
    Isaac Bradlie and John Gibbons, plaintiffs in error v. The Maryland Insurance Company.
    Insurance. By the well settled principles of law, in the United States, the state of the facts, and not the state of the information at the time of the abandonment, constitutés the criteridn by which is to be ascertained whether a total loss has occurred or not, for which, an abandonment can be made. If the abandonment when made is good, the rights of the parties are definitively fixed; and do not become changed by aiiy’subsqquent events. If, on the other hand, the abandonment when made is not good-, subsequent circumstances will not affect it, so as retroactively to impart to it a’validity which it had not at its origin.
    In cases where the abandonment is founded upon a supposed technical total loss,-by a damage of injury, exceeding one-half of the value of the vessel;' although the foot of such damage or injury must exist at. the, time; yet it is necessarily open to proof, tobe derived from subsequent events. Thus, if the repairs, when subsequently made,’ clearly exceed the half value, it is plain that this affords one of the best proofs of the actual damage of injury. On. the other hand, if the subí equent repairs are far below the half value, this, so far as it goes; .affords an inference the other way. In manj' cases of stranding, the state of the v’essel may be such, from the imminency of the peril, and the apparent cost of expenditure^ requisite to deliver her from it, as to justify’an abandonment;1 although, by some fortunate occurrence,she may be delivered from her peril without an actual expenditure of one-Half of her.value, after she is in safety. Where, in the circumstances in which the vessel then may have been, in the highest "degree of probability the expenditures to repair hor would dxceed half her value, and if her distress and peril be such>as would induce a considerate owner, uninsured, .and upon the spot, to withhold every ’attempt’ to get the vessel off, because .of such apparently great expenditures; the abandonment wou)d doubtless be good.
    In respect to the mode of ascertaining the value of the ship, and, of course, whether she is injured tp the amount of half her value, it has, on .the fullest consideration^ been, held by this Court; that the true basis of the’ valuation, is the value of the ■ ship at the time of the disaster; ana that if after the. damage is, or might be repaired, the ship is not, or would not he worth at the place of repairs, double the cost of repairs, it is to be treated as a technical total loss.
    The valuation in the policy, or the value at theihome port, or in the general market of .other ports, constitutes no ingredient in ascertaining whether the injury by the disaster is more than one-half of the value of the vessel, or not. For the like reason, the ordinary deduction in case of a partial loss, of "one-third .new.for old,” from the repairs, is equally inapplicable to cases of a technical total loss, by an injury exceeding one-half of the value, of the vessel.
    The mere retardation of the voyage, by any of the perils insured against, not amounting to, or producing a total incapacity of the ship eventually to perform the voyage; cannot, upon principles well established, be admitted to eonstitute a technical total loss, which.will, authorize an abandonment. A retardation for the purpose of repairing damage from the perils insured against, that damage not exceeding one moiety of the value of the ship, falls directly within this doctrine. Under ■such'circumstances, .if the ship'can be repaired,'and is repaired, and is thus capable of performing, the voyage, there is no ground of abandonment founded upon uie consideration that the voyage may not be worth pursuing, for the interest of the ship owner; or that the cargo has béen injured- so that it is not worth transporting further on the voya^e: for the loss of the' cargo for the voyage', has. nothing to do with the insurance upon the ship for the voyage-
    An insurance on time, differs, as .to this point, in no essential manner from on«,upon-a i- particular voyage; except in this, that in the latter case, the insurance is upon a specific voyage described .in the policy; whereas a policy bn time, insures no specific voyage, but it covers'any voyage or 'voyages whatsoever,; undertaken within, and not -exceeding, in point of duration, the linrited period for which the insurance is made. But fit does not contain an undertaking that any particular voyage shall.be ' performed within a-particular period. It warrants nothing as to an, prolongation or'retardation ofthe voyage; but only that the ship shall be capable of performing the voyage undertaken, notwithstanding any loss' or injury which may accrue te her during the time for which.she is insured; and of repairing it, if interrupted. ■
    There is ho, principle of law which makes the., underwriters liable in the case of. a merély partial loss of the ship, if money is. taken up in bottomry-for the necessary 1 repairs and expenditures, and which makes it the duty of the underwriters to'de'liver the, ship fro'm. the bottomry bond to the extent of .their liability for the expenditures; and that if they'do not, and if the-vessel is sold under the bottomry, bond, they are liable, not only for the partial loss, but for all other'losses to the - owner, for their neglect. ' . -
    The underwriters engage to'pay tfie amount' of the expenditures and losses directly flowing from the perils insured against; but not any remote or contingent 'losses to the owner, from their neglect to pay the same.
    The underwriters are not bound -to supply funds in ,a foreign port, for' the repairs of any damage to the' ship occasioned by a peril insured against. They undertake,only, to' pay the amount, 'after due notice', and proof of the loss, arid within a prescribed lime-
    If, to meet the expenditures for repairs,' the master is compelled to take up money' on bottomry, and therebyan additional premium becomes payable, that constitutes a part of the loss for which the underwriters are liable. But in cases of partial loss, the money is not taken up dn account of the underwriters, but of the owner; and they .become liable for the loss,-whether the bottomry bond ever becomes due and payable, or not.
    In the ease of a partial loss, where money is taken up on bottomry bond, to defray the expenditures ofirepairs, the underwriters have nothing to do with'the ¡bottomry ■ bond; bút are .simply bound to pay the partial loss,-including their share of the ' extra expenses of obtaining the money in that mode, as a part of the loss.
    IN error to the- circuit court of the United States -for the district of Marryland.
    The case, as stated in the opinion of the Court, was as follows:
    The original action was upon a policy of insurance, dated the 22i of November, 1832i, whereby the defendants, the Maryland Insurance Company, caused. the plaintiffs, by their agents, .(William Howell & Son,) 'o be insured, lost or not lost, ten thousand dollars, at a premium oí four per cent,, on the brig Gracchus,. Snow, master, (valued at that sum,) at and from Baltimore, for six calendar months, commencing that day at noon; and if she be on a passage at the expiration of the time, the risk to continue; at the same rate of premium, until her arrival at the port of destination. The declaration alleged a total loss by the casting ashore and stranding of the brig, on the 23d of March, 1833, in the river Mississippi. Upon the trial of the cause, it appeared in evidence that the brig sailed from Baltimore on a voyage to ‘New Orleans, and safely arrived there, and took on board part of cargo, (pork and sugar) at that port, on a voyage-for Baltimore; and about the middle of’the 23 d day of March, 1833,-• sailed from New Orleans, intending to proceed to Sheppard’s plantation, on the river Mississippi, about thirty-three miles below New Orleans, to take in the residue of her cargo for the same voyage. ' At the English Turn, about twenty-two miles from New'Orleans, thé brig attempted to come to anchor, and in so doing lost the small bower anchor; and then dropped the best bower anchor; which brought her up. The next morning, while the brig was proceeding .on her voyage; she struck on a log, broke the rudder pintles, when she fell off and went on shore. A signal was then made for a steamboat in sight, which (iame to the .assistance of the brig, and in attempting to haul her off, the hauser parted. It was then found, that the brig was making water very fast; help was obtained from a neighbouring plantation. They commenced pumping and discharging the cargo on board' of the steamboat; and after discharging all the pork, and a part of the sugar, they succeeded in freeing the ship' on the afternoon of the same day. She was then got .off, and proceeded to New Orleans, where, she arrived the saíne night;, she continuing to.leak, and both pumps being kept- going all the time- The next day, the master understood that the steamboat claimed a salvage of fifty per cent., and intended to .libel for it. • On the 27th of the same month, the brig was taken across the river for repairs. ' On the same day the brig was libelled for the salvage, in the district court of Louisiana.
    On the 25th of March, Snow, the master, wrote a letter to .one of the owners, containing an account of the loss and state of the brig; and. also of the claim by the-salvors of fifty per cent., which the underwriters on the cargo and himself had objected to; adding, that they should hold the steamboat liable for any damage that.might be incurred' on account of the detention.
    The following is a copy of the letter.
    
      VNew Orleans, 25th March, 1833.
    “ Isaac Bradlie, Esq., Seaford, Delaware. •
    “Dear Sir: — I left here on the 23d inst; to go thirty-six mile3 below, to' complete loading the. brig with sugars, for Baltimore; oh the evening Of' the same day in coming to in the English Turn, in a heavy blow from thé S. E., parted .the small bower cable, and lost' the anchor. I then let go .the best bower, which brought her up, where wé lay during the night; in the morning of the 24th, got under way and proceeded down the river; at 7 A.'M., struck on a log, broke the-rudder pintles, the brig fell off and went on shore. I then made a signal for a. steamboat which was in sight; she came to our. assistance and attempted to pull us off, but the hauser'parted; we then found that the brig was making water very, fast, and that she would so’on fill; got thirty odd negroes from a plantation, and commenced pumping, and discharging the cargo On board of the steamboat; after discharging all of the’pork and the greater part of the sugar, we succeeded in freeing of her, at 5 P. M.; we then got her off and proceeded up to town, where we arrived at 11 P. M. The owners of the steamboat claim a salvage of fifty per cent, on vessel and cargo, which.the underwriters of the cargo, with myself, have objected to: we have not been able to discharge the balance of-the cargo to-day; what the consequence will be I cannot say. We hold the owners of the steamboat liable for any damage that may occur on account of the detention; the brig continues to leak so as to keep both pumps going almost constantly. About one-half of the sugar is damaged. I have noted a protest and had a survey, and shall proceed to have every thing done in the most careful manner, as the survey may direct, for the interest of all concerned: as soon as I am able to inform you of what will be done, I will do so by-the. first opportunity.”
    On the 22d of April, Messrs. Howell & Son addressed a letter to the company, submitting the letter of the 25th of March to the company; and say therein, “ In' consequence of the damage, together with the detention that must grow out of a lawsuit, (in which it appears that the vessel is involved,) the voyage being broken up, we do hereby abandon to you the brig Gracchus, as insured in ^our office •per policy No. Í3,703, and claim for a total loss.” On the same day, the'company returned an.answer, saying, “We cannpf accept the abandonment tendered in your' letter 'of this date; but expect, you to do what js'necessary in the case for the safety and relief of the vessel.”
    ' .On the 9th of the ensuing.May, the district court decreed one-quarter of the value of the vessel and Cargo, (estimated atseven thousand .dollars) as salvage; the brig being valued1 at twenty-five hundred dollars. On the 14th of the same month, the master got possession again of the brig, the salvage having been paid. On the 3d of ¡June, 1833, the brig was repaired and ready for-a,freight;,,and early in July she sailed for Baltimore, with a partial cargo on board, on freight; and duly arrived there in thé latter part of the same month. The repairs at New.Orleans .amounted to the sum of on,e thousand six. hundred and ninety dollars and fifteen cents; and the share of the brig, at the general average of salvage, to the ’ sum of one thousand two,.hundred and forty-five dollars and seven cents; in the vahóle amounting to two thousand nine hundred and thirty-five dollars .and twenty-two cents. To meet this sum, and some other expenses, .the master ¡obtained an adyance from Messrs. Harrison, Brown & Co.,,of New Orleans, of three thousand' seven hundred and fifteen' dollars and forty-one "cents, and gave them as security therefor, á bottomry bond on the Gracchus, for the principal sum, and five per cent, máritiipe premium, payable on the safe arrival of. the brig at Baltimore.
    • On this bottomry, bond, the brig was libelled in' Baltimore, and no claim being' interposed by- any person, she was, by a decree of the district epurt of Maryland, on the 5th of September, 1833, ordered, to bé. sold'', to satisfy the.bottomry-bond; and she-was accordingly sold by. the marshal, ábout the,20th of the same month, to John B. Howell, for four thousand seven hundred and fifty dollars;' who, oh the 24th of the same month, paid to the attorney of the libellant , the full amount due. under the decree of-the court. On > the same day •the president of the company addressed a letter to Messrs. Howell & Son, in which they say, “We have ■ examined the,statements of general and ■ particular • average, and the accounts- relating thereto, vdiicli you handed us some days ago, respecting the expenses, incurred on the brig Gracchus, at New Orleans. Although some of the charges are of a description for which the company is not liable by, the terms of their policy, yet. wishing to act lib .ally in the casé, .we have agreed to,admit every itehi in the. accounts, and the differ-, ent amounts will be as follows.” Here follows a statement, deducting from the repairs one-third new for old, and admitting the sum of two thousand four, hundred and nine dollars and eleven cents to be due to .the plaintiffs, and enclosing the premium note and a check for the amount. • The letter then adds, “ If you find any other charge, &c. has been paid at New Orleans, in order to raise the funds on bottomry; we will1 pay our full proportion of the same, upon'being made acquainted with the amount;” On the same day Messrs. Howell & Son returned an answer, refusing to receive ihe premium note and .check, adding, “We should do them (the owners) great injustice to, make ■ such a settlement. Our opinion is, that in law and equity, they have a claim for a total loss.”
    Thésé are the principal facts material to be mentioned;.though much other evidence was introduced into the cause upon collateral points, b,y the parties.
    'Th,e counsel for the defendants, after the evidence on each side was closed, moved the court tó instruct the jury as follows:
    Defendants’ 1st Prayer. — The, defendants, by their counsel; pray the court to instruct the jury that the notice of abandonment of the 22d April, 1833, and the accompanying letter from captain Snow, of the 25th of March, as given in -evidence by the plaintiffs, do not show or disclose facts which in law justifies the offer to abandon then’ made; and therefore,.that- in the absence of all' evidence that said abandonment was accepted by -the • defendants; the plaintiffs are entitled to recover only for a partial loss.
    2: That if the said notice of abandonment was sufficient, still the jury ought to find a verdict’ for a partial loss only; unless they shall believe from- the-evidence, that the Gracchus suffered damage from the accident.'that,befel her on the 24th March, 1833, to more than one-half the sum at'which she was valued in the policy: and that in estimating said damage, the jury ought to take the cost of her repairs only, deducting one-third therefrom, as in the case, of adjusting a partial loss.
    3; That if the said abandonment was sufficient, as is assumed''in the preceding prayer, still the jury ought to. find a verdict for a partial loss only; unless they shall believe upon the evidence, that-the' dámage so sustained by said brig exceeded in amount one: half the-sum. at,which she was valued ip the. policy; and that in estimating the. cost- of her repairs for the parpóse of ascertaining the amount of such damage, the jury are bound to deduct one-third therefrom, as in the case of a partial loss.,
    4; That if said, abandonment was sufficient, still' the jury ought to find a. partial loss only, unless they shall believe that the damage as aforesaid was- more than one-half the value of the said brig, at the time the'a&bident happened, according to the proof of such value as given in evidence", arid that in estimating the amount of such damage, the jury are to take thé amounts of the general and particular averages as adjusted at New Orleans, deducting one-third from the actual co'st of repairs.
    But the court refused to give the instructions prayed for, and gave tq the jury'the following instruction: If the jury find from the evidence, that,the Gracchus was so damaged by the disaster mentioned in the letter of captain Snow, of March ¿5th, 1833, that she could not be got off and repaired without an expenditure of money to an amount exceeding half her value, at the port of New Orleans, after srich repairs were made, then the plaintiffs aye. entitled to recdver for a total loss, under, the abandonment made on the 22d day of April, 1833; and in ascertaining the amount of such expenditure, thé jury must include the sum for which the brig was liable to the salvors, according to the decree of the district court of Louisiana, stated in the evidence: but if the jury find that the vessel could have been got off and repaired, without an expenditure of money to the amorint of riiore thari half her value; then, upon the evidence offered, the plaintiffs are not entitled to recover for a total loss, on the ground that the voyage was retarded or lost, nor on account of the arrest and detention of the vessel by the admiralty process, issued at the instance of the salvors.
    The defendants excepted to the refusal of the court to give the instructions prayed; and also to the opinion actually given- by the court in their instructions to the jury. The plaintiffs also excepted to the same opinion given' oy the court.
    The plaintiffs also prayed “the court to direct the jury, that in this cause the insured, by their letter of the 22d April, authorized and required the proper expenditures to be made upon the vessel, for which said underwriters are liable under their policy: that no funds being supplied by them in New Orleans to meet this loss; and the salvage and repairs having been paid for by money raised upon respondentia- upon the vessel; if'the jury shall find that said vessel, under the lien of this bond, came to Baltimore, and the defendants were then apprized of the existence of such respondentia, and were also informed of the-existence of, the-proceedings thereupon against said vessel, and they neglected' to-pay so much thereof as they ought to have .paid to relieve said vesselj. and omitted to place her in the hands óf thé owners, discharged of so'much of such hotiomiy' as the underwriters were liable for, and in consequence thereof, said vessel was libelled and condemned and .sold, and thereby Wholly lost to the plaintiffs; then the plaintiffs are entitled to recover for the whole value of the vessel.”.
    The court refused to give this instruction and the plaintiffs excepted to the refusal; and the court, signed a bill Of' exceptions upon both exceptions. The jury found a verdict for the plaintiffs for thrée thousand four hundred and eighty-nine dollars and twenty-two cents;, upon which judgment-passed for the plaintiffs. And-the present writ of error is brought by the plaintiffs for the purpose of reviewing the instructions above stated, so far as they excepted thereto.
    Although the prayers for the instructions by the defendants are not before the Court for the purpose of direct consideration; as the defendants .have-, brought no .writ of error; yet it is impossible completely to understand the nature and extent'and proper construction of the opinion given by the court, withoüt adverting to the prepositions contained-in them; for to thém, and to them only was the opinion1 of the'eourt gi-ven as a response*
    1 The second instruction asked-by the defendants, in substance insisted, that to. entitle the plaintiffs to recover for a total loss the damage to the Gracchus from the accident.shoúld be mdre than one-half .the sum at which she-was valued in. the.policy; and that in estimating the damage, the costs of the repairs only were to he. taken, deducting one-third new for old. In effect, therefore, it excluded all consideration of the salvage, in the ascertainment of the loss.
    The third instruction was, in substance,'similar to the second, except that it -did not insist upon the exclusion of the salvage. In effect, therefore, it insisted, upon the valuation in the' policy, as the standard- by'which to ascertain whether the damage was half the value of 'the.Gracchus, or not,-.
    The fourth instruction insisted, that to entitle the plaintiffs to recover for a total loss, the damage must exceed one-half the value of the Gracchus at the time of the accident; and that in- estimating the - damage,'the general-and particular averages, as adjusted at New On-leans, were to be taken, deducting one-third new .for old. In effect, therefore, it insisted that nothing but'these adjustments were .to be taken into , consideration; ip ascertaining the totality of the loss at the time of the abandonment; (admitting the abandonment' to be sufficient;) however imminent might be the "dangers, or. great the losses then actually impending over.the Gracchus. And' all three of these prayers further, insisted, that the deduction of one-third new for old should be made-from the amount of the. repairs, as in the case of a partial loss; in ascertaining whether there' was a right to abandon for a total loss, upon .the ground that the damage exceeded a moiety of the value of the vessel.
    The jury found a. verdict fo.r the plaintiffs for a partial loss, assessing the damages at three thousand four hundred and eighty-nine dollars and twenty-two cents', upon-which the court gave a judgment: on, this judgment the.plaintiffs entered-a credit for four hundred and eighty-five -dollars arid twenty-two .cents, the amount of the premium note, and interest." The plaintiffs -prosecuted this writ of error.
    The case was argued by Mr. Johnson for the plaintiffs in error: and by Mr. Meredith'-and Mr. Stewart for the-defendants,
    Mr. Johnson contended that the judgment of the circuit court should be reversed, on the- following grounds:. ■
    First. That, under thq circumstances of the páse, the loss of the voyage, in which the Gracchus was 'erigaged, by-the peril she'sustained, entitled the plaintiffs;to recover for a total loss.
    Second. That the claim for salvage, and'the arrest and ¡detention of the brig consequent thereon, entitled plaintiffs to recover for such loss; and,
    .'Third. That the court erred in not granting the prayer in plaintiffs’ second exception.
    It is assumed that the'abandonment was'sufficient. The defendants objected to-its form; that no -cause, of a sufficient cause for. it was not assigned: but the court decided against these objections.'
    The instructions of the court, by .which the jury were authorised to allow, in the estábate of the loss, one-third of the cost of the- new for old, were altogether erroneous. The plaintiffs: claimed for;a technical, total loss, on the state of things at the time' of the abandonment. The validity of such a claim cannot be defaied, if at that time the state óf the facts was such as to-justify the abandonment. • This was in, truth such as - to induce the plaintiffs tó consider a tqtal loss as inevitable. ’ The letter of captain Snow,, of 25th March, upon • .Which the abandonment was made on the 22d.of April, 1833; showed that the salvors were about to proceed against the, vessel; and stated thaf they claimed fifty per cent, as their salváge. In 3, Kent’s Commentaries,'308, the authorities, on the subject of abandonment • ate summed up.
    The'value of the vessel was ten thousand dollars; for this sum. she .was insured. The1 whole sum received for her -was but about four thousand dollars. 'íhis is the best evidencé of the character of the loss sustained by the assured. -,
    What was the- situation of the vessel, from all the. information which had been deceived, on the 23d of April, 1833, when she was' abandoned? Was there not imminent danger of actual total loss: attached for salvage, ánd fifty per cent, claimed; and fhp voyage' broken up and destroyed? The instructions of the court, that the ' actual amount of salvage ultimately paid,.was to furnish the rulé to estimate the loss, were erroneous.- The probable loss, at the time of the, abandonment, is to .fix the fule for abandonment. -In-this the law of insurance in this country, and in Eñgland, differ.
    The loss of,the-voyage, by -the happeningof.one-of the perils injured against, was a good foundation for abandonment, and for a réCQvéfy-for a total loss. The vessel was on her home voyage from New Orleans; and was obliged to return to New Orleans by reason of the accident, and the course of the salvors. The voyage was thus' broken up. The libel for salvage, and the detention -of the-vessel for repairs, were destructive of the voyage.
    The voyage insured terminated on the 22d of May; and all the injury to the vess,el, and the detention consequent to it, were, within the period ■ of her protection by the insurance. Had the fifty per cent, claimed by the salvors been paid, no doubt of a technical total loss would have existed;, but the'master remained at New Orleans, as ft was his duty, and to which he was'bound by his obligations to the underwriters, to contest this claim; and this detention kept the vessel beyond the six months covered by the policy. Thus the detention Was within the policy. Cited 3 Kent’s Commentaries; 11 John,. 2,93; 2 Starkie’s Rep. 571.
    The insurance having been on time makes no difference in estimating-'her. loss. It was an insurance of the vessel on her voyage, and during the'time;, and a guaranty that the vessel should have the physical ability,.during that time, to continue'the voyage.
    
      The detention of the vessel after the accident, gave a full and legal .right to abandon; The. detention was one of the sea-. risks.insured against,, and' all legal detentions were within the. policy.
    It is-also contended that the underwriters were bound to. pay -the bottomry bond executed- at New. Orleans, for the repairs of the vessel, the salvage, and the expenses.. The underwriters were- certainly liable to pay the. whole of these- charges; and by neglecting to do so, the vessel has -been sold and taken from her owners. Thus a total loss has resulted.
    It is admitted that a detention. of ,a vessel insured,, by admiralty process is'not a cause of abandonment, when such detention is for some cause not coming within any of the risks-of the • policy; but in this case, the. detention was on account, of one of the perils insured .against. Thus the loss of the voyage ,has resulted from one of the perils insured against.
    Mr. Stewart an4 Mr. Meredith fpr the defendants,
    denied that there was any error in the instructions of the-circuit court;
    Insurance-is a contract for indemnity; ánd.this contract- is fully carried out by .the verdict' of the jury. The jury have given the plaintiffs all they paid as salvage, and all the costs and expenses of the repairs consequent, to the injury sustained .by the vessel. .But it is contended, by the plaintiffs, that the-;adventure ip which the vessel is engaged, the voyage, and its results,-upon which the vessel is proceeding, is,'a part of the Contract fqr protectión by the underwriters; This is not the nature of insurance. The underwriters-ape only -liable for the perils insured.
    Assuming- the principle to be,, in -the United States,-that underwriters are liable for the-state of theloss at the time of the-abandonment;- there was n.o ground for the abandonment when the- letter from captain Snow was received. The circumstances stated in that letter do .not warrant the allegation' that technical total loss had occurred. The • vessel -had suffered injury; she had been rescued from- greater loss by the. stpamboat; she bad been, carried'tp New ■Orleans, and,fifty per cent, was claimed as .salvage; b.ut'the justice of this claim was denied, and it was to be contested.
    With this letter, the insur.éd and the underwriters. were in possession of all the facts; and the claim of fifty pér cent, as salvage, must have been seen to be unreasonable and unjust. It exceeded the usual charge for the use of a steamboat on the Mississippi, which. Was .known-to be at the rate of ten dollars per day. There was not then, a probability that a technical total loss existed at that- time'; and subsequent circumstances showed that no loss, for which, the assurers were liable, had occurred to the extent of -fifty per cent, on the value of the vessel. If -the appearance of events,, when' the letter from captain. Snow was received, authorized’ the expectation that thé loss would amount to fifty per ceht.-; thé underwriters have a right to look at subsequent circumstances, to decide what was the real condition ofithe vessel at.that time.
    The .Court will find, by -a reference to the whole of the facts in the case, there was no foundation for the claim for a technical -total loss. No damage had been sustained, which would support such a claim-
    •The whole cost of the repairs of ,the vessel,- and thé amount of sal- ’ vage allowed by thé’ court, amounted together, to two-, thousand- nine hundred and thirty-five dollars; The.-orders fot insurance show that the-Gracchus was- valued at ten or twelve thousand dollars.' At New Orleans, .the Gracchds wag- Worth - eight thoiisand five hundred .dol-r lars’. The .captain, was offered that sum for her; and he said he Would tafee nine thousand- dollars-- . Thus, she -was, worth .at New Orleans-and at Baltimore nearly thé same suju, an,d ther.é was hó'approximation to-half of her value by the-actual loss.
    To proceed to the points made for the defendants, in-the Circuit court
    The court instructed the jury, on the points submitted by the defendants.
    If the .jury .find from the, evidence .that the Gracchus was so-’ damage.d by.the disaster.-méntioned in thé letter of captain Snow, o'f March 25th', 1833, that she, could not be got off and repaired without an.expenditure-of modey to an amount exceeding half her. value, at. the port of New-Orleans] after such repairs were made; then the plaintifls are entitled to recover- fór a total loss, under .the abandon* ■ ment. made on the 22d day of April,-1833;'and in ascertaining the ■amount, of’ such- expenditure, the jury must .¡include, the sum for Which the brig was liable’ to the salvors, -according. to the decree-of the. district court- of Louisiana, stated in the eyidencé; but if the jury find that the vessel could -have been got off ¿nd repaired without an -expenditure of money to.thé amount of more ihan half her Value, then upon the evidence, offered the plaintiffs, are not entitled.to ,re-coven for, a total loss, on -the ground that the voyage was. retarded or lost, nor on account of the arrest and detention of the vessel by the admiralty process issued at the instance of the salvors.
    ■ The question was whether the amount of repairs, arid the salvage was half the valué of'the vessel at New Orleans, giving the assured the'benefit in the estimate of the amount of the salvaga ■ Is this an open question in this Court? The policy expired on the 22d of May,' 1833. How far is this point settled in the case of Alexander v. The Baltimore Insurance Company? 9'Cranch, 370; 2 Cond.Rep. 143.
    In that case Mr. Chief Justice'Marshall says, that it. has been decided that the state of the fact must concur with the information to make the abandonment for a technical total loss effectual. Cited, also, Ambler’s Rep. 214; Ch. Justice'Wills’ Reports, 641,-644.
    •, As to how this question has been considered in England,.cited 2 ,Maulé.& Seiwyn, 240, 247,; Idem. 278, 286, 290, 293;-4 Maulé & Seiwyn; 393; 5 Maulé.& Seiwyn, 47; Goss. v. Withers, 2'Burrows, 67; Hamilton v. Mendes, Burrows,. 1212. ■
    ■ The perils in the policy do riot inelude- the loss no.w set up by the plaintiffs;-arid there is no express assumption to insure against the kiqd of detention for which the loss is now claimed, ■ „ It must be derived from implication, and must be a consequence of the contract between the parties to the policy of insurance.
    There was no evidence in the cáse that the underwriters had been called upon to pay the bottomry bond.and prevent the salé of the vessel;' nor was any demand made on the underwriters to pay for the repairs of the vessel. The assured claimed a total loss, and did not proceed as if they held the underwriters liable toany thing but. the whole amountof the .policy. Cited, Da Costa v. Newnham, 2 Term Rep; 407; 2 Barnwell & Aid. 513; 3 Mason’s C. C. R. 429'.-'
    It is denied- that the assured-have a right- to abandon as for a total loss upon'a mere probability of. a loss which will exceed fifty per cent. This yiew of the .rights of' the assured rests only on the suggestión óf Lord Ellenborough. There must be a certain subsisting loss when the abandonment is made, exceeding-fifty per cent.
    . It is not admitted that the right to abandon -for breaking up of. a v'oyage applies to an insurance on time: Hughes on "Insurance,'300, 311, 314: . Smith on Mercantile Law, 17 yol. of the Law Library, 143. The insurance on time is that the -vessel shall be able- to proceed on the voyage driring the time, and to pay the damage she may sustain during that time. It-is no contract'for the voyage] or against interruptions which rest upon it, other than such as are within the perils insured against.. 1 Johns. Cases, 293,-294;' 5 Serg. &• Rawle, 501; .2 Taunton,,3.62.
    This voyage was hot broken up or defeated: and the jury have found that thé injury sustained, by .the vessel did not amount to fifty-per cent; of hér value. The finding of the jury is conclusive on this matter.
    The arrest and detention of the vessel by admiralty process- for salvage, did not furnish grounds .for the-abandonment. The vessel remained in ..the possession of the captain. It was a mere obstruction of the voyage, or a detention of thé vessel, which might have been removed, and for. which the captain was bound, to relieve her. Hé had, ás has been stated, the means to-do this; there was no evidence to show that he made any exertions to do .this. Cited 2 Wash. C. C. R. 331; 3 Kent’s Commentaries, 304. There is no special claims in'the policy'which includes tfie loss, and it must then come within, that which proceeds agaipst perils of the sea. But by no reasoning can the' loss be 'made to amount to fifty per .cent, from perils of the sea; Cited 5 Maulé & Selw. 434; -3 Mason, 437. Cited, also, 21-Serg;. & Lawber’s English Com. La,w Rep. 41. .
   Mr. .Justice Story

delivered the opinion of the Court:

This Cause- pomes before t'he Court upon a writ of error to the circuit court of. Maryland district. The original action was upon a policy of insurance dated the 22 d of November, 1832, whereby the defe'hdahts, The. Maryland Insurance- Company, caused the plaintiffs by thpir ágents, (William Howell’& Son,) to be insured, lost or not’ lost, ten, thousand dollars, at á premium of four per cent.,- on the brig Gracchus; Snow", master, (valued at that sum,) at and from Baltimore,for six calendar months, Commencing that day at noon; and if she be on a’passage at the expiration of the time, -the risk to continue at the same; rate of premium., until her - arrival at the port of destination. The declaration alleged a total less by the casting ashore and stranding of the brig on.the 23d of- March, 1833, in the river Mississippi. Upon the’ trial of the cause, it appeared in evidenóe, that the brig sailed from Baltimore on a voyage to New Orleans, and safely arrived there; and took on board part of her cargo, (pork and sugar) at that port on a voyage for Baltimore; and about the middle of the 23d.day.of March, 1833, sailed from New Orleans, intending to proceed to Sheppard’s plantation, on' the river Mississippi, about thirty-three miles below New Orleans, to take in the residue of her cargo for tbe same voyage. At the English Turn, about twenty-two miles from. New Orleans, the brig attempted to come to anchor, and in so doing lost the small bower anchor; and then dropped the'best bower anchor, which brought her'up. The' next, morning,-While the brig was- proceeding on her voyage, she struck on a log, broke the rud.der'pintles, when she fell off and went on shore. A signal was then made for a.steamboat in sight; Which came to the assistance'of the brig; and in attempting to haul her off the huuser parted. It was then found' that the brig was making water very fast'. Help was obtained from a neighbouring plantation. They commenced pumping and discharging the.cargo' on board of the steamboat;-and after discharging all the pork, and a part'of the sugar, they succeeded in' freeing the .ship on the afternoon of the same- day.' She was then got off and proceeded to New Orleans, where she arrived the same night; she continuing to. leak, and bo.th pumps being kept, going,.all -the time.' The next day the master understood that the steamboat' claimed a salvage,of fifty per cent.,-and intended to'libel for it., Q.n the'27th; .of the same month the brig was .taken - across.the river for repairs. On the same day the br,ig was libelled for the-salvage in the district court of Louisiana.

On the 25th of March, Snow, the-master, wrote a lettér to one of the owners, containing an account o'f the, loss and state of the brig;- -and also of the claim by the salvors of fifty per- cent., which the underwriters on the cargo, and himself had objected to-: adding th# they should hold the steamboat-liable for any damage.that.might be incurred on account of -the detention.

'On the 22d'of April, Messrs.-Howell & Sons addyessed a lettér-to the company, submitting the letter.jof the 25th'of March to the ctímpany, and say therein: “In: consequence of'the'damage,.-together with the detention that must' grow out of a lawsuit, (in which it appears that the vessel is involved,) the voyagf being broken Up; we do hereby abandon'to. you the brig, Gracchus, as insured in your office, per policy No. 13,703, and claim for a total loss.” .On thé same day the coinpatiy returned am-answer; saying: “We cannot accept the abandonment tendered in your letter of this date; but expect you to do what-is necessary in the case,- for the safety and relief of the vessel.’-’

On the 9th of the ensuing May,-the district court decreed one-quarter of the.valii.e 'of the vessel and cargo (estimated at seven thousand dollars) as salvage; the brig being valued at two thousand five' hundred dollars. .On the 14th of the same month the master got possession again of the brig, the salvage having'been paid. On the 3d of June, 1833, the brig was repaired and ready-for a freight: and early in July, she sailed for Baltimore, with a partial cargo on board on-freight; and duly arrived there in the latter part of the same month. The repairs at New Orleans amounted to'the sum of -one thousand six hundred and ninety dollars and fifteen cents; and the share of the brig, at the general average or salvage, to the sum of one thousand two hundred and forty-five dollars and seven cents; in the whole, amount-? ing to two thousand nine hundred and thirty-five dollars and twenty-two cents. To meet this sum and some other expenses, the master obtained an advance from Messrs. Harrison, Brown & Co., of New Orleans, of three thousand seven hundred and fifteen dollars and forty-one cents; and gave them as security therefor, a bottomry bond on the Gracchus for the principal sum, and. five per cent, maritime premium, payable on the safe arrival of the brig at Baltimore. .

On this bottomry bond the brig was libelled in Baltimore; and no claim being interposed by any person, she was by a decree of the district-court of Maryland, on the 5th of September, 1833, ordered to be sold to satisfy the bottomry bond; and she was accordingly sold, by the marshal about" the 20th of the same month; to John B. Howell,-for four thousand seven hundred and fifty dollars; and on the 24th of the same month there was paid to the attorney of the libellant, the full amount due under the decree of the court. On the same day, the president of the company addressed a letter to Messrs. Howell & Son, in which they say, “We have examined the statements of general' and particular average, and the accounts relating thereto, which you handed us some days ago, respecting the expenses incurred on the brig Gracchus, at New Orleans. Although-some of the charges are of a description for which the company is not liable by the terms of their policy; yet, wishing to act liberally in the case, we have agreed to .admit every item in the accounts, and the different amounts will b,e as follows.” Here follows a statement, deducting from the repairs one-third new for old, and admitting the sum of two thousand four hundred and nine dollars and eleven cents to be due to the plaintiffs; and enclosing the premium note, and a check for the amount " The letter then adds, “ If you find any other charge, &c., has been.paid at New Orleans, in order to raise the fund's on bottomry, we will pay our full proportion of the same, upon being nqatíe acquainted with the amount.” ' On the same day Messrs. Howell fc Son returned an answer, refusing to receive the • premium, note and check, adding, “We should do then} (the owners) great injustice to make such a settlement.' Our opinion is, that in law and equity, they, have a claim for a total loss.”

These are the principal facts material to be mentioned, though much other evidence was introduced into the cause upon collateral points, by the parties.

Thecounsel for the defendants, after the evidence on each side was closed, moved the court to instruct the jury as follows:

Defendants’ 1st Prayer — The defendants, by their counsel, pray the court to instruct the jury"that the notice of abandonment of the 22d April, 1833,- and the accompanying letter from captain Snow, of the 25th-of March, as given in evidence by the plaintiffs, do not show or disclose facts which in law justify the óffer to abandon then made; and therefore,-that in the absence of all evidence that said abandonment was accepted by the defendants, the plaintiffs are entitled to recover only for a partial loss.

2. That if the said notice of abandonment was sufficient, still the jury ought to find a verdict for a partial loss oply;- unless they shall believe from the evidence, that the Gracchus suffered damage from the accident that befel her on the 24th March, 1833, to more than one-half the sum at which she was valued in the policy; and that in-estimating said damage, the jury ought to take the cost of her repair» only, ^deducting one-third thérefrom, as in the case of adjusting a partial -loss.

3. That if the said abandonment was sufficient, as is.assumed .in the preceding prayer, still the jury ought to find a verdict for a partial loss only; unless they sh?ll believe, upon the evidence, that the damage so sustained by said brig exceeded in amount one-half the sum at which she was valued in the policy; and that in estimating the cost .of her repairs for the purpose of ascertaining the amount of such damage, the jury are bound to deduct one-third therefrom, as in the case of 'a partial loss.

4. That if said abandonment was sufficient,'still the jury ought to find a partial loss only; unless they shall believe that the damage as aforesaid was more than one-half the value of the said brig at the time the accident,happened, according to the.'proof of such value as given in evidence: and that in estimating the amount of such damage, the jury are to "take the amounts of the general- and particular averages as adjusted at New Orleans, deducting one-third from the actual cost of repairs.

But the Court'refused to give the instruction prayed for, and gave to the jury the following-instruction: If the jury find from the evidencé, that the Gracchus was so damaged by th'e'disaster mentioned in the letter of captain Snow, of March 35th; 1833, that she co^ild not be got off and repaired without an expenditure of money to' an amount exceeding hálf her value, at the port of-New Orleans, after such repairs were made; then the_plaintiffs are entitled to recover for' a total loss, .under the abandonment made on the 33d day of April, 183.3: and in ascertaining the amount of such expenditure, the jury must -include the sum for which the brig was liable to the salvors, according to the decree of .the district court of Louisiana státed in the' evidence: but if the jury find that the vessel could have been got off and ■ repaired, without an' expenditure • of money to- the amount of more than half her value, then-upon the evidence offered, the plaintiffs are not entitled to recover for a total loss, on the ground that the voyage was retarded or lost; nor on account of the arrest and detention of the vessel bv the admiralty process, issued at the instance of the salvors. -

The defendants excepted to the refusal of the court to give the instructions prayed: and also to the opinion actually given by the court in their instructions to the jury. The plaintiffs also excepted to the, same opinion, given- by the court.

. The plaintiffs also prayed the court to direct the jury, that in this cause the insured, by their letter of the 33d April,' authorized and required the proper expenditures to be made upon the vessel, for which said underwriters are. liable under their policy; that no funds being supplied by them in New Orleans to meet this loss, and the salvage and repairs having been paid for by money raised upon respondentia upon the vessel; if the jury shall find that said vessel, under the lien of this bond, came to Baltimore, and the defendants were then apprized of the existence of such respondentia, and were also informed of the existence of the proceedings thereupon against said vessel, and they neglected to pay so' much thereof as they ought to have paid to relieve said vessel; and omitted to place her in the hands of the'owners, discharged of so much of such bottomry, as the underwriters were liable for; and in consequence thereof,'said vessel was libelled arid condemned and sold, ¿md thereby wholly lost to the plaintiffs; then the plaintiffs are entitled to recover for the whole value of the vessel.”

The court refused to give - this instruction, and the plaintiffs' excepted to the refusal; and the court signed a bill of exceptions upoq both exceptions. The jury found.a verdict for the plaintiffs for three thousand four hundred ánd eighty-nine dollars and-twenty-two cents; upon which judgment passed' for the. plaintiffs. And. the present writ of error is brought by the plaintiffs for the'purpose of reviewing the instructions above stated, so far as they excepted thereto.

Although the prayers for the instructions by the-defendants are not before the Court for the purpose of direct consideration, as the defendants,have brought no writ of error; yet it is impossible- completely tq understand the nature and extent, and proper construction of the opinion given by-the court, without adverting to the propositions contained in them; for to them, and to them only was the opinion of the court given 'as a response.

The second instruction asked by the defendants, in substance, insisted, that to entitle , the' plaintiffs to recover for-a total loss,.the damage to the Gracchus from the accident should be more than one-half the sum to which she was valued in the policy; and that in e'stimating.that damage", the cpsts of the repairs only were to be taken, deducting one-third new for old. In effect, therefore, it excluded all consideration.of the salvage in the.ascertainment of the loss.

Thp third. instruction was in substance similar to the second, except that it did not insist upon the exclusion of the salvage. In effect) therefore; it insisted upon the yaluation in thp policy,, as the standard by which to ascertain whether the damage was half the value of the, Gracchus, or not. .

The fourth instruction insisted, that to entitle the plaintiffs to recover for a total loss, the damage must exceed ope-half. the valúe of the Gracchus at the time of the accident;- and that in estimating the. damage, the general and particular averages, as adjustéd at New Orleans, were to be taken; deducting one-third new for old. In effect,' therefore, it insisted that nothing but these adjustments were to be taken into consideration, in ascertaining the totality of the loss at the time of the abandonment; (admitting the abandonment to be sufficient;) however imminent might be the dangers, or great the losses then actually impending over the Gracchus. And all three of these prayérs further insisted, that the deduction of one-third , new for old, should be made from the amount of the repairs, as in the case of a partial loss, in ascertaining whether there was a right to abandon foir a total .loss; upon the' ground that- the damage exceeded á-moie'ty óf the value of the vessel.

The instructions of the court actually given' in-these-prayers, involve the following propositions. 1. That'if thfe expenditures.in repairing the'.damage exceeded half the value of the brig- at the port of New Orleans, after such repairs were made, including therein the salvage awarded- to the salvors; the plaintiffs were entitled to. recover for a total loss, under the abandonment made, on the 22d of April, 1833. 2. If the expenditures to get.off and repair thfe brig, were less than the half of such value, then the plaintiffs were not entitled to recover for á -total loss, upon the ground that the voyage was retarded or lost; nor'on account of the arrest and detention of the brig, under thfe admiralty process, for the salvage.

The question- is, whether these instructions were correct. In considering the first, it is material to remark, that by thfe well settled principles of our law, the state, of the facts, and not the state of the information at the time of the abandonment, constitutes the trufe criterion by which we are to. ascertain whether a total loss has occurred or not, for which an abandonment can be made.. If-the abandonment; when made, is good, the rights of the parties are definitively fixed; apd do not become changed by any subsequent events. If, on, the other hand, the abapdohment,/when made, is not good,'subsequent circumstances will not affect it so as, retroactively, to'impartto it a validity which it had not ,'at its origin. In some respects, our law on this point differs from that of England; for, by the latter^ the right to a total loss vested by an abandonment, may be divested by subsequent fevfents, which change that total loss-into a partial loss; It is unnecessary to cite cases on -this subject, as the diversity is well-known ; and the courts in neither country- have shown any disposition of late years to recede from their own doctrine. The cases of. Rhinelander v. The Insurance Company of Pennsylvania, 4 Cranch, 29; and Marshall v. The Delaware Insurance Company, 4 Cranch, 202, arfe direct affirmations of our rule: and those of Bainbridge v. Neilson, 10 East's Rep. 329; Patterson v. Ritchie, 4 M. & Selw. 394; and M'Iver v. Henderson, 4 M. & Selw. 584; of the English rule.

In cases where the abandonment is founded upon a supposed technical total loss, by a damage or injury exceeding one-half the value of the vessel, although the fact of such damage or injury must exist ■ at the time, yet it is necessarily open to proofs, to be derived from ' subsequent events.■’ Thus, for example, if the repairs, .when subsequently made, clearly exceed the half value, it is plain that this affords one of the best proofs of the actual damage or injury. On the other hand, if the- subsequent repairs are far below the half value, this,' so far as at goes, affords an inference the othér way. ■ But it is not, and in many cases cannot be decisive of the right to abandon. In many cases of -stranding, the state of the vessel at the time may be such, from the immanency of the peril, and the apparent extent ,of expenditures required to deliver her from it, as to justify an abandonment; although, by some fortunate occurrence, she- may be delivered from her peril, without an actual expenditure of one-half of • her value after she is in saféty-. Under such circumstances, if, in all hu.man probability, the expenditures which . must be incurred to deliver her from her peril, are, at- the time, so far as any reasonable calculations can be made, in the1 highest degree of probability, beyond half value; and if her.distress and peril be ''such as would in-' duce a considerate owner, uninsured, and upon the ‘spot, to withhold any attempt to get -the vessel off, because of such apparently great expeñditures, the-abandonment would doubtless be good. It was to such 'a. case that lord Ellenborough alluded, in Anderson v. Wallis, 3 M. & Selw., when he1 said: “There is not any case, nor.principle, which authorizes an abandonment, unless where the loss has been actually a total-loss,-or in the highest degree probable at the time of the abandonment.’7 Mr. Chancellor Kent, ir> his learned Commentaries, vol. 3, 331, has laid'down the true results of the- doctrine of law on this subject.'. “ The right of abandonment (says he,) does not depend upon the certainty, but upon the' high probability of. á total loss, either of the property or of the voyage, or both. The insured is,to act, not upon certainties, but upon probabilities; and if the facts ' presé'nt a'case of extreme hazard, and' of probable expense, exceeding halfthe value, of the ship, the insured may abandon; though it should happén that she was afterwards recovered at a less expense.77 We have no difficulty, therefore, in acceding to the argument of the counsel for the.plaintiffs in error.on this point. But its application to the ruling of the court, will be considered hereafter.

In respect to the mode of ascertaining the value of .the ship, and, pf course, whether she is injured to the amount of half, her value, it has, upon the fullest consideration, been held by this Court, that the true basis of the valuation is the value of the ship at the time of the disaster; and that, if after the damage is or might be repaired, the ship is not, or would not be worth, at the place of the repairs, double the cost pf the repairs, it is to be treated as a technical total loss. Thisy was the doctrine asserted in the Patapsco Insurance Company v. Southgate, 5 Peters, 604; in which the court below had instructed "the jury, that, if the vessel could'not have been repaired without an expenditure exceeding half her value at the port of the repairs, after the- repairs were made,'it constituted a total loss. This Court held that instruction to be. entirely correct. It follows, from this doctrine, that the valuation of the vessel in the policy, or the value at the home port, or in the general market of other ports, constitutes no Ingredient 'in ascertaining whether the injury by the disaster is more than one-half the value of the vessel, or not. For the like reason,- the ordinary deduction in cases of a partial Joss of one-third new for old, from the repairs, is equally inapplicable to cases of a technical total loss, by an injury exceeding one-half of the value of the vessel. That rule supposes the vessel to be repaired and returned to the owner; who receives a correspondent benefit from the repairs beyond his 'loss, to the amount of the one-third; But in the case of a total- loss, the owner receives no such benefit; the vessel never returns to him, but is transferred-to the underwriters. If the actual cost of the repairs exceeds one-half of her value after the repairs are made, then the case falls directly within the predicament of the doctrine asserted in the case of 5 Peters, 604. The same limitations of the rule, and the reasons of it, are very accurately laid down by Mr. Chancellor Kent, in his Commentaries, 3 vol. 330; and in Da Costa v. Newnham, 2 Term Rep. 407.

If, with these.'principles in view, we examine the first instruction given in this case in the circuit court, it will be fqund to be perfectly correct. Indeed, that part of the instruction which declares that if the brig lt could not be got off and repaired without an expenditure of money to an amount exceeding half her value at the port of New Orleans, after such repairs were made, then the plaintiffs are entitled to recover for a total losé under the abandonment,” is precisely in the terms of the instruction given in The Patapsco Insurance Company v. Southgate, 5 Peters, 604. The error, which has .been insisted on at t]ie argument by the plaintiffs, is in the additional direction; that “ in ascertaining the amount of such expenditure, the jury must include the sum for which the brig was' liable to the salvors, according to the decree of. the district court of .Louisiana, stated in the evidence:” which, it is contended; removed from the consideration' of the jury the right to take into the account the high probability, at thé time of- the abandonment, of the allowance of a greater' salvage, and even to the extent of the fifty per.cent, then claimed by’ the salvors. And in support of the argument,' it is insisted that the state of the facts,'and the high probabilities."at the time of the aban-/ dónment, constitute the .governing rule; ’and not. them] tímate result in the subsequent eyents.- But it appears to us that the argument is founded .upon a total misunderstanding of the trjue -import of- this part .of the instruction. The court did not undertake to. say, and did not say, that the jury might not.properly take into consideration the high probability of a larger salvage-at .the time of thé-aband.onment; but simply, that the, jury must include in "the half value, the amount of the actual salvage, decreed, because that was, in truth, a part of .the loás. The instruction .was, therefore, not a- limitation restrictive of the rights'ahfi. claims of .the plaintiffs; but, in fact, a direction in favour of their rights and elaims,.ánd fin- support of the abandonment. This' is demonstrated by the theh actual position of the cause. ' The defendants .had asked an instruction that the costs'of the repairs only, exclusive of'the salvage, should- be taken into consideration-in estimating the' half-value; and -also that the one-third new for old; should be deducted from- the (amount of the' cost, in estimating the half value. The- court, in effect, negatived both'instructions;' and in tire particulars-now objected 'to, there was a positive direction to .the. jury not to' exclude, but to include the salvagej in the estimate of the loss'." - In this view of the matter, the instructioi was most favourable to-the plaintiffs; atjd, so far from excluding evidence which might sho.w the amount of the actual damage at the time of the abandonment; it'resorted, and very properly resorted to the subsequent ,ascértáinment of salvage as positive evidence, that to that extent at least, the actual damage was enhanced beyond the cost of the.repairs. We are. entirely satisfied^with this part'.of the' instruction, in this view, which seems to us to be the true interpretation.of it.

In respect to the other part of the instruction there is no substantial difficulty. The,mere retardation of the voyage by any of the perils insured against, not amounting to or producing- a total incapacity of the ship eventually to perform the voyage,.cannot, upon principles well established, be admitted to constitute a technical total loss, which will authorize an abandonment. A. retardation for the purpose of repairing damages from the perils insured against, that damage riot exceeding' one .moiety of the value of the ship, falls directly within this doctrine. Under such circumstance's, if the ship can be .repaired and is repaired, and is thus capable of performing the voyage, there- is no ground, of -abandonment founded upon the .consideration that the voyage rhay not be-worth'pursuing for the interest of ¡die"ship owner; or that the cargo has.-been injured,-so .that it is not worth- transporting further on-the voyage:, for'the loss of the c.a'rgo fpr the .voyage, has nothing to do -with an insurance upon the ship for the voyage. This was expressly held '.by this Court, in the case of Alexander v. The Baltimore Insurance Company, 4 Cranch R. 370; where, it was decided that an insurapce'-On a ship- for á voyage, was- not to be treated- as ail insurance ,on the ship- and the-v.oyage, or. as. an undertaking that'she shall actually perform the Voyage:, and, only, that-notwithstanding any of the perils- insured-against, she shall be. of ability to. perform the voyage; and that, the underwriters will pay any damage-sustained by her, fropj -those perils, ' during-the yoyage; . The Court farther held,-that upon such an-insurahce,, a total loss of the cargo for the voyage, was 'not a total loss of the ship for; the voyage. .In respect to. the point of retardation for repairs, the- mofe recent authorities contain reasoping altogether-satisfactory, and-consistent with the-true nature and objects of pdlh cies, of insurance. The subject-was a good deal-discussed in the case' of Anderson v. Wallis, 2 Maule & Selw. 240, which Was a policy op cargo,;'and‘ again.in, Everth v. Smith, 2 M. & Selw. 278; which was a policy on.freight’; and’ again in -Falkner v.-Ritchie,.2M. :& Sejw- ¿90, which’ was a-.policy, on. ship: and'-in each' -of the casés, the' court came to. the- conclusion that a mere retardation, of the voyage by' any peril insured- against, did'-not entitle the insured to:recover for a.totalloss;-if the:thing .insured was capable of per-' forming the. voyage; Lord Eljenbprough, in the first casé, said.:' “ Disappointment of arrival is-a new head of ábándonment in insurance law.” “If the-retafdatio'n of the Voyage he a cause of ábnndonment;.the.happening of any.marine peril- to.the ship, by which a dejay is caused in- her arrival, at the earliest market, would also he á causé of ábándonment,; 1 am well■ aware .that an insurance upon a cargo, for,a particular voyage, contemplates that the voyage shall be performed with that cargo; and any risk which renders the cargo permanently lost to the assured', may.be á cause of abandonment.1 In like manner a total loss of - cargo may be effected not mferely by the destination, of thát cargo,- but by a permanent incapacity of the ship to perform the voyage; that is, a destruction of the contemplated adventure* But the case of an interruption of the yoyage, does, not warrant the assured in totally disengaging himself from the adventure, and throwing this burthen on the underwriters.” In Falkner v. Ritchie, 2. M. & Selw. 290, his lordship'added:' “ What has a loss •of the voyage to do with a los3 of the ship?” meaning, as the, content shoves, that the loss of the voyage is no ground of abandonment, where the ship is not damaged to an extent which permanently disables her to perform it. The same doctrine was affirmed in Hunt v. Royal Exchange Assurance Company, 5 M. & Selw. 47; and in’ Naylor y. Taylor, 9 Barn. & Cresw. 718. And it. was long ago recognised by this Court,-by necessary implication,, in the-case of Alexander v. Baltimore Insurance Company, 4 Cranch R. 370; and Smith v. The Universal Insurance Company, 6 Wheat. R. 176. In this latter case, the Court- said: ,“’The insurers do not undertake that the voyage- shall be performed without delay, or that the perils insured against shall not occur. They undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the'voyage'be not thereby broken up, but is, or may be resumed, the insured cannot abandon for a total loss*” Language' mpre explicit upon this point, could scarcely have been used.

Nor is there any, the slightest difference in law, whether the retardation Or temporary suspension of the Voyage be for the purpose of repairs, or to meet any other exigency which interrupts, but does not finally defeat the actual resumption ,of it. The detention of the ship, under the. admiralty proceedings, does not, therefore, in any manner change the postur.e of the case: It is admitted.on all sides, and indeed it admits of no legal controversy, that this detention cannot be construed to be a substantive peril within the clause of the policy respecting ‘f restraints and detainments of all kings, princes or people;” for the restraints and detainments there alluded, to, are the. operations of the sovereign power by ah exercise of the vis major, in its sovereign capacity, controlling or divesting, for. the.time', the dominion or authority of the owner over the ship.; and not proceedings of a mere civil nature to enforce priváté rights, claimed under the owner for • services actuálly rendered in che preservation of his property. This, indeed, if it admitted of any doubt, would be disposed of by the reasoning of the court in Nesbitt v. Lushington, 4 Term R. 783; and Thornely v. Hebson, 2 Barn. & Ald. R. 513. See also 3 Kent’s Comm. 304, 326. In truth the.detention by the admi-ralty. process was, in this case; as is apparent from the admitted facts, a mere retardation of the voyage. The brig was delivered from that proceeding; the salvage was paid; and she not only was capable, but did intact resume and-complete her voyage to Baltimore.

The. considerations, already- suggested, dispose of the other point raised under this, instruction, as to the loss of the voyage. . It'is apparent that the loss of the-voyage spoken of, and -necessarily implied in this instruction upon the admitted state' of the facts; was the loss of the-cargo for the voyage, and not the loss of the vessel by incapacity to perform the' voyage. If the vessel could, as the instruction- supposes, be got off'and-repaired without'an expenditure exceeding half her value, and be thereby enabled to resume the voyage; it is plain that the loss of the cargo for that voyage, constituted no total loss-of •the vessel for the voyage. It was ■ absolutely impossible for the court, upon-the authorities already cited,-to arrive at any other conclusion.

The state of things at the time of. the abandonment, did not demonstrate any incapacity of the ship to resume her-voyage after the repairs; .and in'point of fact, as has' been already suggested, she not only did resume it, but. actually performed it. The insurance was upon time; and. the policy actually expired, by its Own limitation, upon the 22d .of May, 1833/before she had actually resumed her voyage. But that, can make no difference. - An insurance on time differs as to this point in no essential manner whatsoever from an insurance upon a particular voyage; except in this, that in the latter ease, the insurance is upon and for a specific voyage-described in the policy; whereas a policy on time, insures no specific voyage,-but"it covers any voyage; or' voyages whatsoever íindertakén within, and not exceeding in point of duration, the limited period for which the insurance is made. Bijtan-insurance on-time by no means contains anjf undertaking on the part of the underwriters, that any particular voyage undertaken -by the insured within the prescribed period, shall be performed before the expiration of the policy. It warrants ■nothing as to r any retardation-or prolongation, of the voyage; but only that the ship shall be capable of -performing-the voyage undertaken, notwithstanding any. loss or injury which may-accrue to her during the time for which she is insured; and of resuming it, if interrupted. In other words, the undertaking is that the. ship shall not, by .the .operation of any peril insured against • during the time for Which' the policy . continues, be - totally, and permanently lost or .disabled frqm. performing.the voyagé then in.progress, or any. other' voyage- within the scope of the policy.. The case of Pole v. Fitzgerald, Willes’ Rep. 641; S. C. Amber’s Rep. 214, affords a striking illustration*of this doctrine; and' whatever.doubts may 'be entertained as to some of the dicta' in that casé, lord- Ellenborough has' well said, that -it may be of great- use -to resort to' it, in. order to purify-the mind from these .generalities, respecting the'loss of the voyage.-of the ship, constituting, per se, a loss of the ship. Falkner v. Ritchie, 2 Maule & Selw. 293, There is ;no error, then,- in the instructions ácíualíy given to the jury-in the. response of the'-'court to those asked by the defendants.-

In the next-place, as to the instruction .asked' by the plaintiffs, and refused by. the court. In substance, it. insisted.that if the underwriters had' authorized .the' expenditures tp be niade for the repairs., and had-not supplied the appropriate fundi? for these repairs,-and for the salvage,- and -the bottomry bond was givén to secure them;- and the underwriters were apprized of the admiralty proceedings,at-Baltimore, and theré neglected to pay-so much thereof as they ought to have paid to discharge the samé; and that .the vessel in consequence thereof'was sold'under those-proceedings: then the plaintiffs were entitled to recover for'the whole value of the .vessel. This -instructiom.it. iqay be remarked, proceeds' -upon the supposition that there was .not á technical total loss, entitling the plaintiffs tó abandon'; and thát the abandonment of the 22d of April wa;s. not. available for thé plaintiff?. For, if it had been,, then the underwriters would, have become from .that- time 'the owners of. the ship;' ánd -the subsequent losses,- whatever, they might, be, would be on their sole account. Thé case -put, then; supposes- that,1 in. point of law, in-thé case of a .merely'partial loss to the ship, if money is taken up'on bottomry for/the hece,ssary. repairs'and, expenditures, it becomes-the duty-of thé‘uridérwritérs-to,déliyer the, ship from, the bottomry bond to the extent qf their liability for the expenditures; and that if they do-not, and, the vessel.is- sold under the. bottomry bond, they are Háble not only for the partial loss,, but for' .all other losses to the owner from their neglect. We'know of no principle of laW which justifies any such doctrine. The underwriters engage to pay the amount of the éxpendifure? and- losses, .directly 'flowing from- the perils insured against; but not any remote-or'consequential losses to the owners, from their neglect fo páy the same. It might be as well contended, that if by the neglect to pay a partial loss the owners were prevented from undertaking a new" and profitable voyage, the underwriters would be 'responsible to them for such consequential loss. The maxim here, ás in many other cases .in the law, is, causa próxima non remota spectatur. The underwriters are not bound to supply funds in a foreign xport for the repairs of any damage to the ship, occasioned by a peril insured- against.. They undertake only to pay the-amount after due notice and proof of the loss; and, usually, this is to be done, (as was in fact the present case) after a prescribed time from such notice and proof of the loss. If to meet the expenditures for the repairs, the master is compelled to take up. money on bottomry, and thereby an additional premium becomes payable, that constitutes a part of the loss, for which the underwriters are liable. But in cases of a partial loss,, the money upon bottomry is not taken up on account of the underwriters, but of the owner; and they become liable to the payment of the loss, whether the bottomry bond ever becomes due and payable or not. In short, with the mode by which the owner-obtains the necessary advances, they have nothing to do; except that .they must hear their share of the increased expenses to furnish the repairs, as.a common sacrifice. Indeed, it seems difficult to understand upon what-ground it is, that in ca.se of a partial loss the owner is exonerated from the-duty of delivering his own ship f om the lien of the bottomry bond, and is at liberty to throw upon the underwriters the whole obligation of discharging it, under the penalty, of. being otherwise responsible in case of a sale; not for their share of the loss, (assuming that they were at all bound to discharge any part -of the bond,) but for the whole loss. Upon what ground can it be' -said that the .loss of thfe vessel by the sale in this casé,-is . attributable to the neglect of the underwriters, which does not equally apply to the owners. They had at least, upon their own argumentan equal duty.to-perform; for the underwriters were not liable for the'whole amount of the bottomry bond, but for a part only;' apd the owners were bound to discharge the residue. How, then, can they call upon the underwriters to pay them a total loss-on account of a sale; which upon their own argument was as much attributable to their own neglect as to that of the Underwriters. But we wish to be understood as putting this point upon its true ground in point of law; and that is’, that in the case of a partial loss, where money is taken up on bottomry bond, to’defray the expenditures to repair it, the underwriters have nothing to do with the bottomry bond, but are simply bound to pay the- pariial loss, including their share of the extra expenses of obtaining the money.in that mode, as a part of the loss. If it were otherwise, any partial loss, however small, might, if money were taken:up on bottomry'to meet it, be converted, at the will of the owner, into a total loss, if the underwriters should 'neglect to- pay to the owner the amount of such partial loss; The case of Thornely v. Hebson, 2 Barn. & Ald. 513, inculcates a very different doctrine.' It was there held, that even in the case of a libel for salvage, it is the duty of the owner, if he can, to raise the money to pay the salvage; and if he makes no such attempt, but suffers the ship to be sold under the admiralty process, he cannot thereby convert, a loss, which is partial, 'into a total loss. And it Was there further said, by Mr. Justice Bayley, (what is entirely applicable to the present case;] that the sale, in order to constitute a total loss in such a case, must be from, necessity, and wholly .without the fault of the owner.

The instruction asked in the present instance seems to have proceeded, wholly upon the ground of the doctrine asserted in' the case of Da Costa v. Newnham, 2 Term Rep. 407. 'But assuming that casé to have been decided with entire correctness upon its own particular circumstances; it seems-difficult, consistently with the principles of law, to apply the doctrine to cases which are-not exactly in the same predicamentj and.it is not the'first time that an attempt has-been made to;,press -that case into the service of other cases which aré essentially different. The whole argument turns upon this, that the brig never came into the hánds 'of the owner free from' the lien of the bottomry bond; and therefore, the total loss by the sale -is properly attributable to the neglect of the underwriters. But the -same argument would equally have appliedT'f there had< been, for the first time, admiralty proceedings in the home port against .the brig, (without any bottomry bond having been given,) for the repairs thus made in a foreign port, as wélli as for the salvage. Yet no doubt could have been entertained that, under such circumstances,.the underwriters would not have been bound to deliver the vessel from the liens thus incurred, at the peril of- otherwise becoming answerable for a total loss. In what essential particular is the' cáse, changed by the substitution of an express 'lien by bottomry; for'an implied lién hy the maritime law? In none, that we can pérceive-

But what were the circumstances of the case of Da Costa v. Newnham? In that case, the insurance was for a voyage from Leghorn to London. The ship met with an accident in the course of the voyage, and put into Nice for repairs., ■ Upon receiving, notice thereof; the assured wished to abandon, and, indeed, was entitled to' abandon,; but the underwriters insisted upon the ship’s being repaired, telling him to pay the tradesmen’s bills. He consented,' at last, that the repairs'should be done, but refused to adyance any'money; in consequence of which it became necessary to take up a large sum of money-on a.bottomry bond, to defray the expenses. The ship resumed and performed her voyage; and after her arrival; the underwriters were applied to. take up the bottomry bond,.but they refused. Admiralty prpceedings were, as it should seem, accordingly instituted, and the ship was -sold for six hundred guineas; the bottomry bond being for six hundred pounds, which, with the interest, amounted to a larger.sum, viz. six hundred and seventy-eight pounds.

The question under these circumstances was, whether the plaintiff was entitled to. recover. Mr. Justice Buffer, who tried the cause, was of opinion, under the circumstances, that for all the subsequent injury which-had' accrued to the owner, in consequence of the refusal of the, underwriters, to discharge the bottomry bond, and by which the owner, was damnified to the .fuff amount of the instirancfe, the underwriters were liable;,because it was their own fault in not taking up the bond-for the expenses of those repairs, which had been incurred by their own express directions; and the only remaining question was, how the average was to be calculated. The jury found a verdict for the- owqer' for sixty-two pounds. nineteen shillings, which, together with seventeen pounds ten shillings paid into court by the underwriters, they calculated as the average loss, per cent, which;the owner was entitled to. .A motion was afterwards made for a new trial, and ..refused y the court; substantially upon the grdunds maintained by the learnéd judge at the trial.

From this .statement of the facts, and the reasoning of the court., applicable thereto; in the cáse of Da Costa v. Newnham, it is apparent,, that, in that cage, the actual co'st of the repairs,, (including,of ' necessity the bottomry premium,) exceeded the actual value of' the ship; that the underwriters had fully authorized all these repairs, and had. expressly promised to pay all the costs of the repairs and the .necessary incidents.. The owner of the ship, at the termination of thé voyage, never came into the possession of the ship free from the lien of the bottomry bond; for the whole amount of which, as it included nothing but the costs and incidents of the repairs, the underwriters were liable, and which, by necessary implication, they had promised to pay, The sum claimed by the owner of the underwriters was in fact less than the amount of the cost of .the repairs, that cost being six hundred' and seventy-eight.-pounds; whereas the loss' claimed was a total loss of the ship, which sold for six hundred guineas only; and it seems that the insurance was on an open policy.

The question, in effect, therefore, was whether the owner was not entitled tó recover the full amount of the insurance, which was the amount of his actual loss, directly arising from the' breach of the promise of indemnity made to him by the underwriters. • Upon-such a point, there should not seem to he much reason.for any real juridical doubt.

Now, there are essential distinctions between that case and the present. In the first, place, the. repairs in this ease were not.made under any .positive engagement of the underwriters beyond what the policy, by its own terms,, necessarily included." The language of the underwriters in their. answers, refusing' the abandonment, in. our judgment imports no more than this. It merély-says, “we expect you to do'wbat is necessary in the case for the safety and relief of the vessel.” It was rather an admonition than a contract; a warning that the underwriters would hold the owners to the performance of all the duties imposed upon them by law; and not any promise as to their own obligations. In the next place, ih the present case, the loss is to be taken upon the very form of the instruction, prayed to be a partial-loss only; and as to the repairs, the underwriters were clearly, in such a case, entitled to the deduction of one-third new for .old. In the case of Da Costa v. Newnham, the loss was treated by the court as a technical total loss; m account of the-amount required for the' necessary repairs. In the next place, in -that case, the insured asked only to recover the amount of the costs of the repairs, which in fact exceeded the value of.the ship: in the present case, the cost of the repairs, and the salvage, for which tfie underwriters were liable, fell short of'the half value; and yet the plaintiffs insist to recover- for a total loss. In the next place, in that case, the underwriters, by .their refusal to make any advances,- compelled, and indeed authorized the owner to resort to a bottomry bond, to supply the means of repairing the loss; and of course, as-has been already intimated, the underwriters, by necessary' implication, undertook'-to indemnify thé owner against the lien and burden of the whole of that bond, in consideration of his undertaking to cause the repairs to be made.'

•The^refusal to make good that promise, was the direct and immediate cause of the loss and sale of the ship. In the present case, the bottomry bond-included charges and amounts, for which the underwriters were not liable. How, then, can it be inferred from the facts stated in the instructions, that the underwriters, by implication, and without consideration, undertook to indemnify the plaintiffs against the whole bottomry bond; for the payment of a part of which, only, they were by law responsible ?

So that, admitting the authority of. Da Costa v. Newnham to the fullest extent which its owh circumstances warrant,' it stands upon grounds entirely distinguishable from those which ought to govern the present case. If the underwriters, in the present casé, had authorized the whole expenditures on their sole account, and had promised to save the plaintiffs harmless from the whole amount of the bottomry bond, and the plaintiffs had made the expenditures, and procured the-advances for this purpose,'upon the faith of such authority and promise; a very different case would have been presented for. our consideration.- - At present, it is only .necessary to say, that the instruction before us states no such case, and calls for nó such question; and, therefore, Da Costa v. Newnham cannot. be admitted to govern the present .case.

Upon the whole, our opinion is, that there is no error in the.instructions given or refused by the circuit court; and the judgment is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel.- On consideration whereof, it is now here or dered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, With costs and damages at the. rate of six per centum per annum.  