#### Henry Hall *et al. versus*The Franklin Insurance Company.

The necessity which will justify a master of a ship in selling her, is one in which he has no opportunity to consult the owners or insurers, and which leaves him no alternative.

A ship insured at Boston in December for one year, and owned partly in Boston, but chiefly in New Orleans, on her voyage from Boston to New Orleans struck on a shoal on the coast of Florida on the 18th of February following, but by the assistance of wreckers she was got off, and according to a previous stipulation insisted on by the wreckers, she proceeded to Key West, in order to have the salvage adjusted either by arbitration or by a judgment of a court of admiralty, the nearest court being 300 miles distant. She arrived at Key West on February 23d. She did not leak, and she might have remained at Key West in safety, until notice of the disaster should have been sent to Boston. Notice was sent to the part owners at New Orleans, and one of them arrived at Key West on March 17th. A survey was then had and the vessel was condemned as unworthy of being repaired, and on the 21st she was sold. The expense of repairing her at Key West would have exceeded fifty per cent on her value, but at New Orleans or Boston, (to either of which ports she might have proceeded, and in fact, after the sale, she did proceed to Boston, with the same master,) the expense would have been less than fifty per cent. It was AeZd, that the sale was not necessary, and that the insurers were not affected by it.

The voyage from Key West to a suitable port for making repairs, would have been a voyage of necessity, and so protected by the policy.

The expense of repairing a ship at the place where she is injured, is not the criterion for determining whether there is a constructive total loss, if there are no reasonable means of making the repairs at that place and the ship can be safely navigated to a port where the repairs can be made at an expense of less than fifty per cent on the value of the ship; but in such case it is the duty of the master to proceed to such port to make the repairs.

The assured cannot abandon on the ground of imminent danger of a total losg : As if a ship, having sustained damage, is abandoned while on her way to a port to repair, the abandonment will have no effect in case she shall arrive and the repairs shall cost less than fifty per cent on her value.

Assumpsit on a policy of insurance dated December 5th, 1827, on the brig Delta, “ at and from wherever she may be on the 11th day of December, 1827, at noon, to and at all ports and places to which she may proceed for one year from that time.” The vessel was valued at $ 10,000, and was insured for that sum to Hall and Williams, the plaintiffs, for whom it might concern, payable to them in case of loss. The declaration alleged a total loss within the year by the perils of the sea.

The Delta was one of the Boston and New Orleans line of *475packets, and was owned in thirty-six shares, twenty-five of them at New Orleans and the remainder at Boston. She sailed from Boston in January 1828, with a cargo, and on February 18th struck upon a shoal on the coast of Florida, 600 miles from New Orleans, 80 from Havana and 60 from Key West. The master, being unable to get her afloat without other assis tance than that of his crew, employed several wreckers. Before he could procure their aid, he was obliged to agree that the question of salvage should be adjusted at Key West, by a court or arbitration, and there was no court nearer than St. Augustine, distant 300 miles.

On February 21st, the cargo, with the exception of a few light articles, having been discharged by the wreckers, the vessel was forced into deep water and on the 23d arrived at Key West; that part of the cargo which had been discharged having been taken there by the wreckers in their own vessels. Up to the time of her arrival at Key West and until her subsequent arrival at Boston, the Delta leaked but little, and no mure than before the disaster ; and there was no evidence, until after her arrival at Key West, that she was injured at all, though from her situation while on the shoal, and her thumping while there, there was reason to fear she might be injured in her bottom and keel.

An attempt was made to settle the question of salvage with the wreckers, but this failing, the master despatched a small vessel to New Orleans with a letter to Merle & Co., the agents of the owners. A meeting of persons interested in the vessel and cargo was called by A. Howard, one of the owners, at New Orleans, and he was sent to Key West as their agent, and to render such assistance as he might be able to the master. He arrived at Key West on the 17th of March.

On the 18th and 19th a survey was had on the vessel, and the surveyors reported that she had started her stern, chafed her keel so much as to require a new one, chafed many of her planks in her bottom so as to require new ones, injured her copper so as to require her bottom to be coppered anew nearly to light water mark, and otherwise so much injured her hull as to require repairs, which would, when finished, cost more than *476her value. One of the surveyors estimated the cost of repairs at *$*10,432.

The admission of the survey as evidence was objected to by the defendant, but the judge permitted it to be read. It had on it the following certificate : — “ Done before me, R. Fitzpatrick, Notary Public.”

The facts stated in the survey in relation to the injuries done to the vessel, were fully proved by witnesses who examined her at Key West, and others who examined her in Boston; and the master and another witness testified, that the estimate of repairs at Key West was conformable to the best information they could obtain.

The question of salvage was submitted to arbitrators at Key West, who awarded that the wreckers should receive as a compensation for services rendered to the vessel, thirty-three and a third per cent on the net proceeds of a sale of her by auction.

On the 21st of March the vessel was put up at auction and was bid off for $ 3670, by W. Frost, who bid for Howard and with instructions to make the highest offer. A bill of sale was afterwards made out by the master to Howard & Merry, and delivered to Howard. No payment was made for the vessel at Key West, and there was no evidence that she had ever been paid for, either by Howard, or by his firm of Howard & Merry ; but the master deposed, that he believed the price had been settled in account between Merle & Co. and others.

■ From the time of Howard’s arrival at Key West till the sale of the Delta, the master consulted him on all occasions.

No repairs were put on the Delta at Key West, but she was sent to Boston under the charge of the same master.

By the testimony of several ship carpenters who examined the Delta on the railway in Boston, it appeared that she was so much injured in her copper, keel and plank, that it was unsafe to send her to sea, either with or without a cargo. Several merchants, shipmasters and presidents of insurance companies testified, that the course taken by the master while at Key West, appeared prudent, and that the injury sustained by the Delta was so great as in their opinion to render her unseaworthy. It was proved by the plaintiffs, that the expense of re*477pairs at Havana is nearly as high as at Key West, and that at New Orleans the charges are much higher than at Boston ; one witness thought they were twice as high'. Several of the plaintiffs’ witnesses testified, that had the vessel been their own and uninsured, they should have attempted to send her to some northern port for repairs ; but that had they been acting as a master merely, they should not have felt authorized to assume that responsibility. Some testified, that had the vessel been their own and uninsured, they would have preferred selling her at Key West at a good price, to attempting to carry her else where ; and others thought they should^ have taken her to some other place for repairs.

On the part of the defendants, two witnesses who had been masters of vessels for many years and who had examined the Delta after her arrival in Boston, immediately before and while she was on the railway for repairs, gave it as their opinion, that she was capable, without repairs, of proceeding on her voyage with her cargo, from Key West to New Orleans, and that had the vessel and cargo been their own and uninsured, they should have gone on in her. They thought however that they might have procured another vessel to take the cargo, and one of them said be should not have been willing to go in opposition to the survey, without consulting the owners. Another witness, a master of a vessel, was of opinion, that it would have been prudent to go with the Delta and her cargo to New Orleans without repairs ; that had the vessel and cargo been his own and uninsured, he should have proceeded to New Orleans ; but he said he should have been unwilling to act in opposition to the survey. He testified that it would cost about'one third more to repair a vessél in New Orleans than in Boston. These witnesses also stated, that in their opinion it would have been quite safe for the vessel, in the condition she was in, at that season of the year, to proceed to a northern port for repairs.

The Delta sailed from Key West on the 2d of April, and arrived at Boston on the 26th, where she was thoroughly repaired for less than $ 4000.

On the 8th of April the plaintiffs sent a written notice ol *478their abandonment of the Delta to the defendants; which was not accepted.

It was also proved, that the average length of passages from New Orleans to New York is about fifteen days.

The defendants contended, that the plaintiffs were not entitled to recover for a total loss, because under the circumstances proved the master had no authority to sell the vessel at Key West; that the transactions there respecting a sale were for the purpose of effecting a settlement with the wreckers, and were not designed to effect a change in the property, and the formal purchase made by Howard did not divest the interest of the general owners ; that if the sale did not constitute a total loss, the abandonment did not, because the amount of loss did not warrant an abandonment, because the abandonment was not made in season, and because at the time of the abandonment the vessel was at sea, on her voyage to Boston, under the orders of Howard, and' because the owners, having affirmed the sale by the master to Howard, had disqualified themselves from making a valid abandonment.

The judge instructed the jury, in the first place to consider the conduct of the master by itself, without reference to Howard’s being at Key West; and then, what effect his presence and agency had upon the case : —

That if the master was placed in such circumstances with regard to the vessel as to authorize him to sell her, so that the owners, underwriters and all concerned would be bound by the sale, the sale itself constituted a total loss, and there was no need of an abandonment, because there was nothing left in the owners to abandon. Where a vessel has met with disasters by the perils of the sea, and is so much injured as to render her innavigable without imminent danger, and she cannot be repaired at less than half her value, and that is ascertained by a survey fairly taken by honest and competent persons, and the jury shall be of opinion that they proceeded upon correct and satisfactory grounds at the place where the estimation is made, and the master appears to have exercised a sound judgment in good faith in adopting their opinion, and acting under it in selling the vessel, he then acts tinder authority of law, and the sale made by him is good and valid : —

*479That with respect to the seaworthiness of the vessel, there was some discrepancy in the evidence, and the jury were to weigh the evidence : —

That according to the testimony, the vessel could not have been repaired at Havana for less than at Key West ; whether she could at New Orleans, was doubtful ; but at Norfolk or Boston she could without doubt have been repaired cheaper; that in such a case the master is imperatively required to carry his vessel elsewhere ; he is to take into consideration the condition of the vessel ; the risk there may be ; if he judges wrong, he may deprive the owners of a right acquired against the underwriters ; he must exercise a sound discretion and act with the utmost fairness ; most of the witnesses think they should go by the survey ; that does not expressly recommend a sale, but declares the vessel to be unseaworthy ; and it was upon this fact the master was to act in selling or proceeding to another port. The witnesses generally state, that if they had been at Key West as owners uninsured, they should, rather than lose the whole, have taken the vessel on ; but the question is, not what one would risk for the sake of his property, but what prudent and discreet men would be likely to think was a safe and proper course under all circumstances : —

If the jury should be of opinion, that the master, standing alone, without the aid of Howard, had done what other faithful and discreet men would have done under like circumstances, having taken all proper measures, they are then to see whether the presence of Howard makes any difference ; that his presence would have no effect, unless the jury should be satisfied that by his influence the master was persuaded to do what otherwise he would not have done. It is reasonable to suppose that his advice was relied on, and if there was any thing wrong in the master’s doings, it was probably because he was countenanced by Howard, who in that respect represented the owners ; but if the facts and circumstances prove that the master did right, then Howard’s being there would not make it wrong ; it is an element in the consideration whether the sale was justifiable or not.

With respect to Howard’s purchase, if the sale was lawful, his being the purchaser does not vacate it; but his purchasing

*480is a fact for consideration in regard to the fairness of the sale. The purchase of Howard could not affect the right of the other owners to recover; whether it affects the particular right of Howard & Merry may be questionable. There is no evidence that in this purchase they acted for the whole, or that the others have adopted their act: —

Whether as an independent ground, distinct from the sale, there was a right to abandon because of the damage done, would depend upon the jury’s estimate of the expense of repairs at Key West. If they thought the master was not obliged to take the vessel to Havana or New Orleans, and the expense there, with the deduction of one third, would be more than fifty per cent, there was a right to abandon, and the vessel being on her voyage to Boston, when the offer to abandon was made, that offer, being made in reference to her condition at Key West, was seasonable. If the sale was justifiable, or if the vessel was damaged to more than half her value at Key West, or at New Orleans, then the jury would find a verdict for a total loss, and assess damages at $ 12,000 ; if otherwise, they would say there was a partial loss, and assess damages at $5000.

These damages were nominal, and to be corrected afterwards by assessors, by agreement of the parties.

A verdict was found for the plaintiffs as for a total loss.

The several points raised by the defendants being reserved for the consideration of the Court, upon the foregoing report, the loss was to be adjusted as a total loss, or a new trial ordered, as the Court might direct.

*Shaw, Peabody*and *Watts,*for the defendants.

The survey was improperly received in evidence, because it does not appear that it was under oath, and because it was *ex parte*evidence on the .side of the plaintiffs, and was not called for by the defendants ; and because it was not taken with the usual formalities of such an instrument. 3 Stark. Ev. 1184 ; *Senat*v. *Porter,*7 T. R. 158; Hughes on Ins. 487 ; *Mitchell*v. *New Eng. Mar. Ins. Co.*6 Pick. 118; *Christian*v. *Coombe,*2 Esp. R. 489 ; *Saltus*v. *Commercial Ins. Co.*10 Johns. R. 487.

The circumstances did not authorize a sale of the vessel *481There was no absolute necessity. Phillips on Ins. 408, 410 ; *Green*v. *Roy. Exch. Ass. Co.*6 Taunt. 68 ; *Milles*v. *Fletcher,*Doug. 234 ; *Gordon*v. *Mass. F. & M. Ins. Co.*2 Pick. 249; 3 Kent’s Com. 95, 134 ; Abbott, by Story, 3 to 10; *Reid v.*Darby, 10 East, 143 ; *Fanny and*Elmira, Edw. Adm. R. 118 ; *Freeman*v. *E. I.*Company, 5 Barn. & Ald. 617 ; *Cannan*v. *Meaburn,*1 Bingh. 243 ; *Anderson*v. *Wallis,*2 Maule & Selw. 240 ; *Thornely v.*Hebson, 2 Barn. & Aid. 513 ; *Wilson*v. Miller, 2 Stark. R. 1 ; Jacobsen, 370 ; *Hamilton*v. Mendes, 2 Burr. 1198 ; *Holdsworth*v. *Wise, 7*Barn. & Cressw. 799 ; *Mordy*v. Jones, 4 Barn. & Cressw. 394 ; *Cambridge*v. Anderton, 2 Barn. & Cressw. 691 ; *Green*v. Boy. *Exch. Ass. Co.*1 Marsh. Rep. 447 ; *Martin*v. *Cro*katt, 14 East, 465 ; Bell v. Nixon, 1 Holt’s N. P. Rep. 423, and note. The vessel should have been removed to a proper place to be repaired, and she would have been protected by the policy, though not seaworthy, as on a voyage of necessity. *Taylor*v. Lowell, 3 Mass. R. 331 ; *Motteux*v. *London Ass. Co.*1 Atk. 543 ; Park on Ins. 61 ; *Bond*v. *Mutt,*Cowp. 601.

The sale was void, because Howard was in effect the seller and the purchaser. He was the general agent of the owners. *King*v. *Middletown Ins. Co.*1 Connect. R. 206 ; *Sawyer*v. *Maine F. & M. Ins. Co.*12 Mass. R. 291 ; *Church*v. *Marine Ins. Co.*1 Mason, 341 ; *Barker*v. *Marine Ins. Co.*2 Mason, 369 ; *Abbott*v. Broome, 1 Caines’s R. 296; *United Ins. Co.*v. Robinson, 2 Caines’s R. 283 ; *S. C.*1 Johns. R. 592. The sale should be such as to divest the owners of their property. *Morris*v. *Robinson,*3 Barn. & Cressw. 196 ; *Wilson*v. *Foster,*6 Taunt. 25. Here it was not intended for a real sale ; the object was merely to determine the salvage.

The right to abandon depends on the facts existing at the time of the abandonment. Here tne Delta was on her voyage to Boston and in- safety. *Humphreys*v. *Union Ins. Co.*3 Mason, 429 ; *Dickey*v. *New York Ins. Co.*4 Cowen, 222 ; *Depau*v. *Ocean Ins. Co.*5 Cowen, 63 ; Phillips on Ins. 437.

By the policy, *“*the assured shall not have the right to *482abandon the vessel for the amount of damage merely, unless amount which the assurers would be liable to pay under an adjustment as of a partial loss, shall exceed half the amount insured.” Here the damage under such an adjustment would be less than half the amount insured, and consequently the plaintiffs cannot recover as for a total loss.

S. *Hubbard*and *C. G. Loring,*for the plaintiffs.

The survey was offered in evidence, not to prove the facts stated in it, but to show that the master was justified in the course he pursued, inasmuch as he took the advice which he was required to by law. It has not been decided that the survey must be under oath; however, the words “done before me,” in the certificate of the notary public, are equivalent to the expression, “ sworn to before me.”

Suppose that Howard, one of the owners, had not been at Key West, it would have been the duty of the master to make a sale of the vessel. Upon her arrival at that place, it appeared that she was so much disabled as to render it unsafe to remove her elsewhere to make repairs. This is found by the verdict. The fact that she could come to Boston was unknown at Key West, and it was at great hazard that she afterward made the experiment. The necessity to sell does not mean an absolute, physical necessity, but such a necessity as would render the master liable to the owners if he pursued a different course. Hughes on Ins. 400 to 402, and note ; *Gordon*v. *Mass. F. M. Ins. Co.*2 Pick. 249 ; *Bryant*v. *Commonwealth Ins. Co.*6 Pick. 131.

The presence of Howard as an individual part-owner, did not affect the powers and duties of the master. In general, a part-owner of a vessel is a tenant in common, and not a partner. 3 Kent’s Com. 116, 117. One part-owner, merely as such, can act for the others only in a case of emergency. Here all the owners were represented by the master, to whom they had given authority to sell under certain circumstances. He is to determine when the necessity exists. Shippers and insurers are interested, equally with the ship-owners, in his retaining his authority. *Catlett*v. *Pacific Ins. Co.*1 Paine, 619. Though as a general proposition, the master does not become the agent of the underwriters until after an abandonment, yet he is to be *483so considered in relation to a damage within the i.sks insured against, if an abandonment is subsequently made. *Clarkson*v. *Phenix Ins. Co.*9 Johns. R. 1 ; *Sawyer*v. *Maine F. & M. Ins. Co.*12 Mass. R. 291; *Gordon*v. *Mass. F. & M. Ins. Co.*2 Pick. 249.

Nor did the appointment of Howard by other part-owners at New Orleans, authorize him to devest the master of his powers. His authority was,. to render such assistance as he might be able, to the master.” The presence of Howard was only to be considered as an element in determining whether the sale was justifiable on the part of the master, or whether Howard influenced ■ him improperly. *Idle*v. *Roy. Exch. Ass. Co. 8*Taunt. 755.

The arbitrators had a right to award a sale, and their award was binding on the master. The fair inference from the survey is, that the vessel should be sold ; but independent of the survey, the plaintiffs have proved that she could not be repaired at Key West. It is objected that the sale was color-able, intended merely for the purpose of settling with the salvors ; but the jury have found otherwise. And even if that was the object, still the sale was justifiable and necessary, for there was an express agreement with the salvors that the vessel should go to Key West, and the master must submit either to an arbitration, or go before a court of admiralty 300 miles distant. He adopted the usual mode of settling salvages at Key West.

It is objected, that an agent to sell cannot be the purchaser. But the sale was the act of the master, and Howard might purchase the shares of the other owners. He was not their agent to sell or purchase, either by express authority or by virtue of being a part owner ; nor have they ratified the purchase as being made for them. *Abbott*v. Broome, 1 Caines’s R. 292; *Oliver*v. *Newburyport M. Ins. Co.*3 Mass. R. 37 ; *Idle*v. *Roy. Exch. Ass. Co.*8 Taunt. 755; *Abbott*v. Sebor, 3 Johns. Cas. 45. Even if Howard had been sent to Key West with power to sell, it would not affect the abandonment. *Sawyer*v. *Maine F. & M. Ins. Co.*12 Mass. R. 291; *Catlett*v. *Pacific Ins. Co.*1 Paine, 619; *Ogden*v. *New York Fire Ins. Co**48410 Johns. R. 177 ; *King*v. *Middletown Ins. Co.*1 Connect 184.

The damage was sufficient to justify an abandonment. Thar the vessel could be repaired at Boston for less than half of her value, is not conclusive ; the premium of insuring her to this port should also be-taken into consideration. But this is immaterial, for the jury say she could not be repaired at Key West, and that she ought not to have been removed to Boston. To ascertain whether there is cause for an abandonment, we must estimate the expense of repairing at the port of necessity. *Center*v. *American Ins. Co. 7*Cowen, 564. A master is not allowed to go to sea in an unseaworthy vessel. He owes it to the cargo and crew to have her seaworthy. On the passage from Key West to Boston, the Delta was not under the protection of the policy.

The abandonment was in due season. The amount of the damage was not known at Key West until March 21st, and information of it could not have reached Boston earlier than the 8th of April; when a letter was received by an arrival from Havana. It is said the vessel was at that time on her voyage to Boston ; but she was in so perilous a condition as to justify an abandonment at any time before her arrival. *Gordon*v *Mass. F. & M. Ins. Co.*2 Pick. 249; *Gernon*v. *Roy. Exch. Ass. Co.*6 Taunt. 383.

If there was a necessity for a sale, and Howard could purchase ‘the two thirds belonging to the other part-owners, the plaintiffs may recover as for a total loss of those two thirds. The question in regard to Howard’s one third may be more doubtful. But we contend, that where the assured purchases under circumstances justifying a sale, and abandons during the continuance of the same circumstances, he is entitled to recover for a total loss. He is to be considered as a mere agent for the insurers. *Peele v. Merchants Ins. Co.*3 Mason, 27 ; *Ogden*v. *New York Fire Ins. Co.*10 Johns. R. 177.

*Shaw,*in reply,

denied that the abandonment was in season, if the plaintiffs relied on the state of the vessel at Key West. He insisted, that if there had once been a cause for abandonment, it had ceased on the 8th of April, as the vessel was not *485then so situated as to require more than *$*5000 for the repairs, making the deduction of one third new for old.

The master was bound to proceed to New Orleans or to a northern port to repair, in order to prevent a partial loss being turned into a total loss. Whatever in the conduct of a voyage a prudent man would do, a master will be justified in doing. The loss of the voyage has no influence, where the policy is on time.

The abandonment is of no effect, because the sale, to which the owners assented, left them no property to abandon, and consequently they can recover but for a partial loss, unless the sale was by necessity; which the defendants deny. It does not follow, that if there is ground for an abandonment, there is likewise for a sale. 3 Kent’s Com. 95. The agency of the master in selling must arise from his being compelled to act without communicating with his owners. Here, if the sale was valid, it was owing to the presence of Howard, who was not only a part-owner, but also the agent of the other part-owners; and this brings us back to the question, in what circumstances the owners may sell and yet abandon for a total loss. See *Martin*v. *Crokat,*14 East, 465 ; *Holdsworth*v. *Wise,*7 Barn. & Cressw. 794 ; *Cambridge*v. *Anderton, 2*Barn. & Cressw. 691.

It is said the sale was ordered by the arbitrators ; but thev derived their authority from the owners, one arbitrator being appointed by Howard ; so that it is still the act of the owners which devests them of the property. Even a court of admiralty cannot direct a sale for the purpose of adjusting salvage.

Putnam J.

delivered the opinion of the Court. It is very clear that the survey is not evidence of itself to be given by the plaintiffs, unless the defendants should call for it.1 It is *ex*parte, and the defendants had no opportunity to cross-examine. *Saltus*v. *Commercial Ins. Co.*10 Johns. R. 487 ; *Abbott*v. *Sebor,*3 Johns. Cas. 46. In the case at bar the defendants objected, but their objection was overruled. So there must be a new trial for that reason.

There was also no satisfactory evidence that the survey was *486under oath ; for the certificate, — “ Done before me, R. IitzPatrick, notary public,” — does not necessarily import that the ■ surveyors were sworn to their survey. ‘There is some inference to the contrary from the separate certificate of Otis, one of the surveyors, that he believes the repairs would cost the sum in his estimate. The other two say no such thing.

It is not intended to enlarge the authority of the master to make sale of the vessel beyond the rule laid down in *Gordon*v. *Mass. F. & M. Ins. Co.*2 Pick. 262. It must oe confined to “ a case of extreme necessity, and where he acts with the most perfect good faith for the interest of those who are concerned in the property.” There must be something more . than expediency in the case; the sale should be indispensably requisite. The reasons for it should be cogent. We mean a necessity which leaves no alternative; which prescribes the law for itself, and puts the party in a positive state of compulsion to act. The master acts for the owners or insurers, because they cannot have an opportunity to act for themselves. If the property could be kept safely until they could be consulted, and have an opportunity, in a reasonable time, to exercise their own judgment in regard to the sale, the necessity to act for them would cease.1

In the case at bar, the vessel was in a good harbour; she was tight, although she had struck upon the ground or rocks ; and she had good ground-tackle. For aught that appears, she might have remained at anchor in good safety until the master could have communicated with the insurers. In thirty or forty days they might have had a special agent upon the spot. The damage, which the vessel had sustained, was at most a technical or constructive total loss. Why then should the underwriters be deprived of the election to sell the ship there or to send her elsewhere to be repaired ? The only additional expense would have been the wages of one or more ship-keepers *487to remain on board until the underwriters should have determined to accept or. reject the abandonment, and that expense must, according to the terms of the policy, have been borne by the insurers. Then what color of necessity was there for the master to sell the ship, without consulting with the insurers ? He sent to New Orleans, where a majority of the owners re7 sided, and waited until one of them arrived at Key West. This shows conclusively, that there was no pressing necessity for an immediate sale. There is no reason to doubt that the vessel would have remained there in safety, while a communication could be made with the underwriters in Boston. If she had in the mean time been burnt or otherwise destroyed by any perils assumed by the insurers, the loss would have fallen upon them.

And there was no *immediate*necessity to sell the ship to raise money to pay the salvage. For there would have been considerable delay, before an application could have been made to the admiralty court, which was held at the distance of 300 miles; and before an order of sale could have been obtained from that court for the sale, the owners could have been con-suited and have had an opportunity to make provision for the salvage. Besides, if there had been a judicial sale without any default of the master or owners, after notice to the insurers and before they could have interposed, the loss would be borne by them. The duty of the master would seem to be clear, to hold on, and preserve the property in safety so long as he could, for the benefit of all concerned.

But the master was not driven to such extremity. He was enabled to communicate with the owners, who were represented on the spot in ten or twelve days. Then it became their duty to pay the salvage, or to abandon, and throw the loss upon the underwriters, if a judicial sale should have been made before they could have received notice and interfered to pre vent it It became then the bounden duty of the master and owners to give the insurers an opportunity of managing the concern as they should think for their interest. But the master, having advised with the owners, undertakes to make the sale by auction, on the ground of necessity. Now we think it clear that the owners, who became the purchasers, did not buy under *488the belief or expectation of repairing the ship at the port of distress ’ taking it for granted that the cost of repairs there would have amounted to the sum estimated by the surveyors. They must have purchased with a view to carry the vessel to some other port to be repaired. Why should the underwriters be deprived of that advantage, if they are to be held for a total loss ? It cannot be pretended that this vessel was a wreck ; that she was to be considered valuable merely for her timber and her materials, as if she were broken up, and sold in lots. The facts will not admit that view of the case. She was sold as a ship, riding at her anchor, without any leak, notwithstanding she had grounded. There is no evidence that the purchasers intended to break her up there. They gave much more than the mere unconnected materials of the ship would have been worth. She was within a week’s sail of the port of New Orleans, where, according to the evidence, she could have' been repaired at much less than fifty per cent of her valuation. And if she proceeded to some northern ports, she would be repaired at a less expense than at New Orleans. The purchasers knew these facts. If she had proceeded to a port for repairs, she would have sailed at the risk of the insurers. It would have been a-voyage of necessity, and not a deviation.

But it has been contended, that there was imminent peril in that voyage, which the purchasers might be willing to sustain for their own account, but which they were not bound to take for the insurers.

The peril was to be estimated from the facts which they then knew. They knew that the ship had been thumping upon the rocks, but that after all she remained a tight ship. They did not know the extent of the damage, as they did after she was hauled upon the rail-ways. The transaction speaks a language which cannot be misunderstood. The purchasers, under the circumstances, had reason to think, that they could nav gate the ship to a port for repairs ; if it had been otherwise, they would not have trusted themselves in her. Life is not held so cheap. If the owners might be willing to incur extra hazard, no such inducement could operate upon the *master.*Yet he went in her upon the voyage to Boston, without making any repairs. The subsequent events proved that they judged cor*489rectly, for she encountered very bad weather, lay too in a gale for three days without leaking much, and in short, she performed the voyage well.

In *Milles*v. Fletcher, 1 Doug. 231, where, insurance was made on a ship and freight from Montserrat to London, and the ship was captured and recaptured and carried to New York, the whole voyage was lost. Part of the cargo had been taken out, some of it was washed overboard, and the rest was damaged and in a perishable state. It was in 1779, during the revolutionary war ; the crew were gone ; no sailors were to be had. The ship could not proceed in the state she was in. She was captured in May by American privateers, and part of her cargo and all her crew taken out of her. She was recaptured afterward, and arrived in June at New York, where there was an embargo until the 27th of December. The ship was leaky, and could not be repaired without unloading her, and she should have arrived in London in July. And the captain had no means of paying the salvage but by sale of part of the cargo or the ship. He did not know of the insurance. Under these circumstances he contracted for the sale of her ; but the purchaser ran away, and she was left in a creek in New York, and the master returned to London, and there the plaintiff seasonably abandoned.

The facts in that case are totally unlike those in the case at Bar. In the latter, the voyage was not lost, for the cargo was sent forward to the port of destination. The ship did not leak; seamen might have been procured ; the assured were present. In *Milles*v. Fletcher, there was abundant ground to call for a total loss by reason of the damages which followed from the capture, *without the sale by the captain.*In the case at bar, his sale is considered as the basis of the claim for a total loss.

The case of *Idle*v. *Royal Exch. Ass. Co.*8 Taunt. 755, has been urged for the plaintiffs. The insurance was upon freight and cargo from Quebec to London. The ship sailed on the 16th of November, 1810, and having struck the ground and being thereby rendered leaky, she was necessarily run on shore upon the outside of a reef of rocks about ninety miles below Quebec. She lay in a situation of imminent peril of being carried away and destroyed by the ice. She was in the *490tide way, and immovable, .exposed to the full force of the ri\ er St. 'Lawrence. The master, under the direction of one who was part-owner and agent for the other owner of the ship, sold the ship and cargo at Quebec. The ship, contrary to all expectation, survived the danger, and in the spring of 1811 was floated and carried to Quebec and repaired. The master acted in good faith. The case was tried in the Common Pleas, upon a special verdict stating the facts, and the underwriters were held to be chargeable. *Dallas,*C. J., in an able review of most of the cases upon this subject, gave the opinion. But a writ of error was brought, and when it came on for argument in the King’s Bench, the court expressed a clear opinion, that *the necessity of the sale did not appear from the finding of the jury;*and a *venire de novo*was awarded, to try whether it existed or not. The cause was finally settled by the parties, without a further trial. *Vid.*3 Brod. &. Bing. 151, note to the case of *Read*v. *Bonham.*

Now it is not easy for us to perceive the *necessity*in *that*case, for the master to sell the ship under those circumstances. She was unquestionably in very great danger of being broken to pieces by the immense quantities of ice floating in the river, but the purchaser took and held her subject to the same peril. Her value at auction was diminished accordingly. The purchaser had no means of preservation which the master might not have applied. Indeed she was in such a situation, as rendered all aid unavailing during the winter. If she survived it, the purchaser would probably make a very good bargain. If she went to pieces, he would expect to lose the small sum to be paid for her. The sale did not diminish the risk at all. Will it do to say that the master has authority to get a reinsurance for the underwriter, when imminent danger of loss is threatened ? If he does, he must pay the adequate premium, and how is the underwriter to be benefited ? If the purchaser were in a better situation than the master to preserve the property, there would be some reason for the sale. For example, if the insurance was upon a cargo of fruit or other perishable goods, and a good market could be found for its immediate use, 't would be better to sell, than to keep the cargo on hand to Tot.. But where the subject matter of the sale continues in the *491bands of the purchaser, exposed to the same hazard as if it had remained at the risk of the underwriters, they are not relieved or benefited at all by the sale ; because the property is sold subject to the pending and threatened calamity ; and underwriters are willing to take great as well as small risks, for adequate premiums. We see no necessity for shifting the risk from one to another, under such circumstances. If there were a good cause for abandoning as for a constructive total loss, the ■ship, under such circumstances, should have been left for the underwriter. The hope of recovery was worth as much to him as to the purchaser. The master has no authority to interfere on the ground that in his opinion he can obtain something more than the *spes recuperandi*is worth.

And besides these considerations, *there*is, *from the*evidence, *.much reason to doubt whether there was a real sale with intent to change the property.*On the contrary, there is great reason to believe that it was a *formal*measure, resorted to merely for the purpose of ascertaining the amount to be paid for salvage : the arbitrators having awarded thirty-three and a third per cent of the net proceeds of the sale of the brig, as the compensation to the wreckers. The consideration has never been paid to the master. It has only entered into the accounts at New Orleans between Merle & Co. and others ; how settled, does not appear. And the salvage was paid by Howard, and not by* the master. In short, it looks more like taking the brig into the possession of Howard for the account of the owners, after having paid the salvage, than as a real sale of the master to a *bond fide*purchaser.

In every view of that part of the case, we aré of opinion that there was not sufficient evidence óf such a sale and transfer of the vessel as devested the interest of the owners. They cannot, under such circumstances, recover without an abandonment.

But it is contended further, that there was a technical total loss at Key West; first, because the repairs should have been made there, and would have cost more than fifty per cent ; and *secondly,*if they would not have cost fifty per cent, yet that I In vessel was in such imminent danger as to justify the abandonment.

*492We cannot yield to the argument, that the repairs should be made at the place or port where the injury was received, if there are no reasonable means of making them at that place, and the vessel can safely be navigated to a port where the repairs can be made, so as that the whole expense will be less than fifty per cent. It would in such a case be the duty of the master to navigate the ship to the port where she might be repaired, and not incur the expenses of bringing men and materials from other ports to the ship.1 It is in vain to say that the vessel was in such a condition as not to be safely navigated to some other port. We are not therefore to regard the cost of repairing at Key West, but at the place where the repairs were made. The gross amount of the bill at Boston was something less than $ 4000, and the value in the policy was $ 10,000 ; so the damage did not amount to a technical total loss.

The second ground suggested has never been sustained in this Court, and we should be very slow to believe in its correctness. The assured would abandon, not because even a technical total loss had happened, but because there was imminent danger that it would happen.1 This doctrine would seem to be a departure from the letter as well as the spirit of a contract of indemnity. It is pregnant with uncertainty and litigation. The contract is, to pay after proof of loss ; the version or construction is, to pay after proof of imminent danger of loss. The underwriters engage to pay and indemnify for the loss sustained, and not because a loss is threatened.

The real state of the facts at the time of the abandonment is to govern ; but that is to be ascertained from subsequent examination. The information may be of such damage as would render it expedient to abandon, but if it should prove incorrect and overstated, the abandonment would not avail.

But the facts in the case at bar do not call for an elaborate examination and decision of that point; because, on the day when the Delta was abandoned, she was sailing upon her voy age from Key West to Boston in good safety, instead of being in imminent danger of destruction.

*493A.nd upon examining the policy in this case, the construetion which has been suggested by the plaintiffs’ counsel is expressly excluded by the provision, “ that the assured shall not have a right to abandon the vessel for the amount of the damage merely, unless the amount which the insurers would have to pay under an adjustment as of a partial loss, shall exceed half of the amount insured.”

The opinion of the Court is, that the plaintiffs are not entitled to recover for a total loss ; that the verdict shall be set aside, and the case be committed to auditors, according to the agreement of the parties, which is on file, to ascertain the damages as upon a partial loss; and that the judgment shall be hereafter rendered accordingly.

1

 See 2 Philips on Ins. 439. But see *Robinson*v. *Clifford,*2 Wash. C. C R. 1.

1

 See *The Brig Sarah Ann,*2 Sumner, 206; *Bryant*v. *Commonwealth Ins. Co.*13 Pick. 543; *Winn*v. *Columbian Ins. Co.*12 Pick. 279; *Petapsco Ins Co.*v. *Southgate,*5 Peters, 623; 3 Kent’s Comm. (3d ed.) 173, note *c; The Schooner Tilton,*5 Mason, 476, 477; *American Ins. Co.*v. *Center, 4*Wendell, 45; *Gordon*v. *Mass. F. & M. Ins. Co.*2 Pick. (2d ed.) 262, note I, and cases cited; *Meto England Ins. Co.*v. *Brig Sarah Ann,*13 Peters 387; *Peirce*v. *Ocean Ins. Co.*18 Pick. 88.

1

 See *Orrok*v. *Commonioealth Ins. Co. 21*Pick. 466.

1

 See *Deblois*v. *Ocean*Ins. *Co.*16 Pick. 311.