Though there may be evidence to justify the sending of a waiver point to the jury, yet, if no request is made for such action, objection cannot afterwards be made that the matter was treated by the court as one of law. Martin v. Equitable Acc. Ass'n, 61 Hun, 467, 16 N. Y. Supp. 279; Van In the following cases other minor points as to instructions were con- Findings of fact upon which a verdict is based should contain finding of waiver of notice as required by the policy, and not evidence from which a waiver might or might not have been found (Germania Fire Ins. Co. v. Columbia Encaustic Tile Co., 11 Ind. App. 385, 39 N. E. 304). But a special finding that no proofs were served is not necessarily in conflict with a general verdict for plaintiff, since the proofs may have been waived (Phoenix Ins. Co. v. Rowe, 117 Ind. 202, 20 N. E. 122). In Western Home Ins. Co. v. Thorp, 48 Kan. 239, 28 Pac. 991, it was held that the Supreme Court could entertain no presumption of waiver on an appeal from a judgment on a verdict in favor of plaintiff, there being no allegation of waiver in the complaint, and the jury having found that there was no substantial compliance with the requirements of the policy as to proofs. No advantage can be taken of a failure to furnish notice of loss where the question is not raised either by demurrer, or by an answer setting out the default (Phoenix Ins. Co. v. Coomes, 14 Ky. Law Rep. 603, 20 S. W. 900). The Supreme Court of Illinois will not review the finding of the Appellate Court in the matter of waiver of notice or proofs of loss, the question being considered as one of fact, and therefore not reviewable in the Supreme Court. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, 18 N. E. 804, 9 Am. 17. NOTICE AND PROOFS OF MARINE LOSSES. (a) Notice of loss. (b) Necessity and sufficiency of proofs of loss. (c) Effect of proofs-Protest. (d) Estoppel and waiver as to proofs of loss. (e) Questions of practice. (a) Notice of loss. Owing to nature of the risk, it is obvious that the rules governing the production of notice and proofs of marine losses cannot be as strict in their requirements as those governing the notice and proof of fire losses. Knowledge of a marine loss may not come to the insured for months after the loss has happened. Indeed, the insured may never have actual knowledge of the loss. Thus, in Child v. Sun Mut. Ins. Co., 5 N. Y. Super. Ct. 26, the only knowledge possessed by the insured was that the vessel was overdue 15 months, and had not been heard from for 20 months. In the case of a lake policy, which provided that, in case of loss or damage to the cargo insured, the company should have "early notice of the same," and it was impossible to determine the nature and extent of the damage until the cargo was discharged, it was held that, though the cargo was discharged on Saturday, a notice given the following Monday or Tuesday was within the terms of the policy (Rodee v. Detroit Fire & Marine Ins. Co., 74 Hun, 146, 26 N. Y. Supp. 242). Generally, the notice of loss takes the form of preliminary proofs, and the sufficiency of the notice may be considered as a question of the sufficiency of the preliminary proofs hereafter discussed. In the case of an abandonment, the notice of abandonment is, of course, a notice of loss. Reference to the discussion of the sufficiency of the notice of abandonment should be made for further authorities on this phase of the question.1 (b) Necessity and sufficiency of proofs of loss. Marine policies do not contain a specific condition calling for proofs of loss in definite form. The condition is usually a general one, providing that the loss shall be payable within a specified period after furnishing proofs of loss. Under this clause it has been held that the furnishing of proofs is a condition precedent to the 1 See ante, p. 2952. bringing of an action on the policy (Allegre v. Maryland Ins. Co., 6 Har. & J. [Md.] 408, 14 Am. Dec. 289). In a comparatively recent case, where the policy insured a tug against liability for loss or damage due to collision, and provided that the insurer should not be liable unless the liability of the tug was established by suit, and that loss should be payable 60 days after proof of such loss or damage and of the amount thereof (Rogers v. Etna Ins. Co., 95 Fed. 103, 35 C. C. A. 396), it was held that the provisions must be construed together, so that proofs of loss need not be made until after a judicial determination of the liability of the vessel, the limitation beginning to run 60 days after such proofs were furnished. The proofs referred to in the condition are what are termed "preliminary proofs." It is not proof in the strictly legal or technical sense-proof sufficient to support an action on the policy-that is required. The clause is liberally construed to require only the best proof obtainable at the time, and it is sufficient if it furnishes reasonably accurate information to the insurer, so that he may form some estimate of his rights and obligations before he is obliged to pay the loss. Allegre v. Maryland Ins. Co., 6 Har. & J. (Md.) 408, 14 Am. Dec. 289; The proof need not be under oath (Munson v. New England Marine Ins. Co., 4 Mass. 88), or so authenticated as to be entitled to be read in evidence of the facts certified (Savage v. Corn Exchange Fire & Inland Nav. Ins. Co., 17 N. Y. Super. Ct. 1). The fact and cause of the loss is ordinarily properly and sufficiently proved by the protest. Allegre v. Maryland Ins. Co., 6 Har. & J. (Md.) 408, 14 Am. Dec. 289; That a protest, to be admissible as part of the proofs, need not be made within 24 hours after landing, is the doctrine of American Ins. Co. v. Francia, 9 Pa. 390. A survey also is a proper form of proof to be submitted as to the cause of the loss (Johnston v. Columbian Ins. Co., 7 Johns. [N. Y.] 315). And where it is properly ordered, even though not by a court of admiralty, the company must bear the expense (Potter v. Ocean Ins. Co., 19 Fed. Cas. 1173). Where the policy contains a "rotten clause," and there has been a survey, it becomes, indeed, an essential part of the proof, and must be either produced or accounted for (Haff v. Marine Ins. Co., 4 Johns. [N. Y.] 132, affirming Anth. N. P. 14). Where, however, the provision is that the insured must produce all the documentary evidence of loss in his possession, the mere fact that there has been a survey will not justify the presumption that the report thereof is in the possession of insured (Foster v. Jackson Marine Ins. Co., 1 Edm. Sel. Cas. [N. Y.] 290). Letters from the master have been regarded as sufficient preliminary proof of the capture and condemnation of the vessel. Lovering v. Mercantile Ins. Co., 12 Pick. (Mass.) 348; Lawrence v. Ocean Ins. Co., 11 Johns. (N. Y.) 241; Craig v. United Ins. Co., 6 Johns. (N. Y.) 226, 5 Am. Dec. 222. So, also, the affidavit of the agent, who was also one of the owners, has been held sufficient preliminary proof of the fact that the vessel was overdue and had not been heard from for 20 months (Child v. Sun Mut. Ins. Co., 5 N. Y. Super. Ct. 26). Proof of interest may be made by the part owner and agent in whose name the policy was taken out (Child v. Sun Mut. Ins. Co., 5 N. Y. Super. Ct. 26). And where the policy is taken out in the name of an agent "for benefit of whom it may concern," a failure of the agent to state in his proofs a transfer of a part interest, is not fatal (Walsh v. Washington Marine Ins. Co., 32 N. Y. 427, affirming 26 N. Y. Super. Ct. 202). If any preliminary proof of interest is required by a policy agreeing to pay the loss "thirty days after proof thereof," it is supplied by the bill of lading and invoice (Lenox v. United Ins. Co., 3 Johns. Cas. [N. Y.] 224). And it may be proved that such documents form a part of the proof of loss customarily demanded and furnished in case of insurance on goods; and, when this has been proved, it devolves on insured to show that they have been furnished (Allegre v. Maryland Ins. Co., 6 Har. & J. [Md.] 408, 14 Am. Dec. 289). But in Talcot v. Ma rine Ins. Co., 2 Johns. (N. Y.) 130, it was held that such a provision, at least in a policy on a vessel, did not require preliminary proof of interest. In Johnston v. Columbian Ins. Co., 7 Johns. (N. Y.) 315, where there was a claim for a technical total loss, the survey, invoice, original bills of parcels, and an authenticated account of the sale of the goods at auction, were considered sufficient proof of the amount of damage. It is sufficient to furnish, in case of a partial loss, the protest, bill of lading, and invoice, or such equivalent proof as the nature of the loss admits of, the papers named being the kind of proof usually required (Allegre v. Maryland Ins. Co., 6 Har. & J. [Md.] 408, 14 Am. Dec. 289). And it was held in Savage v. Corn Exchange Fire & Inland Nav. Ins. Co., 17 N. Y. Super. Ct. 1, that, where the insurance is on a cargo, a passbook in which the cargo is duly entered, the bills of lading, and the protest of the master are sufficient proof of the loss and interest to require the insurer to specify defects if any, and call for further evidence if desired. Where the proofs were in proper form for proof of a constructive total loss, they were not insufficient for failing to state the loss also as a partial loss, though the policy provided that there should be no abandonment for the amount of damage merely, unless the amount which the insurer would be liable to pay under an adjustment as of a partial loss should exceed half the amount insured. The requirement in relation to "adjustment as of a partial loss" did not require a statement of the loss inconsistent with the insured's claim. All the insured could do was to present a proper statement, which, if assented to by the insured, might become an adjustment. (Taber v. China Mut. Ins. Co., 131 Mass. 239.) Where there is a claim. against several insurance companies for the same loss on different policies, it is not necessary, in their preliminary proofs, for the insured to apportion, or attempt to apportion, the loss among the different insurers (Fuller v. Detroit Fire & Marine Ins. Co. [C. C.] 36 Fed. 469, 1 L. R. A. 801). (c) Effect of proofs-Protest. It is a doctrine of the Pennsylvania and South Carolina courts that a regularly executed protest is admissible as evidence of the truth of the statements therein contained. This doctrine seems, however, to be rather based on the peculiar nature of a protest, than on the fact that it forms part of the proof of a marine loss. It is |