
    Abbott against Broome, President of the New York Insurance Company.
    If a vessel be rendered, by the perils insured against, unable to proceed with her original cargo, it is a loss of the voyage, though she may be equal to perform it with another more buoyant. When a vessel cannot be repaired for half her value, she may be abandoned. If a vessel be duly abandoned, and the abandonment refused, and' at a sale for the benefit of all concerned, under an order of a court of admiralty, pronouncing her not worth repairing, she be bought in by a part owner supercargo, it is no waiver of the abandonment, though on her arrival at her home port, she be sold at auction, by the assured, for more than she cask and he at the time of action brought, have the proceeds in his hands, nor need he make a tender of her . to the underwriter when she arrives, nor of her proceeds after her sale.
    This was an action on a policy of insurance upon one eighth of-the ship Mary, valued at 2,875 dollars, on a voyage from Batavia to New York, tried before Lewis, Ch. J. at the circuit held in New York, in November, 1800.
    On the trial it was proved that the vessel, in the prosecution of the voyage insured, encountered heavy and adverse gales of wind, in consequence of which, and upon a general consultation of officers and crew, it was determined to bear away for the West Indies. That the ship, in the beginning of the month of January, 1799, arrived at the island of St. Christophers, in a very disabled state, and was there, on the application of the master, in co-operation with the supercargo, who was also a part owner of the ship, surveyed under an order of the court of admiralty, and afterwards unloaded for the purpose of a second survey.
    Upon the second survey a report was made, that the ship could not be repaired for the full value of her when repaired ; and was in such a state and condition, without particularizing the several damages she received in her hull as well as rigging, that it would be dangerous and unsafe to reload her cargo, and proceed with her on her voyage; that to repair her would be highly detrimental to the interes* of the owners, or the underwriters of the said ship and cargo".
    On this, the court, upon the like application, ordered a sale of the vessel for the benefit of the concerned. The sale took place, and at it the supercargo became the purchaser on account of the assured, for the f'sum [*293] 4,700 dollars. Upon advice of her situation, the plaintiff abandoned to the underwriters, who refused to accept th abandonment.
    It was admitted that the vessel, in consequence of the disasters experienced on the voyage, was so much injured as to render it impossible, from the high price of materials and wages, to repair her at St. Christophers (so as to bring on her whole cargo) for half her value.
    It was admitted that in the spring following she came to New York, with a light cargo of rum and molassesj being about sufficient for a set of ballast, and that she might have brought a full cargo of rum, which was proved to be a very light and buoyant cargo. That the interest of all the owners in the vessel was not insured. That on her arrival at New York, she was not offered by the plaintiff to the defendant, but was sold at publie auction, without his consent or approbation, for the sum of 10,100 dollars, and was after-wards repaired by the purchaser at a Considerable expense.
    On this evidence, a verdict was rendered for the plaintiff as for a total loss, subject to be diminished according to such principles as the court should direct.
    Hamilton, for the plaintiff.
    On the facts stated in tne case, the application of the general and established principles of the law of abandonment is so clear and plain, that surely no objections can be raised on that point. The right cannot but be acknowledged, and, therefore, to anticipate anything which may be urged against it, will not be attempted. The question on which we apprehend the defendant will most rely, and which, it must be confessed, is of sufficient importance, is whether the repurchase of the vessel by the supercargo, did not turn this technical total, into merejy an average loss according to the decision of Saidler and Craig v. Church. So far from disputing the law of that decision, it is fully admitted; but the circumstances of that case, as well as those in the one in Term Rep. on the authority of which it was in a great measure determined, essentially vary from the present. In Saddler and Craig v. [*294] Church, and in the case *in Term Eep. there was no abandonment before the re-purchase. In this the reverse is the fact. By re-purchase the court will please to understand notice of re-purchase; for the mere fact, it is conceived, can by no means influence the question. If at any period, the right to abandon from what was known, perfectly and fully attached, if the event then disclosed warranted an abandonment, the right, as it thus stood, cannot be impaired by any actually existing fact which would, if known, have taken it away. In the decision to which allusion has been made, Lord Kenyon observed, there had been no abandonment before notice. It is true, in Saidler and Craig v. Church, the re-purchase was not known till after the abandonment: but this was followed by a subsequent proceeding of a very impressive nature. On the arrival of the vessel here, she was taken by the assured, repaired, fitted out, and sent on another voyage. What, did this amount to ? What could it amount to but a complete adoption by the assured of the act of their agent, as done on their account ? The consequence is obvious; it turned into a partial, the claim that had been made for a, total loss. This, therefore, constitutes a material difference between the two cases. But there is another circumstance equally important. In the present instance, when the offer to abandon was made, the assurer absolutely refused to accept it. In Saidler and Craig v. Church, they were merely passive, and made no reply. When the Mary came here she was not employed and fitted out again, but as she was refused, she was sold at auction for the benefit of whom it might concern. Of what was done in the former case, there can be but one possible interpretation; that the assured took her back, and waived their abandonment. In this no such thing can be inferred. Every act is consistent with the claim now made. There had been a clear right to abandon, and the abandonment had been refused. To sell the ship was a duty of the assured, and only to prevent to the assurer a total loss, which otherwise must ultimately have resulted. The proceeds are doubtless to be accounted for; but they do not weaken the present claim. The vessel, it will be *said, sold for more than she [*295] cost; but what of that ? It is only so much the better for the underwriter. It does not alter the right which had before been exercised, and then stood unimpeached. The ground of the decision in Saidlcr and Craig v. Church was, that the plaintiff had waived his abandonment by taking possession, fitting out, &c. To govern this case by that, it must first be determined whether a sale at auction is equivalent to a fitting out: and this must be done only because there was no offer of her after her arrival here. And even then it must be considered whether this, as a reiterated act, and doing no more than what had already been done and refused, was necessary to be repeated. The sale at auction was a conservative act, done merely to prevent any future deterioration. It was a measure dictated by what had already taken place. The former refusal continued as a guide to the plaintiff’s future conduct, and on that he acted. Thé property was thrown into his hands, and it may, perhaps, be a question whether this did not of itsdf constitute him an agent for whomsoever concerned ? The repetition of the offer of the vessel was a work of supererogation. The waiver of the abandonment could never be considered as an act of intention, or premeditated design. It must arise from implication of law, and on the principle that a second nugatory offer, is, by law, absolutely necessary. That the mere selling a property insured is not a waiver of a previous
    
      abandonment, the decision of this very court has, it is believed, firmly established. In Bowne v. The New York Insurance Company, after a refusal of an abandonment, the goods arrived and were sold by the assured. It was held by this bench, that the sale was justifiable from the conduct of the underwriter. To be sure, a second offer might have been made, and had the advice of counsel been asked, it is more than probable it would ex cautela have been recommended : but it was by no means necessary, because the insurer had, from his Conduct, rendered it superfluous. He, the person entitled to the ship, which was then in the hands of the plaintiff, constituted him, by the refusal to [*296] accept her, an agent, as the foreign * writers term it, from necessity, lest an absolute loss of the whole subject matter should ensue. To preserve it was to the advantage of all parties. If the plaintiff was to have it, his interest required that care should be taken of it ;• if it was to fall to the underwriter, certainly his equally so, because he lessened his payment, and in the present case actually made a profit.
    
      Hoffman and Harison, contra.
    Whether the present is to be considered as a partial or a total loss is, in fact, the only point in controversy. That it is partial, the defendant insists: for this case is in no respect to be distinguished from Shaw and Qoold, (Edward and Charles Goold v. John Shaw, reported Lex. Mer. Amer. 295,) decided in this court, and confirmed on a writ of error: so that the principles there recognized are now to be taken as the settled law of the land. There the damage to the cargo did not affect the policy on the ship; because she was in a capacity to complete her voyage, though she did not do it on account of the injury her cargo had sustained, in consequence of which it was sold in Martinique. It follows, from the authority of the case referred to, that, as in insurances, freight, vessel and cargo, are distinct interests, the total loss of one by no means constitutes a right to abandon on the others. The underwriter on the ship has nothing to do with the cargo; and though the Mary was sold in St. Christophers, and the voyage thus broken up, as it is termed, that did not give any rights to the assured on the vessel. The interests were totally unconnected; an insurance on the voyage being by no means synonymous with one on the ship. For this distinction, the court will, find a sanction in Pooh v. Fitzgerald, Willes’ Rep. 641. The fact, however, here was, that the voyage was not lost, for the vessel arrived with a cargo and earned freight. So that allowing the loss of the voyage to mean a loss of the ship, and therefore, to give a right to abandon, and claim for a total loss, still that loss had not taken place, as the vessel could have brought a full cargo, though not the original one. She had lost no freight to create even a technical loss of the voyage. She had earned pro rata freight to St. Christophers, and from St. Christophers here she made full freight. There was not only *no loss of the voyage, but a profit- [*297] able one performed; and as to the ship herself, she had arrived in perfect safety. Except, then, this case Can be distinguished from Shaw and Goold, that decision must control this, and the claim be only for an average, not for a total loss. The determination also in Saidler and Craig v. Church, goes on all fours with the present case. The facts were exactly similar. It has been attempted to discriminate between them, but there can, in operation of law, be no essential difference between taking possession of a vessel and fitting her out, and taking possession of her ■and selling her. If so, it can never be meant, from the bare transaction itself, to say it was otherwise, when the sale had been at an advance for more than she cost, and the surplus put in the plaintiff’s, pocket. It is evident the plaintiff fully intended to adopt the purchase of his supercargo, who, it must be remembered, was also a part owner, and designed the sale for his own use. The conclusion is almost inevitable, that where a man makes a sale of what was his own, to a profit, he does it for himself. It had been done by the plaintiff without consulting the underwriter: from his own will, and in addition to this, what had been the conduct of the plaintiff since? He had never.once offered to account for the sales. If he had meant to have been considered as an agent for the underwriter, as suggested that he was from necessity, he would have offered to account for the profits. Instead of this, he has them now in his pocket, and can justify their being there, only on the ground of the re-purchase having been made on [*298] account of the former owners. *It had, however, been said, that in Saidhr and Craig v. Church, the underwriters had been merely passive, but here they had actually refused, and that from hence a diversity between the cases would necessarily arise. In Saidhr and Oraig v. Church, what had passed amounted to a refusal. An abandonment, followed by silence and non-acceptance, amounted to a refusal: for he who does not accept, refuses. If, however, any variety does prevail in the two cases, in this it is stronger against the assured. In Saidhr and Oraig v. Church, the condemnation, sale, &c. were forcible; the result of a capture: but here they were induced at the request and instance of the part owner and supercargo. The plaintiff has received his vessel, purchased in by his part owner; the underwriter, therefore, liable only for repairs. Insurance is no more than a .contract of indemnity : if it is to be so considered now, the plaintiff can recover only for a partial loss.
    ' The decision in Shaw and Goold is conclusive on the subject. To the judgment then pronounced, every man must accede, because, in insurances, the various subjects of vessel, freight, and cargo, are perfectly distinct; what, therefore, affected the one 'by no means implicated the others. Suppose a total loss of cargo and freight, let it be either absolutely or technically so, the assured on the ship would not, from this, acquire any right to abandon. Thai must depend on other circumstances: it cannot turn on her ability or inability to carry' her original cargo. If the vessel can be repaired for half her value, whether she be adequate to the conveyance of her cargo or not, can never give the assured a title to abandon, or claim as for a total loss of the ship. The vessel in question had earned nearly her full freight: the original cargo had paid it; the substituted loading had done the same. How, then, could a total loss be claimed for that ship which was then profitably and advantageously employed? Taking it, therefore, in the most complicated and connected point of view that could reasonably be suggested, there could not be a total loss of the vessel, while the freight was still subsisting. In order to ^establish this as a total loss [*299] the plaintiff must still more closely unite the subjects of insurance. He must advert to the incompetency of the vessel to bring home the cargo, and urge this as the foundation of his demand: and because the voyage is broken up on the cargo, the loss of the ship is necessarily to be inferred. This is in direct opposition to Shaw and Gould, the contrary of which was expressly determined. The triflng variations of that case from this cannot alter she point, for it is not every little change and alteration of circumstances, or any slight change, that would take one out of another. Should that decision not be sufficient to incline the court in favor of the defendant, Saidkr and Craig v. Church will govern the question. In that, as in this, it must be evident, from all the circumstances, that the purchase was for the benefit and on account of the assured. The property, when in the power of the plaintiff, was never offered to the defendant, and that alone is a waiver of the abandonment. In favor of such a construction, the facts now before the court are stronger than those of Saidkr and Craig v. Church. There the sale was involuntary and compulsive; here it was not only voluntary once, but twice; and the first sale even at the request of the supercargo and joint owner. Nor was this the whole .fi’om whence the construction of the purchase being on account of the defendant might be drawn. There was a shipment, a cargo taken on board on account of the assured. In other respects the cases were alike. In that, an abandonment not accepted; in this, an abandonment refused. In one case the vessel was employed, in the other she was sold. Had not the underwriters a right to be consulted as to the time, place, and manner of the sale? How does it appear that they were not willing to retain her? The plaintiff should have Offered them the freight, with the amount of the chárges for repairs, &c., and then have claimed compensation under his policy. Instead of pursuing such a line of conduct, the property is disposed of without their knowledge, and is now held. If this can be done, the security of underwriter is destroyed. There would, it must he confessed, be a difference, if the [*300] transaction *had taken place in a foreign country, where no application could be made to the underwriters; but here, when all concerned were on the spot, the parties who were so active, and without making any communication, must be held to have acted for themselves, In addition to these circumstances, the court, doubtless, will observe, that the plaintiff has received the freight earned by her, after her being bought in by the supercargo and joint owner. This, it is conceived, is tantamount to fitting out and employing her, and is evidence of her being in the service of her former owners.
    Hamilton, in reply.
    It is difficult to conceive how Shaw and Qoold could be connected with the present case; the dissimilarity is so great, it is scarcely possible to imagine how it could be pressed into the service. That case was an endeavor to constitute a total loss of the vessel, on account of a loss on the cargo. It was by the special verdict expressly found, that she could have been repaired for less than half her value; in the present instance it is as expressly stated “that she cannot be repaired for the full value of her when repaired.” I shall; after this preliminary observation, endeavor to show, that the principles of that determination will bear on this, and materially aid the plaintiff’s demand. For that purpose, it will be necessary to recur to the general position of the court: that in insurances, the various subjects are totally distinct: that in • construction of law, vessel, freight, and cargo are separate interests; and it is fully conceded, with the opposite side, that the loss of one does not constitute a loss of either of the others. On these data the court proceeded in Shaw and Goold. In that case there was no inability in the vessel ; she could have pursued her voyage with her cargo ;. here she could not. The ability of a vessel to perform her voyage with her cargo, is the very essence of the contract of assurance upon her: it is the substratum of the policy. The assured warrants that she is so at the commencement of the voyage, and the assurer engages that so she shall continue, against all the perils enumerated, until it be ter minated. If the vessel become unable to complete it *with her cargo, the court must consider it as a [*301] total loss with respect to her, and the policy for-felted. Nothing is now advanced, which is hot perfectly reconcilable with the distinctness of the subjects of insurance ; for the cause of the loss of the voyage was wholly the ship’s; it arose from her inability, against which the policy was meant to protect. When that inability could not be removed for half her value, then she, the very subject of insurance, was technically destroyed, and, abstracted from subsequent circumstances,' it became a total loss. The after purchase, then, was the only thing which could alter or prevent the result. Suppose her purchased for and by, any other person, how would that vary the underwriter’s liabilities or rights ? In either one case or the other, he is not defrauded or injured. The purchase on his account by the assured, can never be detrimental; he has the vessel at what she costs, and he has also what she sells for. In the case of Saddle)' and Craig v. Church, the aband onment was overruled, solely because the employing the vessel was deemed a waiver. I must again beg leave to insist on the agency from necessity of the plaintiff, and to deny that being merely passive in cases of abandonment, is equivalent to a positive refusal. The underwriter has SO days before he is under any obligation to decide on the offer to abandon; during that period, circumstances may require him to be cautions, and hesitate in pronouncing his determination; at this time he is passive. The defendant here refused at once without hesitation. The decision must be whether the offer to abandon ought to have been, and in all future cases 'must be, repeated after a positive refusal to accept. Living on the spot does not alter the question. To offer a second time would be from courtesy; for after one party has explicitly taken his ground on that, the other may act and make it the line of his' future conduct. Whether this rule is to be adopted or not, is now to be determined.
    
      
       It is supposed that the case alluded to by the learned counsel is that of M'Masters v. Shoolbred, 1 Esp. Rep. 231.
    
    
      
      
         See the second point made by the Chief Justice, ibid, 646, but note the insurance there was on a policy for time.
    
    
      
      
        V) The frequent allusion to the case of Saidler and Craig v. Church, making it in some degree a part of the present, the reporter has thought it necessary to state the facts of it as represented in the case made for the opinion of the court. They were, that the insurance made in the name of Thomas-White, was made for and on account of the plaintiffs, and that they were the sole owners of the vessel mentioned in the policy.
      That the vessel in her due course on the voyage- insured, was captured by a French privateer, and carried into Guadaloupe, and that thereby hoi said voyage to the Havanna was totally lost.
      That at Guadaloupe the vessel was duly libelled in the admiralty court, and was there condemned, and after condemnation was purchased by George Duplex, the master, as for the account of the owners, for the sum of eleven hundred and twenty dollars. That the said master was also a part owner. That the owners had since fitted out the said brig and sent her on another voyage.
      ■ That as soon as the owners knew of the capture, and before they were informed of the condemnation, or of the purchase by the captain, they gave the underwriters notice of abandonment.
    
   Radcliff, J.

delivered the opinion of the court. In this case, .the general question is, whether the plaintiff is entitied to recover a total or a partial loss? Two objections *have been made against the recovery for [*302] a total loss.

1. That the case of a total loss never existed.

2. That the purchase at St. Christophers by the super* cargo, who was also a part owner of the ship, and the subsequent sale at New York, without the consent of the defendant, or a previous offer or tender of the ship to him, amounted to a waiver of the abandonment, and an adoption of the vessel as his own.

With respect to the first, it appears that the ship was condemned at St. Christophers, as unfit to proceed on her voyage, on account of the injuries she had received; and the persons appointed to survey her there certified, that in their opinion, she could not be repaired for her full value when repaired. It is also admitted, on the part of the defendant, that in consequence of the disasters experienced on the voyage, she was so much injured, that it was impossible, from the high prices of wages and materials, to repair her at St. Christophers for half her value, so as to enable her to bring on her whole cargo. It is again admitted on' the part of the plaintiff, that in the spring following, the ship came to New York with a light cargo of molasses and rum, being about sufficient for ballast, and that she might have brought a full cargo of rum, which was proved to be very light and buoyant.

On these facts, I am of opinion that there existed a case of a technical total loss, and that the assured had a right to abandoned. The question in such cases is not whether the vessel be in a capacity, or in a situation to be repaired, so as to prosecute her voyage with a half, or any other portion of her cargo, but whether she is capable of proceeding, or of being refitted to proceed, and carry the whole. A vessel is not seaworthy, unless she be in a condition to carry a full cargo. The contrary idea is novel, and inconsistent with every principle of propriety and safety in navigation. The vessel was insured to perform her voyage, and carry her cargo from Batavia to New York. This she was disa bled from doing. The enterprise, therefore, failed, [*803] *by means of the perils insured against, and the plaintiff had a right to abandon, and claim a total loss.

■ The second question is, whether he has waived this right. The vessel was ordered by the court of admiralty at St. Christophers to be sold for the benefit of all concerned. The supercargo, who was one of the owners, purchased her on account of the assured. The assured had previously, on receiving advice of her condemnation, and before any notice of the purchase, abandoned his interest to the underwriters, who refused to accept the abandonment. In what manner the supercargo, being also one of the owners, might be affected by the purchase, it is unnecessary to determine. The question is, whether the plaintiff ratified his acts subsequent to the abandonment, and recognized the purchase as his own. In the case of Saidler and, Craig v. Church, (July term, 1799,) after an abandonment, a similar purchase was made, and the assured adopted it as their own, by availing themsel-ves of the advantage it offered, and fitting out and sending the vessel on another voyage for their own account. Under these circumstances, we considered the assured as having affirmed the purchase, and waived the abandonment.

The present case differs in this, that the plaintiff has done no act to affirm the purchase. He has not appropriated the vessel to his own use, and has not attempted to derive any benefit from the purchase. The vessel was sold at auction on her arrival at Hew York, and purchased by a stranger. Although it be not expressly stated in the case, the sale must be presumed to have been made for the benefit of the underwriters. It is objected that the plaintiff ought again to have offered to deliver them the vessel, or have consulted them as to the propriety of the sale. I think this was not strictly necessary. The abandonment was an offer to cede all his title and the possession of the vessel, as far as under the circumstances it was capable of being delivered. The plaintiff was not bound to do more and it being a case proper for an abandonment, the defendant ought to have accepted it; or, at least, the refusal was at his peril. He did not accept, and the plaintiff was necessarily [*304] *left to act ás his trustee in the disposition of the property. If he executed the trust fairly, he has discharged his duty, and it was not incumbent on him tb follow the defendant, and repeat his application to receive what he ought at first to have accepted. The sale at auction was, therefore, justifiable, and the defendant ought to be charged with a total loss, deducting the proceeds of the sale, and the value of the freight from St. Christophers to Hew York.

Judgment for the plaintiff for a total loss 
      
      
         Whenever the injuries to the vessel within the perils of the policy, are such as to disable her from proceeding on the voyage, it is a total loss of all the subjects of insurance, if other vessels cannot' be procured to take the cargo. Manning v. Newnham, 2 Campb. 624. But a loss of the voyage as to the cargo is not a loss of the voyage as to the ship; if¡ therefore, on such an event, she be able or at liberty to perform her voyage, the assured on the ship cannot abandon and claim as for a total loss. Goold v. Shaw, 1 Johns. Cases, 293; Alexander v. Baltimore Insurance Company, 4 Cranch, 370, Hurtin v. Phœnix Insurance Company, 2 Marsh, by Condy, 601. a.
     
      
       After an unexcepted but effective abandonment the assured are qua» agents, or trustees, for the assurer, and the assurer, as to the subject of insurance, takes, or stands, in the place of the assured. Prom these two principles it necessarily follows, 1st. That those who were the agents of the assured become the agents of the underwriter, and that their acts as well as those of the underwriter, will, if bona fide done for the benefit of all concerned, be obligatory on the insurer as his acts, aid, therefore, cannot prejudice the rights of the insured: 2d. That the insured cannot claim from the insurer as for a. loss of that to which they were not themselves entitled. It results, from these deductions, 1st. That correspondents, consignees, supercargoes, and captains of the assured, are agents of the underwriter. Therefore, if the insured sell, even in the port of departure, the subject underwritten, without a view to his own benefit, it will not prejudice his claim for . a total loss. Walden v. Phœnix Insurance Company, 5 Johns. Rep. 310. Nor will going, after a loss within the policy from blockade, to a neighboring or other port, and a delivering there to the consignee of the insured, the goods underwritten. Schmidt v. United Insurance Company, 1 Johns. Rep. 249. 2d. That on an insurance on freight, though the goods to be carried be so damaged as not to be worth the transport, yet if the underwritten dc not entitle himself to it by an offer to take them on, he cannot recover from the insurer. Griswold v. New York Insurance Company, 3 Johns. Rep. 321. Nor will the acts of the insurer in saving of the cargo, and being present at its unlading and delivery, amount to an acceptance of the abandonment. Ib. lb. What shall be tantamount is a matter for jury determination. BeU v. Smith, 2 Johns. Bep. 98. After an accepted abandonment, all transfers and investments of the property are for the benefit of the insurer; who may maintain trover for the articles purchased with it. Robinson and Hartshorne v. United Insurance Company, 2 Caines’ Rep 280, affi"med in error, 1 Johns. Rep. 592.
     
      
       Where the loss was total at the time of abandonment, on a subsequent arrival, tender and refusal, holding the property 60 days, selling it and giving credit to the underwriter for the proceeds, said to be no obstacle to recovery Invingston v. Hastie and Patrick, January, 1803. But see, as to this poini^ Church v. Bedient and others, 1 Caines’. Cases in Error, 21, 42, 43,
     