in the one case, or during the term in the other, unless 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: 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." * 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. 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 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. |