Abandonment.

Nothing remains but to advert to the question of abandoument, as affording another illustration of the same simple view of this contract upon which the various distinctions recognized by our law with regard to it are founded. It is not our intention here to attempt a catalogue of the various ways in which the assured may be deprived of his property within the meaning of this contract. It is obvious that between possession of it in safety and its annihilation, for instance, by fire, or its entire loss, for example, by foundering at sea, the possible variety and modification of loss is indefinite.

It is pertinent to our purpose, however, to point out that there may be a total loss, for example, through capture by the enemy, that shall cease to be a loss, for instance, by recapture, or by restitution under sentence of a court of prize. There may be a loss which is not total, but for all practical purposes is nothing else, that is to say, it must for the purposes of the policy be construed as a total loss. There is a constructive total loss of the ship, when by perils of the sea she is converted into such a wreck that it would cost more money to repair her than she would afterwards sell for when repaired. The assured may in these circumstances give the underwriters notice that he abandons the wreck to them, and claims for a total loss. But the underwriters are not bound to act upon his construction of existing circumstances and accept the abandonment. He may unintentionally misconstrue the state of facts, and this may be proved against him in many ways, one of which would be by recovering and restoring the ship to him in such a condition that he is not at liberty in law to refuse it.

The actually existing circumstances of the vessel, however, when notice of abandonment was given, may have been such as to justify the notice in law. If the assured, notwithstanding the underwriter's refusal to accept the abandonment, begins an action on the policy for a total loss, while the circumstances continue to be such as justify an abandonment, any restitution afterwards of the ship cannot take away his right to recover for a constructive total loss. This depends

on the nature of an action, which has regard only to the state of facts between the parties at the time of writ issued. If, on the contrary, restitution of the ship in a condition proper to be accepted by the assured owner were before action commenced, although after notice of abandonment given, the right of action against the underwriter is gone. This difference is not a mere technical distinction due to refinements on law by the lawyers. Justice, in order to determine the dispute between litigants, must confine its regards to some fixed instant of time, at which the facts may be ascertained as the foundations of judgment. But if, before the assured has gone into Court, there be a restitution of his property, he ceases to be in a condition requiring to be indemnified against a total loss, and his notice of abandonment, though once valid, is obliterated to the eye of justice by the state of facts which have subsequently supervened. His constructive claim to indemnity ceases to exist by the effect of subsequent events before he can assert it in law by issuing of the writ.1 The notice indeed was necessary, and may at the time have been valid because the loss existing may have been no more than constructive. But though the loss be primâ facie total, as in the case of capture, and notice of abandonment have been given, still, for the same reason, if there be restitution before action commenced, occasion for such indemnity no longer exists in respect of the past, and any foundation for asserting the right by legal claim is consequently gone.

Such is the English law as it proceeds severally upon the right construction of the nature of the contract between the parties, and upon the essential view of a legal assertion of right by commencement of an action. The Legislature might have interfered, as in France, by declaring that a notice of abandonment once given under circumstances that sustained its validity could not be superseded, except with the consent of both parties, by any subsequent change of circumstances. Or, instead of leaving the parties to determine in each case

1 See per

Lord Mansfield, Hamilton v. Mendes, 2 Burr. 1210.

Definition of terms.

upon the facts arising whether the loss be or be not so nearly total as for all practical purposes it ought to be so construed, the British Parliament might have enacted, as the law is in the United States, that damage to the extent of 50 per cent. and upwards of the value of the property insured is to be construed a total loss. All that the British Legislature and the English judicature have done is to prevent either party, to the injury of the other, and consequently of the mercantile community at large, from perverting the contract between them to purposes which are alien to the essential notion of indemnity, on which alone it is wholly based.

The following is a definition of some of the principal terms in use upon the subject of marine insurance.

Marine insurance is a contract whereby one party, for a stipulated sum, undertakes to indemnify the other against loss arising from certain perils or sea-risks, to which his ship, merchandise, or other interest, may be exposed during a certain voyage, or a certain period of time.

The party interested in the property insured is called the insured or assured; the property insured-the subject of insurance and the interest which the assured has in this property-his insurable interest.

The party undertaking to indemnify the assured against loss is called the insurer or underwriter; and the stipulated sum for which he undertakes to indemnify him, the premium. The instrument by which the contract of indemnity is effected is called in England the Policy.

That which is insured against, is loss arising from marine casualties. These casualties are in technical language called, sometimes, the perils insured against, and sometimes the risks covered by the policy, expressions which mean one and the same thing, and are employed to signify those causes of loss against the effect of which the underwriter undertakes by his contract to indemnify the assured.

The interest of the assured is technically said to be covered by the policy, when the sum or aggregate of sums insured in his righicy is sufficient to afford him full compensation for

whatever loss that interest may sustain. If the value of his interest exceeds the sum insured, the excess of interest is said to be "uncovered by the policy," and the assured to be "his own insurer to that extent.”

When the liability of the underwriter commences under the contract, the technical mode of expressing this is by saying that "the policy attaches," or "the risk begins to run," from that time.

M.

CHAPTER II.

Ship.

WHAT things are insurable, considered in themselves, and irrespective of their owners, is the first practical question, and naturally falls to be considered here, the first in order.

The ship was probably not the earliest subject covered by this contract. Important and indispensable though it be to commerce, it is yet no more than subservient and therefore secondary to the purpose of commercial intercourse, the distribution, namely, among distant nations of the products of nature and skill. Merchandise, therefore, in its importance as the chief thing in view is not unlikely to have been the earliest in course of time of the subjects underwritten by the insurer, yet the ship would soon follow as a subject of insurance; and all the sooner that in those times the merchant was also the shipowner uniting in himself the interests of both, and preventing those jealousies that might have arisen if these interests had already appeared divided and conflicting. The term ship, technically taken, designates a particular policy on ship. species of sea-going vessel, square-rigged throughout, which

What is covered by