss, the ship having been released before abandonment (k). "The principle," said Lord Campbell, ❝ laid down in the cases is, that if there be once a total loss by capture, it will still continue to be a total loss, unless something afterwards occurs by which the assured either has the property restored to him, or the means of obtaining its restoration" (l). Where the ship was wrecked, but all the goods were brought on shore, though in a very damaged state, so that they became unprofitable to the assured: it was held, 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 a notice of abandonment (m). "As a general rule, when the whole or any part of the cargo is practicably capable of being sent in a marketable state to its port of destination, the master cannot sell, nor the assured recover as for a total loss" (n). The Court of Common Pleas also held, in that case, that in determining whether it were practicable to send on the cargo, the jury were bound to take into consideration the following items:-1. The cost of unshipping the cargo; 2. Of drying and warehousing it; 3. Of transhipping it; 4. Of sending it on (if it could not be forwarded on other terms) at a higher than the original rate of freight; 5. The amount of salvage allowed in proportion to the value of the cargo saved. If the total of these items exceeded the selling value of the cargo at the port of discharge, then the loss would be total, otherwise only average. Policy of assurance on goods (copper and iron) at and from London to Quebec, warranted free of particular average, and 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; it was held, that this was not a total loss of the goods, and that the assured could not abandon (o).

(i) Brotherston v. Barber, 5 M. & S. 418.

(k) Parsons v. Scott, 2 Taunt. 363. (1) Dean v. Hornby, 23 L. J., Q. B. 132. (m) Thompson v. Royal Exch. Ass. Comp., 16 East, 214; see also Navone v. Haddon, 9 C. B. 36; S. C. 19 L. J., C. P. 164.

(n) Per Jervis, C. J., delivering the judgment of the Court of Common Pleas

in Rosetto v. Gurney, 11 C. B. 188; S. C. 20 L. J., C. P. 257, and in which case that court declined to adopt to its full extent the judgment of the Exchequer in Reimer v. Ringrose, 6 Exch. 263.

(o) Anderson v. Wallis, 2 M. & S. 240, recognized in Everth v. Smith, 2 M. & S. 278, and in Hunt v. Royal Exch. Ass. Comp., 5 M. & S. 47.

A loss of voyage for the season by perils of the sea, is not a ground of abandonment upon a policy on goods, with a clause of warranty, free from average, &c. where the cargo is in safety, and not of such a perishable nature as to make the loss of voyage a loss of the commodity, although the ship be rendered incapable of proceeding in the voyage (p). Insurance on ship. The ship, during her voyage, while loading her homeward cargo, was seized by the crew and carried away to a distant country and her cargo plundered, and the ship deserted, but was afterwards retaken by another ship, and was brought with a small remaining part of her cargo to an English port (not the port of her destination), and part of her rigging was gone, and she could not be made fit for a voyage again without considerable expense in providing a crew and stores: it was held, that this was not a total loss so as to entitle the assured to abandon after notice of the recapture (q). "As to Goss v.

Withers" (r), said Lord Ellenborough," there may be some doubt whether it is similar to the present case, and I must say that there is a looseness and generality in the expressions which have been borrowed in argument from that case and the case of Hamilton v. Mendes (s), which make me inclined to pause upon them. What has the loss of the voyage to do with the loss of the ship? On this subject there is so much good sense in the judgment of Chief Justice Willes, in Pole v. Fitzgerald, that it may be of great use to resort to it to purify the mind from these generalities" (t).

Where a ship with cargo was barratrously taken out of her course by the crew, and the ship and part of her cargo sold, and the remainder sent home by another vessel; it was held, that this was a total loss of the cargo from the time of the committing of the act of barratry (u). Upon a hostile embargo in a foreign port, the ship-owner, who had separately insured ship and freight, abandoned them to the respective underwriters at the same time; the abandonment was accepted by the underwriters; afterwards the embargo was taken off, and the ship completed her voyage and earned freight. The freight having been paid by the freighters to the underwriters on the ship, the ship-owner, the assured brought an action against one of the underwriters on freight, claiming as for a total loss; it was held, that the assured could not recover, the freight not having being in fact earned: or supposing it to have been in any other sense lost to the assured, by the abandonment of the ship to the underwriters thereon, it was so lost, not by any peril insured against, but by the voluntary act of the assured in making such abandonment, with which, and the consequences thereof, the underwriters on freight had not any concern (x).

Policy on fruit from Cadiz to London, with the usual memorandum. In the course of the voyage the fruit was so much damaged by the sea water that it became rotten and stunk, and on the ship's arrival at an intermediate port, into which she was driven, the government of the place prohibited the landing of the cargo. The ship also, being too much damaged to proceed on her voyage, was sold, and the cargo necessarily thrown overboard. It was held, on a case reserved, that the assured were entitled to recover for a total loss; and Chambre, J., said "the ship is expressed to have been so much damaged that she could not proceed, but was sold; now this must certainly have made a complete end of the voyage. We do not construe special cases so strictly as we do special verdicts; on the whole, therefore, it seems to me that the loss was total, and though the cargo might be said to exist in specie, yet in value it did not exist at all. If that be so, the inference of law is plain. What is it against which the underwriters protect themselves by the memorandum? Against partial damage. For what reason? Because, as the commodities enumerated are perishable in their nature, it might be impossible to ascertain with exactness, what part of the loss arose from the nature of the commodity, and what from sea damage. If ever there was a case of total loss, it certainly is the present" (y).

After satisfaction made as to the goods themselves, if restored in specie, or compensation made for them, the assured stands as a trustee for the insurer, in proportion for what he has paid (2). A shipowner having chartered his ship to J. S., insured the ship and freight with different sets of underwriters. Having notice of an embargo laid on the ship in a foreign port, he abandoned the ship and freight to the respective underwriters, and received the whole amount of their subscriptions as for a total loss; first undertaking, by a memorandum on the ship policy, to assign to the underwriters thereon his interest in the ship, and to account to them for it: and afterwards undertaking, by a similar memorandum on the freight policy, to assign to the underwriters on freight all right of recovery, compensation, &c. The ship having been afterwards liberated, returned home, and earned freight, which was received by the assured; it was held, that however the question of priority as to the title to the freight might have been, as between the different sets of underwriters litigating out of the same fund, and however the weight of argument might preponderate in favour of the underwriters on the ship, yet that the assured, who had received the freight, was at all events liable on his express undertaking to pay it over to the underwriters on freight (a). But in a subsequent case which arose on the same embargo; it was held, that although the

(y) Dyson v. Rowcroft, 3 B. & P. 478. (z) Randal v. Cockran, 1 Ves. 98. (a) Thompson v. Rowcroft, 4 East, 34. See also Leatham v. Terry, 3 B. & P. 479.

As to abandonment of freight, see Case v.
Davidson (in error), 2 B. & B. 379, and
Green v. Royal Exch. Ass. Comp., 6 Taunt.
68.

underwriter on freight was entitled to recover the freight received by the assured, yet the assured might deduct out of it the following expenses-1. The expenses of the ship and crew in the foreign port, including port-charges (besides the expenses of shipping the cargo, which exclusively belonged to the underwriters on freight). 2. Insurance thereon. 3. Wages and provisions of crew, from their liberation in the foreign port till their discharge here. 4. Wages, (provisions were supplied by the foreign government,) to the crew during their detention. But it was further held, that the assured was not entitled to deduct out of such freight:1. Charges paid at the port of discharge on ship and cargo. 2. Insurance on ship. 3. Diminution in value of ship and tackle by wear and tear on the voyage home (b).

Where the subject-matter of the insurance is at first of the value mentioned in the policy, and there is not any imputation of fraud, the underwriter will be bound, in case of a loss, by the valuation in the policy, although the loss happens at the latter end of the voyage, at which time the property insured is considerably diminished in value; as where an insurance was made on ship stores, and provisions, valued, on a certain voyage, and the ship foundered on her arrival at the port of discharge; it was held, that the loss being total, and no fraud, the underwriter was liable to pay the value inserted in the policy, although it appeared that the provisions to the amount of half that value had been expended (c). "Valuation at the sum insured is an estoppel in case of a total loss" (d).

The wages and provisions of the crew of a ship during its detention, for the purpose of repairing damages sustained by perils of the sea, are not chargeable to the underwriters of a policy on the ship(e). Where two ships, A. and B., come into collision, and both sustain damage, but ship A. having sustained less damage than ship B., the owners of A. were compelled to pay a sum of money to the owners of ship B. so as to equalize the loss sustained by each; it was held, that the sum so paid was not a loss recoverable under a policy on the ship A., although the accident occurred under circumstances, that the loss, by the direct damage, sustained by the ship A. was recoverable (ƒ).

An action upon a valued policy; the defendant paid into court 301. per cent. It was held, that this was merely an admission that a loss of 301. per cent. had been sustained, and no more (g). Where there is not any valuation in the policy, the prime cost or invoice price, together with all charges until the goods are put on

(b) Sharp v. Gladstone, 7 East, 24. (c) Shawe v. Felton, 2 East, 109. (d) Per Lee, C. J., in Erasmus v. Bank, M. 21 Geo. II. and Smith v. Flexney, Dec. 13, 1747; and see Irving v. Manning,

ante, p. 976.

(e) Devaux v. Salvador, 6 Nev. & M. 713.

(f) Ibid.

(g) Rucker v. Palsgrave, 1 Taunt. 419.

board, and the premium of insurance, will be the foundation upon which the loss will be computed. If part of a cargo, capable of distinct valuation, be lost, the value of such part must be paid (h). When there is an insurance on goods, as may be thereafter declared and valued, the assured may, by duly declaring and valuing before the loss, make it a valued policy: but if the assured do not so declare and value, it is then an open policy, and the interest must be proved at the trial.

VI. Of Partial Losses.

A partial loss upon a ship or goods is such a proportion of the prime cost as is equal to the diminution in value occasioned by the damage (i). In a case of a partial loss upon goods, by sea damage, the rule is, that the underwriter is not to be subjected to the fluctuations of the market, and that he is not liable for any loss which may be the consequence of the duties or charges to be paid after the arrival of the commodity at the place of its destination (k). Hence, in computing the average in a case of this kind, the difference between the respective gross proceeds (1) of the damaged goods, and of the goods if they had arrived sound at the port of delivery, must first be ascertained. Then, whatever aliquot part of the gross proceeds of the sound commodity at the port of delivery such difference constitutes, the same aliquot part of the original value will be the sum for which the underwriter will be liable: e. g. suppose a hogshead of sugar is insured on a voyage from London to Hamburgh, the original value is 301.; being deteriorated by sea damage, the gross proceeds at Hamburgh amount to 401.; whereas, if the sugar had not been damaged, the gross proceeds would have amounted to 50l. The difference is 107., or one-fifth part of 50l. The sum, then, which the underwriter must pay will be one-fifth of 307., the original value, or 61. In cases where the sums are more complicated than in the preceding instance, the calculation may be made as follows: as the gross proceeds of the sound : the gross proceeds of the damaged : : the original value : a fourth quantity, which being found by the rule of three, must be subtracted from the prime cost, and the difference will be the average loss or sum for which the underwriter is chargeable. The proportion of loss is calculated through the same medium, (that is, by comparing the selling price of the sound commodity with the damaged part of the same commodity at the port of delivery,) whether the policy be valued (m)