Monroe v. British & Foreign Marine Ins.

¶11. Marine Insurance—“Absolute Total Loss”—Abandonment.

¶2Under a marine policy insuring against “absolute total loss only,” a partial loss cannot be converted into a constructive total loss, and evidence of abandonment is immaterial.

¶32. Same.

¶4A shipment of cattle insured against “absolute total loss only” was in part jettisoned, the vessel having struck upon a reef. Part of the jettisoned cattle reached shore, and were taken possession of and sold by a salvors’ association, which had been employed by the underwriters to go to the wreck and act for the interests of all concerned, with an agreement that they should have a lien on the property saved, with power of sale for their reimbursement, but it did not appear for what reason the sale was made. Held, that the owner of the cattle could not recover on the policy, in the absence of proof that the underwriters directed an unauthorized sale, or that salvage was actually claimed and the sale made in satisfaction thereof, and that he could not by due diligence have discharged the lien of the salvors, and thus secured the remnants of the cargo.

¶53. Same—Jettison of Cargo.

¶6A jettison of cargo, either to lighten ship or for the purpose of being saved, does not of itself constitute an “absolute total loss, ” within’the meaning of a marine insurance policy, when part of the goods are in fact saved. . .

¶7*7784. Same—Adjustment by Agents—Extent oe Agency—Evidence.

¶8In an action on marine insurance policies issued by British companies through-, their agents in Boston, when nothing is clearly proven as to the extent of the-agents’ authority except that they were empowered to issue the policies, receive the premiums, and represent the underwriters in legal proceedings in Massachusetts, it cannot be presumed that they have authority to adjust a loss occurring on the British coast, under a policy issued by them.

¶95. Triad—Directing Verdict—Federad Courts.

¶10A federal court may direct a verdict for either party whenever, under the state-of the evidence, it would be compelled to set aside one returned the other way.

¶11In Error to the Circuit Court of the United States for the District of Massachusetts.

¶12These two actions were brought by Albert N. Monroe against the British & Foreign Marine Insurance Company, Limited, and the Union Marine Insurance Company, Limited, both being British corporations, on policies of insurance issued by them, respectively. The cases were tried together in the circuit court, and in each case a verdict was directed for defendant. Separate writs of error were sued out by the plaintiff, and the cases were argued together in the circuit court of appeals. Judgments affirmed.

¶13The property covered by the policy consisted of 264 cattle shipped on the steamship Missouri at Boston, and consigned to James Nelson & Son, Liverpool. The bills of lading also provided that, “ if animals are landed at Birkenhead, consignee is to take delivery of them there.” The contracts of insurance were alike, except that one was for $16,000 and the other $17,000. Plaintiff had a general blanket policy issued by each company through their agents in Boston, Endicott & Macomber, under which his shipments of cattle from time to time were insured. This was effected in each case by the issuance of a “ domestic certificate ” in the following form:

¶14“ This is to certify that on the 18th day of February, 1886, this company insured, under and subject to the conditions of policy No. 10,550, for A. N. Monroe, for account of whom it may concern, sixteen thousand dollars, on 264 head of cattle valued at $33,000, per Str. Missouri, at and from Boston to Liverpool. Loss, if any, payable to the order of A. N. Monroe in funds current in the city of Boston, at the office of Endicott & Macomber, upon the surrender of this certificate.

¶15[Signed] “Endicott & Macomber, Attorneys.

¶16' “Premium,-.”

¶17On the margin of each certificate was printed the following:

¶18“Against absolute total loss of vessel and animals only, but this company to be liable for its proportion of the assured’s assessment in general average levied upon all interests.”

¶19The policies contained the so-called “ sue, labor, and rescue clause,” as follows:

¶20“And, in case of any loss or misfortune, it shall be lawful and necessary to and for the assured, factors, servants, and assigns, to sue, labor, and travel for, in and about the defense, safeguard, and recovery of the said goods and merchandises, or any part thereof, without prejudice to this insurance; nor shall the acts of the insured or insurers, in recovering, saving, and preserving the property insured, in case of disaster, be considered a waiver or an acceptance of abandonment.”

¶21*779Also the “jettison clause,” in the following terms:

¶22“In all eases of loss by jettison, the same shall be settled on the principles of general average only. ”

¶23Early on the morning of March 1,1886, the ship went ashore on the Welsh coast at a place called Port Darfach, a few miles from Holyhead, and finally became a total wreck. In the attempts to get her off, many of the cattle were jettisoned by order of the master, some of which swam ashore or were towed ashore by salvors. Owing to injuries, it was necessary to butcher some of these, and only 108 were left. Soon after the vessel went ashore the Liverpool Salvage Association, an association of seven underwriters, of whom two were officers in the defendant companies, was requested by the underwriters to send an agent to the vessel “either-to take charge of the property, or to advise the master or owners, and to act in reference thereto as may be considered best for the interests of all concerned.” It was also agreed “that the association is to have an absolute lien upon all property saved and taken charge of by it, and its proceeds, for the amount to become due under this agreement, with power of sale for or towards their reimbursement.” The agent of this association arrived early at the scene, and the cattle, when landed, were in his charge. The consignees, .James Nelson & Sons, had sent one Thomas Colebourn to the wreck, and by an arrangement with the salvors’ association the cattle were placed in his charge, and sent to Birkenhead, and thence to Liverpool, consigned by the association of salvors to James Nelson & Sons, who sold them, and accounted to the association for the proceeds, in whose possession they still remain. In all that was done by Nelson & Sons, they acted apparently as the consignees of the salvors, and not as the consignees of the plaintiff under the bills of lading.

¶24Plaintiff testified as to certain interviews had by him with the Boston agents, Endicott & Macomber, immediately on learning of the wreck, tending to show that he verbally abandoned the property to the underwriters, and demanded his insurance, and that they made statements to the effect that the money would be paid, or that “it would be all right.”

¶25Thomas P. Proctor and Chas. Theo. Russell, Jr., for plaintiff in error.

¶26The court ought not to order verdict for the defendant if plaintiff has offered any evidence to sustain the allegations in his declaration. Lamb v. Railroad, 7 Allen, 98; Todd v. Railroad, Id. 207; Witherby v. Sleeper, 101 Mass. 138. In these cases the order of the court was based upon the fact that there was not a scintilla of evidence, or that there were no facts in dispute. “There does not seem to us to be even a scintilla of evidence to prove any act of delivery or acceptance.” Benny v. Williams, 5 Allen, 1, 9. “If the evidence is such that, though one or two verdicts rendered upon it would be set aside on motion, yet a second or third verdict would be suffered to stand, the cause should not be taken from the jury, but should be submitted to them under instructions. ” Id. 5.

¶27The plaintiff contends that there was evidence for the jury of an absolute total loss of vessel and animals, within the meaning of the contract of insurance, and places his contention upon five grounds:

¶28*780First. The drowning or jettison of all the insured cattle took them, by peril insured against, out of plaintiff’s possession or control, even if some of them were landed and sold by salvors. As there was no restitution, or offer of restitution, to plaintiff, the loss to him is absolute and total.

¶29Second. There was evidence for the jury that the defendants, through their agents, so acted in taking, selling, and retaining the proceeds from the sale of the wrecked cattle that they thereby accepted the loss as total.

¶30Third. There was evidence for the jury that the defendants, by their agents Endieott & Macomber, agreed to pay the loss in suit, in consideration of plaintiff’s continuing his insurance upon other shipments of cattle, and defendants thereby waived all defense.

¶31Fourth. There was evidence for the jury of an absolute total loss by the necessary sale of the wrecked and damaged cattle by and for the salvors.

¶32Fifth. Under the contract of insurance the plaintiff can recover, upon his proof of notice of abandonment, a constructive total loss, if more than one half of the cattle were drowned.

¶33(1) Three fifths of plaintiff’s cattle were drowned in the ship. About two fifths were jettisoned to lighten ship, got ashore, and were taken and retained by salvors. The wreck ended the voyage and the contractual relation between vessel and cattle. The cattle ceased to be a consignment, and the remnant became merely salvage. The latter were either in the possession of the defendants’ agents or of an independent salvor, with a paramount lien for the salvage service. The evidence is clearly to the effect that they were sent to Liverpool, not to complete the voyage under the bill of lading, but merely as salvage, to be disposed of for the salvage association, and they were sold by their agent for them. Uo freight was paid for the carriage of the cattle, and they were taken by the salvors and sent to their broker without delivery of any bill of lading. The cattle were merely flotsam and jetsam.

¶34This, then, was evidence for the jury that there was an absolute total loss of the cattle to the plaintiff. The test is not annihilation, but deprivation. The defendants contracted that no peril of the sea or jettison should prevent the arrival of the ship in Liverpool, not as salvage covered with salvage lien, but as a consignment of use to and under the control of the plaintiff. If none of the cattle arrived at their destination, as property of the plaintiff, with the right of possession in him, they were as absolutely lost as though they sank with the ship in mid-ocean. The loss is total in the absence of proof not only of rescue, but of restoration, or offer of restoration, to the insured.

¶35An absolute total loss is defined in the leading case of Roux v. Salvador, 3 Bing. U. 0. 286, by Lord Abingee: “But if the goods were damaged by the perils of the sea, and necessarily landed before the termination of the voyage, and are by reason of that damage in such a state, though the species be not utterly destroyed, that they cannot with safety be reshipped; … if, though imperishable, they are in the hands of strangers, not under the control of the insured; if, by any circumstance over which he has no control, they can never, or within no assignable period, be brought to their original destination,—in any of these cases the circumstance of their existing in specie at that forced termination of the risk is of no importance. The loss is in its nature total to him who has no means of recovering his goods, whether his inability arises from their annihilation or from any other insuperable obstacle.”

¶36Mr. Parsons says: “Goods are totally lost as to the insured when he has lost all possession of, or power or control of, them, although they may continue to exist in specie as before. It is this lost condition to the insured that is usually intended when total loss is spoken of. * … Actual'total loss occurs either if the thing insured is wholly destroyed as that thing, or if the *781property 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.” 2 Pars. Ins. pp. 68, 74; 2 Arn. Ins. p. 952.

¶37Says Mr. Phillips: “A total loss of a subject of insurance is where, 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 broken up by the peril insured against.” 2 Phil. Ins. § 1485.

¶38So, if some of the goods are landed and stolen at the place of destination, the loss is nevertheless total, because “the portions of the goods which were saved from the wreck, though got ashore, never came again into the hands of the owners. It is therefore a total loss to them.” Bondrett v. Hentigg, 1 Holt, 149. So, if the insured vessel is sold for salvage, the loss becomes total to the owner by reason of the consequent deprivation. . Cossman v. West, L. R. 13 App. Cas. 160.

¶39“A total loss, in one sense, means where goods go to the bottom of the sea, or where the goods are burnt or utterly destroyed; in another sense, a total loss means that the man who owns the goods is deprived of them in some way or other.” Martin, B., in Stringer v. Insurance Co., L. R. 5 Q. B. 605.

¶40So seizure by government: “It is quite certain that the insured may claim as for actual total loss if the property or interest insured be taken from him, although there may be hope of recovery.” 2 Pars. Ins. p. 900.

¶41There was evidence for the jury of this deprivation that constitutes an absolute total loss. The only cattle saved were held and sold by the salvage association, without notice to the plaintiff, and the proceeds retained by the association, two sevenths of which association is made up of defendants’ representatives. The broker employed by them to sell the cattle says: “The salvors declined to give up the cattle to Mr. Monroe or any one else. The salvors had possession of the cattle, and did not ask any person’s consent.” Any demand by plaintiff was therefore useless. Moreover, he was kept from making any such demand by the assurance of the agents in Boston that the loss would be paid. There is no evidence as to the expenses or salvage claimed by the salvage association. They have made no claim upon plaintiff, have rendered him no account, but have simply kept and still keep the entire proceeds from the sale. The presumption from the retention of the salvage proceeds is that the salvage association is entitled to the entire net sum to pay the expenses incurred. Not only has there been no restoration to plaintiff of the salved remnant of the insured property, and no proffer of restoration, but the salvage proceeds are actually in the possession of defendants’ salvage association.

¶42The cattle, then, were totally lost to the plaintiff by perils of the sea. Both ownership and possession were taken from him. “The goods were in the hands of strangers, not under the control of the insured. ” The insured “had lost all possession of, or power or control of, them, although they may continue to exist in specie as before.” “They were taken out of the possession and control of the assured.” Authorities cited supra.

¶43(2) The plaintiff claims that there was evidence for the jury that, after the loss, the defendants, acting as they necessarily must, through their agents, regarded and accepted the loss as total, and so led the plaintiff to believe.

¶44The defendants, by the terms of the policies, had the undoubted right “to sue, labor, and travel for, in, and about the defense, safeguard, and recovery” of, the cattle; “nor shall the acts of the insured or insurers in recovering, saving, and preserving the property insured, in ease of disaster, be considered a waiver or an acceptance of an abandonment.” The right conferred by this “sue and labor” clause is well settled.- It enables either party, as the at*782torney of the other, to take, without prejudice, proper steps to preserve and save the insured property. It is a power of attorney. The underwriter can do what is necessary to preserve the property; but if he goes beyond his agency, and does any act assertive of ownership in, or title to, the insured goods, as by pledging or selling, or agreeing to the pledge or sale, of them, then the underwriter takes it as his salvage, and thereby assumes the loss to be total.

¶45Under the “sue and labor” clause the defendants could take possession to save and restore. But if, instead of saving and restoring, they did any act implying or asserting ownership, and, a fortiori, if they sold or pledged the insured property, they assumed the loss to be total, and are estopped to deny its totality. Wood v. Insurance Co., 6 Mass. 479; Insurance Co. v. Chase, 20 Pick. 142; Reynolds v. Insurance Co., 22 Pick. 191; Copelin v. Insurance Co., 9 Wall. 461.

¶46“I think it may be laid down, as a general proposition, that whenever the underwriter does any act, in consequence of an abandonment, which can be justified only under a right derived from it, that act is of itself decisive evidence of an acceptance; and cases may even be put where the act of the underwriter will in law prevail over his express declaration. As if, after an abandonment, he shall proceed to sell the vessel, with an express protest against the acceptance, and a declaration that he did it for the benefit of the owner, his act would nevertheless conclusively bind him in point of law.” Story, J. Peele v. Insurance Co., 3 Mason, 81; Peele v. Insurance Co., 7 Pick. 254; Insurance Co. v. Younger, 2 Curt. 322; 2 Arn. Ins. (2d. Ed.) p. 969.

¶47The question is wholly one for the jury. “Any act of the underwriter, in consequence of an abandonment, which could be justified only under a right derived from it, may be decisive evidence of an acceptance. … The question for the jury was whether upon the evidence, taken in connection with the provisions of the policy, there were any such acts. ” Puller, C. J. Richelieu & O. Wav. Co. v. Boston Marine Ins. Co., 136 U. S. 433, 10 Sup. Ct. Rep. 934; Shepherd v. Henderson, B. 7 App. Cas. 49; Northwestern Transp. Co. v. Thames & M. Ins. Co., 59 Mich. 214, 26 N. W. Rep. 336.

¶48So far as concerns the question of acceptance, the principle must be the •same in cases of actual as in cases of constructive total loss. In each the question is purely one of fact. Did the underwriters assert ownership, or do any act which the insured would be justified in believing was assertive of title? If so, the underwriters have taken the salvage, and are bound to pay the loss.

¶49The evidence shows that the defendants did, by their agents, so deal with the salved cattle as to assert title, and make the loss an absolute total loss with salvage.

¶50There was no consent or participation on the part of plaintiff, or any agent of his, to this sale and assertion of title.

¶51What right had the defendants on March 3d, after knowledge that some of the cattle had got ashore, to interfere with plaintiff’s property, and without his assent to put a lien upon it, unless they recognized the loss as total, and were protecting their salvage?

¶52(3) The plaintiff contends that there was evidence that the defendants, through their agents, Endicott & Maeomber, agreed to pay the loss in consideration of the plaintiff’s effecting his future insurances with them.

¶53(4) The plaintiff contends that there was evidence for the jury that the loss became an absolute total loss by the necessary sale of the salved cattle. Whether the authority for the sale came from the salvage association or the defendants, or from the master of the vessel, it certainly did not come from the plaintiff or from his agent.

¶54*783The law as to what constitutes total loss by necessary sale is defined in this circuit in Hall v. Insurance Co., 37 Fed. Rep. 371: “I have come to the •conclusion, after very full consideration, that the only test of the power of the master to sell is to inquire whether the vessel was in such a situation that to sell her was the only prudent and wise course. It is said in the cases that the sale must be by necessity; but I do not understand that, in order to •show a necessity for a sale, the master must show that no other course was •open to him. It is sufficient if he show that there was no other prudent •course. ” Carpenter, J.

¶55There was evidence for the jury of such necessity: .(1) The salved cattle were sold as wrecked cargo; (2) they were in a maimed and damaged condition ; (3) they could be fed and kept for the salvage lien only at great and disproportionate expense; (4) the defendants consented to the sale, and are •estopped to deny its necessity.

¶56(5) Under the contract of insurance plaintiff can recover a constructive total loss on proof of a loss exceeding one half the cattle and seasonable abandonment to the defendants.

¶57The term in the margin of the certificate, “Absolute total loss of vessel and animals,” means merely, “Actual total loss,” and does not exclude a constructive total loss. “It is to be borne in mind that a constructive total loss ■is as much a total loss in law as if the subject of insurance had been actually annihilated. A policy, therefore, against total loss only, covers a constructive loss also; unless the parties, if they intend to exclude this, do so by some such words as, ‘ without benefit of abandonment.’ ” Arn. Ins. (6th Ed.) p. 951.

¶58As 156 head of the shipment of 264 cattle were drowned in the ship, there •can be no doubt that the loss exceeded half the value. Monroe made a seasonable oral abandonment, and gave notice to defendants’ agents in Boston.

¶59This was sufficient notice of abandonment. It need not be in writing, and •no particular form is required. Anything that conveys to the underwriters or their agents the information or understanding that the insured surrenders to them the goods saved, is sufficient. 2 Phil. Ins. § 1678; Insurance Co. v. Southgate, 5 Pet. 604; Insurance Co. v. Ashby, 4 Pet. 139; Same v. Catlett, 12 Wheat. 383.

¶60An insurance contract “covers a constructive total loss based on damages exceeding one half the insured value from perils insured against, and an abandonment, although the cargo subsequently arrives at the port of discharge in specie, and very little diminished in quantitv.” Mayo v. Insurance Co., 152 Mass. 172, 25 N. E. Rep. 80.

¶61John Lowell and Henry M. Rogers, for defendants in error.

¶62The judge of the circuit court was right to order verdicts for the defendants. There is no evidence reported in the transcript which would have warranted the jury in finding verdicts for the plaintiff. The rule of the federal courts is that “the judges are no longer required to submit a case to a jury, merely because some evidence has Deen introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed'm finding a verdict in favor of the party introducing such evidence. Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is, or may be in every case, a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon which the burden of proof is imposed.” Commissioners v. Clark, 94 U. S. 278, 284, per Mr. Justice Clifford.

¶63*784In the very early case of Pawling v. U. S., 4 Cranch, 219-222, Marshall, C. J., says: “The general doctrine on a demurrer to evidence has been correctly stated at the bar. The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw.” Carter v. Carusi, 112 U. S. 478-484, 5 Sup. Ct. Rep. 281, and cases there cited by the court. So, also, in the state courts, the rule is the same. Denny v. Williams, 5 Allen, 1; Brooks v. Somerville, 106 Mass. 274, 275; Connor v. Giles, 76 Me. 132-134; Pray v. Garcelon, 17 Me. 145; Head v. Sleeper, 20 Me. 314.

¶64In England the doctrine is the same. Jewell v. Parr, 13 C. B. 909, 915, 916; quoted with approval by Hand, J., in Claflin v. Meyer, 75 N. Y. 260-266. Maule, J., says: “When we say that there is no evidence to go to a jury, we do not mean literally none, but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established.”

¶65At the outset of the case, the court will have to interpret the clause in the policies, “against absolute total loss of vessel and animals only.” What rule of interpretation, what principle, shall be applied to determine the question, was there an absolute total loss or not? The court in Kemp v. Halliday, 6 Best & S. 723-752, answers this question clearly and fully:

¶66“The question of loss, whether total or not, is to be determined just as if there was no policy at all. If the subject-matter is, by the underwriter’s peril, put in such a situation that, supposing there was no policy, it would be totally lost to the owner, then, as between the assured and the underwriter, there is a total loss; not otherwise. And the question whether the thing is lost to its owner is to be treated in a practical business-like spirit, and if the thing cannot be saved by any means which the owners or their representative, the captain, can reasonably use to save it, it is a total loss; but if, by any reasonable means which were reasonably within their reach, they might redeem the subject-matter, and do not do so, the total loss is not attributable to the perils which cast the subject-matter of insurance into that position, but to the neglect of the owner to take those reasonable means. If they do not take those means, they cannot make the loss total by their own neglect.” Kemp v. Halliday, 6 Best & S. 723-752; Irving v. Manning, 1 H. L. Cas. 287-306.

¶67We may quote, too, from the language of Mathews, J., in the case discussed later in our brief, (Brooke v. Insurance Co.:)

¶68“Ho injustice takes place, no violence is done to the principle of equity and natural right, by interpreting contracts according to the legal and ordinary import and meaning of the words used in making them, as arranged in grammatical construction,—such meaning as every person acquainted with the structure of language would attach to them.” 5 Mart. (N. S.) 546.

¶69What is meant by absolute total loss?

¶70The clause of this policy, “against absolute total loss of vessel and animals only,” is to be interpreted naturally, in accordance with the clear, obvious, and ordinary meaning of the words. There is no mystery attaching to the words, “an absolute total loss,” or as it is sometimes called, “an actual total loss,” in law or in fact. The text writers and the courts are in entire harmony with each other and with the common and accepted views of business men.

¶71“An actual total loss occurs when the subject insured wholly perishes, or its recovery is rendered irretrievably hopeless.” McArthur, Ins. 138; Arn. Ins. (4th Ed.) 844; (1887,) Arn. Ins. (6th Eng. Ed.) p. 951; 2 Pars. Ins. 68.

¶72*785“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.’)”

¶73“For the purposes of practice, and of insurance law, a vessel is totally lost when it is lost as a vessel, and goods are totally lost when they are lost as goods; and either vessel 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 continue to exist in specie as before. ”

¶74“If,” says Lord Abinger, “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.” Roux v. Salvados; 3 Bing. N. C. 266.

¶75“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 possibility have ceased is it an actual total loss.” 2 Pars. Ins. 68, 69.

¶76“Whenever the thing insured is, by the operation of a peril insured against, reduced to such a state as to be no longer capable of use under its original denomination, there is an actual total loss.” Wallerstein v. Insurance Co., 44 N. Y. 209; Burt v. Insurance Co., 78 N. Y. 400.

¶77The phrase “total loss” simply, which is the phrase commonly used in insuring what are known as “memorandum articles,” since it does not contain the word “actual” or “absolute,” is satisfied by a constructive total loss, with a seasonable abandonment. Yo case in which the word “absolute” or “actual” is not used, and no case in which there has been an abandonment, is pertinent to the inquiry in this cause; but there are several Gases in which, the insured having failed to abandon, the courts have inquired whether, as a fact, the loss was absolutely or actually total. These eases are pertinent, and they decide the law to be such as we have already stated, namely, in cases of a ship, when the ship has ceased to be a ship, and in cases of goods, wheu the goods have become utterly lost in specie, or entirely valueless, or would have become so if conveyed to the port of destination. Chadsey v. Guion, 97 N. Y. 333; Burt v. Insurance Co., 78 N. Y. 400; Kemp v. Halliday, supra; Hills v. Assurance Corp., 5 Mees. & W. 569.

¶78We submit that this whole case was decided on the 1st day of March, 1886, when 108 cattle out of the 264 that had been shipped by the plaintiff at Boston, were safely landed, or, if not then, when they were transferred by the authority of the master to the port of destination.

¶79We submit, further, that it is impossible for the plaintiff even to state his case accurately, and bring it within the above definition of an absolute total loss, for it is undisputed that, of the 264 head of live cattle that were shipped by the plaintiff at Boston, 108 were landed alive at Birkenhead, the port of destination. He cannot show that these 108 animals were to all intents and purposes worthless, for it is admitted they were sold by the consignees themselves at the port of destination, for the benefit of somebody, for upwards of £20 sterling a head, or for £2,195 13s. 8d. in all; or show that the plaintiff ever lost possession of them, or power of control over them, for he asserts that he never made any attempt to get them into his possession, and has made no application to have the proceeds of their sale paid to him, notwithstanding the fact that the evidences of title, to wit, the bills of lading, are in his hands, and have been so since March 1, 1886, the very day of the disaster. Biays v. Insurance Co., 7 Cranch, 415; Morean v. Insurance Co., I Wheat. 219.

¶80*786The plaintiff, failing to show an absolute total loss, is forced to contend that there was a constructive total loss of his cattle.

¶81Upon this point we submit:

¶82(1) the word “absolute” in our policy is used not only as including “actual,” but also as excluding “constructive.” It means, therefore, without privilege of abandonment. We are contending for the clear, ordinary, and obvious meaning of the word “absolute” in our policy of insurance.

¶83(2) In cases where the right exists to claim for a constructive total loss, there must first bean abandonment by the assured to the underwriters. But, where the insurance is against absolute total loss only, there is no necessity for nor right of abandonment. Burt v. Insurance Co., 78 N. Y. 400.

¶84(3) The object of an abandonment is to turn into a total loss that which otherwise would not be so, and an abandonment must be made seasonably, i. e., before any portion of the goods have arrived at their port of destination. Forles v. Insurance Co., 1 Gray, 371; Pierce v. Insurance Co., 14 Allen, 320, 322, per Gray, J.; Grade v. Insurance Co., 8 Johns. 183; Marcardier v. Insurance Co., 8 Cranch, 39; Saltus v. Insurance Co., 14 Johns. 138; Chadsey v. Guion, 97 N. Y. 333.

¶85(4) Even if this were a ease where there existed the right of abandonment, no abandonment as a fact has been made. As to what constitutes a legal abandonment, see.McArthur, Ins. pp. 145, 146, 147.

¶86The further contention of the plaintiff, as we understand it, is as follows:

¶87That when the insured cattle went into the sea they were an absolute total loss to the plaintiff, even though they swam ashore, or were towed ashore, and were afterwards sold, alive and well, in the market at Liverpool, the port of destination.

¶88Against this construction it is to be noticed that by the terms of the policy it is provided that “in all cases of loss by jettison the same shall be settled on the principles of general average only. ” Again, in the policy, the obligations resting upon the insured under the “sue, labor, and travel” clause would preclude the possibility of the assumption that when insured animals are wet they are drowned, or when landed thereafter alive and well they are dead. If the plaintiff failed to do what he was bound to do he cannot claim for a total loss, for the law is settled that the owner of a shipment cannot make the loss total by his own neglect. Irving v. Manning, 1 H. L. Cas. 287-306.

¶89The bills of lading are still in the hands of the plaintiff. He says he has never done anything about his cattle; never heard anything about them; never claimed anything from those in whose possession they were; nor claimed the proceeds from any one.

¶90The further contention of the plaintiff is that the defendants, either by their own acts, or by the acts of their duly-constituted agents, have exercised such control over the property of the plaintiff as, in effect, to assert their ownership of it, so as to dispossess him; that they have in law, at least, acknowledged an abandonment by the plaintiff to them, and a constructive total loss; or that there has been a recognition of an absolute total loss, and that it is too late for them to change their legal position, and that, consequently, they are liable under the policies. It is an elaborate assumption, but it is only an assumption, and rests only on such “stuff as dreams are made of.”

¶91If it be conceded that the salvage association did take possession of the plaintiff’s cattle, and there is no doubt it did, it only took possession of them as salvor, and there is no law of any country that makes a salvor the owner of the property saved, or a thief for saving. Salvors, at best, have only their lien for expenses. Ho one ever doubted that salvors should be encouraged. They are the special wards of courts of admiralty, and in high honor, and their *787possession of property is a legal and authorized possession, and the owner or consignee can always obtain his goods by paying salvage. It was the duty of the consignees, in this case as agents of the owner, so to take his cattle and pay the expenses, and, by neglecting to do so, the loss cannot be thrown upon the insurance companies.

¶92The consignees cannot plead ignorance of what was going on, for they were in close conference with the Liverpool Salvage Association, and acting with and for it, under written agreements not produced. All the evidence shows that the salvage association was as much the agent of the plaintiff’s consignees as of anybody.

¶93It is certain that the defendants had nothing to do with the sale of the cattle, nor did they ever receive any money from the sale of the cattle, or interfere with it in any way.

¶94Before Colt and Putnam, Circuit Judges, and Nelson, District Judge.