striking the reef, which was not by any means an inevitable or even a usual consequence of the extinction of the light.

In the case of the tug Rosa already referred to (Reischer v. Borwick, Court of Appeal, 2nd and 3rd July 1894),1 the risks insured against in the policy were "the risk of collision (as per clause attached) and damage received in collision with any object, including ice." The collision clause attached refers to collision with other ships; the accident that did Occur was collision with a snag in the Danube. The damage was serious; the captain endeavoured as speedily as he could to plug up the vessel from the outside, and took the assistance of a tug to tow his vessel to a place where she could be repaired. During the tow one of the plugs fell out, and in order to prevent the vessel from sinking in deep water, the tug towed her on to the southern bank of the river. The underwriters paid cash into court for the damage sustained up to the time when the Rosa was taken into tow, but denied liability; with respect to the subsequent damage, they strenuously contended that they were under no liability on the ground that the proximate cause was not the collision, but the towing to a port of repair. Mr. Justice Kennedy overruled this contention, and the Court of Appeal (Lords Justices Lindley, Lopes, and Davey) confirmed his view. Lord Justice Lindley said: “The sinking of the ship was proximately caused by the internal injuries produced by the collision, and by the water reaching and getting through the injured parts whilst she was being towed to a place of repair. The sinking was due as much to the one of these causes as to the other; each was as much a 'proximate' cause of her sinking as the other, and it would in my opinion be contrary to good sense to hold that the damage by the sinking was not covered by this policy. . . . I feel the difficulty of expressing in precise language the distinction between causes which co-operate in producing a given result. When they succeed each other at intervals which can be observed, it is comparatively easy to distinguish them and to have their respective effects, but under other circumstances it may be impossible to do so.

1 10 Times Law Rep. 568.

It appears to me, however, that an injury to a ship may fairly be said to cause its loss if, before that injury is or can be repaired, the ship is lost by reason of the existence of that injury, i.e. under circumstances which, but for the existence of that injury, would not have affected her safety. It follows that if, as in this case, a policy is effected covering such an injury, it will in the circumstances supposed extend to the loss of the ship, for in the case supposed the injury will really be the cause of the loss—the causa causans and not the causa sine qua non."

From consideration of all the cases mentioned above, it appears that there is some difference between the treatment of excepted perils and that of default of owner, wear and tear, and unseaworthiness. The difference seems to be that the excepted and the covered perils are regarded as of equal importance until it is discovered which is the more immediate cause of the casualty; while in the case of default, wear and tear, and unseaworthiness, any one of these once found existing absolutely wipes out the other coexisting perils and is burdened with all the liability.

There is another important group of cases, Jackson v. Union Marine, 1873,1 Inman v. Bischoff, 1881,2 and Mercantile Steamship Company v. Tyser, 1881,3 in which the subject insured was an expectation of gain, say freight, which was lost through some circumstance like the exercise of a charterer's option to cancel a charter if the vessel does not arrive at loading port by a named date. In all these cases a casualty caused by a peril of the sea occurred, and in consequence of the resulting delay the charterers did not permit the vessels to load the cargo or earn the freight they went to get. The circumstances of the three cases differed widely, but the net result was that where the loss of the opportunity to earn freight was caused solely by the exercise of the charterer's option to cancel, the underwriters on the ordinary policy against perils of the seas were held not to be liable for the loss.4

2

1 L. R. 8 C. P. 572; 10 C. P. 125. 7 App. Cas. 670.

3

7 Q. B. D. 73.

See also The Abrota, 1895 (Jamieson v. Newcastle Stm. Frt. Ins. Ass.), 11 Times L. R. 176 and 416, see also p. 242 below.

CHAPTER IX

TOTAL LOSS OF SHIP AND OF CARGO

THE policy speaks of the underwriter taking upon himself the "burden of this insurance," and binding himself "for the true performance and fulfilment of the contract" therein contained. But the form which the underwriter's liability may assume, and the extent which it may reach, are left without special definition. All that can be gathered from the wording of the policy alone is that the assured is protected by the underwriter from certain named adventures, perils, losses, and misfortunes, and from all others (of the same kind) occurring to the hurt, detriment, or damage of the property insured or any part thereof.

There is nothing to be gained by attempting a theoretical deduction of the forms which this liability must take. The policy has been so modified by additions made to it from time to time that any such deduction would probably be most misleading. It will therefore be more suitable to take up the different forms of liability that have been found in practice. There is one form which must from the first have presented itself as indubitable, namely, total loss arising from any of the perils named in the policy.

Suppose a

Total Loss, Actual and Absolute. vessel leaves port on a voyage to San Francisco; some weeks after, the crew of this vessel are landed from another ship, and make a declaration that their vessel took fire in a particular position on a named day, that after being compelled to leave her in their boats they saw her explode and go down, that they were picked up by the rescuing ship so

many days after. If this declaration agrees with what else is known of the picking up of the crew, and is otherwise credible and trustworthy, there can be no doubt that “the burden” of an insurance covering fire will properly include losses of this class.

Similarly, suppose that a vessel leaves port properly equipped for a voyage, which on the average lasts three months; at the end of six months there is no news of her arrival at destination, nor any report of her passing islands or other stations on the track she was intended to take, nor any “speaking” with other vessels following or crossing that track or any in its neighbourhood. Time goes on, inquiry is made for news respecting the vessel; in absence of news of her safety she is formally "posted" as a missing ship. From the circumstances there can be no actual proof of the cause of loss; but as she left port a stout, strong, and staunch vessel fit for her intended voyage, the presumption is that she has perished by some of the perils named in the policy (whether they be of the elements or of man). This, therefore, also constitutes a loss, "the burden” of which should fall on the underwriter issuing his policy against perils of the sea.

Next, a vessel runs against a rocky headland, knocks in her bow, smashes her keel, and breaks up into pieces of iron and timber. What is left of her is no longer a ship, it is not a vessel that can be employed in the transport of goods from one place to another; should the fact of her materials remaining in a kind of existence in mass prevent the disaster from being considered a total loss?

Akin to these "losses and misfortunes" are those that occur when the action of earthquake raising dry ground under ships, or of tidal waves sweeping ships inland, results in their being left high and dry up a mountain side or hundreds of yards from sea-board. They are in these positions quite unavailable for the performance of the work they were intended for; as far as the owner's intended employment is concerned they are as much taken out of his possession and control as if they had been seized by pirates or run off with by a barratrous captain or mutinous crew.

L

The few instances given above will illustrate the very full definition given by Phillips.1

"S 1485. A total loss of a subject is when by the perils insured against it is destroyed or so injured as to be of trifling or no value to the assured for the purposes and uses for which it was intended, or is taken out of the possession and control of the assured, whereby he is deprived of it; or where the voyage or adventure for which the insurance is made is otherwise broken up by the perils insured against." The last paragraph of this definition will be the subject of closer consideration when losses of cargo and of hire for carrying cargo are discussed.

The instances of total loss given above are so evident and uncompromising that they are properly described as actual total losses, or actual and absolute total losses. There is either nothing left of the ship at all, or nothing left in the possession and control of her owners, or only something that is of no value to the assured for the purposes and uses for which it was intended.

Constructive Total Loss.-But although a ship is not totally lost in any of these evidently uncompromising ways, she may still be a total loss. It has often occurred that a ship having run on rocks has sustained damage to her bottom, but sits upright in the water so that at a little distance she seems to a landsman's eye uninjured, or not seriously damaged. But the owner sees that in all probability she will never come off as a ship; that she may pound and grind herself over the rocks, but likely only to sink in deep water a mass of iron and timber; and that even if she is taken off as she is, the cost of repair will be so great as to render the taking of the vessel off a failure in a commercial sense.

In such a case the owner usually proceeds to give notice of abandonment (or to tender abandonment) to his underwriters. He in effect says: "My vessel is totally lost; pay me the amount for which you have insured her for me and I will transfer to you what remains of the property you have 1 See Cossmann v. West, 1887, Privy Council, Asp. Mar. L. C. 233.