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PART THE FOURTH.

OF TOTAL LOSS.

Definition.

The Total Loss of ship or goods means the total loss of them to their rightful owners, or, when insured, to the underwriters upon them. It is not necessary that the ship or her cargo be annihilated to establish a Total Loss. It suffices that through some peril insured against they are removed from the control and possession of their rightful owners. Therefore if the ship be run away with by the captain and his crew, or be captured by enemies or seized by pirates, there may be a total loss to underwriters, although that vessel is really floating over the waters in as efficient a state as she ever was.

Foundering and Fire.

Nevertheless, the first ideas that present themselves to the mind when we hear of a ship being totally lost in common parlance are the destruction of a vessel by a violent accident, as when she founders in a storm, is dashed to atoms on rocks, perishes by conflagration, or else by the more insidious consequences of leaks which at last cause her to sink and disappear. When

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evidence can be procured of the loss of a ship or her cargo in either of these ways it is obvious that a settlement for total loss with the underwriters easily follows. It is a notorious fact that a claim for total loss is paid more readily, and apparently more cheerfully, by the underwriters than any Average; although one comes to an irresistible conclusion that many vessels perish from what may be called natural causes, that is by inherent defects, insufficiency of strength, or overlading. But the record perishes with them. The waves which close over the sunken vessel effectually put further proof out of the question. Underwriters feel that to attempt to resist payment on the score of previous unseaworthiness is hopeless; and so, according to a mental tendency perfectly understood, men submit themselves without struggling to what they take to be inevitable, and write off a Total Loss with a good grace when they would fight hard to reduce a claim for Average by a few shillings per cent.

Missing Ships.

But sometimes no proof whatever is obtainable of the loss of a ship. She sails and is never heard of. A fear gradually grows into a conviction that she is lost, until a sufficient moral certainty is produced in people's minds to authorize the assured to ask payment from the underwriters as for a total loss. Before doing this a sufficient time is allowed to elapse, differing according to the voyage, to allow any possible information to arrive should the ship be still in existence. So ramified is the system of Lloyd's

agency that there is hardly any part of the world from which intelligence is not procurable concerning shipping. From the central office of Lloyd's Secretary in London the eyes of those appointed to direct its very perfect mechanism sweep all the oceans, as the observation of the watchful astronomer traverses the heavens at night to discover a new comet or the disappearance of a star. The large volumes kept at Lloyd's called the Index Book afford an easy reference to the known history of all English and many foreign ships, so that the places and dates of their various courses can be traced. The press lends its aid, and private correspondence brings in its quota of information, and government despatches complete the means of watching the enormous amount of property floating on the waters.

The length of time during which no tidings are received of absent ships and which is considered pretty conclusive of their loss is not invariably the same at all seasons of the year or among all persons. But as an approximation it may be said that two months for our neighbouring seas, three for the Mediterranean, four for the Atlantic, six for the Indian Ocean, and something more for the Pacific, during which periods nothing is heard of a ship, are the lengths of time which must intervene before a claim can be made on the underwriters for total loss on a missing vessel. And in paying under such circumstances some insurers require an undertaking from the assured that the loss shall be cancelled should the ship afterwards come to hand. But, in truth, it does

not require an indemnity of this kind in case of the reappearance of the missing property; for any settlement on a policy clearly obtained in error or by fraud is not binding and can be recalled. Yet as an unconditional settlement of a loss is not a desirable thing to disturb, it was laid down in Houstman v.` Thornton that "if after the underwriters have paid as upon a lost ship she reappears, she will be treated as abandoned and belonging to them." This was in the case of a ship not heard of.*

OF ABANDONMENT.

There are some words and some significant acts used in men's dealings with each other which, from antiquity and convention, pass current for a higher value than their intrinsic worth. The particular circumstances which gave them birth may have changed or passed away, but the expression or the action claims a prescriptive right to appear; and at last people are afraid to omit it, lest they should in some unforeseen manner be damnified by so doing. A father of the English law says that no deed of conveyance can be complete unless it contains the words "to have and to hold." Persons signing and sealing documents are careful to murmur "this is my act and deed." The giving of the ring in marriage, of a peppercorn annually as the tenure of some leases, and a hundred such time-honoured ceremonies, will rise to the reader's mind as instances of conven

* Maude and Pollock, p. 230.

tional forms in civil, legal and commercial transactions. "The emphatic word in the law-merchant, Abandonment," as Lord Ellenborough grandiloquently expressed it, is one of those things the importance of which is perhaps over-estimated. It has its uses and its force, as we shall see; but we shall also see that the using it will not establish rights which do not exist, nor the disuse of it defeat a vested right really in being. I shall have to show the particular cases in which it is useful and intelligible as a compliance with a condition precedent. In this it resembles the noting of protest by a captain within twenty-four hours of reaching a port. The notation itself is a dry and unexplanatory form; yet if omitted, the detailed statement of the voyage called the extension of protest cannot be afterwards made by a notary.

It was in the time of war that acts of abandonment were of the greatest concern; when captures and recaptures of vessels were constantly occurring, and there was a particular necessity for some formal recognition of the vesting and divesting of ownership in property which was liable to such frequent casualties and changes. In our more peaceful times, its true and nearly only value is discovered in those cases called constructive total loss either of ship, cargo or freight. Incidentally it has still its uses and significance, though I think they are smaller now than is commonly supposed.

I propose to consider the subject under the three following heads; viz.—