Joseph A. (Joseph Asbury) Joyce.

A treatise on marine, fire, life, accident and all other insurances, including mutual benefit societies, covering also general average, and, so far as applicable, rights, remedies, pleading, practice and evidence (Volume 4) online

. (page 1 of 105)
Online LibraryJoseph A. (Joseph Asbury) JoyceA treatise on marine, fire, life, accident and all other insurances, including mutual benefit societies, covering also general average, and, so far as applicable, rights, remedies, pleading, practice and evidence (Volume 4) → online text (page 1 of 105)
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1S9 7.

Entered according to Act of Congress in the year 1897,


In the Office of the Lihrarian of Congress, at Washington.

San FbancI8co:

The Filmer-Rollins Electrotype Company,

Typographers and Stereotypers.




§ 2955. Abandonment has reference to property at risk at time.
£ 2956. Effect of parting with interest.

5 2957. Abandonment to second or different assurers: Salvage ap-
§ 295S. Cargo and profits insured separately: Double abandonment.
§ 2959. Voyage defeated or loss caused by a peril not insured against.
§ 2960. Notice and proof of abandonment necessary: Object and pur-
pose of notice: How far claim for total loss implies aban-
§ 2961. Assured must not await results: Must abandon in reasonable

§ 2962. Where property would perish before notice could be received.
§ 2963. What constitutes reasonable time.
§ 2964. What is not reasonable time.
§ 2965. How far notice in reasonable time affected by available

means of speedy communication.
§ 2966. Abandonment by mortgagee: Reasonable time.
§ 2967. Effect of stipulation as to time of abandonment or agree-
ment keeping right in abeyance.
§ 2968. How far delay affected by fact that assurer not prejudiced

§ 2969. Loss total at date of abandonment: Revival of right to aban-
§ 2970. Advice of loss: Necessary source and means of informa-
tion authorizing notice.
§ 2971. Character of the information: Actual state of facts.
S 2972. Abandonment not validated by subsequent events: New

§ 2973. Sufficient grounds and true causes must be assigned.
§ 2974. Though wrong cause assigned may recover actual loss.
§ 2975. Non-communication of additional causes or of all causes,

when sufficient cause stated.
§ 2976. Sufficiency of abandonment and cases.
§ 2977. Sufficiency of abandonment: Subject matter clearly indicated

though not expressly named: "Advances on board."
§ 297S. Abandonment must be positive, absolute, and unconditional:
Assured's acts of ownership: Form immaterial and writing
Joyce. Vol. IV.— 182a (2911)



§ 2970. ITow far abandonment transfers title.

§ 29S0. Liens, encumbrances, contracts with third persons, charges,
expenses, and liabilities arising from abandonment.

i 29S1. Freight valued: Accounting for freight as salvage: Goods of
assured and other shippers on board.

§ 29S2. Abandonment where assured's possession has never been
parted with: Salvors as agents of assured.

§ 29S3. Abandonment: English registry acts: Vesting of title to ship.

§ 2984. Sails, etc., saved, not a fund in assured's hands to defray ex-
penses of getting off stranded vessel.

§ 29S5. Acceptance binds both parties.

5 2986. Acceptance under circumstances of doubt as to right to

§ 2987. Implied acceptance: Taking possession of vessel.

§ 29S8. Constructive acceptance regardless of fifty per cent total
loss rule.

§ 2989. Acquiring and holding title under distinct right not an ac-

J 2990. What acts of assurer by his agent do and do not constitute

§ 2993. Merely taking possession of vessel and deficiency in repairs
as affecting acceptance.

§ 2992. Assurer not bound to refuse acceptance: Silence: Cases of

S 2993. Abandonment validly made, continuing though acceptance

§ 2994. Retroactive effect of abandonment and acceptance.

§ 2995. Effect upon assured's rights and assurer's liability of non-
acceptance: Disclaimer of interest in salvage.

§ 2996. Arrests, restraints, and detainments: Embargo, etc.

§ 2997. Blockade.

§ 2998. Freight: Stipulation not to abandon in case of blockade.

§ 2999. Abandonment, how far justified by fear of danger, capture,
detention, etc: Imminent danger.

8 3000. Same subject: Acceptance of cargo at another port by con-

§ 3001. Right to abandon may be taken away by capture after right

§ 3002. Abandonment for capture, how far restrained by stipula«

§ 3(H)3. Capture and seizure.

§ B004. Recapture.

§ 3005. Vessel and cargo held as security: Capture and recapture:

Expensive and doubtful litigation necessary to recover.
5 3006. Abandonment: Jettison contribution need not be first de-

§ 3007. Stranding: Submersion.

§ 300S. Fifty per cent rule and repairs.

S 3009. Extreme and imminent danger of destruction.


§ 3010. Fraudulent and designed exposure to peril distinguished
from mere negligence of master and mariners.

§ 3011. Vessel deserted by mariners because of inability to extricate
her from peril, or in case of mutiny, or to tave Lives, etc.

§ ;;oi2. Place of peril may enhance probability of total loss.

§ oUlo. Arrival of ship: Continuation of risk: Completion of voyage:
Ship on arrival not worth repairing, or repairs exceeding
fifty per cent: Freight.

§ 3014. Arrival of part of goods: Fifty per cent rule in such case.

§ 3015. Loss or retardation of voyage: Ship, cargo and freight.

§ 3016. Total, subsequent to partial, loss: Successive losses.

3 3017. Waiver of abandonment, purchase by assured, etc.

§ 3018. Waiver: Revocation and estoppel: Insured and insurer gen-
erally: Miscellaneous cases.

§ iS955. Abandonment bas Reference to Property at at Time. — If goods have never beea at insurer's risk
or if a part thereof has been discharged during the course of
the voyage, no abandonment need be made as to them; for
abandonment has reference to that part of the property in-
sured which is at risk at the time of the disaster. 1 So if no
goods have been loaded on board ship and the policy specifi-
cally values the ship and goods, here the ship only is at risk
to the extent of the valuation thereon, and abandonment must
be confined to the ship. 2 But where the goods were insured
"free from average unless general," and the boat arrived at its
destination with its cargo, and after a part had been landed
and delivered to the consignees, and the policy also limited the
risk until such time as the goods should be safely landed at the
destination, it was held that the liability for an absolute or
constructive total loss extended to the entire cargo, and as a
part had been safely discharged the risk had terminated. 5


1 Emerigon on Insurance. Meredith's ed. 1850, c. xvii. sec. 8. pp.
702. et seq. See Maryland Ins. Co. v. P.osley, 9 Gill & J. (Md.) 337;
11 a v. »lock v. Rockwood, 8 Term Rep. 268.

• Amery v. Rodgers, 1 Esp. 208.

9 Chadsey v. Guion, 97 N. Y. 333.

The syllabus in this case reads: "Defendant and others Issued an
open policy of marine insurance, a printed form being used; this pro-
vided that its general language should be controlled by indorsements
of special risks, as made from time to time. 'Touching the adven-
tures and perils' insured against, the policy declared that 'in this
voyage they are of the seas .... and all other perils, losses and mis-
Joyce, Vol. IV.— 183


§ 29."><>. KfTect of Parting: with Interest.— An assured
who has parted with his interest and thereby deprived himself
of the power of transferring the title cannot abandon. Thin,
if assured makes an absolute bill of sale, taking back an agree-
ment to apply the proceeds to the payment of his debts, or, in
other words, mortgages his ship, he has so far deprived him-
self of the absolute title that he cannot abandon, although he
may recover as for a partial loss the actual damage sustained. 4
In England, however, the mortgagor may convey an absolute
title, subject to such rights as appear upon the registry, for
the mortgagor is nevertheless the owner by force of the stat-
ute. 5 But if assured has an interest in the vessel at the time
of the disaster, he may recover upon the policy notwithstand-

fortunes that have or shall come to the hurt, detriment or damage of
the said goods and merchandise, or any part thereof.' A subsequent
provision, however, declared that 'vegetables and roots .... and all
other articles that are perishable in their own nature .... are war-
ranted by the assured free from average unless general.' The policy
also provided that 'the adventure shall continue and endure until the
said goods and shall be safely landed at ... . afore-
said. 9 Plaintiff's assignor was insured by indorsement on said policy,
upon a quantity of potatoes, "said to contain 1650 barrels." shipped in
bulu on a canal boat named, 'from New York to Yonkers F. P. A..'
which initials, it was conceded, meant that the risk was free from
particular average; i. e. that the assured should only be accountable
for a total loss. The boat arrived at its port of destination with its
entire cargo and in good order, but after about 109 barrels of the po-
tatoes had been taken out and delivered to the consignees in good
-order, the boat sank with the remainder of the cargo, and most of
ii was lost. In au action upon the policy held, that by the contract
i h< insurers were exempted from the payment of any loss, occurring
only to a portion of the property, their liability being confined to
the absolute or constructive loss of the entire cargo; and that there-
fore, when by the delivery in good order of a material part a total
loss during the progress of the insured voyage became impossible,
such liability terminated." The court cites upon the point in ques-
tion Wadsworth v. Pacific Ins. Co., 4 Wend. (N. Y.) 33: Ralli v. Jan-
son. G Ell. & Bl. 422; Moreau v. U. S. Ins. Go., 1 Wheat. (\J. S.) 219;
De Peyster v. Sun Mutual Ins. Co., 19 N. Y. 277; Guerlain v. Col. Ins.
Co., 7 Johns. (N. Y.) 527.

* Cordon v. Massachusetts Ins. Co., 2 Pick. (Mass.) 249; Lockej
v. North America Ins. Co., 13 Mass. 57, 61. See Higglnson v. Pall.
13 Mass. 207.

B So stated in 2 Arnnuld on Marine Insurance, Maclachlan's ed.
18S7, 957; c'ting Maclachlan on Shipping. 4?.

2015 MARINE RISKS. § 2957

ing the fact of his having subsequently and before the sinking
of the vessel made an assignment of his interest to others who
were ignorant of the injury. 6 So where a vessel at sea receives
such an injury from the perils of the sea that she must neces-
sarily founder before any relief or assistance can be obtained,
the insured may recover for a total loss notwithstanding that
between the time of the injury and of the sinking of the ves-
sel he had, in ignorance of the occurrence, made a transfer of
her. 7 And if the owner has parted with his interest by an
abandonment, which is accepted, he cannot abandon under
another policy; as where an abandonment was made to foreign
assurers, the loss paid, and an offer was made to abandon to
assurers in this country. 8 So a release by assured of the right
to recover the loss from any source will exonerate the insur-
ers pro tanto. 9

§ 2957. Abandonment to Second or Different Assur-
ers — Salvag-e Apportionment. — As stated under the last sec-
tion, the right to abandon to second assurers may be taken away

8 Duncan v. Great Western Ins. Co., 1 Abb. App. Dec. (N. Y.) 562;
3 Keyes (N. Y.), 394.

T Crosby v. New York etc. Ins. Co., 5 Bosw. (N. Y.) 369.

8 Higginson v. Dall, 13 Mass. 96.

8 Atlantic Ins. Co. v. Storrow, 5 Paige (N. Y.), 285.

Tiie syllabus in this case reads: "Where the master or ship-owners
are liable Lo the assured for a loss by theft for which the underwrit-
ers are also liable, if there is an abandonment for a total less, and the
insurer pays the amount of such loss he is entitled in equity to b*
subrogated to the rights of the assured as against the master or ship-
owners. And if the insured cancels the bill of lading, or discha: i
the claim against the master or ship-owners for the loss aftei he has
obtained judgment against the underwriter, the court of chancery
will relieve the latter against the judgment pro tanto." The chancel-
lor says (Id. 295): "By giving up the bill of lading to the master to be
canceled, after the judgment was obtained, the complainants were
deprived of their remedy over against the ship-owners; and standing
merely in the character of sureties, to indemnify the assured against
actual loss, the judgment must, in equity, be considered as satisfied
pro tanto. The vice-chancellor has therefore very properly directed
that the amount which the master ami ship-owners would nave I" en
liable for upon the bill of ladlug, should be deducted from the amount
of the judgment : instead of decreeing a perpetual Injunction against
the collection of the whole debt and costs."


by a prior accepted abandonment of all assured's interests. 10
But in case of a total loss, where two insurances have been
made on a ship, the first valued at a certain sum and the sec-
ond at a larger sum, the assured may abandon to the second
underwriters, and may take from them so much as the second
policy covers. 11 And abandonment to several underwriters
of the same subject does not impose upon them a joint liability
as copartners for repairs to the ship. 12 In case of abandon-
ment, the proceeds of a wreck inure to the benefit of the parties
bearing the loss, to the underwriters in proportion to the parts
by them severally insured, and to the owner in proportion to
the part remaining uninsured. 13 As already noted, however,
it is denied in a federal case that the rule of this and other
cases to the same effect is of force, so far at least as it makes
the owner his own insurer in cases where the abandonment
extends to the entire interest, a claim to one-seventh of a sal-
vage balance by the owner being rejected by the court. 14 In
another case seven of the policies were open, the eighth was
valued at forty cents per ruble, and the, ninth at forty-six cents
per ruble, being a value above the invoice price. The total
value of the goods was ninety-five thousand five hundred and
sixty-five rubles. The rule of apportionment upon abandon-
ment of salvage under the open policies, being the same pro-
portion that each policy was to the invoice value, would leave
an insufficient balance, to apply the rule of proportion of the
amount insured under the last policy, to the whole amount
valued, but it was held that the value per ruble in the last
policy upon the whole value of the cargo was the rule of in-
demnity. 15 Mr. Phillips considers this decision as "palpably
wrong, since such a rule operates inequitably and wrongfully
upon the underwriter in the last policy, or in all the policies,
according to the rule of apportionment that should be ap-

10 Higglnson v. Dall, IS Mass. 96.

11 Murray v. Insurance Co. of Pennsylvania. 2 Wash. (C. C.) 186.
11 United Ins. Co. v. Seott, 1 Johns. (N. Y.) 106. See see. 2938,

n rinpinn.iti Tns. Co. v. Duffield, 6 Ohio St. 200; 67 Am. Dec. 339.
14 See sees. 2004. 200.',. hoivin.
u Tleasants v. Maryland Ins. Co., 8 Cranch (U. S.), 56.

2917 MARINE RISKS. § 2953

plied." 16 In England, where there may he different sub-
scribers to the same policy or different sets of underwriters,
the salvage benefits accrue to the different subscribers in the
proportion of his subscription to the whole value insured, and
where there are several underwriters on different policies, as in
cases of double or overinsurance, inasmuch as indemnity pre-
vents more than one satisfaction for the loss, and all the un-
derwriters on the policies contribute ratably according to the
amount of their several subscriptions, they are entitled neces-
sarily to their proportion of the salvage benefits, and as the
owner is his own insurer for any excess of interest not covered,
he is likewise entitled in proportion to such uninsured part. 17
Some policies here do not contain what is known as the "Amer-
ican clause." 18 And although a policy contains said clause, the
rule as to pro rata contribution has been held to exist only in
cases of double insurance. 19 But to the extent that the above
rule and the reasons on which it depends is not affected by said
clause or other stipulations in the policy, it is the rule here, 20
and it is said that one underwriter is not bound by a particular
contract with another underwriter in relation to the same sub-
ject, whereby a deficiency is created in the amount of salvage
to which the former would be entitled. 21

§ 2958. Carjro and Profits Insured Separately — Double
Abandonment. — Where cargo and profits are insured sep-
arately, an abandonment of the cargo to the insurer on cargo
does not preclude the insured from recovering a total loss on
the policy on profits, in such a case, where an abandonment was

" 2 Phillips on Insurance, 3d ed., 402. 403, sec. 1715.

17 Stewart v. Greenock M. Ins. Co.. 2 H. L. Cas. 183; 2 Arnould on
Marine Insurance. Perkins' ed. 1850. 1201. *11S7; 2 Arnould on Ma-
rine Insurance, Maclachlan's ed. 1887. 979; citing Newby v. Reed,
1 P>1. Rep. 416; 1 Marshall on Insurance, 139, 145, ed. 1S10, p. 146, et
seq. See c. liii, herein.

19 See c. liii, herein.

18 Whiting v. Independent Mut. Ins. Co., 15 Mil. 297.

10 Cincinnati Ins. Co. v. Puffield, 6 Ohio St. 200: 07 Am. Poc. 339.
See Murray v. Insurance Co. of Pennsylvania. 2 Wash. (C. C.) 19G;
f! Kent's Commentaries, 289.

C1 See 2 Phillips on Insurance, 3d ed.. 402. et seq.


made on the profits, there was apparently no question but that
a constructive total loss of the goods constituted a total loss of
the profits, and the court expressly declared that "a double
abandonment as in this case does not deprive assured of his
remedy on a profit policy," and that the underwriter must
have supposed that the cargo would be abandoned in case of a
disaster to the underwriters thereon. The abandonment as to
the profits, however, could have transferred nothing to the
abandonee thereon, and the loss was an actually total one as
to profits. 22

§ 2959. Voyage Defeated or Loss Caused by a Peril
not Insured agfainst. — Tf the voyage is defeated by a peril
not insured against, or if such peril is the cause of the loss, no
right to abandon exists. 23

§ 2960. Notice and Proof of Abandonment Necessary —
Object and Purpose of Notice — How far Claim for Total
Loss Implies Abandonment. — As already stated, the assured
cannot recover for a constructive or technical total loss in the
absence of proof of abandonment and of notice of the same to
assurer. 24 It is held that if a vessel arrives in a foreign port
in a state justifying an abandonment, it is not prerequisite to
making abandonment as for a total loss that assured should
give the underwriters notice of the ship's condition before he
abandons. 25 The object or purpose of giving notice is to in-
form the underwriters, so soon as definite information or the
circumstances require it, of assured's election, so as to prevent
the assured from awaiting the chance of events, or a profitable
or favorable change of circumstances. The further object of

» Mumford v. Hallett, 1 Johns. (N. Y.) 483. See sees. 2901, 2957,

;s MoFee v. South Carolina Ins. Co.. 2 McCord fS. 0.). 503: 13 Am.
Doc. 757; Kichelieu etc. Co. v. Boston M. Ins. Co.. 136 U. S. 408; 10
Supr. Ct. Rep. 934; 20 Fed. Rep. 596; Bullard v. Roger Williams
Ins. Co., 1 Curt. (C. C.) 148.

M Oomilla v. Hibernia Ins. Co., 40 La. Ann. 553; 49 S. Rep. 490.
See sees. 2895, 2896, herein.

25 Cohen v. Charleston otc. Ins. Co., Dud. (S. C.) 147; 31 Am. Dec.
549; Hedley v. Nashville Ins. Co., 6 Rich. (S. C.) 130.

2919 MARINE RISKS. § 2960

the notice is to enable insurer to save himself such recomp<
as he may, to give him an opportunity as soon as reasonably
possible of reclaiming or rescuing the property, or if it be a
ship, of repairing and reinstating it in its original condition.-'''
It is stated as a rule by Mr. Phillips that "the claiming of a to-
tal loss is a sufficient expression of an intention to abandon." 27
The rule as thus broadly stated is objectionable, and we doubt
that it expresses the law, or that it is supported either by prin-
ciple or weight of authority. 28 We deduce from an examina-
tion of the cases that the question rests upon the in-
tention and understanding of the parties with respect to
an abandonment. The true rule seems to be this, that
if it clearly appears from the facts, circumstances, grounds,
and reasons upon which the assured proceeds, and from the
character and terms of the demand or claim that assured clearly
intends to abandon, and such intention is so evident that it
must have been so understood, or if it is so understood by the
assurers, the claims for a total loss will imply an abandonment,
even though it is not formally and in terms expressed. 29

M Phoenix Ins. Co. v. McGhee, 18 Can. S. C. 61, per Strong. J., and
Cotton, L. J.; Allwood v. Henkle, reported in 2 Marshall on In-
surance, ed. 1810, *593.

" 2 Thillips on Insurance, 3d ed., 3S2, et seq., sees. 1682, 1683;
relying upon Murray v. Hatch. 6 Mass. 465, per Sewall, J.; Patapsco
Ins. Co. v. Southgate, 5 Pet. (U. S.) 604; Watson v. Insurance Co. of
North America, 1 Binn. (Pa.) 47; 4 Dall. (TJ. S.) 283 (case of par-
tial loss and waiver); Calbraith v. Gracie, 1 Wash. (C. C.) 219; Cas-
sedy v. Louisiana State Ins. Co., 6 Mart. (La.) 421; Houston v.
Thornton, Holt N. P. 242 (case of waiver).

18 Of the following cases the former in part, however, support
Mr. Phillips' rule: Cassedy v. Louisiana State Ins. Co., IS Mart.
(La.) 421; Silloway v. Neptune Ins. Co., 12 Gray (Mass.), 73. and
Murray v. Hatch, 6 Mass. 465, 478. per Sewall, J., who admits, how-
ever, that the other members of the court do not concur with him
on this point.

28 Patapsco Ins. Co. v. Southgate, 5 Pet. (U. S.) 604, per Thomp-
son, J.; King v. Walker. 33 L. J. Ex. 325; reversing 33 L. J. Ex. 167;
2 Hurl. & C. 384; Pierce v. Ocean Ins. Co., 18 Pick. (Mass.l 93. per
Shaw, C. J., who, however, expresses a doubt by the word "per-
haps"; Currie v. Bombay Native Ins. Co., L. R. 3 Com. P. 72; Per-
kins v. Augusta Ins. Co., 10 Gray (Mass.), 302. See Gracie v. New
York Ins. Co., 8 Johns. (N. Y.) 2-14. per Kent. C. J. Lord Ellen-
borough does not admit the rule to even this extent: Parmeter v.


This may also arise from waiver or agreement, without fraud
or mistake of facts. 30 Thus, where ou a claim being made for
a total loss by capture, and the insurers, with full knowledge
of the facts, came to the conclusion that they were bound to
pay as for a total loss, made an adjustment accordingly and
some payments thereon, it was held that the jury might infer
an abandonment or a waiver to the right to it. 31 In case of an
insurance on freight and cargo, and the ship becomes stranded
and in imminent danger of being destroyed, and she is fairly
and justifiably sold, a claim for total loss of freight without
abandonment will be sustained. 32

§ 2961. Assured must not Await Results — Must Aban-
don in Reasonable Time. — The assured cannot be permitted
to lie by and await the result in order to determine whether
it will be for his advantage or not to abandon, but he must
elect to abandon within a reasonable time if he intends to
claim for a technical or constructive total loss, unless there be
some stipulation in the policy justifying delay. 33 So reason-

Todhunter, 1 Camp. 542; 2 Arnould on Marine Insurance. Perkins'
ed. 1S50. *1162. where Lord Ellenborough's decision is relied on.
But see 2 Arnould on Marine Insurance, Maclachlan's ed. 1SS7, 958,
whore this decision is noted as disapproved in the Currie case above
stated. See, also, 2 Parsons on Marine Insurance, ed. 1S6S. 174.

80 M'Lellan v. Maine F. & M. Ins. Co., 12 Mass. 246. See sees.
3017, 3018. herein.

81 M'Lellan v. Maine Ins. Co., 12 Mass. 246.

" Robertson v. Carruthers, 2 Stark. 571, per Lord Tenterden;
Mount v. Harrison, 4 Bine. 388: 1 Moore & P. 14. See Idle v. Royal
Exch. Assur. Co., 8 Taunt. 755; 3 Moore, 115, and examine s. c. 3
Brod. & B. 151, n.; Gordon v. Massachusetts F. & M. Ins. Co., 2 Pick.
(Mass.) 240.

83 Cohen v. Charleston etc. Ins. Co., Dud. L. (S. C.) 147; 31 Am.

Online LibraryJoseph A. (Joseph Asbury) JoyceA treatise on marine, fire, life, accident and all other insurances, including mutual benefit societies, covering also general average, and, so far as applicable, rights, remedies, pleading, practice and evidence (Volume 4) → online text (page 1 of 105)