Suydam and Wyckoff against the Marine Insurance Company, 1 Johns. 181

Livingston, J. delivered the opinion of the court. It is said, here was no abandonment, or, that the reason assigned for it, was not sufficient, and that, therefore,, the abandonment made, was a nullity.

A denial of entry: at. the port of destination, without any seizure or arrest by government, appears to me, after considerable reflection and many doubts, not a loss within this, policy, which contains an express agreement, “ that for a seizure or detention “ _on account of prohibited trade, there shall be no remedy.” How then can underwriters, who do not assume the greater risk of seizure, which in common cases constitutes a techni cal total loss, be answerable for a smaller one, proceeding too from the same cause, that is an illicit trade ?

But as the Mason’s Daughter had a right to go to another port, and was driven into Port Republican on- her way thither, it is supposed that the abandonment must be considered as founded on the latter accident, especially as it was not made until after her arrival there, and intelligence of it received here. But if this were really the cause of abandoning,, it is not the otie assigned by the assured. On the contrary, it is placed en* tirely on the refusal id permit an entry at the first port. It will hardly be said that to constitute a valid abandonment, it is not necessary to state the true cause.

Though no form be prescribed for this act, yet care sho’uld be taken, that it be unconditional, explicit, and on sufficient ground; and, particularly, that the accident occasioning it, be described with certainty, so as to enable an underwriter to determine whether he be bound to accept. If he be not, he will of course refuse, and neglect to take measures for its preservation, which is one object of making an abandonment.

The assured here, having relied on matter which was not ajustifiable cause, must be bound by it, and shall not be permitted to avail themselves of a subsequent accident, without making a new abandonment. Emerigon appears to be of this opinion ; he considers an abandonment absolutely null, if at the time there was neither “ a capture, nor shipwreck, nor stranding, -c nor arrest of princes, nor innavigability, nor a total loss and adds that “ an abandonment founded in error, produces no effect.’’'’ Our opinion then is, that here was no valid abandonment, and though it be settled with us, that such

an act is never too late, while the loss continues total, yet we have not yet said that a suit can be maintained without any abandonment at all, or on one assigning a reason which justified a refusal to accept. Another objection to a recovery, which applies as well to a partial as a total loss, is, that the lorig stay at St.

Jago de Cuba, or at the mouth of the river, amounted to a deviation ; but the jury having determined otherwise, we are satisfied to consider this question at rest. Í will only add that the agreement of counsel, to adjust the accounts, must have referred only to the case of the defendants being liable for a total loss, and that, therefore, the plaintiEs have iid right, under that agreement, so to model the verdict as to give them what would be a compensation for a partial loss, admitting a right to that extent to exist.

To ascertain this point, and what in such case will be a proper rule of damage, there must be a new trial with costs to abide the event of the suit. I observe further that it is not intended to say, what would be the effect of a denial to trade, if the voyage insured had enfjec| at Jago de Cuba, that is, whether the risk would have ended there, or have continued to another port. The assured having a right in this case to go elsewhere, that is not before us. New trial granted. 2 Vol. p. 197.