Joseph Story

“ In short, with the mode by which the owner obtains the necessary advances, they have nothing to do; except that they must bear their share of the increased expenses to furnish the repairs, as a common sacrifice. Indeed, it seems difficult to understand upon what ground it is, that in case of a partial loss the owner is exonerated from the duty of delivering his own ship from the lien of the bottomry bond, and is at liberty to throw upon the underwriters the whole obligation of discharging it, under the penalty of being otherwise responsible in case of a sale ”

“ But an insurance on time by no means contains any undertaking on the part of the underwriters, that any particular voyage undertaken by the insured within the prescribed period, shall be performed before the expiration of the policy. It warrants nothing as to any retardation or prolongation of the voyage; but only that the ship shall be capable of performing the voyage undertaken, notwithstanding any loss or injury which may accrue to her during the time for which she is insured ”

“ They undertake only for losses sustained by those perils; and if any peril does act upon the subject, yet if it be removed before any loss takes place, and the voyage be not thereby broken up, but is, or may be resumed, the insured cannot abandon for a total loss.' Language more explicit upon this point, could scarcely have been used.
Nor is there any, the slightest difference in law, whether the retardation or temporary suspension of the voyage be for the purpose of repairs, or to meet any other exigency which interrupts, but does not finally defeat the actual resumption of it. ”

“ In considering the first, it is material to remark, that by the well settled principles of our law, the state of the facts, and not the state of the information at the time of the abandonment, constitutes the true criterion by which we are to ascertain whether a total loss has occurred or not, for which an abandonment can be made. If the abandonment, when made, is good, the rights of the parties are definitively fixed ”

“ Yet no doubt could have been entertained that, under such circumstances, the underwriters would not have been bound to deliver the vessel from the liens thus incurred, at the peril of otherwise becoming answerable for a total loss. In what essential particular is the case changed by the substitution of an express lien by bottomry, for an implied lien by the maritime law? In none, that we can perceive. ”

“ Defendants' 1st Prayer-The defendants, by their counsel, pray the court to instruct the jury that the notice of abandonment of the 22d April, 1833, and the accompanying letter from captain Snow, of the 25th of March, as given in evidence by the plaintiffs, do not show or disclose facts which in law justify the offer to abandon then made; and therefore, that in the absence of all evidence that said abandonment was accepted by the defendants, the plaintiffs are entitled to recover only for a partial loss. ”

“ Under such circumstances, if, in all human probability, the expenditures which must be incurred to deliver her from her peril, are, at the time, so far as any reasonable calculations can be made, in the highest degree of probability, beyond half value; and if her distress and peril be such as would induce a considerate owner, uninsured, and upon the spot, to withhold any attempt to get the vessel off, because of such apparently great expenditures, the abandonment would doubtless be good. ”