(c) See post, note (g).

(d) Center v. American Ins. Co. 7 Cowen, 564; Ruckinan v. Merchants Ins. Co. 5 Duer, 869; Bryant v. Commonwealth Ins. Co. 6 Pick. 131.

(e) Cambridge v. Anderton, 2 B. & C. 691.

(f) Gordon v. Bowne, 2 Johns. 150.

1 It was held that no abandonment is necessary, and no notice of abandonment is required, where there is nothing to abandon which can pass to, or be of value to, the underwriter, in Rankin v. Potter, L. R. 6 H. L. 83, a case of homeward freight, where the ship was so injured on the outward voyage that the shipowner abandoned to the underwriter on the ship.

be that no abandonment is necessary to found a claim for a total loss. But upon the question whether a sale will, in any case, take the place of and have the effect of an abandonment, and thus found a claim for a total loss which would not have existed had there been no sale, the cases are numerous * and quite irreconcilable. (g) If the assured abandon the salvage or proceeds, they belong at once to the insurers, and are afterwards at their risk; if no abandonment is made, the salvage remains at the risk of the insured, and he must account for it. (h)

The amount of the injury must determine, whether a partial loss may be made by abandonment a constructive total loss. At first it was held, that this could be done only when the ship had received so much injury, that it could not be recovered or repaired, without costing more than she would then be worth. And recent decisions would indicate that this is even now the rule in England. (i)

It is not so,however, in this country. A rule, first introduced on the continent of Europe, has become very generally established here. This rule is, that if more than half the property insured be lost by a peril insured against, or if it be thereby damaged to more than half its value, the loss may be made a constructive total loss by abandonment. (j) The rule applies in this country to ship and goods, but not, we think, to freight. Nor does it prevent a claim for total loss in cases of irreparable damage, though of less amount; for where the repairs are impossible, from the place or other circumstances, and the ship is not at a port of destination, the master may sell the ship * from neces sity. (k) But it may be doubted, if a ship can be abandoned which has arrived at a port of destination, although repairs made necessary by perils insured against would cost more than half her value. (l)

(g) See Roux v. Salvador, 3 Bing. N. C. 266; Cambridge v. Anderton, 2B.& C. 691; Fleming v. Smith, 1 H. L. Cas. 518; Gardner v. Salvador, 1 Moody & R. 116; Knight v. Faith, 15 Q. B. 640; Irving v. Manning, 1 H. L. Cas. 287, 6 C. B. 391. In this country it is held in several cases, that there need be no abandonment in case of a sale by necessity. Fuller v. Kennebec Ins. Co. 31 Maine, 825; Prince v. Ocean Ins. Co. 40 Maine, 481; Mutual Safety Ins. Co. v. Cohen, 8 Gill, 450; Gordon v. Mass. Ins. Co. 2 Pick. 240. See dicta, also, in Orrok v. Commonwealth Ins. Co. 21 Pick. 464; Patapsco Ins. Co. v. South gate, 5 Pet 623; Ward v. Peck, 18 How. 269. If the expense of repairs would not exceed the value of the vessel when repaired, a sale without an abandonment has been held insufficient. Smith v. Manuf. Ins. Co. 7 Met. 448. Where the expense would exceed the value, when repaired, and a sale is made, an abandonment has been held not necessary. Ballard v. Roger Williams Ins. Co. 1 Curtis, C. C. 148. See contra, Am. Ins. Co. v. Francia, 0 Barr, 390. And see Greely v. Tremont Ins. Co. 0 Cush. 415.

(h) Smith v. Manuf. Ins. Co. 7 Met 448; Roux v. Salvador, 3 Bing. N. C.

266.

(i) Moss v. Smith, 0 C. B. 04; Fleming v. Smith, 1 H. L. Cas. 513; Irving v. Manning, 1H.L. Cas. 287, 304, 6 C. B. 391.

(j) Depeyster v. Col. Ins. Co. 2 Caines, 85; Allen v. Commercial Ins. Co. 1 Gray, 154; Saurez v. Sun Mut. Ins. Co. 2 Sandf. 482; Wood v. Lincoln Ins. Co. 6 Mass. 482; Coolidge v. Gloucester Ins. Co. 15 Mass. 343; Peele v. Merchants Ins. Co. 3 Mason, 74; Am. Ins. Co. v. Ogden, 20 Wend. 300. The cost must exceed fifty per cent Fiedler v. New York Ins. Co. 6 Duer, 282.

In the section on partial loss, we shall consider whether the rule of deduction "one third off, new for old," can be applied to determine the right of abandonment.

Upon the question, whether the valuation in a valued policy is to be regarded in estimating a fifty per cent, loss, the authorities are not only irreconcilable but balanced. We think the better reasons would exclude this valuation, and require that the estimate be made upon the actual value. (m)

The premium should not be included, (n) nor the wages and provisions of a crew during detention, or while they are employed in making the repairs, (o) nor the fees of surveyors, (p) or other similar expenses. But salvage payment, (q) or general average contribution, would be included. (r) * The insured has * 387

(k) Ruckman v. Merchants Ins. Co. 5 Duer, 842; Allen v. Commercial Ins. Co. 1 Gray, 158; Williams v. Smith, 2 Caines, 13. If the vessel is at a port of destination this rule does not apply, because the owner is obliged to furnish funds at such a place. Am. Ins. Co. v. Ogden, 20 Wend. 287; Allen v. Commercial Ins. Co. 1 Gray, 154.

(l) Pezant v. National Ins. Co. 15 Wend. 453; Parage v. Dale, 3 Johns. Cas. 156. See Scottish Mar. Ins. Co. v. Turner, 4 H. L. Cas. 312, note, 20 Eng. L. & Eq. 37. But see Stewart v. Greenock Mar. Ins. Co. 2 H. L. Cas. 150; Peters v. Phoenix Ins. Co. 8 S. & R. 25; Ralston v. Union Ins. Co. 4 Binn. 386.

(m) The valuation was set aside, and the value at the time of the loss taken, in Peele v. Merchants Ins. Co. 3 Mason, 27; Bradlie v. Maryland Ins. Co. 12 Pet. 878; Marine Dock & Mut. Ins. Co. v. Goodman, 4 Am. Law Reg. 481; Fontaine v. Phoenix Ins. Co. 11 Johns. 208; Center v. Am. Ins. Co. 7 Cow. 570. In Massachusetts the valuation is conclusive. Deblois v. Ocean Ins. Co. 16 Pick. 312; Winn v. Col. Ins. Co. 12 Pick. 279; Hall v. Ocean Ins. Co. 21 Pick. 472; Allen v. Commercial Ins. Co. 1 Gray, 154. See also Am. Ins. Co. v. Center, 4 Wend. 45; Am. Ins. Co. v. Ogden, 20 Wend. 287.