The right of the insured to abandon and recover for a total loss
depends upon the state of the facts at the time of the offer to
abandon, and not upon the state of the information received.
A voyage may be really broken up without the destruction of the
vessel and cargo. A detention by a foreign prince, either by
embargo or capture, may be of such long duration as to defeat the
Capture and libel as prize of war is a peril insured against,
and of its continuance no certain estimate can be made. In case of
capture, it is for a time a total loss, and no person can say the
loss will not finally be total. Such a case, therefore, upon the
true principles of the contract, has been considered as justifying
an abandonment and a recovery of a total loss. But where a final
decree of restitution from which no appeal lies has been awarded,
the peril is over.
A technical total loss originates in the damages of a real total
loss. The technical loss is terminated by the decree of
restitution, unless something subsequent to that decree could be
shown to prove the continuance of the danger.
Error to the circuit court for the District of Pennsylvania in
an action for a total loss, on a policy of insurance on the Brig
her cargo and freight.
The material facts stated were that the Brig Rolla,
neutral vessel, while prosecuting the voyage insured, was captured
by a belligerent cruiser and libeled as prize of war. On 9 July,
1806, a final sentence in favor of the vessel and cargo was passed,
and on the 19th of the same month, about 1 o'clock P.M.,
restitution was made. On 17 July, assured in
Page 8 U. S. 203
New York received information of the capture and immediately
gave orders to his agent in Philadelphia to abandon to the
underwriters. In pursuance of these orders, the offer to abandon
was made on the morning of the 19th.
The judgment of the court below was for the defendants.
Page 8 U. S. 205
MR. CHIEF JUSTICE MARSHALL, after stating the facts of the case
as above, delivered the opinion of the Court as follows:
Page 8 U. S. 206
The question submitted to the consideration of the court is
this: is the assured entitled to recover for a partial or for a
In support of the claim for a total loss, two points have been
1st. That the state of information at the time of the
abandonment, not the state of the fact, must decide the right of
the assured to abandon.
If this be otherwise, then, it is contended
2d. That the right to abandon is coextensive with the detention,
which continued until restitution was made in fact, and that
restitution in fact, though made on the same day, was posterior in
point of time to the abandonment.
1. Does the right to abandon depend on the fact, or on the
information of the parties?
The right to abandon is founded on an actual or legal total
loss. It appears to the Court to consist with the nature of the
contract, which is truly stated to be a contract of indemnity, that
the real state of loss at the time the abandonment is made is the
proper and safe criterion of the rights of the parties. Might they
depend absolutely on the state of information, a seizure which
scarcely interrupted the voyage might be, and frequently would be
converted into a total loss, and the contests respecting the real
state of information might be endless. Intelligence of capture and
of restitution might be received at the same time, and the insured
might suppress the one and act upon the other.
This point came under the consideration of the Court in the case
of Rhinelander v. Insurance Company
of Pennsylvania, 8 U. S. 29
, in which
case it was said that
"where a belligerent has taken full possession of a vessel as
prize, and continues that possession to the time of the
abandonment, there exists in point of law a total loss."
The Court, in delivering this opinion, understood itself to
require that the continuance of the possession
Page 8 U. S. 207
up to the time of the abandonment, or a technical total loss
incurred, notwithstanding the restoration, was necessary to justify
a recovery as for a total loss.
In considering the second point, the Court proceeded to inquire
whether the technical total loss on which the right to abandon
depended was terminated by the decree of restitution or continued
until that decree was carried into execution and restitution was
made in fact.
The real object of the policy is not to effect a change in
property, but to indemnify the insured. Whenever, therefore, only a
partial loss is sustained by one of the perils insured against, the
original owner of the property retains it, prosecutes his voyage,
and recovers for his partial loss.
But the voyage may be really broken up without the destruction
of the vessel and cargo. A detention by a foreign prince, either by
embargo or capture, may be of such long duration as to defeat the
voyage. This is a peril insured against, and of its continuance no
certain estimate can be made. In the case of capture it is, for the
time, a total loss, and no person can confidently say that the loss
will not finally be total. So of an embargo. Its duration cannot be
measured, and it may destroy the object of the voyage. These
detentions, therefore, are for the time total losses, and they
furnish reasonable ground for the apprehension that their
continuance may be of such duration as to break up the voyage or
ruin the assured by keeping his property out of his possession.
Such a case, therefore, upon the true principles of the contract,
has been considered as justifying an abandonment and a recovery for
a total loss.
But when a final decree of restitution, from which it is
admitted that no appeal lies, has been awarded, the peril is over.
On no reasonable calculation can it be supposed that such a delay
of restitution will ensue, as from that time to break up the
voyage. There is no reason to presume a subsequent detention on the
Page 8 U. S. 208
the foreign prince. There is no motive for such detention. The
master of the captured vessel may perhaps not be ready to receive
possession, and the delay may proceed from him. At any rate,
without some evidence that the peril was not actually determined,
the court cannot consider it as continuing after the sentence was
pronounced. A technical total loss originates in the danger of a
real total loss. The court cannot suppose such a danger to have
existed after a final sentence of acquittal unless some order of
court relative to a reconsideration could be shown or it should
appear that some other delays were interposed by the court which
had pronounced the sentence or by the sovereign of the captor.
Had the facts on which this question depends been known at New
York and Philadelphia as they occurred, could it have been said
that there existed a technical total loss? After a decree of
restitution, could it be said that while means were taking to carry
that decree into execution, while the mandate for restitution was
passing from the court to the vessel, the assured had a right to
elect to consider his vessel as lost and to abandon to the
underwriters? To this Court it seems that the right to make such an
election at such a time would be inconsistent with the spirit of
the contract, and that the technical total loss was terminated by
the decree of restitution unless something subsequent to that
decree could be shown to prove the continuance of the danger or of
an adversary detention.
Nothing in this opinion is intended to extend to the case where
a cargo may be lost without the loss of the vessel.
There is no error in the judgment of the circuit Court of
Pennsylvania, and it is to be affirmed with costs.