port of destination without returning for the rest of the cargo, acting throughout as a prudent owner, uninsured, would have done,-it was held that the freight was not lost by perils of the seas. Philpot v. Swann, 11 C. B., N. S. 270; 30 L. J., C. P. 358, citing and approving Mordy v. Jones, 4 B. & C. 394, and Moss v. Smith, 9 C. B. 94; 19 L. J., C. P. 225. In case of sale, by the master of a ship or goods in specie, there must be a clear case of extreme necessity to constitute an actual loss without abandonment. Where the thing insured exists in specie, the general rule is that the loss is constructive only, and the assured can only found a claim for total loss by abandonment. Knight v. Faith, 15 Q. B. 649; 19 L. J., Q. B. 509; and the cases cited in the judgment. See also the judgment in King v. Walker, 3 H. & C. 209; 33 L. J., Ex. 325, Ex. Ch. There is no total loss of freight, merely because there was an injury to the ship by perils of the sea, which cost more to repair than the amount of freight; if the ship itself was worth repairing. Moss v. Smith, supra. See further as to what amounts to a total loss of freight. Potter v. Rankin, L. R., 6 H. L. 83; Allison v. Bristol Marine Insur. Co., 1 Ap. Ca. 209, D. P. Where a cargo was partially lost by sea perils insured against, and the residue sold, by order of the Court of Admiralty, in course of proceedings instituted by the salvors, the whole proceeds being absorbed in payment of costs, it was held that there was no total loss, the sale being too remote a consequence of the sea perils. De Mattos v. Saunders, L. R., 7 C. P. 570. Where freight is eventually earned, although paid to the obligees of a bottomry bond (by a decree of the Admiralty), which the master has been obliged to enter into in order to get money necessary for repairs, the shipowner cannot claim either for total or partial loss of freight. Benson v. Chapman, 8 C. B. 950; 2 H. L. C. 696. A loss, which by abandonment might become total, may become a partial loss only by subsequent events, as by recapture, release from detention, &c., before action. 2 Wms. Saund. 203 i, (f).

As to loss, where the insurance is effected on special adventures, e.g., the successful laying of a submarine telegraph cable, see Wilson v. Jones, L. R., 1 Ex. 193; L. R., 2 Ex. 139, Ex. Ch.

An insurance "against total loss only" does not exclude a constructive total loss. Adams v. Mackenzie, 13 C. B., N. S. 442; 32 L. J., C. P. 92. But, the doctrine of constructive total loss does not apply to a bottomry bond; Broomfield v. S. Insur. Co., L. R., 5 Ex. 192; for, the__doctrine does not apply so as to avoid the bond; The Great Pacific, L. R., 2 P. C. 516. Where the plaintiff's goods, by the perils insured against, are damaged, and get so mixed, with the similar goods of other persons, that they cannot be identified, the owners become tenants in common of the goods in the proportion of the respective quantities they each had, and there is no actual or constructive total loss. Spence v. Union Marine Insur. Co., L. R.,

3 C. P. 427.

In the case of loss to goods, not in its inception total, the claim to indemnity does not arise, until it can be ascertained what is the amount of the injury sustained. Browning v. Provincial Insur. Co. of Canada, L. R., 5

P. C. 263.

Proof of loss-Abandonment.] The cases in which abandonment is necessary have been thus described :-There may be a capture which, though prima facie a total loss, may be followed by recapture. There may be a forcible detention, which may speedily terminate, or may last so long as to end in the impossibility of bringing ship or goods to their destination. There may be some other peril which renders the ship unnavigable, without reasonable hope of repair, or by which goods are partly lost, or so damaged

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In

as not to be worth the expense of bringing them to their destination. these or similar cases, if a prudent man, not insured, would decline any further expense in prosecuting the adventure, a party insured may, for his own benefit, as well as that of the underwriter, treat the case as one of total loss. But, if he elects to do so, the principle of indemnity requires that he should make a cession of all his right to the recovery of it, and that, too, within a reasonable time after he receives intelligence of the accident. In all these cases the thing assured, or part of it, is supposed to exist in specie, and there is a possibility, however remote, of its arriving at its destination, or of its value being in some way affected by the measures that may be adopted for the recovery or preservation of it. Roux v. Salvador, 3 N. C. 286, Ex. Ch., per cur. "A mere loss of the adventure by retardation of the voyage, without loss of the thing insured, either by its being actually taken from the ship or spoiled, does not constitute a total loss under a policy of insurance, unless by the aid and effect of an abandonment." Naylor v. Taylor, 9 B. & C. 723, per cur. In order to justify an abandonment, there must have been that in the course of the voyage which, at the time, constituted a total loss; thus, the desertion of a ship, necessitated at the time by stress of weather, coupled with a notice of abandonment, constitutes a total loss; though the ship be afterwards saved. Holdsworth v. Wise, 7 B. & C.

794. Where a cargo of hides, in consequence of a leak, began to putrify, and was sold at an intermediate port for less than a fourth of their value, and it appeared that, if not sold, they could not have arrived at the end of the voyage as hides, it was held to be a total loss without an abandonment. Roux v. Salvador, 3 N. C. 266, Ex. Ch. See also Farnworth v. Hyde, 18 C. B., N. S. 835; 34 L. J., C. P. 207; Potter v. Rankin, L. R., 6 H. L. 83. In this last case, the policy was on freight to be earned on a subsequent voyage, and the decision is explained by the C. A. in Kaltenbach v. Mackenzie, 3 C. P. D. 467. The mere loss of the voyage, by delay or otherwise, will not warrant the abandonment of ship or cargo, if either remain in specie. Anderson v. Wallis, 2 M. & S. 240; Falkner v. Ritchie, Id. 290; Hunt v. R. Exch. Assur. Co., 5 M. & S. 47. But, where goods are hostilely detained in a besieged town, they may be abandoned. Rodocanachi v. Elliott, L. R., 8 C. P. 649; L. R., 9 C. P., 518, Ex. Ch.

An abandonment may be made orally; but, it should be certain; and therefore a statement of the facts with a request to settle for a total loss, and to direct the disposal of the ship, has been held insufficient. Parmeter v. Todhunter, 1 Camp. 541. So, the communication to the underwriters of a letter from the captain stating that the ship is, in his opinion, so disabled that it would be better for the interests of all parties to sell her, but that he is taking legal advice, and adding "give the different clubs notice of our position," was held no notice of abandonment. King v. Walker, 2 H. & C. 384; 33 L. J., Ex. 167. But, it appearing that another letter had been written by the captain by the next monthly mail, and communicated to the underwriters, in which he announced that he had sold, "give the clubs notice:" that was held a notice of abandonment, and in good time. S. C., 3 H. & C. 209; 33 L. J., Ex. 325; Ex. Ch. The notice of abandonment need not contain the technical word "abandon." Currie v. Bombay Native Insur. Co., L. R., 3 P. C. 72, 79, dissenting on this point from Lď. Ellenborough in Parmeter v. Todhunter, supra. It must be given as soon as possible. Hunt v. R. Exch. Assur. Co., post, p. 400; Potter v. Campbell, cited L. R., 3 C. P. 304, n.; Kaltenbach v. Mackenzie, supra. It must be unconditional and unqualified. M'Masters v. Shoolbred, 1 Esp. 239. But, an informality or inaccurate statement in it will not vitiate it. Hornby, 3 E. & B. 180. It must apply to the entire subject of insurance, and not to part only. 2 Wm. Saund. 203 g. (19); 3 Kent, Com. 329. On

Dean v.

the other hand, the underwriter, if he intends to dispute it, is bound to say so, within a reasonable time after receiving notice of abandonment; otherwise he will be taken to have acquiesced in it. Hudson v. Harrison, 3 B. & B. 97. Where the assured has elected to treat a seizure as a partial loss, he loses the right of abandoning on the same state of facts, relative to the extent and degree of the operation and effects of the perils insured against. Stringer v. English Insur. Co., L. R., 4 Q. B. 676, 689; L. R., 5 Q. B. 599, Ex. Ch. Silence does not amount to an acceptance of the notice of abandonment, but, where the insurer has, upon receiving the notice, taken possession of the subject-matter insured, he is bound thereby, and cannot afterwards rely on a breach of warranty of which he had notice. Provincial Insur. Co. of Canada v. Leduc, L. R., 6 P. C. 224, per cur.

A party, jointly interested in the subject-matter of the insurance, and who has effected the insurance, may give notice of abandonment for all; Hunt v. R. Exch. Assur. Co., 5 M. & S. 47. But, the person with whom a policy on a ship has been simply deposited as a security for a loan to the shipowner has no implied authority to give notice of abandonment to the underwriters; and, a notice given by such person cannot enure for the benefit of the shipowner, so as to enable him to recover upon a constructive total loss. Jardine v. Leathley, 3 B. & S. 700; 32 L. J., Q. B. 132.

Proof of amount of loss-Adjustment.] If the liability is not disputed, and the policy is an open one, the parties usually proceed to adjust the amount, and this adjustment is an admission of the facts on which the claims are founded, and is evidence against the underwriter of the amount due. It is proved by evidence of his signature, or that of his agent, with proof of the authority of the latter; and it seems that an agent, who has authority to subscribe a policy, has also authority to sign an adjustment of the loss. Richardson v. Anderson, 1 Camp. 43, n. But, an adjustment is only prima facie evidence against the underwriter, and does not bind him, unless there was a full disclosure of the circumstances of the case; Shepherd v. Chewter, Id. 274; and fraud opens an adjustment; Christian v. Coombe, 2 Esp. 489. A clause may be inserted in the policy, requiring the loss to be adjusted before an action can be maintained on the policy. Tredwen v. Holman, 1 H. & C. 72; 31 L. J, Ex. 398. Where the policy provides for payment of losses as per foreign statement," the parties are bound by the statement made up according to the foreign law. Harris v. Scaramanga, L. R., 7 C. P. 481; Hendricks v. Australasian Insur. Co., L. R., 9 C. P. 460; Mavro v. Ocean Marine Insur. Co., Id. 595; L. R., 10 C. P. 414, Ex. Ch. See also Stewart v. W. India, &c. Steamship Co., L. R., 8 Q. B. 88, 362. An adjustment does not require a stamp. Wiebe v. Simpson, 2 Selw. N. P., 13th ed., 921.

Loss, how to be calculated.] The rule on an open policy is to estimate the actual value of the subject insured at its actual or market value at the commencement of the risk. The object of insurance is merely to put the party in statu quo, and not to indemnify him for the loss of prospective profits. 3 Kent, Com. 335. If the claim be on repairs of a ship, the full costs of repair will not be allowed, because the owner substitutes new for old materials. Poingdestre v. R. Exch. Assur. Co., Ry. & M. 378. The usage is, in such case, to deduct a third from the cost of repair; S. C.; Lohre v. Aitchison, 4 Ap. Ca. 755, 762, D. P.; unless the ship be on her first voyage; Pirie v. Steele, 2 M. & Rob. 49; see Byrne v. Mercantile Insur. Co., 4 H. & C. 506. Quare, if this rule extends to iron vessels. See Lidgett v. Secretan, L. R., 6 C. P. 616, 627. The assured may recover this proportion of the cost of repair, although such cost amount to more than total loss with

Loss, how to be calculated.

401

benefit of salvage. Lohre v. Aitchison, 4 Ap. Ca. 755, D. P. But, where the assured instead of repairing the ship sells her during the continuance of the risk, the loss recoverable is not this proportion, but, is her depreciation in value, ie., the difference between the value of the ship, if sound, at the port of distress, and her value there in a damaged state. Pitman v. Universal Marine Insur. Co., 9 Q. B. D. 192, C. A., diss. Brett, L.J.

Where the claim is for partial loss, on damaged goods, sold at the destined port, the sum to be paid by the insurer, is to bear the same ratio to the original value at the port of lading, as the gross proceeds of the actual sale, bear, to what would have been the gross proceeds, if the goods had been sound when sold. The expenses of insurance and commission are to form part of the original value in this calculation, and added to the prime cost, or invoice price. Johnson v. Sheddon, 2 East, 581; Usher v. Noble, 12 East, 639. The payment of freight, is not to be considered, unless the freight be also insured. 3 Kent. Com. 337. Besides the amount subscribed for by the underwriters, they may become liable for average losses, and under the suing and labouring clause, for moneys expended in and about the attempting to save or recover the subject insured, if claimed in the statement of claim; Le Cheminant v. Pearson, 4 Taunt. 367; but, not for salvage awarded against the ship; Lohre v. Aitchison, 2 Q. B. D. 501; 4 Ap. Ca. 755, D. P., reversing on this point C. A., 3 Q. B. D. 558; 3 Kent, Com. 339, 340.

In an action on insurance of goods, if the declaration alleged the ship to have been sunk, whereby the goods were spoiled, and it appeared that some of the goods were saved, the plaintiff might have given the expense of salvage in evidence, though not specially averred. Cary v. King, Cas. t. Hardw. 304; see Lohre v. Aitchison, 4 Ap. Ca. 755, 765.

In open policies the assured must prove the extent of his loss; but, in valued policies, if the loss be a total one, he is only bound to prove some interest in the ship or goods, in order to take the case out of the statute 19 Geo. 2, c. 37; for, ever since that statute, the constant usage has been to permit the valuation fixed in the policy to stand, unless the defendant can show that the plaintiff had a colourable interest only, or, that he has greatly overvalued the goods. But, where the loss is partial, it opens a valued policy; and the plaintiff is as much bound to prove the value of the goods that have been lost, and to ascertain the damage he has sustained by the loss, as in the case of an open policy. 2 Wms. Saund. 201 1, (8); Irving v. Manning, 1 H. L. C. 287. A ship was insured on a valued time policy; she had, when the policy was made, but unknown to the parties, been so injured by a storm that the expense of repairs would have exceeded the value when repaired; during the continuance of the risk, the vessel was lost it was held that the underwriters were bound to pay the full amount. Barker v. Janson, L. R., 3 C. P. 301. So, where two valued policies were effected with the same underwriters on a ship, one (A.) on an outward, and the other (B.) on the homeward voyage; and, on the outward voyage, the ship sustained damage, which was not entirely repaired, and, after the expiration of the policy A., and while the policy B. was running, was totally destroyed by fire, it was held that the assured might recover, under policy A., the partial loss as it would have been estimated at the expiration of policy A.; and, also under policy B., the value as a total loss. Lidgett v. Secretan, ante, p. 400. Where, however, during the continuance of one risk there is a partial loss followed by a total loss, the underwriter is liable for the latter only; although he may also be liable under the suing and labouring clause (vide supra); S. C., L. R. 6 C. P. 625. The certificate of an agent of Lloyd's is not admissible to prove the amount of damage sustained by goods, though the defendant is a subscriber to Lloyd's. Drake v. Marryat, 1 B. & C. 473. Where a policy contained a clause, "the said ship, &c., goods, merchandise,

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&c., for so much as concerns the assured by agreement between the assured and assurers in the policy, are and shall be valued as under," the two last words being added in writing; and, some way further down in the policy was written 1300l., and in the body, "on freight free from capture, seizure, &c. ;" it was held this was not a valued policy. Wilson v. Nelson, 5 B. & S. 354; 33 L. J., Q. B. 220.

In a valued policy, the risk on the goods was to commence on the loading thereof 24 hours after ship's arrival at the coast of Africa; a considerable part of the cargo was not shipped at the time of a total loss, and the part shipped was not equal to the value put upon the goods in the policy-it was held that the valuation was opened, and that the assured was only entitled to recover a proportion calculated on the part of the cargo shipped at the time of the loss. Rickman v. Carstairs, 5 B. & Ad. 651. A similar principle was adopted in Tobin v. Harford, 18 C. B., N. S. 528; 34 L. J., C. P. 37, Ex. Ch.; and Denoon v. Home & Colonial Assur. Co., L. R., 7 C. P. 341. On a policy on freight, the ship having actually earned full freight, though not that intended for her, the assured cannot recover for the delay and expense as a partial loss. Brocklebank v. Sugrue, 1 M. & Rob. 102.

The amount recoverable depends on the value of the thing insured, the sum insured, and the amount of loss; and as the contract of marine insurance is a contract of indemnity merely, where there are several policies on the same risk, and the assured has been paid on some of the policies, he can only recover, on the one in suit, such an amount as with the sums already received will give him indemnity against the loss actually sustained. In ascertaining this loss, in an action on an open policy, the true value of the thing assured is the criterion. But, on a valued policy, the assured can only recover to the amount that the thing is valued in the particular policy; and if he has already received that value on another policy, he cannot recover anything further, although the true value and loss be beyond what he has already received. Bruce v. Jones, 1 H. & C. 769; 32 L. J., Ex. 132.

Where by one policy a ship was insured from B. to C., and for 30 days after mooring at C.; and the owners, on hearing the ship had arrived at C., effected another insurance at and from C. to B.; and the ship was during the currency of both policies totally lost at C.; it was held that the second policy was in substitution of the first. Union Marine Insur. Co. v. Martin, 35 L. J., C. P. 181.

Where there is an insurance of cargo against jettison, and goods are jettisoned, the underwriters must pay the whole amount insured, without deducting the general average contributions the insured is entitled to receive from the owners of the ship and the rest of the cargo. Dickenson v. Jardine, L. R., 3 C. P. 639. When the underwriters have paid the insurance, they are entitled to stand in the place of the insured with respect to general average contributions. Ibid. So, where a ship A. has been lost by a collision with a ship B., and the underwriters have paid the full amount of a valued policy on A., they are entitled to receive the damages recovered in the Court of Admiralty against the owners of B. N. of England Assur. Assoc. v. Armstrong, L. R., 5 Q. B. 244. See also Commercial Union Assur. Co. v. Lister, L. R., 9 Ch. 483; Simpson v. Thomson, 3 Ap. Ca. 279, D. P., and cases cited post, p. 414. It is otherwise, where a sum is given to the shipowner for the damage he has sustained, as a pure gift. Burnand v. Rodocanachi, 6 Q. B. D. 633, C. A. ; 7 Ap. Ca. 333, D. P. As to how the loss is to be calculated when the insured goods get so mixed with other goods like them that they cannot be identified, see Spence v. Union Marine Insur. Co., L. R., 3 C. P. 427, cited ante, p. 398.