#### Saurez and others *v.*The Sun Mutual Insurance Company.

-Where the expense of repairing a vessel injured by perils of the sea, will exceed a moiety of her value, the owners have a right to abandon her to the underwriters, and to recover for a total loss.

The assured has the right to make full repairs at the port of necessity, if they can be made there; and the expense of such repairs, at that port, furnishes the criterion for determining whether the loss be partial or total.

The assured is under no obligation to make partial repairs, so as to bring the vessel to a port where she can be completely refitted at less expense.

The condition of a vessel, at the time of the abandonment, is the test of the right to abandon.

As the capacity of a vessel to pursue her voyage is the ground of an abandonment, so the act of repairing, which is to divest the right to abandon, must be performed with the intent to make the vessel seaworthy, so that she may prosecute her voyage.

An abandonment, when effectually made, relates back to the time of the loss.

Partial repairs, made by the master in good faith, at the port of distress, in order to sail his vessel to another port for full repairs at a less expense, and not for the purpose of restoring the vessel and continuing the voyage, are to be deemed acts done in preserving the property insured, which do not impair the owner’s right to abandon.

(Before Oakley, Gil J., and Vandeiipoel and Sandford, J. J.)

March 13 ;

May 12, 1849

This was an action of assumpsit upon a policy of insurance for $6000, on the barque Childe Harold, tried in June, 1848. -The policy of insurance bore date November 18, 1845, and was *483for twelve months, upon a voyage from New York to a port or ports in the Pacific ocean not north of Guayaquil, from thence to any part of the world which the owners or their agents might direct. If absent, with liberty to extend the time to cover the risk, if necessary, at a port in the United States. The policy contained a stipulation authorizing the vessel, in her voyage, to proceed and sail to, and touch and stay at, any ports or places, if thereunto obliged by stress of weather, or other unavoidable accident, without prejudice to the insurance. And it was declared lawful for the insured, in case of loss or misfortune, to sue, labor, and travel, for, in, and about the defence, safeguard and recovery of the vessel or any part thereof, without prejudice to the insurance; to the charges whereof the assurers agreed to contribute, according to the rate and quantity of the sum insured. It was also agreed that the acts of the assured or insurers in recovering, saving, and preserving the property insured, in case of disaster, should not be considered a waiver or acceptance of an abandonment. The counsel for the plaintiffs read the preliminary proofs of loss, showing that the barque sailed from Guayaquil, bound to Havana, with a cargo of cocoa, &c.; that having reached Havana in safety, she commenced discharging and taking in cargo, and while so employed, she encountered a violent hurricane, on the 11th of October, 1846, from which she suffered so badly, that she was unable *to*proceed. on her voyage without extensive repairs. A protest was made by the master of the barque before the United States consul, and the consul ordered a survey to be made. Surveyors were accordingly appointed to examine into the condition of the vessel, with instructions to take with them the estimates of her thorough repairs, and the estimates of such partial repairs as would put her in a seaworthy condition to make a voyage to New York for further repairs. The surveyors reported that to make full repairs would cost $9900, which would amount to an abandonment of the barque, and she would have to be sold for the benefit of all concerned; but that partial repairs, sufficient to enable the vessel to proceed to New York, might be made for the sum of $960 ; and they recommended that partial repairs only should be made, and that the captain should pro*484ceed to New York with the vessel, to complete the repairs at that port. Partial repairs were accordingly made at Havana, to the amount of $2170 03 ; the vessel proceeded to New York with a light cargOi On the 11th of November, 1846, in New York, the assured abandoned the vessel to the underwriters, on the ground that the estimates made in Havana, of the expenses of repairs, showed that the barque had sustained damage and injury to an extent beyond a moiety of her value. The vessel sailed from Havana on the 9th or 10th of November, 1846, for New York. After her arrival at New York, she was sold for $8000, and then repaired by the purchaser. The expense of such repairs, deducting one third new for old, was less than half the value of the vessel. The master of the barque testified that there was no communication with the owners in New York, nor was there time for any, before the temporary repairs were put on. The jury found a verdict for the plaintiff, by consent, for $7000 damages, subject to adjustment, and td the opinion of the court upon a case to be made, with liberty to either party to turn it into a bill of exceptions or special verdict.

There was a similar suit, between the same parties, upon a policy on the freight.

F. *B. Cutting,*for the plaintiffs.

I. The preliminary proofs of loss and interest weré sufficients If there be any defect in them, the defendants cannot, under the circumstances proved, take advantage of it.

II. The damage to the ship by the hurricane of October, 1846, was so great, that she was incapable of being repaired at Havana, so as to prosecute her voyage to New York, except at a cost exceeding her value as fixed in the policy. Clearly it would have exceeded a moiety.

III. The assured had the right to repair the vessel at Havana, and to continue the voyage. He was not obliged to relinquish the great purpose of his enterprize, viz., carrying a full cargo ; and to put on temporary repairs, and, in a crippled state, to proceed in ballast trim to New York, because the repairs could be obtained there at a cheaper rate. *(Center*v. *American*
      *485
      *Ins. Co., 7*Cow. 564; *American Ins. Co.*v. *Center,*4 Wend. 45.)

IY. The abandonment, on the 11th November, 1846, was made without delay, upon the receipt of intelligence of the disaster-. The title to the vessel was thereby transfeired to the Underwriters from the time of the loss ; and all subsequent events were at the risk of, and for the account of, the underwriters. (Sc*heiffelin*v. *N. Y. Ins.*Co., 9 Johns. R. 26; 2 Phill Ins. 415 ; *The Brig Sarah*Ann, 2 Sum. 206, 210.)

Y. The act of Joaquin Gomez and of the mate, (who, after the death of the captain, succeeded to the command,) in putting on temporary repairs, and undertaking to proceed to New York in ballast trim, did not take away from the assured the right to abandon. It was not an election by the assured, or their agents, to repair, followed by actual repairs and a resumption of the voyage, so as to deprive the plaintiffs of their right to recover for a total loss. *(Dickey*v. *American Ins. Co.,*3 Wend. 658 ; 2 Phill. 406, 408 ; *Walden*v. *Phœnix Ins. Co.,*5 Johns. 310; *Livingston v. Hastie,*3 Johns. 293.)

At the time of the abandonment, the vessel was not repaired, or attempted to be repaired. *(Abbot*v. Broome, 1 Caines’ *R.*292.)

YI. The temporary repairs in Havana, and proceeding to New York, were acts intended for the benefit of the underwriters and for their account. To treat them as prejudicing the rights of the assured, would be partially to forbid any interference with, or acts done to, the property, with the view of protecting it and of diminishing the loss.

YII. It was for the purpose of preventing such a result that the New York underwriters have lately introduced into their policies the following clause; “ That the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered a waiver or acceptance of abandonment.”

YIII. The plaintiffs are entitled to judgment for a total loss j viz., the sum subscribed to the policy; and also for the expenses incurred in Havana for temporary repairs, wages, &c. *(Potter*v. *Prov. Wash. Ins. Co.,*4 Mason, 300; 2 Phill. 464.)

*486
      *H. Ketchum,*for the defendants.

I. The offer to abandon bore date November 11, 1846. At that time the barque was on her return voyage from Havana to New York, her partial repairs having been completed November 2, 1846. The state of facts on the 11th November, determines the question of the right of the assured to abandon. (3 Kent’s Com., last edition, 324 and 325, and authorities in note a.; *Dickey*v. *N. Y Ins. Co.,*4 Cowen, 222, 245, 246, 249 ; *2*Phill. 371 to 374 ; 3 Wend. 658, 664.)

■ II. The acting commander of the barque, acting as the agent of the owners, had elected to repair instead of to abandon, before the offer to abandon, and having so elected, the owners were bound by it, and could not therefore rightfully abandon, *(Dickey*v. *N. Y. Ins. Co.,*4 Cowen, 246; 2 Phill. 442 ; *Carter*v. *Am. Ins. Co., 7*Cowen, 564.) “ In general, the master cannot impair the right to abandon, by anything he does. The act of repairing is an exception.” (7 Cowen, 582.) In *Humphrey*v. *Union Ins. Co,,*(3 Mason, 429,) the owner elected through his agent, the master, to make the necessary repairs and continue the voyage.

III. The right to abandon, if the assured were not deprived of that right by their election to repair, depends on the state of facts on 11th November. At that time the vessel was on her passage from Havana to New York, and the value of the repairs required to restore her, in the condition she then was in, did not amount to a moiety of her valuation in the policy.

IV. Even if the cost of temporary repairs may rightfully be added to the cost of repairs put upon the vessel after she was sold in her home port, it depends upon an adjustment to be made under the direction of the court, whether such repairs exceed a moiety of the appraised value of the vessel. In making such adjustment, the repairs valued must be restricted to those required to put the vessel in the condition she was in before the disaster, and not to any repairs required for a different trade or commercial employment.

*487By the Court. Sandford, J.

There is no doubt that while the injured vessel remained at Havana, and before the partial repairs were made there, the plaintiffs were entitled to abandon, and to recover for a total loss. Full repairs might • have been made in that port, and the expense of such repairs at the port of necessity, furnishes the criterion for determining whether the loss be partial or total. The plaintiffs were under no obligation to make temporary repairs, so as to bring the vessel to a port where she could be completely refitted at less expense. *(The American Insurance Company*v. Center, 4 Wen. 45.)

• The defence rests upon the fact, that before the abandonment was actually made by the owners in New York, the barque had been so far repaired at Havana, as to enable her to proceed to New York with a light cargo, and had actually sailed from Havana a day or two before. The expense of the full repairs subsequently made in New York, after the proper deduction of one-third, added to the cost of the partial repairs at Havana, amounted, it is said, to less than half the valuation of the barque, and thus there was no constructive total loss. The defendants rely with great confidence on the case of *Dickey*v. *The American Insurance Company,*3 Wen. 658 ; and a case of the same plaintiff against The New York Insurance Company, arising on a policy on the same vessel, reported in 4 Cow. 222. There the ship having met with disasters, was fully repaired at the port of necessity, at an' expense exceeding three-fourths her value, and was proceeding on her voyage with such of her cargo as had not been sold, at the time the abandonment was made. It was held, that by fully repairing, the master as the agent of the assured, converted the total into a partial loss, before the date of the attempted abandonment, and that the owner could recover for a partial loss only.

The important difference between the case of Dickey and the one before us, is this. The voyage in that case, so far from being broken up, was actually consummated; and the ship when abandoned, was not only in good safety, but was doubtless a better ship than she was before the disaster. In this case, ■the voyage was lost; for the freight earned arose merely from *488putting on board sufficient weight to make a suitable ballast; and so far from being in good safety when she was abandoned, she was totally unfit to carry a cargo ; and her subsequent repairs here, cost more than half her valuation.

The condition of the vessel at the time of the abandonment, is undoubtedly the test of the right to abandon. As the barque was situated, when the plaintiffs abandoned, within one or two days sail of Havana, there was still a total loss, unless the owners were bound to bring her to New York for repairs.

It is not claimed that they were so bound, unless the act of the master in putting the barque in a condition to come to New York for repairs, be deemed the act of the owners, and constituted an election to repair, instead of abandoning.

In point of fact, there is no reason for believing that there was any intention of the master to make full repairs. He was unquestionably acting for what he supposed was the best interest of all concerned. And it was the interest of the underwriters, whether the loss was partial or total, to have the barque repaired here, rather than at Havana.

Then was the master’s act, an election on the part of the owners to repair the vessel ?

It is conceded that in general, the master cannot, by any thing he does, impair the right to abandon ; but it is said the act of repairing is considered an exception. This exception is sustained by the case of Dickey, before cited, and in this state may be said to be founded on that decision. As the incapacity of the vessel to pursue her voyage, is the ground of an abandonment ; so, in our judgment, the act of repairing, which is to divest the right to abandon, must be performed with the intent to make the vessel seaworthy, so that she may prosecute the voyage. Such were the repairs in the case of Dickey, which were held to defeat the subsequent abandonment. The vessel had been fully restored. The same circumstances existed in *Humphrey*v. *The Union Insurance*Company, (3 Mason, 429,) where the master’s repairs were held to deprive the assured of the right to abandon.

It was conceded in *Dickey*v. *New York Insurance*Company, by the learned counsel for the underwriters, (now Mr. Justice *489Duer,) that in the case of a plain total loss, where the voyage was palpably gone, the master, before abandonment, acts for those concerned, and is so far the agent for the assurer. One principle reason why the master’s election to repair takes away the right to abandon, is that the assurers are always entitled to determine for themselves whether they will repair the vessel or not.

This reason, it is apparent, does not apply to a case where mere partial repairs are made, not in order to prosecute the voyage, but to bring the vessel from a port of necessity to one where she may be fully repaired, at half the expense. Such repairs are purely of the nature of salvage, for the benefit of all concerned. Each case of this kind must be governed by its peculiar circumstances. No master would take the responsibility of such a course, unless there was a moral certainty that a substantial salvage would be effected by it; and his responsibility, with the requirement of good faith, seems to furnish a sufficient protection against wrong to the underwriter. (See *Milles*v. Fletcher, Dougl. 231.) In many cases, from necessity, the master is compelled to take various important steps for the preservation of the ship, or what remains of her after the disaster, and before he can communicate with either the owners or the assurers. In such cases, he is bound to act as he would if the property were his own ; and if the loss be total, his acts in that intervening period are deemed those of the assurers. The, abandonment, when effectually made, relates back to the time of the loss; *(Clarkson*v. *Phœnix Insurance*Company, 9 Johns. 1; *Waddell*v. *Columbian Insurance Company,*10 Ibid. 61;) and it would be unreasonable to hold that partial repairs, made for the preservation of the property, are the act of. the assured, and deprive them of the right to abandon.

The case of *Hall*v. *The Franklin Insurance Company,*(9 Pick. 466,) cited by the defendants, differs from the one at bar, in the essential fact, that the vessel insured was not so much injured that she could not be taken from Key West, the port of distress, to New Orleans, or even to Boston, without any repairs whatever. In fact, she sailed to Boston, and was there repaired. If the barque in question, had been in a condition to sail from *490Havana to New York, after the disaster, without being partially repaired, the case would have been parallel to that in 9th Pickering. It is not there decided that the owners are bound to make partial repairs at the port of distress, so as to take the vessel to another port where repairs can be made at less expense than they can be made at the former; the voyage in the meantime being broken up.

We have examined the case without reference to the clause in the policy, providing that the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, shall not be considered as a waiver or acceptance of an abandonment. The good sense of the contract leads to this conclusion, without a special provision in the policy; and we think that partial repairs, made in good faith by the master, at the port of distress, in order to sail his vessel to another port for full repairs at a less expense, and not for the purpose of restoring the vessel and continuing the voyage, are to be deemed acts done in preserving the property insured, which do not impair the owner’s right to abandon.

In the suit upon the freight policy, nothing need be said, as there was a technical total loss of the vessel.

The proof, however, shows presumptively, a like total loss of the freight, independent of the loss of the barque.

The plaintiffs are entitled to judgment in both suits, as for a total loss.