a positive engagement on the part of the underwriters to pay a total loss at the expiration of the specified time, without waiting the result of proceedings in a Prize Court for condemnation of the vessel. The repairs of the vessel proceeded at Elsinore; and by the end of January, 1864, they had so far progressed that the ship was in a position again to receive *her cargo, and the captain had com[*821 menced reloading it, although the vessel was not quite fit to proceed to sea. In this state of things, war was declared between Denmark and Prussia; and on the 3d of February an embargo was laid on the Ernst Jacob, at Elsinore, by the Danish government. The plaintiffs' correspondents at Elsinore immediately transmitted to them in London this information by telegram, as follows,-"Danish government has laid embargo on Ernst Jacob. War with Germany commenced. Inform Fowler in Memel." On receipt of this telegram, the plaintiffs immediately took it to Lloyd's, and handed it to Bevington & Co., their brokers, who took it to the secretary's office. The way in which losses and accidents are usually notified at Lloyd's is as follows:-In the underwriters' room there is a board. called the "Notice-board," upon which notices are affixed. There is is also a book called the "Loss-book," in which entries of losses are made. The notices affixed on the notice-board are not confined to losses, but extend to all intelligence which may be deemed important to underwriters for the purposes of their business. No notice can be affixed on the board, and no entry can be made in the Loss-book, but by one of the clerks in the secretary's office: and it is the duty of one of the committee of Lloyd's to be in constant attendance, in order that he may be appealed to in case of difficulty upon any such point. If the information of a loss is not deemed sufficiently authentic to be inserted in the Loss-book, it is merely affixed to the notice-board: but, if it comes from one of Lloyd's agents, or the accuracy of the intelligence is otherwise made clear, it is at once entered in the Lossbook. On the morning of the day following the receipt of the telegram by the plaintiffs, viz. on the 4th of February, a telegram was received at Lloyd's from their agent at Elsinore, conveying information [*825 of the embargo upon the Ernst Jacob, and thereupon the following entry was made by the secretary in the Loss book, "The Ernst Jacob, from Riga to London, has been laid under embargo at Elsinore." On the 5th of February, the plaintiffs' brokers gave the defendants notice of abandonment. The decree of the 15th of February, 1864, as set out in the second plea, was subject to reciprocity on the part of the governments interested. This act of reciprocity did not take place until the 13th of March, on which day the Prussian government formally assented to the terms of the decree of the Danish government. The embargo, however, was not taken off until the 17th of March. The Ernst Jacob did not sail from Elsinore until the 17th of April. She arrived in safety in London on the 29th of April,—the captain having procured the money for the repairs at Elsinore on bottomry. After the arrival of the ship in London and the discharge of her cargo, she was sold by auction, for account of whom it might concern, and realized 13811. 9s. 6d. The writ in this action issued on the 21st of March, 1864. The vessel had never in fact been taken out of the possession of the master and crew. Two witnesses who were called for the plaintiffs stated that the news of the embargo, if entered in Lloyd's book, would be treated as official," and as primâ facie evidence of a loss; but they disclaimed the notion that "official news" had any particular technical meaning. The jury adopted this view. On the part of the defendants it was submitted that it was for the Court to construe the meaning of the policy, and that, to make the news of the embargo *official, it must be authenticated as a *826] matter of official duty at the place whence it came; that a communication from an agent of Lloyd's at Elsinore might be deemed official, the object of the underwriters being that there might be some evidence of the loss beyond the bare statement of a party interested; and that the mere insertion of it in a book at Lloyd's could not make it official. Under the direction of the Lord Chief Justice, a verdict was entered for the plaintiffs as for a total loss, subject to a motion. Mellish, Q. C., accordingly, in Hilary Term last, obtained a rule calling upon the plaintiffs to show cause why the verdict entered for them on the pleas relating to total loss should not be set aside, and instead thereof a verdict be entered thereon for the defendant, on the ground that the loss ceased to be total when the embargo was taken off,-the plaintiffs to be at liberty to contend, if necessary, at the time of showing cause, that they were entitled to a verdict for "partial loss," if not for total loss. He also moved on the ground that the news of the loss was not "official" within the meaning of the policy: but upon this the rule was refused. Lush, Q. C., and Sir G. Honyman now showed cause.—The engagement in the policy is that "the insurers shall pay a total loss thirty days after receipt of official news of capture or embargo, without waiting for condemnation." Here the embargo was laid on the vessel on the 3d of February, 1864, consequently the thirty days elapsed before the vessel by the reciprocation of the Prussian government (on the 13th of March) became free. The special words in this policy were inserted for the benefit of the assured. What would have been the rights *of the parties without those words? The authorities are clear, *827] that, on seizure or embargo, by which the owner is deprived of the benefit of his vessel, he may immediately abandon, and bring an action for a total loss: the underwriter must pay for a total loss, even though the vessel should afterwards be restored. If the owner omits to give notice of abandonment, or delays bringing an action, and the vessel is restored in the mean time, he can only maintain an action for such damage as he has actually sustained. America and some other commercial countries give no effect to subsequent restoration. In 2 Arnould on Insurance, §383, p. 1071, the subject of abandonment on capture is thus treated,-"The best general statement I have anywhere met with of the circumstances which confer on the assured on ship a primâ facie right to give notice of abandonment, is contained in the following passage from the judgment of Mr. Justice Story in the American case of Peele v. The Merchants' Insurance Company, 3 Mason's Rep. 27: The right of abandonment has been admitted to exist where there is a forcible dispossession or ouster of the owners of the ship, as in cases of capture, &c.,-where there is a restraint or detention which deprives the owner of the free use of his ship, as in cases of embargoes, blockades, and arrests,-where there is a total loss of the ship for the voyage, as in cases of shipwreck, so that the ship cannot be repaired in the port where the disaster happens, where the injury is so extensive that by reason of it the ship is useless, and the making repairs would exceed her value.' First, therefore, the assured on the ship has a right to give notice of abandonment immediately he hears that his ship has been forcibly taken out of his possession and control by capture; for, from the moment of capture, he is deprived of the free disposal of his vessel, at all events for a time, and perhaps for ever. The ship,' as Lord Mansfield [*828 says, 'is lost by the capture, though she be never condemned at all, nor carried into any port or fleet of the enemy. (a) Immediately, therefore, the assured receives intelligence that his ship is captured, he has a right to give notice of abandonment; and he may insist on such notice, and recover as for a total loss, 'provided the capture, and the total loss occasioned thereby, continue to the time of bringing the action.'(b) If, however, before action brought, the ship be recaptured, and restored to the possession or control of her owners, either in an undamaged or only partially damaged state, the assured cannot insist on his notice of abandonment, and recover as for a total loss, even though the loss was total at the time he gave such notice." This rule gave rise to much inconvenience; and it is thus observed upon in 2 Kent's Commentaries, 10th edit. 437,-"The English rule is, that an abandonment, though rightly made, is not absolute, but it is liable to be controlled by subsequent events; and that, if the loss has ceased to be total before action, the abandonment becomes inoperative. The rule was suggested, but left undecided, in Hamilton v. Mendes, 2 Burr. 1198, but it was explicitly declared and settled in subsequent cases.(c) The English rule does not rest, however, without some distrust as to its solidity. It was much doubted in the House of Lords, by Lord Eldon, in Smith v. Robertson, 2 Dow. 474; every question as to the principle was expressly waived, and it has since been very much shaken."(d) But in the United States a *829 different rule prevails; and it is well settled in American jurisprudence that an abandonment once rightfully made is binding and conclusive between the parties, and the rights flowing from it become vested rights, and are not to be divested by subsequent events." To escape the inconvenience of that rule, the parties here stipulate by their contract that the loss shall be paid for as a total loss thirty days after receipt of official news of capture or embargo. If the words had been,-"to pay a total loss on receipt of official news of capture (a) Per Lord Mansfield in Goss v. Withers, 2 Burr. 694. (b) Per Lord Mansfield in Hamilton v. Mendes, 2 Burr. 1212. (e) Bainbridge v. Neilson, 10 East 329, Patterson v. Ritchie, 4 M. & Selw. 393. (d) See Holdsworth v. Wise, 7 B. & C. 794 (E. C. L. R. vol. 14), 1 M. & R. 673, and Naylor v. Taylor, 9 B. & C. 718 (E. C. L. R. vol. 15), 4 M. & R. 526. or embargo,"-could any one have doubted that the right of action vested immediately on capture? As the clause stands, the assured are bound to wait the thirty days, at the expiration of which the right of action is vested. The underwriters seem to have been under an impression that they were conceding something by the words which follow," without waiting for condemnation." The obvious intention was, to secure to the assured something which otherwise they would not have, and to accelerate and secure the payment of a total loss irrespective of any proceeding of a prize Court. On the one hand, the clause binds the assured not to sue until the expiration of the thirty days; and, on the other, that the right of the assured shall be ascertained and fixed at the same period, the obvious meaning of the parties being, that, in order to render the underwriters liable, the embargo must continue in force for thirty days. Here, that event has happened, and the right of the assured to sue for a total loss was complete. The construction sought to be put upon the clause on the part of the defendants would make it a stipulation solely for the benefit of the assurers. It will be said, that, as the ship was restored before the writ issued, the plaintiffs are in the same position as if this clause had not been inserted in the policy at all. *[MONTAGUE *8301 SMITH, J.-You say you had a vested right at the expiration of the thirty days, irrespective of what happened afterwards.] Precisely The object was to secure a certainty. So. Mellish, Q. C., and Archibald, in support of the rule.-The general rule of our insurance law unquestionably is, that, if a vessel has been captured or detained, but before action brought she is restored, the loss ceases to be total, and becomes a partial loss only; the ground being, that insurance is a contract of indemnity, by which the assured is only entitled to be secured against the loss sustained at the time of action brought. The question is whether the words of this clause enure to alter that general rule of law, or whether they mean anything more than to indicate the time when a constructive loss is to become an absolute total loss. The construction contended for on the other side gives no meaning to the words "without waiting for condemnation." It is conceded, that, if the ship had been restored within the thirty days, the loss would not have been total. Embargo is not, like capture, a total loss at the time it is put on. In Arnould, § 387, Vol. 2, p. 1085, it is said: "The grounds of abandonment hitherto considered have been capture, barratrous seizure and carrying away of the ship by the crew (Falkner v. Ritchie, 2 M. & Selw. 290; Brown v. Smith, 1 Dow 349) and desertion of the ship at sea by the crew, as the necessary and sole means of saving their lives (Thornely v. Hebson, 2 B. & Ald. 513; Holdsworth v. Wise, 7 B. & C. 794 (E. C. L. R. vol. 14), 1 M. & R. 673): in all these cases we have seen that the assured has a vested right to give notice of abandonment on first hearing of the casualty, supposing the privation of his possession or control over the ship to have been once total; but that his right to recover as for a total loss *depends, in all cases alike, upon the state of the ship at the *831] commencement of the action. Subject to the same limitations, there can be no doubt that arrest, detention, or embargo of the ship, whether by a hostile or friendly government, gives a primâ facie right of abandonment in all cases where there is an apparent proba bility that the owner's loss of the free use and disposal of his ship, once total, by the arrest or embargo, may be of long, or at all events of very uncertain continuance. Thus, where the ships of an American merchant resident at the time of action brought in this country, had been seized and detained by the French government in their port of loading, it was held, that, under a policy at and from such port, he might recover as for a total loss, upon due notice of abandonment, more especially as it appeared that the ships at the time of action brought were still detained, and had then been so for three years: Rotch v. Edie, 6 T. R. 413. Of course, if the arrest be only momentary in its duration, if it creates only a temporary obstruction of the voyage, without giving rise to any permanent loss of control over the ship, it cannot give any right to abandon." Here, the ship was never taken out of the possession of the captain. The repairs were going on all the time, and were not finished when the embargo was taken off. "Thus," continues Arnould, "where, on the occasion of a famine at Corfu, some Venetian cruisers, meeting at sea a Genoese ship laden. with corn, carried her into Corfu, and, after taking out and paying for the corn, let the ship go free, this was decided in the Rota Court of Genoa to give no ground of abandonment to the assured on ship: Roccus, No. 60, cited by Emerigon, Ch. xii., s. 30, vol. 1, p. 527 (edit. 1827); and see Boulay Paty's Commentary, Vol. 2, p. 219. So, where a British ship was detained eleven days by a British man-ofwar, to prevent her *proceeding to a port where an embargo was laid on all British vessels, it was held that the assured on [*832 ship could not abandon on this ground: Foster v. Christie, 11 East In France, the assured is allowed to give notice of abandonment immediately after capture; but, in case of detention by arrest or embargo, he is obliged to wait before doing so for different periods fixed by the 187th article of the Code de Commerce. Other laws,' says Mr. Benecke (Principles of Indemnity 349), 'make no distinction between capture and detention. Those of Prussia admit the abandonment when the liberation is uncertain or tedious. In Genoa and Leghorn, the assured may abandon when ship has been detained for three days. In Hamburg the assured cannot claim a total loss, until the ship or goods have been definitely condemned or irretrievably lost: Benecke 349. In this country no precise period is fixed; but immediately on hearing that his ship is detained by an embargo, the assured may give notice of abandonment, subject, of course, as in all other like cases, to have his right to recover for a total loss defeated by the restoration of the ship before action brought." It is clear, therefore, that embargo is not like capture. The object of the special stipulation here is, to remove all uncertainty on that head: the intention was to treat the official intimation of capture or embargo as equivalent to a condemnation by a prize Court. In Hamilton v. Mendes, 2 Burr. 1210, Lord Mansfield says: "The plaintiff's demand is for an indemnity. His action, then, must be founded upon the nature of his damnification, as it really is at the time the action is brought. It is repugnant, upon a contract of indemnity, to recover as for a total loss, when the final event has decided that the damnification in truth is an average, or perhaps no loss at all. Whatever undoes the damnification, in whole |