By Husband or Wife. The act of a hus band or wife who leaves his or her consort willfully, and with an intention of causing perpetual separation. See DRSF.RTION.
In Insurance. The transfer by an assured to his underwriters of his interest in the Insured subject, or the proceeds of it, or claims arising from it, so far as the subject is insured by the policy, in order to recover as for a total loss.
"An abandonment is an act on the part of the assured, by which he relinquishes and transfers to the underwriters his insurable. Interest, or the proceeds of it, or the claims arising from it, so far as it is insured by the policy." 2 Phil. Ins. § 1490.
The term is used only in reference to risks in navigation; but the principle is applica ble in fire insurance, where there are rem nants, and sometimes also under stipulations in life policies in favor of creditors ; 2 Phil. Ins. §§ 1490, 1514, 1515; 3 Kent 265; Cincin nati Ins. Co. v. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339; 6 East 72.
The doctrines which have obtained in ma rine insurance of constructive total loss and abandonment, salvage and general average, are not applicable in fire insurance; May, Ins. § 421 a ; Hicks v. McGehee, 39 Ark. 264.
The object of abandonment being to recov er the whole value of the subject of the in surance, It can occur only where the subject itself, or remains of it, or claims on account of it, survive the peril which is the occasion of the loss; 2 Phil. Ins. §§ 1507, 1516; 2 Pars. Mar. Ins. 120; 36 Eng. L. & Eq. 198; 3 Kent 321; 3 Bing. N. C. 266. In such case the as sured must elect, immediately on receiving intelligence of a loss, whether to abandon, and not delay for the purpose of speculating on the state of the markets ; 2 Phil. Ins. § 1667. He may have a reasonable time to in spect the cargo, but for no other purpose; 3 Kent 320. He must give notice promptly to the insurer of his intention; five days held too late; 5 M. & S. 47; see L. R. 5 C. P. 341. Notice of the abandonment of a vessel need not be given to insurers or reinsurers where there is a constructive total loss; 15 Q. B.
D. 11; and delay in giving notice, if it does not prejudice the insurer, will not affect the rights of the insured; Young v. Ins.' Co., 24
Fed. 279. In cases of actual total loss, no tice of abandonment is unnecessary ; Tyser, Mar. Ins. § 33.
In America, it appears that the right of abandonment is to be judged by the facts of each particular case as they existed at the time of abandonment; Peele v. Ins. Co., 3 Mas. 27, Fed. Cas. No. 10,905 ; 2 Phil. Ins. § 1536; Bradlie v. Ins. Co., 12 Pet. (U. S.) 378, 9 L. Ed. 1123. In England, the aban donment may be effected by subsequent occur rences, and the facts at the time of action brought determine the right to recover ; 4 M. & S. 394; 2 Burr. 1198. But this rule has been doubted in England; 2 Dow 474; 3 Kent 324.
By the doctrine of constructive total loss, a loss of over one-half of the property in sured, or damage to the extent of over one half its value, by a peril insured against, may be turned into a total loss by abandon ment ; 2 Beach, Ins. § 948; Dwpuy v. Ins. Co., 3 Johns. Cas. (N. Y.) 182 ; Allen, v. Ins. Co., 1 Gray (Mass.) 154. This does not ap pear to be the English rule; 9 C. B. 94; 1 H. of L. 513. See Forbes v. Ins. Co., 1 Gray (Mass.) 371.
The right is waived by commencing re pairs; 2 Pars. Mar. Ins. 140; Humphreys v. Ins. Co., 3 Mas. 429; Fed. Casa No. 6,871; Dickey v. Ins. Co., 3 Wend. (N. Y.) 658, 20 Am. Dec. 763; Depau v. Ins. Cob, 5 Cow. (N.
Y.) 63, 15 Am. Dec. 431; 4 App. Cas. 755; but not by temporary repairs ; 2 Phil. Ins. § 1540; but is not lost by reason of the en hancement of the loss through the mere neg ligence or mistakes of the master or crew. It is too late to abandon after the arrival in specie at the port of destination; 2 Pars. Mar. Ins. 128; 4 H. of L. 24 ; Pezant v. Ins. Co., 15 Wend. (N. Y.) 453. See Peters v. Ins. Co., 3 S. & R. (Pa.) 25. An inexpedient or unnecessary sale of the subject by the master does not strengthen the right ; 2 Phil. Ins. §§ 1547, 1555, 1570. But the fact that the master only takes steps for the safe ty or recovery of the thing insured, will not deprive the owners of the right to abandon; Tyser, Mar. Ins. § 28. See SALVAGE; TOTAL Loss.