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made in a reasonable time, the insurers are not liable for a total loss, although no damage can be shown to have accrued to them by reason of the delay.1 But the proof of the delay must be clear and positive, and it is not sufficient to show that the letter informing the insured of the loss was dated some time before he abandoned.2 The reason for requiring immediate abandonment, is, that the insurers should be put in a position to make the most of the salvage transferred to them, as soon as possible.

Even if it be stipulated that he shall not abandon until so many days after intelligence or proof of loss, he may still abandon at once on receiving this intelligence; and if he then hands over the papers and proof, and continues his claim, the abandonment

and the owners after waiting two or three years to get the proceeds, abandoned, the agent who had the money having become insolvent. Held that it was too late. In Fleming v. Smith, 1 H. of L. Cas. 513, a vessel insured on a time policy was compelled by perils of the sea to put into Mauritius. The master wrote to the owners telling of the injuries the vessel had received, and of his intention to raise money on bottomry for the purpose of making the repairs. Other letters were written, which were received between September and December, 1842. In the latter month, the owners wrote, expressing their surprise at the amount required, at the same time saying that they supposed that what was done was the best that could be done under the circumstances. The repairs exceeded half the value of the vessel, and three days after the vessel arrived home the owners abandoned. Held that the abandonment was not made in time. See also, Kelly v. Walton, 2 Camp. 155. In Bell v. Beveridge, 4 Dall. 272, 1 Binn. 52, note; the cargo was seized by a foreign government, and the plaintiff had notice of it in August, 1793. The yellow fever soon afterwards made its appearance, and the plaintiffs went into the country on the 10th of September, 1793, and returned November 19, and then went on a journey to South Carolina, and did not abandon till the 21st day of January, 1794. The court held that there did not appear to be any design to waive the right of abandonment, though its exercise was suspended by a public calamity, and other fortuitous circumstances. Although the assured might be excused from exercising his right of abandonment during the epidemic, yet the subsequent delay seems hardly justifiable. See also, M'Calmont v. Murgatroyd, 3 Yeates, 27. In Duncan v. Koch, J. B. Wallace, 33, there was a delay of ten days, while the papers were in the hands of a notary for the purpose of being translated and the loss adjusted, before notice was given to the underwriters; but no notice was taken of this delay by the court. In Gardner v. Columbian Ins. Co., 2 Cranch, C. C. 550, the loss was known November 24. The protest and letter of abandonment was sent to the defendant December 26. The master arrived December 12, and there was no evidence of the arrival of any authentic proof prior to that date. Held that the abandonment was not too late. See also, Read v. Bonham, 3 Brod. & B. 147.

1 Mellon v. Louisiana State Ins. Co., 17 Mart. La. 563.

2 Marine Ins. Co. of Alexandria v. Tucker, 3 Cranch, 357.

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will be valid, although he cannot claim payment any sooner than if he had delayed the abandonment; but if the property is restored before the expiration of the time, the right to abandon is gone. Where a policy contained a clause warranting not to abandon in case of capture or detention until six months after notice thereof given to the insurers, it was held that if the vessel was condemned the assured could abandon immediately.3

The abandonment may be made on any actual information, however it be derived, if it be worthy of trust and credit; and might even be made, under some circumstances, upon a general rumor and belief; but it should not be made on mere conjecture or possibility. And if the first intelligence received be not such as ought to be trusted and received as authentic, the insured has a right to wait until he receives more certain intelligence. It would, however, be dangerous to press this too far;

1 Livingston v. Maryland Ins. Co., 6 Cranch, 274, 7 Cranch, 506. In Columbian Ins. Co. v. Catlett, 12 Wheat. 383, the policy contained the following clause: "It is hereby agreed that the insured shall not abandon to the insurers until sixty days have elapsed after having given notice to them of his intention so to do, and of the loss or event which may entitle the insured thereto." It was held that the party might abandon at any time, the abandonment taking effect at the expiration of the sixty days. See also, Lovering v. Mercantile Ins. Co., 12 Pick. 348; Clarkson v. Phoenix Ins. Co., 9 Johns. 1.

2 Dorr v. Union Ins. Co., 8 Mass. 502; Delano v. Bedford Mar. Ins. Co., 10 Mass. 347. See Law v. Goddard, 12 Mass. 112.

3 Ogden v. Columbian Ins. Co., 10 Johns. 273.

In Muir v. United Ins. Co., 1 Caines, 49, it was doubted whether an abandonment could be made upon newspaper information.

6 In Bosley v. Chesapeake Ins. Co. 3 Gill & J. 450, it was held that since the abandonment must state the cause of the loss, it is necessary that not only the existing facts should constitute a total loss, but also that the assured should be informed of the accident which occasioned it, and that he cannot therefore abandon upon the apprehension that a loss has taken place, and afterwards establish his right to do so by facts that subsequently come to his knowledge. The language of Lord Ellenborough, however, in Bainbridge v. Neilson, 1 Camp. 237, 10 East, 329, 341, shows that that learned judge considered the law to be that the insured might abandon upon any intelligence whatsoever, and his right to recover depended merely upon the truth or falsehood of such information.

6 Gardner v. Columbian Ins. Co., 2 Cranch, C. C. 550. In Duncan v. Koch, J. B. Wallace, 33, 45, Griffith, J., said: "In cases of this kind it is difficult to propose a rule by which to determine what shall be notice of a loss, to the assured: much must depend on circumstances. If the loss be well authenticated, or well known, immediate 35

VOL. II.

for the rule as illustrated by its reason - must be, that if the intelligence or information be such as might call upon the insurers to take at once any precautionary measures, or any incipient steps towards the recovery of the salvage, they must be entitled to the information because they may be prejudiced by the withholding it. So, if the effects of the peril or loss are not yet ascertained, or if efforts are making for the recovery of the vessel, there may be some delay for these reasons; because, after abandonment the property belongs to the insurers, and the insured might discontinue efforts to save that which was no longer theirs; and it is for the interest of the insurers that such efforts should be made.1

dereliction should be tendered by the assured. If not certainly known, but from strong evidence fully believed, and he suspends his option with a view to avail himself of some favorable contingency for the disposition of the property insured on his own account, this might, if the loss had in fact happened (though I do not say it would), turn the property upon him, at its full or supposed value. But such intent must certainly be proved, and clearly proved, not inferred from slight circumstances, or from the probability that such would naturally be a motive with the assured for delaying a surrender to the underwriters."

1 In Reynolds v. Ocean Ins. Co., 22 Pick. 191, 193, Shaw, C. J., instructed the jury, in a case where a vessel was stranded and the assured did not abandon till eleven days afterwards, that if they were satisfied, that upon the first information the assured were in a state of uncertainty as to the actual condition of the vessel, and waited a few days for more definite information, and not with a view to speculate upon chances, if the vessel was stranded and not bilged, and if the length of time she remained ashore had increased the probability that she could not be got off, and the loss continued total at the time of the abandonment, there were circumstances tending to show that the abandonment was made within a reasonable time. These instructions were held to be correct by the full court. And in Gernon v. Royal Exch. Ass. Co., 6 Taunt. 383, where an abandonment was delayed in order that the condition of a damaged cargo of sugars might be ascertained, Gibbs, C. J., delivering the opinion of the court, after stating the general rule to be that the assured must elect in the first instance whether he would consider the loss total or partial, said: "The first instance means, after the assured has had a convenient opportunity of examining into the circumstances which render abandonment expedient or otherwise; because it is on the result of that examination that he is to make up his mind, whether he will abandon or not. Let it not be supposed that I accede to the proposition, that the assured may use this latitude as an opportunity to judge of the state of the markets, and as the markets fall and rise, to elect whether he will abandon or not abandon. He has no right to govern his conduct by any such rule. The only examination he may make, is into the actual state of the cargo, to ascertain what is the degree of damage, without reference to the state of the markets. See also, Teasdale v. Charleston Ins. Co., 2 Brev. 190; Anderson v. Royal Exch. Ass. Co., 7 East, 38.

It is said in some American cases, that the abandonment may be made at any time, so long as the loss continues to be total.1 This however must mean so long as the loss continues actually total; as by capture and condemnation. But even here, it is difficult to see what reason or equity there can be in any other rule, than that if an abandonment be unnecessary, it is no matter when it is made, because it need not be made at all. But if it must be made for the purpose of transferring salvage, it should be made at once, that the insurers may be able to derive the utmost advantage from it. At all events, it must be certain that there can be no delay which does not destroy the right of abandonment, if such delay prejudice or impair the rights of the insurers to indemnify themselves by the salvage, to the utmost practicable extent.

Even, however, if the insured has lost the right of abandonment by his delay or neglect, there are cases which indicate that he may recover that right if there be some new, additional, independent, and materially injurious effect of a peril insured against. It is perhaps on some ground like this, that in case of capture it has been held that the assured need not abandon as soon as he hears of the detention, but may wait till the vessel is condemned, and then, without taking an appeal, abandon; but we think the cases so deciding are far from satisfactory.2

1 Brown v. Phoenix Ins. Co., and Montgomery v. United States Ins. Co., 4 Binn. 445; Roget v. Thurston, 2 Johns. Cas. 248; Lawrence v. Sebor, 2 Caines, 203; Steinbach v. Columbian Ins. Co., 2 Caines, 129, 132, where an abandonment fifteen months after seizure was held to be good. In Tom v. Smith, 3 Caines, 245, it was held that this rule did not apply where the assured had treated the loss as partial. In Livermore v. Newburyport Mar. Ins. Co., 1 Mass. 264, 277, it was held that in case of capture as well as in any other case of constructive total loss, a seasonable abandonment must be made, and it is not enough that the loss continues to be total. Sewall, J., in speaking of the passage from Marshall, which seems to support the rule contended for, said: "The rule respecting the manner of exercising that right is too well established to be shaken or rendered in any degree doubtful by the mere statement of an author, without any adjudged case to support it." But see the dictum of the same learned judge in Dorr v. New England Ins. Co., 11 Mass. 1, 5.

2 There appears to be some misapprehension as to the effect of the authorities on this subject. Mr. Arnould states it to be the established English doctrine that no abandonment can be made in case of condemnation, but that the assured should abandon on receiving intelligence of the seizure. 2 Arnould, Ins. 1166, citing Mullet v. Shedden, 13 East, 304; Mellish v. Andrews, 15 East, 13. In the former case the cargo insured was seized and condemned, and taken out of the vessel and sold. No

SECTION VIII.

OF REVOCATION OF ABANDONMENT.

We have seen that no person insured need abandon, unless he chooses to; but if he does so, he tenders thereby an absolute

abandonment was made until after the news of the condemnation and sale arrived. An appeal was taken, and the decree of condemnation reversed, the seizure being held to be illegal. Lord Ellenborough said: “If instead of the saltpetre having been taken out of the ship and sold, and the property devested, and the subject-matter lost to the owner, it had remained on board the ship, and been restored at last to the owner, I should have thought there was much in the argument, that in order to make it a total loss, there should have been notice of abandonment, and that such notice should have been given sooner: but here the property itself was wholly lost to the owner, and therefore the necessity of any abandonment was altogether done away." So in Mellish v. Andrews, 15 East, 13, where, subsequent to the abandonment, which was not made in a reasonable time after notice of the vessel being seized, the cargo was unladen by a military force acting under the orders of a foreign government, and was never restored, it was held that no abandonment was necessary, and the question whether an abandonment could be made, was not decided. The case of Kelly v. Walton, 2 Camp. 155, is cited by Mr. Phillips, § 1669, to the point that a subsequent abandonment may be made, if the detention continues so long that it is of no use to pursue the adventure. The insurance in this case was on a cargo of flax-seed from the United States to a port in Ireland. The vessel was detained by an embargo, information of which was received February 11, 1808, but no abandonment was made till the 11th of June following. It was proved by an Irish statute, that no flax-seed can be sold for sowing, unless that of the growth of the preceding year, and that the sowing season commenced in March and ended on the 10th of May. It was accordingly insisted that the plaintiff had a right to wait while there was a possibility of its arriving in time, and afterwards to abandon. Lord Ellenborough held that the right to abandon on account of the detention was gone on the insured's not abandoning at first, and that if it had revived by the new state of circumstances, yet that it had not been exercised in time.

In Dorr v. Union Ins. Co., 8 Mass. 494, where a vessel was seized for a cause which the assured knew did not in fact exist, it was held that an abandonment, made on intelligence being received of the condemnation, was in sufficient time. The same point was determined in Dorr v. New England Ins. Co., 11 Mass. 1, which differed from the case against the Union Insurance Co., in the fact that the policy, which was on time, had expired before the condemnation took place, but the court held that this made no difference. In many cases in this country, the courts seem to proceed on the ground that the assured can in any case, and for any purpose wait till the condemnation, and then abandon. Earl v. Shaw, 1 Johns. Cas. 313; Bohlen v. Delaware Ins. Co., 4 Binn. 430; Maryland Ins. Co. v. Bathurst, 5 Gill & J. 159, 221. And in Mey v. Tunno, 2 Bay, 307, it was held that he might abandon if the vessel was ordered to

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