
    [Philadelphia,
    Saturday, March 28, 1812.]
    *Ralston against the Union Insurance Company.
    If" a vessel arrives at her port of destination where the policy ends, it is of no importance that she cannot be repaired there at all, if the injury previously sustained, does not amount to 50 per cent, of her value.
    A ship is insured from A to JB, where she arrives and delivers her cargo, having sustained a severe injury on the voyage by striking on a shoal. The damage is such, that for want of the requisite docks she is irreparable at B, and is wholly unseaworthy to go elsewhere. She is surveyed, an estimate of the requisite repairs made, and she is then condemned and sold. The captain purchases her at a perfectly fair sale, for less than the estimate of repairs, and for less than one-sixth of her value in the policy ; and he then sails in her at great risk to C, where he puts her in a dry dock, and has her repaired at less than 50 per cent, of her value. After the repairs made, but before the owner knew of them, or of her arriving at C, he abandoned.
    
      Held that the damage did not amount to 50 per cent of her value, and therefore the abandonment was not good; but as a partial loss the insurers ai’e bound to pay not only the cost of repairs, but the expenses of taking her to C to be repaired.
    This was an action of covenant upon a policy of insurance for 15,000 dollars, on the ship Benjamin Franklin, valued at that sum for three fourths of the vessel, “ at and from Philadelphia to Batavia, and at and from thence to Cowes and a market, &c., with liberty to touch and trade as usual.” The plaintiff declared for a total loss by perils of the sea.
    The cause was tried before Yeates J. at a Nisi Prius in November last, when the jury found a verdict for a total loss; and now upon a motion for a new trial by the defendants his Honor reported the material facts as follows:
    
      The ship Benjamin Franklin sailed upon the voyage insured on the 4th of June 1804, and -was at that time a remarkably stout and staunch ship. She had been coppered at in November since which she had ^performed two voyages, one from Philadelphia to Havre de Grace, and the other from the same place to Bourdeaux, and her copper had been recently repaired so as to fit her in the opinion of the carpenter for an “eighteen months’ voyage.” Having reached the port of Cowes upon her return voyage, she selected Antwerp for her market; and as she was proceeding for that port on the 16th of April 1805, her pilot missed the channel, and run her with a press of sail on a sand bank not far from Campvere, at top of high water. On this bank she remained thumping for the space of two nights and three days, until her frame was in a great measure dislocated, the copper displaced where she had rubbed on the sand, and she was so much hogged that her upper deck was bent like a bow, and her kelson broken in two places. By great exertions, and unlading her cargo, she was at last got oft'; and being caulked as well as she could be at Campvere, she took in her cargo, and by pumping was brought to Antwerp on the 12th of May. She here delivered her cargo, which also belonged to her owners, damaged in a very inconsiderable degree; and on the 4th of June, the captain petitioned the commercial tribunal, stating the severe damage the ship had sustained, that her keel and false keel appeared to be broken, and praying for the appointment of surveyors, to examine whether she could be repaired, and for how much, so as to make long voyages as before. Surveyors were appointed, who on the 17th reported a statement of the injury, a valuation of the vessel as she then lay, and an estimate of the requisite repairs.
    The value of the sails, rigging and anchors (which had not been damaged by the stranding), was estimated at . francs 12,030
    The hull of the ship....... 12,600
    ■ 24,630
    The repairs to the hull exclusive of a copper sheathing.......francs 9,910
    A copper sheathing . ...... 24,000
    83,910
    The surveyors at the same time reported that with these repairs she would be fit for long voyages as before; but their statement contained no allowance for any timbers below that might be broken, except the kelson, nor did they state that *any such were broken. Their examination was such only as they could make with the vessel aground on her keel, at low water.
    Captain "Wickes, the master of the Benjamin Eranklin, was examined at the trial. He swore that he was perfectly satisfied at Antwerp that some of the ship’s lower timbers were broken. That such was her condition, it was wholly impossible to repair her so as to make her seaworthy, at Antwerp, or any where without hauling her up dry, or putting her in a dry dock, that she might rest upon her two extremities. He inquired of many persons at Antwerp, and found none to entertain a contrary opinion. It was also impossible in his opinion, and that of ship carpenters examined upon the trial, to repair her at all without taking off her copper sheathing, after which it could not be replaced. Antwerp had neither a wet nor a dry dock at that time, nor was it a place for the equipment of merchant vessels. Under these circumstances, he petitioned on the 18th of June for her condemnation, alleging that the expense of repairs would exceed the ship’s value, that after all she would only be a patched vessel, and that he could not get the requisite funds hy an hypothecation. On the 21st of June the tribunal condemned her and ordered her to be sold. Captain Wickes authorized his consignees there to bid for her, not exceeding in the whole 18,000 francs; and at public sale, the ship and rigging, &c., being divided into several lots, the consignees were the highest bidders for every part, and bought the whole for 13,100 francs, on the 28th of June 1804.
    On the 10th of July Captain Wickes prevailed upon his crew to set sail in the vessel for England, there to get the necessary repairs; which they accordingly did at a very considerable risk, and some time in that month she arrived in London. She went into dock on the 26th,. and after the carpenters had proceeded some length in stripping her, and had found eleven of the lower futtock timbers on one side broken, the captain was for selling her as she lay; but upon a consultation with his friends, and ascertaining that the keel was sound, and that she came to her shape in the dock, he had her thoroughly repaired and copper sheathed, and on the 12th of August she went into the London dock to take in freight for Philadelphia. The. expenses of repairing in London amounted to 1295Í. 18s. 8d. sterling, or 5759 dollars 70 cents, which included the cost of a new copper sheathing. The ship sailed from London, with a small freight, and arrived safe at Philadelphia.
    The captain and supercargo from time to time communieated to the plaintiff the situation of the ship, and the proceedings at Antwerp; and he knew of Captain Wickes’s petition for condemnation, but not of its fate, until the 4th of September, when he received a letter from London, in consequence of which he wrote the following letter to the defendants on the next day.
    Philadelphia, 5th September, 1805.
    Gentlemen,
    A letter from Messrs. T. Davy and «T. Roberts, dated London 8th July 1805, and which came to hand yesterday, advises, “We have now letters from Messrs. J. Ridgway, Mertens and Go. and Mr. Hemphill, of the 27th ultimo and 1st current, by the first of which we learn that the ship having been condemned as not seaworthy, would be sold for the benefit of the underwriters.” The above information alludes to the ship Benjamin Franklin, as she lay at Antwerp, and in consequence thereof I do hereby abandon the three fourth parts of the said ship as she is insured in the IJnion Insurance office, and claim as for a total loss accordingly. I am gentlemen your obedient servant, &c.
    After the plaintiff learnt that the ship was purchased for him, he offered her upon the same terms to the defendants, giving them also the freight home ; but they declined taking her. She afterwards performed a voyage to Bengal and Holland without any material repairs, and was sold about a year before the trial for near 12,000 dollars.
    It was proved that the average duration of a 28 oz. copper sheathing was about five years, or three East India voyages. Giving credit to the vessel for the freight she earned home, and charging her with the sum paid for her at Antwerp, her repairs and expenses, she cost the plaintiff upon her arrival in Philadelphia, about 12,200 dollars.
    The charge of his Honor was against a total loss, but he referred so much of it as was a question of fact to the jury.
    *The reasons for a new trial were, 1st, That the abandonment was bad, because it assigned no justifiable cause, and therefore there was no total loss. 2d, That at the time of the abandonment the ship was safe from the peril, completely repaired, and in the possession of the plaintiff’s agent. 3d, Because the sale under which the plaintiff contended there had been a change of property in the vessel, was absolutely void. 4th, Because the damage received by the vessel in the voyage insured did not amount to 50 per cent of her value, 
       Sth, Because the verdict was against law, evidence, and the charge of the court.
    
      Dallas and Ingersoll for the defendants.
    1st Reason. It is perfectly settled that the abandonment must assign a true and sufficient cause for throwing the adventure upon the underwriter and claiming for a total loss. It is not sufficient that a good cause exists, it must be the alleged basis of the claim upon the insurer; and if the insured assigns an insufficient cause, he cannot rely upon a different one at the trial. King v. Delaware Insurance Company, 2 Condy’s Marsh. 601; Suydam v. Marine Ins. Co., 1 Johns. 191; 2 Johns. 138, S. C. The plaintiff’s letter assigned no cause but a condemnation for unseaworthiness ; and this per se was nothing. The ship might have become innavigable by ordinary wear and tear. Perhaps she was not seaworthy at the commencement of the voyage. It was possible that the unseaworthiness arose after her arrival at Antwerp. She might have been perfectly seaworthy, notwithstanding the condemnation, for this and not unseaworthiness was the cause assigned; and the condemnation is not even evidence of unseaworthiness. In fact, unless a condemaation is a peril insured against by the policy, the plaintiff' has assigned for cause of abandonment, an injury against which the defendants did not engage to indemnify him.
    2. The case of Rhinelander v. The Insurance Company of *Pennsylvania, 4 Cranch, 29, definitely settled the that it is the state of the loss at the time of the offer to abandon, that fixes the rights of the parties. The state of the party’s information is of no importance to a question of pure fact, whether a peril exists at the time of abandonment to such an extent as to justify it. If at the time of abandonment, property which had been captured, is actually restored, the abandonment is invalid, whatever be the state of the party’s knowledge. Timberly v. Church, 4 Ibid. 37, note; Marshall v. Delaware Insurance Company, 4 Ibid. 202 ; Adams v. Delaware Ins. Co. 3 Binn. 287 ; Bainbridge v. Neilson, 10 East 329. In principle there is no difference between a restitution or retaking after capture, and any other reparation of the original injury. It may be a restitution upon a compromise of giving up part. It maybe a retaking with salvage. It may be a refitting by new sails, or timbers. In each ease the original injury has ceased, and the sacrifice by which it has been repaired, is a partial loss. In the present case the vessel was completely restored to her former condition before the 5th September; and even if all the expenses incurred in London are to be paid by the underwriters, still these do not make a partial loss of 33J per cent. Until abandonment the captain is the agent of the owner. Before abandonment therefore the agent of the owner had repaired the vessel for less than 50 per cent., and she was in his custody, for the use of the owner. This cannot be a ease of total loss.
    3. The sale at Antwerp is to be put out of the case. It was made without anj? authority, because the court derived all its power from the captain, and the captain had none to communicate. The purchase too was by the owner, the same person who, if the sale was valid, directed the sale. No money was paid, and there was no change of possession. It is impossible that as between the owner and insurer, such a sale can have the least influence. As a general principle however it is settled, that the sale of a vessel produced through the medium of a court of vice admiralty, or other tribunal, acting upon the petition of the master, and without *any actual Us, passes no title. Reid v. Darby, 10 East 143. It is possible that in some cases of extreme necessity, the captain may be entitled to make sale himself, as is said in Hay man ¶. Molton, 5 Esp. 65 ; but wherever he instigates the sale, and becomes, or procures, a purchaser for the owner, there the sale must be unnecessary, and it has been repeatedly ruled, and is a result of the most obvious equity, that as between insurer and insured the sale is nothing. M’Masters v. Shoolbred, 1 Esp. 237; Queen v. Union Ins. Co., 2 Condy’s Marsh. 581; Muir v. United Ins. Co., 2 Condy’s Marsh. 620; Oliver v. Marine Ins. Co., 3 Mass. Rep. 37; Story v. Strettell, 1 Dall. 10.
    4. The damage sustained by the vessel did not amount to 50 per cent. This it is true was a matter of fact; but as there was no contradictory evidence, and as the jury have plainly gone against the weight of the evidence, there ought to be a new trial. Any consistent mode of estimating the injury may be taken, and the result will be the same. Take the whole estimate of repairs at Antwerp, 33,000 francs, which is less than 7000 dollars, and it is far short of 50 per cent, of the value in the policy, which is the true rule. Smith v. Bell, 2 Gaines Err. 158. Take the same estimate of repairs, deduct the usual one third new for old, and it will be less than the estimated value of the hull and rigging. Again, take the repairs in London, where she was made a most valuable ship, as her captain said, and still it is not 50 per cent. But in all these repairs is included a new copper sheathing, by far the most material item. It is not to be argued, that the underwriters are to give the plaintiff a new copper sheathing, when by the evidence the old one was entirely worn out. The price of this sheathing must be wholly deducted from any estimate that is made of the actual damage, and the true amount will then be found very small. It is of no consequence that the ship could not be repaired at Antwerp. The policy ended there, and the underwriters were not bound to take her further, or to put her in a situation to go further. If a mast is carried away, the insurer is not bound to put in a new one, but he must pay the value. The question at the port of destination, is not as at an intermediate port, what is the effect upon the voyage, but what proportion does the value of the thing destroyed or broken *kear to whole. Here the sails and rigging were in perfect order, and the hull not half destroyed. The proportion must therefore have been less than 50 per cent, any where. At an intermediate port in the voyage, the insurer must find repairs, or the voyage is broken up; but at the last port, he neither engages that she shall be worth repairing, nor that she shall find repairs. Cazalet v. St. Barbe, 1 D. & E. 187. A liability for the latter event, would make him insure events after the termination of the voyage.
    5. The .charge of his Honor was directly against the plaintiff’s asserted right to repairs at Antwerp; and also against there having been a deterioration of 50 per cent.
    
      Binney and Chauncey for the plaintiff.
    1. Although it is essential that the assured assign a true and sufficient cause of abandonment, yet it is not essential that this should be assigned in the letter of abandonment, nor that it should be expressly assigned in any way. The reason of the rule is, that the insurer may know whether it concerns him to examine into the truth of the cause assigned, that if it turns out to be true, he may accept the abandonment and look after the property. Any course therefore which furnishes this information, meets the rule; as if letters or papers containing the circumstances of the loss, are communicated to the underwriters, when the abandonment is made. The letter of abandonment in this case, not only states a good cause, but it holds such a language as entitled the jury to infer that all the facts had been disclosed, so that the true cause could not have been mistaken. It states a condemnation for unseaworthiness, among insurers the customary evidence of that fact; nay, the evidence which an almost universal clause in ship policies calls for. It was not necessary to state that this unseaworthiness was caused by a peril insured against, because that was to be inferred from the act of abandoning. It is never required that the particulars of the loss should be stated, but only such a loss generally as the insurer must answer for. The particulars he will obtain by calling for the proofs , whereas if a cause is for which he cannot possibly be answerable, he is not *bound to call for proofs, and the proofs would be irrelevant if But in addition to the cause assigned, the letter by its phraseology implies that the situation of the ship prior to condemnation had been disclosed. “ This relates to the Benjamin Franklin as she lay at Antwerp.” Then it had already been disclosed that she was lying at Antwerp ; and yet there was no fact to be disclosed in regard to her situation there, except the injury she had sustained by the sand bank. The j ury were entitled to infer this disclosure, as it was a mere fact, and by their verdict they have affirmed it.
    2. Although the vessel was already repaired at the time of abandonment, yet her situation at that time is inseparably connected with her reparation, and must be considered at the same moment. Mere recapture does not of itself take away the right to abandon which a capture had given. Mere reparation of an injury does not divest the right to abandon, which the injury had given. It must be a recapture that cures the mischief of the capture; it must be a reparation which puts the party in the same condition in which he was before the injury. This point therefore does but beg the question which arises out of the fourth reason, that is to say, whether a repair at London, is the same as at Antwerp. Now if the party was entitled to have his vessel repaired at Antwerp, her being repaired at London did not cure the injury, any more than her being repaired at Batavia would have cured it. In the state in which France and England stood, she could not return to Antwerp, and therefore such a reparation is the same as a recapture which does not prevent the voyage from being broken up, or the cargo from being destroyed. It gives the plaintiff the ship where he is not forced to take her. But further, how is she repaired? Is she as good a ship as she was? If she is not, and of this the jury were proper judges, then the payment of the repairs is no indemnity. The plaintiff has not got his own ship again; and if he ever had a right to abandon her, that right is not divested. This point therefore begs another question arising out of the fourth reason, that is to say, whether the damage suffered on the sand bank exceeded 50 per cent. If either of the propositions be correct, that the plaintiff was entitled to repairs at Antwerp, or that the damage exceeded 50 per cent., her being repaired at London before the abandonment, is of no importance.
    *3. The sale at Antwerp was never urged for any purpose but to show the value of the vessel in her damaged state. At the same time it would be a most dangerous attack upon this species of property, to say that a title thus derived to a purchaser, is good for nothing. The authority of the captain to sell in a case of necessity, seems founded on the same principles with his right to hypothecate, and is admitted by Hayman v. Molton, and by a much better authority-in Jenkins’s Centuries, 4th Cent. Case 16. The proceedings of the court are good evidence of the necessity ; and it is for this purpose that courts are resorted to. They may be considered as to the sale, as acting under the captain, and by delegation from him.
    4. The material question of fact in the case, was the extent of the damage; and of this the jury, w'ho were merchants and ship owners, were infinitely better judges than the court can be. They heard all the witnesses, the captain who was on board the vessel, and carpenters who gave their opinion of the extent of the injury, upon hearing its appearances described. As to the proportion of the damage to the whole value, it was a pure question of fact, and it seems hardly possible for the court to say that the jury have gone wrong upon the evidence, without assuming more than they usually do in such cases. There is however no accurate estimate that will not justify the jury. When the cost of repairs which a vessel will require to put her in her former situation, exceeds her value at the time, it is clear that the damage is above 50 per cent. The estimate of repairs by the surveyors was - - - - francs 33,910
    But they should have allowed for eleven futtocks, which according to the evidence would have cost at least - - - 6,000
    --39,910
    Allowing nothing for docking or hauling up, which were indispensable.
    Erom this sum deduct the customanry J 13,303
    26,607
    Estimated value of rigging and hull, &c. 24,600
    Leaves an excess beyond 50 per cent, of 2,007
    
      *If the real value of the vessel, according to the sale, is taken instead of the estimated value, the excess beyond 50 per cent, is so much the greater; or if the cost of repairs at London, say 6000 dollars, is taken from 12000, (what the vessel was offered for to the defendants, and what she ultimately brought,) it shows the value without repairs to be but about 6000 dollars, or not 33J per cent, of her original value. But an objection is made to an allowance for copper. To this there is a decisive answer. It was much injured by the stranding, it must necessarily have come off to repair the ship, and it could not be replaced. We were entitled to a new copper sheathing deducting one third new for old. This is an uniform invariable usage. Dacosta v. Newnham, 2 D. & E. 408, 412, 413 ; 1 Magens 156, 184; Abbot 128. If a new mast is carried away on the day a vessel leaves her port the underwriter claims an allowance of one third from the cost of the new one with which it is replaced. So if a new sheathing had been placed on the Benjamin Franklin immediately before this accident, the defendants must have had an allowance of the one third from the cost of replacing it. In these instances the rule favors the underwriter and pinches the assured. In the present case the application works the other way; but that is not the slightest reason for rejecting it. A rule so well established, cannot be set aside in consequence of a slight inconvenience it may work in a single case. It is also objected that the repairs must be applied to the value in the policy. On the contrary they should be applied to the value at the place of repair. The object is to ascertain the quantum of injury. If the value of the vessel is taken at one place, and the cost of repairs at another, the values are incommensurable. Such a rule it is easily proved would in some cases authorize an abandonment where the loss was less than 50 per cent, and would prevent it in others where the loss was more. It will make the proportion of damage depend upon the state of the market for ships and materials, which may vary in different places, whereas it ought in all places to be the same. The rule to find this proportion must be the same in the case of ship as of goods; there is no ground whatever for a difference ; and in the case of the rule we contend for, was definitely settled *in Lewis v. Rucker, 2 Burr. 1169, 1172. As to the proportion of sound to unsound, estimating the sails and rigging at a moiety, it will not bear an argument. It supposes that the value of these continues in their state of separation from the ship, whereas it depends almost wholly upon their connection with it. But supposing 50 per cent, damage not to have been sustained, still she was confessedly irreparable at Antwerp, or at any port that might be considered a port of repair for Antwerp, and this we say authorized the abandonment. Cazalet v. St. Barbe is not the least in our way. There the special verdict found that the damage was but 48 per cent, and that the vessel was not worth repairing at her port; not that such was the injury she could, not be repaired there, which is our case. The policy insures her to Antwerp. The insurer is bound to place her at that port in safety. The insured has a right to speculate upon the advantage of having her there, to commence a new enterprise. What is the situation of a vessel so damaged as not to be reparable at the port of destination ? Either the insured is not entitled to have her there in safety, or if he is, the underwriter is bound to repair her there, or to pay the cost of repairing her there. But if she cannot be repaired there, the cost is a total loss, for without repairs the vessel is unseaworthy and good for nothing. Must she be navigated elsewhere for repairs? At whose expense? How far? To London? If so, then to Philadelphia, if repairs cannot be had in London; and after being repaired she must be navigated back to her original port of destination, because there she ought to be in good safety. But in the mean time the captain and crew are discharged, the voyage as to them being at an end. Who is to employ a new crew for an unseaworthy ship, to seek for repairs? It is going a great way to say that the owner must do it; and unless he is bound to do it, he is entitled to abandon in that state of things when unless this is done, there is a total loss.
    5. The last reason for a new trial is involved in the others. Justice has been done by the verdict, and the plaintiff gains no more than an indemnity for his real loss. His conduct was unexceptionable, as he offered to surrender every advantage derived from the sale.
    
      
      
         Upon the trial the defendants contended that if the abandonment was good, they were entitled to the whole freight from Batavia to Antwerp, which was m ore than the sum insured upon the ship. But after a full argument Judge Teates charged the jury explicitly against the defendants upon this ground, and in favor of a pro rata from the time of the accident, and the point was not afterwards raised.
    
   *Tiluhman C. J.

The only question in this case seems to be, whether the plaintiff had a right to abandon. If he had not, the vei’dict is wrong, for the jury haye given damages for a total loss. The ship reached her port of destination, having suffered damage by running on a sand bank. The captain thinks, that she could not have been repaired at Antwerp. But that is not material. The insurance ended at that port. All that can be demanded of the underwriters is to make good the damage sustained during the voyage. If that damage amounts to 50 per cent, the insured may abandon. A ship may have sustained damage to less than 50 per cent, and yet may not be worth repairing, because she may have been worth very little before she received the injury. In Cazalet and others v. St. Barbe, 1 D. & E. 187, the ship reached her port of discharge, where she was not worth repairing; yet as the jury found that the damage sustained in the voyage, amounted to only forty-eight per cent, the plaintiff’, could not recover for a total loss. Hence it appears that the assured has not a right to abandon merely because the ship cannot be repaired after the voyage is ended. It is not so easy to fix the proportion of damage suffered by a ship as it is of goods; especially if part of the goods should be damaged and part sound. By comparing the price of the sound with that of the damaged at the place where they are sold, we have the exact proportion of damage. But in case of a ship, we have no second object with which we can make a comparison. Besides, it is impossible to know the extent of damage in a ship, unless you are at a port where she may be thoroughly examined. Of this we have a striking instance in the case before us. For want of a proper search, it was supposed that the keel was broken. This was an essential error. If the keel had in fact been broken, the ship would have been of little value; but if unbroken her value was considerable. It was impossible therefore to decide at Antwerp, to what amount damage had been sustained. But afterwards it was ascertained with accuracy at London. Now it is very clear that the underwriters are answerable for the real and not for the imaginary damage. Keeping this principle in view, the question under consideration, will not be of difficult solution. It has been perplexed by making an estimate at Antwerp under false '-impressions. Captain Wickes supposed that the keel was broken, and therefore determined not to bid more than 18,000 francs. Those who attended the sale were of the same opinion, and therefore the ship went off at about 13,100 francs. But when the actual damage.was ascertained at London, the captain knew at once that she was a valuable ship. But to what «amount had she been damaged during the voyage? Was it under or over 50 per cent.? If we compare the damaged parts with those which were sound, the amount appears far less than 50 per cent. But that may be said to be an unfair estimate, because the injury was of such a nature as not to be reparable, without ripping off the old copper sheathing, and when ripped off it was more economical to sheath her with new copper than to put the old on again. Suppose it to be so, how will the case stand ? The total repairs including a new copper sheathing amounted to about 5800 dollars. But we cannot suppose, that after those repairs the ship was worth less than fifteen or sixteen thousand dollars, and probably more. Of this there is good proof, because long after the repairs, having gone from London to the United States, and from thence to Bengal and Holland, she was sold for 12,000 dolls. Now if we add to the repairs at London, the reasonable expenses of carrying the ship from Antwerp to London, the amount will still be under 50 per cent. I say nothing of the sale of the ship at Antwerp, where she was purchased for the use of the owners, because under all circumstances, it appears to have been but nominal. No stress was laid on it in the argument, nor was it worthy of any. The verdict was contrary to the inclination of Judge Teates, and as the case strikes me much in the same light that it did him, I am of opinion that there should be a new trial.

Abates J.

The present motion for a new trial rests on two grounds.

1. That no sufficient ground of abandonment was exhibited to the defendants.

2. That the vessel insured was not deteriorated one half of her value by striking on the sand bank in the course of her voyage.

1. The plaintiff owned three fourths of the ship Benjamin Eranklin, and abandoned his interest in consequence of a recetyed from Davy and Roberts dated London 8th July 1805, referring to letters which they had received from the supercargo and consignees, and the condemnation of the ship in the commercial tribunal of Antwerp, and the sale made in pursuance thereof.

I told the jury on the trial, that the manner of penning the letter of abandonment was very questionable; but we are warranted to infer from the tenor of that letter, that the different papers were exhibited therewith to the company. If those documents contained a valid cause of abandonment, though the same was not formally expressed, I think it would be sufficient under the liberality of modern decisions, if every thing else was right; indeed this point was not much pressed on the argument. This brings me to the second ground, which is a question of fact, as to the extent of the injury received by the ship, arising from one of the perils specified in the policy.

2. There is no contrariety whatever in the evidence either written or parol. It is a case fully open to the exercise of the controlling power of the court. There is a strong feature in it, that the vessel insured arrived at her port of destination with her cargo in perfect safety, and earned her freight.

It appeared in evidence, that the ship was newly coppered in Hamburgh in November 1799, which would last from five to seven years. She afterwards performed two voyages, one to Havre de Grace, and one to Bourdeaux, before the subscription of the present policy on the 21st June 1804. S.he sailed from Philadelphia on the 4th of that month, arrived at Batavia and afterwards at Cowes, from whence on the 12th April 1805 she proceeded on her destined voyage to Antwerp, having taken on board an English pilot at Hover. In four days afterwards, she struck on a sand bank at high water, in full sail, and continued beating thereon for three nights and two days, making much water. She was then lightened by the discharge of nearly half her cargo, and hove off with anchors. She arrived at Flushing and thence proceeded to Antwerp, where she arrived on the 12th May. In pursuance of an order of the commercial tribunal of Antwerp, the damage she had sustained was estimated by surveyors at 9910 francs, excluding the expense of new coppering her, and she was valued at 24,000 francs. Her ’■captain entertained a strong opinion that her keel was broken, but in this particular he was mistaken. Her masts, sails, rigging, anchors, and boats had received no injury. Upon being bought in for her owners, the captain sailed in her without further repairs to London, where she arrived safely, and was laid up in a dry dock. Upon a full examination, it was discovered that her kelson had been broken in two places, and that eleven of her lower futtock timbers had also been broken on her larboard side, but her keel was found perfectly sound, and her starboard side entire, and all the defects in her bottom did not exceed two square feet. A small párt of the coppering on the larboard side appeared to have been worn, probably from her motion on the sand bank. The repairs made on her in the dry dock amounted to 12952.18s. 8a. sterling, including a new complete copper sheathing ; but excluding the same, the repairs properly chargeable to the underwriter, did not exceed 35 02. sterling. After being fully repaired in the dry dock, she took in a freight for this port, arrived here, and without any further repairs performed a voyage to Bengal and Holland, and was afterwards sold for 12,000 dollars.

Insurance is a contract of indemnity founded on principles of the purest good faith. The damage accruing to a ship insured, by ordinary wear and tear during the course of her voyage, must necessarily be borne by the owners. If she receives an injury from one of the perils in the policy, after the risk has begun, which does not frustrate the voyage, she should be put into the same physical state as she was at and immediately before the accident, at the expense of the insurers; but they are not bound after the voyage is terminated, to refit her for long voyages by complete repairs. The measure of compensation is to be proportioned to the injury. I cannot conceive, that if a slight injury happened in a small part of the coppering on one side of this ship by her beating on the sand bank, that the underwriters were obliged to give ber an entire new copper sheathing. The copper had been on her bottom nearly five and a half years, and the voyage insured had been safely performed.

I do not see any mode of calculation by which the damage received by the ship Benjamin Franklin on the sand bank can be swelled to one moiety of her value. If we take the *estimate of the surveyors at Antwerp, it will not produce that result. If we take the amount of repairs made in the dry dock in London, properly chargeable to the underwriters, it will not be produced. After performing another voyage to Bengal and Holland, having previously returned to this port, she was sold for 12,000 dollars. Should we oppose the unsound to the sound parts of the hull, or estimate the expense of repairing her broken kelson, and eleven broken futtock timbers, added to the expense of putting her in a dry dock to reduce her to her former shape, we cannot doubt as to her comparative value while she lay at Antwerp. "Whether we make her valuation at that port by the surveyors, or in the policy by her owners and deduct therefrom the ordinary wear and tear, the standard of decision, I cannot bring myself to believe, that she was deteriorated one half by the effect of her running on the sand bank. I am therefore constrained to say, that the verdict is not supported by the evidence, and that a new trial should be awarded.

Brackenridge J.

The first question which I shall make in this case will be, has there been at any time a cause of abandonment ? This will depend upon 50 per cent, deterioration, which the jury by their verdict impliedly have found. The survey and condemnation are prima facie evidence of a want of seaworthiness, and nothing more. But the deterioration of 50 per cent, must have been collected from the evidence. This required calculation in some particulars, estimation in others. The jury may, from oversight, have omitted taking some things into the account, as the value of the old copper stripped from the vessel; but unless I were to go minutely into the investigation of this matter of fact, I could not certainly say that it has been the case, though it would seem, from looking at it in gross, very probable. But a court, on a motion for a new trial, cannot delay business by going into a minute examination of items and estimates; nor perhaps are they equally competent with a jury to do this, with some of whom of mercantile character these matters are more familiar, at least as to what may depend upon casting up accounts. I shall not therefore interfere with the verdict on the ground of value, but take it that there had *been a deterioration of 50 per cent., and a cause of abandonment.

The second question will be, had this cause ceased to exist at the time of the abandonment ? The ship had been before this time repaired; and the state of the fact at the time of the abandonment, is to govern. But is a repaired- ship the same ship that she was before repair? In the case of restoration after capture, or of recapture after capture, it is the same ship that is restored. But the repair of parts in such a case as this, where the constitution of the whole vessel must have been weakened, the repair of parts cannot restore the constitution that has been weakened by shocks that go to the system, and which nothing but building anew could amend. And how could this weakening be distinguished from the particular injury, so as to deduct it from the whole in pursuing for a partial loss ? I think therefore that the repairing did not take away the cause of abandonment that did exist.

The third question will be as to the form of the abandonment. It does not receive a good cause of abandonment; the survey and condemnation is not a good cause. That I admit; it is but prima facie evidence of that want of seaworthiness to which it refers. But I do not take it to be necessary to recite the cause of the abandonment in the document; nor if it does undertake to recite, can it vitiate, that it recites but partially, and refers imperfectly to the cause. There is no formality of abandonment fixed, as in the case of some other instruments. It may be collected from circumstances. It may be inferred from acts, or from words, carrying the implication of an offer to abandon. Be this as it may, the abandonment in this case is abundantly explicit and formal.

But we come now to the fourth and last question; is this abandonment void from the not offering, or not being willing to offer, a cession of the freight earned before the abandonment.

This is immense, and will amount to more than the 15,000 dollars insured as the value of the ship. That will be a consideration for him who has the option of abandoning. He is not obliged to abandon. He may pursue for a partial loss. The vessel not having been physically lost, it is but a technical loss that he can allege, and he can waive this if he chooses to take the freight, and claim for a partial loss. Let dispose of the materials, or repair the wreck, as he has done in this case, and claim an indemnification of the damage. In this I am consistent with myself as to my opinion m another case; for I hold it as a convenient rule, and the only one applicable so as to work throughout, that the freight earned before abandonment shall go with the ship, subject to seamen’s wages and the price of provisions. I speak of this as the only rule that will work throughout; for if the insuring the ship is not considered a conditional purchase on the part of the insurer, so as to draw with it the accruing freight, it will lead to the necessity of a divisibility of freight earned, which in all cases cannot be done, as where the ascertaining the pro rata earned is not practicable. Whenever a case of this nature shall occur under a contrary rule to that I adopt, it will be brought up as by a five-bar gate, to use the hunter’s phrase, with the impracticability of applying the rule; and as geometricians demonstrate by showing what will lead to an absurdity, so in the moral sciences we reason from what will lead to an impracticability.

But this is not amongst the reasons filed on the motion for a new trial. It is however a reason which appears, and results from the allegation of an offer to abandon the ship as she was repaired, and from an actual abandonment of the vessel as she was before repair, saying nothing of an offer to cede the freight. The Court will not sanction a verdict contrary to justice or to law, if it appears so to them, though exception be taken on other grounds. The reasons for a new trial are not under an act of assembly, as in the Circuit Courts they were. There we could not go out of the reasons.

The defendant in this case is willing to indemnify and to pay for the loss actually sustained ; leaving the wreck to the plaintiff to make the best of it. The plaintiff says, pay me the stipulated value, and take the hulk. It amounts to the same thing as to justice between the parties; and it is only as it affects a general rule, that it is of moment which way it is. If the ship was injured one half, he will get that; if more, he will get it, under the denomination of a partial loss, the abandonment being considered void. What would he want more for the purpose of an indemnity ?

New trial awarded.  