
    Ritchie against The United States Insurance Company.
    
      Monday, March 27.
    
    An insurance on a ship is an insurance of the ship for the voyage; not an insurance of the ship and the voyage. Therefore, where the ship was insured from Philadelphia to Coraunna, and was captured and sent to Plymonth and the voyage broken up, but before the expiration of the 50 days, within which the insured was restricted from
    That the insured may abandon when the damage exceeds one-half the value of the ship, is a general principle, subject however, to exceptions. If the insurer . will undertake to repair the damage, though exceeding one-half the value, he may do it, and the insured shall not abandon.
    THIS case was tried before Duncan J. on the 3d December, 1819, and a verdict found for the plaintiff, subject to the opinion of the Court.
    _ . v, r - , , It was an action on a policy ot insurance on the schooner Hope, at and from Philadelphia to Corunna. The insured agreed, “ not to abandon in case of capture, in less than 60 days after advice thereof, unless previously condemned.” The schooner sailed from Philadelphia on the 27th October, .... ’ 1812, and proceeded on her voyage in which she suffered some damage in consequence of bad weather. Within a few hours sail of Corunna, she was captured on the 3d by a British cruiser, and ordered to Plymouth. Having experienced heavy gales after capture, she was obliged to put into St. Andero in distress, where she arrived on the 19th December. There she received a slight repair, and proceeded on the voyage to Plymouth, where she arrived on the 3d January, 1813. Having been libelled by the captors in England, the vessel and cargo were acquitted and ordered to be restored, on payment of costs and expenses, to the captors. On the 2d March, the costs and expenses were paid and restitution ordered. In April, 1813, the schooner was repaired at Plymouth. The captain applied for permission to part of the cargo, in order to pay for the repairs of the vessel and other expenses, and was answered, that he might sell the ■whole cargo but not a part. In consequence of this, whole cargo was sold on the 21st May, and all expenses paid, In June, the schooner sailed from England to the United States with passengers, and arrived at Boston, on the 23d Ate-gust. On the 6th March, 1813, the plaintiff received notice of the capture, and the 7th May, he abandoned, “in quenco oí tht capture by which the voyage was broken and destroyed.” The defendants refused to accept the abandonment. There was an insurance by the defendants J 
      on the cargo also, which belonged to the plaintiff, and on which the defendants had paid for a total loss.
    
    
      Gibson and J. Sergeant, for the plaintiff.
    'The claim of the plaintiff is for a total loss upon the vessel, which is founded on two grounds. 1. That the voyage'was broken up and destroyed, 2. That the damage suffered by the vessel exceeded fifty per cent, of her value.
    1. The breaking up of the voyage in consequence of a peril insured against, justifies an abandonment to the underwriters. The voyage and the vessel are inseparably connected : and the time in which the vessel is able to perform the voyage, is a material part of the contract. Here the voyage was broken up by the capture and the loss of the cargo: and the captain, who became after the abandonment the agent of the assured, was justifiable in giving up the prosecution of the voyage. To this effect are the principles stated by the highest authorities. By the law of insurance, says Marshall, the insured may abandon in every case where by the happening of any of the perils insured against the voyage is'lost, or not worth pursuing, and the projected adventure is frustrated. Marsh. on Ins. 562. Lord Mansfield, in Goss v. Withers,
      
       states the right to abandon upon a capture or any other such disturbance as defeats the voyage, or makes it not worth while, or not worth the freight to pursue it. In Hamilton v. Mendez,
      
       the right of the insured is recognised, to disentangle himself and abandon if the voyage be absolutely lost or not worth pursuing. In Milles v. Fletcher,
      
       the same ideas are repeated : and the question is stated to be, whether the consequences of the capture in that case were such as, notwithstanding the recapture, occasioned a total obstruction of the voyage, or only a partial stoppage. In Bainbridge v. Neilson, the facts were the reverse of the present case. There the vessel was never taken into an enemy’s port: the damage she suffered was trilling: and she arrived at her port of delivery having performed her voyage. Though restitution was decreed previous to the abandonment of the Hope, on the 7th May, 1813, yet she was not restored: she was not prosecuting her voyage, nor in a condition to do so, for she was undergoing repairs. So that in consequence of the capture, she was even then disabled to perform the voyage, and incapable of yielding the benefit to the owners which they had a right to enjoy from her. The insured may abandon after a decree of acquittal, but before restitution. Dutilh v. Gatliff.
      
       They also cited 3 Mass. Rep. 66. 238. 4 Cranch, 29. 202. 2 Marsh, on Ins. 456.
    2. The damage sustained by the vessel exceeded fifty per cent, of her value, in which case it is settled, that the insured has a right to claim for a total loss. 2 Marsh. 562. 574. This right cannot be taken away by repairs which the underwriter may choose to make afterwards. There is no obligation on either party to made repairs. Suppose goods are damaged 51 per cent.: the insured cannot in such case take away the right of abandonment by paying 51 per cent.: so if damage to the same amount is done to the vessel, the claim for a total loss cannot be defeated by paying 51 per cent, in money or in repairs. It forms a part of the contract now in legal understanding, that if the damage exceeds one-half the value, the insured may abandon and recover for a total loss. There is no better measure of damage to the ship than the cost of repair, which includes every expense incident to making that repair. Indeed, whatever the insured is bound to pay, in order to get possession of the ship, is part of the damage. In conformity with these principles in the case of Cazalet v. H. Barbe,
      
       the loss was not considered to be total, on the ground that the damage to the vessel did not exceed 48 per cent., though on her arrival at Lynn, she was not worth repairing.
    It is true, it is laid down that the right to abandon exists where, in consequence of a peril insured against, further expense is necessary, and the insurer will not undertake at all events to pay that expense. 2 Marsh. 562. This means where there are to be future expenses, not ascertained, and the insurer will not undertake at all events to pay them. So in Hart v. The Delaware Insurance Company, the Court charged the jury, that if the vessel was insured to more than her value, the insured had a right to claim for a total loss, unless the underwriter offered to pay the amount of repairs at all events. 2 Condy’s Marsh. 562, a. note. But in the pre - sent case, the insurers never did engage at all events to pay the expense of repairs: for on such an engagement they might be called on to pay more than a total loss. ib. The repairs ought also to be made with a view to enable the vessel to prosecute her voyage, which was not the case with the vessel now in question. [The counsel then went into a calculation to shew, that the cost of repairs and other expenses occasioned by the damage the vessel had sustained, exceeded one-half of her value, even allowing a deduction of one-third, new for old.J It may be objected, that the abandonment of the plaintiff was on account of “ the capture by which the voyage was broken up and destroyedand as no capture existed at the time of the abandonment, the plaintiff cannot recover. But if one sufficient cause of abandonment is assigned to the underwriter, and it is refused by him, the insured may prove another on the trial. Dederer v. Delaware Insurance Company, 2 Condy’s Marsh. 601, a. note. The abandonment of the Hope gave the insurers all the informa-, tion. possessed by the insured at the time. Her capture was the cause of the losses which ensued : and losses which are the consequences of capture are to be considered as losses •by capture. Milles v. Fletcher ,
      
       2 Condy's Marsh. 578. The damage to the Hope and. the breaking up of her voyage were both produced by the capture. They further cited Depeyster v. The Columbian Insurance Company.
      
       Marine Insurance Company v. Tucker.
      
       Abbott, 336.
    
      Binney and Rawle, contra.
    The defendants were insurers on both ship and cargo; and have paid a total loss on the cargo, and a partial loss on the vessel: and the attempt of the plaintiff is now to make them liable for a constructive total loss, notwithstanding they have received a full indemnity. But the plaintiff cannot recover for a total loss.
    1. Because at the time of his abandonment no such cause as capture existed: and that is the only cause of abandonment alleged by him.
    2. If breaking up the voyage be sufficient cause of abandonment, there was no breaking up of the vessel’s voyage by capture.
    
      3. The voyage, as to the vessel, was not broken up at all: and the breaking up the voyage, on account of the loss of the cargo, is no ground of abandonment as to the vessel.
    4. There has not been a damage to the vessel equal to 50 per cent.
    5. If she was damaged 50 per cent., yet it was thoroughly repaired before the abandonment.
    1. and 2. One reason why abandonment is required is, that the insured may know why he is called upon to pay for a total loss : and to permit the insured to resort on the trial to a different cause from the one alleged, would be a surprise upon the underwriter. If the underwriter be told that a vessel is abandoned because she is damaged, and there are no funds to repair her, he has an opportunity of providing funds for that purpose. In King v. The Delaware Insurance Company,
      
       it his held, that is incumbent on the insured to state to the underwriter a sufficient reason for the offer to abandon, and it is no objection if he does so, that he does not state other reasons. But if he state an insufficient one, he cannot at the trial rely on one not stated in the notice. In Suydam v. Marine Insurance Company, 2 Condy’s Marsh. 601, it is decided, that the insured having relied on matter which was an insufficient cause of abandonment, must be bound by it, and shall not be permitted to avail himself of a subsequent accident without making a new abandonment. The same principle is stated in 2 Johns. 138. On the 7th May, when the abandonment of the Hope was made, she had been restored, and so far as concerned the vessel, the consequences as to the capture were over. The only inquiry remaining was the damage she sustained at sea, which never was alleged as a cause of abandonment.
    3. That the cargo was lost, and therefore the voyage was broken up by the vessel’s having nothing to carry to Corunna, is no cause for abandoning the ship. The insurance is not on the voyage: it is on the vessel for the voyage. It is immaterial, that the loss- of the cargo was occasioned by the damage of the ship. The insurance on the vessel is altogether unconnected with the cargo. If the vessel is safe and repaired at the time of abandonment, it matters not how she became repaired, if the insurers pay for it. In Gould v. 
      Shaw, 2 Candy’s Marsh. 585, it was held, that the loss of the voyage in consequence of the necessity of selling the outward cargo at an intermediate port, occasioned by the vessel’s being obliged to put in there for repairs in consequence °f a storm’ not enthie the insured to recover for a total loss on a policy on. the ship: the damage to her not equalling half her value. Kent Ch. J. thought it not necessary in that case to 'decide, whether on a policy on the ship, the insured, in consequence of a loss of the cargo can abandon, while the ship is safe. But it is decided in Alexander v. The Baltimore Insurance Company,
      
       by the unanimous opinion of the Supreme Court of the United States, that the insurers on a ship insure her ability to perform the voyage; not that she shall perform it: they have nothing to do with the cargo i therefore the breaking up of the voyage occasioned by the loss of the cargo shall not affect them. In Oliver v. Newburyport Marine Insurance Company, the same point is decided.
    4. As to the amount of damage sustained by the vessel. There is an essential difference between damage to a ship and to goods. The latter is irreparable : but not so the former; and if the damage to the vessel is repaired before abandonment, then the damage exceeding 50 per cent, no longer exists. - But we deny, that this vessel ever was damaged to an amount exceeding 50 per cent. [Here the counsel entered into an examination of the facts, to establish this point.]
    5. The vessel was completely repaired at the expense of the defendants before the abandonment. We say at their expense, because they have since paid the expense, though the plaintiff paid it originally. She was thus in a capacity to perform her voyage, and free from all restraint.
    
      
      
         2 Burr. 682.
    
    
      
      
         2 Burr. 1198.
    
    
      
      c) Doug. 219.
    
    
      
      
         Marsh. on Ins. 578. b. note.
      
    
    
      
       4 Dall. 440.
    
    
      
       1 T. R. 187.
    
    
      
      а) Doug. 219.
    
    
      
      
        б) 2 Caines, 85.
      
    
    
      
      
         3 Cranch, 357.
      
    
    
      
       2 Condy’s Marsh. 601.
    
    
      
      
         1 Johns. 101.
    
    
      
       1 Johns. Cas. 293.
    
    
      
       4 Cranch, 370.
    
    
      
       3 Mass. Rep. 365.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The plaintiff contends, that he is entitled to recover for a total loss on two grounds. 1st. That the voyage was broken up. 2d. That the schooner suffered damage to the amount of more than one-half her value. 1. In considering the first question, we'must remember, that there, is a great difference between an insurance on a ship] and an insurance on her cargo, as it is not improbable; that some confusion may have been introduced, from not keeping our ideas of these two kinds of insurances entirely separate. The insurer on the ship, has nothing to do with the cargo. He undertakes, that the ship shall be sufficient for the performance of the voyage, and that he will make good any damage which she may suffer in the course of the voyage. But he does not undertake, that she shall perform the voyage, because the cargo may be lost, or other events may occur, which may render it unnecessary that she should perform it; An impression that the insurer was responsible for the voyage, has been made on the minds of many professional gentlemen, from the expressions used by Lord Mansfield, in the case s of Goss v. Withers, Hamilton v. Mendes, and Milles v. Fletcher. “ If the voyage be defeated, so as not to be worth further pursuit, if the salvage be high, and other expenses great, or if the underwriter refuses to bear these expenses, the insured may abandon.” The rule thus laid down, leaves the mind in great uncertainty. One can hardly suppose, that Lord Mansfield meant to say, the insured might abándon in every instance in which the voyage was defeated; and yet his words are very like it. He must have known very well, that in many instances, the voyage is defeated, by capture of goods belonging to a belligerent on board a neutral vessel, in which case, the cargo is condemned, and the ship restored; and yet it has never been supposed, that the insured could abandon the ship, after notice of restitution, and recover for a total loss. But whatever may have been intended, by the expressions I have cited, they are not true, if taken in their extent: they have been contradicted by subsequent decisions in the English as well as our own courts. That the insured could not recover for a total loss of the ship, though the voyage was broken up, was determined in the Court of King’s Bench in England, in Anderson, et al. v. Wallis, 2 M. & S. 240, and in Falkner, et al. v. Ritchie, 2 M. & S. 290. In the latter case, Lord Ellen-borough, after manifesting his dissatisfaction with the looseness and generality of Lord Mansfield’s words, asks, “ what has a loss of the voyage to do, With the loss of the ship?'’'' In conformity with the last English cases, are Oliver, &c. v. Marbury, 3 Mass. Rep. 37. Sadler & Craig v. Church, in the Supreme Court of New Tork, and Alexan der v. The Baltimore Insurance Company, in the Supreme Court of the United States, 4 Crunch, 370. Or, to speak more properly, the last English cases were in conformity with ours, because ours preceded them. The case of Alexander v. The Baltimore Insurance Company, in particular, is °f the greatest authority, because the point was well considered, and the opinion of the Court was unanimous. Ch. J. Marshall, who declared the opinion, went so fully into the argument, and examined all the cases on the subject so particularly, that it would be an affectation of learning in us, to go over the same ground. I shall therefore confine myself to the conclusions drawn by the Supreme Court, which were these : — That it is an insurance of the ship, for the voyage; not an insurance of the ship and the voyage: an undertaking for the ability of the ship to prosecute the voyage, and to bear any damage which she may sustain during the voyage, not an undertaking that she shall, in any event, perform the voyage.” We stand upon firm ground, therefore, when we say, that the breaking up of the voyage is not necessarily a circumstance, which leaves it at the election of the insured, to abandon the ship, and throw her on the underwriters. Then as to the particular circumstances of this case, though the loss was total while the capture continued, yet the plaintiff was estopped, by his covenant, from abandoning, until the expiration of sixty days from notice of the capture, and before the expiration of that time, the .total loss had ceased, so far as capture was concerned, by the restitution of the schooner. And as to the ability to prosecute the voyage, she had been rendered sufficient by the repairs made at Plymouth.

S. But it has been argued on the part of the plaintiff, that although the ability of the schooner to proceed to Corunna, was restored by the repairs at Plymouth, yet he had a right to abandon her and resort to the defendants, because these repairs with other expenses connected with them, amounted to more than one-half the value of the vessel. It is the inclination of this Court, so far as is consistent with former decisions, to confine the contract of insurance to its true intent, which is to obtain an indemnity in case of loss, but not to be put in a better condition in consequence of loss. It will be desirable, therefore, to ascertain the actual loss, and give a compensation for it, in all cases where it can be done, without unsettling principles which have been fixed. That the insured may abandon where the damage exceeds one-half the value of the ship, is a general principle, subject however to exceptions. If the insurer will undertake to repair the damage, though exceeding one-half the value, he may do it, and the insured shall not abandon; because, if his ship be repaired, it is all he has a right to demand, and the more or less of cost, is immaterial to him. This is quite reasonable, and was decided by the Circuit Court of the United States for the district of Pennsylvania, in Hart v. The Delaware Insurance Company, 1 Marsh. 281. a. note. Now in the case before us, whatever may have been the amount of the damage, (a question not without considerable difficulty,) it was repaired at the expense of the defendants before the plaintiff gave notice of his intention to abandon. I say, at the expense of the defendants, because, there having been, without question, a total loss on the cargo, which the defendants have paid, the proceeds of sale in England, part of which were applied to the repairs of the schooner, belonged to them. This seems to bring the case within the exception which I have mentioned; for whether the defendants undertook to make the necessary repairs, or the repairs were made with their money without their undertaking, is immaterial. When the plaintiff gave notice of abandonment, he did not know precisely in what condition the vessel was : he did not know that she had been restored ; he did not know the probable amount of the damage. Even if the damages had not been repaired at that time, he afforded the defendants no opportunity of making an offer to repair them; the only notice he gave them was, that he should abandon because of the capture, by which the voyage was broken up and destroyed. It was not, from any thing that appears, until the schooner’s arrival at Boston, in the month of August, with passengers, that all the circumstances which occurred during her stay in England, were made known, either to the plaintiff or the defendants. On her arrival, she was at the disposal of the plaintiff, together with the freight which she had earned on the homeward voyage. Why then should the plaintiff be permitted to throw her on the defendants, by converting into an artificial total loss, that which in its nature was but partial? I can see no propriety in it, and am therefore of opinion, that the loss is not to be considered as total.  