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V.

Rhinelander *were acquitted by the viceadmiralty court before the return of the writ in the present case, yet the acquittal, Pennsylvania. as to the cargo, was suspended by the appeal; and the

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business with the underwriters, and the owner who was in New Providence gave him intelligence of what occurred from time to time, and by no means intended, from any thing that appears, to restrain him from making an abandonment. It is true that the vessel proceeded on her voyage after she was restored; but it is not stated, nor can the court presume, that any of the owners acted in a manner inconsistent with the abandonment made by their agent. It was proper, at all events, to pursue the voyage for the benefit of whoever might be interested in it. This is the usual practice, and a practice authorized by the policy, and very much for the advantage of the underwriters.

The only difficulty in the case before the court arises from this circumstance; that before the action was brought the vessel was restored, and even at the time of the abandonment there was a decree of acquittal, although restitution does not appear to have been actually made till some days after. The counsel for the defendant have relied much on the opinion of Lord Mansfield in the case of Hamilton v. Mendez, to establish this principle, that a policy of insurance, being in its nature a contract of indemnity, the plaintiff can recover no more than the amount of his actual loss at the commencement of the action. There is no doubt of the soundness of the principle: I mean that a policy is a contract of indemnity. The only question is, at what period the rights of the parties are to be tested by this principle; whether at the time of abandonment or of the commencement of the action. I have considered attentively the case of Hamilton v. Mendez. It must be obvious to every one, that the decision in that case was perfectly right. It was simply this; that a man shall not be permitted to abandon and recover for a total loss, when he knew at the time of his offer to abandon, that his property which had been lost was restored, and the voyage very lit. tle injured. But in reading the opinion of Lord Mansfield, we find a want of accuracy, with which that great man was seldom chargeable. Sometimes it appears as if he thought the period for fixing the rights of the insurers and the insured was the commencement of the suit; sometimes the time of abandonment, and sometimes he even seems to have extended his ideas so far as the time of the verdict. But finally he explicitly declares, that he decides nothing but the point before him. He seems to have felt a little sore at the improper application of some general expressions used by him in the case of Goss v. Withers. Anxious to cut off all pretence for doing the same in Hamilton v. Mendez, he has taken too much pains to avoid the possibility of misrepresentation. Hence his argument, considered in the whole, is not altogether clear and consistent. Upon the whole of this case of Hamilton v. Mendez, I think it most safe to confine its authority to the point actually decided, which was very different from that we are now considering. Some period must be fixed for determining the right of the parties. To limit it to the time of commencing the action would be of little service to the insurers; for the law being once so established, an action would be brought in every instance on the first default of payment. The time of.abandonment seems the most natural and convenient period; because the assured must make his election to abandon or not, in a reasonable and short

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*property was not, in fact, put into the possession of the freighters, until they had given security to its full value, to return it to the captors in case the sentence of ac- Pennsylvania. quittal should be reversed. As to them, therefore, the property was not restored. It never arrived in safety. Its trial was still pending, and if it should finally be condemned, the freighters would never be liable to the plaintiff for the freight. As to the plaintiff, therefore, it still continues a total loss of the freight. He cannot, in any event, recover it from the freighters until the appeal is decided, and if that decision should be against the latter, his only chance would be in the hope of justice from the courts of the captors, who, upon condemnation of the cargo, sometimes order the freight to be paid to the owner of the ship, if he is a fair neutral, and has no interest in the cargo. Nothing but relieving the freighters from the security they had given for the cargo, could entitle the plaintiff to recover against them. The underwriters, therefore, were bound either to pay to the plaintiff the amount they had insured, or, by giving such counter security as should indemnify the freighters, give the plaintiff a right of ac

time after he hears of the loss, and the property being transferred by the abandonment, can never afterwards be claimed by the assured. Want of mutuality is want of justice. There is no reason why the assured should be bound, but the assurer left free to take advantage of events subsequent to the abandonment.

It has been contended by the plaintiff's counsel that the right to abandon would not have been affected, even if the property had been restored at the time of the abandonment, because the restitution was unknown to the plaintiff. As to this, I give no opinion. It is unnecessary; because it is stated that the vessel remained in the custody of the captors, at the time of the abandonment. The defendants' counsel have urged that this was the fault of the captain, or of one of the own. ers, who was then at New Providence, because, after a decree of acquittal, a writ of restitution might have been sued out. But it not being stated that there was any fault or negligence in the captain or owner, I do not think that the court can infer it; it being stated that the vessel remained in the custody of the captors, we must presume that the custody was legal. Whether for the purpose of giving the captors an opportunity of entering an appeal, or for what purpose it was the restitution was delayed, we are at a loss to determine. But as restitution was not actually made, and as the plaintiff was ignorant even of the decree of acquittal, his right to abandon remained unimpaired.

Upon the whole, I am of opinion that the plaintiff is entitled to recover for a total loss.

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Rhinelander tion against them. The latter part of the alternative V. the defendants have refused. The case of Da Costa v. Pennsylvania. Newnham, 2 T. R. 407. shows that the underwriters were bound to give such counter security, or to pay the amount insured. The property never came free into the hands of the freighters. The right of action depends upon the facts existing at the time of abandonment. In the case of Mumford v. Church, decided by the supreme court of New-York, at July term, 1799, the assured recovered notwithstanding a restoration before abandonment. But the assured cannot retract his abandonment, and it is not just that one party should be bound, and the other at liberty. If the plaintiff had a right to abandon, the defendants were bound to accept.

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For the defendants, Rawle and Lewis contended,

1. That there never was a total loss; and, consequently, the plaintiff never had a right to abandon.

*2. That before the action was brought, the vessel was acquitted, and therefore no right of action existed.

3. That before the return of the writ, the vessel and cargo had arrived in safety at the port of destination, and the freight was earned, and that the plaintiff might recover it from the freighters.

4. That the plaintiff had voluntarily suffered the cargo to be delivered without payment of the freight, and had lost his lien on the goods by his own folly, and, therefore, had no right to recover from the underwri

ters.

They admitted that the defendants were liable for a partial loss to the amount of the charges, expenses, &c. in consequence of the capture; but denied that the plaintiff could claim for a total loss. The information received at the time of the offer to abandon was only of an arrest and detention; which, as the Manhattan was a neutral vessel, must be presumed to be only for the purpose of exercising the belligerent right of search; and such a detention has never been holden to give a right to abandon. But a capture by a friend differs from a capture by an enemy. Park, 66. It is presumed that the courts of our friend will do us justice, and restore our property without delay. Hence no salvage is

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allowed for the recapture of a neutral from the power of one of the belligerents, unless under very particular Ins. Co. of circumstances. If the capture of a neutral be not fol- Pennsylvania. lowed by condemnation, it is not a total loss, unless the voyage be wholly broken up. Park, 79. Saloucci v. Johnson. The right of search (admitted by our treaty) gives a right to send the neutral into port for examination, and for that purpose the belligerent may put a force on board, and take out part of the original crew. mere capture, ordering her into port, taking out part of the crew and putting other men on board, gave no right to abandon, and yet the abandonment is founded upon those facts only. The defendants were not obliged to accept the abandonment. It ought to have been accompanied by a cession. No subsequent event can make it valid. It was not accepted, and, therefore, *did not bind either party. The information ought to be such at the time of abandonment, that the underwriter may know whether he ought to accept it or not. He should be able to decide whether he ought to undertake the defence of the property. The insured cannot abandon, unless upon information of facts which show a total loss. Subsequent events cannot be coupled with a prior offer to abandon. Suppose the insured should say, I heard of a gale of wind; I offer to abandon, although I have heard of no loss; could that avail him? In the case of Suydam & Wyckoff v. The Marine Insurance Company, 1 Johns. 181. the supreme court of the state of New-York decided that the insured cannot avail himself of a subsequent event, without a new abandonment. It is admitted that the facts, and not the information, decide the right to abandon, but there must be information of sufficient facts at the time of abandonment. A detention for examination does not necessarily destroy the voyage, or even render it probable that the voyage will be broken up. Whenever the fact appears that the voyage is destroyed, and the jury finds the fact to be so, (for it is not a matter of law,) it is a total loss. There is no printed report of the case of Mumford v. Church, and, therefore, we cannot examine its principles. (a)

(a) LIVINGSTON, J. That case was reversed, in principle, by the court of errors, in Timberly v. Church. And the law now established by that case in New-York is, that if, at the time of abandonment, the property has been actually restored, the abandonment is invalid.

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Rhinelander But the restitution of the cargo, although on securiIns. Co. of ty, is a legal restitution. The freight never was in Pennsylvania. danger. If it has been, it was in consequence of facts

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which would have discharged the underwriters. If the voyage was lawful, freight would have been allowed, even upon enemies' goods, and although the voyage was not ended. Whether the cargo be condemned or not, the shipowner is entitled to his freight. The only ground upon which a British court of admiralty will refuse to allow freight, is a ground which would also discharge the underwriters, viz. that the shipowner was not a fair neutral. 1 Rob. 245. (Amer. ed.) The Copenhagen. 2 Rob. 84. The Rebecca. 3 Rob. 88. The *Racehorse. 3 Rob. 245. The Atlas. 4 Rob. 279. 282. The Vrow Henrica. 3 Bos. Pull. 291. Touteng v. Hubbard. It is only a delay in receiving the freight. If the plaintiff is to be considered as a fair neutral shipowner, he must eventually recover the freight, either from the owners of the cargo, or the captors; and if he is not such a fair neutral shipowner, the warranty in the policy is falsified, and the defendants are not liable. Suppose the delay had been caused by any of the other perils insured against, such as a violent storm driving the ship off from the coast, or a long course of contrary winds, &c. the inconvenience to the plaintiff would have been the same, and yet he would have no right to abandon. The defendants did not undertake that the voyage should be performed in any given time, nor to be liable for the wear and tear of the ship, tackle, &c. in consequence of such protracted voyage. The defendants have a right to avail themselves, in their defence, of the very evidence produced on the trial of the libel, and even of the sentence of condemnation, if it proceed upon grounds inconsistent with the warranty. The defendants were not bound to give the counter security; because the plaintiff's vessel had been restored to him without security; and it cannot be right that the defendants, who are not underwriters upon the cargo, should give security to its whole amount, in order to enable the plaintiff to recover the freight from the freighters.

But the freight was earned, and the freighters were liable to the plaintiff before the defendants were bound

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