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Presumed

actual loss.

Insurance

on cargo, &c., when voyage is

broken up.

Cost of reshipment, &c.

When insured is

entitled to payment.

Abandonment of

goods on

insurance of profits.

Average loss.

S 1479. An actual loss may be presumed from the continued absence of a ship without being heard of; and the length of time which is sufficient to raise this presumption depends on the circumstances of the

case.

Gordon v. Bowne, 2 Johns., 150; Marsh. Ins., 417; Brown v. Neilson, 1 Cai., 525.

S1480. When a ship is prevented, at an intermediate port, from completing the voyage, the master must make every exertion to procure in the same or a contiguous port, another ship, for the purpose of conveying the cargo to its destination; and the liability of a marine insurer thereon continues after they are thus reshipped.

Code de Com., 391, 392; Saltus v. Ocean Ins. Co., 12
Johns., 107; Treadwell v. Union Ins. Co., 6 Cow, 270;
Whitney v. N. Y. Firemen's Ins. Co., 18 Johns., 208.

$1481. In addition to the liability mentioned in the last section, a marine insurer is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount insured.

Code de Com., 393; Bridges v. Niagara Ins. Co., 1 Hall, 423.

S 1482. Upon an actual total loss a person insured is entitled to payment without notice of abandon

meut.

Gordon v. Bowne, 2 Johns., 150; Cambridge v. Anderton, 2 B. & C., 691.

S 1483. Where profits are insured, but the goods are not insured, a marine insurer is not liable for a constructive total loss unless the insured offers to abandon the goods.

Tom v. Smith, 3 Cai., 245.

$1484. Where it has been agreed that an insurance upon a particular thing or class of things shall be free from particular average, a marine insurer is not liable for any loss, not depriving the insured of the possession, at the port of destination,' of the whole of such thing,'

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or class of things, even though it becomes entirely worthless.

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'De Peyster v. The Sun Mut. Ins. Co., 19 N. Y., 272;
17 Barb., 306; Roux v. Salvador, 3 Bing. N. C., 266;

1 id., 526; Navone v. Haddon, 9 C. B., 30; Hugg v.

Augusta Ins. Co., 7 How. [U. S.], 595; Williams v.
Kennebec Ins. Co., 31 Me., 455.

Maggrath v. Church, 1 Cai., 196; Neilson v. Columbian
Ins. Co., 3 id., 108; Le Roy v. Gouverneur, 1 Johns.
Cas., 226; Saltus v. Ocean Ins., 14 Johns., 138;
Rosetto v. Gurney, 11 C. B., 176. See Bargett v.
Orient Ins. Co., 3 Bosw., 385.

Wadsworth v. Pacific Ins. Co., 4 Wend., 33; Biays v.
Chesapeake Ins. Co., 7 Cranch, 415.

against

S1485. An insurance confined in terms to a total Insurance loss, does not cover a constructive total loss,' but total loss, covers any loss which necessarily results in depriving the insured of the possession, at the port of destination, of the entire thing insured; and also a general average loss.

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See 2 Pars. Mar. Law, 338-343; and the notes to last
section. The contrary has, however, been recently
held in Massachusetts (Heebner v. Eagle Ins. Co., 10
Gray, 131).

Adams v. Mackenzie, 13 C. B. [N. S.], 442.

ARTICLE VIII.

ABANDONMENT.

SECTION 1486. Abandonment, what.

1487. When insured may abandon.

1488. Must be unqualified.

1489. When may be made.

1490. Abandonment may be defeated.

1491. How made.

1492. Requisites of notice.

1493. No other cause can be relied on.

1494. Effect.

1495. Waiver of formal abandonment.

1496. Agents of the insured become agents of the insurer.

1497. Acceptance not necessary.

1498. Acceptance conclusive.

1499. Accepted abandonment, irrevocable.

1500. Freightage, how affected by abandonment of ship.

1501. Refusal to accept.

1502. Omission to abandon.

Abandonment, what

When in

Bured may abandon.

S 1486. Abandonment is the act by which, after a constructive total loss, a person insured by a contract of marine insurance declares to the insurer that he relinquishes to him his interest in the thing insured. Emerigon, c., 27. See Jardine v. Leathley, 3 Best & Sm.,

700.

S1487. A person insured by a contract of marine insurance may abandon the thing insured, or any particular portion thereof, separately valued by the policy,' or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against:

1. If more than half thereof, in value, is actually lost, or would have to be expended to recover it from the peril ;3

2. If it is injured to such an extent as to reduce its value more than one-half ;*

3. If, the thing insured being a ship, the contemplated voyage cannot be lawfully performed, without incurring an expense to the insured of more than half the value of the thing abandoned, or without incurring a risk which a prudent man would not take under the circumstances; or,

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4. If, the thing insured being cargo or freightage, the voyage cannot be performed, nor another ship procured by the master, within a reasonable time, and with reasonable diligence, to forward the cargo, without incurring the like expense or risk. But freightage cannot in any case be abandoned, unless the ship is also abandoned.

'Deiderick v. Commercial Ins. Co., 10 Johns., 234.

* Vandenheuvel v. United Ins. Co., 1 Johns., 406.

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Saurez v. Sun Mut. Ins. Co., 2 Sandf., 482.

Ogden v. N. Y. Fire Ins. Co., 10 Johns., 177; aff'd 12 id., 25; McBride v. Marine Ins. Co., 5 id., 299; Walden v. Phoenix Ins. Co., id., 310.

* American Ins. Co. v. Center, 4 Wend., 45; 7 Cow., 56£ Schmidt v. United Ins. Co., 1 Johns., 249; Post v. Phoenix Ins. Co., 10 Johns., 79.

8 From Code de Com., 393.

S1488. An abandonment must be neither partial Must be nor conditional.

Code de Com., art. 372; 2 Arnould Ins., 1149; Suydam v.
Marine Ins. Co., 1 Johns., 181.

unqualified.

be made.

S 1489. An abandonment must be made within a When may reasonable time after information of the loss,' and after the commencement of the voyage,' and before the party abandoning has information of its completion.3

1 Smith v. Steinbach, 2 Cai. Cas., 158; Tom v. Smith, 3
Cai., 245; Read v. Bonham, 3 Brod. & B., 147;

Aldridge v. Bell, 1 Stark., 498; see Dean v. Hornby,
3 E. & B., 180.

Code de Com., art. 370.

'Parage v. Dale, 3 Johns. Cas., 156; Pezant v. National

Ins. Co., 15 Wend., 453.

S1490. Where the information upon which an abandonment has been made proves incorrect, or the thing insured was so far restored when the abandonment was made, that there was then in fact no total loss, the abandonment becomes ineffectual.

Church v. Bedient, 1 Cai. Cas., 21; Hallett v. Peyton, id.,
28; Penny v. N. Y. Ins. Co., 3 Cai., 155; Dickey v.
Am. Ins. Co. [Ct. of Errors], 3 Wend., 658. But as to
the conflict in the cases on this question, see 2 Pars.
Mar. L., 402, note.

Abandon

ment may

be defeated.

S 1491. Abandonment is made by giving notice How made. thereof to the insurer; which may be done orally,

or in writing.

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

of notice.

S1492. 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 is probable cause therefor, and need not be accompanied with proof of interest or of loss.3

No other canse can be relied

on.

Effect.

Waiver of formal abandonment.

Agents of

the insured

1 Suydam v. Marine Ins. Co., 1 Johns., 181; see Dickey v N. Y. Ins. Co., 4 Cow., 222; Craig v. Uated Ins. Co. 6 Johns., 226.

McConochie v. Sun Ins. Co., 3 Bosw., 99.

Barker v. Phoenix Ins. Co., 8 Johns., 307.

S1493. An abandonment can be sustained only upon the cause specified in the notice thereof.

Suydam v. Marine Ins. Co., 1 Johns., 181; but compare
Dean v. Hornby, 3 E. & B., 180.

S 1494. An abandonment is equivalent to a transfer, by the insured, of his interest, to the insurer, with all the chances of recovery and indemnity.

Rogers v. Hosack, 18 Wend., 319; Radcliff v. Coster,
Hoffm., 98; Atlantic Ins. Co. v. Storrow, 5 Paige, 285.

S 1495. 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.

2 Arn. Ins., 1001; 2 Pars. Mar. L., 398.

S1496. Upon an abandonment, acts done in good become faith, by those who were agents of the insured in

agents of

the insurer.

Acceptance not necessary.

Acceptance conclusive.

respect to the thing insured, subsequent to the loss, are at the risk of the insurer, and for his benefit.

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

S1497. 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."

12 Pars. Mar. L., 399; Walden v. Phoenix Ins. Co., 5 Johns., 310.

Child v. Sun Mutual Ins. Co., 2 Sandf., 76.

$ 1498. The acceptance of an abandonment, whether express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment.

Smith v. Robertson, 2 Dow, 474.

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