ship is put by them than she was when insured, and the owner, when he comes again into the possession of his vessel, receives

the benefit of the repairs. But neither the reason of the rule, nor the rule itself, applies to the case of a ship suffering a partial loss on her first voyage, when she is new, and cannot be made better by repairs. (c) The half value which authorizes an abandonment is half the sum which the ship, if repaired, would be worth without any such deduction. (d)

Upon a valid abandonment, either of the vessel or of the cargo insured, the master becomes the agent of the insurer, and the insured is not bound by his subsequent acts unless he adopts them. (e) The owner or insured, equally with the master, becomes the agent of the insurer on abandonment, and he cannot purchase in the property on his own account, without the consent of his principals; and if he does, it revokes the abandonment, and turns the total into a partial loss. (f) It is the duty of the master, resulting from his situation, to act with good faith, and care and diligence, for the protection and recovery of the property, for the benefit of whom it may eventually concern. The *332 master of an insured ship injured by the perils of the sea, and not competent to complete the voyage, may sell her in a case of necessity, as when the ship is in a place in which she cannot be repaired; or the expense of repairing her will be extravagant, and exceed her value; or when he has no moneys in his possession, and is not able to raise any. (a) In cases of capture he is bound,

(c) In Pirie v. Steele, 8 Carr. & P. 200, it was a matter of dispute when a vessel may be said to be on her first voyage. Lord Abinger thought the best method was to make the deduction of one third new for old depend upon the age of the ship, to be specified in the policy.

(d) Dupuy v. U. Ins. Company, 3 Johns. Cas. 182. Contra, Smith v. Bell, 2 Caines Cas. 153; Coolidge v. Gloucester Ins. Company, 15 Mass. 341; Peele v. Marine Ins. Company, 3 Mason, 76, 77; Williams v. Suffolk Ins. Company, 3 Sumner, 270. The extent of loss, in the case of a ship, says Boulay-Paty, is estimated by a comparison of the value in the policy with the value at the place of loss, and not with the amount of the expense requisite to repair. Cours de Droit Com. iv. 252.

(e) 2 Phillips on Ins. 439, 449; 7 Johns. 514; 9 id. 21; 13 id. 451; 4 Peters, 139; Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340.

(f) Robertson v. Western M. & F. Ins. Company, 19 La. 227. (a) Somes v. Sugrue, 4 Carr. & P. 276.

do not carry that principle so far as to allow the insurers any thing in the nature of freight for the carriage of the shipowner's own goods before the loss. They only allow for the subsequent carriage. Miller v. Woodfall, 8 El. & Bl. 493. Hickie

v. Rodocanachi, 4 Hurlst. & N. 455, further limits the right of the abandonees to freight earned by the insured ship. It does not extend to that earned by forwarding the cargo in another vessel.

if a neutral, to remain and assert his claim until condemnation, or the recovery be hopeless. (b) His wages, and those of the crew, are a charge on the owner, and ultimately, in case of recovery, to be borne as a general average by all parties in interest; and if the abandonment be accepted, the underwriter becomes owner for the voyage, and in that character liable for the seamen's wages, and entitled to the freight subsequently earned. (c) If the master purchases in the vessel, or ransoms her, the insurer will be entitled to the benefit of the purchase or composition; and, on the other hand, if the insured affirms the purchase of the master, it will be at the option of the insurer a waiver of the abandonment. The insurer can accept of the repurchase of the master, as his constructive agent, and affirm the act, or he may leave it to fall upon the master. (d)

The assured has the right of abandoning the freight when there has been a constructive total loss of the ship; and he has sustained a total loss of the freight, if he abandons the ship to the underwriters on the ship, when the case justifies it, for after such abandonment, he has no longer the means of earning the freight, or of receiving it if earned, for the freight goes to the *333 underwriters on the ship. (e) But it has been a very controverted question, whether an abandonment of the ship transferred the freight in whole or in part. It was finally settled in the jurisprudence of New York and of Massachusetts, and adopted as the true rule in the Circuit Court of the United States for Massachusetts, that on an accepted abandonment of the ship, the freight earned previous to the disaster was to be

(b) Marshall v. Union Ins. Company, 2 Wash. 452. The duty of the mariners is the same. The Saratoga, 2 Gall. 164; Brown v. Lull, 2 Sumner, 443.

(c) Hammond v. Essex Fire and Marine Ins. Company, 4 Mason, 196. It has been made a question whether the underwriter, after an accepted abandonment, is bound, in his new character of owner, to go on and complete the voyage. In Case v. Davidson, 5 Maule & S. 89, Holroyd, J., was of opinion, that he was under no such obligation to the freighter, whose rights as owner of the goods were personal, lying in contract with the ship owner, and not running with the ship. There is a suggestion of Mr. Justice Putnam, to the same effect, in Coolidge v. Gloucester Marine Ins. Company, 15 Mass. 343. The underwriter cannot claim salvage property unless there has been an abandonment of the property made and accepted. The Ship Henry Ewbank, 1 Sumner, 400.

(d) Saidler v. Church, cited in 2 Caines, 286; United Ins. Company v. Robinson, ib. 280; Jumel v. Marine Ins. Company, 7 Johns. 412; Willard v. Dorr, 8 Mason, 161; Boulay-Paty, iv. 309, 310.

(e) Benson v. Chapman, 6 Mann. & Gr. 810; [s. c. 2 H. L. C. 696; ante, 831, n. 1, (a).]

retained by the owner, or his representative, the insurer on the freight, and apportioned pro rata itineris; and that the freight subsequently earned went to the insurer on the ship. (a) In the case of Armroyd v. Union Insurance Company, (b) the question was raised, but left undecided, whether the entire, or only a pro rata freight, in such a case, went, on abandonment, to the insurer of the ship. This litigated question has now been settled in England; and in Case v. Davidson, (c) where *ship *334 and freight were separately insured, and each subject. abandoned as for a total loss, it was adjudged that the abandonment of the ship transferred the freight as an incident to the ship, and that an abandonment was equivalent to a sale of the ship to the abandonee. (a) The French jurisprudence on this subject has been equally embarrassing and unsettled. The Ordinance of 1681 had no textual regulation relative to freight, in cases of abandonment. It was left to the decisions of the tribunals, and they denied to the insurer on the ship any freight for the goods saved. Valin exposed the error, (b) and maintained that freight on abandonment, whether paid in advance or not, ought to go to the insurer. In 1778, it was settled at Marseilles, under the sanction of Emerigon, that freight was an accessory to the ship; and in abandoning the ship, the freight acquired during the voy

(a) United Ins. Company v. Lenox, 1 Johns. Cas. 377; 2 id. 443; Davy v. Hallet, 8 Caines, 20; Marine Ins. Company v. United Ins. Company, 9 Johns. 186; Coolidge v. Gloucester Marine Ins. Company, 15 Mass. 341; Hammond v. Essex Fire and Marine Ins. Company, 4 Mason, 196. So, in the case of a mortgage of a ship whilst at sea, and possession taken under it, the accruing freight passes to the mortgagee, as incident to the ship. Dean v. M'Ghie, 12 J. B. Moore, 185; [ante, 138, n. 1.]

(b) 3 Binney, 437.

(c) 5 Maule & S. 79; s. c. affirmed on error, 2 Brod. & B. 379. In this case the underwriter claimed and recovered the entire freight, and no distinction was made between the freight arising prior and subsequent to the loss, or prior and subsequent to the abandonment.

(a) Mr. Benecke, Principles of Indemnity, 408, after giving an interesting history of the progress of the question, concludes that the insurer on the freight, in case of an abandonment of that also, will still have a personal claim on the owner for the freight subsequently earned, and which, but for the abandonment, would have belonged to him. Though the decision of Lenox and United Insurance Company, in New York, supra, 333, n. [a], had been in print for eighteen or twenty years, it seems to have been entirely unknown to the English courts, and to Mr. Benecke, in 1824, though he has, in the course of his work, ransacked the local laws and ordinances of most of the petty as well as great commercial states and cities in Europe. (b) Comm. liv. 3, tit. 6, Des Assurances, art. 15.

1 See 331, n. 1, (ƒ).

VOL. III.

29

[449]

age went with it. (c) The ordinance of 1779 followed that doctrine, and declared that acquired freight already earned on the voyage was insurable, and did not go with the ship on abandonment, but that the future freight to be earned on the goods saved would go to the insurer, if there was no stipulation to the contrary in the policy, saving the wages of seamen and bottomry *335*liens. The new code (a) declared that the freight of

goods saved, though paid in advance, went, upon abandonment, to the insurer on the ship. The construction given to the code by the Royal Court at Rennes, in 1822, in the case of Blaize v. Company of General Assurance at Paris, was, that the future freight did not go to the insurer on the ship, but only the freight on the goods saved and already earned at the time of the loss. (b)

(2) Of the Adjustment of Partial Losses. In an open policy the general rule is, that the actual or market value of the subject insured is to be estimated at the time of the commencement of the risk. The object of inquiry is the true value of the subject put at risk, and for which an indemnity was stipulated; and the question of total or partial loss does not turn on the estimated value, in a valued policy, but upon a view of all the circumstances attending the loss. (c)

There are two kinds of indemnity that may lawfully be obtained under a contract of insurance. The first is, to pay what the goods would have sold for if they had reached the place of destination; and the value there consists of the prime cost and expenses of the outfit, the freight and expenses at the port of delivery, and the profit or loss arising from the state of the market. This species of indemnity puts the insured in the same situation as if no loss had happened. The other kind of indemnity is to pay only the first cost of the goods, or the market value at the time and place of the commencement of the risk, and the expenses incurred; and

(c) Emerigon, ii. 217-227.

(b) Boulay-Paty, iv. 397-417.

(a) Code de Commerce, art. 386.

The question whether a loss ship, the owner, as a man of

(c) Young v. Turing, 2 Mann. & Gr. 593, 597, 601. be total or partial is, whether, in the condition of the prudence and discretion, would, under the circumstances, if uninsured, have sold the ship, or have endeavored to get her off and repair her. Domett v. Young, 1 Carr. & M. 465, s. P. A partial loss is frequently termed a particular average, in distinction from a general average, and Mr. Benecke says, that it denotes, in general, every kind of expense or damage, short of a total loss, and which is to be borne by the proprietor of the particular concern; and he says it is expressive, and ought to be retained. Stevens & Benecke on Average, by Phillips, 341.