INSURANCE. the master or mariners. Insurance against detention of princes does not extend to ships that are seized for transgressing the laws of foreign countries.
The insurers are also liable for a total loss, when damage is sustained, and the remaining property abandoned or vested in the insurers.
If a ship be stranded, or taken, and kept by the enemy, or detained by any foreign power, or seized for the service of the government, the proprietors have a right to abandon.
But, if a ship be taken by the enemy, and be retaken, or makes its escape, before action against the insurers; have the insured a right to abandon, or must they only claim for the damages sustained as an average loss? There are opposite decisions, according as the circumstances of the case were strong. When the ship was long detained, the goods perishable, the voyage entirely lost, or so disturbed, that the pursuit of it was not worth the freight, or when the damage exceeds half the value of the thing, they have been found entitled to abandon; Goss against Withers, 2 Burrow, 683.) But, if the voyage be completed with little trouble or delay, they are not entitled; (Hamilton against Mendez, 2 Burrow, 1198.)
The insured cannot claim, as for a total loss, on an offer to abandon, when the loss is, in its nature, only partial; for, if this were permitted, they might devolve the loss occasioned by bad markets on the insurers.
And, in all cases, the insured have their option to abandon, or not. They may retain their property if they please, and claim for an average loss; and they must make their option before they claim.
If the goods be so much damaged, that their value is less than the freight, the insurers are accountable as for a total loss.
The insurers are liable for general average, when the property is charged with contribution; and for particular average, when the property is damaged, or part of it destroyed.
If the damage be sustained through the fault of the ship, the owners of the goods may have recourse, either against the masters or insurers; and, if the insurers be charged, they stand in the place of the owners, and have recourse against the master.
In order to prevent the insurers from being troubled with frivolous demands for average, it is generally stipulated, that none shall be charged under 5 per cent. or some other determined rate; and corn, flax, fruit, fish, and like perishable goods, are warranted free from average, unless general, or the ship be stranded.
In order to encourage every effort to save the ship, the insurers are liable for charges laid out with that design, although the subject perish. Thus, they may be charged with more than the sum insured.
In case of goods being damaged, the proportion of the sum insured, for which the underwriters are liable, is regulated by the proportion of the prices which the sound and damaged goods fetch at the port of destination. The prime cost of the goods is not considered, nor the necessity of immediate sale, in consequence of damage. Although the damaged goods sell above prime cost, the insurers are liable.
Fourthly. If a ship be lost, and the crew saved, the loss is proved by the evidence of the crew.