
    *SEPTEMBER TERM, 1800.
    CORAM — SHIPPEN, CHIEF JUSTICE, YEATES AND SMITH, JUSTICES.
    George M'Calmont who survived John Boys against Thomas Murgatroyd.
    Abandonment should be made by assured on a total loss the first opportunity after knowledge of the loss received, but pestilence or special circumstances may form just exceptions to the general rule.
    Suit on a policy of insurance, on two trunks of merchandize, laden in the brig Nancy, Henry Geddes, master, from the port of Philadelphia, to Petit Guave, whereon the defendant had subscribed 1200 dollars.
    It appeared, that the goods had been fitted for a French market, and that the prime cost thereof was 1409 dollars 45 cents. The vessel sailed from Philadelphia on the 29th June 1797, met with a gale of wind on her passage on the.3d July, and on the 30th of the same month was captured by an armed boat, from the British ship Kingston, commanded by Lewis Parkinson, and sent into Port au Prince, then in the possession of the British forces, where captain Geddes arrived on the 5 th August, and was compelled by general White, the commanding officer there, to sell his cargo against his will, and the plaintiffs’ merchandize thereupon produced 886-$^ dollars. With these net proceeds the captain purchased sooolbs. coffee, and arrived at Wilmington, on Delaware, on the 12th October, where he made a second protest, having made a former protest at Port au Prince on the 5th August.
    The plaintiffs removed into the Delaware state on the raging of the yellow fever in Philadelphia in 1797, but the insurance office of Wharton and Lewis, where the policy had been effected, was kept open at Frankford, seven miles distant from the city, during the prevalence of the contagion. The defendant also withdrew himself from the city, to avoid the contagion. On the 6th November, the progress of the disorder having abated, captain Geddes made a third protest in the city, and on the next day the plaintiffs abandoned the coffee to the defendant; who refused to receive the same. They hereupon appointed three arbitrators, who were of opinion, that the plaintiffs could not claim as for a total loss, and the coffee was at length sold for 1131^ dollars.
    The plaintiffs declared as for a total loss.
    Mr. Rawle for the defendant
    insisted, that in order to entitle *28] *the plaintiff to recover a total loss, he should have given -I early notice of the voyage defeated, and made an immediate abandonment, i Term Rep. 613. If this has not been done, he has taken the risk on himself. Here the vessel arrived at Wilmington on the 12th October, and no abandonment was made until the 7th November following, though the office of the insurance brokers was publickly known to be kept open at Frankford. This is not such a reasonable time as the law restricts for abandonments.
    A total .loss is either, where the whole of the property has perished, or where the property exists, but the voyage is lost. 1 Term Rep. 615. A partial loss is where damage is done to the property, without any fault of the master, by storm, capture, standing, or shipwreck, though the whole or the greater part thereof may arrive in port. Park. 114. The present cannot be considered a partial loss. No damage has been done to the cargo by the capture. The plaintiffs’ goods remained uninjured, though they have missed a French market. Whether the goods arrived at a good or bad market is of no moment. Ib. 1x8. The plaintiffs might have abandoned, but not having made their election within the period restricted by law, they shall not now profit by the experience of subsequent events.
    Mr. M. Levy for the plaintiff,
    answered, that it was well ascertained, whether a vessel be embargoed, or captured as a neutral, or her voyage to the destined port had been defeated, the insured might claim a compensation for his loss. Where the voyage is lost, but the property is saved, the owner has an opr tion to abandon. 1 Term Rep. 613, 615.
    It is essential that the goods should arrive at the destined port. The merchandize was insured to Petit Guave, and a loss has happened by one of the risques guarded against in the policy, and in contemplation whereof the underwriter has received his premium. In the case of Fuller v. M'Call the proceeds of the sales came into the hands of captain Southern, and the point of an early abandonment became of moment in the cause. But where the proceeds are in safe hands, it is of little consequence in most instances, whether the assured claim for a total or partial loss.
    Many maritime countries have fixed the times within which abandonments must be made, according to the places where the losses happen, but no general commercial regulation has ascertained the periods. Park. 192, 193. The remark of Ashurst, J. in 1 Term Rep. 613, that the assured are bound to decide and signify their election to the underwriters, whether they will *abandon or not the first opportunity, must be considered rS in reference to cases in general; for it is sufficient if it [*29 be made in reasonable time under all the circumstances of each particular case. Park. 92. It could not be expected, that the owners should go into a city infected with the plague, in quest of the underwriters, to give them notice.
    The plaintiffs and defendant sought places of refuge out of Philadelphia, afflicted by a contagious disorder, and though it might be known in the environs of the city, that the insurance office of Wharton and Lewis was kept open at Frankford, it does not follow, that this fact was known in the neighbouring state of Delaware.
    Admit however, for argument sake, that the abandonment came too late, may not the plaintiff claim as for a partial loss ? He has been injured by a capture, and his goods carried by an armed force to a port for which they were not suited or intended.
   The court gave it in charge to the jury, that they were of opinion, the present case was a total loss. The general rule is correct, that an abandonment should be made the first opportunity after knowledge of the loss, but pestilence, or special circumstances may form just exceptions thereto, and will deservedly have weight with a court and jury. The ground of the rule is, that the assured shall not be permitted to take advantage of events, subsequent to their receiving notice of the loss, and that the assurers may have it in their power to make the best of the property insured and saved, and be determined by their own judgments. Here the plaintiffs could not profit by the delay, nor injure the defendant. The voyage insured had been broken up, by the force of an armed boat. The proceeds of the plaintiffs’ merchandize had been invested in coffee, which had safely arrived in a neighbouring port, and remained unsold. A pestilence raged in the city where the policy was effected, and had compelled the insured, insurer, and brokers, to fly from their respective places of abode, and to consult their safety in uninfected houses. The plaintiffs, whatever determination they might have formed, could not securely seek for the defendant in the city, and might not have known, that Wharton and Lewis kept open their insurance office at Frankford.

The jury found conformably to the direction of the court, and the counsel agreed to liquidate the sum due to the pláihtiff.  