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Marshall v. Delaware Insurance Company, 8 U.S. 4 Cranch 202 202 (1808)

Marshall v. Delaware Insurance Company

8 U.S. (4 Cranch) 202


The right of the insured to abandon and recover for a total loss depends upon the state of the facts at the time of the offer to abandon, and not upon the state of the information received.

A voyage may be really broken up without the destruction of the vessel and cargo. A detention by a foreign prince, either by embargo or capture, may be of such long duration as to defeat the voyage.

Capture and libel as prize of war is a peril insured against, and of its continuance no certain estimate can be made. In case of capture, it is for a time a total loss, and no person can say the loss will not finally be total. Such a case, therefore, upon the true principles of the contract, has been considered as justifying an abandonment and a recovery of a total loss. But where a final decree of restitution from which no appeal lies has been awarded, the peril is over.

A technical total loss originates in the damages of a real total loss. The technical loss is terminated by the decree of restitution, unless something subsequent to that decree could be shown to prove the continuance of the danger.

Error to the circuit court for the District of Pennsylvania in an action for a total loss, on a policy of insurance on the Brig Rolla, her cargo and freight.

The material facts stated were that the Brig Rolla, a neutral vessel, while prosecuting the voyage insured, was captured by a belligerent cruiser and libeled as prize of war. On 9 July, 1806, a final sentence in favor of the vessel and cargo was passed, and on the 19th of the same month, about 1 o'clock P.M., restitution was made. On 17 July, assured in

Page 8 U. S. 203

New York received information of the capture and immediately gave orders to his agent in Philadelphia to abandon to the underwriters. In pursuance of these orders, the offer to abandon was made on the morning of the 19th.

The judgment of the court below was for the defendants.

Page 8 U. S. 205

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