labor and materials (exclusive of salvage or general average expenses and costs of funds), shall exceed half the amount hereby insured; and when the vessel is in a port or place where she can lie in safety she shall in no case be sold for or on account of the insurers, until the estimated cost of repairs shall have been communicated to them and their consent to the sale obtained. And, in case of the total loss of the vessel with salvage, the amount allowed out of the salvage to the officers and crew for wages earned or services rendered previously to the loss shall be considered as so much of the salvage applied to the use of the shipowners, even though the same should be allowed or paid under the name of salvage, and not as wages, and shall accordingly be deducted in adjusting a loss.

*

Among the rules for adjustment of marine losses under the San Francisco policy, indorsed upon the back of the policy, in this case are the following: "Rule 6. Surveys. The insurers shall not be obliged to accept any adjustment on a vessel based upon a survey which omits to discriminate between the repairs attributable only to the perils insured against and such repairs as are due only to wear and tear, or to the original defects, natural decay, or depreciation of the vessel. Rule 7. Bill for Repairs. When bills for repairs are presented which include items indifferently specified, chargeable partly to owners and partly to underwriters, and having no reference to discriminations in the survey, the adjuster shall require the claimant or master to separate the charges in accordance with the survey. Failing wherein, the adjuster shall refer the bill back to the maker thereof, with a request to separate the items so as to correspond with the survey. Failing in both, it shall be the custom to charge the whole of the unspecified items to the 'Owners' column."

There are eight assignments of error: (1) The court erred in overruling the objection of the plaintiffs to the questions propounded to the witness John P. Jacobson, manager, by the defendant's counsel on cross-examination, which questions and answers are as follows: "Q. When you met her (the vessel) down in Honolulu before she started out on the voyage from Honolulu to Seattle, she got into some business difficulty, did she not? A. Yes. Q. Did you, together with the master, on behalf of Mr. Soelberg, give any security for the money or bonds that were necessary to be raised down there? A. I gave a bottomry bond on the boat. Q. After the vessel had put into Hilo, where did she go next? A. She went from there to Honolulu. Q. While you were at Honolulu was there any action taken by the crew with respect to the collection of their wages? A. I believe there was. Q. What was that? A. I think they filed a libel on the vessel." (2) And in overruling the objection of the plaintiffs to the introduction by the defendant upon cross-examination of Walter S. Milnor, master of said ship, of defendant's Exhibit 1 in evidence, said exhibit being known as or called the "Bottomry Bond." (3) The court erred in overruling the objection of plaintiffs to the question propounded to said master, Capt. Milnor, upon crossexamination, and in admitting the evidence of said Milnor on cross-examination, the full substance of which said evidence is as follows: "That when said master finally left the city of Columbia, in Honolulu, about the 12th of December, 1898, there was due the crew of said ship at said time the sum of about $10,000." (4) In overruling the objection of plaintiff and in admitting evidence of said Milnor in cross-examination, as follows: "Q. I am only asking for liens at the time you left Honolulu with the ship for Seattle. A. The crew's wages were not then due, sir. There was nothing Q. There were unpaid wages, were there not, for the voyage down?

I want the amount that was earned. A. There was an amount earned, of course, that had not been paid when we left Honolulu for Seattle. Q. How much was it? To which witness then answered substantially that he could only estimate the amount by figuring the monthly wages of the crew; that he did not know whether these monthly wages amounted to $3,000 or $4,000 per month; and that they had not been paid." (5) That the court erred in denying the motion of plaintiff to strike out all the evidence of Capt. Milnor concerning wages earned and not paid at the time of the departure of the ship from Honolulu for Seattle. (6) The court erred in sustaining the objection of the defendant to the question propounded to the witness Capt.

Whitney, as follows: "Q. Considering the difference in value between new for old, what would you say as to the comparative cost of the repairs with her value as repaired?" (7) "The court erred in granting the motion of the defendant at the close of the plaintiff's case for a peremptory instruction to the jury to find a verdict for the defendant, and in so instructing the jury so as to find, and in receiving said verdict so found and signed by the jury." (8) The court erred in rendering the judgment herein.

Ballinger, Ronald & Battle, for plaintiffs in error.

Nathan H. Frank and J. M. Ashton, for defendant in error. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge, after making the foregoing statement, delivered the opinion of the court.

A marine insurance is an insurance against risks connected with navigation to which a ship, cargo, freight, or other insurable interest in such property may be exposed during a certain voyage or a fixed period of time. On September 1, 1898, the Western Assurance Company of Toronto, Canada, the defendant in error herein (which will be hereafter designated as the defendant), insured the steamer City of Columbia for the sum of $15,000, under a time policy for the year ending August 25, 1899. In this policy the steamer was valued at $75,000. The controlling provisions in the policy are set forth in the statement of facts. On behalf of the plaintiffs in error testimony was given at the trial tending to show that the value of the ship would not be worth repairing; that the value after repairing would not warrant the costs of repair. After plaintiffs had rested their case, counsel for defendant moved "for a peremptory instruction to the jury to find a verdict for the defendant on the ground that the plaintiffs failed to prove a constructive total loss, within the terms of the policy; and upon the further ground that the insured had not made, and could not make, an abandonment of said vessel; and, because of their own acts in creating liens upon said vessel, other parties have interests which the owner could not sacrifice by an abandonment,"-which motion was granted by the court, and the jury rendered verdict accordingly, upon which judgment was rendered in favor of defendant for its costs.

Did the court err in giving this instruction to the jury? This is the vital point involved in the assignments of error. Other questions are presented therein as to the alleged errors in the admission of certain testimony, allowance of motions, etc., which will be first considered.

The assignments of error 1 to 5, set forth in the statement of facts, are based upon the proposition that the defendant should not, on cross-examination, have been permitted to ask questions tending to show that there were liens upon the vessel which were a charge against the owners instead of the underwriters. We are of opinion. that the court did not err in allowing the questions to be answered.

If the burden was upon the plaintiffs to prove a loss from a cause and to an amount that would warrant a recovery, under the terms and provisions of the policy (a question which will be hereinafter dis

cussed), then the amount proven must necessarily be what remains after all proper deductions have been made; and hence it was proper, on cross-examination, to permit the defendant to show that the proper deductions were not being shown by the testimony of the witness in chief. If the existence of the bottomry bonds and liens on the vessels were at all material, the court did not err in allowing all the facts to be brought out with reference thereto, although the witness had not directly testified to some of the points in his examination in chief. In such cases the matter of the extent of the cross-examination is largely within the discretion of the court.

With reference to the sixth assignment, it will be seen that the question which was objected to made the value of the vessel as repaired the standard of the costs of repairs, which is not the proper standard. In any event, it is clearly apparent that in the admission or refusal of testimony the court committed no error that would justify a reversal of these cases.

The contention of the plaintiffs, as tersely stated in their brief, involves five points, as follows: (1) There was an actual loss proven, and abandonment was unnecessary; (2) in any event, a constructive total loss was proven; (3) the insured could and did abandon; (4) there was an acceptance of the abandonment; (5) plaintiffs are, under any circumstances, entitled to recover as for a partial loss, and the cases should have been submitted to the jury.

A loss may be total or partial. A total loss may be actual or constructive. There is an actual total loss when the subject-matter of the insurance is wholly destroyed or lost to the insured, or where there remains nothing of value to be abandoned to the insurer. There is a constructive total loss where the insured has the right to abandon.

In the present case the testimony shows that the ship was not destroyed in specie; that after arriving at her port of distress she steamed 200 miles, at an average rate of 10 knots an hour, from Hilo to Honolulu. Generally it may be said that if a ship can be taken to a port and repaired it has not ceased to be a ship; that she is not utterly lost merely because it may cost more than she is worth to repair her. But there are numerous cases which hold that the mere fact that an insured vessel exists in specie does not necessarily prevent the insured from claiming a total loss without abandonment. Insurance Co. v. Copelin, 9 Wall. 461, 19 L. Ed. 739; Northwestern Transp. Co. v. Continental Ins. Co. (C. C.) 24 Fed. 171, 175, and authorities there cited. Every case depends upon its own particular facts, and upon the terms and provisions of the particular policy of the insurance in question.

Plaintiffs claim that there was an actual total loss shown by the evidence that the ship was not worth the cost of the repairs, and in support of this claim make the following quotation from the instructions given by Judge Curtis to the jury in Bullard v. Insurance Co., 1 Curt. 148, Fed. Cas. No. 2,122:

"An abandonment is necessary only in case of a constructive total loss. If the loss be actually total, the insured may recover for it without an abandonment. It has been much discussed what constitutes a total loss

when the vessel remains in specie, and still retains the form of a vessel, in a place of safety. I shall not trouble you with the different views which have been taken of this question, but I will state the rules which I deem proper for your guidance. It is manifest that the form of a vessel may remain and be in a place of safety, and yet, for all useful purposes, the vessel may have ceased to exist. If she be absolutely incapable of repair, so as to be fitted to encounter the seas, then she has ceased to exist as a vessel, though great part of her materials may remain, and they may still be in the form of a vessel. So, though capable of being repaired and restored to the condition of a sea-going vessel, yet, if this can only be done at an expense exceeding the value of the vessel when repaired, it is an expense which no one is bound to incur, and therefore the case is the same as if absolutely irreparable; there being no practical difference, for this purpose, between what cannot be done at all and what no prudent person would undertake to do. And, therefore, if you should find, from the evidence in the case, that the injuries suffered by this brig from perils of the sea were so great that they could not be repaired so as to make her a seaworthy vessel, except at an expense exceeding her value when repaired, then this was a case of actual total loss, and no abandonment was necessary."

Here plaintiffs stop. Let us quote further:

"And here you will perceive it is necessary to have some standard to which to refer in fixing the value of the vessel when repaired. The parties have agreed in the policy on the value of the vessel. They have fixed it at $3,000. Is this sum to be taken as her value when repaired, or are you to inquire into what would have been her actual value at Key West, in case she had been repaired? This is a question of no small difficulty, owing to the particular terms of this policy. The general rule, as settled by the supreme court of the United States, would require you to ascertain what the value of the brig would have been if repaired, and the agreed valuation, so far from being conclusive, would not usually afford any considerable aid in arriving at this result. But I find great difficulty in holding that rule applicable to this policy, which contains a clause, "That the insured shall not have the right to abandon the vessel for the amount of damage merely, unless the amount which the insurers would be liable to pay, under an adjustment as of a partial loss, shall exceed half the amount insured;' and, further, 'In the adjustment of claims for repairs in the vessel, whether in the nature of a partial loss or general average, there shall first be a deduction of one-third, new for old, from the cost of labor and materials required in making the repairs.'"

It will thus be seen that the judge instructed the jury as to the distinctions which existed in different kinds of policies. The entire charge of the court clearly shows that the fact that when the vessel was repaired it would not be worth the cost of the repairs did not prove a total loss within the terms of the policy. The jury found a verdict for a partial loss only. Now, in that case the cost of repair to the brig was ascertained and testified to; hence the case did not, as here, rest solely upon the proposition that when repaired the brig would not be worth the cost of repairs. The case was therefore properly submitted to the jury.

It is important that in the discussion of the principles invoked we should, as far as possible, confine ourselves to the particular facts of the case in hand, and not depart therefrom, except, perhaps, for the purpose of illustrating the different conditions which create the distinctions existing in the various cases upon the same general subject. Parties must be governed by the terms of the contract which they have entered into, and are not bound by the rules which apply only to other and different kinds of contracts.

It seems to us unnecessary to review the cases of Insurance Co. v.

Southgate, 5 Pet. 604, 619, 8 L. Ed. 243, Bradlie v. Insurance Co., 12 Pet. 378, 9 L. Ed. 1123, and the many other authorities cited, which plaintiffs claim establish the principle that if the vessel cannot be repaired without an expenditure of money to an amount exceeding one-half its value at the place of accident, after such repairs, then such damage constitutes a constructive total loss, and that the valuation in the policy is not an ingredient to be considered. The rule therein stated was recognized by Judge Curtis in Bullard v. Insurance Co., supra, and announced by Judge Story in Peele v. Insurance Co., 3 Mason, 27, Fed. Cas. No. 10,905. For comments on this case, see 2 Phil. Ins. 264, note 5.

In Hughes, Adm. § 38, the author, after stating the American rule as to the right of abandonment, and citing Bradlie v. Insurance Co., supra, and other authorities, said:

"In consequence of these decisions, it has become common to provide in the policy itself that the right of abandonment shall not exist unless the cost of repairs exceeds one-half the agreed valuation."

In 2 Phil. Ins. § 1539, the author says:

"In the jurisprudence of the United States it is assumed in many cases that the rule of constructive total loss by damage over fifty per cent., where there is no provision to the contrary in the policy, refers to the value of the ship for sale at the time of the loss; in others, the rule is applied to the value in the policy."

And at section 1544 it is said that:

"The policies of some companies provide expressly for the deduction of a third for new in an adjustment as for a constructive total loss by damage to the ship, and also that such a loss must exceed one-half of the value at which the vessel is insured."

Conceding that the points made in this case are in some respects. complicated, we are, nevertheless, of opinion that a reference to certain controlling principles, which are deemed applicable thereto, will be sufficient to dispose of the case without entering into a minute examination or review of the numerous authorities which range within the general principles discussed by counsel.

In order to entitle the plaintiffs to recover it is essential for them, by competent proof, to show a loss which comes within the terms of their policy of insurance. They must bring their case within the provisions of the contract for insurance. They are bound by the lawful agreements and stipulations therein contained, and must satisfactorily prove a loss. The burden is, of course, upon them to establish their right to recover. This general principle is supported by abundant authority. Marcardier v. Insurance Co., 8 Cranch, 39, 48, 3 L. Ed. 481; Heebner v. Insurance Co., 10 Gray, 131, 143, 69 Am. Dec. 308; Paddock v. Insurance Co., 104 Mass. 521, 534; Cory v. Insurance Co., 107 Mass. 140, 147, 9 Am. Rep. 14; Tanner v. Bennett, Ryan & M. 182.

In Paddock v. Insurance Co., supra, the court said:

"The defendants, by the terms of their policies, not being liable for a partial loss unless it amounted to five per cent., or the ship was stranded, the plaintiff has the burden of proving a loss from a cause and to an amount for which the defendants are liable. So, in the present cases, if