to propel herself, it was competent for the insured to show that she was seaworthy to be towed to her home port.

Lack of Ordinary Care-Burden of Proof.-The insurer having alleged as a defense that the loss was occasioned by want of prudence and ordinary care, the burden of proving this is upon it.

Witness-Experts-Credibility.- Where the issue was the negligence of the master of the vessel, witnesses who are shown to have been seamen for twenty and thirty years are competent to give testimony as experts, and the weight to be given to their evidence is a question for the jury.

Evidence-Res Gestæ.-When it appeared that the tug had broken her shaft, and was taken in tow by another tug, statements made by the captain, after being taken in tow, can not be admitted in evidence unless shown to be part of the res gesta.

Same-Secondary-Proofs of Loss.-Where, after notice, the defendant failed to produce proofs of loss made by the insured, the plaintiff had the right to show the facts contained therein by secondary evidence.

Union Ins. Co. of Philad. v. Smith (U. S. S. C.), 8 Supreme Court Reporter (March 5, 1888), p. 534.

Policy-Construction-Permission to Trade in Certain Waters.— The policy was issued on a vessel "to be employed in the coasting trade on the United States Atlantic coast; permitted to use gulf ports not west of New Orleans," in which the assured warranted not to use ports and places in Texas, except Galveston, nor foreign ports and places in the Gulf of Mexico. The vessel was lost in the Gulf of Mexico, west of New Orleans, while on a voyage from Maine to Morgan City, Louisiana, a place west of New Orleans. Held, (1) that the meaning of the policy was that the vessel was to be employed on the United States Atlantic coast, which was the coast of the Atlantic Ocean, and not the Gulf of Mexico; and (2) that the permission to use gulf ports not west of New Orleans did not extend the coasting trade through the gulf, and the vessel was, therefore, upon a voyage not permitted by the terms of the policy, and the assured could not recover.

New Haven Steam Saw-Mill Co. v. Security Ins. Co. (U. S. Dis. C.), 33 Philadelphia Intelligencer (Feb. 1, 1888), p. 2.

Construction of Policy.—The policy provided: "And it is agreed that the insured shall not have the right to claim for total loss on account of the estimated amount of repairs exceeding the valuation of the vessel, nor under any circumstances to abandon, provided the vessel remains in specie, unless the amount which the insurer would be liable to pay (exclusive of all general average charges, and charges for getting off or raising and bringing into port a vessel stranded or submerged, and of all repairs consequent upon decay), under an adjustment, as of partial

loss, after making all the usual deductions, including the proportion, or whole, of cost of remetalling, docking and caulking, as provided for in this policy, shall exceed half the value of said vessel, as declared in this policy; and the highest valuation under which the vessel is insured, in any policy, shall be the basis for ascertaining a technical total loss of freight under this policy." Held, not to extend beyond the case where the claim for a total loss of freight is based upon the loss of the ship, and that it has no application where the claim is based upon the loss of the cargo, since other parts of the policy regulated claims for freight based upon loss of specific articles of cargo.

Same.-A loss of more than half the cargo in specie (it being homogeneous) by the perils insured against. Held, to authorize the insured to abandon the freight and claim for a total loss thereof.

Boardman v. Boston Marine Ins. Co. (Mass. S. J. C.), 6 New England Reporter (May 8, 1888), p. 88.

Total Loss.-To constitute a total loss, within the meaning of a policy of marine insurance, it is not necessary that a ship should be actually annihilated or destroyed. If it is lost to the owner by an adverse, valid and legal transfer of his right of property and possession to a purchaser by a sale under a decree of a court of competent jurisdiction in consequence of a peril insured against, it is as much a total loss as if it had been totally annihilated.

Same-Sale for Salvage.-Where a ship had been deserted by her master and crew, having been previously placed by them in a sinking condition, but had been subsequently taken possession of by salvors, towed into port, and there sold, together with the cargo, by order of the admiralty court, for less than the actual cost of the salvage services, held, in action upon policies on the ship and freight, that, assuming possession by salvors of a derelict vessel to be only constructive total loss, the subsequent sale constituted an actual total loss of both ship and cargo. Cossman v. West; Same v. British America Assur. Co. (Eng. Privy Council Appeals), 13 Law Reports (Part 1-May 1, 1888), p. 160.

Policy-Transfer of Interest.—The policy provided that it should be void for any assignment, transfer or termination of interest, by sale or otherwise, without consent. B., without consent, transferred part of his interest to A. by bill of sale, which, though absolute on its face, was given as security. Held, that the condition referred to an absolute assignment, and did not prohibit a transfer by way of mortgage.

Pritchard v. Merchants' Marine Ins. Co. (New Brunswick S. C.), 8 Canadian Law Times (June, 1888), p. 258.

California Code-"Perils of the Sea"-Explosion.-Where a vessel becomes unmanageable by the explosion of her boiler, and within a few minutes thereafter sinks, such loss is not within the meaning of "perils of the sea," as defined in Civil Code Cal., § 2199, which declares

that "perils of the sea are from storms and waves; rocks, shoals and rapids, other obstacles, though of human origin; change of climate; the confinement necessary at sea, and all other dangers peculiar to the sea;" nor as understood in the law of marine insurance generally.

Policy-Custom-Pleading.-In an action on a policy which covered "all other losses" not excluded by the policy to which insurers are liable by the rules and customs of insurance in San Francisco, the complaint failed to allege that by such custom of San Francisco insurers were liable for losses caused as was the loss sued for. Held, that the plaintiff can not, on that clause of the policy, recover.

Miller v. California Ins. Co. (Cal. S. C.), 3 Railway and Corporation Law Journal (June 30, 1888), p. 614.

Policy" Actual Total Loss."-There may be an "actual total loss" of a vessel within the meaning of that term in a marine insurance policy, although the vessel remains in specie, where it is, notwithstanding, irretrievably lost to the owner.

Same-Same.-Where the underwriter permits a vessel insured against actual total loss only to be sold upon a lien created by himself after he had taken possession of the vessel after a loss, under authority conveyed by the policy, whereby the title to the vessel is irretrievably lost to the owner without fault on his part, the owner can recover on the policy as for a total loss, whatever may have been the original character of the loss.

Action-Mortgagor and Mortgagee-Party Plaintiff.-The owner of an insured vessel on which there is a mortgage may recover the entire insurance money in an action by him against the underwriter, in which the mortgagee is not joined, when such non-joinder has been waived by a failure to object thereto either by demurrer or answer, and when the time limit of the mortgage has expired; in such case the owner will hold the proceeds of the policy for the benefit of the mortgagee as the latter's equitable title thereto may appear.

Carr v. Providence Washington Ins. Co. et al. (N. Y. C. A.), 12 Central Reporter (July 12, 1888), p. 650; 17 Insurance Law Journal (August, 1888), p. 601.

Action-Burden of Proof.-In an action on a marine insurance contract, predicated on an open marine policy, proved and admitted to have existed between the insured and the company, the burden is on the company to prove its contention that the open marine policy had been canceled and rescinded before the date of the contract of insurance sued

on.

Same-Evidence--Parol Testimony. - Parol testimony is incom petent and inadmissible to vary, alter, or modify the stipulations of a written contract of insurance, and hence it will not be admitted to support the contention of the insurer that the insurance was for total loss only, if the instrument evidences a different agreement.

Damaged Cargo--Sale.-A sale at public auction, in accordance with the law of a sea-port at which a disabled vessel puts in after a storm or after distress, is the best mode of disposing of a cargo shown to be too seriously damaged for reshipment.

Total Loss-Notice to Company.--The insured can not recover for a total loss in the absence of proof of abandonment, and of notice of the same to the company.

Gomila & Co. v. Hibernia Ins. Co. (La. S. C.), 17 Insurance Law Journal (August, 1888), p. 620.

Policy-Risk-Construction.-Where goods while on the wharf of a steamship company, awaiting shipment on one of the vessels of the company, are burned, the owners of the goods can not recover for the loss upon a policy of insurance wherein the goods insured, or to be insured, are referred to as "goods laden or to be laden on board the good ship," when the policy contains the further expression, "beginning the adventure upon said goods and merchandise from and immediately following the lading thereof on board said ship." This last expression will control as to the time the risk began.

Cottam et al. v. Mechanics' & Traders' Ins. Co. (La. S. C.), 4 Southern Reporter (July 25, 1888), p. 510.

Concealment of Loss-Principal and Agent.—The plaintiffs, underwriters in Glasgow, employed there a firm of insurance brokers to reinsure a ship which was overdue. The brokers received information tending to show that the ship, as was the fact, was lost. Without communicating this information to the plaintiffs, they telegraphed in the plaintify' name to their own London agents, stating the rate of insurance premium which the plaintiffs were prepared to pay. Communications followed between the plaintiffs and the London agents, and the London agents, through a firm of London insurance brokers, effected a policy of re-insurance at a higher rate of premium, which policy was underwritten by the defendant. Held, that the policy was void on the ground of concealment of material facts by the agents of the assured.

Blackburn et al. v. Haslam (Eng. Q. B.), The Law Reports, Part 7 (July 2, 1888), p. 144.

MISCELLANEOUS.

Statute-Action not to be Commenced Within Ninety DaysWaiver. Where the statutes (Laws of Iowa, 1880, ch. 211) forbid suit to be begun on a policy within ninety days after notice of loss has been given, refusal of the company to pay, and notice that it will stand suit, will not enable a claimant to sue until the expiration of the statutory time.

Quinn v. Capital Ins. Co. (Iowa S. C.), 16 Insuranco Law Journal, (Nov., 1887), p. 980.

Insurance by Creditor-Loss-Subrogation.-The agents of the owners of a vessel advanced, at the owners' request and for their benefit, the money necessary to enable the vessel to make a voyage, and took out a policy of insurance to secure the amount advanced. The insurance was taken at defendant's request, at their cost. The vessel was lost, and the insurance money collected by the agents, and plaintiff took an assignment of the claim. Held, that the receipt of the money extinguished and satisfied the debt, and that neither under an assignment to the insurance company, nor under the doctrine of subrogation, could the company maintain an action against the owners to recover the amount from them.

Phenix Ins. Co. v. Chadbourne, Adm'r, et al. (U. S. C. C.), 16 Insurance Law Jual (Oct., 1887), p. 894.

Storage--Insurance--Custom--Liability for Premium.--The defendant stored certain goods in plaintiffs' warehouse. The defense is that the place where the plaintiff stored the goods is a fiber warehousethat is, a place where fibrous goods are stored-and that as a consequence defendant was put to an extra expense of $149.49 for extra premiums of insurance, and this sum he seeks to deduct from plaintiffs' claim for storage, labor, etc. There is no imputation of fraud or misrepresentation on the part of the plaintiffs, and no contract proved whereby they agreed to pay the extra premiums. The defense bases his claim on an alleged usage of the trade by which warehousemen who put sugar alongside of fibrous goods allow from their bill for storage the charge for extra insurance. Held, the contract being plain and unambiguous, and it not being shown that plaintiffs were aware of the alleged usage, the demand of defendant should not be allowed.

Woodruff et al. v. Acosta (N. Y. City Ct.), 6 Court Journal (Nov. 15, 1887), p. 257.

Foreign Company-Penal Statute Against Adjusting Loss-Validity.-Code of Mississippi, 22 1073-1081, provides certain duties to be performed by foreign insurance companies doing business in the state. Sections 1085-1088 impose a penalty on any one adjusting a loss for any company not having complied with the law, and that such person shall