delivered the opinion of the Court:
This Cause- pomes before t'he Court upon a writ of error to the circuit court of. Maryland district. The original action was upon a policy of insurance dated the 22 d of November, 1832, whereby the defe'hdahts, The. Maryland Insurance- Company, caused the plaintiffs by thpir ágents, (William Howell’& Son,) to be insured, lost or not’ lost, ten, thousand dollars, at á premium of four per cent.,- on the brig Gracchus; Snow", master, (valued at that sum,) at and from Baltimore,for six calendar months, Commencing that day at noon; and if she be on a’passage at the expiration of the time, -the risk to continue at the same; rate of premium., until her - arrival at the port of destination. The declaration alleged a total less by the casting ashore and stranding of the brig on.the 23d of- March, 1833, in the river Mississippi. Upon the’ trial of the cause, it appeared in evidenóe, that the brig sailed from Baltimore on a voyage to New Orleans, and safely arrived there; and took on board part of her cargo, (pork and sugar) at that port on a voyage for Baltimore; and about the middle of the 23d.day.of March, 1833, sailed from New Orleans, intending to proceed to Sheppard’s plantation, on' the river Mississippi, about thirty-three miles below New Orleans, to take in the residue of her *392 cargo for tbe same voyage. At the English Turn, about twenty-two miles from. New Orleans, the brig attempted to come to anchor, and in so doing lost the small bower anchor; and then dropped the'best bower anchor, which brought her'up. The' next, morning,-While the brig was- proceeding on her voyage, she struck on a log, broke the rud.der'pintles, when she fell off and went on shore. A signal was then made for a.steamboat in sight; Which came to the assistance'of the brig; and in attempting to haul her off the huuser parted. It was then found' that the brig was making water very fast'. Help was obtained from a neighbouring plantation. They commenced pumping and discharging the.cargo' on board of the steamboat;-and after disсharging all the pork, and a part'of the sugar, they succeeded in' freeing the .ship on the afternoon of the same- day.' She was then got off and proceeded to New Orleans, where she arrived the same night; she continuing to. leak, and bo.th pumps being kept, going,.all -the time.' The next day the master understood that the steamboat' claimed a salvage,of fifty per cent.,-and intended to'libel for it., Q.n the'27th; .of the same month the brig was .taken - across.the river for repairs. On the same day the br,ig was libelled for the-salvage in the district court of Louisiana.
On the 25th of March, Snow, the-master, wrote a lettér to one of the owners, containing an account o'f the, loss and state of the brig;- -and also of the claim by the salvors of fifty per- cent., which the underwriters on the cargo, and himself had objected to-: adding th# they should hold the steamboat-liable for any damage.that.might be incurred on account of -the detention.
'On the 22d'of April, Messrs.-Howell & Sons addyessed a lettér-to the company, submitting the lettеr.jof the 25th'of March to the ctímpany, and say therein: “In: consequence of'the'damage,.-together with the detention that must' grow out of a lawsuit, (in which it appears that the vessel is involved,) the voyagf being broken Up; we do hereby abandon'to. you the brig, Gracchus, as insured in your office, per policy No. 13,703, and claim for a total loss.” .On thé same day the coinpatiy returned am-answer; saying: “We cannot accept the abandonment tendered in your letter of this date; but expect you to do what-is necessary in the case,- for the safety and relief of the vessel.’-’
On the 9th of the ensuing May,-the district court decreed one-quarter of the.valii.e 'of the vessel and cargo (estimated at seven thousand dollars) as salvage; the brig being valued at two thousand five' *393 hundred dollars. .On the 14th of the same month the master got possession again of the brig, the salvage having'been paid. On the 3d of June, 1833, the brig was repaired and ready-for a freight: and early in July, she sailed for Bаltimore, with a partial cargo on board on-freight; and duly arrived there in the latter part of the same month. The repairs at New Orleans amounted to'the sum of -one thousand six hundred and ninety dollars and fifteen cents; and the share of the brig, at the general average or salvage, to the sum of one thousand two hundred and forty-five dollars and seven cents; in the whole, amount-? ing to two thousand nine hundred and thirty-five dollars and twenty-two cents. To meet this sum and some other expenses, the master obtained an advance from Messrs. Harrison, Brown & Co., of New Orleans, of three thousand seven hundred and fifteen dollars and forty-one cents; and gave them as security therefor, a bottomry bond on the Gracchus for the principal sum, and. five per cent, maritime premium, payable on the safe arrival of the brig at Baltimore. .
On this bottomry bond the brig was libelled in Baltimore; and no claim being interposed by any person, she was by a decree of the district-court of Maryland, on the 5th of September, 1833, ordered to be sold to satisfy the bottomry bond; and she was accordingly sold, by the marshal about" the 20th of the same month; to John B. Howell,-for four thousand seven hundred and fifty dollars; and on the 24th of the same month there was paid to the attorney of the libellant, the full amount due under the decree of the court. On the same day, the president of the company addressed a letter to Messrs. Howell & Son, in which they say, “We have examined the statements of general' and particular average, and the accounts relating thereto, which you handed us some days ago, respecting the expenses incurred on the brig Gracchus, at New Orleans. Although-some of the charges are of a description for which the company is not liable by the terms of their policy; yet, wishing to act liberally in the case, we have agreed to .admit every item in the accounts, and the different amounts will b,e as follows.” Here follows a statement, deducting from the reрairs one-third new for old, and admitting the sum of two thousand four hundred and nine dollars and eleven cents to be due to the plaintiffs; and enclosing the premium note, and a check for the amount " The letter then adds, “ If you find any other charge, &c., has been.paid at New Orleans, in order to raise the fund's on bottomry, we will pay our full proportion of the same, upon being nqatíe acquainted with the amount.” ' On the same day Messrs. Howell fc *394 Son returned an answer, refusing to receive the • premium, note and check, adding, “We should do then} (the owners) great injustice to make such a settlement.' Our opinion is, that in law and equity, they, have a claim for a total loss.”
These are the principal facts material to be mentioned, though much other evidence was introduced into the cause upon collateral points, by the parties.
Thecounsel for the defendants, after the evidence on each side was closed, moved the court to instruct the jury as follows:
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 óffer 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.
2. That if the said notice of abandonment was sufficient, still the jury ought to find a verdict for a partial loss oply;- unless they shall believe from the evidence, that the Gracchus suffered damage from the accident that befel her on the 24th March, 1833, to more than one-half the sum at which she was valued in the policy; and that in-estimating said damage, the jury ought to take the cost of her repair» only, ^deducting one-third thérefrom, as in the case of adjusting a partial -loss.
3. That if the said abandonment was sufficient, as is.assumed .in the preceding prayer, still the jury ought to find a verdict for a partial loss only; unless they sh?ll believe, upon the evidence, that the damage so sustained by said brig exceeded in amount one-half the sum at which she was valued in the policy; and that in estimating the cost .of her repairs for the purpose of ascertaining the amount of such damage, the jury are bound to deduct one-third therefrom, as in the case of 'a partial loss.
4. That if said abandonment was sufficient,'still the jury ought to find a partial loss only; unless they shall believe that the damage as aforesaid was more than one-half the value of the said brig at the time the accident,happened, according to the.'proof of such value as given in evidence: and that in estimating the amount of such damage, the jury are to "take the amounts of the general- and particular ave *395 rages as adjusted at New Orleans, deducting one-third from the actuаl cost of repairs.
But the Court'refused to give the instruction prayed for, and gave to the jury the following-instruction: If the jury find from the evidencé, that the Gracchus was so damaged by th'e'disaster mentioned in the letter of captain Snow, of March 35th; 1833, that she co^ild not be got off and repaired without an expenditure of money to' an amount exceeding hálf her value, at the port of-New Orleans, after such repairs were made; then the_plaintiffs are entitled to recover for' a total loss, .under the abandonment made on the 33d day of April, 183.3: and in ascertaining the amount of such expenditure, the jury must -include the sum for which the brig was liable to the salvors, according to the decree of .the district court of Louisiana státed in the' evidence: but if the jury find that the vessel could have been got off and ■ repaired, without an' expenditure • of money to- the amount of more than half her value, then-upon the evidence offered, the plaintiffs are not entitled to recover for a total loss, on the ground that the voyage was retarded or lost; nor on account of the arrest and detention of the vessel bv the admiralty process, issued at the instance of the salvors. -
The defendants excepted to the refusal of the court to give the instructions prayed: and also to the opinion actually given by the court in their instructions to the jury. The plaintiffs also excepted to the, same opinion, given- by the court.
. The plaintiffs also prayed the court to direct the jury, that in this cause the insured, by their letter of the 33d April,' authorized and required the proper expenditures to be made upon the vessel, for which said underwriters are. liable under their policy; that no funds being supplied by them in New Orleans to meet this loss, and the salvage and repairs having been paid for by money raised upon respondentia upon the vessel; if the jury shall find that said vessel, under the lien of this bond, came to Baltimore, and the defendants were then аpprized of the existence of such respondentia, and were also informed of the existence of the proceedings thereupon against said vessel, and they neglected to pay so' much thereof as they ought to have paid to relieve said vessel; and omitted to place her in the hands of the'owners, discharged of so much of such bottomry, as the underwriters were liable for; and in consequence thereof,'said vessel was libelled arid condemned and sold, ¿md thereby wholly lost to the *396 plaintiffs; then the plaintiffs are entitled to recover for the whole value of the vessel.”
The court refused to give - this instruction, and the plaintiffs' excepted to the refusal; and the court signed a bill of exceptions upoq both exceptions. The jury found.a verdict for the plaintiffs for three thousand four hundred ánd eighty-nine dollars and-twenty-two cents; upon which judgment passed' for the. plaintiffs. And. the present writ of error is brought by the plaintiffs for the'purpose of reviewing the instructions above stated, so far as they excepted thereto.
Although the prayers for the instructions by the-defendants are not before the Court for the purpose of direct consideration, as the defendants,have brought no writ of error; yet it is impossible- completely tq understand the nature and extent, and proper construction of the opinion given by-the court, without adverting to the propositions contained in them; for to them, and to them only was the opinion of the court given 'as a response.
The second instruction asked by the defendants, in substance, insisted, that to entitle , the' plaintiffs to recover for-a total loss,.the damage to the Gracchus from the accident should be more than one-half the sum to which she was valued in the policy; and that in e'stimating.that damage", the cpsts of the repairs only were to be taken, deducting one-third new for old. In effect, therefore, it excluded all consideration.of the salvagе in the.ascertainment of the loss.
Thp third. instruction was in substance similar to the second, except that it did not insist upon the exclusion of the salvage. In effect) therefore; it insisted upon the yaluation in thp policy,, as the standard by which to ascertain whether the damage was half the value of the, Gracchus, or not. .
The fourth instruction insisted, that to entitle the plaintiffs to recover for a total loss, the damage must exceed ope-half. the valúe of the Gracchus at the time of the accident;- and that in estimating the. damage, the general and particular averages, as adjustéd at New Orleans, were to be taken; deducting one-third new for old. In effect,' therefore, it insisted that nothing but these adjustments were to be taken into consideration, in ascertaining the totality of the loss at the time of the abandonment; (admitting the abandonment to be sufficient;) however imminent might be the dangers, or great the losses then actually impending over the Gracchus. And all three of these prayérs further insisted, that the deduction of one-third , new for old, should be made from the amount of the repairs, as in the case of a *397 partial loss, in ascertaining whether there was a right to abandon foir a total .loss; upon the' ground that- the damage exceeded á-moie'ty óf the value of the vessel.
The instructions of the court actually given' in-these-prayers, involve the following propositions. 1. That'if thfe expenditures.in repairing the'.damage exceeded half the value of the brig- at the port of New Orleans, after such repairs were made, including therein the salvage awarded- to the salvors; the plaintiffs were entitled to. recover for a total loss, under the abandonment made, on the 22d of April, 1833. 2. If the expenditures to get.off and repair thfe brig, were less than the half of such value, then the plaintiffs were not entitled to recover for á -total loss, upon the ground that the voyage was retarded or lost; nor'on account of the arrest and detention of the brig, under thfe admiralty process, for the salvage.
The question- is, whether these instructions were correct. In considering the first, it is material to remark, that by thfe 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 trufe 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; apd do not become changed by any subsequent events. If, on, the other hand, the abapdohment,/when made, is not good,'subsequent circumstances will not affect it so as, retroactively, to'impartto it a validity which it had not ,'at its origin. In some respects, our law on this point differs from that of England; for, by the latter^ the right to a total loss vested by an abandonment, may be divested by subsequent fevfents, which change that total loss-into а partial loss; It is unnecessary to cite cases on -this subject, as the diversity is well-known ; and the courts in neither country- have shown any disposition of late years to recede from their own doctrine. The cases of. Rhinelander v. The Insurance Company of Pennsylvania,
In cases where the abandonment is founded upon a supposed technical total loss, by a damage or injury exceeding one-half the value of the vessel, although the fact of such damage or injury must exist *398 ■ at the time, yet it is necessarily open to proofs, to be derived from ' subsequent events.■’ Thus, for example, if the repairs, .when subsequently made, clearly exceed the half value, it is plain that this affords one of the best proofs of the actual damage or injury. On the other hand, if the- subsequent repairs are far below the half value, this,' so far as at goes, affords an inference the othér way. ■ But it is not, and in many cases cannot be decisive of the right to abandon. In many cases of -stranding, the state of the vessel at the time may be such, from the immanency of the peril, and the apparent extent ,of expenditures required to deliver her from it, as to justify an abandonment; although, by some fortunate occurrence, she- may be delivered from her peril, without an actual expenditure of one-half of • her value after she is in saféty-. Under such circumstances, if, in all hu.man 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 the1 highest degree of probability, beyond half value; and if her.distress and peril be ''such as would in-' duce a considerate owner, uninsured, and upon the ‘spot, to withhold any attempt to get -the vessel off, because of such apparently great expeñditures, the-abandonment would doubtless be good. It was to such 'a. case that lord Ellenborough alluded, in Anderson v. Wallis, 3 M. & Selw., when he1 said: “There is not any case, nor.principle, which authorizes an abandonment, unless where the loss has been actually a total-loss,-or in the highest degree probable at the time of the abandonment.’7 Mr. Chancellor Kent, ir> his learned Commentaries, vol. 3, 331, has laid'down the true results of the- doctrine of law on this subject.'. “ The right of abandonment (says he,) does not depend upon the certainty, but upon the' high probability of. á total loss, either of the property or of the voyage, or both. The insured is,to act, not upon certainties, but upon probabilities; and if the facts ' presé'nt a'case of extreme hazard, and' of probable expense, exceeding halfthe value, of the ship, the insured may abandon; though it should happén that she was afterwards recovered at a less expense.77 We have no difficulty, therefore, in acceding to the argument of the counsel for the.plaintiffs in errоr.on this point. But its application to the ruling of the court, will be considered hereafter.
In respect to the mode of ascertaining the value of .the ship, and, pf course, whether she is injured to the amount of half, her value, it has, upon the fullest consideration, been held by this Court, that the true basis of the valuation is the value of the ship at the time of the
*399
disaster; and that, if after the damage is or might be repaired, the ship is not, or would not be worth, at the place of the repairs, double the cost pf the repairs, it is to be treated as a technical total loss. Thisy was the doctrine asserted in the Patapsco Insurance Company v. Southgate,
If, with these.'principles in view, we examine the first instruction given in this case in the circuit court, it will be fqund to be perfectly correct. Indeed, that part of the instruction which declares that if the brig lt could not be got off and repaired without an expenditure of money to an amount exceeding half her value at the port of New Orleans, after such repairs were made, then the plaintiffs are entitled to recover for a total losé under the abandonment,” is precisely in the terms of the instruction given in The Patapsco Insurance Company v. Southgate,
In respect to the other part of the instruction there is no substantial difficulty. The,mere retardation of the voyage by any of the perils insured against, not amounting to or producing- a total incapacity of the ship eventually to perform the voyage,.cannot, upon principles well established, be admitted to constitute a technical total loss, which will authorize an abandonment. A. retardation for the purpose of repairing damages from the perils insured against, that *401 damage riot exceeding' one .moiety of the value of the ship, falls directly within this doctrine. Under such circumstance's, if the ship can be .repaired and is repaired, and is thus cаpable of performing the voyage, there- is no ground, of -abandonment founded upon the .consideration that the voyage rhay not be-worth'pursuing for the interest of ¡die"ship owner; or that the cargo has.-been injured,-so .that it is not worth- transporting further on-the voyage:, for'the loss of the c.a'rgo fpr the .voyage, has nothing to do -with an insurance upon the ship for the voyage. This was expressly held '.by this Court, in the case of Alexander v. The Baltimore Insurance Company, 4 Cranch R. 370; where, it was decided that an insurapce'-On a ship- for á voyage, was- not to be treated- as ail insurance ,on the ship- and the-v.oyage, or. as. an undertaking that'she shall actually perform the Voyage:, and, only, that-notwithstanding any of the perils- insured-against, she shall be. of ability to. perform the voyage; and that, the underwriters will pay any damage-sustained by her, fropj -those perils, ' during-the yoyage; . The Court farther held,-that upon such an-insurahce,, a total loss of the cargo for the vоyage, was 'not a total loss of the ship for; the voyage. .In respect to. the point of retardation for repairs, the- mofe recent authorities contain reasoping altogether-satisfactory, and-consistent with the-true nature and objects of pdlh cies, of insurance. The subject-was a good deal-discussed in the case' of Anderson v. Wallis, 2 Maule & Selw. 240, which Was a policy op cargo,;'and‘ again.in, Everth v. Smith, 2 M. & Selw. 278; which was a policy on.freight’; and’ again in -Falkner v.-Ritchie,.2M. :& Sejw- ¿90, which’ was a-.policy, on. ship: and'-in each' -of the casés, the' court came to. the- conclusion that a mere retardation, of the voyage by' any peril insured- against, did'-not entitle the insured to:recover for a.totalloss;-if the:thing .insured was capable of per-' forming the. voyage; Lord Eljenbprough, in the first casé, said.:' “ Disappointment of arrival is-a new head of ábándonment in insurance law.” “If the-retafdatio'n of the Voyage he a cause of ábnndonment;.the.happening of аny.marine peril- to.the ship, by which a dejay is caused in- her arrival, at the earliest market, would also he á causé of ábándonment,; 1 am well■ aware .that an insurance upon a cargo, for,a particular voyage, contemplates that the voyage shall be performed with that cargo; and any risk which renders the cargo permanently lost to the assured', may.be á cause of abandonment.1 In like manner a total loss of - cargo may be effected not mferely by the destination, of thát cargo,- but by a permanent incapacity of the ship *402 to perform the voyage; that is, a destruction of the contemplated adventure* But the case of an interruption of the yoyage, does, not warrant the assured in totally disengaging himself from the adventure, and throwing this burthen on the underwriters.” In Falkner v. Ritchie, 2. M. & Selw. 290, his lordship'added:' “ What has a loss •of the voyage to do with a los3 of the ship?” meaning, as the, content shoves, that the loss of the voyage is no ground of abandоnment, where the ship is not damaged to an extent which permanently disables her to perform it. The same doctrine was affirmed in Hunt v. Royal Exchange Assurance Company, 5 M. & Selw. 47; and in’ Naylor y. Taylor, 9 Barn. & Cresw. 718. And it. was long ago recognised by this Court,-by necessary implication,, in the-case of Alexander v. Baltimore Insurance Company, 4 Cranch R. 370; and Smith v. The Universal Insurance Company, 6 Wheat. R. 176. In this latter case, the Court- said: ,“’The insurers do not undertake that the voyage- shall be performed without delay, or that the perils insured against shall not occur. 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' mpre 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. The detention of the ship, under the. admiralty proceedings, does not, therefore, in any manner change the postur.e of the case: It is admitted.on all sides, and indeed it admits of no legal controversy, that this detention cannot be construed to be a substantive peril within the clause of the policy respecting ‘f restraints and detainments of all kings, princes or people;” for the restraints and detainments there alluded, to, are the. operations of the sovereign power by ah exercise of the vis major, in its sovereign capacity, controlling or divesting, for. the.time', the dominion or authority of the owner over the ship.; and not proceedings of a mere civil nature to enforce priváté rights, claimed under the owner for • services actuálly rendered in che preservation of his prоperty. This, indeed, if it admitted of any doubt, would be disposed of by the reasoning of the court in Nesbitt v. Lushington, 4 Term R. 783; and Thornely v. Hebson, 2 Barn. & Ald. R. 513. See *403 also 3 Kent’s Comm. 304, 326. In truth the.detention by the admi-ralty. process was, in this case; as is apparent from the admitted facts, a mere retardation of the voyage. The brig was delivered from that proceeding; the salvage was paid; and she not only was capable, but did intact resume and-complete her voyage to Baltimore.
The. considerations, already- suggested, dispose of the other point raised under this, instruction, as to the loss of the voyage. . It'is apparent that the loss of the-voyage spoken of, and -necessarily implied in this instruction upon the admitted state' of the facts; was the loss of the-cargo for the voyage, and not the loss of the vessel by incapacity to perform the' voyage. If the vessel could, as the instruction- supposes, be got off'and-repaired without'an expenditure exceeding half her valuе, and be thereby enabled to resume the voyage; it is plain that the loss of the cargo for that voyage, constituted no total loss-of •the vessel for the voyage. It was ■ absolutely impossible for the court, upon-the authorities already cited,-to arrive at any other conclusion.
The state of things at the time of. the abandonment, did not demonstrate any incapacity of the ship to resume her-voyage after the repairs; .and in'point of fact, as has' been already suggested, she not only did resume it, but. actually performed it. The insurance was upon time; and. the policy actually expired, by its Own limitation, upon the 22d .of May, 1833/before she had actually resumed her voyage. But that, can make no difference. - An insurance on time differs as to this point in no essential manner whatsoever from an insurance upon a particular voyage; except in this, that in the latter ease, the insurance is upon and for a specific voyage-described in the policy; whereas a policy on time, insures no specific voyage,-but"it covers any voyage; or' voyages whatsoever íindertakén within, and not exceeding in point of duration, the limited period for which the insurance is made. Bijtan-insurance on-time by no means contains anjf 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 r 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; and of resuming it, if interrupted. In other words, the undertaking is that the. ship shall not, by .the .operation of any peril insured against • during the time *404 for Which' the policy . continues, be - totally, and permanently lost or .disabled frqm. performing.the voyagé then in.progress, or any. other' voyagе- within the scope of the policy.. The case of Pole v. Fitzgerald, Willes’ Rep. 641; S. C. Amber’s Rep. 214, affords a striking illustration*of this doctrine; and' whatever.doubts may 'be entertained as to some of the dicta' in that casé, lord- Ellenborough has' well said, that -it may be of great- use -to resort to' it, in. order to purify-the mind from these .generalities, respecting the'loss of the voyage.-of the ship, constituting, per se, a loss of the ship. Falkner v. Ritchie, 2 Maule & Selw. 293, There is ;no error, then,- in the instructions ácíualíy given to the jury-in the. response of the'-'court to those asked by the defendants.-
In the next-place, as to the instruction .asked' by the plaintiffs, and refused by. the court. In substance, it. insisted.that if the underwriters had' authorized .the' expenditures tp be niade for the repairs., and had-not supplied the appropriate fundi? for these repairs,-and for the salvage,- and -the bottomry bond was givén to secure them;- and the underwriters were apprized of the admiralty proceedings,at-Baltimore, and theré neglected to pay-so much thereof as they ought to have paid to discharge the samé; and that .the vessel in consequence thereof'was sold'under those-proceedings: then the plaintiffs were entitled to recover for'the whole value of the .vessel. This -instructiom.it. iqay be remarked, proceeds' -upon the supposition that there was .not á technical total loss, entitling the plaintiffs tó abandon'; and thát the abandonment of the 22d of April wa;s. not. available for thé plaintiff?. For, if it had been,, then the underwriters would, have become from .that- time 'the owners of. the ship;' ánd -the subsequent losses,- whatever, they might, be, would be on their sole account. Thé case -put, then; supposes- that,1 in. point of law, in-thé case of a .merely'partial loss to the ship, if money is taken up'on bottomry for/the hece,ssary. repairs'and, expenditures, it becomes-the duty-of thé‘uridérwritérs-to,déliyer the, ship from, the bottomry bond to the extent qf their liability for the expenditures; and that if they do-not, and, the vеssel.is- sold under the. bottomry bond, they are Háble not only for the partial loss,, but for' .all other losses to the owner from their neglect. We'know of no principle of laW which justifies any such doctrine. The underwriters engage to pay the amount of the éxpendifure? and- losses, .directly 'flowing from- the perils insured against; but not any remote-or'consequential losses to the owners, from their neglect fo páy the same. It might be as well contended, *405 that if by the neglect to pay a partial loss the owners were prevented from undertaking a new" and profitable voyage, the underwriters would be 'responsible to them for such consequential loss. The maxim here, ás in many other cases .in the law, is, causa próxima non remota spectatur. The underwriters are not bound to supply funds in a foreign xport for the repairs of any damage to the ship, occasioned by a peril insured- against.. They undertake only to pay the-amount after due notice and proof of the loss; аnd, usually, this is to be done, (as was in fact the present case) after a prescribed time from such notice and proof of the loss. If to meet the expenditures for the repairs, the master is compelled to take up. money on bottomry, and thereby an additional premium becomes payable, that constitutes a part of the loss, for which the underwriters are liable. But in cases of a partial loss,, the money upon bottomry is not taken up on account of the underwriters, but of the owner; and they become liable to the payment of the loss, whether the bottomry bond ever becomes due and payable or not. In short, with the mode by which the owner-obtains the necessary advances, they have nothing to do; except that .they must hear 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 ca.se of a partial loss the owner is exonеrated from the-duty of delivering his own ship f om 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; not for their share of the loss, (assuming that they were at all bound to discharge any part -of the bond,) but for the whole loss. Upon what ground can it be' -said that the .loss of thfe vessel by the sale in this casé,-is . attributable to the neglect of the underwriters, which does not equally apply to the owners. They had at least, upon their own argumentan equal duty.to-perform; for the underwriters were not liable for the'whole amount of the bottomry bond, but for a part only;' apd the owners were bound to discharge the residue. How, then, can they call upon the underwriters to pay them a total loss-on account of a sale; which upon their own argument was as much attributable to their own neglect as to that of the Underwriters. But we wish to be understood as putting this point upon its true ground in point of law; and that is’, that in the case of a partial loss, where money is taken up on bottomry bond, to’defray the expenditures to repair it, the underwriters have nothing to do with the bottomry *406 bond, but are simply bound to pay the- pariial loss, including their share of the extra expenses of obtaining the money.in that mode, as a part of the loss. If it were otherwise, any partial loss, however small, might, if money were taken:up on bottomry'to meet it, be converted, at the will of the owner, into a total loss, if the underwriters should 'neglect to- pay to the owner the amount of such partial loss; The case of Thornely v. Hebson, 2 Barn. & Ald. 513, inculcates a very different doctrine.' It was there held, that even in the case of a libel for salvage, it is the duty of the owner, if he can, to raise the money to pay the salvage; and if he makes no such attempt, but suffers the ship to be sold under the admiralty process, he cannot thereby convert, a loss, which is partial, 'into а total loss. And it Was there further said, by Mr. Justice Bayley, (what is entirely applicable to the present case;] that the sale, in order to constitute a total loss in such a case, must be from, necessity, and wholly .without the fault of the owner.
The instruction asked in the present instance seems to have proceeded, wholly upon the ground of the doctrine asserted in' the case of Da Costa v. Newnham, 2 Term Rep. 407. 'But assuming that casé to have been decided with entire correctness upon its own particular circumstances; it seems-difficult, consistently with the principles of law, to apply the doctrine to cases which are-not exactly in the same predicamentj and.it is not the'first time that an attempt has-been made to;,press -that case into the service of other cases which aré essentially different. The whole argument turns upon this, that the brig never came into the hánds 'of the owner free from' the lien of the bottomry bond; and therefore, the totаl loss by the sale -is properly attributable to the neglect of the underwriters. But the -same argument would equally have appliedT'f there had< been, for the first time, admiralty proceedings in the home port against .the brig, (without any bottomry bond having been given,) for the repairs thus made in a foreign port, as wélli as for the salvage. 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' cáse, changed by the substitution of an express 'lien by bottomry; for'an implied lién hy the maritime law? In none, that we can pérceive-
But what were the circumstances of the case of Da Costa v. Newnham? In that case, the insurance was for a voyage from Leg *407 horn to London. The ship met with an accident in the course of the voyage, and put into Nice for repairs., ■ Upon reсeiving, notice thereof; the assured wished to abandon, and, indeed, was entitled to' abandon,; but the underwriters insisted upon the ship’s being repaired, telling him to pay the tradesmen’s bills. He consented,' at last, that the repairs'should be done, but refused to adyance any'money; in consequence of which it became necessary to take up a large sum of money-on a.bottomry bond, to defray the expenses. The ship resumed and performed her voyage; and after her arrival; the underwriters were applied to. take up the bottomry bond,.but they refused. Admiralty prpceedings were, as it should seem, accordingly instituted, and the ship was -sold for six hundred guineas; the bottomry bond being for six hundred pounds, which, with the interest, amounted to a larger.sum, viz. six hundred and seventy-eight pounds.
The question under these circumstances was, whether the plaintiff was entitled to. recover. Mr. Justice Buffer, who tried the cause, was of opinion, under the circumstances, that for all the subsequent injury which-had' accrued to the owner, in consequence of the refusal of the, underwriters, to discharge the bottomry bond, and by which the owner, was damnified to the .fuff amount of the instirancfe, the underwriters were liable;,because it was their own fault in not taking up the bond-for the expenses of those repairs, which had been incurred by their own express directions; and the only remaining question was, how the average was to be calculated. The jury found a verdict for the- owqer' for sixty-two pounds. nineteen shillings, which, together with seventeen pounds ten shillings paid into court by the underwriters, they calculated as the average loss, per cent, which;the owner was entitled to. .A motion was afterwards made for a new trial, and ..refused y the court; substantially upon the grdunds maintained by the learnéd judge at the trial.
From this .statement of the facts, and the reasoning of the court., applicable thereto; in the cáse of Da Costa v. Newnham, it is apparent,, that, in that cage, the actual co'st of the repairs,, (including,of ' necessity the bottomry premium,) exceeded the actual value of' the ship; that the underwriters had fully authorized all these repairs, and had. expressly promised to pay all the costs of the repairs and the .necessary incidents.. The owner of the ship, at the termination of thé voyage, never came into the possession of the ship free from the lien of the bottomry bond; for the whole amount of which, as it included nothing but the costs and incidents of the repairs, the under *408 writers were liable, and which, by necessary implication, they had promised to pay, The sum claimed by the owner of the underwriters was in fact less than the amount of the cost of .the repairs, that cost being six hundred' and seventy-eight.-pounds; whereas the loss' claimed was a total loss of the ship, which sold for six hundred guineas only; and it seems that the insurance was on an open policy.
The question, in effect, therefore, was whether the owner was not entitled tó recover the full amount of the insurance, which was the amount of his actual loss, directly arising from the' breach of the promise of indemnity made to him by the underwriters. • Upon-such a point, there should not seem to he much reason.for any real juridical doubt.
Now, there are essential distinctions between that case and the present. In the first, place, the. repairs in this ease were not.made under any .positive engagement of the underwriters beyond what the policy, by its own terms,, necessarily included." The language of the underwriters in their. answers, refusing' the abandonment, in. our judgment imports no more than this. It merély-says, “we expect you to do'wbat is necessary in the case for the safety and relief of the vessel.” It was rather an admonition than a contract; a warning that the underwriters would hold the owners to the performance of all the duties imposed upon them by law; and not any promise as to their own obligations. In the next place, ih the present case, the loss is to bе taken upon the very form of the instruction, prayed to be a partial-loss only; and as to the repairs, the underwriters were clearly, in such a case, entitled to the deduction of one-third new for .old. In the case of Da Costa v. Newnham, the loss was treated by the court as a technical total loss; m account of the-amount required for the' necessary repairs. In the next place, in -that case, the insured asked only to recover the amount of the costs of the repairs, which in fact exceeded the value of.the ship: in the present case, the cost of the repairs, and the salvage, for which tfie underwriters were liable, fell short of'the half value; and yet the plaintiffs insist to recover- for a total loss. In the next place, in that case, the underwriters, by .their refusal to make any advances,- compelled, and indeed authorized the owner to resort to a bottomry bond, to supply the means of repairing the loss; and оf course, as-has been already intimated, the underwriters, by necessary' implication, undertook'-to indemnify thé owner against the lien and burden of the whole of *409 that bond, in consideration of his undertaking to cause the repairs to be made.'
•The^refusal to make good that promise, was the direct and immediate cause of the loss and sale of the ship. In the present case, the bottomry bond-included charges and amounts, for which the underwriters were not liable. How, then, can it be inferred from the facts stated in the instructions, that the underwriters, by implication, and without consideration, undertook to indemnify the plaintiffs against the whole bottomry bond; for the payment of a part of which, only, they were by law responsible ?
So that, admitting the authority of. Da Costa v. Newnham to the fullest extent which its owh circumstances warrant,' it stands upon grounds entirely distinguishable from those which ought to govern the present case. If the underwriters, in the present casé, had authorized the whole expеnditures on their sole account, and had promised to save the plaintiffs harmless from the whole amount of the bottomry bond, and the plaintiffs had made the expenditures, and procured the-advances for this purpose,'upon the faith of such authority and promise; a very different case would have been presented for. our consideration.- - At present, it is only .necessary to say, that the instruction before us states no such case, and calls for nó such question; and, therefore, Da Costa v. Newnham cannot. be admitted to govern the present .case.
Upon the whole, our opinion is, that there is no error in the.instructions given or refused by the circuit court; and the judgment is therefore affirmed, with costs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel.- On consideration whereof, it is now here or dered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, With costs and damages at the. rate of six per centum per annum.