in point of time, to the time of the loss which justifies the abandonment. And in this country where there is an abandonment and constructive total loss and transfer, there is an apportionment of the freight. The part earned before the loss going to the insurers of freight, and no more; while that earned afterwards goes to the owner of the ship, or to his transferrees by abandonment. And demurrage, which is allowed on capture and subsequent restoration, is, we think, so far in the nature of freight, that it is to be treated as salvage on the freight.1 Freight, like all other insurable interests, may be valued; and we should hold, on general principles, that the valuation binds the parties, but only in reference to that property or interest which is valued. Even this, however, seems to be doubted. We think, however, that if one who is insured on valued freight, abandons, but a part of his goods, in respect to which the valuation of freight was made, arrives safely, he must account for the freight on that part according to the valuation. But if he receives freight for other goods carried safely, which belong to other shippers, he is to allow for what he actually receives and no more, because this alone belongs to the insurers in the nature of salvage. Where the vessel is under a charter-party, the underwriters are sometimes liable for a total loss of the freight, although the goods have never been on board, if the goods are contracted for, and the vessel prevented from loading by a peril become the owners, and are liable to the repairs and expenses, and entitled to the earnings of the ship." See also, United Ins. Co. v. Lennox, 1 Johns. Cas. 377; Leavenworth v. Delafield, 1 Caines, 573; Simonds v. Union Ins. Co., 1 Wash. C. C. 443; Kennedy v. Baltimore Ins. Co., 3 Harris & J. 367; Teasdale v. Charleston Ins. Co., 2 Brev. 190. 1 See Coggeshall v. Read, 5 Pick. 454. 2 Dumas v. United States Ins. Co., 12 S. & R. 437. The freight in this case was valued at $7,500. The vessel was captured, and the freight abandoned, and the loss paid. Subsequently, the vessel and a part of the cargo were restored, and the voyage performed in safety. The insured owned part of the cargo, and the rest was owned by different shippers, and shipped at various rates of freight. The underwriters claimed that the whole freight saved should be estimated, at the rate of the valuation; but the insured, although he admitted his liability for his own goods, according to the valuation, yet claimed in respect to the other goods, that he was only liable for the amount actually received, and of this opinion was the court, and a doubt was expressed whether the valuation would be binding upon him in respect to his own goods. insured against. So the terms of the charter-party in many other instances determine whether or not there is a loss of freight. Thus, where the risk is entire, and a part of the voyage is performed, and the voyage is thus broken up, this is a loss of the whole freight, even if under an ordinary contract of shipment, freight pro rata would be due.2 Profits are so far distinct from cargo, that if both are insured, it is said that there may be a several abandonment of each.3 But it is not easy to see how any thing can pass by the abandonment of profits. For the insurers on goods take by the abandonment to them every thing on which profits have been made, or can be made or saved. Indeed, it may be remarked, in general, that as an abandonment of the profits alone can pass nothing, it is not easy to see that there can be any effectual abandonment of profits, or, what would necessarily follow, that an actual partial loss of profits can be made constructively total by abandonment. If a part of the goods, the profits on which are insured, is lost, this is certainly a partial loss of the profits.4 If more than half in value of these goods are lost, the owner of the goods may abandon, and make the loss total; but if he 1 See ante, p. 86-88. 2 See Atty v. Lindo, 4 B. & P. 236; Charleston Ins. & Trust Co. v. Corner, 2 Gill, 410; Livingston v. Columbian Ins. Co., 3 Johns. 49; Robertson v. Marjoribanks, 2 Stark. 573. 3 Abbott v. Sebor, 3 Johns. Cas. 39. Kent, J., in this case, said: "Perhaps the established rule in respect to ship and cargo of a loss of more than half the value, may be applicable. If so, the question here will be, whether the more profitable half of the cargo might not have been brought in the same ship to New York. I suggest this as a rule which may, perhaps, apply, but without giving any opinion upon it." In Tom v. Smith, 3 Caines, 245, it was held that as between the insured and the insurer on profits, the latter is entitled to an abandonment. And in Mumford v. Hallett, 1 Johns. 433, where the vessel and cargo were captured and abandoned, but afterwards restored, it was held that the insured on profits was entitled to abandon, notwithstanding the abandonment to the insurer on the cargo. In Loomis v. Shaw, 2 Johns. Cas. 36, profits were insured from New York to Havre. The ship and goods were captured and carried into London, and five eighths of the cargo were restored. This portion was accepted by the plaintiffs and appropriated to their own use. The court held that, "profits are necessarily incidental and subject to the final disposition of the goods, on which they are expected to accrue," and that as only three eighths of the cargo were lost, there was only a partial loss on the profits to that extent. does, he transfers the remaining goods with all their value, and leaves nothing in himself to transfer by abandonment of the profits alone. It would seem, therefore, that the fifty per cent. rule would not apply to an insurance on profits, unless the insured should waive his right to abandon the goods, and treating the loss on them as partial, abandon the profits separately. In theory this might be possible; but it would be attended with some difficulties, and can hardly be considered as in fact, practicable. It was held, in an early case, that unless the very ship in which the goods were shipped, carried them the whole way to the port of destination, there was a loss of profits, thus making the insurance on profits equivalent to a warranty that the ship and goods should both arrive in safety. But this case was probably on a wager policy, and is clearly opposed to principle. If the insurance be on commissions, there can be no transfer by abandonment of the right or capacity of earning them; and if the peril has prevented the exercise of this right or capacity; there can be nothing to abandon, and indeed it is difficult to see, how, in practice, a party insured on his commissions can make any effectual abandonment. But if they have been earned; and the funds or property from which they are payable be partially lost or destroyed, it is possible that the remaining interest or claim in the insured may be subject to abandonment; although such a state of things is not very likely to exist in fact.2 1 Henricksen v. Margetson, 2 East, 549, note. The vessel in this case was lost at an intermediate port, but most of the cargo was carried on at the expense of the underwriters, and arrived in safety. Lord Mansfield, C. J., said: "The meaning of the policy seems to be, that the ship and cargo shall arrive at the destined port, and is on the profit of that particular ship and cargo. But the market varies and may depend on twenty-four hours sooner or later; so that unless the very ship and cargo arrive, the profit may fail, and the insurance is lost." 2 See New York Ins. Co. v. Robinson, 1 Johns. 616. SECTION V. OF THE FORM AND MANNER OF ABANDONMENT. No especial form of abandonment is prescribed by law or usage; but the word "abandon" should be used;2 although other phrases which meant distinctly and precisely the same thing, would probably be sufficient. Nor would it seem to be strictly necessary that it should be in writing, or, if in writing, in one instrument. And it has been implied from the insured's handing over a consular certificate of a loss and an abandonment by the master, who had however no authority to abandon; the act of the insured in handing over the certificate being considered a ratification of the abandonment by the master.5 However made, it must be distinct and unequivocal, and purport an absolute abandonment and transfer of all salvage to the insurers. And it should state substantially the grounds on which the abandonment is made; and the cause stated must be a peril within the policy. But a demand for a total loss is not, in our 1 Bell v. Beveridge, 4 Dall. 272, 1 Binn. 52, note; Patapsco Ins. Co. v. Southgate, 5 Pet. 604, 622, per Thompson, J. 2 Parmeter v. Todhunter, 1 Camp. 541, per Lord Ellenborough, C. J. 8 In Read v. Bonham, 3 Brod. & B. 147, Dallas, C. J., was of the opinion at nisi prius, that a parol abandonment was sufficient, and the point was not raised before the court in banc. See also, Patapsco Ins. Co. v. Southgate, 5 Pet. 604, 622, per Thompson, J. In Crousillat v. Ball, 3 Yeates, 375, 378, it was stated by counsel that "In the Supreme Court of the United States, Duncan v. Coates, Judge Chase held that a verbal notice of abandonment to an insurance broker was sufficient." Lord Ellenborough, in Parmeter v. Todhunter, 1 Camp. 541, said: "It would be very well to prevent parol abandonments entirely; but if they are allowed, I must insist upon their being express. An implied parol abandonment is too uncertain, and cannot be supported." 4 Columbian Ins. Co. v. Catlett, 12 Wheat. 383, per Story, J. 5 Patapsco Ins. Co. v. Southgate, 5 Pet. 604. 6 Patapsco Ins. Co. v. Southgate, 5 Pet. 604; Fuller v. M'Call, 1 Yeates, 464. 7 In Hazard v. New England Mar. Ins. Co., 1 Sumner, 218, Mr. Justice Story said that he had always supposed that a letter of abandonment must state the cause of the loss, but for the purposes of the trial he ruled that the one in question was sufficient. In Peirce v. Ocean Ins. Co., 18 Pick. 83, it was stated that the vessel had been damaged, condemned, and sold, but the abandonment was held to be insufficient, Shaw, opinion, necessarily and of itself the equivalent or the evidence of abandonment, because it may be only an abandonment itself which, as a previous requisite, gives the right to claim for total loss; but it has been sometimes so held; and we admit that it should be so, if the terms of the demand, aided by the circumstances of the case, could give to the demand the plain meaning and intention of making by it an abandonment and transfer of salvage.1 C. J., saying: "It has already been mentioned as a requisite to a good abandonment that it must state the reasons and grounds upon which a total loss is claimed." So held, also, by Curtis, J., in a case where the vessel was stated to have been condemned. Bullard v. Roger Williams Ins. Co., 1 Curtis, C. C. 148, 152. And if the owner alleges one cause he is bound by it, and cannot recover on proof of loss by another peril insured against. Suydam v. Marine Ins. Co., 1 Johns. 181; Dickey v. New York Ins. Co., 4 Cow. 222; King v. Delaware Ins. Co., 2 Wash. C. C. 300. The case of Macy v. Whaling Ins. Co., 9 Met. 354, established an exception to the general rule to the effect that where the letter of abandonment does not state the cause of the loss, but refers to intelligence which the insured has received, the abandonment will not be defective, "because the underwriter can call for the information upon which it is grounded, and time will be allowed for the purpose, before he would be required to decide as to his acceptance or refusal." The recent case of Heebner v. Eagle Ins. Co., Sup. Jud. Ct., Mass., Nov. T. 1857, was decided in conformity with this exception. The letter of abandonment was as follows: "Having received information of the condemnation of the steamer Chesapeake at Humboldt, California, I hereby abandon all in said vessel insured by policy, etc., and claim as for a total loss." This was held sufficient on the ground, we presume, that if the word "condemnation" did not convey a definite idea of the cause of the loss to the mind of the insurer, he could have asked for the information which the assured had received. In Ralston v. Union Ins. Co., 4 Binn. 386, 400, the letter of abandonment was as follows: "A letter from Messrs. T. Davy, and J. Roberts, dated London, July 8, 1805, and which came to hand yesterday, advises, ‘We have now letters from Messrs. J. Ridgway, Mertens & Co., and Mr. Hemphill, of the 27th ult. and 1st inst., by the first of which we learn that the ship having been condemned as not sea-worthy, would be sold for the benefit of the underwriters.' The above information alludes to the ship Benjamin Franklin as she lay at Antwerp, and in consequence thereof, I do hereby abandon the three fourth parts of said ship, and claim as for a total loss." The court said that although the manner in which this letter was penned was very questionable, yet that they were warranted to infer from the tenor of the letter, that the different papers were exhibited therewith to the underwriters, and if these contained a valid cause of abandonment, it would be sufficient, although it was not formally expressed. In Citizens Ins. Co. of Missouri v. Glasgow, 9 Mo. 406, the letter of abandonment stated that the steamboat insured having been nearly destroyed by a late disaster, and being completely beyond repairs, was abandoned. It was held that though this might be insufficient in a marine policy, yet as the boat had been towed to the port where the insurance company was located, and they had caused a thorough investigation into the condition of the boat, after they received notice of the abandonment, it was enough. 1 In Cassedy v. Louisiana State Ins. Co., 18 Mart. La. 421, a simple demand for a VOL. II. 34 |