This decision was made in June 1860.
Hoar, J.It has been frequently decided, and is to be considered as the settled doctrine of this court, that a general average loss is not to be added to a partial loss, to make up a constructive total loss. Orrok v. Commercial Ins. Co. 21 Pick. *320456. Hall v. Ocean Ins. Co. 21 Pick. 472. Sewall v. United States Ins. Co. 11 Pick. 90. Reynolds v. Ocean Ins. Co. 22 Pick. 191. Greely v. Tremont Ins. Co. 9 Cush. 415.
The only question to be determined in this case is, therefore, whether the expenses of raising the vessel and taking her to Boston are to be considered as general average charges; and we think they are not. It was held in Sewall v. United States Ins Co. that, when a vessel with her cargo was submerged, and deserted by her master and crew, and the question arose of the right of the owners to abandon for a constructive total loss, the true test was whether, “ taking the vessel as she lies, she is worth getting up and bringing in to be repaired, and can this be done for half her value,” and that “ a sum paid for removing the vessel to a safe place, where she could be repaired, was not technically a general average.” The same doctrine was after-wards fully considered and reaffirmed in the case of Greely v. Tremont Ins. Co.; and has again been recognized and applied in the recent case of Lincoln v. Hope Ins. Co. 8 Gray, 22.
The policy gives the underwriters the right to labor for the preservation of the property at risk, without prejudice to their refusal to accept the abandonment. It gives the same right to the owners, without affecting the validity of an abandonment previously made. But in either case the fact of a total loss is to be decided by the condition of the property at the time to which the abandonment relates. If, at that time, the vessel cannot be recovered and repaired at an expense not exceeding half her value, the right of abandonment exists, and the expenses incurred by the underwriters afterwards are for the purposes of salvage, and cannot affect the change of property which the abandonment creates.
Judgment for the plaintiff for a constructive total loss.