1829. PARRY บ. ABERDEIN. it. It had been entirely under water for eight days, and when landed was found considerably damaged by the sea water. Even after the landing of the cargo, the crew were obliged to live on shore. The ship was delivered to the master in the middle of April, and no repairs were allowed to be done upon her till the beginning of that month. She required new masts and rigging, but her hull was not at all injured. She afterwards proceeded on a voyage to Palermo, and from thence to London. There was no other ship in which the cargo could have been forwarded to England; and if, when it was landed at Ancona, another ship could have been found, the goods were so much injured by having lain under water, that they would have been of no value at the port of discharge. The cargo, about the middle of April, was sold by public auction, (security being given to the salvors,) by the agent of Lloyd's, who also acted as agent for the ship; and the following is an account of the sums which the articles insured produced, and the charges upon them: The raisins produced £33 15 9 The salvors, after a hearing and appeal, finally obtained, in April 1824, a decree for 1200 dollars and expenses. The assured, residing in Liverpool, having heard of the disaster that had befallen the ship, and before they heard of her being found again and towed into Ancona, gave directions for notice of abandonment to be served upon the underwriters. The notice was dated at Liverpool on the 11th December, and was served on the 13th in London, but the underwriters refused to accept it. On the 12th December the ship was mentioned in Lloyd's list as having been brought into Ancona on the 24th November. The question for the opinion of the Court was, whether under these circumstances the plaintiff was entitled to recover. If so, the verdict was to stand; if not, a nonsuit was to be entered. Campbell for the plaintiff. This is a total loss, and the plaintiff is, therefore, entitled to recover, notwithstanding the average clause; for unless the goods are restored to the assured in such a state that it was better not to abandon, it is a total loss. It is found in the case that there was no ship at Ancona by which the cargo could be conveyed to England, and that if there had been, it would have been worth nothing when it arrived. Under such circumstances, this was a total loss according to all the cases. Mitchell v. Edie (a), Cologan v. London Assurance. (b) In the latter case, Lord Ellenborough says, "Considering the contract of insurance as a contract of indemnity, it surely cannot be less a total loss because the commodity subsists in specie, if it subsist only in the form of a nuisance." Thornely v. Hebson (c) is distinguishable; that was an insurance on ship, and some default might be imputed to the assured in not supplying money to pay the salvage, and so preventing the sale of the ship for that purpose; the ship still remained to them if they paid the salvage. Here no negligence or default of the kind can be im 1829. PARRY V. ABERDEIN. (a) 1 T.R. 608. (b) 5 M. & S. 447. (c) 2 B. & A. 513. 1829. PARRY V. ABERDEIN. puted. Holdsworth v. Wise (a) is directly in point for the plaintiff. F. Pollock contrà. The underwriters are protected by the average clause, and there was no total loss. Was there any such loss at the time when the crew abandoned the vessel? that is the root of the question. It is not made a total loss merely because the assured wrote a letter of abandonment, the goods at the time existing in specie; for if the goods arrive at the port of destination, though after a long delay, the notice of abandonment will be insufficient to entitle the assured to claim for a total loss. The underwriters do not bargain for short voyages. Hunt v. Royal Exchange Assurance Company (b), Anderson v. Wallis. (c) The principle of those cases and of the present is the same, and the assured equally in this as in them had no right to abandon. In Thompson v. Royal Exchange Assurance Company (d), where the ship was wrecked, and the goods were brought on shore, though in so damaged a state as to be unprofitable to the assured; this was held (there being a warranty against particular average) not to have been a total loss at the time when the loss happened, and when the cargo was landed. So here it cannot be said to have been a total loss at the time when the crew deserted the ship, it being then uncertain whether the loss would finally be total or not. The whole loss, such as it was, was one arising from the perishable nature of the cargo. Again, though the vessel was bona fide abandoned, she might have been aided by a ship going to meet her; and it is no total loss so long as there is a possibility of restoring the property to the assured. The goods might have been (a) 7 B. & C. 794. (b) 5 M. & S. 47. forwarded to England; a ship might have been forwarded to meet them. Thompson v. Royal Exchange Assurance Company is decisive of the present case, though not so strong in all its circumstances. The underwriters have not agreed to indemnify in a case of this sort, but have expressly protected themselves against loss arising from the perishable nature of the cargo. Here all the goods were brought on shore; and if they were not sufficient to pay the salvage and expenses, the underwriters are not on that account alone to suffer. Campbell in reply. This was a total loss at the time of the abandonment by the crew. If the vessel had gone to the bottom, and been afterwards weighed up, surely that would have been admitted to be a total loss; and here only a small part of her bows was above water. The case differs in this circumstance from Thompson v. Royal Exchange Assurance Company. Moreover, the assured had a right to abandon, the voyage not being worth pursuing, and there being no means of pursuing it. Wilson v. Royal Exchange Assurance Company (a), Manning v. Newnham. (b) Cur. adv. vult. In Easter term the judgment of the Court was delivered by Lord TENTERDEN C. J. After reading the case, he said the Court were clearly of opinion that this was a case of total loss according to all the decisions, and that the abandonment to the underwriters was good. Judgment for the plaintiff. 1829. PARRY v. ABERDEIN. See the note appended to the case of Naylor v. Taylor, infra, p. 240. 1829. A policy of insurance on goods to a foreign port, was effected after notice in the London Gazette that that port was in a state of blockade. The ship having sailed before this notice, and been captured, with the goods on board, by the blockading squadron, for breach of the INSURANCE. NOTICE OF BLOCKADE. In the KING'S BENCH.-Trinity Term. HARRATT v. WISE and Others. ASSUMPSIT on a valued policy of insurance on goods, by the ship Ann, from Liverpool to Buenos Ayres. The risks insured against were the usual ones, and stated in general terms. The ship sailed from Liverpool, on her voyage, on the 4th February 1826. On the 18th it was notified in the London Gazette that Buenos Ayres was blockaded by the Brazilian marine; and on the 28th of the same month, the policy in question was effected. Soon after the Ann left Liverpool, she met with bad weather, and was obliged to put into Lochindal Harbour, in the island of Islay, to repair the damage she had sustained, and to procure a carpenter for the voyage, the one she had brought from Liverpool having been drowned. She remained there nearly three weeks, during which time the captain was on shore most days, and once went to Greenock, on which occasion he was absent five days. On the 12th March the vessel left Lochindal, and proabandonment, ceeded on her voyage. On the 23d May, as she neared might recover the outer roads of Buenos Ayres, she came in sight of on the policy, some ships at anchor, which proved to be the Brazilian blockading squadron. The Ann was then taken possession of by a Brazilian officer, on a charge of breach of blockade, and sent in to Monte Video, and from thence of the voyage. to Rio Janeiro, for adjudication; there she arrived in July of the same year. After a detention of more than twelve months, in August 1827, she was liberated, but blockade : Held, that the assured, having given notice of unless it were shewn that the captain had notice of the blockade in the course |