TOTAL LOSS. In Insurance. A total loss in marine insurance is either the absolute destruction of the insured subject by the direct action of the perils insured against, or a con etructive—sometimes called technical—total loss, in vvhich the assured is deprived of the pos. session of the sUbj ect, still subsisting in specie, or where there may be remnants of it or claims subsisting on account of it, and the assured, by the express terms or legal construction of the policy, has the right to recover its value from the underwriters, so far as, and at the rate at which, it is insured, on abandonment and assignment of the still subsisting sub ject or remnants or claims arising out of it. 2 Phillips, Ins. ch. /Eva.; 2 Johns. N. Y '286.
2. A constructive total loss may be by capture ; seizure by unlawful violence . as. piracy, 1 Phillips, lns. 0 1106 ; 2 Eng. L & Eq. 85 ; or damage to ship or goods over half of the value at the time and place of loss, 2 Phillips, Ins. 0 1608; 1 Curt. C. C. 148 ; 9 Cush. Mass. 415 ; 5 Den. N. Y. 342; 6 id. 282 ; 19 Ala. N. s. 108; 1 Johns. Cos. N. Y. 141 ; 6 Johns. N. Y. 219 ; or loss of the voyage, 2 Phillips, Ins. 00 1601, 1606, 1619 ; 4 Me. 431 ; 24 Miss. 461 ; 19 N. Y. 272; 1 Mart. La. 221; though the ship or goods may survive in specie, but so as not to be fit for use io the sanie character for the same service or purpose, 2 Phillips, Ins. 0 1605 ; 2
Caines, Cas. N. Y. 324 ; Valin tom. 2, tit. Ass. a. 46 ; or by jettison 2 Phillips, Ins. 00 1616, 1617 ; 1 Caines, N. Y. 196 ; or by ne cessity to sell on account of the action and effect of the peril insured against, 2 Phillips, Ins. 0 1623; 5 Gray, Mass. 154 ; 1 Cranch, 202 ; or by loss of insured freight consequent on the loss of cargo or ship. 2 Ins. 00 1642, 1645 ; 18 Johns. N. Y. 208.
3. There may be a claim for a total loss in addition to a partial loss. 2 Phillips, Ins. 0 1743 ; 17 How. 595. A total loss of the ship is not necessarily such of cargo, 2 Phil lips, Ins. i? 1601 et seq., 1622; 3 Binn. Penn. 287 ; nor is submersion necessarily a total loss, 2 Phillips, Ins. 0 1607; 7 East, 38 ; nor is temporary delay of the voyage. 2 Phil lips, Ins. 00 1618, 1619 ; 5 Barnew. & Ald. 5g7.
A constructive total loss, and an abandon ment thereupon of the ship, is a constructive total loss of freight; and a constructive total loss and abandonment of cargo has a like effect esti commissions or profits thereon ; and the validity of the abandonment will depend upon the actual facts at thd time of the aban donment, as the same may 'subsequently prove to have been. 2 Phillips, Ins. 0 1630 et seq.; 3 Johns. Cas. N. Y. 93.