board ex justá causa. All the foreign writers agree that the master may set fire to a ship to prevent its falling into an enemy's hands. This case fell within the same principle. The dollars would have been useful to the enemy in the prosecution of the war. It was the master's duty to prevent the enemy from seizing them. The circumstance of the insurer not being a subject of Spain could make no difference. They said that this might also be considered as a loss by enemies, and would also fall within the general words "other losses."

Where, in an action on a policy of insurance on a ship in the usual form, for twelve months, at sea and in port, the loss averred was as follows; that the ship having arrived at the harbour of St. J., and discharged her cargo, it became necessary to place her, and she was accordingly placed in a graving-dock, there to be repaired, and near to a certain wharf in the graving-dock; and that whilst she was there, by the violence of the wind and weather, she was thrown over on her side, whereby she struck the ground with great violence and was bilged, &c. It was holden, that this was a loss within the general words of the policy, "all other perils, losses, and misfortunes, &c." for which the underwriters were liable. Held also, that the above facts, with the additional circumstance of there being two or three feet water in the gravingdock when the accident happened, did not amount to a loss by perils of the sea.

An underwriter is liable for losses occurring in the transshipment of goods from the ship to the place of landing, where such transshipment is in the usual course of the voyage, although such risk be not specially mentioned in the policy.

V. Of Total Losses and Abandonment.

A TOTAL loss is of two kinds; one, where the whole property insured perishes; the other, where the property exists, but the voyage is lost', or the expense of pursuing it exceeds the benefit arising from it. In the latter case, the assured,

g Phillips and another v. Barber, 5 B. and A. 161.

h Stewart v. Bell, 5 B. and A. 238. Insurance from London to Jamaica.

i If the voyage be defeated, it is the same thing for this purpose as if the ship be lost. Lawrence, J. 6 T. R.

425. But see Parsons v. Scott, 2 Taunt. 363. and Anderson v. Wallis, 3 Camp. 440. 2 Maule and Selwyn, 240. and post, p. 965. See also Hunt v. Roy. Exch. Ass. 5 Maule and Selwyn, 47.

may elect (27) to abandon to the underwriter all right to such part of the property as may be saved, and having given due notice of his intention to do so, the assured will then be entitled to demand a compensation as for a total loss; but if the assured does not in fact abandon (28), or if he omits to give the underwriter notice (29) of his having abandoned, or if, being required by the underwriter to assign over his interest in the property insured, he refuses to do sok (30), he will not be entitled to claim as for a total loss; unless, in the conclusion, there be an actual total loss'.

Insurance on goods. The vessel was wrecked, part of the goods were lost, and part got on shore, but (whilst on shore) were destroyed and plundered by the inhabitants of the coast of the Isle of France, so that no portion of them came again into the possession of the assured. Held that this was am total loss by perils of the sea, and no abandonment was necessary.

An insurance was effected on freight, and on the cargo

k Havelock v. Rockwood, 8 T. R. 268. 1 Me!lish v. Andrews, 15 East, 13. more fully reported by N. Atcheson, m Bondrett v. Hentigg, 1 Holt's N. P. 8vo. 1800. C. 149. C. B. Gibbs, C. J.

(27) The assured is not in any case bound to abandon. See 15 East, 15.

(28) An insurance was effected on some hogsheads of sugar on a voyage from Ostend to Havre. The vessel sailed from Ostend, but was forced on shore, and the cargo damaged. The assured wrote to the underwriters, to inform them of the circumstances, and of the injury which the sugars had sustained. The underwriters in answer desired, "that the assured would do the best with the damaged property." It was holden, that the letter, coupled with the answer, did not amount to abandonment. Thelluson v. Fletcher, 1 Esp. N. P. C. 73.per Kenyon, C. J.

(29) Notice of abandonment is necessary, although the ship and cargo have been sold and converted into money, when the notice of the loss was received. Hodgson v. Blackiston, Park, 281. n.

(30) In Havelock v. Rockwood, the insurers offered to settle with the insured, he first making an assignment of one-fourth part of the value of the ship for their benefit. The sum insured not amounting to one-fourth, the plaintiff declined making the assignment. The court were of opinion, that, under these circumstances, the assured could not be considered as having abandoned; Kenyon, C. J. observing, that the refusal to assign seemed to him to be equivalent to a refusal to abandon; and Grose, J: intimating, that there should have been an offer on the part of the assured to assign such part as he was entitled to. See Atcheson's Report, p. 18.

from Quebec to London. The ship sailed from Quebec, and on her voyage sprung a leak, and in that state was run aground on a reef of rocks, and was in imminent danger of being carried away and destroyed; whereupon the captain, by the advice of a surveyor and of an agent for the owners, who was also a part owner himself, sold the ship and cargo. The ship was afterwards saved by the purchasers, and repaired, and brought a cargo to London. In an action by the assured against the underwriters on freight for a total loss, the jury found that, in effecting the sale, the master had acted fairly for the benefit of all concerned; and the court, upon special verdict, held", that the captain was justified in making such sale, and that an abandonment of freight was not necessary, inasmuch as there was nothing to abandon; for the sale being right, the ship and cargo were gone into different hands; and she could not earn freight for the underwriters. On this last point, see Green v. R. E. A. C. 6 Taunt. 68.

When the assured has received intelligence of such a loss as entitles him to abandon°, it is incumbent on him to make his election to abandon, and to give notice thereof to the underwriter within a reasonable time (31), after receipt of the intelligence; otherwise the assured will be considered as having waved his right to abandon, and in case any part of the property insured be saved, he can recover as for a partial loss only. But the assured is entitled to a reasonable time for acquiring a full knowledge of the state of a damaged cargo, before he is bound to elect, whether he shall aban

n Idle v. R. E. A. C. 8 Taunt. 755. o Mitchell v. Edie, 1 T. R. 608. wood v. Henckell, Park, 280.

All

p Barker v. Blakes, 9 East, 283. Hudson v. Harrison, 3 B. and B. 97.

(31) "An abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time, under the circumstances." Per Lord Ellenborough, C. J. in Anderson v. Royal Exch. Ass., 7 East, 43. cited by Ld. E. in Davy v. Milford, 15 East, 563. The assured must make his election speedily, whether he will abandon or not. He cannot lie by, and treat the loss as an average loss, and take measures for the recovery of it, without communicating that fact to the underwriters, and letting them know that the property is abandoned to them." Per Lord Kenyon, C. J. in Allwood v. Henckell, Park, 280, 1. The assured are bound to give notice of abandonment at the earliest opportunity; notice given five days after they received intelligence of the loss was held too late. Hunt v. The R. E. Assurance, 5 Maule and Selwyn, 47.

don; therefore, where a ship bound from Liverpool to Calais, put back to Liverpool on the 20th of December, when the cargo, consisting of sugar, was immediately relanded and surveyed: the owners in London received a letter from their agents at Liverpool, dated 29th of December, stating, that the cargo was much damaged, but that it was still in contemplation to send it on;-and another dated 7th of January, stating that, on further examination, the whole cargo was found to be damaged: held that the owners, on the receipt of the latter letter, were still in time to abandon.

Insurance for 80007. on ship Vittoria, and 40007. on freight, "at and from London to the East Indies, and back." The ship sailed sea-worthy from Calcutta, on her voyage home, when, in addition to some damage which she sustained in the River Hooghly, she encountered two storms at sea, by which she was so shattered as to render it necessary for the captain to put back: and he returned to Calcutta on the 30th August, 1820. On his arrival at Calcutta, he gave notice of abandonment to the agents for Lloyd's resident there, and requested that their surveyor might be present at the surveys of the ship. The agents said, they had no authority to accept the abandonment; but their surveyor attended the surveys, when it was found, that the ship was so seriously damaged, that the expence of repairing her would be nearly 5000l. The agents refused to undertake the repairs; and the captain, having in vain attempted to borrow money for that purpose by hypothecation of ship, sold the ship for 1200., conceiving that to be the best course for all parties. On the 25th April, 1821, the captain arrived in London, where the owner resided; and on the 3rd May, the ship's papers were delivered. On the 5th May, the ship's brokers abandoned to the underwriters. In an action on the policy on ship, the jury having found a verdict for the plaintiff, as for a total loss, and that the captain had sold the ship from a justifiable cause, the court (Richardson, J. dissentiente,) refused to grant a new trial, which was moved for, on the ground that the ship ought not to have been sold, and that notice of abandonment had not been given in due time".

If one of several, jointly interested in a cargo, effects an insurance for the benefit of all, he may give notice of abandonment for all.

Abandonment is necessary to make a constructive total loss; but if there be an actual loss, the circumstance of the

q Gernon v. R. E. Ass. 6 Taunt. 383. r Read v. Bonham, 3 B. and B. 147. 2 Marsh. R. 88. S. C. s Hunt v. R, E. Ass. 5 M. and S. 47.

assured having previously given an ineffectual notice of abandonment, will not prejudice his claim'.

Where a ship was chartered from Liverpool to Jamaica, there to take on board a full cargo for Liverpool, at the current rate of freight, to be paid at one month from the discharge of her cargo at Liverpool; and the ship-owners effected a valued policy on the freight at and from Jamaica, to her port of discharge in the United Kingdom; and the ship arrived at Jamaica, and, after taking on board one-half of her cargo, was lost by storm, the remainder of her cargo being on shore and ready to be shipped: held that the assured were entitled to recover, as for a total loss".

It may be collected, from the two following cases, under what circumstances the assured may elect to abandon and claim as for a total loss.

A ship was freighted with fish, and was insured on a voyage from Newfoundland to the port of discharge in Portugal or Spain, without the Streights, or England. During the voyage a violent storm arose, in consequence of which it became necessary that part of the cargo should be thrown overboard, and the ship was so much disabled as to render it necessary for her to go into port to refit; but before she could reach any port, she was captured by the French, who took out nearly the whole of the crew, and sent them into France. The ship having remained eight days in possession of the enemy, but not having been carried into port, nor within the enemies' fleet, was recaptured and brought into Milford Haven. The assured immediately gave notice of their intention to abandon. The remainder of the cargo was spoiled whilst the ship lay at Milford Haven, and before she could be refitted. It was holden, that the loss being in its nature a loss, at the time when it happened, the assured had a right of election to abandon: that the subsequent title to restitution arising from the recapture of the ship, which was not in a situation to pursue her voyage, could not take away a right vested in the assured at the time of the capture, and consequently that the assured having given immediate notice of abandonment, were entitled to recover against the insurers for a total loss.

A ship and goods were insured for a voyage from Montserrat to London'. The ship was taken by an enemy, who took out all the crew, part of the cargo, (which consisted of

t Mellish v. Andrews, 15 East, 13.

u Davidson v. Willasey, 1 M. and S.

x Goss v. Withers, 2 Burr. 683. y Milles v. Fletcher, Doug. 230.