In such case, the policy is only avoided when it is proved that the insurer knew of the loss, or the insured of the arrival of the vessel before the signing of the said policy.

ART. 368. If the fact be proved against the insured, he pays a double premium to the insurer.

If against the insurer, he pays to the insured double the amount of the stipulated premium.

Whichever of them is proved to be in fault, is liable to punishment by the correctional police.

SECTION III.

Of Abandonment. (138)

ART. 369. Abandonment may be made of property insured, in cases of

Capture,

Shipwreck,

Stranding, with partial shipwreck,

Insufficiency of the ship in consequence of

the perils of the sea,

Arrest by a foreign prince,

Loss or deterioration of the property insured amounting to at least three fourths of the value thereof.

by jury, as little as possible should be left to the presumption of man. Therefore, the French Code has wisely substituted in its stead the presumption of the law. In England and America, the law has no need of artificial presumptions; it knows none but those which naturally result from the genuine facts and circumstances of the case, operating upon the minds of an honest, intelligent, free and impartial JURY.

(138) In order that some parts of this section may be more easily and clearly understood, we think it necessary to give here a short, connected and practical view of the proceedings which take place in France between the insured and insurer, in cases of total loss. The insured is bound (art. 374) within three days after receiving information of the loss, to give notice of it to the insurer. It is done by a formal notification made by a notary public or huissier; for the proof of notices is not there, as with us, a matter in pais, and parol evidence of the service thereof is not admitted. At the same time the insured may, if he pleases (art. 378) make his abandonment, if not, he declares in the instrument which is drawn up of the notice, that he reserves to himself the right of making it within the term allowed by law. This is a kind of protestation to obviate the presumption of an implied waiver on his part of the right to abandon. To make his actual abandonment, the law allows him (art. 375) the term of six months, if the loss happen in Europe, or the Mediterranean, and one or two years according to the distance of places, if elsewhere. The reason of allowing so much time will be explained in a subsequent note. If afterwards, at any time within the legal limitation, the insured thinks proper to abandon, he does it, in the same form that we have above mentioned with respect to the first notice, by an instrument drawn up, and notified to the insurer, by a public officer, or, if he thinks proper, he may do it in judicial form, as will be explained in a note to art. 431. He must communicate at the same time (art. 383) certified copies of the proofs of property (invoice, bills of lading and the like) and of the proof of loss, which is generally the master's protest, accompanied with the certificates of survey, condemnation or other similar documents. He must also declare (art. 379) what other insurance he has caused to be made, and what moneys he has borrowed at maritime risk on the property insured. The instrument concludes with a notice, that payment of the loss will be required after the expiration of the term stipulated in the policy. If after the ex

Abandonment may also be made in case of detention by government after the voyage begun. (139)

ART. 370. Abandonment cannot be made before the commencement of the voyage.

ART. 371. Every other loss or damage is reputed average, and is adjusted between the insurers and the insured in proportion to their respective interests.

ART. 372. The abandonment of insured property cannot be partial or conditional.

It extends only to the subject matter of the insurance and risk. ART. 373. Abandonment must be made to the insurers within the term of six months from the day on which is received the news or information of the loss having happened in the ports or on the coasts of Europe or those of Asia or Africa on the Mediterranean sea; and in case of capture, within the same period after intelligence received of the vessel being carried into a port or place situate on some one of the coasts above mentioned.

Within one year after the news or information received, if the loss happen in or the prize be carried to the West Indies, the islands of Madeira, Azores or Canaries, or to some other island, or coast to the west of Africa or to the east of America.

Within two years after receiving the news of the loss or capture, if it happen or take place in any other part of the world. (140)

piration of that term, the insurer does not pay, the insured cites him to appear before the tribunal of commerce, where the cause is heard summarily on the documents exhibited, and although the insurer (art. 384) may contradict and rebut them by other evidence, even by parol proof, as, for instance, if he means to disprove the fact stated in the protest, yet unless he exhibits very clear and conclusive documents, such as a receipt or the like, or shows some very strong preSumptions of fraud on the part of the insured, it does not prevent judgment from being given provisionally against him, but in that case, the insured who receives the money, is bound to give security for refunding it with interest and costs, in case of a reversal of the judgment on a review or appeal. The prima facie evidence, if perfectly regular, if no cause of doubt appears on the face of it, and it is uncontradicted by proof equally clear, is held to create a sufficient presumption of right, to intitle the party in whose favour it operates, to the possession of the money in controversy, until final judgment, and it also has the effect of preventing dilatory litigation, and the interposition of appeals, for the sake of mere delay. This mode of proceeding which, however, only takes place in commercial tribunals, and in mercantile cases, is not peculiar to France; it is practised in Spain, Italy and other countries, and is as ancient as the Consolato del Mare, Consol, c. 21. 24. Roccus goes so far as to say, that it is founded on the principles of the general maritime law. Ex generali lege maritimâ sancitur, quod contrà assecuratores agatur via executivá, et nullá exceptione, TAM JUSTA QUAM INJUSTA, impediatur executio contractûs assecurationis. Rocc. de assec. not. 100.

(139) That is to say, after the ship has set sail; for, until then, even the insured may break up the voyage, paying one half per cent. to the insurers, by way of indemnity. See above, art 349. See also Ord. de la Mar. h. t. art. 37. Le Guidon, e. 9. art. 12; and 2 Emer. 48. The same rule obtains in Spain and Italy. Ordin. of Bilb. c. 22. art. 23. Casa Regis, disc. 67.

(140) This requires a particular explanation, as the laws of France and England proceed in this respect upon directly opposite principles. By the English law the insured is compelled immediately, or at least within a very short time after receiving the news of the loss, to make his election whether or not he will abandon to the underwriters. Abandonment is thus in a great degree, if not entirely assi

After the expiration of these several periods, the insured can no longer abandon.

ART. 374. In cases in which abandonment may be made, and in all cases of loss or accident within the risks of the policy, the

milated to the notice which the law requires to be given to the drawer or indorser, of the protest of a bill of exchange, (Mitchell v. Edie, 1 Term Rep. 613,) and nearly on the same principle. For, the reason which is adduced, is, that the insured must not lay by to avail himself of the chance of events, and of the profits which may possibly result in case the property is recovered. (Marsh. 589.) It is said also that if the property be immediately abandoned, the insurer may, by himself or his agents, take the necessary measures for its recovery, whereas the insured or those whom he employs, may be negligent, dishonest or unskilful, and the underwriter may ultimately suffer by their ignorance or misconduct. See the case of Mitchell v. Edie, above cited, and Allwood v. Henckell, in Park, 239. But in France, and indeed in every other country of the continent of Europe, the subject is considered in an entirely different point of view. Abandonment, it is there said, is the last resource of the insured, he ought not to be forced to it, until after he has tried every means in his power to recover his property. While the fate of his ship or merchandise is yet uncertain, he should not be compelled to act in the dark, and to take so important a determination before he is well informed of the real state of things. 2 Valin, 118. If his property should be recovered, the insurer has received his premium, and cannot demand any thing more. If profits have even resulted from the apparent loss, the insured is justly intitled to them, who has earned them by his industry; the insurer on the contrary, has no right to expect profit from the misfortunes of the other party, for it is a maxim of every system of jurisprudence, quod nemo debet locupletari ex aliená jacturâ; much less ought one to expect to inrich himself by the very misfortune against which he undertook to provide: and insurance is merely a contract of indemnity and not of gain, non versatur in lucro. As to the danger that the insured will not make due exertions to recover the property, his interest is thought to be a sufficient se. curity in that respect. For if there is but little or no hope, it is presumed that he will naturally abandon as soon as possible, and then the insurer may act as he pleases; if on the contrary, there is a prospect not only of recovery, but of gain, he will exert himself to the utmost to attain the object. Besides, there is nothing to prevent the insurer, who has an eventual interest in the property, from making exertions on his side. His right so to do cannot be denied. And after all, if the insured, by his own misconduct or neglect, should prevent the property from being finally recovered, the underwriter may on that very ground refuse to accept the abandonment, and in an action for a partial loss, the court will consider as saved, what might have been so, but for the default of the insured.

On these principles, the French law allows to the insured a time reasonably sufficient to ascertain, before he is compelled to abandon, whether his property is lost or not beyond all hope of recovery, and obliges him in the mean time to labour and travel for the benefit of whom it may ultimately concern. If it fixes periods, within which he is at last obliged to make his election, they are merely to be considered in the light of ordinary limitations, ut sit finis litium; for the same period of time which limits the right to abandon, limits likewise the right to institute the action of abandonment which is founded upon it. See note to art. 431. Abandonment is considered as a harsh remedy (2 Emer. 176.) by which the insurer is compelled, against his will, to become the owner of the property of another, and therefore its limitation is much shorter than that of the action for the recovery of a mere indemnity, which is only barred by the lapse of five years, from the date of the policy. See post. art. 432. But the insured, after suffering the term allowed him to make his abandonment to elapse, is not entirely without remedy, for he may still recover in an action of average, which is analogous to our suit for a partial loss. "This action," says Emerigon, "is the ordinary mode "of proceeding;-abandonment is an extraordinary remedy allowed ex favore "only in certain cases." 2 Emer. 176. 178.

By the ordinance of Louis XIV. the period within which the insured was allowed to abandon, was six weeks, if the loss happened, or was first known in the same province of France where the owner resided, and if elsewhere, the term

insured is bound to give notice in legal form to the insurer, of the information which he has received.

Such notice must be given within three days after the receipt of the information.

ART. 375. If after the expiration of one year in ordinary, and two years in long (141) voyages, to be reckoned from the day of the ship's departure, or that referred to in the last advice received, the insured declare that he has received no news or information of his vessel, he may abandon to the insurer, and demand payment of the loss without being bound to prove the same.

After the expiration of the respective terms of one or two years as above, the insured is entitled to the benefit of the terms limited by art. 373, within which he may pursue his remedy. (142)

ART. 376. If the insurance be made for a limited time, and the terms allowed as above for ordinary and long voyages respectively have expired, the loss of the ship is presumed to have happened within the period of the risk.

ART. 377. Those are reputed long voyages which are made to the East and West Indies, the Pacific Ocean, Canada, Newfoundland, Greenland and other islands and coasts of both Americas, Madeira, the Azores, Canaries, and to all the coasts and countries lying on the Atlantic ocean, beyond the streights of Gibraltar and the Sound.

ART. 378. The insured may at the same time that he gives the notice mentioned in art. 374, either make his abandonment, and demand that the loss be paid at the time fixed by the policy, or he may reserve to himself the right of abandoning at any time within the period fixed by law.

ART. 379. The insured is bound when he makes his abandonment to disclose all the insurances which he has made or caused to be made, and even those which he has ordered to be made, as well as the money which he has taken up at maritime risk, on the vessel or goods, and in default thereof, the term of payment which otherwise should have begun to run from the day of the abandonment, shall only begin from that on which he shall communicate

was gradually enlarged to two years, according to the distance of places. This arrangement was found inconvenient, and the periods too short in many cases. Emerigon preferred the regulation of Amsterdam, which allowed eighteen months for losses happening in Europe, and three years for those happening in other places. 2 Emer. 268. The compilers of this Code thought it best, it seems, to steer a middle course.

In the United States, the inconvenience of allowing too short a time to the insured, to make his abandonment, has already been felt, and it is remarkable, that the underwriters, for whose benefit the rule seems to have been introduced, have been the first to find fault with it. See post. note 145.

(141) See post. art. 377, and above, note 81.

(142) The expiration of the respective terms of one and two years, without any news having been received of the vessel, places the insured in the same situation, as if he had at that moment been informed of the actual loss of his property: Therefore, the limitations only begin to run from that time.

the said facts, while on the other hand, the term limited for making the abandonment shall not be enlarged.

ART. 380. If the insured gives in a fraudulent statement he shall be deprived of the benefit of the insurance, and shall be bound to pay the sums borrowed at maritime risk notwithstanding the loss or capture of the vessel.

ART. 381. In case of shipwreck, or stranding with partial shipwreck, the insured must use his best endeavours to save the property, without prejudice however to his abandonment to be made in proper time and place.

The expenses of salvage shall be allowed to him on his affirmation (143) to the amount of the value of the property saved.

ART. 382. If the term of payment be not fixed by the policy, the insurer is bound to pay the loss within three months after the abandonment has been notified to him.

ART. 383. The proofs of property and loss are to be communicated to the insurer, before bringing a suit against him for the payment of the sum insured.

ART. 384. The insurer may rebut those proofs by contrary evidence.

He may nevertheless be adjudged, though he offers such evidence, to pay provisionally the amount of the loss, the insured giving security for the same.

The security is exonerated after the expiration of four complete years, if within that time no suit has been brought against him.

ART. 385. After the abandonment made and accepted, or adjudged to be valid, the property insured belongs to the insurer from the day (144) on which it was abandoned.

The insurer cannot under pretence of the vessel having returned refuse the payment of the sum insured.

ART. 386. The freight of the goods saved from shipwreck, even though it be paid in advance, passes by the abandonment of the vessel and goes also to the insurer, without prejudice to the rights of lenders at maritime risk, of the mariners for their wages, and of all others for the expenses incurred during the voyage,

ART. 387. In case of detention of princes, the insured is bound to notify the same to the insurer within three days after receiving information thereof.

Property so detained cannot be abandoned until six months after

(143) It is often difficult to prove the several items of an account of this description. Among merchants, such accounts are generally admitted, if they appear reasonable. The French courts therefore admit them on the oath of the party; but it does not preclude his adversary from contesting their reasonableness, calling for letters, papers, documents, &c. when such exist, and in short from contradicting the same by any evidence in their power.

(144) That it is to say, the property insured belongs from that time absolutely to the insurer, otherwise, the French law considers the abandoument to work by retrospection to the beginning of the voyage. 2 Emerig. 196. 222. On this principle the insurer of the ship is charged with extra provisions, wages, &c. and the underwriter on the cargo with the freight and other expenses, which the property has incurred, during the continuance of the risk.