in the one case, or during the term in the other, unless
such as to justify abandonment, and notice of abandon-
ment be given, can only amount to a partial loss."
So if the insurer contract that (goods) shall arrive safe
at a port of delivery; or if not, that he will indemnify
the insurer, if they actually are landed at the port of
delivery, however damaged during the voyage, it is a
partial loss. If so damaged as to be of no commer-
cial value and necessarily sold or thrown away in the
course of the voyage, the loss is total. "If part of
the goods are wholly lost, and the rest of the goods
saved in a damaged state, the policy is to be taken
devise-it is a total loss as to the former, and as to the
latter only a partial loss."-Davy vs. Milford, 15 East,
p. 559.
"Partial losses are sometimes denominated
average losses, and are distinguished into general and
particular averages." "Every loss must be ascribed
to its immediate and not to any remote cause."-Id.,
p. 374; see, also, for definition of "loss," Bouv. L.
Dic., Title" Loss."

2703. A total loss may be either actual or con- Actual and

structive.

NOTE. "In practice much the larger part of the losses which are total become so by abandonment;' or at least require an abandoment that they may have the legal effect of a total loss."-See Note 1 to Emerigon, Chap. 17, Sec. 1, Meredith Ed. "But the distinction between an actual total loss and a constructive total loss, defining the latter to be that which is made so by abandonment, is not perfectly precise nor always applicable."-2 Pars. Mar. Ins., p. 107, Chap. 4, Sec. 1; see Secs. 2704, 2705, post, and notes. What are termed "actual" and "constructive" total loss are in effect the same to the insured.-2 Arnould Ins. Chap., 6, pp. 850-1. 2 Pars. Mar. Ins., p. 68, Chap. 3, gives this: "If," says Lord Abinger in Roux vs. Salvador, 3 Bing N. C., p. 266, "in the course of the voyage the thing insured becomes totally destroyed or annihilated, or if it be placed by the perils insured against in such a position that it is totally out of the power of the assured or the underwriter to procure its arrival, the latter is bound by the very terms of his contract to pay the whole sum insured." "There must be no rational hope, no practicable possibility of recovering possession of the property and prosecuting the adventure to its termination; for only when such hope and such possibility have ceased is it an actual loss."-2 Pars. id., pp. 68, 69; Walker vs. Prot. Ins. Co., 29 Maine, p.

constructive total loss.

Actual total loss, what.

317. In 2 Arnould Ins. (3 ed., 1866), p. 850, it is said:
"A total loss on insurance is one on account of which
the insured is entitled to recover from the underwriter
the whole amount of his subscription. It is either
absolute or constructive." An absolute total loss takes
place when the subject insured wholly perishes or its
recovery is rendered irretrievably hopeless. A con-
structive total loss takes place when the subject insured
is not wholly destroyed, but its destruction is rendered
highly probable, and its recovery, though not utterly
hopeless, is either exceedingly doubtful or too expen-
sive to be worth the attempt.
"An absolute or actual
total loss entitles the insured to the whole subscription
of the underwriter. A constructive total loss entitles
him, on condition of giving notice of abandonment of
all right and title to any part of the property that may
still exist or may be recovered, to the whole subscrip-
tion of the underwriter. A constructive total loss is as
much a total loss in law as if the subject of insurance
had been actually annihilated; and therefore a policy
against total loss only' covers a constructive total
loss also, unless the parties, if they intend to exclude
this, do so by some such words as without benefit of
abandonment.'"-Adams vs. McKenzie, 32 L. J. (C.
P.) p. 92.

2704. An actual total loss is caused by:

1. A total destruction of the thing insured;

2. The loss of the thing by sinking, or by being broken up;

3. Any damage to the thing which renders it valueless to the owner for the purposes for which he held it; or,

4. Any other event which entirely deprives the owner of the possession, at the port of destination, of the thing insured.

NOTE.-See De Peyster vs. Sun Mut. Ins. Co., 19 N. Y., p. 272; Coit vs. Smith, 3 Johns. Cas., p. 16; Roux vs. Salvador, 3 Bing. N. C., p. 266; Adams vs. MeKenzie, 13 C. B. (N. S.), p. 442; but compare Knight vs. Faith, 15 Q. B., p. 649. "Total loss of maritime property under insurance is either actual (or, as it is sometimes called, absolute), or constructive (or, as it is sometimes called, technical.)" "Text writers and Courts, in treating of actual total loss, often use the word 'destruction' as of equivalent meaning, but it is

66

not so." *
"For the purposes of practice, and
of the insurance law, a vessel is totally lost when it is
lost as a vessel (Irving vs. Manning, 1 H. L. Cases, p.
287); and goods are totally lost when they are lost as
goods; and either vessels or goods are totally lost, as
to the insured, when he has lost all possession of, or
power, or control of them, although they may con-
tinue to exist in specie as before. It is this last condi-
tion of loss to the assured that is usually intended
when total loss is spoken of."-2 Pars. Mar. Ins., p.
68, Chap. 3; see note to the two preceding sections; 2
Arnould Ins. (3d ed., 1866), pp. 851-855. If, in mid
ocean, a ship springs aleak, fills, and goes down, it is
an actual loss of ship and cargo. In such case, some
things of more or less value may be by other ships
saved. It is nevertheless an actual total loss, for the
parts or fragments saved constitute neither " a ship,"
"a cargo,"
nor a ship and cargo." It is an actual
total loss if goods are so sea damaged that, though
they remain in the same specie, cannot be safely
reshipped, and if sent to their original destination the
specie itself would disappear before reaching it, and
are therefore sold.-Roux vs. Salvador, 3 Bing. N. C.,
p. 266. So, if a ship is burnt to the water's edge and
still floats, incapable of repair. But if submerged
near shore, and comparatively in shallow water, there
is no actual total loss until it is sure she cannot be
weighed and recovered. (Emerigon says submersion
is not per se a total loss.) It is not an actual total loss
by fire, if capable of repair; but whether a loss by fire
or submersion is or is not a total loss depends on the
circumstances of the case. So, also, with stranding,
etc., to be found in Chap. 3, p. 68, Vol. 2, Pars. Mar.
Ins., et seq. Where, also, is treated capture and con-
demnation, where, in case of insurance of a ship, it is
a question whether that saved constitutes "a ship" or
not. Wrecked, and many goods got on shore, but
were in part destroyed and in part stolen, it was an
actual total loss, and this because the portion of the
goods which got on shore did not go into hands of the
owners. Seizures and confiscation by foreign Govern-
ment; wrecked vessel sold by the master from neces-
sity, etc.-Id. Mr. Parsons, however, in the midst of
his discussion of the question of actual total loss,
pauses to repeat that: "It must be remembered that
an actual total loss of insured property occurs either
if the thing insured is wholly destroyed as that thing;

25-vol. ii.

Constructive total loss.

Presumed actual loss.

Insurance

on cargo. etc., when

voyage is

or if the property insured, while remaining in specie what it is is wholly lost to the insured, which means that it is entirely out of his power, or that of the insurer, to recover the property."-p. 74; Arnould Ins., p. 1001; Benecké Mar. Ins., p. 336. Same principles apply to actual total loss of cargo.-Pars. id., p. 93, et seq. The text fixes, beyond cavil, the causes which may produce actual total loss.

2705. A constructive total loss is one which gives to a person insured a right to abandon, under Section 2717.

NOTE.-See notes to the preceding two sections, and also Sec. 2717 and note, post.

2706. An actual loss may be presumed from the continued absence of a ship without being heard of; and the length of time which is sufficient to raise this presumption depends on the circumstances of the

case.

2707.

NOTE.-Gordon vs. Bowne, 2 Johns., p. 150; Marsh. Ins., p. 417; Brown vs. Neilson, 1 Caines, p. 525. “If it is proved that the vessel sailed on the voyage insured, and has not been heard of for so long a time as to afford a presumption of her being lost, this will be sufficient proof of an averment of a total loss by the perils of the seas."-Sub. Sec. 2139, p. 666, Vol. 2, Phil. Ins.; Koster vs. Innes, Ry. & M., p. 333. Sufficient if not heard from at port of departure.-Id. No particular time is ground of presumption; it depends on the voyage and other circumstances.-Id.; Cohen vs. Hinckley, 2 Campb., p. 51; Houstman vs. Thornton, Holt Nisi Prius Cas., p. 242; see id., Sub. Sec. 1496. Recovered in such case on ship and cargo without abandonment.-Green vs. Brown, 2 Strange, p. 1199; Newby vs. Read, Park Ins., p. 106; Tremlow vs. Orwin, 2 Campb., p. 85, and other cases therein; Phil. Ins., Vol. 2, Sub. Sec. 1496, Note 2. Insurance being on time, and the vessel not heard from after the period of the risk, it is a question of fact for the jury whether, under the circumstances proved, it was lost during that period.-2 Phil. Ins., Sub. Sec. 2139, p. 666, and Note 8; Brown vs. Neilson, 1 Caines N. Y., p. 525.

When a ship is prevented, at an intermediate port, from completing the voyage, the master

broken up. must make every exertion to procure, in the same or

a contiguous port, another ship, for the purpose of conveying the cargo to its destination; and the liability of a marine insurer thereon continues after they are

thus reshipped.

NOTE.-Code de Com., Secs. 391, 392; Saltus vs.
Ocean Ins. Co., 12 Johns., p. 107; Treadwell vs. Union
Ins. Co., 6 Cow., p. 270; Whitney vs. N. Y. Fire-
men's Ins. Co., 18 Johns., p. 208.

2708. In addition to the liability mentioned in the last section, a marine insurer is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and all other expenses incurred in saving cargo reshipped pursuant to the last section, up to the amount insured.

NOTE.-Code de Com., Sec. 393; Bridges vs. Niagara
Ins. Co., 1 Hall, p. 423.

insured is

2709. Upon an actual total loss, a person insured When is entitled to payment without notice of abandonment.

NOTE.-Gordon vs. Bowne, 2 Johns., p. 150; Cambridge vs. Anderton, 2 B. & C., p. 691. See, also, Secs. 2721, 2722, post, and notes. "If the loss be actually total, as there is nothing to abandon, an abandonment can have no other effect."-2 Pars. Mar. Ins., p. 110.

2710. Where profits are insured, but the goods are not insured, a marine insurer is not liable for a constructive total loss unless the insured offers to abandon the goods.

NOTE.-Tom vs. Smith, 3 Caines, p. 245. The insured may always withhold an abandonment if he chooses to do so, etc.-2 Pars. Mar. Ins., pp. 110, 111. "Profits are so far distinct from cargo that if both are insured it is said that there may be a several abandonment of each." (See Note 3, and cases there cited.) "But it is not easy to see how anything can pass by abandonment of profits." # * "Indeed, it may be remarked, in general, that an abandonment of the profits alone can pass nothing. It is not easy to see that there can be any effectual abandonment of profits, that an actual partial loss of profits can be made total by abandonment."-2 Pars. Mar. Ins.,

or

*

entitled to

payment.

ment of

Abandon goods on

insurance

of profits.