of the damages actually sustained (y). The mere fact of the underwriter refusing to accept the notice of abandonment will not affect the question (z). An abandonment by an insured after receiving intelligence of a capture, under circumstances which would at the time entitle him to recover as for a total loss, will not be defeated merely by the restitution of the ship's hull before action brought. The restitution, however, must, for this rule to apply, be under such a condition as to render it uncertain whether the insured may not have to pay more than its value (a). CASES. 1. A ship was insured on a voyage from Saigon to Hong Kong. Having sailed on the 14th January, on the 22nd she struck on a bank and was damaged. On the 24th she was towed back to Saigon, and discharged her cargo. The owners' house at Singapore having on the 7th February determined to sell, the ship was sold on the 23rd. On the 27th the Singapore house wrote to their London agents to inform the underwriters of the facts. On the 11th March a claim for a total loss was made against the underwriters. Held, that no notice of abandonment having been given within a reasonable time, the underwriters were not liable (b). 2. A ship in the course of her voyage struck on an iceberg on the 27th of July, and was considerably injured, but reached Liverpool. While in the Mersey she grounded outside the docks on the 11th of August, but was afterwards taken into dock, and her cargo discharged. After a survey, she was on the 1st of September abandoned by the owner to the underwriters on ship, and the owners claimed as for a total loss. Held, that the underwriters could, in settling for a total loss, have the benefit in account of the freight which the owner had received on the discharge of the cargo (c). 3. Havre, the port of destination of an insured vessel, was declared by the British government to be blockaded, and so the further prosecution of the voyage was prohibited. The blockade was publicly notified here on the 6th of September, but no notice (y) Brotherston v. Barber, 5 M. & S. 418; Bainbridge v. Neilson, 10 East, 329; Naylor v. Taylor, 9 B. & Cr. 718. (z) Patterson v. Ritchie, 4 M. & S. (a) M'Iver v. Henderson, 4 M. & S. 576. (b) Kaltenbach v. Mackenzie, supra. (e) Stewart v. Greenock Mar. Ins. Co., 2 H. of L. Cas. 159. When ship owner can abandon. of abandonment was given by the insured to the underwriter till the 14th of October. Held, that the notice was out of time-and this, though the agents of the insured in this country had no notice till the 17th of October of the decree for the restoration of the ship and goods, which had been made on the 8th of October (d). 4. An insured ship arrived at the port of Kinsale on the 24th November. She was surveyed a second time on the 14th December, when it was found that the cost of repairing her would exceed the value of the ship. Notice of abandonment was given to the underwriters in London on the 6th of January. Held, that the notice was too late (e). 5. A cargo of sugar insured was damaged during the voyage by sea-water. The ship reaching port on the 20th of December, the sugar was unshipped and examined on the 21st. The insured, however, did not receive the complete report of the survey till the 7th January, on which day he gave notice of abandonment. Held, that the notice was given within a reasonable time, though the insured had in the interim contemplated that the loss would be partial, and that the adventure might be completed (ƒ). § 153. The following circumstances will justify the shipowner in giving notice of abandonment of a vessel insured, and in claiming for a constructive total loss(1) Capture of the vessel by an enemy (g) or pirates (1). But if the vessel be recaptured and restored to her owners before action brought, they cannot claim as for a total loss, though the loss were total when they gave notice of abandonment (i). (2) Arrest, detention, or embargo of the ship, unless of trifling duration (). But a mere anticipated (d) Barker v. Blakes, 9 East, 283. (e) Aldridge v. Bell, 1 Stark. 498. (f) Gernon v. R. Ex. Ass. Co., 6 Taunt. 381. (g) Hamilton v. Mendes, 2 Burr. 1198; Paterson v. Ritchie, 4 M. & Sel. 393. See Ch. V. p. 252. (h) Dean v. Hornby, 3 E. & B. 180. (i) Bainbridge v. Neilson, 10 East, 329; Patterson v. Ritchie, 4 M. & S. 393; Naylor v. Taylor, 9 B. & Cr. 718; Dean v. Hornby, 3 E. & B. 180; Lozano v. Janson, 2 E. & E. 160; McIver v. Henderson, 4 M. & Sel. 576. (k) Rotch v. Edie, 6 T. R. 413; Forster v. Christie, 11 East, 205; see "Cases" (1) at end of this §. embargo, arrest, or detention will not found a claim for a constructive total loss. (3) If the ship is injured to such an extent that it is practically useless, and the cost of extricating and repairing her would exceed what she was worth; provided only the ship were seaworthy at the commencement of her voyage. But if the vessel can be repaired so as to keep the sea at less expense than her repaired value (i. e. the worth of the vessel to her owner when repaired), the insured cannot abandon merely because, on account of the decayed condition of the vessel, the expense of complete repairs would exceed her value after the execution of the repairs (m). (4) Barratrous seizure, or total desertion at sea of the vessel by the crew (n). CASES. 1. A British ship insured from Hull to St. Petersburg sailed under a convoy to the Sound, but was subsequently stopped by a British man-of-war in the Baltic for eleven days, through hostilities being apprehended. She then proceeded to a point of rendezvous for convoy, and had to wait there seven days longer. She then sailed under convoy, till, intelligence being received that a hostile embargo was laid on British ships at St. Petersburgh, she was ordered back to the place of rendezvous. She then returned to Hull. Held, that the loss of the voyage, being due merely to the fear of a hostile embargo, was not within the policy; though, if the ship had not been in the first instance detained by the British man-of-war, she would have discharged her cargo at St. Petersburg before the embargo (0). 2. A ship was insured by a policy in which the value was stated at 17,500l. The ship was injured by storms; surveyed, and the requisite repairs estimated at 10,500l. When repaired the vessel would only have been worth in the market 9,000l. Held, that the insured could abandon and claim as for a total loss (p). (m) Irving v. Manning, 1 H. of L. Cas. 287; see "Cases" (2) at end of this; Furneaux v. Bradley, 1 Park, Ins. 257. (n) Dixon v. Reid, 5 B. & Ald. 597; see "Cases" (5) on page 266. (0) Foster v. Christie, 11 East, 205. (p) Irving v. Manning, 1 H. of L. Cas. 287. When the abandon. § 154. The owner of goods insured will be prima facie justified merchant can in giving notice of abandonment of them, in the event of— (1) Capture, arrest or embargo, unless of a temporary character. If the capture be followed by confiscation no notice will be necessary, such being a loss total per se (o). (2) Barratrous seizure or desertion of the vessel by the crew (p). (3) The owner being deprived of the control over his goods. (4) The ship being disabled, and the goods (being of a perishable nature and sea-damaged, but not if imperishable or undamaged (q)) being sold by the master. Provided that the ship cannot be soon repaired, or another procured (r); for, if it can, the master will have no right to sell the goods, and consequently the owner cannot abandon and recover as for a total loss. If the goods are seadamaged to such an extent that they must perish before reaching their port of discharge, the master may sell them, and the owner may, without notice of abandonment, recover as for a total loss, though the ship can be repaired or another can be procured (s). In determining whether the goods are worth the cost of transhipping and forwarding, the following are the circumstances to be considered :—the cost of unloading the cargo, of drying and warehousing, and of transhipping Gurney, 11 C. B. 176. (0) Ante, pp. 263, 264. (p) Dixon v. Reid, 5 B. & Ald. 597; see "Cases" (5) on page 266. (9) Anderson v. Wallis, 2 M. & Sel. 240; Hunt v. Royal Ex. Ass. Co., 5 M. & Sel. 47; Underwood v. Robertson, 4 Camp. 138; Thompson v. Royal Ex. Ass. Co., 16 East, 214; Navone v. Haddon, 9 C. B. 30; see "Case" at end of this §; Rosetto v. (r) Anderson v. Royal Ex. Ass. Co., 7 East, 38; Rosetto v. Gurney, 11 C. B. 176; Farnworth v. Hyde, L. R., 2 C. P. 204 (S. C.); Meyer v. Ralli, 1 C. P. D. 358. (s) Roux v. Salvador, 3 Bing. N. C. 266 (S. C.); Saunders v. Baring, 34 L. T., N.S. 419; see "Cases" (1) and (2) on p. 265, ante. it; the freight to be paid for the use of the second ship; and the amount of salvage money, but not the cost of a bottomry bond. If all these added together be in excess of the selling value of the cargo at its port of destination, the owner of the goods can abandon and recover as for a total loss (f). Where the ship is so disabled by perils of the sea that the shipowner is not bound to carry the goods on, and he elects not to, the whole of the cost of the transit from the place of distress to the place of destination cannot be taken into consideration by the jury, but merely the excess of that cost above what would have been incurred had no peril intervened (u). restored If, before the action is brought, the goods have been Goods restored to the insured, or if they have been brought into before action. England, and it is in his power to take possession of them, he will lose his right to recover for a constructive total loss (r), though the loss were total when notice of abandonment was given. But the total loss will not be reduced to a partial, if the goods are only recovered after action brought (y). CASE. Certain bales of waste silk were insured from Leghorn to Liverpool, with the usual memorandum declaring silk free from average unless general or the ship should be stranded. The ship being compelled by stress of weather to put into Gibraltar was there repaired, her cargo being necessarily unloaded. Some of the bales being found to be considerably damaged were sold at Gibraltar by the master, in the exercise of a reasonable discretion. The silk might, however, at a moderate cost, have been brought here. It was in fact brought to England and sold as silk, though in a very deteriorated state. Held, that this was not a total loss, and that the assured was not entitled to recover (z). (t) Rule in Rosetto v. Gurney, 11 C. B. 176; Farnworth v. Hyde, L. R., 2 C. P. 204 (S. C.). (u) Farnworth v. Hyde, L. R., 2 C. P. 204 (S. C.). (x) Naylor v. Taylor, 9 B. & Cr. N. 718; 4 M. & Ryl. 526; Dixon v. (y) Rodocanachi v. Elliott, L. R., (z) Navone v. Haddon, 9 C. B. 30. T |