fact alleged be within the meaning of these words, in a case where, by the policy, the insurance was against the barratry of the master, and the breach assigned in the declaration was, that the ship was lost by the fraud and neglect of the master, the declaration was holden to be good: for barratry imports fraud, and he who commits a fraud may properly be said to be guilty of a neglect, viz. of his duty.

5. Loss by Fire.

Fire is expressly mentioned in the policy, as one of the perils against which the underwriters agree to indemnify the assured. In an action on a policy, where the loss was stated to be by fire, it appeared that the ship in question having been chased by an enemy of superior force, the captain, in order to prevent her from falling into the hands of the enemy, set her on fire. It was holden, that this loss was covered by the policy: Lord Ellenborough, C. J. observing, that if the ship is destroyed, it is immaterial whether it is occasioned by a common accident, or by lightning, or by an act done in duty to the state. Nor could it make any difference whether the ship was thus destroyed by third persons, subjects of the king, or by the captain and crew, acting with loyalty and good faith. Fire was still the causa causans, and the loss within the perils insured against. If a fire arises on board a ship from the damaged quality of the goods insured, the underwriters are not liable; but if the loss is not so occasioned, the policy will not be vitiated by the non-disclosure of the condition of the goods to the underwriter?. Upon a policy on ship by which the underwriters insured against fire and barratry of the master and mariners, it was holden that the underwriters were liable for a loss by fire, occasioned by the negligence of the master and mariners.

6. By other Losses.

These general words were not the immediate subject of judicial construction in our courts, until the case of Cullen v. Butler, 5 M. and S. 461. There the master and crew of a British ship, believing the ship insured to be an enemy's ship about to attack them, fired at her and sunk her with the

o Gordon v. Rimmington, 1 Campb. p Boyd v. Dubois, 3 Campb. 133. 123. q Busk v. R. Exch. Ass, 2 B. & A. 73.

goods on board. This loss was specially set forth in the second count of the declaration, and the court held that the plaintiff was entitled to recover upon it, inasmuch as it fell within the general and comprehensive words in the policy subjoined to the particular causes of loss, viz. "All other perils, losses, and misfortunes, which had or should come to the damage of the goods and ship or any part thereof." In an action on a policy of insurance, from Spain to Cuba and the Spanish Main, the declaration stated the insurance to be on dollars. The interest was averred to be in a subject of the King of Spain. It stated that hostilities had commenced between Spain and South America. The loss was stated as follows: namely, that while the ship was on her voyage, an armed vessel proceeded from a ship acting under the authority of persons exercising the powers of government in South America, made up to the ship on board of which the dollars were, in order to attack her, and that the master, in order to prevent the dollars from falling into their hands, threw them overboard. It then stated, that the armed boat did attack the ship, and capture her. To this declaration there was a general demurrer, and the question was whether this was a loss within the policy. It was holdena, that it was; the court observing, that this was a general demurrer. Taking all the circumstances together, it must be considered that the master acted properly in throwing the dollars overboard. If the defendant had intended to dispute that, he should have gone to trial. They said they considered that this was a loss by jettison; which meant any throwing overboard ex justá causa. All the foreign writers agree that the master may set fire to a ship to prevent its falling into an enemy's hands. This case fell within the same principle. The dollars would have been useful to the enemy in the prosecution of the war. It was the master's duty to prevent the enemy from seizing them. The circumstance of the insurer not being a subject of Spain could make no difference. They said that this might also be considered as a loss by enemies, and would also fall within the general words "other losses." Where, in an action on a policy of insurance on a ship in the usual form, for twelve months, at sea and in port, the loss averred was as follows: that the ship having arrived at the harbour of St. J., and discharged her cargo, it became necessary to place her, and she was accordingly placed, in a gravingdock, there to be repaired, and near to a certain wharf in the graving-dock; and that whilst she was there, by the violence

a Butler v. Wildman, 3 B. & A. 398.

of the wind and weather, she was thrown over on her side, whereby she struck the ground with great violence and was bilged, &c. It was holden", that this was a loss within the general words of the policy, "all other perils, losses, and misfortunes, &c." for which the underwriters were liable. Held also, that the above facts, with the additional circumstance of there being two or three feet water in the gravingdock when the accident happened, did not amount to a loss by perils of the sea. An underwriter is liable for losses oc

curring in the transshipment of goods from the ship to the place of landing, where such transshipment is in the usual course of the voyage, although such risk be not specially mentioned in the policy.

V. Of Total Losses and Abandonment.

A TOTAL loss is of two kinds; one, where the whole property insured perishes; the other, where the property exists, but the voyage is lost, or the expense of pursuing it exceeds the benefit arising from it. In the latter case, the assured may elect (25) to abandon to the underwriter all right to such part of the property as may be saved, and having given due notice of his intention to do so, the assured will then be entitled to demand a compensation as for a total loss; but if the assured does not in fact abandon (26), or if he omits to give

b Phillips and another v. Barber, 5 B. and A. 161.

c Stewart v. Bell, 5 B. & A. 238. Insurance from London to Jamaica.

d If the voyage be defeated, it is the same thing for this purpose as if the

ship be lost. Lawrence, J. 6 T. R. 425. But see Parsons v. Scott, 2 Taunt. 363. and Anderson v. Wallis, 3 Campb. 440. 2 M. & S. 240. and post, p. 988. See also Hunt v. Roy. Exch. Ass. 5 M. and S. 47.

(25) The assured is not in any case bound to abandon. See 15 East, 15.

(26) An assurance was effected on some hogsheads of sugar on a voyage from Ostend to Havre. The vessel sailed from Ostend, but was forced on shore, and the cargo damaged: The assured wrote to the underwriters, to inform them of the circumstances, and of the injury which the sugars had sustained. The underwriters, in answer, desired" that the assured would do the best with the damaged property." It was holden, that the letter, coupled with the answer, did not amount to abandonment. Thelluson v. Fletcher, 1 Esp. N. P. C. 73. per Kenyon, C. J.

the underwriter notice (27) of his having abandoned, or if, being required by the underwriter to assign over his interest in the property insured, he refuses to do so (28), he will not be entitled to claim as for a total loss: unless, in the conclusion, there be an actual total lossf. If the subject matter of insurance ultimately exists in specie, so as to be capable of being restored to the hands of the assured, there cannot be a total loss, unless there has been an abandonments. And in order to justify an abandonment, there must have been that, in the course of the voyage, which at the time constituted a total lossh. The question whether the loss be partial or total is precisely the same, whether the policy be valued or openi. Capture, or the necessary desertion of the ship constitutes a total lossk; and the mere existence of a ship after a total loss and abandonment will not reduce it to a case of partial loss1. The ship must be in esse in this kingdom under such circumstances, that the assured may, if they please, take possession. Insurance on goods. The vessel was wrecked, part of the goods were lost, and part got on shore, but (whilst on shore) were destroyed and plundered by the inhabitants of the coast of the Isle of France, so that no portion of them came again into the possession of the assured. It was holden, that this was a total loss by perils of the sea, and no abandonment was necessary. An insurance was effected on freight, and on the

e Havelock v. Rockwood, 8 T. R. 268.
more fully reported by N. Atcheson,
8vo. 1800.

f Mellish v. Andrews, 15 East, 13.
g Per Bayley, J. in Holdsworth v.
Wise, 7 B. and C. 798.

h Ib. 799.

i Allen v. Sugrue, 8 B. and C. 561.

k Per Bayley, J. Holdsworth v. Wise, 7 B. and C. 799.

1 M'Iver v. Henderson, 4 M. and S. 576. Cologan v. The London Assurance, 5 M. and S. 447.

m Bondrett v. Hentigg,1 Holt's N. P. C. 149. C. B. Gibbs, C. J.

(27) Notice of abandonment is necessary, although the ship and cargo have been sold and converted into money, when the notice of the loss was received. Hodgson v. Blackiston, Park, 281. n.

(28) In Havelock v. Rockwood, the insurers offered to settle with the assured, he first making an assignment of one-fourth part of the value of the ship for their benefit. The sum insured not amounting to one-fourth, the plaintiff declined making the assignment. The court were of opinion, that, under these circumstances, the assured could not be considered as having abandoned; Kenyon, C. J. ob. serving, that the refusal to assign seemed to him to be equivalent to a refusal to abandon; and Grose, J. intimating, that there should have been an offer on the part of the assured to assign such part as he was entitled to. See Atcheson's report, p. 18.

cargo from Quebec to London. The ship sailed from Quebec, and on her voyage sprung a leak, and in that state was run aground on a reef of rocks, and was in imminent danger of being carried away and destroyed; whereupon the captain, by the advice of a surveyor and of an agent for the owners, who was also a part owner himself, sold the ship and cargo. The ship was afterwards saved by the purchasers, and repaired, and brought a cargo to London. In an action by the assured against the underwriters on freight for a total loss, the jury found that, in effecting the sale, the master had acted fairly for the benefit of all concerned; and the court upon special verdict, held", that the captain was justified in making such sale, and that an abandonment of freight was not necessary, inasmuch as there was nothing to abandon; for the sale being right, the ship and cargo were gone into different hands; and she could not earn freight for the underwriters. On this last point, see Green v. R. E. A. C. 6 Taunt. 68. and Mount v. Harrison, 4 Bingh. 388. When the assured has received intelligence of such a loss as entitles him to abandono, it is incumbent on him to make his election to abandon, and to give notice thereof to the underwriter within a reasonable time? (29), after receipt of the intelligence; otherwise the assured will be considered as having waved his right to abandon, and in case any part of the property insured be saved, he can recover as for a partial loss only. But the assured is entitled to a reasonable time for acquiring a full knowledge of the state of a damaged

n Idle v. R. E. A. C. 8 Taunt. 755.
o Mitchell v. Edie, 1 T. R. 608. All-
wood v. Henckell, Park, 280.

p Barker v. Blakes, 9 East, 283. Hudson v. Harrison, 3 B. & B. 97.

(29) "An abandonment must be made within a reasonable time; and I rather conceive that it is the province of the judge to direct the jury as to what is a reasonable time, under the circumstances." Per Lord Ellenborough, C. J. in Anderson v. Royal Exch. Ass., 7 East, 43. cited by Ld. E. in Davy v. Milford, 15 East, 563. "The assured must make his election speedily, whether he will abandon or not. He cannot lie by, and treat the loss as an average loss, and take measures for the recovery of it, without communicating that fact to the underwriters, and letting them know that the property is abandoned to them." Per Lord Kenyon, C. J. in Allwood v. Henckell, Park, 280, 1. The assured are bound to give notice of abandonment at the earliest opportunity; notice given five days after they received intelligence of the loss was held too late. Hunt v. The R. E. Assurance, 5 M. and S. 47.