Statement of the Case. and about the defence, 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 an abandonment; to the charges whereof, the said assurers will contribute according to the rate and quantity of the sum herein insured." The "Benjamin Hale" sailed for Velasco, March 31, 1893, and on April 15 ran ashore on Bahama Banks, but, after throwing overboard two hundred reels of barbed wire, floated and proceeded. On the night of April 19 the schooner again ran ashore, on Bird Key, near Dry Tortugas, and largely filled with water. Wreckers came on board April 21. The master went to Key West, and from thence telegraphed the Washburn and Moen Company, April 24, that the vessel was ashore, and he thought the loss was total. April 24, 25 or 26 the agent of that company told the agent of the insurance company, in Boston, "what he knew in regard to the troubles, and said that he wished to abandon the cargo to the underwriters." April 29 a written notice of abandonment was given, which the insurance company explicitly declined to accept. The master returned at once with further assistance, reaching the wreck the morning of April 25, and the vessel was floated April 29, and finally taken to Key West, arriving May 4. The captain testified that "from the time the vessel went ashore until she came off they were taking the cargo out as they could so as to get her off. about one half of cargo was discharged on the reef, of which he thinks about thirteen hundred reels were dry." This was substantially all carried to Key West, where the unloading was completed May 10. Think Captain Hall made a memorandum at Key West as to the condition of the cargo when landed there. From this it appeared that out of 13,051 reels of barbed wire, shipped from Boston, 12,277 (or 12,625) were landed at Key West, of which 989 were perfectly dry, and 10,448 had received “hardly perceptible" damage. Of plain wire, 1102 bundles were shipped, and all landed at Key West, and 464 were stated to be nearly Statement of the Case. dry. Five reels of salamander wire and a wire rope were all landed and transhipped dry and unimpaired; also 243 kegs of staples out of 249; and 478 bundles of hay bands out of 1050. Libels for salvage were filed against vessel and cargo at Key West, and the schooner condemned and sold, but the cargo was released and the amount decreed in respect thereof paid by the insurance company. The goods were forwarded from Key West to Velasco on the schooner Cactus, where they were tendered to the Washburn and Moen Company, which refused to receive them. That company again abandoned, and the insurance company again declined to accept abandonment. At this time a very large part of the goods existed in specie, and a considerable part was practically uninjured. There were no facilities for handling and no market for barbed wire at Key West, but there were at Velasco, which was also but sixty miles by rail from Houston, the headquarters of the general agent of the manufacturing company in Texas. The goods were afterwards sold by order of court on the libel of the master of the Cactus for freight, demurrage and expenses, and realized $10,000. Plaintiff was not present and made no bid at the sale. As the cost of saving the cargo and bringing it to Key West, and expenses there, exceeded the sum realized at forced sale, and the freight to Velasco added some hundreds of dollars to that, plaintiff contended that the cost was more than the value at Key West, and at Velasco. In respect of the forwarding of the cargo from Key West to Velasco, the charter party was signed by Captain Hall as master of the Benjamin Hale. This was in Boston several days after Hall had left Key West, but there was evidence that he had previously authorized the agents of the vessel at Key West, and who paid for the discharge of the cargo there, to charter the "Cactus," and the second bill of lading was signed by one of them as attorney in fact for Captain Hall, and stated that the goods were shipped by him. The agent for the board of underwriters testified that he instructed the agent at Key West to see that a vessel was secured Statement of the Case. and the cargo properly shipped to Velasco according to the original bill of lading; that Hall authorized the "Cactus" to be chartered; and that he always insisted that Hall should forward the cargo; while Hall said that he received a request from defendant's agent to so forward. The Circuit Court ruled that the defendant was not liable for a constructive total loss; that the transhipment of the cargo at Key West, though made by the underwriters as he thought it was, did not, under the circumstances, make them liable for the property as underwriters; and that “inasmuch as a portion of this cargo-a considerable portion, including the staples, and a very large percentage of the fencing wire- was at Key West in a condition to be transhipped, and did in fact arrive at Velasco in specie, and suitable for the purposes for which it was intended, although not so suitable as it would have been if it had not been submerged in the sea," there was no absolute total loss of the whole. It was agreed that there was an actual total loss of parts of the cargo to the amount of $2500; and that, under the views expressed by the court, plaintiff was entitled to a finding that there was a constructive total loss. Accordingly a verdict was directed for $2500, and a special verdict "that there was a constructive total loss." Judgment was rendered in favor of plaintiff, and each party prosecuted a writ of error from the Circuit Court of Appeals. That court concurred in the rulings of the Circuit Court, but was of opinion that the cargo was forwarded from Key West to Velasco under authority of the captain of the Benjamin Hale. 50 U. S. App. 231. Judgment having been affirmed, the Washburn and Moen Manufacturing Company applied for and obtained a writ of certiorari from this court. Errors were relied on by petitioner, in substance, that the Circuit Court erred in not ruling that plaintiff was entitled to recover for a constructive total loss under the policy; and in not allowing the question whether there was an absolute total loss to go to the jury; or the question whether defendant had accepted plaintiff's abandonment of the cargo. Argument for Plaintiff. Mr. Eugene P. Carver for the Washburn and Moen Manufacturing Company. Mr. Edward E. Blodgett was on his brief. I. The plaintiff can recover for a constructive total loss under this policy. There are two rules as to what is a constructive total loss under a policy of marine insurance. (1) The English rule is that, in the case of a vessel, if the amount of repairs caused by perils insured against is more than her value, or in the case of cargo, if the cost of saving and forwarding the same amounts to more than the value of the same at the port of destination, then, if there is an abandonment seasonably made, there can be a recovery for a total loss. (2) The rule in the United States in the case of both vessel and cargo is that, if the damage by perils insured against is in excess of one half of the value, and an abandonment is seasonably made, there is a constructive total loss. This doctrine was first laid down in this form in Massachusetts in 1810 by Parsons, C. J., in Wood v. Lincoln & Kennebeck Ins. Co., 6 Mass. 479. It is true that in an early case in regard to the English rule, Cocking v. Fraser, 4 Doug. 295, Lord Mansfield said, "absolute destruction of the goods by the wreck of the ship" would amount to a total loss on articles insured "free of average," even at an intermediate port, but this case has been overruled in England. See 2 Arnold on Insurance, Perkins' ed. 1026. If, therefore, in the case at bar there were no restrictive clauses, there could be a recovery for a constructive total loss, as the abandonment was seasonably made. The law in the United States, by a long list of decisions relating to both vessel and cargo, has been settled in this regard. Under the usual form of policy the assured can recover for a constructive total loss of cargo, provided there has been an abandonment duly made, if the loss or injury sustained amounts to fifty per cent of the value fixed in the policy, or provided the property will not bring fifty per cent of such valuation in case of cargo. Kettell v. Alliance Ins. Co., 10 Gray, 144; Del Argument for Plaintiff. aware Ins. Co. v. Winter, 38 Penn. St. 176; Patapsco Ins. Co. v. Southgate, 5 Pet. 604: Moses v. Columbian Ins. Co., 6 Johns. 219. In determining the damage or injury to the property, the cost of saving the property, or raising it, if submerged, and bringing into port, will be taken as a part of the damage or injury in order to make up the necessary fifty per cent. Ellicott v. The Alliance Ins. Co., 14 Gray, 318; Wallace v. Thames & Mersey Ins. Co., 22 Fed. Rep. 66 (by Mr. Justice Matthews, late of U.S. Supreme Court); Tudor v. New England Mutual Marine Ins. Co., 12 Cush. 554. From an examination of the cases it is clear that the cases in the Supreme Court of Massachusetts and in the Supreme Court of the United States are not in conflict, and that the rule established by both of these courts can be thus briefly stated: That if the goods are insured "free of particular average," "free of partial loss," "against total loss only," or "warranted free from average unless general," there can be a recovery for a constructive total loss, provided there is a seasonable abandonment and a loss by perils insured against amounting to more than fifty per cent of the valuation of the goods insured; that in case no abandonment is made until after the goods have arrived at the port of destination, the abandonment is not seasonably made, and the plaintiff cannot recover; that in the case of common memorandum articles, perishable in their own nature, there can be no recovery for deterioration of the articles at a port of call, or by mere delay in the voyage is all that the cases in the Supreme Court of the United States decide, and the court, in its decisions, by express language clearly distinguishes between articles perishable in their own nature and articles not so perishable. II. It was a question of fact for the jury as to whether on all the evidence the defendant company had not accepted the abandonment. It is true that the agent of the defendant company, on May 1, 1893, wrote a letter in which he declined to accept the abandonment. He uses, however, these words in addition, "I await protest for particulars, after receipt of which can judge better re |