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abandoned are entitled to the freight so earned. law, they become the purchasers of the ship, and as such are entitled to the freight as an incident or accessory of that purchase.-(Case v. Davidson, 1814, 5 Maul. and Sel. 79; as affirmed in Exchequer Chamber, 2 Br. and Bingh. 379; Stewart v. Greenock Marine Insurance Company, 13 Jan. 1846, S. and D. 323; as affirmed in the House of Lords, 1 Macqueen 328.)

Where the freight of the same vessel was insured in a separate office from that in which the ship was insured, the loss on the ship being total, and the owners having abandoned for a total loss, it was held that by such abandonment the underwriters became the purchasers of the ship, and were entitled to the wreck with all its accessories, including freight which the ship had earned. The owners then contended that they were entitled to recover under the separate policy on freight, on the ground that freight having gone as an incident of the abandonment to the underwriters on the ship, it was a loss of freight to them; but on appeal, the House of Lords held, that this was untenable that here the freight was actually earned by the safe delivery of the cargo, and therefore was not lost in the sense of the policy. (The Scottish Marine Insurance Company of Glasgow v. Turner, 1 Macqueen's Reports, p. 334.)

It will be kept in view that, when an abandonment as for a constructive total loss is accepted by the underwriters, and the freight which the vessel has earned falls to them as an incident of the wrecked vessel, this freight, when so earned, must bear the

expense of the voyage home; and therefore is subject to bear the expense of the seamen's wages, and navigation of the ship.-(Ibid.)

There are exceptions, however, to the rule that the freight, when earned in the case of a vessel insured and abandoned as for a total loss, belongs to the underwriters. If the freight be earned, not by the wrecked vessel itself, but by freighting another vessel, and transferring the cargo to that vessel, there is no claim for freight on the part of the underwriters; but this will belong to the owners of the vessel wrecked. Thus, where the ship insured was chartered to carry troops to Calcutta, and on her voyage, when 700 miles beyond the Mauritius, had taken fire, and was forced to run back to the Mauritius, which she reached, but in such a damaged state as to be unable to proceed on her voyage; whereupon the captain freighted another ship, and carried the troops to Calcutta, and the freight was earned and received by the owners of the wrecked vessel. The owners having abandoned as for a total loss, it was held, in the adjustment of that loss, that the underwriters were not, in this case, entitled to the freight thus earned. (Hickie, etc., v. Rodocanachi, 4 Hurl. and Nor. Exch. Rep. 455.) And the same judgment was repeated by Lord Campbell in Miller v. Woodfall, 8 El, and Bl. 493.

CHAPTER XV.

LOSS, HOW ESTIMATED.

THE contract of insurance is one of indemnity only, both in fire and marine insurance. It is this which relieves it from partaking of the nature of a wagering contract. Whatever, therefore, be the value or sum in the policy, the meaning of the valued policy is, that every loss within that sum is covered by the insurance; and if it be a constructive total loss, he gets that sum without proof of value, whether it entirely covers his loss or falls short of it. In an open policy, the insured obtains the actual loss he has sustained.

If, in the marine insurance under a valued policy, the loss is partial only, this partial loss is all that can be recovered. On the other hand, where the loss is a constructive total loss, this will entitle the insured to the value in such policy; but, in that case, the sum in the valued policy is to be given, less the freight, if it has been earned and received by the assured. Thus, in Stewart and others v. The Greenock Marine Insurance Company, 11 Jan. 1844, S. and D. 359, the Lord President Boyle laid it down"The value in the policies was put in for the purpose of precluding any greater demand being made under any circumstances whatever; but when a question of constructive total loss arises, depending upon the fact whether the vessel was worth repairing or not, that value was to be disregarded, and the real

value, as it appeared from the evidence, was, to be taken."

In Allen v. Sugrue, 8 Bar. and Cre. 561, Lord Chief Justice Tenterden laid it down, "that the question whether the loss sustained is a partial or total loss, is precisely the same where the value of the ship has been mentioned in the policy, and where that has been left open. If the value has not been mentioned, it must be ascertained by evidence; if it has been mentioned, then all further inquiry is unnecessary, as the parties have agreed as to what shall, in the event of a loss, be considered the value.”

In the case of Goulstone v. The Royal Insurance Company, 1 For. and Fin. 276, Chief Baron Pollock laid it down, that "a fire policy is not, as a marine policy may be, a 'valued' policy; and the insured recovers only that which he has really lost."

So in Scotland, in a case of insurance against fire (Hercules Insurance Company v. Hunter, 26 and 27 July 1836, S. and D., p. 1139), Lord Moncreiff laid it down-"This contract is in its nature an equitable contract, by which, in consideration of payment of premium, the one party binds himself to indemnify the other for whatever loss he can instruct to have arisen through fire or other risk insured against. But it is a contract of indemnity only, and not of the nature of a wager. If a party insure to the extent of L.10,000, and cannot instruct that his loss amounts to more than L.500, this last sum is all that he can recover."

Even where the insured is not certain of the value of the subject he has insured, and makes other insur

ances in other offices, so that, in the event of a total loss, he may be fully protected, he cannot, on a total loss occurring, recover more than the total value of the subject insured from all; and if the amount insured by the different policies exceeds that value, he can only recover the real value,—each underwriter, in that case, contributing a rateable proportion.— (Arnould, p. 1225.)

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But it must be kept in view that the above rule of estimating the loss does not apply to a valued policy, in the case where there is a constructive total loss. that case, the value in the policy is claimable, even although (without any fraud on the part of the assured) it may exceed the true value.-(M'Nair v. Coulter, Mor. 7106; as reversed in the House of Lords, 2 Paton's App. Cas. 298; Wilson v. Wordie and others, 2 Dec. 1783, Mor. 7107.)

It is the same in an insurance on freight by a valued policy, where a complete cargo is agreed on, and is ready and provided for. The insurance company are liable for the WHOLE freight, although the ship, when she had only received on board one-seventh part of her cargo, was driven from her moorings at the loading port, and was wrecked.-(Rhand v. Robb and others, 21 Dec. 1804, Mor. App., "Insurance, No. 8;" Marsh. on Ins., p. 36; Montgomery v. Egginton, 3 Term Rep., p. 362; Thomson v. Taylor, 6 Term Rep. 478.)

But in the case where the vessel arrives at her loading port, and a complete cargo cannot be obtained, and there is no engagement or charter-party to provide a complete cargo, or the ship has to seek