RECAPTURE. 



cumftavices t>f ihc cafe, appear realonable ; the expcnce of 

 fuch proceeding not to encecA fourteen pounds." 



We {hall here obferve, tiiat there is an obvio\is difference 

 between capture and arreft of princes ; the objefl ol the one 

 is prize, that of the other detention, with a defign to reftore 

 the rtiip or goods detained, or to pay the value to the owner. 

 When a fhip is detained in a port after a declaration of war, 

 or the iffuing of letters of reprifal, this more relembles 

 a capture than a detention, and gives the injured an imme- 

 diate right to abandon, as for a lofs by capture, even though 

 BO condemnation be pronounced, and though the (hip be af- 

 terwards reitored. The moft frequent caufe of detention is 

 an embargo, which is a proclamation or order of Hate, 

 ufually iflued in time of war or threatened hoftiUties, prohi- 

 biting the departure of fhips or goods from fome or all of 

 the ports of fuch ftate until further order. An embargo 

 laid on (hips and merchandize in the ports of this kingdom 

 by virtue of the king's proclamation, is ftriftly legal, when 

 the proclamation does not contravene the ancient laws, or 

 tend to eftabH(h new ones ; but only to enforce the execution 

 of fuch laws as are already in being, in fuch manner as the 

 king (hall judge necelfary. But whether an embargo be 

 legally or illegally laid, the injury to the owner, by the de- 

 tention of his (hip or goods, is the fame ; and the infurer is 

 equally liable for the lofs occalloned by it. If a fhip be 

 feized after a ce(ration of arms and preliminary articles of 

 peace are figned, this (hall not be deemed a capture, but only 

 an arreft of princes. For the regulation of falvage upon a 

 recapture, we refer to the article Salvage. 



Capture by an enemy or a pirate, or an arreft of princes, 

 or even an embargo, is prima facie a total lofs ; and imme- 

 diately upon tlie capture, or upon a mere arreft, or at any 

 time while the (hip continues under detention, the infured 

 may eleft to abandon, and give notice to the infurer of his 

 intention fo to do ; and thus entitle himfelf to claim as for 

 a total lofs from the infurer. For, from the moment of the 

 capture, the owners lofe their power over the (hip and cargo, 

 and are deprived of the free difpofal of them ; and, in the 

 opinion of the merchant, his right of difpofal being fuf- 

 pended or rendered uncertain, ic equivalent to a total de- 

 privation. It would therefore be unreafonable to oblige 

 the infured to wait the event of capture, detention, or 

 embargo. 



There is this difference between a policy 7ipon interejl, and 

 a tvager policy, that in the one cafe the infured may, if he 

 thinks proper, abandon the moment he has notice of a cap- 

 ture or detention, and this will bind the underwriters, what- 

 ever maybe the ultimate fate of the (hip ; but in the cafe of 

 a wager policy there can be no abandonment, becaufe the 

 infured has nothing to abandon. 



But a capture or arreft docs not neccfTarily, and at all 

 events, terminate in a total lofs, fo as to entitle the infured to 

 abandon ; for as he cannot abandon till he has received ad- 

 vice of the lofs ; if, at the time he receives fuch advice, or 

 before he has eletted to abandon, he receive advice that the 

 (hip or goods infured are recovered, or are in fafety, heean- 

 not then abandon ; becaufe he can only abandon •uihUe it is a 

 total lofs, and he knows it to be fo ; not after he knows of 

 the recovery. Therefore, if a captured fhip be retaken and 

 permitted to proceed on her voyage, fo that (he fuffers but 

 a fmall temporary inconvenience ; this would only be a par- 

 tial, and not a total, lofs. 



On the other hand, a title to reftitution upon a recapture 

 does not neceffarily, and at all events, deprive the infured of 

 the right to abandon ; for if, in confequence of the cap- 

 ture, the voyage be loft, or not worth purfuing ; if the 

 falvage be very high ; if farther expence be nccefrary, and 



the infurer will not undertake at all events to pay it, he may 

 abandon. The rule it, that, if the thing infured be recovered 

 before any lofs is paid, the infured is entitled to claim as for 

 a total, or a partial lofs, according to the (inal event ; that 

 is, according to the ftate of tlie cafe at the time he makes 

 his claim. There is no veiled right to a total lofs, till the in- 

 fured, having a right to aVjandon, elefts to do fo ; for he is 

 only entitled to an ijidemnity for his lofs as it (lands at the 

 time of the adlion brought, or offer to abandon. 



But if, after a total lofs has been adlually paid, the 

 thing infured be recovered, the infurer cannot oblige the 

 infured to refund the money he has received ; but he 

 (hall (land in the place of the infured, and fo no injuftice is 

 done. 



Cafes are mentioned by Mr. Serjeant Marfhall, which ferve 

 as examples to (hew, that though a captured (hip be recap- 

 tured, yet if the voyage be loft, the lofs will be total, and 

 the infured will have a right to abandon. 



By the marine law, the property was not changed by the 

 capture, till after condemnation : and fincc the 29 Geo. II. 

 c. 34, the "jus pollliminii" continues forever. A recapture 

 does not in all cafes prevent the lofs being total. If the 

 voyage be abfolutely loft, or be not worth purfuing ; if the 

 falvage be very high ; if further expence be neceftary ; if the 

 infurer will not engage, at all events, to bear that expence, 

 though it fhould exceed the value, or fail of fuccefs : under 

 thefe, and many other fimilar circumftances, the infured may 

 difentangle himfelf and abandon, notwithftanding there was 

 a recapture. Upon a recapture the property returns to the 

 original owner, pledged to the recaptors for the amount of 

 the falvage : upon the payment of which he is intitled to 

 reftitution. If upon a recapture the captain, finding that 

 the voyage cannot be purfued, and, acting fairly for the 

 benefit of all concerned, fell the (hip and cargo to pay 

 the falvage, and thereby put an end to the voyage, the in- 

 fured may abandon and recover as for a total lofs. How- 

 ever, a capture does not neceffarily amount to a total lofs, nor 

 does a recapture prevent its being tot.il. If the captain 

 purchafe the (hip from the captors for account of his 

 owners, the money paid, being in the nature of falva<Te, is 

 only partial lofs. 



To this article we (hall fubjoin two or three remarks 

 on the fubjeft of abandonment, which do not elfewhere oc- 

 cur. A time (hould be fixed when the degree of the ;-,i. 

 furer's refponfibility (hould be afcertained. In feveral mr- 

 ritime ftates on the continent, pofitive regulations have 

 been eftabliihed, limiting the time, after a lofs has happened, 

 within which the infured may abandon. In England we have 

 no fuch pofitive regulation, nor any time limited by law for 

 abandoning. But the courts have laid down a rule, better 

 adapted to the purpofe ; and the rule is, that as foon as the 

 infured receives advice of a total lofs, he muft make his 

 eleftioii whether he will abandon or not. If he determines 

 to abandon, he muft give the underwriters notice of this 

 within a reafonable time after the intelligence arrives ; and 

 any unneceffary delay in giving this notice will amount to a 

 waver of his right to abandon ; for unlefs the owner does 

 fome aft, (Ignifying his intention to abandon, it will be 

 only a partial lofs, whatever may be the nature of the lofs, 

 or the extent of the damage. If the infurers in any manner 

 prevent the abandonment, they fhall pay the whole lofs, to 

 the amount of the fum infured. If no intelligence be re- 

 ceived of a fhip within a reafonable time, it (hall be pre- 

 fumcd that (he foundered at fea : when the time has elapfed 

 which affords that prefumption, the infured may abandon, 

 and claim as for n total lofs. Marfhall on Infurance, 

 vol. ii. 



RECAR- 



