#### The Globe Insurance Company *v.*Thomas Sherlock et al.

1. Where a steamboat, injured at or .near its home port by a peril insured against, remains in specie, the assured can not, without abandoning the vessel to the underwriter, claim indemnity as for a total loss, although the cost of repairing the vessel may exceed its value when repaired.

2. Where the jury has been misdirected in reference to a controlling question in the case, the judgment should be reversed and a new trial granted, although the weight of evidence may seem to support the verdict.

3. The rule that an insurer who has paid the loss resulting from a peril insured against, may be subrogated to all the claims which the insured may have against any person by whose negligence the injury was caused, does not apply in a case where the injury was caused by the negligence of the insured himself. But if the loss was caused by the willful or fraudulent act of the insured, the same may be set up as a defense to an action on the policy, whether the subject of the insurance has been abandoned to the insurer or not.

Error to the Superior Court of Cincinnati.

The action in the court below was brought by the defendants in error against the plaintiff in error, on a policy of insurance for $10,000, on the steamboat United States, against loss by fire only, for the period of one year from May 1, 1868. The value of the vessel, as estimated in the policy, was $140,000, and the plaintiff claimed as for a total loss by fire, on the 4th day of December, 1868, at a point on the Ohio river about fifty miles below Cincinnati.

Among the conditions of the policy, which illustrate more or less the questions determined in the case, are the following: 1. That no loss by special average should in any case be paid, unless the necessary repairs required solely *51by tbe disaster, exclusive of certain expenses should amount to five per cent, on the value of the vessel" as specified in the policy. 2. That the aggregate insurance on the vessel should not exceed the sum of $105,000. 8. That there should be “ no abandonment as for total loss on account of said vessel grounding or being otherwise detained, or in consequence of any loss or damage unless the injury sustained be equivalent to fifty per centum of the agreed value in the policy.” 4. That the liability of the insurer for all losses during the continuance of the policy should not, in the aggregate, exceed the sum therein insured. 5. *“In ease of any loss or misfortune*resulting from, any peril insured against, the party insured shall use every effort for the safeguard and recovery of said vessel, and if recovered to cause the same to be forthwith repaired; and in ease of neglect, or refusal on the part of the assured, *their*agent or assigns, to adopt prompt and efficient measures for the safeguard and recovery of said vessel, then the said insurers are hereby authorized to interpose and recover said vessel and cause the same to be repaired for account of the insured, to the charges of which the said insurance company will contribute in proportion as the sum herein insured bears to the agreed value in this policy; but in no case whatever shall the assured have the right to abandon until it shall be ascertained that the recovery and repairs of said vessel are impracticable, nor sell the wreck or any portion thereof without the consent of this company; and the acts of the assured or assurers, or of their joint or respective agents in preserving, securing, or saving the property insured, in case of danger or disaster, shall not be considered or held to be a waiver or acceptance of an abandonment.”

6. *“No deduction*will be made from claims for repairs to the hull or machinery of said vessel during the first two years from the date of her original custom-house survey; but from all claims for repairs to the cabin, or tackle, or apparel, or furniture, or for replacing the same, the assured shall deduct one-third, that being the agreed difference in value between new and old materials; and the same deduc*52tion shall be made from claims for repairs to the hull and machinery after the first two years as aforesaid.”

7. “ Whenever this company shall pay any loss the assured agrees to assign over to said company all right to recover satisfaction therefor from any other person or persons, town or other corporation, or the United States government, or to prosecute therefor at the charge and for account of the company if requested. And the said company shall be entitled to such proportion of said damages recovered as the amount insured by them bears to the valuation of said vessel.”

The fire, which caused the injury complained of, resulted from a collision with the steamboat America. The sharp bow of the America struck the United States, about three-feet from the stem, on the larboard side, cutting through her side and deck timbers diagonally some thirty feet. The United States was discovered immediately after the collision to be on fire, .above and on the deck. As the America backed away from the United States, leaving a gap in the side of the latter of the width of the bow of the former,, the injured boat immediately took water and sank to the-bottom of the river. The deck of the boat was thus submerged and protected, but the cabins were consumed to the water’s edge, within two or three feet of the deck. The testimony also shows, or tends to show, that the machinery of the United States was rendered useless by the fire, and also that the bracings of the hull were more or less injured.

The assured thereupon raised the hull of the vessel, and took it to Cincinnati, the borne port, at a cost of $5,942.50 *-f*and afterward upon it, slightly modified in length, constructed a single cabin (before the fire the United States had double cabins), and fully completed and equipped the same, at a cost, including all expenses incurred after the fire, of $108,548.97.

The verdict, upon which the judgmentbelow was rendered, was in favor of the plaintiffs for $9,558.82 ; thus showing that the damages were assessed by the jury as for a total *53loss — to wit, one-fourteenth of the estimated value of the boat, after deducting its probable value after the fire, and the probable cost of repairing the hole made by the collision. If the damage had been assessed upon the principles of a partial loss, and deducting one-third old for new materia], the amount would have approximated one-half of the sum found by the verdict.

On the trial below, it was made to appear that the steamboat America, which collided with the United States, was also owned and navigated by the assured; and it was claimed by the defendant (testimony having been offered tending to prove the same), that the collision was caused by the carelessness of the officers and crew of the America.

All the testimony, the charge of the court, and the requests to charge that were refused, are set out in a bill of exceptions.

The principal errors assigned are: 1. That the . verdict was contrary to the evidence ; *2.*That the court erred in the charge to the jury.

*The Germania Insurance Company*v. *Thomas Sherlock et al.,*reported at page 33 *supra,*was argued and considered by the court in connection with this case, and in so far. as the questions in the two cases were identical, they have been disposed of in that case, to which reference may be made.

*Jacob D. Cox*and *John F. Follett,*for plaintiffs in error:

On the questions in this case similar to those in the case of *Germania Ins. Co.*v. *Sherlock,*the court is referred to the argument in that case.

I. The court erred in charging that “ if the jury should find that this steamboat did remain *in specie,*but was so badly damaged by fire that to repair that damage would cost more than she would be worth when repaired, both as to the damage by fire and collision, the repairs of the damage by fire must be considered impracticable, and the losa actually total without abandonment.”

*54As a criterion for determining when the boat would not be worth repair, the court, in the same connection, said it would happen when a prudent uninsured owner would not attempt to repair or rebuild.

The discussion of the correctness of this charge necessitates some general examination of the doctrine of total losses in marine insurance, and a discrimination between actual and constructive total losses.

1. For what is an actual total loss, see 3 Kent’s Com. 318; Arnould on Ins. 1001; Benecke on Mar. Ins. 336; *Murray*v. *Hatch,*6 Mass. 477; 2 Parson on Mar. Ins. 68 ; 2 Phillips on Mar. Ins. 225; *Sewall*v. *U. S. Ins. Co., 11*Pick. 90.

Common sense and common law are entirely in harmony, and an actual total loss means a real destruction of the thing insured, so that it is in no sense a subject of repair or restoration.

2. For what a constructive total loss is, and on the question of abandonment, see 3 Kent’s Com. 318; *Tunno*v. *Edwards,*12 East, 491; Arnould on Mar. Ins. 882, 912, 914, and authorities there cited; *Anderson*v. *Royal Ex. Co.,*7 East, 38; *Doyle*v. *Dallas,*1 Moody & Rob. 48; *Sewall*v. *U. S. Ins. Co., 11*Pick. 90; *Thomas*v. *Rockland Ins. Co.,*45 Maine, 116; 2 Phillips on Ins. 228, sec. 1494.

But not only is abandonment necessary to turn what would otherwise be a partial loss into a constructive total one, but even abandonment will not have this effect, unless the injury to the vessel is Sufficiently great to warrant it. The English rule is that the injury must be such that a prudent uninsured owner would not repair. Arnould on Ins. 933; *Benson*v. *Chapman,*6 Man. & G. 810; *Irving*v. *Manning,*1 H. of L. Cases, 817; *Granger*v. *Martin, 4*Best *&*Smith, 9; *Barker*v. *Janson,*L. R., 3 C. P. 303-305 ; *Tanner*v. *Bennett,*Ryan & Moody, 182; *Doyle*v. *Dallas,*1 Moody & Rob. 48; *Gardner*v. *Salvador,*Ib. 116; *Knight*v. *Faith,*15 Queen’s Bench, 649; *Potter*v. *Rankin,*5 Com. Pleas R. L. R., S. P. 356.

The American rule is that the injury must exceed half the value of the vessel. 2 Am. Leading Cases, 368, 3 ed.; *55*Smith*v. *Manuf. Ins. Co.,*7 Metcalf, 448; *Gordon*v. *Mass. Fire & M. Ins. Co., 2*Pick. 249; *Pierce*v. *Ocean Ins. Co.,*23 Pick. 337; *Am. Ins. Co.*v. *Francia,*9 Barr, 390; *Bradlie*v. *Maryland Ins. Co.,*12 Pet. 405.

The written contract in this case fixes arnle fully as stringent as the English rule.

Opposing counsel intimate that abandonment is not regarded as necessary of late as it was formerly, and cite an extract from Lord. Ellenborough, in *Mellish*v. *Andrews,*15 East, 13, quoted in note to 2 Phillips on M. Ins. 226, sec. 1491.

If the authorities we have already cited did not fully dispose of this, it would still be evident on examining the context in Phillips that the language was used rather to show that all marine losses were partial, if anything was saved worth abandoning, than for the purpose for which counsel quoted it. Phillips on Ins. 226; *Mitchell*v. *Edie,*1 Term, 608; *Goss*v. *Withers, 2*Burr. 683; *Deblois*v. *Ocean Ins.*Co., 16 Pick. 303; *Mellish*v. *Andrews,*15 East, 13; *Tunno*v. *Edwards,*12 East, 16.

To the foregoing principles it is only necessary to add that the loss recovered for, must be that alone which is directly caused by the perils insured against. *Dyer*v. *Piscataqua Ins. Co.,*53 Maine, 118.

How, then, did the court below avoid the effect of the doctrines we have cited ?

It was by the application, entirely erroneous as we think, of the doctrine contained in a class of cases in which the master of a vessel which has been badly injured far from home, and where no communication can be had with the owners or underwriters, has sold his vessel in a foreign port as not being worth repair. In such cases abandonment has been excused; the master has been held to act for all concerned; the loss has been treated as- one for which recovery could be had of the insurers as if total without abandonment, and the proceeds of the sale have been treated as salvage.

We call the particular attention of the Court to the nature *56of these cases of sales in foreign ports. Whatever may be the 'technical or metaphysical distinctions judges have drawn in them, the fundamental consideration in every case is, that the master of the ship being beyond reach of ■communication with home, and under the necessity of acting promptly, and also being *ex officio*agent for both insurer and insured, does in good faith the best he can for all concerned, and his acts so done are sanctioned. He finds the ship or cargo damaged beyond repair; as agent for the ■owners he abandons her; as agent for the underwriters he sells her, and the money brought home is treated as the proceeds of a sale by the underwriters after a formal abandonment. It is the form of abandonment that is excused, and the case is, in fact, one in which there is constructive total loss and constructive abandonment.

To avoid the rule that in constructive loss an abandonment is indispensable, courts have invented a metaphysical distinction between an actual total loss at home and one abroad; the latter being in some instances even less than would amount to a constructive total loss at home.

To bring this doctrine back from foreign parts, and apply it so as to give owners the right to keep the vessel and still recover as for total loss, depriving the underwriters of any opportunity to elect to take the vessel or repair her, is not only making it the vehicle of the most glaring fraud and injustice, but is to make the exception which has been recognized in peculiar cases happening far from home, completely to dominate and even overturn the original and ■settled rule to which the exception occurred.

A fair examination, however, of these cases of sale in foreign ports will show that the analysis we have given of them above is the correct one, and that they are in fact treated by the best authorities and in the most weighty precedents as cases of constructive and not actual total loss —of constructive abandonment with waiver or excuse of formal abandonment *ex necessitate rei,*and of constructive sale of the wreck by the underwriters, the master being the agent of all concerned. *Grainger*v. *Martin,*2 Best & *57Smith, 465; 4 Ib. 10; *Knight*v. *Faith,*15 Adolph. & E., N. S. 658.

These principles are all that we ask to have applied to this case. To justify neglect or failure of notice of abandonment, the owners must part with the property by sale, or the loss must be total in the sense of the destruction of the thing insured, so that it no longer remains in specie— and the destruction must be due to the perils insured against. *Roux*v. *Salvador,*8 New Cases, 266; *Potter*v. *Rankin,*5 C. L., L. R. S. 341; *Gardner*v. *Salvador, 1*M. & R. 116; *Farnworth*v. *Hyde,*34 L. J. 207; Arnould on Mar. Ins. 891; *Stewart*v. *Greenock Mar. Ins. Co.,*2 House of Lords Cases, 159; *Ralston*v. *Union Ins. Co.,*4 Binney, 386; *Am. Ins. Co.*v. *Francia,*9 Barr, 390; *Peters*v. *Phœnix Ins. Co.,*3 Serg. & Rawle, 25; *Fuller*v. *Kennebec Mutual Ins. Co., 31*Maine, 328; Arnould on Ins. 926.

The owner must take his election promptly to abandon or not, and can not lie by and speculate. 2 Am. L. C. 340 (3 ed.); *Humphreys*v. *The Union Ins. Co.,*3 Mason, 435; *Dickey*v. *New York Ins. Co.,*4 Cow. 222; 3 Wend. 658; 5 Cow. 63.

If the master of the ship actually repairs her, though at an expense beyond her value, the owners shall not abandon, nor recover for more than a partial loss. *A fortiori,*if the owners themselves repair and make no offer of abandonment. *Pierce*v. *Ocean Ins. Co.,*18 Pick. 83; 2 H. L. Cases, 696.

The doctrine of one-third allowance for difference of value between new and old material, in adjusting partial marine losses, is said by the court, in *Sewall*v. *U. S. Ins. Co.,*11 Pick. 96, to be “ inflexible, adopted for wise practical purposes, and will generally do justice.”

See also *Orrok*v. *Commonwealth Ins. Co.,*21 Pick. 456, 470, and *Deblois*v. *Ocean Ins. Co.,*16 Ib. 303-313.

II. As to the subrogation of the insurance company to the rights separate owners of the United States would have had against the owners of the America, see *Rogers*v. *Hosack's Ex’rs,*18 Wend. 331; *Comegys v. Vasse,*1 Pet. 213; *58Phillips on Ins., sec. *1711; Yeates*v. *Whyte,*4 Bingham N. C. 272.

*Lincoln, Smith, Warnock ft Stephens; Hoadly, Jackson ft Johnson,*and *S. § S. R. Matthews,*for defendants in error :

The points identical with this case and *Sherlock et al.*v, *Germania Ins. Co.,*have been fully argued in that ease, and are here referred to.

I. The right of subrogation when it exists, is simply this, and no more ; the right, after paying the loss, to have whatever right or security the assured has relating to the subject insured, and to stand in his shoes in relation to any remedies he may have. *Kernochan*v. N. *Y. B. Ins. Co.,*17 N. Y. 436, 441 ; *Mer. M. Ins. Co.*v. *Calebs,*20 N. Y. 176; *McCormack’s Adm’r*v. *Irwin,*35 Penn. St. 117 ; *Com. M. L. Ins. Co. N. Y.*v. *N. H. R. R. Co.,*25 Conn. 271; *Rockingham*v. *Boston,*39 Maine, 255 ; *Union Bank of Maryland*v. *Edwards,*1 Gill & J. 365; Dixon on Subrogation, 155, 157, 175, 177, 179; *Hoover*v. *Epler,*52 Penn. St. 523.

But the whole right of subrogation in insurance cases is much doubted of late. *Kernochan*v. *N. Y. B. Ins. Co.,*17 N. Y. 436; *Mosher’s Appeals,*56 Penn. St. 80. And is denied in two late cases: *King*v. *The State Mu. F. Ins. Co.,*7 Cush. 4; *Suffolk Ins. Co. et al.*v. *Boyden,*9 Allen, 125.

II. The case is one of total loss, with salvage, to be settled upon the agreed value, less the salvage, and not by the actual or estimated repair bill, less one-third new for old, much less the building bills of another and different boat, less one-third off.

The law is clearly settled in this country and in England that whenever the vessel is so injured by a peril insured against, that it would cost more to repair her than she is worth when repaired, and a prudent, uninsured owner would not repair, it is a case of a total loss.

The cases are numerous to this effect. Among them see the following. They are directly to the point, and fully establish it:

*59*Bullard et al.*v. *Roger Williams Ins. Co.,*1 Curt. 152-154;. *Phillips*v. *Nairue,*4 M. *&*G. 356-358; *Allen et al.*v. *Sagrne,*8 B. & C. 564; *Cambridge*v. *Anderton,*2 B. & C. 692; *Same*v. *Same,*1 C. & P. 214; *Portsmouth Ins. Co.*v. *Brazee,*16 Ohio, 87; *Roux*v. *Salvador,*3 Bing. N. C. 286; *Young*v. *Turing,*2 M. & G. 601; *Irving v. Manning,*6 M. G. & S. 419; *Same*v. *Same,*1 House L. Cas. 304, 306 ; *Chapman*v. *Benson,*5 M. G. & S. 361; *Same*v. *Same,*2 House L. Cas. 721; *Fleming*v. *Smith,*1 House L. Cas. 533-535; *Moss*v. *Smith,*9 M. G. & S. 102-104, 106, 109 ; *Adams*v. *Mackenzie,*13 C. B. (N. S.) 446 ; *Rosetto*v. *Gurney,*11 C. B. 187 (73 E. C. L.); *Knight*v. *Faith,*15 A. & E. 659 (69 E. C. L.); *Sewall*v. *U. S. Ins. Co.,*11 Pick. 94-96; *Smith*v. *Man. Ins. Co.,*7 Met. 453; *Farnsworth*v. *Hyde,*18 C. B. (N. S.) 857; *Same*v. *Same,*2 B. L. R. (C. P.) 226; *Grainger*v. *Martin,*2 B. & S. 467; *Brady*v. *N. W. Ins. Co.,*11 Mich. 448 ; 2 Parsons on Ins. 68, 69, 73, 74, 89-91; 2 Arnould on Ins. 1005-1007, 1014, 1015; *Grainger*v. *Martin,*2 B. & S. (Q. B.) 467, 468; *Coolidge*v. *The Glous. M. Ins. Co.,*15 Mass. 343; *Wallenstein*v. *The Columbia Ins. Co.,*44 N. Y. 217, 223 *Young*v. *Pacific M. Ins. Co.,*34 N. Y. Sup. C. 331; *Potter*v. *Rankin,*B. L. R., 5 C. B. 371; *Same*v. *Same,*B. L. R., 6 E. & I. App. 155; *Duffield*v. *Cin. Ins. Co.,*6 Ohio St. 205.

I. This rule does not depend upon a sale of the wreck.

It is true that in most of the above cases there was either' a sale or an abandonment; and it is claimed by the defense,, that without a sale or an abandonment, this rule would not hold.

1. As *to a sale.*The sale does not control this. On the contrary, it is held that the sale is not valid unless the case be one of total loss, without the sale. 2 Arnould on Insurance, 1014; *Roux*v. *Salvador,*3 Bing. N. C. 281; *Cambridge*v. *Anderton,*1 C. & P. 214; *Gordon*v. *Mass. F. & M. Ins. Co.,*2 Pick. 264; *Patapsco Ins. Co.*v. *Southgate,*5 Pet. 621; *Farnsworth*v. *Hyde,*18 C. B. (N. S.) 857 ; *Phillips*v. *Naire,*11 Jur. 455, 456; *Guardian*v. *Salvador,*1 Moody & Rob. 117.

And the cases do not depend upon the sale to make the' *60loss total. On the contrary, the cases are often embarrassed by questions as to the power of the master to sell. The sale, when allowed, is for salvage purposes, to prevent expense from eating up what is left, and to turn the salvage into money; and does not change the principle upon which the case is to be settled. 2 Arnould on Insurance, 889 new ed. 1014 old ed.; *Smith*v. *The Man. Ins. Co., 7*Met. 453 ; *Gardner*v. *Salvador,*1 Moody & Rob. 117. If a sale is made, there is then so much money to be deducted. If no sale is made, then the value of what is left is to be deducted. *Watson § Paul*v. *Ins. Co. N. A.,*1 Binn. 54*; De-Costa*v. *Newnham,*2 Term, 412; *Reed*v. *Sun Mut. Ins. Co., Brady*v. *Nor. West. Ins. Co.,*11 Mich. 445.

2. But in this case, by the terms of the policy a sale was impossible, for the policy forbids a sale, except by the consent of the insurer, and the defendants refused to consent to a sale.

II. An abandonment is not necessary to make the loss total. *Roux*v. *Salvador,*3 Bing. N. C. 281; *Cambridge*v. *Anderton,*2 B. & C. 692; *Farnsworth*v. *Hyde,*18 C. B. 856; Arnould on Ins., new ed. 892; *Mellish*v. *Andrews,*15 East, 15 ; *Chapman*v. Benson, 2 House L. 721.

An abandonment is ordinarily had for the reason that it at once entitles the insured to the full amount of the sum insured, and it frees him from any further responsibility of taking care of the salvage, and turns it over to the insurer. It also gives the underwriter an opportunity to treat the wreck as he may think best, acting, however, fairly to the insured, who still has an interest in it, where the vessel is not insured to the value. *Cincinnati Ins. Co.*v. *Duffield,*6 Ohio St. 204; *Knight*v. *Faith,*15 A. & E. (N. S.) 660; *Martin*v. *Crockett,*14 East, 466; *Smith*v. *Manhattan Ins. Co., 7*Met. 453; 2 Phillips on Ins., sec. 1497; *Potter*v. *Rankin,*B. L. R., 3 C. B. 568.

Instead of saying that the insured can not recover as for ■a total loss without abandonment, where there are remnants in salvage, the books simply say, in guarded language, that he can not recover the whole amount insured *61without abandonment. 2 Arnould on Ins. 1007, 1008; 2 Phillips on Ins., sec. 1497; *Smith*v. *Manhattan Ins. Co.,*7 Met. 453; *Watson*v. *Ins. Co. N. A.,*1 Binn. 54.

In *Mellish*v. *Andrews,*15 East, 15, Lord Ellenborough says that, as an abandonment is so common, an idea has-gone abroad that it is of much more force than it is in reality.

Under the English authorities, if it were not total, without the abandonment, the abandonment would not make it so. *Benson*v. *Chapman,*2 H. L. Cases, 721.

Under the law of this country, if the damage equals fifty per cent, of the value, it is a constructive total loss, and the-party may recover the whole amount insured by an abandonment.

III. The benefit of abandonment to the defendants in error is waived in this case.

We maintain that if an abandonment was necessary to make a total loss, and repairs were possible, yet if the underwriters refuse to recognize the case as one of *any*loss, or to have anything to do with the property, or even to advise about it, they can not insist upon an abandonment as a necessity for a total loss, if an abandonment would make it such. An abandonment must, in such a case, be deemed to be waived; just as by the established rule a refusal to pay the loss is a waiver of preliminary proof expressly provided for in the policy. See specially, upon this point, *N. & N. Y. T. Co.*v. *W. M. Ins. Co.,*34 Conn. 571, and authorities there cited ; *Graves*v. *The Wash. M. Ins. Co.,*12 Allen, 391; *O’Neil*v. *The Buffalo Fire Ins. Co.,*3 Comst. 122; *Taylor*v. *The M. F. Ins. Co.,*9 How. 390 ; *The Maryland Ins. Co.*v. *Bathurst,*5 Gill & Johns. 159; *McMaster*v. *West. Co. Ins. Co.,*25 Wend. 379.

In almost all policies there is a provision that the loss is not payable until sixty days after loss and proof thereof; yet it is held that if the company deny all right of recovery,, and all liability, that they waive the sixty days, and suit may be brought at once. *Nor. & N. Y. Tr. Co.*v. *W. Mas. Ins. Co.,*34 Conn. 571; *Same*v. *Same,*12 Wal. 204; *Co**62*lumbian Ins. Co.*v. *Callett,*12 Wheat. 892, 398 ; *Phillips v. The Pro. Ins. Co.,*14 Mo. 237; *Allegree*v. *The M. Ins. Co.,*6 Har. & Johns. 408.

IY. That the hull existed in specie does not change this rule.

But it is said that the boat existed in specie, and was capable of being repaired, though at an expense to exceed her value when repaired, and the court was requested to give a charge to the effect, that if such was the case, the plaintiff' could only recover for partial loss, and by a deduction of one-third off the bills, which would have been caused in impairs.

Although the damaged and almost worthless hull existed, yet in no fair sense did the boat exist in specie as a steamboat ; and to have given such a charge would have been an assertion by the court that there was evidence tending to prove it, and an error. *Fay*v. *Grimsteed,*10 Barb. 332; *Bain*v. *Wilson,*10 F. St. *17; Sewald*v. *United, States Ins. Co.,*11 Pick. 95; *Coolidge*v. *Glous. M. F. Ins. Co.,*15 Mass. 343 ; *Bullard*v. *Roger Williams Ins. Co.,*1 Curt. C. C. 152 ; *Adams*v. *McKenzie,*13 C. B. (N. S.) 446; 2 Parsons on Ins., 107: 2 Arnould on Ins. (new ed.) 883; *Peele*v. *Mar. Ins. Co.,*3 Mass. E. E. R. 65 ; *Young*v. *P. M. Ins. Co.,*34 N. Y. 331; *Wollenstein*v. *Columbian Ins. Co.,*44 N. Y. 222; *DePeyster*v. *The Sun M. Ins. Co.,*19 N. Y. 277.

V. The boat was not repaired, nor fit for repairs, but another boat was built. Repairs are not practicable when they would cost more than the boat would be worth when repaired. *Bullard*v. *Roger Williams Ins. Co.,*1 Curt. C. C. 152; *Coolidge*v. *Glous. M. F. Ins. Co.,*15 Mass. 343; *Smith*v. *Man. Ins. Co.,*7 Met. 453; *Brady*v. *N. W. Ins. Co.,*11 Mich. 448 ; 2 Parsons on Ins. 91; 11 Pick. 95.

The government treated the boat as a new one, and required a new measurement and new enrollment. A new enrollment is never taken out for repairs. 15 Mass. 343; 11 Pick. 95.

YI. The defendants in error did not elect to repair, and *63the authorities cited by counsel for plaintiff in error have no application to this case.

VII. The case was one to be settled as a total loss, with salvage, for other reasons.

The real significance of the question, whether the loss he total or partial, relates to the rule one-third new for old.

Outside of this rule, there is no difference between a total loss with salvage and a partial loss. *Smith*v. *Man. Ins. Co.,*7 Met. 453; *Watson*v. *Ins. Co.,*1 Binn. 54; 2 Phillips on Ins., sec. 1497, pp. 230, 231; *Roux*v. *Salvador,*3 Bing. (N. C.) 288.

VIII. The rule never applied to any but the vessel insured, when repaired.

The rule originated in reference to ships, whose sails, rigging, sheathing, and painting were injured, and made new, the new always beiug worth more than the old. To have a general rule, it was made applicable to the whole vessel, after the first voyage, for the reason that, ordinarily, the new is worth more than the old. It was based upon the idea that the thing insured was retained by or returned to the assured in a better condition than it was in at the time it was injured. *Fenwick*v. *Robeson,*3 C. & P. 324; *Peele*v. *Mer. Ins. Co.,*3 Wash. C. C. 74; *DaCosta*v. *Newerbaur,*2 Term, 74.

It was never applied to a case like this, where there were no repairs, but a new boat built. It would be inconsistent with the rule itself, and with the reasons upon which it was founded.

McIlvaine, J.

The plaintiff in error complains of the verdict and judgment below, for that the jury, in the assessment of the damages to the boat caused by fire, adopted the rule and measure which govern in cases of total loss.

If this were a mere question, whether the jury, upon the testimony in the case, were justified in finding that the disaster by fire, which overtook the vessel, resulted in an actual total loss, we would not disturb the verdict or judgment. And, on the other hand, the like might be said if *64the jury had found that the loss was only partial. We think that the question whether the loss was total or partial, was, upon the testimony as it appears in the record, a proper one to be left to the jury under instructions from the court.

This brings us directly to consider the rules of insurance law, by which total and partial losses are distinguished.. Upon what principle is it to be determined, when a peril insured against overtakes a vessel, whether the loss sustained is total or partial? This question, upon the authorities, is, by no means, of easy solution. Indeed, it can be-answered only in general terms, and by the application of general rules. It is well settled, however, that a total loss may be either actual or constructive.

An *actual total*loss is where the vessel ceases to exist *in specie;*becomes a “mere congeries of planks,” incapable of being repaired; or where, by the peril-insured against, it is placed beyond the control of the insured and beyond his power of recovery.

A *constructive total*loss is where the vessel remains in specie, and is susceptible of repairs or recovery, but at an expense, according to the rule of the English common law,, exceeding its value when restored; or, according to the terms of this policy, where “the injury is equivalent to fifty *per centum*of the agreed value in the policy;” and where the insured abandons the vessel to the underwriter:1 in such cases the insured is entitled to indemnity as for a total loss.

An exception to the rule, requiring abandonment, is found in cases where the loss occurs in foreign ports or seas, where it is impracticable to repair. In such cases the master may sell the vessel for the benefit of all concerned; and the insured may claim as for a total loss by accounting to the insurer for the amount realized on the sale. There are other exceptions to the rule, but it is sufficient now to say, that we have found no case in which the doctrine of constructive total loss, without abandonment, has been ad*65mitted, where the injured vessel remained *in specie*and was brought to its home port by the insured.

A well-marked distinction between an actual and a constructive total loss is, therefore, found in this: That in the former no abandonment is necessary, while in the latter it is essential, unless the case be brought within some exception to the rule requiring it.

A partial loss is where an injury results to the vessel from a peril insured against, but where the loss is neither actually or constructively total.

When the loss is total, the value of the vessel as estimated in the policy, constitutes the basis for the adjustment of damages. Where the loss is only partial and the vessel has been repaired, the cost of repairs, less one-third new for old material, is the measure of compensation.

In the view we have taken of this case, it is unnecessary to'determine the rule of damages in other cases of partial loss.

On the trial in the court below, the learned judge instructed the jury as follows :

> “ But the question which has been contested as the main point in this case is, whether the amount of this loss is to be ascertained by the rules applying to what is denominated a total loss, or by the rules applying to a partial loss-

> “A total loss may be actual or constructive. A constructive total loss is where the loss is not actually total, but is so great as to justify the insured in abandoning the subject of insurance or what remains of it to the insurers,, and claiming a total loss.

> “ It is usual for insured parties in cases of loss, whether actually or only constructively total by abandonment, to surrender what remains of the boat to the underwriters.

> “This is a convenient way of making certain what in many cases would otherwise be uncertain. The surrender by abandonment of the wreck or salvage is so convenient, and so generally adopted in such cases, that the question *66•of an actual total loss without an abandoment arises comparatively seldom.

> “In the present case there has been no abandonment or ■sale of the part saved from the boat, but it has been used in rebuilding a new boat or in repairing the old one, and one question, perhaps I ought to say the question for the jury to determine is, which of these two things has been done. Has a new boat been built or an old one repaired?

> “ As there was no abandonment of the property saved, no mere constructive total loss can be claimed. But, if there was an actual total loss, the recovery may be as far as a total loss without any abandonment, crediting the expenses with the value of what was saved.”

"With the above instructions we find no fault; but afterward the following instruction was given, to wit:

> “ Now, it is not necessary that I should detail the diffi■culties I have found in analyzing and comparing the authorities on this subject, or in the application of the principles of the decided cases to the evidence in the present case. I may, however, in general, remark that while I find no clecided case precisely like the present, in which the fact that the cost of repair would exceed the repaired value, has been held to entitle the insured to recover for a total loss without abandonment, it does appear to me that the principles of the decisions to which I have referred logically applied to the facts of this case, as the plaintiffs claim them to be, would make it a case of actual total loss. That is to ■say, if the jury should find that this steamboat did remain *in specie,*but was so badly damaged *by fire,*that to repair that damage would cost more than she would be worth when repaired, both as to the damage by fire and collision, the repairs of the damage by fire must be considered as impracticable, and the loss actually total without abandonment.”

Herein we think there is error. A loss not even con■strtíctively total is held to be actually total. In other words, a partial loss is held to be a total loss.'-

It may be, as a general rule, that the question, whether it *67be practicable or impracticable to repair a vessel which has been injured, but which remains in specie, is to be-determined by ascertaining whether or not the value of the vessel when repaired will equal the cost of repairing. The •solution of that question, however, does not draw the line ¡between cases of actual total loss, and cases of partial loss; but it does distinguish, under the rule of the English law, between cases of partial loss and those which, by abandonment, become total by construction. As we understand the rule, no case of actual total loss can arise, if the vessel remain *in specie;*that is, if it remain a vessel susceptible of being repaired, at any cost.

It is claimed, however, by the defendants in error, that the defendant below was not prejudiced by the instruction complained of; because, 1. The question whether the vessel was in fact repaired, or a new and different boat built, was fairly submitted to the jury. 2. That the United States did not remain *in specie.*8, The boat was not in fact repaired, or fit for repairs, but another boat was built. In ■answer, it is sufficient to say, that if the issues were not fairly submitted to the jury, this court is not authorized to look into the testimony to ascertain whether the weight of evidence was or was not in favor of the verdict. The de7 fendant was entitled to have the jury pass upon the issues under proper instructions from the court. It is true, the •question whether the boat had been repaired, or a new boat built, was left to the jury; but the court, in its subsequent instruction, made the question submitted immaterial. Suppose the jury had found that the boat remained in specie, and was in fact repaired, but at a cost greater than the value of the boat when repaired, still, under the instruction, it was a case of actual total loss. But counsel say, the boat did not remain *in specie.*That was a question of fact for the-jury; but even then, it was not, under the instruction, a controling question. Suppose the jury had found that the boat did in fact remain in specie, still, if the cost of repairing exceeded the value of the boat when repaired, the case, under the charge, was one of actual total loss. As *68we understand the charge complained of, it was in effect this : That in all cases of injury to a boat from a peril insured against, whether the vessel remain in specie or not, or' whether it be in fact repaired or not, the loss is actually total, without abandonment, if the cost of repairing exceeds the value of the vessel when repaired. It follows, therefore, that the jury may have arrived at their verdict, and assessed damages upon the principle of total loss, notwithstanding they also found that the vessel, after the fire, remained *in specie,*and that it was in fact repaired by the assured.

If the vessel remained *in specie,*and the owners elected to repair and did in fact repair the same, they can not, in our opinion, prevent the application of the rule of one-third off new for old material, by showingthatthe cost of making the repairs was more than the value of the vessel when repaired.

It is also claimed by plaintiff in error, that an abandonment was necessary in this case upon another principle, to-wit, to transfer to the insurer the claim of the assured against the owners of the steamboat America, for negligence of the officers and crew of the latter boat, in causing the injury insured against; so that if the owners of the two boats should turn out to be the same persons,the cross actions might be litigated in this suit.

It is undoubtedly true that an underwriter, upon payment of indemnity for loss, is subrogated to the rights of the assured against a stranger whose negligence caused the injury, and that an abandonment operates as a transfer of such rights. It is conceded in this case, however, that the assured were also the owners of the America, hence there was no right of action in the assured subject to the operation of the above rule.

■ Assuming, however, that the insured were accountable for the acts and conduct of the officers and crew of the America, it would then follow, that if the conduct of the latter whereby the United States was injured, was negligent, merely, the insurer had no right to complain, for the reason *69that mere negligence on the part of the insured does not affect the obligation of the insurer. Tf, however, the injury to the United States was caused by the willful wrong or fraudulent act of the officers and crew of the America, then such willful wrong or fraudulent act was available as matter of defense to an action on the policy, either with or without an abandoment to the insurer.

*Judgment reversed.*

Day, C.J., and Welch, White, and Rex, J.J., concurring.