in the nature of an average loss-as, for instance, if the vessel be released or escape before action brought against underwriters -expenses or costs resulting to the property insured, in consequence of the capture, are claimable under the policy (r). For example, the vessel may be recaptured, in which case salvage will be payable to the recaptors (s). Or special charges may be incurred by ship and cargo in the port of detention; or expenses may be incurred in contesting the captors' suit for condemnation, or in appealing against a judgment in their favour. Or, as in Berens v. Rucker (t), where a neutral assured pays to belligerent captors a sum of money as a compromise bond fide made in order to prevent condemnation in a prize Court,-whether as a fact the property be legally subject to condemnation or not.

If during the process of adjudication the cargo be exposed to material deterioration the Court may order it to be sold in default of bail being provided.

If, as has already been observed, the underwriters elect to accept abandonment, their liability under the policy becomes. ipso facto fixed; and the assured are also precluded from going back on their tender. On acceptance of abandonment the whole interest becomes vested in the underwriters as from the time of the occurrence giving rise to it, and all consequent costs and charges are accordingly for their account. If, on the other hand, underwriters decline the tender, and the assured decide to proceed for payment of total loss, it will lie on the latter to prove the existence of the facts on which their claim is based. Mere rumour or report will not serve their purpose; and if it should turn out that the state of circumstances on which they relied in support of their claim had ceased to exist at the time of bringing the action, the fact that the report relied upon was true at the time they heard of it will not benefit them. In other words, although a (constructive) total loss may have occurred, if, nevertheless, it shall have ceased to exist before action brought, it cannot be enforced against underwriters. In such a case the real damnification under the contract of insurance is such loss or damages as may have been incurred in conse

(r) Vide as to this, sub Costs and Damages, p. 336, infra.

(s) Vide sub Recapture, p. 126, infra.

(t) 1 W. Bl. 313. Vide also 2 Burr. 683.

quence of the capture, and for this only are the underwriters liable (u).

If underwriters decline to accept abandonment, and in place of doing so make a compromise with the assured, they cannot afterwards lay claim to any sum awarded to the assured in respect of the circumstances which led to the tender of abandonment. Thus, where a British vessel was condemned by the Brazilian Government for an alleged breach of blockade, and the underwriters came to a compromise with the assured, they were subsequently held to have no claim on a sum paid by the said government as compensation to the assured (x).

It does not necessarily follow that if there be a recapture there can be no claim for total loss. If, for example, the voyage be practically lost, or the property be so deteriorated in value, or the charges for salvage and for bringing the property to its destination be so heavy, that the assured may reasonably decline to resume possession, a total loss will be due under the policy. This was decided in Goss v. Withers (y). This was an insurance on the vessel David and Rebecca with fish from Newfoundland to Portugal, Spain, or England; and there was a second insurance on the fish. The vessel was captured by the French and manned by a prize crew. After eight days she was recaptured by a British privateer and brought into Milford Haven, when the assured tendered abandonment. It appeared that before the capture by the French the vessel had been rendered practically unseaworthy by violent weather, and that a part of her cargo had been jettisoned. And whilst she was at Milford Haven, after the offer of abandonment and before she could be refitted, the rest of the cargo was spoiled. And, besides all this, there was due to the recaptors as salvage, under the law then prevailing, fifty per cent. of the value salved. The real destination was, it

would appear, Spain or Portugal. Lord Mansfield found that in these circumstances the voyage was as absolutely defeated as if the ship had been wrecked and a third or a fourth of the goods

(u) Patterson v. Ritchie, 4 M. & S. 393; Bainbridge v. Neilson, 10 East, 329; Parsons v. Scott, 2 Taunt. 363; Falkner v. Ritchie, 2 M. & S. 290. Vide also Arnould, 5th ed. 982-6.

(x) Brooks v. McDonnell, 1 Y. & C. 502. See also Tunno v. Edwards, 12 East, 488; and Blaawpot v. Da Costa, 1 Eden, 130.

(y) 2 Burr. 683.

saved. The cargo must from its nature have been sold where it was brought in, and as to the ship, the loss could not be estimated, and the salvage due in respect of it could not be better fixed than by a sale. In such a case there was no colour to say that the assured might not disentangle himself from unprofitable trouble and further expense, and leave the insurers to save what they could. Judgment accordingly. In this case Lord Mansfield laid considerable stress on the fact that the voyage was lost, and for a long period subsequently the same doctrine was recognised by the Courts. It has, however, since been definitely decided that the loss of the voyage has nothing to do with the loss of the ship (z).

The application of the principle laid down in Goss v. Withers will of course depend in every case upon the state of facts existing at the time of action brought, and the tendency at the present day will, it is apprehended, not be in favour of a wider application of the principle. In Hamilton v. Mendes (a) the ship Selby, bound from Virginia to London with tobacco in hogsheads, was captured by the French and taken towards France in charge. of a prize crew. On the voyage she was recaptured and brought into Plymouth. The assured abandoned to the underwriters on the ship, who declined acceptance, and the ship was then brought to London under an order of the owners of the cargo and of the recaptors. The Court, dealing with plaintiffs' pleas, found (1) that the shipowners had never been divested of their property, the ship not having been condemned, though (2) it was true that after the capture there was a total loss under the policy, but only until the recapture; (3) that the voyage was not totally lost, ship and cargo being safe, and the obstruction being but temporary; the recaptors having no right to demand a sale; and (4) that, the thing insured being in safety, the assured had no right to abandon: their claim was for the damnification sustained at the time the action was brought, and not for a total loss. Judgment for defendants.

The case of McIver v. Henderson (b) was decided for the

(z) Parsons v. Scott, 2 Taunt. 363; Falkner v. Ritchie, 2 M. & S. 290. See also Arnould's Insce., 5th ed. p. 992, n.

(a) 2 Burr. 1209.

(b) 4 M. & S. 576.

assured somewhat on the lines of Goss v. Withers, supra. A ship bound from Liverpool to the African coast, after being captured and plundered by the French, was by them given up to the master of a Portuguese prize, who took her into Fayal and claimed her as a gift from the captors. The local Court decided against this claim, and the possessors appealed. Pending this appeal, the English owners, by allowing what remained of the cargo to be sold and the proceeds to be deposited, obtained the release of the ship, and brought her to Liverpool. On her arrival, the owners proceeded for a total loss on the ground that, owing to the small value of the vessel in her dismantled condition, together with the expenses of bringing her from Fayal and the liabilities overhanging at that place, they were exposed to the prospect of having to pay more than the ship was worth. The Court decided that the peculiar circumstances of the case justified the demand for payment as for a total loss, and gave judgment accordingly.

In Brown v. Smith (c) the facts were somewhat analogous, and the decision was also given for the assured. In this case the crew ran away with the ship, which was, however, subsequently brought by a British man-of-war into Barbados, where the authorities sold the cargo and stores to pay salvage, and left nothing but the hull and rigging.

The judgments in Holdsworth v. Wise (7 B. & Cr. 794); Chapman v. Benson (5 C. B. 330); Thorneley v. Hebson (2 B. & Ald. 513), referred to in Arnould's Insce., pp. 994-996, relate to cases of privation of property arising from causes other than capture, but in which the same principles apply between underwriters and assured. The cases of Dean v. Hornby (3 E. & B. 180) and Lozano v. Janson (2 E. & E. 100; 28 L. J. (Q. B.) 337 ; Arnould's Insce., 5th ed. 996, 997), also show decisions based on the principles already set forth. The decisions mentioned sub Embargo (pp. 36-48, supra) may also be referred to in this connexion.

If a vessel be sold in a prize court of the captors, purchased by the master, and brought back to the country of her owners, can the last named assert a claim for total loss under the policy? Judgments in the United States appear to go upon the lines that

(c) 1 Dow's P. C. 349.

the master in re-purchasing is acting as the owners' agent, and the decisions in this country seem to favour the same view.

In McMasters v. Shoolbred (d) a ship, having been condemned by a tribunal incompetent to adjudicate, was purchased by the master and conveyed home before action brought by the owners. The latter refused to adopt the purchase, and claimed for a total loss. Lord Kenyon held that the loss was to be treated as an average loss, especially as no notice of abandonment had been given. A similar decision was given in Wilson v. Forster (e), where the ship was illegally seized at her port of discharge, and condemned and sold. The master bought the vessel, repaired her under bottomry, and brought her home; but the owners, refusing to satisfy the bond and allowing the vessel to be sold, claimed for a total loss without notice of abandonment. Held, that the seizure and condemnation having been illegal, the owners had never been divested of the property, and that the claim was to be settled on the basis of an average loss.

But the master of a vessel captured by the national enemy, before entering upon any scheme of re-purchase, must well consider whether such an operation on his part may not involve him or his owners in the consequences attending a breach of the laws prohibiting ransom (f) or trading with the enemy (9).

In Kulen Kemp v. Vigne (h), a vessel was captured and subsequently released, but not until her cargo, which was of a perishable nature, had been sold. Instead of proceeding on her voyage she deviated to another port and was lost by perils of the seas. The assured claimed for a loss as by capture, but the Court decided against this averment, declaring that after the capture the policy might still have been complied with by the vessel's proceeding to her original destination.

If a loss be apparently due to the joint operation of capture and of perils of the sea, the circumstances must, in case of need, be analysed, and the loss ascribed to the cause to which it has rightly to be attributed, or applied to both causes in such pro