RISK. 



, became at length the foundation of general rules, 

 which have been eitablifhed in fome countries by pofitive 

 law, and adopted in others as part of the general law of in- 

 furance. In the firlt cafe of abandonment, that came before 

 lord Hardwicke in the court of chancery, in the year 1744, 

 he determined that where a recaptured (hip and cargo were 

 fold to pay the falvage, the infured had a right to abandon 

 the furpluSj and claim as for a total lofs. 



By the law of infurance, as underllood in England, the 

 infured may abandon in every cafe, where, by the happen- 

 ing of any of the misfortunes or perils infured againft, the 

 voyage is loft, or not worth purfuing, and the projected 

 adventure is fruftrated ; or where the thing infured is fo da- 

 maged, as to be of little or no value to the owner ; or where 

 the falvage is very high ; or where what is faved is of lefs 

 value than the freight ; or where further expence is necef- 

 fary, and the infurer will not undertake, at all events, to 

 pay that expence, &c. The ordinance of the marine of 

 Lewis XIV. confines abandonment to the following five 

 cafes : capture, (hipwreck, ftranding, arreft of princes, or 

 the entire lofs of the effects infured. By the French law, 

 the right to abandon feems to depend on the " fpecies of 

 misfortune" which has happened : with us, it depends ra- 

 ther on the " degree of lofs" fuftained in conlequence of it. 

 Thefe general principles have been exemplified in cafes com- 

 prehending lodes by capture and arreft of princes, and alfo 

 other lodes. Capture, or arreft of princes, is, prima facie, 

 a total lofs ; and immediately upon the capture, or mere 

 arreft, or at any time while the fhip continues under deten- 

 tion, the iniured may abandon, and give notice to the in- 

 furer of his intention to do fo ; and thus entitle himfelf to 

 claim as for a total lofs from the infurer. There is, how- 

 ever, this difference between a policy upon interejl, and a 

 auager policy, that, in the one cafe, the infured may, if he 

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

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

 ever may be 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. Neverthelefs, a cap- 

 ture or arreft does not neceflarily terminate in a total lofs : 

 for if a captured fhip be retaken, and permitted to proceed 

 on her voyage, fo that (he fuffers but a fmall temporary in- 

 convenience, this would only be a partial, and not a total 

 lofs. Neither does a recapture neceflarily deprive the in- 

 fured of the right to abandon. The rule is, 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 final event ; that is, according to the (late of the cafe 

 at the time he makes his claim. But if, after a total lofs 

 has been actually paid, the thing infured be recovered, the 

 infurer cannot oblige the infured to refund the money he has 

 received ; but lie (hall (land in the place of the infured : thus 

 no iujuftice is done. Two cafes are adduced to (hew that, 

 though a captured (hip be recaptured, yet if the voyage be 

 loft, the lofs will be total, and the infured will have aright 

 to abandon. In one cafe, a (hip is taken and retaken, and 

 fold in a diftant country to pay the recaptors for the fah 

 and the refidue of the produce of the fales remains in the 

 court of admiralty there ; and in thi3 cafe the infured may- 

 abandon, and recover as for a total lofs. In the fecond 

 cafe, a (hip, after throwing part of the cargo overboard in 

 a dorm, and being difabled from proceeding on her voyage, 

 till refitted, was captured, and her crew taken out ; but, 

 It. r being eight days in pofleflion of the enemy, was re- 

 captured, and carried into an Englifh port ; upon which 

 *he infured gave notice to abandon. Before the (hip could 

 Vol.. XXX. 



be refitted, the reft of the cargo was fpoiled. This was a 

 total lofs, ar.d the infured entitled to abandon. A title to 

 reftitution, arifing from recapture, cannot take away a 

 vefted right to abandon, if the fhip is unfit to perform the 

 voyage. Serjeant Marfliall obferves, that he cannot find a 

 (ingle book, a.icient or modern, which does not fay that, 

 in cafe of a (hip being taken, the infured may demand as for a 

 total lofs, md abandon ; and the propofition is proved more 

 ftrongly by the general law which warrants him to abandon, 

 in the cafe merely of arreft, or an embargo, by a prince not 

 an enemy. If, indeed, the capture proves but a (mall tem- 

 porary hindrance, the infured cannot abandon. The in- 

 iured is in no cafe obliged to abandon ; but he may abandon, 

 if the voyage be defeated, or not worth purfuing : never- 

 thelefs he cannot, merely by abandoning, turn a partial 

 into a total lofs. It is not univerfally true, that becaufe a 

 (hip has once been captured, the infured may abandon at 

 any time afterwards. The rule is, that if the thing infured 

 be recovered before any lofs is paid, the iniured is only en- 

 titled to a partial or a total lofs, according to the final 

 event. By the marine law, the property was not changed 

 by the capture, till after condemnation ; but fince the 

 29 Geo. II. c. 34. the "jus pailliminii" continues for 

 ever. While the (hip is in the hands of the enemy, (he is 

 confidered as totally loft ; yet the property is not changed, 

 but reverts to the original owner, upon a recapture. But 

 a recapture does not, in all cafes, prevent the lofs being 

 total. If the voyage be abfolutely loft, or not worth pur- 

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

 neceflary ; 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 cir- 

 cumftances, the infured may difentangle himfelf, and aban- 

 don, notwithftanding a recapture. Upon a recapture, the 

 property returns to the original owner, pledged for the fal- 

 vage. Although there has at one time been a total lofs, 

 yet the infured cannot abandon, after the final event has de- 

 termined it to be only a partial lofs at the time of the action 

 brought. There is no vefted right to recover as for a total 

 lofs, till the infured, having a right to abandon, elects to do 

 fo. If the thing infured be recovered before the lofs is 

 paid, the infured can only recover according to the final 

 event. If a fhip be recovered after a long detention, it is 

 not a total lofs, even upon a wager policy. When the (hip 

 is iafe, and the voyage is not lolt, the infured ought not to 

 be permitted to abandon. The infurer ought never to pay 

 lefs than the value of the lofs, nor the infured receive more. 

 The infured can only recover an indemnity for his lofs, at 

 the time of the action brought, or offer to abandon. If, 

 after a total lofs has been paid, the (flip be reftorcd, the in- 

 fured (hall not be obliged to refund the money, and take the 

 flii p or goods. If, upon a recapture, the captain fell the 

 (hip and cargo, as being the befl courfe to take for all 

 parties concerned, the infured may abandon, and recover as 

 for a total lofs. If the captain purchafe the fnip from the 

 captors, for account of his owners ; the money paid, being 

 in nature of a falvage, is only a partial lofs. 



There are other cafes, befides capture and arreft of princes, 

 in which the right of abandoning may be confidered. Ship- 

 wreck is generally a total lofs ; but the mere ftranding of 

 the fhip is not, of itfelf, deemed a total lofs, fo as to en- 

 title the infured immediately to abandon, ll is a rule that, 

 to entitle the infured to abandon, there mud have been, at 

 fome period of the voyage infured, or during the con- 

 tinuance of the rifk, a total lofs, and cafes have occurred, 

 from which it appears that no partial lofi, however great, 



R r occa- 



