2718. An abandonment must be neither partial Must be nor conditional.

NOTE.-Code de Com., Art. 372; 2 Arnould Ins., p. 1149; Suydam vs. Marine Ins. Co,, 1 Johns., p. 181.

unqualified.

be made.

2719. An abandonment must be made within a when may reasonable time after the information of the loss, and after the commencement of the voyage, and before the party abandoning has information of its completion.

NOTE.-" Within a reasonable time after the information of the loss."-Smith vs. Steinbach, 2 Caines Cas., p. 158; Tom vs. Smith, 3 Caines, p. 245; Read vs. Bonham, 3 Brod. & B., p. 147; Aldridge vs. Bell, 1 Stark., p. 498; see Dean vs. Hornby, 3 E. & B., p. 180. "After the commencement of the voyage."Code de Com., Art. 370. "And before the party abandoning has information of its completion."-Parage vs. Dale, 3 Johns. Cas., p. 156; Pezant vs. National Ins. Co., 15 Wend., p. 453.

ment may

defeated.

2720. Where the information upon which an aban- Abandondonment has been made proves incorrect, or the thing be insured was so far restored when the abandonment was made that there was then in fact no total loss, the abandonment becomes ineffectual.

NOTE.-Church vs. Bedient, 1 Caines Cas., p. 21;
Hallett vs. Peyton, id., p. 28; Penny vs. N. Y. Ins.
Co., 3 Caines, p. 155; Dickey vs. Am. Ins. Co. (Ct. of
Errors), 3 Wend., p. 658. But as to the conflict in the
cases on this question, see 2 Pars. Mar. L., p. 402, note.

made.

2721. Abandonment is made by giving notice How thereof to the insurer, which may be done orally, or in writing.

NOTE.-2 Levi Com. L., p. 159; 2 Pars. Mar. L., P. 396; see Read vs. Bonham, 3 Brod. & B., p. 147; Patapsco Ins. Co. vs. Southgate, 5 Peters, p. 622. Whether it ought not to be required to be in writing, see Parmenter vs. Todhunter, 1 Camp., p. 541.

of notice.

2722. A notice of abandonment must be explicit, Requisites and must specify the particular cause of the abandonment, but need state only enough to show that there

26-vol. ii.

No other

cause can

be relied

on.

Effect.

Waiver of formal abandonment.

Agents of the insured

become

agents

of the insurer.

Acceptance

not necessary.

is probable cause therefor, and need not be accompa nied with proof of interest or of loss.

2723.

NOTE. "Specify the particular cause of the abandonment."-Suydam vs. Marine Ins. Co., 1 Johns., p. 181; see Dickey vs. N. Y. Ins. Co., 4 Cow., p. 222; Craig vs. United Ins. Co., 6 Johns., p. 226. "Need only show there is probable cause therefor."-McConochie vs. Sun Ins. Co., 3 Bosw., p. 99. "Need not be accompanied with proof of interest or of loss."-Barker vs. Phoenix Ins. Co., 8 Johns., p. 307.

An abandonment can be sustained only upon

the cause specified in the notice thereof.

NOTE. Suydam vs. Marine Ins. Co., 1 Johns., p. 181; but compare Dean vs. Hornby, 3 E. & B., p. 180. 2724. An abandonment is equivalent to a transfer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity.

NOTE.-Rogers vs. Hosack, 18 Wend., p. 319; Radcliff vs. Coster, Hoffm., p. 98; Atlantic Ins. Co. vs. Storrow, 5 Paige, p. 285.

2725. If a marine insurer pays for a loss as if it were an actual total loss, he is entitled to whatever may remain of the thing insured, or its proceeds or salvage, as if there had been a formal abandonment.

NOTE.-2 Arn. Ins., p. 1001; 2 Pars. Mar. L., p. 398. 2726. Upon an abandonment, acts done in good faith by those who were agents of the insured in respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit.

NOTE.-Gardner vs. Smith, 1 Johns. Cas., p. 141; Walden vs. Phoenix Ins. Co., 5 Johns., p. 310; Gardere vs. Columbian Ins. Co., 7 id., p. 514; Jumel vs. Marine Ins. Co., 7 id., p. 412.

2727. An acceptance of an abandonment is not necessary to the rights of the insured, and is not to be presumed from the mere silence of the insurer, upon his receiving notice of abandonment.

NOTE." Acceptance of abandonment not presumed

from mere silence of insurer" (2 Pars. Mar. L., p. 399;
Walden vs. Phoenix Ins. Co., 5 Johns., p. 310), "upon
his receiving notice of abandonment."-Child vs. Sun
Mutual Ins. Co., 2 Sandf.,
p. 76.

conclusive.

2728. The acceptance of an abandonment, whether Acceptance express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment.

NOTE.-Smith vs. Robertson, 2 Dow, p. 474.

abandon

2729. An abandonment once made and accepted Accepted is irrevocable, unless the ground upon which it was ment. made proves to be unfounded.

NOTE.-2 Levi Com. L., p. 166; 2 Pars. Mar. L., p.

413.

irrevocable.

how

affected by

abandon

2730. On an accepted abandonment of a ship, Freightage freightage earned previous to the loss belongs to the insurer thereof; but freightage subsequently earned belongs to the insurer of the ship.

NOTE.-United States Ins. Co. vs. Lenox, 1 Johns. Cas., p. 377; see Stewart vs. Greenock Ins. Co., 2 H. of L. Cas., p. 159.

ment of

ship.

accept.

2731. If an insurer refuses to accept a valid aban- Refusal to donment, he is liable as upon an actual total loss, deducting from the amount any proceeds of the thing insured which may have come to the hands of the insured.

NOTE.-Church vs. Bedient, 1 Caine's Cas.,

p. 21.

2732. If a person insured omits to abandon, he Omission may nevertheless recover his actual loss.

NOTE.-Suydam vs. Marine Ins. Co., 2 Johns., p. 138; Earl vs. Shaw, 1 Johns. Cas., p. 313.

to

abandon.

ARTICLE IX.

MEASURE OF INDEMNITY.

SECTION 2736. Valuation, when conclusive.

2737. Partial loss.

2738. Profits.

Valuation,

when

SECTION 2739. Valuation apportioned.
2740. Valuation applied to profits.

2736.

2741. Estimating loss under an open policy.

2742. Arrival of thing damaged.

2743. Labor and expenses.

2744. General average.

2745. Contribution.

2746. One third new for old.

A valuation in a policy of marine insurance

conclusive. is conclusive between the parties thereto in the adjustment of either a partial or total loss, if the insured has some interest at risk, and there is no fraud on his part; except that when a thing has been hypothecated by bottomry or respondentia, before its insurance, and without the knowledge of the person actually procuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract.

Partial loss.

Profits.

NOTE.-Valuation in policy conclusive as to the parties thereto (Irving vs. Manning, 1 H. of L. Cas., p. 287; 6 C. B., p. 391; Whitney vs. Amer. Ins. Co., 3 Cow., p. 210; Kane vs. Commercial Ins. Co., 8 Johns., p. 229; Davy vs. Hallett, 3 Caines, p. 16,) for adjustment of either partial or total loss.-See 3 Kent Com., p. 274; 2 Pars. Mar. L., p. 68.

2737. A marine insurer is liable upon a partial loss, only for such proportion of the amount insured by him as the loss bears to the value of the whole interest of the insured in the property insured.

NOTE.-2 Arnould's Ins., Sec. 358; Clark vs. United M. and F. Ins. Co., 7 Mass., p. 365.

2738. Where profits are separately insured in a contract of marine insurance, the insured is entitled to recover, in case of loss, a proportion of such profits equivalent to the proportion which the value of the property lost bears to the value of the whole.

NOTE.-Loomis vs. Shaw, 2 Johns. Cas., p. 36; see Abbott vs. Sebor, 3 id., p. 39.

appor

2739. In case of a valued policy of marine insur- Valuation ance on freightage or cargo, if a part only of the sub- tioned. ject is exposed to risk, the valuation applies only in proportion to such part.

NOTE.-3 Kent Com., p. 275.

applied to

2740. When profits are valued and insured by a Valuation contract of marine insurance, a loss of them is conclu- profits. sively presumed from a loss of the property out of which they were expected to arise, and the valuation fixes their amount.

NOTE.-Patapsco Ins. Co. vs. Coulter, 3 Peters, p. 222; 2 Pars. Mar. L., p. 70, n. 4; Abbott vs. Sebor, 3 Johns. Cas., p. 39.

loss under

2741. In estimating a loss under an open policy Estimating of marine insurance, the following rules are to be an open observed:

1. The value of a ship is its value at the beginning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured;

2. The value of cargo is its actual cost to the insured, when laden on board, or where that cost cannot be ascertained, its market value at the time and place of lading, adding the charges incurred in purchasing and placing it on board, but without reference to any losses incurred in raising money for its purchase, or to any drawback on its exportation, or to the fluctuations of the market at the port of destination, or to expenses incurred on the way or on arrival;

3. The value of freightage is the gross freightage, exclusive of primage, without reference to the cost of earning it; and,

4. The cost of insurance is in each case to be added to the value thus estimated.

NOTE.-3 Kent Com., pp. 335, 336.

Subd. 1.-Value of the ship. 2 Pars. Mar. L., p. 70; Kemble vs. Bowne, 1 Caines, p. 75; and see 2

policy.