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3. The Eliza altered the plan of the original adven- MA. IN. Co. ture, by taking in sugar for Baltimore; but in Kewley v. Ryan it does not appear that the original plan was changed.

4. The risk was increased by taking the cargo for Baltimore, but the intention of touching at Cork did not increase the risk.

Independent of these differences between the two cases, it is very questionable whether the determination in Kewley v. Ryan is correct upon principle. It establishes a doctrine which enables the insured to defraud underwriters, by making the evidence of intention to vary the voyage, depend upon the single testimony of the master, which is apt to bend to the interest of his employers. It too often happens, that insurance cases depend upon the same kind of testimony.

The case of Kewley v. Ryan is tradicted by that of Middlewood v. Marshall, 406, note (b.)

also in principle con-
Blakes, 7 T. R. 162.

2d. The 2d point is, that if the plaintiffs are entitled to recover any thing, they can recover only for a partial loss; for if an actual total loss has happened, it has arisen from the negligence and misconduct of the plaintiffs, or their agents, in not doing the best in their power for all concerned.

The consideration of this question will involve that of the right of the plaintiffs to abandon at the time they offered to abandon; which is the 3d point in the cause.

In many instances the practice of abandoning has been extended too far. The insured should in no case be perImitted to abandon, where the effects insured, or the greater part of them, still exist and are in the power of

the insured.

The general rule is, that the insured may abandon in all cases where,' by means of any of the perils insured against, the voyage is totally lost, or not worth pursuing, or where the thing insured is so damaged as to be of

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MA. IN. Co. little or no value to the owner, or where the salvage is very high, or where what is saved is of less value than the freight, or where further expense is necessary, and J. AND J. H. the insurer will not undertake, at all events, to pay that

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expense.

These principles are declared in the following cases: 2 Bur. 683, Goss v. Withers. 2 Bur. 1198, Hamilton v. Mendez. 7 T. R. 421, Aguilar v. Rodgers. 1 Dall. Rep. 11, Story v. Strettell. Park. 165. 4 Williams' cases, 373, 376.

The capture or arrest of a vessel, or any detention, is prima facie a total loss, and immediately upon the capture, or at any time while the capture continues, the insured may abandon, and give notice, and thereby entitle himself to claim as for a total loss. But this must be done while the insured knows of the continuance of the capture, and not after he has information of the recovery or safety of the vessel. M Master v. Shoolbred, 1Esp. Rep. 237. Marshall, 494, 501.

On the other hand, the recapture does not necessarily deprive the insured of the right to abandon. For, if in consequence of the capture, the voyage is lost, or not worth pursuing, if the salvage be very high, or if further expense be necessary, and the insurer will not undertake to pay that expense, the insured may abandon. Therefore the rule is, that if the thing insured be' recovered before any loss is paid, the insured is entitled to claim as for a total or partial loss, according to the situation of the case at the time when he makes his claim. For there is no vested right to a total loss until the insured elects to abandon.

There are two cases which will be cited for the de-. fendants in error. Pringle v. Hartley, 3 Atk. 195, and Goss v. Withers, 2 Bur. 683, neither of which is like the present.

In the case of Pringle v. Hartley, the salvage amounted to a moiety of the value of the vessel insured; and there was no person present to give security or answer for that moiety.

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The case of Goss v. Withers was an insurance on the MA. IN. Co. OF ALEXANship and goods. One fourth of the goods were thrown overboard to preserve the vessel and the residue of the cargo. After this the vessel was captured by the French. J. AND J. Ḥ. The master, mate and all the sailors, except an apprentice boy and a landsman, were taken out and sent to France. The ship remained eight days in the hands of the French, and was retaken by a British privateer, and on the 18th of January was carried into port for adjudication. Immediate notice was given and an offer to abandon.

But before her capture, the ship, in a storm, was separated from her convoy, and disabled for proceeding on her voyage, without going into port to refit. The residue of her cargo was spoiled while she was refitting, after the offer to abandon, and before she could be refitted. The salvage was a moiety; the master and mariners were prisoners; the charter-party dissolved; the freight, except for the goods saved, was lost; and the voyage was not worth pursuing.

But the situation of the Eliza was very different. She sailed from Jamaica on the 17th of August, was captured on the 22d, recaptured in less than three days, and on the 26th was brought into Kingston, the very port from which she had sailed only nine days before, and where the agents of the insured were. The salvage was only one eighth, and the coffee on board, belonging to the plaintiffs, would have been more than sufficient in value to pay the whole salvage, and all the charges and costs, which did not exceed 909 dollars, even when attended with the costs of the libel, sale and commissions.

If they had rated the vessel at 3,800 dollars, the sum insured, yet the salvage would have been only 475 dollars.

The point decided in Goss and Withers was, that a title to restitution cannot take away a vested right to abandon, if the vessel be unfit to perform the voyage.

There is nothing in the record which shows that, at the time of the recapture, the Eliza was unfit to perform the voyage.

The abandonment of a vessel is an extreme remedy, which the insured has in his power, but which he ought

MA. IN. Co. not to be permitted to use, when he has another remedy OF ALEXAN- which will completely indemnify him for the injury he has actually sustained.

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This case, we contend, ought to be decided upon the principles which governed that of Hamilton v. Mendez, 2 Bur. 1198. There the ship was captured on the 6th of May, by a French privateer, and all her hands, excepting two, were taken out. On the 23d she was recaptured by a British ship of war, and sent into a British port, where she arrived on the 6th of June. As soon as the insured heard of the capture, he wrote and offered to abandon to the underwriters. They refused to receive the abandonment, but offered to pay the salvage, and all the losses and charges which the insured had sustained by the capture. The question was, whether, on the 26th June, the insured had a right to abandon and recover as for a total loss.. The court decided, that he had no right to abandon, and that he could recover as for a partial loss only. The principle of that case is, that if the voyage be only temporarily interrupted, the property, upon the recapture, returns to the owner pledged to the recaptor for the amount of salvage. This doctrine is also stated in the case of Mills v. Fletcher, Doug. 219, and Thellusson v. Fletcher, 1 Esp. Rep. 73.

The actual loss which the insured sustained, was not a total loss, until rendered so by their own negligence or misconduct, or that of their agents. It only amounted to 909 dollars, including salvage. Even if the vessel had been valued at the price insured, viz. 3,800 dollars, the salvage (which by Stat. 33 Geo. 3, c. 66, cannot exceed one eighth) would have amounted only to 475 dollars, which added to the other expenses, would not have exceeded 1,000 dollars.

This sum ought to have been paid by the agents of the insured, who had in their possession funds of their principal, out of which it might have been paid. But it does not appear that they made any effort, or offer to pay it, or to prevent the sale; or any proposition to ascertain the value of the vessel, otherwise than by a sale. They did not do the best in their power for all concerned, but calmly stood by and saw the vessel sacrificed, when they had the power of preventing it.

The insured, therefore, cannot, by abandonment, turn MA. IN. Co. a partial into a total loss. Esp. Rep. 73. OF ALEXANDRIA

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It appears upon the record that the insured were J. AND J. H. anxious to sell the vessel, and this may account for the want of exertion on the part of their agents to prevent a sale, which would charge the underwriters with the full value of 5,800 dollars.

4th. The loss of the register was not equivalent to the loss of the vessel, and was not an event against which the insurance was made.

But the loss of the register might have been supplied by another document, such as a consular certificate, stating the circumstances attending the loss, which would have enabled the vessel to perform the voyage insured, 1 Rob. 184, The Betty Cathcart. 8 T. R. 198, Ghristie v. Secretan. The want of a register would not have occasioned a forfeiture of the vessel, but would only have subjected her to the inconvenience of being considered and treated as a foreign bottom.

5th. The not communicating to the underwriters the intention of going to Baltimore vacated the policy, as the risk was thereby increased. Marsh. 347. 3 Bur. 1909, Carter v. Boehm. 1 W. Bl. 594, S. C. Millar, 450.

Simms & Swann, contra. Contended, 1. That the voyage commenced was the voyage insured. 2. That the insured had a right to abandon and recover as for a total loss.

1. A policy of insurance, like every other written agreement, is to be construed according to the intention of the parties. The understanding in this case was that the underwriters should take all the risk of a voyage from Jamaica to Alexandria; and consequently they took the risk of the voyage from Jamaica to the Chesapeake Bay, through which a vessel must pass to arrive at Alexandria.