transhipment, or hope of any,-as, where the ship is cast away on some desolate and unfrequented coast, the master might possibly be held empowered to sell the cargo if he had the opportunity, even though it were neither sea-damaged nor of a perishable [*842 nature:" per Bayley, J., in Hunt v. The Royal Exchange Assurance Company, 5 M. & Selw. 56, 57. And see Idle v. The Royal Exchange Assurance Company, 8 Taunt. 755 (E. C. L. R. vol 4), 3 J. B. Moore 115: see also 3 Brod. & Bingh. 151 (d) (E. C. L. R. vol. 7. The question arose in King v. Walker, in error, 3 Hurlst. & Colt. 209, where Willes, J., in delivering the judgment of the Exchequer Chamber, says: "The vessel set sail upon a voyage from Moulmein to Falmouth, and by perils of the seas was so much strained and seriously damaged, that she was compelled to put into Simon's Bay, where she was surveyed, and it was ascertained that without an expenditure clearly beyond her value when repaired, she could not be made seaworthy or capable of continuing the voyage with cargo or in ballast; and it was doubtful, in consequence of the prevalent swell, whether she would bear heaving down in the course of repair. The master took the opinion of the Attorney-General of the Cape, and, acting under his advice to abandon and sell, sold the ship for the best price that could be obtained for her, 2801. gross,— 1247. 78. 7d. net. In making this sale the master appears to have acted with perfect honesty, and in such a manner as a prudent owner unin sured would have acted. The plaintiffs further insisted that the sale was a necessary act, at least in this sense, that, as expenses were running on, it was necessary to do something, and that no other rational course for the master to pursue can be suggested: see Somes v. Sugrue, 4 C. & P. 276 (E. C. L. R. vol. 19); Hunter v. Parker, 7 M. & W. 322;† and upon this the plaintiffs relied as showing an actual total loss, of course with benefit of salvage, but without any necessity for abandonment; and they relied upon Cambridge v. Anderton, 2 B. & C. 691 (E. C. L. R. vol. 9), 4 D. & R. 203 (E. Č. L. R. vol. 16), the judgments in Moss v. Smith, 9 C. B. 94 (E. C. L. R. vol. 67), and that part of the judgment in Knight v. Faith, 15 Q. B. 649 (E. C. L. R. vol. 69), in which Lord Campbell excepted the case of a [*843

bonâ fide sale by the master; to which may be added the statement in Marshall on Insurance (by Serjt. Shee), p. 450. And it may not be easy to understand why notice of abandonment should be required in a case where the vessel cannot be made to sail except at an expense for repair which no rational man would incur, and is therefore perly and in a sense necessarily sold for the old materials, and the case of a sunken vessel, of which some portion of the materials may be recovered, but which cannot be raised except by an extravagant expenditure such as no rational man would incur."

pro

Then, if this was not a total loss, there is abundant evidence of a partial loss greatly exceeding 23 per cent. The mode of ascertaining an average loss on goods when arrived is well fixed.(a) But the ques

(a) "A particular average on goods delivered at the port of destination, is adjusted on the gross proceeds or market value there, and is the same proportion of the value of the goods in the policy, whether open or valued, as the deficiency of the gross market value of the damaged goods compared to those of the sound is of the gross market value of the latter. That is to say, if the invoice price of the damaged goods in an open policy, or their value in a valued policy, is $1000, and they are sold at $6000 at the port of destination, and the same goods sound would have been worth there $1200, the loss is one-half, or $500."

tion here is, what is the rule where the goods are justifiably sold at an intermediate port. It is submitted that it makes it at once a salvage loss, and that the correct rule is, to pay the value in the policy, less the salvage: see Benecke Pr. of Indemnity 435; Stevens on Average, 5th edit. 83-85; Arnould on Insurance, Vol. 2, § 360. In 2 Phillips on Insurance, § 1463, it is said,-"In case of a salvage loss, that is, in one where the insured damaged goods are sold at an *844] intermediate port for the *benefit of the assured and his underwriter, the adjustment is precisely the same in respect of those goods as it is in a total loss. The voyage is broken up in respect of those goods, and the underwriter is liable to pay to the assured the amount at which they are insured, whether under an open or a valued policy, and the salvage, that is, the net proceeds of the goods, subject to all necessary charges, is to be credited to the underwriter." The sum paid into Court here is only on the amount of deterioration. The plaintiffs claim to be entitled to all the expenses and the increased freight they must have paid to bring the goods on to their destination.

E. James, Q. C., and T. Jones, in support of the rule. The plaintiffs are not entitled to recover either in respect of a total loss, or of an average loss beyond the sum paid into Court. It is not denied on the part of the plaintiffs that notice of abandonment is necessary in the case of a constructive total loss whether of ship or of goods: Fleming v. Smith, 1 House of Lords Cases 513. No notice of abandonment was given here. If there could be a total loss, it was clearly constructive only, and therefore the underwriters were entitled to notice. There was no actual total loss of the ship: and, even if there was, it does not follow that there was an actual total loss of the cargo. Assuming that the master is justified in selling the cargo, where the ship is wrecked and the goods cannot in a mercantile sense be forwarded to their port of destination, the evidence here failed to establish that state of things. The goods being imperishable, they must be sent on if it be possible. It appears that the vessel took the ground in December, 1861. On the face of the surveys then made, there is nothing to show an actual total loss. Indeed, the plaintiffs themselves

did not so treat it. There may be said to be an actual total loss

*845] of the ship, when she founders or goes on shore, and by the vio

lence of the winds and waves is broken up, or (as in Cambridge v. Anderton, 2 B. & C. 691 (E. C. L. R. vol. 9), 4 D. & R. 203 (E. C. L. R. vol. 16)) where she is upon a rock incapable of being got off and repaired. But, if the vessel retains the form and character of a ship, and is capable of being repaired, then arises the question whether or not the expense of the repairs will exceed the value of the ship when repaired. If she be repairable, there is no actual total loss: and, if repairable only at an expense exceeding her value when repaired, there is a constructive total loss; but there must be notice of abandonment, if only for form's sake. It was because the surveyors here found the vessel in such a state that the cost of getting her afloat and repairing her would exceed her value, that they recommended a sale. But that applied to the ship only. All the evidence points to a constructive total loss. The thing remaining in specie, capable of being carried on, it was the duty of the assured to give the underwriters notice of abandonment, so that they might exercise their own judg

ment. [BYLES, J.-There is a great difference between the case of a vessel constructively lost, in this sense that she is incapable of being repaired save at an expense which would exceed her value when repaired, and that of a vessel sold, and justifiably sold: may not the latter be a case of actual total loss?] It has never been so laid down. It has always been understood that abandonment is necessary to vest in the underwriters all the property which before was in the assured. "The underwriter," says Lord Abinger, in delivering the judgment of the Court of error in Roux v. Salvador, 4 Scott 1, 32, 3 N. C. 266, 285 (E. C. L. R. vol. 32), "engages that the object of the assurance shall arrive in safety at its destined termination. If, in the progress of the voyage, it becomes totally destroyed or annihilated, or [*846 if it be placed, by reason of the perils against which he insures, in such a position that it is wholly out of the power of the assured or of the underwriter to procure its arrival, he is bound by the very letter of his contract to pay the sum insured. But there are intermediate cases. There may be a capture, which, though primâ facie a total loss, may be followed by a recapture, which would revest the property in the assured. There may be a forcible detention, (a) which may speedily terminate, or may last so long as to end in the impossibility of bringing the ship or the goods to their destination. There may be some other peril which renders the ship unnavigable, without any reasonable hope of repair, or by which the goods are partly lost, or so damaged that they are not worth the expense of bringing them, or what remains of them, to their destination. In all these or any similar cases, if a prudent man not insured would decline any further expense in prosecuting an adventure the termination of which will probably never be successfully accomplished, a party insured may, for his own benefit, as well as for that of the underwriter, treat the case as one of a total loss, and demand the sum insured. But, if he elects to do this, as the thing insured, or a portion of it, still exists, and is vested in him, the very principle of the indemnity requires that he should make a cession of all his right to the recovery of it, and that too within a reasonable time after he receives the intelligence of the accident, that the underwriter may be entitled to all the benefit of what may still be of any value, and that he may if he pleases take measures, at his own cost, for realizing or increasing that value." To make an actual total loss of goods, the specific character of the article must be gone. [*847 "If," says Lord Abinger, in the case above referred to, "the goods are of an imperishable nature, if the assured become possessed of or can have the control over them, if they still have an opportunity of sending them to their destination, the mere retardation of their arrival at their original port may be of no prejudice to them beyond the expense of reshipment in another vessel. In such a case, the loss can be but a partial loss, and must be so deemed, even though the assured should, for some real or supposed advantage to themselves, elect to sell the goods where they have been landed, instead of taking measures to transmit them to their original destination. But, if the goods, once damaged by the perils of the sea, and necessarily landed before the termination of the voyage, are, by reason of that damage, in such a state, though the species be not (a) See Fowler v. The English and Scottish Marine Insurance Company, antè, p. 818.

utterly destroyed, that they cannot with safety be reshipped into the same or any other vessel; if it be certain that, before the termination of the original voyage, the species itself would disappear, and the goods assume a new form, losing all their original character; if, though imperishable, they are in the hands of strangers, not under the control ́of the assured; if by any circumstances over which he has no control they can never, or within no assignable period, be brought to their original destination: in any of these cases, the circumstance of their existing in specie at that forced determination of the risk is of no importance. The loss is in its nature total to him who has no means of recovering his goods, whether his inability arises from their annihilation or from any other insuperable obstacle." "In the case before us the jury have found that the hides were so far damaged by a peril of the sea, that they never could have arrived in the form of hides. By *818] the process of fermentation and putrefaction which had *commenced, a total destruction of them before their arrival at their port of destination became as inevitable as if they had been cast into the sea or consumed by fire. Their destruction not being consummated at the time they were taken out of the vessel, they became in that state a salvage for the benefit of the party who was to sustain the loss, and were accordingly sold: and the facts of the loss and the sale were made known at the same time to the assured. Neither he nor the underwriters could at that time exercise any control over them, or by any interference alter the consequences. It appears to us, therefore, that this was not the case of what has been called a constructive loss, but of an absolute total loss of the goods; they never could arrive; and, at the same moment when the intelligence of the loss arrived, all speculation was at an end." The whole ground upon which it was held that no abandonment was necessary there, was, that the goods were in such a state that if transhipped they must have lost the character of hides before they could have reached their destination. In Tunno v. Edwards, 12 East 488, Lord Ellenborough asks,"Is it not an established and familiar rule of insurance law, that, where the thing insured subsists in specie, and there is a chance of its recovery, in order to make it a total loss there must be an abandonment?" The assured are bound to abandon as soon as they receive intelligence of a loss: Allwood v. Henckell, Marsh. Ins. (by Shee) 280, Park Ins. (by Hildyard) 399. In Hodgson v. Blakiston, Marsh. Ins. (by Shee) 281 n., Park Ins. (by Hildyard) 400 (k), it was held that a notice of abandonment was necessary, though the ship and cargo had been sold and converted into money when the notice of the loss was received. All the authorities are considered in Knight v. Faith, 15 Q. B. 649 (E. C. L. R. vol. 69). There a ship insured for 1000l. for a year ending the 23d of September, was stranded, got *849] *off, and brought into the harbour of Santa Cruz on the 16th of September. She remained there with her crew on board till the middle of October, and, during that time, was pumped, and her cargo was discharged into other vessels. Being then beached and surveyed, she was found so much damaged by the accident that the necessary repairs could not be done at Santa Cruz, there being no dock-yard, workmen, or materials there; nor could she be taken to any port where she could prudently have been repaired. Afterwards,

in October, the master (who was a part owner and interested in the policy) sold her for the benefit of those whom it might concern; and she fetched 721. No notice of abandonment was given. A special case, in an action against the underwriters, set forth these facts, stating also that the vessel "received her death blow" by the said perils of the sea on the 16th of September, but that the damage was not ascertained till the 24th. It was held that the sale by the master did not, nor did the other facts, constitute an actual total loss; and that, if there was a constructive total loss which would have entitled the assured to abandon, they could not recover for such loss, not having given notice of abandonment. [KEATING, J.-Does not Lord Campbell in that case except the case of a lawful sale from the necessity of a notice of abandonment?] His Lordship is referring to a totally different subject: he was dealing with the case of the sale of a ship by the master, who was also part owner. "Whether," he says, "notice of abandonment may be dispensed with where there has lawfully been a sale by the master, we are not now called upon to decide. Where she is reduced to a mere wreck, the solution of this question may be clear enough. Where she still retains the character of a ship, it may be attended with difficulty: but here we are of opinion, that, as against the insurers, the sale is not shown to be lawful. It must be borne in mind that she remained in the character of [*850 a ship, capable of being repaired if there had been the means of repairing her at Santa Cruz; and that she might have been sent to other places where she might have been repaired, although not prudently. Could the master, who is a part owner, one of the assured, and a plaintiff on this record, under these circumstances sell the ship, and, without notice of abandonment, render the insurers liable for a total loss? The master's right to sell arises. only in a case of necessity, which must be clearly shown, with full proof that everything was done optimâ fide, and for the real benefit of all concerned: Case of The Fanny and Elmira, Edwards Adm. R. 117, Cannan v. Meaburn, 1 Bingh. 243, 8 J. B. Moore 127. In Idle v. The Royal Exchange Assurance Company, 8 Taunt. 755 (E. C. L. R. vol. 4), 3 J. B. Moore 115 (E. C. L. R. vol. 4), where the jury found that the master, in selling the ship, had acted fairly and bona fide for the benefit of all concerned, and that the sale was honestly, fairly, and properly conducted,' this Court, upon a writ of error from the Court of Common Pleas (see 3 Brod. & B. 151, n.), held that the necessity and legality of the sale was not to be inferred from this finding. In Robertson v. Clarke, 1 Bingh. 445 (E. C. L. R. vol. 8), 8 J. B. Moore 622 (E. C. L. R. vol. 17), where a sale by the master was upheld, Lord Gifford said: This principle may be clearly laid down, that a sale can only be permitted in case of urgent necessity, that it must be bonâ fide for the benefit of all concerned, and must be strictly watched." The substance of the decision in Knight v. Faith, is, that, unless the ship is at the bottom of the sea, or in a like irrecoverable condition, or that the goods are irreclaimably gone, notice of abandonment must be given. Here, the goods existed in specie, and were likely so to remain. Speaking of the right of the master to sell the ship where her [*851 repair is impracticable or to be effected only at a cost exceeding her value when repaired, Mr. Arnould says,-Vol. 2, p. 1090 (2d