
    Benjamin Sewall et al. versus The United States Insurance Company.
    The submersion of a ship insured, is or is not a total loss, according to the circumstances.
    In determining whether the expense of repairing a ship which has been stranded, amounts to half her value, so as to constitute a constructive total loss, the expense of getting the ship afloat is to be included 5 and whether this expense was , incurred in saving the ship alone, or as a proportion of the expense of saving the ship and cargo, is immaterial.
    But the rule of deducting one third new for old, does not apply to this expense of saving the ship.
    Assumpsit on a policy of insurance, dated April 20, 1829, by which the plaintiffs were insured $ 1250 on the brig Marshal Ney, for one year from April 18, 1829.
    The brig was entirely new, and was intended as a regular packet vessel in the line between Boston and Baltimore. She was valued in the policy at $ 10,000, and one eighth of her was owned by the plaintiffs.
    The brig sailed from Boston for Baltimore, on her first voyage, on the 19th of April, with a cargo worth about $ 60,000, on freight; and on the 22d she struck on a shoal called the Handkerchief, off Chatham, where she continued to beat heavily for forty-eight hours, when the wind forced her over the shoal, and she capsized and sank in seven fathoms of water.
    On the 30th of April the plaintiffs abandoned the vessel to the underwriters, and now claimed for a total loss.
    The master, being called by the plaintiffs, testified that the vessel sank about eight miles from land, and that three days after, she had been washed in about six n iles nearer land; that she remained under water about six wrecks ; that she was repaired by the defendants, but he did not think she was so good after being repaired as she was before the disaster ; that she was strained and the deck was sprung down ; that the new rigging was not of so good quality as the old, and was much less in weight.
    The defendants called B. Brintnall, a ship carpenter, who testified that he was employed by them to raise the brig. That he set off from Boston on the 16th of May, but it was several days before the weather would permit him to work. He began to work on May 27th. He.found the brig on her beam ends at high water, not very heavy on the ground. He had two vessels to assist in weighing her. He got the deck out of water so as to work upon the cargo on the 30th of May, and put the vessel upon the marine railway in Boston, on the 27th of June. Her starboard side was chafed half through, seven streaks under the wales, but not strained. Twelve or fourteen feet of the keel washed off. The witness was ordered to put her in as good order and better, if he could, than she was in before, without limits as to price ; and he repaired her as well as he could. He considered her to be as strong and sound as she was before, though she might not bring so much in the market.
    B. Rich, a witness for the plaintiffs,
    said the repairs were thoroughly made, but it was doubtful whether the vessel would have brought so much in the market, by $ 700 or $ 1000, as she would when new.
    The defendants offered in evidence a schedule of bills for repairs, (together with the bills therein referred to,) amounting to $ 3918-06, in which paper was put down the sum of $ 1360-27 as paid by the defendants for the vessel’s proportion of general average for raising and saving the vessel and cargo, the whole salvage being about $ 7000. .
    On June 27th the defendants addressed a letter to all the owners, tendering to them the brig, then lying at the railway, and offering to defray the expenses of repairing ; which offer was refused.
    On July 21st, the defendants addressed a letter to the plaintiffs, informing them that the brig Was repaired, and that the expense amounted to about $ 3900, and offering to deliver her to the plaintiffs and the other owners, and to account with them for repairs as for a partial loss ; which offer was refused by the plaintiffs.
    There was much testimony in the case relating to the completeness of the repairs, but which was important only in respect to the question, whether the verdict was against the evidence
    
      
      March 7th.
    
    
      Wilde J.
    instructed the jury, that the facts proved did not show an actual total loss ; and that to constitute a constructive total loss, it was necessary to prove that the expenses of repairs and of weighing the vessel amounted to fifty per cent, on the value of the vessel, according to the valuation in the policy ; and that from the amount of the repairs they were to deduct one third new for old, notwithstanding the vessel was new and this was her first voyage; but that the expenses of salvage did not come within this rule. To this instruction the defendants excepted, contending that the average expense of salvage was not to be taken into the computation of the fifty per cent.
    The jury were also instructed, that no allowance should be made for any imaginary strain, and that if the vessel was thoroughly repaired and was as good as she had been before the damage, this would be sufficient to exonerate the defendants, although perhaps the jury might be of opinion that the vessel would not sell so well after as before the damage.
    The jury found for the plaintiffs for a total loss ; and the defendants moved for a new trial, on account of the supposed error in the instruction to the jury, and because the verdict was against the weight of the evidence.
    Curtis, for the defendants,
    denied that the vessel was incapable of being repaired for less than fifty per cent, on her value. She was stranded, not wrecked. Marsh. Ins. (1st ed.) 416 ; Wood v. Lincoln & Ken. Ins. Co. 6 Mass. R. 479. It was the duty of the owners to get her off, if it could be done for less than half her value ; and under the new form of policies used here, the insurers might attempt it without thereby accepting the abandonment. Bryant v. Commonwealth Ins. Co. 6 Pick. 141 ; Peele v. Suffolk Ins. Co. 7 Pick. 254.
    It may be argued, that the voyage was lost. The answer is, that the insurance was on time. But if it had been for the voyage, there would not have been a total loss, as the subject of the insurance was the vessel, and not the goods or freight. Hurtin v. Phœnix Ins. Co. 1 Wash. Circ. C. R. 405 ; Pole 
      v. Fitzgerald, Willes, 641 ; Alexander v. Baltimore Ins. Co. 4 Cranch, 370 ; Furneau v., Bradley, cited in 6 Mass. R. 485. In no case has an abandonment for loss of the voyage been allowed, where the ship was in the country of the owner. Anderson v. Wallis, 2 M. & S. 240 ; Parsons v. Scott, 2 Taunt. 363.
    Submersion is not, per se, a total loss of the ship ; but the place where she sinks and other circumstances are to be taken into consideration, in determining the nature of the loss. Emerigon, c. 12, § 12, 13 ; Goss v. Withers, 2 Burr. 697 ; Anderson v. Royal Exch. Ass. Co. 7 East, 38 ; Davy v. Milford, 15 East, 563; Wood v. Lincoln & Ken. Ins. Co. 6 Mass. R. 479.
    The expense incurred in saving the vessel and cargo, was a proper subject of general average ; Bedford Com. Ins. Co. v. Parker, 2 Pick. 1 ; and the jury were erroneously instructed that the vessel’s proportion of this expense was to be computed as part of the fifty per cent. A general average is payable without deduction, and in addition to a total or a partial loss, and therefore cannot be united to a partial loss for the purpose of making a constructive total loss. Padelford v. Boardman, 4 Mass. R. 548 ; Peele v. Suffolk Ins. Co. 7 Pick. 254. If there had been no cargo on board, the expense of getting off the vessel would have been in the nature of a general average.
    
      Curtis further contended, that if the general average should be added to the expense of repairs, and a further allowance be made for incompleteness in the repairs, the damage would still be less than half the value, of the vessel, and so the verdict was against the weight of the evidence.
    
      Fletcher, for the plaintiffs, cited to the point that the expense of raising the vessel was rightly taken into consideration by the jury, Phil, on Ins. 405.
    The evidence proved an actual total loss, and the Court therefore will not disturb the verdict. At the time of the abandonment, the vessel was totally lost by submersion. She was lost so far as respects all useful purposes of a ship. Peele v. Merchants Ins. Co. 3 Mason, 43 ; Goss v. Withers, 2 Burr. 697 ; Anderson v. Royal Exch. Ass. Co. 7 East, 38 ; 
      Davy v. Milford, 15 East, 563 ; Greene v. Royal Exch. Ass Co. 1 Marsh. Rep. 447 ; Idle v. Royal Exch. Ass. Co. 3 B Moore, 150.
    March 31st.
    The loss of the voyage was a sufficient ground for an abandonment. The reason applies with' as much force as if the insurance had been on a single voyage. The brig might have made three voyages in the time lost in making the repairs.
    
      
       See Phil, on Ins. (1st ed.) 371; Potter v. Ocean Ins. Co. 3 Sumner, 45 Orrok v. Commonwealth Ins. Co. 21 Pick. 456.
    
   Shaw C. J.

delivered the opinion of the Court. We are clearly of opinion that the facts disclosed in this case do not show an actual total loss. The fact of actual submersion at the time of the offer of abandonment, is the only circumstance which distinguishes this case from others where the loss has been held to be partial, or where the question of constructive total loss has been held to depend upon the cost of repairing and restoring the vessel. But we think that the circumstance that a vessel is under water, is not of itself sufficient to convert a partial into a total loss.

It appears by the report, that the brig in question was a new and strong vessel, with a valuable cargo on board, and that she was about two miles from shore, when the abandonment was offered, her masts being still visible though not above water.

Some authorities say, we are aware, that a submersion, de facto, amounts to a total loss, but we think it would be difficult to maintain this position. For instance, a vessel might sink, whilst repairing and when her masts are out, so as to be wholly out of sight, and yet be under the control of the owner, so that when raised and pumped out, she will be as valuable as before. It will be admitted that where a vessel is sunk in the sea, it affords strong prima, facie evidence of total loss, because it would in general preclude all hope of recovering her.- We think therefore it comes to this, that submersion, like stranding, or other serious disaster, is to be taken in connexion with other circumstances, in determining whether the loss is or is not total. "These circumstances, among others, are, the depth of the water, the distance from shore, the condition of the bottom, whether soft or rocky, the roughness or smoothness of the sea, the season of the year, and whether the means of relief ate at hand. The ultimate question is, can she be raised and repaired at a reasonable expense of time and money; as in case of stranding, the question is, can she be got off and repaired at a reasonable expense. And the question in either case must depend upon all the circumstances affecting it.

Emerigon, in the passage cited, says that a loss is total by submersion, where there is no permanent vestige of the ship. But what is a vestige ? If it is that which affords the means of recovery and restoration, whether visible or not, then such submersion, in his view, would not be a total loss. A ship may be wholly under water and out of sight, and yet perfectly within the control of the owner. There may be buoys and cables attached to her, by the aid of which, and by the application of proper means and skill, she may be raised and removed as effectually as if above water. Then what is the difference in the condition of such a vessel, and that of a vessel which has sustained a serious injury, and perhaps is made a wreck, but which from the effect of a buoyant cargo, or other circumstance, happens to remain afloat ? We think, therefore, that' we are to look not to any one single circumstance, but to the practical effect and operation of such circumstance, in connexion with others, upon the condition of the vessel.

It certainly would not be sufficient to avoid a total loss, to show that the damaged hulk of a vessel insured has been raised and brought in ; but the same consideration would apply to a vessel greatly damaged by perils of the sea, though she remains afloat. To repel the claim for a total loss, it must appear, that the ship remains a good and sound vessel, capable after reasonable repairs, of performing voyages and carrying cargoes ; but whether she is so or not, does not depend upon the single circumstance of submersion.

As the right of abandonment may throw upon the insurer the chances of the market, the facilities of abandonment ought not to be extended beyond the just and reasonable limits established by practice and by judicial decisions.

In the present case, it appears that the vessel had a cargo, which was not of a very heavy nature, that she lay light on the bottom, and that she was raised and brought to Boston for repairs. The repairs, independent of the general average, were about $ 3900, and deducting one third new for old, $ 2600. The general average, being the cost of raising and bringing her in, was $ 1360, and the vessel was valued at $ 10,000.

There is a clause in the policy, common as we understand to all the policies of recent date made in Boston, that the assured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the assurers would be liable to pay under an adjustment as of a partial loss, shall exceed half the amount insured.

Under this clause, considering the case as one not of actual-total loss, but of a loss, total or partial, according to the degree of damage, the principles of adjustment of partial losses are to be applied, the deduction of one third new for old, and other deductions and allowances made; and whether a constructive total loss or not, will depend upon the result of such adjustment, and upon the fact, whether upon such adjustment •the loss would exceed fifty per cent. It may seem hard, that the deduction of one third new for old, should apply to a new vessel on her first voyage ; but that rule is inflexible, adopted 'for wise practical purposes, and will generally do justice. In England that rule is not applied to a vessel on her first voyage, but here the rule is uniform, and applied without exception.

The next question is, whether the average expense of salvage is to be considered as part of the loss sustained, and we think it is. This was a sum paid for removing the vessel to a safe place, where she could be repaired. It was not technically a general average ; and was only to be regarded in nature of average, as the vessel and cargo happened to be so situated that they could be saved together, and the expense was very properly and equitably apportioned upon their respective owners, according to the relative value of each. Had there been no cargo, the whole expense must have been borne by the vessel. But in either case the cost of raising and bringing in, was a direct loss to the owner, and a direct damage occasioned by the disaster, and therefore to be computed in estimating the amount of that damage. The proper question in such case, is, taking the vessel as she lies, is she worth getting up and bringing in to be repaired, and can this be done for half of her value. The expense therefore of saving is to be added to that of repairing, in order to come to a just result.

Note. A new trial was granted on the ground that the verdict was against the weight of the evidence. The Court said that making the largest estimate for the deficiencies in the repairs, they could not see how the jury could have brought the actual loss and deterioration of the vessel to the sum of $ 5000, computing upon the rules and principles applicable to the adjustment of a partial loss. 
      
       See Bradlie v. Maryland Ins. Co. 12 Peters’s Sup. Court R. 400; Reynolds v. Ocean Ins. Co. 22 Pick. 1913 Orrok v. Commonwealth Ins. Co. 21 Pick. 456
     