ports therein, and cover the ship while sailing from one to another. "To a port and a market," covers a voyage to the port, and thence to every place to which, by mercantile usage or reasonable construction, a ship may go thence in search of a market; and even to return to that port, if honestly with intent to learn there where a market could be found.

If the insurance be to "a port of discharge," this does not terminate if the vessel goes to a port for inquiry, or for needful refreshment or repair. If it be "a final port of discharge," the insurance ceases upon such parts of the cargo as are left at one port or another, and continues on the ship, and on all the goods on board, until arrival at the port where they will be finally discharged.

It is generally provided in time policies, that, if the vessel be at sea at the expiration of the time agreed on, the risk shall continue until her arrival at a port of discharge, or at her port of destination. If then, before the expiration of the time, she is actually at sea, or has broken ground for the voyage, or if, when the time expires, she is in a port of necessity or restraint, she is considered at sea, but not otherwise.

The English policies and our own contain a provision that the insurance continues on the ship "until she shall be arrived and moored twenty-four hours in safety;" and on the goods until they be "landed," or "safely landed."

Under this clause, the ship is insured until moored in safety, so far as the perils insured against are concerned, but not against the peculiar and local dangers of the port, or the possibility that a tempest there might injure her when moored; for these dangers continue to exist as long as she stays there, and the liability of the insurers would never terminate. If she enters the harbor, and, before she is moored, is blown off, or ordered into quarantine, she is insured until this delay ceases and she is safely moored in port. And if before or within the twenty-four hours, a dangerous storm begins, but does no damage to her until after the expiration of the twenty-four hours, the risk has terminated, and the insurers are not liable.

SECTION XXIV.

TOTAL LOSS AND ABANDONMENT.

THE law of insurance recognizes an actual total loss, and also a constructive total loss. It is actual when the whole property passes away, as by submersion or destruction by fire. It is a constructive total loss when the ship or goods are partially destroyed, and the law permits the insured to abandon the salvage or whatever is saved, to the insurers, and claim from them a total loss. By "abandonment" is meant, in insurance law, the transferring of the property insured, or what is left of it, to the insurers. The word is used, because originally the insured gave up, renounced, or abandoned the property, saying to the insurers, We will have nothing more to do with it, and you may do with it what you like. And the word is still always used, although now it means a transfer. And in the law of insurance, a constructive total loss is a partial loss made total by an exercise of the right of abandonment. That is, the actual loss took from the insured a part, and the abandonment took the rest, and so they have lost all. A constructive total loss is sometimes called a "technical" total loss.

The abandonment, we say, transfers all that remains of the property to the insurers. If nothing remains, or if that which remains has no value, there need be no abandonment, and this is an actual total loss.

The insured never need make an abandonment if he chooses not to do so. And if from such choice or neglect he makes no abandonment, his claim against the insurers is still valid; but it is a different claim from that which it would have been if he had abandoned, because it is now to be settled as a partial loss, of which we shall speak hereafter. For it is the purpose and effect of an abandonment to convert an actual partial loss into a constructive total loss. And if he makes an abandonment when he has no right to make it, such abandonment is wholly inoperative, unless the insurers choose to accept it; but if they accept it, they must settle the loss as a total loss.

The topics in relation to this subject which we will consider are:-1. The necessity of abandonment. 2. The right of abandonment. 3. The exercise of this right. 4. The acceptance of

the abandonment. 5. The effect of the abandonment, or of the absence of abandonment.

1. OF THE NECESSITY OF ABANDONMENT.-It is said, that if a ship be completely wrecked and reduced to "a mere congeries of planks and iron," or if she has not been heard from for a sufficiently long time, there need be no abandonment, and the insured may claim as for a total loss, without one. In either case, or any other case, if the insurers pay a total loss, they are entitled to whatever shall come to hand of the property insured. And it is usual, and we think more proper, to abandon in both of these cases.

2. OF THE RIGHT OF ABANDONMENT.-The insured cannot convert every partial loss, however small, into a total loss, by abandonment, transferring the damaged property to the insurers. But by a rule which is nearly universal in this country, and not unknown abroad, if the damage by a peril insured against exceed one-half of the value of the property insured,-whether ship, goods, or freight, he may abandon the property to the insurers, and claim as for a total loss. But if the vessel actually reach her destined port, she cannot be abandoned, although the repairs would cost more than half of her value.

When we speak in another section of partial loss, it will be seen that, by the established usage of this country, an allowance of "one-third, new for old," is always made. This means, that if a new thing were given for an old one because the old one had been injured, the insurer would be more than indemnified. The sails, for example, might be so new that they had lost little of their value; or so old, that they were of no value. To avoid inquiring into each case, usage has adopted, as a fair average to apply to all cases, that the thing injured has lost one-third of its value. When it is replaced by repairs, the insured therefore loses one-third of the cost of repair, and the insurers pay twothirds.

Now our policies provide that there shall be no total loss by abandonment unless the injury exceed fifty per cent. when "estimated as for a partial loss"; that is, one-third off. Consequently, the repairs necessary to restore the vessel to a sound condition must amount to more than seventy-five per cent. of her value when repaired (one-third of which, twenty-five per cent., being cast off, leaves fifty per cent.) before there can be an aban

donment, which the insurers are bound to accept, and settle the loss as a total loss.

The valuation in the policy, if there be one, generally determines the value on which this estimate is to be made. In New York and in Massachusetts, this seems to be distinctly held; but the courts of the United States and of some of our States incline to say that, whether the policy be valued or open, the value of the ship, the loss of one-half of which authorizes abandonment, is the actual value of the ship at the time the loss occurs, and that this value is to be proved by proper evidence.

A loss by jettison, by salvage, by general average contribution, by wages of sailors paid while they assisted in making the repairs, should be included in the fifty per cent. If the insured have lost a part of his goods by jettison, and have a claim for contribution which is not yet paid, the whole of his loss is to be included to make up the fifty per cent., and the insurers take the claim to contribution by abandonment. Thus, if his loss be by jettison of eight-tenths of his goods, it is eighty per cent., and if he has a claim for contribution in general average for thirtyfive per cent., this does not reduce his loss to forty-five per cent., so that he cannot abandon; but he may call his loss eighty per cent. and abandon, and by the abandonment transfer to the insurers his claim for thirty-five per cent. The expense of repairs is to be taken at the place where actually made, or where they must have been made, if made at all.

If a sale be lawfully made by the master, under the authority from necessity which we have considered in the chapter on the Law of Shipping, this is a total loss, and the insured must account for the proceeds.

3. OF THE EXERCISE OF THE RIGHT OF ABANDONMENT.-As an abandonment has the effect of an absolute transfer of the property to the insurers, and is intended for this purpose, it is obvious that it cannot be made by one who is not possessed of such title to the property, or such interest therein, as would enable him to make a valid transfer.

There is no especial form or method of abandonment. But the proper and safe way is to do it in writing, and to use the word "abandon," or "abandonment," although other words of entirely equivalent meaning might suffice. It must be distinct

and unequivocal, and state, at least in a general way, the grounds of the abandonment.

The following would be a good and sufficient form:

(108.)

Abandonment.

NEW YORK, January 9, 1900, 10 o'clock a. M.

I have this day learned that my (or the) ship (or whatever the vessel is) insured by you (or of which you have insured the cargo or freight or profits, as the case may be), has been wrecked on her voyage from

to

(or has met with such or such a disaster, describing it generally), and that she now liés at (or that said cargo or what remains of it is now at

-). And I do now and hereby abandon to you the ship, with her cargo and freight (or whichever of these interests was the subject of insurance), and shall claim payment of you as for a total loss.

To the

Insurance Company.

(Signature.)

If the abandonment be deficient in form, the insurers will waive any objection of this kind if they call for further proof, and otherwise act as if the abandonment were altogether sufficient.

The insured may abandon at any time when the ship by a peril insured, is taken for an uncertain period from the master's control, and the voyage is broken up and cannot be renewed, unless at a cost which of itself gives this right.

The existence of the right depends upon the actual state of facts at the time, and not upon the supposed facts. Nothing, however, gives the right of instant abandonment, without a faithful endeavor of the master to find if he can, and use if he can, some means of deliverance and safety. But if, when delivered and restored to the master or owner, her damage amounts to more than half of her value, estimated as above stated, "as a partial loss," she may then be abandoned. If the precise voyage insured be broken up by a peril insured against, this justifies an abandonment, although the vessel might be put in condition to pursue a different voyage or render a different service.

As the insurers, who take the salvage (or saved) property by abandonment, have a right to every possible opportunity to make the most of it, it follows as an invariable and universal rule, that the insured must make an abandonment immediately after he re