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 I, 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 wiíl be hereinafter dis *29 •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: (i) 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:

Here plaintiffs stop. Let us quote further:

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. *31 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 2 Phil. Ins. § 1539, the author says:

And at section 1544 it is said that:

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:

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

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

We are of opinion that these authorities sustain the proposition that the evidence in this case, .which consists of mere proof that the cost of repair would exceed the value of the ship when repaired, does not, under the provisions of the policy, prove either an actual total loss or a constructive total loss, and does not prove a partial loss.

There is no rule or presumption of law which makes the seaworthiness of the vessel at the commencement of the voyage prima facie evidence that the subsequent repairs made during the voyage arose solely from some extraordinary peril. The underwriters are never liable for losses occasioned by the mere wear and tear of the ship during a voyage. Mr. Justice Story, in Donnell v. Insurance Co., 2 Sumn. 366 , Fed. Cas. No. 3,987, upon this question among other things said:

In 2 Phil. Ins. § 2141, the author said:

*33 The policy in the present case provides “that the insured shall not have the right to abandon the vessel, unless the amount which this company would be liable to pay under an adjustment-, as a partial loss, * * * shall exceed half the amount hereby insured.”

The contention of the plaintiffs is that (less certain stipulated deductions) a total damage to the vessel exceeding $7,500 in the one case and $2,500 in the other would render the insurance company liable to pay an excess of “one-half the amount hereby insured.” In their brief counsel say: “We do not have to prove any greater loss than $7,500 net as against the Western Assurance Company, and $2,500 net as against the Thames & Mersey Company. Proof of these amounts gives us the same right to abandon as proof of loss amounting to $75,000.”

.The contention of the defendant upon this point is that, in order to determine what the company “would be liable to pay under an adjustment as for a partial loss,” the total damage to the vessel (less the deductions) must 'be ascertained, and compared with the valuation as stated in the policy; that the company would be liable to pay such proportion of “the amount insured” as the total damage thus ascertained bears to that valuation, because, in order to create the liability to pay one-half of the amount insured, the total damage must equal one-half of the insured value.

The text-books say:

In Murray v. Insurance Co. (Sup.) 25 N. Y. Supp. 414, 416 , the court held that in determining the proportion which the cost of repairing a vessel must bear to its value, so as to justify its abandonment to the insurers as a constructive total loss, its value as stated in the policy controls.

But it is unnecessary to decide in.the present case whether the amount of the insurance of $15,000 in the one case, or $5,000 in the other, or $75,000, the value of the ship mentioned in the policy, constitute the basis of the computation, because no evidence appears in the record to give any basis whatever for the determination of the percentage of damage. The only evidence in this regard is confined solely to the proposition, heretofore stated, that the vessel when repaired would not be worth the cost of repairs, which is, as we have heretofore attempted to show, wholly insufficient. There must be some testimony upon which a jury could act in fixing the amount of damages. There being none, the court did not err in directing the jury to find a verdict for defendants.

It is next claimed by the plaintiffs that the defendant accepted the abandonment. The record shows that between November 23, 1898, and December 1, 1898, plaintiffs furnished defendant with notice of abandonment and proof of interest and loss, to which notice of aban *34 donment defendant on or about December I, 1898, responded in writing, declining to accept abandonment. It was admitted upon the trial that one Capt. Turner, early in December, came to Hilo, as the representative of the Western Assurance Company, to represent the interest of the insurers “under the sue and labor clauses, to do the best he could for all concerned.” Capt. Milnor, of the steamship company, testified, in answer to questions, as follows:

*35 It will be seen from the testimony that Capt. Turner and Capt. Milnor worked together for the benefit of all concerned. There are no facts in the case which show that Capt. Turner performed any act beyond the powers conferred upon him1 by the “sue and labor” clause. When the ship arrived at Honolulu she was libeled by the seamen for their wages, for which the ship was liable. This deprived the defendants of the power to possess themselves of the property, and made an acceptance of the abandonment impossible.

Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 179 U. S. 1, 18 , 21 Sup. Ct. 1, 45 L. Ed. 49 , was the case of an insurance on the cargo of a vessel which put into port at Key West, from which point the goods were forwarded to their destination, where they were tendered to the plaintiff, who refused to accept them, having abandoned them to the insurance company for a total loss. There were no facilities for handling and no market for the goods at Key West, but there were at the port of destination to which they were brought by the insurers. The goods were sold in an action for freight, demurrage, and expenses on the part of the vessel that had brought them forward from the port of distress. There was some controversy in the testimony as to who forwarded the goods,—whether it was by the direction of Capt. Hall, who was acting for the insurers, or by the defendant. The record shows that the agent for the board of underwriters testified that he instructed the agent at Key West to see that a vessel was secured 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 stated that he had received a request from defendant’s agent to so forward it. The supreme court in the case, among other things, said:

Under all the circumstances of this case there was not, in our opinion, anything to submit to the jury on the question of acceptance of abandonment.

The only point presented by plaintiffs in case No. 749 not covered by the views already expressed is the fact that the defendant demanded and accepted payment of one of the premium notes after the notice of abandonment and notice of loss, and that a further demand was subsequently made by the defendant for payment of the remaining premium notes. It is true that the receipt of a premium after a forfeiture occurs might waive the forfeiture; but in this case the question as to the right of plaintiffs to recover depended alone upon proofs of loss, and as no loss, within the terms of the policy, was proven, they cannot recover. The receipt of the premium did not relieve the plaintiffs from the necessity of proving’ such a loss.

The record shows that:

We are unable to see how the facts stated could in any manner affect the results reached by the court below."

The judgments in both cases are affirmed, with costs.