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Isaac Bradlie and John Gibbons, Plaintiffs in Error v. the Maryland Insurance Company 378 (1838)

handle is hein.slavery/ussccases0093 and id is 1 raw text is: 378 SUPREME COURT. ISAAC BRADLIE AND JOHN GIBOS, PLAINTIFFS IN ERROR V. 'THE MARYLA*D INSURANCE COMPANY. Insurance. By the well settled principles of law, in the Unitsd States, the state of the facts, and not th6 state of the information at the time of the abandonment, constitutes the criterion by which Is to be ascertained whether a total loss has oc- curred or not, for which an abandonment can be made. If the abandonment when made is good, the rights of the parties are definitively Ajxed; and do not becdme changed by any subsqquent eventg. If, on the other hand, the abandonment when made is not good, subsequent circumstances will not affect it, so as retroactively to impart to it a validity which it had not at its origin. in cases Where the abandonment is founded upon a supposed technical total loss, by a damage or injury, exceeding one-half of the value of the vessel ; although the fAct of such damage or injury must exist at the, time; yet it is necessarily open to proof, to be derived from subsequent events. Thus, if the repairs, when subse- quently made, clearly exceed the kalf value, it is plain that this affords one of'the best proofs of the actual damage or injury. On. the other hand, if the sub equent repairs are far below the half value, this, so far as it goes),affords an inference the ether way. In many cases of stranding, the state of the vbssel maybe such, from the imminency of the peril, and the apparent cost of expenditure requisite to de- liver her from it, as to justify an abandonment;' although, by some fortunate occur- rence, she may be delivered from her peril without an actual expenditure of one- half of her value, after she is in safety. Where, in the circumstances in which the vessel then nway have been, in the highest degree of probability the qxpendi- tures to repair her would dxceed half her'value, and if her distress and peril be such as would induce a considerate owner, uRinsured, and upon the spot, to with- hold every'attempt to get the vessel off, becafise of such apparently great expen- ditures; the abandonment would doubtless be good. In respect to the mode of ascertaining the' value of the ship, and, of course, whether she is injured to the amount of balf her value, it has, on .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 disaster; and that if after the damage is, or might be re- paired, the ship is not, or would not he worth at the place of repairs, double the cost of repairs, it is to be treated as a technical total loss. The valpation in the policy, or the value at the'home port, or in the general market of other ports, constitutes no ingredient in ascerfainiig whether the injury by the disaster is more than one-half of the value of the vessel, or not. For the like'rea. son, the ordinary deduction in case of a partial loss, of -one-third new for old, from the repairs, is equaily inapplicable to cases of a technical total loss, by an in- jury exceeding one-half of the value, of the vessel. The mere retardation of the voyage, by any of the perils insured againstnot amount- ing to, or producing a total incapacity of the ship eventually to perform the voy- age; 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 damage from the perils insured against, that damage not exceeding one moiety of the value of the ship, falls directly within thif doctrine. Under

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