
    
      John L. Hedley vs. The Nashville Ins. and Trust Company.
    
    Whore abandonment has to be made in a foreign port, notice to the insurers does not seem to be necessary.
    It is enough to justify an abandonment, that the repairs to be made will exceed one-half the value of the vessel.
    
      Before Withers, J., at Charleston, Spring Term, 1852.
    This was an action of assumpsit on a policy of insurance taken by the defendant on the brig Tower, at and from Charleston to San Francisco.
    The plaintiff alleged that the condemnation and sale of the . vessel in the port of Rio de Janeiro, was the result of perils of the sea — and this the defendant denied, affirming that the ves-t sel was not sea-worthy. The Tower put into that port for repair ; the U. S. Consul took action on the occasion — on the first survey, certain repairs were ordered and made; but the mate and crew, some or all of them, refused to proceed without another survey. It was accordingly had, and it was found, as the Captain testified, that the damage sustained by the Tower was so great and extensive as to render repair impracticable, according to any rule of sound discretion or maritime usage ; that the cost of repairing the vessel would be more than half its value; whereupon a sale of vessel and cargo was determined on and made at Rio. Reclamation ensued upon the defendant as for total'loss upon abandonment.
    The jury found for the plaintiff. The defendant appealed, and now moved for a new trial on the grounds:
    Because the plaintiff never gave notice of abandonment.
    Because, the plaintiff was bound to have furnished some definite statement to prove that the extent of repairs requisite to put the vessel in a sea-worthy condition at Rio, 'was above 50 per cent., in order to recover for a total loss.
    
      Dukes, for appellant.
    
      Whaley, contra.'
   The opinion of the Court was delivered by

O’Neall, J.

The grounds of appeal were considered in Cohen vs. The Charleston Fire and Marine Insurance Company, Dud. 147, and decided against the views of the present defendant.

Notice to the insurers of abandonment, if it has to be made in a foreign port, does not seem to he necessary.

So if the repairs to he made will exceed one-half the value of the vessel, it is enough to justify an abandonment. Proof to that effect seems to have been given. The motion is dismissed.

Wabdlaw, Frost, WitheRS, Whitner and Glover, JJ., concurred.

Motion dismissed.  