*134The opinion of the Court was drawn up by
Emery J.On reviewing the report in this case, we consider that the Chief Justice would not have been warranted to direct a nonsuit. The clause in the policy providing for a reference, if disputes arise, has long been practically ranked among the unimpor-' tant provisions of the policy. On whom is the obligation to make the first offer ? We see nothing in the provision that indicates it. It is treated in the English authorities as of little consequence, because it ought not to be holden sufficient to oust the courts of law or equity of jurisdiction. Kill v. Hollister, 1 Wilson, 129 ; Street v. Rigby, 6 Ves., Jr. 815. Yet there it seems to be conceded that a clause might be introduced, by which an offer to refer might become essential, provided the stipulations were that no suit at law or in equity should be instituted till an offer of reference had been made and refused. And in such case a nonsuit might become highly proper, if the precedent condition were not complied with ; unless as in 2 C. & P. 550, Goldstone et al. v. Osborne et al., the insurer denied the general right of the assured to recover anything. Here there is no such preliminary requisition. In its best form, it may be somewhat difficult to execute fully, because of the case with which one party might be taking exceptions to the referees to be named by the other, either on the alleged or fancied ground of incompetence, prejudice, interest, want of firmness, patience, intelligence, integrity, or many other causes, which might incline one of the parties rather to distrust whomsoever might be designated by the other, and in Phillips on Insurance, it is described as altogether unnoticed, as of binding efficacy in the United States. 1 Phil, on Ins. 8, and cases there cited. A graver question is presented in a further examination of the proceedings at the trial on the instruction to the jury “ that they might find as for a total loss, although in the hands of the purchaser, the vessel was afloat, and susceptible of being repaired and was repaired for less than half her value, even without abandonment.”
On misfortune arising in the course of a voyage, if the master, acting under extreme necessity, and in the exercise of prudent discretion, for the benefit of all concerned, sell the property, and thereby put an end to the adventure, the assured may treat the loss as total and abandon. As if from the nature of the place, at which *135the damage happens, it is impossible to procure repairs there, or to proceed to another port for that purpose, or where goods are so damaged that they cannot bo sent on to market, no means of transhipment exist, or from their nature, they are unfit to bo kept for the purpose of being forwarded to their destination. 5 M. & S. 447. Roux v. Salvador, 32 Eng. Com. Law R. 110.
We do not say that abandonment is absolutely necessary in the case of the legal transfer of the property by a necessary and justifiable sale. There would seem to be a species of incongruity in requiring it. Because if the sale be good and justifiable, there is nothing to be abandoned. The right of property is perfectly changed. 2 Pick. 261, 265; Patapsco Ins. Co. v. Southgate & al. 5 Peters, 604, at p 623.
In 2 Starkie’s Rep. in 1819, page 501, Robertson v. Caruthers, Abbott C. J. remarks, that the question is not whether by possibility, if a different conduct had been pursued by the master, the ship might not eventually have been saved, but whether exercising the best discretion be could upon the subject matter, he was not justified in abandoning the ship without entering into a nice and minute calculation. He certainly must not act hastily and at random. He must exercise the same judgment and discretion as if the ship had been uninsured. See Dacosta v. Newnham, 2 T. R. 408; 1 Camp. 541 ; Thompson v. Rowcroft, 4 East, 34; Leatham & al. Exrs. v. Terry, 3 B. & P. 479; McArthy v. Abel, 5 East, 388; Everth v. Smith, 2 Maule & Selw. 278. There were further instructions to the jury, that the master might refer the question of salvage, unless his so doing under the facts, was evidence of fraud or negligence on his part, and that if' there were no means of making the necessary repairs at the port where the vessel was, and if from the troubled state of the country and the smallness of the port of Jacksonville, near where the vessel was, the master could not raise necessary funds, and if the claim of salvors amounted to the greater part in value of the vessel, the master was justified in causing her to be sold.
Notwithstanding our desire to make all just allowances for the difficulty of deciding absolutely right by masters of vessels, in embarrassing cases, occurring in foreign countries, we consider that the authority of the master to put in peril the interests of the owner *136in the ports of the United States, must be narrowly watched. We readily admit, that salvors have a lien on the property saved. But upon what is disclosed by the report, we do not perceive what was the special purpose for entering into a reference as -to the salvage, without consulting his owners. The vessel was removed from the bar; the lien of the salvors remained. The mails went regularly. Communications could have been made to the owners. The tribunals of justice were open for ascertaining the amount of salvage, which should have been allowed upon something like legal principles. The salvors could libel the vessel for compensation. St. Augustine is not more than 100 miles from Jacksonville. To St. Augustine resort might have been had to the District Court,To which properly appertains jurisdiction in cases of this nature. Had the owners been consulted, and authorized the reference, though the amount awarded by the referees or arbitrators would not be conclusive on the underwriters, yet the fair expenditure of a just compensation for salvage might go to shew that the damage sustained exceeded fifty per cent, of the value of the vessel, and in that way constitute a constructive total loss.
But considering the very great danger there would be to the interests of commerce, if facilities should be extended for depriving owners of their vessels under imaginary necessity, indulged by a master, without consulting the owners, for resorting to referees to settle questions of salvage, when our own judicial tribunals could be applied to, and at so short a distance as St. Augustine was from the place of injury, we are all of opinion that, under the circumstances of this case, we cannot sustain the instruction, “ that the master might refer the question of salvage, unless his so doing under the facts was evidence of fraud or negligence on his part.”
The right of the master to sell is implied from the nature of the case, when the injury to the vessel is so great, and the necessity so urgent, as to justify this extraordinary measure. It is a power, as held by the Supreme Court of the United States, in the case cited from 5 Peters, 604, to be exercised with great caution and only in extreme cases, and it is said there, that the difficulty in all these cases consists, principally, in the application of the rule to a given case, and not in determining what the rule is. The professional skill, the due and proper diligence of the master, his opinion of the ne*137cessity, and the benefit that would result from the sale to all concerned, would not justify the sale, unless the circumstances under which the vessel was placed rendered the sale necessary in the opinion of the jury. Still the objections against the sale in this case are decisive. They arise from the hasty assent of the master to the reference, which we cannot approve, and to meet the expenses of the salvage awarded on that submission, by the sale, without any advice or consultation of the owners. The vessel was afloat and repaired. From the view which we have taken of the case, it is not necessary to consider now the question of abandonment. We think it highly proper, that the verdict be set aside and a new trial granted.