
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    De Peau & Toutain v. Russel, and others.
    The policy provided, “that no abandonment of the neutral property, hereby insured, shall take place, in case of capture or detention by the British, until it be condemned, and the proceedings of the court, and sentence of condemnation, produced to substantiate the loss: and m ease of capture, or detention, by any other power, the like documents shall be produced, unless satisfactory reasons can be given, that they cannot be obtained.” Held, that the right to abandon, for a capture, was restrained until after condemnation, whether the capture were by any other power, or by the British.
    •Although there is no restriction in the policy, the insured cannot abandon for a capture, if, before giving notice of abandonment, he receive intelligence, that the vessel has been released, and has proceeded on her voyage.
    The insured cannot abandon, on the ground that the voyage has been defeated by a capture, after receiving intelligence that the vessel has been released, and has arrived in safety at her destined port; and it does not appear, that the extent of the loss on the voyage is such as to justify an abandonment as in case of a total loss.
    An extraordinary duty laid On the goods in the destined port, in the interval between the capture of the vessel, and her release, and arrival there, is not covered by the insurance against “ all unavoidable perils, losses, and misfortunes, to the damage of the goods.”
    Interest is not recoverable on the amount of an average, which was admitted by the underwriters, where the insured insisted on a right to abandon, and recover for a total loss.
    Special verdict as follows : “We find that the defendants insured, ®n goods on board the ship Pomona, the sum of $800, as appears by the policy attached,and forming a part of this verdict. That the said ship was captured, whilst proceeding on the voyage insured, on th« 10th September, 1801, and carried into the port of Algesiras, and there detained until the 22d October, following; aud that a general average accrued at Algesiras, on the cargo insured, to be divided among he under w iters, on the policy, to the amount of $1152 : and that the ship was released on the 23d October, 1801, and proceeded to, and arrived in safety at Malaga. But that previous to her release, or departure for Malaga, as aforesaid, on the 5th > f October, hostilities between t'.ie belligerent powers had subsided, and in consequence, a pea< e duty was laid on the cargo of the Pomona j which duty, during the war, was n. t demandable, but was imposed upon the peace taking place. That the plaintiffs, upon the first information of the captu.e and detention aforesaid, offered 
      to abandon to the underwriters, which offer was refused. We, therefore, if the court snouid he of op uion th t ■ . plaintiffs had a rigid )(> abandon, or I hat the extraordinary duties were a lo-s with-i dje terms ui the polio , find for ill plaintiffs an average loss of' 67-100 per cent., wnh costs. Or if the jury should be of opinion, that ihe plaintiffs nad no right to abandon, or that the extraordinary dunes on the intei veutiori of peace, were not charge» able against the underwri.ers, we find for the plaintiffs an average loss, say a rateable proportion, of the said sum of $1152, as the said sum bears to the whole sum insured, \> ith costs. And we also submit to the court the question ot inter© truuder the circumstances of the case ”
    The pol cy referred t in the special verdict, as to' the material points in question, is expressed as loliows : “"To be insured, lost or not lost, at and fiom Charleston to Malaga, upon any kinds of lawful’ goods and merchandize, laden, or lo be laden, on board the good registered American ship, called the Pomona, &c. Beginning the adventure upou the said lawful goods and merchandize, from, and immediately following the loading, thereof, on board of the said vessel, at Charleston, ; nd so shall continue, until the said goods shall be safely lauded at M daga, Aso. The perils the assured are to bear, are, of the seas, fire, enemies, pirates, assailing thieves, jetsous, letters of maique, takings at sea, restraints and detainments,. &c. ; and all other unavoidable perils, losses, and mis. fortunes, to the damage of ¡lie said goods, &c. Premium at the rate of 8 per cent, acknowledged ; and in case of loss, the assured to abate 2 per cent., and the insurer io indemnify at the- prime cost of 'ho goods, or ¡heir value in the policy, &c. The property to be warranted by the assured, free ot any charge which may arise in consequence ot a se zuie or detention, on account'of any illicit, or prohibited irade, &o. It is further agreed, that no abandonment of tbe ueutial propo-ioy, hereby insured, shall take place, in case of Capture, or detention by the British, until it be condemned, and the proceedings of the court, and sentence of condemnation, produced, to substantiate the loss : and in case of capture, or detention, by any other power, the like documents shall be produced, unless satisfactory reasons can be given, that they cannot be obtained.” Policy valued at $9000. Insurance $r¡200. The special verdict does not state, that me capture, and detention, was not by the Bri. fish, but from tbe uatuie and circumstances of the case, this must be implied ; nor at what time the offer to abandon was made.
    J, Ward, and W. Draston, for the plaintiffs,
    contended, 1. That fey the express agreement oí the parties, although no abandonment &f the property insured could take place, in case' the capture, or detention, had been by the British, as the property was not con. demned, and the proceedings oí a court, a>>d sentence of condemnation, was not produced to mbstantiaie the loss ; yet as the' capture aud detention was by another power, the construction of the policy does not require that the property should have been coo. demned, before an "bando1 me it could take pi; ce, hut only requires that the like documents shall be produced, unless satisfactory rea. sons can lie given, that ihey cannot be ubtaiued. Thai the assured had a right to abandon before conderrinaiion, by the general law, which was not taken away or restrained by the policy ; the po*i. cy only restraining the party, in case of condemnation, to certain proofs, namely,the proceedings of the court, and sentence of con. demoation : but as in this case there was no condemnation, these proofs cannot be required. Then the case, not being restricted by any express agreement of the parties, must be determined by the general rule .of law upon the subject. By the capture, there waa a total loss; and the assured had a right to abandon instantly, and, were not bound to await the final event. The insured may abandon in case merely of an arrest, or embargo, by a prince, not an enemy; and consequent!v such arrest is a loss within the meaning of the word detention. 2 Bur. 696. Burn, 132. Park, 79. No man is bound to await the event of an embargo, or other detention, not warranted by the law of nations as friendly and customary. ÍJ Bur. 6M6. 1211. This was an insurance upon the goods for the voyage; and therefore, if either the goods or the voyage was lost, it might be treated as a total loss. The goods, at one period of the voyage, were totally lost. They were afterwards released ; but the voyage was sfar defeated, that if was not worth pursuing. Doug. 219. P>:k. 145. 2 Marsh 4M 493. Evans, 36. The further pursuit of the voyage was not worth the freight : the da. mage sustained exceeded one half the value of the prop. rty. The peace duty imposed, might be considered as so much money paid in the nature of salvage; audit the salvage be very high a party may abandon. Doug. 219. The detention at Algesiras forty three days, was not only a great interruption to (be voyage, but occasioned great expense. Suppose the master had gone there volun. tarily, it would have been a deviation. Park, 295. The peace du. ty was imposed after the insurance was made ; and was one of the misfortunes insured against, and happened in consequence of the detention. They also contended, that interest was due from the Sjme of the offer to abandon.
    
      Príngre, Desaüssüre, and Cheves, contra.
    
    First, as to the construction of the contract in the policy, relative to abandonment 5 it must be made on th<- whole clause taken together. The copulative conjunction, “ and,” connects what is expressed with regard to capture or detention, with any other power than the British, with what is before expressed m the same sentence, or clause, with regard to capture or detention by the British. The only difference intended was, that in case oí capture or detention by the British, mo abandonment could take place, without producing the proceedings of the court, and sentence of condemnation ; but in case cf capture or detention by any other power, the production of such documents might be dispensed with, if satisfactory reasons could be given, to shew that they could not be produced. The reason for this difference is obvious. The proceedings of the British tribunals, although often contrary to justice, are always pursuant to the forms of law, and are not difficult to obtain : but this is not the case, in respect to the judicial proceedings of other powers. The words, “ until it be condemned,” must be understood, although not expressed, in the latter part of the clause, in the same way which is expressed in the foregoing part, by obvious implication and intendment : and acontrary construction will render the clause inopera, tive. But even admitting the propriety of the construction con. tended for on the other side, the assured in this case were not inti, tied to abandon. Immediately after the capture, it is admitted, the insured might have abandoned, or at any time during the detention of the vessel, because the loss at such time was total. But the offcr to abandon, or notice thereof, was not given in this case until after the vessel was released; and the insured had knowledge of the release of the vessel, at the time when such offer, or notice, was given. The loss, therefore, was not total, when the offer of abandonment was made, and the party had no right then to abandon, Park, 145, 146. 2 Bur. 1214. 1 T. R. 191. Evans, 87. No. tice must be given in a reasonable time after the intelligence re. ceived, although there is no precise time limited. Park, 172. Evans, 38. This was not done in this case. But it has been contended, that the voyage was lost, or was not worth pursuing; and therefore, on that ground, the party had a right to abandon. The samo objection as to reasonable notice, applies also to this ground. At the time when the offer to abandon is made, the voyage must appear to be defeated ; but the vessel had then arrived safe at the port of destination, and therefore the voyage was not defeated, but had been ■already pursued. If the injury received at Malaga were ever so great, yet the vessel and goods remaining, and the voyage being performed, the loss could not by abandonment be rendered total. 1 T. R. 187. For the insurance was on the goods for the voyage. The insured is not obliged to abandon, where he has a right to abandon ; but he has an election, and he ought to make his election speedily. Park, 172. The offer was not made within a reason, able time ; it was not made when the voyage appeared to be defeated : but the same accounts which gave intelligence of rhe capture and deteution, brought intelligence of the release of the vessel and goods. The peril was then over, and the thing insured was in safety. 2 Bur. 1198. Park, 168. 2 Marsh. 594. The right to abandon, must depend on the nature and extent of the damnification as it really is, at the time of the action brought. Hamilton v. Mendes, 2 Bur. 1198. The damage was not so great as to defeat the voyage, or rend, r it not worth pursuing. The injury was partial, and cannot be converted into a total loss by abandonment. No man would desire to abandon in a case, like this, but for one, of two reasons, namely, either becau.-e he is over valued, or because the market has fallen below the o iginal price : and these reasons are conclusive against allowing it. The voyage met with a short, temporary obstruction ; but the ship and cargo were both safe. The expense inemred did not amount to half the value. The pursuit of the voyage was worth at least more than the freight. Park, 145. 2 Bur. 1198. The peace duties did not exceed 50 per cent. But this peace duty was t ot in the contemplation of the policy, and therefore, not one of the perils iusured against. But if it is, it is the subject of partial loss only. The underwr.ters must contribute such a proportion to the whole amount of their subscrip, iion, as the loss, or deterioration sustained, bears to the whole va. lue of the commodity insured. 'Phis being a valued policy, the va. luation comes in lieu of the prime cost. What is the nature of the contract! That the goods shall come safe to the pon of delivery. The goods did arrive safe. The peace duty did not affect the goods. It was not within the policy. The plaintiffs are in titled to recover arateable proportion of the loss sustained, viz. of $1152, as found by the jury, and no more. The peace occasioned the duty, not the deteution. It was a political event not insured against. The consequence of the detention until a peace duty was laid, was not a direct consequence, for if the deteution had not been so long, the duty would net have been incurred : and adjustment cannot de. pend on such contingencies. 2 Marsh. 628. The plaintiffs are only jntitled to ayeragofov repairs, &c, at Algesiras. As to interest, it is not as of course that the plaintiffs can claim interest on the average recovered. The payment of average in this case was not refused, or delayed unreasonably, or against conscience ; but the delay of pay. meot, was in consequence of a dispute between the parties, as to the quantum due. The plaintiffs claimed more than they are intitied to recover : the defendants were always willing to pay what was justly due. After the termination of the disputed point in fa. vor of the defendants, it would be hard to make them pay interest, which did not accrue by their fault. Curia advisare vult.
    
   In December, 1804,

Bkevard, J.

delivered the unanimous opinion of the judge» who heard the argument, as follows :

The principal question submitted to the court, by the special verdict in this case, is, whether the plaintiffs, under the policy of insu* ranee, and all the circumstances of the case, had a right to abandon. The clause in the policy, upon the construction of which the right to abandon is denied, is expressed in these words: “ It is further agreed, that no abandonment of the neutral property, hereby insured, shall take place, in case of capture or detention by the British, until it be condemned, and the proceedings of the court, and sentence of condemnation, produced to substantiate the loss : and in case of capture, or detention, by any other power, the like documents shall be produced, unless satisfactory reasons can be given, that they cannot be obtained.” The verdict does not state whether the capture and detention was by the British, or some other power : but it is understood, however, that it toas noi by the British. The opin. ion of the court is, that the true sense of the clause may be thus rendered : That no abandonment of the property insured shall take place, in case of capture or detention by the British, until after con. demnation ; and not until the proceedings of the court, in which the condemnation shall be obtained, have been produced to the insurers, to satisfy them that the property has been condemned in due form : nor in case of capture or detention by any ot bet-1 power, until the like documents have been produced, unless it should appear that they cannot bo obtained. This seems to be the most natural, and reasonable construction, the words can receive. The whole elause should be taken aud construed together. The intent seems to have been, to qualify and abridge tne general right of abandonment. The first part of the clause, concerns captures and detentions by the British: the latter part, concerns captures and detentions by other powers. The laber part cannot be understood, ■without having reference to the former. For what purpose should the proceedings of court, and sentence of condemnation, be pro» duced, but to evince the right to abandon 1 And when, but at the time the offer to abandon is aide ? There might have been reasons for the distinction made between the British and other powers. The difficulty of procuring the judicial proceedings of the British courts, might not have been so great, as those of 'he tribunals of other powers, from whom capture and detention might have been apprehended. But if the general : >ght to abandon should be granted in this c«se, as unfettered by tins clause in the policy, still I should be of opinion, that the plaintiffs were not entitled to abandon. The verdict does not state at what time the offer to abandon was made, but only, “ that the plaintiff., upon the first info mation of the capture and detention, offered to abandon.” L does not appear at what time this first information was received ; nor w hi ther the plaintiffs did not, at the same time, receive intelligence that the vessel was released, and had proceeded on her voyage: and perhaps, that she had arrived in safi-ry at the port of destination. If such intelligence was received, before the offer to abandon »-is made, and as nothing appears to the contrary, we may conclude that this was the case, t,e plaintiffs bad no right to abundo.,, because the loss did not then appear to be total. Park, 145, 146, 2 Bur. 1214. 1 T R. 191. Evans, 37.

It has been insisted, however, that as the insuiaiice was upon the goods for the voyage, if it should appear that ei her the goo.,», the voyage, were los<, it may be treated as total, provided there a total loss at any period of the voyage : and that as the loss m thi» case was total at one period of the voyage, by reason of the capture ; and as the voyage was. in consequence thereof, so far defeated, that it was not worth pursuing, tliere/ore it may be treated as a total loss, notwithstanding the sunsequent release of the ship and cargo. But it does not appear that the voy gr- was so far defeated, by reason of any of the perils insured agui..st, as to have been not worth the further pursuit, at the time of the offer to abandon. It is not stated when ’he offer to abandon was made. For any tin. g that appears, ii might have been after the vessel had arrived sate in port: after the peril was over, and the gj./ds in safety. If so, and we may presume ihat this was the case, the plai niffs had i.o rg'u to abandon. 2 Bur. 1198. Park, 108. Besides, as the right u> abandon on this ground, depends on the nature and extent of the dam -.fication, and as it does not appear m this case that the da, ng -nslained was, in its nature and extent, sufficient to justny tin piamntis m abandoning m the underwriters, as in case of a total loss, 1 am of opinion they could not do it,

The next question submitted by the special verdict, is, whethef the extraordinary duties laid on the cargo, or goods insured, while detained at Algesiras, should be considered as embraced by the terms of the policy, and chargeable against the underwriters. p0j¿Cy subjects the underwriter to responsibility on account of all the usual perils, comprehending “ all unavoidable perils, losses and misfortunes, to the damage of the goods.” The peace duty did not affect the goods. It does not appear that they sustained any damage by the event complained of. Tb'-y were subjected to a charge, or duty ; but this was a political event not insured against. The underwriters are bound to know every cause which may occasion natural perils, and also all political dangers. Park, 105. The peace duty cannot be considered as one of the perils insured against.

The court are, therefore, unanimously of opinion, that the plaintiffs should have jn.'gment for a rateable proportion of the sum of $1152, without interest. The delay ol payment was occasioned by the plaintiffs’ requiring more than was legally due to them ; the defendants were not in default, and oughi not to pay interest.

Judgment accordingly, for the plaintiffs.

Present, Grimke, Waties, 'f rbzevant, and Brevard, Justices,  