laid down above, and, like most general rules, its difficulties lie in its application.

13

In IONIDES v. UNIVERSAL MARINE INS. CO.,13 a vessel loaded with coffee was insured under the ordinary policy, which contained a warranty "free from all consequences of hostilities." It was during the Civil War, and the Confederates had extinguished Hatteras Light as a means of embarrassing the navigation of the Federal ships. The captain, on his way from New Orleans to New York, supposing that he had passed Cape Hatteras, when he had not, changed his course in such a way that his vessel went ashore. The Confederate authorities took him and his crew as prisoners. Federal salvors came down, and saved part of the coffee, and might have saved more but for the interference of Confederate troops. In a day or two the vessel was lost. The court held, under these circumstances, that, as to that part of the coffee which remained aboard, it was lost by a peril of the sea, that being the proximate cause, and not the act of the Confederates in extinguishing the light; but that as to the cargo which was saved, and as to that part which could have been saved but for the interference of the Confederate authorities, the proximate cause was the consequence of hostilities, and that as to that part the underwriters were not liable.

14

In Mercantile S. S. Co. v. Tyser, the insurance was on

13 14 C. B. N. S. (108 E. C. L.) 259, 143 Reprint, 445. During the World War, it has been customary to insure ships, whether through government insurance or otherwise, against war risks which would not be covered by the ordinary provisions of a marine policy. The same question has also arisen in the construction of similar provisions in charter parties, and it has been necessary in many cases to decide whether a given loss falls upon the ordinary insurance policy or the war policy, in other words, whether it was a war risk or a sea risk. See Lobitos Oil Fields v. Admiralty Commissioners, 34 T. L. R. 466; British & Foreign S. S. Co. v. The King, 34

147 Q. B. D. 73. A somewhat analogous case is Williams v. Canton Ins. Co., [1901] A. C. 462.

HUGHES, ADм. (2D ED.)—6

freight during a certain voyage. The charter party contained a clause that the charterers might cancel the charter party if the vessel did not arrive by the 1st of September. The ship started from England on the 7th of August, but her machinery broke down, and she had to put back. The time lost caused her to arrive in New York after the 1st of September, and the charterers canceled the charter party. The court held that the proximate cause of the loss of freight was not the breaking down of the machinery, but the option exercised by the charterers of canceling the charter party, and that, therefore, the underwriters were not liable.

In Dole v. New England Mut. Marine Ins. Co.,13 a vessel was captured by the Confederate cruiser Sumter. As she could not be brought into any port of condemnation, her captors set her on fire and destroyed her. The policy contained a clause warranted free from capture. It was argued, inter alia, that the proximate cause of the loss was the fire, and not the capture. Justice Clifford held, however, that the proximate cause was the capture and the acts of the captors, and that the underwriters were not liable.

HOWARD FIRE INS. CO. v. NORWICH & N. Y. TRANSP. CO.16 arose under a fire insurance policy. The steamer Norwich collided with a schooner, injuring her own hull below the water line. She rapidly began to fill, and 10 or 15 minutes after the collision the water reached the fire of the furnace, and the steam thereby caused blew the fire around, and set fire to the woodwork of the boat. In consequence, she burned until she sank in deep water. The injury from the collision alone would not have made

T. L. R. 546, [1918] 2 K. B. 879. British India Steam Nav. Co. v. Green, 35 T. L. R. 269; Britain Steamship Co. v. The King, Id. 271; Ard Coasters, Ltd., v. The King, Id. 604.

152 Cliff. 394, Fed. Cas. No. 3,966.

16 12 Wall. 194, 20 L. Ed. 378.

her sink. The court held that the fire was the efficient predominating cause nearest in time to the catastrophe, and that the underwriters were liable for that part of the injury which was caused by the fire.

In Orient Mut. Ins. Co. v. Adams, the master of the steamer Alice, lying above the falls of the Ohio near Louisville, gave the signal to cast the boat loose, and started when she did not have steam enough to manage her. There was no clause in the policy exempting the insurers from liability for the negligence of the master or crew. The vessel was carried over the falls, and the court held that the proximate cause was the damage done by going over the falls, which was a peril of navigation, and not the act of the master, that being a remote cause.

A like application of the rule is made to the sale of cargo in an intermediate port of distress to raise funds. Such a loss is not recoverable under the policy, as the sea peril that caused the vessel to enter the port of distress is deemed a remote cause.18

THE LOSS-TOTAL OR PARTIAL

36. A loss may be total or partial.

37. ACTUAL OR CONSTRUCTIVE

A total loss may be actual or constructive.

(a) There is an actual total loss where the subject-matter is wholly destroyed or lost to the insured, or where there remains nothing of value to be abandoned to the insurer.

(b) There is a constructive total loss when the insured has the right to abandon.

17 123 U. S. 67, 8 Sup. Ct. 68, 31 L. Ed. 63.

18 Powell v. Gudgeon, 5 Maule & S. 431; Ruckman v. Merchants' Louisville Ins. Co., 5 Duer (N. Y.) 371.

Actual Total Loss of Vessel

An actual total loss of a ship occurs when she is so injured that she no longer exists in specie as a ship. If she still retains the form of a ship, and is susceptible of repair, it is not an actual total loss.

In BARKER v. JANSON,1o Wills, J., says: "If a ship is so injured that it cannot sail without repairs, and cannot be taken to a port at which the necessary repairs can be executed, there is an actual total loss, for that has ceased to be a ship which never can be used for the purpose of a ship; but if it can be taken to a port and repaired, though at an expense far exceeding its value, it has not ceased to be a ship."

In Delaware Mut. Safety Ins. Co. v. Gossler,20 Clifford, J., uses substantially the same language.

Actual Total Loss of Goods

There is a total loss of goods not only when they are absolutely destroyed, but when they are in such a state that they cannot be carried in specie to the port of destination without danger to the health of the crew, or when they are in such a state of putrefaction that they have to be thrown overboard from fear of disease.21

Interesting questions arise when there is an insurance against total loss only on goods and part of the goods are lost. If the goods are all of the same kind, and a part of them are lost, then, under the ordinary language of the policy, the loss would be partial only. But, if there were different kinds of goods insured under one policy, the courts hold, unless the language of the policy is specially worded to exclude it, that there is a total loss of separate articles, though there may not be a total loss of the whole. This question is discussed in Woodside v. Canton Ins.

20 96 U. S. 645, 24 L. Ed. 863. See, also, Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614.

21 Hugg v. Augusta Ins. Co., 7 How. 595, 12 L. Ed. 834.

Office.22 That was an insurance against total loss only, or, what has been held to mean about the same thing, "warranted free from all average," on personal effects of the master of the vessel. The personal effects consisted of a variety of different articles. The vessel was lost, and so were all the master's effects, except a sextant and few small articles. The court held that there was a total loss of the different articles which were not saved, although some of the personal effects were saved.

On the other hand, in Biays v. Chesapeake Ins. Co.,28 the insurance was on a cargo of hides. Some of the hides were entirely lost. The court held, however, that as the insurance covered only one article, namely, hides, this was a partial loss on the entire subject of insurance, and not a total loss of some of the different subjects of insurance.

But where the subject insured is a single unit, though composed of different parts, the loss of one of those parts, which renders the others absolutely useless, and which could not be replaced at an expense less than the cost of the entire unit, makes it a total loss.

24

In Great Western Ins. Co. v. Fogarty, there was insurance upon a sugar-packing machine composed of various different units. Some of these parts were lost, and could not have been replaced for less than the price of a new machine. Some were saved, but were only valuable as scrap iron. The court held that this was a destruction of the machine in specie, and therefore a total loss.

Actual Total Loss of Freight

There is a total loss of freight whenever there is a total loss of cargo or when the voyage is broken up and no

22 (D. C.) 84 Fed. 283; Canton Ins. Office v. Woodside, 33 C. C. A. 63, 90 Fed. 301. See, also, Duff v. McKenzie, 3 C. B. (N. S.) 16 (91 E. C. L.); Wilkinson v. Hyde, 3 C. B. (N. S.) 30 (91 E. C. L.); Ralli v. Janson, 6 E. & B. 422, 119 Eng. Reprint, 922.

237 Cranch, 415, 3 L. Ed. 389. See, also, Washburn & M. Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49. 24 19 Wall. 640, 22 L. Ed. 216.