[1]*WASHBURN & MOEN MANUFACTURING COMPANY, Petitioner,

บ.

RELIANCE MARINE INSURANCE COMPANY (LIMITED).

(See 8. C. Reporter's ed. 1–19.)

1. A rider on the margin of a policy of marine Insurance stating: "Free of particular average, but liable for absolute total loss of a part if amounting to 5 per cent,"-is in part materia with a memorandum by which goods are "warranted by the assured free from average unless general," and qualifies the NOTE.-Upon the question of abandonment generally-see notes to Mayo v. India Mut. Ins. Co. (Mass.) 9 L. R. A. 881; Bradlie v. Maryland Ins. Co. 9 L. ed. U. S. 1123.

As to what is a total los8-see note to Great Western Ins. Co. v. Fogarty, 22 L. ed. U. S. 216. On constructive total loss of memorandum articles-see note to Morean v. United States Ins. Co. 4 L. ed. U. S. 75.

For a collection of cases on marine insurance see note to London Assurance v. Companhia De Moagens Do Barreiro, 42 L. ed. U. S. 113.

As to when United States courts do not fol low state decisions-see note to United States e rel. Buts v. Muscatine, 19 L. ed. U. S. 490.

memorandum so that, instead of limiting the liability to an actual total loss, it permits recovery for an actual total loss of a part. 2. The construction of a policy of marine insurance, depending on questions of general commercial law, is a matter on which courts of the United States are at liberty to exercise their own judgment, and are not bound to accept the decisions of the courts of the state in which the contract was made.

8.

4.

The general rule that a damage exceeding 50 per cent justifies abandonment and recovery on a marine policy as for a constructive total loss does not apply to memorandum articles in respect of which the exception of particular average excludes a constructive total loss, though a rider extends the insurance to an actual total loss of a part.

The jury cannot be permitted to pass on the question of actual total loss on a marine policy, when a large part of the goods reach their destination in specie, and a substantial part of them are wholly uninjured.

I. Introduction.

The right of the assured in a policy of marine Insurance to abandon the property insured to the insurer as for a total loss is absolute when Justified by the circumstances, and no acceptance by the insurer is essential to validate the It is only where an offer to abandonment. abandon has been made under circumstances which did not warrant it, or which at least raise a doubt as to the existence of the right to abandon, that the question of the insurer's acceptance becomes important. In such cases a determination of the question in the affirmative will render unnecessary any inquiry as to the Justification for the abandonment, as it is well settled that an offered abandonment may

to abandonment, and, if accepted, must be with its consequences.

II. Silence or delay.

The underwriter is not bound to signify his acceptance within a reasonable time, nor can his silence per se be proof of his acceptance. If he says nothing and does nothing the proper conclusion is that he does not mean to accept.