Several questions arising in this case were settled in the case of King v. The Middletown Insurance Company. It is necessary to notice those points only which did not arise in that case.
A discharge of the seamen without replacing them by *340others would be evidence of the termination of a voyage ; but a discharge of part of them, and replacing them by others, so that the voyage could be continued, if directed, is a circumstance which does not conduce to prove that the voyage was terminated.
The letter from the plaintiff to the Middletown insurance office explicitly states, that the agreement made with the defendants was not to militate against the abandonment. To give it the effect now contended for would defeat the abandonment. This would be contrary to the agreement on which the defendants rel .
The property taken from the vessel after she went on the rocks, was not a fund in the hands of the plaintiff to pay the expense of getting her off. He had no right to dispose of it for that purpose; nor could it then have been determined whether it would have been sufficient. If the vessel had been lost, the plaintiff, in a suit on the policy, could not have retained as much of the property as the amount of the expense in attempting to get her off; but the property saved must have been accounted for, in the estimate of the loss, without allowing for such expense ; it could not, therefore, have been a fund.
But admitting the insured would have a right to retain in such cases, there would be instances where he might be exposed to loss. If whenever a vessel is stranded, and some of the property saved, he is bound to attempt to get her off, then should he fail in the attempt, and the amount of the expense should exceed the value of the property saved, he must suffer a loss to that amount ; because in an action on the policy he can recover only for the total loss, and not for the expense beyond the value of the property saved. But as an insurance is a contract of indemnity, no construction ought to be given to it, which will in any case necessarily subject the insured to a loss.
With respect to the waiver of the abandonment, it appears, as stated in the motion for a new trial, that after the vessel was got off the rocks, she was set up for sale at auction by the captain ; and the plaintiff claimed, that it was done by the advice and direction of the port-wardens ; that she was bid off by John King, without the knowledge or consent of the plaintiff; that he delivered her to the plaintiff, who has ever since had her, and claimed to be the owner under John *341King ; that it did not appear that any purchase money was ever paid ; and that the plaintiff gave credit therefor in his claim for damages. The defendants claimed, that the sale was a mere sham sale, without authority and void ; and the plaintiff having repossessed himself of the ship, can only claim for a partial loss. The testimony is not detailed, nor is it stated that any facts were agreed to by the parties. On this point the court gave no direction to the jury ; and if it might have been material, the charge was incorrect.
When an abandonment is properly made, the property is changed, and the abandonment cannot be waived without the consent of both parties, express or implied. If, after the abandonment, the insured continue in possession of the vessel, without sale, using it as his own, and the insurers interpose no objection and make no claim, it may be presumed that both consent to give up the abandonment. So by the same reason, if there be a pretended or void sale, merely with a view to enable the insured to convert a partial into a total loss, no purchase money having ever been paid, the insured continuing to possess and use the vessel as before, and the insurers interposing no objection or claim; this may be deemed a waiver of the abandonment. Now, it does not appear but that from the evidence the jury would have been warranted to make the inference that the parties consented to waive the abandonment. Such, at any rate, was the claim of the defendants. The court, then, ought to have stated to them the principle of law applicable to the case, and then have submitted to them the question of fact upon the evidence before them. They should have told them, if they found the sale was valid, there was no waiver of the abandonment ; but if it was a mere pretended sale, without authority, with a view to subject the defendants to a total loss ; if no purchase money had been paid ; and the plaintiff had possessed and used the ship as his own, without any objection or claim from the defendants ; they would be warranted to presume that the parties had waived the abandonment, and the plaintiff would be entitled to recover for a partial loss only. As the court gave no such direction, a new trial ought to be granted.
In this opinion the other Judges severally concurred.New trial to be granted.