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.1 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.

§§ 36-37. 19 L. R. 3 C. P. 303.

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 a 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.,2 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.

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.

freight is earned. But if the vessel can be repaired in sufficient time to carry her cargo without frustrating the objects of the voyage by delay, or the cargo is in a condition. to be shipped by another vessel and another vessel is procurable, there is not a total loss of freight.25

Partial Loss

The term "particular average" is nearly synonymous with "partial loss," and policies which contain clauses "warranted against particular average" or "warranted against average" are practically policies insuring against total loss only.20

The measure of recovery in case of partial loss is strikingly different in marine and fire insurance. If a house is insured against fire for $5,000, and the value of the house is $10,000 and the loss is $5,000, the insured recovers the full value of his policy. Under similar circumstances in marine insurance, he only recovers such proportion of the loss as the insured portion bears to the total value, it being considered that as to that part of the value which is not insured he is his own insurer, and must contribute to the loss to that extent.27 In arriving at these proportions, the

25 Hugg v. Augusta Ins. Co., 7 How. 595, 12 L. Ed. 834; Jordan v. Warren Ins. Co., 1 Story, 342, Fed. Cas. No. 7,524.

26 Lowndes on Marine Insurance (2d Ed.) 70, defines particular average as "loss or damage of the thing insured, not amounting to total loss, and not including the cost of measures taken for its preservation from a greater loss." Gow on Marine Insurance, p. 189, defines it as "the liability attaching to a marine insurance policy in respect of damage or partial loss accidentally and immediately caused by some of the perils insured against, to some particular interest (as the ship alone, or the cargo alone) which has arrived at the destination of the venture." In Kidston v. Empire Marine Insurance Co., L. R. 1 C. P. 535, 2 C. P. 357, the cost of measures taken for preservation from greater loss is excluded as particular average and dubbed "particular charges."

272 Pars. Mar. Ins. 405; Ursula Bright S. S. Co. v. Amsinck (D. C.) 115 Fed. 242; Peninsular & O. S. S. Co. v. Atlantic Mut. Ins. Co.

actual value of the subject insured is taken, except where there is an insured value fixed in the policy, in which case the insured value is taken.

SAME-ABANDONMENT

38. Abandonment is the surrender by the insured, on a constructive total loss, of all his interest, to the insurer, in order to claim the whole insurance. (a) Under the American rule, if the cost of saving and repairing a vessel exceed one-half her value when repaired, the owner, by giving the underwriter notice of abandonment, may surrender his vessel to the underwriter, and claim for a total loss. (b) Under the English rule, he can do the same thing if the ship is so much injured that she would not be worth the cost of repair.

This is the most radical difference between the American and English law of marine insurance. Under the American law, as stated above, the right of abandonment is governed by the facts as they appear at the time of the abandonment. If, therefore, at that time, under the highest degree of probability, the cost of saving and repairing the vessel would exceed one-half of her value when repaired, the insured may abandon.28

The title of an insurer acquired by an abandonment relates back to the disaster.29

In the absence of special stipulations, the cost must exceed one-half the value of the vessel when repaired at the

(D. C.) 185 Fed. 172; Atlantic Mut. Ins. Co. v. Peninsular & O. S. S. Co., 194 Fed. 84, 114 C. C. A. 162.

§ 38. 28 Bradlie v. Maryland Ins. Co., 12 Pet. 378, 9 L. Ed. 1123; Royal Exch. Assur. v. Graham & Morton Transp. Co., 166 Fed. 32, 92 C. C. A. 66; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 618, 149 C. C. A. 614.

29 Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43.