(c) Insurance Against Total Loss. An insurance confined in terms to an actual total loss does not cover a constructive total loss, but covers any loss which necessarily results in depriving the insured of the possession at the port of destination of the entire thing insured.

(d)-Liability of Insurer When Voyage is Broken Up. When a ship is prevented, at an intermediate port, from completing the voyage by the perils insured against, the master 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 when he has done so, the liability of a marine insurer of the cargo continues after it is thus reshipped. And in addition, a marine insurer is bound for damages, expenses of discharging, storage, reshipment, extra freightage, and all other expenses incurred in saving the cargo reshipped, up to the amount insured.

Civil Code, Sections 2701, 2702, 2703, 2704, 2705, 2706, 2707, 2708, 2709, 2712.

Section 255yy.—ABANDONMENT.-A person insured by a contract of marine insurance may abandon the thing insured, or any particular portion separately valued by the policy or otherwise separately insured, and recover for a total loss thereof, when the cause of the loss is a peril insured against, in any of the following cases: (1) If more than half in value is actually lost, or would have to be expended to recover it from the peril; (2) If the property is injured to such an extent as to reduce its value more than one-half; (3) If a ship is insured, and the contemplated voyage cannot be performed without incurring an expense to the insured of more than half the value of the ship, or without incurring a risk which a prudent man would not take under the circumstances; (4) If the cargo or freightage is insured, and the voyage cannot be performed nor another ship procured by the master, within a reasonable time and with reasonable diligence, to forward the cargo, without

incurring an expense of more than half the value, or without incurring a risk which a prudent man would not take under the circumstances.

Freightage cannot in any case be abandoned unless the ship is also abandoned.

An abandonment must be neither partial nor conditional. An abandonment, to give the insured the right to claim the full amount of insurance, must include not only an intention to abandon, but also a relinquishment to all right to the property. The insured must in fact and in good faith abandon the ship; and he cannot still claim ownership, or continue in the use of the vessel, after he has given notice. of abandonment as for a total loss.

after

An abandonment must be made within a reasonable time information of the loss, after the commencement of the voyage. Where the information upon which an abandonment has been made proved incorrect, or the property insured was so far restored when the abandonment was made that there was then in fact no total loss, the abandonment becomes ineffectual.

An abandonment is equivalent to a transfer by the insured. of his interest to the insurer, with all the chances of recovery and indemnity. An acceptance of an abandonment is not necessary to the rights of the insured. But the acceptof an abandonment, whether express or implied, is conclusive upon the parties, and admits the loss and the sufficiency of the abandonment.

An abandonment once made and accepted is irrevocable, unless the ground upon which it was made proves to be unfounded; as, where information of the loss of a ship turns out to be incorrect.

On an accepted abandonment of a ship, freightage earned previous to the loss belongs to the insurer of the freightage; freightage subsequently earned belongs to the insurer

but

of the ship.

(a) Refusal to Accept.-If an insurance company refuses to accept a valid abandonment, it is liable as upon an actual total loss, deducting from the amount any proceeds

of the thing insured which may have come to the hands of the insured person.

(b)-Waiver of Formal Abandonment. If a marine insurance company pays for a loss as if it were an actual total loss, it is entitled to whatever may remain of the property insured, or its proceeds or salvage, as if there had been a formal abandonment.

(c)-Omission to Abandon.-If a person insured omits to abandon, he may nevertheless recover his actual loss.

(d)-Notice of Abandonment.-Abandonment is made by giving notice thereof to the insurer, which may be made orally or in writing. A notice of abandonment must be explicit, and must specify the particular cause of the abandonment; but it is only necessary to state enough to show that there is probable cause to abandon, and the notice need not be accompanied with proof of interest or of loss.

Civil Code, Sections 2716, 2717, 2718, 2719, 2720, 2721, 2722, 2724, 2725, 2727, 2728, 2729, 2730, 2731, 2732.

Section

255zz.-MEASURE OF INDEMNITY.—A valuation in a policy of marine insurance is conclusive between the parties thereto, in the adjustment of either a partial or total loss, if the insured has some interest at risk, and there is no fraud on his part; except that when a thing has been hypothecated, before its insurance, and without the knowledge of the person actually procuring the insurance, he may show the real value. But a valuation fraudulent in fact entitles the insurer to rescind the contract.

(a)-Partial Loss.-A marine insurer is liable upon a partial loss, only for such proportion of the amount insured by him as the property lost bears to the value of the whole interest of the insured.

(b)-Profits. Where profits are separately insured the insured is entitled to recover, in case of loss, a proportion

of such profits, equivalent to the proportion which the value of the property lost bears to the value of the whole.

(c) Valuation Apportioned.-In case of a valued policy on freightage or cargo, if a part only of the subject is exposed to risk, the valuation applies only in proportion to such part.

(d)—Valuation Applied to Profits. When profits are valued and insured in the policy, a loss of them is conclusively presumed from a loss of the property out of which they were expected to arise, and the valuation in the policy fixes their amount.

(e) Estimating Loss Under an Open Policy. In estimating a loss under an open policy, where the values are not fixed by the contract, the following rules are to be observed: (1) The value of a ship is its value at the beginning of the risk, including all articles or charges which add to its permanent value, or which are necessary to prepare it for the voyage insured; (2) The value of cargo is its actual cost to the insured, when laden on board, or when that cost cannot be ascertained, its market value at the time and place of lading, adding the charges incurred in purchasing and placing it on board; but this must be withreferrence to any losses incurred in raising money for its purchase, or any drawback on its exportation, or any fluctuations of the market at the port of destination, or any expenses incurred on the way or on arrival; (3) The value of freightage is the gross freightage, exclusive of primage, without reference to the cost of earning it; and (4) The cost of insurance is in each case to be added to the value thus estimated.

out

(f)-Arrival of Cargo Damaged. If cargo insured against partial loss arrives at the port of destination in a damaged condition, the loss of the insured is deemed to be the same proportion of the value which the market price at port, of the goods damaged, bears to the market price they would have brought if sound.

that

(g)-Labor and Expenses.-A marine insurer is liable for all the expense attendant upon a loss which forces the ship into port to be repaired; and where it is agreed that the insured may perform labor for the recovery of the property, the insurer is liable for the expense incurred thereby; such expense in either case being in addition to a total loss, if that afterwards occurs.

(h)-One-third New for Old.-In case of a partial loss of a ship or its equipments, the old materials are to be applied towards payment for the new, when repairs are made; and whether the ship is new or old, a marine insurer is liable for only two-thirds of the remaining costs of the repairs, except that he must pay for anchors and cannon in full, and for sheathing metal at a depreciation of only two and one-half per cent for each month that it has been fastened to the ship.

Civil Code, Sections 2736, 2737, 2738, 2739, 2740, 2741, 2742, 2743, 2746.

Section 255aaa.-GENERAL AVERAGE.-A carrier by water may, when in case of extreme peril it is necessary for the safety of the ship or cargo, throw overboard or otherwise sacrifice, any or all the cargo or appurtenances of the ship. Throwing property overboard for such perpose is called jettison, and the loss incurred thereby is called a general average loss.

A jettison must begin with the most bulky and least valuable articles, so far as possible.

A jettison can be made only by authority of the master of the ship, except in case of his disability or an overruling necessity, when it may be made by any other person.

The loss incurred by a jettison, when lawfully made, must be borne in due proportions by all that part of the ship, appurtenances, freightage, and cargo, for the benefit of which the sacrifice is made, as well as by the owner of the property sacrificed. The proportions in which a general average loss is to be borne must be ascertained by an