
    Thomas Lee, Jun., versus William H. Boardman.
    An insurance upon a ship and freight, from Boston to one or more ports beyond the Cape of Good Hope, and at and from thence to her port of discharge in Europe, or the United States. On her return towards Lisbon, and when within three days’ sail of her port, the ship was arrested by a British vessel of war, carried to Bermudas, and in the Vice-admiralty Court there libelled as prize. When the assured heard of the capture, and while she was detained, he abandoned to the underwriters, who refused to accept the abandonment. The ship and cargo were afterwards restored, and arrived in safety at New York, where the cargo was landed in good order. The assured brings his action for a total loss of ship and freight, and it was held he was entitled to recover.
    This was an action pending in Suffolk, upon a policy of insurance upon the ship Elizabeth, her appurtenances and outfits, and on he freight from Boston, to one or more ports beyond the Cape 
      
      of Good Hope, one or more times, for the purpose of procuring a homeward cargo, and at and from thence to her port of discharge in Europe, or the United States, with liberty to touch at the usua. places, for refreshments, &c. 7000 dollars were insured, viz., 4500 on the ship and appurtenances, and 2500 on the freight. The loss to be paid in sixty days after proof. It was agreed that the freight was not liable for wages, provisions, or detention.
    The declaration alleges that the defendant subscribed 1000 dollars, and that the ship with a cargo on board, while sailing * from the port of Soosoo, in the island of Sumatra, [ * 239 ] towards the port of Lisbon, in Europe, was captured by a British vessel of war, on the 10th day of January, 1806, and thereby became and were wholly lost, and of no use to the plaintiff, of which the defendant had notice, &c.
    At the last November term, in Boston, upon trial before Barker, J., the jury found a verdict for the plaintiff as for a total loss on the ship only. At the last March term, this verdict was set aside by agreement of the parties, and the cause was submitted to the opinion of the Court upon the following facts contained in a case stated, viz.
    
    The defendant subscribed the policy declared on, and the plaintiff was interested in the ship and freight to a greater amount than the sum by him insured. The ship sailed from Boston on her voyage, December 15th, 1804, and arrived at Sumatra, from whence she sailed July 22d, 1805, with a cargo of pepper, bound to Lisbon, or some other port in Europe, for the purpose of selling her cargo. When within three days’ sail of Lisbon, she was captured by a British frigate, and a prize-master and crew put on board, who carried her to Bermudas, where the ship and cargo were libelled in the Vice-admiralty Court as prize. In May, 1806, trial was had, and further proof ordered. In August following, after another hearing, both ship and cargo were decreed to be restored to the master, who, under direction from the supercargo, proceeded to New York, at which place he arrived on the 31st of said August. The cargo was there landed in good order, and full freight received by the supercargo. The ship was libelled and sold for the payment of the wages due to the seamen.
    The first advice of the capture was received by the plaintiff in a letter from the supercargo, on the 21st of March, 1806. On the 25th of the same, month, the plaintiff offered to abandon all his interest in the ship and freight to the defendant and the other underwriters, who refused to accept it. The plaintiff never after-wards gave any directions respecting the prope-ty, but always referred the supercargo to the underwriters, who declined any interference.
    The writ in this case was sued out and dated July 24th, 1806, but was not served on the defendants until the 15th of [ * 240 ] * September following, which was after the arrival of the ship at Neto York. But it was agreed that this delay was owing to some arrangements attempted to be made between the plaintiff and the underwriters, and particularly an agreement on the part of all the other underwriters to be bound by the event of this action, which was not acceded to by the whole number of the underwriters, until the day on which the writ was served on the defendant in this case.
    If, upon these facts, it should be the opinion of the Court that the plaintiff was not entitled to recover any thing in this action, he was to become nonsuit, and the defendant recover his costs; if the Court should be of opinion that the plaintiff was entitled to recover as for a total loss, the defendant was to be defaulted, and judgment entered for the plaintiff accordingly ; and if the opinion of the Court should be, that the plaintiff was entitled to a partial loss only, on vessel and freight, or either of them, the amount of such partial loss was to be ascertained by assessors, to be appointed by the Court, according to such principles as should be prescribed by the Court, and judgment accordingly.
    The cause was argued at the July adjournment, in Boston, by C. Jackson, for the plaintiff, and by Amory and Dexter, for the defendant. The Court desired to hear the defendant’s counsel first.
    
      Amory
    
    contended that as the freight was agreed, by the policy, not to be liable for wages, detention, or provisions, and the whole loss to the freight in this case arising only from detention, is not within the policy. The ship had received the same freight as she would, had she proceeded on her intended voyage without this interruption, and arrived at Lisbon; so that, without this special agreement, there would have been no charge on the underwriters on account of the freight.
    The ship was restored in as good condition as when stopped, and might have proceeded on her contemplated voyage to Lisbon, if the supercargo had seen fit. So that here was only a slight detention ; and underwriters do not undertake that a ship shall perform her vojage in a shorter or longer period. This, then, was not even a loss of the ship for the voyage, which is the description j * 241 ] of a species of technical total loss, * adopted by Park, and other elementary writers on this subject. The doctrine, however, respecting such a loss has been considerably shaken by the opinion delivered by Lord Ellenborough, in the case of Anderson vs. the Royal Exchange Insurance Company 
      .
    Abandonment does not entitle the assured to recover for a total loss, unless subsequent events show that a total loss existed at the time of the abandonment, or was a consequence of facts then existing. Insurance being a contract of indemnity only, underwriters do all they engage for, when they see the property restored to the assured in good plight. The right to abandon can have no other fair or legal effect, than to procure to the assured an indemnity ; and when the ship is restored before verdict, or, at most, before action brought, as was the case here, the assured’s rights under the abandonment cease; or, which amounts to the same thing, his recovery is to be regulated by circumstances, as they actually exist at one of those periods.
    Permitting the ship to be sold for the payment of wages due from the assured, is tantamount to a sale by the assured himself, and amounts to a waiver of the abandonment.
    
      Jackson, for the plaintiff,
    insisted that, during the detention at Bermudas, a total loss unquestionably existed, and the plaintiff had therefore a right to abandon. The ship was captured within three days’ sail of her destined port, was carried nearly 3000 miles out of her course, and the projected adventure was thereby frustrated. The assured having made his election, which was reserved to him by the policy, the voyage to Europe is to be considered as the one insured, and that was defeated. Further expense was necessary, amounting, as the event has proved, to near six per cent. The event has also proved that the plaintiff had sufficient grounds to apprehend his voyage defeated, at the time of the offer to abandon ; for the vessel was detained near six months. The cargo, which but for this interruption would have reached Lisbon in February, could not arrive till September, if she was then capable of making so long a passage, and, when * arrived, [ * 242 J would have still had a market to seek. It is difficult to imagine a stronger case of a right to abandon, and this, when rightfully done, will bind the underwriters, whatever may be the ultimate fate of the ship .
    Nor has any circumstance occurred, since the plaintiff’s offer to abandon, to prevent his recovering for a total loss. When it is said by writers on this subject, that the indemnity to be recovered must be according to the state of things at the time payment is made, they must be understood to refer, at farthest, to the time when payment is due, according to the terms of the contract. Anothei interpretation would lead to very absurd consequences. If, by delay of fulfilling his engagement, the insurer has a chance of circumstances which shall discharge him, a temptation is thrown out to shuffle off a fair demand, by which the assured may be ruined ; a bounty is offered on litigation. There is no mutuality; for, while the underwriter is speculating upon his chances of reducing the demand of the assured, the latter is bound ■ in all events, and can recover but the amount due at the time of his offer to abandon. As to the legal interest which is added, it is neither sufficient, considered as a compensation to the assured, or as a penalty on the underwriter.
    And Marshal (page 485) explains this rule according to the principle now contended for; he states the right to be “ according to the state of the case at the time when the assured makes his claim.” It is true, this writer goes on afterwards to apply the rule to the state of -the case at the time of the action brought, or offer to abandon. But this is merely adopting the expressions of Lord Mansfield, in the case of Hamilton vs. Mendes 
      . That case has lately undergone a very full discussion, in the Supreme Court of Pennsylvania, in the case of Hutilh vs. Gatliff 
      , and its authority was properly confined to the point actually decided, viz., that the insured shall not be permitted to abandon, if, at the time of his offer, the property is restored to his possession but little injured, and with no loss of the voyage.
    [ * 243 ] * But, admitting that the case is to be decided according to the state of facts at the time of action brought, which in this case was the 24th of July , at which time the ship was still in the hands of the captors, and no event had occurred to vary the case. And even if the plaintiff’s right to recover were to depend on the state of his case at the time of the trial, or at this moment, he could maintain his claim for a total loss. He has never received, nor had the control of the property, or of its proceeds, an instant since the capture. From its restoration by the British, to this time, it has always been in the possession, and under the exclusive control of the underwriters by their agents, the supercargo, and master of the vessel.
    
      Deocter, in reply,
    contended that the loss had ceased to be total, before the commencement of the action; and that judgment ought not to be rendered according to the then existing state of facts The voyage was not defeated. There is nothing in the state of facts igreed, which shows that the ship was unfit, after her restoration, to have completed her intended voyage to Lisbon. The owner having an election, preferred to try the.New York market, and the ship and cargo arrived in safety at that port, which was a completion of the voyage within the terms of the policy. But if it was not, unless the assured shows that the ship was incapable of performing the voyage to Europe, he has no right to call on the underwriters.
    It is not denied, that where underwriters assent to the abandonment, the state of things, at the time of the offer to abandon, must govern; so perhaps if they are silent, as was the fact in the case reported by Dallas: but when they refuse to accept the abandonment, as was the case here, neither party is bound by it; and posterior facts must show whether it was rightfully made or not. No contract binds, without the consent of all the parties to it. And this rule of law applies with strong reason to such a case as the present. The underwriters are ignorant of the facts which have taken place; and they often need time to consider their legal rights and duties, where the facts are before them. It is unreasonable, * then, to compel them to an instantaneous de- [ * 244 ] cisión, upon an offer of the assured to abandon, while the assured still retains a right to waive his abandonment.
    If the assured will lie by, and delay bringing his action, he ought certainly to be bound, as in other actions, by his rights, and the corresponding duties of the insurers, at the time when he sees fit to commence his suit.
    
      
       7 East. 42.
    
    
      
      
        Marshal, 484.
    
    
      
       2 Burr, 1198.
    
    
      
       4 Dallas, 446.
    
    
      
       2 Burr. 950.—3 Wils. 466.—1 Ld. Ray. 383.
    
   The action was continued nisi, and now, at this term, the opinion of the Court was delivered by

Parker, J.

[after reciting the facts.] Upon this state of facts, the plaintiff claims to recover, as for a total loss of ship and freight, upon the ground that his offer to abandon on the 25th of March while the ship was actually in possession of the captors, and undei legal process in the Admiralty Court, vested in him a perfect right to recover, which could not be impaired by any subsequent event not within his agency and control, and not produced by his consent.

The defendant denies that there ever was a total loss; but if there was, contends that the acquittal and restoration of the ship, her safe arrival at New York, delivery of her cargo and earning freight, are facts which change the total into a partial loss, for which only, he says, the plaintiff can recover in this action. And he contends this with more confidence, because, he says, that all these facts happened before the commencement of the plaintiff’s action, the writ not having been served until the 15th of September, although it appears to have issued some time before.

On the question made by the counsel, whether the actual suing out of the writ, or the service of it, was the commencement of the action, no opinion need be given, as the decision of this cause rests upon a principle which renders a settlement of that question unnecessary.

That the capture of this vessel as prize, carrying her out of the course of her voyage, and libelling her as prize, gave the insured a right to abandon during the existence of those facts, and to claim for a total loss of ship and freight, can admit of no doubt. The only argument assumed by the defendant’s counsel upon this point is, that these facts, having happened through the interven- [ * 245 ] tian of a power in amity with * the United States, they do not constitute a capture in its technical sense, and that the ordinary consequences of a capture cannot flow from them.

But whether there was a technical capture or not, is immaterial in the present question, it being well settled that any detention by princes, by embargo, or otherwise, gives the insured a right to abandon, and claim as for a total loss, as well as a capture by enemies .

But it seems also well settled, that facts like those agreed in the present case do, between insurer and insured, constitute a capture, and draw after them all the consequences of a capture.

English and other foreign writers place the taking of a neutral ship upon the same footing, as it respects a contract of insurance, with the capture by an enemy, in open war.

For any loss occasioned by capture, whether lawful or unlawful, and whether by friends or enemies, the insurer is liable. He is also liable, whether the property in the thing insured be changed by the capture or not .

If a neutral ship be taken, and carried into the port of a belligerent, under pretence that she belongs to the enemy, or is laden with enemy’s goods, this is a capture, because it is done as an act of hostility; and if she be afterwards restored, still it must be considered a capture .

The assurer is held, whether the capture be just or unjust, whether it is caused by hostility, or be for plunder ; for in whatever manner it is done, it is a marine accident, or peril of the sea; and the insurer is held for all perils of the sea .

Valin, also, in his commentary on the 26th article of the ordi nonce of Louis 14th, says, the assurers are answerable, not only for captures made by enemies, but even for those which are unjustly made by friends, whether allies or neutrals; in one word, for all captures made by reason of hostility, robbery, or otherwise.

The taking of this ship being with intention to make prize of her, as is proved by her being libelled as prize, and as is agreed in the case, there can be no pretence but it was a * capture within the principles laid down by the [ * 246 ] eminent writers before cited. This capture constituted a total loss of vessel and freight, if the insured chose to consider it during its continuance, by abandoning his interest therein to the underwriters. Had he neglected to abandon, until after the restoration of the ship to the master or supercargo, he would have waived his right to consider the capture a total loss. But it appears here, that the offer to abandon was during the detention of the ship by the captors, and while she was under admiralty process. His right, therefore, became vested, and was perfect; and the only question which can admit of an argument is, whether the subsequent restoration, without any act on his part showing an intention to waive the right acquired by the abandonment, shall change this total into a partial loss.

And here the defendant contends, that as the ship was restored to the master, who, under direction of the supercargo, navigated her to New York, where she safely delivered her cargo, and earned her freight, before the commencement of this action, the loss, if ever total, had become partial; and that, according to Lord Mansfield''s doctrine, in the case of Hamilton vs. Mendes, the plaintiff ought to recover only for the damage actually sustained.

The doctrine thus advanced by Lord Mansfield is less accurately stated than was usual for that great man upon subjects of this nature ; and indeed, if true in the sense assumed by the defendants, militates with principles which he has established with much more precision, and greater strength of reason.

It should be remembered, too, that in the case he was then considering, there was no abandonment until the temporary restraint upon the ship had ceased, and she had resumed the course of her voyage, and indeed nearly terminated it. The doctrine contended for by the assured in that case was, that the capture alone, without condemnation,- and without abandonment, during its continuance, was a total loss. This doctrine he entirely and justly discountenanced, and then expressed his doubts, whether, to entitle the plaintiff to recover, the loss should not continue total up to the lime of *the commencement of the action. It does not [ * 247 j appear that, had there been an abandonment while the capture continued, he would not have considered the total loss as continuing.' Indeed, I see nothing in that case, from which it is to be inferred, that a vested right does not accrue to the insured, after abandonment m case of capture, although the vessel be afterwards restored.

It appears to be perfectly well settled, taking the whole course of English authorities upon the subject of insurance into view, that whenever a total loss, in the legal contemplation of the phrase, has accrued, an abandonment or offer to abandon, by the insured, gives a vested right to claim for such total loss, and throws the property upon the assurer.

It appears, also, that in such case, the master, or whoever has charge of the property, becomes instantly, upon abandonment, the agent of the assurer, that the earnings of the ship belong to him, and that, where the cargo is insured, the rise and fall of the market is at his hazard, and to his benefit; so that, upon abandonment seasonably made or offered, the only question would seem to be, whether a right to abandon existed at the time; and if it did, the relation of the parties to the property is fixed by that act, unless where the assurer does not accept, and the-assured waives his right' which has been done in this case .

If this doctrine be not true, but the rights of the parties are held to be uncertain and fluctuating, after a regular abandonment under circumstances which, by the laws of insurance, constitute a total loss, there seems to be no reason why the commencement of the action should be fixed upon as the period when this uncertainty is to cease, rather than the time of rendering the verdict; for until then, if it is upon principles of equity, the door is kept open, and there is opportunity for an equitable adjustment. But how great the inconvenience would be to the public, and to the parties to the contract, that the degree of responsibility of the insurer should not be known, until the end of a lawsuit is attained, must be obvi pus to every one who considers the importance of having some legal owner of the property abandoned, to prevent its waste and destruction. In the mean time, it is out of the power [ * 248 ] of the assured to calculate with any certainty * upon the extent of his funds; his commercial enterprise will be checked, and his plans embarrassed and defeated.

For these reasons, we are all of opinion, that the interest of commerce, as well as that of the contracting parties in a policy, require that some period should be established, at which the right or- the insured to his indemnity, and of the assurer to the property, should be fixed; and we think we are clearly warranted by sound principles to fix the time of abandonment as that period.

No case, to our knowledge, has occurred in England, precisely establishing this point, though the principles adopted there must lead to this conclusion, whenever a case happens, which will require a specific adjudication upon this subject. Indeed, the principle seems to be fully admitted in the case of Kemp & Al. vs. Vigne , where Lord Mansfield himself says, that a temporary capture is such a total loss, as that an insured upon interest is warranted in abandoning at the time, if he please. Now, no case has been cited which shows that after an abandonment rightfully made, the assurer can resist the payment of a total loss.

Emerigon, before cited, shows, that the abandonment, under such circumstances, is the proper test of the assured’s claim. His words are, If, upon a total loss happening, the ship be abandoned, but afterwards arrive safe, or otherwise recover her liberty, the insurer shall, nevertheless, satisfy the insured as for a total loss; but then they, that is, the insurers, are entitled to all benefits of the voyage.”

This is all which is contended for by the plaintiff in the present action ; and he seems to have made good his claim.

A case was lately decided in the Supreme Court in the state ol Pennsylvania, which presented the, same objections, besides others more forcible, against a recovery for a total loss, as we find in the case before us; but they did not prevail; and the principle we have now decided, was unanimously assented to by the judges of that court.

We see no difficulty in the application of this principle in relation to the ship, or to the freight: the abandonment applied * to both, and the case does not show any act of [ * 249 ] the assured, amounting to a waiver of his rights, as to either of the subjects of the policy. Judgment must, therefore, be for a total loss both of vessel and freight . 
      
      
        Marshal, 483.
     
      
      
        [M' Bride vs. Mar. Ins. Co. 5 Johns. 299.—Ed
     
      
      
        Marshal 423, 432.
     
      
       Emerigon, Tom. 1. 537
     
      
      
        Pothier.
      
     
      
      
        [Jumel vs. Mar. Ins. Co. 7 Johns. 412.—Ed.]
     
      
       1 Term R. 304.
     
      
       [See Brown vs. Smith, 1 Dow, 349.—Smith vs. Roberts, 2 Dow, 474.—Sed vide Hughes Ins. 408, 413.—Low vs. Goddard, 12 Mass. 112.—Smith, M. L 241.—If a ship Its captured, or detained under an embargo, and before action brought she escape, -.or bo recaptured, or rescued, or the embargo be removed, the loss, which once was primA facie total, becomes partial.—Bainbridge vs. Nelson, 10 East. 329.—1 Camp. 237, 564.— Patterson vs. Ritchie, 4 M. & S. 393.—Brotherton vs. Barber, 5 M. & S. 418.— 2 Wm. Saund. 203, b. n. 19.—Macarthy vs. Abel, 5 East. 388.—Everth vs. Smith, 2 M. &. S. 278.—Naylor, vs. Taylor, 9 B. & Cr. 718.—4 M. & R. 526.—M'Ivers vs. Henderson, 4 M. & S. 576.—Parsons vs. Scott, 2 Taunt. 363.—Cologan vs. Lond. Ins Co., 5 M. & S. 447.—M' Masters vs. Schoolbred, 1 Esp. 237.—Oliver & Al vs Newburyport Ins. Co., ante, 37.—Ed.]
     