a modern case (d), where a ship received her death-blow before the expiration of a time policy, but the extent of the damage was not discovered until after it had expired, when it was found that she could not be prudently repaired, and she was in consequence sold, it was held that the underwriters were liable for the partial loss which had occurred before the expiration of the time limited in the policy. It is clear, however, that if a total loss follows after a partial loss, but arises from an independent cause, excepted in the policy, so that the assured is not in any degree in a worse position by reason of the partial loss, the underwriters are not liable for the partial loss (e). Thus, where a ship insured from New York to London warranted free from American condemnation, was driven on shore by the wind and tide and suffered a partial loss by sea damage, and whilst on shore was seized and condemned by the American Government, it was held that the underwriters were not liable, either for a total or for a partial loss; not for a total loss, as, according to the maxim causa proxima non remota spectatur, the loss must be attributed to the capture; nor for a partial loss, because although the damage made the ship of less value to the American Government, the assured was not injured, being in no worse situation than if it had not occurred (ƒ). It will be observed that sometimes cases apparently of total loss, prove eventually to be partial losses only; as where there is a capture and recapture, or where a forcible detention, instead of lasting so long as to render it impossible to bring the ship or goods to their destination, terminates speedily (g). And it must be recollected that whether a loss is partial or constructively (d) Knight v. Faith, 15 Q. B. 649. It was unnecessary in that case to decide whether the underwriters were liable for a constructive total loss as the vessel had not been abandoned; and the underwriters not being therefore liable to pay for the final loss of the ship, even assuming it to have been a total loss resulting from the damage incurred during the currency of the policy, the partial loss could not merge; but the Court disapproved of the doctrine supposed to have been acted on in Meretony v. Dunlope (cited 1 T. R. 260); see 15 Q. B. 667. (e) But where there are two policies, one attaching at the expiration of the other, and a partial loss occurs under the first, and a total loss under the second, the rule is, that each contract must be viewed separately, and the underwriter will be held liable both for the partial loss under the first, and the total loss under the second. Lidgett v. Secretan, L. R., 6 C. P. 616. (f) Livie v. Jansen, 12 East, 648. See also the remarks upon this case in the judgment of the Court in Knight v. Faith, 15 Q. B. 668, and Naylor v. Palmer, 8 Ex. 739; 10 Ex. 382. (g) See the cases cited on the present page, Dean v. Hornby, 3 E. & B. 180, and the judgment in Roux v. Salvador, 3 Bing. N. C. 286. Where loss supposed total total, depends always upon the facts as they appear, not at the time of abandonment (h), but at the time of action brought. If, therefore, that which was supposed to be a total loss at the is afterwards time of the notice of abandonment is only a partial loss at the found partial. time of action brought, as, where a ship is captured, and after abandonment and before action recaptured, the assured cannot recover as for a total loss. In order, however, to divest the right of the assured under the abandonment, the thing insured must be offered or returned to them, or must arrive at its destination under such circumstances that they may, if they please, have possession of it, and may be reasonably expected to take it (i). Abandonment We have already seen that it is always necessary, in order and its effects. to make a loss constructively total, that the assured should abandon (1). This is a reasonable and equitable rule, not resulting from any express stipulation in the contract of insurance, but annexed to it by the law merchant; for, on the one hand, long interruption to a voyage, and uncertain hopes of recovery, being, in mercantile transactions, often ruinous, it is reasonable that the assured should be allowed to disentangle himself from unprofitable trouble and further expense by treating the injury sustained by the insured property as amounting (h) See the judgment of Lord Mansfield in Hamilton v. Mendes, 2 Burr. 1210; Bainbridge v. Neilson, 10 East, 329; Falkner v. Ritchie, 2 M. & S. 290; Parsons v. Scott, 2 Taunt. 363; Brotherston v. Barber, 5 M. & S. 418; Naylor v. Taylor, 9 B. & C. 718. The correctness of this rule was doubted by Lord Eldon in Smith v. Robertson, 2 Dow, 474, but it is now clearly established. The law in France and America is otherwise. Emerigon Traité des Ass. tom. 2, 195. By the Code de Commerce, Art. 385, "Le délaissement signifié et accepté ou jugé valable, les effets assurés appartiennent à l'assureur, à partir de l'époque du délaissement. L'assureur ne peut, sous prétexte du retour du navire, se dispenser de payer la somme assurée." See also 3 Kent Com. 324, and Peele v. The Merchants' Insurance Company, 3 Mason (American) Rep. 27, where Story, J., says: "An abandonment once rightfully made is binding and conclusive between the parties, and the rights flowing from it become vested rights, and are not to be divested by any subsequent events." (i) See M'Iver v. Henderson, 4 M. & S. 576, where it was held that the assured were not bound by the mere restitution of the ship's hull under conditions which made it doubtful whether they would not have to pay more than it was worth. See also Holdsworth v. Wise, 7 B. & C. 794; Parry v. Aberdein, 9 B. & C. 411; Lozano v. Janson, 2 E. & E. 160. In the latter case the Court adopted the rule laid down by Bayley, J., in Holdsworth v. Wise, ubi supra, that, to reduce a loss once total to a partial loss, the subject of the insurance "must be in existence under such circumstances that the assured may, if they please, have possession, and may reasonably be expected to take possession of it." (1) Ante, p. 528; Knight v. Faith, 15 Q. B. 648; Stewart v. The Greenock Marine Insurance Company, 2 H. of L. C. 159. See as to the grounds upon which the doctrine of abandonment is founded, the judgment in Rankin ▼. Potter, L. R., 6 H. L. 83. to a total loss; and, on the other, it is required by the very principle of a contract of indemnity, that the thing insured should, if it still exist, be ceded to the underwriters, and that they should have an early opportunity of inquiring into the facts, and of protecting themselves against fraud (m). The assured is not, indeed, in any case obliged to abandon; nor will the want of an abandonment oust him of his claim for an average loss or an actual total loss, as the case may be (n). But if he fail to abandon when the loss is only constructively total, he is entitled to indemnity as for a partial loss only (o). On the other hand, the assured cannot by abandoning, without the consent of the underwriter, treat as a constructive total loss that which is clearly a mere partial loss (p). abandonment. Notice of abandonment, to be valid, must be given by the Notice of real owner of the ship or goods insured, or by his duly authorized agent. One with whom a policy of insurance has been deposited as a security for a loan has no implied authority to give notice of abandonment. A notice, therefore, given by him without the express authority of the owner, will be of no avail to the latter (7). An abandonment must be total and not partial; that is, one part of the property insured may not be retained whilst the rest is abandoned (r). The mode in which an abandonment is usually made, is by a notice from the assured to the underwriter, which is called a notice of abandonment. This notice, although usually in writing, is not necessarily so (s). It must be express and direct in its terms (t); a communication of intelligence received, with a request how to proceed, is not sufficient (u). Where an owner on obtaining ill news of his vessel, communicated it to the underwriters and expressed a desire to abandon, and Gordon v. Massachusetts Fire and (r) 1 Park on Ins. 229. (s) Parmeter v. Todhunter, 1 Camp. (u) Martin v. Crokatt, 14 East, 465. No formal acceptance of abandon ment. Time of of abandon ment. but the underwriters insisted on the vessel being repaired, and told the owner to pay the bills, and he consented at last that the repairs should be done, but refused to advance any money, and it became therefore necessary to raise money upon a bottomry bond, under which (the underwriters refusing to discharge it) the vessel was afterwards sold, the Court held, that although, there having been no abandonment, there had been no constructive total loss, yet that the underwriters having expressly directed the repairs, were liable for all the damage which the owner had incurred by reason of their refusal to pay the bond (x). It has been said, that if the underwriters object to the abandonment, they must do so within a reasonable time, and that by silence they must be taken to acquiesce in it (y). No writing or formal assent is required by English law in order to constitute an acceptance of the abandonment (s). The abandonment must take place within a reasonable time giving notice after the assured has received intelligence of all the facts of the case, and has or might have discovered the condition of the insured property (a). The object of this rule is to give the underwriter the earliest opportunity of obtaining as much benefit as possible from any part of the property that may still be of value (b). What is a reasonable time must depend upon the circumstances of each particular case. The assured should give notice of abandonment at the earliest opportunity (c). In one case, three weeks (d), and in another, (x) Da Costa v. Newnham, 2 T. R. 407. see, (y) Hudson v. Harrison, 3 B. & B.97; however, Peele v. Merchants' Insurance Company, 3 Mason (American) Rep. 27. (2) If notice of the abandonment is given to the underwriters, and the insurers then say and do nothing, the conclusion is they do not mean to accept the abandonment, but there may be a constructive acceptance of the abandonment. The Provincial Insurance Company v. Leduc, L. R., 6 C. P. 224. (a) Gernon v. The Royal Exchange Assurance Company, 6 Taunt. 383; the judgments in Knight v. Faith, 15 Q. B. 659; and Grainger v. Martin in Cam. Scacc., 4 B. & S. 9; King v. Walker, ubisupra. See Browning v. The Provincial Insurance Company of Canada, L. R., 5 P. C. 263. (b) See the judgment in Roux v. Salvador, 3 B. N. C. 286; and the judg. ment of Lord Kenyon in Allwood v. Henckell, 1 Park on Ins. 281; Mitchell v. Edie, 1 T. R. 608; Davy v. Milford, 15 East, 559; Abel v. Potts, 3 Esp. 242; Fleming v. Smith, 1 H. of L. C. 513. (c) Dean v. Hornby, 3 E. & B. 180. See as to this generally the judgments in the House of Lords in Rankin v. Potter, L. R., 6 H. L. 83, and of the Court of Appeal in Kaltenbach v. Mackenzie, 3 C. P. D. 467. (d) Anderson v. The Royal Exchange Assurance Company, 7 East, 38; see also Barker v. Blakes, 9 East, 283; Aldridge v. Bell, 1 Stark. 498; Kelly v. Walton, 2 Camp. 155. 541 five days (e), after the receipt of the intelligence of the loss, was held to be too late. If the owner abandons as soon as he is furnished with all the facts, he will not be prejudiced by a delay on the part of his captain in communicating the intelligence to him (ƒ). If, however, the assured by his own acts, as for instance, by recognizing a sale of damaged goods as on his account, and by retaining the proceeds of such a sale in his own or his agent's hands, or by any course of conduct with a view to his own interest, prejudices the interests of the underwriters in the recovery of the produce of the thing insured, he precludes himself from recovering as for a total loss (g). abandonment. The effect of an abandonment is to transfer the whole pro- Effect of perty and interest in the thing insured to the underwriter, as from the date of the loss (h); and consequently it enures as a binding agreement to assign, if necessary, what is abandoned; the assured in the meantime being in the position of a trustee for the underwriter (i). Where a ship is abandoned, the underwriter is considered as the purchaser of the ship from the moment of the casualty to which the abandonment refers, and he becomes entitled not merely to her hull, but to the use of her, and to the advantages resulting from the completion of the voyage (j). Moreover, after the assured has been paid by the insurer for the loss on the policy, the insurers are put into the place of the assured with regard to every right given to him by (e) Hunt v. The Royal Exchange Assurance Company, 5 M. & S. 47. (f) Read v. Bonham, 3 B. & B. 147. (g) See Mitchell v. Edie, 1 T. R. 608; and the observations on this case in Roux v. Salvador, 3 B. N. C. 289. (h) Cammell v. Sewell, 3 H. & N. 617; S. C. in Cam. Scacc., 5 H. & N. 728. See also Arnould on Ins., sect. 413, and the foreign authorities collected in note (x) to that section. In America, the same rule prevails as in England. See Robinson v. The United Insurance Company, 1 Johnson (U.S.) Rep. 592. (i) See the judgment of Lord Truro in The Scottish Marine Insurance Company v. Turner, 1 Macqueen's H. of L. C. 342. Where a vessel insured by a valued policy is destroyed by a collision with a wrong-doing vessel, the |