
    *Center against The American Insurance Company of New York. The Same against The Same.
    ALBANY,
    Oct. 1827.
    if a vessel sareFon a sea ^^ed^moré than half of any Vpern ilf,ured asamst; may abandon, FtotaTiosa f°r
    t0 meaning of the of the value,” Is the half of the general market value of the vessel at the :time of the disaster, not her value for any particular voyage or purpose.
    In estimating the expense of the repairs, such sum is to be taken as will place her in statu quo, in general with the same kind of materials of which shewas.-composed at the time of the disaster.
    Thus, if she be copper sbeatlied, and her sheathing injured-or destroyed by the disaster, the expense of repairing and re-sheathing with the same material, must be taken into account ; and this, though a sheathing of wood might render her seaworthy for the voyage.
    The expense of thus repairing at the port.ofneeessity, is the true test for determining the amount of the injury.
    The term repair means to amend or restore, or fully reinstate the vessel.
    Where a ship is injured by a peril insured against, to more than ope half of her value; .and a sale is recommended on proper surveys, semble, that the master may sell. But if lie sell improperly, and without authority, this does not take away the right in the assured afterwards to abandon.
    In general, the master cannot impair the right -to abandon by any act he may do. Repairing and putting the vessel on her voyage is one exception.
    The abandonment of-a vessel does .not,effect the remedy on the policy upon the freight.
    But, in general, where another vessel can be obtained to carry bn the cargo from the port of abandonment, it is the’duty of- the master to tranship the cargo and earn freight; and if he neglect to do this, the insured on'freight cannot recover.
    Yet, where a vessel was driven back-to the port of. departure, and there abandoned as for a total loss, no progress, therefore, being made ip. the voyage, and no freight pro rata itineris earned, though the goods were accepted by the shippers; held, that the loss on freight was absolutely total; that there .was nothing to abandon to, the underwriters on the freight • and that under snob circumstances, the master was not bound to procure another vessel, and proceed witli the goods to warrant a recovery-upon the freight.policy.
    Where a vessel proceeds; but is totally lost at-so early a stage of the voyage, that more than half the freight must be lost to the assured, and the shipper receives his goods, it is a technical total’.loss of the freight, - and the assured may abandon.
    The three objects of insurance, vessel, carpo,.and freight, stand on the same ground, as to technical total loss by a deterioration to-more than one half of the value.
    The first suit was.assumpsit for a total loss on a valued policy of insurance upon the ship Pallas, owned by the plaintiff, valued at $10,000, the sum subscribed, on a voyage at and from New Orleans to Havre; and at and from thence, back to a.port of discharge in the United 'States, The cause was tried at the New York Circuit, April 15th, 1826, before Walworth, C. Judge.
    On the trial, the policy was produced and proved, bearing date Hovember 24th, 1824. It appeared that on the 22d, the Pallas, being seaworthy, left New Orleans’ .with a .full cargo of cotton; and proceeded on her voyage the Mississippi. On the 23d, she struck upon the spit, a north of the bar at the mouth of that river; and on the 24th grounded on the bar. In consequence of injuries received here, she. was obliged to put back to New Orleans *to be repaired, where she arrived on the 5th of December. On the 6th, and several subsequent days in that month, she underwent the proper examination and surveys by the port wardens; who recommended a sale, in consequence of the large amount which was required to repair her. On the 17th of January, 1825, she was sold accordingly by the master, and Bussell the consignee. This was also ’sanctioned by the examination of Andrew Seguin, master carpenter, and captains Jacob Forman, W. Fosdick and Edward Hicoll, who also made a survey, and reported in favor of a sale. The ship brought, at a well attended auction, $2,800. On the 21st of January, 4 days after the sale, the plaintiff abandoned the ship to the underwriters as for a total loss: and now claimed $8,431 21, the amount of that loss, after crediting the net proceeds of the sale; and charging interest from the day of the abandonment.
    It farther appeared that the Pallas was originally sheathed with copper; and that in consequence of the disaster, it became necessary to re-sheath her in some way. The article of copper could not be procured for this purpose at New Orleans; but was procurable either at the city of New York or at Havre : not nearer than New York. That a sheathing of wood would render her sea worthy, and competent to the performance of the voyage with a full cargo; but on her reaching New Orleans, the cargo was landed; and the shippers declined re-shipping, unless she was first sheathed with copper. The purchaser finally sheathed her with wood; completing the repairs about the 1st of May, 1825. A sheathing with copper, if it had beer procurable at New Orleans, would have been much more expensive there, than at New York or Havre.
    The counsel for the parties agreed that, for the purpose of determining the comparative amount of repairs whicl would constitute the right to recover for a total loss, th valuation in the policy, of $10,000, should be taken as the true value of the vessel.
    They then proceeded to evidence upon the comparative amount of repairs; the question being the usual one; whether *the ship was deteriorated by the disaster to more than one half of her value.
    For this purpose the estimate exhibited by the plaintiff as a part of his preliminary proof, was read on the part of the defendants, by consent. Depositions were read and oral testimony received on both sides.
    The counsel for the defendants prayed the judge to instruct the jury,
    “ That, for the purpose of ascertaining whether a constructive total loss had occured, the sum at which the ves-. sel was valued in the policy, was to be assumed, &c.” (Agreed to as above mentioned.)
    “ That the plaintiff had no right to abandon on the ground that the ship was incapable of being repaired at Hew Orleans, because materials for re-coppering her could not be there procured; but if the jury- should be satisfied, from the evidence, that the vessel could have been repaired at New Orleans, without re-coppering, so as to render her competent to perform the voyage insured with a full cargo, the abandonment could not be sustained; and the recovery of the plaintiff must be confined to a partial loss. And that, in estimating the expense of repairs, no repairs for defects existing prior to the peril which had occasioned the loss, or arising subsequent to the arrival of the vessel at New Orleans, were to be taken into calculation, unless such repairs were necessary to render the vessel seaworthyi”
    The counsel further prayed the judge to instruct the jury,
    “That there was no evidence to justify the sale of the vessel, on the ground of necessity ; and that no circumstances had been shown, to warrant the sale, even to the supposition that a technical total loss had occured. And that the sale having been made by the master, and Mr. Russell, the agent of the assured, prior to the abandonment, was considered ás the" hot of the plaintiffand ren dered his abandonment invalid.”
    The judge declared his opinion-,
    *“ T^at the"mere- inability of the plaintiff to re-coppei the vessel at New Orleans, if she were not in fact- injured to half her value, and could be otherwise rendered seaworthy, was not, of itself,- sufficient ground of abandonment. But that the plaintiff was clearly entitled to have his ship repaired, and,- of course,, re-coppered at the ‘ expense of the defendants. And if the jury should be of opinion,-, that the expense of re-coppering the vessel at Havre",- dr New York, in addition to such repairs in New Orleans as would1 have rendered the vessel competent to perform the voyage in-pared, Would have exceeded a- moiety of her value making, the deduction of one third new for old, and charging, the-plaintiff with the old materials pot used, the abandonment was valid ;• and the- plaintiff entitled to their verdict for a total loss.”
    To this opinion the- counsel for the defendants excepted.
    The judge charged-,
    
      u That- the right of the plaintiff to recover for a- total loss, depended solely on the question whether the vessel was deteriorated half her valueand that they were bound to- consider her as so injured, if they believed,- from the evidence, that the expense of re-coppering her at Havre or New York, in addition to such partial repairs at Hew Orleans as- would have rendered- her seaworthy, and making the usual deductions and charges, would have exceeded á moiety of the sum at which- she- was valued in the" policy. That he had made a statement, which he would submit to them, according to his view of the evidence; and which was founded partly on A.- Seguin’s answer to- the ninth direct interrogatory, who was a witness on the part of the defendants; which statement he believed to be correct; and- which, if correct,- clearly entitled the plaintiff to recover for a total loss. That such were his views of the evidence : and if -they agreed with him. in- opinion, the plaintiff would be entitled to a verdict-. But this was a question of fact, which it was their province to decide. This statement was as follows:
    *Seguin’s statement of the expense of repairs at New
    AA dj.ror.A Orleans* $o,auv
    Difference of expense between sheathing with one
    inch and one and a quarter inch plank, 1500
    $6,700
    Deduct old copper, 800
    5,900
    Commissions, * 177
    Coppering in New York, 2,500
    $8,577
    Deduct l-3d, 2,859
    $5,817
    Verdict for the plaintiff, for $8,481 21, the sum claimed.
    The second suit was upon the policy on freight, valued at $6000, for the same voyage. In this suit, the verdict was for the plaintiff, by agreement, subject to the opinion óf the court. The principal facts were the same as above, in the suit on the vessel policy; the plaintiff abandoning both for vessel and freight at the same time. It was, moreover, agreed, that the following facts should be inserted in the case, as having been found by the jury: 1. That the vessel could not have been repaired at New Orleans, by re-coppering her: 2. That if the copper could have been procured there at its usual price, the expense of full repairs would have exceeded the moiety, making the usual deduction: 8. That the vessel might have been repaired there, sheathing her with wood, so as to render her seaworthy and competent to the voyage, at less than a moiety. 4. That the expense of re-coppering at Havre or New York, added to repairs and sheathing with wood at New Orleans, would have exceeded a moiety of the valuation at New Orleans.
    
      ^ was a^S0 ai^m^ed, that under an adjustment of genera* averaSe at ^ew Orleans, the plaintiff was bound to pay $237 47; and that he was entitled to recover to that amount; the supreme court to reduce he verdict to what they should think the plaintiff’s rights to be.
    * Ver diet for the plaintiff for $6,694 42.
    Motion, by the defendants, for a new trial in the first cause; and by the plaintiff for judgment in the second.
    It was agreed that the plaintiff’s counsel should open-the argument.
    
      G. Griffin, for the plaintiff.
    1. That the partial repairs at New Orleans, with full repairs' elsewhere, exceeded a moiety of the valuation.
    2. If the repairs, wherever made, would exceed a moiety, the assured had a right to abandon.
    3. The right to abandon was not defeated by the sale.
    4. The assured had a right to abandon on the mere ground that the vessel could not be re-coppered at New Orleans.
    5. He had this right, if, from appearances, and the opinion of the best judges that could be selected, the vessel was irreparable, except at an expense exceeding her value when repaired.
    6. The value of the vessel at New Orleans, not that in the policy, should be taken to determine whether the deterioration exceeded the moiety.
    As to the 1st point, he said it was a question of fact.
    As to the 2d point, the vessel must be put in statu quo. The question is, what will it cost to make her so ? (4 Cowen, 245, per Savage, Ch. J.) Sheathing with wood will not do. She was sheathed with copper. Loss of voyage is not the question. If deteriorated inore than 1-2, the assured may abandon, though the vessel may have reached her port of destination. (4 Bin. 386; 3 Serg. and Rawle, 25.)'
    ■ As'to the 3d point, the sale was 4 days previous to the abandonment. It was made without the plaintiff's knowledge. The captain had a right to sell. (11 John. 295; 3 Moore, 115; 8 Taunt. 755; 4 Serg. & Lowb. 272; Phil. on Ins. 401, 412.) But whether this be so or not, an abandonment relates back to the time of the disaster; and if this justified the abandonment, no subsequent acts of agents could defeat the right. (9 John. 26; id. 8.)
    '"As to the 5th point, he cited Phil. on Ins. 400; 11 John. 295; 8 Taunt. 755: and as to the 6th, Phil. on Ins. 401, 402; 11 John. 295; 4 Cowen, 246.
    As to the freight policy; in addition to the above points, he said, the technical loss of the vessel, constituted, per se, a total loss of freight, inasmuch as no vessel could be obtained to transport the cargo at less than 1-2 the freight valued in the policy.
    The general rule is, that a total loss of the vessel, actual or technical, includes the total loss of freight. (Phil. on Ins. 424; 3 John. Cas. 99; 18 John. Rep. 210; 15 Mass. Rep. 346.)
    Again: By the abandonment, the property in the vessel passed to the underwriters. (1 John. Cas. 377; 2 id. 443; 3 Cain. 16 ; Phil. on Ins. 478, 479.) This did not defeat the freight policy. (3 John. Rep. 55.) Then the plaintiff had no further control over it. If he had used the vessel, he would have been a trespasser.
    If the plaintiff had repaired of wood, the shippers would have refused to re-ship. They had a right to a coppered vessel, for which they had contracted; and actually refused to re-ship without it.
    There was no obligation to Hranship the cargo at an expense of more than 1-2 the freight. The case which will be relied on, (Bradhurst v. Col. Ins. Co., 9 John. 17,) does not require it in such a case as this. There the expense would have been trivial. The court did not mean that the assured should tranship at any expense. This.can only be required where the expense will be less than 1-2 the freight. If not, he may abandon. The principle in Robinson v. Mar. Ins. Co., (2 John. 326, 7,) applies to the three subjects of insurance. Kent, O. J., takes it for granted that a loss of 1-2 of the freight warrants an abandonment. (18 John. 210, 211, 212, per Platt, J. S. P.)
    
      
      J. Duer and D. B. Ogden, contra,
    contended for a new trial in the- suit on the vessel policy; and for a judgment m favor of the defendants in the freight cause; or that the ver(3ict in the last cause should be reduced to such *portion of the general average incurred at New Orleans as- was properly chargeable on the freight.
    They said, if the abandonment of the vessel fails, that of the freight fails by necessary consequence.
    They made these points on the vessel policy:
    1. The plaintiff had no right to abandon; for, first, the vessel was not deteriorated to-more than 1-2 her value; and secondly, the repairs, necessary for the voyage were less than a moiety, making the usual deduction.
    2. The judge misdirected the jury both as to the law and evidence.
    3. The verdict was against evidence.
    1. They admitted that the assured may abandon, as for a total loss, -where the vessel has been injured by the perils-of the sea beyond a moiety of her value, or so as to require repairs to that extent. They traced the history and origin of this rule through Phil. on Ins. 401, and 1 Wheat. 228; contending that no such rule as to the vessel is established in the English courts; (2 Burr. 683; id. 1198; 2 Taunt. 363;) and that the rule is not to be favored or extended. It has generally been put on innavigability. (1 Emerigon, ch. 12, s. 38; 2 Condy’s Marshall, 562, 563, 571; Code de Com. Liv. 2 Tit. 16, s. 3, art. 369, 389; 2 M. & S. 240, per Ld. Ellenborough, 4 Bin. 507, Binney arguendo ; 2 B. & A. 513; 14 East, 466.)
    The right, as sanctioned by our own cases, frequently tempts to a fraudulent abandonment of the voyage, in the hope of greater gain by this than its honest pursuit..
    The actual damage to the vessel, instead of the expense of repairs, is the test. (4 Bin. 398.) The vessel should be so damaged as to be considered a wreck. (6 Mass. Rep. 482, per Parsons, C. J.) We must look to the actual state and condition of the vessel; not what her repairs will cost These may be accidental; and were so here, depending oi the expense at the nort of necessity. The market price of a vessel may be very low, where the materials for repair are very high. We do not find any case which settles that the amount of deterioration must be decided by a comparison of the sound with the damaged part. But we think *this mode recommends itself for its exactness, and is supported by reason and analogy.
    On this principle, it cannot be pretended that the deterioration was anything like a moiety. (The counsel examined the evidence upon this view.)
    But suppose the rule to be as stated by the plaintiff’s counsel. By what standard is the value of the vessel to be ascertained; and what is intended by repairs ? Are they such as shall place the vessel in all respects in her former condition and value ? or such as shall restore her to a capacity of performing with safety the voyage insured, or, in other words, render her seaworthy ?
    We need not discuss the rule which is to fix the value of the vessel. It was agreed upon at the valuation in the policy. That this was the correct valuation, we merely refer to 11 John. 293, Emmet arguendo; Phil. on Ins. 402: and 2 Caines’ Cas. in Err. 153.
    The repairs are merely those which will render the vessel seaworthy; not those which will restore her to the original value. By the contrary rule, a very trifling loss might sometimes authorize an abandonment; as from the want of funds, materials, or other causes. The loss of a mast, rudder or cable, might render a vessel for a time unseaworthy, and drive her to a port of necessity for repairs; and if the loss cannot be repaired by materials precisely similar and of equal value, the assured may abandon, though the vessel may be rendered equally seaworthy without this. The claim rests rather on the impossibility, than the expense of procuring The vessel could not be re-coppered at New Orleans; but she might have been rendered seaworthy, at less than 1-2 her value. This is the first time, we believe, that a right to abandon has been set up on a supposed value of repairs which could not be rendered. A vessel is never released from the obligation of pursuing her voyage, if she can be rendered seaworthy at an expense of Jess than half her value. If this has not been adjudged,- it vo). is clearly implied from the cases. The insurance is not on J the voyage; but the ability of the vessel. (4 Cranch. 370.) That repairs to render *her seaworthy are enough, the following cases will imply: Gould v. Shaw, (1 John. Cas. 293, per Radcliff, J.) Abbot v. Broome, (1 Caines, 292, 302, per Radcliff, J.;) Neilson v. The Col. Ins. Co., (3 Caines, 108; 1 John. Rep. 301, 305, S. C.;) Wood v. The Lincoln & Kennebeck Ins. Co., (6 Mass. Rep. 482, per Parsons, C. J.)
    . The sole and universal ground of abandonment of a vessel, is her incapacity to pursue her voyage. (4 Cowen, 243.) It follows that necessary repairs alone are to be considered. Suppose the copper alone had been stripped off, and no other injury. The ship might have pursued-her voyage. Might she abandon because she happened to be in port where she could not be re-coppered at less than half her. value ? The assurer is indeed to pay for re-coppering; but not at the port of necessity. It comes in by way-of claim for partial loss. (4 Cowen, 234.) It is for the interest of the shipping merchant that the vessel should be repaired, and proceed with the least possible delay. The rule would be most pernicious which should authorize the owner to break up the voyage at an intermediate port, when the ship may be repaired at a moderate expense. (Abbot on Ship., Am. ed. 254, 275.)
    [The counsel examined the evidence, contending that the vessel might be made seaworthy; without an expense exceeding 1-2 her value.]
    But if the judge was right as to the law, he misdirected the jury as to the fact'; and their finding was against the weight of evidence.
    The addition of the expense of re-coppering at New York or Havre, we think our opponents will agree, is a mode of computation novel in our jurisprudence. Ho place other than that of the disaster was, we believe, ever before adopted.
    .If the rule of law, however, laid down by the judge, was correct, we admit his mode of computation seems highly reasonable; and is probably the true one. But is not the novelty of the mode of computation, proof of the novelty of the rule on which it is founded ?
    *The question, upon the evidence, was not left open to the jury. The judge furnished a statement, with hardly an intimation that it could be questioned.
    [The counsel went into the proofs, to show that the finding of the jury was against the weight of evidence.]
    4. There was no right to abandon on the mere ground that the vessel could not be re-coppered at Mew Orleans, if the vessel was made competent to perform the voyage, the owners of the cargo could not refuse to re-ship. If the shippers were discharged by this circumstance, it would have been the same had the vessel been within a day’s sail of the termination of the voyage. The owner of the vessel is entitled to the possession of the goods, so long as his vessel is engaged in the prosecution of the voyage; and if driven into a port of necessity to refit, he may retain the cargo till she is repaired. The merchant cannot demand his goods unless the vessel is irreparable, or another cannot be procured. If their policy on the goods required a coppered vessel, they should have effected another policy on a vessel without copper.
    5. The vessel could not be abandoned on the opinion of surveyors and others at Mew Orleans. We concede that existing probability of a total loss, is a valid cause of abandonment ; and that it is not defeated, though from subsequent and unforeseen events, it should turn out to be partial. But opinion or belief is not enough. It must be justified by facts. (Dickey v. N. Y. Ins. Co., 4 Cowen, 222.)
    
    6. The right to abandon was divested by the sale. This is a doubtful point; but we do not mean to abandon it. We cite Moore, 140; Phil. on Ins. 409, 410, 411; 4 Campb. 138; 6 Taunt. 68; 6 Mass. Rep. 478; Condy’s Marsh, 562, a. (n); 5 Serg. & Rawle, 508; 14 East, 465.
    The master may defeat an abandonment by repairing. (Dickey v. The N. Y. Ins. Co., 4 Cowen, 222.) Why not equally by a sale ? A sale by the master has certainly been '30ns^6re(^ as .affecting the question of total loss. (3 Brod. & Bing. 147; Phil, on Ins. 111.) It is .not pretended that -the-sale created the total loss. This was not assigned as .cause .of abandonment. Nor could .it be made a ground. (Phil. on Ins. 408, 409.)
    *As to the suit on the freight policy. If the court should be against a total loss of the ship, the verdict -must be reduced .to the small general average, which we consent the plaintiff is.to recover.
    The'total loss of the freight did not follow that of the vessel; because it might have been repaired, and earned freight; or another -vessel might have been procured to -carry on the cargo. Loss of freight does not necessarily follow even.an actual total loss of the vessel. The assured can never recover for freight which it is his duty to proceed and earn. If not earned, it is his own folly. (3 John. Cas. 97.) The authorities cited on the other side, merely show that .there cannot be a total loss of freight without a total loss pf the vessel. But the converse is not true. If the shipper had required this vessel -to be repaired and made seaworthy, and carry on the goods, the-master must have obeyed. The owner’s right to abandon the vessel .could -not affect this claim. He of course had a right to repair-and earn freight, though the shipper had objected. By abandoning, he lost the freight. The contract with the freighter can only be dissolved where the repairing is impossible, short of the value-of the ship.
    It -is admitted that, generally, the .master must-procure another vessel: but not when,.as here, he must .pay full, or nearly full freight. We were struck with the force of this reasoning, -though .it has not been sanctioned by any adjudged case. It might be conclusive, if the vessel had been, .in fact, irreparable. But it might have been .repaired. On the general, question .as to the freight, we cite 6 Taunt. 68; 1 John. 205; 9 id. 19; 3 id. 97; 2 Cond. Marsh. 586.
    
      T. A. Emmet, in reply.
    The voyage was properly broken ;up. It is laid down generally, by the books, that the master may retain, and the shipper cannot demand his goods, unless the vessel is irreparable,' or another cannot be procured. (Com. Code of France, art. 296; Ord. de Mar. Liv. 3, tit. 3, art. 11.) But this is, as to refitting, where the vessel can be repaired quickly. (1 Valin, 651, 653; Laws of Oleron, art. 4, 1 Peter’s Adm. *Dec. App. IX; Laws of Wisbury, 1 Peter’s Adm. Dec. App. LXXIII; 3 John. Cas. 93, per Radcliffe, J.; 2 Burr. 887.) This doctrine is not impaired by anything in Griswold v. N. Y. Ins. Co., (1 John. 205; 3 John. 321, S. C.)
    We think this is a case in which the shipper had an elec-" tion to receive his cargo, or require the ship-owner to proceed and-earn freight. He did elect to withdraw the goods; and it could not, therefore, be the ship-owner’s duty to proceed. True, the shipper cannot be compelled to receive his goods, where it is possible and legal for the ship-owner to proceed. But the former may elect to receive them short of this. A master cannot insist on retaining the cargo a long time, till he has completed his repairs. It may be perishable.
    Suppose that in this case the master might elect to refit in a reasonable time, or hire another ship. The latter would, in itself, have been a total loss. It must have been. on full freight; and would have been the same thing to the underwriters as an abandonment. The vessel was not, and, probably, could not have been made seaworthy till May following the disaster. Was this a reasonable time to wait for re-shipment? The shippers exercised a prudent discretion in withdrawing the cargo.
    The owner is certainly not bound to wait till the expenses are ascertained before he abandons. This ascertainment can be only after the repairs are made; and then it is too late to abandon. Probability must be the guide. The ship had returned, and the report of the surveyors was strong, that the vessel was not worth tire expense of repairs; the shippers had withdrawn the cargo; and left nothing to contribute to the expense of the voyage, or make it an object to repair. The surveys have weight. (3 Caines, 111, per Livingston, J.) The master should not repair in the face of surveys. He may be far abroad; and is the , n .1 n of those concerned. ^
    The sale of the vessel was never supposed to take away the right to abandon. (11 John. 293; 9 id. 1.) The acts of the master cannot generally affect that righv Repairing is an exception, it is true'; (4 Cowen, 422;) because the ground of abandonment ceases before it is made. Hot so -*of a sale. The question as to this is only between vendor and vendee; not between assurer and assured. (8 Taunt. 755, per Dallas, C. J.; Read v. Bonham, 3 Brod. & Bing, 147; 1 John. 355, charge of Livingston, J.) -It is enough, however, by these authorities, that the master acts in good faith. In this view, the sale (being valid) was itself an additional cause of abandonment.
    Under the French law, our surveys alone would warrant an abandonment. (1 Valin, 651. 1 Emerigon, 576, 577, 579, 580.) With us they have no official force.; but are' considered as properly influencing the conduct of the master. Fairly made and pursued, they are evidence of his good faith. (Whart. Dig. 336, art. 175. 11 John. 293, charge of Kent, C. J., in which the court concurred. 8 Taunt. 755. 2 Stark. 571. Read v. Bonham, 3 Brod. & Bing. 147. Cambridge v. Anderson, 2 Barnw. & Cressw. 691. Robertson v. Clark, 1 Bing, 445.) These cases show not only the force of a survey; but that the master is to be governed by probabilities in his conduct, and the owners in abandoning. Some of them speak of necessity; but this means expediency. (5 Esp. Rep. 65.)
    The underwriter cannot prevent an abandonment by showing that less than 1-2 the value of the vessel would make her seaworthy. The plaintiff is entitled to have her placed in • statu quo. (3 Caines, 89, per Livingston, J.) This the assurers must do even as a partial loss. It is implied in the term repair; which is “ to amend an injury by an equivalent.” (John. Dict.) The estimate of the vessel’s valúe to be made in reference to the port of necessity. (2 Caines, 85.)
    The vessel could not be repaired at New Orleans. Hg copper could be obtained. The incapacity to repair, either nr want of funds or necessary materials, has always been íeld cause of abandonment. The plaintiff had a right to ibandon the voyage'; and demand repairs on the spot from he underwriters. If this cannot be done, he may abanIon. If wood alone may be employed in case of necessity, he money value of the copper must be added to make up he loss. This would still entitle to the abandonment.
    *The finding of the jury (and it is fully supported by ¡vidence) is, that if the value of the coppering at any place >e added to the other repairs, they will exceed a moiety of he value.
    If the ship be not rendered unseaworthy by the injury, íer delay would be a deviation; as in the case supposed >n the other side, of mere loss of copper, without other njury.
    All antecedent defects not making the vessel unseavorthy, are to be disregarded. (2 Caines, 85; 5 Cowen, 63.)
    In England, the rule that a loss of more than 1-2 of the hing, (2 Burr. 1209,) or the ship, (Goss v. Withers, W. Bl. 279, 322; 2 Burr. 696, 697,) amounts to a total loss, contructively, in a case of salvage of a ship on re-capture. 1 loss by any other peril is the same in principle. Traces if the same rule in regard to losses by other perils may be bund in the English books. (1 T. R. 187, per Willes, J., dewed in the same way by Tilgman, C. J., 3 Serg. & Rawle, 25, and by this court in 3 John. Cas. 34. And see Read v. Bonham, 3 Brod. & Bing. 147.) As to the Erench rule on his head, see 2 Valin, 101.
    The rule is generally so expressed as to refer to the value f the vessel, and amount of repairs at the port of necessity. Phil. on Ins. 389, 390. 6 Mass. Rep. 682. 1 Con. Rep. N. S. 235. 2 Caines, 85. 4 Cowen, 242, 245.) It is only n that ground that the deduction of 1-3 new for old is roper. The object is, to ascertain whether the voyage be rorth pursuing. If the property be merchandize, for sale, ;s market price in an injured state, is compared with its rice in an uninjured state. If the damage be to the vehile of transportation, the question whether the voyage be worth pursuing, depends on the expense of repairs, eompared with the value when repaired. The values should same piaGe. Ho question has ever been made- upon this before; and there is nothing about it unsettled, except whether the value m the policy shall be taken for that of the ship.
    The value of the ship- at the port of necessity, not the value in- the policy, should be taken. The latter is nevei ^intended to conclude on the question now raised. It it lawful to recover by it much more than- the value of the vessel; as the value of provisions and outfits. (4 T. R. 206.) The value at the port of necessity has usually beer adopted. (11 John. 298.)
    
      
      
         This first cause was decided at August term last, and the second at the present term*
    
   Curia.

In the suit upon the vessel policy, the plaintiff claims to recover for a constructive- total loss, founded or sea damage to more than a moiety of the ship’s value after the usual deductions. On the trial, the parties as sumed the valuation of the vessel in the policy, which was 10,000 dollars, as the measure with which the cost of repairs is to be compared, in' order to determine whether it ex ceeded one half the value of the ship.

Whether the proper principle of estimating the moiety was adopted at the trial; and, if so, whether the sale be fore abandonment rendered that abandonment invalid, ar< the only questions of law necessary to be considered ii the vessel cause, according to the view which we haw taken of it.

The Pallas was originally sheathed with copper. He disaster rendered a re-sheathing necessary. The defend ants’ counsel urged, that if she could be rendered seawoi thy, and fully competent to perform the voyage, by repair amounting to less than the moiety, as by a sheathing wit plank instead of copper, the plaintiff had no right to aban don. And they insisted on the question being put to th jury in thatshape. The counsel for the plaintiff contended that the legal measure of repairs was, what would- plac the Pallas in statu quo. And so the judge decided charging definitely, that the re-coppering made a part of the repairs.

It is abundantly settled, as a general rule, “ that if the ship or goods insured, be damaged to more than one-half of the value, by any peril insured against, the assured may abandon, and recover for a total loss.” (Phil. on Ins. 401, and the cases there cited.) Such deterioration is a substantive ground of abandonment. And the only question made on this head, relates to the meaning of "::'the words in the rule, “ one half of the value.” Is it one half of the ship’s value for the purposes of the particular voyage; or of the general market value ? A vesssel competent to cross the Atlantic with a full cargo, is insured for a short trip from one port to another in the same hemisphere; and meets with a ruinous disaster to nearly her full value. With some slight repairs, she may be rendered adequate to her particular duty. Have the insurers a right to insist on those repairs being made; and thus avoid payment for a total loss ? Is the insurance on the ship, or on the voyage ? [f we do not look to the simple abstract value of the ship, vhat becomes of the rule ? Are we not thrown upon what s contended to be the English doctrine ? We are made .n all cases dependent on foreign considerations; such as ;he length and hazardous nature of the voyage. The unnixed value of the ship, and the comparative value of epairs, were adopted by the American courts, to avoid complication and uncertainty. Insurance is an obligation >f indemnity. The insurers are bound to repair the ship, hat is, to amend or restore her, as the term imports; or, In the language of Mr. Justice Livingston, in Depeyster v. The Col. Ins. Co., (3 Caines, 85,) “ to defray all. expenses of ilaeing her in statu, quo." When and where is this to be .one? We answer, at the port of necessity. The insures have no right to split the repairs into parts; and say the caworthy portion for the particular voyage shall be permmed at that port; and the residue at the port of destinaren, or elsewhere. The obligation to repair on the spot is bsoluto. The voyage may never be completed. Disaster, eviation, or breaking up of the voyage by consent, would enable the underwriters to escape the subsequent repairs entirely. In any view, we are satisfied the value of repairs intended by the rule in question, is the expense of fully reinstating the vessel; and generally with the same kind of materials of which she has been deprived by the disaster The decision of the judge was, therefore, correct in poinl of law.

Was the question of fact, under this principle, fairly put > the jury? The Pállas could not be fully repaired at New Orleans, for want of copper: but this might have een obtained at Havre or New York. The charge of the udge is treated by the counsel-for the defendants as adopt-lg New Orleans prices for the repairs in wood, and the New York price for the copper sheathing; thus looking eyond both the port of necessity and destination for a irt of the repairs. This is said to be an unprecedented isis of estimate; and if intended by the judge in that iew, it might have been unwarrantable. But it was cer,inly most favorable for the defendants. We understand Le judge as entertaining a strong impression against them; id as vindicating it by taking the most favorable side, leir own evidence, to show the failure of the defence, even pon their best possible ground. He takes the testimony :-their best informed witness, Seguin, one of the survey's, ahd the master carpenter who repaired the Pallas for ie purchaser. From this he measures the value of repairs . wood at New Orleans. He then supposed the ship repairable by the copper sheathing at New York; a pía» where it would certainly be much cheaper than at New Orleans, even if copper could have been obtained there a the usual price. In this way, he still makes the repairs deducting one third new for old, and the value of the ole copper, overrun one half of the agreed value of the ship

The evidence as to the amount of repairs consists mainly in the extract from the preliminary proofs, and the esti mates made upon this by Mr. Hicks, the broker; to be com pared with the evidence given in chief by Fosdick, Bus sell, Seguin, Southerland, Grleazer and Eckford. Th< whole was submitted to the jury; having first been opei to,- and undoubtedly having undergone the criticisms oí counsel. The question was one of fact; and peculiarly within the province of the jury. The evidence was con flicting to a certain degree. But we do not see hov any man who reads it, can escape the strong impressioi which the judge communicated to the jury; and which we think he was justifiable in communicating. If we differec both from judge and jury, we should hardly feel autho rized to grant *a new trial, unless the verdict were clearly against the weight of evidence.

The ship was sold four day's previous to the abandon ment. In this there cannot be a doubt the agents actec with perfect good faith. The surveys concurred in recom mending a sale; and there was already a constructive tota loss; or what would be so upon abandonment. We inclim to think the captain had power to sell under these circum stances. (Phil. on Ins. 401, 411, 412.) But ifohe wantec the power, we do not think this could affect the right t< abandon. If he acted tortiously, the interest acquired by the defendants is in the ship. All their rights are saved In general, the master cannot impair the right to abandoi by any thing he does. The act of repairing is considera an exception. He may in his discretion repair; a.nd whei that is done, and the vessel fairly on her voyage, the righ of abandonment is taken away. (4 Cowen, 422.) He i acting in the line of his duty and power; and the grourn of abandonment is removed before it is made. Not so here The sale, if it had any effect, would seem rather to strengthen than impair the right to abandon.

The only remaining questions arise upon the freight policy. It is settled that the abandonment of the ship does not affect the remedy for loss of freight. (Phil. on Ins. 428, 429, 430, and the cases there cited.) It is not denied, however, that another vessel could have been procured to carry on the cargo from the port of necessity. When this can be done, it is, in general, the .duty of the master to tranship the cargo, and earn freight. If he neglect to do 'so, it has been held that the insurers are not liable. (Saltus v. The Ocean Ins. Co., 12 John. 107. Bradhurst v. The Col. Ins. Co., 9 John. 17.) The failure to earn freight is imputed, in such case, to the assured, through his agent, the master. The charter party of affreightment is not dissolved; and the underwriters are entitled to its execution, in order to be protected against a total loss if possible. Ho freight is, in strictness, due, until the goods reach the port of destination; unless they are voluntarily accepted at the port of necessity; or there be a refusal, upon offer made, to have the goods sent on in another vessel. (Bradhurst v. The Col. Ins. Co., 9 John. 17, per Kent, Ch. J.) These are the principles on which the master is bound to proceed. We lay out of view the fact that the vessel might have been made seaworthy short of an expense to one half her value, and have taken in the cargo; because the assured, having a clear right to full repairs, was entitled to abandon. This, we have seen, while it puts the vessel beyond his control, is not to interfere with the claim for loss of freight. The obligation to earn freight must have had reference exclusively to the employment of another ship. But cui bono, in this case, employ another vessel? Here had been no progress in earning freight. The vessel is driven back with the cargo to her port of departure; where she lies as a wreck, and is sold for the benefit of those concerned. The cargo is unladen, and finally received by the shippers. It seems to us that here was a loss of freight absolutely total. We cannot intend that the hire of a vessel for the same voyage, would have ^een at a ^ess that stipulated for in- the original charter party. There was, in truth, nothing to abandon. (Phil. on Ins. 382, 386, and the cases there cited.) There could be no salvage. It is strongly intimated in Green v. R. E. Ass. Co., (6 Taunt. 68,) that in a case like the present, no abandonment is necessary, as there is nothing to be transferred by the assured to the'insurer.

But suppose this vessel is to be considered ias having proceeded on her voyage, pursuant to the contract, with the shippers. She met with a disaster which broke up that voyage. More than one half of her freight was gone at all events; and -the assured abandoned as for a total loss to the underwriters. The principles of constructive total loss are applicable to freight. Even supposing a pro rata freight actually earned to less than one half of the whole, we should think the assured might abandon ; thus throwing the whole loss on the underwriters; crediting them with what is earned by the lost ship as salvage. Take the case of a ship lost at an intermediate port of necessity. *The shippers may elect to receive their goods, and pay pro rata freight. (6 Co wen, 504.) It amounts, however, to but one fourth of the sum stipulated in the charter party. May not the assured abandon ? This is usually a question of no importance ; for when the pro rata freight is paid, it is the same thing to the underwriter, whether there be an abandonment or not; whether the loss be considered partial or total. If it be not paid, and the collection is thrown upon him, it makes a difference, provided the shipper prove unable to pay. We see no objection to an abandonment in either case, upon the principles that govern where ship or goods are deteriorated to more than a moiety of their value. But we are not without direct authority. In the case of Whitney v. N. Y. Fireman's Ins. Co., (18 John. 210,) there was an abandonment upon an insurance on freight. The plaintiff recovered; and one reason assigned was, that a vessel could not be procured for half the freight valued in the policy to carry on the cargo. It may be safely asserted, that when the vessel is disabled, so that she cannot proceed on -the voyage, the insured on freight may abandon as for a total loss, when another ship cannot be procured for less than half the freight in the policy. The three cases of ship, cargo and freight, seem, to rest on the same principle. The master discharged his duty. ■ The shippers elected to receive the cargo. In this case they acted prudently in doing so; and the underwriters are not injured by the a6t. I

The plaintiff is, therefore, entitled to recover in both causes, as for total losses.

New trial denied in the first cause.

Judgment for the plaintiff in the second, on the verdict. 
      
       Itis understood, says Mr. Kent, to be a fixed rule, that if the ship be so in jured by perils as to require repairs to the extent of more than half her valuJ at the time of the loss, the insured may abandon; for if ship or cargo be dam agedso as to diminish their value above half, they are said to be constructive! lost. The rule came from the French law, and is to be found in the treatis of Le Guidon, (Condy, c. 7, arts. 1, 9,) where it is applied to the case oí goods; and in respect to both ship and cargo, the rule has been incorporate; into the American jurisprudence. (Valin’s Com. tome ii. 101; Pothier, de Ass. n. 121: Code de Commerce, art. 369.) There has been considerabl discussion in the text books, as to the right to abandon, when a part onl of the property insured is damaged above a moiety, or lost, and this will de pend upon the manner in which it is insured, if the insurance be upon di: fe rent kinds of .goods indiscriminately, or as one entire parcel, it is thpn a insurance upon an integral subject, and an abandonment of part only cannc be made. But if the.^rticles be separately specified and valued, it has beej considered so far in the nature of a distinct insurance on each parcel, thii the insured was allowed to recover as for a total loss of the damaged parcej when damaged above a moiety in value. Mr. Phillips has suggested a doul whether this distinction be well founded. The rule was taken from tt French treatises, and unless the different sorts of cargo bo so distinctly si parated and considered in the policy, as to make it analogous to distinct ii surances on distinct parcels, there cannot be a separate abandonment of | part of the cargo insured, Guerlain v. Columbian Ins. Co., 7 Johns. Re 527.
      The meaning of the words in the rule, 11 one-half of the value,” has bet held to be, the half of the general market value of the vessel at the time c the disaster, and not her value for any particular voyage or purpose. (Bralie v. The Maryland Ins. Co., 12 Peters, 378.) The expense of the repairs the port of necessity, including the expense of getting the ship afloat, stranded, is the true test for determining the amount of the injury, and su snm is to be taken as will fully reinstate the vessel, and, in general, witht same kind of materials of which she was composed at the time of the disasb It has also been considered that the three objects of insurance, vessel, car and freight, stand on the same ground as to a total loss by a deterioration more than one-half of the value. (Center v. American Ins. Co., 7 Cowen Rep. 564.
      In ascertaining the value of the ship, and the quantum, of expense or jury, difficulties have arisen, and they were fully discussed, and very clea plained, (in Peele v. Merchants' Ins. Co., 3 Mason’s Rep. 10, 18.) The valtion in the policy is conclusive in case of a totalloss; but in some respects, is inapplicable for the purpose of ascertaining the quantum of injury in se of a partial loss of goods. The rule in that case is, to ascertain the icunt of injury by the difference between the gross proceeds of the sound d damaged goods. (Johnson v. Sheddon, 2 East’s Rep. 681.) This is also e true rule as to the ship, though there is greater difficulty in the applieain. The value of the ship at the time and place of the accident, is the le basis of calculation. (Patapsco Ins. Co. v. Southgate, 6 Peters’ U. S. Rep. 604.) Aijd with respect to the arbitrary and fluctuating rule as to the owance of one-third new for old, there is no doubt of its application in ses of partial loss; but such a deduction is not allowed, and does not apply I cases of total loss. (Peele v. The Merchants' Ins. Co., 3 Mason’s Rep. 28, , 77.) The reason of this allowance to the underwriter, one-third of the pense of the reparations, is on account of the better condition in which 3 ship is put by them, than she was when insured, and the owner, when comes again into the possession of his vessel, receives the benefit of the pairs. But neither the reason of the rule, nor the rule itself, applies to the se of a ship suffering a partial loss on her first voyage, when she is new, d cannot be made better by repairs. (In Pirie v. Steele, 8 Carr. & Payne, 200.) ie half value which authorizes an abandonment, is half the sum which the ip, if repaired, would be worth, without any such deduction. (Lupuy v. Ins. Co., 3 Johns. Cas. 182.)
     
      
       It has been a very controverted question, says Mr. Kent, (3 Com. 333, et seq.) whether an abandonment of the ship transferred the freight in whole or in part. It was finally settled in the jurisprudence of New York and of Massachusetts, and adopted as the true rule in the Circuit Court of the United States for Massachusetts, that on an accepted abandonment of the ship, the freight earned previous to the disaster was to be retained by the owner, or his representative, the insurer on the freight, and apportioned pro rata itineris; and that the freight subsequently earned went to the insurer on the ship. (United Ins. Co. v. Lenox, 1 Johns. Cas. 377.) In the case of (Armroyd v. Union Ins. Co., 3 Binney’s Rep. 431,) the question was raised, but left undecided, whether the entire, or only a pro rata freight, in such a case, went, on abandenment, to the insurer of the ship. This litigated question has now been settled in England; and in (Case v. Davidson, 5 Maule & Selw. 19.) where ship and freight were separately insured, and each subject abandoned as for a total loss, it was adjudged that the abandonment of the ship transferred the freight as an incident to the ship, and that an abandonment was equivalent to a sale of the ship to the abandonee. The French jurisprudence on this subject has been equally embarrassing and unsettled. The ordinance of 1681 had no textual regulation relative to freight, in cases of abandonment. It was left to the decisions of the tribunals, and they denied to the insurer on the ship any freight for the goods saved. Yalin exposed the error, (Com. liv. 3, tit. 6; Des Assurances, art. 15,) and maintained that freight on abandonment, whether paid in advance or not, ought to go to the insurer. In 1118, it was settled at Marseilles, under the sanction of Emerigon, that freight was an accessory to the ship; and in abandoning the ship, the freight acquired during the voyage went with it. (Emerigon, tome ii. 217, 227.) The ordinance of 1119 followed that doctrine, and declared that acquired freight already earned on the voyage, was insurable, and did not go with the ship on abandonment, but tliat the future freight to be earned on the goods saved, would go to the insurer, if there was no stipulation to the contrary m the policy, save the wages of seamen and bottomry liens. The new code (Code de Commerce, art. 386,) declared that the freight of goods saved, though paid in advance, went, upon abandonment, to the insurer on the ship. The construction given to the code by the royal court at Rennes, in 1822, in the case of (Blaize v. Company of General Assurance at Paris, was, that the future freight did not go to the insurer on the ship, but only the freight on the goods saved and already earned at the time of the loss. (Boulay Paty, tome iv. 397, 417)
     