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 (Snrnpll Slam ^rlynnl SItbrara 
 
Cornell University Library 
 KD 1845.A97 1887 
 
 V.1 
 
 Arnould on the law of marine insurance. 
 
 3 1924 022 366 672 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022366672 
 
AilNOULD 
 
 MAEHE nSTJEANCE. 
 
 SIXTH EDITION. 
 
AENbgEd. 
 
 ON THE LAW OP 
 
 MARINE INSURANCE, 
 
 SIXTH EDITION 
 
 DAVID MACLACHLAN, M.A., 
 
 OP THE MIDDLE TEMPLE, BAEEISTEE-AT-LAW. 
 
 IN TWO YOLUMES. 
 
 VOL. I. 
 
 LONDON: 
 
 STEVENS AND SONS, 119, CHANCERY LANE; 
 
 H. SWEET AND SONS, 3, CHANCEET LANE; 
 W. MAXWELL AND SON, 8, BELL YAED ; 
 
 ^nSo ^Mi&'^m awJr 'gaahtlJiacs, 
 1887 
 
/-a^d-3^ 
 
 LONDON : 
 PEINTED BY C. P. EOWOBTH, QEEAT NEW STEEET, I'ETTEB LANE, E.O. 
 
PREFACE TO THE SIXTH EDITION. 
 
 A NEW Edition of this Treatise, revised throughout with 
 assiduous reference to the authorities up to the latest 
 decisions, including the Reports issued in December last, 
 is here submitted to the Profession and to the Mercantile 
 Community. 
 
 The Court of Appeal in Stewart v. Merchants' Mar. 
 Ins. Co. animadverted with just severity on the reten- 
 tion of the 3 per cent, memorandum as affecting ship in 
 the terms in which it was introduced into the policy 
 about 1749, unmodified in any respect, notwithstanding 
 the vast increase in size and costliness of our ocean 
 steamers. In one of the notes to that case a suggestion 
 is offered with a view to stimulating discussion, in order 
 that such a reform of that memorandum may be arrived 
 at, as may maintain a somewhat more reasonable pro- 
 portion to the present development of British Shipping. 
 
 So simple a matter as the stamps and stamp laws in 
 relation to policies is disgracefully perplexed on the 
 face of the Statutes by piece-meal alterations on previous 
 alterations. In the Appendix of Statutes the eye will 
 find assistance from slight notes interspersed between 
 the sections. At the same time the subject has been 
 dealt with in the text in a simple and intelligible way, 
 such as, it is hoped, will be generally acceptable. 
 
 D. MACLACHLAN. 
 
 !1, King's Bench Wau!:, Temple, 
 January, 1887. 
 
PREFACE TO THE THIKD EDITION. 
 
 For this edition of Sir Joseph Arnould's valuable trea- 
 tise the text has been revised, supplemented, and modified 
 in accordance with the latest authorities. 
 
 It had become necessary for the preservation and use- 
 fulness of the work to alter the arrangement of Part I. 
 The Editor embraced that opportunity at the same time 
 to collect and compact the work upon the main points of 
 the subject, with a view to the light which parts in their 
 natural order and connexion mutually reflect one upon 
 another. Further to facilitate perusal and reference, he 
 has studied compression by rejecting verbiage, repetitions, 
 and loose observations, whilst preserving everything that 
 was in any way pertinent ; he has also prefixed to each 
 chapter an analysis of its contents, - and prefaced the 
 whole work with a summary view (P. I. c. 1) of the con- 
 tract of Insurance in its principles and parts, as it is 
 developed and considered in the subsequent pages. 
 
 D. MACLACHLAN. 
 
 Goldsmith BmLOisQ, Temmji, 
 9th December, 1865. 
 
PEEFACE TO THE EIEST EDITION. 
 
 To make a text-book of practical utility and ready reference for 
 English lawyers has been the first object aimed at in this compi- 
 lation : to this end the matter has been much subdivided and 
 copiously indexed, marginal notes have been added, and an endea- 
 vour made to present a methodized arrangement of the body of 
 ^English Jurisprudence, on the subject of ■which it treats. To 
 accompHsh this point, without either unnecessary diffuseness, or 
 unsatisfactory generality, seems to form the chief diflBoulty in 
 these undertakings, especially where, as in the present case, almost 
 the whole law on the subject treated of is judge-made law, and the 
 value of previous decisions, as precedents, depends on the application 
 of rather refined principles to frequently complicated states of fact. 
 Could I hope that I had overcome this difficulty as completely as 
 I have felt it, I should submit this work to the profession with 
 much more confidence than is at present the case. 
 
 JOSEPH ARNOULD. 
 
 12, BJNo's Bench Waik, Temple. 
 
ABBEEVIATIONS 
 
 NAMES OF AMERICAN REPORTS. 
 
 Those marked U. St. are Reports of the United States' Courts {i.e. of the Federal 
 or National Courts of the whole Union) : those not so marked are the Reports of the 
 Courts of the separate States. 
 
 Binn. Rep 
 
 Co-wen, N. T. Rep. . . . 
 U. St. Cranoh, Sup. C. Rep. . 
 
 U. St. Dall 
 
 Day, Conn. Rep. 
 U. St. GaU. Giro. C. Rep. . . . 
 
 HiU, N. T. Rep. . 
 
 Johns. N. T. Cases . . . 
 
 Johns. N. T. Rep. . 
 
 Johns. Chano. Rep. . . . 
 
 Louis. Rep. .... 
 
 Mart. Rep 
 
 U. St. Mason's Ciro. 0. Rep. 
 
 Mass. Rep 
 
 U. St. M'Clean, C. C. Rep. 
 
 Meto. Rep. . . . . 
 
 U. St. Pet. S. C. Rep. 
 
 U. St. Pet. C. C. Rep 
 
 U. St. Pet. Ad. Rep. 
 
 Pick. Mass. Rep., or Pickering's 
 Rep. 
 
 Serj. and Rawle . . . . 
 U. St, Story, Giro. C. Rep. 
 U. St. Sumn. Rep 
 
 Watt's Rep 
 
 Wend. Rep 
 
 Whart. Rep 
 
 U. St. Wheat. Rep 
 
 U. St. Wheat. Dig 
 
 Teates, Rep. 
 
 Binney's Pennsylvania Reports. 
 
 Co-wen's Ne-w York Reports. 
 
 Cranoh' s Reports of the Supreme Court of 
 
 the United States. 
 Dallas's Reports. 
 Day's Conneotiout Reports. 
 Gallisons's Reports of the Circuit Court of 
 
 the United States. 
 Hill's New York Reports. 
 Johnson's Ne-w York Cases. 
 Johnson's Ne-w York Reports. 
 Johnson's Chancery Reports. 
 Louisiana Reports. 
 Martin's Louisiana Reports. 
 Mason's Circuit Court Reports. 
 Massachusetts Reports. 
 M'Clean's Circuit Court Reports. 
 MetcaU's Massachusetts Reports. 
 Peter's Supreme Court Reports. 
 Peter's Circuit Court Reports. 
 Peter's Admiralty Reports. 
 Pickering's Massachusetts Reports. 
 
 Serjeant and Rawle's Pennsylvania Reports. 
 Story's Circuit Court Reports. 
 Sumner's Circuit Court Reports. 
 Watts' Pennsylvania Reports. 
 Wendell's New York Reports. 
 Wharton's Pennsylvania Reports. 
 Wheatou's Supreme Court Reports. 
 Wheaton's Digest of the Reports of the 
 
 United States. 
 Yeates' Pennsylvania Reports. 
 
The following Editions of Treatises have been used for the 
 references in this work. 
 
 Abbott on Shipping {cited by the Author's name merely); 4th ed. 8to. 
 
 Lend. 1812. 
 by Shee [cited yith the Editor's name or the number 
 
 of the edition) ; 10th ed. Svo. Lond. 1856. 
 Bacon's Legal Maxims; vol. vii. of his Works by Spedding, EUis and 
 
 Heath, Svo. Lond. 1857—62. 
 BaUy on General Average ; 2nd ed. 8vo. Lond. 1856. 
 Benecke, Principles of Indemnity ; Svo. Lond. 1824. 
 
 , System des Assekuranz und Bodmereiwesens ; Svo. Lond. 1810. 
 
 ■ par Nolte ; Svo. Hamburg, 1851 — 2. 
 
 Boulay-Paty, Droit Commercial Maritime ; Svo. Paris, 1834. 
 
 Bullen and Leake, Precedents in Pleading ; 2nd ed. Svo. Lond. 1863. 
 
 Bynkershoek, Opera Omnia a Vicat; fol. Ool. Allob. 1761. 
 
 Oasaregis, Disoursus Legales de Oommorcio; 2iid ed. fol. Venetiis, 1740. 
 
 Ohitty on Pleading ; 6th ed. Svo. Lond. 1836. 
 
 Cleirac, Us. et Coutumes de la Mer ; 4to. Bordeaux, 1661. 
 
 Duer on Marine Insurance; Svo. New York, 1845 — 6. 
 
 on Eepresentations in Marine Insurance ; Svo. New York, 1844. 
 
 Emerigon, Des Assurances et des Oontrats a la Grosse par Boulay-Paty ; 4to. 
 
 Eennes, 1827. 
 Grotius, de Jure BeUi et Pads, by "Whewell, Svo. Cambridge, 1853. 
 Hopkins' Handbook of Average ; 3rd ed. Lond. 1868. 
 Kent, Commentaries on American Law ; 10th ed. New York, 1S60. 
 Kuricke, de Assecurationibus, in the Eascioulus Scriptorum de Jur. Naut. et 
 
 Marit. of J. G. Heinneccius ; 4to. Halae Magd. 1740. 
 Lampredi, del Commercio de PopoU Neutrali in tempo di guerra; 12mo. 
 
 Milano, 1831. 
 Loccenius, de Jure Maritime, in the Fasciculus Scriptorum de Jur Naut. et 
 
 Marit. of J. G. Heinneccius ; 4to. Halae Magd. 1740. 
 Lowndes, E., on General Average; Lond. 1873. 
 
 Maclachlan on the Law of Merchant Shipping ; Svo. 3rd ed. Lond. ISSO. 
 Magens on Insurances; 4to. Lond. 1755. 
 Malyne's Lex Mercatoria; 3rd ed. fol. Lond. 1686. 
 Marshall on Insurance, by Chas. Marshall; Svo. 3rd ed. Lond. 1823. 
 Marquardus de Jure Mercatorum ; fol. Francf. 1662. 
 
X BOOKS OF REFEKENCE. 
 
 Molloy de Jure Maritimo ; 8vo. Lond. 1682. 
 
 Paley on Principal and Agent, by Lloyd; 3rd ed. 8vo. Lond. 1833. 
 
 Pardeasus, de Droit Commercial; 6th ed. 8vo. Paris, 1840. 
 
 Lois Maritimes ant. au XVIIIe si^cle [cited Pardess.); 4to. Paris, 
 
 1828—45. 
 Park on Insurance, by HUdyard ; 8th ed. 8vo. Lond. 1842. 
 Parsons on Insurance ; 2nd ed. 8vo. Boston, U.S. 1872. 
 Phillips on Insurance; 5th ed. 8vo. Boston, U.S. 1867. 
 Pothier, des Assurances, du Oharte-partie, vol.5 of his CEuyresparM.Bugnet; 
 
 8vo. Paris, 1845—48. 
 
 par Bstrangin ; 8vo. Paris, 1810. 
 
 Eoccus de Navibus et Naulo Notabilia; ed nova; 24mo. Amst. 1708. 
 
 Eutherforth, Institutes of National Law ; 8vo. Cambridge, 1754 — 6. 
 
 Santema, de Assecurationibus ; 12mo. Col. Agripp. 1599. 
 
 Selwyn's Nisi Prius, by Power ; 12th ed. 8vo. Lond. 1859. 
 
 Smith's Leading Cases, by Collins and Arbuthnot; 7th ed. 8vo. Lond. 1876. 
 
 Stevens on Average ; 5th ed. 8vo. Lond. 1835. 
 
 Story on Agency ; 8vo. Lond. 1839. 
 
 on the Conflict of Laws ; 2nd ed. Lond. 1841. 
 
 Straccha, de Mercatur& et Assecurationibus ; fol. Amst. 1669. 
 
 VaHn, Nouveau Commentaire sur I'Ordonnance de 1681; 4to. EocheUe, 1766. 
 
 par Becanne ; 8vo. Poitiers, 1829. 
 
 Vattel, Droit des Gens, par Pradier-Fodere ; 8vo. Paris, 1863. 
 Yinnius in Peckium, ad Eem Nauticam ; 8vo. Ludg. 1647. 
 Weil des Assurances Maritimes. Paris, 1879. 
 
CONTENTS. 
 
 PAOE 
 
 Preface y 
 
 Names of American Law Reports viii 
 
 Editions of "Works of Eef erence ix 
 
 Table of Oases cited xv 
 
 Addendum xxxii 
 
 PART I. 
 
 03? THE OONTEACT OF MARINE INSUEANCE. 
 
 CHAPTEE I. 
 General Principles of Marine Insurance ..... 3 
 
 CHAPTER n. 
 The Subjects of Marine Insurance 18 
 
 CHAPTER in. 
 The Parties to Marine Insurance 54 
 
 CHAPTER IV. 
 The Agents for Marine Insurance . . . . . . . 158 
 
 CHAPTER V. 
 The Policy 227 
 
 CHAPTER VI. 
 Valuation for the purposes of the PoHey 296 
 
Xll CONTENTS. 
 
 CHAPTEE VII. 
 
 PAGE 
 
 Ship and Shipmaster in the relation of Carrier under the Policy . 333 
 
 CHAPTEE Vm. 
 Designation of the Eisk in the Policy 365 
 
 CHAPTEE IX. 
 Duration of the Eisk under the Policy 377 
 
 CHAPTEE X. 
 Deviation and Change of the Voyage under the Policy . . 449 
 
 PART II. 
 
 OF OBETAIN MATTERS THAT EENDEB THE CONTEACT OF msrEANOE TOID 
 on ■DWATAILABLE. 
 
 CHAPTEE I. 
 Misrepresentation 513 
 
 CHAPTEE n. 
 Concealment 548 
 
 CHAPTEE III. 
 Express Warranties 599 
 
 CHAPTEE IV. 
 Implied Warranties 648 
 
 CHAPTEE V. 
 niegaHty 687 
 
CONTENTS. Xlll 
 
 PART III. ' 
 
 OF LOSSES Airo THE EBIiATIONS OF THE ASSTJEED AND ■USTDEEWKITEE THENCE 
 
 AEISING. 
 
 OHAPTEE I. 
 
 PAOE 
 
 Losses not covered by tlie Policy . ." . . . .719 
 
 CHAPTEE n. 
 Losses covered by the Policy 744 
 
 CHAPTEE in. 
 Excepted Losses 817 
 
 CHAPTEE IV. 
 General Average 845 
 
 CHAPTEE V. 
 Particular Average 927 
 
 CHAPTEE TI. 
 Doctrine of Total Loss and of Abandonment and its incidents . . 951 
 
 CHAPTEE VII. 
 Total Loss 988 
 
 CHAPTEE Vni. 
 Constructive Total Loss 1024 
 
 CHAPTEE IX. 
 Eesults of a Settlement . . 1091 
 
xiv CONTENTS. 
 
 PART IV. 
 
 OF JUEISDICTION, PEOOEDTJEB, AND EVIDEIJCE. 
 
 CHAPTER I. 
 Jurisdiction of the Courts 1127 
 
 CHAPTEE n. 
 Procedure 1130 
 
 CHAPTEE m. 
 Evidence 1145 
 
 APPENDIX. 
 
 Statutes relating to Sea Insiirances . . . . . 1171 
 Index of Subjects 1183 
 
TABLE OF CASES CITED. 
 
 A. 
 
 PAGE 
 
 Abbott v. Sebor 74, 971 
 
 Abel V. Potts 1162, 1167 
 
 Aoliard v. Ring 851 
 
 Adams v. Baukart 192 
 
 Adams v. Delaware Ins. Co 1059 
 
 Adams ». MoKenzie 820, 952, 1024 
 
 Adams v. Saunders 1092 
 
 African Go. », Bull 330 
 
 African SteamsMp Co. v. Swanzy . . . , 904, 
 
 1056 
 
 Aguilar ». Eodgers -. 1117 
 
 Auy». Bland 210 
 
 AitohisoutJ. Lobre. .103, 792, 796, 807, 947 
 Albion Eire and Life Ins. Co. v. 
 
 MiUs 1128 
 
 Alcenius or Alcinous v. Nygren .... 135 
 
 Alcock V. Royal Excb. Ass. Co 353 
 
 Aldridge v. Bell 962 
 
 Alexander v. Baltimore Ins. Co. . . 1035 
 
 Alexander v. CampbeU £36 
 
 Alexander v. Simms 161 
 
 Allen «. Long , 1109 
 
 Allen V. Sugruo 309, 971, 999, 1004, 1052 
 Allison V. Bristol Mar. Ins. Co. . . 34, 35, 
 
 62, 311 
 
 Allkins V. Jupe 128, 1105 
 
 Allston i>. Campbell 85, 116 
 
 All-wood ». Henokell 961, 965, 1000 
 
 Alsop V. Coit 185 
 
 Alsop V. Commercial Ins. Co 585 
 
 Amalia, Tie 736 
 
 American Ins. Go. v. Center .... 354, 944 
 
 Amery v. Rodgers 965, 1153 
 
 Anderson i>. Morrice ........ 39, 72, 678 
 
 Anderson v. Ocean Steamship Co. . . 861, 
 885, 915, 917 
 Anderson v. Pacific Eire and Mar. 
 
 Ins. Co 514, 520, 629 
 
 Anderson v. Royal Excb. Ass. Co. . . 189, 
 966, 992, 1009, 1071 
 
 Anderson «>. Thornton 533, 1108, 1140 
 
 Anderson v. WaUis 357, 1026, 1065 
 
 Andrfi v. Fletcher 1105 
 
 Andrew v. Robinson 199, 207 
 
 Andrews v. Essex F. and M. Ins. 
 
 Go 262 
 
 Andrews v. Mellish. {See MeUish v. 
 
 Andrews.) 465, 476 
 
 pAaB 
 
 Angerstein v. Bell 415 
 
 Ann Grreen, The 140, 141 
 
 Anna Cathariua, The 146, 623, 625 
 
 Annen ». Woodman . .406, 649, 664, 665^ 
 1103, 1109, 1139 
 
 Anon. (1 Chitty R.) 704, 1170 
 
 Anon. (Paley's P. & A.) 184 
 
 Anon. (Shower's R.) 62 
 
 Anon. (Skhmer's R.) 418 
 
 Antonia Joanna, The 624 
 
 Areangelo v. Thompson .,727, 762, 1150, 
 1162, 1167 
 
 Armett v. Innes 477 
 
 Armstrong v. North of England 
 
 Steamship Ins. Co , 1097 
 
 Amot V. Stewart 533 
 
 Arthur Average Assoc. Jfe ^arfe .. 163, 
 154, 227, 219, 1133, 1134 
 Ashbury Ry. Carriage, &o. Co. v. 
 
 Riche 166 
 
 Ashley v. Pratt 468 
 
 AspiuwaU V . Merchant Shipping Co . 851 
 
 Assievedo v. Cambridge 123, 1034 
 
 Astor V. Union Ins. Co " 288 
 
 Atalanta, The 636 
 
 Atkinson v. Abbott 145, 701, 706 
 
 Atkinson v. Stephens 895, 901, 945 
 
 Atlantic Ins. Co. v. Storrow 771 
 
 Atlantic Mutual Ins. Co. v. Huth. . 357 
 
 Atlas, The 625 
 
 Attwood V. Sellar 878, 898, 909 
 
 Atty V. Lindo 66, 446, 1019 
 
 Aubert v. Gray . .84, 622, 737, 738, 765, 
 
 767, 768 
 
 Aubert v. Walsh 1105, 1107 
 
 Audley v. Dufi 1120 
 
 Australasian Ins. Co. v. Jackson 345, 696, 
 
 762, 778 
 Australian Agricultural Co. v. Saun- 
 ders 395, 402 
 
 Backhouse v. Ripley 27, 734, 857 
 
 BaiUie «. Moudigliani 743, 801, 977 
 
 Bain v. Case 492, 1164 
 
XVI 
 
 TABLE OF CASES. 
 
 Bainbridge v. Neilson . . 1027, 1028, 1029, 
 1032, 1033 
 
 Baines v. Ewing 192, 1161 
 
 Baines v. Holland 620 
 
 Baines v. Woodfall 274 
 
 Baker v. Janson 243 
 
 Baker v. Langhom 220, 223 
 
 Baker v. Ludlow 819 
 
 Baker v. Towry 824 
 
 Bakewell v. United Ins. Co 819 
 
 Barber v. Fleming . .32, 66, 67, 433, 440, 
 442, 443, 906, 1161 
 Barber 1). Fletcher .... 626, 645, 546, 1108 
 Barclay v. Cousins .... 38, 39, 48, 66, 73 
 Barclay v. Stirling. . . . 384, 385, 476, 805, 
 976, 1076, 1085, 1090 
 
 Baring v. Claggett 601, 621, 630 
 
 Baring ». Henkle 825 
 
 Baring «. Eoyal Exch. Ass. Co 644 
 
 Baring v. Stanton 196 
 
 Baring v. Vaux 841 
 
 Barker v. Blakes. .146, 681, 634, 715, 766, 
 
 966, 1069, 1062 
 
 Barker v. Janson. .128, 299, 301, 302, 939, 
 
 987, 992, 1046, 1131, 1167 
 
 Barker v. Marine Ins. Co 89 
 
 Barker v. Phoenix Ins. Co 628 
 
 Barlow v. Leckie i 165, 166 
 
 Barnett v. Brandao 1146 
 
 BarnewaU 1>. Church 680 
 
 Barrass v. London Ass. Co. 397, 398, 419 
 
 Barrow v. BeU 827 
 
 Barry v. Louisiana Ins. Co 784 
 
 Bartlett v. Pentland . . 199, 200, 203, 283, 
 
 286 
 
 BarziUay v. Lewis 571, 630 
 
 Bates V. Hewitt , 336, 672, 582, 584 
 
 Bauduy v. Union Ins. Co 672 
 
 Bauerman v. Kadenius 114 
 
 Bazett V. Meyer 767 
 
 Beacon Fire & Life Ass. Co. v. Gibb 290 
 
 Bean v. Stnpart 262, 600, 606 
 
 Beatson v. Haworth 465, 466 
 
 Beaver, The 507 
 
 Beckett v. West of England Ins. Co. 446 
 
 Beckthwaite v. Nalgrove . , 674 
 
 Beokwith v. BuHeu 196, 226 
 
 Beckwith ii. Sydebotham . .687, 588, 609, 
 
 679, 1169 
 
 Beeston v. Beeston 218 
 
 Bell ». Ansley 1168 
 
 Bell i>. Bell 406, 568, 690 
 
 Bell V. Bromfield 633, 682, 683, 686 
 
 BeU i>. BuUer 703 
 
 Bell V. Caistairs. .545, 644, 680, 682, 684, 
 
 732 
 
 BeU V. Gibson 109, 132, 703 
 
 BeU V. Hobson 381, 382 
 
 BeU t). Humphries 160 
 
 BeU«). Janson 109, 110, 167, 1149 
 
 BeU u. Jutting 210 
 
 BeU V. Nixon 990, 996, 1003 
 
 BeU V. Eeed 667 
 
 PAOB 
 
 BeU V. Iteid 141, 143, 703 
 
 Benson v. Chapmam 346, 368, 1067, 
 
 1073, 1074, 1076, 1077, 1082 
 Benson v. Duncan 346, 34,7,-348, 361, 801 
 
 Berens ». Euoker 626, 632, 714,- 764 
 
 Berkley v. Watling 1165 
 
 Bermon v. Woodbridge .... 370, 662, 653, 
 
 1104 
 
 Bemardi v. Motteux 634, 644, 645 
 
 Bemon, The 139 
 
 Berthon v. Loughman 636, 692 
 
 Bevan v. Bank of United States 887 
 
 Biccard v. Shepherd ... .8, 618, 649, 654, 
 
 661, 664, 666, 667, 668, 671, 672, 
 
 1139 
 
 BUbie V. Lnmley 1094, 1099, 1142 
 
 Bird V. Appleton 631, 690, 691, 697 
 
 Bird V. Pigou 689 
 
 Bird's Trusts, In re 262 
 
 Birkley v. Presgrave 868, 885, 916, 
 
 1129, 1144 
 
 BirreU v. Dryer 290, 296 
 
 Bishop i>. Pentland .... 654, 676, 772, 827 
 
 Bize V. Fletcher 516, 620, 538 
 
 Blaaupot v. Da Costa .... 974, 976, 1095 
 Blackburn v. Thompson .... 146, 704, 706 
 Blackburn v. Vigors . . 614, 652, 853, 666, 
 
 1140 
 
 Blaokenhagen v. London Ass. Co. . . 427, 
 
 428, 605, 739 
 
 Blackett v. Eoyal Exch. Ass. Co. . . 22, 28, 
 
 275, 278, 282, 291, 292, 295, 
 
 830, 986, 1146 
 
 Blackhurst v. CockeU 252, 606 
 
 Blagge V. New York Ins. Co 671 
 
 Blaize v. Paris Gen. Ins. Co 1088 
 
 Blasco V. Fletcher 359 
 
 Blyth V. Shepherd 763 
 
 Boehm v. BeU 93, 1110 
 
 Boehm v. Combe 790 
 
 Bold V. Eotherham 399, 401, 1140 
 
 Bolton V. Dobson. {See Dobson v. 
 
 Bolton.) 824 
 
 Bolton V. Gladstone 642, 644 
 
 Bond V. Gonzales 606 
 
 Bond V. Nutt 506, 612, 616 
 
 Bondrett v. Hentigg 771, 993 
 
 Bonita, The 363 
 
 Booth V. Gair 246, 797, 821, 886 
 
 BorreU v. Moore 163 
 
 BorrodaUe v. Hunter 295 
 
 Bosley v. Chesapeake Ins. Go 1027 
 
 Boston, The 507 
 
 Bottomley v. BotUI . ..467, 481, 776, 780, 
 
 1168 
 
 Bouillon V. Lupton .... 7, 618, 649, 664, 
 
 666, 676, 1139 
 
 Boulton V. Dobree 135, 702 
 
 Bourne v. GatolifEe. [See Gatoliffe 
 
 V. Bourne.) 390 
 
 Bousfieldi). Barnes ...300, 309, 310, 332, 
 
 939, 1164 
 
TABLE OF CASES. 
 
 XVU 
 
 Bousfield ». CresTvell 188, 206 
 
 Bousfield V. Wilson 1107 
 
 Boutflower v. Wilmer , 783 
 
 Bowden v. Vaughan , 627 
 
 Boyd V. Dubois 690, 722, 760, 1167 
 
 Boyiield v. Brown 813, 1011 
 
 Bradford v. Levy 731, 743, 781 
 
 Bradford ». Symondson 6, 1101, 1110 
 
 Bradhnrst v. Columb. Ins. Co. . . 870, 872, 
 
 1081 
 
 Bradlie r. Maryland Ins. Co. . .946, 1035, 
 
 1048, 1056, 1057 
 
 Bradstreet v. Neptune Ins. Co. .... 642 
 
 Bragg V. Anderson 467, 474 
 
 Brandons. Curling 132, 133, 702, 764 
 
 Brandon v. Nesbitt 132, 702, 742 
 
 Brandt v. Bowlby 69 
 
 Brett V. Beckwith .'. 167, 249 
 
 Bre-wster v. Kitchell or Kitcben .... 606 
 
 Bridge v. Niagara Ins. Co 166 
 
 Bridges v. Hunter 526, 634, 566, 591, 
 
 1147 
 Brigga v. Merchant Traders Ass. . . 68 
 
 Brine v. Teatberstone 628, 640, 646 
 
 Bristo-w V. Towers 132, 702 
 
 Brockelbank v. Sugme 191, 267, 268, 
 
 802, 805, 1076, 1081, 1161 
 
 Bromley v. Hesseltine 144, 145, 704 
 
 Bromley v, Williams 153, 1134 
 
 Brook V. Ijouisiana Ins. Co 308 
 
 Brooks ff. M'Donnell ....976, 1095, 1100 
 
 Brooks V. Oriental Ins. Co 829, 838 
 
 Broomfield v. Southern Ins. Co 1024 
 
 Brotberston v. Barber 1029, 1033 
 
 Brougb V. Whitmore 21, 278, 393 
 
 Brown V. Byrne 291 
 
 Brown v. Carstairs 393 
 
 Brown v. Hartford Ins. Co 330 
 
 Brown v. North 975, 1085 
 
 Brown «■. Smith ....770, 779, 971, 1035, 
 
 1037 
 Brown v. Stapyleton .... 27, 29, 890, 891 
 Brown v. Tayleur .... 289, 410, 412, 469 
 
 Brown v. Tiemey 841 
 
 Brown v. Vigne 426, 427 
 
 Brown v. WUkinson 734 
 
 Browning v. Elm .she , 821 
 
 Browning f. ProTinoial Ins. Co. of 
 
 Canada 234, 965, 1130 
 
 Bruce V. Jones.. 309, 311, 332, 939, 1139, 
 
 1164 
 
 Buck V. Chesapeake Ins. Co 572 
 
 Buller ». Christie 1012 
 
 Buller V. Ksher 768, 773 
 
 Buller V. Harrison 219, 1099 
 
 Burges v. Stocks 156 
 
 Surges V. Wiokham .... 7, 641, 649, 668, 
 
 669, 1139 
 Bumandy. Eoaocanaohi...301, 310, 974, 
 
 975, 978 
 Burnett V. Kensington .... 10, 821, 822, 
 
 827, 1006 
 Burton v. English 859, 861 
 
 M. 
 
 PAOK 
 
 Busk V. Eoyal Exch. Ass. Co.. . . 654, 676, 
 727, 760, 772, 1167 
 
 Butler V. Allnntt 699 
 
 Butler V. Wildman 790, 854, 1168 
 
 Byrnes i>. National Ins. Co 944 
 
 C. 
 
 CahiU 1). Dawson 206, 212, 213 
 
 Caldwell v. Ball 80, 1154 
 
 Callander v. Oelrioha 173, 1143 
 
 Callow V. Kelson 212 
 
 Calvert v. BoviU 644, 646 
 
 Cambreling v. M'CaU 993 
 
 Cambridge v. Anderton. . . . 309, 352, 990, 
 996, 998, 999 
 
 Camden v. Anderson 65, 1154 
 
 Camden v. Cowley 388, 411, 419 
 
 Camelo v. Britten 699 
 
 Campbell v. Bordieu 506 
 
 Campbell v. Christie 264, 265 
 
 Campbell v. Inues 673, 738, 767 
 
 Campbell v. Eickards 182, 535, 592 
 
 Campbell v. Thomson 350 
 
 Cannan v. Meabum 1047, 1071 
 
 Cantillon v. London Ass. Co 821 
 
 Cargo ex Galam 915 
 
 Caroline, The 636 
 
 Carpenter's case. The 169 
 
 Carr v. Montefipre 327, 379, 1123 
 
 Carr and Josling v. Eoyal Exch. 
 
 Asa. Co 295, 381, 383, 1138 
 
 Carr v. Eoyal Exch. Ass. Co 151, 327, 
 
 820, 1123 
 
 Carrere v. Union Ass. Co. . . . , .... 633 
 
 CarruthersD. Sheddon. .52, 80, 83, 85, 162, 
 
 1148, 1158 
 
 Carmthers v. Sydebotham 773, 827 
 
 Carson v. Marine Ins. Co 322 
 
 Carstairs v. AUnutt 696, 732 
 
 Carter v. Boehm 5, 184, 635, 538, 660, 
 
 679, 587, 691, 592, 1108 
 
 Caiuthersj). Graham 197, 211, 684, 696, 
 
 1142, H62 
 
 Cary v. King 1163 
 
 Case V. Davidson. [See Davidson v. 
 
 Case) 1083 
 
 eastern V. Boddington . . : 219, 1132 
 
 Castle V. Playford 69, 72 
 
 Castling v. Aubert 212 
 
 Castrique v. Behrens 645 
 
 Castriquet'. Imrie 101, 642, 645, 646, 
 
 647 
 Cator V. Grt. Western Ins. Co. of 
 
 NewTork 315, 728, 743 
 
 Cazalet v. St. Barbe 1026, 1035 
 
 Cazew. EeUly 897 
 
 Chapman v. Benson. (&« Benson 
 
 V. Chapman) 1038, 1067, 1082 
 
 Chapman v. Fraser 621, 1108 
 
 Chapman v. Johnson 868 
 
 b 
 
XVIU 
 
 TABLE OF OASES. 
 
 PAOE 
 
 Chapman ». Royal Netherlands Stm. 
 
 Navig. Co 759 
 
 Chapman v. Walton ..173, 183, 184, 535, 
 
 592, 1143 
 Chanrand ». Angerstein ..635, 538, 641, 
 
 692 
 Chavasse, Ex parte, Re Grazebrook 707, 
 
 712 
 China S.S. Co. v. Commercial Ass. 
 
 Co 1146 
 
 Chitty V. Selwyn 408, 487 
 
 Chope V. Reynolds 740, 1138 
 
 Christian v. Coombe 1093 
 
 Christian v. Ditohell 537 
 
 Christie i). Seoretan 617, 643, 649, 681 
 
 Christopher, The ' 641 
 
 Cincinnati Ins. Co. v. BakeweU .... 969 
 Clapham v. Cologan 266, 336, 448, 601, 
 
 1139 
 
 Clapham v. Langton 649, 668, 669 
 
 Clark V. Ocean Ins. Co 34 
 
 Clarke v. Westmore 607 
 
 Clarkson v. Young 734 
 
 Clason v. Simmouds . . 398, 424, 462, 465 
 
 Clason v. Smith 590 
 
 Clifford ^). Hunter 675 
 
 Clough V. Lon. & N. W. Ry. Co. . . 695 
 Cobequid Marine Ass. Co. v. 
 
 Barteaux 334 
 
 Cochrane v. Fisher 618 
 
 Cookey v. Atkinson 289, 410, 1147 
 
 Cocking ». rraser , 1006 
 
 Cockran v. Retberg 253 
 
 Coey V. Smith 730 
 
 Coffin V. Newburyport Ins. Co 322 
 
 Coffin V. Storer 950 
 
 Coggs V. Bernard 168 
 
 Cohen V. Hannam H58 
 
 Cohen v. Hinckley 746, 1159, 1160 
 
 Cohn V. Davidson 1139 
 
 Coit V. Commercial Ins. Co 288, 819 
 
 Colby V. Hunter 607, 1109 
 
 Cole V. Parkin 270 
 
 Coles V. Marine Ins. Co 462 
 
 Colledge v. Harty 606 
 
 CoUett V. Morrison 1 128 
 
 Cologan V. London Ass. Co. . .970,' 1006, 
 
 1006, 1007, 1016, 1061, 1062 
 
 Columbian Ins. Co. «. Ashby . . 868, 900, 
 
 971, 984 
 Columbian Ins. Co. v. Catlett . . 325, 490, 
 
 *92, 977 
 Columbian Ins. Co. t. Lawrence. .760, 772 
 
 Comber ». Anderson 181, 190 
 
 Commercial Mar. Ins. Co. v. 
 
 Namaqua Mining Co. (&«Bicoard 
 
 V. Shepherd) 668 
 
 Company of African Merchants v. 
 
 Brit. & For. Mar. Ins. Co 480, 484 
 
 Constable®. Noble ,.289, 387, 410, 1147 
 
 Constancia, The 348, 861, 915 
 
 Conway v. Forbes 84 738 
 
 Conway v. Gray 80, 84, 134, 738^ '767, 957 
 
 PAQE 
 
 Cook V. Commercial Ins. Co 784 
 
 Coolidge V. Gloucester Mar. Ins. Co. 313, 
 
 804, 973 
 
 CooHdge V. Gray 423, 424 
 
 Copeland v. Mercantile Ins. Co 89 
 
 Copenhagen, The 715 
 
 Corcoran v. Gurney 828 
 
 Cordery «. CoUville 968 
 
 Corlett V. Gordon 172 
 
 Cormaok v. Gladstone 462, 483 
 
 Cornfoote v. Fowke 516, 520 
 
 Cornwall ®. Wilson 163 
 
 Corry v. Coulthard 875 
 
 Cory V. Burr 842 
 
 Cory ». Paton ....260, 616, 644, 549, 591 
 
 Court V. Martineau 534, 586 
 
 Courteen ». Touse 190, 1150 
 
 Cousins V. Nantes .... 122, 124, 131, 229 
 Covington v. Roberts . . 720, 754, 852, 869 
 
 Cowie ». Barber 1107 
 
 Cox W.May 905 
 
 Cox V. Parry 108 
 
 Cox V. Prentice 1099 
 
 Cox V. Troy 272 
 
 Coxe V. Harden 69 
 
 Cram v. Aiken 862 
 
 Crauford v. Hunter. .49, 94, 122, 162, 163, 
 
 315 
 
 Crocker v. Jackson 508 
 
 Crockett ». Dodge 867, 870 
 
 Crofts t). Marshall ..293, 723, 1146, 1166 
 
 Crooks V. Allan 861 
 
 Croudson v. Leonard 642 
 
 Crowley -o. Cohen ..49, 52, 67, 101, 314, 
 
 325, 937 
 Cruickshank ». Janson 412, 419, 610, 612 
 
 Culleu v. Butler 764, 789, 1168 
 
 Cunard v. Hyde 346, 696, 1140 
 
 CurUng V. Long 66 
 
 Currie v. Bombay Native Ins. Co. 63, 
 968, 966, 1021, 1064 
 
 D. 
 
 Da Costa v. Edmunds . .27, 278, 282, 579, 
 734, 857, 858 
 
 Da Costa v. Firth 26, 129, 978, 1095 
 
 Da Costa v. Newnham 881, 940, 943, 1057 
 
 D'Aguilar D. Tobin 506,1170 
 
 Dakin ®. Oxley 977 
 
 Dalby v. Indian & Lend. L. Ass. Co. 4 
 
 Dalgleish v. Brooke 839, 1119 
 
 Dalgleish 1;. Davidson 912 
 
 Dalgleish v. Hodgson 644, 645 
 
 Dalzellj!. Mair 197, 198, 210, 246, 1142, 
 
 1143 
 
 Danaous, The 141, 143, 703 
 
 Daniels v. Harris 649, 668, 672 
 
 Davidson v. Burnand. .678, 753, 772, 773, 
 
 790 
 Davidson v. Case 48, 65, 976, 1083 
 
TABLE OF CASES. 
 
 SIX 
 
 PAGE 
 
 Davidson v. Cooper , 261 
 
 Davidson v. Willasey 66, 446 
 
 Davies ff. Reynolds 1155 
 
 Davies v. Wilkinson 222 
 
 Davis V. Garrett 9, 10, 451 
 
 Davis V. GUdart 107, 329 
 
 Davy V. Milford 1016 
 
 Dawson f. Atty ..538, 543, 681, 684, 732 
 
 Dawson «J. 'Wrencli 1134. 
 
 Dean v. Decker 123, 1034 
 
 Dean v. Hornby 762, 769, 973, 1036, 1040, 
 
 1061 
 
 Deblois v. Ocean Ins. Co 421, 466 
 
 De Costa v. Soanderet 574, 1108, 1128 
 
 De Cuadxa v. Swann 343, 359, 399 
 
 Dederer ». Delaware Ins. Co ; . 777 
 
 De Feise ». Stephens 781 
 
 De Forest v. Fulton Ins. Co 83, 163 
 
 De Gaminde v. Pigou 197, 246 
 
 De Garron v. Galbraitt 1093 
 
 De GhetofE v. London Ass. Co. ..112, 1128 
 De Hahn v. Hartley . .253, 536, 602, 603, 
 
 604 
 Deiderioks v. Commercial Ins. Co. . . 955 
 Delaney ji. Stoddart ..115, 117, 185, 206, 
 
 489, 506 
 
 Delmada v. Motteux 701 
 
 Delonguemere v. N. T. Firemen's 
 
 Ins. Co 410 
 
 De Mattos v. North 128 
 
 Dennison v. ModigUani 493 
 
 Dennistoun v. liUie . .520, 523, 624, 632, 
 
 533 
 Denoon v. Home & Colonial Ass. Co. . . 36, 
 
 308, 949 
 Dent V. Smith . .517, 601, 748, 771, 912, 
 
 916 
 
 De Paiba v. Ludlow 123, 1034 
 
 Depau V. Ocean Ins. Co 901 
 
 Depeyster v. Columbian Ins. Co. , . 1050 
 
 Depeyster v. Ocean Ins. Co 1050 
 
 De Pothonier v. De Mattes 114 
 
 De Silvale v. Kendall 34, 62, 63 
 
 De Symonds v. Shedden 30 
 
 De Tastet v. Taylor 135 
 
 Devaux v. J' Anson. . . . 31, 34, 62, 63, 66, 
 
 434, 436, 439, 790, 1138, 1161, 1168 
 
 De Vaux v. Salvador . . 24, 727, 728, 730, 
 
 753, 759, 881, 1166 
 
 Devaux v. Steele 92, 100 
 
 De Vignier v. Swanson 109 
 
 De Wolf V. Archangel Mar. Bani & 
 
 Ins. Co 404, 405, 588 
 
 De Wolf V. New York Ins. Co. . . 688, 625 
 
 Diana, The 139, 716 
 
 Dickenson v. Com. Ins. Co 586 
 
 Dickenson v. Jardine 916 
 
 Dickey v. American Ins. Co 972 
 
 Dickey v. United Ins. Co 415, 418 
 
 Dickson v. Lodge 1 154 
 
 Diplook V. Blackburn 89 
 
 Dispatch, The 639 
 
 D' Israeli ». Jowett 1162 
 
 PASE 
 
 Dixon V. Hammond 209, 1 164 
 
 Dixon V. HoviU 211 
 
 Dixon «). Eeid 770, 778, 1060 
 
 Dixon V. Sadler 7, 649, 652, 654, 655, 
 
 660, 664, 666, 676, 758, 760, 772, 
 1139, 1165 
 
 Dixon V. Sea Ins. Co 792 
 
 Dixon V. Stanfield 216 
 
 Dixon V. Whitworth 792 
 
 Dobson V. Bolton 824 
 
 Dobson V. Wilson 866, 1129 
 
 Dodge V. Bartol 862 
 
 Domett V. Young 1046 
 
 Donaldson v. Thompson . . 146, 640, 643, 
 
 705 
 Donath v. North America Ins. Co. . 1104 
 
 Donnell v. Columb. Ins. Co 295, 830 
 
 Dos Hermauos, The . . 144, 623, 633, 703 
 
 Douglas V. Moody 888, 902 
 
 Douglas V. SoougaU . . 649, 660, 672, 679 
 
 Dowdall V. Allan or Hallett 156, 248, 
 
 1134 
 
 Dowel! V. Moon '. . . 249 
 
 Doyle V. Dallas 363, 992, 996, 1000, 
 
 1035, 1046, 1048 
 
 Doyle V. Powell 489 
 
 Drake v. Marryat 193 
 
 Dree Gebroeders, The 145, 146 
 
 Drisoolt). Bovil 501, 505 
 
 Driscol V. Paasmore 456, 606 
 
 Droege v. Stuart 63 
 
 Dudgeon v. Pembroke 8, 20, 239, 294, 
 
 649, 654, 656, 663, 696, 721, 750, 
 
 773, 1138 
 
 Dufi V. M'Kenzie ..27, 46, 315, 936, 1019 
 
 DuffeU V. WUson 1108 
 
 Duncan v, Benson. {See Benson v. 
 
 Diinoan) 346, 347, 350, 351, 801 
 
 Dundee, The 21, 736 
 
 Dunham v. Com. Ins. Co, 905, 943 
 
 Durrell v. Bederley 536, 674, 576, 692 
 
 Dyson V. Rowcroft ..818, 820, 1003, 1006 
 
 E. 
 
 Earle v. Harris 613, 616 
 
 Earle v. Eowcroft . . . .774, 775, 776, 777, 
 
 779, 784 
 Ebsworth v. Alliance Mar. Ins. Co. 79, 
 
 98, 109 
 
 Eden v. Parkinson 622, 652 
 
 Eden v. Poole . . . .728, 769, 800, 804, 881 
 
 Edgar v. Bumstead 207, 1 142 
 
 Edgar v. Fowler 208, 218 
 
 Ed^^ard, The 712 
 
 Edwards i>. Aberayron Mut. Ship. 
 
 Ins.Soc 1127 
 
 Edwards V. Footner ..523, 524, 633, 638, 
 
 543 
 
 Eenrom, The 697 
 
 Fibers ». United Ins. Co 139 
 
 i2 
 
XX 
 
 TABLE OF CASES. 
 
 FAOE 
 
 Eliza Ann, The 765 
 
 Elizabeth, The 627 
 
 EHza Cornish, The 679, 1071 
 
 Ellrin V. Jansen 569, 1139, 1140 
 
 Ellery v. New England Ins. Co 493 
 
 ElHot «;. WilsGn 9, 451, 464 
 
 Ellisff. Lafone 64, 446 
 
 Elting V. Scott 681 
 
 Elton t!. Brogden 500, 781 
 
 Elton V. Larkins. . 563, 667, 568, 581, 591 
 
 Ely V. HaUett 576 
 
 Emanuel, The 143, 623 
 
 Enderby v. Fletcher 506 
 
 Entwistle v. ElUs 315, 1019 
 
 Erasmus v. Banks 300 
 
 Esposito V. Bowden 143 
 
 Essex, The 626, 632 
 
 EstreUa, The 640 
 
 Etches V. Aldan 34, 1154 
 
 Evans V. Edmonds 520, 625 
 
 Evans v. Hooper 1133, 1134 
 
 Everth ». Hannam 753, 777, 1165 
 
 Everth v. Smith 800, 805, 1076 
 
 Eyre v. Glover 38, 40, 74, 1112 
 
 Fairlie v. Christie 263, 264 
 
 Ealknerj). Eitohie . . 778, 1028, 1035, 1037 
 
 Eauny and Ehnira, The 89, 363 
 
 Fanny, The 635, 716 
 
 Farmers. Legg 345,696, 697 
 
 Farmer v. Eussell 208, 1107 
 
 Faruworth ».- Hyde ..353, 801, 960, 997, 
 1064, 1070, 1148, 1167 
 
 Farquharson v. Hunter 279, 429, 463 
 
 Fawcus V. Sarsfield 8, 661, 663, 721 
 
 Fawkes v. Lamb 541, 542 
 
 Feise v. Aguilar 146, 302, 310 
 
 Feise v. Parkinson 520, 521, 523, 545, 
 
 1108 
 
 Fenwiok v. Eobinsou 941 
 
 Fernandez v. Da Costa 645 
 
 Fillis V. Brutton 520, 633, 537 
 
 Fisher v, Liverpool Maritime Ins. Co. 260 
 
 Fisher v. Ogle 643, 644 
 
 Fisher v. Smith 212 
 
 Fiskv. Masterman..332, 1111, 1113,1114, 
 
 1115 
 Fitton V. Accidental Death Ins. Co. . . 295 
 Fitzgerald v. Pole {See Pole v. Ktz- 
 
 gerald 1034 
 
 Fitzherbert v. Mather 185, 520, 531, 644, 
 
 665, 1140 
 
 Flad Oyen, The 640, 763 
 
 Fleming v. Smith 364, 960, 961, 962, 
 
 966, 970, 1001, 1002, 1038 
 
 Fletcher v. Alexander 899, 908 
 
 Fletcher v. IngUs 748, 827, 1166 
 
 Fletcher v. Poole 728, 800 
 
 Flindt V. Crokatt 738 
 
 Flindt V. Scott 738 
 
 Flindt V. Waters 135. 702 
 
 Flinn v. Headlam 823, 524, 533 
 
 Flinn v. Tobin 520, 622 
 
 Flint f. Flemyng . .31, 34, 35, 62, 63, 66, 
 434, 436, 437, 1162 
 
 Flint V. Mesurier 39, 80 
 
 Foley V. Moline 566, 667 
 
 Foley V. Tabor. . . .534, 581, 649, 672, 680, 
 ' 1139 
 
 Foley V. ITnited F. & M. Ins. Co. of 
 
 Sydney 32, 66, 67, 68, 441, 1161 
 
 Fomin v. OsweU 178, 685 
 
 Fontaine v. Phoen. Ins. Co 674 
 
 Forbes v. AspinaU ..21, 31, 66, 300, 303, 
 
 306, 306, 321, 388, 432, 438, 802, 
 
 929, 949, 1112, 1167, 1161 
 
 Forbes v. Cowie 438, 802, 949 
 
 Forbes v. Wilson 369, 406, 664 
 
 Forester v. Pigou 545, 547 
 
 Forshawf. Ch^bert ..264, 265, 504, 650, 
 
 677, 773 
 
 Forster ». Christie 739, 741, 1041 
 
 Fort V. Lee 587 
 
 Fortuna, The 716 
 
 Forwood V. North Wales M. Ins. Co. 1055 
 
 Foster v. Alvez 680 
 
 Foster v. Steele 679, 680, 1169 
 
 Fowler v. English and Scottish M. 
 
 Ins. Co 160, 766, 1042, 1043 
 
 Fox V. Black 462 
 
 Foy «>. BeU 198, 246 
 
 Fragano v. Long 72, 76 
 
 Frances, The 141 
 
 Frances v. Ocean Ins. Co 738 
 
 Franklin, The 712 
 
 Eraser v. Burrows 1146 
 
 Frazer v. Hatton 885 
 
 Freard v: Dawson 346, 697 
 
 Freeland v. Glover 640, 690 
 
 Freeman v. East India Co. 351, 357, 1071 
 
 French v. Backhouse 160, 164, 165 
 
 French v. Patten 271 
 
 Freundsohaft, The 140, 141 
 
 Friere v. Woodhouse 581 
 
 Furneauxti. Bradley 354, 1026, 1045 
 
 Furtado v. Rogers 132, 133, 134, 702, 
 
 764 
 
 G. 
 
 Gabay v. Lloyd . .29, 286, 727, 755, 844, 
 1146, 1166 
 
 Gairdner v. Senhouse 466, 473 
 
 Galam, Cargo ex 915 
 
 Galbraith v. Graoie 624, 969 
 
 Gale V. Laurie 21, 734 
 
 Gale V. Machell 1102 
 
 GaUoway v. Morris 42, 90 
 
 Gamba v. Le Mesurier 133, 135, 702, 764 
 Gambles v. Ocean Mar. Ins. Co. . . 375 
 Gammon v. Beverly 1088 
 
TABLE OF CASES. 
 
 XXI 
 
 PAGE 
 
 Gandy v. Adelaide Ins. Co 589 
 
 Gardner v. Oroasdale 1166, 1163 
 
 Gardner v. Cazenove 85, 89 
 
 Gardner v. Salvador 353, 996, 1000, 1046, 
 
 1048 
 
 Garrels v. Kensington 639, 777 
 
 Gatelifee v. Bourne 390, 393 
 
 General Mutual Ins. Co. v. Sher- 
 
 ■STood 24 
 
 Gemon v. Royal Exch. Ass. Co. 965, 1072 
 
 Geyer v. Aguilar 646 
 
 Gibson v. Bradford 36, 68 
 
 Gibson v. Service 700, 712 
 
 Gibson v. SmaU 8, 649, 660, 1138 
 
 Gibson v. Winter 114, 205 
 
 Gist V. Mason 132 
 
 Gladstone v. Clay 379, 382 
 
 Gladstone v. King;. . . .185, 552, 556, 557, 
 
 578 
 
 Gladstone V. Osborne 1127 
 
 Glaser v. Cowie 48, 178, 184, 185 
 
 Glasgow, Tbe 353 
 
 Gledstanes v. Koyal Exch. Ass. Co. . . 104, 
 235, 316, 338, 339, 340 
 
 Glennie v. London Ass. Co 1012 
 
 Glover v. Black 40, 41, 61, 1156 
 
 Goddard v. Gray 642, 647 
 
 Godin V. London Ass. Co. . .80, 118, 120, 
 
 214 
 
 Goldsohmidt v. Lyon 224, 225 
 
 Goldschmidt v. WMtmore 777 
 
 Goldsmidi). GiUies ..301, 979, 1059, 1096 
 Good V. London SteamsMp Owners 
 
 Mut. Prot. Assoc 773 
 
 Goodson V. Brooke 187, 192, 206 
 
 Goodwin v. Kobarts 284 
 
 Gordon v Massaoh. Ins. Co 354, 967 
 
 Gordon v. Morley 506 
 
 Gordon v. Rimmington 760, 1167 
 
 Gordon v. Vaughan 699 
 
 Goss V. Withers 762, 1035 
 
 Gould V. Oliver . .28, 282, 734, 867, 858, 
 
 1141, 1144 
 
 Gracie v. Maryland Ins. Co. 281 
 
 Gracie v. New York Ins. Co 974 
 
 Grabam v. Barras 600, 616 
 
 Graham v. Commercial Ins.- Co 606 
 
 Grainger v. Martin 903, 1046, 1057 
 
 Grant v. Delacour 384, 385 
 
 Grant v. Hill 110 
 
 Grant v. King 407, 490, 491 
 
 Grant v. Norway 1155 
 
 Grant v. Parkinson 73, 1157 
 
 Graht v. Paxton 384, 386, 580 
 
 Gratitudine, The.. 347, 351, 366, 358, 865 
 
 Gray v. Pearson 1133, 1134 
 
 Grazebrook, Ee. {See Chmasse.) 
 Great Indian Peninsular Railway v. 
 
 Saunders 246, 797, 821, 886 
 
 Great Western Ine. Co. v. Cunliffe . . 195 
 
 Green v. Briggs 161 
 
 Green v. Browne 746 
 
 Green i). EhnsKe 727, 751, 763, 842, 1166 
 
 PA9B 
 
 Green v. Royal Exch. Ass. Co. 1073, 1076, 
 1077, 1079 
 
 Green v. Toung 461, 737, 767, 768 
 
 Greene v. Merchant Ina. Co 544, 686 
 
 Greer v. Poole 728, 914 
 
 Gregory v. Christie ... .41, 102, 279, 429, 
 
 463, 580, 1156 
 
 Gregson v. GUbert .... 725, 756, 773, 1166 
 
 Greseley v. Mousley 89 
 
 Grieve v. Toung 691 
 
 Griffiths V. Bramley Moore 1022 
 
 Griswold v. New York Ins. Co 1081 
 
 Grove v. Dubois 220 
 
 Guerlain v. Columbian Ins. Co 956 
 
 Guibert v. Readshaw 502 
 
 Gumm V. Tyrie 294 
 
 Gumey v. Behrend 09, 1154 
 
 Guthrie v. Armstrong 191, 1161 
 
 Haddow y.'Parry 1155 
 
 Hadkinson t>. Robinson .... 728, 739, 740 
 
 Hadley v. Clarke 800 
 
 Hagedorn v. Bazett 699, 702 
 
 Hagedom i\ Bell 145, 640, 704, 706, 707 
 Hagedorn i!. Oliverson 109, 164, 166, 1149 
 Hagedom v. WMtmore . .754, 767, 837, 
 
 1167 
 Hahn v. Corbett .... 727, 752, 842, 1166 
 
 Haigh V. De la Cour 302, 939 
 
 Halhead v. Young. .10, 38, 60, 59, 75, 78, 
 
 81, 740 
 
 Hall». Brown 34, 457 
 
 Hall V. Franklin Ins. Co 354, 503 
 
 HaU V. Janson 35, 65, 291, 293, 887 
 
 Hall V. Jupe 1046 
 
 Hall V. Molineaux 334 
 
 HaUett V. Bousfield 1129 
 
 Hallett V. DowdaU. {See DowdaU v. 
 
 HaUett) 1133 
 
 HaUett V. Wigram .... 360, 865, 866, 895 
 Hambro v. Hull & Lond. Fire Assur. 
 
 Co 156 
 
 Hamburg, The . .- 349, 359 
 
 Hamilton «). Mendes..l5, 765, 1029, 1032, 
 1033, 1036, 1059 
 Hamilton v. Sbeddon. .457, 482, 488, 1140 
 Hamilton v. Thames & Mersey Mar. 
 
 Ins. Co 790, 1168 
 
 Hammond v. AUen 235 
 
 Hammond v. Reid 480 
 
 Hancox v. Fishing Ins. Co 90 
 
 Harding «>., Carter 185, 206 
 
 Hardy v. Innes 1098 
 
 Hare v. Travis 461, 465 
 
 Harford v. Maynard 734, 770 
 
 Hargrove & Co., Ex parte 163 
 
 Harley v. Milward 868 
 
 Harmanw. Kingston ..135, 315, 338, 702 
 Harman v. Vaux 824 
 
XXll 
 
 TABI.E OF CASES. 
 
 PAOE 
 
 Harmony, The 139 
 
 Harratt v. Wise 1148 
 
 Harrington v. Halkeld 489, 504 
 
 Harris v. Carter S85 
 
 Harris v. Soaramanga 914 
 
 Harris v. Watson 885 
 
 Harrison v. Bank of Australasia .... 862, 
 
 853, 868, 883, 884 
 
 Harrison o. Ellis. . 10, 388, 393, 430, 1140 
 
 Harrison v. Millar 153 
 
 Harrison v. TJniv. Mar. Ins. Co 293, 
 
 721 
 HarroTver v. Hutoliinson . .468, 469, 678 
 Hartley v. Buggin ........ 460, 451, 488 
 
 Hartley v. Ponsonby 885 
 
 Harvey v. Beokwith 163, 1134 
 
 Hastie%>. Depeyster 105 
 
 Hastie v. Couturier 236, 1132 
 
 Hattou V. Boyle 192 
 
 Haugliton v. Empire Mar. Ins. Co. . .406, 
 
 Haughtonw. Ewbank..20, 190, 239, 294, 
 
 1150 
 
 HaTelook v. Hanoil 608, 778 
 
 Havdook t>. Rookwood. . 640, 763, 764, 956 
 
 Haven v. Gray 316, 388 
 
 Haven v. Holland 495, 496 
 
 Hawkins v. TwizeU 45, 89 
 
 Hayman v. Moulton 353 
 
 Haywood 41. Kodgers. .534, 535, 574, 588, 
 
 592 
 Hazard v. New England Mar. Ins. 
 
 Co 539, 756 
 
 Hearne v. Edmunds 826 
 
 Hector, The 769 
 
 Hedburg v. Pearson 1011, 1016 
 
 Henchman v. Offley 341 
 
 Henderson v. Stephenson . . 253, 266, 600 
 Hendricks v. Australasian Ass. Go. . . 915 
 Hendricks v. Commercial Ins. Co. . . 604 
 HenMe v. Eoy. Ex. Ass. Co. . . 132, 263, 
 460, 1109, 1128 
 
 Henrio and Maria, The 641 
 
 Henry v. Staniforth 1106 
 
 Hentig V. Staniforth 134, 691, 1106 
 
 Herbert v. Champion 1093 
 
 Herman, The , 145, 624 
 
 Hermano v. Mildred 212, 234 
 
 Heretelder, The 641 
 
 Heselton v. Allnutfc 466, 506 
 
 Hewisou V. Guthrie 216 
 
 Hewitt V. Flexney 1093 
 
 Heyman v. Parish 727, 753, 774, 779 
 
 Hibbert v. Carter 80, 81, 116, 116, 
 
 1154 
 
 Hibbert v. HaUiday 498 
 
 Hibbert v. Martin 109, 664, 778 
 
 Hibbert>. Pigou 602, 603, 604 
 
 Hiokie v. RodocanaoM 65, 363, 974, 
 
 984, 1085, 1154 
 
 Hicks V. Palington 863 
 
 Hicks V. Shield 34, 63 
 
 Higgins !). Sargent 1164 
 
 PAGE 
 
 Higginson ». Ball ^^' ?5? 
 
 Hill,;. Patten ... .21, 25, 27, 29, 269, 890 
 
 Halt). Seoretan , 82 
 
 HiUv. Wilson 911. 91* 
 
 HiUs V. London Ass. Co 1017, 1018 
 
 Hiram, The 800 
 
 Hobart v. Norton 455 
 
 Hobbs II. Hannam 61, 783 
 
 Hobbs V. Henning .... 644, 684, 685, 696, 
 
 704, 1170 
 
 Hobday v. Peters 89 
 
 Hodgson V. BlaoMston 1000 
 
 Hodgson V. Glover 38, 73 
 
 Hodgson V. Malcolm 773 
 
 Hodgson V. Richardson 519, 577 
 
 Hoffman v. Marshall 823 
 
 Hogg V. Gouldney 1093 
 
 Hogg V. Homer 473, 1103 
 
 Holbrook v. Brown 39 
 
 Holdsworth j>. Wise ..653, 654, 676, 772, 
 
 773, 973, J036, 1038, 1061, 
 
 1170 
 
 Holland ». Russell 219, 1099 
 
 HoUingworth v. Brodrick . .666, 657, 658 
 
 Hohnan v. Johnson 691 
 
 Hooper v. Lusby 159 
 
 Hopper V. Bumess 350, 361, 895 
 
 Hopper V. Wear Mar. Ins. Co 447 
 
 Here v. Whitmore 604, 608, 609 
 
 Homcastle ». Haworth 1118 
 
 Hornoastle v. Suart 66, 444, 1161 
 
 Homeyer v. Lushington , . 177, 379, 380, 
 414, 633, 685 
 
 HosHns V. Piokersgill 21, 288 
 
 Hough V. Head 728 
 
 Houghton )-. Gilbart 290, 1147 
 
 Houlder v. Merchants' Mar. Ins. Co. 393 
 Houstman v. Thornton 746, 958, 978, 992 
 
 Houstoun V. Bordenave 226 
 
 Houstoun ». Robertson 226 
 
 Hoyt V. Gilman 671 
 
 Hubbard v. Glover 627 
 
 Hubbard ». Jaekson , 268 
 
 Hubbersty v. Ward , 80 
 
 Huoks V. Thornton 372, 782 
 
 Hudson V. Harrison 965, 970, 1073 
 
 Hudson V. Marjoribanks 935 
 
 Hughes V. Cornelius 646 
 
 Hughes V. Tindall 273 
 
 Hughes V. Union Ins. Co. 484 
 
 Hughes V. Wilson 1161 
 
 Hull t>. Cooper 404, 588 
 
 Hull Dock Co. ». Browne 410 
 
 Humfrey J). Dale 291 
 
 Humphrey v. Union Ins. Co. . .943, 1018 
 Hunt V. Royal Exch. Ass. Co. . . 366, 357, 
 
 957, 962 
 
 ■ Hunter, The 634 
 
 Hunter D.Leathley 216, 338, 384, 385, 478 
 
 Hunter v. Parker 352, 353, 364 
 
 Hunter ». Potts 676, 721,756, 1166 
 
 Hunter v. Prinsep 30, 1022 
 
 Hunter v. Wright 1121 
 
TABLE OF CASES. 
 
 xxm 
 
 PAGE 
 
 Hurrell v. Bullard 173 
 
 Hurry v. Royal Exoli. Ass. Co. . . 379, 390, 
 392, 933, 1066 
 
 Hurtin v. Ptoenix Ins. Co 1035 
 
 Hutohinson v. Bowker 1147 
 
 Hutohinson v. Wrigtt 85 
 
 Huth V. Lamport 915, 916 
 
 Hyde v. Bruce 606 
 
 Hyde v. Louisiana State Ins. Co. . . 1051 
 Hyde». Powell 1168 
 
 I. 
 
 Idle V. Eoyal Exch. Ass. Co 353, 996, 
 
 1073, 1077, 1079 
 
 Immauuel, The 146,631,714 
 
 Imperial Mar. Ins. Co. v. Kre Ins. 
 
 Corp. (Ld.) 339 
 
 Indian, The 624 
 
 Indian Chief, The.. 139, 141, 146, 147, 623 
 
 Inglis V. Stock 69, 71, 72 
 
 IngUa V. Vaux 398, 420, 484 
 
 Imaan Stm. Ship (!3o. v. BischofB . . 728 
 
 lonidea v. Harford 326, 402, 1121 
 
 lonidea v. Pacific Eire andMarine Ins. 
 Co. ..259, 274, 335, 339, 516, 644, 546, 
 
 549, 591 
 
 lonidea v. Pender. .299, 302, 548, 677, 693 
 
 lonides v. Universal Marine Ins. Co. . . 9, 
 
 12, 727, 729, 752, 842, 843 
 
 Ireland v. Livingston 178, 295 
 
 Irving v. Maniliag ..301, 309, 995, 1046, 
 
 1052, 1053, 1056, 1148, 1157 
 
 Irving «>. Richardson. .22, 51, 85, 110, 111, 
 
 310, 332, 1148, 1164 
 
 J. 
 
 Jackson v. Chamock 880 
 
 Jackaon v. Union Mar. Ins. Co. 791, 1022 
 
 Jameson v. Swainstone 208, 1142 
 
 Jan Frederick, The 624, 625 
 
 Janson v. Lindsay 281 
 
 Jardine v. Leathley 189, 956 
 
 Jarman v. Coape , 839, 840 
 
 Jarratt v. "Walker 494 
 
 Jarratt v. Ward. , ; 498 
 
 Jefferson Ins. Co. v. Cotheal 184 
 
 JeU». Pratt 199 
 
 Jenkins v. Heyoock 661 
 
 Jenkins v. Power 218, 692 
 
 Job V. Langton 886, 898 
 
 John Dunn, The 736 
 
 Johnson t>. Chapman 282, 858, 875 
 
 Johnson v. Greaves 145, 704, 706 
 
 Johnson v. Sheddon _. 933 
 
 Johnson v. Sutton '. 698 
 
 Johnson v. Ward 1155 
 
 Johnston v. Hogg 842 
 
 PAOE 
 
 JoUy V. Walker 494, 495 
 
 Jones V. Just 5 
 
 Jones V. Neptune Mar. Ins. Co. .... 447 
 
 Jonea v. Nicholson 776, 782, 784 
 
 Jones V. Schmoll 725 
 
 Jonge Klassina, The 145, 624 
 
 Jonge Margaretha, The ; . . . 710, 711 
 
 Jonge Tobias, The 711 
 
 Joseph, The 100 
 
 Joiurnu V. Bourdieu 287, 819 
 
 Joyce V. Kennard , .62, 57, 101, 326, 949 
 
 Joyce V. Realm Ins. Co. 294, 382 
 
 Joyce V. Swann 72 
 
 Joyce V. .Wniiamson 1058 
 
 Juffrow Maria Schroeder 635 
 
 Juhel V. Church < 131 
 
 Juhel V. Rhinelander , , . . 580 
 
 Jumel V. Marine Ins. Co 984 
 
 K. 
 
 Kaimes v. Knightly 263 
 
 Kaltenbaoh v. Mackenzie 963, 1096, 1148 
 
 Kane v. Columbian Ins. Co 466, 484 
 
 Keir v. Andrade 699 
 
 Kelhier v. Le Mesurier 132, 133, 764, 
 
 1118 
 
 Kemp V. Falck 71 
 
 Kemp V. HaUiday 885, 1051, 1148 
 
 Kendrick v. Delafield 784 
 
 Kensington v. Ingha 134, 268, 269 
 
 Kent V. Bird 126 
 
 Kenyon v. Berthon 263, 600, 601 
 
 Kettell V. Wiggin 501, 504 
 
 Kewley v. Ryan 240, 337, 341, 461, 
 
 454, 465, 460, 461 
 
 Keyser v. Scott 839, 840 
 
 Kidston v. The Empire Insurance 
 Co. ..245, 247, 359, 363, 792, 796, 797, 
 798, 801, 805, 820, 848, 854, 
 900,927,950,985,1021,1076 
 
 Km V. HoUister 1127 
 
 Kindersley v. Chase 644, 647 
 
 King V. Delaware Ins. Co 741 
 
 King V. Glover 39, 45, 89 
 
 King V. Middleton Ins. Co 422 
 
 King V. Walker 45, 219, 958, 1142, 
 
 1148, 1163 
 
 Kingsford v. Marshall 826 
 
 Kingston v. Girard 484 
 
 Kingston v. Knibbs 280, 579 
 
 Kingston v. Mcintosh 1164 
 
 Kingston v. Phelps 465 
 
 Kirby v. Smith 537, 539, 669 
 
 Kleinwort v. Shepard . .27, 762, 770, 842, 
 
 1040 
 Kleinwort & Co. v. Caaaa Maritima 
 
 of Genoa 349 
 
 Knight V. Cambridge 774, 776 
 
 Knight V. Faith. .353, 372, 761, 946, 947, 
 960, 997, 1001, 1002, 1080 
 
XXIV 
 
 TABLE OF CASES. 
 
 FAQE 
 
 Knill ». Hooper. . . .7, 649, 668, 669, 1139 
 
 Knox 1!. Wood 39, 59, 75, 81 
 
 Koebel v. Saunders 650, 760, 1138 
 
 Koster v. Eason 220, 221 
 
 Koster v. Innes 746, 747, 1160 
 
 Koster ». Reed 746 
 
 Kxden Kemp v. Vigne 101, 127 
 
 Ladtroke ». Lee 86 
 
 Lady Durham, The 42, 44, 89 
 
 Laing v. Glover 506 
 
 Laird v. Eohertson 253, 264 
 
 Lamhert v. Liddard. . , .409, 410, 467, 474 
 
 Lane v. Nixon 678, 823 
 
 Lang V. Anderdon 614, 620 
 
 Langhom v. Allnutt 407, 479, 1120 
 
 Langhom v. Cologan 264, 1109 
 
 Langhom v. Hardy 379, 380 
 
 Lanyon v. Blanohard 214 
 
 Lapham v. Atlas Ins. Co 422, 492 
 
 Laroche v. Oswin 483 
 
 Lateward ». Curling 800, 881 
 
 Lavabrev. Wilson ....132, 472, 489, 500 
 
 Laveroni v. Drury 721, 733, 756 
 
 La Virginie 141 
 
 La Ysabel, Bozzo , 349 
 
 La-w J!. HoUingworth 658, 678 
 
 Lawrence v. Aberdein 29, 726, 755, 
 
 844, 1146, 1166 
 Lawrence v. Sydebotham . . .497, 498, 507 
 
 Leatham v. Terry 1083 
 
 Leavenworth v. Delafield . . 882, 904, 1086 
 Lebeau v. G-enl. Steam Navig. Co. . . 900 
 
 Le Cheminant v. Allnutt 683 
 
 Le Cheminant v. Pearson . .684, 798, 946, 
 
 986 
 
 Le Cras v. Hughes , 91, 92 
 
 Lee V. Beach 650 
 
 Lee V. BuUen 222 
 
 Lee V. Gray 509 
 
 Lee V. Gi'inneU , 867 
 
 Lee V. Jones 5 
 
 Lee V. Southern Lis. Co 799 
 
 Lees V. Smith 153, 1134 
 
 Leevin v. Cormao 1119 
 
 Leigh V. Adams 575 
 
 Leigh V. Mather 397, 398, 419, 421 
 
 Le Louis 640 
 
 Le LuneviUe t>. PhilKpa 132 
 
 Le Mesurier v. Vaughan 334 
 
 Lennox v. United Ins. Co 862 
 
 Letchford v. Oldham 828 
 
 Lever v. Fletcher 680, 693, 741 
 
 Levi V. Allnutt 840 
 
 Levin v. ffewnham 839, 840 
 
 Levy «. Barnard 216 
 
 Levy V. Vaughan , 840 
 
 Lewin v. Suasso 775, 734 
 
 FAOB 
 
 Lewis V. Kucker .... 128, 299, 300, 302, 
 930, 933, 1157 
 
 Lewis V. Williams 862, 863 
 
 Liddard ». Lopes 800 
 
 Lidgett V. Seoretan (L. K. 6 C. P.) . .301, 
 
 310, 946, 947, 987 
 
 Lidgett V. Secretan (L. R. 5 C. P.) . .416, 
 
 417, 431 
 
 Lindsay v. Gibbs 65, 161, 164 
 
 Liadsay v. Janson 418 
 
 L'Invinoible 640 
 
 Lion Ins. Ass. v. Tucker 164 
 
 Lishman v. Northern Maritime Ins. 
 
 Co 260, 272, 873, 516, 544, 649, 591 
 
 Littledale». Dixon ..536, 667, 592, 1147 
 Livermore v. Newburyport Ins. Co. 965 
 
 Liveaay v. Rider 1099 
 
 Livie». Jansen ..727, 751, 763, 798, 799, 
 
 842, 946, 986, 1166 
 
 Livingston v. Maryland Ins. Co. . . 633 
 
 Lloyd's V. Harper 151 
 
 Lloyd ». neming ....60, 114, 1131, 1159 
 
 Lloyd V. Spence 60, 114 
 
 Locke ». North Amer. Ins. Co 82 
 
 Lockyer v. Offley 372, 414, 774 
 
 Lohre v. Aitchison 103, 792, 807, 947, 
 
 1163 
 London Marine Ins. Assoc. (An- 
 drew's Case), In re 153, 1133 
 
 London Marine Ins. Assoc. (Smith's 
 
 Case), In re 153, 1134 
 
 London Monetary Advance and Life 
 
 Asa. Co. V. Smith 156 
 
 Long!). Allen 276, 282, 1102, 1103 
 
 Long V. Duffi 673 
 
 Loomis V. Shaw 74, 806 
 
 Lorraine v. Thomlinson 372, 1104 
 
 Lothian ii. Henderson 601, 621 
 
 Lowry v. Bourdieu 127, 1105 
 
 Lozauot). Janson.. 762, 1036, 1040, 1061, 
 1063, 1167, 1170 
 
 Lubbock V. Potts 134, 691, 1106 
 
 Lubbock V. Rowcroft 728, 739, 740 
 
 Lucena v. Crauford. .3, 31, 39, 48, 49, 56, 
 
 67, 58, 59, 65, 73, 79, 80, 82, 
 
 92, 94, 95, 96, 98, 100, 124, 
 
 125, 164, 166, 1130, 1149 
 
 Luckie v. Bushby 219, 1092 
 
 Luke V. Lyde 368 
 
 Lutwidge v. Grey 359 
 
 Lyall V. Edwards 114 
 
 Lynch v. Dunsford . .521, 560, 661, 675, 
 
 682 
 Lynch v. Hamilton. , . , 521, 660, 661, 675 
 
 M. 
 
 Maans v. Henderson 213 
 
 Maclean ». Dunn ] 64 
 
 Macfarlane v. Giatincoopnlo 203 
 
TABLE OF CASES. 
 
 XXV 
 
 PAOB 
 
 Mackenzie ». Ooulson 1128 
 
 MackeBzie ». Whitworth 49, 51, 103 
 
 Mackie v. Pleasants 602 
 
 Mackintosli v. Marshall 634, 566, 668, 
 
 570, 682, 591, 1139, 1140, 1147 
 
 M'Andrew v. BeU 80, 564, 1154 
 
 M'Andrews v. Vanghan 1011 
 
 M'Cartty v. Abel 1074, 1083 
 
 M'Connell v. Hector 132, 141, 623 
 
 M'Culloch V. Koyal Exch. Ass. Co. . .1111 
 
 M'Dowall!). Fraser ..516, 520, 629, 533, 
 
 534, 538, 1147 
 
 M'Dougle V. Royal Ex. Ass. Co 823, 
 
 824, 826 
 
 M'lver V. Henderson 1036, 1061 
 
 M'Kim V. Phoenix Ins. Co 316 
 
 M'Kionell v. Rotiason 1105 
 
 M'Lanahau v. Univ. Ins. Co. . .184, 644, 
 
 593 
 
 M'Masters v. Shoolbred . . 983, 1043, 1044 
 
 M'Swiney v. Royal Exoh. Ass. Co. . .38, 
 
 49, 50, 59, 76, 78, 81, 740 
 
 Maggrath. v. Church 905 
 
 Magnus v. Buttemer 749, 826 
 
 MaUough V. Barber 177 
 
 Man V. Shiffner 216 
 
 Manfield v. Maitland 34, 62, 63, 64 
 
 Manley v. United Marine and Fire 
 
 Ins. Co 375 
 
 Mann v. Forrester 214 
 
 Manning v. Irving. [See Irving v. 
 
 Manning) 1062, 1053, 1056 
 
 Manning v. Newnham 1064, 1071 
 
 Margaret Mitchell, The 353, 679 
 
 Maria, The.. 626, 632, 635, 637, 639, 640, 
 
 711 
 
 Mariana Flora, The 637 
 
 Marine Ins. Co. v. United Ins. Co. . 1086 
 Marine Mut. Ins. Assoc, v. Young . 154 
 
 Harriot v. Hampton 1099 
 
 Marryatt v. Wilson. [See Wilson v. 
 
 Marryatt) 140 
 
 Marsden v. City & County Assur. Co. 729 
 Marsden v. Reid. .269, 460, 466, 466, 546, 
 
 646 
 Marsh v. Robinson ,.,,.... 59, 65, 1132 
 
 Marshall v. Delaware Ins. Co 1059 
 
 Marshall v. Parker 301, 1160, 1162 
 
 Marshall v. Union Ins. Co 671 
 
 Marsham v. Dutrey 868 
 
 Martin v. Crokatt 1003 
 
 Martin v. Delaware Ins. Co 283, 462 
 
 Martin v. Fishing Ins. Co 374 
 
 Martin v. Salem Marine Ins. Co. . . 7'56 
 
 Martin v. SitweU 1111, 1130 
 
 Mason ». Joseph 191 
 
 Mason v. Skurray 276, 287, 1012 
 
 Master v. Miller 261,819 
 
 Matthews v. Gibbs. . . .368, 362, 363, 391, 
 743, 984, 1020, 1076 
 
 Manry v. Shedden 84, 1167 
 
 Mavor v. Simeon 198, 246 
 
 Mavro v. Ocean Mar. Ins. Co 914 
 
 PAQB 
 
 Maxwell v. Robinson 421 
 
 May V. Christie 1095 
 
 Maydew V. Forrester 176, 186 
 
 Maydhew v. Scott 839 
 
 Mayne v. Walter 571, 680, 630 
 
 Mayo V. Maine F. and M. Ins. Co. , .316, 
 
 317 
 
 Mead v. Davison 153, 191, 236, 1161 
 
 MeUen v. Natchez Ins. Co 35, 61 
 
 MeUish v. Alhiutt 177, 380 
 
 Mellish i>. Andrews . .379, 466, 476, 960, 
 989, 994, 995, 1058 
 
 Mellish «. Bell 1150 
 
 MeUish v. Staniforth 840 
 
 Mennett i>. Bonham 738 
 
 Mercantile Mar. Ins. Co. v. Tither- 
 
 ington 412, 431 
 
 Mercantile Ship Co. v. Tyser 728 
 
 Merchants' Trading Co. v. Universal 
 
 Marine Ins. Co 721 
 
 Mercurius, The 712 
 
 Meretony v. DunloI)e 372 
 
 Metcalfe v. Parry ....471, 474, 696, 732 
 Metcalfe v. Britannia Ironworks Co. 361 
 
 Meyer v. G-regson 1102, 1120 
 
 Meyer v. Ralli 246, 357, 1063, 1071 
 
 Michaels. Gillespy 34, 65, 272, 1082 
 
 Michael v. Tredwin 662 
 
 Middlewood ». Blakes 460 
 
 Miller v. Titherington. .28, 282, 283, 848, 
 858, 890, 1141 
 
 Miller v. WoodfaU 34, 65, 983, 1085 
 
 MiHes V. Fletcher 1035, 1064 
 
 Mills V. Campbell 1137 
 
 Mills V. Roebuck 671 
 
 Milward v. Hibbert. . . .28, 282, 734, 858, 
 1128, 1141, 1144, 1146 
 
 Miner v. Tagart 186, 302 
 
 Minett v. Anderson 414 
 
 Minett v. Forrester 224, 225 
 
 Mitchell V. Ede 69 
 
 Mitchell V. Edie 966 
 
 Mody V. Gregson 5 
 
 Moffat ». Ward 425 
 
 Moir V. Royal Exch. Ass. Co 619 
 
 Montgomery v. Eggington 66, 434 
 
 Montoya v. London Ass. Co 754, 760 
 
 Moody V. Surridge 287, 819 
 
 Moore v. Mourgue 179 
 
 Moore v. Taylor 398, 421, 425 
 
 Moran v. Jones 887 
 
 Morok V. Abel 1106 
 
 Mordy v. Jones 728, 753, 803, 1022, 
 
 1081, 1138 
 Morean v. United States Ins. Co. . . 1006, 
 
 1012 
 
 Morgan v. Price 310, 332, 1141 
 
 Morocco Land and Trading Co. v. 
 
 Fry 344, 1128 
 
 Morris V. Robinson 357, 1047, 1071 
 
 Morrison V. Noorman 1129 
 
 Morrison v. Universal Mar. Ins. Co. . .272, 
 576, 583, 684, 694, 595 
 
XXVI 
 
 TABLE OF CASES. 
 
 PAQE 
 
 Mortimer v. Broadwood 128 
 
 Moses V. M'Farlane 1099 
 
 Moses 4). Pratt 1103 
 
 Moss V. Byrom 494, 778 
 
 Mossv. Smitk ..802, 803, 804, 990, 1023, 
 1070, 1071, 1082 
 
 Motteux V. London Ass. Co 262, 369, 
 
 404, 406, 407, 487, 602, 1128 
 Mount V. Harrison. .353, 1048, 1073, 1081 
 
 Mount V. Larkins 405, 487, 588, 1147 
 
 Moxon V. Atkins .... 281, 290, 387, 579, 
 
 1147 
 
 Muir V. Fleming 215 
 
 Muller V. Tliompson 704, 706 
 
 MuUett v. Shedden 960, 994, 1058 
 
 Munro v. Vandam 670, 678, 1169 
 
 Murdock V. Potts 34 
 
 Murphy v. Bell. . . . 123, 124, 127, 128, 229 
 Murray v. Columbian Ins. Co. . .82, 383, 
 
 387 
 
 Murray v. Hatch 990 
 
 Murray v. United Ins. Co 624 
 
 Myer v. EaUi 732 
 
 N. 
 
 Nantes v. Thompson 122, 124 
 
 Natusoh V. Hendewerk 1101 
 
 Navone v. Haddon 1010, 1011, 1064, 
 
 1068, 1072 
 
 Naylor v. Palmer 770 
 
 Naylor S.Taylor.. 1029, 1032, 1033, 1035, 
 1060, 1148 
 
 Neal V. Irving 190, 1160 
 
 Neilson v. Columhian Ins. Co 1013 
 
 Keilson v. Delaooor 427 
 
 Nelson v. Belmont 867 
 
 Nelson f. Salvador 617 
 
 Neptune, The, Clark 42, 43, 44 
 
 Neptunus, The 710 
 
 Nereide, The 141, 637 
 
 Nesbitt V. Lushington .... 765, 770, 821, 
 
 853, 864 
 
 Newby v. Eeid 329, 746, 979, 1162, 
 
 1164 
 Newcastle Krelns. Co. v. M'Morran 603 
 
 Newman v. Cazalet 912 
 
 New York Firemen Ins. Co. v. Law- 
 rence 452, 453 
 
 New York Ins. Co. v. Protection Ins. 
 
 Co ..., 105 
 
 Nichols V. Maine Ins. Co 943 
 
 Nicholson v. Croft 11,51 
 
 Nicholson i>. Power .... 574, 582, 584, 587 
 Noble V. Kennoway . .254, 278, 279, 284, 
 
 S97, 1146 
 
 Nonnen v. KettleweU 383, 618, 537 
 
 Norden Steamship Co. v. Dempsey 281, 
 
 283 
 North Brit. & Mercantile Ins. Co. v. 
 Lond. Liverpool & Globe Ins. Co. 119 
 
 PAGE 
 
 North of England Iron Steamship 
 
 Ins. Assoc. V. Armstrong .... 243, 299, 
 
 311, 974 
 
 North of England Oilcake Co. v. 
 
 Archangel Mar. Bk. & Ins. Co. .4, 113, 
 
 116, 274, 326, 390, 402, 1131, 1158 
 
 North Star, The 861 
 
 Northumbria, The 736 
 
 Norway, The 916 
 
 Notara v. Henderson 359, 362, 805 
 
 Nutt V. Bourdieu 774, 782, 783, 786 
 
 O. 
 
 Ocean, The 139, 142 
 
 Ocean Ins. Co. v. Carrington 836 
 
 Oddy V. BovHl 641, 763 
 
 Ogden V. Columbian Ins. Co 317 
 
 Ogden V. New York Firemen's Ins. 
 
 Co 972 
 
 Ogg V. Shuter 69 
 
 Olive V. Smith 212, 215, 216 
 
 Oliver v. Cowley 651 
 
 Oliver v. Greene 61 
 
 Oliverson v. Brightman. . . .401, 427, 1140 
 
 Oliverson v. Loughman 667 
 
 Olivier v. Maryland Ins. Co 506 
 
 Omoa Case, The. [See Le Cras v. 
 
 Hughes.) 
 
 O'Mealy v. Wilson 143 
 
 Oom {I.Bruce 134, 691, 1106 
 
 Oom V. Taylor 839 
 
 Oppenheim i>. Fry. .22, 247, 837, 854, 885 
 
 O'Reilly v. Gonne 505, 506, 842 
 
 O'Eeilly v'. Eoyal Exeh. Aes. Co. . . 842 
 Orrok v. Commonwealth Ins. Co. 886, 944, 
 
 946 
 
 Osaoar v. Louisiana Ins. Co 392 
 
 OsweU V. Vigne 633, 685 
 
 Ougier v. Jennings 280, 285, 397, 463, 
 
 679 
 Ovington v. BeU 207 
 
 Packet, The Ship 1164 
 
 Paddock v. Franklin Ins. Co 1169 
 
 Padstow Total Loss Ass., In re . . 154, 227 
 
 Page V. Rogers 1156 
 
 Page V. Thompson 737 
 
 Palmer v. Blackburn 321, 960 
 
 PS,lmer v. Fenning 408, 409 
 
 Palmer v. Marshall 404, 408, 409, 487 
 
 Palmer v. Pratt 26, 45, 62, 102 
 
 Palyart v. Leckie 134, 691, 1107 
 
 Paradise v. Sun Mutual Ins. Co. . . 62 
 
 Parfitt V. Thompson 656, 679, 1167 
 
 Park V. Hammond 1 77 
 
 Parke v. Hebson 66, 434, 435 
 
 Parker v. Beasley 221 
 
 Parker v. Carter , ' ' 212 
 
TABLE OF CASES. 
 
 XXYU 
 
 Parker v. Potts 665, 671, 679, 1169 
 
 Parker v. Smith 225 
 
 Parkin v. Diek 699 
 
 Parkin v. Tunno 428, 739^ Ho, 1161 
 
 Parkinson v. Collier 293, 396 
 
 Parkinson v. Lee 5 
 
 Parmeter v. Cousins 406, 664, 665 
 
 Parmeter v. Todhunter 957, 958, 1025, 
 
 1078 
 Parr v. Anderson. .288, 494, 495, 497, 1147 
 
 Parry v. Aberdein 1061 
 
 Parsons v. Mass. Ins. Co 394 
 
 Parsons «;. Scott 764, 1028, 1032, 1035 
 
 Patapsoo Ins. Co. v. Coulter. .38, 74, 760, 
 
 772, 779 
 Patapsoo Ins. Co. v. Souttgate 959, 1055 
 Patersou». Harris ..13, 47, 87, 721, 756 
 
 Patrick v. Eames 66, 437, 1162 
 
 Patrick v. Ludlow 506 
 
 Patterson v. Eitohie 1029, 1033 
 
 Pattison ». Mills 761 
 
 Pawson V. Bamevelt 516, 600 
 
 Pawsoni). Watson 615, 616, 517, 518, 
 
 519, 520, 525, 533, 536, 545, 1108 
 
 Payne v. Hutchinson 289, 387, 410 
 
 Pearson v. Commercial Union Ass. 
 
 Co 278, 488- 
 
 Peele v. Merchants' Ins. Co 969, 972, 
 
 1030, 1048, 1058 
 
 Peele v. Northcote 220, 223 
 
 Peisch V. Dixon 290 
 
 Pellas V. Neptune Mar. Ins. Co. . . 114 
 
 PeUy V. Eoyal Exch. Ass. Co. . .254, 278, 
 
 393, 431, 761 
 
 Penny v. New York Ins. Co 882 
 
 Penson v. Leo 1122, 1123 
 
 Peppin J). Solomons 1161 
 
 Perkins v. Washington Ins. Co 1128 
 
 Peters v. Phoenix Ins. Co 1004 
 
 Peters v. Warren Ins. Co. . . 24, 730, 753, 
 
 911, 1166 
 
 Phelps V. Auldjo 601 
 
 Phillips «. Barber 749, 790, 1168 
 
 * Phillips V. Champion 430 
 
 Phimps«>. Headlam..654, 657, 659,677, 
 
 772, 1165 
 Phillips w. Irving 407, 490, 492, 1140, 1147 
 Philhps V. Nadme ..654, 656, 679, 1049, 
 
 1050 
 
 Philpott V. Swann..728, 753, 803, 804, 
 
 1022, 1081, 1138 
 
 Phoenix Ins. Co. v. Pratt , 634 
 
 Phoenix Life Ass. Co., Ux parte 156 
 
 Phoenix, The 145, 625 
 
 Phyn V. Royal Exch. Ass. Co. . .452, 500, 
 
 776, 780 
 
 Pickup V. Thames Ins. Co 678, 679 
 
 PiescheU v. AUnutt 699 
 
 Pigot's case 261 
 
 Piponji. Cole 776, 778, 781 
 
 Pirie v. Steele 942 
 
 Pitman v. Universal Mar. Ins. Co. , .948, 
 
 986, 1163 
 
 PAaE 
 
 Pittegrew ». Pringle 404, 615 
 
 Pizarro, The 634 
 
 Planohe v. Fletcher ..132, 460, 580, 693, 
 
 741, 742 
 
 Plantamour ». Staples 399 
 
 Plummer v. Wildman 879, 880, 885 
 
 Poingdestre v. Roy. Ex. Ass. Co. ..941, 
 
 943 
 
 Pole V. Fitzgerald 1034 
 
 Polka, The 641 
 
 Pollard V. Bell 631 
 
 Polly, The 626, 632 
 
 Pond V. King 1034 
 
 Pontifex v. Bignold 1143 
 
 Portland, The 145, 624, 703 
 
 Potter V. Campbell 961, 966 
 
 Potter V. Marine Ins. Co 330 
 
 Potter V. Rankin. .444, 906, 960, 973, 984, 
 1077, 1080 
 
 Potts V. BeU . . , . , 703 
 
 Powell «;. Gudgeon .. 727, 743, 753, 801, 
 865, 894, 1166 
 
 Powell V. Hyde 754, 762, 842 
 
 Power J). Batcher 194, 196, 198, 210, 211, 
 
 217, 1142 
 
 Power c. Whitmore 880, 913 
 
 Powles V. Innes ... .4, 60, 115, 116, 1131, 
 
 1158 
 
 Pray v. Edie 107, 108 
 
 President, The 623 
 
 Preston i). Greenwood 276, 425, 429 
 
 Price V. BeU 631, 681, 683 
 
 Price V. Noble 1129, 1144 
 
 Prince v. Clark 171 
 
 Proudfoot V. Montefiore..l85, 551, 652, 
 664, 655, 557, 1140 
 Provincial Ins. Co. of Canada i>. 
 Leduc ....61, 364, 606, 969, 970, 1130 
 
 Puller V. Glover 62 
 
 Puller V. Halliday 62 
 
 Puller V. Staniforth 62 
 
 Purissima Concepcion, The 641 
 
 Q. 
 
 Quebec Marine Ins. Co. v. Com- 
 mercial Bk. of Canada . . 290, 502, 660, 
 652, 666, 667, 673 
 
 R. 
 
 Raine v. BeU 407, 482, 494, 604 
 
 Ralli». Jangon..63, 315, 802, 1007, 1016, 
 
 1017 
 RaUi V. Universal Marine Ins. Ass. 118, 
 
 327 
 
 Ralston v. Union Ins. Co 1004 
 
 Ramstrom v. BeU 268 
 
 Randal ». Oockran 974, 978 
 
 Ranger, The 712 
 
XXVlll 
 
 TABLE OF CASES. 
 
 FAOE 
 
 Kanken v. Beeve 473 
 
 BariVin v. Potter . .66, 67, 444, 960, 964, 
 
 966, 968, 978, 989, 997, 
 
 1002, 1021, 1046, 1073, 
 
 1096 
 
 Ratcliffe v. Shoolbred 539, 664 
 
 Eawlins v. Desborougli 1147 
 
 Eayner v. Godmond 827 
 
 Eayner v. Bitson 1 145 
 
 Bead v. Bonham .... 193, 957, 962, 1047 
 
 Beade v. Commercial Ins. Co 506 
 
 Bedman v. Loudon 452, 479 
 
 Bedman ». Wilson.. 653, 654, 655, 727, 
 772, 773, 1139, 1165 
 
 Bedmondv. Smith 688, 698, 1140 
 
 Redway v. Sweeting 1133 
 
 Beed v. Cole 72 
 
 Beed i>. Beere 253, 263, 271 
 
 Begina v. Amaud 87 
 
 Eeid V. Allan 157, 248, 1133 
 
 Beid V. Barby 353, 357, 679, 1071 
 
 Eeid V. Harvey 619, 573 
 
 Beidw. Bew 1138 
 
 Eeimer i\ Bingroae 1064, 1068 
 
 Bendsborg, The 625 
 
 Eeyner v. Hall 1094, 1095 
 
 Beyner v. Pearson 839 
 
 Bhind i: WiUdnsGn 59, 1158 
 
 Bioh i>. Parker 629, 680 
 
 Biohardson v. Anderson . . 187, 192, 206, 
 
 1151 
 
 Biohardson ». London Aes. Co 399 
 
 Biohardson v. Nourse. .350, 896, 901, 945 
 Bickards v. Murdook. . 182, 535, 666, 668, 
 
 592 
 
 Bickman v. Carstairs. .306, 379, 381, 388, 
 
 929, 937, 1112, 1138, 1157 
 
 Bidsdale v. Newnham 614 
 
 Eidsdale v. Shedden 253, 268 
 
 Biley V. Delafield 35 
 
 Eising V. Burnett 51, 1156 
 
 Bivaz V. Gerussi 302, 648, 662 
 
 Eoberts v. Fonnereau 520 
 
 Boberts v. Hardy Ii2 
 
 Eoberts v. Ogilby 160, 209 
 
 Bobertson v. Carruthers 996 
 
 BobertsouD. Clarke ..289, 363, 369, 996, 
 
 999, 1147 
 
 Bobertson v. Columb. Ins. Co 501 
 
 Bobertson v. Ewer 21, 728, 769, 800, 
 
 881, 882 
 
 Bobertson v. French . .20, 177, 239, 241, 
 
 277, 294, 373, 379, 380, 1153 
 
 Bobertson v. Hamilton 83, 164 
 
 Bobertson v. Marjoribanks .... 546, 1073 
 
 Bobertson v. United Ins. Co 41 
 
 Bobinson v. Gleadow 160, 164, 166 
 
 Bobinson v. Mar. Ins. Co 500, 509 
 
 Bobinson v. N. T. Ins. Co 90 
 
 Bobinson v. Price 853, 868, 884 
 
 Bobinson v. Tobin . , . .239, 262, 263, 272, 
 
 294 
 Bobinson v. Touray ,.263, 270, 316, 338 
 
 PAGE 
 
 Bobson V. Wilson 218 
 
 Bodooanaohi «. Elliott 403, 766, 1059 
 
 Boelandts v. Harrison 410 
 
 Eogers v. Davis 329, 1164 
 
 Bogers v. Maylor 1093 
 
 Bohlv. Parr 721, 756, 835, 1166 
 
 Boper V. English and Scottish Mar. 
 
 Ins. Co 157, 1132 
 
 Eoscow V. Corson , 780 
 
 Bose V. Hart 216 
 
 Bosetto V. Gumey. .743, 1038, 1057, 1064, 
 1069, 1070, 1071, 1072, 1076 
 
 Boss V. Hunter 780, 784, 1167 
 
 Boss V. Thwaites 27, 734, 857 
 
 Botch V. Edie 144, 767, 1035, 1041 
 
 Bothwell V. Cooke 1103 
 
 Bouth V. Thompson . .23, 49, 91, 92, 98, 
 
 99, 100, 111, 164, 166, 1110, 
 
 1130, 1149 
 
 Boutledge v. Burrell 600 
 
 BouxD. Salvador.. 10, 356, 367, 823, 953, 
 960, 978, 988, 989, 992, 996, 
 1000, 1001, 1002, 1005, 1006, 
 1008, 1063, 1068, 1099, 1142 
 
 Boworoft V. Bansmore 749, 1168 
 
 Buoker v. Allnutt 476, 479 
 
 Eucker v. Green 841 
 
 Buoker v. London Ass. Co 390 
 
 Buggies i>. Gen. Int. Ins. Co. . .655, 575, 
 
 585, 690 
 Eumball v. Metropolitan Bank .... 284 
 
 EusseU ». Bangley 199 
 
 Bussell V. Boehm 1 165 
 
 Bussell ». Bunskey 1098 
 
 Eussell V. Thornton 273, 674 
 
 S. 
 
 Sadler v. Church 934 
 
 Sadler v. Dixon. {See Bixon v. Sad- 
 
 „ ler) 659 
 
 Sage V. Middletown Ins. Co 421 
 
 Sailing Ship Garston Co. v. HioHe . . 289, 
 386, 390, '410, 411 
 
 Salisbury v. Townson 283, 462 
 
 Sally, The 624, 626 
 
 Saloucci V. Johnson 777 
 
 Salouoci V. Woodmass 622, 645 
 
 Saltus V. Ocean Ins. Co. . .805, 1006, 1081 
 Salvador v. Hopkins . . 279, 429, 463, 580 
 
 Samuel v. Boyal Exch. Aas. Co 415, 
 
 „ , 188, 1004 
 
 Sanohes v. Bavenport 175 
 
 Santissima Trinidad, The 712 
 
 Sarah Ann, The 356 
 
 Saj^gent v. Morris 1130 
 
 Sarquy v. Hobsou .... 727, 743, 753, 801, 
 
 c ^ T, 1166 
 
 baunders v. Baring 1009, 1063 
 
 Saunders v. Drew , , , . 64 
 
TABLE OF CASES. 
 
 XXIX 
 
 PAGE 
 
 Saunderson v. M'Callum 265, 266 
 
 Saunderson v. Symonda 264, 266 
 
 Sa-vrtell v. Loudon 270, 573 
 
 Soaife^). Tobia 915, 916 
 
 Soaramanga v. Stamp 507 
 
 Schibsby v. Westenbolz 642, 647 
 
 SohiefEelin v. New York Ins. Co. . . 805 
 
 Schooner Boston, The 507 
 
 Schooner Reeside, The 277 
 
 Schroder v. Thompson 491 
 
 Schultz V. Ins. Co. of North America 634 
 
 Sohulz V. Ohio Ins. Co 362 
 
 Schuster v. Fletcher 885 
 
 Scott «. Avery 1127 
 
 Scott V. BourdUlon , 287 
 
 Scott r. Irving . . 199, 200, 203, 204, 286 
 
 Scott V. Eowe 1128 
 
 Scott V. Thompson 501, 509, 781 
 
 Scottish Marine Ins. Co. v. Turner.. 728, 
 
 753, 954, 1019, 1022, 1023, 1074, 1075, 
 1084, 1086 
 
 Scull V. Briddle 355 
 
 Seagrave v. Union Marine Ins. Co. 64, 69, 
 
 72 
 
 Sea Ins. Co. v. Gavin 411 
 
 Sea Ins. Co. v. Hadden 975, 1097 
 
 Seaman v. Ponuereau 560, 675 
 
 Seamans v. Loring 408 
 
 Searle v. Scovell 907, 950 
 
 Seller v. M'Vioar 448 
 
 SeUert;. Work 176, 186 
 
 Seton V. Low 580 
 
 Sewall V, United States Ins. Co. . . 992 
 
 SeweU V. Eoyal Exch. Ass. Co 689 
 
 Seymour v. Lon. and Pro v. Mar. 
 
 Ins. Co 636 
 
 Shapley v. Tappan 429 
 
 Sharp V. Gladstone . . 800, 804, 805, 882, 
 
 976, 1083, 1089 
 
 Shawe v. Felton. .299, 300, 301, 311, 413, 
 
 939, 1004 
 
 Shee V. Clarkson 224 
 
 Shepeler v. Durant 135 
 
 Shepherd v. Chewter 1093, 1099 
 
 Shepherd v. Henderson 969 
 
 Shepherd v. Kotgen 875, 876 
 
 Shepherd v. "Wright 915, 1129 
 
 Sheriff v. Potts 482, 1093 
 
 Shipton V. Thornton. .358, 362, 743, 1020, 
 
 1076 
 
 Shirley v. Wilkinson 534, 561 
 
 Shoolbredw. Nutt 674, 588 
 
 Shore v. BentaU 676, 772, 773 
 
 Sibbald v. Hill 532, 639, 647, 590 
 
 Siflkenf. AUnutt 45, 1106 
 
 Siffken v. Lee 629 
 
 Simeon v. Bazett 738, 767 
 
 Simmondsw. White 910,911, 915 
 
 Simond v. BoydeE 1116, 1117, 1118 
 
 Simonds v. Hodgson . .20, 40, 41, 42, 88 
 
 Simpson v. Thompson 975, 1097 
 
 Sims V. Willing 916 
 
 Sisters, The 628 
 
 PAGE 
 
 Sleght V. Hartshorn 627 
 
 Sleght V. Rhiuelander 627 
 
 Small V. Gibson. (See Gibson v. 
 
 SmaU) 660 
 
 Smith V. Cologau 174 
 
 Smith V. Kirby 736 
 
 Smith V. Lascelles 84, 162, 170, 171 
 
 Smith ». Price 171 
 
 Smith V. Eeynolds 128, 1137 
 
 Smith V. Eobertson 968, 969 
 
 Smith V. Scott 758, 1166 
 
 Smith V. Surridge 406, 407, 490, 664 
 
 Smith V. Wright 284, 862 
 
 Snook u. Davidson 213 
 
 Scares v. Thornton 778, 787 
 
 Solly J!. Whitmore 480 
 
 Somes V. Sugrue 354, 1047 
 
 SpafEord v. Dodge 902, 906, 907 
 
 Sparkes v. MarshaU 60, 73, 114, 115, 
 
 117, 1131, 1159 
 
 Sparrow v. Carruthers 392 
 
 Spence v. Union Mar. Ins. Co 724 
 
 Spencer «. Franco 765 
 
 Spioer v. Franco 1034 
 
 Spitta V. Woodman 177, 379, 380 
 
 Spring V. South Carolina Ins. Co. . , 216 
 
 Staadt Embden, The 711 
 
 Stackpoole v. Simon 545 
 
 Stainbank v. Fenuing 40, 42, 46, 88, 
 
 348, 349 
 Stainbank ». Shepard..40, 42, 46, 88, 349 
 
 Stamma v. Brown 774, 776, 783 
 
 Stanwood v. Rich 674 
 
 Stead V. Salt 192 
 
 Steel V. Lacy 520, 623, 633, 682, 685, 
 
 1094 
 Stephens v. Australasian Ins. Co. 67, 101, 
 
 339 
 
 Stephens v. Beverley Ins. Co 423 
 
 Stephens v. Broomfield 1024, 1058 
 
 Stevenson v, Snow 1101 
 
 Stewarts. Aberdein ..196, 200, 205, 286, 
 1140, 1141, 1146 
 
 Stewart v. Bell 391, 580, 1165 
 
 Stewart v. Greenock Mar. Ins. Co. . . 65, 
 
 971, 974, 1002, 1004, 1084 
 
 Stewart v. Merchants' Mar. Ins. Co. 295, 
 
 829, 831 
 
 Stewart v. Morrison 519 
 
 Stewart v. Steele 946, 986 
 
 Stewart v. West Ind. and Pacific 
 
 Steamship Co 861, 870, 914 
 
 Stewart v. Wilson 673, 1139 
 
 Stirling i;. Thompson 1149 
 
 Stirling!). Vaughan..67, 92, 99, 100, 164 
 
 Stitt V. Warden 482 
 
 Stock V. IngHs 69, 71, 72 
 
 Stookdale v. Dunlop . . 39, 59, 72, 74, 75, 
 
 76, 1137 
 
 Stocker ii, Harris 317 
 
 Stocker v. Merchants' F. & M. Ins. 
 
 Co 572 
 
 Stockton & Darl. Ey. Co. v. Barrett 410 
 
XXX 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Stone V. Mar. Ins. Co. of Gothenburg . . 6, 
 11, 235, 275, 418, 430 
 Stoomvart Matsoliappy Nederland v. 
 
 P. & 0. Co 759 
 
 Stowe V. Quemer 1151 
 
 Stribley v. Imperial Mar. Ins. Co. . . 185, 
 
 652, 556, 558, 660, 663, 664, 578, 
 
 591, 693, 1140 
 
 Stringer v. Eng. & Soot. Mar. Ins. 
 
 Co. ..961, 964, 982, 994, 997, 998, 1058 
 
 Strong V. Harrey 153 
 
 Strong v. Natally 392 
 
 Stronar v. New York Firemen's Ins. 
 
 Co 906 
 
 Success, The 627 
 
 Suffiell V. Bank of England 26 1 
 
 Sunderland Ins. Co. v. Kearney. . . . 1132 
 
 Susa, The 624 
 
 Sutherland !>. Pratt.... 60, 82, 236, 1132, 
 1137, 1168 
 
 Suydam v. Marine Ins. Co 492, 959 
 
 Svensdenr. "Wallace ..861, 879, 881, 886, 
 
 887, 898 
 Sweeting v. Pearoe . .200, 202, 286, 1140, 
 
 1146 
 Syers v. Bridge 237, 494, 497 
 
 T. 
 
 Tahhs w. Bendelaok 139, 623 
 
 Taitv. Levi 675, 773, 1103 
 
 Tamvaco v. Lucas 118, 327 
 
 Tanner I). Bennett. .731, 1000, 1046, 1163 
 
 Tappenden v. EandaU 1105, 1107 
 
 Tasker v. Cunningham 468, 459 
 
 Tasker v. Scott 102 
 
 Tate V. Hyslop 101, 679, 1097 
 
 Tathamv. Hadgson ..725, 732, 765, 844, 
 
 1166 
 
 Taylor v. Curtis 721, 754, 852, 869 
 
 Taylor v. Dean 1134 
 
 Taylor v. Dewar 24, 69, 252, 730 
 
 Taylor v. Dunbar 722, 755 
 
 Taylor v. Lowell 604 
 
 Taylor v. Wilson 34 
 
 Teignmouth Mut. Ship. Ass. (Mar- 
 tin's claim). In re 218, 228 
 
 Tennant v. Elliott 208, 218, 1107 
 
 Tennant v. Henderson 680 
 
 Thellusson v. Bewick 323 
 
 Thellusson v. Eergusson . .461, 454, 613, 
 
 616 
 Thellusson v. Eletoher .... 121, 125, 958, 
 
 968, 1025 
 
 Thellusson v. Pigou 613 
 
 Thellusson v. Shedden 796, 1163 
 
 Thellusson {). Staples 613 
 
 Thomas «). Eoyle '. 1163 
 
 Thomas v. Royal Exch. Ass. Co 604, 
 
 506 
 Thompson «'. Chamock 1127 
 
 PAOB 
 
 Thompson v. Colvin 1047, 1049 
 
 Thompson v. GiUespey 614 
 
 Thompson v. Havelook 89 
 
 Thompsons, fiopper . .451, 661, 663, 749 
 
 Thompson v. Hunter , " 942 
 
 Thompson v. Irving 1 140 
 
 Thom.pson v. Redman 219 
 
 Thompsons. Reynolds. .24, 252, 301, 730 
 Thompson i>. Rowcroft ...... 1074, 1083 
 
 Thompson v. Royal Exch. Ass. Co. . . 1010, 
 
 1024, 1058, 1068 
 
 Thompson v. Taylor .... 32, 66, 440, 1161 
 
 Thompson v. "Whitmore 749, 1 168 
 
 Thome v. Deas 169 
 
 Thornely v. Hebson 1026, 1039 
 
 Thornton 4). Lance 1170 
 
 Thornton v. Royal Exch. Ass. Co. . . 679, 
 
 1169 
 Tidmarsh ». Washington Ins. Co. . . 670, 
 
 1168 
 
 Tierney v. Etherington 394, 402 
 
 Tobinu. Harford.. 25, 305, 307, 308, 388, 
 438, 929, 937, 949, 1112, 1167 
 
 Toddr.Reid 199 
 
 Todd V. Ritchie 776, 1168 
 
 Tongei". Watts 433, 441 
 
 Toulmin v. Anderson 781 
 
 Toulminii. Inglis 499, 781 
 
 Touteng v. Hubbard 737, 767 , 
 
 Townson <i>. Guyon 462 
 
 Trayes v. Worms 905, 909, 1129 
 
 Treadwell v. Union Ins. Co 667 
 
 Tredwiu r. Hohnan 1127 
 
 Trident,- The, Simson 349 
 
 Trinity House v. Clark . 786 
 
 Trott V. Wood 283 
 
 Trueman v. Loder 277 
 
 Truscott V. Christie 66, 434, 435 
 
 Tudor V. Macomber 899 
 
 Tuite V. Iloyal Exch. Ass. Co. . .321, 929 
 
 Tully V. Howling 1022 
 
 Tunno v. Edwards . . 300, 978, 995, 1058, 
 
 1096 
 
 TurnbuU v. Janson 649, 668 
 
 TumbuU V. Woolfe 153, 273, 1134 
 
 Turner v. Trustees of Liverpool 
 
 Docks 69 
 
 Turpin v. Bilton .... 153, 176, 206, 1143 
 
 Twemlow v. Oswin 746, 1160 
 
 Tyler v. Home 521, 1108 
 
 Tyrie v. Fletcher 372, 1101,1103 
 
 Tyson v. Gurney 622 
 
 U. 
 
 Udnyi). TJdny 135 
 
 Uhde V. Walters 290, 368 
 
 Underwood v. Robertson 1000, 1067 
 
 United Ins. Co. v. Lenox 1086 
 
 United Ins. Co. v. Robinson 984 
 
 United States v. Wilder 891 
 
TABLE OF CASES. 
 
 XXXI 
 
 Urquhart v. Bernard , .282, 470, 471, 541 
 TJslier V. Noble . . 300, 303, 321, 929, 932, 
 
 933 
 
 Uspariclia v. Noble 134, 1130 
 
 Uzielli V. Boston Mar. las. Co. . . 103, 105, 
 
 794 
 
 Vallancej;. Dewar 280, 284, 397, 409, 
 
 463, 679 
 Vallejo V. Wheeler .... 774, 780, 781, 786 
 
 Van Baggen ». Baines 410 
 
 Vandyok v. Hewitt 691, 1106 
 
 Van Omeron v. Dowick 357, 1066 
 
 Venus, The 141, 142 
 
 Vezian v. Grant 610 
 
 Vigilantia, The 145, 624, 627, 703 
 
 Violett V. AUnutt 384, 474 
 
 Vlierboom v. Chapman 356, 358, 1022 
 
 Volant, The 736 
 
 Von Tugeln v. Dubois 518, 637 
 
 Vreede Scholtys, The 627 
 
 VroTV Anna Catharina, The .... 145, 626 
 
 Vrow Elizabeth, The , 627 
 
 Vrow Margaretha, The 624 
 
 W. 
 
 "Wads-worth v. Pacific Ins. Co. . .391, 1018 
 
 Wake V. Atty 176, 691 
 
 Wake V. Harrop 262 
 
 Walden v. Firemen's Ins. Co 344 
 
 Waldeu v. New York Pire Ins. Co . . 688 
 
 Walden v. Phoenix Ina. Co 971 
 
 Waldron ». Coombe 929 
 
 Walker v. liOuisiana Ina. Co 946 
 
 Walkers. Maitland ..654, 676,772, 1166 
 
 Walker v. United States Ins. Co 897, 
 
 976 
 
 Wallace v. Fielden 349 
 
 Wallace ». Tellfair 169, 173 
 
 WakL V. Thomson 806 
 
 Walpole v. Ewer 913 
 
 Walthew v. Mavrojani 886, 887, 898 
 
 Waples V. Eames . . '. 416 
 
 Ward V. Beck 86 
 
 Ward V. Harris 283 
 
 Ward V. Wood 498 
 
 Wixrdrop-Sims, The 767 
 
 Warre v. MiUer . .68, 388, 412, 432, 434, 
 436, 439, 485 
 
 Warren ». Peabody 317 
 
 Warwick v. Slade 167 
 
 Waters v. Merchants' Ins. Co. . . 760, 772 
 Waters v. Monarch Life Assur. Co. . 82 
 Watson V. Clark. .652, 666, 670, 671, 678, 
 
 679, 1169 
 Watson V. Ins. Co. of N. Amer. , . 959 
 
 Watson V. King 1152 
 
 Watson V. Shankland ! 63 
 
 Watson 41. Swann 112, 1131, 1149 
 
 Watt V. Potter 350 
 
 Waugh V. Morris 688, 689, 704 
 
 Way V. Modigliaui 367, 373, 374, 467 
 
 Webster v. Be Tastet 42, 45, 89, 90, 
 
 184, 185, 206 
 
 Webster v. Poster 666 
 
 Wedderbnrn v. Bell 649, 672 
 
 Weir«). Aberdein 270, 502, 661, 1148 
 
 Wells V. Hopwood 825, 828 
 
 WeUs V. Philadelph. lus; Co 82 
 
 Wells V. Williams 134 
 
 Welvaart Van PUlaw, The 635 
 
 West India Telegraph Co. v. Home 
 
 & Colonial Ins. Co 663, 761, 772, 
 
 773, 790, 1168 
 West of England Bk. v. Canton Ins. 
 
 Co 1146 
 
 Westbury v. Aberdein . . . .669, 591, 1140, 
 
 1147 
 
 Weston V. Emes 276 
 
 Westwood V. Bell 212, 213, 214 
 
 Whitecross Wire, &c. Co. v. SaviU . 861 
 
 Whitehead v. Bance '. . 1034 
 
 Whitehead v. Vaughan 212, 216 
 
 Whitfield V. Parfitt 85 
 
 Whitney «;. American Ins. Co. ..316, 389 
 
 Whitney v. Haven 606 
 
 Whittingham v. Thornburgh . .547, 1108, 
 
 1128 
 
 Whitteridge o. Norris 863 
 
 WhitweU V. Harrison 402 
 
 Wiggiu 1!. Amory 496, 501 
 
 Wiggin V. Bordman 456 
 
 Wigglesworth v. Dallisou , 642 
 
 Wilbraham v. Wartuaby 712, 733 
 
 WUcooks V. Union Ins. Co 639, 777 
 
 Wilkes V. People's Fire Ins. Co 57 
 
 Wilkie V. Geddes 649, 673 
 
 Wilkinson v. Clay 206, 207 
 
 Wilkinson v. Coverdale 169, 186, 207 
 
 Wilkinson v. Hyde 27, 315, 936, 1019 
 
 Wilkinson v. Lindo 205 
 
 WiUard v. Dorr 984 
 
 Willes V. Glover 634, 565, 691 , 1147 
 
 William, The 626, 632 
 
 Williams v. Leper 212 
 
 Williams v. London Ass. Co 314, 906 
 
 Williams v. Marshall 608 
 
 WiUiams v . North China Ins. Co. . . 34, 63, 
 
 167, 306 
 
 Williams v. Sb.ee . . » 479, 484 
 
 WiUiams v. Smith 976 
 
 Williamson v. Innes 432, 439, 1161 
 
 WilUs V. Cooke 37, 68 
 
 ■Willis V. Palmer 66 
 
 Williaon v. Patterson 142 
 
 Wilson V. Bank of Victoria 852, 883 
 
 Wilson V. Creighton 220 
 
 Wilson V. Ducket 647, 1108, 1128 
 
 Wilson V. Forster 983, 1044, 1073 
 
xxxu 
 
 TABLE OF CASES. 
 
 PAQB 
 
 Wilson V. Jones 47, 58, 78, 79, 87, 
 
 670, 678, 679 
 
 ■Wilson V. Marryatt. . . . UO, 141, 143, 623, 
 
 689, 697, 703 
 
 Wilson V. Martin 34, 35, 63, 64 
 
 Wilson V. Millar 357, 1066 
 
 Wilson V. Nelson 243, 298 
 
 Wilson V. Rankin 345, 762, 1140 
 
 Wilson V. Royal Exch.. Ass. Co.. .46, 357, 
 
 1067 
 
 Wilson «). Smith 820,821 
 
 Wilton V. Reatson 108 
 
 Winder v. Wise 1148 
 
 Wingate v. Foster 389 
 
 Winter v. Haldimand . .31, 34, 35, 46, 65 
 
 Winthrop v. Union Ins. Co 501, 503 
 
 Woloott V. Eagle Ins. Co 29 
 
 WolfE V. Homoasde .... 80, 81, 107, 109, 
 162, 164, 1130, 1149 
 
 Wood V. Worsley 600 
 
 Woods V. Dean 958 
 
 WooU V. Olaggett 603, 674 
 
 Woolmer v. Mmlman 622 
 
 Woolridge V. BoydeU 367, 454 
 
 Wright V. Barnard 679 
 
 Wright *. Marwood 859 
 
 PAGE . 
 
 Wright ». Shifiner 613 
 
 Wright V. Welbie 704, 1168 
 
 Xenosi). Fox 252, 731, 757 
 
 Xenosi). Wickham .. 187, 190, 194, 196, 
 
 196, 198, 206, 210, 217, 272, 
 
 273, 1143, 1151 
 
 Y. 
 
 Ta Macraw, The. {See Glasgow, The.) 
 
 Yates V. Whjte 975 
 
 Young V. Bank of Bengal 216 
 
 Young V. Turing 309, 1047 
 
 Zaoharie v. New Orleans Ins. Co. . . 415 
 
 ADDENDUM. 
 
 Three per Cent. Memorandum on Ship. — A ship insured in a time policy containing the 
 usual 3 per cent, clause had ended a -voyage and deliyered her cargo, and was then 
 found so foul, that she must he docked in order to be scraped, cleaned, and painted. 
 After being placed in dock it was found on survey that her stem post had been 
 fractured by a peril of the sea. The repair of this injury took eight days. The clean- 
 ing, scraping and painting reqtured three days ; but as both repairs and cleaning went 
 on together, it became a question on which depended the liability of the insurer under 
 the 3 per cent, clause how much of the dock charges were to be attributed to the repairs 
 of the average loss. — Held, in the Court of Appeal, and by the House of Lords, that 
 half the dock charges for the three days must be allocated severally to the cleaning and 
 the repairs ; the other five days being entirely due to the repairs. The consequence 
 was that the insurer became liable for the average loss. Marine Ins. Co. v. China 
 Transpacific S.S. Co., 11 App. 0. 673. 
 
PART I. 
 
 OP THE OONTKACT OP MARINE INSURANCE. 
 
 77 
 
CHAPTEE I. 
 
 GENERAL PRINCIPLES OP MARINE INSURANCE. 
 
 Marine Insurance, although perplexed with questions of The contract, 
 great refinement and difficulty arising out of the intricate 
 details of business and the intervention of fortuitous events, 
 is yet of aU the contracts known to the oommercial law the 
 simplest perhaps in respect of principle and the most philo- 
 sophical in point of juridical development. The salutary 
 nature of its ohjeot is pointed out by the same word which 
 determines its principle and defines the whole course of legal 
 decision. In its essential nature and in all its incidents it is 
 a contract of indemnity. With this for its object, it seems 
 to have originated with the early necessities and advantages 
 of modem commerce. By this it is rigorously construed in 
 our courts of justice, whatever be the use and purpose to 
 which it happens to be bent. And from this the British 
 Legislature have vigilantly provided that it shall not be 
 diverted in order to serve the ends of the gambler. 
 
 Hence an insurable interest, of appreciable commercial Insurable 
 value, in the subject of insurance is of the very essence of 
 the right to recover upon this contract.^ In the absence of 
 this the plaintiff is not damnififid, although there has been a 
 total loss, and notwithstanding he may have had at the time 
 of effecting the policy such an interest as enabled him then to 
 make a valid contract. If A. has a cargo of seed on its way 
 by the ship Pomona from Taganrog to London, covered by 
 an insurance to the full value, and sells it before arrival to B., 
 the policy from the moment of the sale ceases to be of any 
 value to A. But "to B., in virtue of his acquiaed interest in 
 
 1 Luoena v. Craufurd, 2 B. & P. N. E. 269. 
 b2 
 
policies. 
 
 GENERAL PRINCIPLES [PART I. 
 
 the cargo, it becomes of value in ease A. agrees to hold 
 the policy on his behalf or assigns it over to him.^ If B. 
 before the arrival of the ship resells the cargo to 0. to be 
 delivered at London, 0. is incapable of an assignment of the 
 policy because the entire risk remains upon B.,^ and there- 
 fore B. retains his' insurable interest notwithstanding his sale 
 of the cargo, and is entitled to recover on the policy in case 
 of loss. Any damnification of C. following upon a loss of the 
 cargo by perils insured against, cannot arise except from a 
 breach of B.'s contract to deliver, and therefore that is the 
 basis and form of his action. But if 0. were nevertheless 
 allowed to recover on a policy upon the cargo, this right to 
 recover could not arise upon a contract of indemnity, that is 
 of marine insurance, since by supposition he has no interest 
 in the cargo at the time of its loss' through which he could 
 be damnified by its destruction. 
 
 A policy such as could be underwritten for 0. under the 
 circumstances in this hypothesis would be a contract not of 
 indemnity but by way of wager on the event of the voyage. 
 Policies of this nature appear to have come much into vogue 
 in this country at a time when the romantic nature of British 
 adventure in the Eastern Seas had the effect of introducing 
 extravagant speculation into the business of the merchant, 
 and of at length inducing all classes to run riot in this species 
 of lottery, eager to brave ruin for the uncertain chance of 
 instantly realizing a fortune. These contracts were decided 
 to be lawful, and continued to be so held in our courts of 
 justice until the Legislature int^sfered in 1746, having in 
 1720 passed the Bubble Act and in 1734 the Act against 
 Stockjobbing. On less doubtful principles than in the two 
 other instances the 19 Geo. 2, c. 37, declared all policies by 
 
 ' Powles V. Innes, H M. & W. 10. falling-iu of the life ; Dalby v. The 
 
 ' See North of England Pure Oil- Indian and London Life Assurance 
 
 cake Co. v. Archangel Maritime Bk. Co., 16 C. B. 365 ; a perfectly legal 
 
 &In8. Co., L. R., 10 Q,. B. 249. contract, though not of indemnity, 
 
 2 Differing therefore entirely from provided it he -within the limits pre- 
 
 life insurance, which is merely a con- scribed by the U Geo. 3, c. 48. 
 
 tract to pay a sum of money on the 
 
CHAP. I.] OF MARINE INSURANCE. 
 
 way of gaming or wagering to be illegal in respect of British 
 sHps and cargoes, with some few and these now almost obso- 
 lete exceptions. It is siirprising to find an English lawyer 
 so late as the time of Mr. Christian's edition of the Commen- 
 taries disputing the existence of any difference between these 
 and contracts of marine insurance properly so called. It is 
 unnecessary to appeal against this opinion, as does Mr. Phillips 
 to the authority of Emerigon and Valin; the distinction rests 
 on the essential nature and objects of Marine Insurance as 
 being a contract of indemnity ; a distinction held in view by 
 the jurisprudence of all commercial countries, and so strictly 
 observed now by the spirit of English law that a policy not 
 expressly dispensing with proof of interest implies an insur- 
 able interest, which he that puts the contract in suit may be 
 put to prove in the Courts of this country. 
 
 Out of this essential character of the contract arises the Good faith, 
 necessity for that good faith which is required to a greater 
 degree in this than in any other contract not made between 
 persons in confidential relations.^ On questions of pur- 
 chase and sale, provided there is neither fraud nor misrepre- 
 sentation on either side, the prevailing maxim of the law is 
 Caveat emptor? In contracts of guarantie, the guarantor 
 voluntarily assumes the position of friend to him whose 
 credit is in doubt, thereby impliedly waiving all information 
 beyond that which his questions provoke, so that the only 
 obligation on the other side in respect of prior information is 
 not to conceal when inquiry is made.' An entire change of 
 obligations takes place in respect of the parties when 
 strangers come together to negotiate a contract of indem- 
 nity. This probably never happens upon view of the 
 subject of insurance : most probably that is at an un- 
 approachable distance, and in the midst of the very perils 
 against which an indemnity is sought. The nature of these 
 
 1 Carter ». Boehm, 3 Burr. 1906. 4 Exoh. 49. 
 
 •■' Parkinson v. Lee, 2 East, 314 ; ' Lee v. Jones, 14 C. B., N. S. 
 
 and see Jones v. Just, L. R., 3 Q. B. 386 ; 17 C. B., N. S. 482 ; 34 L. J. 
 
 197, and Mody v. Gregson, L. E., (0. P.) 131. 
 
g GENERAL PRINCIPLES [PART I. 
 
 perils, lae it of harbours, rivers, or seas, is matter of common 
 knowledge between tlito. That the ship, whether she be 
 the proposed subject of insurance or the actual means only 
 of carriage, is tight, staunch, strong, and in every way fitted 
 for the voyage, is the most favourable assumption from 
 which the negotiations can start. That then being assumed 
 as a fixed condition of their stipulations, the existence mean- 
 while of any state of facts which has the efEect of removing 
 entirely or somewhat aggravating the necessity for insurance, 
 if a matter peculiarly within the knowledge of that party 
 whose interest lies in misrepresenting or concealing it, goes 
 to the essence of the contract, and if covered by the terms of 
 the policy without the consent, in consequence of the igno- 
 rance, of the other contracting party, renders the contract a 
 nullity. The underwriter, e.g., privately knows that the 
 ship has arrived all safe, or the merchant that she is wrecked, 
 or has taken the ground, or has necessarily sought a port of 
 distress for repairs ; the contract made in ignorance of this is 
 of no binding force on the other party. On the contrary, if 
 made in ignorance by both, and the subject of insurance is 
 existing, or the words lost or not lost be introduced,^ the con- 
 tract is binding.^ It hence appears that marine insurance is a 
 contract uberrimm fidei, not because it appeals specially to the 
 popular sentiment of fairness, or the stricter notion of equity, 
 but because being a contract of indemnity it supposes disclo- 
 sures frequently adverse to the interests of the man required 
 to make them, simply however in order to that consent and 
 agreement ad idem between the parties without which any 
 contract whatever is altogether impossible. 
 
 Conditions of An indemnity however against the consequences of a per- 
 the contract. , , . , , , ,1.0 
 
 son s own neghgence or wrong would be a contract, 11 persons 
 were found inconsiderate enough to enter into it, inimical to 
 sound public policy and the general interests of mankind. 
 
 ' I am aware that I am here in- Stone ». Marine Ins. Co. Ocean, 
 
 troduoiag a proviso which some Limited, of Gothenburg, 1 Ex. Div. 
 
 think unnecessary. 81, 86 ; Bradford v. Symondson, 7 
 
 2 Accordingly, per Bramwell, B., Q. B. D, 466 ; 50 L. J. (Q. B.) 582. 
 
CHAP. 1.] OF MARINE INSURANCE. 7 
 
 But marine insuranoe, being wholly and only a contract of 
 indemnity, is therefore universally received and construed as 
 involving certain unexpressed but well-understood conditions 
 against the negligence or wrong of the parties, in virtue of 
 which upon the intervention of such wrong or negligence 
 the contract becomes void. 
 
 The very ohiefest of these comprises that assumption Seaworthi- 
 already described as the one fixed point among all the un- 
 stable, ever-shifting, and uncontrollable elements with which 
 the contract deals. The winds and the waves are not under 
 the hand of man. Yet their ordinary strength may be 
 calculated ; their usual moods and shifting varieties may be 
 humoured. The ship may be made strong to contend ; she 
 may be manned and equipped with skill, rope, sail, and rudder 
 to trim to the wiads and to ride the waves. These are things 
 within the compass of human power to foresee and provide 
 for. It is not unreasonable to expect such provision at the 
 hand of the assured. In his own interest he would certainly 
 do his best to protect himself against such casualties of 
 maritime traffic. He is not allowed to slack this effort when 
 he puts himself under the protection of another who assumes 
 the risk. He cannot even shift from his own shoulder the 
 responsibility of seeing by inspection whether the state of the 
 vessel fulfils the requirement. It is a tacit condition in the 
 contract that the ship is seaworthy; the insurer proceeds 
 upon the footing that she is so, and if she be otherwise the 
 assured is unprotected, notwithstanding the policy. 
 
 But as the ship may be insured to lie in port, to navigate Relative use 
 rivers, or to sail the ocean, seaworthiness, the commoner 
 expression in use to describe the condition in question, is 
 necessarily a relative term capable of a meaning suitable 
 to whichever of these intentions may be expressed in the 
 policy.i A different state of the hull, rigging, and stores, 
 a different state of the crew is signified by the term as it 
 
 ' Per Parke, B., Dixon v. Sadler, 33 L. J. (Q.B.) 17; BouiUon «;. Lup- 
 5 M. & W. 414 ; T^"in V. Hooper, 2 ton, 33 L. J. (0. P.) 37. 
 H. & N. 277 ; Burges v. Wiokham, 
 
8 GENERAL PKINCIPLES [PART I. 
 
 becomes applicable to a contemplated difEerenoe of circum- 
 Eestrioted de- stances affecting the ship. Yet here again a new difficulty 
 
 mands of the , -kf-ii* nj-i* j** i. 
 
 law in respect anses. Mere duration of time being a measure oi incessant 
 
 tion"° °°"'^' decay, the seaworthiness of the ship deteriorates every hour 
 
 from that cause alone, irrespective of the active forces which 
 
 assail her, producing tear and wear.^ Human power is quite 
 
 insufficient to keep her seaworthiness permanently up, and if 
 
 the policy were to be void upon this falling below a fixed 
 
 point, insurance would practically be a nullity. Human laws 
 
 however make account of human weakness ; they are satisfied 
 
 if the ship be seaworthy at the time when the policy 
 
 attaches, — that is to say, when she begins to lie in port, or 
 
 In case of breaks ground to set forth on 'her voyage.'' It is a remark- 
 time policies. , , , , . 
 
 able extension of this philosophical indulgence accorded to 
 
 human infirmity that by the English law this condition is 
 held inapplicable to time policies, except perhaps under cir- 
 cumstances both special and rare. The period of insurance 
 might expire in the middle of a voyage under circumstances 
 in which the ship neither was nor could be made seaworthy, 
 and the assured might be prevented by this condition, if it 
 attached, from effectually renewing the policy in presence of 
 the very perils that render insurance expressly desirable. 
 This general rule of marine insurance was therefore in such 
 a case dispensed with in favour of that universal canon of 
 law, — ad impossibiHa nemo tenetur.* 
 Condition Again, if a man of his own wrong do that which exposes 
 
 assnred's own his Vessel Or his cargo to loss, — if he knowingly or negli- 
 ™^' gently send the ship to sea in an unseaworthy condition,* 
 
 —if he employ the ship in a trade that is illegal,— for 
 instance, to run smuggled goods or to commerce with the 
 
 ^ Per Privy Council, in Biccard v. ance with tHa. 
 
 Shepherd, 14 Moo. P. C. 471. * Dudgeon v. Pembroke, L. E., 9 
 
 ' Prohably the law of the United Q. B. 581 ; 1 Q. B. D. 96. The 
 
 States is more exacting. judgment of the Court of Appeal in 
 
 s Gibson v. SmaU, 4 H. of L. Cas. this case, to the efCect that there is 
 
 353 ; Pawcus v. Sarsfield, 6 E. & B. an implied condition of seaworthi- 
 
 199—205; Dudgeon ». Pembroke, ness in time policies, was reversed by 
 
 2 App. Cas. 284. The law of the the Lords, 2 App. C. 284. 
 United States is not quite in accord- 
 
CHAP. 1.] OF MARINE INSURANCE. 9 
 
 enemy, — or if he constitute tlie cargo of uncustomed goods, 
 or comprise in it goods which are contraband of war, — or if he 
 offend against the laws of his own country or those of that 
 which he is trading with, or, during the existence of a war, 
 although his own country be no party to it, against the law 
 of nations by sailing his ship imperfectly or improperly 
 documented, — he forfeits his right to protection under the 
 policy, in virtue of one of those tacit conditions on which 
 the contract, as one of indemnity, limited and modified by 
 the submission exacted of the parties by these various laws, 
 necessarily proceeds. Nullus commodum capere potest de 
 sua injuria propria. 
 
 Already we have adverted to one of the chief assumptions tMh-'s as- 
 at the basis of the negotiations for a policy, that the ordinary ^^ to the 
 character of the navigation involved, its perils, difficulties, usurer, 
 and intricacies, is matter of common knowledge between the 
 parties. Without any mention of them, the underwriter is 
 held to be cognizant of all such risks as are immediately 
 proper to the navigation involved. Indeed, so extremely to 
 the verge of these natural risks of the voyage is the con- 
 struction of the contract pressed against him, that the 
 existence of an established light was held to be no element 
 proper to his calculations, notwithstanding its importance 
 was so confessedly great that, in a time of war, it was ex- 
 tinguished with a hostile intention against vessels navigating 
 that coast. ^ 
 
 It is a counterbalance to these obligations of the insurer Obligations of 
 that the assured is tacitly bound to observe the limits pre- aocordanoe 
 scribed to bim by usage in pursuing the voyage. The most '^^ *a8-*°'^' 
 obvious breach of this general obligation is by deviation sumption, 
 without just cause or express permission from the proper 
 route between the termini laid down in the policy.^ A ship- 
 owner might indefinitely aggravate the risks either by calling 
 at intermediate ports or cruising for one purpose or another 
 
 ' lonides v. The Universal Marine ' Elliott v. Wilson, 7 Brown, P. C. 
 
 Ins. Assoc, 14 C. B., N. S. 269 ; 32 459 ; Davis v. Garrett, 6 Bing. 716. 
 L. J. (C. P.) 170. 
 
10 
 
 GENERAL PRINCIPLES 
 
 [PAKT I. 
 
 Breach of 
 condition need 
 not be the 
 cause of loss. 
 
 Actual ex- 
 posure to the 
 perils, indis- 
 pensable. 
 
 in the open sea, but it is impossible to suppose that he could 
 thereby enlarge the obligations of the other party to the 
 contract. The condition we are considering thus appears to 
 be something more than the result of conventional usage. 
 It necessarily enters into the essential notion of such a 
 contract as that of marine insurance. 
 
 There is this one thing which is common to all the con- 
 ditions whether implied or expressed in the contract of 
 marine insurance, that it is quite unnecessary to trace the 
 loss to the breach as the cause of it. The breach immediately 
 avoids the contract ; it is the subsequent occurrence of loss 
 which gives the previous breach its importance, and there is a 
 natural, but erroneous tendency of the mind to assume that 
 some immediate connection should exist between them, such 
 as would place them in the relation of cause and effect. The 
 contract is void from the committing of the breach, and the 
 subject of insurance remains afterwards uncovered as to the 
 perils in the policy.^ An illustration of this same rule of law, 
 operating indeed a different result, is furnished by the effect 
 given to the memorandum — " free of average unless general 
 or the ship be stranded." If the vessel be stranded at any 
 point in the course of the voyage, and an average loss at the 
 same or any other point occurs, the assured is entitled to 
 recover, notwithstanding the entire want of any connection 
 between the loss and the stranding, provided only in case of 
 a policy on goods that at the time of the stranding the goods 
 were on board.^ 
 
 What is hitherto said shows how impossible it is to speak 
 of marine insurance without reference to perils. They are 
 the occasion of the contract being made, and without ex- 
 posure to them it never applies.' With the commencement 
 of such exposure of the subject insured, the policy is said to 
 attach, and any loss that occurs before, let the cause be what 
 
 ' Davis V. Garrett, 6 Bing. 716. 
 ' Burnett ». Kensington, 7 T. E. 
 210 ; see the argument and judgment 
 
 in Eoux V. Salvador, 3 Bing. N. 0. 
 266. 
 
 ' Halhead v. Young, 6 E. & B. 
 312 ; Harrison v. Ellis, 7 E. &B. 465. 
 
CHAP. I.J OF MARINE INSURANCE. 11 
 
 it may, is uncovered. Therefore a ship insured for a voyage 
 to such, a place "from London" may be burnt or sunk, or 
 otherwise sufEer a total or an average loss in the port of 
 London without any right of recourse against the under- 
 writer. The perils against which he indemnifies begin under 
 such a policy from the moment that the vessel breaks ground 
 to set forth on her voyage. The risk in a voyage policy on 
 ship usually continues till the vessel " is moored at anchor 
 twenty-four hours in good safety." The beginning and the 
 ending are fixed by the terms of the contract. Suppose a 
 total loss happens before the poUoy attaches, the underwriter 
 pays nothiQg, and returns the premium received ; the former 
 for the reason already given, the latter because there has 
 been a complete failure of consideration for what was other- 
 wise a valid and binding contract. If the policy have been 
 made in ignorance that the ship had abeady arrived, the 
 risk, not of future peril, but of damage already sustained on 
 the voyage, involves the liability of the insurer on his con- 
 tract, and consequently entitles him to retain the premium.^ 
 
 We have been considering a very important limitation The loss must 
 upon the contract. Another of not less importance remains penis insured 
 to be considered. If the underwriter had undertaken to a&a,mstas 
 
 causes 
 
 stand between the assured and any loss or damage of the proximo. 
 subject of insurance, however caused in the course of the 
 voyage, many would find their opinion of his liabilities jus- 
 tified, and some jmies their verdict sustained, by the contract 
 between the parties. But the contract expressly specifies the 
 perils insured against, and the law afterwards discriminates 
 with a j'ufit precision between the direct and indirect opera- 
 tion of attendant causes, which, though adequate to the effect, 
 and even contributory to the result, might not, in fact, be the 
 proximate, immediate, producing cause of the loss. " It were 
 infinite," says Lord Bacon, "for the law to consider the causes 
 of causes, and their impulsions one of another j therefore it 
 contenteth itself with the immediate cause, and judgeth of 
 
 ' stone V. Marine Ins. Co. Ocean, Limited, of Gothenburg, 1 Ex. Div. 
 81, 85. 
 
12 GENERAL PRINCIPLES [PART I. 
 
 acts by that, without looking to any further degree." The 
 general maxim thus explained, which is not inapplicable to 
 the acts of voluntary agents, is of singular applicability to 
 the operation of natural causes : In jure (asseourationis mari- 
 timse) causa proxima, non remota, speotatur. Under a policy 
 on cargo, where cofEee from Eio Janeiro to New Orleans or 
 New York was expressly warranted "free from capture, 
 seizure, and detention, and all the consequences thereof or 
 of any attempt thereat, and free from aU consequences of 
 hostilities, riots or commotions," it appeared that a well- 
 known long-established light on Cape Hatteras, in North 
 Carolina, of great importance to the navigation of that coast, 
 had been put out, as an act of hostility against Federal 
 shipping, and that the ship with the coffee on board, though 
 she had got out of her proper course, might have seen the 
 light if burning, and been saved by it, but in the absence of 
 the light went ashore near that cape, and the cargo, except 
 a small part, was lost in the ocean ia consequence of the 
 extinction of the light. If ever a contract were to give law 
 to the parties this was a case that seemed to be within the 
 terms of the warranty. But the Court, obliged by the nature 
 of human law and man's faculties, to set a limit to the mean- 
 ing of the term "consequences," and thereby exclude the 
 necessity of being afterwards driven in logical consistency to 
 deal with what is beyond the comprehension of human Courts, 
 the causes of causes and the consequences of consequences, 
 accepted the limit so familiar to insurance law, and held that 
 "consequence" in such an instrument meant a constant effect. 
 The defendant could not say that a ship could not pass that 
 cape in the ordinary route of a coasting voyage during the 
 absence of the light ; and the plaintiff therefore recovered as 
 for a loss by perils of the sea. The extinction of the light 
 was the causa sine qu& non, the winds and waves were the 
 causa proxima} 
 
 ^ecte oP^ -^y *^^^ ^^®^y traceable Hne are the liabilities of the 
 
 1 lonides v. The TJmversal Marine Ins. Assoc, 14 C. B , N S 259 ■ 32 
 L. J. (C. P.) 170. . ■ ■ 
 
CHAP. I.] OF MARINE INSURANCE. 13 ' 
 
 underwriter for loss or damage defined on one side by the ordinary 
 
 1 r • All causes are 
 
 law 01 insurance. Another line, however, is still necessary to excluded, 
 determine certain exemptions in his favour, but for which, 
 on taking a premium to insure, he would be assuming a dead 
 loss and certain ruin.^ Thus, if a vessel quits port in a 
 leaky condition, the policy is no protection against loss by 
 foundering at sea ; nor is it against the action of worms on 
 the huU, if, for example, the ship is sailed in the Mediter- 
 ranean without sheathing ; nor against the chemical action 
 of sea-water on an electrical cable, if it be laid down with 
 the coating so imperfect that the copper wire is exposed ; nor 
 against the natural heating of a cargo of seed, whether or 
 not it be put on board in a damp condition ; nor against 
 other natural decay, called inherent vice, of perishable com- 
 modities, such as fruit, fish, and the like, when kept too long. 
 Some of these things are expressly warranted free of average, 
 or of average under a certain per-centage, notwithstanding 
 it be the result of extraordinary circumstances and perils. 
 But irrespective of such warranties, and beside and beyond 
 them, the law presumes that the assured owner knows the 
 ordinary course of things, and takes upon himself all the 
 consequences that naturally flow therefrom in connection 
 with the property insured. 
 
 But for these indispensable Kmitations, insurance would Importance of 
 be impossible. It is consequently as much for the advantage ^emg ob- 
 of the mercantile community that they should be observed, served, 
 as of the body of insurers that no verdict of any jury should 
 transgress them. Essential to the very notion of an indemnity 
 is the accurate and nice ascertainment of the perils insured 
 against, not only in respect of their class and description, but 
 also in respect of the field of their operation. The English 
 law, since the extinguishment of wagering policies, is, in 
 these respects, aU that reason and justice could demand ; and 
 the sense of security procured and guarded by such prin- 
 ciples and precautions is now entirely in the keeping of 
 English juries. 
 
 I Paterson v. Harris, 1 B. & S. 336 ; 30 L. J. (Q. B.) 354. 
 
14 
 
 GENERAL PRINCIPLES [PART I. 
 
 Abandon- Nothing remains but to advert to the question of abandon- 
 
 "'^''*' ment, as affording another iUustration of the same simple 
 
 view of this contract upon which the various distinctions 
 recognized by our law with regard to it are founded. It is 
 not our intention here to attempt a catalogue of the various 
 ways in which the assured may be deprived of his property 
 within the meaning of this contract. It is obvious that 
 between possession of it in safety and its annihilation, for 
 instance, by fire, or its entire loss, for example, by foundering 
 at sea, the possible variety and modification of loss is indefinite. 
 It is pertinent to our purpose, however, to point out that 
 there may be a total loss, for example, through capture by 
 the enemy, that shall cease to be a loss, for iastanoe, by 
 recapture, or by restitution under sentence of a court of 
 prize. There may be a loss which is not total, but for all 
 practical purposes is nothing else, that is to say, it must for 
 the purposes of the policy be construed as a total loss. There 
 is a constructive total loss of the ship, when by perils of the 
 sea she is converted into such a wreck that it would cost 
 more money to repair her than she would afterwards sell for 
 when repaired. The assured may in these circumstances give 
 the underwriters notice that he abandons the wreck to them, 
 and claims for a total loss. But the underwriters are not 
 bound to act upon his construction of existing circumstances 
 and accept the abandonment. He may unintentionally mis- 
 construe the state of facts, and this may be proved against 
 him in many ways, one of which would be by recovering and 
 restoring the ship to him in such a condition that he is not at 
 liberty in law to refuse it. 
 
 The actually existing circumstances of the vessel, however, 
 when notice of abandonment was given, may have been such 
 as to justify the notice in law. If the assured, notwith- 
 standing the underwriter's refusal to accept the abandonment, 
 begins an action on the policy for a total loss, while the 
 circumstances continue to be such as justify an abandonment, 
 any restitution afterwards of the ship cannot take away 
 his right to recover for a constructive total loss. This depends 
 
CHAP. I.J OF MARINE INSURANCE. 15 
 
 on the nature of an action, wMoL. lias regard only to the state 
 of facts between the parties at the time of writ issued. If, 
 on the contrary, restitution of the ship in a condition proper 
 to be accepted by the assured owner were before action com- 
 menced, although after notice of abandonment given, the 
 right of action against the underwriter is gone. This di£Eer- 
 ence is not a mere technical distinction due to refinements 
 on law by the lawyers. Justice, in order to determine the 
 dispute between litigants, must confine its regards to some 
 fixed instant of time, at which the facts may be ascertained 
 as the foundations of judgment. But if, before the assured 
 has gone into Court, there be a restitution of his property, 
 he ceases to be in a condition requiring to be indemnified 
 against a total loss, and his notice of abandonment, though 
 once valid, is obliterated to the eye of justice by the state of 
 facts which have subsequently supervened. His constructive 
 claim to indemnity ceases to exist by the effect of subsequent 
 events before he can assert it in law by issuing of the writ.^ 
 The notice indeed was necessary, and may at the time have 
 been valid because the loss existing may have been no more 
 than constructive. But though the loss he primA facie total, 
 as in the case of capture, and notice of abandonment have 
 been given, still, for the same reason, i£ there be restitution 
 before action commenced, occasion for such indemnity no 
 longer exists in respect of the past, and any foundation for 
 asserting the right by legal claim is consequently gone. 
 
 Such is the English law as it proceeds severally upon the 
 right construction of the nature of the contract between the 
 parties, and upon the essential view of a legal assertion of 
 right by commencement of an action. The Legislature might 
 have interfered, as in France, by declaring that a notice of 
 abandonment once given under circumstances that sustained 
 its vaKdity could not be superseded, except with the consent 
 of both parties, by any subsequent change of circumstances. 
 Or, instead of leaving the parties to determine in each case 
 
 1 See per Lord ManBfleld, HamUton v. Mendes, 2 Burr. 1210. 
 
16 GENERAL PRINCIPLES [pART I. 
 
 upon the facts arising whether the loss be or be not so nearly- 
 total as for aU practical purposes it ought to be so construed, 
 the British Parliament might have enacted, as the law is in 
 the "United States, that damage to the extent of 50 per cent, 
 and upwards of the value of the property insured is to be 
 construed a total loss. All that the British Legislature and 
 the English judicature have done is to prevent either party, 
 to the injury of the other, and consequently of the mercantile 
 community at large, from perverting the contract between 
 them to purposes which are alien to the essential notion of 
 indemnity, on which alone it is wholly based. 
 Definition of The following is a definition of some of the principal terms 
 in use upon the subject of marine insurance. 
 
 Marine insurance is a contract whereby one party, for a 
 stipulated sum, undertakes to indemnify the other against 
 loss arising from certain perils or sea-risks, to which his ship, 
 merchandise, or other interest, may be exposed during a cer- 
 tain voyage, or a certain period of time. 
 
 The party interested in the property insured is called the 
 insured or assured; the property insured — the subject of 
 insurance : and the interest which the assured has in this 
 property — his insurable interest. 
 
 The party undertaking to indemnify the assured against 
 loss is called the insurer or underwriter ; and the stipulated 
 sum for which he undertakes to indemnify him, the premium. 
 
 The instrument by which the contract of indemnity is 
 effected is called in England the Policy. 
 
 That which is insured against, is loss arising from marine 
 casualties. These casualties are in technical language called, 
 sometimes, the perils insured against, and sometimes the risks 
 covered by the policy, expressions which mean one and the 
 same thing, and are employed to signify those causes of loss 
 against the effect of which the underwriter undertakes by his 
 contract to indemnify the assured. 
 
 The interest of the assured is technically said to be covered 
 by the policy, when the sum or aggregate of sums insured in 
 the policy is sufficient to afford him full compensation for 
 
CHAP. I.] OF MARINE INSURANCE. 17 
 
 ■whatever loss tliat interest may sustain. If tlie value of his 
 interest exceeds the sum insured, the excess of interest is said 
 to be " uncovered hy the policy," and the assured to he " his 
 own insurer to that extent." 
 
 When the liability of the underwriter commences under 
 the contract, the technical mode of expressing this is by say- 
 ing that " the policy attaches," or " the risk begins to run," 
 from that time. 
 
CHAPTEE II. 
 
 THE SUBJECTS OF MARINE INSUEANCE. 
 
 Ship. 
 
 Ship . - - - 
 ■what covered by term 
 
 Gooda - - - - 
 what covered by term 
 ■what not - - - 
 live stock - 
 
 Freight . - - - 
 ■what covered by term 
 
 Passage money 
 
 statutory liabilities - 
 
 18 
 18 
 24 
 24 
 27 
 29 
 31 
 31 
 35 
 36 
 
 Profits and commissions - 
 
 specific description of 
 Bottomry and respondentia 
 
 ■who may be assured - 
 Seamen's ■wages . . - 
 
 ■why not . - - - 
 Master's 'wages, commission, &e. 
 Miscellaneous . » - - 
 Description of nature and extent 
 
 of interest unnecessary 
 
 37 
 39 
 40 
 40 
 42 
 44 
 43 
 45 
 
 49 
 
 What tHngs are insurable, considered in themselves, and 
 irrespective of their owners, is the first practical question, 
 and naturally falls to be considered here, the first in order. 
 The ship was probably not the earliest subject covered by 
 ' this contract. Important and indispensable though it be to 
 commerce, it is yet no more than subservient and therefore 
 secondary to the purpose of commercial intercourse, the dis- 
 tribution, namely, among distant nations of the products of 
 nature and skill. Merchandise, therefore, in its importance 
 as the chief thing in view is not unlikely to have been the 
 earliest in course of time of the subjects underwritten by the 
 insurer, yet the ship would soon follow as a subject of in- 
 surance ; and all the sooner that in those times the merchant 
 was also the shipowner uniting in himself the interests of both, 
 and preventing those jealousies that might have arisen if 
 these interests had already appeared divided and conflicting. 
 What is The term ship, technically taken, designates a particular 
 
 policy on «A)>. species of sea-going vessel, square-rigged throughout, which 
 
€HAP. II.] INSURANCE ON SHIP. 19 
 
 carries three masts with tops and yards to each of them. 
 It has also a generic sense, as designating a vessel of huiden, 
 irrespective of rig, and without regard to the particular 
 means of locomotion. The common popular use of it is in 
 this generic sense ; and in policies of marine insurance, where 
 nothing appears to qualify the meaning, it has the same 
 acceptation. In the statutory form, indeed, of the Lloyd's 
 Policy 1 this term when first used is identified in eiieet with 
 that other most general term vessel, and as if the purpose of 
 explanation had thus been satisfied, the alternative designa- 
 tion is afterwards dropped, and the term ship alone is used 
 throughout the rest of the document. I believe, however, 
 this explanatory addition to have been inserted ex majore 
 cautela, and to be superfluous rather than necessary.^ At 
 the same time there are cases involving a serious increase 
 of risk, in which the common designation might mislead, 
 and might in consequence amount perhaps to such a mis- 
 representation as would invalidate the policy. For instance, 
 it would not be advisable to propose The Thetis for insurance 
 and to effect a policy on her by the words on ship without 
 specifying in the proposal or the policy, or in both, that she 
 was a steamship. This, however, is a case of representation 
 founded indeed on description, and the inquiry would be as 
 to whether there had been such consensus of the parties as 
 is indispensable to the existence of any contract between 
 them. 
 
 So much as to the meaning of the simple designation, and 
 as to the question what species of craft is comprised within 
 it. Another question, much more agitated than this, is as 
 to whether certain of the details which are borne by the 
 
 1 30 & 31 Vict. 0. 23, Sohed. E, therein. According to all our dic- 
 
 2 Emerigon (c. vi. § vii.) says, tionaries, the word misseau is not 
 "The word MOTJre comprehends every less generic than ««»!«." For the 
 structure of carpentry fit for floating older authorities who explain the use 
 and making way on the water. Shal- in modem commerce of the Latin 
 lops and the smallest vessels are terms, I refer the reader to Emeri- 
 comprehended under the same deno- gon's work. 
 
 mination. Kaf ts are also comprised 
 
 c2 
 
20 
 
 SUBJECTS OF INSURANCE. 
 
 [part I. 
 
 floating structure thus designated he legally comprised witliin 
 the term, and consequently he oovered hy a general insurance 
 
 on 
 
 Not any part 
 of tlie cargo. 
 
 Provisions 
 comprised as 
 part of the 
 ship, under 
 the word 
 "furniture." 
 
 In our common printed forms the policy, after stating 
 that it is effected " upon any kind of goods and merchan- 
 dises," proceeds thus — "and also upon the body, tackle, 
 apparel, ordnance, munition, artillery, boat, and other fur- 
 niture, of and in the good ship or vessel called the," &c. 
 When the insurance is intended to be confined to the ship 
 alone, this is generally effected by inserting, either at the 
 foot or in the margin of the policy, the words " on ship ; " or 
 by stating in the valuation clause that, as between the assured 
 and underwriters on the particular policy, the subject of in- 
 surance is agreed to be the ship, or as many sixty-fourth 
 shares thereof as the assured owns. The effect of either 
 mode of specifying the subject of insurance is to obliterate, 
 as it were, such other words of the general form as are inap- 
 plicable to the specified subject;^ and therefore the interest 
 of a mortgagee, for instance, if misdescribed as hottomrtf, 
 would remain uncovered by the policy, although, but for 
 this rule of construction affecting other parts of the instru- 
 ment, there are printed words in it which would cover a 
 mortgage notwithstanding the misdescription in manuscript.^ 
 It is hardly necessary to remark, that a policy in this form 
 on ship alone, even when effected by one who is owner 
 both of the ship and cargo, cannot extend to protect the 
 latter.' 
 
 In the next place, it may now be laid down as certain, that 
 the provisions put on board the ship, when she sails, for the 
 use of the crew on the voyage, are comprehended under the 
 word "furniture," and would be protected by an insurance 
 pn the " body, tackle, apparel, ordnance, furniture," &o., of 
 
 ^ See the general principle which 
 suhordinates the printed portions of 
 the policy to the effect of those in 
 manuscript, laid down in Robertson 
 V. French, 4 East, 130, 140, 141; 
 Haughton v. Ewbank, 4 Camp. 89 ; 
 
 per Lord Penzance, Dudgeon v. Pemi 
 broke, 2 App. Cas. 284, 293. 
 
 " See Simouds v. Hodgson, 6 Bing. 
 114 ; and S. 0. in error, per Lord 
 Tenterden, 3 B. & Ad. fiO. 
 
 3 1 MarshaU, Ins. 328. 
 
CHAP. II.] INSURANCE ON SHIP. SI 
 
 the ship, as in the common printed forms.^ The contrary 
 position had been erroneously inferred from the case of 
 Eohertson v. Ewer, -which decided no such point, but merely 
 established that the underwriter on ship could not be liable 
 for the consumption of such provisions, while the ship was 
 detained by an embargo.^ 
 
 The word outfit is sometimes used to denote the necessary And outfit, ia 
 stores and provisions put on board the ship for the use of stores and 
 the crew on the voyage ; and, in this sense, outfit is included P''°'>''^i°'i^' 
 in a general insurance on ship. It is in this sense that Lord 
 EUenborough uses the word when he says, that " hull and 
 outfit are both protected by an insurance on ship."* 
 
 In whaling voyages, however, the word outfit has a peculiar Not so the 
 sense, and means the fishing stores of the ships so employed ; for whaling ^ 
 namely, the harpoons, lances, spears, and whale Hnes, for the '°y^S^s. 
 purpose of catching whales and seals on the voyage, and the 
 casks, cisterns, boilers, &o., for preparing and containing the 
 oil and blubber ; in a word, all the instruments and apparatus 
 necessary for taking the fish, and preparing and bringing 
 home the animal produce.* It is now established by decision 
 that outfits ia this sense are not protected by a general 
 insurance in the common form on the " body, tackle, apparel, 
 &e., of the ship";' and the practice in the United States, Mode of in- 
 accordingly, is to describe the different interests insured in a i^g ^sks in 
 fishing voyage, as " ship, outfit, and cargo." « Yet the Courts g^tat^f'*^ 
 have, notwithstanding, held that these fishing stores were to 
 be valued as part of the " ship," under the former statutes 
 for limiting the responsibility of owners in certain cases.' 
 
 ■> Brough V. Whitmore, 4 T. R. Ins. 126. Admitted in case of The 
 
 206. Dundee by Lord Stcwell, see 1 Mar- 
 's Eohertson v. Ewer, 1 T. R. 127 ; shall, Ins. 241 ; and by LordTenter- 
 
 and see per BuUer, J., 4 T. R. 210. den in Gale «. Laurie, 5 B. & Cr. 
 
 ' Per Lord EUenborough in Hill 156, 164 ; see Hill v. Patten, 8 East, 
 
 V. Patten, 8 East, 375 ; per id. in 373, 375. 
 
 Eorbesw. Aspinall, 13 East, 323, 325. « 1 Phillips, Ins. no. 496, 497. 
 
 » 8 East, 375 ; Gale n. Laurie (The ' See The Dundee, 1 Hagg. Ad. 
 
 Dundee), 5 B. & Cr. 156. Rep. 109 ; Gale v. Laurie, 5 B. & Or. 
 
 Hoskins v. PiokersgUl, 3 Dougl. 156. The English law on this point 
 
 222 ; 1 Marshall, Ins. 241 ; 1 Park, no longer founds upon the aqtual 
 
22 SUBJECTS OF INSURANCE. [PART I. 
 
 In policies on steamships, although it is not unusual to 
 mention the machinery besides the hull, as for instance, on 
 hull and machinery, yet this seems to be unnecessary. Since 
 the term ship in a policy in which the vessel insured is stated 
 to be a steamer would suffice to cover both ; and indeed there 
 is commonly an object to be served by distinguishing between 
 these two parts of the same fabric, e.g., when a distinct 
 amount is expressed to be insured on each, and for the pur- 
 poses of average and other similar results they are stipulated 
 to be taken as if separately insured.^ 
 The boat. It will be observed that the " boat " is included by name 
 
 as part of the ship in the common policies of insurance ; and 
 there is no doubt, notwithstanding the opinion of certain 
 authorities,^ that it forms part of the outfit included under 
 ship as the common designation for the whole. In one ease 
 where the policy was on ship in the common form, viz., upon 
 the "body, tackle, apparel, munition, ordnance, boat and 
 other furniture " of the ship, the underwriters resisted a claim 
 for the boat; but this upon the ground that there was a 
 usage never to pay for boats outside the ship slung upon the 
 quarters ; the underwriters did not succeed in their conten- 
 tion, but even their success would have left the present point 
 unchallenged in the law of insurance that the boat is part of 
 the ship and without express mention in the policy would be 
 covered under that term.^ 
 
 nild noTte ^® ^^^^ ^^® towards the end of this chapter that, as a 
 disclosed. general rule, the nature and extent of the interest which the 
 assured has in the subject of insurance need not be disclosed 
 on the face of the policy. Hence a mortgagee of ship may, it 
 seems, on a general policy on ship, without more, recover to 
 the extent of his interest.* 
 
 value of the ship, but upon a fixed J See Maolachlan on Shipping, 16, 
 
 tonnage value; see Maclachlau on- 17. 
 
 Shipping, 17, 122, 123. 3 Blaokett v. Eoy. Exoh. Ass. Co., 
 
 1 See Oppenheim v. Fry, 3 B. & 2 0. & J. 250. See 1 Emerigon, o. 
 
 S. 873 ; 5 id. 318 ; 33 L. J. (Q. B.) vi. sec. vii. § 2. 
 
 '• ' Irving V. Richardson, 1 Mood. 
 
 & Rob. 153 ; 8. C, 2 B. & Ad. 193. 
 
CHAP. II,] INSURANCE ON SHIP. 23 
 
 The rule is the same in the United States. There the 
 owner of a ship who had chartered half of her, the mort- 
 gagee, and (though this was in one case doubted) the mort- 
 gagor, have aU been allowed to recover to the extent of their 
 respective interests under general policies on ship, in which 
 the nature and extent of their interest were not disclosed.^ 
 
 In one case Lord Ellenhorough seemed to think that the Query, of the 
 interest of captors who had no grant, but only a reasonable captors. 
 expectation of a grant of the captured property, must, if 
 insurable at all, be specifically described in the policy : ^ but 
 the interest vested in the Crown, on its adoption of the captor's 
 insurance, may be covered by the common form of policy.^ 
 
 Among other losses which might fall upon ship that would Kiaka from 
 not be covered by a policy of this description, it is only 
 necessary to refer to the enumeration in the Merchant Ship- 
 ping Act Amendment Act, 1862, sect. 54, of loss of life, per- 
 sonal injury, loss or damage to goods on board, and of similar 
 losses, damage and injuries occasioned on board another vessel 
 by the ship in question. By sect. 55 of the same statute, the 
 validity of policies effected against any or all of the enume- 
 rated risks is established against any objection to the nature 
 of these risks. A specific description, however, is indispen- 
 sable to bring them within the scope of a policy adapted to 
 cover them.* 
 
 A vessel covered by a general policy on ship came Into 
 collision with another in the Hooghly river with such damage 
 to both and under such circumstances that, in accordance 
 with the rule of maritime law, at that time followed only in 
 the Admiralty Court, the damage to both was equally shared 
 between them. The owner, under such a policy, recovered 
 
 1 See the cases collected by Mr. the intervention of the perils insured 
 Phillips, vol. i. no. 421 et seq. against. 
 
 2 Eouth V. Thompson, II East, » 5. a, 13 East, 274. 
 
 433. His Lordship seems to rank it * A new species of association, de- 
 
 ■with. expected profits, to be described nominated Shipowners' Mutual Pro- 
 
 therefore as a chance in the policy, tection Association, has sprung up 
 
 the right to recover depending on for the insuring of these and other 
 
 proof at the trial that this chance risks and UabiHties not within the 
 
 would have been a reaUty but for "soopeofanordinaiyLleyd'sEoUoy. 
 
24 SUBJECTS OF INSURANCE. [^PAET 1. 
 
 only the amount of the damage actually sustained by his own 
 ship, and had to bear the excess allotted to him under the 
 law maritime.^ 
 
 It is now common to insert special indemnity clauses ia 
 policies, to provide against risks of this nature.^ If such a 
 clause be to indemnify in a certain proportion of all sums 
 paid to an amount not exceeding the full value of the ship, 
 and in a damage cause the vessel be sold under decree of the 
 Admiralty Court for a less amount than her value, the assured 
 cannot recover more imder the policy than the amount paid 
 under the decree.' 
 
 Groods. In all probability merchandise was the earliest subject to 
 
 which insurance was applied ; it is now at all events a good 
 subject of a policy. But this, or that other generic term 
 goods, is exceedingly general and indefinite, and therefore we 
 proceed to inquire what is, or is not, covered by a policy on 
 What is CO- goods. It is unnecessary, in most cases, for the merchant, 
 ZTmercIm-' * ^^° wishes to insure his merchandise against sea risks, to do 
 dise. more than give a general description of it as goods or mer- 
 
 chandise. Under such a poHey, in case of loss, the merchant 
 
 ^ He Vaux v. Salvador, 4 A. & E. the Admiralty Court, is now the law 
 
 420. Story, J., dissented from this of the English Courts, sharing the 
 
 decision, and was confirmed in that damage between both where both are 
 
 opinion by the Sup. Ct. U. S. ; Peters to blame for the collision of the ships ; 
 
 V. Warren Ins. Co., 3 Sumn. C. C. Maclaohlan, Shipping, p. 306. 
 389; S. C, 14 Pet. 99. But the " Instead of attempting by a single- 
 
 Supreme Court appears in a subse- clause to define and provide against 
 
 quent case to have reconsidered the a variety of specific risks, it were 
 
 principle involved in that decision, much easier and safer to do this by 
 
 and to have dissented from it, adopt- reference to the section or sections or 
 
 ing as one of the grounds of their parts of a section of the statute. In 
 
 judgment the principle laid down by Taylor v. Dewar, 5 B. & S. 58 ; 33 
 
 Lord Denman in the above case ; see L. J. (Q. B.) '141, it was held that a 
 
 General Mut. Ins. Co. v. Sherwood,' clause "in case the vessel should run 
 
 14 How. 352; 1 PhiUips, Ins., no. down or damage any other ship, &o.," 
 
 1137a. The principle of Lord Den- did not cover damages paid by reason 
 
 man's decision remains untouched by of loss of life and personal injury. 
 
 the recent change in the law, 36 & 37 See post, Passaffe Money, p. 36. 
 •Vict. c. 66, § 25, no. 9, according to ' Thompson v. Eeynolds, 7 E. & B. 
 
 which this rule, peculiar formerly to 162 ; 26 L. J. (Q. B.) 93. 
 
OHAP. H.] IKSURANCE ON GOODS. 25" 
 
 would recover for any goods of his, not requiring a more 
 specific designation, which ultimately proved to be on board 
 at the time of the loss.^ 
 
 Hence it is laid down by the French jurists, and apparently Substituted 
 on sound principles, that if, under such a general form of in- ''*''^°" 
 surance, the ship, in the course of the voyage insured, and 
 under liberty given her for that purpose in the policy, touches 
 at an intermediate port, and there lands the goods which 
 were on board at the commencement of the risk, and takes on 
 board others on account of the assured, such substituted goods 
 are comprehended under the general words of the policy, and 
 their value is recoverable in case of loss.^ 
 
 So, in this country, although after a policy has been once 
 effected on a particular subject of insurance, it cannot, in 
 consequence of the stamp laws, be so altered as to apply to 
 a totally different subject ; " yet it is not to be inferred from 
 hence," says Lord EUenborough, " that shifting or successive 
 cargoes on board the same ship, in the course of the same 
 continued adventure, as in the African and other trades, out 
 and home, may not properly be the subject of insurance under 
 the word goods ; for in some of these cases the successive 
 cargoes, i.e. (1), of English goods ; (2), African articles of 
 traffic ; and, lastly. West India produce, are, according to the 
 course of such trading adventures, one continued subject- 
 matter of insurance under the one name of goods." ' 
 
 With regard to goods liable to leakage the French law re- Goods subject 
 
 quires them to be specifically described in the policy (except perfshabfe' 
 
 where the assured at the time of effectinar the insurance is articles, and 
 
 " _ oontraDand. 
 
 ignorant of the nature of the cargo), otherwise no loss is 
 recoverable upon such goods under the general description. 
 The same rule is extended to perishable articles and to con- 
 traband of war, by the laws of other foreign states.* 
 
 ' Pour que telle assurance soit Co. de Com., art. 333. 
 
 valable, il soffit que I'aliment du ' Hill v. Patten, 8 East, 373, 377. 
 
 risque existe lors du sinistre. 1 See also Tobin v. Harford, 32 L. J. 
 
 Emerigon, c. x. s. 1, p. 296. (C. P.) 134 ; in error, 34 li. J. (C. P.) 
 
 ■ 'Emerigon, ibid. See also 3 37; 13 C. B., N. S. 791. 
 
 Boulay-Paty, Droit Com. Mar. 384 ; * Ord. de la Marine, liv. 3, t. 6, 
 
26 fSUBJECTS OF INSURANCE. [PART I. 
 
 No suoli rule exists in this country. As to articles liable 
 to leakage or deterioration, the underwriters by the common 
 memorandum expressly exempt themselves either from all 
 liability for average losses, or from liability for any such loss 
 not amounting to a specified per-centage. As to contraband 
 of war, although the underwriter would not be held liable 
 unless he were told of the nature of the intended risk, it has 
 never been decided that the contraband character of the cargo 
 must be specified in the policy. 
 Bullion, coin, Considerable doubt appears at one time to have been en- 
 board for the tertained, in all probability from mistaken theories of the 
 oomaerce. balance of trade, and of the evils of exportation of such com- 
 modities, whether money, bullion, or jewels, could be insured 
 under the general denomination of " goods, wares, and mer- 
 chandise." There is now, however, no doubt that, when put 
 on board as merchandise, they may be insured, in this 
 country, under the general description of goods and mer- 
 chandise (though in actual practice they are generally in- 
 sured under a specific description) ; it being at the same time 
 understood that the underwriter is not liable for the risk of a 
 clandestine exportation.^ In some of the continental states 
 there are positive regulations requiring these commodities to 
 be specifically designated in the policy.^ In France, the law 
 is that they may be insured under the general designation, 
 provided their transport be not prohibited and the biUs of 
 lading be duly made out.' 
 
 Bank notes and biUs of exchange should, perhaps, be spe- 
 cifically described;* for a policy "on goods" is held to be 
 
 art. 31; Co. de Com., art. 355 ; 1 will cover dollars, if entered at the 
 
 Emerigon, c. x. s. 2, pp. 302—307. custom-house ; per Dampier, J., in 
 
 See the earlier ordinances of other Manning's Dig. Index to N. P. Eep. 
 
 States collected in the learned work 165, note 5, 2nd ed. ; fiee also 1 
 
 of Magens, note a to s. 14, vol. i. Magens, 10. 
 
 p. 9 ; and the more modem ones ia « ggg j Magens, 9, note ; and 1 
 
 Nolte's edition of Beuecke, vol. i. Nolte's Beneoke, 656—558. 
 
 part ii. tit. iii. o. ii. pp. 549—552. a 1 Emerigon, c. x. s. 2, p. 303. 
 
 ' For an instance see the case of * Per Dampier, J., Manning's In- 
 
 Da Costa v. Firth, 4 Burr. 1966. dex, 165 ; Palmer v. Pratt, 2 Bing. 
 
 "Goods, wares, and merchandise" 185. 
 
CHAP. II.J INSUKANCE ON GOODS. 27 
 
 only on such goods as are merchantable (merces), i.e., cargo 
 put on hoard for the purposes of commerce.^ Such a policy The master's 
 covers, however, an emigrant's equipment,^ but not the ship's thesMp'a 
 provisions ' or the captain's clothes, these latter being better P'^°'^isious. 
 described as master's effects.* 
 
 " In merchandise," says Park, J., " is included all property Money and 
 of great value, unless attached to the persons of the pas- ir^arrild''^ 
 sengers."^ Jewels, therefore, ornaments, cash, &e., not about the 
 designed for trade, but carried about, or belonging to the 
 persons of those on board, do not (as the better opinion seems 
 to be) fall within the general description of goods and mer- 
 chandise ; and, in case of loss, would not be recoverable under 
 a policy on goods in the general form. ° 
 
 Groods carried on deck, as they are exposed to a greater Goods on deck 
 
 .,.,, ,. not covered by 
 
 hazard than goods earned m the ordmary way, are not general policy 
 
 covered by a general insurance in the common form on goods ^ijess there ia 
 
 and merchandise ; ' unless it be in virtue of a general custom " ^^^S^- 
 
 of the particular trade, for then the underwriter is presumed 
 
 to be acquainted with the custom and to have undertaken the 
 
 additional risk. As it is only a certain description of goods 
 
 in any trade that would be thus exposed, it may be doubtful 
 
 whether, even where sanctioned by usage, the goods ought not 
 
 to be specifically described in the policy so as to apprize the 
 
 underwriter of the extra risk that he is to run. In the only 
 
 case in which the point directly arose, the insurance was 
 
 declared by the policy to be " on forty carboys of vitriol " ;* 
 
 1 So stated by underwriters in 4 Bing. 119 ; and the policy inKlein- 
 
 Eoas V. Th-waites, before Lord Mans- wort v. Shepard, 1 E. & E. 447 ; 28 
 
 field, 1 Park, Ins. 23, 24 ; andsodefined L. J. (Q. B.) 147. 
 
 by Best, C. J., in Brown v. Stapyl- * Duff v. Mackenzie, 3 0. B., N. S. 
 
 ton, 4 Bing. 121. " Wares or cargo 16 ; 26 L. J. (0. P.) 313. 
 
 for sale,-" per Lord Ellenborough in « 4 Bing. 122. 
 
 Hill V. Patten, 8 East, 374. « See 1 Park, Ins. 30 ; 1 Marshall, 
 
 ' "Wilkinson v. Hyde, 3 C. B., Ins. 327 ; 1 Emerigon, c. xii. a. 42, 
 
 N. S. 30 ; 27 L. J. (C. P.) 116 ; Duff and c. x. s. 11. 
 
 V. Mackenzie, infra. ' Backhouse v. Eipley, and Eoss 
 
 3 Eoss V. Thwaites, 1 Park, Ins. v. Thwaites, 1 Park, Ins. 23, 24. 
 
 23. Provisiona are included in the = Da Costa v. Edmunds, 4 Camp, 
 
 ship, ante, p. 20 ; Stevens on Aver- 142. So in the instance given by Mr. 
 
 age, 60. See Brown v. Stapylton, PhiUips, in which an insurance on 
 
28 
 
 SUBJECTS OF INSURANCE. 
 
 [PABT I. 
 
 Observations 
 of Lord 
 LyndhiiTBt. 
 
 The produce 
 of the -whale 
 fishery is 
 covered by 
 goods or mer- 
 chandise. 
 
 and the observations of Lord Lyndhurst on this point are 
 well deserving of attention. " Goods carried on deck," he 
 says, " are not in the part of the ship where goods are usually 
 carried ; they are in more than usual peril, and a usage that 
 they are not covered by an ordinary policy on goods, but that 
 they require a distinct explanation to the underwriter, of the 
 part of the ship in which they are to be carried, or (where 
 that will imply the same information) of the nature of the 
 goods, is not at variance with any part of the policy, is 
 essential to the information which the underwriter ought to 
 receive, to enable him to estimate the risk and calculate the 
 premiums, and is a portion of that fairness which ought to be 
 rigidly observed upon all these contracts." ^ 
 
 The general conclusion arrived at by Mr. Phillips is, that, 
 if by the description of the voyage, or the character of the 
 article specified in the policy, the underwriter may be pre- 
 sumed to have been apprized of a usage to carry it on deck, 
 the policy will attach to it when so carried.^ This appears 
 very fairly to represent, if not the actual doctrine of the 
 authorities, at all events the result of established principles. 
 
 In whaling voyages the only cargo, properly so called, on 
 board the ship, from first to last, is in general the homeward 
 cargo, consisting of the immediate produce and result of the 
 fishing adventure ; such proceeds, therefore {i. e., the oil, 
 
 ' ' outfits and oatohings " was held to 
 cover "blubber " remaining on deck, 
 to be " tried " according to the usage 
 of the whale fishery. Here, as Mr. 
 Phillips remarks, ' ' there is a uniform 
 usage to carry on deck, and also an 
 indication, by the description of the 
 subject and the voyage, that the part 
 of the subject in the form of ' blubber ' 
 is to be on deck;" 1 Phillips, no. 460. 
 In the two cases of Grould v. Oliver 
 4 Bing. N. C. 134, and MUward v. 
 Hibbert, 3 Q. B. 120, the point de- 
 cided was, that goods carried on deck 
 by the usage of trade are liable, if 
 jettisoned, to contribute in general 
 
 average; but there is nothing in 
 either case upon the point how far 
 such goods are insurable under the 
 general description. For timber on 
 deck, unless the policy be "in and 
 over all,'' the insurer is, by usage, 
 not liable, Miller v. Titherington, 6 
 H. & N. 278 ; 30 L. J. (Ex.) 217. 
 
 ' Per Lord Lyndhurst, C. B., in 
 Blaokett v. Eoyal Exoh. Ass. Co., 
 2 0. & J. 250. 
 
 " 1 Phillips, no. 460 ad finem. The 
 foreign ordinances do not appear to 
 furnish any explicit rules on this 
 point ; 1 Nolte's Benecke, 653. 
 
CHAP. II.J INSURANCE ON COODS, 29 
 
 whalebone, &c., taken in the fishery), may be, and in prac- 
 tice generally are, covered under the general designation of 
 " goods and merchandise." ' 
 
 Outfit in such voyages principally consists of the apparatus Not so the 
 and instruments necessary for taking fish, seals, &o., and the "" ' 
 disposing of them when taken, in such a manner as to bring 
 home the oil, whalebone, and other animal produce of the 
 adventure, with the greatest convenience and advantage; 
 outfit, therefore, in such a voyage, cannot be considered as 
 " goods," in any proper sense of that word ; i. e., as Lord 
 EUenborough defines it, " as part of the wares or cargo for 
 sale laden on board the ship." It cannot therefore be re- 
 covered under a general policy on goods.^ 
 
 It has been held in the United States, that a general Nor yet live 
 
 „ „ .^^ , -1.1 stock or »fO- 
 
 msurance on "cargo will not cover provender taken on vender. 
 board for live stock, which constituted a great part of the 
 cargo ;^ nor will it cover the live stock itself.* With regard 
 to live stock, the rule seems to be the same in this country, 
 such interest being always in fact described specifically. 
 Thus, where a general policy on goods was intended to cover 
 live stock, the insurance was declared, at the foot of the 
 policy, " to be on thirty mules, ten asses, and thirty oxen," 
 &c. ; ' and in another case, where a policy was effected " on 
 goods, as per annexed statement, valued at 2,800/.," the 
 horses, a loss on which was claimed under this policy, were 
 specially valued in the statement.® 
 
 Although the interests and commodities already mentioned General prac- 
 
 (. 1 1 • 1 J. 1 • tice to specif y, 
 
 comprise the greater number of those which must be speci- -when. 
 
 fically designated in the policy, yet the almost invariable 
 
 practice, whenever the cargo consists of few commodities, or 
 
 » Hill V. Patten, 8 East, 373, 375. » ■W'oloott v. Eagle Ins. Co., 4 
 
 So held also in the United States, in Pickering, 429 ; and see Brown v. 
 
 a case where the insurance was " on Stapylton, 4 Bing. 119. 
 the cargo of a ship for a whaling * Ibid. 
 
 voyage;" Wolcott V.Eagle Ins. Co., ° Lawrence v. Aberdein, 6 B. & 
 
 4 Pickering, 429. Aid. 107. 
 
 ' Hill V. Patten, 8 East, 373, 375, « Oabay v. Lloyd, 3 B. & C. 793. 
 
 376. 
 
30 
 
 SUBJECTS OF INSURANCE, 
 
 [part I. 
 
 Caution as to 
 
 Bpeoifying 
 
 negligently. 
 
 Sats not 
 covered by 
 piece goods. 
 
 Nor a manu- 
 factured ar- 
 ticle by tbe 
 separate in- 
 gredients of it. 
 
 where the goods are valued by the hogshead, pipe, bale, &c., 
 is to specify the commodities by name and number. This is 
 generally done by writing at the foot or on the margin of 
 the policy, " on woollen goods," " on piece goods," " on one 
 hundred tierces of coffee," " on twenty hogsheads of sugar," 
 adding also the mark of each bale, cask, &c.^ This may be 
 also done by altering the valuation clause so as to meet the 
 views of the parties. 
 
 Yet it must be carefully borne in mind, that whenever the 
 goods are specifically described in the policy, if no property 
 of the assured be on board which fairly answers the descrip- 
 tion, the policy will not attach.^ If an insurance, for instance, 
 be made on goods, described in the policy as piece goods, and 
 by the invoice it appears that the goods really shipped were 
 hats, the underwriter is not liable for loss on the hats.^ So, 
 an insurance on tortoise-shell will not cover a loss on indigo,* 
 &c. If an insurance purports to be efEeeted on several ingre- 
 dients, described nominatim in the policy, which enter into 
 the composition of a manufactured article, such poUoy will 
 not cover a loss on the manufactured article itself, if that be 
 a new product, and have a distinct appropriate name. Oil 
 and barilla both enter into the composition of soap, yet an 
 insurance on oil and barilla will not cover a loss on soap.' 
 It is said that an insurance on the raw material of a simple 
 fabric, or utensil, into which no other ingredient enters, will 
 cover a loss on such fabric or utensil : as, e, g., an insurance 
 on " gold " or " silver " covers the loss of a gold cup or of 
 silver spoons ;« but it is doubtful whether the instance given 
 be not of so exceptional a nature as to yield no general rule. 
 
 ' De Symonds v. Shedden, 2 B. & 
 P. 153. 
 
 ^ Si dans la police on avait sp^cifie 
 la chose qu'on a voulu faire assurer, 
 et qu'ellen'eut pas 6te oharg^e, I'as- 
 surance serait nulle, quoiqu'ou on eut 
 pour son compte d'autres marohan- 
 dises abord ; 1 Emerigon, c. x. s. 1, 
 p. 293. 
 
 ' Hunter v. Prinsep, 10 East, 378 ; 
 1 Marshall, Ins. 323. 
 
 ' 1 Emerigon, c. x. s. 1, p. 294. 
 
 ' 1 Emerigon, o. x. s. 3, p. 306. 
 
 * Ibid. I suspect that this is a 
 solitary instance of a peculiar ustis 
 loquendi as to the precious metals, 
 and that it will not bear to be ex- 
 tended. 
 
m marine 
 insurance. 
 
 CHAP. II.] INSURANCE ON FKEIGHT. 31 
 
 The next subject demanding our attention is Freight. iVeight. 
 According to the general law of shipping, freight, as between 
 the shipowner and the shipper, is, strictly speaking, the price 
 to be paid by the latter to the former for the carriage of 
 goods by ship, and is not earned or payable tiU the arrival 
 and delivery of the goods at their port of destiaation.^ 
 
 In the law of marine insurance it has a far wider signifi- Meaning of, 
 cation, comprising all that is implied in " the benefit derived ^ 
 by the shipowner from the employment of his ship."^ In 
 this sense, therefore, it includes not only freight properly so 
 called as above defined, but likewise that which is often called 
 freight, being the chartered hire of the ship or part of her,^ 
 and also, thirdly, the benefit accruing to the shipowner from 
 the carriage of his goods by his own ship in the shape of 
 their increased value to him at the port of delivery.* As 
 Lord Tenterden observes, " If the term freight, as used in 
 policies of insurance, imports the benefit derived from the 
 employment of the ship, it is the same thing to the shipowner 
 whether he receives that benefit of the use of his ship (1st), by 
 a money payment from one person, who charters the whole 
 ship ; or (2nd) , from various persons who put specific quan- 
 tities of goods on board ; or (3rd), from persons who pay 
 him the value of his own goods at the port of delivery, 
 increased by their carriage in his own ship."^ 
 
 In whichever of these three senses the word is used, it is Expected 
 a clearly-established principle in this country, that expected lawful subject 
 freight is a lawful subject of marine insurance. "It would, "n^^^""'' 
 indeed, be extraordiaary," says Chambre, J., in the case of oountiy. 
 Lucena v. Craufurd, " if freight could not be made the sub- 
 ject of protection by an instrument, which had its origin in 
 
 ' MaolaoUan on Shipping, o. x. Lord Elleuborougli in Forbes «;. 
 
 p. 452. Aspinall, 13 East, 323, 325. 
 
 2 Per Lord Tenterden in Flint v. * Flint i: Flemyng, 1 B. & Ad. 45 ; 
 Flemyng, 1 B. & Ad. 45, 48. Devauxa. J'Anson, 5Bing.N.C.519. 
 
 3 Per Lord Tenterden in Winter M B. & Ad. 48. 
 V. Haldimand, 2 B. & Ad. 649 ; per 
 
32 SUBJECTS OF INSURANCE. [PART 1. 
 
 commerce, and was introduced for the very purpose of giving 
 security to mercantile transactions; it is a solid substantial 
 interest ascertained by contract, and arising out of latour 
 and capital employed for the purposes of commerce." ^ 
 Inchoate right "We shall See more at large hereafter, when considering 
 ° ' who may be a party to a policy, that the assured on freight 
 must have an inchoate right to it, in order to entitle him so 
 to insure ; in other words, he must be in such a position with 
 jegard to the expected freight, that nothing could prevent 
 him from ultimately having a perfect right to it but the in- 
 tervention of the perils insured against. 
 
 When freight is the price to be paid for the hire of the 
 ship under a charter-partyi the shipowner has this inchoate 
 right directly there is an inception of performance by the 
 ship under the charter-party.* When it is the price to be 
 paid for the carriage of goods in the ship, then this inchoate 
 right accrues directly the goods of the merchant are actually 
 put on board, or are even contracted for and ready to be put 
 on board, and the ship is ready to receive them. In either 
 case the shipowner has put himself in a condition to earn 
 freight, and he will earn it provided either the ship, which 
 he has thus let out to the freighter, or the goods, which he 
 has thus engaged to transport for the merchant, arrive safely 
 at their destination. If, by the perils of the sea, they are 
 prevented from thus arriving, the shipowner has no claim to 
 freight from the merchant — in other words, he is prevented, 
 in that case, by the perils of the sea, from realisiug that 
 which, but for the intervention of those perils, he would cer- 
 tainly have earned. It is but fair and reasonable, therefore, 
 that he should have the means of protecting himself, by a 
 policy of marine insurance, against the loss he is thus ex- 
 posed to. 
 
 Such are the general principles upon which, in this country, 
 iii America, and in many of the continental states, the. 
 
 1 3 B. & P. 102. Baiher v. Heming, L. R., 5 Q. B. 
 
 ' Poley V. TJnited F. & M. Ins. 59 ; Thompson v. Taylor, 6 T. E. 
 Co. of Sydney, h. R., 5 C. P. 155 ; 478. 
 
CHAP. II. J INSURANCE ON FREIGHT. 33 
 
 shipowner is allowed to effect an insiuance on that freight 
 which he expects to earn, and which he is only prevented 
 from earning hj the perils insured against. 
 
 But the French Legislature, proceeding rather on scholastic I'reuoh law. 
 refinements than mercantile considerations, have prohibited 
 all insurance of expected or future freight,^ on the ground 
 that expected freight is a mere contingency in which there 
 is no present existing interest ; that it is hut a gain which 
 the assured may miss making, not a property which he can 
 lisk losing. But, although the prohibition is absolute against 
 the insurance of expected freight {fret dfaire), yet the French 
 Legislature permits the insurance of freight actually earned 
 {fret acquis). The French jurists have refined much in ex- 
 plaining the meaning of this term ; but, upon the whole, by 
 fret acquis may, it seems, be understood, either freight paid 
 in advance and not reimbursable ; or freight which, by the 
 terms of the charter-party, is payable in all events. The 
 French Courts are acute in distinguishing freight paid in 
 advance from advances made on freight and repayable, never 
 allowing the latter to be the subject of a valid policy of in- 
 surance ; and yet the former, which has the sanction of law, 
 is a mere shift for evading it, the shipowner paying the pre- 
 mium on the policy, which the freighter takes out in his own 
 name.^ The term appears also to extend to freight actually 
 earned by the unloading of a portion of the cargo at a port 
 of delivery short of the port of ultimate destination.^ By 
 
 1 "Fret a f aire," Ord. de la Ma- Com. 269, 270. When the clauses 
 
 rine, liT. 3, tit. vi. art. 15. "Fret of the Code de Commerce ■were under 
 
 des marchandises existant a bord," discussion in the legislative council, 
 
 Co. de Com., art 347. the superior advantages of the Eng- 
 
 ' Weil, Des Assur. Maritim.es, nos. lish system as to insuring freight 
 
 92, 93, 94. were strenuously, but -without effect, 
 
 ' Ord. de la Marine, liv. 3, tit. vi. pressed on the attention of the go- 
 art. 15, and Valin's Comment, ibid. ; vemment by the chambers of corn- 
 Co. de Com., art. 347; Pothier, d'As- merce of Nantes and Bordeaux, and 
 sur. no. 36, and the notes of M. even by the members of the Cour de 
 Estrangin at pp. 52—55 of his edi- Cassation ; see Boulay-Paty, Com- 
 tion ; 1 Emerigon, o. viii. b. 8, pp. ment. on Emerigon, vol. i. pp. 234, 
 227—234; 3 Boulay-Paty, Droit 235. 
 Mar. 481 — 487; 3 Pardessus, Droit A^ro;W <fc Zoi for the repeal of this 
 
 M. 
 
 D 
 
34 
 
 SUBJECTS OF INSURANCE. 
 
 [part I. 
 
 Advances on 
 freight. 
 
 Freight for 
 part of the 
 voyage, or 
 time. 
 
 What is 
 covered by 
 policy on 
 freight. 
 
 the new Italian Code, a policy on the freight of goods on 
 hoard is void.^ 
 
 There can he no douht that sums paid hy the charterer or 
 his agent, as an advance of part of the freight, are also in- 
 surahle hy him in this country. The only question is, whether 
 he can insure them under the general term freight, or must 
 describe them specifically in the policy ; and this depends, as 
 we shall see hereafter, on the particular terms of the charter- 
 party.^ 
 
 It was laid down hy Lord Kenyon, at Nisi Prius, that 
 freight could not he insured for part of the intended voyage;' 
 hut this position, unjustified hy principle, was subse- 
 quently overruled by Lord EUenhorough and the Court of 
 King's Bench, and it is now quite clear that freight, like 
 any other subject, may be insured either for part or the 
 whole of the voyage or of the time over which it is likely to 
 extendi* 
 
 Freight must be insured co nomine in the policy, either by 
 inserting the words on freight in the margin, or appending 
 them at the foot of the instrument. Such a policy would 
 cover not only freight in its strictest acceptation, hut the 
 chartered hire of the vessel,^ the increased value to the owner 
 from carriage of his goods in his own ship," and we have 
 
 prohibition of insurance of freight 
 a faire was again the subject of con- 
 sideration "with the Senate in 1876, 
 M. Grivart reporting in its favour, 
 but again the old law was affirmed 
 ■without modification. Journ. OlSo. 
 du 28 Deoembre ; Weil, Des Assur. 
 Marit. no. 91. 
 
 ' Oo. di Commeroio, art. 461. 
 
 ^ See next Chapter, and the dis- 
 cussion in Allison v. Bristol Mar. Ins. 
 Co., 1 App. Cases, 209; De Silvale v. 
 Kendall, 4 M. & Sel. 37 ; Manfield v. 
 Maitland, 4 B. & Aid. 582 ; "Winter 
 V. Haldimand, 2 B. & Ad. 649 ; Wil- 
 son V. Martin, 11 Exoh. 684 ; Hicks 
 V. Shield, 7 E. & B. 633 ; 26 L. J. 
 (Q. B.) 206; Williams v. North 
 
 China Ins. Co., 35 L. T., N. S. 884; 
 Maolachlan, Shipping, 519, 520. 
 
 3 Murdock v. Potts, a.d. 1795 ; 
 see 1 Marshall, Ins. 332; 2 Park, 
 Ins. 034. 
 
 * Taylor v. Wilson, 15 East, 324 ; 
 Hall ». Brown, 2 Dow's P. C. 367 ; 
 Michael v. Gillespy, 26 L. J. (0. P.) 
 306; 12 G. B., N. S. 627. 
 
 ^ Etches V. Aldan, 1 Man. & Ey. 
 157 ; S. P., Clark v. Ocean Ins. Co., 
 16 Pickering's E. 289. 
 
 « Flint V. Flemyng, 1 B. & Ad. 
 45 ; Devaux v. J'Anson, 5 Bing. 
 N. C. 519. See per curiam, MiUer 
 V. WoodfaU, 8 E. & B. 493 ; 27 L. 
 J. (Q. B.) 120. 
 
CHAP. II.] INSURANCE ON PASSAGE MONEY. 35 
 
 very little doutt payments made in advance on account of 
 either the first or the second of these classes of freight.^ 
 Certain expressions attributed to Lord Tenterden in the 
 report of Winter v. Haldimand respecting advances on 
 account of chartered hire, as though a more specific descrip- 
 tion were necessary in a policy intended to cover them, must 
 be understood, in accordance with the general principle of 
 insurance law respecting freight laid down by him in a 
 previous case,^ as indicating rather what description would 
 have served the purpose of the assured under the circum- 
 stances before him, than anything that was indispensably 
 requisite.^ 
 
 Whether a charterer who hires a vessel for a voyage at a As to the 
 certain rate per month, payable on completion of the voyage, carries goods 
 can insure the freight payable to himself for the use of the the^o^ner' °^ 
 ship in carrying the goods of other persons, under a general ^^° ^sUs hia 
 policy on freight ; * and whether such a policy will cover the ing the 
 interest of a party who has sold his vessel, reserving to '^^^ 
 himself a right to receive the freight for the voyage insured,^ 
 has been doubted in the United States. But neither in that 
 country nor in this have such doubts prevailed against the 
 opinion that such persons have an interest which may be 
 covered by a valid policy on freight. 
 
 In some respects similar to freight, In others very different, Passage 
 is our next subject of insurance, Passage Money. It is not 
 insurable as freight, for there Is no usage in insurance law In 
 this country so to designate passage money. In the absence 
 therefore of anything on the face of the policy to show 
 that passage money Is intended by or to be Included under 
 "freight," this latter term, if there is any freight properly 
 
 1 See Allison v. Bristol Mar. Ins. ^ Winter v. Haldimand, 2 B. & 
 
 Co., 1 App. Cases, 209 ; Wilson v. Ad. 649, 654, 658. 
 
 Martin, 11 Exoh. 684, and oases ' Riley u. Delafield, 7 Johns. 522 ; 
 
 supra, p. 34, note 2 ; and HaU v. cited 1 Phillips, no. 480. 
 
 Janson, 4 E. & B. 500. * MeUen v. Natchez Ins. Co., 1 
 
 ' Flint ». Plemyng, 1 B. & Ad. 48. Hall, 452. 
 
 D 2 
 
36' SUBJECTS OF INSCEANCE. [pART I 
 
 SO called to which the policy may apply, will be confined 
 to that.i It differs from freight in point of practice if not 
 of principle, by a very important usage that requires it to 
 be paid before sailing.^ Yet " no liability is by the common 
 law thrown upon the owner or master of a ship, if the ship be 
 lost, to forward passengers to their place of destination. Nor 
 usually is there any obligation to do this imposed by the 
 actual contract between the parties."' The passenger in 
 these circumstances when he has paid his passage money has 
 an insurable interest analogous to that of the merchant upon 
 freight paid in advance. 
 Statutory The Passenger Act, 1855 (18 & 19 Vict. c. 119),* in great 
 
 liabilities. . „ 
 
 measure supersedmg the common law on the pomts referred 
 
 to, without taking away any common law rights previously 
 
 possessed by the passenger,^ imposes certain liabilities on the 
 
 owners and masters of passenger ships, in virtue of which 
 
 they are so far insurers that, notwithstanding the wreck or 
 
 loss of the ship, the surviving passengers must be forwarded 
 
 by them to their place of destination. The statute then 
 
 proceeds to countervail these novel obligations by enabling 
 
 the persons subjected to them to cover these statutory risks 
 
 by a policy of insurance.^ 
 
 Under a policy against all costs, charges and liabilities to 
 
 which the owner or charterer might be subjected under 
 
 sections 46, 47, 48, 49, 50 and 51 of the (now repealed 
 
 Passengers Act) 15 & 16 Yict. c. 44, the owner recovered 
 
 against the underwriter for money expended in forwarding 
 
 the passengers to their ultimate port from New Providence, 
 
 off which place the vessel in the course of her voyage had 
 
 been totally lost.' A year after, under another policy " on 
 
 1 Denoou v. Home and Colonial ' Per Lord Campbell, C. J., in 
 
 Ass. Co., L. R., 7 C. P. 341. Gibson v. Bradford, 3 E. & B. 516 ; 
 
 a See Maclaohlan on Shipping, c. 24 L. J. (Q. B.) 159, 160. 
 
 Tii. Passengers. The 18 & 19 Viot. * This statute is amended by 26 & 
 
 u. 119 is amended by the 26 & 27 27 Viot. c. 61. 
 
 Viot. u. 51 ; 35 & 36 Viot. u. 73 ; » 18 & 19 Viot. c. 119, =*. 68. 
 
 36 & 37 Viot. 0. 85 ; 38 & 39 Viot. » Ibid. =, 55. 
 
 rf. 66 ; and 39 & 40 Vict. c. 80. ' Gibson v. Bradford, 3 E. & B. 
 
 616 ; 24 L. J. (Q. B.) 159. 
 
CHAP. II.J INSURANCE ON PROFITS AND COMMISSION. 37 
 
 passage money of emigrants, to pay a loss pro rata subject 
 to (the same clauses almost as in the foregoing case) and 
 against these risks only," the owner sought to recover the 
 money spent in provisions for the emigrants during six 
 weeks' stay at Fayal whilst the ship was heing repaired 
 after sea damage, and failed in his suit simply because his 
 obligation to maintain the passengers during the detention 
 was imposed by a section not included in the policy.^ 
 
 We come now to deal with Profits and Commission as Profits and 
 
 ... . , , Commission. 
 
 subjects 01 marme insurance. 
 
 The same reasons which led to the prohibition of insurance Profits. 
 in France on freight, have led to the prohibition of insurance 
 there on expected profits.^ 
 
 In Germany, in Holland, in Sweden, in Portugal, and 
 in the United States, as in this country, insurances on 
 expected profits are lawful.^ The grounds on which they 
 are so considered are expressed with admirable force and 
 clearness in the following passage from the judgment of 
 Lawrence, J., in the case of Barclay t\ Cousins. " As 
 insurance is a contract of indemnity, it cannot be said to 
 be extended beyond what the design of such species of 
 contract wiU embrace, if it be applied to protect men from 
 those losses and disadvantages which, but for the perils 
 insured against, the assured would not suffer ; and in every 
 
 ' Willis V. Cooke, 26 L. J. (Q. B.) specified out of whicli they are to be 
 
 16 ; 6 E. & B. 641. derived ; 1 Nolte's Beneoke, 301, 302. 
 
 ^ See 1 Emerigon, o. viii. s. 9, In Wendt's translation, of the Ger- 
 
 pp. 236—239, with, the commentary man Code, arts. 783, 805, 806, both 
 
 of Boulay-Paty. See also Ord. de la profits and commission are declared 
 
 Marine, liv. 3, t. 6, art. 15 ; Code de to be insurable, but, -what is odd, is 
 
 Commerce, art. 347. Spain and Den- that the word i>»ayi«a»-y is annexed 
 
 mark follow the French code in this to each as the subject of the policy, 
 
 prohibition. By the Italian Codice di Commercio, 
 
 ' In Holland, insurance on profits art. 461, a policy on expected profits 
 
 has long been practised, and is now is void. See the modern European 
 
 permitted by law, on condition that laws collected by Nolte in his edition 
 
 the expected profits are separately of Beneoke, vol. i. 298—312. 
 valued in the policy and the goods 
 
38 SUBJECTS or insurance. L?A1''T I- 
 
 maritime adventure, the adventurer is liable to he deprived, 
 not only of the things immediately subjected to the perils 
 insured against, but also of the advantages to be derived from 
 the arrival of those things at their destined port. If they do 
 not arrive, his loss is not merely that of his goods, but of the 
 benefits which he might obtain, were his money employed in 
 an undertaking not subject to the perils. If it be allowable 
 for the merchant to protect capital, subject to the risk of 
 maritime commerce, by insuring it, why may he not protect 
 those advantages he is in danger of losing by their being 
 exposed to the same risks? It is surely not an improper 
 encouragement of trade to provide, that merchants, in case 
 of adverse fortune, should not only not lose the principal 
 adventure, but that the principal should not, in consequence 
 of such bad fortune, be totally unproductive ; and that men 
 of small fortunes should be encouraged to engage in com- 
 merce, by their having the means of preserving their capitals 
 entire."! 
 What en- Such are the principles upon which insurances on expected 
 
 to recover. profits are allowed in this country. Profits may be insured 
 equally by valued and by open policies.^ But, whether 
 insured by one or the other, it is the law of this country (as 
 we shall see more at large when treating of the insurable 
 interest of the parties), that the assured cannot recover unless 
 ho prove that, but for the intervention of the perils insured 
 against, some profit would in fact have been realized by 
 the sale of his goods on arrival.' He must also prove that 
 the goods, from the sale of which the profits were expected, 
 have, at one time or other, during the period covered by the 
 policy, been actually exposed to the perils insured against,* 
 
 ' Per Lawrence, J., Barclay v. tliere a conclusive presumption that 
 
 Cousins, 2 East, 544. some profit would have accrued, had 
 
 2 Eyre v. Glover, 3 Camp. 276. the goods arrived, and upon this the 
 
 ' Hodgson V. Glover, C East, 316. valuation in the policy attaches ; 1 
 
 The law is different in the United Parsons, Ins. 195. 
 
 States ; see Patapsoo Ins. Co. v. Coul- * McSwiney v. Eoyal Exch. Ass. 
 
 ter, 3 Peter's Supreme Court Eep. Comp. 14 Q. B. 634 ; S. C, in error, 
 
 222 ; 1 Phillips, Ins. no. 318. It is ibid. 646 ; Halhead v. Young, 6 E. & 
 
CHAP. ll.J INSURANCE ON COMMISSION. 89 
 
 and also, that lie was legally interested in them at the 
 time of the loss.i "The foundation of the insurance is 
 not a hare expectation of interest in a subject with which, 
 at the time of effecting the insurance, the assured was not 
 connected, but an expectation of profits on goods, at that 
 time his."2 
 
 A party may also insure the sums which he is to receive Commissions, 
 by way of commission on the sale of merchandise ; and if 
 the merchandise, on which the commissions were to arise, 
 was only prevented fi-om arriving by the perils insured 
 against, the assured may recover to the extent of his loss,^ 
 provided it appear that the goods were actually on board 
 at the time of the loss.* 
 
 Profits or commissions are not covered by a policy on Must be 
 goods or merchandise ; they must be specifically named.' This named? ^ 
 rule is absolute in England. In the United States it ap- 
 pears to have been held, that " a right to a certain percentage, 
 proportion or share of a cargo as commissions on profits, is 
 covered by a policy on 'property.'"" 
 
 Lloyd's form of policy is adapted as usual by insertion of 
 the word profits or commissions in the margin ; or in the 
 valuation clause, adopting or adapting the language of the 
 
 B. 312 ; 25 L. J. (Q. B.) 290. IntMs Glover, 2 B. & P. N. E. 206. Insur- 
 
 latter case an attempt was made by ance on commissions is practised at 
 
 parol evidence to set up a different Hamburg ; and see generally for the 
 
 risk from that wliich was expressed foreign law on this subject of insur- 
 
 in the policy, but it failed. anos, 1 Nolte's Benecke, 311, 312. 
 
 1 StockdaJe v. Dunlop, 6 M. & W. * Knox v. Wood, 2 Park, Ins. 
 
 224. 563 ; S. 0., 1 Camp. 543. 
 
 ^ Luoena v. Craufurd, 3 B. & P. * So resolved by aU the judges in 
 
 85 ; per Blackburn, J., in Anderson Lucena v. Craufurd (in Dom. Proc), 
 
 V. Morrice, L. E., 10 C. P. 621. 2 B. & P. N. E. 315 ; Anderson v. 
 
 Nolte adopts this view ; Nolte's Morrice, L. E., 10 0. P. 609, 622, 
 
 Benecke, vol. i. p. 310. 024. 
 
 ' Mint V. Le Mesurier, before " Holbrook v. Brown, 2 Mass. E. 
 
 LordKenyon, 2 Park, Ins. 563 ; Bar- 280 ; 1 Phillips, Ins., no. 462. 
 clay V. Cousins, 2 East, 544 ; King v. 
 
40 
 
 SUBJECTS OF INSURANCE. 
 
 [PAKT I. 
 
 clause, according as the subject of the policy is valued or 
 not.i 
 
 Bottomry and 
 Respondentia. 
 
 Who may be 
 assvired. 
 
 The law of 
 France. 
 
 Loans on Bottomry and Eespondentia, though themselves 
 a species of insurance, may yet he the subjects of insurance, 
 inasmuch as they are an interest exposed to risk from the 
 perils of the sea.^ 
 
 The lender only, as appears hy the nature of the contract, 
 can insure the sum advanced. The condition of a bottomry 
 bond is, that if the ship perishes the borrower pays him 
 nothing ; if it arrives safely, or perishes during or after 
 deviation, or is sold or broken up at an intermediate port, he 
 pays the capital and the maritime interest; the lender's 
 capital and interest, therefore, being exposed to risk are 
 consequently insurable.^ It is otherwise if the terms of 
 the loan make the money repayable in any event ; it is not 
 insurable, since there is no sea risk ; but in that case it never 
 was bottomry.* 
 
 The borrower clearly cannot insure the sum advanced, for 
 the risk is upon the lender and not upon him ; and as in case 
 of loss he has nothing to pay, were he to receive the whole 
 sum from the underwriters he would have a direct interest in 
 the destruction of the vessel.' Of course, if the interest of 
 the assured in the adventure exceeds the sum borrowed on 
 bottomry, he may insure this surplus, though not as bot- 
 tomry.^ 
 
 Agreeably to the principles which guide them in the case 
 of future freight and expected profit, the French writers and 
 
 1 See Eyie v. Glover, 16 East, 
 218. 
 
 * 1 Emerigon, c. Tiii. «. 11, p. 
 241 ; Pothier, d'Assur. nos. 30, 31 ; 
 Glover v. Black, 3 Burr. 1394 ; 1 W. 
 Bl. 405. 
 
 5 1 Emerigon, u. viii. s. 11, p. 
 243 ; I Nolte's Benecke, 295, 296. 
 
 * Stainbank v. Penning, 11 C. B. 
 
 51 ; Stainbank v. Shepard, 13 C. B< 
 418 ; and see Simonds v. Hodgson, 
 6 Bing. 114; S. C. in error, 3 B. & 
 Ad. 50. 
 
 * Pothier, d'Assur. nos. 31, 32, 
 
 " Valin, Comment. Ord., Uv. 3, 
 
 t. 6, art. 16; Pothier, no. 31; 1 
 
 Emerigon, c» viii. s. 11 ; Glover Vr 
 
 Black, 3 Burr. 1394 ; 1 "W. Bl. 405, 
 
CHAP. II,] INSURANCE ON BOTTOMKY. 41 
 
 the Frencli Legislature^ declare that though the capital lent 
 on bottomry may be insured, yet the maritime interest, which 
 the lender on bottomry is to receive on the prosperous termi- 
 nation of the voyage, cannot ; because, as Pothier expresses it, 
 such interest is a gain, which the lender will miss mating if 
 the ship perishes, and not a loss by the perils of the sea.^ 
 
 In this country, and also in the United States, a more In this 
 liberal practice has prevailed, and bottomry or respondentia United 
 interest may be the subject of insurance. *^" 
 
 Respondentia and bottomry loans are not covered under Must be 
 
 the general denomination of goods and merchandise; they named in the 
 
 must be specifically named.* Lord Mansfield put this on 'P°^°'^- 
 
 the ground " that by the custom of merchants, respondentia 
 
 is insured under a special denomination : " but Kent, J., has 
 
 also suggested, as a reason for the rule, "that the risk is 
 
 peculiar, as there is neither average nor salvage; and a 
 
 capture does not mean a temporary taking only, but one that 
 
 occasions a total loss."* 
 
 Yet if it can be shown to be the usage in any particular Unless there 
 1 • i 1 1 1 ii ^® usage to 
 
 trade to msure these interests under general words, they may the contrary. 
 
 be recovered under a policy containing such words only. 
 
 On the ground of such a custom in the East India trade, a 
 
 captain was permitted to recover, at respondentia interest, 
 
 money he had laid out for the use of the ship, under the 
 
 general words "goods, specie, and effects on board."' 
 
 Of course, if the instrument of hypothecation be not in The specific 
 ... -T 1 • n T ji n T • description 
 
 law what it is described m the policy to be, the policy is should be 
 
 invalid. The Court of Common Pleas, therefore, upon the a^i^.^° 
 
 ' Ord. de la Mar., Uv. 3, t. 6, art. up on bottomry or the maritime in- 
 
 17 ; Co. de Com., art. 347 ; Pothier, teresl is void. 
 
 d'Assur. no. 32; 1 Emerigon, o< ^ Glover ». Black, 3 Burr. 1394; 
 
 viii. 8. 11, p. 243. 1 W. Bl. 399, 405, 422; Simonds v. 
 
 2 Pothier, d'Assur. no. 32. By Hodgson, 3 B. & Ad. 50. 
 
 the German Code, art. 807, both the * Eobertson v. Unit. Ina. Co., 2 
 
 moneys advanced on bottomry and Johnson's Cases, 250 ; 1 Phillips Ins. 
 
 the bottomry premium may be in- no. 427. 
 
 sured. By the Italian Cod. di Com., » Gregory ■i'. Christie, 3 Dougl. 
 
 art. 461, a policy on money taken 419 ; 1 Marshall, Ins. 326. 
 
4Q 
 
 SUBJECTS OF INSURANCE. 
 
 [PABT I. 
 
 construction of such an instrument being of opinion that it 
 was not in law a bottomry bond, because it made the lender's 
 claim under it depend, not on the arrival of the ship, but on 
 the arrival of the master, held, that the lender could not 
 recover under a policy " on bottomry." ^ The Court of 
 King's Bench, sitting in appeal, admitted that, had the 
 Court of Common Pleas been correct in their construction of 
 the instrument, the policy as framed would not have covered 
 the interest of the lenders.^ Accordingly, where the money 
 borrowed was secured by bills on the owner, and by an 
 instrument which purported to be a hypothecation of ship, 
 cargo, and freight, but in effect was an unauthorized mort- 
 gage of these interests, the Court held, that the lender had 
 no insurable interest in the ship.* 
 
 Seamen's 
 Wages and 
 Effects. ' 
 
 — are they 
 insurable ? 
 
 "We have reserved for notice in this place a subject that 
 has hitherto been debarred the protection of insurance, by 
 the maritime law, probably, of Europe. Seamen are allowed 
 to insure goods purchased with their wages, and put on board 
 as merchandise ; but their wages by our law are not insur- 
 able,* unless a change of policy involving this subject be 
 understood to have been introduced by the Merchant Ship- 
 ping Act, 1854. Freight, for the first time in the history of 
 English maritime law, . ceased by that statute' to be the 
 mother of wages.® The loss or wreck of the ship in the 
 course of the voyage, no longer necessarily carries with it 
 the loss of wages already earned by the seamen ; but it still 
 necessarily involves the loss of future wages for the same 
 
 ^ Simonds v. Hodgson, 6 Bing. 
 114. 
 
 " See remarks of Lord Tenterden 
 in reversing the judgment of the 
 Court of C. P. in Simonds v. Hodg- 
 son, 3 B. & Ad. 57. 
 
 ^ Stainbank v. Penning, 11 C. B. 
 57 ; Stainbank v. Shepard, 13 0. B. 
 418. 
 
 * Webster v. Be Tastet, 7 T. E. 
 157 ; The Lady Durham, Stuart, 3 
 Hagg. Ad. 196, 201 ; The Neptune, 
 Clark, 1 Hagg. Ad. 227, 232, 239 ; 
 1 Emerig. c. viii. s. 10, p. 235, and 
 the learning there collected on the 
 point. So in the United States, 
 G-aUoway v. Morris, 3 Teates, B. 445. 
 
 5 17 & 18 Vict. 0. 104, s. 183. 
 
 ' The Neptune, Clark, uU sup. 
 
QHAr. II.] IXSUllANCE ON SEAMEN's WAGES. 43 
 
 voyage,! and probably of all the effects on board belonging 
 to the crew. It seems never to have occurred to any one 
 that these effects of the common seamen are insurable, 
 probably on the same ground of policy (for it is not principle) 
 that declared the wages uninsurable. What that policy was, 
 is thus expressed by Lord Stowell : " The rule that makes 
 the payment of wages dependent on freight, is an additional 
 _ security to the safety of ship and cargo ; and, as the Lord 
 Chief Justice Abbott expresses it in his excellent publication 
 (on 'Shipping,' p. 435, 3rd ed.), was framed in order to 
 stimulate the zeal and attention of this class of persons en- 
 gaged in very perilous service." The noble and learned Judge 
 bows to the rule, and labours to obviate some of the hard 
 consequences of it on the seamen, by preserving, at all events, 
 his lien on the wreck, notwithstanding the absence of freight 
 earned. He concludes a remarkable judgment in favour of 
 such a lien with this remarkable passage: "Be it remem- 
 bered, that by the general and just poHcy of all maritime 
 states, the total loss of the ship, occasioned solely by the act 
 of Grod visiting the deep with storms and tempest, brings 
 with it the loss of all the earned wages (except advances), 
 although the general rule of law is, that the act of Grod pre- 
 judices no man; and although the mariner has contributed, 
 nothing to the mischance, but exerted his utmost endeavours 
 to prevent it; and although he is prohibited by law from 
 protecting himself from loss by insurance, as his owner is 
 empowered to do for his, it is surely a moderate compensation 
 for these disadvantages, that he shall be entitled upon the 
 parts saved as far as they will go, in satisfaction of his wages 
 already earned by past services and perils,"^ 
 
 Sir John NicoUs was subsequently obliged to decide 
 against a claim for seaman's wages, out of the owner's insur- 
 ance on the lost vessel. " A seaman," he says, in the course 
 of the judgment, "generally knows whether the ship be 
 insured or not, and if such an insurance could enure to his 
 
 ■ MaolaoHan on Shipping', 228. ^ The Neptune, Clark, 1 Hagg. 239. 
 
44 SUBJECTS OF INSURANCE. [PAKT I. 
 
 advantage, it might make him indifferent, and moderate, if 
 not extinguish, all exertion on his part."^ 
 
 The sole ground on which these learned Judges so reluc- 
 tantly proceeded against the seamen has heen removed.^ 
 On the same ground, Lord Stowell, at least, seems to place 
 the prohibition against the insurance of seamen's wages.* 
 As far as we can perceive, it rests on no other ; except, indeed, 
 it he in France; hut there they prohibit the insurance of 
 profits, for the same reason which is offered as the only 
 additional ground for the rule touching wages.* 
 Why not? Axe a seaman's wages now insurable ? The old law barred 
 
 all claim to wages against the owner in case of intermediate 
 loss of the ship, and the conventional doctrine of their non- 
 insurability followed from this as a conseiiuence simply. 
 The repeal of the rule then ought to carry with it the conse- 
 quence. If now the seaman's title, under the new law, to 
 wages up to the time of the loss, operates no prejudice to the 
 ship while she exists, it is not likely to be a whit more 
 prejudicial to the owners' interests, when the ship no longer 
 exists, for the seaman to have a claim against the under- 
 writer to wages for the remaiuder of the voyage. The master 
 always might insure his wages ; but, until the Act of 1854 
 gave it him, he had no lien for them on either ship or 
 freight ; the loss of either or both did not entail on him the 
 loss of his wages. Now, however, that he is in the same 
 position as the seaman in respect of lien, it is still the 
 received doctrine that his wages are insurable. Then, why 
 not the seaman's? But there is no decision to this effect 
 since 1854, and no decision, we believe, to the contrary; 
 although there is a notion in the profession that these wages 
 are not insurable.' 
 
 ' The Lady Durham, Stuart, 3 ' I think the right of seamen to 
 
 Hagg. 196, 201. insure their wages and effects, and 
 
 ' 17 & 18 Vict. u. 104, s, 183. the encouragement of the practice 
 
 ^ In the language cited above; by facilities being offered them for so 
 
 The Neptune, Clark, 1 Hagg. 239. doing, would improve the character 
 
 . * 1 Emerig. 236—239. and habits of seafaring men, and 
 
CHAP. II.J INSURANCE ON MISCEI,LANEOUS. - 45 
 
 All this applies to the wages of the crew, and of all the The master's 
 officers under the master.^ The master is an exception. Arable?" 
 He may insure his wages, his personal effects on board, his 
 commissions, and his share of the ship or cargo.^ 
 
 No insurance, however, can be effected on money advanced Advances to 
 to the captain by the agent of the shipper in the course on^Ws per- 
 of the voyage, on his personal aeoount;^ and a policy on ^onal acQount. 
 money lent to the captain, payable out of the freight, was 
 held void.* 
 
 There is sometimes a difficulty in accurately describing Miscellaneous 
 the subject of insurance ; substantial accuracy, however, will ^ 
 
 always suffice, and so much, at least, is indispensable in every 
 case in which a specific description is required. In the fol- 
 lowing case of Palmer v. Pratt, we do not think that more 
 than this was exacted. 
 
 In that case the policy was effected "upon any kind of Policy on 
 goods and merchandise," &c., in the common printed form, change" will 
 for a voyage from London to Calcutta, and the insurance, by ",°' ''°^'^l ^"" . 
 
 "' o ' J J strumenta not 
 
 a memorandum on the face of the policy, was declared to be legally bills. 
 " on two bills of exchange ; " as, however, it appeared that 
 the supposed bills were drawn on a contingency, being made 
 payable at thirty days after the ship's arrival at Calcutta, the 
 Court held, that such instruments, being mere waste paper, 
 were improperly described as bills of exchange, and that, 
 on this ground, their nominal value, in case of loss, could 
 not be recovered under such a policy.^ 
 
 would increase the security of the '^ Duff v. Mackenzie, 3 C. B., N. S. 
 
 lives and property placed in their 16 ; 26 L. J. (0. P.) 313 ; Hawkins 
 
 power. The above section stands for v. Twizell, 5 E. & B. 883 ; 25 L. J. 
 
 the most part as it did in the 3rd ed. (Q. B.) 160 ; King v. Glover, 2 B. & 
 
 of this treatise, into which I iutro- P. N, R. 206 ; King ii. Walker, 3? 
 
 duced it with the concurrence of some L. J. (Ex.), in error, 325. 
 
 large shipowners in the north of Eng- ' Siffken ». Allnutt, 1 M. & Sel. 
 
 laud, iu the hope of drawing public 39. 
 
 attention to the subject. — Ed. * Wilson v. Royal Exoh. Ass. Co., 
 
 1 Webster v. De Tastet, 7 T. E. 2 Camp. 624. 
 
 157. ^ Palmer v. Pratt, 2 Bing. 183 : 
 
46 
 
 StriUECTS OF INSURANCE. 
 
 [part T. 
 
 What is The ship Leonidas was chartered for a voyage from Buenos 
 
 ^°Ipeofe''^d Ayres to Canton and back, at a gross sum payable, not as 
 returns." freight, properly so called, but as the hire of the ship for 
 the voyage. Part of the sum was paid, as stipulated by 
 the charter-party, by the charterers' agents at Canton, to 
 cover the port charges and other incidental expenses of the 
 ship there. The charterers, who had shipped on board the 
 vessel at Buenos Ayres a large sum in dollars to be invested 
 in produce at Canton, being desirous of securing their 
 interest in the adventure, caused a policy to be effected, in 
 the common form, for the proposed voyage, " on specie, &c., 
 shipped on board The Leonidas in the river Plate, and on 
 the same or the returns thereof, as interest might appear, in 
 any description of merchandise," &c. Lord Tenterden held, 
 that under a policy so framed the assured could not recover, 
 in addition to what is usually recoverable as the value 
 of goods in an open policy, the sum paid for port charges 
 &c., at Canton.^ His Lordship, however, in the course of the 
 argument, intimated that, although such sum could not be 
 tecovered under a mere policy on merchandise, yet it might 
 have been insured as money paid for shipment of goods to be 
 transported to Buenos Ayres ;^ and, in delivering the judg- 
 ment of the Court, he said, " We have no doubt that these 
 payments might have been made the subject of a special and 
 distinct insurance."' 
 Share in com- A shareholder in the Atlantic Telegraph Company, before 
 any attempt had been made to lay the cable between the 
 Irish and American coasts, effected a policy to secure himself 
 against loss when the attempt was made ; and in the valua- 
 tion clause (the policy being in the form usual at Lloyd's) 
 occurred the only specification of the subject of insurance in 
 these words: "The said ship, &c., goods and merchandise, &o. 
 * * * are, and shall be, valued as on one 1000^. share in 
 
 pany imin' 
 Burable, 
 
 See Stainbank v. Fenning, 11 C. B. 
 S7 ; Stainbank v. Shepard, 13 C. B. 
 418. 
 
 1 Winter v. 
 Ad. 649. 
 = Ibid. 654. 
 ' Ibid. 658. 
 
 Haldimand, 2 B. & 
 
CHAP. II. J MISCELLANEOUS. 47 
 
 the Atlantic Telegraph Gompany, said share valued at 1100/." 
 Stopping here, the policy -would have been construed as being 
 on a subject — a share in a company — incapable of exposure 
 to sea perils, and consequently invalid. But this other sen- 
 tence followed: "In case of loss, the part saved to be sold or 
 appraised for the benefit of the underwriters." The Court 
 regarding the whole in the light of these latter words, held 
 that it was a policy on the cable, and that the assured under 
 the circumstances was entitled to recover for an average loss 
 if above 3 per cent.^ 
 
 As shares in an incorporated company cannot be exposed to 
 maritime perils, they consequently cannot be the subject of 
 marine insurance ; and as the shareholder in such a company 
 has no property in the estate or chattels of the company, 
 such a chattel as the Atlantic Cable, though exposed to 
 maritime perils, cannot for him be the subject of a valid 
 policy. But it has been held that his right to a share of the 
 profits of such a company gives him an insurable interest in 
 an adventure, such as that of laying the Atlantic Cable, which 
 interest, by the use of suitable language, may be covered by 
 a policy of insurance. ' 
 
 In Wilson v. Jones,^ a shareholder in the Atlantic Tele- 
 graph Company, before the cable had been laid, effected a 
 policy to cover his interest in the concern, describing the 
 subject of insurance in a cloud of ambiguous words, as 
 follows : — " The said ship, &c., goods and merchandises, &c., 
 for so much as concerns the assured by agreement between 
 the assured and assurers, on this policy, are and shall be 
 valued at 200/. on the Atlantic Cable, value say on twenty 
 shares, valued at 10/. per share." Then on the margin over 
 against the statement of perils insured against, were written 
 these words : " It is hereby understood and agreed that this 
 policy, in addition to all perils and casualties herein specified, 
 
 1 Paterson v. Harris, I B. & S. Surable interest of the claimant. 
 336 ; 30 L. J. (Q. B.) 354. There " L. E., 1 Exch. 193 ; in error, 2 
 
 was no plea on the record to the in- Exch. 139. 
 
48 
 
 SUBJECTS OF INSURAKCE. 
 
 [part I. 
 
 Surplus pro- 
 visions. 
 
 Provisions 
 and pro- 
 vender. 
 
 Premiums. 
 
 stall cover every risk and contingency attending the con- 
 veyance and successful laying of the cable." Having regard 
 to these latter words, both the Court of Exchequer and the 
 Court of Exchequer Chamber held that the subject intended 
 to be insured was the plaintiff's interest in the adventure, and 
 that this might be the subject of a valid policy of marine 
 insurance.^ 
 
 Suppose the provisions of a ship for her ordinaiy crew to be 
 laid in double, for reasons either of economy or necessity, and 
 a total loss of ship and provisions soon after starting on her 
 outward voyage, — are the underwriters liable, under a policy 
 on ship, for the whole of the provisions also ? Provisions for 
 the voyage insured are covered by a policy on ship, — that we 
 have already seen ; ^ they are part of the instrumental means 
 of earning the pending freight, which, in ease of abandonment, 
 falls to the underwriter on ship.^ That ground, however, 
 will not bear a claim for provisions which are greatly super- 
 fluous for the voyage in the policy. The provisions in excess 
 are cargo, which the underwriter on ship has therefore nothing 
 to do with. 
 
 The same line of demarkation excludes provisions for 
 passengers fr6m the protection of a policy on ship only, not- 
 withstanding they are incidental to the earning of passage 
 money. Yet, as even live stock cannot be insured as cargo, 
 nor the provender necessary for it,^ the more proper course 
 appears to be to insure provisions for passengers and pro- 
 vender for live stock eo nomine. 
 
 We shall see, when we come to consider the mode of 
 valuing cargo for the purposes of insurance, that premiums 
 form a proper item of the insured value of the subject of the 
 policy.* 
 
 ' Reference was made by Black- 
 turn, J., to the language of Law- 
 rence, J., in Barclay v. Cousins, 2 
 !East, 544 ; and in Lucena v, Crau- 
 furd, 2 B. & P. N. E. 301, 
 
 « Ante, p. 20. 
 
 ^ See 1 Emerigon, c. viii. s. 6; 
 Davidson v. Case, 5 M. & Sel. 79. 
 
 * Ante, p. 29. 
 
 " Post, Part I. c. vi. ; Glaser v. 
 Cowie, 1 M. & Sel. 62, 
 
<;haf. ii.J specification of interest. 49 
 
 "Althougli the subject-matter of the insurance," says As to the 
 Lord Tenterden,^ "must be properly described, the nature extent of the 
 of the interest may in general be left at large." " But in all "*'"^^°*- 
 
 cases where the peculiar nature of the interest alters the 
 .risk," says Blackburn, J.,^ "it may be properly said that 
 such interest is the subject-matter of the insurance; at all 
 events, there is great force in the argument that the nature 
 of the interest should be stated in the policy." 
 ' In a case of capture during hostilities with this country, Prize, 
 where ship and freight were vested in the Crovim, and the 
 captors had no interest in either, nor other concern in re- 
 spect of the same beyond a mere chance that the King 
 might bei induced to give them something out of the pro- 
 duce of either or both, Lord Ellenborough says, " Supposing 
 such a chance insurable, must it not be insured specifically 
 as such chance? Must not the interest be so described 
 in the policy? Can a man who has no right, legal or 
 equitable, either in ship or freight, effect an insurance on 
 either, merely because he has a chance that some collateral 
 -benefit may arise to him if the ship and cargo should arrive 
 •in safety ? " * 
 ■ In McSwiney r. Eoyal Exchange Assurance Co., the Profits, 
 plaintiff had purchased, at 19s. a cwt., 6000 bags of rice, to 
 be shipped at Madras on board the Edward Bilton, to 
 arrive in this country on or before the end of May ; he had 
 sold the same at 20s. Qd. a cwt. upon the other terms of 
 his own contract of purchase; and he insured his interest 
 by a policy at and from Madras to London on profits on rice, 
 -laden or to be laden on board the Edward Bilton, beginning 
 -the adventure from and immediately after the loading 
 
 ' In Crowley ». Cohen, 3 B. & Ad. of a ?»» ji)fi«<f«m«, which hegan as Crau- 
 
 478, 485. fuJ^i V. Hunter, 8 Term E. 13, and 
 
 2 In Mackenzie v. Whitworth, on re-appeared as Lucena v. Craufurd, 
 -appeal, 1 Ex. Div. 36, 42. 3 B. & P. 75 ; 5'. C, 2 B. &P. N. E. 
 
 3 In Kouth V. Thompson, 11 East, 269. 
 428, 433. This was the termination 
 
 M. ^ 
 
50 SUBJECTS OF INSURANCE. [PART I. 
 
 thereof aboard the said ship at Madras. It happened that 
 when 1200 of the hags had been laden on board the Edward 
 Bilton, she was wrecked by a storm ; the 1200 bags, damaged 
 by sea water, were put ashore and sold on the spot, and the 
 vessel was unfit to receive the remaining 4800 bags on 
 board. The defendants paid upon the 1200 bags, but the 
 plaintiff sued them on the whole 6000. Parke, B., deliver- 
 ing the judgment of the Exchequer Chamber, said : " We 
 have no doubt that the plaintifE might have recovered, in 
 the events which happened, a total loss, if he had been 
 insured by a policy properly adapted to the case, and so 
 drawn as to cover his special interest from the time that the 
 rice was appropriated by the vendors and ready to be 
 shipped at Madras, and also to assure him against losses of 
 the expected profits, not merely by the loss of all the rice 
 by the perils of the seas, but by the loss of any part of it, 
 or the loss of the ship, or delay of the voyage beyond the 
 month of May; in any of which contingencies this special 
 interest in profits would have been entirely defeated. As 
 that special interest was necessarily the basis of an action 
 brought to recover on the whole 6000 bags, and the plaintiff 
 had not insured that special interest but only the ordinary 
 profits of a parcel of rice shipped on board the particular 
 vessel and against the losses specified, the plaintiff failed in 
 his action." ^ 
 Eeinsurance. On the contrary, where a policy intended as a reinsurance, 
 but not so expressed on the face of it, or any notice given to 
 the underwriter that it was so intended, was expressed to be 
 " £5000 on cotton," and the same was put in suit, the defence 
 being that the interest of the assured was not described in 
 the policy, the Court of Appeal gave judgment for the 
 plaintiff, holding the interest of the assured to be sufiaeiently 
 described. " The assured here had a direct interest in the 
 safe arrival of the cotton, not in any way a collateral interest 
 
 ' McSwiney ». EoyalExoh. Assur. 312 ; 25 L. J. (Q. B.) 290. See these 
 Co., 14 Q. B., in error, 646, 060. oases referred to again in next 
 S. P., Halhead v. Yonng, 6 E. & B. chapter. 
 
CHAP. II.] SPECIFICATION OF INTEREST. 51 
 
 in sometliing else after tlie cotton arrived. It was, though 
 not a property in the cotton, an interest in the cotton 
 created and evidenced by a binding legal contract between 
 them and the owners of that cotton; and if the mode in 
 which they acquired that interest had been stated in the 
 policy it would have in no way altered the effect of the 
 defendant's contract, which would still have remained a 
 contract to indemnify against all damage sustained by 
 the cotton in consequence of any of the perils insured 
 against." ^ 
 
 The extent of the interest of the party insuring need never Ship and 
 be specified in the policy, for it is a well-established rule "^^'^ '" 
 that a party interested only to a certain extent in property, 
 which he owns in common with others, may effect insurance 
 generally without specifying his interest, and will recover 
 for such interest as he has.^ Thus, a mortgagee may 
 recover under a policy on ship to the extent of his mort- 
 gage;^ or, one of several part-owners of a ship may insure 
 the freight generally without specifying what share he has in 
 the ship, and he may declare generally and recover for such 
 interest as he has.* 
 
 The above positions have received abundant illustration Groods, 
 in the jurisprudence of this country and the United States. 
 Thus, with regard to the nature of the interest. Lord Mans- 
 field, in the case of Glover v. Black, after deciding, solely on 
 the ground of the usage of merchants, that the interests of 
 the lender on bottomry and respondentia must be specifically 
 described in the policy, adds, " But we by no means say that 
 under an insurance on goods at large, a man may not be per- 
 mitted to give in evidence a mortgage or other special 
 lien." 5 "I admit," says Park, J., "that a party who has 
 
 ' Mackenzie v. Whitworth, I Rob. 153 ; 2 B. & Ad. 193. 
 
 Exoh. Diy. 36, 44 ; below, L. E., 10 • Rising v. Burnett, 2 Marshall, 
 
 Ex. 142. Ins. 738. 
 
 ^ The principle is laid down, 1 * Glover v. Black, 1 W. Bl. 423 ; 
 
 Emerigon, ch. x. s. 1, p. 299. see also 3 Burr. 1401. 
 
 2 Irving V. Richardson, 1 Mood. & 
 
 e2 
 
5-2- SUBJECTS OF INSURANCE. [PAET I. 
 
 only a special intesrest in goods may recover, in respect of- 
 that interest, on a general insurance." ^ 
 
 One of the first cases in direct illustration of this point is 
 that of Carruthers v. Shedden, in which it appeared that a 
 general insurance " on coffee " had been effected hy a London 
 broker, "by order and for account of N. D. & Co.," a, London 
 mercantile firm, who were interested as part-owners with 
 others in seven-tenths of the coffee, but who had also an, 
 insurable interest in the whole of it, as consignees of thet 
 cargo, and as having a lien on the whole for advances. The 
 Court held that, under the general form of policy, N. D. & Co. 
 might protect any or all of these different species of interest ', 
 that the nature of the several interests need not be expressed 
 in the policy ; and that the assured were not bound to elect 
 on which they would proceed.'' 
 
 Upon the same principle a general policy "on goods," ^ 
 has been held sufficient to cover the interest of carriers on 
 goods entrusted to their care, so as to protect them against 
 loss arising from damage done to such property by the perils 
 insured against, whereby they were obliged to make com- 
 pensation to the owners, and were besides put to other 
 expenses.* It was objected that such a policy could not 
 cover such an interest, since it merely purported to protect 
 goods against the usual risks to which the owners of goods 
 axe liable ; whereas, the loss alleged was one arising out of 
 plaintiffs' liability to a risk to which carriers are liable. But 
 
 ' Palmer v. Pratt, 2 Bing. 192. at work between London, Wolver- 
 
 ^ Carruthers v. Stedden, 6 Taunt. hampton, and Birmingham, &c., 
 
 114 ; 8. C, 1 Marshall, E. 416. backwards and forwards, and in any 
 
 ^ The policy, which was intended rotation, upon goods, and on the 
 
 to cover the interest of plaintiffs, as body and tackle, &o., on thirty boats, 
 
 barge-owners, in the property carried as per margin;" in the valuation 
 
 to and fro for hire in their barges for clause it was declared that the sub- 
 
 a year, was a common printed form ject of insurance was agreed between 
 
 of policy on ship and goods, filled up the parties to be " twelve thousand 
 
 a&d altered in a very clumsy manner pounds on goods as interest shall aps 
 
 so as to adapt it to the object in pear hereafter." 
 view ; by it the plaifttifis were in- * Crowley v. Cohen, 3 B. & Ad. 
 
 Bured for twelve months "by canal 478. S. JP., Joyce v. Kennard, L. R.; 
 
 navigation boats, containing goods, 7 Q. B. 78. 
 
CHAP. TI.] SPECIFICATION OF INTEREST. 53 
 
 the Court, although Lord Tenterden admitted that it might 
 have been better if the policy had expressly shown that the 
 object was to indemnify the plaintiffs as carriers, were yet 
 unanimously of opinion that it was sufScient as it stood, on 
 the ground that it is, only necessary to state accurately the 
 subject matter, not the interest which the assured has in it. 
 
 The decisions upon this subject in the United States go to -^^ tlie United 
 the full extent of the English law ; and the doctrine seems 
 now to be established there, that a mortgagee may insure the 
 subject of the mortgage, either generally, or under a direct 
 description, without specifying his interest to be that of a 
 mortgagee.' 
 
 • See the oases collected, 1 Phillips, Ins. no. 419 et seq. 
 
CHAPTER III. 
 
 THE PARTIES TO MARINE INSURANCE. 
 
 Who may te assured - - 54 
 Those with insurable interests 55 
 shipowner and charterer - 60 
 shipper and freighter 
 vendor and vendee - 
 consignees, factors, agents 
 mortgagor and mortgagee 
 incorporated companies 
 lenders on bottomry - 
 shipmaster and seamen 
 captors and prize agents 
 carriers - - - 
 miscellaneous - 
 underwriters by reinsurance 102 
 assignees of the assured - 107 
 as to co-existing interests 
 and independent policies- 
 Those without insurable inte 
 rest in foreign property 
 
 Who may be 
 assured. 
 
 69 
 79 
 84 
 86 
 87 
 89 
 91 
 100 
 101 
 
 118 
 
 121 
 
 Who may not be assured - - 123 
 Those without insurable inte- 
 rest in British property - 123 
 Those without insurable inte- 
 rest in foreign property - 131 
 Alien enemies . . - 131 
 who is an alien enemy - 135 
 of domicil . - - 136 
 
 during war - - - 138 
 test of - - - 140 
 
 Who may be insurers - - 147 
 History of the practice in 
 
 England - - - - 147 
 Lloyd's underwriters 148 
 
 the two old companies - - 151 
 shipowners' clubs - - 152 
 
 the law affecting - - 153 
 new companies and partner- 
 ships . - - - 165 
 
 In treating of persons as parties to a contract of marine 
 insurance, we shall find that the general doctrine of law, as 
 to the capacity and incapacity of persons to make a contract, 
 is essentially modified by the peculiar nature of this contract, 
 the sole object of which being indemnity against certain 
 losses, reqxiires in the person contracting for indemnity an 
 interest in the subject insured in respect of which he may be 
 damnified. Even that general rule is liable to be further 
 modified by express prohibitions of the municipal law, and 
 by the necessities of our war policy, and the principles of 
 international law. 
 
 It is obvious that a contract, which purports to provide an 
 indemnity for the assured against loss, becomes, when per- 
 verted to the purposes of one who has no interest in the 
 subject insured in respect of which he can suffer loss, nothing 
 
jCHAP. III.] WHO MAY BE ASSURED, 65 
 
 better than a bet or wager upon the event of the voyage or 
 adventure described in the policy. Such policies, with no 
 interest to justify the assured in making them, came into 
 frequent use in the reign of Charles the Second, and in the 
 time of Queen Anne our Courts of justice imfortunately 
 pronounced them to be valid and legal. An Act of Parlia- 
 ment (19 Q-eo. 2, e. 37) afterwards declared them illegal in 
 respect of the property of British subjects; and the conse- 
 quence is, that as to all that is not the property of British 
 subjects there may still be a contract of insurance made with 
 those who have no interest whatever in the subject insured.^ 
 As to British property, however, the statute in effect reduces 
 the policy once more to a contract of indemnity, and raises 
 the legal presumption, which may be challenged by way of 
 defence, that the assured in every instance has in the subject 
 of insurance an interest at risk. 
 
 We have already considered the Subjects of Insurance. 
 The term Interest, as we are now using it, does not denote 
 any one of these Subjects, but rather the commercial advan- 
 tage arising to the person assured out of some beneficial 
 relation which he has with the subject insured. 
 
 By the very nature therefore of the contract, as now Those only- 
 enforced in the Courts of this country, those who are parties ^fa^^^o' 
 to a policy of marine insurance in respect of British property '^ve ^n 
 are presumed to have an insurable interest in the property interest. 
 specified, and are deemed without such interest incapable of 
 putting the policy in suit on their own behalf. 
 
 This insurable interest, indispensable to one who on his 
 own account would attempt to enforce a contract of marine 
 insurance, is thus described by a Judge of the highest legal 
 reputation: — "A man," says Lawrence, J., "is interested in Description 
 a thing to whom advantage may arise or prejudice happen ^t™est!^ ^ 
 
 1 Unless indeed this be now altered null and void under the 8 & 9 Vict, 
 by the declaration that all contracts c. 109, s. 18. 
 by way of gaining or wagering are 
 
56 ■INSURABLE INTEREST. [ PART I. 
 
 from the circumstances which may attend it ; and whom it 
 importeth that its condition as to safety or other quality 
 should continue. Interest does not necessarily imply a 
 right to the whole or part of the thing, nor necessarily and 
 exclusively that which may be the suhjeot of privation, but 
 the having some relation to, or concern in, the subject of the 
 insurance ; which relation or concern, by the happening of 
 the perils insured against, may be so affected as to produce 
 a damage, detriment, or prejudice to the person insuring. 
 And where a man is so circumstanced with respect to matters 
 exposed to certain risks and dangers as to have a moral 
 certainty of advantage or benefit but for those risks and 
 dangers, he may be said to be interested in the safety of the 
 thing. To be interested in the preservation of a thing is to 
 be so circumstanced with respect to it as to have benefit 
 from its existence, prejudice from its destruction. The pro- 
 perty of the thing and the interest derivable from it may be 
 very different. Of the first, the price is generally the 
 measure; but by interest in a thing, every benefit and 
 advantage arising out of or depending on such thing may be 
 considered as being comprehended."^ 
 
 What is an The plainest instance of an insurable interest is the owner- 
 
 Interest. ship of the subject of insurance. The variety of ways in 
 
 which this ownership may be modified suggests again the 
 
 Ownership of various questions, some of them of considerable nicety, by 
 
 indefinitely wMch the inquiry as to the insurable interest of the assured 
 
 modiaed. ^^^ -^^^ perplexed. The chattel owned may be held in trust, 
 
 or may be subjected to incumbrances, such as mortgages 
 
 and liens, or to rights in other persons, as by deed of demise 
 
 or contract of charter-party, or it may be sold under a 
 
 reservation of rights or liabilities in the vendor, or may be 
 
 possessed so conditionally as to be liable to defeasance at the 
 
 ' Lnoena v. Craufurd, 2 B. & P. jeot, 1 Marshall, Ins. 101, 102 ; 1 
 
 N. R. 269, 302; and by the same Phillips, Ins. no. 172 -et seq. ; 3 
 
 learned Judge, Barclay ». Gousins, 2 Kent's Comm. 276, 277. 
 East, 514 ; see also on the same suh- 
 
CHAP. HI. J INSURABLE INTEREST. 6? 
 
 will of anotlier,^ or to seizure for a forfeiture incurred before 
 the voyage described in the policy. ^ In all these "instances 
 an insurable interest undoubtedly exists, and independent 
 insurable interests may co-exist in several persons at the 
 same time, but whether under certain modifications such as 
 may be supposed in the circumstances an insurable interest 
 does exist in a particular person may be a somewhat difficult 
 question. 
 
 Besides "the property of the thing," there may be an Benefit, 
 " interest derivable from it," a " benefit or advantage directly liabUity. 
 arising out of or depending on such thing," or a liability 
 coupled with the loss of the thing, constituting an insurable 
 interest in the person for whom such benefit or on whom 
 such Kability exists. It may be but an expectancy founded 
 on a present existing legal title, or an inchoate right under a 
 contract made indeed, and abeady in the inception of exe- 
 cution. Freight, for instance, in its various acceptations 
 under insurance law,^ whether it be ship's earnings, chartered 
 hire, or enhanced value, becomes an insurable interest the 
 moment that a title to it so accrues from the circumstances 
 as that nothing but the intervention of the perils insured 
 against could intercept the benefit. Profits and commissions 
 are similar instances of insurable interest, consisting of ex- 
 pectancy founded upon existing title, and liable only to be 
 prevented by the perils insured against, although in the 
 second of these two instances there is generally a total 
 absence of ownership of the chattel from which the commis- 
 sions are derivable. So, the liability of canal owners, or 
 carriers by water, or of insurers, to compensate or indemnify 
 in respect of losses affecting the property carried or insured 
 by them, is such an interest as is insurable.* 
 
 ' Per Lord Ellenborough, Stirling 2 B. & P. N. E. 319, 320. 
 
 V. Vaughan, 11 East, 629. ' See ante, p. 31. 
 
 . » Wilkes V. People's Fire Ins. Co., * Crowley v. Cohen, 3 B. & Ad. 
 
 19 N. T. 184; 1 PhilUps, no. 195; 478; Joyoei).Kennard, L.R., 7Q. B. 
 
 per Lord Eldon, Lucenau. Craufuid, 78; Stephens!;. Australasianlps. Co., 
 
58 INSURABLE INTEKEST. [PART I. 
 
 Must be Again, an interest, in order to be insurable must be such 
 
 perils £s*ed as to be immediately, and not only by way of consequence, 
 against. affected by the perils insured against in the policy. Thus 
 
 profits, by evidence of the state of the market, would have 
 been secured but for the loss of the goods, commissions but 
 for the same calamity, freight but for the disabling of the 
 ship by the perils of the sea. A person, however, who 
 advances money in this country to a British shipowner for 
 the repair of his ship, acquires thereby no insurable interest, 
 unless the money be secured by some such legal interest in 
 the vessel as a mortgage, or bottomry lien, and yet the loss 
 of the ship may by way of consequence involve the loss of 
 the money. The following case furnishes both an aflSrmative 
 and negative illustration of the principle under consideration. 
 The assured held shares in the Atlantic Telegraph Company, 
 but his shares could not be exposed to the perils insured 
 against, and consequently were not insurable; the cable 
 might be exposed to the perils, but could not be the property 
 of the assured, for it was the property of the company ; both 
 the shares and the cable, however, were described in the 
 policy in such a way that this, coupled with other parts of 
 the description, led the Court to the conclusion that the 
 adventure of laying the cable was the intended subject of 
 insurance, and as his shares gave him a direct interest in 
 that, which, moreover, was exposed to the perils insured 
 against, this was held to be such an insurable interest as 
 sustained the policy.^ 
 
 ^™„j Again, the time of the loss is the moment at which the 
 
 assured's rights under the policy are determined, according as 
 his title, whence flows his insurable interest, was then vahd 
 and complete or otherwise. So that one who is merely in 
 
 L. E., 8 0. P. 18. " So the liability neutral" — ^per Lord Eldon, inLucena 
 
 of captors to pay costs and charges if v. Craufuid, 2 B. & P. N. E. 323. 
 theyhadtaien possession improperly, ' 'Wilson ». Jones, L. E., 1 Eich. 
 
 and also their liability to render back 193 ; 2 Exch. 139. 
 property which should turn out to be 
 
CHAP. III.] INSURABLE INTEREST. 59 
 
 treaty for the purchase of a ship at the moment of her loss, 
 
 or who has insured freight while his vessel is still but a 
 
 seeking ship, and she goes to the bottom, cannot be said to 
 
 have an insurable interest. The expectation of benefit to Theexpeota- 
 
 arise from a subject in which the party insuring is not expectation is 
 
 actually interested at the time of loss, but only expects to abie'^""^' 
 
 be interested, is the mere expectation of an expectation, 
 
 and is not an insurable interest. Such, for instance, would 
 
 be the expectation of commissions to arise out of the sale 
 
 and disposal of a homeward cargo, which was neither 
 
 ready for, nor loaded on board the ship at the time of her 
 
 loss,^ or the expectation of profit to arise out of the sale Nor profit 
 
 of goods which have never vested in the party insuring never vested, 
 
 under any legal contract.^ The expectation of profit on or shipped. 
 
 goods which, though ready and contracted to be shipped, 
 
 are not actually on board at the time of loss, is not such an 
 
 insurable interest as can be protected by the ordinary form of 
 
 policy.^ 
 
 The interest that shall entitle the assured to recover 
 must be a subsisting interest during some period of the 
 pendency of the risk, and at the time of the loss. Formerly, 
 the rule was so laid down as to extend also to the time of 
 effecting the policy ;^ but it is now established that an in- 
 surable interest whilst the risk is still pending, and at the 
 time of loss, is sufficient ; indeed, it is every day's practice to 
 effect insurances in which the allegation of interest at the 
 time of effecting the policy could not be made with any 
 degree of truth, as, for instance, where goods are insured on 
 a return voyage long before they are bought.' 
 
 ' Knox V. Wood, 1 Camp. 542. Parke, B., delivering judgment of 
 
 2 StockdaJe v. Dunlop, 6 M. & W. Exchequer Chamber, 14 Q. B. 659, 
 224. 660. 
 
 3 MoSwiney v. Eoyal Exch. Ass. * Lucena v. Craufurd, 2 B. & P., 
 Co., 14 Q. B. 646 ; Halhead v. Young, N. R. 295 ; see also Marsh v. Eobin- 
 6E. & B. 312 ; S. C, 25 L. J. (Q. B.) son, 4 Esp. 98. 
 
 290. It is an interest which may •' Rhind o. Wilkinson, 2 Taunt, 
 
 be insured under a form of policy, 237. 
 properly adapted to protect it ; per 
 
60 INSURABLE INTEREST [PART I. 
 
 . It must, however, he always alleged, and, if traversed, he 
 proved, tliat the party on whose account and for whose 
 henefit the policy was made, was interested in the suhject of 
 insurance whilst the risk was pending, and at the time of 
 loss. So that where, after averment of interest in three as 
 part-owners of a ship, it appeared that one of them had 
 before the loss parted with his share to one of the other 
 part-owners, it was held, that there was no right of action in 
 the three plaintiffs jointly.^ If the transfer of interest had 
 been after loss, the underwriter could not have resisted the 
 claim.^ 
 
 The loss, before which an interest must have commenced, 
 according to this rule is a total loss. The rule, however, does 
 not preclude from recovering for an average loss sustained in 
 respect of the subject of insurance before the interest began, 
 provided the loss in question falls in virtue of the terms of 
 the transfer upon the person for whom the policy is put in 
 suit. Accordingly it is decided in an action for an average 
 loss on a policy on goods, " lost or not lost," that it is no bar 
 to aver that the interest in the goods was not acquired till 
 after the loss, it being at the same time admitted, that the 
 plaintiff had an interest in such goods during the voyage to 
 the amount insured.* 
 
 After these general observations respecting the nature of 
 insurable interest, we turn now to consider it more in detail, 
 as growing out of some of the usual relations sustained in 
 respect of the more ordinary subjects of insurance. 
 
 Shipowner The first of these in order is the shipowner and the char- 
 
 and Char- mi • i i • 
 
 terer. terer. Ine msurable interest of the owner in his ship still 
 
 continues to the full amount, notwithstanding he has demised 
 her under covenant to one who thereby makes himself re- 
 sponsible for her full value; for he is not bound to trust 
 
 ' Powles V. Innee, 11 M. & W. 10. v. Spence, L. E., 7 Q. B. 299. 
 2 Sparkes v. Marshall, 2 Bing. » Sutherland *. Pratt, llM. fiW. 
 
 N. C. 774 ; Lloyd v. Fleming, Lloyd 296. 
 
CHAP. in.J OF SHIPOWNER AND CHARTERER. 61 
 
 exclusively to the credit of ilie oliarterer.i In- that case, 
 the- charterer also has an insurable interest in the ship to the 
 full extent of his liahility in respect of her. Thus, in the As to ship. 
 United States, where the owner of one-half of a schooner 
 hired the other half, under a covenant, that in case of her 
 being lost within the terms of the charter-party, he would 
 pay the other part-owner the value of his moiety, he was 
 held to have an insurable interest to the full value of the ship.^ 
 Two persons joined in the purchase of a ship, and they 
 were registered each for one-half the vessel. One of them 
 was unable to pay for his half, and yet continued to appear on 
 the register as before ; the other, who paid for the whole, but 
 never had any assignment or mortgage executed of his co- 
 owner's share, or acquired any lien thereon for the money so 
 paid, insured the whole vessel in his own name and for his 
 own account, iipon authority from his co-owner so to do, and 
 he was held to have an insurable interest on the vessel to her 
 full value.* 
 
 Generally speaking, the shipowner alone has an insurable As to freight, 
 interest in freight, whether by that word be meant freight, 
 properly so called, or the chartered hire of the vessel. 
 
 In some cases, however, the charterer may have an insur- 
 able interest in freight. If he either re-charters the ship or 
 puts her up as a general ship for the transport of other - . 
 people's goods on freight, he stands, pfo hac vice, in the 
 relation of shipowner, and has an insurable interest in the 
 freight he expects to earn.* Moreover, as in this country the 
 
 1 Hobbs V. Hannam, 3 Camp. 93. (1 Ins. 17S). 
 
 * Oliver v. Greene, 3 Mass. Eep. That they have an insurable inte- 
 133, cited 1 Phillips, Ins. no. 325. rest, the owner to the full extent of 
 
 ^ Provincial Ins. Co. of Canada v. the chartered hire, and the charterer 
 
 Le Due, L. K., 6 P. C. 224. to the whole amount of his expected 
 
 * The case of MeUen ■!>. National freight, which may be covered, in 
 Ins. Co., 1 Hall Eep. 452, decided in each case by a policy, cannot be 
 the U. S. to the effect that only the doubted ; but it is also quite clear 
 excess of freight over the chartered that between them they can only re» 
 hire is insurable by the charterer, cover to the full amount of the 
 seems to be justly challenged as in- aggregate interest actually at risk, 
 consistent with principle by Parsons See post, p. 118. 
 
62 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Assignee of 
 freight. 
 
 The char- 
 terer : as to 
 dead freight. 
 
 Advances on 
 freight. 
 
 shipowner has an insurable interest in tie benefit whicli lie 
 expects to derive, or the profit he expects to make, by carrying 
 his goods in his own ship,i there is no reason why the 
 charterer, if he stands in snch a position, may not protect his 
 interest by a policy. 
 
 The vendor of a ship who reserves his right to the freight 
 being earned at the time, is in the same situation as one who, 
 for good consideration, is assignee of freight. Valid insur- 
 ances are daily effected in the latter case in this country; and 
 even in the United States, where the practice is to insure 
 ship and freight in the same policy to prevent injustice ia 
 case of abandonment, a policy on such an interest has been 
 held valid.^ 
 
 A charterer who agrees to pay dead freight in case the 
 ship be prevented by political or other circumstances from 
 discharging her outward or shipping her return cargo, has an 
 insurable interest to the same extent which may be covered 
 by a policy in the terms of the charter-party.^ In this 
 case it was the contingent determination of the adventure by 
 the foreign government at the port of discharge which was 
 the risk insured, and it was insured for the charterer ; the 
 shipowner might at the same time have insured his interest 
 in freight under a common policy against ordinary sea risks. 
 
 A charterer who advances money in part payment of the 
 freight, purchases thereby an insurable interest in the cargo 
 beyond its prime cost to the extent of the money advanced ; 
 for the money cannot, in case of the loss of the ship or cargo, 
 be recovered back, so that the loss of ship or cargo involves 
 the loss of the money advanced.'' The charterer, after such 
 an advance, is like a shipowner conveying his goods in his 
 
 1 Flint V. Hemyng, 1 B. & Ad. 
 45 ; Devaux!). J' Anson, 5 Bing. N. C. 
 519. 
 
 " Paradises. Sun Mutual Ins. Co., 
 6 La. Eep., cited 1 Phillips, no. 477. 
 
 ' Puller V. Staniforth, 11 East, 
 232 ; see also Puller ii. Glover, 12 
 East, 124 ; Puller v. Halliday, 12 
 
 East, 494. 
 
 * Anonymous ease, 2 Shower, 283 ; 
 De Silvale v. Kendall, 4 M. & Sel. 37 ; 
 ohservations of Bayley, J., in Man- 
 Held V. Maitlaud, 4 B. & Aid. 682, 
 585 ; Allison v. Bristol Mar. Ins. Co., 
 1 App. Cases, 209, and the cases 
 referred to therein. 
 
CHAP. III.J OF SHIPOWNER AND CHARTERER. 63 
 
 own ship ; the value of the goods is enhanced to the extent of 
 the freight, and that value in each case is insurable, — 
 by the shipowner as freight,^ and by the charterer as 
 advances on account of freight.^ But for this purpose it 
 must appear, by fair and reasonable inference from the words 
 in the charter-party, that the money paid is an advance in 
 part payment of the freight.^ 
 
 Hence, where the covenant as to payment of freight was 
 in the following terms : — " Such freight to be paid as follows, 
 viz., 1201. British sterling for freight of the outward cargo to 
 Maranham, and as much cash as may be found necessary for 
 the ship's disbursements at Maranham, to be advanced by the 
 charterer or his agents to the master when required, free 
 from interest or commission, &c., and the residue of such 
 freight to be paid on the delivery of the cargo in Liverpool," 
 &c. : Lord EUenborough and the Court of King's Bench heldj 
 that under these terms the money must have been advanced 
 specifically on account of freight, and therefore could not, 
 upon loss of the ship before freight earned, be recovered back 
 as money had and received.* So, where the stipulation was 
 in these words : — " Cash for ship's disbursements to be 
 advanced to the extent of 300/., free of interest, hut subject 
 to insurance, and 2\ per cent, commission," Lord Campbell, 
 C. J., said, that this mention of insurance stamped the 
 transaction indelibly as a payment on account of freight, and 
 not a mere loan ; and the rest of the Court of Queen's Bench 
 concurred with him in holding aceordiagly.' 
 
 1 Flint V. Hemyng, 1 B. & Ad. Sel. 37. Lord EUenborough and 
 
 45 ; Devaux v. J' Anson, 5 Bing. Dampier, J., lay some stress upon 
 
 N. C. 519. the words "free from interest and 
 
 ' See cases supra, and Wilson v. commission," as showing that the 
 
 Martin, 1 1 Exch. 684 ; 25 L. J. (Ex.) money advanced was not intended to 
 
 217 ; and see Ralli v. Janson, 24 have been a loan. 
 
 L. J. (Q. B.) 97 ; 4 E. & B. 500. = Hicks v. Shield, 7 E. & B. 633 ; 
 
 3 Abbott, C. J., in Manfield v. 25 L. J. (Q. B.) 205, 208. Accord. 
 
 Maitland, 4 B. & Aid. 585 ; WiUiams Droege v. Suart(The Kamak), L. E., 
 
 V. North China Ins. Co., 36 L. T., 2 P. C. 505, 514 ; Currie v. Bombay 
 
 N. S. 884 ; Maolachlan on Shipping, Native Ins. Co., L. R., 3 P. C. 72, 
 
 619. 83. SeeWatsonii. ShanMand,L.K., 
 
 * De Silvale v. Kendall, 4 M. & 2 Ho. of Lds. Scot. 304. 
 
,64 INSTJKABLE INTEREST [pART I. 
 
 In both these cases, as Lord Tenterden remarks of the 
 former of them, " the instrument was studiously framed so 
 as to make the freighter lose the money advanced by him, 
 unless the owner reaped the benefit by the ship's coming 
 home safe." ' "Where, however, the charter-party does not, 
 on the face of it, clearly and distinctly import that the sum 
 advanced is to be a payment on account of freight, it is to 
 be regarded as a mere loan, which the freighter has a right 
 to recover, whatever be the issue of the adventure, and in 
 which he has, therefore, no insurable interest. Hence, where 
 the charter-party, after stipulating the amount of freight and 
 mode of its payment, merely contained the words, "The 
 captain to be supplied with cash for the ship's use," the 
 Court held, that the charterer had no insurable interest in 
 bills of exchange drawn on him by the master in respect of 
 .(5ash so supplied, it not appearing by the charter-party to be 
 advanced as a part payment of freight.^ 
 , But where the freighters of a general ship paid her dis- 
 bursements abroad, and by request of the owners took the 
 captain's bill " drawn against freight " on the consignees of 
 the cargo in this country, in discharge of such disburse- 
 ments, it was held that, as the freighters had Agreed to 
 advance on "credit of the freight," which was distinctly 
 pledged by the captain's bill, they had an insurable interest 
 in freight, and might recover on a policy desdribing their 
 interest as "an advance on accoimt of freight."' By a 
 charter-party the' freighters were to pay for the use of the 
 ship "for the voyage 10,000 doUars, in manner following: 
 viz., in China, all the sums that might be necessary for the 
 payment of port charges and other incidental expenses (the 
 latter not to exceed 2000 dollars), and the balance at thirty 
 days after the ship's return to the port at Buenos Ayres : " 
 
 . ' PerAtbott, C. J., m4B. &Ald. 5. C, 25 L. J. (Ex.) 217. This, by 
 
 585. "Willes, J., is designated an equitable 
 
 ' Manfield v. Maitland, 4 B. & assignment of freight ; Seagrave v. 
 
 Aid. 682 ; see also Saunders v. Drew, TJnion Marine Ins. Co., L. E., 1 C. P. 
 
 3 B. & Ad. 445. . 305. See Ellis v. Lafone, 8 Exch. 
 
 ' Wasonv. Martin, 11 Exeh. 684 ; 546 ; 22 L. J. (Exoh.) 124. 
 
CHAP. in. J OF SHIPOWNER AND CHARTERER. 65 
 
 and Lord Tenterden admitted that tke freighters had an 
 insurable interest in these payments at Canton, provided it 
 were covered by a policy " on money paid for shipment of 
 goods to be transported to Buenos Ayres," and not by a 
 general poHoy on freight.^ 
 
 " Money advanced to the assured as owner of the ship, on 
 account of freight of the cargo loaded on board her, and 
 subject to the risk of the voyage," is really and substantially 
 freight, and by the shipowner, who has to repay such advance, 
 may be insured by a policy on " money advanced on account 
 of freight." 2 
 
 According to the principles already discussed, in treating When freight 
 of the Subjects of Marine Insurance, an insurable interest insurahle 
 in freight depends on the co-existence of two rights in the '" ^^^^ ' 
 assured at the time of the loss, namely, — a title, legal or equit- 
 able, to the ship, and an inchoate right to the freight: — a 
 title to the ship, for the right to freight is one of the rights 
 of ownership;' — and such an inchoate right to the freight 
 as nothing but the intervention of the perils insured against 
 may intercept.* We have seen, however, that the shipowner 
 conveys an insurable interest by assigning over for value 
 ■freight that is being earned,^ or by accepting prepayment of 
 freight from the shipper, who may thereupon insure it as 
 freight paid in advance, or in the name of goods by reason of 
 the enhanced value thereby of them.^ 
 
 1 Winter v. Haldimand, 2 B. & B. & P. 95. Hence a right to recover 
 
 Ad. 64 9. The dicta of Lord Tenter- for a loss incurred duringthecurrency 
 
 den, above referred to, are in pp. 653, of the policy and after an inchoate 
 
 658 of the report. right has accrued notwithstanding 
 
 ^ HaU V. Janson, 4 E. & B. 500 ; that the policy is a time poUcy, and 
 
 24 L. J. (Q. B.) 97. must have expired long before the 
 
 ' Camden ij. Anderson, 5 T. R. freight could have been earned by the 
 
 709; andseeS. C, 6T. E. 723; IB. completion of the voyage ; Michaels. 
 
 & P. 272 ; see also Marsh v. Eobin- Gillespy, 2 C. B., N. S. 627 ; 26 L. J. 
 
 son, 4 Esp. 98 ; Davidson v. Case, 5 (C. P.) 306. 
 
 M. &Sel. 79, 82 ; MiUer». Woodfall, * That it is assignable, Willis v. 
 
 S E. & B. 493 ; Stewart v. Greenock Palmer, 29 L. J. (C. P.) 194 ; 7 C. B., 
 
 Marine Ins. Co., 2 H. of Lds. Cas. N. S. 340 ; Lindsay v. Gibbs, 22 
 
 159; Hickie». Eodocanaohi, 28L. J. Beav. 522; 2 Jur., N. S. 1039, and 
 
 (Ex.) 273 ; 4 H. & N. 455. see p. 64, note 3, ante. 
 
 * Luoena v. Craufurd, in error, 3 " Ante, pp. 62, 63. 
 
 M. *' 
 
66 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Wiere no 
 charter- 
 party. 
 
 Under char- 
 ter-party. 
 
 In the absence of a charter-party, as in case of a general 
 ship or of a shipowner proposing to load with goods on his 
 own account, there is no inchoate right to freight, and, there- 
 fore, no insurable interest therein, unless the goods, if not 
 actually loaded on board, are so situate with respect to the 
 ship and the ship with respect to them as that nothing but 
 the perils insured against can prevent freight being earned.^ 
 
 In the following case, but for the want of any legal obliga- 
 tion to provide and put a cargo on board, it must have been 
 held that only the perils insured against had intercepted the 
 earning of freight. A shipowner sent his vessel on an 
 adventure of his own to the Cape de Verd Islands, intending 
 to load her with orcheUa weed, but after 150 bags of it had 
 been put on board, the ship was lost in a storm. In an 
 action on a policy on freight at and from the ship's loading 
 port or ports in any or all the Cape de Yerd Islands to 
 Liverpool, it was held that he could not recover except in 
 respect of the 150 bags, because although there was a reason- 
 able expectation that the governor of the islands woidd have 
 suppKed the rest of the cargo, and it was known that people 
 had been engaged to pick a sufficient quantity off the rocks 
 and prepare it, yet there had been no contract whatever 
 binding the governor to supply it.^ 
 
 On the other hand, where the freight intended to be in- 
 sured is stipulated by charter-party, the inchoate right to 
 such freight, and consequently an insurable interest therein, 
 vests directly there is an inception of performance of the 
 contract by the shipowner.' 
 
 A ship lying at Bombay was chartered for a voyage from 
 
 ' Per Eyre, C. J., in Curling v. 
 Long, 1 B. & P. 636 ; Montgomery 
 v. Bgginton, 3T.R. 362; Truscottv. 
 Christie, 2 B. & B. 320, 326 ; Parke 
 ■V. Hebson, ibid. 329 ; Forbes v. As- 
 pinall, 13 East, 323, 331 ; Elint v. 
 Elemyng, 1 B. & Ad. 45 ; Devauxi'. 
 J' Anson, 5 Bing. N. C. 318. 
 
 ^ Patrick i: Eames, 3 Camp. 441. 
 
 3 Rankin v. Potter, L. K., 6 H. of 
 Lds. 83 ; Foley v. United Fire and 
 Mar. Ins. Co. of Sydney, L. E., 5 
 C. P. (Ex. Ch.) 135; Barber v. 
 Fleming, L. R., 5 Q. B. 59 ; Thomp- 
 son i). Taylor, 6 T. R. 478 ; Hom- 
 castle V. Suart, 7 East, 400 ; Atty v. 
 Lindo, 1 B. & P. K. R. 236 ; David- 
 son V. 'WiUasey, 1 M. & Sel. 312; 
 Maclaohlan on Shipping, c. x. 
 
CHAP, III.J OF SHIPOWNER AND CHARTERER. 67 
 
 Howland's Island to a port in Great Britain ; and a policy 
 •was effected on freight by her, "chartered or otherwise," 
 from Bomtay to Howland's Island and thence to the United 
 Kingdom. She sailed in ballast from Bombay for Howland's 
 Island, and, before reaching it, was lost by the perils insured 
 against. This was a loss upon the voyage described in the 
 policy, and after an inception of performance under the con- 
 tract in the charter-party; it was therefore held that the 
 shipowner was entitled to recover.^ 
 
 If in the above case she had sailed on a seeking voyage 
 there seems good reason in law for thinking the judgment of 
 the Court must have been different. Instead of this, if she 
 had sailed direct for Howland's Island, as she did, but with 
 cargo, it seems the Court must notwithstanding have held as 
 they did.2 
 
 A ship while on a voyage from the Clyde to New Zealand 
 was, further chartered to bring home a cargo from Calcutta 
 to the United Kingdom, and a policy on this homeward 
 freight was effected for the risk from the Clyde to New 
 Zealand and for thirty days after arrival there ; she became 
 a constructive total loss at New Zealand before the expiry of 
 this policy, and there was a recovery of the homeward freight 
 under it as for a total loss.' 
 
 A vessel when about to sail with cargo from Calcutta to 
 Mauritius was further chartered for a voyage from Mauritius 
 to Akyab and thence to the United Kingdom, the charter- 
 party stipulating that " she should with all convenient speed 
 sail on her present voyage to Mauritius, and having dis- 
 charged her cargo there, to sail to Akyab," &c. She arrived 
 at Mauritius in good safety, and when about two-fifths of her 
 cargo were discharged, she was driven ashore with the residue 
 on board, and reduced to a total wreck. Upon a policy on 
 freight " at and from Mauritius to rice ports," &c., it was 
 held that there had been an inception of performance under 
 
 1 Barber v. Fleming, L. E., 5 and Marine Ins. Co. of Sydney. 
 
 Q. B. 59. ' Eankiu v. Potter, L. E., 6 H. of 
 
 2 See infra, Foley v. United Fire Lds. 83. 
 
 f2 
 
68 INSURABLE INTEREST [PART I; 
 
 the contract in the second charter-party by sailing from 
 Calcutta, and consequently an inchoate right to the freight 
 under that charter-party, and that notwithstanding the 
 whole of her cargo was not discharged at the time of the 
 loss, the policy, being " at and from Mauritius," had already 
 attached.' To the same effect is Warre v. Miller, in which 
 it was held under a policy " at and from Grenada," that the 
 ship was already necessarily preparing for the homeward 
 voyage by delivering her outward cargo at diEEerent places 
 in the island, and consequently that the policy on homeward 
 freight had attached when she perished at the entrance to 
 Grenville Bay in that island, where she was to take on 
 board homeward cargo.^ 
 Shipowner's A shipowner who has entered into recognizance in the 
 
 1 nflurfli nip 
 
 interest as to Admiralty Court to pay the salvors of ship and cargo, then at 
 other things, g^ distant port, has an insurable interest in the average con- 
 tribution due to him from the owners of cargo.' He has also 
 an insurable interest in protecting himself against charges im- 
 posed by the Passenger Acts (now the 18 & 19 Vict. c. 119, and 
 26 & 27 Vict. c. 5 1 ) . Under a policy "on passage money against 
 all charges and liabilities to which owner or chai-terer might be 
 subject, under sects. 46 to 61 inclusive, of the Passenger Act, 
 1852" (15 & 16 Vict. c. 44), expenses incurred in forwarding 
 passengers from a British colony, where the ship was wrecked, 
 to their place of destination, were held to be recoverable :* 
 but under a similar policy, the cost of maintaining passengers 
 during a necessary delay of six weeks for repairs at a port of 
 distress was held not to be recoverable, because the section of 
 the Act which imposed that liability was not specified in the 
 policy.' He has, besides, an insurable interest that enables 
 him to effect a valid policy against the casualties enumerated 
 in Part IX of the Merchant Shipping Act, 1854, ss. 603-506, 
 
 ' Foley V. United Fire and Marino ^ Briggs v. The Merchant Traders' 
 
 Ins. Co. of Sydney, L. E., 5 C. P. Assoc, 13 Q. B. 167. 
 15.5 (Ex. Ch.). 1 Gibson v. Bradford, 4 E. & B. 
 
 * Warre v. Miller, 4 B. & C. 538. 686. 
 
 ' WiUis v. Cooke, 5 E. & B. 641. 
 
CHAP, III.] OF SHIPPER AND VENUOR. 
 
 as amended by the Act of 1862 (25 & 26 Viet. c. 63, 
 ss. 54, 55). But instead of concisely referring to part of one, 
 or to any or all, of these sections in the policy, some prefer to 
 substitute what is called a running-down clause, often drawn 
 up on the instant, and not unfrequently thereby miss that 
 complete protection at which they had auned.^ 
 
 An insurable interest in goods vests in him who has Shipper, 
 the right of property. It is in the shipper if he undertake to veudorf '^' 
 deliver at a distant port, or, without any undertaking, has ^^°^^°' 
 the bill of lading drawn deliverable to himself, and indorses 
 it to his own agent :^ or attaches it to a negotiable bill of 
 exchange, as a security in the hands of the holder of the 
 latter.' But if he buys and ships, although at his own cost, As to goods, 
 goods " on account and risk of" his foreign correspondent, 
 and so invoices them, the property already vested is not 
 altered by his merely sending an unindorsed bill of lading to 
 his correspondent, accompanied by a bill of exchange for his 
 acceptance.* 
 
 There may be an insurable interest vested in a purchaser of 
 goods, although it may not be clear that there has been a 
 transfer of the property to him, in case the shipment on board 
 be at his risk and he be liable to pay for the goods whether 
 they arrive or not. The appropriation of the goods, shipped 
 indiscriminately, between different purchasers, may turn out 
 to have nothing to do with the vesting of the property, 
 although deferred till after arrival. 
 
 Drake & Co. sold to the plaintiff Stock 200 tons of German 
 
 1 Taylor v. Dewar, 5 B. & S. 58 ; See Ogg v. Shuter, 1 C. P. Div. 46; 
 
 33 L. J. (ft. B.) 141. Castle «>. Playford, L. E., 7 Ex. 98. 
 
 = Mitchel V. Ede, 11 A. & E. 888 ; ' Turner v. Trustees of the Liver- 
 Brandt V. Bowlby, 2 B. & Ad. 932. pool Docks, 6 Exch. 543 (in error). 
 Whether a, reservation of the Jus ' Coxe v. Harden, 4 East, 211, 
 disponendi by the bill of lading be 217, 218; Gurney «. Behrend, 3E. & 
 necessarUy incompatible with the B. 622; 23 L.J. (Q. B.) 265; Sea- 
 passing of the property, it is not so graveji.UmonMarineIn8.Co.,L.K., 
 as to the vesting of an insurable inte- 1 C. P. 305 ; and see Maclachlan on 
 rest; Stock f.Inglis, 10 App.Cas. 270. Shipping, 400, 401. 
 
7.0. INSURABLE INTEREST [PART I. 
 
 beet sugar, f. o. b. at Hamburg, to average 88 degrees of 
 saoobarine contents, between tbe limits of 85 and 92 ; payment 
 to be by casb in London in exchange for bills of lading. 
 Drake & Co. had already sold to B. & Co. 200 tons of the 
 same quality of sugar on the same terms, and the plaintiil 
 ultimately became the purchaser from B. & Co. of their 
 parcel also, with no other change of terms except a slight 
 increase of price. The plaintiff engaged room for both 
 parcels of sugar on board a steamer trading from Hamburg 
 to Bristol, and Drake & Co. by their agent at Hamburg 
 shipped sugar for both contracts in bags, each of them marked 
 with the degree of saccharine contents in the sugar contained 
 in that bag, but without allocating the bags to the respective 
 contracts, intending that to be done on arrival in England. 
 The plaintiff effected a policy on the sugars, which were after- 
 wards totally lost on their way to England. Drake & Co. in 
 England, after hearing of the loss, allocated the several bags 
 to the respective contracts, and received payment for both 
 parcels. In the Courts below the question chiefly in dispute 
 in the action on the policy by the plaintiff had been whether, 
 as the allocation of the bags to the respective contracts had 
 not been made at the time of the loss, there could be in the 
 plaintiff any insurable interest in the sugars ; and in the Court 
 of Appeal it was held, that in accordance with the custom of 
 the trade the contracts under the circumstances were in effect 
 fully performed, and that thereby, contrary to the judgment 
 of the Judge at Nisi Prius, an insurable interest was vested 
 in the plaintiff. The Lords, declining to give any opinion 
 on the view on which the Court of Appeal had based their 
 decision, held, that as by a term of each contract the 
 sugar was to be shipped free on board at Hamburg by the 
 vendors, the effect was that as soon as it was shipped it was at 
 the risk of the plaintiff, and that whether it arrived or not he 
 was bound by his contract to pay for it on presentation of 
 the bills of lading, and, therefore, that whether the whole 
 legal property in the sugar had vested in him or not, he had 
 an insurable interest in the sugar on which he had sustained 
 
CHAP. TIl.J OF SHIPPER AND VENDOR. 71 
 
 a loss to the full amount of the price. As for the allocation 
 of the bags to the respective contracts, it was regarded hy 
 their Lordships rather as heing merely an arrangement to he 
 effected between the two purchasers; and Lord Blackburn 
 saw no reason why an interest in an undivided parcel of goods 
 might not be described as an interest in goods just as much 
 as if it were an interest in every portion of the goods.^ 
 
 Whether the vendee after the stoppage of the goods in in case of 
 
 , . . T 1 • I J • ii 1 J. • stoppage in 
 
 transitu retains an insurable interest m them, or what msur- transitu. 
 
 able interest is acquired by the vendor by virtue of the 
 stoppage, are questions dependent on another question still 
 undecided, whether such stoppage be a rescission of the con- 
 tract.* If, as the better opinion seems to be, stoppage in 
 transitu is merely the revesting of a lien, the vendor in that 
 case has an insurable interest to the extent of his own lien, 
 and of his liability to others for the residue of Yalue. 
 
 The insurable interest, depending in so many instances on Insurable 
 
 • 7 .,1,1 , J interest varies 
 
 the terms of the contract, will vary with these terms accord- ^th the 
 ingly. These may be such as to postpone any vesting of the ^a^ai^^,*'^® 
 title to the ship or goods sold, or may otherwise vary 
 indefinitely the rights and liabilities of the parties, leaving 
 both pecuniarily interested in the safety of the property ; the 
 insurable interest from being nothing in the case of one of 
 the parties, as on the first hypothesis, will come to vary 
 indefinitely, and to be, as upon the latter hypothesis, in the 
 hands of both. 
 
 Where the owner of a ship had sold her to a purchaser, 
 under an agreement that he would pay the purchaser 500^. 
 if a loss happened within three months, the Court held, that 
 to this extent he still had an interest in the safety of the 
 ship, and therefore might recover against the members of a 
 
 1 Inglis V. stock, 10 App. Cas. per Lord Blackburn:— "It is pretty 
 
 263 • 12 Q. B. D. 564 ; 53 L. J. well settled now, that it does not 
 
 IQ B ) 356. rescind the contract ; Kemp «.Falok, 
 
 a See Maclachlan on Shipping, 590 ; 7 App.- Oa«. 681. 
 
72 . INSURABLE INTEREST [PART I. 
 
 mutual insurance society to wliich he belonged, for such 
 amount of contribution as, by the rule of the society, he was 
 entitled to.^ 
 
 If, by the terms of the sale, goods ordered by a foreign 
 purchaser are not to vest in him till arrival, he has no insur- 
 able interest in such goods before that time ; if, however, it 
 appears, from all the circumstances of the case, and the 
 nature of the contract, that the goods are to be at his risk 
 from the time of sale or of shipment, he may at once insure 
 them on his OAvn account.^ 
 
 In the case of Anderson v. Morrice' the sole difficulty 
 was to ascertain from the written contract whether by inten- 
 tion of the parties the property had passed to the buyer 
 at the time of the loss. The vessel. The Sunbeam, was 
 loading the agreed cargo of rice in the Irrawaddy river, off 
 Eangoon, and had received on board by far the larger 
 portion of the cargo, when she suddenly went down at her 
 anchors, taking so much of the cargo as was then on board 
 down with her. The bought note, so far as it is mentioned, 
 was in these terms : " Bought the cargo of rice, per Sunbeam, 
 at 9.S. l^d. per owt. cost and freight. Payment by sellers' 
 draft on purchasers at six months' sight, with documents 
 attached." In the Common Pleas, it was held that by appro- 
 priating the rice to the contract by putting it on board, an 
 insurable interest therein had passed to the buyer, the plain- 
 tiff. In the Exchequer Chamber, it was held that the 
 contract, being for the cargo of rice per The Snnbeam, and the 
 time for making out the shipping documents (which were to 
 be attached to the sellers* draft) not having arrived at the 
 time of the loss, no interest had passed to the buyer, or 
 would pass until the complete cargo was loaded on board. 
 
 1 Reed v. Cole, 3 Burr. 1512. C. P. 305 ; Castles. Playford, L. E., 
 
 2 Fragano v. Long, 4 B. & Cr. 7 Ex. 98 ; Inglis v. Stock, 10 App. 
 219 ; Bee also S. P. in Stookdale v. Qaa. 263. 
 
 Dimlop, 6 M. & W. 224 ; Joyce ». . ' Anderson v. Morrice, L. E., 10 
 §wann, 17 0.B.,N. S. 84; Seagravo C. P. 58; on appeal, ibid. 609; 1 
 V. Union Marine Ins. Co., L. R., 1 App. Cas. 713. 
 
CHAP. 111.] OF SHIPPER AND YEXDOR. 73 
 
 In the House of Lords, the law lords were equally divided 
 on the question, and consequently the judgment of the 
 Exchequer Chamher stands. 
 
 An agreement to purchase, followed hy a specific appro- 
 priation hy the vendor of a particular cargo, and acceptance 
 thereof by the vendee, as the thing bargained for, confers 
 upon the vendee an insurable interest in the cargo, so as to 
 entitle him to recover on a claim averring interest to be 
 in himself : ^ and it is no answer to an action in his name .' . 
 on the policy, that he had indorsed the policy over after 
 the loss." 
 
 An insurable interest in profits is dependent on ownership As to profits, 
 of the goods, and the right to recover on the policy is depen- 
 dent on proof that profits would have been made if the goods 
 had arrived. In the earliest cases, indeed, such as Grrant v. 
 Parkinspn, and Barclay v. Cousins, the Court was satisfied 
 with evidence of a general probability of the profitable issue 
 of the adventure founded on the course and character of the 
 trade in which it was made;' but in subsequent cases the 
 Courts adopted a stricter rule. 
 
 In the case of Hodgson v. Glover, where the policy was on 
 "profits" upon an adventure from Liverpool to the African 
 coast, the outward cargo to be bartered for slaves, and the 
 slaves to be carried on in the ship to the West Indies for 
 sale, the Court went further and nonsuited the plaintiff, 
 because he did not show that, if no loss had intervened and 
 the slaves had all got to a market, any profit would have 
 been produced.* 
 
 ' Spartes v. Marshall, 2 Bing. Lawrence, J., 550. 
 N. C. 761. ■■ Hodgson v. Grlorer, 6 East, 316. 
 
 ^ Ibid. In this case Lawrence, J., differing 
 
 ^ Grant v. Parkinson, 3 Dongl. 16 from what he had said in Barclay v. 
 
 (see also Lucena v. Craufurd, 3 B. & Consins, where the adventure was 
 
 ]?. 85, where a report of the case is exactly similar, agreed with the rest 
 
 o-iven from Mr. Dunning's brief and of the Court, and said, "The case is 
 
 a MS. note: 1 Marshall, Ins. 95; 2 defective in not showing that if there 
 
 Park, Ins. 561) ; Barclay*. Cousins, had been no shipwreck there would 
 
 2 East, 544 ; see the obsertations of have been some profit." 
 
74 INSURABLE INTEKEST [PART 1. 
 
 Accordingly, in the next case of a similar kind whicli came 
 before the Court, and in which the profit insured was upon 
 sale of a homeward cargo of flax shipped at Eiga for Hull, 
 care was taken to allege in the declaration, and to prove at 
 the trial, that the flax, had it arrived sound, would have 
 realized a profit to the amount insured.^ This case accord- 
 ingly gives the rule which must he observed in drafting the 
 statement of claim and preparing the evidence. 
 
 In the United In America the rule is different, and several cases there 
 decided establish the doctrine, which has been adopted by 
 the Supreme Court of the United States, that it is a conclu- 
 sive presumption arising on proof of ownership of the goods 
 shipped that they would have realized a profit in the foreign 
 market.^ So that where three-eighths of the goods were lost, 
 the Court held it to be a loss of that proportion of the profits, 
 without inquiring whether there would have been any profits 
 had the goods arrived.* 
 
 In respect of the other requisite to this insurable interest 
 in profits, the law of this country and of the United States 
 are at one. " The doctrine," says Mr. Justice (afterwards 
 Chancellor) Kent, " that runs through all the cases, is, that 
 the assured must have an interest in the subject-matter from 
 which the profits are to proceed, in order to prevent the 
 policy from being considered a wager."* "I admit," says 
 Parke, B., " that profits may be insured, but this is on the 
 ground that they form an additional part of the value of the 
 goods in which the plaintiff has already an interest."^ 
 
 "What risk. Whether the goods on which the profits are to arise have 
 
 been exposed to risk wiU. partly depend on the terms in 
 which that risk is described in the policy. Whenever the 
 policy is in the common form, i.e., "on profits on goods," 
 
 ' Eyre v. Glover, 16 East, 218. » Loomis v. Shaw, 2 Johns. Cas. 
 
 ' Patapsco Ins. Co. v. Coulter, 36. 
 3 Peter's Sup. Court Eep. 222; 1 * Per Kent, J., in Ahhottii. Sehor, 
 
 PhilHps, Ins. no. 318; 1 Parsons, 3 Johnson's Cas. (N.T.) 39. 
 Ins. 195. 6 Per Parke, B., Stookdale v. Dun- 
 
 lop, 6 M. & W. 232. 
 
CHAP. III.] OF SHIPPER AND VENDOR. 7 
 
 " beginning tlie adventure on the said goods from tlie loading 
 thereof on board," the party insuring must show that the 
 goods out of which the profits are to arise were actually 
 shipped on board.^ The policy may be so framed as to 
 cover a loss on profits, &c., on goods not actually loaded on 
 board, but only ready and contracted to be so;^ but the 
 intention to cover such risk must be clearly deducible from 
 the terms of the policy, without any resort for that purpose 
 to extriusic evidence.^ 
 
 Of course if the goods are not only not on board, but not 
 even ready to be put on board at the time of loss, the assured 
 cannot recover. A merchant effected an insurance on com- Enox v. 
 mission to arise upon the sale in Dublin of produce to be °° " 
 shipped at Jamaica, for the homeward voyage ; the ship was 
 captured on her homeward voyage, but being released she 
 proceeded to Jamaica, and found no cargo, as it had been 
 forwarded by another ship, and she returned home in ballast. 
 In an action to recover the loss of commission, it was held, 
 that the plaintiff had no insurable interest in such commis- 
 sion ;* and Lord EUenborough said, " It strikes me that this 
 was a mere expectation. The expectation is frustrated by 
 the capture, and the interest was never on board ; this is an 
 insurance of the expectation of an expectation." The defen- 
 dant accordingly had a verdict ; and on motion for a new 
 trial, the Court were clearly of opinion that the plaintiff had 
 not an insurable interest when the loss happened. Lord 
 EUenborough on that occasion said, "This ease carries us 
 into the land of dreams ; and, if supported, would introduce 
 the practice of insuring a 20,000^. prize in the lottery with- 
 out purchasing a ticket." ^ 
 
 A Liverpool merchant having verbally contracted with a stookdale v. 
 
 Dunlop. 
 
 1 MoSwiney v. Eoyal Exch. Abb. 312 ; S.C, 25 L. J. (Q. B.) 290. 
 
 Co., 14 Q. B. 646; Halhead v. * Knox ». Wood, 2 Park, Ins. 564, 
 
 Toung, 6 E. & B. 312; S. C, 25 Sth ed. ; 1 Camp. 543. There is a 
 
 X T /Q 'g\ 290. sliglit Tarianoe between the two re- 
 
 " 14 Q. B. 659, 660 ; judgment of ports, which however does not affect 
 
 the Exchequer Chamber. the principle here in question. 
 
 3 Halhead v. Toung, 6 E. & B. M Camp. 544. 
 
76 INSURABLE INTEREST [pART I, 
 
 shipowner for tlie purchase of a quantity of palm oil " to 
 arrive" by one of his ships, then loading on the coast of 
 Africa, effected an insurance on profits to arise from the sale 
 of this oil on its arrival in Liverpool;^ in the result, the oil 
 never did arrive in the ship, which was entirely disabled on 
 the coast of Africa, and the merchant brought his action on 
 the policy for a total loss. Proof was given at the trial that 
 the term " oil to arrive per ship " was a mercantile term, and 
 that under such a contract as that made in the present case^ 
 if the oU did not arrive in the ship, the plaintiff had no right 
 to it. TJnder these circumstances the Court held, that as 
 there was no written contract nor any contract at all which 
 the assured could have enforced at laAv for the sale to him of 
 the palm oil, he had no interest whatever in such palm oil at 
 the time of the insurance or the loss, and consequently had 
 no insurable interest in the profits expected to arise from its 
 sale or disposal.^ "At the time of the insurance and the 
 loss," says Parke, B., "there was merely an expectation of 
 possession on the part of the plaintiffs, founded on the mere 
 promise of the vendors, but there was an entire absence of 
 interest in the subject-matter of the insurance."' 
 
 A party buying goods of another to arrive and afterwards 
 contracting to sell them to a third party at a profit, has an 
 insurable interest in such profit ; unless, however, the goods 
 out of which such profit is to arise were actually on board at 
 the time of the loss, he cannot protect such interest under a 
 policy in the common form. 
 MoSwiney v. The plaiutifE in London contracted to buy 6000 bags of 
 Aea^^Co.^'^ ^^ice, then supposed to have been shipped at Madras, "to 
 arrive from Madras by the ship Edirard Bilton before the end 
 
 ' The policy was in the common tiffs were interested in the profits to 
 
 form, " upon any kind of goods and arise and he made from the sale and 
 
 merchandise, &c., and upon the body, disposal of the said palm oil." 
 
 tacHe, &o., of the ship, and valued ^ Stockdale v. Dunlop, 6 M. & W. 
 
 at 500?. onprqfils." 233. See the same principle reoog- 
 
 ^ Stockdale v. Dunlop, 6 M. & W. nized hy Bayley, J., in the case of 
 
 224. The issue upon the pleadings Fragano i). Long, 4 B. & Cr. 219, 
 
 was, in terms, whether "the plain- 222: it was an insurance "on goods." 
 
CHAP. III.J OF SHIPPER AND VENDOR. 
 
 of May," and afterwards effected a sale of the same rice to a 
 third party at a profit, but on the same terms as to arrival, 
 &o. He then insured the profit under the second contract 
 by a policy in the common form, " on profit of^ rice loaden or 
 to be loaden," "beginning the adventure upon the goods 
 from and immediately after the loading thereof aboard the 
 said ship at Madras." The rice was all ready at Madras to 
 be shipped on board The Edtsard Bilton, and 1200 bags were 
 actually on board, when by perils of the sea the ship was 
 disabled from performing her voyage ; the 1200 bags actually 
 on board, being damaged by sea- water, were unshipped and 
 sold ; the 4800 bags were forwarded by another vessel, but 
 did not arrive tUl after the end of May ; so that the plain- 
 tifi's contracts of purchase and sale became inoperative, and 
 his profits lost. The plaintiff brought his action for a total 
 loss on profit in respect of the 4800 bags, the company 
 having settled for the 1200, and had judgment in the Court 
 below. 
 
 The Court of Exchequer Chamber reversed the judgment 
 of the Court of Queen's Bench, and, in delivering their 
 opinion, per Parke, B., say : — " We have no doubt that the 
 plaintiff might have recovered in the events which have 
 happened for a total loss if he had been insured by a policy 
 properly adapted to the case, and so drawn as to cover the 
 special interest from the time the rice was appropriated by 
 the vendors and ready to be shipped at Madras, and also to 
 assure him agaiast losses of the expected profit, not merely 
 by the loss of all the rice by the perils of the sea, but' by the 
 • loss of any part of it, or the loss of the ship, or delay of the 
 voyage beyond the month of May ; in any of which contin- 
 gencies the special interest in profit would have been entirely 
 defeated. But the question in this case arises on the policy 
 declared upon, which is in most respects in the ordinary- 
 form, attaching the risk to the ship in the port, and to the 
 goods from the loading on board ; and the decision of that 
 question depends on the true construction of the policy 
 alone. According to the true construction of the policy, it 
 
INSURABLE INTEREST [PART I. 
 
 attached to the profit on no goods, nor has there been a loss 
 of profit on any goods by perils insured against, except on 
 the 1200 bags, which has been paid for by the money paid 
 into Court. If, indeed, it attached to profit on those on 
 shore, there has been no loss of that profit by the perils of 
 the sea, but only a retardation of the voyage, for which the 
 defendants are not responsible unless the policy specially 
 provided for such an event." > 
 
 A case favourably distinguished from the foregoing as 
 having successfully avoided similar errors, was an insur- 
 ance on behalf of a shareholder of the Atlantic Telegraph 
 Company. The policy was "lost or not lost, at and from 
 Ireland to Newfoundland, the risk to commence at the 
 lading of the cable on board The Great Eastern, and to con- 
 tinue until the cable be laid down in one continuous length 
 between Ireland and Newfoundland, and until 100 words 
 shall have been transmitted from Ireland to Newfoundland, 
 and vice versA, &c. The said ship, &c., goods, &c., for so 
 much as concerns the assured by agreement and in this 
 policy are and shall be valued at 200/. on the Atlantic cable, 
 value say on twenty shares, valued at 10/. per share." And 
 in the margin, against the usual perils, were these words : — 
 " It is hereby understood and agreed that this policy shall 
 cover every risk and contingency attending the conveyance 
 and successful laying of the cable from and including its 
 loading on board The Great Eastern until 100 words be 
 transmitted from Ireland to Newfoundland and vice versa; 
 and it is distinctly declared and agreed that the transmission 
 of the said 100 words from Ireland to Newfoundland and 
 vice rersd shall be an essential condition of the policy." The 
 loss, in fact, was the parting of the cable, and consequent 
 loss of the cable itself, when about half the whole length 
 had been paid out. The Court below and the Exchequer 
 
 1 MoSwiney ». Eoyal Exch. Ass. 290. See the case of MoSwiney v. 
 
 Co., 14 Q. B. 634, in error, 646, 660, Eoyal Exoh. Ass. Co., commented 
 
 663; S. P., Halhead ». Young, 6 on per 'Willes, J., in Wilsons. Jones, 
 
 E. & B. 312 ; S. C, 25 L. J. (Q. B.) L. E., 2 Exch. 139, 146. 
 
CHAP, III.] OF CONSIGNEES. 79 
 
 Chamber afterwards held that this was a policy on profits 
 upon the adventure of laying the oahle, and that the loss 
 was by one of the contingencies mentioned in the margin.^ 
 
 Turning from the principals to those who so often in the Consignee3, 
 transactions of commerce fill their place and exercise their agents' ^""^ 
 authority, we come to consignees, factors and agents.^ 
 
 " There are different sorts of consignees ; some have a 
 power to sell, manage, and dispose of the property, subject 
 only to the rights of the consignor ; others have a mere naked 
 right to take possession";' others, again, it may be added, 
 though not entrusted to sell, are yet interested in the 
 property, as having a lien or claim upon it for their advances. 
 It is obvious that the rights of these different kinds of con- 
 signees to effect an insurance must vary with the various 
 relations in which they stand to the property and to thfe 
 consignor. 
 
 With regard to consignees who have a mere naked right to 
 take possession, neither being entrusted to sell the property 
 on commission, nor having a lien upon it for advances, Lord 
 Eldon says, " I will not say that they may not insure if they 
 state the interest to be in their principal ;" and this may be, 
 in accordance with the terms of the 28 Greo. 3, c. 56, in their 
 
 ' Wilson V. Jones, L. E., 1 Exch. tively in the judgments delivered 
 
 193 ; 2 Exoh. 139. respectiTely by the memhers of the 
 
 * Whether a consignee for sale Court. The case ■was appealed 
 
 being under advances can insure his into the Exchequer Chamber ; but 
 
 own interest, and also that of his con- on the morning when the appeal 
 
 signer, in the same policy, and recover was to have been heard, it was 
 
 the fuU amount thereon upon an aver- withdrawn by consent on both sides 
 
 ment of interest in himself, has been upon the suggestion, made before the 
 
 keenly discussed upon the authorities assembling of the Court; by Bram- 
 
 by the Court of Common Pleas in well, B., on his own behalf, and on 
 
 the case of Ebsworth v. Alliance behalf of other members of the Court, 
 
 Mar. Ins. Co., L. E., 8 C. P. 596 ; on the ground, as I understood at 
 
 and the propositions to be f oiind the time, of the inconvenient state of 
 
 in these pages in relation to the the facts. 
 
 question were severally cited and ' Per Lord Eldon, Lucena v. 
 
 approved and disapproved of respec- Craufurd, 2 B. & P. N. E. 324. 
 
80 IXSUEABLE INTEREST [PAET I. 
 
 own names on account of the consignors, who will be boimd 
 by such policy if they have already authoiized it, or if they 
 subsequently adopt it.^ Otherwise, such consignees cannot 
 effect a valid policy.^ 
 
 With regard to consignees who have a lien or claim on the 
 property in respect of advances, or commission agents to 
 whom it is entrusted for the purposes of sale, or indorsees of 
 the bill of lading to whom a general balance is due, no doubt 
 they may effect an insurance on their own account and recover 
 to the amount of their lien, claim or balance.' 
 
 Indorsee of The legal value of an indorsed bill of lading is now more 
 
 liable to be misconceived since the Bills of Lading Act (18 
 & 19 Yict. c. Ill) has, by transferring the contract to the 
 transferee of the property, increased the similarity between 
 this instrument and a bill of exchange. But it must be 
 understood that title to the property comprised iu it is not 
 necessarily vested by indorsement in the indorsee. What- 
 ever right he may have under it is a question of evidence 
 touching the intention of the indorser. Consequently, if the 
 shipper, consignor, or owner of the goods, with intention 
 to transfer the property indorses the bill of lading to one 
 and transmits it to him, and then transmits indorsed bills of 
 lading for the same property severally to others, these latter 
 take nothing, because the whole had already vested in the 
 first transferee.* That first transferee alone has an insurable 
 interest in the property of which this instrument is Ihe 
 symbol. 
 
 Of course by means of this instrument, and the expressed 
 
 ' Wolfi ». Homoastle, 1 B. & P. 316, 323 ; 5. P. in Conway v. Gray, 
 
 316. 10 East, 647; and in Godin v. 
 
 ' See the admirable remarks of London Ass. Co., 1 Bnrr. 489, 494 ; 
 
 Lawrence, J., in his celebrated judg- Carruthers v. Sheddon, 6 Taunt. 14 ; 
 
 ment in Lncena v. Craufurd, 2 B. & Flint v. Le Mesurier, 2 Park, 663. 
 
 P. N. K. 307 ; and see a very able * Caldwell v. Ball, 1 T. E.. 205 ; 
 
 note of Judge Duer, note 2 to s. 10 McAudrew v. Bell, 1 Esp. 373; 
 
 of vol. ii. pp. 160-174, Duer on Ins. Hibbert v. Carter, 1 T. R. 746 ; 
 
 3 Wolff V. Homoastle, 1 B. & P. Hubbersty v. Ward, 8 Exch. 330. 
 
CHAP. lil.J OF CONSIGNEES. 81 
 
 intention of the consignor, the interest conveyed under it 
 and the insurahle interest arising upon it may he inde- 
 finitely modified. If, for instance, it appear, by satisfactory 
 evidence, that the assignment of the bill of lading is only 
 intended to bind the net proceeds of the consignment in 
 the hands of the consignor's agents, the consignor, not-r 
 withstanding such indorsement of the bill of lading, has 
 still an insurable interest in the goods, since he continues 
 to be as directly concerned in their safety as before the 
 indorsement.^ 
 
 That a consignee of goods, who is entrusted as a commis- Consignee 
 sion agent to sell them, or who has accepted bills on them, or 
 has a general balance against the consignor, has an insurable 
 interest in the goods or derivable out of them, at all events 
 to the extent of his claims, is a position which has received 
 frequent illustration in our jurisprudence. But we have 
 seen ^ that ho must take care to describe the special risks 
 he means to cover, otherwise his insurable interest may bo 
 altogether unprotected or otherwise seriously restricted and 
 defeated.^ 
 
 Thus, where the general agents of the consignor, on re- Wolfl v. 
 fusal of the consignees to accept the goods, retained the bills 
 of lading in their own hands, and accepted drafts on account 
 of the consignment to the amount of 300/., they were held to 
 have an insurable interest to the amount of their acceptances, 
 because "a debt which arises in consequence of the article 
 insured and which would have given a lien upon it, does give 
 an insurable interest."* 
 
 The house of De la Torre, in Spain, consigned a cargo of Hill v. 
 wool, with the bill of lading indorsed to the firm of Dubois 
 & Son, in London, directing them to hold part of it for 
 Messrs. Hill & Co. of Exeter. Hill & Co. had given no 
 
 ' Hibbert v. Carter, 1 T. E. 743. Q. B. 616 ; Halhead v. Tonng, 6 
 
 2 Ante, p. 77. E. & B. 312 ; 25 L. J. (Q. B.) 290. 
 
 » Enox V. Wood, I Camp. 542; " Per Buller, J., in WoW ». Hom- 
 
 McSwiney v. Eoy. Ex. Aas. Co., 14 castle, 1 B. & P. 316, 323. 
 
 M. G 
 
82 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Seeus, where 
 there is no 
 lien. 
 
 Under a lien, 
 both debtor 
 and creditor 
 may have an 
 insurable 
 interest. 
 
 Pledgee of 
 Consignee. 
 
 Consignee as 
 Trustee. 
 
 orders for the wool, but De la Torre & Co. were indebted to 
 them in the sum of 500/. The Court held that, under these 
 circumstances, Hill & Co. had clearly an insurable interest in 
 that part of the wool which was to be held for their benefit, 
 and might recover under a count averring the interest to be 
 in them.^ 
 
 But, in the United States, where the consignor directed 
 the consignees to hold, not the goods, but the proceeds of the 
 goods, to the use of his creditor, this was held not to give 
 the creditor an insurable interest in the goods,^ on the 
 assumption, it would seem, that he could not under these 
 circumstances have claimed possession of them. 
 
 It has been held in the United States, that where one takes 
 a bill of lading to secure advances of money on a shipment 
 of goods, and makes out the invoice in his own name, the 
 shipper of the goods has still an insurable interest in them to 
 their full value.' Of course the right to recover in case 
 of loss, could not be co-extensive with both policies. It 
 follows upon the principle involved in this decision, that 
 any creditor, to whom goods are consigned as a collateral 
 security, has an insurable interest in them to the- amount of 
 his debt.* 
 
 So where the bill of lading is pledged by the consignees of 
 the goods as a security for advances to them, the pledgee has 
 an insurable interest in the goods ; and may sue in his own 
 name on a policy effected by his instructions " for account of 
 whom it may concern," and deposited with him as an addi- 
 tional security.^ 
 
 There is no doubt that a trustee, having the legal interest 
 in the chattel, may insure to the full value of the goods.^ 
 
 1 Hill V. Secretan, 1 B. & P. 315. 
 " Murray v. Columbian lua. Co., 
 
 11 Johnson's Eep. 302. 
 
 2 Locke V. North American Ins. 
 Co., 13 Mass. Eep. 61 ; 1 Phillips, 
 no. 286. 
 
 * Wells V. Philadelphia Ins. Co., 
 9 Serg. & Eawle, 103 ; 1 Phillips, 
 
 no. 292. 
 
 5 Sutherland n. Pratt, 12 M. & 
 W. 16. 
 
 " Per Lord Eldon, in Lucena v. 
 Craufurd, 2 B. & P. N. R. 324 ; 
 Waters v. Monarch Life Ass. Co., 
 5 E. & B. 870 ; 25 L. J. (Q. B.) 102. 
 
CHAP. III.J OF CONSIGNEES. 83 
 
 Two British ships, The Ross and The Atlantic, having Robertson ». 
 with their cargoes been captured by the Spaniards, the ^™ °^' 
 plaintiffs, owners of The Ross, together with the owners of 
 The Atlantic and the proprietors of their cargoes, gave a 
 joint authority to Cowan to endeavour to obtain restitution. 
 Oowan, by giving up part of the cargoes to the captors, 
 obtained restitution en masse of the ships and the residue of 
 the cargoes as for all concerned. His bills on the plaintiffs 
 for his general expenses were accepted and paid by them ; 
 and his consignment to them of the whole of the property 
 was followed up by their effecting policies, among other 
 subjects, on The Atlantic, of which they were not originally 
 owners. Upon a declaration on this insurance on The 
 Atlantic averring interest in them. Lord EUenborough and 
 the rest of the Court held, that they had a clear insurable 
 interest in this vessel, as the whole of the property had been 
 redeemed en masse and consigned to them under lien for 
 advances of money by them to secure the whole concern.^ 
 
 It must be received then, as a general principle, that con- 
 signees of goods, being under advances to the consignors, or 
 under liabilities, e. g., by acceptances for them, may insure 
 in their own name and on their own account, to the full 
 value of the goods, and apply the proceeds of the policies to 
 their own benefit, to the extent of such claims, holding the 
 residue in trust for the consignors, if it was intended when 
 effecting the policies to cover their interest also.^ 
 
 An exception to this general principle was supposed to have Supposed 
 been established by an English decision that identified the 
 consignor with his own government, so as to make the act of 
 the government an estoppel against him in seeking to recover 
 on the policy. A cargo of American produce had been put on Conway v. 
 board by an American firm under consignment to an English 
 house, when an embargo was laid upon it by the United 
 
 1 Eotertson v. Hamilton, 14 East, Taunt. 14. The same position is es- 
 622. tablished in the United States, De 
 
 ' See, in addition to the cases al- Forrest v. The Fulton Ins. Co., 1 
 ready cited, Cairuthers v. Sheddon, 6 Hall's Eep. 84, cited 1 Phillips, Ins. 
 
 no. 311. 
 
 O 2 
 
84' 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Considered 
 in Aubert v. 
 Gray. 
 
 States government. Meanwhile a policy on the goods had 
 been effected by the English house for the consignor 
 with English underwriters ; and after abandonment, in 
 consequence of the embargo, an action to recover for the 
 consignor was brought by the English house on the policies ; 
 but the Court held that the consignor must be identified with 
 his government, and could not recover against the English 
 underwriters.' 
 
 This decision has since been examined in the Exchequer 
 Chamber in a case of detention by the Spanish government, 
 at the time in a state of amity with the government of the 
 insurer, and in so far as the case of Conway v. Gray purports 
 by a rule of law to identify generally the assured with his 
 own government so as to estop him by their acts, it is over- 
 ruled. The principle, if there be any such, is not applicable 
 unless it be during a war between the governments of the 
 assured and insurer.^ 
 
 Mortgagor 
 and mort- 
 gagee. 
 
 We have seen that a creditor with a Hen on property for 
 his claim, has an insurable interest to the same extent. It 
 follows that a mortgagee of ship or goods has a distinct 
 insurable interest in the mortgaged property, and may re- 
 cover on a policy effected for his benefit, averring the interest 
 to be in himself, to the full amount of the mortgage debt. 
 At the same time, the equitable title that still remains in 
 the mortgagor is in him an insurable interest which he may 
 protect by a separate policy. A factor resident in this 
 country, to whom goods and freight have been mortgaged 
 by his foreign principal for advances, may, upon consignment 
 to himself of the goods with the bill of lading indorsed, 
 insure the legal interest in the property on his own account, 
 and the equitable interest for acooimt of his principal.' 
 
 > Conway v. Gray, Conway v. in error, id. 169; 32 L. J. (Q. B.) 
 
 Forbes, Maury v. Shedden, 10 East, 50. 
 
 636. ' Per Ashurst, J., Smith v. Las- 
 
 » Aubert v. Gray, 3 B. & S. 163 ; celles, 2 T. E. 187, 188. 
 
CHAP. III.] OF MORTGAGEE. 85 
 
 Althougli the ownersliip of the mortgagee is distinguished How much 
 on the register from the absolute ownership,^ the mort- 
 gagee of a ship may nevertheless protect his interest by a 
 general policy on ship in the common form, and this to the 
 full value of the vessel ; but only to the extent of his mort- 
 gage debt can he recover, unless it appear that in effecting 
 the policy he intended to cover, not his own interest only, 
 but that of the mortgagor also.^ 
 
 The amount recoverable under an open policy effected by 
 any person possessed of a limited interest, depends upon the 
 intention, in point of fact, with which the policy was effected ; 
 if it was to cover the whole interest, both legal and equitable, 
 the whole amount of the insurance is recoverable by the mort- 
 gagee, under trust as to the surplus beyond his own claim to 
 hold for the mortgagor ; if only to cover his own interest as 
 mortgagee, and the insurance is for a greater sum than the 
 mortgage debt, he cannot recover more than the amount of 
 his lien.' If under such circumstances as are last supposed 
 he have recovered the whole sum in an action on the policy 
 and retains the surplus, that surplus may be recovered back 
 from him by the underwriters.* 
 
 The mortgagor has clearly an insurable interest in the Themort- 
 mortgaged property, and that to its fuU value ; for notwith- ^*^°'"" 
 standing its loss he is still liable for the mortgage debt.' 
 And he is not deprived of this interest by the mere circum- 
 stance, that in point of form the registered deed of mortgage 
 is an absolute conveyance of the property. 
 
 Indeed, at law and in equity^ mere form is not allowed, in Courts of Law 
 
 > See 17 & 18 Vict. c. 104, as. 66- • Irving v. Eichardson, 2 B. & 
 
 75. Ad. 193. 
 
 * Irving V. Eichardson, 2 B. & * See AUston v. Campbell, i 
 
 Ad. 193 ; 1 Moody & Eob. 153. Brown's Pari. Cases, 476; Higginson 
 
 ' So, in Carrutiiers v. Sheddon, 6 v. Dall, 13 Massaclmsetts Eep. 96, 
 
 Taunt. 14, 17, G-ibbs, C. J., told tbe cited 1 PhiUips, Ins. no. 286. 
 
 jury to consider what amount of in- ^ Hutchinson v. Wright, 25 Beav. 
 
 terest the policy was in fact intended 444; 57 L. J. (Ch.) 834; Ward v. 
 
 to cover by those who caused it to be Beck, 32 L. J. (0. P.) 113 ; Gardner 
 
 efEeoted. ■». Cazenove, 1 H. & N. 423 ; Whit- 
 field V. Parfltt, 4 De G. & S. 240. 
 
86 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 and Equity- 
 look to the 
 substantial 
 rights of the 
 parties. 
 
 the absence of any express statutory provision to the con- 
 trary, to deprive men of their substantial rights when these 
 can be clearly put in evidence. The owner, by a duly regis- 
 tered deed to which he and two trustees were the only 
 parties, assigned six ships to the trustees for securing sums 
 of money expressed to be lent by them, but which in fact 
 was lent by the plaintiffs, and covenanted to insure each 
 vessel in the sum of 1500/. at the least, and, on request, tb 
 assign the policies to the trustees. He did insure in his own 
 name through a broker who knew of the mortgage, but to 
 whom he misrepresented the object of the insurance. Upon 
 the loss of one of the ships and the bankruptcy of the 
 owner, the plaintiffs obtained a decree in equity declaring 
 their right to the proceeds of the policies, and setting aside 
 the broker's general lien, and the claim of the bankrupt's 
 assignees under the reputed ownership section of the 
 statute.^ 
 
 Incorporated 
 companies 
 and their 
 shareholders. 
 
 The members of a partnership are at common law joint 
 owners of the partnership property. But a share in an 
 incorporated company vests no ownership of the company's 
 property in the shareholder. This necessarily follows from 
 the legal view of such a body ; it is not a mere collection of 
 individuals ; it is a constituted person, a creature of the law, 
 empowered by the law for certain purposes and to hold 
 property ; consequently the shareholders cannot in any legal 
 sense be called the proprietors. The effect of this doctrine 
 was ■ somewhat severely tested in connection •with the Ship 
 Eegistry Acts. A Company had been incorporated for the 
 purpose, among other things, of owning British ships, and, 
 contrary as was thought to our national policy, one of the 
 shareholders was a foreigner. Whether such a Company, 
 while one of its shareholders was an alien, could be the 
 registered owner of British ships, was a question raised in 
 the case of the Collector of Customs at Liverpool, and 
 
 ' Ladbroke v. Lee, 4 De Gr. & S. 106. 
 
CHAl'. III. j OF INCOUPOKATED COMPANIES. 87 
 
 solemnly determined in the affirmative on the general doc- 
 trine of our common law, that the shareholder was in no 
 legal sense an owner of the ships held hy the Company.^ 
 
 The consequence is, that the insurable interest in the 
 Company's ships or goods is in the Company itself and not 
 in the individual shareholders. A policy " on one 1000/. share 
 in the Atlantic Telegraph Company, said share valued at 
 1100/." would have been invalid, on the ground that the 
 subject of insurance was not capable of exposure to the perils 
 insured against. And yet if this was an incorporated Com- 
 pany, it was the only property which vested in the share- 
 holder. The next clause, however, saved him from this 
 objection, but subjected him to another quite as fatal. It 
 was " in case of loss, the part saved to be sold or appraised 
 for the benefit of the underwriters." In the light of this 
 clause the Court construed the policy as beiug on the tele- 
 graph cable itself, which was exposed to sea risks ; but if 
 there had been a plea on the record traversing the interest of 
 the assured, it is not conceivable that he could have recovered 
 against the underwriter unless it were the premium.^ 
 
 The object intended, but not attained in that policy, was 
 accomplished by apt words properly applied in a policy 
 referred to already in this chapter,. which was held to be a 
 policy not on the shares of the shareholder, nor on the 
 Company's property, but on the shareholder's expected profits 
 on the adventure of laying the Company's cable across the 
 Atlantic' 
 
 By the contract of bottomry, if the ship be lost, the lender Lenders and 
 loses all his money ; but if the ship arrive in safety, then he bottom^^^d 
 receives back his principal, and also the premium or maritime respondentia. 
 interest agreed upon. Such a lender has a lien on the ship, 
 and consequently an insurable interest in her, and accordingly 
 
 ' Eeg. V. Amaud, 9 Q. B. 806. ' Wilson v. Jones, L. E.., 1 Exoh. 
 
 ' Paterson i^. Harris, 1 B. & S. 193 ; 2 Exoh. 139 ; ante, p. 58. 
 336 ; 30 L. J. (Q. B.) 354. 
 
INSURABLE INTEREST 
 
 [part I. 
 
 Simonds v. 
 Hodgson. 
 
 Stainbank v. 
 renning. 
 
 money lent on bottomry may, when so described, be the 
 subject of marine insurance. 
 
 The insurable interest of the lender in these cases will 
 depend upon the validity of the bottomry bond, as an instru- 
 ment of hypothecation making the payment of the money 
 contingent on the arrival of the ship. "Where the words of 
 the instrument were " after my arrival at the port of 
 London," the Court of King's Bench, reversing the judg- 
 ment of the Court of Common Pleas, held that the words 
 "my arrival" must be taken to mean, not the personal 
 arrival of the master, but the ship's arrival, and the next 
 clause "whether she do or do not arrive in the port of 
 London," to mean, not " whether she be lost or not," but 
 " whether she arrives in the port of London or some other 
 port ; " and consequently that it was a valid instrument of 
 bottomry.^ 
 
 The master of a ship which had put into a foreign port of 
 distress to refit, borrowed money of a merchant there for 
 necessary repairs, to secure which he drew bills on his 
 owner, and executed also what purported to be an hypothe- 
 cation of ship, cargo, and freight; but as this instrument 
 made the money payable in any event, the lender was held 
 to have no insurable interest.^ 
 
 The borrower on bottomry and respondentia has no insur- 
 able interest in the property hypothecated except in so far as 
 the value of such property exceeds the amount for which it is 
 hypothecated. If hypothecated to its full value, he obviously 
 is not concerned for its safety ; for if it arrives, it goes to 
 satisfy the debt ; and if lost by perils within the meaning of 
 the bond, the borrower is discharged. 
 
 Eespondentia is a loan upon the goods, to be repaid to the 
 lender together with maritime interest if the goods arrive; 
 not to be paid if they are lost ; the insurable interest, there- 
 fore, of the lender on respondentia, stands on the same 
 
 ' Simonds v. Hodgson, 6 Bing. 
 114 ; in error, 3 B. & Ad. 60. 
 
 ^ Stainbank d. Penning, 11 C.B. 51 ; 
 Stainbank v. Shepard, 13 0. B. 418. 
 
CHAP, m.] OF MARINBRS. 89 
 
 footing with that of the lender on bottomry, viz., that he has 
 a direct interest in the arrival of the goods. 
 
 We have seen in a previous chapter^ that the master has Master and 
 an insurable interest in his wages, and may effect a policy on !__ 
 
 these and on any commissions he is properly entitled to.^ 
 
 It seems that in the United States, the Courts regarding Master, 
 him in the relation of a confidential agent, have held that if 
 he buys on his own account ship or cargo, when sold in case 
 of misfortune abroad, he has no insurable interest therein 
 unless the purchase be ratified by those whom it may con- 
 cern.^ The mind is easily reconciled to this state of the law 
 in view of the facts touching the sale and repurchase of the 
 American vessel Fanny 8f Elmira by her master in Ireland.* 
 Moreover, assuming the sale to have been justifiable, the 
 purchase by one sustaining such confidential relations must 
 yet appear in everything to be fair and reasonable, and in 
 nothing to be open to suspicion of dishonest or dishonourable 
 advantage on the part of such a buyer, otherwise it is every 
 way in accordance with the principles of an English Court to 
 expect that the contract would be declared void, and the 
 policy in case of loss assigned under decree to those who held 
 the true interest of ownership.* 
 
 It is still believed to be the law of this country, notwith- Seamen, 
 standing a considerable change of policy very much in favour 
 of ordinary seamen, that these or any oiBcer under the master 
 cannot insure their wages.^ In view of principle indeed, 
 these, no less than the master, have an insurable interest in 
 
 1 Ante, p. 45. Gresley v. Mousley, 4 De G. & J. 78 ; 
 
 ■' King*;. Glover, 2 B. & P. N. E. 28 L. J. (Ch.) 620; Hotday ». Peters, 
 
 206 ; and see Hawkins v. Twizell, 6 28 Beav. 349 ; 29 L. J. (Ch.) 780 ; 
 
 E. & B. 883 ; 2.5 L. J. (Q. B.) 160. and as bearing on this officer, Gard- 
 
 3 Copeland v. Mercantile Ins. Co., ner v. MoCutcheon, 4 Beav. 634 ; 
 
 6 Pickering, 198; Barkers. Marine Thompsons. Havelock, 1 Camp. 526; 
 
 Ins. Co., 2 Mason, 369. Diplock v. Blackburn, 3 Camp. 43. 
 
 « The Fanny & Elmira, Edw. Ad. ' See ante, p. 44, and Webster v. 
 
 117. De Tastet, 7 T. E. 157; The Lady 
 
 5 As to the general principles, see Durham, 3 Hagg. Ad. 201 ; 1 Emerig. 
 
 c. viii. B. 10, p. 235. 
 
90 
 
 INSUKABLE INTEREST 
 
 [part I. 
 
 Seamen's 
 merchandise, 
 by American 
 law. 
 
 Supercargo's 
 share. 
 
 The policy of 
 this. 
 
 wages, but policy is still supposed to stand between them 
 and this reasonable security : and such policy extends with 
 no less force to the expectation of a share of the proceeds, 
 for instance in a whaling adventure.^ 
 
 Perhaps when the animal produce of a whaling adventure 
 is got on board, the same objection to the seaman's insuring 
 his share would not apply, and for the same reason for which 
 in the United States he is allowed to insure any goods put 
 on board by him as merchandise, notwithstanding the freight 
 of these be a perquisite and so form a part of his wages.^ 
 It is even allowable in that country for a supercargo who is 
 to be remunerated by a share of the cargo, to insure his 
 interest on board.' But the most curious refinement in 
 their law in this matter is that it recognizes the ordinary 
 seaman's expectation in a whaling adventure on terms of 
 sharing in the result, to be such an insurable interest 
 as that another (in the particular case it was the owner 
 of the ship) may make advances {e.g., by outfit supplied 
 from a stock put on board) on security of it and cover it by 
 an insurance.* 
 
 This very obviously shows that policy and not principle 
 stands between the ordinary mariner and what, amidst the 
 risks of his hazardous vocation, is so desirable a security. 
 Philanthropists on shore regret the thriftlessness usually 
 exhibited by those employed in this calling, and yet assist to 
 shut out all hope of amendment by consenting to a state of 
 the law that subjects their just remuneration to the uncer- 
 tainties of a lottery. Whilst the same misconduct which 
 now forfeits his wages must necessarily be an implied 
 forfeiture of any insurance upon them, if such an insurance 
 were lawful; such a security against the accidents of his 
 gallant enterprise would have no effect in diminishing his 
 fidelity and zeal, and much improvement in steadiness and 
 
 • Webster v. He Tastet, 7 T. E. 
 157. 
 
 * Galloway v. Morris, 3 Yeates, 
 445. 
 
 ^ Robinson i>. New York Ins. Co., 
 2 Gaines, 367 ; id. 1 Johnson, 616. 
 
 * Hanoox v. Fishing Ins. Co., 3 
 Sumner, 132. 
 
CHAP. III.] OF CAPTOKS. . 91 
 
 forethought might be expected from it should the practice to 
 insure become a habit. 
 
 The insurable interest of captors, prize agents, and other Captors, 
 such in captured property, has been the subject of very ^^^ ^^^"^ ^' 
 elaborate and refined discussion in the English Courts. The 
 
 first case in which the question arose was that of Le Oras v. Le Cras ». 
 Hughes, before Lord Mansfield, generally known in insurance the^moiTc 
 law as the Omoa case. A detachment of the sea and land 
 forces of Great Britain, under the respective commands of 
 Captains Luttrell and Dalrymple, jointly captured the fort 
 of Omoa, and two Spanish register ships then lying under its 
 protection. One of the ships. The St. Domingo, together 
 with her cargo, was insured on account of the officers and 
 crews of the ships under Captain Luttrell " at and from 
 Omoa to London," and was lost on her homeward voyage by 
 the perils of the sea. An action being brought on the policy, 
 averring the interest to be in the officers and crews of the 
 ships, two questions were made, — 1. Whether the sea officers 
 had an insurable interest under the then Prize Act (19 Greo. 
 3, c. 67) ; and 2. "Whether possession of the ship would 
 entitle them to insure upon the bare contingency of a future 
 grant from the Crown. 
 
 The consideration of the second question became unneces- 
 sary, except speculatively, for, upon the first. Lord Mansfield 
 was clearly of opinion that the officers and crew had an in- 
 surable interest under the Prize Act. The objection on this 
 point being, that the capture was not a sole capture by the 
 sea forces, but a capture by the land and sea forces jointly. 
 Lord Mansfield said, " The Act gives to the officers, seamen, 
 marines and soldiers on board every ship of war, the sole 
 property in all ships and goods which they shall take 
 during war ; after condemnation, it does not require that the 
 seamen only shall take ; where soldiers assist, their right may 
 be doubtful, but that does not lessen the right of the navy." ^ 
 
 1 Le Cras v. Hughes, 1 Marsh. Ins. 105 ; 2 Park, Ins. 568 ; 3 Doug. 81. 
 
92 INSURABLE INTEREST [PAKT I. 
 
 men their " As to the second ground," Lord Mansfield proceeded to 
 
 e^ecteti^r'' say, " the Crown always makes the grant, and there is no 
 instance to the contrary. Here the possession is in the 
 assured, and a certain expectation of receiving the property 
 captured from the Crown, which gives him an interest in its 
 arrival." ' 
 
 The position thus advanced hy Lord Mansfield, "that 
 possession, coupled with the expectation of future benefit, 
 founded on the contingency of a future grant from the 
 Crown, but warranted hy universal practice, amounts to 
 an insurable interest," has been considerably shaken by the 
 observations of succeeding, and scarcely less eminent Judges. 
 " If the Omoa case," says Lord Eldon, in Lucena v. Craufurd, 
 "was decided upon the expectation of a grant from the 
 Crown, I never can give my assent to that doctrine. That 
 expectation, though founded on the highest probability, was 
 not interest, and it was equally not interest whatever might 
 have been the chances in favour of the expectation. That 
 which was wholly in the Crown, and which it was in the 
 power of his Majesty to give or withhold, could not belong to 
 the captors so as to create any right in them."^ Lord 
 EUenborough, in Eouth v. Thompson,^ and Tindal, C. J., 
 in Devaux v. Steele,* both seem to consider that, after 
 these observations of Lord Eldon, the doctrine of Lord 
 Mansfield, if it can still be treated as a binding authority, 
 must be considered incapable of being extended, and as 
 confined to cases falling strictly within the same circum- 
 stances. 
 Result of the If the law, therefore, on this subject be that possession - 
 coupled with the expectation of a future grant from the 
 Crown, gives an insurable interest, it is so only in cases where 
 a long and uniform course of practice can be shown for the 
 
 See the judgment of Lord Ellen- Stirling v. Vaughan, 11 East, 619. 
 
 borough in Eouth v. Thompson, 11 i Le Cras v. Hughes, 3 Doug. 81. 
 
 East, 433, 434. That captors of a « Lucena v. Craufurd, 2 B. & P. 
 
 prize in case of joint capture have an N. K. 323. 
 
 insurable interest in such prize under = 1 1 East, 434. 
 
 the 45 Geo. 3, o. 72, -was held in * 6 Bing. N. C. 358, 370, 371. 
 
BeU. 
 
 CHAP. III.] OF CAPTORS. 93 
 
 Crown always to make sucli grant, and no instance can be 
 given to the contrary. 
 
 Lord Eldon, while dissenting from this doctrine, pointed 
 out other grounds on which the right of the captors to insure 
 might have been put. "The captors," said his Lordship, 
 "not only had the possession, but a possession coupled with 
 the liability to pay costs and charges, if they had taken pos- 
 session improperly, and also a liability to render back pro- 
 perty which should turn out to be neutral." ^ 
 
 It was upon this very ground that Lord Kenyon had pre- Boehm v. 
 viously rested the insurable interest of captors. In the year 
 1797, three English captains had taken the ship Westcapelle 
 and her cargo, as a Dutch prize, and by their agents had 
 caused insurance thereon to be made on their account. The 
 ship and cargo were afterwards claimed on behalf of Theodore 
 Lynam and other American owners, to whom, by a decree of 
 the English Court of Admiralty, they were ultimately re- 
 stored, with the exception of a small part of the cargo which 
 was condemned as enemy's property. The captors upon this 
 claimed a return of premium in respect of the ship and such 
 part of the cargo as had been decreed to be restored ; but the 
 Court refused their claim, Lord Kenyon saying, "the assured 
 had possession of the captured property, and from that pos- 
 session certain rights and duties resulted. If it was a legal 
 capture, the captors were entitled; if the capture was im- 
 properly made, they were liable to be called to account in the 
 Courts of Admiralty, where they might be amerced in 
 damages and costs. It was important to them to take care 
 that there should be something forthcoming to answer the 
 amount of these damages ; on this ground, therefore, I am 
 clearly of opinion that the assured had an insurable in- 
 terest."^ Consequently, the policy having attached, there 
 could be no right to a return of the premium. 
 
 The next case was that famous one of the Dutch commis- 
 sioners, which for more than eight years was litigated in the 
 
 > 2 B. & P. N. E. 323. " Boehm v. Bell, 8 T. E. 154, 161. 
 
Craufurd. 
 
 94 INSURABLE INTEREST [pART I. 
 
 English Courts of Law, and in the House of Lords gave rise 
 to one of the most elahorate and ingenious legal discussions 
 ^ ever raised upon a point of maritime law.^ 
 Luoena v. The facts of the case were as follows : — Holland having 
 
 been, in the course of the year 1794, overrun and occupied by 
 the armies of the French Eepublic, with which we were then 
 at war, and it appearing highly probable that her subjection 
 to French power might be permanent, our government, by 
 an Order in Council of February, 1795, directed that all 
 Dutch ships bound to and from the ports of Holland should 
 be seized for the purpose of being brought into this country 
 and there provisionally detained. With a view to provide 
 for the custody of the ships that might be brought in under 
 this order, an Act was passed empowering his Majesty in 
 council to appoint commissioners for the care, management, 
 sale, or other disposal, according to his Majesty's instructions, 
 of all Dutch ships or cargoes " which have been, and might be 
 thereafter detained in or brought into the ports of the United 
 Kingdom " ; and on the 15th June, 1795, a commission 
 issued, under this Act, to Craufurd and others, appointing 
 them to act as commissioners for the purpose specified in the 
 Act («'. e., for the disposal, under directions from the Privy 
 Council, of such Dutch property as should be detained in or 
 brought into British ports). Before this commission was 
 issued, Captain Essington, of The Sceptre man-of-war, in 
 company with some East India Company's ships, acting 
 under the Order in Council of February, 1^95, had captured a 
 fleet of Dutch merchantmen, homeward bound from the 
 African coast and the East Indies, and carried them into 
 St. Helena, for the purpose of being brought into this 
 
 ' A policy on the case came before same name, in 1806, 2 B. & P. N. 
 
 the Court of King's Bench under the E. 269. It then came before Lord 
 
 name of Craufvird 1). Hunter, in 1798, EUenborough at the sittings after 
 
 8 T. R. 13. The case under another Michaelmas Term, 1806, on the ve- 
 
 policy again appears before the Ex- nire de novo, and was ultimately dis- 
 
 chequer Chamber as Lucena v. Crau- posed of by the House of Lords on 
 
 furd, in 1802, 3 B. & P. 75 ; and the 29th June, 1808, as Lucena v. 
 
 before the House of Lords under the Craufurd, 1 Taunt. 324. 
 
CHAP. IIT.J OF CAPTORS. 95 
 
 country. Accordingly, on the 2nd of July, four of these Luoena». 
 ships, The Hooghley, The Dordrecht, The Siircheanee, and The ^''^'^^'^^■ 
 Zeeklye, sailed from St. Helena with their Dutch cargoes 
 on hoard for this country; and on the 22nd Of August,^ 
 Craufurd and his co-commissioners, having received notice to 
 that effect, caused an insurance to he effected on these ships 
 and their cargoes on their own account, under the name and 
 style of " The Honourable Commissioners for the sale of 
 Dutch property." AU the four ships thus insured, together 
 with their cargoes, were totally lost hefore arriving in this 
 country ; one of them, however, The Zeeklye, was not so lost 
 till after the 15th of September; this date is important, 
 because on that day a proclamation of reprisals, in other 
 words, an open declaration of war, was made by his Majesty 
 against the ships, goods, and subjects of the United Pro- 
 vinces. 
 
 On the loss of the ships becoming known, Craufurd and 
 his co-commissioners brought an action upon the policy, 
 averring the interest, in the first count of the declaration, to 
 be in themselves, " as such commissioners ; " in the second 
 count, to be in the Crown. The main question in the cause 
 was whether the plaintiffs, under the circumstances, had an 
 insurable interest, under the commission, in the ships and 
 cargoes insured, before their arrival in this country. 
 
 It would be impossible to report at length, and useless to 
 attempt to abridge, the able and ingenious disquisitions to 
 which this question gave rise ; the reader must be referred to 
 the reports at large, especially to the judgment of Chambre, 
 J., in the Exchequer Chamber;^ of the same learned Judge,' 
 of Lawrence, J.,* and of Lord Eldon,* in the House of 
 Lords. 
 
 In the Court of King's Bench, Lord Kenyon and the rest 
 of the Court held that the plaintiffs had an insurable interest 
 sufficient to sustain the first count of the declaration, either 
 
 1 1 Taunt. 329. * Ibid. 300-307. 
 
 2 3 B. & P. 99-103. " Ibid. 315-326. 
 
 3 2 B. & P. N. E. 298-300. 
 
96 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Lucena v, 
 Craufurd. 
 
 Judgment of 
 the House of 
 Lords. 
 
 as trustees for the Crown or for the parties who should 
 ultimately he entitled; either as consignees, or as prize 
 agents ; and Judgment accordingly was given for the plain- 
 tiffs for the whole sum. In the Exchequer Ohamher this 
 judgment was affirmed hy a majority of the Judges, includ- 
 ing Heath, J., and Lord Alvanley : Chamhre, J., delivering 
 a very forcible opinion the other way. 
 
 The grounds on which the majority founded their judg- 
 ment were substantially the same as those which had pre- 
 vailed with the Court of King's Bench ; and rested on the 
 principle, " that an inchoate interest though imperfect till a 
 given contingency shall take place, is nevertheless insurable." ^ 
 
 Chambre, J., on the other hand, rested entirely on the fact 
 that, under the terms of the Act and the commission, the 
 powers of the commissioners were strictly limited to the case 
 of Dutch ships actually brought into the ports of the 
 United Kingdom, and provisionally detained there ; that, as 
 in this case, the ships had never been brought into this 
 country at all, they had never become the subjects of the 
 plaintiffs' authority or powers under the commission, and 
 consequently that they had no such relation, concern, or 
 interest therein as to entitle them to insure. 
 
 Before the House of Lords, eight of the Judges were of 
 opinion, upon the same grounds as before, that the plaintiffs 
 had an insurable interest sufficient to sustain the first count ; 
 " they had a contingent interest, and, supposing the inten- 
 tions of the Crown to remain unaltered, nothing stood be- 
 tween them and the vesting of that contingent interest but 
 the perils insured against." '^ 
 
 Chambre, J., adhered to his former opinion, which was 
 supported by Lawrence, J., by the great authority of Lord 
 Eldon, by Lord Erskine, and, as is inferred rather from the 
 known course of his subsequent decisions than from anythiag 
 that fell from him at the time, by Lord EUenborough.* To 
 
 • 3 B. & P. 98. . 
 
 2 2 B. & P. N. B. 289-298. 
 
 » Chambre, J., 2 B. & P. N. 
 
 R. 
 
 298-300; La-wrenoe, J., 300-307; 
 Lord Eldon, 313-326 ; Lord Ellen- 
 borough, 327 ; Loi-d Erskine, 328. 
 
CHAP. III.] OF CAPTORS. 
 
 these learned persons the plaintiffs' claim of interest seemed Lnoena v. 
 to have " no other foundation than a mere naked expectation 
 of acquiring a trust, or charge respecting the property, with- 
 out a scintilla of present right, either absolute or contin- 
 gent."^ Bj- the letter of the commission and the statute, 
 they remarked, the plaintiffs' care was confined to ships 
 which had been detained in, or might be brought into, the 
 ports of this kingdom ; so that until arrival here, no Dutch 
 property was clothed with those circumstances which desig- 
 nated it as the object of their commission, and made it their 
 duty to interfere in its preservation.^ Under these circum- 
 stances, they professed themselves unable to conceive of an 
 interest in a thing with which the persons supposed to be 
 interested had nothing to do :' and Lord Eldon, in particular, 
 declared he could " not point out what is an interest, unless 
 it be a right in the property, or a right derivable out of some 
 contract about the property, which in either case may be lost, 
 upon some contingency affecting the possession or enjoyment 
 of the party."* Notwithstanding this clear declaration of 
 opinion, their Lordships did not directly reverse the decision 
 of the majority of the Judges. 
 
 Upon the advice of Lord Eldon, the case was sent down Ventre de 
 for a new trial under a venire de novo, on the following 
 collateral ground. The declaration of hostilities against the 
 United Provinces took place, it will be remembered, on the 
 15th of September; and The Zeelelye, one of the ships 
 insured, was not lost till after this, viz., on the 20th of 
 September. Damages nevertheless had been assessed at a 
 total sum, in respect of all the ships lost, including The^ 
 Zeelelye. As, however, the House of Lords were most clearly 
 of opinion, that, whatever insurable interest (if any) the 
 plaintiffs, as commissioners, might ever have had, was taken" 
 out of them by this declaration of hostilities, which thence- 
 forth vested the ownership of all captured property in the 
 
 1 Per Chambre, J., 299. ' Ibid. 306. 
 
 2 Per Lawrence,- J., 2 B. & P. N. * Per Lord Eldon, ibid. 321. 
 E. 305. 
 
 M. H 
 
98 
 
 INSURABLE INTEREST 
 
 £PART I. 
 
 Lucena v. 
 Craufiird. 
 
 Final result 
 of the case. 
 
 Hontli V. 
 Thompson. 
 
 Crown /are lelU, it followed that the plaintiffs had no interest 
 in The Zeeklye at the time of her loss, and the finding of the 
 Jury, inasmuch as it gave general damages, partly made up 
 of the loss on The Zeelelye which ought not to have entered 
 into it, was erroneous. 
 
 The cause accordingly came on for trial before Lord 
 EUenborough on the venire de novo, when a verdict 
 was found for the plaintiffs upon the second count of 
 the declaration, which averred the interest to be in the 
 King.^ 
 
 Although the House of Lords in this case avoided a 
 decision diametrically opposed to the opinion of a majority of 
 the Judges, yet the subsequent course of our jurisprudence 
 sufficiently shows the influence of this discussion, for since 
 then it has been uniformly adverse to the assertion of insur- 
 able interest, whenever in the case there was nothing but 
 mere expectation.^ 
 
 Thus, to confine ourselves to cases of capture, a Danish 
 ship, in pursuance of an Order in Council of September, 1807, 
 by which all Danish ships were directed to " be detained and 
 brought into port," was seized by a British privateer and 
 carried into Lisbon ; whence, after repairs, and sale of her 
 original cargo, she was freighted with another cargo, and 
 sailed for London on the 3rd of November, the very day 
 that a formal declaration of hostilities had been made by 
 Great Britain against Denmark. The ship and cargo were 
 totally lost. 
 
 In an action on the policy, interest was averred in the 
 captors, which it was contended they had on two grounds. 
 
 > 2 B. & P. N. E. 329. A bill 
 of exceptions was taken to his Lord- 
 ship'sjudgment, which was, however, 
 affirmed by the House of Lords, with- 
 out calling upon counsel in reply, on 
 29thJune, 1801. Lucena t). Craufurd, 
 1 Taunt. 324. 
 
 * What it was that was determined 
 by this celebrated case, and the ap- 
 
 plication of the rule so determined, 
 was canvassed anew in the case of 
 Ebsworth v. Alliance Mar., Ins. Co., 
 L. E., 8 0. P. 596, by the Judges of 
 the Comnlon Pleas ; and the discus- 
 sion, as the Court was equally di- 
 vided, ended without result. See 
 ante, p. 79, note 2. 
 
CHAP. III.] OF THE CROWN. 99 
 
 — 1, because they had a possession, coupled -with a well- 
 grounded expectation of a grant from the Crown ; and 
 2, because such possession rendered them liable, either to the 
 Crown, or to the foreign owner, for the safe custody of the 
 ship, and therefore gave them an interest in her safety. 
 
 As to the first, it was answered that the ship was taken, 
 not as a prize of war, but merely under an Order in Council, 
 " to detain and bring into port ;" that even if the ship had 
 arrived in safety, the captors would have had nothing " but 
 the chance of a grant ; " the Court accordingly held, that A mere 
 they had no insurable interest on this ground, seeing "a man insurable 
 has no right to an indemnity merely because he has lost the '''^^rest. 
 chance of receiving a gift." 
 
 As to the second ground, being, in fact, the foundation of 
 Lord Kenyon's decision in Boehm v. Bell, which was 
 approved of by Lord Eldon in Lucena ». Craufurd, it was 
 held by Lord EUenborough to be inapplicable to the present 
 case ; because a formal declaration of hostilities had inter- 
 vened before the loss, at once vesting the right of ownership 
 in the Crown, putting an end to all claim on the part of the 
 foreign owners, and freeing the captors, as agents for the 
 Crown, from all liability for acts done within the scope of 
 their authority, which it did not appear that they had in any 
 degree exceeded. As, however, there was no fraud in the 
 captors in effecting the policy, nor anything illegal in the 
 voyage or insurance, the assured were held entitled to recover 
 back the premium.' 
 
 The captors, however, have an insurable interest in ships Secus,^ of a 
 taken as prize before condemnation, in case the Prize Act 
 (e. g., 45 Greo. 3, c. 72, s. 3) vests the property, subject only 
 to the right in the Crown to release the prize, and to the 
 effect of a sentence of the Court of Admiralty restoring it to 
 the owners.^ 
 
 The Crown has in all cases an insurable interest in ships interest in 
 lawfully detained and captured under the laws of war ; and ® ™^^' 
 
 ^ Kouth V. Thompson, 11 East, ^ Stirling v. Vaughan, 11 East, 
 
 428. 619. 
 
 h2 
 
100 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Express rati- 
 fication not 
 necessary. 
 
 TTuif ormity of 
 practice to 
 grant in 
 accordance 
 with an 
 
 e: 
 intention. 
 
 Law in the 
 tfnited States. 
 
 if an insurance be effected for tlie captors and such as it may 
 concern, althougli the captors have no insurable interest in tbe 
 prize, yet being in possession of it as the servants and agents 
 of the Crown, the Crown by subsequent ratification may 
 adopt the policy.^ It would seem by what fell from the 
 Court in the case of Stirling v. Vaughan, and on the prin- 
 ciple that the law presumes, in the absence of anything to 
 the contrary, that a person accepts what is for his benefit, 
 that the captors in every case of legal capture have an implied 
 authority to insure on behalf of the Crown, and may, there- 
 fore, in all such cases recover on a count "averring the interest 
 to be in the King, without any express subsequent ratification 
 by him.^ 
 
 Contrary therefore to the position of Lord Mansfield in 
 the Omoa case, and in accordance with the principle since 
 established, it was held under a policy on behalf of certain 
 French shipowners " on bounty to be allowed by the French 
 Government on the tonnage" of a South Sea whaler, that 
 the expectation of a bounty from Grovernment must be 
 regarded as a mere contingency, and was not an insurable 
 interest.' 
 
 The law of the United States as to this subject seems to 
 be in accordance with our own, that an insurable interest in 
 prizes can be acquired only by an actual grant from the 
 Grovernment.* 
 
 Carriers as 
 insurers. 
 
 An inland carrier by water may be regarded at law as a 
 common carrier ' and have east upon him by the custom of 
 the realm the liabilities of an insurer in addition to those of 
 carrier as such ; in such a case he has an insurable interest 
 
 ' Eouth 1/. Thompson, 13 East, 
 274, 284, 285 ; Lucena v. Craufurd, 
 1 Taunt. 324. 
 
 * Stirling v. Vaughan, 11 East, 
 623. 
 
 , » Devaux v. Steele, 6 Bing. N. C. 
 3C8. 
 
 * See the observations of Story, J.j 
 n the case of The Joseph, 1 Gallison, 
 658 ; 1 Phillips, Ins. no. 320 et seq. 
 
 ' Who and what is a common 
 carrier by water, see Maclaohlan, 
 Ship. 115-117. 
 
CHAP. III.] OF CAURIEES AND OWNERS OF CARGO. 101 
 
 in the goods committed to his care to their full value.i One 
 who is not suhject to the custom of the realm, though a 
 carrier, may yet hy contract undertake the liabilities of an 
 insurer in addition to those of a carrier, and in respect of such 
 liabilities he has an insurable interest in the goods. In such In this case 
 a case it is important for the carrier's customer to know that policy india- 
 without a duly stamped policy from the carrier this contract P«"s^^l^- 
 of insurance is invalid and not enforceable f and that carrier 
 and customer, and their agent or agents, in issuing or effecting 
 such a contract of insurance without a stamped policy are 
 each of them liable to a penalty of one hundred pounds;' and 
 that brokerage in such a case is not only an illegal charge, 
 but if paid, may be recovered back.* 
 
 A party interested in cargo alone has no insurable interest Misoellaneous 
 
 , , , . oases. 
 
 in the ship ; for the goods may arrive safe, though the ship 
 
 be lost, and i:ice versa. Hence, where the owners of the cargo Owner of 
 
 . cargo has no 
 effected an insurance "on money expended for reclaiming insurable 
 
 ship and cargo," " the loss to be paid in case the ship g^ip?^ 
 does not arrive" at the port of destination, it was held, 
 that the assured had no insurable interest in the subject 
 insured against the event sought to be provided for by this 
 policy.^ 
 
 A bill of exchange to cover money borrowed for ship's use Bills of 
 in a foreign country gives no lien on a British ship.^ With- 
 out such a lien in that case there is no insurable interest ; 
 and any opinion to the contrary advanced by Gibbs, C. J., 
 
 ' Crowley v. Cohen, 3 B. & Ad. ^ It seems to te otherwise in re- 
 
 478 ; Joyce y. Kennard, L. R., 7 spect of a French ship hy French 
 
 Q. B. 78 ; Stephens v. Australasian law ; Castiique v. Imrie, 8 0. B., 
 
 Ins. Co., L. E,., 8 C. P. 18 ; Tate v. N. S. 405 ; L. R., 4 H. of Lds. 414. 
 
 Hyslop, 15 Q. B. D. 368. This law was in that case applied by 
 
 2 30 & 31 Vict. c. 23, ss. 7, 9, and a French Court to a British ship, no 
 
 12 ; post, Appendix. doubt erroneously ; but as the judg- 
 
 ' Ibid. ss. 13 and 14. ment was in rem, it was held bind- 
 
 4 Ibid. s. 16. ing on the Courts of this country. 
 
 5 Kulen Kemp v. Vigne, 1 T. R. The remedy, if any, was by appeal 
 304, to the Cour de Cassation in France.. 
 
102 INSURABLE INTEREST [PART I. 
 
 in the case of Taster t\ Scott,^ seems to be an obiter dictum 
 unnecessary to the case hefore him, in which the only question 
 was whether the plaintiffs had authority to insure, so as to 
 cover the expense of doing so. 
 
 Instead of borrowing at respondentia, captains engaged in 
 the East India Company's trade had, since the yeiax 1810,^ 
 practised the following mode of raising money to pay for 
 their outward investments: — Bills were drawn for the 
 required amount upon the captain's agents in India, payable 
 so many days after ship's arrival outwards ; these bills were 
 indorsed to the person making the required advances in this 
 country, and one set left with him ; the other set,' together 
 with the goods consigned to the captain's agents, was taken 
 out in the ship ; and the indorsee of the bills then effected in- 
 surance on them for his own benefit. A case at length came 
 before the Court of Cpmmon Pleas, in which the indorsee of 
 bills so drawn and insured sued the underwriter, describing 
 them as " bills of exchange," and averring the total loss of 
 ship, goods, and the set of bills on board of her. Best, C. J., 
 held, that upon such policy the assured could recover nothing; 
 the instruments, being drawn on a contingency, were not bills, 
 but so much waste paper ; the plaintiffs had lost nothing by 
 them, because they could have recovered nothing upon them ; 
 they had, therefore, no insurable interest, because they had 
 nothing at risk.^ 
 
 Re-iusur- After an insurance has been made, the underwriter may, 
 
 by the law and practice of all countries,* have the whole 
 
 1 Taster v. Soott, 1 Marsh. E. 1726: of Russia, Ord. 1847, art. 
 
 656 ; S. C, 6 Taunt. 233. 1135: of Sweden, art. 10, s. 1: 
 
 ' The practice prior to that date is Nolte's Beneoke, vpl. i. pp. 216-218, 
 
 stated in the case of Gregory -a. ed. 1851. They are permitted hy 
 
 Christie, 3 Doug. 419. the German code, 868 ; and so they 
 
 " Palmer v. Pratt, 2 Biug. 185. are, but apparently not much prac- 
 
 ' Re-iuBurancesareexpresslysanc- tised, in the United States, 3 Kent, 
 
 tioned by the law of France, Ord. Comm. 278. The best account of 
 
 Mar. liv. 3, t. vi. art. 20, 21 : Co. them is to bo found in 1 Emerigon, 
 
 de Comm., art. 342 : of Spain, Co. c. viii. ss. 14, 15, 16, pp. 252-261. 
 
 Comm., art. 862: of Portugal, art. The reader can also consult 3 Boulay- 
 
CHAP. 111.} OF UNPERWRITEU. 103 
 
 amount at risk (or, as in France, the whole minus the 
 premium) re-insured to him by some other underwriter. The 
 object of this is, to enable him to indemnify himself against 
 the consequences of his own act, whenever he finds he has 
 undertaken a risk on imprudent terms or bound himself to a 
 greater amount than he may be able to discharge. If he 
 gives a less premium for the re-insurance than he receives 
 on the original poHoy, he gains the difference ; he gains 
 nothing if he gives the same premium ; and suffers a loss, 
 if he gives more, as may sometimes happen, to cover a 
 dangerous risk.^ 
 
 Until very recently, this means of protection for insurers Illegal in this 
 was illegal by the law of this country. About the middle of quite recently, 
 last century this practice of re-insurance, having, in this 
 country, come to be employed as a mode of speculating in the 
 rise and fall of premiums, and being likely to be used as a 
 cover for wager policies, was declared by the 4th section of 
 the 19 Geo. 2, c. 37, unlawful unless the insurer were insol- 
 vent, bankrupt, or dead. This was repealed and re-insurances 
 made lawful by the 27 & 28 Vict. c. 56, s. 1 ; then both 
 enactments being repealed by the existing statute, re-insur- 
 ance is legal in virtue of the common law ; and the law of 
 such a policy is now the law of any other policy, and to be 
 found in the existing statute,^ without any necessity for its 
 appearing to be a re-insurance on the face of it.^ 
 
 Ee-insurance is a contract of insm-ance by which the What is re- 
 original insurer becomes himself assured in respect of the same 
 subject, upon the same risks, and under the same conditions 
 as are expressed in the original policy.* 
 
 Paty, Droit Mar. 429-446 ; 1 Be- that clause, say to the extent of 
 
 necke, 281-289 ; and 3 Kent, Comm. 5,800?.! 
 
 278-280. ' 30 & 31 Vict. o. 23, ss. 3, 4, and 
 
 1 What must be thought of the sohed. D. 
 
 unhappy expedient su§;gested in ^ Maokenzieii.Whitworth, lExoh. 
 
 UzieUi V. Boston Mar. Ins. Co., 15 Div. 36 ; below, L. E., 10 Ex. 142. 
 
 Q. B. D. 11, by Lord Esher as a By the 19 Geo. 2, c. 37, the policy 
 
 shift for evading the grossly erro- was required to express that it was 
 
 neous decision of the Lords in Lohre a re-insurance. 
 
 V. Aitiohison, 4 App. C. 764, on * See 1 Emerigon, c. viii. s. 14, 
 
 the sue and labour clause, by over- p. 252 ; 3 Boulay-Paty, Droit Mar. 
 
 msvxiTig to meet the expenBes under 329. 
 
 msurance. 
 
J04 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 Evidence to 
 teoover. 
 
 Amount 
 recoverable. 
 
 Defence. 
 
 The contract of re-insurance Is totally distinct from, and 
 unconnected with, the original insurance ; the original assured 
 has no kind of claim, against the re-insurer ; the re-assured 
 remains solely liahle on the original insurance, and alone has 
 any claim against the re-insurer.' 
 
 Hence, supposing the original insurer to have become 
 bankrupt, and the assured to have been paid a small dividend 
 out of his estate, the re-insurer is still liable to pay the 
 ■whole amount of the re-insurance to the trustee of the 
 original insurer, without deducting the dividend; and the 
 original assured has no claim in respect of the money so 
 paid.^ 
 
 The re-insured recovers only upon the same evidence as 
 must have been produced against himself by the original 
 assured.* 
 
 In every country except France the re-insured is allowed 
 to cover, by his re-insurance, the whole amount of the original 
 insurance, without deducting therefrom the premiums of the 
 original insurance, or the premium of the premium.* In 
 Erance the great authority of Emerigon is in favour of this 
 uniform practice ;° but Pothier,^ Valin,' Estrangin the learned 
 commentator on Pothier,^ and Boulay-Paty,^ are all opposed 
 to this view, on the ground that the premium of the original 
 insurance having been already, paid to the underwriter, he 
 runs no risk upon it and therefore cannot insure it. 
 
 The re-insurer is entitled to make the same defence to an 
 action brought against him on the second policy as the 
 original insurer might on the first,'" and that, notwithstanding 
 
 ' Le premier oontrat subsiste tel 
 qu'il a ete coii<;u sans novation ni al- 
 teration. La reassurance est absolu- 
 ment etrangfere k 1' assure primitif, 
 avec lequel le reassureur ne contracte 
 aucune sorte d' obligation ; 1 Eme- 
 rigon, c. viii. H. 14, p. 252. - 
 
 = Ibid. 263. 
 
 = See Grledstanes v. The Eoyal 
 Exoh. Ass. Co., 34 L. J. (Q. B.) 30 ; 
 a Kent, Oomni. 278. 
 
 * 1 Benecke, System des Aasecu- 
 
 ranz, 284 ; 1 Nolte's Benecke, 212, 
 213 ; Cod. di Comercio, art. 456. 
 
 ' 1 Emerigon, i;. viii. s. 14, s. 4, 
 pp. 253-256. 
 
 ' Pothier, d' Assurance, No. 36. 
 
 ' Valin, Comment, sur I'Ord., No. 
 3, tit. vi. art. 20. 
 
 ' Comment, on Pothier, No. 36, 
 p. 46, ed. Estrangin. 
 
 » 3 Boulay-Paty, Droit Mar. 429 
 et seq. 
 
 »" See Gledstanes v. The Roy. Ex. 
 
CHAP, in.] OF UNDERWRITEK. 105 
 
 the fitst insiirer's acceptance of atanddnment. Notice of 
 abandonment is laeld to be unnecessary under a policy of 
 re-insurance.^ 
 
 • The ordinary sue and labour clause, through a gross mis- 
 conception of the meaning of its terms, was held inapplicable 
 to the re-insured, where the persons who got the vessel ofE the 
 rocks, at great expense, were the original insurers, their factors 
 and servants, because, it was supposed, they could not in law 
 be deemed to be the factors and servants of the plaintiffs, 
 the first re-insurers, as against the defendants, the second re- 
 insurers." The plaintiffs therefore recovered the full sum 
 re-insured on the ship in their favour by the defendants, 
 namely, 1000/., and no more, although the jury had found 
 that an additional sum of 120/. represented the sum due on 
 that policy under the sue and labour clause, if that clause 
 had been applicable. But Lord Esher, M. E., expressed his 
 opinion, that if in such a policy, besides a sum equal to the 
 full value of the ship, there had been included an additional 
 sum to cover the amount recoverable under the sue and 
 labour clause, he should not think it a case of over- insurance.' 
 
 It has been held in the United States that the amount of Costs of 
 loss recoverable on a policy of re-insurance includes the costs 
 of defence against the claim of the original assured, provided 
 the re-insurer upon notice to him insist on the action being 
 defended, or neglect to consent to payment of the loss with- 
 out contesting it, and the original insurer be justified in 
 defending the action.* 
 
 Besides re-insurances properly so called, i. e. insurances insuring the 
 
 Ass. Co., supra. So held in the ' Uzielli v. Boston Mar. Ins. Co., 
 
 United States, New York Marine 15 Q. B. D. 11, 17. See post, Pt. 
 
 Ins. Co. V. Protection Ins. Co. , 1 III. u. 2, /Salvage recoverable under the 
 
 Story, E.. 458. Site and Labour Clause; and the ob- 
 
 1 UzielH V. Boston Mar. Ins. Co., servations there made on this deoi- 
 
 15 Q. B. D. 11 (C. A.) ; Hastie v. sion. 
 
 Do Pejrster, 3 Caines, N. T., 190 ; * Hastie v. Be Peyster, .3 Caines, 
 
 2 PhUIips, no. 1506. N. T., 190 ; 1 PhilUps, Ins. no. 
 
 " UzieUi V. Boston Mar. Ins. Co., 1129. 
 ^upra. 
 
106 
 
 INSUKABLE INTEREST 
 
 [part I. 
 
 solvency of 
 the under- 
 writer. 
 
 Not in use in 
 England. 
 
 In iEVance. 
 
 Evidence to 
 recover. 
 
 effected by one underwriter with another to secure himself, 
 the assured may also, if he pleases, insure the solvency of 
 the underwriter with whom he has effected the policy. As, 
 however, this practice tends greatly to lessen the profits of 
 the voyage by multiplying the expenses, it will not frequently 
 be resorted to in any country, and appears never to have 
 been in use in our own, though it was not in terms prohi- 
 bited by the statute 19 Greo. 2, c. 37, nor would be illegal at 
 common law.^ The real reasons of the non-existence of 
 the practice in this country appear to be, as Mr. Marshall 
 suggests, that a double insurance would better answer the 
 end proposed;^ or else, as Mr. Benecke thinks, that the 
 same object is attained by the employment of brokers on a 
 commission del credere, which involves a guarantie of the 
 underwriter's solvency.' 
 
 The Ordonnance de la Marine* expressly authorized the 
 assured to insure " the solvency of his insurers ; " the Code 
 de Commerce omits all mention of this species of insurance,' 
 from which, says Boulay-Paty, it is not to be inferred that 
 the Code .prohibits it, but rather regards it as too clearly 
 a matter of right to require any specific authorization.^ The 
 same learned author, however, admits that the practice is 
 scarcely ever resorted to in France; and he considers that 
 it ought never to be adopted, except in cases where the 
 solvency of the underwriters is exceedingly doubtful.' 
 
 In order to recover upon such an insurance the first insurer 
 must be in default by a legal demand made upon him, but 
 the better opinion of the French jurists seems to be that he 
 need not also be sued to judgment and execution.' 
 
 ' 2 Park, Ins. 599, seems to think 
 that it Tvould be void as a wager 
 policy iinder the statute; but I 
 agree with Mr. Benecke that it 
 would be difficult to discover any 
 satisfactory ground for this opinion. 
 Des Assecuranz, c. ii. s. 4, torn. i. 
 pp. 286, 287. 
 
 a MarshaU, Ins. 139. 
 
 ^ Benecke, ubi supra. See also 3 
 Boulay-Paty, Droit Mar. 445, 446. 
 
 * Liv. 3, t. vi. art. 20. 
 
 ^ Code de Commerce, art. 342. 
 
 « 3 Boulay-Paty, 439, 440. 
 
 ' Boulay-Paty, Comment, on Eme- 
 rigon, vol. i. p. 259. 
 
 8 1 Emerigon, c. viii. sect. 15, p. 
 268; 3 Boulay-Paty, Droit Mar. 
 
CHAP. III.J 01- ASSIGNEES. 107 
 
 The assured may also efEeot a new insurance in consequence New- assuring 
 of the insolvency of the underwriter during the continuance yenoyrf" ' 
 of the risk ; for this, though incorrectly called a re-insurance, iinderwriter. 
 is not such a re-insurance as alone was contemplated by the 
 repealed provision of the 19 Greo. 2, o. 37, s. 4, — viz., "a 
 contract made hy the underwriter to secure himself." ' 
 
 The Assignees both of the insurable interest of the assured The As- 
 and of his policy in respect of the same, are effectually pro- insurable 
 tected by such policy in respect of the interest so assigned. of^thrpoUCT- 
 This is in virtue of the language of the instrument itself, and thereon, 
 the custom of merchants, now recognized by statute.^ The 
 blanks in the common printed forms are generally filled up 
 with the names either of the assured himself, or, as is the 
 case in the very great majority of instances, of the insurance 
 agent by whose instrumentality the policy is actually effected. 
 In the latter case, the clause is, "A. B. and Co., as well 
 in their own names as for and in the name and names of 
 all and every other person or persons to whom the same doth, 
 may, or shall appertain in part or in all, do make assurance 
 and cause themselves and them, and every of them to be 
 insured," &o. 
 
 A practice appears to have sprung up in this country in 
 the middle of last century of effecting policies in blank, i. e., 
 without inserting the names either of the party for whom or 
 by whom they were effected.^ In consequence of complaints 25 Geo, 3, 
 on the part of the underwriters, an Act was passed in the 
 year 1784,* directing that the name of the person inter- 
 ested, or of his agent, should in all cases be inserted in the 
 policy. 
 
 The provisions of this Act appear to have been founded on 
 a misconception of the real nature of the grievance; what 
 
 441 ; contra, Pothier, d' Assurance, p. 114. 
 
 no. 33 ; and Valin, £ur I'Ord., liv. 3, ^ Pray v. Edie, 1 T. Eep. 313 ; see 
 
 tit. vi. art. 20. also the judgment of BuUer, J., in 
 
 1 Per Lord Mansfield in Davis v. Wolff v. Hornoastle, 1 B. & P. 316, 
 Gildart, see Park on Ins. 602. 321. 
 
 2 31 & 32 Vict. 0. 86, see post, * 25 Geo. 3, c. 44. 
 
i08 INSUEABLE INTEREST [pART I. 
 
 the underwriters really wanted was merely to know the name 
 of some one concerned in effecting the policy, no matter 
 whether principal or agent, to whom they could look as a 
 responsible dehtor. What the Legislature appears to have 
 aimed at was,, as far as possihle, to compel a disclosure of the 
 name of the person really interested as principal. And the 
 Courts accordingly interpreted the Act strictly. 
 
 Very soon after it was passed an underwriter took ad- 
 vantage of it to evade his contract, on the ground that the 
 agent's name was not inserted, eo nomine, as agent ;^ and 
 another policy was held void under the same law, because the 
 names of all the parties interested were not inserted therein.^ 
 This was evidently going too far ; another statute, therefore, 
 was passed in the year 1787,* which stiU remains the law of 
 the land. 
 28 Geo. 3, This Act provides that no policy shall be effected without 
 
 first inserting therein " the name or names, or the usual style 
 and firm of dealing," either — 1st, of " one or more of ihe 
 persons interested ; " or, 2nd, of the " consignor or consignee 
 of the property to be insured ; " or, 3rd, of the " persons 
 resident in Great Britain who shall receive the order for 
 and effect the policy ; " or, 4th, of the " person who shall 
 give the order to the agent immediately employed to effect 
 it." 
 Construction The Courts of Law, giving this Act the most liberal con- 
 statute, struction, have held, — 1, that the general agents to whom a 
 foreign merchant had sent the bill of lading and also bill of 
 exchange drawn on them, had a right in their own names to 
 effect an insurance on the goods, and to recover as " con- 
 signees," within the meaning of the Act, alleging that they 
 had effected the policy as agents for the foreign merchant, 
 and averring the interest to be in him; — 2, that in conse- 
 quence of the subsequent ratification of the insurance by their 
 principal they might recover as "persons receiving the order 
 
 1 Pray v. Edie, 1 T. Kep. 313. 16 ; Cox v. Veancy, 1 T. Eep. 464. 
 
 » "Wilton V. Eeatson, 1 Park, Ies. ' 28 Geo. 3, o. 56; post, Appendix. 
 
CHAP. HI.] OF ASSIGNEES. 109 
 
 to efEeot the insuranoa " within the meaning of the Act ;— 3, 
 that as the plaintiffs had employed the broker to effect the 
 policy, they might recover under the same count, as " persons 
 giving the order to make the insurance," within the meaning 
 of the Act ; — and 4, that as they had accepted and paid a bill 
 drawn by their principal upon them on the security of the 
 bills of lading, they were " parties interested," and to that 
 extent .entitled to recover on the second count of the declara- 
 tion, averring the interest to be in them, and the policy to 
 be on their own account.^ ^ 
 
 It is not necessary to add the word " agent " or any other 
 description to the name of the broker in the policy itself ; ^ 
 moreover, an agent for a limited purpose is as much within 
 the Act as a general agent.' Where the policy'was in the 
 names of the parties really interested, but named them merely 
 as the " trustees of Messrs. A.B. & Co.," this was considered 
 as an insertion " of their usual style and firm of dealing " 
 under the Act.* 
 
 As an instance of ratification, the following case is cited; Hagedom ». 
 A policy made in London through a broker, by orders of 
 Hagedom, in the usual form, " as well in his own name as 
 for and in the name and names of all whom it may con- 
 cern," was effected for Schroeder, a foreign merchant, who 
 had given him no previous authority for that purpose, and 
 who did not do any act to adopt the policy till nearly two 
 years after it was effected ; and then, long after the loss had 
 occurred, he wrote to Hagedom " hoping " that he had settled 
 the loss with the underwriters on the policy in question :--- 
 such adoption was held by Lord EUenborough and the rest 
 of the Court to be equivalent to a previous authority to 
 
 ' "Wolff «. Homoastle, 1 B. & P. ° Hagedorn v. Oliverson, 2 M. & 
 
 316. See the discussion in Ebsworth Sel. 479, decided the year after Bell ». 
 
 V. Alliance Mar. Ins. Co., L. B., 8 Janaon, 1 M, &Sel. 203, in. which th3 
 
 C. P. 596 ; and ante, p. 79, note 2. same learned judge had thrown doubt 
 
 * De Vignier v. Swanson, 1 B. & upon the principle here acted upon, 
 P. 346 n. whether it was sufficient under the 
 
 3 BeE V. Gilson, 1 B. & P. 345. statute. 
 
 * Hibbert v. Martin, I Camp. 538. 
 
110 
 
 INSURABI,E INTEREST 
 
 [part I. 
 
 Besnlt. 
 
 Who are 
 covered by 
 this clause. 
 
 The intention 
 of the party 
 directing the 
 insurance to 
 be effected is 
 the test. 
 
 Of course, ratification of what lias previously been done 
 implies knowledge of it. But the party for whom the in- 
 surance was intended cannot be presumed, merely from any 
 after authority to insure, to have adopted the previous 
 iusurance, unless it be also proved that at the time of giving 
 such authority he knew as a fact that the prior insurance 
 had been made. This is so plain a principle that it requires 
 no authority to enforce ; yet it is all that was really decided 
 in the case of Bell v. Janson.^ 
 
 Such, then, having been the wise latitude of the interpre- 
 tation adopted by the Courts, the statute has been reduced 
 to a mere prohibition against policies in blank. 
 
 Questions have been raised as to the parties who may avail 
 themselves of the very broad and comprehensive terms of this 
 clause. In the first place, it is clear they must be persons 
 who may lawfully be insured. In the next place, they must 
 be persons who, at some time or other during the risk, have 
 an insurable interest in the property, the original parties 
 Eind their assignees. Beyond this it must be shown, that 
 the person giving the order to effect the insurance either 
 intended it for their benefit, or, at all events, did not intend 
 it exclusively for the benefit of others, having a conflicting 
 or inconsistent interest, but that it was meant to apply 
 generally, so as to cover the interest of those who should 
 ultimately appear concerned ; if this be shown, a subsequent 
 adoption of the policy by the parties so intended to be insured, 
 or so appearing ultimately concerned in interest, will be held 
 equivalent to a previous order, and entitle them, under the 
 words of the general clause, to avail themselves of the benefit 
 of the insurance. 
 
 The intention, at the time, of the party who directs the 
 insurance to be effected, is the great point to be ascertained 
 in determining whose interests the policy can be applied to 
 protect ; and this point is to be ascertained by the verdict of 
 a jury on the evidence adduced in. the cause.^ 
 
 > 1 M. & Sel. 202. 
 
 2 Grant v. HiU, 4 Taunt. 380 ; 
 
 Irving .1!. Eichaidson, 2 B. & Ad. 
 193. 
 
CHAP. III.] or ASSIGNEES. Ill 
 
 Where the intention of the party directing the insurance 
 is to embrace the interests of any person whatever who may 
 ultimately appear to be concerned, there can be no doubt 
 that any person coming within that category, who subse- 
 quently chooses to adopt the policy, may obtain the benefit 
 of it. Thus, where a prize agent abroad, who at the time Eouth ». 
 did not know to whom the prize would ultimately pass, °™l'^°°* 
 wrote directions to this country for the insurance to be made 
 for the benefit of those concerned, and it ultimately turned 
 out that the Crown had an insurable interest, and had 
 adopted the insurance by an Order in Council, it was held 
 that the nominal plaintiffs might recover in an action on the 
 policy averring interest in the Crown alone.^ In a former 
 action on the same policy, it having been stated as a fact, 
 in the special case on which the argument proceeded, that 
 the policy had been in reality effected on account of the 
 captors, the plaintiffs failed, because the Court were of 
 opinion that the captors had no insurable interest, and they 
 considered themselves precluded, by the statement in the 
 special case, from applying the benefit of the poKcy to any 
 other parties than those for whom alone it was found to have 
 been effected.^ 
 
 So where a party had insured 3700^. on a ship in which Irving «. 
 he was interested only as mortgagee to the extent of 900/., 
 Lord Tenter den left it to the jury to say, on the evidence, 
 whether they thought he intended by the insurance to cover 
 his own interest only, as mortgagee, or that also of the mort- 
 gagor. The jury having found that he meant only to insure 
 his own interest, the Court would not permit the policy to 
 be extended, by virtue of the general clause, so as to cover 
 the interest of the mortgagor.' 
 
 On the contrary, where an insurance agent, being unable, 
 to effect such a policy as the plaintiff required, indorsed the 
 risk on his own general policy, it was held that the plaintiff 
 
 1 Routh. V. Thompson, 13 East, ^ Irving >. Richardson, 2 B. & Ad. 
 
 274. 193. 
 
 « Ihid. 11 East, 428. 
 
112 
 
 INSURABLE INTEREST 
 
 [part I. 
 
 could not recover under it, as it had not been effected on Ma 
 behalf, or even adopted by him as his after the indorsement 
 had been made ; the plaintiff was no party to the contract, 
 and consequently could not put it in suit.^ 
 Eesult. The true rule, then, would appear to be, that any party to 
 
 whom an interest in the property insured "doth, may, or 
 shall appertain," at any time duriag the pendency of the 
 risk, may, under the general words, by subsequent adoption, 
 take advantage of the policy to protect such interest, unless 
 it appears from extrinsic evidence that the person directing 
 the policy to be effected intended at the time so to confine 
 the insurance as not to embrace such interest. 
 
 Assignment 
 of sea poli- 
 cies. 
 
 We have already said that an assignee in order to recover 
 on a policy must be assignee not only of the insurable 
 interest covered by it, but also of the policy by which it is 
 covered. A sea policy in its ordinary form, is not an incident 
 of the property insured, so as to follow its transmission from 
 hand to hand during the continuance of the risks ; the pur- 
 chaser of the property insured does not, by the simple fact of 
 such purchase, and without more, entitle himself also to the 
 protection of the policy. The contract of insurance is a 
 personal contract on the part of the underwriter to indemnify 
 the party originally insured against the consequences of the 
 perils insured against ; it is not a contract to indemnify any 
 one whatever who may become interested in the subject in- 
 sured during the continuance of the risks. In order to entitle 
 the purchaser of the insured property to the substantial 
 benefit of the insurance, there must have been an assignment 
 to him of the policy by the party originally insured, or, at 
 aU events, an agreement to assign it,'' or what in effect is 
 probably the same thing, to hold it for the benefit of the 
 purchaser. 
 
 ' "Watson V. Swann, 11 0. B., 
 N. S. 756; 31 L. J. (C. P.) 210. . 
 ' The remedy Is entirely at law, 
 
 and not in equity; De GhetofE v. 
 London Ass. Co., i Brown's Parl.^ 
 Cases, 436, Tomlin's ed. 
 
CHAP. ni.J OF ASSIGNEES. 113 
 
 A valid assignment before loss supposes the oo-existence of CoDditiona of 
 
 11 , 1 . _ , valid assign- 
 
 three things at the time of assignment: — (1) an assignable meut before 
 
 interest within the meaning of the policy in the assignor : °^^" 
 (2) the continuance of the risk insured in the policy ; (3) an 
 insurable interest in the subject matter of the policy vested 
 in the assignee and exposed to the perils during the risk in 
 the policy. 
 
 A cargo of linseed was insured from Constantinople to a 
 port of call and discharge in the United Kingdom to be 
 named, including all risk of craft or lighters to and from 
 the brig, each lighter to be considered as if separately insured. 
 Whilst it was on the voyage the cargo was sold in London to 
 the plaintiffs on the following terms: — To be delivered at 
 destined port in sound merchantable condition, and paid for 
 in fourteen days from being ready for delivery by cash, less 
 2J per cent, discount, or on seller's option on handing ship- 
 ping documents, less 5 per cent. The vessel to go to any 
 safe floating port in the United Kingdom. A safe floating 
 port was named. The ship had arrived there in February, 
 and the cargo was being landed in public lighters employed 
 by the plaintiffs, when one of the lighters with her cargo on 
 board was sunk, and would have been a loss within the 
 meaning of the risk in the policy. The policy was assigned 
 to the plaintiffs in the following June, and the assignment 
 indorsed on it in the following October. The plaintiffs sued 
 on it in their own names, but did not recover, because at the 
 time of the assignment the assignor had no assignable 
 interest, the same having ceased by delivery of the goods into 
 the plaintiffs' lighter. Until such delivery the plaintiffs were 
 incapable of an assignment of the policy, since the risk by the 
 terms of the sale note continued to be on the vendors until 
 then, and the same terms negatived any agreement to assign 
 the policy to them, which might otherwise have kept it alive 
 for their benefit when they had become capable of an 
 assignment.^ 
 
 1 North of England Oil Cake Co. v. Archangel Maritime Ins. Co., L. R., 
 10 Q. B. 249. 
 
 M. I 
 
114 
 
 I>-SURAT!LE INTEREST 
 
 [part I. 
 
 or in that of 
 another. 
 
 ie_ In case the policy be assigned to the person entitled 
 
 SsoTra^name, to the property thereby insured, such assignee may now, 
 by statute, sue on the policy in his own name ;^ and after a 
 loss has occurred, an assignment of the policy merely Tests 
 in the assignee a right under the statute to sue in his own 
 name for the loss.^ He may still, as formerly, sue in the 
 name of the assignor,' or of the brokers named in it as 
 effecting the policy. In this case, he sues subject to all 
 rights of defence that may be set up against the nominal 
 plaintiff;* and so now, when he sues in his own name by 
 virtue of the statute, he does so subject to those same rights, 
 they being expressly preserved by it to the defendant.' 
 
 Assignment of a policy of marine insurance has been 
 hitherto made either by writing indorsed on the policy, or 
 by delivery merely of the policy with intention to assign it. 
 
 Tt/Loie and 
 form of 
 assignment. 
 
 1 31 & 32 Vict. 0. 86, s. 1. 
 
 ^ Lloyd V. Fleming, and Lloyd v. 
 Spence, L. E., 7 Q. B. 299. 
 
 ^ Sparkes v. Marshall, 2 Bing. N. 
 C. 7C1 ; Gibson v. Winter, 5 B. & 
 Ad. 96. 
 
 * If inequitable defences, such as a 
 release by the nominal plaintiff after 
 assignment, bo set up, either the 
 plaintiff may set out the true facts 
 by way of reply ; De Pothonier v. 
 De Mattos, E. B. & E. 461 ; Lyall 
 V. Edwards, 6 H. & K. 337 ; or the 
 Court will interfere upon motion to 
 protect the rights of the parties; 
 Gibson v. Winter, 5 B. & Ad. 96, 
 and cases cited in the judgment ; 
 Bauerman v. Radenius, 2 Smith's 
 L. C. 
 
 ' 31 & 32 Vict. 0.86, s. 1. "When- 
 ever a policy of insurance on any ship, 
 or on any goods in any ship, or on any 
 freight, has been assigned so as to 
 pass the beneficial interest in such 
 policy to any person entitled to the 
 property thereby insured, the assignee 
 of such policy shall be entitled to sue 
 thereon in his own name ; and the 
 
 defendant in any action shall be en- 
 titled to make any defence which he 
 would have been entitled to make if 
 the said action had been brought in 
 the name of the person by whom or 
 for whose account the policy sued 
 upon was effected." The insurer 
 cannot maintain a right to set off a 
 debt due to him from the assignor of 
 the policy, because no such right of 
 set off against an unliquidated claim 
 is given by the Statutes of Set Off, 
 and this statute affecting procedure 
 only, does not alter the law of set 
 off; PeUas v. Neptune Mar. Ins. 
 Co., 5 C. P. D. 34 (0. A.). 
 
 The Judicature Act, 1873 (36 & 37 
 Vict. V. 66, s. 25, sub-Beot.6), making 
 choses in action assignable with a 
 complete transfer of remedies to the 
 assignee, does it with this reserva- 
 tion — "Subject to all equities which 
 would have been entitled to priority 
 over the right of the assignee." 
 Notice of the assignment is required 
 by this Act, which is not necessary 
 under the 31 & 32 Vict. c. 86. 
 
CHAP. III.] OF ASSIGNEES. 115 
 
 The recent statute, whilst giving a form of assignment, 
 neither requires that form to he followed, nor makes in- 
 dorsement imperative, not even as a condition of taking 
 advantage of its provisions.^ 
 
 When the assignment is. made hy indorsement, this may Time of in- 
 be put upon the hack of the instrument, either at the time 
 of the transfer of the property insured, or at any other time 
 between the mating of the policy and the bringing of the 
 action.^ 
 
 An absolute sale and transfer by the party originally Eights of 
 insured of all his interest in the insured property before the assignment of 
 loss, incapacitates him, or the party who has effected the ^4res™ 
 insurance for him, from recovering on the policy on his 
 a,ceount; nor can he, or the party who has so effected the 
 policy, sue thereon as trustee for the purchaser unless 
 there have been either an assignment of the policy, or 
 something which the Courts will consider as equivalent 
 thereto, or evidence of an agreement between the vendor 
 and vendee that the policy should be kept alive for the 
 benefit of the latter.^ 
 
 Thus, where a part owner of a ship, after insurance and Powles v. 
 before loss, had by bill of sale absolutely transferred his 
 
 ' 31 & 32 Vict. c. 86, s. 2. "It says Tindal, C. J., " of any principle 
 
 shall be lawful to make any assign- on which a change in the interest 
 
 ment of a policy of insurance, by in- after the policy is e£Eected, much less 
 
 dorsement on the policy in the words, after the loss has happened, can be 
 
 or to the effect set forth in the set up as an answer by the under- 
 
 Schedule hereto.' ' writers against a claim for such loss, ' ' 
 
 SoHEDtTLE. Formof Assignment. I, i. «., where there has been an assign- 
 
 A. B., of &c., do hereby assign unto ment of the policy. 
 C. T>. &o., his executors, admiuistra- The loss was generally believed in 
 
 tors, and assigns, the within policy December, 1831, the transfer was 
 
 of Assurance on the Ship, Freight, made in April, 1832. See the obser- 
 
 and the Goods therein oaiiied [or on vations of Lord Abinger, 11 M. & W. 
 
 Ship, <»■ Freight, 0)' Goods, as the ease 10, 12. 
 
 may fe]. ' Hibbert v. Garter, 1 T. E. 745 ; 
 
 In witness whereof, &c. Delaney v. Stoddart, ibid. 22 ; Powles 
 
 2 In Sparkes v. Marshall, 2 Bing. v. Innes, 11 M. & W. 10 ; North of 
 
 N. C. 761, the assignment was not England OU Cake Co. v. Archangel, 
 
 made till several months after the Maritime Ins. Co., L. E., 10 Q. B. 
 
 losBwasknown. "We are not aware," 249 ; stated ante, p. 113. 
 
 l2 
 
116; INSURABLE INTEKEST [PART I. 
 
 share to a third party who was an entire stranger to the 
 insurance, it was held that the plaintiffs, who had effected 
 the policy under his directions, could neither recover as his 
 . agents under a count averring interest in him — for he had 
 no interest left at the time of loss — nor as trustees for the 
 purchaser of his share, hecause there were no facts stated in 
 the case to warrant the inference that the policy had heen 
 handed over with the bill of sale, or that there had heen an 
 order on the broker to hand it over, or any agreement that 
 the policy should be kept alive for the purchaser's benefit.^ 
 
 Nothing short of an absolute transfer, however, of the in- 
 sured property will preclude the party originally insured from 
 recovering on the policy, for the benefit of the transferee, even 
 where there has been no assignment of the policy, and nothing 
 that amounts to it. 
 
 A mere pledge of the bill of lading as a collateral security, 
 does not divest the assured of his insurable interest in the 
 Hibbert v. property. Ker, having consigned a cargo of produce to this 
 country, and directed an insurance to be made thereon by the 
 plaintiffs, his correspondents in London, subsequently, but 
 before the policy was actually effected, assigned the bill of 
 lading over to Dellprat : there the Court of King's Bench, on 
 the assumption that the whole property passed by indorse- 
 ment of the bill of lading, held that the plaintiffs could not 
 recover on the policy; — not as agents for Ker, who had 
 passed away all his interest before the policy was effected, nor 
 as trustees for Dellprat, to whom there had been no transfer, 
 or, even if it had been valid, agreement to transfer it. Subse- 
 quently, however, on affidavits that Ker had no intention to 
 pass the property by indorsement of the bill of lading, but 
 only to bind it to the extent of the net proceeds, as a security 
 for Dellprat's debt, which debt had since been paid on Ker's- 
 behaK, a new trial was granted, and on the second trial, the 
 facts appearing to be so, the plaintiffs had a verdict for the 
 whole amount of the loss.^ 
 
 1 Powles V. Innes, 11 M. & "W. 10. aoc. Allston v. CampbeU, i Brown's- 
 
 2 Hibbert v. Carter, 1 T. R. 745 ; P. C. 476, Tomlin's ed. 
 
CHAP. Til.] OF ASSIGNEES. 117 
 
 If the person directed to insure has neglected, contrary to Assignor's 
 his duty, to do so, and meanwhile there is an ahsolute transfer a^ion°for 
 of the property, and suhsequently a loss, the principal, who ^^^^ *° 
 has directed a transfer also of his right under the supposed 
 policy, may sue, for this neglect to insure, as trustee for the 
 transferee.^ 
 
 Unless the policy (as is the case in several States of the Consent of 
 American Union) imposes such a condition, the consent of the necessary. 
 underwriter is never necessary to the validity of an assign- 
 ment of it.^ 
 
 Where a policy is assigned to the purchaser of the insured The London 
 property, it is usual to indorse on it a memorandum to the ditions. 
 effect that " the interest in this policy is transferred " to the 
 purchaser. When a floating cargo («'. e., a cargo at sea) is 
 sold in London, it is generally on what are called " The 
 London Floating Conditions," which comprise the delivery 
 over to the purchaser for his benefit of the policies which 
 have heen effected on the cargo, the understanding being 
 that it is insured to the full value, the price paid being all 
 the higher to include the amount paid by the vendor for 
 insurance. If upon such a transaction it be objected by the 
 buyer that the vendor has not performed the conditions of 
 the contract in consequence of delivering over policies appa- 
 rently short of the full value of the cargo, the question is one 
 depending so much upon fact that it ought to go to the 
 
 ' Delaney ». Stoddart, 1 T. E. 22. Boston (U. S.) policy contains a 
 
 ^ In Sparkes v. Marshall, 2 Bing. clause ' ' that an assignment shall 
 
 N. C. 761, it was found as a fact that avoid the policy without the preTious 
 
 the defendants did not assent to the consent in writing of the assurers ; " 
 
 transfer of the property or to the Duer, vol. ii. pp. 62, 63 : the Phila- 
 
 assignment of the policy. This delphia policy, " that no assignments 
 
 practice of merchants with regard to shall be TaKd unless the premium be 
 
 marine policies accounts for the ab- first paid or secured to the satisfaction 
 
 sence from the 31 & 32 Vict. c. 86, of the underwriters ; " ibid. pp. 68, 
 
 of any such provision as is to be 69. By the usage in Boston, if the 
 
 found in the Judicature Act, 1873, insurers consent to the assignment, 
 
 requiring notice to be given of the the assignee is entitled to exactly the 
 
 assignment of the chose in action. same extent of indemnity as the 
 
 See ante, p. 114, note 5. The party originally insured. 
 
H8 CO-EXISTING INSURABLE INTERESTS. [PART I. 
 
 jury.^ But where a cargo of wheat, still afloat, was sold at 
 a depreciated price, and the vendor indorsed over the policy 
 for so much only as would coyer the depreciated price, being 
 part merely of the swm insured in a valued poHoy, it was 
 held, as a matter of construction on the bought note taken 
 in connection with the existence of the policy at the time of 
 the contract, that the buyer was entitled to the policy for 
 the full sum at which the wheat was originally insured 
 under it.^ 
 
 Of co-exist- It is in this place, following closely after those paragraphs 
 Sferes^^and i^ which WO have been considering the right to insure cor- 
 independent relative Or co-existing interests in the same subject, that we 
 
 ought to advert to an opinion formed under what seems to 
 
 be mistaken for the sanction of high judicial authority, as to 
 the sum recoverable upon each of such policies irrespectively 
 and independently of the other. For instance, a mortgagor 
 and mortgagee of the same ship may each effect an insurance 
 on the vessel, and, if he pleases, each may cover the vessel to 
 her full value. The sum recoverable under each seems to be 
 such an amount as, when added to the other, would equal 
 the full value of the vessel, or equal their aggregate interest 
 not exceeding such full value. But the other opinion is, that 
 the aggregate amount recoverable under both policies may 
 exceed or even double the value of the ship;' and this 
 opinion is advanced under colour of the following statement 
 of a case iu the books : — 
 
 " Goods* were shipped by Meybohm of Petersburg to 
 Amyand of London on an agreement that the proceeds 
 should be applied in satisfaction of a balance due to the 
 latter. Meybohm assigned the bill of lading to Tamesz 
 of Petersburg, to apply the proceeds in satisfaction of a 
 
 1 Tamvaoov. Lucas, 1 B. &S. 185; ibid. 313. 
 30 L. J. (Q. B.) 231 ; in error, 3 B. ' 1 Phillips, Ins. uos. 373 and 311 ; 
 
 & S. 89 ; 31 L. J. (Q. B.) 296. 1 MarahaU, Ins. 142 and 102 ; 1 
 
 '' EaUi v. Universal Marine Ins. Amould (2iid ed.), 352. 
 Co., 31 L. J. (Ch.) 207; on appeal, * Cited from PhilUps, Ins. no. 373. 
 
CHAP. III.] CO-EXISTING INSUK.iBLE IKTEEESTS. 119 
 
 balance due to him ; the amount due to each being greater 
 than the value of the goods. Insurances were made in Lon- 
 don in behalf of each of them to the full amount of the 
 shipment, the underwriters on Tamesz's interest having 
 notice of insurances by other parties. In a suit on the 
 policy for Tamesz, Lord Mansfield and his associates gave 
 judgment for the full amount, on the ground that the 
 insurances were for dlEPerent parties on different interests, 
 namely, on the respective interests of Amyand and Tamesz, 
 and not on that of Meybohm." 
 
 Mr. Phillips, stating the same case elsewhere in the same 
 volume,! has it, " that though the biU of lading was indorsed 
 by Meybohm to Tamesz, another Eussian, the Court held 
 that Amyand had an insm-able interest in the goods." The 
 learned text- writer, by this mode of stating the case, incor- 
 rectly, as I hope to show, intimates clearly that in his opinion 
 the Court were prepared to give judgment for Amyand that 
 he also should recover the full amount of his insurance, 
 although thereby double the value of the goods must have 
 been abstracted from the pockets of the insurers. 
 
 Upon this it is to bo observed, that although there may be 
 co-existing liens to a greater amount than the value of the 
 subject, there cannot be, at the time of the loss, co-existing 
 insurable interests to an aggregate amount beyond that value. 
 If this be so, then beyond such insurable interest the policy 
 ceases to be a contract of indemnity, and the amount thus 
 in excess is irrecoverable. This conclusion is consonant with 
 that which must have been arrived at in a contest for the 
 goods themselves, supposing them to have survived the 
 voyage. Both could not have had them, and if both were 
 interested in them how could such aggregate interests have 
 exceeded the value of the goods?' 
 
 1 I Phillips, Ins. no. 311. This been ui their substance and eSeot 
 veryincorreotandunauthorized state- sustained by MeUish, L. J., in North 
 ment of the case was adopted by British and Mercantile Ins. Co. v. 
 Mr. Arnould. London, Liverpool and Globe Ins. 
 
 2 These observations have since Co., 5 Ch. D. 569, 583. 
 
120 CO-EXISTING INSURABLE INTERESTS. [PART I. 
 
 What was the state of facts in the case referred to ? Had 
 hoth Amyand and Tamesz co- existing insnrahle interests in 
 the goods in qTiestion ? Amyand, primd facie at the moment 
 of the shipment had an insurahle interest, and he was justi- 
 fied, therefore, in insuring on his own account. But Mey- 
 bohm held in his hand the power of diverting the goods 
 from Amyand, and exercised this power by indorsing the 
 bill of lading to Tamesz for a debt greater than the value 
 of the goods. That was the annihilation of any insurable 
 interest held by Amyand, without the intervention of any of 
 the perils insured against, and made his policy thenceforward 
 of no effect. Is this opinion supported or controverted by 
 what is attributed to the Court ? 
 
 The suit was by Tamesz upon his own policy as for a total 
 loss. Suggestion, however odd it may seem now-a-days, 
 made by the underwriters, defendants, that judgment should 
 go for only half the amount of their policy, because the same 
 goods were fully insured by a co-existing policy at that time 
 in the hands of Amyand. It is implied in this suggestion 
 that Amyand's policy had been made to cover Meybohm's 
 interest, and, consequently, that this and the policy in suit 
 were in effect upon the same interest, and therefore a double 
 insurance. In answer to this, the Court say, not that Amyand 
 had a then existing insurable interest, but that primd facie he 
 had at the time of effecting his policy a lien on the goods, 
 and that it was to cover that lien he had effected his policy ; 
 in other words, that it was not available for Meybohm, or any 
 one claiming through Meybohm's interest. This was all that 
 the Court had occasion to say, and all that they do say.^ As 
 for Amyand's policy, it was then worthless, because his in- 
 surable interest was gone. 
 
 It only remains to add, that whilst policies, like liens, may 
 overlie the subject, in numbers, to an aggregate amount 
 exceeding indefinitely the value of it, the right to recover 
 upon all of them together in respect of any one loss is 
 
 1 Godin V. London Ass. Co., 1 Burr. 489 ; I "W. Bl. 103 ; 2 Ken. 254. 
 
CHAP. III.J POLICY WITHOUT INTEREST. 121 
 
 restricted, hj the principle of indemnity that underlies the 
 contract, to the ascertained or agreed worth of the subject.^ 
 
 In much that has gone before "we have seen that an Persona with- 
 insurable interest in the subject insured is essential to the interest in 
 validity of the poHoy. As to property, however, which does ^'^tish^ "°* 
 
 not belong to her Majesty's subjects, there is a very important ■ 
 
 difference. Wager policies, the nature and effect of which 
 regarding British property we shall yet have to consider, 
 were received by our Courts as legal and valid, notwith- 
 standing the instrument on the face of it disclaimed any 
 interest in the property on the part of the assured. The 
 19 Greo. 2, c. 37, followed upon this, declaring such a policy to 
 be illegal and invalid as regards " ships and goods " the pro- 
 perty of her Majesty's subjects. Whether the Act extended 
 to property belonging to aKens was raised as a question in 
 respect of a French ship, and was determined by our Courts 
 in the negative.^ 
 
 Whatever may have been the motive of the British Legisla- 
 ture for this remarkable exception, — whether it was out of 
 consideration for the expense that must have been incurred 
 in bringing evidence from abroad to prove insurable interest 
 in foreign ships and goods, as is supposed in the case referred 
 to,' or whether, as is more natural, it was that our govern- 
 ment had not the same motive for suppressing a mode of 
 insurance that led to the " fraudulent loss, destruction, and 
 capture of ships and cargoes " belonging to foreigners, the 
 law, unless altered by the 8 & 9 Vict. c. 109,* is now 
 that an insurance on such property is valid in our Courts 
 although there be on the face of the policy a disclaimer of 
 interest. 
 
 ' How this restriction is worked 315, a.d. 1780. 
 
 out in the final result of competing ' Ibid. 
 
 claims and actions thereon, may be * Sect. 18 is, "All contracts or 
 
 seen in the case referred to above, agreements, whether by parole or in 
 
 6 Oh. D. 569. writing, by way of gaming or wager - 
 
 2 Thellussou v. Fletcher, 1 Doug. ing, shall be null and void." 
 
122 POUCY WITHOUT INTEEEST. [PARX I. 
 
 The poKoy, A very important distinction is here to be observed. Since 
 
 statement of ^be statute above referred to was passed, it is once more a 
 
 claim on presumption of Englisb law tbat every policy of insurance 
 
 pressly nega- not containing on tbe face of it a disclaimer of interest in 
 
 tbe subject insured is a contract of indemnity on wbicb none 
 
 can recover wbo was not possessed of an insurable interest 
 
 in tbe property at tbe time of tbe loss. It accordingly soon 
 
 became a question wbetber a policy, in tbe common form, 
 
 and baving no words on tbe face of it to sbow it not to be 
 
 an interest policy, could, since tbe Act, be effected on foreign 
 
 sbips or goods by a party baving no interest, and be 
 
 recovered on by sucb party witbout any averment or proof of 
 
 interest. 
 
 Lord Kenyon was disposed to tbink tbat it could be ; and 
 wben tbe case of Craufurd v. Hunter came before bim in tbe 
 King's Bencb, in wbicb a policy in tbe common form bad 
 been effected on certain Dutcb sbips and cargoes, bis Lord- 
 sbip and tbe rest of tbe Court overruled a demurrer to tbe 
 fourtb count of tbe declaration, wbicb, after alleging tbat tbe 
 sbips, &c., did not belong to bis Majesty or any of bis 
 Cousins r. subjects, omitted all averment of interest.^ Wben tbe ques- 
 tion was raised before tbe same Court in tbe subsequent case 
 of Nantes r. Tbompson,^ tbey felt bound by tbe previous 
 decision, and gave judgment tbe same way ; but, aiter tbe 
 famous argument in tbe House of Lords in tbe case of Lucena 
 V. Craufurd, tbis judgment of tbe Court of King's Bencb was 
 brougbt upon writ of error before tbe Excbequer Cbamber 
 and solemnly overruled, and tbe law upon tbis point was 
 tbereby establisbed to be tbat every policy wbicb does not 
 on tbe face of it contain words sbowing it to be a wager 
 policy must be taken to be a policy on interest ; and tbat no 
 sucb policy can be validly effected, eitber on foreign or 
 Britisb sbips, except by a party baving interest, wbo in order 
 to recover on it must aver in tbe declaration and prove at 
 tbe trial tbat be bas sucb interest.' 
 
 1 Craufurd v. Himter, 8 T. R. 13. 385. 
 
 2 Nantes v. Thompson, 2 East, ^ Cousins v. Nantes, 3 Taunt. 513. 
 
CHAP. III.] PAUTIES UNASSVllAULE. 123 
 
 Of persons wlio may not be assured there are the three Who may not 
 following classes : 1. As to British property, those who have '— 
 
 no insurable interest ; 2. As to foreign property, those who 
 insure under a form of policy which implies that they have 
 insurable interest when they have none ; and 3. As to both 
 British and foreign property, those who are alien enemies. 
 We have already treated of the second class, and shall have 
 occasion again to refer to it when treating of the first. 
 
 In treating of the first of these classes we are obliged to Mrst. Those 
 offer a brief history of the wager policy. insurable 
 
 A wager policy is distinguishable by the form of the g'^^^^* ^ 
 instrument, as well as the nature of the contract, since the property. 
 
 parties to it, by express terms, disclaim, on the face of it, the Wager 
 
 intention of making a contract of indemnity. Accordingly, ^° °'®^' 
 
 by one or other of the following clauses written on the face 
 
 of it, " Interest or no interest," or " Without further proof 
 
 of interest than the policy," or " This policy to be deenied 
 
 sufficient proof of interest," or other similar terms, it purports 
 
 to bind the underwriter to pay a sum of roioney irrespective 
 
 of any interest in the assured ; ^ and as nothing in these cases 
 
 is actually at risk which can be sea-damaged or abandoned, 
 
 it frequently also contains the' clause, " Free of all average, 
 
 and without benefit of salvage." 
 
 Whether such policies were legal at common law is now a At one time 
 question of no moment. It will be sufficient to say, that "^^"^ ^^ 
 long prior to the 19 Greo. 2, c. 37, and contrary to the older 
 determinations, they had been held by our Courts to be valid 
 contracts of insurance.^ They stood even then contrasted at 
 common law with a policy in the common form, which was, 
 
 1 See the judgment of Best, C. J., a.d. 1710 ; De Paiba v. Ludlow, 1 
 
 in Murphy v. Bell, i Bing. 669— Comyns, 361, a.d. 1721 ; Dean v. 
 
 572. Decker, 2 Str. 1250, a.d. 1746. They 
 
 ' This point was established by were also recognized as legal by Lord 
 
 Asseviedo v. Cambridge, 10 Mod. 77, Mansfield. 
 
>;. 37. 
 
 124 ^VAGER POLICIES. [PAllT I. 
 
 as it still is, considered to be a contract of indemnity only, 
 upon which the assured could not recover without an interest 
 capable of proof.^ 
 
 But about the year 1746, the Legislature, wisely consider- 
 ing it to be against the policy of this country, as a great 
 maritime state, to permit parties who had no interest in the 
 safety of British ships and cargoes to give themselves, by 
 means of these policies, a direct interest in their loss, inter- 
 fered by the 19 Geo. 2, c. 37, to suppress the practice. 
 ]9 Geo. 2, The preamble of that Act in substance recites that "the 
 
 making of insurances 'interest or no interest,' or 'without 
 further proof of interest than the policy,' had been found 
 by experience" to be productive of such pernicious prac- 
 tices as the " fraudulent loss, destruction, or capture of great 
 numbers of ships with their cargoes;" the "encouragement 
 of the exportation of wool, and the carrying on of many 
 other prohibited and clandestine trades, which, by means 
 of such insurances, have been concealed ; " and the intro- 
 duction of " a mischievous kind of gaming, under pretence 
 of insuring against the risk on shipping and fair trade." 
 As Best, C. J., observes, " gaming was by no means the Eole 
 evil which the Legislature, by this Act, proposed to remedy ; 
 but its object also, and perhaps chiefly, was to prevent 
 policies in this form from being ' used to protect persons 
 who were carrying on an illegal traffic, or made the means 
 of profiting by the wilful destruction and capture of 
 ships.'" 2 
 
 With these views, therefore, the statute proceeded to enact, 
 
 » For this latter positioD, see the 3 B. & P. 101, and is now finally 
 
 observations of Lord Eldon in Lucena established by the judgment of the 
 
 V. Oraufuid, 2 B. & P. N. R. 321, Exchequer Chamber, in Cousins r. 
 
 dissenting from the dictum of Lord Nantes, 3 Taunt. 513, in which the 
 
 Kenyon in Craufurd v. Hunter, 8 T. dictum of Lord Kenyon, and the 
 
 R. 1 3, 23, in which that learned Judge case of Nantes v. Thompson, 2 East, 
 
 had said " that a person at common 386, founded upon it, were decisively 
 
 law might have insured without in- overruled. 
 
 terest." The position, as stated in ^ Per Best, C. J., in Murphy v. 
 
 the text, was laid down as law by Bell, 4 Bing. 569, 570. 
 Chambre, J., in Lucena f. Craufurd, 
 
CHAP, in.] WAGER POLICIES. 123 
 
 by sect. 1, " That no insurance shall be made on any ship or Wager 
 ships belonging to his Majesty or any of his subjects, or on British p™. 
 any goods or effects laden on board such ships, ' interest or ^^'^'^ ™''^- 
 no interest,' or ' without further proof of interest than the 
 policy,' or by way of gaming or wagering, or ' without benefit 
 of salvage to the insurer,' and that every such insurance shall 
 be void." 
 
 The prohibition contained in this section is confined to This pro- 
 British, and does not extend to foreign ships and cargoes, extended to 
 Hence, where a policy was effected, after the Act, on goods ^^^^f^ ^^°' 
 on board three French ships, " the policy to be deemed suffi- 
 cient proof of interest in case of loss," this was held not to 
 be within the statute, and therefore good, as a wager policy, 
 at common law.^ 
 
 The reason generally given for not extending the Act to 
 foreign shipping is, the difficulty and expense of bringing 
 witnesses from abroad to prove the interest.^ But this reason 
 seems inadequate ; and a more natural explanation appears 
 to be, that our government had not the same motive for sup- 
 pressing a mode of insurance that led to the " fraudulent loss, 
 destruction, and capture of ships and cargoes"^ belonging to 
 foreigners, as it had in the case of ships and cargoes belong- 
 ing to its own subjects. 
 
 Whatever might have been the motive, the fact was, that 
 all insurances on foreign ships, and goods loaded on board of 
 them, were left as before, and therefore wager policies, pro- 
 perly so called, continued to be legal still, when effected on 
 foreign ships and goods. 
 
 The effect of this contrast was to raise the question. In such ease 
 ■,,1 -i.'ji p t 1 ' 1 the policies 
 
 whether a poucy, m the common form and having no words must negative 
 
 on the face of it to show it not to be an interest policy, "^t^^^est. 
 
 could, since the Act, be effected on foreign ships or goods 
 
 by a party having no interest, and be recovered on by such 
 
 1 Thellusson i: Fletcher, 1 Doug. v. Craufurd, 2 B. & P. N. E. 322. 
 315, A.D. 1780. * Preamble to 19 Geo. 2, c. 37. 
 
 ^ Ibid. Lord Eldon in Luoena 
 
126 POLICY IMPLIES INTEREST. [pAUT I. 
 
 party without any averment or proof of interest ? — in other 
 words, whether such a policy was legal and available at 
 common law for a person without interest. The decision of 
 the Exchequer Chamher was, as we have seen,^ in the nega- 
 tive on hoth points. 
 
 The result is, that wager policies, properly so called, that 
 is, which appear on the face of them to be so, might at 
 common law, since the 19 Geo. 2, c. 37, be legally effected 
 on foreign ships, and recovered on without proof of interest ; 
 and the law is so still, unless the statute against wagers is 
 to be construed as comprehending this contract.^ 
 
 Policy not But other policies not disclaiming interest, so necessarily 
 
 disolaimmg imply interest at common law, that they cannot be legally" 
 
 necessarily effected either on foreign or British ships, except by a party 
 implies it. . . . . . , . 
 
 having interest ; nor is it possible to recover by action upon 
 
 them without averment of interest, and proof thereof when 
 that averment is traversed. 
 Cases on this Hence, where, in consideration of 201. to be paid to a 
 ^°'" ■ . passenger in the same ship, at the next port she should 
 reach, it was agreed that if she did not save her passage to 
 China, the passenger should pay 1000^. within one month 
 after her arrival in the river Thames : this agreement was 
 held void, as being a contract by way of gaming or wagering, 
 within the first section of the 19 Geo. 2, c. 37 ; notwithstand- 
 ing it appeared that some goods were on board belonging to 
 one of the parties which were liable to suffer by the loss of 
 the season.^ ' 
 Lowry ». Lowry, having advanced to Lawson, the captain of an East 
 
 India ship, 26,000^. on the security of a common money bond, 
 effected a policy for the amount, which appeared on the face 
 of it to be "on Oaptaitt Lawson's bond for 26,000^."— in 
 
 Ante, p. 122. hy ymy of gaming or wagering, shall 
 
 'i The8&9 Viot.c. 109, s. 18,pro- be null and void." 
 
 vidmg that "all contracts or agree- s Kent v. Bird, 2 Co-wp. 683. 
 ments, whether byparole or in writing, 
 
 Bourdien. 
 
CHAP. III.J POLICY IMPLIES INTEREST. 127 
 
 case of loss no other proof of interest to be required than the 
 bond, warranted free of average, and without benefit of 
 salvage to the insurer, — Lord Mansfield, Ashurst, J., and 
 BuUer, J., held, that this was void, as a gaining policy under 
 the statute. " The plaintiffs," observed his Lordship, " say 
 ' We mean to game, but we give our reason for it : Captain 
 Lawson owes us a sum of money, and we want to be secure 
 in case he should not be in a situation to pay us.' It was a 
 hedge ; but they had no interest : for if the ship had been 
 lost, and the underwriters had paid, still the plaintiffs would 
 have been entitled to recover the amount of the bond from 
 Lawson." 1 
 
 Money expended in reclaiming ship and cargo after KulenKemp 
 capture, which is ordered to be a charge on the cargo, does 
 not give the owners of cargo an insurable interest in the 
 ship ; and a policy, therefore, which appears on the face of- 
 it to be effected on money so expended, " the loss to be paid, 
 if the ship does not arrive, without further proof of interest 
 than the policy, warranted free of all average, and without 
 benefit of salvage," is a wager policy, and void under the 
 statute.^ 
 
 Any policy which bears on the face of it to be made. Rule. 
 " interest or no interest," " without further proof of interest 
 than the policy," or " without benefit of salvage to the 
 insurer," although perhaps not such as would strictly fall 
 within the description of a gaming or wageriag contract, is 
 by the statute void. 
 
 A policy of insurance stipulated "that the goods insured Murphy*, 
 were and should be valued at five tierces coffee, valued 
 at 211. per tierce, say 135/., the policy to be deemed sufficient 
 proof of interest," was held void under the statute, the 
 object of which was to' prevent insurances in which the policy 
 was to be proof, not of the amount, but of the existence of 
 interest.^ 
 
 1 Lo-wry ». Bourdieu, 2 Doug. 468. 304. 
 
 ' Kulen Kemp v. Vigne, 1 T. E. ' Murphy v. Bell, 4 Bing. 567. 
 
128 WAGER POLICIES. [PART I. 
 
 Profits. The Act in terms makes' mention of " ships and goods " 
 
 only, but "profits" are substantially an interest in goods, 
 and consequently a policy "on profit on cotton valued at 
 350^., and in case of loss or accident the said policy to be 
 considered sufficient proof of interest, &c.," was held to be 
 an insurance within the Act, and void accordingly, notwith- 
 standing there was an actually existing interest to the full 
 amount of the policy.^ 
 
 Valued Yalued policies were at one time thought to be within the 
 
 Act, as offering the means of perpetrating frauds in the 
 wilful loss or destruction of ships and cargoes by means of 
 policies which might fix extravagant and fictitious values on 
 the subjects insured. There is a clear distinction, however, 
 between wager and valued policies. If the policy dispenses 
 with all proof of the existence of interest, it is a wager poHcy 
 and void within the Act ; if the policy contains on the face 
 of it no such dispensation, but whilst saving the plaintiff the 
 trouble of proving the amount of his interest, leaves him 
 liable to show an insurable interest, it is a valued policy and 
 good.^ 
 
 If indeed there appears to be an enormous disproportion 
 between the real value of the articles insured and that 
 inserted in the policy as their agreed value between the 
 parties — in the words of Lord Mansfield, " if it should come 
 out in proof that a man has insured 2000/. and had interest 
 on board to the value of a cable only " — such over-valuation 
 might be received as evidence of fraud which would avoid 
 the policy.* 
 
 ' Smith V. Reynolds, 25 L. J. effect, had of his own accord inserted 
 
 (Ex.) 337 ; 1 H. & N. 221. Accord. the fatal stipulation " without benefit 
 
 Allkina v. Jupe, 2 C. P. D. 375 ; 46 of salvage." 
 
 li. J. (0. P.) 824; De Mattos v. « Lewis v. Rucker, 2 Burr. 1167, 
 
 North, L. R., 3 Exch. 185; and 1171; Murphy n. Bell, 4 Bing. 667, 
 
 Mortimer v. Broadwood, 17 W. Rep. 572. See the discussion in Barker v'.- 
 
 (C. P.) 153 ; in the last case the same Janson, L. R., 3 0. P. 303. 
 
 ruling prevailed notwithstanding the ^ Lewis v. Rucker, supra ; Barker 
 
 insurer, without instructions to that v. Janson, supra. 
 
CHAP. III.] -WAGER POLICIES, 129 
 
 From this proMMtion of all wager policies on British ships Statutory 
 and goods, the statute by way of exception provides (sect. 2) , ^"""^P*'""^- 
 *' That insurances on private ships of war, fitted out by any Sect. 2. 
 of his Majesty's subjects solely to cruise against his enemies, 
 may be made by or for the owners thereof, interest or no 
 interest, free of average, and without benefit of salvage to the 
 insurer." The reason of this exception is stated by Best, 0. J., 
 to be, " that privateers carry no cargoes, and their crews are 
 composed of more persons than it would be safe to trust with 
 the secret that the ships were to be wilfully destroyed, or 
 purposely exposed to capture." ^ 
 
 Sect. 3 provides, " That any effects from any ports or places Sect. 3. 
 in Europe and America, in the possession of the Crowns of 
 Spain and Portugal, may be insured in the same manner as 
 if the Act had not been made." The reason assigned for this 
 exception by Best, C. J., is that ships going to the territories 
 of Spain or Portugal were not likely to export wool (a thing 
 much dreaded by the English government at the time the 
 Act passed, and expressly mentioned in the preamble as one 
 of the mischiefs that had been encouraged by permitting 
 Tvager policies), nor other raw materials, or to import any 
 articles that could interfere with the monopoly of British 
 manufactures.^ Another, and perhaps more cogent, reason 
 appears to have been the desire to facilitate by this means 
 the smuggling trade, especially in bullion, carried on by our 
 merchants with the Spanish and Portuguese colonies.' 
 
 Sect. 6 provides, " That in all actions brought by the Sect. 6. 
 insured, the plaintiff, or his attorney or agent, shall within 
 fifteen days after he shall be required so to do in writing by 
 the defendant or his attorney, declare in writing what sum 
 or sums he has insured or caused to be insured in the whole, 
 and what sums he has borrowed at respondentia or bottomry 
 for the voyage, or any part of the voyage in question." 
 
 1 4 Bing. 667, 570. 3 Kent, Com. 265- See the case of 
 
 s Ibid. Da Costa v. Firth, 4 Burr. 1966. 
 3 1 Marshall, Ins. 124, note (a) ; 
 M. K 
 
130 
 
 WAGER POLICIES. 
 
 [part I. 
 
 In France. 
 
 Wager poli- It Is not Only in our own country that insurances by way 
 counSiear^^ of wager are held illegal : in France, in Grermany, in Hol- 
 land, in the greater part of the North of Europe, in most of 
 the United States of America, their illegality is equally 
 established by general mercantile usage or positive ordi- 
 nance. 
 
 In France, though not prohibited in express terms, they 
 have always been held unlawful, as opposed to the spirit of 
 the Ordonnance de la Marine,^ and the text of the Code 
 Civil.^ When the provisions of the Code de Commerce were 
 under the consideration of the French Legislature, an attempt 
 was made to procure the protection of the law for this species 
 of contract, but it was immediately checked by the indignant 
 exclamation of the Imperial orator, that "it was not for a 
 great nation like France to legalize the immorality of gam- 
 bling contracts (des parts). "^ 
 
 The legislative prohibition of these contracts in the dif- 
 ferent maritime states of Holland and the North of Europe 
 may be found in Magens* and in Benecke.' In Germany 
 the prohibition by the German Code is implied rather than 
 expressed.^ 
 
 In Italy they were expressly prohibited by the Ordinances 
 of Genoa and Yenice ;^ in the ports of Tuscany and Naples 
 they were allowed ; and they were also practised in Portugal.' 
 By the new Commercial Code of the kingdom of Italy, they 
 are illegal.^ 
 
 In Grermany, 
 Holland, &o. 
 
 In Italy, &o. 
 
 1 Liv. 3, t. 6, art. 22, 23; 2 Valin, 
 73. 
 
 2 Code Cir., art. 1965, 1960, which 
 declare all wagers illegal. The Code 
 de Commerce, says Boulay-Paty, can- 
 not be more indulgent on this point 
 than the Code Civil ; Droit Mar. 
 torn. iii. 238. 
 
 ' See Estrangin, note to Pothier, 
 Traite d' Assurance, p. 14 ; Boulay- 
 Paty, ubi supra ; note by M. Becaue 
 to his edition of Valin, torn. ii. 
 p. 285. 
 
 • 2 Magens, Ord. of Middleburgh, 
 
 p. 70; Koenigsburgh, p. 88; Amster- 
 dam, p. 132 ; Rotterdam, p. 189 ; 
 Stockholm, p. 257, &c., under the 
 respectiye titles of the different 
 states. 
 
 = 1 Nolte's Benecke, 240, 241 et 
 seq. In Prussia they are prohibited 
 by the Code, art. 1995, tit. Assur- 
 ance ; ibid. 295. 
 
 " German Code, art. 782, Wendt. 
 
 ' 1 Nolte's Benecke, 240. 
 
 8 Ibid. 
 
 " Codioe di Commercio, art. 446, 
 450. 
 
CHAP. 111.] ALIEN ENEMIES. 131 
 
 In the greater number of the United States of America In the trmted 
 these policies, though not prohibited by positive statute, have ^'*^'' 
 invariably been considered illegal.^ In New York, however, 
 till a very recent period, they were held legal;" but are now 
 prohibited by the revised statutes of that State.' 
 
 For the sake of order we here refer to a decision twice Second, 
 already ia the course of a few pages adverted to, definitely out insurable 
 discriminating the second class of those who may not be ™*^'^^°*' 
 assured, namely, persons affecting to contract by policy for 
 an indemnity in respect of foreign ships or cargoes in which 
 they have no insurable interest. Persons so situated may 
 effect a valid policy in respect of such property, provided the 
 policy expressly negative the possession of insurable interest ; 
 but in the absence of such express negation any policy effected 
 by them is presumed by our law to be upon interest capable 
 of proof and necessarily averred in the statement of claim ; 
 and since ex hypothesi they possess no such interest the policy 
 is invalid.* 
 
 The third class of those who may not be assured, being Third. Alien 
 
 alien enemies, comprises all persons who by domicil, whether . ' , 
 
 of origin or of acquisition, belong to a state which is actually 
 at war with that of the insurer. This restriction upon 
 insurances for the benefit of such persons is an obvious 
 consequence of that universally recognized principle in the 
 law of nations, that the object of maritime law is the de- 
 struction of the enemy's commerce and navigation, directly 
 aimed at his naval power, and indirectly affecting his general 
 resources for war. Marine insurance consequently under- 
 written by our countrymen upon his property would be a 
 
 1 1 Phillips, Ins. nos. 5, 7, 211 ; 3 vol. i. p. 662, ss. 8, 9, 10, cited in 
 Kent, Com. 277. Kent's Com., ubi supra. 
 
 2 Juhel V. Church, 2 Johnson's * Ante, p. 126 ; Cousins v. Nantes, 
 Cases, 333. 3 Taunt. 513. 
 
 3 New York Revised Statutes, 
 
 k2 
 
132 
 
 PARTIES UNASSURABLE. 
 
 [part I. 
 
 Supposed 
 legality of 
 insuring 
 enemy's pro- 
 perty. 
 
 Temporary 
 prohibition by 
 statute. 
 
 Illegality of 
 it determined 
 at law. 
 
 frustration of these efforts at our own cost. " Hostium enim 
 perioula in se susoipere, quid est aliud quam eorum commeroia 
 maritima promovere ? " ^ 
 
 It was for a long time, however, an unsettled question in 
 English law, whether the insurance of enemy's property was 
 or was not illegal at common law. Lord Hardwicke, in 1749, 
 said it had never heen declared in our Courts to be unlawful;^ 
 and Lord Mansfield supported the practice, not apparently 
 upon any principles of law,' but on fancied grounds of expe- 
 diency, that the English underwriters would gain more in 
 premiums than they would lose by captures;* but Valin, 
 followed by Pothier and Emerigon, declares that owing to 
 the permission of this practice in England, one part of our 
 nation restored to theirs, by the effect of insurances, what the 
 other part took from them by arms and the rights of war.' 
 
 The English Legislature afterwards by two temporary 
 statutes, one in 1748,'' and another in 1792,^ prohibited the 
 insurance of any ships or merchandise belonging to France 
 during the wars then pending with that nation. 
 
 At length the Courts of Westminster Hall took the whole 
 subject into consideration upon the principles of iuternational 
 law, and established by a long course of decisions under 
 Lord Kenyon, Lord Alvanley, and Lord EUenborough, that 
 such insurances were not only illegal and void, but repugnant 
 to every principle of public policy.^ 
 
 ' Bynkershoek, Qusest. Jut. Publ., 
 lib. 1, 0. 21. 
 
 ■ Henkle v. Eoyal Exch. Co., 1 
 Vos. sen. 317. 
 
 ' Buller, J., said that be never 
 ooald get bim to give any opinion as 
 to tbeir legality ; BeU«). Gilson, IB. 
 & P. 345, 354. 
 
 * Planobe -i/. Fletcher, 1 Dougl. 
 251 ; Gist i>. Mason, 1 T. R. 84 ; 
 Lavabre v. Wilson, 1 Dougl. 284. 
 
 5 2 Valm, liv. iii. t. vi. arts. 3, 39 
 {he is speaking of the war terminated 
 bythePeaoeof Paris, 1763) ; Emeri- 
 gon, u. iv. s. 9, p. 128. Boulay-Paty 
 
 says, that in the present state of 
 Erenoh law such insurances are il- 
 legal ; Comment on Emerigon, vol. i. 
 p. 131. 
 
 « 21 Geo. 2, 0. 4. 
 
 ' 33 G^o. 3, c. 27. 
 
 " Brandon v. Nesbitt, 6 T. R. 23 ; 
 Bristow V. Towers, ibid. 35 ; Furtado 
 V. Rogers, 3 B. & P. 191 ; Eellner v. 
 Le Mesurier, 4 East, 396 ; Gamba v. 
 Le Mesurier, ibid. 407 ; Brandon v. 
 Curling,ibid.410; M'Connell*. Hec- 
 tor, 3 B. & P. 113 ; Le Luneville v. 
 Phillips, 2 B. & P. N. R. 97. 
 
CHAP. III.] ALIEN ENEMIES. 133; 
 
 "The question is," said Lord Alyanley, "whether it be 
 competent to an English underwriter to indemnify persons 
 who are engaged in war with his own sovereign, from the 
 consequences of that war; and we are all of opinion that, on 
 the principles of the English law it is not competent to any 
 subject to enter into a contract to do anything which may 
 be detrimental to the interests of his own country ; and that 
 such contract is as much prohibited as if it had been expressly 
 forbidden by Act of Parliament." ^ 
 
 The first two cases in which the question was formally 
 decided, Brandon v. Nesbitt, and Bristow v. Towers,^ pro- 
 ceeded exclusively on the ground that such a contract could 
 not be enforced in our Courts. But in the case of Eurtado 
 D. Rogers, Lord Alvanley, then presiding in the Court of 
 Common Pleas, laid it down decisively, that insurances 
 effected on behalf of an alien enemy, though made previously 
 to the commencement of hostilities, and therefore legal in 
 their inception, could not cover a loss by British capture after 
 war had broken out ; and that np action could be brought 
 upon them in our Courts even after the restoration of peace.^ 
 The language of Lord Ellenborough in condemning these 
 insurances was even stronger than that of Lord Alvanley : he 
 pronounced them to be not only illegal and void, but repug- 
 nant to every principle of public policy. 
 
 Whether the loss in respect of which the assured sought to insurance on . 
 recover were a loss by British capture,* or by a co-belligerent;' per^'i^vS. 
 whether the insurance were effected before or after the 
 breaking out of hostilities;^ or whether the action were 
 brought during war or after the restoration of peace;' Lord 
 EUenborough's decision was uniformly the same; and he 
 declared, that every insurance on alien property by a British 
 
 1 In Furtado v. Eogers, 3 B. & P. ^ As in Brandon v. Curling, 4 
 191, 198. East, 410. 
 
 2 6 T. R. pp. 23, 35. ^ As in Furtado v. Rogers, 3 B. & 
 
 3 Furtado v. Rogers, 3 B. & P. P. 191 ; or Brandon v. Curling, 4 
 191. East, 410. 
 
 < As in Kelluer v. Le Mesurier, 4 ' As in Gamba v. Le Mesurier, 4 
 
 East, 396. East, 407. 
 
134 PARTIES UNASSURABLE. [PART I. 
 
 subject must be understood with tbis limitation, that it shall 
 not extend to cover any loss happening during the existence 
 of hostilities between the respective countries of the assured 
 and the underwriters. 
 
 When, however, it was attempted to extend this principle 
 still further, — ^to an insurance against British capture of a 
 British ship, the point was not decided, but the Court 
 intimated a pretty clear opinion, that it would only be illegal 
 in the case of a foreign ship.^ 
 Premiuins. If such a contract of insurance be effected before the com- 
 
 mencement of hostilities, it is legal in its inception ; and if 
 the risk have once attached on such policy, there can be no 
 return of premium.^ If such a policy be knowingly effected 
 after hostilities have commenced, the policy never was valid ; 
 but until there is a commencement of the risk under it, the 
 premium may still be recovered back, if the contract has 
 been first duly renounced.' If an agent in this country 
 innocently effects an insurance for one who has become an 
 alien enemy by the breaking out of hostilities before the 
 policy was effected, the agent being unaware of that fact at 
 the time he procured it, the premium thus paid under a 
 mistake of fact may be recovered back from the under- 
 writer.* 
 Sicus, of alien An alien enemy possessing a licence or privilege to trade, 
 licensed to has the right of insuring his property as incident to the right 
 ^^ ®' of trading.^ Such a licence not only legalizes the commerce, 
 
 and therefore the insurance by which it is sought to be pro- 
 tected,'' but also enables the alien enemy, so licensed, to sue 
 npon the policy, not only in the name of the agent, but in 
 his own.' " Whatever commerce of this kind," says Lord 
 
 ' Lnbbook v. Potts, 7 East, 449. Hentig v. Staniforth, 5 M. & Sel. 
 
 ' Purtado v. Eogers, 3 B. & P. 122. 
 
 191- « WeUs V. "Williams, 1 Salt. 45 ; 1 
 
 " Post, part iii. u. ix. ; Palyart v. Lord Raymond, 282, 8. C. 
 
 Leokie, 6M. &Sel. 290; in this case « Kensington v. Inglis, 8 East, 
 
 the plaintiff failed, for want of formal 273 ; Conway ». Gray, 10 East, 536. 
 
 renouncement of the contract. ' Usparioha v. Noble, 13 East, 
 
 * Oom V. Brace, 12 East, 225; 332. 
 
CHAV. 111.] ALIEN ENEMIES. 135 
 
 Ellenborougli,' "the Crown has thought fit to permit, must be 
 regarded by the Courts of law as legal with all the conse- 
 quences of its being legal ; one of which consequences is, a 
 right to contract with other subjects of the country for the 
 purpose of protecting such property by insurance." 
 
 Hence, where a licence to trade with the enemy was given 
 to three persons, two of whom themselves became alien 
 enemies before action brought, it was held that the broker, 
 who had effected the policy for all the three, might, notwith- 
 standing, recover upon it.^ 
 
 Where the party intended to be insured by the policy does Commence- 
 not become an alien enemy until after the loss and the hostilities a 
 cause of action have arisen, his right to sue on the policy ^^^°" °* 
 is only suspended during the continuance of hostilities, and 
 revives on the restoration of peace;' hence, the defence of 
 alien enemy in such cases is only a temporary bar of the 
 plaintiff's right to sue.* Where the war breaks out before 
 the loss, the policy, as we have already seen, is wholly illegal 
 and void.' 
 
 An alien enemy, in the proper sense of the words, is Who is an 
 the natural-born or domiciled subject of a Sovereign State ^ ^ enemy, 
 actually at war with our own. 
 
 " The law of England," says Lord Westbury,'' " and of 
 almost all civilized countries ascribes to each individual at 
 his birth two distinct legal states or conditions: one by 
 virtue of which he becomes the subject of some particular 
 
 1 13 East, 341. Durant, 23 L. J. (C. P.) 140. 
 
 2 Da Tastet v. Taylor, 4 Taunt. s Gramba v. Le Mesurier, 4 East, 
 233. 407. 
 
 3 Elindt V. Waters, 15 East, 260, 6 per Lord Westbury in Udny v. 
 266. Udny, L. E., 1 H. of Lds. (Sootcli 
 
 « Harmam v. Kingston, 3 Camp. cases), 441, 457, 458, 459. 
 150, 162. As to the repUcation to I have taken upon me to collect 
 
 such a defence, see Boulton v. Dohree, together on each branch of the subject 
 
 2 Camp. 162 ; and see Alcenius (or what as it appears in the judgment 
 
 Alcinous) V. Nigren, 4 EU. & Bl. 217 ; is interspersed, and contrasted seu- 
 
 23 L. J. (Q. B.) 287 ; Shepeler v. tence with sentence. 
 
136: 
 
 PARXIES UNASSVKABLE. 
 
 [part I. 
 
 Domicil. 
 
 country, tinding Mm loj the tie of natural allegiance, and; 
 wMch may he called his political status ; another by virtue', 
 of which he has ascribed to him the character of a citizen of 
 some particular country, and as such is possessed of certain; 
 municipal rights and subject to certain obligations, which 
 latter character is the civil status or condition of the indi- 
 vidual and may be quite different from his political status. 
 The political status may depend on different laws in different 
 countries; whereas the civil status is governed universally- 
 by one single principle, namely, that of domicil, which is the. 
 criterion established by law for the purpose of determining 
 civil status. 
 
 Domicil of 
 origin. 
 
 " It is a settled principle that no man shall be without a 
 domicil ; and to secure this result the law attributes to every^ 
 individual as soon as he is bom the domicil of his father if 
 the child be legitimate, and the domicil of the 'mother if 
 illegitimate. This has been called the domicil of origin, and. 
 is involuntary. ; 
 
 " When another domicil is put on, the domicil of origin 
 is for that purpose relinquished, and remains in abeyance 
 during the continuance of the domicil of choice ; but as the 
 domicil of origin is the creature of law, and independent of 
 the will of the party, it would be inconsistent with the prin- 
 ciples on which it is by law created and ascribed to suppose 
 that it is capable of being by the act of the party entirely 
 obliterated and extinguished. 
 
 " It revives and exists whenever there is no other domicil, 
 and it does not require to be regained or reconstituted animo 
 et facto in the manner which is necessary for the acquisition 
 of a domicil of choice. 
 
 " The domicil of origin may be extinguished by act of law, 
 as for example by sentence of death, or exile for Hfe, which 
 puts an end to the status civilis of the criminal ; but it cannot 
 be destroyed by the wiU and act of the party. 
 
 Domicil of 
 choice. 
 
 " Other domicUs, including domicil by operation of Jaw, aa. 
 
QHAP. III.] ALIEN ENEMIES. 13% 
 
 on marriage, are domicik of choice. For as soon as an 
 individual is sui juris it is competent to Mm to elect and 
 assume another domioil, tlie continuance of wliicli depends 
 upon his will and act. 
 
 " Domioil of choice is a conclusion or inference which the How 
 law derives from the fact of a man fixing voluntarily his sole ^''1"^^ • 
 or chief residence in a particular place, with an intention of 
 continuing to reside there for an unlimited time. This is a 
 description of the circumstances which create or constitute a 
 domicil and not a definition of the term. 
 
 " There must be a residence freely chosen and not pre- 
 scribed or dictated by any external necessity, such as the 
 duties of office, the demands of creditors, or the relief from 
 illness; and it must be residence fixed, not for a limited, 
 period or for a particular purpose, but general and indefinite 
 in its future contemplation. 
 
 " It is true that residence originally temporary or intended 
 for a limited period may afterwards become general and 
 unlimited, and in such a case as soon as the change of 
 purpose or animus manendi can be inferred, the fact of domicil 
 is established. 
 
 " Domicil of choice, as it is gaiued animo et facto, so it may How laid 
 be put an end to in the same manner. ^^ ^' 
 
 " Expressions are found in some books and in one or two 
 cases, that the first or existing domicil remains until another 
 is acquired. This is true, if applied to the domicil of origin, 
 but cannot be true if such general words were intended 
 (which is not probable) to convey the conclusion that a 
 domicil of choice, though unequivocally relinquished and 
 abandoned, clings, in despite of his will and acts, to the 
 party until another domicil has animo et facto been acquired. 
 Such a conclusion would be absurd ; but there is no absurdity, 
 and on the contrary much reason in holding that an acquired 
 domioil may be effectually abandoned by unequivocal inten- 
 tion and act; and that when it is so determined, the. 
 domicil of origin revives until a new domicil of choice be 
 acquired," 
 
138 
 
 PARTIES UNASSUBABLE. 
 
 [part I. 
 
 Domicil 
 during war. 
 
 Neutral in a 
 
 belligerent 
 
 territory. 
 
 Neutral 
 going into 
 
 In these few sentences of the noble and learned Judge we 
 find a condensed statement of the law respecting domicil and 
 of the rules of evidence according to which the fact of domicil 
 is determined. It would be aside from the proper object of 
 this treatise to attempt here a general discussion of these 
 principles and rules ; the more so as the only relation which 
 our subject has with the question of domicil is restricted to a 
 period of war and during that period to the belligerents on 
 either side and those who become domiciled with them. 
 Moreover, it would seem that the time and circumstances so 
 special and peculiar as those of war cannot but modify the 
 sense and limitation put upon those priuoiples and rules in 
 their application to the facts ; and hence a further reason 
 arises for declining in this place a general discussion of the 
 law of domicil. 
 
 By the commencement of hostilities the status of every one 
 resident at the moment in the belligerent territories is prima 
 facie determined. The presumption of law as to such a person 
 is that he is domiciled where he then is, and is consequently 
 a belligerent. The evidence of fact is necessary to rebut the 
 presumption. 
 
 First, on the part of one who at the time that war is 
 declared or breaks out is trading in the belligerent territory 
 and wishes not to be compromised by the existence of war, he 
 must be expeditious in getting himself and his property out 
 of the country. Till that be accomplished he is in fact 
 carrying on the trade of the country, and increasing its 
 resources for war, and consequently contravening the policy 
 of its enemy, who has therefore a keen interest, first in 
 presuming everything to the disadvantage of the trader, and 
 then a reason for accelerating the time beyond which the 
 trader's neutrality is lost by the acquisition of a domicil of 
 choice. If such a domicil has already been acquired when 
 hostilities commence, the reason for expeditious removal is the 
 more urgent, in case he would clear himself of the belligerent 
 character. 
 
 Secondly, if he has gone into the country for a special 
 
GHAP. lll.J ALIEN ENEMIES. 139 
 
 temporary purpose, his presence there during hostilities is belligerent 
 thereby explained and his neutrality preserved. It is when ^™ '^* 
 he out-stays the aocomplishment of such a purpose in the 
 belligerent territory that his continuance, and especially his 
 trading there, begins to accumulate as evidence against him 
 of the animus manendi. Even before the accomplishment of 
 his temporary purpose, if general trading goes on with him 
 in the belligerent territory, the enemy will scrutinize very 
 carefully with what diligence the purpose that took him into 
 the country is being prosecuted. For if it is being used by 
 him to cloak his designs in order to prosecute a profitable 
 trade apart from the disadvantages of the belligerent cha- 
 racter, although in the belligerent country, he is in that case 
 deemed to be a domiciled belligerent and liable to the laws 
 and the misfortunes of the war.' 
 
 Tabbs was a native-born subject of America, commanding 
 a vessel employed in the trade between England and the 
 United States. About four years before the action in which 
 the question of his nationality arose, he had married an 
 English woman, by whom he had a family, and who ever 
 since the marriage had resided in a house which he had taken 
 in Liverpool, where he, too, lived with her when at home. 
 Since his marriage he had made one or two voyages to 
 America, from which he had returned and lived with his 
 family at Liverpool, and for the last year he had never left 
 England ; it appeared, however, that he had in contempla- 
 tion, at some future time, to go with his family to America 
 and reside there. Lord Kenyon held, that his residence 
 in this country, under the circumstances above detailed, 
 had operated a change of domicil, and given him, for all 
 commercial purposes, the national character of a British 
 subject.^ 
 
 A native-born subject of Great Britain, who had become a 
 
 1 See these questions discussed in 12 ; The Bemon, 1 ibid. 102 ; Elbers 
 
 The Harmony, 2 C. Eob. E. 322 ; v. United Ins. Co., 16 Johns. N. T. 
 
 The Diana, 5 ibid. 60 ; The Ooean^ 128. 
 
 5 ibid. 90 ; The Indian Chief, 3 ibid. ' Tabbs v. Bendelaok, i Esp. 107. 
 
140; PAR'^IES UNASSURABLE. [PART J^ 
 
 ■ naturalized citizen of New York, and member of a com- 
 mercial house there, went, in 1808, to Jamaica (consequently^ 
 within the dominions of his native state), to collect debts 
 due to his hpuse ; he went there again for the same purpose 
 in 1810, and then stayed there, for that purpose, about a 
 year ; he went a third time, for the same purpose, in 1811, 
 and remained there until after the declaration of war by the. 
 United States against Great Britain in 1812 ; during the 
 whole period of his visits to Jamaica his business continued 
 to be conducted at New York, and it was understood there 
 that he proposed to return. Hence, though he had resided 
 a considerable portion of his time at Jamaica during the four 
 years preceding the war, and was there when war was de- 
 clared, it was held that his native national character had not 
 reverted, so as to supersede that acquired by his residence in 
 the United States, since he was absent rather for a tempo- 
 rary purpose than with the intention of establishing himself 
 abroad.^ 
 Evidence of The point, then, to be ascertained being the real intention 
 of the party himself, no circumstance can be regarded as un- 
 important which can ia any way tend to throw light upon 
 itj and the amount of evidence required to establish the 
 animus manendi must, of course, vary with the circumstances 
 of each case. 
 
 Thus, slighter evidence would be requisite primd fade to 
 determine the domicil of a man returning to his own country, 
 than of the same man going to reside ia a foreign land. In 
 the former case there is a natural presumption that the party 
 is returning to re-assume his original status ; in the other the 
 natural presumption rather is, that he is not going for the 
 purposes of making his home in the foreign country, but 
 rather of returning thence to his own when he shall have 
 accomplished the objects of his journey. Hence a national 
 character, acquired in a foreign country by residence, changes 
 
 I The AnnGreen, 1 GaUison's Kep. B. & P. 430 ; 8 T. E. 31, S. C. ; The 
 2.74 ; see also Marryatt v. WUboh, 1 Freundsohaft, 3 Wheaton, 61. 
 
 ammus 
 
CHAP. III.J ALIEN ENEMIES. 
 
 141 
 
 immediately the party has left such country hnimo non re- 
 vertendi. In such case the native domicil revives while he is 
 yet in transitu, for it very easily reverts, and is re-acquired 
 the moment the foreign domicil is abandoned.^ 
 
 But here, as in aU other cases, the animus manendi, or, 
 rather, the animus non rem-tendi, is the all-important test; 
 and therefore a mere return to a man's native country, with- 
 -out any intention to abandon his foreign domicil, does not, 
 as we have seen, work any change of domicil.'' Thus, where 
 a British-born subject, who had been naturalized, and had 
 acquired a domicil as a citizen of the United States, returned 
 for a few days to the British dominions, in the course of pro- 
 secuting a voyage from America to the East Indies, his native 
 national character was held not to have reverted by this 
 limited stay in his native country for a temporary purpose,' 
 So a British-bom subject, having a mercantile establishment 
 in Lisbon, was held, in the United States, not to have lost 
 the Portuguese national character by returning to England 
 for a special purpose.^ 
 
 Of course, the natives of a belligerent state, if they are Native 
 resident and carrying on their business in a neutral country, ^^|S* 
 are, by reason of their domicil, for all commercial purposes, country, 
 regarded as subjects of the neutral state, and enjoy all the 
 privileges, and are subjected to aU the inconveniences, of a 
 neutral trade.* 
 
 But where the partner of a mercantile house in England 
 sailed with his wife and family for America, after war had 
 
 ' Per LordWestbury, ante, p. 137; also the case of The Ann Green, 
 
 The Indian Chief, 3 C. Rob. Adm. supra ; The Nereid, 9 Cranch's Sup. 
 
 Eep. 12 ; La Virginie, 5 C. Hob. Court R. 388. 
 
 Adm. Eep. 98 ; see 1 Kent, Com. 76; ' Wilson v. Mairyatt, 8 T. R. 31 ; 
 
 Story's Conflict of Laws, u. iii. s. 48, M'ComieU v. Hector, 3 B. & P. 113 ; 
 
 p. 53 . The Danaous fin the House of Lords), 
 
 2 Wilson V. Marryatt, 8 T. E. 31 ; cited 4 C. Rob. Ad. 255 ; BeUv. Raid, 
 
 TheFreundsohaft, 3 Wheaton's Sup. 1 M. & Sel. 726. The oases in the 
 
 Court E. 51; The Ann Green, I United States on the same subject are 
 
 Gallison's E. 274 ; see also The referred to in 1 Kent, Com. 76, note. 
 
 Indian Chief, 3 C. Eob. Adm. E. 12. The most important are The Venus, 
 
 5 Wilson V. Mairyatt, 8 T. E. 31. 8 Cranch's Sup. Court E. 263 ; The 
 
 * The Freundschaft, supra; see Frances, ibid. 363. 
 
142 PARTIES UNASSURABLE. [PART I. 
 
 been declared between tbis country and the States, but before 
 he knew of it, or had any reason to suspect it ; and after his 
 arrival in America he continued to reside there throughout 
 the war, but without engaging in trade ; as it did not clearly 
 appear that his stay was not compulsory, Lord EUenborough 
 held that he could not, by such residence, be considered to 
 have acquired a hostile character.^ 
 
 It has been held in the TJnited States that if the natiye- 
 born subject of one state has acquired a domicil in a hostile 
 state, by residing and keeping up a commercial establishment 
 there before the breaking out of hostilities, his property, 
 shipped before knowledge of the war, but while his acquired 
 domicil continued, would be liable to capture, on the ground 
 that his permanent residence had stamped him with the 
 national character of the hostile country. 
 
 Some American merchants, who had gained a domicil by 
 residing and carrying on trade in England, before hearing of 
 the declaration of war by the TJnited States against Great 
 Britain in 1812, and while they had no particular expectation 
 of it, nor any intention of ceasing to reside in this country, 
 shipped cargoes to the United States, which were captured 
 by American cruisers, after a declaration of hostilities: a 
 majority of the Judges of the Supreme Court decided- (against 
 the opinion, however, of Marshall, C. J.) that the property 
 was liable to capture as belonging to those who, by trading 
 and residing in an actually hostile country, were to be 
 regarded for all commercial purposes as alien enemies.^ 
 Chief Justice Marshall dissented, on the ground that the 
 parties should have had an opportunity given them, after 
 they knew of the declaration of war, to show by their acts 
 whether or not they intended to continue to make the hostile 
 country the place of their permanent abode.' 
 
 ' Roberts v. Hardy, 3 M. & Sel. 159, and note, who inclines to the 
 
 533, as explained in the case of opinion of Marshall, C. J., and refers 
 
 Willison V. Patterson, 7 Taunt. 438. to The Ocean, 5 C. Rob. Adm. R. 90, 
 
 ^ The Venus, SCranch's Sup. Court as supporting his view of the case. 
 R. 277 ; see 1 Kent, Com. 78, and the ' There appears to be some leaning 
 
 remarks of Mr. Phillips, vol. i. no. towards this opinion in the judgment 
 
CHAP. III.] ALIEN ENEMIES. 143 
 
 In one case Lord EUenborough held that a British-horn 
 suh]'eot became an alien enemy by residing and trading in 
 a hostile country, even though he had been adopted as the 
 citizen of a neutral state, and was then residing and carrying 
 on his business in the hostile country as the recognized agent 
 of such neutral state.^ 
 
 Upon these principles British-born subjects, residing and 
 carrying on trade in a neutral country, are admitted, in 
 respect to their bond fide trade, to all the priyileges of a 
 neutral character.^ Thus, a British-born subject, adopted 
 by and trading in the United States, was permitted to 
 prosecute a voyage from America to the East Indies in a 
 manner which would have been illegal in a British subject, 
 but which was permitted by treaty to the citizens of the 
 United States.' 
 
 He may also, like any other neutral, carry on trade with 
 powers at war with his own country. Thus, in the case of 
 The Danaous, which came before the House of Lords in 1802, 
 a British-bom subject, resident and trading in Portugal, was 
 allowed the benefit of the Portuguese neutral character, so 
 far as to render his trade with Holland, then at war with 
 England, not impeachable as an illegal trade.* The same 
 rule was afterwards applied to a natural-bom British subject, 
 domiciled in the United States, and it was held that he might 
 lawfully trade to a country at war with England, but at 
 peace with the United States.* 
 
 If an alien enemy, flagrante hello, migrate into a neutral Alien enemy 
 country, certainly gaining thereby considerable advantages, flagrante beih. 
 and possibly still retaining a secret connection for the pur- 
 poses of trade with his own country, he does not thereby 
 
 of the Queen's Bench in Esposito v. ^ See The Emanuel, 1 C. Eob. Ad. 
 
 Bowden, 4 E. & B. 963 ; 24 L. J. 269. 
 
 (Q. B.) 210, 215 ; see Maolachlan on ' Wilson v. Mairyatt, 8 T. R. 31. 
 
 Shipping, 557—559. * Cited in 4 C. Rob. Ad. 255, 
 
 1 O'MeaUy v. Wilson, 1 Damp. note. 
 
 481. '^ Bell i\ Reid, 1 M. & Sel. 726. 
 
144 PARTIES UNASSURABLE. [PART It 
 
 become neutral; at all events, the oireumstances attending 
 , such a coiirse, with a view to ascertaining his object and 
 intention, wiU be closely scrutinized.^ 
 
 A neutral who is resident and carrying on trade in a foreign 
 country, up to the time of the breaking out of hostilities 
 between that country and our own, is not precluded if he 
 then, with all expedition, breaks up his establishment in the 
 enemy's country, from recovering in our Courts, during the 
 War, on a policy effected before the conamencement of hosti- 
 lities, on his separate share as part owner in a ship and cargo; 
 and yet the other moiety of both may be owned by an ahen 
 enemy, in partnership with whom he had, prior to the declara- 
 tion of hostilities, been carrying on his establishment in the 
 belligerent country.^ 
 
 National Where the party interested is himself a neutral, a policy 
 
 ports. on goods consigned to him at a neutral port is not void by 
 
 the fact of his happening at the time to be resident ia a 
 place, which though situated in neutral dominions, is occu- 
 pied by the troops of the enemy.* 
 
 During the unexampled circumstances of the First Napo- 
 leon's wars, it frequently became important to decide upon 
 the national character of ports, which though nominally 
 neutral, were yet imder military occupation by the troops of 
 the French Emperor. 
 
 As we shall have occasion to consider these cases elsewhere, 
 it will be sufficient in this place to state the two principles 
 upon which they were mainly decided: — 1st, That a port 
 belonging to a neutral state, though ooetced, or even occupiedj 
 by the forces of a belligerent, does not by virtue of such 
 
 ' The Dos Hermanos, 2 Wheaton's case. See a note of Lord Campbell's 
 
 Sup. Court R. 76, cited 1 Kent, Com. to his report of Bromley «. Heseltine, 
 
 76 ; 1 Phillips, Ins. no. 166. 1 Camp. 75. 
 
 " Rotoh V. Edie, 6 T. R. 413 ; such ' Bromley v. Heseltine, 1 Camp, 
 
 seems to be the true effect of the 75. 
 
CHAP. III.J ALIEN ENEMIES. r45 
 
 aggression cease to be neutral and 'become hostile, provided it 
 still retains its own institutions and its own civil govern- 
 ment : — 2nd. That the most potent evidence iu time of general 
 war, as to the hostile or non-hostile character of ports, is the 
 declaration of our own government, which by either directly 
 or indirectly recognizing any of the ports of a hostile state, 
 or of its colonial possessions, as neutral or non-hostile ports, 
 is binding on our courts of justice.^ 
 
 So much for domicil. But irrespective of personal domioil, Character of 
 and notwithstanding the trader's absence from the enemy's of origin in 
 country during the war, the produce of his estates in that go^^lsand 
 country, and the commerce conducted by his trading esta- oommeroe. 
 blishment there, will receive the character and suffer the 
 disadvantages of enemy's property and commerce.^ 
 
 At the same time, this principle applies only to property Dlstinotion. 
 or transactions connected with the hostile firm. If a neutral 
 have two houses of business, one in the neutral and the other 
 in the belligerent country, his property connected with the 
 neutral house is protected from seizure, while his property 
 connected with the hostile establishment is liable to it.^ On 
 the same principle, there may be a partnership between two 
 persons, one residing in a neutral and the other in a belli- 
 gerent country, and the trade of one of them with the enemy 
 will be held lawful, and that of the other unlawful, and con- 
 sequently the share of one partner in the joint traffic will be 
 condemned, and that of the other restored.* 
 
 J Bromley v. Heseltine, 1 Camp. Anna Catharina, 5 ibid. 167; The 
 
 75 ; Donaldson v. Thomson, ibid. Phoenix, 5 ibid. 21 ; The Dree Ge- 
 
 429 ; Johnson v. Greaves, 2 Tatmt. breeders, i ibid. 235. 
 
 344 ; Atkinson v. Abbott, 11 East, ' The Portland, 3 0. Eob. Ad. K. 
 
 135 ; Hagedorn v. Bell, 1 M. & Sel. 41. 
 
 450 ; see also Blackburn :;. Thomp- * Ibid. ; The Herman, 4 C. Eob. 
 
 son, 3 Camp. 61. Ad. R. 228 ; The Jonge Klassina, 5 
 
 » The Portland, 3 C. Bob. 41 ; The C. Eob. Ad. E. 297. 
 Vigilantia, 1 ibid. 1, 16 ; The Vrow 
 
 M. ^ 
 
146 
 
 PARTIES TJNASSUKABLE. 
 
 [part I. 
 
 Privileged 
 Neuti^. 
 
 Trading 
 Conauls. 
 
 A neutral, however, on the breaking out of hostilities, has 
 the same rights of carrying on trade with either of the belli- 
 gerents as he had before the war commenced. But if, 
 instead of pursuing such trade on its old footing and in the 
 ordinary course of his previous mercantile transactions in 
 time of peace, he becomes a privileged trader of the enemy ; 
 or, if the trade itself consist of a colonial carrying trade 
 between the hostile mother country and any one of her 
 foreign settlements, to which neutral nations were not 
 admitted previous to the war ; — the neutral, by the exercise 
 of such privileged or unusual trade, is, in respect of such 
 trade, regarded as an alien enemy, and cannot maintain an 
 action here on a policy to protect it.^ 
 
 The consul of a neutral nation resident as consul in this 
 country, if engaged in such privileged colonial or coasting 
 trade of the enemy, loses his neutral character;^ and his 
 consular residence does not protect his goods concerned in 
 such trade from seizure and condemnation as enemy's pro- 
 perty.' 
 
 The Flag and 
 the Cargo. 
 
 Declaration 
 of Paris. 
 
 When enemy's goods, although carried in neutral ships, 
 were liable to seizure and confiscation, yet the ship and rest 
 of the cargo were not thereby rendered liable to a similar 
 fate, unless the property of the same owners.^ 
 
 By the Treaty of Paris, concluded in 1856, it is declared 
 that the " neutral flag covers enemy's goods with the excep- 
 tion of contraband of war," and that "neutral goods, witH 
 the same exception, are not liable to capture under enemy's 
 flag." 
 
 . ' See the judgments of Sir W. 
 Scott in The Immanuel, 2 C. Roh. 
 Ad. K. 186 ; The Anna Catharina, i 
 0. Kob. Ad. R. 107; The Dree 
 Grebroeders, ibid. 232. 
 ' The Dree aebroeders, i C. Rob. 
 
 Ad. E. 232. 
 
 » The Indian Chief, 3 C. Rob. Ad. 
 R. 12. 
 
 * Barker v. Blakes, 9 East, 283 ; 
 Teise v. Aguilar, 3 Taunt. 506. 
 
CHAP. III.] INSURERS. 147 
 
 Europeans residing and trading under the protection of Paotoriesia 
 factories or colonial estabHshments in Asia or Africa, haye 
 the national character of the European mother state to which 
 the estahlishment belongs, and under whose protection they 
 live and trade ; and the reason of this is obvious : Europeans, 
 so circumstanced, do not become the subjects of the Asiatic 
 or African power in whose dominions such trading establish- 
 ment is situated.^ 
 
 Such are some of the more important points in the juris- 
 prudence of this country and the United States, on the sub- 
 ject of national character, as affected by doniioil or course of 
 trade. No attempt has been made to illustrate these princi- 
 plea.by more recent decisions, which have merely confirmed 
 them ; the war of Prussia with Austria and with Erance has 
 not presented any occasion for applying them to questions 
 conDJected with the contract of marine insurance, and it has 
 not been deemed desirable further to encumber a work 
 devoted to a special isubject, by references to authorities 
 which more properly range themselves under other heads of 
 legal inquiry. 
 
 Every person capable of making a contract may be an who may te 
 insurer, and may authorize any person capable of being an ! , 
 
 agent to underwrite policies in his name and on his behalf. 
 This description of agency in marine insurance is very com- 
 monly used by private underwriters and public companies. 
 The practice of insuring with individuals was the earliest in 
 use anywhere, and long continued to be followed in this 
 country. The reference that stiU appears at the present day History. 
 in the ordinary Lloyd's policy to "the surest writing or 
 policy of assurance heretofore made in Lombard Street," 
 points to a time when the mercantile operations of exchange 
 
 1 The Indian Chief, 3 C. Bob. Ad. E. 12, 22, 30, 31.^ 
 l2 
 
148 INSURERS. [part I. 
 
 and assurance carried on in London were chiefly in tlie hands 
 
 of Italians, who congregated ahout this locality, ever since 
 
 known to us by their name. It is from their language that 
 
 we derive the word which designates the instrument of 
 
 assurance, poUzza, which in its English form becomes policy, 
 
 having nothing but the appearance in common with the word 
 
 that we apply to statecraft. The enterprising vigour of 
 
 these foreign merchants in England seems to have provoked 
 
 the jealousy of Englishmen, and our House of Commons 
 
 petitioned the King against them in the 18th year of 
 
 Henry VI., 1439, a.d. ; but the King refused his consent 
 
 to the petition being converted into a statute. A severe 
 
 Act, however, was passed against them in the first year of 
 
 The Lom- Eichard III. In the course of time, these natives of Lom- 
 bards super- ■ T 
 seded. bardy were succeeded by English capitalists, and these 
 
 appear to have been in the habit of closing their disputes 
 
 respecting risks and losses and premiums by a species of 
 
 tribunal of commerce, the members of which were appointed 
 
 every year by the Lord Mayor of London. That judicature 
 
 ceasing in the reign of Elizabeth to be of influence with the 
 
 citizens of that time, was then, and afterwards, in the reign 
 
 of Charles II., successively renovated and refurbished, but in 
 
 vain. 
 
 Lloyd's In the time of WilUam III. and of Queen Anne, when 
 
 coffee-houses in London were the fashionable places of resort, 
 and some of the most noted of these became the haunts — 
 each for a peculiar class (as Will's for literary men), Lloyd's 
 at the corner of Abohurch Lane, in Lombard Street, became 
 the celebrated resort of seafaring men, and those that did 
 business with them. There, and subsequently in Pope's 
 Head Alley, and ultimately on the west side of the old 
 Eoyal Exchange, at this coffee-house congregated the under- 
 writers of London, having formed an association among 
 themselves, still familiarly known on the high places of 
 commerce as Lloyd's ; and in connection with this asso- 
 ciation they have developed a ramified system of agency 
 
CHAP. IXI.J IKSDREES. 149 
 
 radiating every wliere to the ports of tlie world, whicli is now 
 become of imposing magnitude, essential to the business of 
 marine insurance whether in the hands of individuals or of 
 companies, and indispensable to the general interests of 
 British commerce. 
 
 Lloyd's underwriters now meet and carry on their business Lloyd's 
 in subscription rooms over the Eoyal Exchange, consisting 
 of two apartments, one, in which the underwriters sit for the 
 transaction of business with their employers, called the Public 
 Eoom, and another, called the Private Eoom, opening out of 
 the first.i 
 
 The affairs of the subscribers to these rooms are managed 
 by a committee, chosen from their own number, called Lloyd's 
 committee, and presided over by a chairman. 
 
 Agents (generally called Lloyd's agents) are appointed by Lloyd's 
 this committee in all the principal ports of the world, whose 
 business it is regularly to forward to Lloyd's accounts of all 
 departures from and arrivals at their ports, as well as of 
 losses and other casualties ; and, in general, all such informa- 
 tion as may be supposed of importance in guiding the judg- 
 ment of the underwriters. These written accounts, which, 
 in the present state of our commerce, are arriving hourly 
 from some part or other of the world, are posted up as fast 
 as they come in, on the walls of the inner or private room at 
 Lloyd's, and are called Lloyd's Written Lists; as soon as Lloyd's 
 the pressure of business will allow, the contents of these 
 vmtten lists are copied out into two large books, placed in a 
 conspicuous part of the inner room, and also in another book, 
 which is placed in the large outer room for the more con- 
 venient use of the general public; after being thus copied 
 into these books, which are called Lloyd's Books, the written 
 lists are subsequently printed and filed, and copies are dis- ^^?^f?^.^ 
 tributed to subscribers. 
 
 Thus, there are three sources of information relating to the 
 arrivals, departures, losses, accidents, and incidents of shipping 
 
 1 This society was regulated by a it was incorporated in 1871 ty special 
 deed of association, dated 1811, until Act, 34 Vict. o. xxi. 
 
150 INSURERS. [part I. 
 
 accessible to the subscribers at Lloyd's : — The written lists, 
 containing the latest inteUigenee ; Lloyd's books, containing 
 this intelligence condensed, methodized, and alphabetically 
 arranged ; the printed lists, filed for those who may wish to 
 consult them.^ 
 Form of un- Lloyd's underwriters individually sign their names at the 
 foot of the policy, and opposite thereto the sum insured by- 
 each in figures and also in words, with the date of so doing.' 
 This is technically called underwriting the policy for so 
 much, and each thereby makes a separate contract in the 
 terms of the instrument with the assured of the particular 
 amount set opposite to his name. The right of action in the 
 assured is consequently against each separately, and not 
 against all jointly. 
 
 It appears that of late, say about the year 1853 in particular 
 instances, and since 1869 generally from all the underwriting 
 members, the Committee of Lloyd's have required a written 
 guarantee to cover the engagements of each in his capacity 
 as an underwriting member, usually of the amount of 5000/., 
 with a view to maintaining the credit of the room. The 
 Corporation of Lloyd's being thus constituted trustees of 
 the guarantee on behalf of those who have sustained damage 
 
 ' "The receipt of ofaoial news of 34 Vict. o. xxi, incorporating the 
 
 capture," &c. being a term in a Society of Lloyd's is as follows : — 
 poUoy, the question was, what would "An underwriting member ahaU 
 
 satisfy it. News of the embargo not, by himself or by any partner or 
 
 reached a mercantile firm, the agents other substitute, directly or indirectly 
 
 of the ship, in London, by telegraph ; underwrite in the city of London 
 
 the telegram was carried by the in- a policy of insurance, as follows : 
 
 Burance broker to Lloyd's, where, (1) In the name of a partnership, or 
 
 upon its being authenticated with otherwise than in the name of one 
 
 the name of the receiving firm, the individual (being an underwriting 
 
 contents were entered in Lloyd's member of the Society) for each 
 
 f'Lost Book." This was held by a separate sum subscribed; or (2) For 
 
 special jury at Gruildhall, Erie, 0. J., the account, benefit, or advantage of 
 
 presiding, to be official news ; Fowler amy company or association, unless 
 
 V. The English and Scottish Marine they are subscribers to the Society, 
 
 Ins. Co., GruildhaU Sitt. post. M. T. nor unless every policy underwritten 
 
 1864. for their account, benefit, or advan- 
 
 '^ 30 & 31 Vict. 0. 23, s. 7. Eule tage is underwritten in their ordinary 
 
 4 in the schod. to the special Act, place of business." 
 
CHAP, in.] INSURERS. 151 
 
 by the failure of the underwriting member in respect of his 
 engagements in that capacity, are entitled to put it in suit, 
 although they have themselves suffered no loss.^ 
 
 About the beginning of the Great Bubble Tear, that is, The two Old 
 1719-1720, certain persons desirous of forming a Company "^P^"^®^- 
 for the purposes of insurance, headed respectively by Lord 
 Onslow (who afterwards formed the Eoyal Exchange Assur- 
 ance Company), and by Lord Chetwynd (who afterwards 
 formed the London Assurance Company), made sundry 
 imavailing attempts to interest the House of Commons in 
 their favour for that end. At length, hea,ring that the debts 
 of the Civil List were heavy, and the Grovemment in diffi- 
 culty for the means of meeting them, these two sets of 
 gentlemen offered a contribution of 300,000^. each, provided 
 the Crown would incorporate them with a monopoly as 
 instirance companies. The 6 Geo. 1, c. 18, founded on a 
 message sent down to the House of Commons the 4th of May, 
 1720, passed the same year, and the King, in consequence, 
 incorporated the two Companies with the exclusive right of 
 making sea insurances in their corporate capacity, and re- 
 straining all others from granting insurances as companies or 
 partnerships on a joint capital. By an Act of the next year, 
 7 Geo. 1, c. 27, 160,000^. was remitted to each Company of 
 the price originally offered for its incorporation. An Act of 
 the following year, 8 Geo. 1, c. 15, relieved them of any 
 liability to double damages or costs at law ; and the 11 Geo. 1, 
 c. 30, gave them the right of pleading the general issue to 
 any action on their policies, which they still retain.^ These 
 latter two statutes, as the law stood then, conferred privileges 
 of a value almost inappreciably great. Her Majesty's sub- 
 jects are now, by the amelioration of the law, generally 
 
 1 Lloyd's V. Harper, 16 Oh. D. Co., 31 L. J. (Q. B.) 93; 1 B. & S. 
 290. 956 ; and amid the recent changes 
 
 2 They retain this right still, not- effected by the Judicature Acts, 
 withstanding the 6 & 6 Vict. c. 97, this privilege appears to remain un- 
 s. 3 ; Carr v. The Eoyal Exch. Ass. changed. 
 
152 INSURERS. [part I. 
 
 placed on a level with them in respect of the subject of the 
 former of the two ; and the privilege under the latter, though 
 it be still preserved to them, is reduced by changes in the 
 system of pleading to what is little better than an empty 
 form. . 
 
 Their main privilege of exclusively granting marine poli- 
 cies as corporate bodies was retained by them till the year 
 1824, when the 5 Geo. 4, c. 114, repealed so much of the 
 6 Geo. 1, 0. 18, as restrains " any corporation or body poHtic, 
 society or partnership, or persons acting in any society or 
 partnership," from underwriting sea policies or lending 
 money on bottomry. During this long interval of a century 
 the assured could not obtain in Great Britain the joint 
 security of any number of individuals to a marine poHcy 
 except from these two companies ; and they, it seems, clogged 
 their acceptance of risks with so many conditions that the 
 chief current of business flowed in the direction t)f Lloyd's. 
 It is hardly a subject for wonder, therefore, that Lloyd's 
 underwriters should have assisted these two Companies 
 in making a vigorous resistance to any repeal of their 
 monopoly. 
 
 Shipowners' Necessity, meanwhile, gave rise to the shipowners' clubs 
 associations t ri it j!j.-l- i- t n t 
 
 or clubs. for the mutual assurance oi their respective vessels. One ot 
 
 the conditions of membership usually exacted in these societies 
 is the possession of a certain amount of ship property insured 
 in the club. An essential peculiarity of their practical work- 
 ing is the absence of premiums. Each member is both 
 assured and insurer ; assured, as to his own property in the 
 club by all the other members in the ratio of their respective 
 properties in it; and e converso insurer, in the ratio of his 
 own property in the club for that of each of the others.. 
 Their mutual covenants or agreements are the quid pro quo, 
 the consideration of the contract. The expense of their 
 insurance is determined by the amount of their contribu- 
 tions to losses for the year in addition to the expenses of 
 the club. 
 
CHAP, III.] INSURERS. 153 
 
 Contrary to an opinion formerly existing, and even Stamped 
 expressed on the benoh,^ that a policy was unnecessary to peneable. 
 the validity of such insurances, it is now the law that no 
 such insurance is valid unless expressed in a stamped policy, 
 and unless such policy shall specify each of the following 
 particulars, viz., the particular risk or adventure, the names 
 of the suhscribers or uaderwriters, and the sum or sums 
 insured.^ As neither the sum iasured, nor the names of the 
 underwriters are capable of being ascertained, this provision 
 of the statute has proved fatal to these clubs as originally 
 constituted, probably without any intention of so afEecting 
 them on the part of the legislature. 
 
 During the monopoly already described, it was essential Legal _ 
 to the legality of such clubs that their members should be 
 liable iadividuaUy only, each for his own proportion, and not 
 jointly, or the one for the other or others of them,* and 
 therefore a club that transgressed this rule only so far as to 
 make the members collectively liable for the share of an 
 insolvent member, was held to be illegal.* The character 
 thus origiaally impressed upon these clubs by the interests of 
 a monopoly, is without exception stUl retained by them as an 
 advantage, namely, the individual liability of each member 
 for his own proportion' only. Since the Companies Act of 
 1862, however, and after a variety of opinions among the 
 Judges^ had been expressed as to the legality of these clubs, 
 an adverse opiaion was decisively given by Sir George Jessel, 
 
 • Bromley v. 'Willianis, 32 I/. J. see Strong v. Harvey, 5 Bing. 304. 
 (Ch.) 716. And see Harvey v. Beck- * Lees v. Smith, 7 T. E. 338. 
 
 ■with, 1 2 W. R. {coram Wood, V.-C.) * It was argued that a policy vrhioh 
 
 819, (on appeal) 996 ; Mead v. did not express this proportion was 
 
 Davidson, 3 A. & E. 303 ; Turpia invalid ; but Gibbs, C. J., held it to 
 
 V. Bilton, 3 Man. & Gr. 465. be good without that ; indeed, point- 
 
 2 In re London Marine Ins. Ass. log out that the amount of it could 
 (Smith's Case), L. R., 4 C!h. App. 611; not be known at the time of effecting 
 Re The Arthur Average Ass., Ex the policy; BorreUs. Moore, 4 Camp, 
 parte Hargrove & Co., L. R., 10 Ch. 166. 
 
 App. 542 ; 30 & 31 Vict. c. 23, ss. 7 ^ Per Lord Westbury, C.,Tumbull 
 
 j^„i 9, V. WooUe, 9 Jut., N. S. 57 ; In re 
 
 3 Harrison v. Millar, 7 T. K. 340, London Marine Ins. Ass. (Andrew's 
 note ; Lees v. Smith, ibid. 338 ; and Case, &o.), L. K., 8 Eq. 176. , 
 
J-5i INSURERS. [part I. 
 
 and that opinion conclusively aflBrmed by the Court of 
 Appeal in 1882 ;i and now these cluhs, to maintain their 
 existence in accordance with law, have been formed into 
 companies registered under the Companies Act, but still 
 based upon the principles and continued for the purposes of 
 mutual assurance. 
 
 In favour of these clubs or companies, an exception is 
 made in respect of stamping these policies subsequently to 
 their being underwritten. The statute provides that it shall 
 not be lawful to stamp any policy at any time after it is 
 signed or underwritten by any person, on any pretence 
 whatever, except in two cases : the first is, any policy of 
 mutual insurance having a stamp or stamps impressed thereon 
 may, if required, be stamped with an additional stamp or 
 stamps, provided that, at the time such additional stamp or 
 stamps shall be required, the policy shall not have been 
 signed or underwritten to an amount exceeding the sum 
 or sums which the stamp or stamps previously impressed 
 thereon will warrant.* 
 
 Companies formed for the purposes of mutual insurance 
 are usually limited by guarantee, say of 51., to meet the costs, 
 charges, and expenses of the company on being wound up ; 
 Jbut that sum of 61. is not the fund from which losses under 
 the policy are to be met ; for in respect of such losses the 
 company may sue, and be sued by, the individual member.' 
 
 Consequences The repeal of the monopoly formerly possessed by the two 
 of the mono- ^^^ companies has been succeeded by the rapid multiplication 
 V°^7- of public companies, some of them incorporated by special 
 
 1 The Master of the Eolls (Sir Gr. adopted hy the Court of Appeal in 
 
 Jessel) gave a definition of the term Re Padstow Total Loss Ass., 20 Ch. 
 
 gain used in the 4th and 21st sections D. 137. 
 
 of the Companies Act, 1862 (25 & 26 » 30 & 31 yiot. c. 26, s. 9 ; post, 
 
 Vict. c. 89), which, beyond all doubt, Chap. V. 
 
 had the effect of including these clubs 3 Lion Ins. Ass. v. Tucker, 12 Q. 
 
 among the companies declared illegal B. D. 176; 53 L. J. (Q. B.) 186; 
 
 bythatstatuteunlessregisteredunder Marine Mutual Ins. Ass. v. Young, 
 
 its provisions ; Ee Arthur Average 43 L. T., N. S. 441. 
 Ass., L. E., 10 Ch, App. 542; 
 
CHAP. III.J INSURERS. 15S 
 
 statutes, some by otarter from tlie Grown, and others formed 
 upon the provisions of a partnership deed, for the purpose of 
 granting marine policies. 
 
 ■ All these various societies may now be registered under Companies 
 the « Companies Act, 1862," i and thereby obtain the advan- SompaSes 
 tages suitable to each as provided under that statute. By ■^°*- 
 doing so, they retain all property, and aU rights, interests, 
 and obligations in connection with property ; their rights and 
 liabilities in respect of debts, obligations, and contracts ; and 
 the peculiar modifications impressed on their constitution — 
 and their rights and liabilities in connection therewith — by 
 the statute, charter, or deed, under which they may have 
 been formed.^ Moreover, any stipulation or condition in 
 any policy afEecting the liability of members, or of the funds 
 of any company, remains in full force and effect, notwith- 
 standing registration of the company under that Act.' 
 
 Any company registered under the 7 & 8 Yict. c. 110, if 
 not registered under the Companies Act, 1862, is not illegal, 
 but subjected to the following consequences : — 1. It is inca- 
 pable of suing, yet not incapable of being sued, either at law 
 or in equity ; 2. No dividend is payable to any of its share- 
 holders ; and 3. Each director or manager incurs a penalty 
 of 51. a day during default in registering under the later 
 Act.* Policies issued under these circumstances appear to be 
 valid notwithstanding, and they may be enforced against the 
 company. 
 
 No partnership or company consisting of more than twenty 
 persons, which has been formed on or after the 2nd of 
 November, 1862, for the purpose of granting policies of in- 
 surance, redeemable out of their joint funds, if unregistered 
 under the Act of 1862, is legal,^ and consequently the policies 
 issued by such a body are invalid. 
 
 "For the purposes of this (The Companies) Act (1862), a 
 
 1 25 & 26 Viot. e. 89, ss. 6, 180, " Ibid. s. 38, No. 6. 
 36. * Ibid. s. 210. 
 
 2 Ibid. ss. 193, 194, 196. ^ Ibid. s. 4. 
 
-136 INSURERS. [part I. 
 
 company that carries on the business of insurance in common 
 
 with any other business or businesses, shall be deemed to be 
 
 an insurance company."^ 
 
 Consequences If the issue of marine policies be ultra vires of the com- 
 
 01 issumg JIT- ■ ■ 
 
 marine poli- pany, the policies are invalid, and the premiums paid may 
 
 of the com- ^^ recovered back. A company constituted for stated pur- 
 paiiy- poses, for instance, of life assurance, cannot extend its busi- 
 
 ness to marine insurance, except, as it would seem, under new 
 powers conferred with similar solemnities and sanctions as 
 were the old. In the deed of the Phoenix life Assurance 
 Company its business was stated to be life assurance; but 
 by resolutions passed at an extraordinary general meeting, 
 called for the purpose, it was determined to grant marine 
 policies; and whilst this new branch of business was being 
 carried on, a report to that effect was sent to the registry 
 office, and was distributed with the dividend warrant, and 
 the matter was mentioned at the annual meetings. This 
 was held, however, not to be sufficient evidence of the consent 
 of the shareholders; indeed, the learned Yice-OhanceUor 
 (Wood) was of opinion that a supplemental deed would have 
 been necessary to confer the new powers. The pohoies were, 
 therefore, held invalid, and the holders of them entitled to 
 repayment of the premiums.^ 
 
 Form of Since the 5 Geo. 4, c. 114, legalized insurance companies. 
 
 by companies, and partnerships, the mode of making them parties to a 
 policy varies severally with the constitution of each. For 
 this purpose, the several names of all the members of the 
 
 ' 25 & 26 Vict. c. 89, s. 3 ; and 1862, as stated in the memorandum 
 
 see The London Monetary Advance of association, cannot he departed 
 
 and Life Ass. Co. v. Smith, 3 H. & from, and consequently that a con- 
 
 N. 543, under the previous statutes. tract made by the directors in respect 
 
 ' The Phoenix Life Ass. Co., in of a matter not included in such 
 
 the case of Burges v. Stocks, 2 J. & memorandum, is ultra vires of the 
 
 H. 441. Accord. Hambro' v. Hull directors and not binding on the 
 
 and London Fire Ass. Co., 3 H. & company, is now matter of clear law ; 
 
 N. 789. see- Ashbury Eailway Carriage, &o., 
 
 That the objects of a company in- Co. v. Eiche, L. R., 7 H. of Lds. 
 
 corporated under the Companies Act, 653. 
 
CHAP, m.] 
 
 INSURERS. 
 
 157 
 
 partnership or company never were necessarily subscribed, 
 notwithstanding the 36 Geo. 3, c. 63, s. 11.^ In some 
 cases, the matter is left as at common law, so that a valid 
 policy is made by the subscription of the partnership firm, or 
 the adhibition of the seal of the body corporate. But the 
 form of execution may be indefinitely varied by the statute, 
 charter, deed, or articles of association under which the 
 company is constituted.^ 
 
 1 Now repealed by tie 30 & 31 
 Viot. 0. 23. If partners do under- 
 write their seTeral names for separate 
 sums, the right of the assured against 
 the,partnership assets is not thereby 
 invalidated; Brett v. Beckwith, 26 
 L. J. (Ch.) 130, coram M. R. 
 
 ' See the general principle laid 
 down and applied in Reid v. Allan, 4 
 Exch. 326; Dowdall v. Allan, 19 
 li. J. (Q. B.) 41. In an unreported 
 case where a rule for a new trial or 
 to enter a verdict for the defendants 
 was obtained on several grounds, 
 and among these on this that the 
 declaration purported to be on a 
 simple contract, whereas the policy 
 
 was made by a company under seal ; 
 when cause came to be shown on 
 that point, Blackburn, J., inquired 
 whether the seal in that case was of 
 any other legal effect than merely 
 the form proper to the company? 
 Counsel for plaintiff thereupon de- 
 sisted from, arguing the point, and 
 it was not further pressed by the 
 defendants ; Eoper v. English and 
 Scotch llaruie Ins. Co., coram Q. B. 
 This, accordingly, seems now to be 
 the opinion entertained in the pro- 
 fession, at all events in respect of 
 trading and similar companies regis- 
 tered under the Companies Act. 
 
158 
 
 OHAPTEE IV. 
 
 THE AGENTS FOR MARINE INSUKANCE. 
 
 A± commoii law - » - 158 
 
 Agents of the assured - - 153 
 
 their authority, express - 159 
 
 implied - 159 
 
 when reTOcable 167 
 
 their duties and UabUities - 168 
 
 duties when policy left 187 
 
 Agents of the insurer - - 190 
 
 their authority - - 190 
 
 In relation to business usage - 193 
 
 The course of business - - 193 
 
 Kights and liabilities - - 197 
 
 of assured and insurer - 197 
 
 of assured and broker - 206 
 
 the broker's lien on the 
 
 policy - - - 211 
 
 . of the broker, insurer, and 
 
 assignees of insurer • 217 
 
 Considered 
 in relation to 
 the law of 
 
 In the present chapter it is proposed to consider the 
 relations of insurance agents to their employers, — first, as 
 governed by the general principles of the law of agency, — 
 and, secondly, as affected by the general course of business in 
 sea insurance, in so far as that has gro-wn to be a usage and 
 a custom. 
 
 Agents of the 
 Assured. 
 
 Their 
 authority. 
 
 Insurance agents may be employed either for the assured 
 to effect, or for the underwriters to subscribe, policies ; we 
 treat of them in their order. Confining, therefore, our atten- 
 tion to insurance agents acting on behalf of the assured, we 
 shall consider, in the first place, the nature of the authority 
 under which they act. 
 
 Insurance agents may procure policies to be effected 
 either, first, in consequence of orders expressly given them 
 by their employers; or, secondly, by virtue of an implied 
 authority arising out of the relation in which they stand 
 to the persons for whom, or the property on which, they 
 procure the insurance to be effected; or, thirdly, insur- 
 ance made by them without the prior authority may be 
 ratified by the subsequent adoption of the assiired. In 
 
CHAP. IV.] AUTHOKITY OF AGENTS. 159 
 
 effect, the third coincides with the first in point of prin- 
 ciple, but in facts it differs, and may therefore be considered 
 apart. 
 
 First, with regard to persons procuring sea iasurances to Their express 
 be effected at the express request, instance, or direction of the 
 assured. In these eases no difficulty can arise as to the 
 authority to insure ; every person who is specially requested 
 or directed so to do by the party interested may effect a 
 policy to protect the interests of his employer ; if, indeed, he 
 himself puts the policy in suit or founds any legal claim upon 
 it, he must, of course, be prepared, in the first instance, to 
 prove the express authority, as given, whether verbally or in 
 writing. 
 
 The questions that have arisen in these cases of express 
 authority turn mainly on this, — whether and under what 
 circumstances the express order to insure imposes on the 
 agent the positive duty of causing the insurance to be effected; 
 as both points wiU more properly fall to be considered when 
 we are discussing the duties and liabilities of insurance 
 agents, we pass on to the next part of our subject. 
 
 As to the implied authority to insure arising out of the Their mpUed 
 
 . I. 1 ii L authority. 
 
 relation of the agent to the parties for whom, or the property 
 on which the insurance is effected, the following are some of 
 the principal points that have been decided. 
 
 A partner may, without express authority from the other A partner, 
 members of the firm, procure an insurance to be effected for 
 him and them on partnership property ; and if, by his di- 
 rections, such an insurance is effected " on account of the 
 firm," all the members of the firm are liable to the broker 
 by 4hom the policy was effected, for premiums and com- 
 missions.^ 
 
 1 Hooper v. Lusby, 4 Camp. 66. the firm, on two ships of which 
 That which is unusual in this case the several partners held separate- 
 is that one of the partners was held shares as part-owners and not as 
 to have made the firm liable for partners, 
 insurances, directed on account of 
 
160 
 
 AGENTS OF THE ASSURED, 
 
 [part I. 
 
 Not a part- 
 owner. 
 
 Although 
 such part- 
 owner be 
 ship's hus- 
 band. 
 
 Special 
 adventure in 
 partnership. 
 
 But the same rule does not apply to part-owners, none of 
 whom can bind the other part-owners lay any policy originally 
 effected without their express authority, and not subsequently 
 adopted hy their ratification. The reason of this, in the 
 words of Lord EUenhorough, is that, " each separate share in 
 the ship is the distinct property of each individual part- 
 owner, whose business it is to protect it by insurance ; so that 
 the insurance of another cannot be binding on such pro- 
 prietors without some evidence importing an authority by 
 them."i 
 
 This is so even where the part-owner, who has given 
 orders for the insurance, is ship's husband or managing 
 owner, appointed in the usual way to act discretionaUy for 
 all the other owners. Nothing will make his insurance 
 binding on the others, except either a particular direction 
 from them to insure, or satisfactory proof that the other 
 part-owners severally approved and ratified the insurance 
 after it came to their knowledge as a step taken for their 
 benefit.^ Consequently, without such express direction, or 
 subsequent ratification, the brokers who effect the policy 
 under his directions must look to him only for premiums, 
 and are liable to him alone for the amount received by them 
 from the underwriters on account of losses.^ 
 
 Whether a special partnership in a particular adventure 
 merely, imply, eas rei naturA, at common law such an 
 agency in each partner or even in the common manager as 
 without express authority enables him to bind all for the 
 premiums of insurance, admits of doubt, notwithstanding the 
 affirmative is favoured by the language of some of the Judges 
 in Eobinson v. Grleadow.* Considering how immediately the 
 end is in contemplation of the adventurers from the instant 
 of beginning, so as to be specified and detailed in the very 
 
 ^ Per Lord EUenhorough, in Bell 
 V. Humphries, 2 Stark. 345. See 
 French v. Backhouse, 8 Burr. 2727. 
 
 ' French v. Backhouse, 5 Burr. 
 2727 ; Eobinson v. G-leadow, 2 Bing. 
 
 N. C. 156. 
 
 3 Egberts v. OgUby, 9 Price, 269. 
 
 * Robinson v. Grleadow, 2 Bing. 
 N. C. 156. 
 
CHAP. IV.] THEIR AUTHORITY. 161 
 
 act of contributing the means, one is almost driven to 
 construe the silence of the partners in respect of insurance 
 under the maxim " Expressum facit cessare tacitum," unless 
 the adventure be so completely one and indivisible that the 
 partners could not conveniently insure each his own share.^ 
 
 commission. 
 
 A consignor or commission agent, to whom funds are Consignor or 
 remitted to purchase and ship goods for his employer — has agT^!° 
 he any implied authority, as such, in the absence of express 
 orders, to insure such goods on behalf of his principal? 
 Such insurances are not unfrequently made in expectation of 
 their being subsequently adopted by the principal. In the 
 absence of a course of dealing, of prior authority, or subse- 
 quent adoption, would such insurances be upheld, so as to 
 give the agent who had effected them a right to charge the 
 premium to his principal, or to demand a loss from the 
 underwriter ? 
 
 As a general rule, and in accordance with ordinary mer- 
 cantile practice, the answer to this question, it seems, must be 
 in the negative. Where orders are given to consign, and no 
 orders given to insure, the practical inference generally would 
 be, either that the principal meant to effect the insurance 
 himself, or intended to remain uninsured. Exceptions to the 
 general rule may, of course, be created by circumstances. An 
 established coiu'se of dealing between the principal and 
 agent ; or the usage of a particular port or trade,^ may be 
 reasonably held to confer an implied authority on the con- 
 signor to effect an insurance on behalf of his principal.' 
 
 ' See Lindsay v. Gribba, 4 Jur., himseM, wiE be unprotected, and that 
 
 N. S. 779 ; on appeal, 28 L. J. (Ch.) his principal, if on the spot, would 
 
 692 ; Green v. Briggs, 6 Hare, S95 ; himself direct the insurance." — Mr. 
 
 Alexander v. Simms, 23 L. J. (Oh.) Amould adopted this on the high 
 
 721. authority of Mr. Duer ; but it may 
 
 ^ Mr. Duer adds : " An authority be doubted -wrhether authority could 
 
 to insure may probably arise by im- be implied from such a state of 
 
 plication in all cases where, from things, however reasonable it would 
 
 special or unforeseen circumstances, be in the agent to insure, relying on 
 
 the agent is justified in believing the ratification of his principal, 
 
 that the property, unless insured by '2 Duer, 101-104. 
 
 M. M 
 
162 AGENTS OF THE ASSURED, [PART I. 
 
 Consignee. The Same question may be put witli regard to the implied 
 
 authority of the consignee, as such, to insure. The answer 
 to this question depends on the sense in which the word 
 consignee is used. A consignee making advances clearly 
 has not only the right to effect an insurance on his own 
 behalf, and to recover thereon to the extent of those ad- 
 vances, but also an implied authority to insure on behalf of 
 his consignor.^ But a mere naked consignee — one, that is, 
 who has no personal interest in the property consigned to 
 him, but is the mere transmittee of the bill of lading with 
 directions to sell or otherwise dispose of the goods to which 
 it relates — has no implied authority (in the absence of an 
 established course of dealing) to effect insurances on behalf of 
 his consignor.^ 
 General agent Has the general agent of a foreign merchant an implied 
 merchant. authority to insure on his behalf ? Here, again, the answer 
 to the question must depend on the extent of trust and 
 authority embraced by the term general agency. Where the 
 general agency consists in this, that a merchant in one 
 country consigns all his goods intended for sale in another 
 ooimtry to a particular merchant there, and effects through 
 him all his purchases, this alone, without some evidence of a 
 special course of dealing in regard to insurances, would not 
 show that either correspondent had implied authority to 
 insure on behalf of the other. But where the trust reposed 
 is more extensive; for instance, where a foreign merchant 
 employs a general agent to procure consignments, and make 
 advances and shipments on his account, leaving the whole 
 conduct and management of the business entirely in the 
 agent's uncontrolled and unassisted discretion ; an authority 
 to insure on the foreign merchant's behalf would be impHed 
 as a necessary incident to conducting the business of such an 
 agency.' 
 
 1 WolfEv. Homcastle, 1 B. & P. ^ 2Duer, 104-Ul. See 2 Phillips, 
 
 316; Carruthersji. Sheddon, GTaunt. no. 1858. 
 
 14; Smith».Lascelles,2T.Rep. 187; ' 2 Duer, 111-113. Judge Dner 
 
 Craufurd v,. Hunter, 8 T. Eep. 23. says, "Such agents as tliose last men- 
 
CHAP. IV.J THEIR AUTHORITY. 163 
 
 An implied authority to insure may arise from the peculiar The peculiar 
 situation of the property with which the agent effecting the arproperty. 
 insurance is entrusted. Thus, although the master, as such, 
 has not in general an implied authority to effect insurance 
 either on ship, freight, or cargo,' yet there seems little doubt 
 that cases may arise which would confer that authority on 
 him. Where the ship is lost, but the cargo or part of it is 
 saved, under such circumstances as to make it impossible 
 either to sell it at the place of disaster, or to forward it to the 
 port of destination, the master, if he had the chance of so 
 doing, would be justified, as agent for all parties concerned," 
 in sending it on to some other port for sale. In such a case, 
 if there were no means of speedy communication with the 
 owners, the law that confers the agency would seem also to 
 imply in the agent authority to insure.^ 
 
 It has been intimated by a learned Judge in the United 
 States, that in a similar case, a like authority would be 
 implied in the supercargo.^ A merchant, who has ordered 
 goods from a foreign correspondent, may refuse to receive 
 them if in excess of, or not according to, order ; in such case 
 if he elect to re-ship them, he has, in the opinion of Lord 
 Hardwicke, an implied authority to insure them on behalf of 
 the consignor.* 
 
 Generally speaking, as we have seen, a mere order to 
 consign or forward goods will not carry with it an impKed 
 authority to insure on behalf of the party giving the 
 order. In a case, however, where an agent was empowered 
 by the owners of a ship and cargo, captured as prize, to 
 prosecute their claims in the foreign Prize Court, to make 
 
 tionedaretobefoimdinallouiprin- ' Craufurd v. Hunter, 8 T. Eep, 
 
 cipal cities; and their universal prao- 23. 
 
 tiee is either to insure themselves the ' 2 Duer, 101. 
 
 shipments made to their principals, ^ Per Jones, J., in De Forest v. 
 
 or to take an assignment of the poU- Pulton F. & M. Ins. Co., 1 HaU, 84; 
 
 cies, that for the security of their * Cornwall v. Wilson, 1 Ves. sen, 
 
 prineipalstheyrequiretoheeffeoted;" 611. 
 
 p. 113. 
 
 m2 
 
164 
 
 AGENTS OF THE ASSURED, 
 
 [part I. 
 
 STioli compromise as he might deem advisable, and in case of 
 restitution, " to forward the ship to London," upon ohjection 
 that these circumstances raised no implied authority in the 
 agent to direct an insurance on the property after restitu- 
 tion, Lord Ellenhorough held that the order to forward the 
 ship to London was an authority to insure her.^ 
 
 Batification 
 equivalent 
 to prior 
 authority. 
 
 The cases hitherto considered have been those in which a 
 prior authority to insure has either been expressly given, or 
 has been implied from the relation of the parties effecting 
 the policy, either to those for whose benefit the insurance is 
 intended or to the property to be protected. It is not, 
 however, essential to prove prior authority, either express or 
 implied ; it will be sufficient to show that the principal, on 
 becoming acquainted with what the party effecting the 
 insurance has done, ratifies and adopts it, such subsequent 
 ratification being equivalent to a prior authority.^ 
 
 This general principle has been so abundantly illustrated 
 in our jurisprudence, and the cases establishing it will be so 
 fully noticed elsewhere, that it will be sufficient to give below 
 a general reference to some of the leading authorities.' 
 
 Thus, although one part-owner has no original implied 
 authority from the rest to insure on their account, yet if he 
 does so, and they subsequently adopt the insurance, they 
 are bound by it.* So, although the captors of a prize have 
 no original implied 'authority to insure, yet, if they do 
 insure for whom it may concern, and the Crown, in whom 
 the legal interest vests, subsequently adopts the insurance, it 
 is thereby rendered valid.* Whether the clerk of a foreign 
 
 ' Eobertson v. Hamilton, 14 East, 
 622. See the case as stated and 
 commented on, 2 Duer, 101, 102. 
 
 * PerBest.O. J., Maclean ». Dunn, 
 4 Bing. 722, 727. 
 
 ' Wolffl V. Homcastle, 1 B. & P. 
 316 ; Luoena v. Craufurd, 2 B. & P. 
 N. R. 269 ; Stirling v. Vaughan, 11 
 East, 619 ; Routh v. Thompson, 13 
 East, 274 ; Hagedom v. Oliverson, 2 
 
 M. & Sel. 486 ; Robinson v. Gleadov, 
 2 Bing. N. C. 166. 
 
 * iPrenoh v. Backhouse, 5 Burr. 
 2227 ; Robinson v. G-leadow, 2 Bing. 
 N. C. 166 ; Lindsay v. Gibbs, 4 Jur. 
 N. S. 779 ; on appeal, 28 L. J.(Ch.) 
 692. 
 
 " Routh V. Thompson, 13 East, 
 274 ; Lucena v. Craufurd, 2 B. & P. 
 N. R. 269. 
 
CHAP. IV.] THEIR AUTHORITY. 165 
 
 consignee, as suoh, has a prior implied authority to direct an 
 insurance to he effected by English correspondents of his 
 master on a consignment made by them on account, and to 
 the order of his employer, may be doubtful ; but the foreign 
 principal by subsequently adopting it ratifies it -with his 
 authority.! 
 
 As regards the evidence necessary in such cases, proof of Evidence of 
 an express ratification is not indispensable; the adoption of 
 the policy may be an inference from the conduct of him for 
 whose benefit it was originally intended. If he means to 
 repudiate the benefit, it is his duty to express his dissent 
 within a reasonable time of his being informed of the 
 policy ; and if he fail to do so, his adoption of the contract 
 will, generally speaking, be inferred from his silence. At 
 all events, this will be so where those effecting the policy, 
 instead of being mere strangers or volunteers, stand in such 
 relations of business or correspondence as would give them 
 and others aware of it a reasonable ground for anticipating 
 his adoption of the insurance.^ 
 
 Thus, in the case of part-owners, where the evidence was, 
 that the one of them insuring had told all his co-part-owners 
 that he had insured for all, and that they did not object to it ; ' 
 or where it appeared that the part-owner insuring had entered 
 the premium in his books, which were open to the inspection 
 of the other owners, and that these had actually inspected 
 an extract from these books relating to the insurance trans- 
 action ; — in these cases, there being no objection made, this 
 was held enough to warrant a verdict that the part-owner 
 insuring had done so with the authority of his co-owners.* 
 
 1 Barlowii.lJeokie,4J.B.]Moore,8. of the agent's act:" the learned 
 
 * This distinction is suggested, as jurist takes, and I think quite cor- 
 
 it seems to me, upon solid grounds by rectly, the negative view. 
 Judge Duer, vol. ii. pp. 151-154; see 'French v. Backhouse, 5 Burr, 
 
 also note v. to sect. x. pp. 178-182, 2727. The action here was by the 
 
 in which he discusses the question ship's husband against his oo-part- 
 
 " whether the mere omission of the owners to recover premiums on a 
 
 principal to reply to a letter of advice policy effected by him on their be- 
 
 from a self -constituted agent is to be half, 
 regarded as evidence of an adoptioa * Bobinsou v. Gleadow, 3 Bing. 
 
166 
 
 AGENTS OF THE ASSURED, 
 
 [part I. 
 
 Conditional 
 ratification. 
 
 When the 
 adoption must 
 he made. 
 
 An express ratification, conditional in its terms, becomes 
 absolute and equivalent to prior authority on the happening 
 of the contingency on which it was to depend. The general 
 agent at New York of a merchant resident at Oarthagena, 
 having effected an insurance for him, without instructions, 
 gave him notice of what he had done. The Oarthagena 
 merchant wrote in answer, that, if other insurances which he 
 had ordered should not have been made, and if the ship 
 should not have arrived safe, he wished the policy to stand, 
 otherwise to be cancelled. When this answer was received in 
 New York, the other insurance referred to had not been 
 made, and the ship (which was then out of time) had not 
 arrived ; in fact, was totally lost. An action having been 
 brought in the Superior Court of New York on the poHey, 
 Oakley, J., before whom the case was tried, held the ratifi- 
 cation sufficient, and judgment was recovered for the loss.^ 
 
 As a general rule of law, ratification is valid if made 
 within the time within which the principal could himself 
 have made the contract ; but in marine insurance the rule so 
 limited would operate mischievously, and consequently it has 
 long been received law that a ratification to be valid need 
 not be during the pendency of the risk. In many of the 
 cases on the subject there was no ratification tiU after the loss 
 had taken place, and was known to the principal;^ and, in 
 one case, the only evidence of adoption was a letter written 
 by the principal two years after the making of the insurance, 
 and nearly as long after he had become aware of the loss, 
 expressing a hope that the party who had effected the policy 
 had procured a final settlement from the underwriters.' 
 
 N. C. 156. The action -was hy the 
 assignees of the broker against all 
 the part-owners for premiums. 
 
 ' Bridge v. Niagara Ins. Co., 1 
 Hall, 247, cited 2 Phillips, no. 1868. 
 In point of fact, a conditional order 
 ceases to be so, and becomes positive, 
 when, before receipt by the party who 
 
 is to execute it, its conditions have 
 been fulfilled. 
 
 2 Lucena v. Craufurd, 2 B. & P. 
 N. E. 269 ; Routh v. Thompson, 13 
 East, 274 ; Barlow v. Leckie, 4 J. B. 
 Moore, 8. 
 
 = Hagedom v. Oliverson, 2 M. & 
 Sel. 485. 
 
CHAP. IV.] THEIK AUTHORITY. 167 
 
 Accordingly the Court of Appeal, when asked to review these 
 oases in order to restrain the time for valid ratification within 
 narrower limits, recognized the exception as one that had 
 long been established and no doubt found convenient in the 
 case of marine insurance, and therefore refused to disturb it.' 
 
 That, however, which is relied upon as a ratification must Ratification 
 
 be done, said, or written by the principal after he is cogni- knowledge of 
 
 zant of the insurance. A general order to insure, given by J^liat has 
 
 o J o J been done. 
 
 the principal before knowledge of the particular insurance, 
 though not received by the party insuring till after the policy 
 was effected, cannot, it seems, be construed into an adoption 
 of such policy.^ 
 
 With regard to the revocation of an express authority to Wliere an 
 insure given to an agent, the time within which it may be authority to 
 made depends of course upon this, whether the agent, acting ^^^^o™eJ_ 
 in pursuance of the authority, has conclusively bound himself 
 or third parties before receiving the revocation. If he have 
 not, the revocation will be operative ; if he have, it will be 
 ineffectual. In this country no contract for sea insurance is 
 valid, unless the same is expressed in a duly stamped policy, 
 containing the particulars required by the statute.^ Hence, 
 the authority given to an insurance agent may be revoked, 
 notwithstanding the initialing of the slip by the underwriters, 
 at any time before the regular stamped policy is subscribed : 
 and if a broker, having procured a slip to be written on terms 
 within the scope of his original authority, afterwards receive 
 an intimation from his principals that they will not consent 
 to such terms, and, notwithstanding such notice, effect a 
 stamped policy on those terms, and pay the premiums, he 
 cannot recover against his employers for the premiums so 
 paid, nor for his commission.* 
 
 1 Williams v. North China Ins. " Warwick v. Slade, 3 Camp. 127. 
 
 Co. 1 C. P. Div. 757. See post, Chap. V. as to the effect of 
 
 ' Bell V. Janson, 1 M. & Sel. 201. the slip. 
 3 30 Vict. 0. 23, ss. 7 and 9. 
 
168 
 
 AGENTS OF THE ASSURED, 
 
 PART I. 
 
 Duties and 
 liiabilities 
 of the agents 
 of the as- 
 sured. 
 
 SMlled agents 
 acting gratui- 
 tously. 
 
 Skilled and 
 paid agents. 
 
 Action on 
 the ease for 
 
 By a general principle of the law of agency, every person 
 entrusted and undertaldng to do business for another, even 
 though he is to be paid nothing for his trouble, is bound so 
 to -conduct himself in the business as not to be guilty of 
 gross negligence. 
 
 If such unpaid agent be an unprofessional person, or the 
 business he undertakes be unconnected with his general trade 
 or calling — this is all he is bound to ; but if his situation or 
 profession is such as to imply skill, and the business he 
 undertakes is directly connected with the exercise of his pro- 
 fession, then, although his undertaking be gratuitous, the 
 failure to exert such skill will be imputable to him as gross 
 negligence. 
 
 If the person employed is to be paid for his trouble, and 
 is also engaged in some trade or profession, with the exercise 
 of which the business he undertakes is intimately connected, 
 such person is bound to exercise, in the conduct of the busi- 
 ness, a reasonable degree of skill, that is, as much skiU as is, 
 and no more than ordinarily is, possessed and exercised by 
 persons of average capacity engaged in the same business or 
 employment.^ 
 
 If, therefore, an agent, being unpaid and unskilled, is 
 guilty of gross negligence, or, being paid and skilled, 'or 
 only the latter, exerts not as much skill in the business as 
 might fairly be expected from his situation or profession, 
 there is a right of action against him for the damage 
 sustained, or the advantages lost, through such failure of 
 duty. 
 
 Application The majority of persons employed in the business of sea 
 
 principles. insurance are both paid and skilled agents, or, at aU events, 
 
 either the one or the other. Generally speaking, therefore, 
 
 > See Coggs v. Bernard, and the notes 1 Smith's L. C. 188, 207, 210. 
 See also Story on Agency, 149, 150. 
 
CHAP. IV.] THEIR DUTIES AND IJABILITIES. 169 
 
 the question of their Kability for negligence turns on the 
 inquiry whether they exerted such an amount of reasonahle 
 skiU in effecting the policy as is ordinarily possessed and 
 exercised by persons of common capacity engaged in the 
 same business. From a policy broker, whose main occupa- 
 tion is to manage sea insurance transactions, a higher degree 
 of skUl may fairly be claimed than from a merchant or 
 commission agent, who may be expected, indeed, to possess 
 a general acquaintance with maritime and mercantile affairs, 
 but no special knowledge of the business of sea insurance. 
 
 Notwithstanding doubts which at one time prevailed, this 
 may now be taken to be the law as to the liability of a 
 person who voluntarily and without consideration under- 
 takes to effect insurances for another, according as he is 
 unskilled, or skilled, if he takes any steps towards per- 
 formance of his undertaking.' But if the person, who 
 voluntarily promises without any kind of consideration to 
 procure an insurance, takes no steps whatever towards the 
 performance of his promise, he is not liable to an action for 
 tionfeasance.^ 
 
 Generally speaking, a person to whom an order to insure When request 
 has been transmitted, is under no obligation to accept the be complied^ 
 trust ; but there are certain cases in which an express order "^*^" 
 to insure, not only may, but must be complied with. 
 
 1. Where the merchant abroad has effects in the hands of Effects in the 
 his agent or correspondent here, he has a right to expect that *^^" ^ ^° ^" 
 
 ' Wallace!). Tellf air, before BuUer, ' Thome v. Deas, 4 Johns. New 
 J., at N. P., cited in WiUdnson v. Tork Eep. 84 : a decision of Chief 
 Coverdale, 1 Esp. 75. In the latter Justice (afterwards Chancellor) Kent, 
 case Lord Kenyon held, that a failure Judge Duer approves of this decision 
 to procure a proper indorsement on a as a correct exposition of the law, 
 fire policy, whereby plaintiff was de- though he remarks forcibly on the 
 prived of the benefit of the insurance, hardship which may thus be inflicted 
 was actionable negligence in the seller on the party who trusts to the pro- 
 of a house who had voluntarily under- mise of the volunteer ; Duer, vol. ii. 
 taken to get the policy renewed for pp. 128-130. See the Carpenters 
 the plaintiff. Case, Year Books, xi H. iv. p. 33, ed. 
 
 1679. 
 
170 
 
 AGENTS OF THE ASSURED, 
 
 [part I. 
 
 The course 
 of dealing. 
 
 To insure if 
 he accepts 
 bills of 
 lading. 
 
 the agent will comply -with an order to insure ; because the 
 principal is entitled to call the money out of his hands when 
 and in what manner he pleases. 
 
 2. Where the merchant abroad has no effects in the hands 
 of his correspondent here, but the course of dealing between 
 them has been such that the one has been accustomed to send 
 orders for insurance, and the other to execute them, the former 
 has a right to expect that his orders for insurance wUl still be 
 obeyed, unless the latter give him notice in reasonable time 
 to discontinue that course of dealing. 
 
 3. Where the merchant abroad sends bills of lading to his 
 correspondent here, with an order to insure as the implied 
 condition on which he is to accept the bills of lading, and the 
 correspondent accepts the bills of lading, he must obey the 
 order ; for it is one entire transaction, and the acceptance of 
 the bills of lading amounts to an implied agreement to per- 
 form the condition.' 
 
 Previous 
 course of 
 dealing. 
 
 Out of the 
 usual course. 
 
 The rules thus stated are believed to be as universally ob- 
 served as they are unquestionably well founded in justice and 
 equity. 
 
 Where the obligation to insure arises from a previous 
 course of dealing, and the agent has no funds in hand, it is 
 suggested by Judge Duer that he would be excused from 
 compliance with the order if upon the receipt of it he has 
 just grounds for believing his correspondent to be insolvent.^ 
 This may be so, but in practice it will be the safer course for 
 the agent to obey the order, unless his information of his 
 coiTespondent's insolvency be of such a nature as to leave him 
 no ground for doubt. 
 
 Judge Duer also thinks that, "the obligation to insure, 
 which arises from a previous course of dealing, can only apply 
 to insurances similar to those that the agent had been in the 
 habit of effecting. If the past insurances had all been effected 
 
 I Per Buller, J., in Smith v. Las- 
 oelles, 2 T. E. 187, 189, 190. 
 
 ^ 2 Duer, 124. 
 
CHAP. IV.J THEIR DUTIES AND LIABILITIES. 171 
 
 in a time of peace at a low rate of premium, and requiring 
 in each case only a moderate advance, they would give the 
 principal no right to expect that an order to insure, in a time 
 of war, not accompanied by a remittance of the necessary 
 funds, would be obeyed."^ It may be a question how far 
 this would be so held in this country, where an immediate 
 advance in respect of the premium is hardly ever required in 
 practice, at the time of effecting the policy. 
 
 There can be no doubt as to another position of the very Funds 
 learned American jurist ; " that where the necessary funds '^°°"* ® " 
 for procuring the insurance are remitted to a commission 
 merchant or insurance broker, he is under an equal obligation 
 to apply them to the purpose directed, as where the funds are 
 in his hands when the order is received."^ 
 
 It also sesms free from doubt that the duty of insuring may Usage of 
 be imposed on an agent, even in the absence of express direc- '* ^" 
 tions to insure, by the usage of the particular trade to which 
 his agency and the insurance relate.^ 
 
 If an agent is employed by a foreign correspondent to Agent bound 
 procure an insurance under circumstances which, according uaSe'for^ 
 to the rules laid down by BuUer, J., in Smith v. LasceUes, iiegleot. 
 give the correspondent a right to expect such orders will 
 be complied with, total failure to comply, if without notice, 
 subjects the agent to an action for all the loss which his 
 correspondent may have sustained from the non-insurance.* 
 It was his duty to give prompt notice of his refusal to act Unless 
 upon such orders, that his employer might not be deprived of notice, 
 the opportunity of effecting the insurance elsewhere ; and if, 
 for want of such notice, no insurance be made, he is answer- 
 able for the loss arising from his neglect.' 
 
 A merchant in this country received from a merchant Corlett». 
 
 Gordon. 
 
 1 2 Duer, 125. Duer, 120. 
 
 8 Xbid. ' Ibid. Observations of Ashurst, 
 
 ' Ibid. 127, 128. J., 2 T. E. 188. See the general 
 
 * Smith ». Lasoelles, 2 T. R. 187, principle in Prince v. Clark, 1 B. & 
 
 ante, p. 170; Smith -o. Price, coram C. 186, 
 
 Erie, C. J., 2 F. & F. 748. See 2 
 
172 
 
 AGENTS OF THE ASSURED, 
 
 [part I, 
 
 Notice of 
 refusal 
 
 abroad, with whom he had no previous connection, a bill of 
 lading, with request to insure the goods ; the English mer- 
 chant not wishing to take to the consignment, but without 
 notice to the consignor that he rejected it, handed over the 
 bill of lading and the order to insure to a creditor of the 
 consignor, who effected the insurance and received the goods, 
 and afterwards became insolvent, with the proceeds in his 
 hands ; it was held, that the merchant, who had his election 
 either to accept or reject the bill of lading, was bound, if he 
 did not notify his rejection of it, to comply vdth the terms of 
 the consignment, and was liable for the consequences of not 
 having done so.^ 
 
 Notice of 
 difficulties. 
 
 Callander v, 
 Oelrichs. 
 
 So also in the event of any difficulty of procuring the 
 insurance on the terms prescribed by the principal, it is the 
 duty of the person employed, in the exercise of that reason- 
 able diligence expected of agents, to give notice of such 
 difficulties to the principal within a reasonable time. 
 
 The plaintiff, a merchant in this country, had instructed 
 the defendants, who were his commission agents and cor- 
 respondents in America, to effect an insurance for him on 
 certain prescribed terms (viz., that the insurers should be 
 liable for average losses above 10/. per cent.), upon a cargo 
 of wheat shipped by him from London to Baltimore, and 
 consigned to the defendants to be sold and disposed of on 
 commission. The defendants attempted, ia vain, to procure 
 an insurance on the terms prescribed, but gave no notice to 
 the plaintiff of their failure, and instead thereof effected an 
 insurance on the usual terms (by which the insurers on 
 wheat are exempted from all liability for average, unless 
 general, or the ship be stranded). The Court of Common 
 Pleas held, that the giving of such notice was part of the 
 common law duty of the defendants, to be implied from 
 their retainer as commission agents with express orders to 
 insure, and that the plaintiff therefore was entitled to recover 
 
 ' Corlett v. Gordon, 3 Camp. 472. 
 
CHAP. IV.] THEIB DUTIES AMD LIABILITIES. 173 
 
 in an action brouglit against them for tlie breach of such 
 duty.i 
 
 In this case the damage alleged was, that hj reason of the 
 ■want of notice, the plaintiff had been prevented from effect- 
 ing an insurance on the wheat on the terms proposed, and 
 thereby precluded from recovering for the average loss ; but, 
 as Judge Duer remarks, no proof appears to have been given 
 that an insurance could have been effected on the terms 
 proposed, and unless this was practicable no damage was 
 sustained.^ 
 
 A foreign principal has a right to expect the same ordi- With the 
 
 1 .11 1 -I'l. * . . It 1 conBideraite 
 
 nary care, skill, and dihgenoe m procurmg an msurance that care of a 
 
 the principal himself would exercise as a man of common prudent man. 
 prudence and knowledge of business. 
 
 Hence, where the foreign correspondent of a mercantile 
 firm in this country directed them, as his agents, to procure 
 an insurance for him, prescribing no limit of premium ; but 
 they limited the broker to so low a rate of premium that no 
 insurance on such terms could be effected, and they were held 
 liable to their foreign employer for the loss arising from the 
 want of insurance.' On the same principle, where a policy 
 had been effected, but through the agent's neglect to ascer- 
 tain the solvency of the underwriters, and his omission to 
 communicate the names of the brokers, by whom it was 
 effected in their own name, a loss on the property was sus- 
 tained by the insolvency of the brokers and of one of the 
 underwriters, the agent was held liable as if he had imder- 
 written the policy.* 
 
 On the contrary, if the agent does all that the foreign 
 principal, on the spot, and acting with due care, skill, and 
 diligence as a man of business might reasonably be expected 
 
 1 Callander v. Oelriohs, 5 Bing. ' WaUaoe v. TeUfair, 2 T. E. 188, 
 N. C. 58. in notis. 
 
 2 2 Duer, pp. 222-225. The ques- * Hurrell v. BuUard, coram Cook- 
 tion as to the amount of damages burn, C. J., 3 F. & F. 445. 
 
 ■was referred. 
 
174 AGENTS OF THE ASSURED, [?ART I. 
 
 to do, he is not liable for the consequences of his failure to 
 procure insurance. 
 
 Thus, where the correspondents in London of a foreign 
 merchant, beiag directed by him to procure an insurance, 
 and having failed to do so at Lloyd's because the ship was 
 not in Lloyd's register, ultimately caused it to be effected 
 with a Newcastle company through the medium of the ship- 
 owners, who afterwards refused to deliver up the poKcy, or 
 pay over a loss they had received on it from the under- 
 writers, it was intimated to the jury by BuUer, J., before 
 whom the case was tried, that this afforded no groimd of 
 action against the agents for negligence in effecting the 
 poHcy.^ " If," said the learned Judge, " the defendants had 
 made a blunder in effecting the insurance, which would have 
 avoided the policy, that would have been negligence; but 
 the policy is a good one, and it was only owing to the 
 knavery and insolvency of the shipowners that the plaintiffs 
 have lost the benefit of it." 
 
 Local At this day, at least, Buller, J., would not be justified in 
 
 the doubt which he expressed in the same case, whether the 
 defendants, who lived in London, were bound to seek insur- 
 ance elsewhere than at Lloyd's, as, for instance, at the 
 public metropolitan insurance offices. It seems clear, at all 
 events, that no obligation could be cast upon them to seek 
 insurance beyond the limit of this great mercantile emporium. 
 With correspondents resident in smaller towns, such as 
 Newcastle, Whitby, and the like, the obligation might be 
 different. 
 
 In the United States the extent of the obligation to 
 procure insurance has been well illustrated in the following 
 case : — The correspondents in Boston of shippers at Surinam 
 received orders to effect insurance on a valuable cargo on 
 their account. When this order was received the ship was 
 
 1 Smiths. Cologan, atN. P., 2 T. ground that the foreign correspon- 
 R. 188,innotis; the verdict was given dent had adopted the agents' acts, 
 partly, if not principally, on the 
 
CHAP. IV.] THEIR DUTIES AND LIABILITIES. 175 
 
 out of time, and tlie insurance was declined on that ground 
 by the insurers at Boston, to whom the agents had applied 
 on the very day they received the letter. They suhsequently 
 tried in vain to effect the insurance at Salem, Newburyport, 
 Portsmouth, and Providence, the principal commercial places 
 within sixty miles. They then wrote to New York for the 
 same purpose, fixing a limit (but a very high one) to the rate 
 of premium; part of the amount was eventually insured 
 there at high premiums (the highest being 33J per cent.), 
 and the rest could not be done at the limit. An action 
 having been subsequently brought against them for not 
 having insured the whole amount, a verdict was found for the 
 defendants under the direction of the presiding Judge, on the 
 ground that in their prompt endeavours to procure insurance 
 at Boston and the other neighbouring ports, they had ex- 
 tended their efEorts, at least, so far as their duty required, 
 and that having done so, they were not liable for having 
 failed in procuring a full insurance at New York, though 
 such failure might possibly have been ascribed to their 
 having set a limit on the premium.^ 
 
 In none of these cases does the law require an extraordi- -A- reasonable 
 
 ^ . , . and average 
 nary degree of skill on the part of the agent. In mqmries, degree of 
 
 therefore, as to his liability in cases of loss, the question is, ° ' ' 
 whether the act or omission complained of is inconsistent 
 with that reasonable and proper degree of care, skill, and 
 judgment which persons of common prudence or ordinary 
 ability might be expected to show in the situation and pro- 
 fession of the defendant.^ 
 
 Every policy broker of average capacity, must know that Communiea- 
 all communications respectmg the time of the ship s saiung the time of 
 are material to be submitted to the underwriter. ^ ^' 
 
 1 Sanohes v. Davenport, 6 Mass. * Per Tindal, 0. J., in Chapman v.- 
 
 Rep. 258, cited 2 Duer, 242-244 ; 2 Walton, 10 Bing. 63. 
 Phillips, no. 1890. 
 
176 AGENTS OF THE ASSURED, [PART I. 
 
 Hence an insurance broker, for omitting to forward infor- 
 mation of this kind to a second broker, who at the wish of 
 the principal was employed to effect the policy, was held 
 liable to the principal for the consequent failure of the 
 insurance ; for, although he was to receive no remimeration, 
 he had yet undertaken to employ the other.^ 
 
 As to delivery Every insurance broker is bound to know all the ordinary 
 of a stamped ,,., , ,. iutt 
 
 policy. formal details necessary to make a sea policy a legally valid 
 
 instrument. 
 
 Hence, a policy broker employed to effect a policy on a 
 ship, having negotiated an insurance with the Newcastle 
 Commercial Insurance Company on the terms directed, was 
 held liable for not procuring a stamped policy, in conse- 
 quence of which neglect the shipowner was unable to recover 
 against the company for a loss that subsequently took place.^ 
 Statutory Unless the policy is in writing on vellum, parchment, or 
 
 paper, duly stamped, he is by statute deprived of his legal 
 right to any sum for brokerage or agency, or for his pains or 
 labour in negotiating, transacting or making such insurance, 
 or writing the same, or to recover moneys paid by way of 
 premium or in the nature of premium, and all sums actually 
 paid him by his principal in negotiating, or transacting, 
 or making any insurance contrary to the statute, may be 
 recovered back from him as moneys received for his prin- 
 cipal's use.' 
 
 All ordinary Every policy broker, or other insurance agent, is bound, 
 without express directions, to insert in the policy aU the 
 ordinary risks and customary clauses which are usual and 
 proper in respect of the contemplated voyage. Thus, as it 
 
 ^ Sellers. Work, 1 Marshall, Ins. liable; see also as to -what ooEstitutes 
 
 305. See the remarks of Judge Duer negUgenoe, Wake v. Atty, 4 Taunt, 
 
 on this case, vol. ii. pp. 202, 203 ; see 493. 
 
 also Maydew v. Forrester, 5 Tavint. ^ Turpin v. Bilton, 5 M. & Gr. 
 
 615, as to the point that, whenever 455. 
 
 the information concealed is imques- » 30 & 31 Vict. o. 23, s. 16. 
 tionably material the broker -will be 
 
CHAP. IV.J THEIR DUTIES AND LIABILITIES. 177 
 
 was shown to be the invariable pra,otice in all voyages from 
 Tenerifle to London, to insert a clause "giving liberty to 
 touch and stay at aU or any of the Canary Islands," it was 
 held that a London policy broker was guilty of actionable 
 negligence in omitting this clause.' 
 
 It has been repeatedly and notoriously decided, that a Commence- 
 policy on goods, " beginning the adventure from the loading ^ goods? 
 thereof on board," without any addition, only attaches on 
 goods loaded at the port which is the terminus a quo of the 
 voyage insured.^ 
 
 So completely is this settled law, that all insurance brokers 
 are bound to know and act on it. Hence, a London insurance 
 broker, being directed to effect a policy for a voyage " from 
 Gibraltar to Dublin," upon goods which, upon his instruc- 
 tions, clearly appeared to have been loaded on board at 
 Malaga, was held liable for negligence in having effected 
 the policy on such goods " at and from Gibraltar to Dublin, 
 beginning the adventirre upon the said goods and merchan- 
 dise from the loading thereof aboard the said ship." ' 
 
 The rule which we have been discussing regards what 
 is ordinary, usual, and settled ; when we leave this common 
 beaten track, it ceases to be applicable. As Judge Duer well 
 expresses it, " The mistake of the agent, where the practice 
 is unsettled, and the law uncertain, affords no evidence of 
 that want of reasonable skiU and ordinary diligence for 
 which alone he his responsible."* 
 
 Directions that are clear, precise, and intelligible, make Directions 
 the failure of the insurance agent to comply therewith precise, make 
 actionable, in so far as they may lawfully be followed, ousabie."'*'^' 
 
 1 MaUough V. Barber, 4 Camp. Sel. 106. 
 
 150. ' Park v. Hammond, Holt's N. P. 
 
 ^ Robertson v. Preneh, 4 East, 80 ; S.C.i Camp. 344 ; 2 Marshall's 
 
 130 ; Spitta v. Woodman, 2 Taimt. Eep. 189 ; 6 Taunt. 495. 
 
 416; Homeyer v. LusMngton, 15 * 2 Duer, 214. 
 East, 46 ; Hellish v. AUnutt, 2 M. & 
 
 M. N 
 
178 
 
 AGENTS OF THE ASSURED, 
 
 [part r. 
 
 Directions in 
 
 ■writing 
 
 snpersede 
 
 prior verbal 
 
 commiuiica- 
 
 tions. 
 
 Thus, where clear directions were given By the plaintiffs to 
 the defendants to insure goods and also the premium, and 
 the defendants insured the goods, but not the premium, 
 it was held that they were liahle to the plaintiffs for not 
 complying with the order thus far to insure, notwithstand- 
 ing it also directed them to insure against British capture, 
 which could not legally be done.^ 
 
 An agent who has faithfully followed express written in- 
 structions, is not liahle for omitting a provision which, from 
 the verbal communications of his principal, he might fairly 
 have inferred to be necessary. Thus, a policy broker, who 
 had heard in the course of conversation with the captain, 
 that the ship was to carry simulated papers, followed the 
 written instructions sent him, in which nothing whatever was 
 said as to inserting a liberty to carry them, and was held not 
 to be liable in an action for negligence in not inserting the 
 clause, though the ship was subsequently condemned for 
 carrying such papers.^ 
 
 In case the orders of the principal are so ambiguous as to 
 be susceptible of two distinct and perfectly consistent mean- 
 ings, and the agent honestly and fairly assuming one of these 
 to be the intention of the principal, carries out the orders 
 accordingly; he has done his duty, and the principal is 
 bound by his acts.' 
 
 What policy 
 will suffice. 
 
 Whether the policy effected in the particular instance 
 answers the directions given, or meets the necessities of the 
 case stated in the instructions, is a difficult question of fact 
 upon the evidence that should be considered quite apart 
 from private views on either side, and with reference to the 
 ordinary ways of business men. 
 
 ' Grlasert). Cowie, 1 M. & Sel. 52 ; 
 see also S. P. in Fomin v. Oswell, 3 
 Camp. 357. 
 
 2 Fomin v. Oswell, 3 Camp. 357. 
 " The captain," Lord EUenborough 
 remarked, "notwithstanding hisprior 
 conversation, might have resolved not 
 
 to carry any such papers ; or if he 
 still meant to carry them, might not 
 have wished that a leave for that 
 purpose should have been inserted in 
 the policy." 
 
 ' Ireland v. Livingstone, L. R., 6 
 H. ofLds. 395. 
 
CHAP. IV.] THEIR DUTIES AND LIABILITIES. ItS 
 
 A general order to insure seems to be satisfied by an in-' A. policy in 
 surance in the form in general use at the place to which the" io^^^^^ 
 order refers, with regard to such a subject in such circum-" 
 stances. If the principal wishes to have an insurance in a 
 particular form, or with a particular class of insurers, he 
 should give specific instructions to that effect. In the' 
 following case the subject of instirance, it was thought, would 
 have indicated a different course from that which the agent 
 pursued ; but the Court held otherwise. 
 
 The plaintiff, a merchant of Alicante, sued the defendant, Moore ». 
 his agent in London, for not insuring the plaintiff's goods" 
 agreeably to his directions. The goods were a cargo of 
 fruit, which the plaintiff without other more particular 
 directions gave the defendant a general order "to insure.*' 
 The defendant effected the poHoy with the London Assurance 
 Office, where they only insured fruit " free from particular 
 average," — an exception at that time not to be found in the 
 policies of Lloyd's or the Eoyal Exchange, although the 
 rate of premium was the same in all three ; and the conse- 
 quence was, that when an average loss happened the plaintiff 
 was precluded from recovering for it on the policy. 
 
 The Court held that the plaintiff was not entitled to 
 maintain his action, unless the defendant were guilty of a 
 breach of orders, of gross negligence, or of fraud; and as 
 the verdict of the jury was in favour of the defendant on 
 all these groimds, the Court refused to disturb it. "Thei 
 plaintiff," says Lord Mansfield, " if he pleased, might have- 
 given orders to the defendant not to insure at the London 
 Assurance Office, but at some other office, where this excep- 
 tion would not have been insisted on. But he gives no, 
 directions at all. Therefore he left it to the discretion of 
 his correspondent, who, if he meant no fraud, was at liberty, 
 to elect between the underwriters." ' 
 
 It may be said in favour of this decision, that it by no 
 means follows that a policy from a particular office containing 
 
 1 Moore ». Mourgue, Oowp. 479. 
 n2 
 
180 AGENTS or THE ASSURED, [PART I. 
 
 imfavouraUe conditions is not a policy on tlie test terms, at 
 all events in the hands of an agent, who is not justified in 
 accepting what is doubtful, or expected to undertake a risk 
 by doing something which may be perilous. 
 
 Judge Duer commenting on the case says : — " A general 
 order to insure implies a direction to make the insurance on 
 the best terms that the agent, in the exercise of reasonable 
 diligence; will be able to obtain, and binds the agent at least 
 to that degree of diligence that a person of ordinary prudence 
 is accustomed to employ in his own affairs. Certainly no 
 person of ordinary prudence, about to determine on an 
 insurance, would fail to ascertain the usual terms of the 
 respective companies or sets of underwriters to whom he 
 might apply, nor would fail, if the credit of the underwriters 
 was equally solid, to effect his insurance at that oflBce whose 
 terms, at an equal premium, secured to him the largest 
 indemnity. Hence, an agent, who in acting for another 
 should omit to make the same inquiries and pursue the same 
 course, would be chargeable with such a want of reasonable 
 and ordinary diligence as would render him justly liable for 
 a resulting loss."^ 
 Coml)er«. The defendants, London insurance brokers, having re- 
 
 ceived from the plaintiff, a merchant in Liverpool, general 
 orders to insure a cargo of wheat on his account, but no 
 specific instructions as to how or with whom to insure, 
 effected a policy with the Eoyal Exchange Assurance Com- 
 pany, who at that time left out of their memorandum the 
 exception which makes them liable for an average loss 
 on wheat in case of stranding. In this case there was a 
 stranding and an average loss on the wheat ; but the 
 plaintiff, by reason of the form of the policy, could not 
 recover under it. He lay by till some time after the loss 
 had happened, without complaining of the form of the 
 policy effected, and then brought his action against the 
 plaintiff for not having effected such a policy as would 
 
 ' Duer on Ins., vol. ii. p. 231, and see also pp. 229-232. 
 
 Anderson. 
 
CHAP. IV.] THEIR DUTIES AND LIABILITIES. 181 
 
 have secured him an indemnity for average loss in case of 
 stranding. 
 
 Lord EUenborough, as to this part of the ease, said: 
 " The plaintifE must he taken to have been cognizant of the 
 existence of the chartered companies and the tenor of their 
 policies. If he wished that the policy on this cargo should 
 not he effected on the terms of the Eoyal Assurance Com- 
 pany, he ought to have given special directions to the 
 defendants for this purpose ; and, at any rate, having been 
 so late in reproaching them with what they had done, he had 
 acquiesced in and adopted the policy which they had actually 
 effected."! 
 
 A question of some importance in relation to the subject Whether 
 of a broker's duty in a particular case has been agitated adnSesible 
 but not yet authoritatively determined as to the evidence of ^it^esseson 
 
 "' _ "' _ the question 
 
 other persons engaged in the same business as the defendant, of skill and 
 whether they may be examined as experts and asked what an 
 insurance broker of reasonable skill would, in their judgment, 
 have done under the circumstances. 
 
 In the only two cases which have been decided on the 
 express point, the Court of King's Bench and Common Pleas 
 were at variance.^ 
 
 Accordingly where a merchant in Sydney had shipped a Campbell ». 
 consignment to England, and wrote to the defendants, his ^^ * 
 correspondents in London, desiring them, if the ship had 
 not arrived in England when they received the letter, to 
 wait thirty days and then effect an insurance on the 
 
 1 Comber v. Anderson, 1 Camp. sible to testify, and cannot be in- 
 523. To justify the opinion of the quired of specifically, which party 
 learned Judge as to the effect of should prevail, or, what is identically 
 delay in complaining, one must equivalent ; or in other words, di- 
 assume that the policy was in the rectly to instruct the jury what ver- 
 hands of the plaintiff some time diet they are to give." 2 Phillips, no. 
 before the loss happened. 2112. How much of the question of 
 
 2 Mr. Phillips says, and I think in practice here in dispute is oompre- 
 accordance vrith the spirit of English hended underthisobservationremains 
 law and practice, in discussing this to be seen. 
 
 question — "A witness is not admis- 
 
182 AGENTS OF THE ASSURED, [pART I. 
 
 consignment ; and the defendants, after waiting thirty-six 
 days, effected an insurance, telling the underwriters nothing of 
 the thirty days' delay after receipt of the letter ; the question 
 put to several brokers and underwriters as witnesses for the 
 plaintiff was : " Whether it was material to have communi- 
 cated the fact that that letter had arrived in this country 
 thirty days before effecting the insurance ? " Lord Denman 
 pronounced the evidence inadmissible, on the ground that 
 the opinion of the underwriters and brokers had been asked, 
 not as to a matter of prevalent practice in their trade, but 
 on a matter of legal obligation, which was itself the very 
 point on which the jury were called upon to pronounce a 
 verdict; viz., whether the fact concealed was or was not 
 material, and ought to have been communicated.^ 
 Chapmanv. In the other case, the plaintiff, a London merchant, em- 
 ployed the defendant to effect a policy on his goods for a 
 voyage " at and from London to St. Thomas's, with leave to 
 call at Madeira or Teneriffe:" which was done. Shortly 
 afterwards the plaintiff received the following letter from his 
 supercargo, who was then at Funchal, in Madeira : — " I have 
 now nearly completed, and expect to sail to-morrow or next 
 day at farthest for the Canaries, from whence, as I have 
 taken more wines here than I at first contemplated, it is 
 my intention, for your government, to visit one or more of 
 the West India Islands, say Barbadoes, St. Kitt's, and St. 
 Thomas ; in one or other of which, I am told, I cannot fail 
 of getting a market for the wines, and such part of the cargo 
 as I do not dispose of in the Canaries. I have not sold a 
 single package of linens, but could have disposed of a much 
 larger quantity of cottons. With respect to the linens I have 
 no fear, as in Canary any reasonable quantity is desirable." 
 
 1 Campbell v. Riokards, 5 B. & Ad. opinion that it had been admitted 
 
 840,846. Similar evidence appears rightly, saying, "I know not how the 
 
 to have been admitted by Lord Ten- materiality of any matter is to be 
 
 terden at Nisi Prius, in the action ascertained but by the evidence of 
 
 brought by these same agents for the persons conversant with the subject 
 
 plaintiff against the undervrriters ; matter of the inq^uiry." SeeEickards 
 
 and in Banco he seemed strongly of v. Murdook, 10 B. & C. 540. 
 
CHAP. IV. J THEIR DUTIES AND LIABILITIES. 183 
 
 The plaintiff took this letter to the defendant, telling him, 
 " that the voyage was altered, and that he left him the letter 
 to do the needful with." The defendant, upon this, altered 
 the policy, by adding to it a liberty for the ship " to proceed 
 to St. Kitt's and Barbadoes for all purposes," but did not 
 also add any liberty to proceed to or touch at the Canary 
 Islands. The ship was lost at the Grand Canary Island. 
 
 At the trial of an action against the defendant several 
 policy brokers were called for the defendant ; and the altered 
 policy, together with the bills of lading and invoices, and the 
 supercargo's letter being placed in their hands, they were 
 asked what alterations of the policy a skilful insurance 
 broker ought in their judgment to have procured, having 
 these documents in his possession, and being instructed to do 
 the needful. The witnesses having replied, that they thought 
 a policy broker could have done ample justice to such in- 
 structions by effecting the alterations as made, the jury 
 found for the defendant; and on motion to set aside their 
 verdict, on the ground of the improper reception of this 
 evidence, the Court refused to do so, and held the evidence 
 admissible.^ 
 
 Tindal, C. J., said, " This action is brought for the want of 
 reasonable and proper care, skill, and judgment shown by 
 the defendant under certain circumstances, in the exercise of 
 his employment as a policy broker. The point, therefore, to 
 be determined is, not whether the defendant arrived at a 
 correct conclusion upon reading the letter, but whether upon 
 the occasion in question he did or did not exercise a reason- 
 able and proper care, skill, and judgment. This is a question 
 of fact, the decision of which appears to rest on this further 
 inquiry, viz., whether persons exercisiDg the same profession 
 or calling, and being men of experience and skiU therein, 
 would or would not have come to the same conclusion as the 
 defendant. For the defendant did not contract that he 
 would bring to the performance of his duty, on this occasion, 
 
 1 Chapman v. Walton, 10 Bing'. 57. 
 
184 AGENTS OF THE ASSURED. [PART I. 
 
 an extraordinary degree of skill, but only a reasonable and 
 ordinary proportion of it ; and it appears to us that it is not 
 only an unobjectionable mode, but the most satisfactory mode 
 of determining this question, to show by evidence whether a 
 majority of skilful and experienced brokers would have come 
 to the same conclusion with the defendant."^ 
 
 Agent not Two things are requisite to enable the plaintiff to main- 
 
 eipaTnot^™'" tain his action against his agent in case of failure of the 
 damnified. insurance,— default, namely, of the agent as the cause, and 
 damnification of the principal as the consequence; in other 
 words, there must be a damnum to the principal as well as 
 an injuria in order to make the agent personally liable. 
 Hence, if an agent fails to procure an insurance, which, if 
 made as required, would be wholly void, the agent is not 
 liable in damages, and this for the plain reason that his 
 principal has not been damnified.^ If the neglect complained 
 of be the non-communication of a material fact, the insurance 
 agent may defend himself on the ground that had the fact 
 been communicated it would have been impossible to procure 
 an insurance at the premium limited in the instructions;' 
 but unless the policy, when made as required, would have 
 been wholhj void, such a defence as this which we are dis- 
 cussing cannot be set up ; as e. g. in the case of an agent 
 directed to insure against British capture, for this, if 
 embodied in the policy, would have avoided it only pro 
 tanio.* 
 
 ' Chapman ». Walton, lOBing. 63. made in this case was on slaves, the 
 
 See 1 Smith's L. C. 556, 672-578, privilege of transporting which was 
 
 notes to Carter v. Boehm. As to the given to the mate of a slave-ship in 
 
 American decisions, see M'Lanahan Ueu of wages: wages being an illegal 
 
 V. Univ. Ins. Co., 1 Peter's Supreme subject of insurance, the policy, if 
 
 Court Kep. 188 ; Jefferson Ins. Co. f. made as directed, would have been 
 
 Cotheal, 7 Wend. 79 ; 3 Kent, Com. void. 
 
 285; Duer, vol. ii. pp. 780-788; 2 a Anonymous case before Chambre, 
 
 Phillips, no. 2112, &o. J., 1808, cited in Paley's Principal 
 
 ^ Webster r. De Tastet, 7 T. E. and Agent, 20. 
 
 157. The assurance directed to be » Glaserp. Cowie, 1 M. & Sel. 52. 
 
CHAP. IV.] THEIR DUTIES AND LIABILITIES, 185 
 
 If an agent at a distance whose duty it is to keep his Principal 
 principal informed for the purposes of insurance, keep back with the 
 intelligence which is necessary to be communicated at the agent's fraud, 
 time of negotiating the insurance, in order that his principal 
 may obtain an advantage in the absence of this information, 
 the policy so efEeoted is void.^ But in case the non-commu- 
 nication of such necessary intelligence be merely the effect of 
 negligence in the agent, without a fraudulent intention, and 
 the effect thereof does not go to the whole of the policy, but 
 only to an average loss, the Courts have held that the poUoy 
 is not void save as to the average loss.^ 
 
 An insurance agent in this form of action may avail Same defences 
 himself of any defence that would be open to the under- for under- 
 writers, as e. g. breach of warranty,^ unseaworthiness,* devia- ^"^ ™' 
 tion,' illegality,^ and the like ; the only exception to this rule 
 being, that the agent cannot, of course, take advantage of 
 any defence founded on his own act or default. 
 
 The defaulting agent's liability in such actions is, as a Extent of 
 general rule, co-extensive with what the underwriter's would ^' 
 
 have been if sued on such a policy as ought to have been 
 effected ; so that he is entitled to deduct the premium, and 
 the one-half per cent, on the amount of loss, whenever such 
 deduction might have been made by the underwriter.' 
 
 It may happen that the agent, in actions for negligence, is It may some- 
 liable beyond *the amount for which the underwriters would greater. 
 be liable on the policy. 
 
 1 Proudfoot V. Montefiore, L. E., cited Duer & Phillips, loo. oit. supra. 
 2 Q. B. 511 ; Fitzherbeit v. Mather, ' Delaney v. Stoddart, 1 T. K. 22. 
 1 T. B. 12. ° Webster v. De Tastet, 7 T. R. 
 
 2 Gladstone v. King, 1 M. & Sel. 157. 
 
 35 ; Stribley v. Imperial Mar. Ins. ' Harding v. Carter, 1 Marshall, 
 
 Co., 1 Q. B. D. 507. Sed quare. Ins. 309 ; Delaney i>. Stoddart, 1 
 
 3 Alsop V. Coit, 12 Mass. Hep. 40, T. E. 22 ; Wilkinson v. Coverdale, 
 cited 2 Duer, 325 ; 2 Phillips, no. 1 Esp. 75 ; Glaser v. Cowie, 1 M. & 
 1904. Sel. 52. 
 
 * Miner v. Tagart, 3 Binn. 204 ; 
 
186 AGENTS OF THE ASSURED, [PART I. 
 
 This may he for the costs of a previous action on the policy 
 when brought at his desire or Tvith his concurrence ; and so 
 it seemingly may be when the action on the policy, though 
 brought without his concurrence, is defeated by some mis- 
 conduct of his in effecting the insurance not disclosed to his 
 principal until action brought : ^ not so, however, where the 
 principal knows of the invalidity of the insurance and the 
 misconduct of the agent, before suing, unless the suit be at 
 the agent's request. Thus, where the principal sued the 
 underwriters, although he knew that they had refused to pay 
 on the ground that the agent had concealed a material fact, 
 Lord Bldon would not suffer him to charge the agent with 
 the costs, as the action was not necessary to entitle the 
 principal to recover, and did not appear to have been brought 
 at the desire or with the concurrence of the agent.^ 
 
 Insurance brokers were sued for negligence in not having 
 communicated certain material letters to the underwriters, 
 whereby the plaintiff, their principal, had failed in two 
 actions on the policies, and incurred costs to a large amount 
 in addition to very heavy losses. It appeared that the 
 plaintiff had since offered the defendants permission to try 
 on his behalf as many other actions as they liked on the 
 policies, and that, on this offer being declined, he at once, 
 without further communication with the defendants, paid 
 back to certain of the underwriters the losses which they had 
 paid over to him without suit. It was held that the plaintiff 
 had a right so to do without waiting to resist' an action at 
 the suit of these underwriters, and that, having done so, he 
 had a right to recover from the defendants the amount of the 
 losses, so paid over, in addition to his other losses and costs 
 of action.' 
 Is entitled to Judge Duer raises the question, whether, in cases of con- 
 
 the fruits of ,.,,,, . 
 
 abandonment, structive total loss, it IS necessary, in order to charge the 
 
 • 2 Duer, 330; this may sometimes ' Seller j>. "Work, 1 Marshall, Ins. 
 
 be the case where the underwriters' 305, 306 ; Buer, ubi supra, 
 
 ground of defence is concealment or ' Maydew v. Forrester, 5 Taunt, 
 
 misrepresentation by the agent. 615. 
 
CHAP. IV.J THi;iR DUTIES AND LIABILITIES. 187 
 
 agent in an action for negligence with the whole amount 
 that woTild have been due under the policy, to vest the 
 remains of the property in the agent by abandonment : he 
 concludes, that it is, — on grounds every way reasonable, 
 seeing the principal is entitled in law against the defaulting 
 agent to the extent and in form as i£ he were the under- 
 writer on a valid policy such as ought to have lean effected.^ 
 
 So much for the duties of the insurance agent in effecting Duties, when 
 an insurance. If the agent, after the insurance is effected, ^t™poUcy. 
 as generally happens, retains the policy in his own hands, 
 another class of duties is imposed upon him, his negligence 
 or unskilfulness in the discharge of which may also make 
 him liable to the assured. 
 
 Grenerally speaking, the agent so entrusted with the policy 
 is the substitute for the assured in all the relations of the 
 latter with the underwriters, and has cast upon him in that 
 capacity the duty of enforcing the rights and protecting the 
 interests of his principal in all matters arising out of the 
 contract of insurance.^ Thus, according as circumstances Duties enu- 
 require, it may be his duty to demand a return of the ^^ * ' 
 premium, or to prepare and submit the proof of a loss, to 
 settle and adjust the amount, and at the proper time collect 
 and receive the various sums from the underwriters and pay 
 them over to his principals ; and in ease an abandonment is 
 requisite, he must give notice thereof in due time and in 
 proper form. These, in this country, are the duties usually 
 discharged by professed insurance brokers; and they will 
 equally be expected of any mercantile commission agent who 
 
 ' 2 Duer, 326, 327. v. Anderson, 1 Camp. 43 n., and 
 
 ' 2 Duer, 245. "Perhaps," says Goodsou v. Brooke, 4 Camp. 163. 
 
 Blackburn, J., "it may be put as I do not wish to be understood as 
 
 high as to say that he is clothed giving a decided opinion that he 
 
 with authority to do all that is has so much authority, but there are 
 
 incidentally necessary for carrying at least grounds for so contending;" 
 
 out the contract in the policy thus Xenos v. Wickham, 33 L. J. (C. P.) 
 
 left in his hands, — see Richardson 13, 21, 
 
188 AGENTS OF THE ASSURED, [PART I. 
 
 chooses to place himself in the same responsible relations to 
 his principal. 
 To collect and One of the most important of these subsequent duties of 
 the insurance agent is to collect, receive, and promptly pay 
 over losses to his principal. In an action against an insur- 
 ance broker for not having duly called on certain under- 
 writers to settle and pay the loss, there was no other evidence 
 offered of such obligation except that the policy remained in 
 his hands after the loss. Lord Ellenborough said : " If an 
 
 Bousfieia V. insurance broker keeps the policy in his hands he shall be 
 Creaswell. . . 
 
 presumed to promise . that he will collect the sum due from 
 
 the underwriters on a loss happening, in consideration of the 
 
 commission he receives for effecting the insurance. Here 
 
 the broker, if he chose to part with his lien, might have 
 
 handed over the policy to the assured as soon as it was 
 
 effected, and his responsibility would then have been at an 
 
 end ; but as he retained it he was bound to use all reasonable 
 
 diligence to bring the underwriters to a settlement of the loss 
 
 according to the usage of trade in this respect." ^ 
 
 To give notice The insurance agent is no doubt bound, as to giving notice 
 
 meut. of abandonment, by any express instructions received from 
 
 his principal, and to carry them out with such reasonable 
 
 skill as may fairly be expected of him. Where, however, he 
 
 is left to his own judgment in the matter, his liability in an 
 
 action for not giving due or timely notice of abandonment 
 
 must depend upon the circumstances of the case. 
 
 In the case of principals living abroad, or at too great a 
 
 distance to be consulted on the matter, the agent having the 
 
 policy in his hands wotild be bound in their behalf to give 
 
 due notice of abandonment where the circumstances are such 
 
 as require it, or as render this the prudent course. There, 
 
 if he have done all that his principal, as a prudent, careful, 
 
 and skiLEul man of business on the spot, might reasonably be 
 
 1 Bousfield V. Cresswell, 2 Camp. to be collected from the iindersmters 
 545. The usage of trade referred to a month after the adjustment, and 
 by his Lordship is, that losses ought paid over forthwith to the assured. 
 
CHAP. IV.] THEIR DUTIES AND LIABILITIES. 189 
 
 expected to do, he has incurred no liaMlity ; but if he have 
 failed in this, he is liable for the consequences of his 
 negligence. If the principal lives sufficiently near to be 
 consulted, the agent would always do wisely to refer to him 
 for instructions. 
 
 A pledgee of the policy has no implied authority to give Pledgee of 
 such a notice.^ ^° '°^' 
 
 If the principal puts himself in communication with his Principal in 
 agent, and is in accord with him in what he does, or neglects agent, 
 to do, he cannot recover against his agent for any damage 
 that ensues therefrom. 
 
 When a cargo of wheat from Waterford to Liverpool was 
 on the 28th of January damaged to the extent of 95 per 
 cent., the plaintiff at Liverpool wrote to the defendants in 
 London a letter on the 2nd February, which they received 
 on the 4th, directing them, if any steps could be taken for 
 his interest with the underwriters, "to do the needful," 
 adding, " I should wish to abandon if it be admitted of." 
 The defendants, by return of post, wrote back to say, " that 
 it would be imprudent to say anything to the underwriters 
 without learning further particulars." The plaintiff did not 
 write again till the 9th, when he neither complained of the 
 abandonment not being made nor directed the defendants to 
 abandon, and on the 18th of the same month notice of 
 abandonment was given, but too late.^ 
 
 Lord Ellenborough held, that no negligence could be im- 
 puted to the defendants for not abandoning before the 18th. 
 The letter of the 2nd left it to the defendants' discretion to 
 act as they should think most expedient ; and, if he was dis- 
 satisfied with their conduct, he ought at once to have said so. 
 Instead of that he lay by till the 9th, and did not even then 
 complain or give them any fresh orders. Had he positively 
 required them to abandon, they would have been answerable 
 for not complying with his request as soon as possible ; but 
 he had referred them to their own judgment, and it seemed 
 
 1 Jardine v. Leathley, 3 B. & S. ^ Andersons. The Eoy.Exoh. Ass. 
 
 700. Co., 7 East, 38. 
 
190 AGENTS OF THE IKSUEER, [PART I. 
 
 as if he Hmself at the time had thought they acted . judi-* 
 oiously.* 
 
 To cancel The cancellation of the policy heing an act that destroys 
 
 the relation not only of assured and insurer, hut of insurance 
 broker as agent for the assured, cannot for that reason he 
 justified hy any supposed authority implied from the existence 
 of that relation or from the fact ' of the policy heing left in 
 the broker's hands, and consequently depends for sanction on 
 the express authority of the principal.^ 
 
 The agents of There may he agents to effect sea policies for the assured, 
 '. — and agents to subscribe them for the underwriters. In this 
 
 latter case they are generally authorized by power of attorney; 
 
 but it is not requisite that such power should be produced at 
 
 the trial, if other satisfactory evidence can be given of their 
 
 authority. 
 
 Their autho- As to what shaU be satisfactory evidence in the absence 
 of the written authority, is a point on which there has been 
 a little fluctuation of opinion. Thus, where a broker proved 
 that one Hutchins had subscribed the defendant's name 
 under the policy, that he was in the constant habit of doing 
 so on policies, and had done several for the witness and for 
 others to his knowledge, Lord Kenyon ruled, that this was 
 sufficient evidence to charge the defendant, without the pro- 
 duction of the written authority under which he acted ; ' but 
 Lord EUenborough, in a later case, held precisely similar 
 evidence insuflicient,* unless it was also proved that the defen- 
 dant had ratified such subscription, as e. g., by paying losses 
 upon policies so subscribed.^ 
 
 1 Comber v. Anderson, 1 Camp. « Courteen v. Touse, 1 Camp. 43, 
 
 S23. note; and rightly, see 2 Duer, 341, 
 
 ' Xenos V. Wiokham (in error), 14 note a. 
 
 C. B., N. S. 452 ; 33 L. J. (0. P.) 13; » Haughtou v. Ewbank, 4 Camp. 
 
 L. E., 2 H. of Lds. K^ng.) 296. 88. 
 
 ' Neal V. Irving, 1 Esp. 61. 
 
CHAP. IV.J THEIR AUTHORITY. 191 
 
 A memorandum indorsed on a policy for oliange of Toyage 
 was signed by the agent of an insurance company. It was 
 proved that the agent had signed similar memorandums on 
 many other policies, and that his habit was to do so, and 
 advise the company of it. This was held by Lord Tenter- 
 den to be suflBcient proof of the agent's authority to sign 
 such memorandiims ; and that the other policies on which the 
 memorandums had been signed need not be produced.^ 
 
 Where a power was given to fifteen persons, " jointly or What is a 
 separately, to sign policies on such ships as they or any of execution of 
 them should think proper," after four of the original fifteen si|^T|oiioieB. 
 had died, a policy was executed, in the name of the principal, 
 by four of the survivors, and the execution was held to be in 
 pursuance of the authority.^ 
 
 Where the power of attorney was to execute policies on 
 which the risk should commence from the day that the ship 
 was accepted by the association, the Court held that the 
 agent had sufficiently complied with this power by executing 
 a retrospective policy (with the clause "lost or not lost"), 
 to commence on the day the ship had been accepted, although, 
 at the time of so executing it, the agent and the assured were 
 both aware that two average losses had, in the meantime, 
 happened on the ship.' 
 
 In virtue of a power "to underwrite any policy of in- 
 surance not exceeding 100/., and to subscribe the same in his 
 (the imderwriter's) name, and to settle and adjust losses," the 
 broker signed a slip for a policy within the ternls of the 
 power, and the Court were of opinion that the signature o'f 
 the broker's clerk to the policy, made in pursuance of the 
 slip, was a good execution of this power, this being a mere 
 ministerial act. There was, however, in the same case, a 
 ratification of this signature by the underwriter.* 
 
 1 Brookelbank v. Sugrue, 5 Car. & ' Mead v. Davidson, 3 A. & E. 
 
 P. 21 ; 8. C. 1 Moo. & Eob. 102 ; 1 303. This case is given pro quanta 
 
 B. & Ad. 81. mleat. 
 
 " Guthrie v. Armstrong, 1 Dowl. * Mason v. Joseph, 1 Smith, 406. 
 & Byl. 248. 
 
192 
 
 AGENTS OF THE INSUEEK, 
 
 [part I. 
 
 Limited 
 authority. 
 
 The efEect of holding out one as an agent to underwrite 
 policies may he countervailed hy the usage of the place. A 
 broker who had a written authority to underwrite for not 
 more than 100^. by any one slip, underwrote a policy for 
 150/. on the same adventure ; the principal did not confirm 
 the policy, and the Court held that he was not bound by 
 the subscription, inasmuch as in the place where it was made 
 by the broker, viz., Liverpool, it was common knowledge 
 that such agents had only a limited authority.^ 
 
 Authority An agent with authority to subscribe a policy, has an 
 
 policies; implied authority to sign the adjustment of a loss.^ And 
 
 and to submit one that had been in the habit of subscribing policies and 
 
 settling losses, was held, by Chief Justice Gribbs, to have an 
 
 implied authority even to submit a dispute, concerning a loss, 
 
 to arbitration.' 
 
 Some of these were cases of authority implied from the 
 proved relationship subsisting between underwriter and 
 agent. Where the agent derives his authority from express 
 instructions, which profess to define and regulate his duties, 
 he cannot bind his principal by any act which exceeds the 
 limits of such instructions, much less by one that violates or 
 contravenes their contents ; unless the principal have in effect 
 held him out to the public as his general agent with a general 
 authority as such. 
 
 Authority 
 of Lloyd s 
 
 Lloyd's agents have no other authority than what they 
 derive from the printed instructions under which they act. 
 By these instructions it is expressly declared that no Lloyd's 
 agent is to make up or sign any adjustment of loss as the 
 
 1 Baines v. Ewing, L. R., 1 Exch. 
 320. 
 
 ' Eiohardsonii. Anderson, 1 Camp. 
 44, note. 
 
 ' Goodson V. Brooke, 4 Camp. 163. 
 Sei quare. The report referred to no 
 doubt bears out the text, but it is 
 a report ex relatione of another, and it 
 
 seems to be contrary to Stead v. Salt, 
 3 Bing. 101 ; Adams v. Bankart, 
 1 C. M. & E. 678, confirmed by 
 Hatton V. Royle, 3 H. & N. 500 ;' 27 
 L. J. (Ex.) 486, that even a partner 
 has no implied authority to bind his 
 co-partner by a submission to arbi- 
 tration. 
 
CHAP. IV. j USAGE AT LLOYd's. 193 
 
 representative of the imderwriters ; where, therefore, such 
 an agent in a foreign port, signed a certificate that certain 
 sugars -were damaged over 5 per cent., the Court held that 
 he had exceeded his authority, and that the certificate so 
 given was not binding on the underwriters.^ By the same 
 instructions, no Lloyd's agent " is to accept an ahandonment 
 as the representative of the underwriters ; " and although 
 such acceptance of an ahandonment by a Lloyd's agent 
 seemed in one case to have been regarded as binding in the 
 Common Pleas,^ Lord Tenterden remarked, that in the case 
 referred to, the instructions to Lloyd's agents could not 
 have been before the Court.' 
 
 We have been considering the rights and liabilities of Considered 
 insurance agents on the part of the assm'ed and of the Business 
 
 insurer, as governed by the general principles of the com- ^^^' 
 
 mercial law. But there are usages of trade which cannot be 
 overlooked in a treatise such as this, especially as these very 
 usages are recognized in the Supreme Court. The usage 
 of the metropolis has introduced certain modes of transact- 
 ing business between the brokers and underwriters of London, 
 apparently intended to facilitate business on an extensive 
 scale, by substituting credits for payments, but one effect of 
 the system has been to complicate in law the relations sub- 
 sisting between the assured, the broker, and the underwriter. 
 
 The general coiirse of the business of marine insurance, Coiirseof 
 as actually carried on in London and the more important London 
 towns of this country, is briefly but comprehensively de- ^BsrareT 
 scribed by Bayley, J., in these words: — "According to the broker, and 
 
 ' , , ,,, imderwnter. 
 
 ordinary course of trade between the assured, the broker, 
 
 ' Drake v. Marryatt, 1 B. & 0. there reported at p. 155. 
 473. ' Lord Tenterden in Drake v. Max- 
 
 2 Head v. Bonham, 3 B. & B. 147. ryatt, 1 B. & C. 478. 
 See the dicta of Burroughs, J., as 
 
 M. O 
 
394 
 
 USAGE AT LLOYD S. 
 
 [PAKT I. 
 
 Legal rela- 
 tion of the 
 parties and 
 their broker. 
 
 Rule of law 
 
 and the underwriter, the assured does not in the first in- 
 stance pay the premium to the hroker, nor does the latter 
 pay it to the underwriter. But, as hetween the assured and 
 the underwriter, the premiums are considered as paid. The 
 underwriter, to whom, in most instances, the assured are 
 unknown, looks to the hroker for payment, and he to the 
 assured. The latter pay the premiums to the broker only, 
 who is a middleman hetween the assured and the under- 
 writer. But he is not merely an agent : he is a principal to 
 receive the money from the assured, and to pay it to the 
 underwriters."' 
 
 Hence the general rule of law is, that the broker is the 
 debtor of the imderwriter for premiums, and the underwriter 
 the debtor of the assured for losses. 
 
 If we enter a little more minutely into the subject, the 
 following will be found to be the actual course of practice at 
 the present time, altered in one point from what was the 
 practice of a remoter period. 
 
 The broker on receiviag orders froni his principal to effect 
 an insurance, prepares a slip embodying the terms of the 
 proposed policy. In the case of private underwriters at 
 Lloyd's, it is the custom to have but one slip, which is 
 initialed by the different underwriters for the amounts for 
 which they are willing to become insurers, and a policy is 
 subsequently prepared by the broker of the assured and taken 
 by him to the different underwriters in succession for execu- 
 tion. In the case of insurance companies a separate slip is 
 always prepared for each company by the broker of the 
 assured, and the policy is afterwards prepared and filled up 
 from the slip by the officers of the company, and is kept by 
 the company until sent for by the assured or his broker.^ 
 
 Accounts. The broker now keeps two accounts with underwriters, 
 
 - ' In Power v. Butcher, 10 B. & C. 
 329, 340. 
 ' See Xeuos v. Wickham (in error), 
 
 14 0. B., N. S. 452 ; 33 L. J. (C. P.) 
 13, and the judgment per Blackhum, 
 J., ihid. 
 
CHAP. IV.J USAGE AT LIQ-VD's. 195 
 
 respectively called tlie Credit and the Cash Account. Till 
 within a few years back only one account was kept, which was 
 that now called the Credit Account. "When the slip for any 
 particular policy is signed, it is arranged between the broker 
 and underwriter whether the premium is to go into the Credit 
 Account or the Cash Account. In either ease, the broker be- 
 comes debtor to the underwriter for the premium at once, but 
 the time and manner of payment are different in the two cases. 
 
 If the premium goes into the Credit Account, it is not Credit, 
 payable till the end of the year. If before the end of the 
 year any claim arising on one of the policies in the Credit 
 Account is adjusted by the broker and underwriter, the 
 broker has credit in the account against the underwriter for 
 the amount of the loss thus adjusted, if the account is good 
 for that amount ; and at the end of the year, and not till 
 then, the balance on the account, and the balance only, is due 
 in cash from the broker to the underwriter under a discount 
 of 121. per cent. 
 
 If the premium instead of going into the Credit Account Cash, 
 goes into the Cash Account, the custom is the same, except 
 that the account is settled, and the balance is due in cash 
 at the end of the month instead of the end of the year, and 
 the balance is paid under a smaller discount. In either case 
 the cheque is not passed till several days after the balance is 
 struck, and in both cases the broker receives credit on the 
 account for a commission or brokerage of 51. per cent, on the 
 premiums, and 10^. per cent, for ready money.^ 
 
 The result in law of this system of dealing is thus put by Effect in law. 
 Lord Wensleydale : " The broker gives the underwriter P^rke, B. 
 credit for the premium when the policy is effected, and he, as 
 the agent of both the assured and the underwriter is con- 
 sidered as having paid the premium to the underwriter, and 
 the latter as having lent it to the broker again, and so 
 
 > Beckwith v. Bullen, 8 E. & B. 452 ; Baring v. Stanton, 3 Ch. D. 
 685 ; cited per Blackburn, J., in 502 ; Great Western Ins. Co. v.' 
 Xenos V. Wiokliaiu (in error), 33 Cunliffe, L. E., 9 Ch. App. 525. 
 L. J. (C. P.) 13, 19 ; H C. B., N. S. 
 
 02 
 
196 
 
 USAGE AT LLOYD S. 
 
 [part I. 
 
 becoming his creditor. The broker is then considered as 
 having paid the premium for the assured. The fact of giving 
 credit on account by the broker to the underwriter, and of the 
 underwriter by the terms of the policy having acknowledged 
 the receipt of the premium, are equivalent to actual pay- 
 ment." 1 
 
 " If the opinion of that very learned judge," says Black- 
 bum, J., " required any confirmation it would be furnished 
 by the universal practice by which premiums are recovered 
 by the assured under the count for money had and received, 
 without any reference to whether or not the year during 
 which the broker generally has credit has run out, so as to 
 make them payable in cash by the broker to the under- 
 writer."^ 
 
 Accounts 
 between 
 broker and 
 assured. 
 
 Commissions 
 del credere. 
 
 The broker also keeps an account current with the assured, 
 in which he debits him for aU the premiums, and credits 
 him for all the losses which may be due upon the various 
 insurances effected by his orders. At the expiration of 
 the month allowed the underwriter after the adjustment 
 of a loss, the amount due from the broker to the assured in 
 respect of such loss is ascertained by deducting all the pre- 
 miums with which he is debited in his general account with 
 the broker up to that time, from the sum payable in respect 
 of the loss, and such amount is then generally paid him by 
 the broker's accepting a bill at three months for the balance. 
 If, however, the dealings between the assured and the broker 
 are very extensive, the balance, instead of being thus paid, is 
 frequently carried on into the general account.' 
 
 For greater security to their customers, insurance brokers 
 frequently guarantee the solvency of the underwriters. This 
 exposes them to greater hazard, and of course entitles them 
 to a higher, or as usually it is, an additional, commission 
 
 ' Per Forke, J., ia Power v. But- 
 cher, 10 B. & Or. 329, 347. 
 
 * Per Blackburn, J., Xenos v. 
 Wickham (in error), 33 L. J. (0. P.) 
 
 13, 18 ; 14 0. B., N. S. 452. 
 
 ' Stewart ». Aberdein, 4 M. & W. 
 211. 
 
CHAP. IV. J THE ASSURED AND INSURER, 197 
 
 Tipon the business they perform. In such cases the brokers 
 are said to act del credere, and the per-centage which they 
 are entitled to receive is called a commission del credere. 
 This commission they are legally considered to be entitled to 
 immediately upon entering into the contract, without wait- 
 ing to see whether such guarantie do in the event subject 
 them to loss.^ " The commission," said Lord Ellenborough 
 in such a case, " was earned and to be paid to the party for 
 entering into the contract of guarantie, and not in respect 
 of the event, which was perfectly collateral."^ 
 
 In the common forms of policy the underwriter expressly Eights and 
 acknowledges receipt of the premium from the assured — ■ as between 
 ■" confessing ourselves paid the consideration due unto us for undCTwriter. 
 
 the assurance by the assured." It is now clearly established 
 that this acknowledgment, except in eases of manifest fraud, 
 is conclusively binding on the underwriter, precluding him 
 alike from suing the assured himself for unpaid premiums 
 credited in his account with the broker, or from setting off Receipt 
 such premiums to an action brought by the assured himself 
 on the policy.' 
 
 If the policy contains no such acknowledgment as that Broker's con- 
 
 , , , tract to pay. 
 
 found in the common printed form, but instead of it a 
 
 covenant or agreement by the broker to pay the premiimi to 
 
 the underwriter, the Courts will not imply a contract by the 
 
 ' Caruthers v. Graham, 14 East, to recover back a premium -where the 
 
 578. risk had never attached, Lord Ellen- 
 
 2 Ibid. As to the general law re- borough said, " I shoiJd completely 
 lating to the liability of del credere knock up the insurance business if I 
 agents, the reader is referred to a were to allow this acknowledgment 
 masterly exposition of the subject by [in the policy] to be impeached." In 
 Judge Duer, who, as usual, coUeots, the second, which was an attempt by 
 and exhausts all the authorities ; 2 an underwriter, in an action by the 
 Duer, 331-339, especially 337, in assured, to set ofE premiums. Heath, 
 notis. J-, said : " When the assured is ad- 
 
 3 DalzeUj'. Mair, 1 Camp. 632; De mitted to have paid the premium, it 
 Gramindew.Pigou, 4Taunt. 246. In is as between the assured and the 
 the first of these oases, which was by underwriter actually paid." 
 
 the assured against the underwriter, 
 
198 
 
 THE ASSURED AND INSUKEE, 
 
 [taet I. 
 
 In case of 
 fraud. 
 
 assured to pay the premium to the underwriter in the face 
 not only of this express stipulation, but also of the general 
 usage for the underwriter to look not to the assured, but to 
 the broker as his debtor.' 
 
 In case there be fraud on the part of the assured, or 
 collusion between the assured and broker in their dealings 
 with the underwriter, the acknowledgment in the policy 
 is not held binding.'' 
 
 To recover 
 
 premiums 
 
 back. 
 
 Eetum of 
 premiums. 
 
 The underwriter's acknowledgment of having received the 
 premiums, being a bar to his own action against the assured 
 for the same, is also, apart from business usage, legal warrant 
 for an action by the assured against him as for money had 
 and received to recover the premiums back.' As regards a 
 return of premium, since the title is upon the express con- 
 tract in the policy, the right of the assured to sue the under- 
 writer is liable to the same considerations that apply to his 
 right of action on the policy for a loss, which we now pro- 
 ceed to discuss. 
 
 To recover 
 for losses. 
 
 Adjustment 
 of undisputed 
 loss. 
 
 If a loss occurs within the meaning of the policy and it is 
 disputed, the question and the rights of the parties in 
 reference to it are in the ordinary course of law complicated 
 in no way by the usages of insurance business. 
 
 But supposing a loss occurs which is not to be disputed ; 
 then, the per-centage (100 per cent, if it be a total loss and 
 a lesser per-centage if an average loss) payable by the under- 
 writers in respect of it is ascertained and indorsed upon the 
 policy with the word "Adjusted" prefixed. The several 
 underwriters, as this indorsement is submitted to them, 
 sanction it with their initials, and this is called the adjustment 
 
 ' Power V. Butcher, 10 B. & Cr. 
 329 ; 5 Man. & Eyl. 327 ; and see 
 the observations of Bayley, J., at p. 
 340 of the former, and p. 336 of the 
 latter report. 
 
 2 Foyt'.Bell, 3 Taunt. 492; Mavor 
 
 V. Simeon, ibid. 497. 
 
 " Per Blackburn, J., in Xenos v. 
 Wickham, 14 C. B., N. S. 432 ; 33 
 li. J. (0. P.) 13, 18, ante, p. 196 ; 
 and DalzeU v. Mair, ] Gamp. 532, 
 ante, p. 197, note 3. 
 
CHAP. XV.J THEIR EIGHTS AND LIABILITIES. 199 
 
 of the policy. If the underwriter at the same time passes the 
 loss to the credit of the broker he strikes through his suhsorip- 
 tion to the policy with his pen, and this is called striking off 
 the loss. 
 
 Such a mode of settlement is binding by the usage of Whether the 
 business upon the broker and the underwriter as between Sofl'sbind 
 themselves. But whether it be of any binding effect upon *^® assured, 
 the assured, is a question of fact as to his assent to this kind 
 of settlement. 
 
 "We have seen that it is a usual thing for the assured to 
 leave the policy in the hands of the broker. This may be 
 evidence of the broker's authority to do all things ordinarily 
 consequent on the effecting of a policy, even so far as to 
 adjust the loss and to receive the money. But it is no 
 evidence whatever to bind the assured by the peculiar usages 
 of Lloyd's.! 
 
 If the underwriter pays the loss in money to the broker What dis- 
 who has the policy in his hands, the underwriter is thereby uudermiter 
 discharged at common law from any claim by the assured assmed^ 
 for the same loss.^ So he is, if the assured can be shown to 
 have actually assented to the usage at Lloyd's in striking off 
 the loss ; ' or if, from all the circumstances of the case, he 
 must reasonably be presumed to have acquiesced in it.* 
 
 The question involved in this is not appreciated in all its 
 importance until the bankruptcy of the broker threatens one 
 of the two other parties to the insurance with serious loss. 
 Very strict views of the broker's authority, under any cir- 
 cumstances whatever, were at one time entertained by the 
 judges, niuch to the prejudice of the underwriter.^ The 
 
 1 As to this, see post, p. 200. ' See the case before Lord EUen- 
 
 » Scott V. Irving, 1 B. & Ad. 605. borough of Jell v. Pratt, 2 Stark. 
 
 3 See Bartlett v. Pentland, 10 B. & N. P. 67 ; and the oases before Lord 
 
 C. 760. Tenterden of Todd v. Eeid, 4 B. & 
 
 * Andrew v. Eobinson, 3 Camp. Aid. 210 ; and BusseU v. Bangley, 
 
 199. ibid. 395. 
 
209 THE ASS-DEED AND INSURER, [pART I. 
 
 leaning of the Courts, however, speedily altered. The right 
 -of the assured in such cases to recover from the underwriter 
 is now a pure question of evidence, and depends solely upon 
 the point whether the assured, upon a view of all the facts, 
 must not be taken to have been cognisant of the usage and 
 an assenting party therefore to its observance.^ For the 
 usage of Lloyd's as to settling losses in account being " the 
 usage of a particular place, or of a particular set of persons, 
 cannot be binding on other persons, unless those other persons 
 are acquainted with that usage and adopt it." ^ 
 
 Instead of attempting to define or even describe what 
 evidence would suffice to show that the underwriter is dis- 
 charged by a settlement according to the usage at Lloyd's, 
 it will be of more practical use to set out the exigency of the 
 law when applied to the circumstances of such a case. This 
 is very strikingly done by Bramwell, B., in the following 
 terms, delivering his opinion in the case of Sweeting v, 
 Pearce : — ' 
 Common law " This is a question," says the learned judge, " of the 
 usage orain^ broker's authority. The legal presumption of authority 
 trasted. given to a person who is to receive satisfaction for another 
 
 for a money demand, is that he is to receive it by payment 
 of money only. It is also a rule of good sense. The custom 
 [i. e. of Lloyd's] set up is that the persons who are by legal 
 presumption to receive in money, and in money only, are 
 not to receive in money. The custom is therefore in contra- 
 diction to the authority given to the agents by their prin- 
 cipal. It is a custom not to do the thing which the law 
 implies they are to do. That shows it to be unreasonable " 
 («. e., if it were to be supposed to be binding on a person 
 ignorant of it and consequently not assenting to it). 
 
 "There is a great distinction between it and the cases 
 
 1 Bartlett v. Pentland, 10 B. & C. « Per Lord Tenterden, in Bartlett 
 
 760 ; Scott V. Irving, 1 B. & Ad. 605 ; v. Pentland, 10 B. & 0. 770. 
 
 Stewart v. Aberdein, 4 M. & W. 211 ; 3 Sweeting v. Pearce (in error), 9 
 
 Sweeting v. Pearce, 9 C. B., N. S. C. B., N. S. 534, 540 ; 30 L. J. 
 
 534; 30 L. J. (0. P.) 109. (C. P.) 109, 113. 
 
PHAP. IV.] THEIR RIGHTS AND LIABILITIES. 201 
 
 which have been relied upon. If I set a man generally to 
 do a thing, a custom may weU apply to regulate the mode of 
 doing it. So, with regard to usages of the Stock Exchange 
 which have been referred to. If I tell a broker to purchase 
 such and such stock, I impliedly say to him, deal upon terms 
 upon which you can deal, that is, according to the usage. 
 If the tenor of my authority is to exclude the operation of 
 any custom, I give him no authority to act according to the 
 custom; but if the authority I give is consistent with the 
 custom, then the custom may come into play. Thus, in 
 the case before us, the plaintiff [who was ignorant of the 
 usage at Lloyd's and consequently non-assenting to it] says 
 to the broker 'receive payment in money;' that means 
 receive it in money and not otherwise. 
 
 " It has been said that ' it might have been considered not 
 a very violent presumption that all parties resident in this 
 country employing brokers to efEect policies for them ia the 
 common course of business should be considered to have 
 done so with reference to the usages established at Lloyd's.' 
 I beg leave to say that I think it would have been an 
 unreasonable presumption. I can well understand, if a man 
 who knows of this usage of Lloyd's gives his policy to the 
 broker, with directions to do the needful, a jury might well 
 find that he authorizes the broker to do the needful according 
 to the custom. But it would be a question for the jury in 
 each case whether the presumption that the authority to 
 receive payment in money was rebutted by the principal's 
 knowledge of the custom. This custom, in truth, goes not 
 to say how the presumed authority to receive payment in 
 cash is to be exercised, but that it should not be exercised 
 at all." 
 
 The result of these remarkable observations of the learned Eesult. 
 Judge is that the presumption of law as to the cases is 
 directly contrary to the usage at Lloyd's, and that this usage 
 is not allowed to be binding in any case unless there be 
 facts evidencing assent on the part of the assured sufficient 
 to rebut that presumption. 
 
203 
 
 THE ASSURED AND INSURER, 
 
 [part I. 
 
 Sweeting i 
 Pearoe. 
 
 Bartlett v. 
 Pentland. 
 
 The case in wHcli these ohservations were made was 
 singularly suitahle to bring out the definite relation, i.e., of 
 antagonism, sustained by Lloyd's usage to the general law 
 of the country. The London brokers had become bankrupt 
 after debiting the underwriter with the loss as against a 
 large sum due to him from them on account of premiums. 
 This was in accordance with the usage, and would have been 
 a bar to the action of the assured against the underwriter, 
 if the usage were binding on the plaintiff. It was admitted 
 however, by the defendant, in accordance with the plaintiff's 
 evidence, that the policy being in the hands of the brokers 
 for safe custody only, the ship's papers were delivered to 
 them after the loss for no other purpose than to obtain an 
 adjustment. The plaintiff was ignorant of Lloyd's usage, 
 and had not intended his brokers should even receive the 
 money in payment for the loss. Under these circumstances 
 it was determined in the Court below, and affirmed by the 
 Exchequer Chamber, that the general law, and not the 
 usage at Lloyd's, governed the case and entitled the plain- 
 tiff, notwithstanding the settlement with the broker, to 
 recover against the underwriter.' 
 
 In Bartlett v. Pentland, the plaintiffs, com merchants in 
 Plymouth, had a policy effected for them by a London broker 
 with the St. Patrick's Insurance Company at their office in 
 Lombard Street, London ; a total loss having taken place, a 
 pen was struck through the company's subscription to the 
 policy, and the loss passed in account, as between broker and 
 underwriter, in the usual way, the company being at that 
 time indebted to the broker on the general account between 
 them. The plaintiffs, although in the habit for thirty years 
 of procuring insurances, were yet unacquainted with the 
 usage at Lloyd's, and were misled by a false request of the 
 broker to draw on him instead of the imderwriter three 
 months' biUs, which he accepted but never paid, having 
 
 ' Sweeting v. Pearoe, 7 0. B., 
 N. S. 449 ; 29 L. J. (0. P.) 265 ; (in 
 
 error), 9 C. B., N. S. 534 ; 30 L. J. 
 (0. P.) 109. 
 
CHAP. IV.] TJfiEIR RIGHTS AND LIAUILITIES. 203 
 
 failed before they became due. Previous to his bankruptcy, 
 the insurance company, which had all along been indebted to 
 him on the general account between them (including many 
 transactions besides the policy in question), settled such 
 general account with him, by paying in money the balance 
 due to him for losses, including the loss in question, after 
 deducting the amount of the premiums due to them from 
 the broker. The question in the ease was whether such 
 settlement with the broker was binding on the assured, as 
 being in law a payment to him. 
 
 The Court were clearly of opinion that there was nothing 
 in the case before them to raise any presumption against 
 the plaintiff, that he had given an implied authority to the 
 broker to settle according to Lloyd's usage ;^ and conse- Whenpay- 
 quently that the money paid to the broker, being not a discharge.* 
 specific payment on account of a specific loss, but merely a 
 general payment on a general account, was not to be deemed 
 in law payment as against the assured.^ 
 
 They further held that, notwithstanding the plaintiffs When laches 
 had been induced to give credit to the broker, and had ^^ ^° ^^^^' 
 not applied to the company until after the broker's failure 
 when the company had already settled their general account 
 with him, yet, as the company had not been damnified by 
 the laches of the plaintiffs, they could not be discharged 
 by it.3 
 
 In the next case of the same kind, the plaintiff, a mer- Scott ». 
 chant in Glasgow, had employed a London broker to procure ""'^" 
 an insurance for him at Lloyd's. A total loss having oc- 
 curred on the policy, the plaintiff wrote to the broker, en- 
 closing a bill drawn on the broker, payable ten days after 
 sight, and stating that he did not know at what date it was 
 proper to draw for the balance, this being the first total loss 
 
 1 Bartlett v. Pentland, 10 B. & C. farlane v. G-iaimooopulo, infra. 
 
 760. ' Per Lord Tenterden, C. J., 10 B. 
 
 ' Per Bayley, J., Bartlett». Pent- & 0. 770 ; accord, per Curiam, Mac- 
 land, 10 B. &C. 773; and see Scott {). farlane v. Griaunocopulo, 3 H. & N. 
 Irving, 1 B. & Ad; 605 ; and Mao- 860 ; 28 L. J. (Ex.) 72. 
 
20.4 . THE ASSURED AND INSUKEK, [PART I. 
 
 he had ever had in London. The Court upon these facts 
 held that the plaintifE was not cognisant of the usage of 
 ■Lloyd's so as to he precluded from suing the underwriter 
 even two years after the broker's insolvency ; but that to the 
 extent of a payment made in cash by the underwriter to the 
 broker within the month on account of this loss the under- 
 writer was discharged as against the assured, since the 
 payment made was in strict accordance with his general 
 authority to the broker.^ 
 Stewart 41. In the next case the plaintiffs were merchants at Liver- 
 
 pool, who, for a long course of years, had employed the same 
 firm of London brokers to effect their insurance business in 
 London, which was of a very extensive character. The 
 London brokers kept both a general and also an insurance 
 account with the plaintiffs, in the latter of which they 
 debited them with all premiums, and credited them with 
 all losses allowed in account by the different underwriters ; 
 and the balance, after deducting the premiums, was then 
 carried into the general account with the plaintiffs. Some 
 evidence was given that Lloyd's usage was well known in 
 Liverpool. A loss on a policy effected with the defendant, 
 who was an underwriter at Lloyd's, was settled and passed 
 in account as between the brokers and the defendant in the 
 usual way, and the defendant's name was struck off the 
 policy. An adjustment of this and other losses having been 
 obtained by the brokers, they advised the plaintiffs (to whom 
 they were then considerably indebted on the general account) 
 of the fact ; and the plaintiffs then drew upon them for the 
 amount. Shortly after this the London brokers, who were 
 still greatly indebted to the plaintiffs, became bankrupt, and 
 the plaintiffs thereupon immediately sued the defendant for 
 the loss abeady mentioned as passed in account with the 
 brokers. But the Court held that, under the circumstances, 
 the plaintiffs' claim could not be supported, on the ground 
 stated by Lord Abinger, " that there was sufficient evidence 
 
 1 Scott I'. Irving, 1 B. & Ad. 605. 
 
CHAP. IV.] THEIR EIGHTS AND LIABILITIES. 205 
 
 in the case of the knowledge of the plaintiffs of the custom, 
 and of their authorizing the brokers to settle with the under- 
 writers, desiring them to credit the plaintiffs with the loss, 
 and to permit them to draw on the brokers for the amount." * 
 
 The following propositions seem to embrace the law on Summary of 
 
 , v . , . the law on 
 
 tnis subject : — this point. 
 
 1. Unless the assured by evidence reasonably sufficient can 
 be shown to be cognisant of this usage of settling losses in 
 account and to have assented to it, he is not bound by it ; but 
 may recover against the underwriter, although the loss has 
 been passed in account, as between broker and underwriter, 
 and the name of the latter struck off the policy. 
 
 2. Payment in cash by the underwriter to the broker of 
 the balance of a general account is not payment as against 
 the assured if ignorant of Lloyd's usage. But a specific 
 money payment by the underwriter to the broker in respect 
 of the specific. loss claimed by the assured in the action, and 
 within the time appointed for cash payments, is, as against 
 the assured, payment pro tanto. 
 
 3. If upon the facts of the case it is to be inferred that the 
 assured was cognisant of this usage and assenting to it, he is 
 bound by it, and cannot recover against the underwriter, 
 whose name has been erased from the policy, losses passed in 
 account as between underwriter and broker. 
 
 But the assured may lose his right to recover against the 
 underwriter by suing in the name of the broker, since every 
 defence which is good against the actual plaintiff is open to 
 the defendant. Consequently, a settlement by passing the 
 loss in account with the broker is a bar to the action when 
 it is brought in the broker's name.^ But the assured has the 
 right of action in his own name. 
 
 ' Stewart v. Aberdein, 4 M. & W. for another (see the observations of 
 
 211. Parte, B., in "Wilkinson v. Lindo, 7 
 
 2 aibson*. Winter, SB. &Aa. 96: M. & W. 87)'. So, the Judicature 
 
 this is so wherever the action is Act, 1873, 36 & 37 Vict. c. 66, s. 25, 
 
 brought in the name of one in trust sub-s. 6. 
 
206 
 
 THE ASSURED AND BROKER. 
 
 [part I. 
 
 Relative 
 rights and 
 liabilities of 
 the assured 
 and broker. 
 
 Broker must 
 use diligence. 
 
 We have seen, in discussing the general duties of the 
 assured's agent, that a broker who undertakes for commission 
 to effect a policy, and does not effect one, is liable to the 
 assured as for breach of contract; that the plaintiff must 
 prove his loss as in an action against the underwriter ; and 
 that the defendant, the broker, may avail himself of any 
 defence which the underwriter would in such a case have 
 been entitled to set up.^ 
 
 In the usual course of business, the policy is left in the 
 hands of the broker until the adjustment of a loss. This 
 fact alone is prima facie evidence of authority from the 
 assured to the broker to act as his agent in all matters arising 
 on the policy — to claim and receive return of premiums for 
 short interest or for compliance with warranties, to adjust 
 and settle losses, and to receive the amount of them in cash, 
 or, if the assured is cognisant of the usage at Lloyd's, to pass 
 them in account — probably, to do all that is incidentally 
 necessary for carrying out the contract in the policy thus left 
 in his hands.^ 
 
 Whenever the assured leaves the policy in the hands of 
 the broker for the purposes just explained, the broker is, in 
 law, presumed to promise, in consideration of his commission, 
 that he will use all reasonable diligence to procure from the 
 underwriter a speedy adjustment and settlement of the loss, 
 and, without delay, to collect and pay over to the assured, 
 the sums due. This being the implied contract, if he fail of 
 performance, an action for damages at the suit of the assured 
 lies against him in respect of the breach.' 
 
 ' Ante, p. 184. See Harding v. 
 Carter, before Lord Mansfield, 1 
 Park, Ins. 4 ; 1 Marshall, Ins. 309 ; 
 CahiU V. Dawson, 3 C. B., N. S. 
 106 ; 26 L. J. (C. P.) 253 ; Turpin v. 
 Baton, 5 M. & Gr. 456 ; Wilkinson 
 V. Ooverdale, 1 Esp. 75 ; Delaney v. 
 Stoddart, 1 T. R. 22 j Webster «. De 
 Tastet, 7 T. R. 157. 
 
 ^ See the cautiously expressed opi- 
 nion of Blackburn, J., in Xenos v. 
 Wiokham (in error), 14 0. B., N. S. 
 452 ; 33 L. J. (C. P.) 13, 21 ; Richard- 
 sou V. Anderson, 1 Camp. 43, n. ; 
 Groodson V. Brooke, 4 Camp. 163. 
 
 ' Bousfield ». Cress-well, 2 Camp. 
 644. 
 
CHAP. IV.] THE ASSURED AND BROKER. 207 
 
 The broker, after adjusting and passing the loss in account,' May be sued 
 thereby depriving the assured, when cognisant of the usage,' reoeh°ed7 
 of all legal remedy against the underwriter, is liable to the 
 assured for the amount, as money received to his use, and 
 this, although no proof be given that he has actually received 
 the money. ^ 
 
 The assured, however, may be found, by his subsequent UniesB there 
 course of dealing, to have waived his right to resort to the by thl*"^"^ 
 broker. In the following case, the brokers, after a loss had ^^'''^^^• 
 occurred, allowed the underwriter's name to be struck ofE the 
 policy, who credited them in his books with the amount. 
 They did not, however, take credit for it in their own books,' 
 and on the underwriter's bankruptcy, which took place soon 
 after, gave notice thereof to the assured, teUing him he must 
 prove for his loss under the commission. Six months after 
 this the assured settled an account with the brokers, including 
 the very loss in question, without making any complaint of 
 the erasure of the underwriter's name, or any claim in respect 
 of the loss. Lord Ellenborough ruled, that, under these cir- 
 cumstances, the assured must be considered to have waived 
 his right against the broker, and to have elected to seek his 
 remedy under the bankrupt's commission.^ 
 
 If an insurance broker, in case of a loss, pays the assured Broker 
 the full amount, in ignorance that before the loss happened ^^ ^^ge ^ 
 
 one of the underwriters had become insolvent, the money ^.^°^ reoover- 
 
 ■' mg back. 
 
 cannot, " on account of the well-known course of dealing 
 between the insiu-ance broker, the merchant, and the under-' 
 writer, be recovered back."^ 
 
 A broker in Leith there effected policies on the ship of the Broker 
 defendants, merchants in Liverpool, and, having adjusted faohes from 
 an average loss of 68 per ceiit, under the policies, he rendered ^oorermg 
 in May, 1806, an account to the defendants showing a balance 
 due to them of 170^., which the broker then paid them. 
 Some time afterwards the broker on applying for payment 
 
 1 Andre-w v. Eobinson, 3 Camp. ^ Ovington i>. Bell, 3 Camp. 237. 
 
 199; Wilkinson v. Clay, 4 Camp. ' Edgar v. Bumstead, I Camp. 
 
 171. 411. 
 
208, 
 
 IHE ASSURED AND BROKER.' 
 
 IMPART I. 
 
 of the average loss tHus adjusted failed to obtain it, to the 
 extent of 325^., in consequence of the insolvency of several of 
 the underwriters. After this, namely, in August, 1808, he 
 rendered an account of the loss to the defendants, and sued 
 them to recover hack the amount. Mansfield, C. J., said that 
 without resorting to usage, which might be difiEerent at Leith 
 and London, he must hold that after so great a lapse of time 
 between the rendering of the two accounts, the plaintiff must 
 be presumed either to have received actual payment of the loss 
 from the underwriters, or to have settled with them in account 
 some way or other. For the purpose of recovering from the 
 defendants, he should have apprised them in August, 1806, 
 of the state of the underwriters ; but his silence had deprived 
 them for the space of two years of all opportunity of enforc- 
 ing the policies.^ 
 
 Illegality, 
 when a 
 defence for 
 the hroker. 
 
 An agent, to whom moneys have actually been paid to the^ 
 use of the principal, has no right to inquire into the legality 
 of the transactions out of which the payment arose. Hence, 
 where a loss is paid over by the underwriter to the broker, 
 the latter cannot, to an action by the assured to recover the 
 money, set up the illegality of the insurance.^ But where 
 the money is not paid, the amount being only allowed in 
 account, as the course of dealing is not suffered, to operate in 
 illegal transactions, the money may be always stopped by 
 the principal whilst it is in transitu to the person otherwise 
 entitled to receive it; e.g., premiums on illegal insurances 
 may in such a case be stopped by the assured in the hands of 
 the broker.* 
 
 He may not An agent cannot dispute the' title of his principal; nor 
 cipS'stiti™' s^^ ^®> ^^*®^ accounting with his principal and receiving 
 money for him in that capacity, be allowed to deny this, and 
 to aver that the receipt was for some other person. 
 
 ' Jameson v. Swaiastone, 2 Camp. 
 546, in notis. 
 = Tennant v. Elliott, 1 B. & P. 3 ; 
 
 Farmer v. Eussell, 1 id. 296. 
 3 Edgar v. Fowler, 3 Bast, 222. 
 
CHAP. IV.J THBIR RIGHTS AND LIABILITIES. 209 
 
 An action for money received was brought to recover from Roberts v. 
 an insurance broker the amount of a loss received by Mm °^^^^ 
 from the underwriters on a policy effected on ship on behalf 
 of the plaiatiff, a part-owner and ship's husband. The other 
 part-owners, though they had given no directions to iasure 
 for them, gave the defendant notice not to pay the loss over 
 to the plaintiff. The Court refused to set aside the verdict 
 for the plaintiff, because the defendant being employed to 
 insure for the plaintiff's benefit, and having since received the 
 money from the underwriters, must be held to have received 
 it for his use.^ 
 
 Hamond, mortgagee of a ship for 900^., and in that capacity Dixon v. 
 registered as owner, effected an insurance for 2800^. on ship ^°^ 
 and freight, as agent for and by the direction of Flowerden, 
 the actual owner, and his partner, Davidson, and charged the 
 partnership with the premiums. The underwriters paid 
 over a total loss to Hamond, who resisted an action brought 
 by the assignees of Davidson, the surviving partner, to 
 recover the difference between the 900^. and the 2800/. on 
 the ground that, being sole registered owner, he was not 
 liable at all, or if liable, was so to the executors of Flowerden, 
 and not to the assignees of the surviving partner. The 
 Court overruled both objections, and held that as the defen- 
 dant had received the money as agent for the partnership, 
 he could not, when it was claimed of him, be permitted to 
 say that he had received it for the benefit of Flowerden 
 alone.^ 
 
 Generally speaking, brokers are justified, even after notice, To whom he 
 in paying over a loss to the party for whom as principal ^/^ ^^ 
 they effected the poUcy, unless satisfactory proof be given 
 that the supposed principal effected the policy as agent only. 
 
 The defendants, as brokers, by directions of Brown, the Bell». 
 charterer of The Lady Hood, effected an insurance for 2000/. ^ ^^' 
 
 • Eoherts v. O^by, 9 Price, 269. 
 
 2 Dixon V. Hamond, 2 B. & Aid. 310. 
 
 M. P 
 
210 
 
 THE ASSUBED AND BEOKER. 
 
 [part I. 
 
 on her freight on Brown's aecoiint. A total loss having en- 
 sued, the defendants collected the 2000/., and, notwith- 
 standing notice of the plaintiffs' claim as owners of the 
 vessel to the benefits of the insurance, they paid the money- 
 over to Brown; and the plaintiffs failed in an action to 
 recover it, because there was no evidence that Brown was the 
 plaintiffs' agent in effecting this insurance.^ 
 
 Liability of 
 assured to 
 broker for 
 premiums. 
 
 Tbeory of 
 this liability. 
 
 As a general rule, the assured is liable to the broker for 
 premiums as for money paid, whether they have been paid 
 over by the broker to the underwriter or not.^ 
 
 Parke, B., explains the legal effect of the course of deal- 
 ing in this way : — " The broker gives the underwriter credit 
 for the premiums when the policy is effected, and he, as the 
 agent of both the assured and the underwriter, is considered 
 as having paid the premiums to the underwriter, and the 
 latter as having lent it to the broker again, and so becoming 
 his creditor. The broker is then considered as having paid 
 the premium for the assured. The fact of giving credit on 
 account by the broker to the underwriter, and of the under- 
 writer by the terms of the policy having acknowledged the 
 receipt of the premium, are equivalent to actual payment." ' 
 " If," says Blackburn, J., " the opinion of that learned Judge 
 required any confirmation, it would be furnished by the 
 universal practice by which premiums are recovered by the 
 assured under the count for money had and received with- 
 out any reference as to whether or not the year during which 
 the broker generally has credit has run out so as to make 
 them payable in cash by the broker to the underwriter."* 
 
 Where a policy by deed, instead of acknowledging receipt 
 of the premium, contained a covenant from the brokers to 
 pay it, and was expressed to be effected in consideration of 
 
 1 Bell V. Jutting, 1 J. B. Moore, 
 165. 
 
 2 Airy D. Bland, 2 Park, Ins. 811 ; 
 DalzeU v. Mair, 1 Camp, 532 ; Power 
 V. Butcher, 10 B. & Or. 329. 
 
 ' Power V. Butcher, 10 B. & Or, 
 329, 347. 
 
 * Per Blackburn, J., Xenos v.. 
 WioKham (in error), 33 L. J. (C. P.) 
 13, 18 ; 14 C. B., N. S. 452. 
 
CHAP. IV.] THE BKOKER's LIEN. 211 
 
 that covenant, the Court held, that the premiums not paid 
 by the broker before his bankruptcy to the underwriters 
 could be recovered by his assignees from the assured, not 
 indeed as money paid, but as " money due for premiums for 
 policies caused and procured to be underwritten by the 
 bankrupt." 1 
 
 If a broker engages to effect an insurance with such Assured can- 
 names as should be to the satisfaction of the assured, it is policy after 
 no defence for the assured, after lying by tUl the voyage is g°Jgf ® 
 completed, to set up against an action for premiums that 
 the names of the underwriters had never been submitted to 
 him for approval.^ 
 
 The assured is also liable to the broker for the commission Liability of 
 due to him for effecting the policy, which generally amounts commissioii. 
 to five per cent on the premium.' If the broker acts under a 
 commission del credere, the rate of remuneration is, of course, 
 higher ; and this he may recover from the assured forthwith, 
 without waitiQg for the event on which his liability on the 
 guarantie depends.* 
 
 The policy, when effected, becomes in law the property The Broker's 
 of the assured who may maintain trover for it, subject -p^^^^ 
 
 to the broker's lien for premiums and commission, or for 
 the general balance of his insurance account. In practice 
 the policy after being effected, is sometimes handed over 
 by the broker to the assured, and afterwards remitted to 
 him by the assured in order to get it adjusted on the 
 occurrence of a loss;' or the broker himself usually is 
 
 1 Power V. Butcher, 10 B. & Or. a loss pledged the policy with another 
 
 329. broker for an advance of money to 
 
 is Dixon V. HotUI, i Bing. 665. himself, and afterwards the pledgee, 
 
 ' Power V. Butcher, 10 B. & Or. iond fide supposing the other the 
 
 329 ; 5 M. & Eyl. 327. owner, reoeired for the loss and re- 
 
 » Caruthers v. Graham, 14 East, paid himself out of the proceeds, and 
 
 578_ in an action by the assured against the 
 
 s A broker after the occurrence of pledgee for money had and received 
 
 p2 
 
212 
 
 THE BROKER S LIEN. 
 
 [part I. 
 
 allowed to keep it in his own possession till the final event 
 of the voyage is determined and the policy is otherwise 
 exhausted. 
 
 Whether it 
 be a general 
 or only a 
 partioulai 
 lien. 
 
 Where the broker is employed immediately by the assured 
 himseli, his lien on the policy is for the general balance of 
 his insurance account.^ If he is employed by some inter- 
 mediate agent, and he knows that to be the case, he has no 
 lien on the policy in respect of the general balance of account 
 against his immediate employer; but as against that inter- 
 mediate employer and the principal, his lien in respect of 
 the premiums and commissions on the particular transaction 
 remains good, whatever may be the agreement or practice 
 between them, if he is no party to it.^ If, on the contrary, 
 he is ignorant that the policy is not really effected for him 
 by whom he is immediately employed, he may refuse to give 
 it up until he is paid the general balance of his insurance 
 account against his immediate employer.' " The only ques- 
 tion," says Gibbs, 0. J., " is whether he knew or had reason 
 to believe that the person by whom he was employed was 
 merely an agent."* 
 
 It is not necessary in order to deprive the broker of his 
 
 to recover the money retained, it was 
 held that the defendant had a Ueu on 
 the policy for the amount. It was 
 also suggested that the assured had 
 misconceived his remedy — that he 
 should have brought trover against 
 the original broker ; Callows. Kelson, 
 10 W. R. cor. Exch. 193. 
 
 > Whitehead v. Vaughan, and 
 Parker v. Carter, cited in Cook's 
 Bankrupt Laws, 547, 7th ed. ; see 
 also OUive v. Smith, 5 Taunt. 55 (a.d. 
 1813), where G-ibbs, J., says : " I came 
 toIiOndoniul775; I was prettyearly 
 conversant vrith some business of that 
 sort, and never remember any doubt 
 to have existed in the profession 
 whether a policy broker had a Hen for 
 his general balance on the insurance 
 
 accounts." 
 
 If A. undertake to clear off the lien 
 of the broker by payment, provided 
 he give him the policy in order to 
 collect losses ; and it is given over to 
 him accordingly, this is not a promise 
 that must be in writing within the 
 statute of frauds; Castling e. Aubert, 
 2 East, 325 ; WiUiams v. Leper, 3 
 Burr. 1886. 
 
 * Fisher v. Smith, i App. Cas. 1 ; 
 Hermano v. Mildred, 9 Q. B. D. 630 ; 
 61 L. J. (Q. B.) 604. 
 
 ' See the general rule as laid down 
 by Gibbs, C. J., in Westwood v. Bell, 
 4 Camp. 352, 353. 
 
 * Ibid. ; Cahill«. Dawson, 3 0. B., 
 N. S. 106 ; 26 L. J. (C. P.) 263. 
 
CHAP. IV.J THE broker's LIEN. 213 
 
 general lien against his immediate employer, to show that Express 
 he had express notice that the party so employing him was necessary to 
 only an agent; it is enough "if he might reasonably have gXraluen. 
 inferred this from the circumstances proved. ^ It is for the 
 party, however, seeking to take away this lien to make out 
 the affirmative ; for in the absence of reasonable proof to the 
 contrary, it will be presumed that the broker believed his 
 immediate employer to be the principal.^ 
 
 D., at Liverpool, received orders from his principal abroad CahiU v. 
 to effect an insurance on a cargo of fruit, but thinking to 
 effect it more economically in London, wrote to L. there, who 
 employed N. to procure the policy. A loss was afterwards 
 paid on it to N., who retained the whole for his general 
 balance against L. ; and D. was sued by his principal for 
 negligence. If L. showed his letter of instructions to N., D. 
 might still be Kable for nominal damages for any breach of 
 his duty as agent ; if it was not shown, as there would be no 
 fruits of the insurance through the right of N. to retain the 
 money, D. might be liable for damages to the full amount ; 
 and whether it was shown or not, was the question sent to a 
 second trial; but whether D. had committed any tort was 
 not determined.' 
 
 An English merchant effected a policy for a neutral Maans«. 
 foreigner, in his own name, but informed the broker at the 
 time that the property was neutral, and the policy was 
 effected with a warranty of neutrality. This was held a 
 sufficient indication to the broker, under the circumstances, 
 that the English merchant was actkig as agent, so as to 
 deprive the broker of any hen, except for the premiums and 
 commission due on the particular policy.* 
 
 The plaintiff, abroad, enclosed to Orowgy in England an Lanyon v. 
 unindorsed bill of lading of certain goods deliverable to 
 
 1 Maans «. Henderson, 1 East, 335. 106; 26 L. J. (C. P.) 253; Man v. 
 
 •' Per Gitbs, 0. J., ia Westwood v. Shiffner, 2 East, 523. 
 
 Bell, 4 Camp. 363. * Maans ii. Henderson, 1 East, 335 ; 
 
 3 Caiill V. Dawson, 3 C. B , N. S. Snook v. Davidson, 2 Camp. 217. 
 
214 
 
 THE BBOKEe's lien. 
 
 [fart I. 
 
 Weatwood V. 
 BeU. 
 
 Mann v. 
 Forrester. 
 
 Correspon- 
 dent of mer- 
 chant abroad. 
 
 shipper's order, and directed him to effect an insurance on 
 the goods, and to employ a Liverpool house to sell them for 
 the plaintiff. Orowgy employed the defendant to effect the 
 policy, representing to him at the time that he had authority 
 to indorse the hill of lading, which he accordingly did, to a 
 person named by the defendant. The defendant effected a 
 policy, and upon the occurrence of a loss claimed to retain the 
 proceeds for the general balance on his insurance account 
 with Orowgy ; but Lord EUenborough ruled that he had no 
 right, and the plaintiff recovered the full amount, subject to 
 a deduction for premium and other charges on the particular 
 policy.' 
 
 It appeared that the plaintiff (through several intermediate 
 agencies), had employed Clarkson to effect a policy, and 
 Olarkson instructed the defendants to effect it for himself as 
 principal in the transaction, and the defendants did so " as 
 agents," debiting Olarkson v^ith the premiums ; there it was 
 held that the defendants, as against the plaintiff, had a right 
 of Hen on the policy so effected, for the general balance of 
 their insurance account -with Olarkson.^ In such a case the 
 broker may still satisfy his lien, notwithstanding notice 
 before receiving the money of the true relation of the parties 
 to the insurance. But if he after such notice pay over the 
 surplus to his immediate employer, he is still liable for it 
 to the proper principal as for money received.^ 
 
 Any mercantile agent in this country of a merchant abroad 
 has a lien on the policy which he is authorised to effect, for 
 the general balance due to him, or becoming due on his 
 account with his principal, provided the policy remain in his 
 hands.* If he has procured the policy through an insurance 
 
 ' Lanyon v. Blanohard, 2 Camp. 
 596. Per Gibbs, C. J. : "In Lanyon 
 V. Blanobard, the defendant must bo 
 taken to have had notice that the 
 person who employed him was not 
 the principal. The representation 
 made by Crowgy, that he had autho- 
 
 rity to indorse the bill of lading, was 
 abundantly sufficient to show that he 
 was only an agent ; " Westwood v. 
 BeU, i Camp. 353. 
 
 ' Westwood V. BeU, i Camp. 349. 
 
 3 Mann v. Forrester, 4 Camp. 60. 
 
 * Godiu V. London Assur. Co., 
 
CHAP. IV.] THE BEOKEk's LIEN. 215 
 
 broker, his lien attaches on the policy in the broker's hands, 
 for the broker being his agent, his possession, in contempla- 
 tion of law, is that of his employer. And the assignee of 
 the policy, who becomes so under special indorsement to him 
 of the bill of lading by the principal, takes it subject to the 
 correspondent's lien; and in case of loss, his claim against 
 the money in the broker's hands is modified accordingly.^ 
 
 If the policy be left in the hands of an agent merely as a No general 
 depositary and for safe custody, he acquires no general lien i^ftfo" safe'' 
 thereon, although he have afterwards advanced money to the o^to^y. 
 assured without other security than the policy.^ 
 
 It must be clearly understood that the general Hen of an General lien 
 insurance broker is only for the balance of his insurance wh^P *°' 
 account, and does not comprehend transactions between the 
 broker and his employer on a distinct account having no 
 relation to insurance. 
 
 In oases, indeed, where bankruptcy has intervened, demands, Secus in 
 which cannot be made the subject of lien, may frequently andmutual 
 be embraced as items of mutual credit; and, in effect, the """fi^ts. 
 broker may there avail himself of a substantial benefit, 
 although no lien attaches.^ 
 
 Such appears to have been the principle of decision in the 
 case of Ollive v. Smith ; in the subsequent case of Eose v. 
 Hart the doctrine of mutual credit was limited to cases where 
 the credits given must in their nature terminate in debts ; 
 but Gibbs, 0. J., as the organ of the Court was careful to 
 state expressly that the principle so laid down would sup- 
 port Ollive V. Smith, on the ground that in that case " the 
 
 1 Burr. 493. This case is reluctantly loss ooours. See this case considered 
 
 cited even for tlie general principles ante, pp. 118, 119. 
 
 laid down in tlie course of the judg- ^ Man v. Shifiner, 2 East, 523. 
 
 ment. It is not intended hy the text " Muir v. Meming, 1 Dowl. & Ryl. 
 
 or by this authority in the note, to set N. P. 0. 29. This was a case on a 
 
 forth that a factor under promise of a Hf e policy, which had been left with 
 
 consignment, may ensure and recover defendant, he paying the premiums 
 
 his general balance under the policy as they became due. 
 
 notwithstanding the goods are sent ^ Ollive v. Smith, 5 Taunt. 55. 
 elsewhere by the shipper before the 
 
216 
 
 THE BROKER S LIEN. 
 
 [part 1. 
 
 bankrupts were indebted to tbe defendants, and, being so 
 indebted, delivered policies of insurance to tbem to collect 
 losses under them, which, when so collected, would make the 
 defendants their debtors for the amount." ' This defence of 
 mutual credit, however, must be pleaded specially.* 
 
 What lien of 
 iosurance 
 broker is lost. 
 
 The lien of an insurance agent, as in case of every other 
 Hen at common law, depends on the continuance of possession. 
 If he voluntarily deKvers up the policy to his principal, or to 
 his order, his lien is extinguished ; so it is if he parts with 
 the policy wrongfully, as by pledging it as his own ; but not 
 so, where it is taken from him by force, or fraud, or parted 
 with by mistake.' 
 
 When, 
 though lost, 
 it revives. 
 
 As a general rule the lien of the broker revives where the 
 policy comes again into his possession;* but there are ex- 
 cepted cases. If, for instance, when the policy comes again 
 into the broker's hands, he knows or has reasonable grounds 
 to believe that his immediate employer was a mere agent 
 (he having been ignorant of the fact when he before held the 
 policy), it seems that his general lien as against his immediate 
 employer will not revive with the re-possession of the policy 
 to the prejudice of the claims of the party really assured.' 
 If during the time the policy has been out of the broker's 
 possession, it has been assigned over by his employer in 
 good faith, and for a valuable consideration to a third party, 
 the broker's general lien on the insurance account with his 
 
 • Rose V. Hart, 8 Tannt. 499 ; 2 
 Smith's L. C. 251 ; and see as to 
 OUive V. Smith, the ohservations of 
 Lord Brougham in Young v. Bank 
 of Bengal, 1 Moore's Ind. App. 
 Cases, 87; and of Maule, J., in 
 Dixon V. Stanfield, 10 C. B. 413. 
 
 ^ Hewison «■•. Grutkrie, 2 Bing. N. 
 C. 755. 
 
 3 2Duer, 289. The learned jurist, 
 as usual, supports these positions by 
 
 incontestible authorities. 
 
 * Whitehead v. Vaughan, Cook's 
 Bankrupt Laws, 547, 7th ed. ; Levy 
 V. Barnard, 8 Taunt. 149 ; 2 J. B. 
 Moore, 34, 8. 0. 
 
 ^ Levy V. Barnard, 8 Taunt. 149 ; 
 S. C, 2 J. B. Moore, 34. This was 
 probably the point decided in this 
 case; but it is better with Judge 
 Duer to speak doubtfully on the 
 matter ; 2 Duer, 290, 369, 360. 
 
CHAP. IV.] BANKRUPTCY OF INSURER. 217 
 
 employer would not, it has been held in the United States, 
 revive as against the claim of such assignee.^ 
 
 If an insurance broker, having a lien on a policy, be sum- Production of 
 moned as a witness to produce it under a subpoena duces a°su^^ucT 
 tecum, in an action by his employer against the underwriter, *^- 
 he is compellable to produce the policy ; but the Court wiU, 
 if the plaintifE in such action obtain a verdict, prevent the 
 money from being paid over to him until the broker's lien is 
 satisfied.^ 
 
 The general rule, as we have seen, is, that the broker, and Eights and 
 not the assured, is the debtor of the underwriter for the ^e Broker"* 
 premiums. " By the course of dealing," says Lord Wensley- ^"^ *lie 
 dale, " the broker gives the underwriter credit for the or Trustee of 
 premium when the policy is effected, and he, as the agent underwriter, 
 of both the assured and the underwriter, is considered as 
 having paid the premium to the underwriter, and the latter 
 as having lent it to the broker again, and so becoming his 
 creditor." ^ 
 
 Generally speaking, however, it is only the broker im- WhicK 
 mediately concerned in effecting the policy to whom the ^° ^^' 
 
 ' Spring V. S. Carolina Ins. Co., 8 broker was oompeUaWe to produce 
 
 Wteat. 289, cited 2 Duer, 290. the policy) "deprive the party of his 
 
 * Hunter v. Leathley, 10 B. & Cr. lien, he still has the policy in his pos- 
 
 858 ; /S. C. at N. P. , Lloyd & Welsby, session, and has the same right of Uen 
 
 125. It appears by the Nisi Prius as before ;"— his Lordship obviously 
 
 report that the broker, after objection means that the Court would take care 
 
 made, produced the policy, "on an that the broker's Hen should be satis- 
 
 assuranoe from Lord Tenterden, that, fied out of the fruits of the judgment, 
 
 if the plaintiffs recovered a verdict, if it passed for the plaintiffs ; if it did 
 
 the Court would prevent the money not he would, of course, be in the 
 
 from being paid over to them till the same position as before, 
 witness's lien was discharged;" Lloyd ' Per Parke, J., Powers. Butcher, 
 
 & Welsby, 125. This explains the 10 B. & Cr. 329, 3i7. And per 
 
 meaning of what Lord Tenterden is Blackburn, J., Xenos v. Wickham, 
 
 reported to have said in banc. "We 33 L. J. (C. P.) 13, 17 ; 14 C. B., N. 
 
 do not by this decision" (i.e., that the S. 452. 
 
218 
 
 THE BROKER AND INSURER, 
 
 [part I. 
 
 Defences open 
 to the broker. 
 
 Underwriter 
 may reooTer 
 back monies 
 improperly 
 paid. 
 
 underwriter can resort for premiums, on tlie plain principle 
 that it is to him alone he has given credit for them.^ 
 
 Being thus in the place of the assured, the broker generally 
 has the same ground of defence against the claim for pre- 
 miums as the assured ■would have if he had effected the 
 policy without the intervention of a broker.^ 
 
 Hence, a broker is only liable to the underwriter for 
 premiums due on legal insurances. Therefore, in the case of 
 premiums for re-insurance known to all to be then illegal, 
 where no money had passed, and the assured had enjoined 
 the brokers not to pay the underwriters on the ground of 
 illegality, Lord EUenborough held that no action could be 
 maintained by the assignees of the underwriters against the 
 brokers for the recovery of the premiums as money paid to 
 the use of the bankrupt.^ 
 
 If the premiums had actually been paid to the brokers 
 by their employers, in such case the action would be main- 
 tainable.* 
 
 If an underwriter have, by mistake, paid the broker a 
 foul loss, to which the assured is not entitled, he may re- 
 cover it back as money had and received to his use, in case 
 
 ' In a case of Eobson v. Wilson, 
 cited 1 Marsh. Ins. 301, the Court 
 allowed the underwriter to reooyer 
 against the first broker when the 
 broker that effected the policies for 
 the first had become bankrupt ; but 
 the case is far too doubtful to be of 
 much authority. 
 
 " Per Lord EUenborough, 6 M. & 
 Sel. 287. 
 
 3 Edgar j;. Fowler, 3 East, 222, 224. 
 So, where the language of the policy 
 was large enough to comprise an il- 
 legal adventure, and it was proved 
 that the assured had contemplated it, 
 the underwriter was held not entitled 
 to sue for the premium -which had 
 not been paid by the assured to the 
 broker; Jenkins :;. Power, 6 M. & 
 Sel. 282. 
 
 « In Tennant v. EUiott, 1 B. & P. 
 3, it was held in an action by the 
 assured against the broker, that the 
 defendant had no right to retain as 
 against the plaintiff monies paid to 
 him by the underwriter as the amount 
 of loss on an illegal insurance. This 
 case, as Judge Duer remarks, "pro- 
 ceeds on a rule of uuiTcrsal applica- 
 tion, viz., that the person to whom 
 monies have been actually paid to 
 the use of another, has no right to 
 inquire into the legality of the trans- 
 action out of Tvhich the payment 
 arose." So, Beestou v. Beeston, 1 
 Ex. D. 13 ; He Teignmouth Mutual 
 Shipping Ass. (Martin's claim), L. 
 E., U Eq. 148 ; Duer, yoI. ii. 366- 
 371. 
 
CHAP. IV.J AND INSUEEK's TRUSTEE. 219 
 
 the broker has not already paid it over to his principal. 
 Merely passing it in account with his principal is not equiva- 
 lent to paying it over, and no answer to such an action; 
 secus retaining portion of the money in payment of an ad- 
 justed balance due to him from his principal.'- 
 
 In considering the right of set-off, it is as well to remember Eight of 
 that the contract of marine insurance is still a contract 
 sounding in unliquidated damages, even after an adjustment 
 of a loss under the policy,^ and notwithstanding it be a 
 valued policy.^ It consequently follows that any claim for 
 such a loss cannot give a right of set-off under the Statutes of 
 Set-off. 
 
 We have seen that the ordinary relations between the three Set-ofE in 
 parties to this contract result in this, that the broker is the 
 debtor of the underwriter for premiums, and the underwriter 
 the debtor of the assured for losses. It is when the bank- 
 ruptcy of one of these parties ensues, say the bankruptcy of 
 the underwriter or the broker, that the question of the right 
 of set-off arises, to be determined by the answer to this other 
 question, whether there has been in relation to the poUcy such 
 mutual credit or mutual dealings between these two parties 
 as can be recognised as being within the Bankrupt Act.* 
 
 One of the earliest reported cases was Wilson v. Oreighton, 'Wilson v. 
 
 decided in 1782. It was an action by assignees of a bankrupt 
 underwriter against an insurance agent, for premiums passed 
 in account in the usual way ; plea, set-off as to losses and 
 
 ' Supposing, i. e., as Judge Duer ^ Castelli v. Boddington, 1 E. & 
 
 observes, the oiroumstances to be such B. 66; 22 L. J. (Q. B.) 5; Luokie 
 
 that the broker had a right to revoke v. Bushby, 13 C. B. 864 ; Thompson 
 
 the credit he had given to the assured, v. Redman, 11 M. & W. 487. 
 
 2 Duer, 269, note a. Buller v. Har- ^ King ^. Walker, 2 H. & 0. 884, 
 
 rison, 2 Oowp. 565 ; Holland v. in error, 3rd ed. 209 ; 33 L. J. (Ex.) 
 
 EnsseU, 1 B. & S. 424 ; 30 L. J. (Q. 167, 325. 
 
 B.) 308 ; in error, 4 B. & S. 14 ; 32 M6 & 47 Vict. u. 52, s. 38. 
 L. J. (Q. B.) 297. 
 
 Oreighton. 
 
220 
 
 THE BROKER AND INSURER, 
 
 [part I. 
 
 Grove v. 
 Dubois. 
 
 Lord Mans- 
 field on the 
 effect of a 
 commission 
 del credere. 
 
 Opinions of 
 Lord Ellen- 
 borough and 
 Sir V. Gibbs. 
 
 return of premiums. He had not acted del credere, but simply 
 as agent in this country for various foreign correspondents, 
 effecting the policies on goods consigned by him to his 
 principals abroad, to aU of whom, except one, he was at the 
 time of action brought, in advance more or less on the insur- 
 ance account between them. The Court (Lord Mansfield, 
 C. J., Wnies, Ashurst, and Buller, JJ.), unanimously held 
 that the losses and return of premiums were not the subject 
 of set-ofi under the mutual credit clause, because there was 
 no mutuality — the debts were in different rights and due to 
 different parties.' 
 
 The next case in which the question arose was the often- 
 cited one of Grove v. Dubois, 1786, also an action by the 
 assignees of a bankrupt underwriter for premiums. The 
 defendant had effected the policies in his own name for 
 foreign correspondents, unknown to the bankrupt, under a 
 commission del credere, being debited in his underwriter's 
 accounts for premiums, and always retained the policies in 
 his own hands. Under these circumstances the Court of 
 King's Bench held, that the defendant had a right, under the 
 mutual credit clause, to the set-off he claimed. " The whole 
 turns," said Lord Mansfield, " on the nature of a commission 
 del credere. Then what is it ? It is an absolute engagement 
 to the principal from the broker that makes him liable in the 
 first instance."^ 
 
 Lord EUenborough and Sir Yicary Gibbs, especially the 
 latter, frequently professed their inability to understand the 
 ground of the decision as thus stated by Lord Mansfield ; ' 
 they refused, however, to disturb the case, as after it had 
 been long acted upon, that might have been attended with 
 incoiTvenience ; but, on the other hand, they carefully avoided 
 
 ' WUson V. Creighton, cited in 1 
 T. Eep. 113, and reported 3 Dougl. 
 132. 
 
 ' Grove v. Dubois, 1 T. R. 112, 
 116. 
 
 ' See 1 M. & Sel. 498 ; Koster v. 
 
 Langhom, 2 Marshall's E. 215 ; S. C. 
 6 Taunt. 519 ; Peele v. Northoote, 7 
 Taunt. 478. The American jurists 
 treat the case of Grove v. Dubois aa 
 clearly overruled on this point by the 
 subsequent authorities ; see 2 Duer; 
 
 Eason, 2 M. & Sel. 117; Baker v. 375, where all are collected. 
 
CHAP, IV.J AND insurer's TRUSTEE. 221 
 
 applying it by analogy to other oases, as wUl sufficiently 
 appear by the following decisions : — 
 
 Koster v. Eason was an action by assignees of a bankrupt Koster v. 
 underwriter against brokers for premiums passed in account 
 with the bankrupt, on nineteen poHoies of insurance ; plea 
 by the defendants, who had acted under a del credere 
 commission, of set-off as to unadjusted losses due from the 
 bankrupt. 
 
 As to five out of the nineteen policies, the Court allowed 
 the claim of set-off, because these policies had been effected in 
 their own name and on their own account ; and as to four 
 others in the name but not on account of the defendants, the 
 Court held that the right of set-off ought to be allowed, 
 because upon these policies the defendants could sue in their 
 own names, and on their own account, provided they had a 
 lien on the policies, or had paid the losses over to their 
 employers ; and the bankrupt, by subscribing to a policy so 
 effected, had consented that they should stand as principals, 
 and be considered as giving him credit on the policy at their 
 own risk, and on their own account. The remaining ten were 
 neither in the name nor on account of defendants, and as to 
 these the Court held, on the ground of want of mutuality of 
 credit, that the claim of set-off could not be allowed.^ 
 
 An agent who has a lien on a policy, effected in his own 
 name though not on his own account, may set off losses as 
 mutual credits in an action against him by the assignees of 
 a bankrupt underwriter for premiums, even though he has 
 not a del credere commission ; e.g., the consignees of a cargo, 
 having a lien in respect of bills accepted by them on accoimt 
 of the cargo. " Here," said Lord Ellenborough, " if the 
 parties had not had a Hen, their names would have stood on 
 the policy as mere naked names, not coupled vrath an interest; 
 but they may have an interest not only by a del credere 
 commission, but also by a Hen." ^ Accordingly, in a similar 
 
 • Koster ». Eason, 2 M. &Sel. 112. ^ Parker v. Beasley, 2 M. & Sel. 
 
 423, 427. 
 
222 THE BROKER AND INSURER, [PART I, 
 
 action against a broker who had effected a policy in his own 
 name on the goods of his principal at his request, the broker 
 having a lien on the goods for a greater sum than that which 
 he claimed to set off in the action, the Court of Common 
 Pleas held him entitled to a right of set-off.^ 
 
 In 1868 the principle underlying these decisions was again 
 brought into question in the case of Lee v. Bullen. That 
 was an action for premiums by assignees of a bankrupt 
 underwriter against the broker, who pleaded a set-off for 
 return of premiums and for losses. The policies had been 
 effected by the defendant in his own name, he had given the 
 assured a del credere guarantie, and continued to hold the 
 policies. Lord Campbell, 0. J., said, " Both on principle and 
 according to decided cases, I am quite clear that the facts 
 raised a good defence. There was mutual credit between 
 the parties ; the underwriter trusts the brokers for the 
 premiums, and they on the poUoy trust him that he will 
 fulfil his engagement. The policy being effected in the 
 names of the defendants, and they guaranteeing the solvency 
 of the underwriter, the defendants are not merely nominal 
 contractors, but had a real interest in the contract. This, 
 therefore, is a case of mutual credit, both on principle and 
 the cases decided. Koster v. Eason and Parker ». Beasley 
 are especially in point as to the construction to be put on the 
 mutual credit clauses as between an underwriter and the per- 
 son thus effecting the policy." ^ 
 Baierv. Where, however, brokers, not having a del credere com- 
 
 mission, effected the policy in their own names, but expressly 
 on the face of it " as agents," and although they retained 
 the policy as security for a debt due to them from the 
 assured, Qibbs, C. J., held, that they could not set off losses 
 in an action by the assignees for premiums. " If," said the 
 Chief Justice, " I underwrite for A. B. in his own name 
 without proof that he is acting for another, I must take bim 
 
 1 DaviesD.Wilkmson.lBmg. 673. ^ Lee v. Bullen, 27 L. J. (Q. B.) 
 
 161 ; 8 E. & B. 692, n. 
 
 LanghoTD. 
 
CHAP. IV.] AND insurer's TRUSTEE. 223 
 
 to be the principal ; but if he be acting expressly as agent, I 
 know that he is not the principal, and that any contract I 
 may enter into with Mm is not a contract of insurance." ^ 
 The same Court in a subsequent case decided against the Peeler. 
 claim to set ofE where the policy was not effected in the name 
 of the broker, nor had been left in his hands, but he had paid 
 a loss upon it under a del credere commission; the Court 
 adding that the mere fact of its having been effected del 
 credere, and notwithstanding there was express notice of this 
 on the face of the policy, could not alter the relations of the 
 broker and the underwriter, nor let in the claim to set off ; 
 for the guarantie of the underwriter's solvency was res inter 
 alios a contract between the broker and the assured, and 
 the broker was paid his commission del credere for such 
 guarantie.2 
 
 The cases hitherto considered have turned upon the right Eetum 
 of the broker to deduct losses from premiums ; those which against 
 follow relate to the broker's right to make a similar deduction P'^emiums. 
 in respect of returns of premium and depend upon different 
 principles. 
 
 The amount of premium ultimately paid to the under- Occasion of 
 writer may very frequently depend on contingencies which premiums, 
 cannot for some time be ascertained. For instance, goods 
 coming from abroad are insured at a premium of ten guineas 
 per cent., to be reduced to five if the ship sail with convoy, 
 and to be further reduced in case of short interest; the 
 amount of premium finally payable cannot in such case be 
 ascertained, until it be known whether the ship, in fact, 
 sailed with convoy or not, and whether the interest really 
 falls below the amount insured. 
 
 Accordingly, the general custom as between insurance Usage as to, 
 brokers and underwriters is, that if at the time of settlement ™ ^ ^' 
 of their mutual account, there be returns of premium pending. 
 
 1 Baker v. Langhom, 2 Marshall's i Camp. 396. 
 Rep. 215, 216 ; 6 Taunt. 519 ; S. C, ''■ Peele v. Northoote, 7 Taunt. 478. 
 
224 
 
 THE BROKEK AND INSURER, 
 
 [part I. 
 
 the balance of the settled account, instead of being paid over, 
 becomes the first item of account for the ensuing year, and 
 the pending returns of premium, as they successively occur, 
 are carried to the debit of the underwriter in such subsequent 
 account, and the adjusted balance is not paid over to the 
 underwriter until all returns of premium so pending are 
 actually ascertained and deducted.^ 
 
 Belation of 
 the broker 
 meanwhile. 
 
 Legal conse- 
 quences of 
 this relation. 
 
 Until, therefore, the sum to be deducted for returns of 
 premium is ascertained, in other words, until the events are 
 determined, upon which the amount of premium actually 
 payable to the underwriter depends, the broker is the mutual 
 agent of the assured and the underwriters, for the one to pay 
 and for the other to receive.^ 
 
 , Either party may, indeed, determine this agency when he 
 pleases ; the assured, by taking the policy out of the hands 
 of the broker who has eilected it, paying him, of course, 
 what he owes him at the time, and placing it in the hands of 
 another broker to get it adjusted;' and the underwriter, by 
 at once compelling the broker to pay over the full premium, 
 leaving nothing in reserve in the broker's hands to answer 
 any returns when they shall become due.* If the under- 
 writer do not thus determine it, the broker's agency for the 
 deduction of such returns, under ordinary circumstances, 
 continues; and in that case upon action against him for 
 the fuU amount of premium, the broker is entitled to set 
 off the amount of returns which as the underwriter's agent 
 he was authorized to deduct.* Consequently, the question 
 as to this right of the broker is a question of continuing 
 agency. 
 
 In case of TMs agency for the underwriter ceases i^so facto by his 
 
 Bankruptcy, bankruptcy or death ; the broker cannot avail himself of this 
 
 ^ See Goldschmidt v. Lyon, 4 
 Taunt. 534. 
 
 ' Per Lord Ellenborough in Shee 
 V. Clarkson, 12 East, 507, 510. 
 
 ' Per Mansfield, 0. J., in Minett 
 V. Forrester, 4 Taunt. 541, 543, note. 
 * Ibid. 544. 
 ' Shee V. Clarkson, 12 East, 607. 
 
CHAP. IV. J AND INSTJKER's ASSIGNEES. 225 
 
 defence in an action by the assignees of a bankrupt, or the 
 executors of a deceased underwriter, unless the returns of 
 premium have been actually adjusted in account between 
 the broker and the underwriter, before the bankruptcy or 
 death. 
 
 Thus, where the assignees of a bankrupt underwriter Miaettv. 
 brought their action against a broker for premiums due on 
 two policies of insurance, in respect of which he claimed to 
 set off returns of premium for short interest ; and it appeared 
 that the events which entitled the broker to make this deduc- 
 tion had occurred and become known to him, on the one 
 policy before the bankruptcy ; on the other policy, not till 
 after that event ; but that no adjustment had been made on 
 either policy: — the Court held, that, as the agency of the 
 broker had been determined by the bankruptcy of the under- 
 writer, he was not entitled to this set-off either on the one 
 policy or on the other.^ 
 
 The Court of Common Pleas applied the same principles Houstoum). 
 to actions by the executors of a deceased underwriter, and 
 held that no set-off could be allowed in respect of returns 
 of premiums, in case the events entitling thereto were not 
 known till after the underwriter's death.^ 
 
 In a subsequent case it was decided that all these rules Belcreiere 
 apply exactly in the same way, whether the broker acted difference, 
 under a del credere commission or not.' 
 
 More recently the benefit of such a set-off against a claim Alleged 
 for premiums by the executors of a deceased underwriter Lloyd's to 
 
 .s. 
 
 was sought under plea of a custom at Lloyd's to retain all ^"y^gut of 
 premiums in hand as against the executors of the under- premiumi 
 writer until all the risks underwritten by him were run off, 
 
 1 Miuett V. Forrester, 4 Taunt. ' Houstoun v. Robertson, 6 Taunt. 
 
 541, 544; G-oldsolimidt v. Lypn, 4 448; 2 Marshall's Eep. 138. 
 Taunt. 533. Accord. Parkert). Smith, ^ Houstoun v. Bordenave, 6 Taunt, 
 
 16 East, 382. 451 ; 2 Marshall's Eep. 141. 
 
 M. U 
 
226 THE BROKER AND INSURER. [PART I. 
 
 that is, were determmed or adjusted, tut the Court, merely- 
 saying that such a custom as against executors and assignees 
 must he inconvenient, if lawful, held upon the evidence in 
 the case, that the existence of the custom was not esta- 
 blished.^ 
 
 " Beckwith v. BuUen, 8 E. & B. 683 ; 27 L. J. (Q. B.) 162. 
 
CHAPTEE V. 
 
 THE POLICY. 
 
 What it is - - - - 227 
 Form of Lloyd's Policy - - 231 
 
 Clauses 233 
 
 Express warranties - - - 252 
 Implied -vrarranties - - - 253 
 Stamps .... 255 
 
 Slips 259 
 
 Corrections and alterations - 261 
 
 at common law - - - 261 
 
 under the Stamp Acts - - 267 
 
 Perfecting and cancelling policy 271 
 
 Construction of policy - - 275 
 
 The instrument embodying the contract of sea iasurance is What a 
 
 -,, J T £ • policy is. 
 called a policy oi msurance. 
 
 No contract of sea insurance (other than such insurance 
 as is referred to in the 55th section of the Merchant Ship- 
 ping Act Amendment Act, 1862, 25 & 26 Vict. c. 63) is 
 Talid unless it be expressed in a policy.^ 
 
 Any carrier by sea or other person who shall, by agree- 
 ment for an additional sum for freight or otherwise, under- 
 take to insure the goods while on board, must express this 
 agreement in a policy, otherwise it is invalid and cannot be 
 enforced.^ 
 
 Every policy must specify the particular risk or adventure, 
 the names of the subscribers or underwriters, and the sum 
 or sums insured; and in case any of these particulars be 
 omitted in any policy, such policy is void to all intents and 
 purposes.^ 
 
 1 30 Vict. 0. 23, s. 7. 
 » Ibid. SB. 12, 7. 
 
 ' Ibid. s. 7. In re The Arthur 
 Average Ass., L. R., 10 Oh. App. 
 
 542 ; In re Padstow Total Loss Ass., 
 20 Ch. D. 137. See ante, pp. 153, 
 154. 
 
 Ci2 
 
228 FORM OF POLICY. [PART I. 
 
 No polioj is good or available in law or in equity, unless 
 duly stamped ; and on no pretence whatever may it be law- 
 fully stamped after being underwritten, except in these two 
 cases, viz. : (1) a policy of mutual assurance under impressed 
 stamp may, after being underwritten, - if not in excess of 
 what the stamp will bear, be impressed with additional 
 stamps or stamp ; ' (2) a policy made abroad, and chargeable 
 with duty under 30 Vict. c. 23, may be stamped within 
 fourteen days after being first received in the United 
 Kingdom." 
 
 Any policy made for any time exceeding twelve months is 
 null and void to all intents and purposes.' 
 
 These enactments are further enforced and maintained by 
 penalties against any one becoming an assurer, or as broker 
 or agent effecting or procuring an insurance, except by a 
 duly stamped policy, or making or issuing what purports to 
 be a copy of a policy at a time when no such policy duly 
 stamped is in existence.* 
 
 Moreover, if the insurance is not expressed in a duly 
 stamped policy, no brokerage or agency, or other sum in the 
 nature thereof, can be legally claimed in respect of it ; nor 
 any premiums, or other consideration in the nature of pre- 
 mium, be recovered by the agent or broker against the 
 assured ; and aU sums actually paid on any such account by 
 the assured to his broker or any person negotiating, trans- 
 acting, or making any insurance contrary to the Act, may 
 
 1 30 Vict. c. 23, s. 9. It appeared JJe Teignmouth Mutual Shipping 
 
 on the minute books of an insurance Aes. (Martin's claim), L. E,., 14 Eq. 
 
 club which was being wound up that 148. 
 
 a loss upon a ship had been reported ' 28 & 29 Vict. c. 96, s. 15, is re- 
 
 to the club, and the money due in pealed by 33 & 34 Vict. u. 99. The 
 
 respect of it raised by the committee, stamping of policies made out of the 
 
 but retained by the secretary till it United Kingdom is governed by the 
 
 should be claimed by the personal 30 Vict. o. 23 ; 33 & 34 Vict. u. 97, 
 
 representative of the deceased mem T s. 117; and 44 & 45 Vict. c. 12, 
 
 her: there the widow recovered as a s. 44. 
 
 creditor of the club', although no ' 30 Vict. o. 23' s. 8. 
 
 btamped policy could be produced; ' Ibid. ss. 13 14 15. 
 
CHAP. V,] FORM OF POLICY. 229 
 
 be recovered back as money received for the use of the 
 assured.^ 
 
 Every policy must contain the name or firm of one or 
 more persons interested in the insurance, or of the consignor 
 or consignee, or of the person or persons residing in this 
 country who shall receive and effect the order to insure, or 
 of the person or persons who shall give such order to the 
 agent immediately employed to effect the insurance ; other- 
 wise the same is to be null and void to all intents and 
 purposes.^ 
 
 There are interest and uager policies, valued and open Different 
 T . ,. , ... designations 
 
 policies, time and voyage policies. of. 
 
 An interest policy is one that shows by its form that the Interest 
 
 policies, 
 assured has a real, substantial interest in the thing insured ; 
 
 in other words, that the contract embodied by the policy is 
 
 a contract of indemnity, and not a wager. All the common 
 
 forms of policy are adapted to transactions of this nature ; 
 
 and every policy is taken to be an interest policy, unless the 
 
 contrary is clearly expressed on the face of it.^ 
 
 A wager policy is one that shows on the face of it that Wager 
 
 the contract it embodies is not really an insurance, but a 
 
 wager, — a pretended insurance, founded on a fictitious risk 
 
 where the assured has no interest in any subject of insurance, 
 
 and can, therefore, sustain no loss by the happening of any of 
 
 the casualties against which the supposed insurance professes 
 
 to protect him. Such a wager policy is generally known by 
 
 having one or other of the following clauses expressed on the 
 
 face of it : — " interest or no interest," — or, " without further 
 
 proof of interest than the policy; " — or, "policy to be deemed 
 
 sufficient proof of interest ; "* — or, " without benefit of salvage 
 
 to the insurer," or some analogous clause, showing that the 
 
 assured means to give no proof, except the mere production 
 
 of the policy itself, of his having any interest whatever in 
 
 1 Ibid. B. 16. 513. 
 
 2 28 Geo. 3, c. 56, ss. 1 and 2. " Murphy v. Bell, 4 Bing 567. 
 ' See Cousins v. Nantes, 3 Taunt, 
 
230 
 
 rORM OF POLICE. 
 
 [part I, 
 
 A valued 
 policy. 
 
 An open 
 policy, 
 
 A voyage 
 policy, 
 
 A time 
 policy. 
 
 A mixed 
 policy. 
 
 the sutject insured, and thereby violating directly the proi 
 ■visions of the 19 Geo. 2, o. 37, enacted against such policies 
 on British property. 
 
 A valued policy is one in which the agreed value of the 
 subject insured, as between the assured and underwriter, for 
 the purposes of the insurance, is expressed on the face of the 
 policy. 
 
 An open policy is one in which the value of the subject 
 insured is not thus fixed or agreed in the policy, as between 
 the assured and the underwriter, but is left to be estimated 
 in case of loss. 
 
 Hence the chief practical difference between valued and 
 open policies in case of loss is, that in the former, the value 
 is fixed by the policy, — iu the latter it must be proved by 
 the production of tradesmen's bills, invoices, bills of shipping 
 charges, surveyor's estimates, and other necessary vouchers. 
 As the value of ship and freight is more difiicult to prove in 
 this way than the value of goods, the former interests are 
 generally insured in valued, the latter frequently in open 
 policies. 
 
 A voyage policy is one in which the duration of the risk is 
 for a particular voyage, the limits of which are designated in 
 the policy by specifying a certain place at which it is to 
 begin (called the terminus a quo) ; and another at which it is 
 to end (called the terminus ad quern) ; as, for instance, where 
 a ship is insured " at and from," — or merely " from — London 
 to Buenos Ayres." 
 
 A time policy is one in which the limits of the risk are 
 designated only by certain fixed moments of time, at which 
 it is respectively to- begin and end: as where a ship is 
 insured "from noon of the 1st day of January, a.d. 1886, to 
 noon of the 1st day of January, 1887." 
 
 Policies are also occasionally effected which, in form, par- 
 take of the nature both of time and voyage policies; as 
 where a ship is insured "from London to Buenos Ayres 
 for six months;" or, "from noon of the 1st of January, 
 A.D. 1886, to noon of the 1st of June in the same year, on 
 ship at and from London to Buenos Ayres." 
 
CHAP. V.J FORM OF TOLICY. 231 
 
 The Forms of Policy employed in different mercantile Ourcommoi 
 communities are exceedingly various ; the merchants and pXy°* ^^' 
 
 underwriters of our own country have adhered with perse- 
 
 vering tenacity to the venerahle old form which was intro- 
 duced at an early period into England, protably ahout 
 1450 A.D., when the practice of marine insurance was being 
 assumed into the hands of English merchants under a power- 
 ful feeling of jealous rivalry and opposition to the Lombard 
 traders, who had long settled in London about the street still 
 known by their name and had secured for themselves a 
 monopoly of the business of insurance and exchange. 
 
 The form of this instrument to any one not accustomed to 
 use it, may well seem complex and cumbersome, since it has 
 been drawn in the simple phraseology of daily life but with 
 an accumulation of clauses intended to be comprehensive and 
 to meet the requisites of men seeking insurance on any of all 
 the usual subjects exposed to sea perils ; yet long use, and a 
 variety of decisions, have now given it such a degree of 
 certainty, and the sanction of the Legislature a second time 
 bestowed upon it^ seems to impart to it such authority, that 
 it is likely now to be retained among the chief instruments 
 of English commerce. 
 
 The following is the statutory form of this policy : — 
 
 S Q._ Be it known that [ ] as well in (i) (2) Name 
 
 [ ] (l)j 0'^'"'^ name, (2) as for and in the name and names of ^Jj^^ed or 
 
 Z ' all and every other person or persons to whom the same doth, may, or shall their agents. 
 
 - , =, appertain, in part or in all, doth make assorance and cause [ 
 
 Delivered \ ] and them and every of them tc^be insured, (3) lost or (3) "Lost or 
 
 of^ iss"!] not lost, (4) at and from [ ] iiotlost." 
 
 (4) yoy&SQ 
 No. . (5) upon any kind of goods and merchandises, and also upon the body, tackle, msured. 
 
 apparel, ordnance, munition, artillery, boat and other furniture, of and in the [5) Sutject 
 [Stamp.] good ship or vessel (6) called the [ ] ^°f™^?' 
 
 f lo.oPO whereof is master, imder God for this present voyage [ master, 
 
 of sums ] or whosoever else shall go for master 
 insured.] ^ _^_____^ 
 
 ' It was printed in the schedule to Statute of Insurance Law, the 30 
 the 35 Geo. 3, c. 63, and is repriated Vict, u, 23, 
 in the schedule to the Consolidated 
 
232 
 
 FOEM OF POLICY. 
 
 [part I, 
 
 Delivered on 
 the day 
 
 of 
 
 [day on which 
 issued.] 
 
 No. 
 
 ['Number of 
 policy in bro- 
 ker's account, 
 where the 
 stamped forms 
 are supplied on 
 credit.] 
 
 in the said ship, or by whatsoever other name or names the same ship or the 
 master thereof is or shall he named or called, (7) beginning the adventure 
 upon the said goods and merchandises from the loading thereof aboard the 
 said ship [ ], upon the said ship, &c. [ J, and 
 
 shall so continue and endure, during her abode there upon the said ship, &o. ; 
 and further until the said ship, with all jher ordnance, tackle, apparel, &c. , and 
 goods and merchandises ■whatsoever shall be arrived at [ 
 
 ], upon the said ship, &c., 
 until she hathmoored at anchor twenty-four hours in good safety, and upon the 
 goods and merchandises until the same be there discharged and safely landed ; 
 (8) and it shall be lawful for the said ship, &o., in this voyage to proceed and 
 sail to and touch and stay at any ports or places whatsoever [ 
 
 ] without prejudice 
 to this insurance. (9) The said ship, &c., goods and merchandises, &c. , for so 
 much as concerns, the assured, by agreement between the assured and assurers 
 in this policy, are and shall be valued at [ ]. 
 
 (10) Touching the adventures and perils which we the assurers are contented 
 to bear and do take upon us in this voyage, they are of the seas, men of war, 
 fire, enemies, pirates, rovers, thieves, jettiBons, letters of mart and countermart, 
 surprisals, takings at sea, arrests, restraints and detainments of all kings, 
 princes and people of what nation, condition or quality soever, barratry of the 
 master and mariners, and of all other perils, losses and misf ortimes that have 
 or shall come to the hurt, detriment or damage of the said goods and merchan- 
 dises and ship, &c., or any part thereof ; (11) and in case of any loss or mis- 
 fortune it shall be lawful to the assured, their factors, servants and assigns, to 
 sue, labour and travel for, in and about the defence, safeguard and recovery 
 of the said goods and merchandises and ship, &c., or any part thereof, without 
 prejudice to this insurance ; (12) to the charges whereof we the assurers wiU 
 contribute, each one according to the rate and quantity of his sum herein 
 assured. (13) And it is agreed by us the in&urers, that this writing or policy 
 of assurance shaU be of as much force and effect as the surest writing or policy 
 of assurance heretofore made in Lombard Street or in the Royal Exchange, 
 or elsewhere in London. (14) And so we the assurers are contented and do 
 hereby promise and bind ourselves, each one for his own part, our heirs, exe- 
 cutors, and goods, to the assured, their executors, administrators and assigns, 
 for the true performance of the premises, (15) confessing ourselves paid the 
 consideration due unto us for this assurance by the assured [ ] 
 
 (16) at and after the rate of [ ] ; 
 
 (17) In witness whereof we, the assurers, have subscribed our names and 
 sums assured in [ ]. 
 
 (18) N.B.— Com, fish, salt, fruit, flour, and seed are warranted free from 
 average, unless general, or the ship be stranded ; sugar, tobacco, hemp, flax, 
 hides and skins are warranted free from average under five pounds per cent. ; 
 and aU other goods, also the ship and freight, are warranted free from average 
 under three pounds per cent., unless general, or the ship be stranded. 
 
 (19) [ 
 
 £ {sum mfignres) A. B. [mm in words) day of 
 
 £ ( ditto ) C. D. ( diiio ) day of 
 
 £ ( ditto )E. F. ( ditto ) day of 
 
 {and so on, until the aggregate amount of the different sums subscribed by each 
 
 underwriter equals the amoumt required to be iwsMrefi).] 
 
 (7) Limits 
 of risk. 
 
 A.D. 
 A.D. 
 
 A.n. 
 
 (8) Liberty 
 to touch and 
 stay. 
 
 (9) Valua- 
 tion clause. 
 
 (10) Perils 
 
 insured 
 
 against. 
 
 (Ill (12) Sue 
 and labuur 
 clause. 
 
 (13) Binding 
 effect of 
 policy. 
 
 (14) Promise 
 to indem- 
 nify. 
 
 (IB) Pcceipt 
 clause. 
 
 (16) Rate of 
 premium. 
 
 (17) Attesta- 
 tion clause. 
 
 (18) Com- 
 mon memo- 
 randum. 
 
 (19) rndcr- 
 wnteis* 
 
 signatures. 
 
CHAP, V.J CLAUSES OF THE POLICY. 233 
 
 As this is the form in use at Lloyd's (being commonly The clauses 
 called the "Lloyd's Policy"), and very generally among detail.^"^^ 
 private underwriters throughput the United Kingdom, and ' 
 
 has in substance been adopted by the companies, we proceed 
 to consider in their order the common clauses which it usually 
 comprises, and the main requisites which are essential to its 
 validity as a contract under our law. 
 
 (1.) A policy without the names of the parties by or for Names of tte 
 whom it is effected is called a policy in blank, and is either their agents. 
 prohibited by the laws, or rejected by the practice of all 
 mercantile states. 
 
 In our own country the law in terms provides, that no 28 Geo. 3, 
 policy shall be effected without first inserting therein " the 
 name or names, or the usual style and firm of dealing," 
 either, 1. Of "one or more of the persons interested;" or, 
 2. Of "the consignor or consignees of the property to be 
 insured ; " or, 3. Of " the person or persons resident in Grreat 
 Britain who shall receive the order for and effect the policy;" 
 or, 4. Of " the person or persons who shall give the order to 
 the agent immediately employed to effect it."^ 
 
 Under the liberal construction put by the Courts of Law 
 upon this Act of Parliament, it has been reduced to a mere 
 prohibition against policies in blank. In practice, accord- 
 ingly, the name usually inserted in the policy is that of the 
 insurance broker, who insures either in his own name and on 
 his own account, or in his own name and on account of his 
 principals. 
 
 In the first case the blanks marked numbers 1 and 2, in 
 printed form, are filled up thus : — 
 
 " A. B. & Co. (style of the insurance broker's firm), as well 
 in their own names, as for and in the name and names of all 
 
 1 28 Geo. 3, o. 56. 
 
234 CLAUSES OF THE POTJCY. [PAUT I. 
 
 and every other person to whona the same doth, may, or shall 
 appertain in part or in all, do make assurance and cause 
 themselves and them and every of them to be insured," &c. 
 
 In the second case the hlanks are filled up thus : — 
 
 "A. B. & Co., as well in their own names, as for and in 
 the name and names of all and every other person to whom 
 the same doth, may, or shall appertain, in whole or in part, 
 do make assurance and cause C. D. & Co. (name or firm of 
 their employers, the parties interested), and them and every 
 of them, to be insured," &c. 
 
 If the party interested effects the policy, without the 
 intervention of a broker, he of course expresses himself to 
 have so effected it in his own name and on his own account, 
 as in the first form, merely substituting the name or style 
 of the principal for that of the broker. 
 
 Such are the usual modes in which these blanks are filled 
 up in English policies ; in practice some slight variation 
 of form occasionally occurs ; sometimes, for instance, it is 
 stated on the face of the policy that the party effecting it does 
 so " as agent for," or " at the request of " the principal ; but 
 these variations are immaterial. 
 
 The party who has thus effected the policy on account of a 
 principal is called " the nominal assured;" the piincipal him- 
 Eelf, for whom it is effected, is called "the party interested," 
 or, " the assured." 
 
 Aasigmnent (2.) The insertion of this clause, which is invariably intro- 
 
 duced into all our common printed forms of policy, is of 
 great importance, as without it no one could take advantage 
 of the policy except the party expressly named in it or his 
 principal ;i but by the aid of this clause, as we have seen, 
 any assignee of the policy may avail himself of it, who can 
 prove, either that the assignment was after the loss, or, if 
 before, that he was really interested in the subject matter 
 
 1 Browning v. Provincial Ins. Co. Hennano v. Mildred, 9 Q. B. D. 
 of Canada, L. E., 5 P. C. 263 ; 630 ; 51 L. J. (Q. B.) 604, C. A. 
 
CHAP. V.J CLAUSES OF THE POLICY. 235 
 
 of the insurance wUle the risk was pending, and at the time 
 of the loss. 'Such an assignee of the policy may now by 
 statute sue in his own name on the policy.^ 
 
 (3.) As policies are frequently effected on ships and goods Lost or not 
 whilst they are in foreign ports, or at sea, it being then un- 
 certain whether they be not actually lost before the policy 
 is effected, these words, " lost or not lost," are inserted as a 
 matter of course. 
 
 The clause, however, though never omitted, does not 
 appear to be, in all cases, strictly necessary, as there can be 
 no reason why a previous loss of the subject insured should 
 prejudice an insurance subsequently effected, if both the 
 assured and the underwriters were equally ignorant or 
 cognizant of the loss at the time of the policy being effected.^ 
 It has been decided that a policy containing this clause was 
 good, where the subject was accepted for insurance, and 
 the premium paid, before loss, although, until after a loss had 
 happened, to the knowledge both of the assured and the 
 underwriter, the policy was not executed.^ If indeed the 
 loss, at the time of effecting the policy, were known to the 
 assured only, then, on the plainest general principles, the 
 policy would be void ; but no case has determiaed that an 
 underwriter, who chooses to effect a policy with full know- 
 ledge that- the loss has actually happened, may not be bound 
 by it.* 
 
 A policy, indeed, containing this clause, is, in the words of 
 Parke, B., " clearly a contract of indemnity against all past 
 
 1 31 & 32 Vict. 0. 86, s. 1 ; see 2 Sumner's E. 397. 
 ante, p. 114. ^ Mead v. Davison, 3 A. & E. 303 ; 
 
 ? See 1 Marshall, Ins. 338—340; S. C, 4 Nev. &Man. 701. InGled- 
 1 Phillips, Ins. no. 923 ; 3 Kent's stanes v. Hoy. Exoh. Ass. Co., 34 
 Com. 259 and notesj Lord Denmau L. J. (Q. B.) 30, the loss of ship and 
 in 3 A. & E. 307 ; per Bramwell, B., goods was known to both parties he- 
 Stone V. Marine Ins. Co. (Limited) of fore the policy was effected, on which, 
 Gothenburg, 1 Ex. Div. 81, 85 ; per when advices came forward, the in- 
 Cockbum, 0. J., in Gledstanes v. terest was afterwards declared. 
 Boy. Ex. Ass. Co., 34 L. J. (Q. B.) * Per Lord Denman in 3 A. & E. 
 30, 35; Story, J., Hammond v. Allen, 308. 
 
236 CLAUSES OF THE rOIJCY. [PART I; 
 
 as well as all future losses sustained by the assured, in respect 
 of the interest insured." ^ Accordingly, on a policy on goods 
 " lost or not lost," the question was raised by the pleadings 
 whether it was any answer that the plaintiff did not acquire 
 an interest in the goods till after an average loss by sea 
 damage, and the Court held that it was not.^ Such a con- 
 tract, they considered, " operated just in the same way as if, 
 the plaintiff having purchased goods at sea, the defendant, 
 for a premium, had agreed that if the goods, at the time of 
 the purchase, had sustained any damage by the perils of the 
 sea, he would make it good."^ 
 
 The voyage (4.) In the case of a voyage policy, the underwriter 
 
 cannot know the nature of the risk he is asked to insure, 
 nor, consequently, the amount of premium he ought to 
 require, unless he knows the limits and the character of the 
 voyage on which the ship is to sail or the goods are to be 
 conveyed. In this little clause an accurate description of the 
 voyage insured, the whole course to be actually taken by the 
 ship, the track which she is to pursue through the waters, the 
 straits to be passed, the islands to be left on the one side or 
 the other, the capes she is to double, the reefs and shoals she 
 has to avoid,— all this, in the travelled course of trade and 
 navigation familiar now to the assured and insurer, is im- 
 pliedly conveyed and stipulated by simply naming the place 
 at which the voyage insured is to begin, and the place at 
 which it is to end, severally called in technical language, the 
 
 1 Per Parke, B., in Sutherland v. from his contract, and it is by the 
 Pratt, 11 M. & W. 311, 31?. seUer, not by himseU, that the loss 
 
 2 Sutherland «;. Pratt, 11 M. &W. must be sustained. As it is not a 
 296. risk to which he is subject he cannot 
 
 ' Ibid. p. 312. "This decision," cover it by an insurance." Duer.vol. 
 
 says Judge Duer, "does not embrace ii. p. 7. Accord. Coleridge, J., in 
 
 the case of a total loss by an actual Hastie v. Couturier (9 Exch. 109), 
 
 destruction of the whole or part of "If the goods had been totally lost 
 
 the goods that are the subject of the before the contract of purchase was 
 
 contract of sale. "Where such a loss made there would not be an insur- 
 
 has occurred, the purchaser, in pro- able interest, as a person cannot buy 
 
 portion to its extent, is exonerated a thing that is totally lost." 
 
CHAP, v.] CLAUSES OF THE POLICY. 237 
 
 terminus a quo, and tlie terminus ad quern of the voyage 
 insured or of the risk. 
 
 These termini must be expressed with great care and dis- 
 tinctness in the policy, as any failure herein will, as we 
 shall see hereafter, have the effect of vitiating that instru- 
 ment. ^ We shall here only mention, by way of explaining 
 the language of the instrument, the distinction between 
 insuring with the words " at and from " a place, and simply 
 insuring " from "it. 
 
 An insurance expressed in the policy to be " from A. to 
 B." only protects the subject insured from the moment of 
 the ship's sailing from A. ; ^ an insurance " at and from " 
 protects the subject insured both during the time that it is 
 in the port and from and after the time that it sails from it.' 
 As it is especially desirable, in cases where a ship is expected 
 to arrive at a certain port abroad, to protect her during her 
 whole stay in such port from the moment of her arrival, the 
 form of insurance " at and from," ought always to be adopted 
 in insuring homeward voyages ; indeed, in English policies, 
 from the many advantages it presents, it is the form almost 
 always employed in practice. 
 
 What precedes is applicable chiefly, if not entirely, to Time policies, 
 voyage policies ; time policies, instead of the termini of the 
 adventure, contain here the limits of the period over which 
 the insurance is to extend. 
 
 (5.) It is a rule, founded on very plain principles, that The subject 
 every contract of insurance ought distinctly to specify the ^°°™"® ■ 
 subject intended to be insured, whether it be ship, goods, 
 freight, profit, money advanced on bottomry and respon- 
 dentia, or other interest. 
 
 The clause in the common printed form of policy, in 
 which the subject matter of insurance is set forth, is as 
 follows: — "Upon any kind of goods and merchandises,, and 
 
 " Molloy, book ii.c. II, s. 14, as ^ I Marshall, Ins. 260. 
 
 cited 1 Marshall, Ins. 328. See also ^ Per Lord Hardwlcke in 1 Atkyns, 
 
 Syers v. Bridge, 2 Doug]. 527. 5i8. 
 
238 CLAUSES OF THE POLICY. [PART I. 
 
 also upon the body, tackle, apparel, ordnance, munition, 
 artillery, boat, and other fumitiire of and in the good ship 
 or vessel, " &c. 
 
 This, in terms, is applicable only to the ease in which the 
 same party being interested in ship and cargo, wishes to 
 insure both in one common policy. The origin of it is to 
 be looked for in the earlier ages of maritime commerce, 
 when merchants employed their own ships to carry on their 
 own trade. Now, however, the trade of the shipowner has 
 become a distinct business from that of the merchant; the 
 former considering his vessel, not as an instrument to carry 
 on his own commerce, but as itself a source of emolument ; 
 and the latter either hiring of the shipowner a vessel for the 
 transport of his goods on a given voyage, or putting his 
 goods with those of other merchants on board the same 
 vessel, and paying freight to the shipowner for the carriage 
 of them to their port of destination.' 
 How this This clause, as it stands in the common printed form, is 
 
 cIq/u.S6 is 
 
 rendered wholly inadequate, without alteration, to meet the exigencies 
 app ca e. ^£ modern commerce. Yet, instead of providing different 
 forms to meet the various cases of insurance on ship or cargo 
 separately, on freight, on profits, and other interests now 
 held capable of the protection of marine insurance, the 
 English underwriters adhere to the old form ; and for the 
 requisite particularity of description resort to the expedient 
 of writing in the body, at the foot, or on the margin of the 
 policy, a statement of the real nature of the subject matter 
 intended to be insured (as e. g., " on profits," " on freight," 
 " on bottomry," " on 100 bales of cotton, marked, &c."), 
 leaving the printed clause entirely unaltered. 
 
 The written words thus inserted in the body, margin, or 
 at the foot of the policy, apply indefinitely to the whole 
 instnmient, and are considered as controlling the sense of the 
 general printed clause applicable to ship and goods, and 
 narrowing it in point of construction to the particular species 
 
 ' Benecke, Pr. of Indemnity, 44, 45. 
 
CHAP. V.J CLAUSES OF THE POLICY. 239 
 
 of interest, whether " ship," « goods," " freight," " profits," 
 &e., the name of which is so inserted.^ The poKoy, in fact, 
 becomes a policy on that subject alone ; and in suing thereon 
 no notice need be taken (in the statement of claim), of the 
 formal printed clause as to ship and goods.^ 
 
 " The meaning of this marginal memorandum," says Lord Construotion. 
 Ellenborough, in a case where the written insertion was in 
 the margin of the policy, "may be translated thus. We 
 mean to insure the subject so named, ' freight,' for instance, 
 arising and accruing during the limits of the voyage within 
 described, from the carriage of goods on board the ship 
 within mentioned, against the perils within enumerated, and 
 upon the premium herein specified." ^ 
 
 Whether the mere indorsement on the back of the policy 
 of such written description of the subject of insurance, 
 without words of reference expressed on the face of it to such 
 indorsement, would have the effect of thus controlling the 
 policy, may be doubted; no question it would do so, if 
 referred to in the body of the policy, or initialed by the 
 underwriters.* 
 
 (6.) The nature of the risk depending materially on the Name of the 
 character of the ship employed, it is of the first importance 
 to the underwriter that the ship to be insured or to carry 
 the property insured, be identified by name and master. 
 Hence, as a general rule, in all insurances, whether on ship 
 or goods, the name of the ship ought to be accurately inserted 
 in the policy. 
 
 Yet if the underwriter really know what ship is intended, 
 since the sole purpose of inserting the name is answered in 
 fact, an error in the name will not vitiate the policy. " Error 
 nominis alicujus navis non attenditur, quando ex aliis 
 
 ' Per Lord Ellenborough in Eo- ' See Eobinson v. Tobin, 1 Stark. 
 
 bertaon«». IVenoh, 4 East, 140; per 336. 
 
 Lord Penzance, Dudgeon v. Pern- ^ Per Lord Ellenborough in Eo- 
 
 broke, 2 App. Cas. 284, 293; Haugh- bertson v. French, 4 East, 141. 
 
 ton V. Ewbank, 4 Camp. 83. * See 1 Duer, 76. 
 
240 
 
 CLAUSES OF THE POLICY. 
 
 [part I. 
 
 Insurance on 
 ship or ships. 
 
 Name of the 
 master. 
 
 circumstantiis constat de navis identitate." * "On ne doit 
 pas pointiller sur le nom du navire, pourvu que I'erreur qui 
 s'y est gliss^e n'emp^ohe pas d'en reconnaitre I'identit^."^ 
 
 Hence, immediately following the blank left in our 
 common policy for inserting the name of the ship or master, 
 come the words, " or by whatsoever other name or names the 
 same ship or the master thereof is or shall he named and 
 caUed." 
 
 As, moreover, circumstances may frequently arise, espe- 
 cially in case of shipments made from abroad, in which the 
 merchant, though desirous of protecting his goods by an 
 immediate insurance, may be utterly ignorant of the par- 
 ticular vessel by which they may be consigned to him, a 
 relaxation of the rule requiring the insertion of the name of 
 the ship in the policy is in such cases permitted ; and the 
 party insuring is allowed to effect the policy on his property, 
 " on board any ship or ships," on condition of declaring, as 
 soon as he becomes aware of it, the name of the ship or ships 
 on board which it has actually been loaded.' 
 
 Partly for the reason already given, and partly because it 
 is an additional means of identifying the ship from others 
 of the same name, the name of the master ought, if known, 
 to be truly inserted in the policy ; yet many occasions arise 
 in the course of the voyage which make it necessary to 
 change the master, and in cases of insurance on "ship or 
 ships" at sea, or from a distant port, the name of the master 
 for the time being may not be known ; in our common form, 
 therefore, after the blank left for the name of the master, 
 these words follow, " or whoever else shall go for master in 
 
 * Casaregis T)iso. i. no. 139, cited 
 ty Emerigon, u. yi. a. 3, vol. i. 
 p. 160. 
 
 " Emeiigon, c. vi. b. 3, vol. i. 
 p. 160. 
 
 ' The legality of the insurance on 
 ship or ships was declared, so far back 
 as 1794, to be too well established 
 by usage and authority to admit of 
 
 dispute ; Kewley ». Ryan, 2 H. Bl. 
 348. In France an insurance of this 
 nature is called ' ' assurance in quovis, ' ' 
 and is expressly permitted by the 
 Ord. de la Marine, liv. 3, tit. vi. 
 art, 4, and the Code de Commerce, 
 art. 337. It is ably explained by 
 Emerigon, u. vi. s. 5, vol. 1, p. 173. 
 
CHAP, v.] CLAUSES 0¥ THE POLICY, 241 
 
 the said ship,"i and the words already cited, « or by "whatso- 
 ever other name or names the same ship or the master thereof 
 is or shall be named or called." 
 
 (7.) In the statutory form of policy the duration of the Duration of 
 risk on ship and goods is described in the following clause, ^^^^'^^' 
 the blanks in which must be filled up, according to the nature 
 of the adventure which the party eifecting the policy wishes 
 to insure : — 
 
 " Beginning the adventure upon the said goods and mer- 
 chandises from the loading thereof aboard the said ship [at 
 A. J upon the said ship, &c. [at and from A.], 
 
 and shall so continue and endure, during her abode there 
 upon the said ship, &c., and further, until the said ship, with 
 all her ordnance, tackle, apparel, &c., and goods and mer- 
 chandises whatsoever, shall be arrived at [B.], upon the said 
 ship, &c., until she hath moored at anchor twenty-four hours 
 in good safety, and upon the goods and merchandises, until 
 the same shall be there discharged and safely landed." 
 
 The meaning of this clause, when stripped of its verbiage, 
 is, that the risk upon the goods is to commence from their on goods ; 
 being loaded on board the ship wherever that may be; to 
 continue upon them during the whole time they remain on 
 board, and not to terminate until they have been discharged 
 from the ship, and safely landed at the port of delivery. 
 The risk upon the ship is to commence at the port from on ship, 
 which she sails on the voyage insured, wherever that may be, 
 to continue during her stay there, and not to terminate until 
 after she has moored at anchor for twenty-four hours in good 
 safety at the port named as the terminus of the risk. 
 
 The effect of this clause, however, depends of course upon 
 the mode in which the blanks are filled up.^ In the form 
 in which we have filled it up the policy is a voyage policy 
 
 1 The French effect the same ob- ss. 1, 184--187. 
 
 jeot by inserting the -words "ou autre ^ See Robertson v. French, 4 East, 
 
 pour lui:" see 1 Emerigon, o. vii. 130. 
 
 M. ^ 
 
242 CLAUSES OF THE POLICY. [pART I. 
 
 in the most usual terms. But the multifarrous exigencies 
 of commerce in a country like our own, which lead our 
 merchants and shipowners to engage in enterprises almost 
 infinitely varied, require the same diversity in describing as 
 is displayed in the undertakings themselves ; and poUcies 
 are accordingly filled up in every variety of form, as we 
 shall have occasion to see more at length when we come 
 to consider the construction put from time to time hy oiu- 
 Courts upon the loosely drawn and imperfectly expressed 
 clauses hy which our merchants have endeavoured to adapt 
 the old policy to the diversified wants of commerce in modem 
 times. 
 
 By statute, "Every policy shall specify the particular 
 risk or adventure, and in case the same be omitted in any 
 policy such policy shall be null and void to all intents and 
 purposes."^ 
 
 Liberty to (8.) "We have already said that the course of the ship's 
 
 touch or stay. .... . , , . , . _ . . 
 
 navigation is never m terms expressed m any policy. It is 
 
 an implied condition of every policy, as we shall see more at 
 
 large hereafter, that the ship in sailing between the termini 
 
 of the voyage insured, shall pursue that course or track 
 
 which long usage has established to be the safest and most 
 
 direct mode of navigation, without deviating from it to 
 
 touch at any ports or places whatsoever which lie between 
 
 the extreme points of the voyage, unless express liberty for 
 
 that purpose be inserted in the policy. 
 
 As very few voyages, however, occur in which it is not 
 
 desirable that the ship should have the power of touching 
 
 at intermediate ports, the common printed form of policy 
 
 invariably contaius this clause :— " And it shall be lawful for 
 
 the said ship, &c., in this voyage to proceed and sail to and 
 
 touch and stay at any ports or places whatsoever [ J 
 
 without prejudice to this insurance." The blank which is 
 
 left, is for the purpose of specifying the particular ports and 
 
 1 30 Vict. c. 23, ». 7. 
 
CHAP. y.J CLAUSES OF THE POLICY. 243 
 
 places at whicli it is intended this liberty sliall be exercised ; 
 and the various modes in which this blank may be filled up, 
 together with the numerous cases decided on the construc- 
 tion of this clause in the policy, will be referred to at large 
 hereafter, in considering the law affecting Deviation. 
 
 (9.) " The said ship, &c., goods and merchandises, &c., for Valuation 
 so much as concerns the assured, by agreement between the sum insured, 
 assured and assurers in this policy are and shall be valued 
 ati[_ J." 
 
 This clause is in all the common printed forms of policy, 
 though the blank it contains is not always filled up ; if filled 
 up, the policy is called a valued policy ; if not filled up, an 
 open policy. When inserted, this value ought to be, but 
 frequently is not, the real value of the ship, or the prime cost 
 of the goods at the time of effecting the policy, together with 
 the amount of the shipping charges, premiums and other 
 expenses of the insurance.^ 
 
 As will appear from the language of the clause, this 
 valuation is agreed to be final and conclusive " between the 
 assured and assurers," on the particular policy ; and conse- 
 quently, as will appear hereafter, it cannot be set aside, 
 except in cases of fraudulent over-valuation.^ 
 
 It is not unfrequently the case that where the interest 
 intended to be insured requires a more specific description 
 than that contained in the general printed form, such 
 description is inserted in this clause ; as, e. g., the said ship 
 and goods, &c., " are and shall be valued [at one thousand 
 pounds, being on twenty bales of cotton, marked \ to ■^, the 
 
 ' The words "as under" were here was held not to be a valued policy ; 
 
 writtenin, andthefoUowingblankre- Wilson d. Nelson, 5 B. & S. 354 ; 33 
 
 mained not filled up ; lower down in L. J. (Q. B.) 220. 
 
 themarginwaswritten"1300;.,"and ^ Stevens on Average, part ii. 
 
 opposite to this, but in the body of art. i. 
 
 the policy, following the 3 per cent. ' Barker v. Janson, L. E., 3 C. P. 
 
 memorandum, clause, were written 303 ; North of England Iron St. 
 
 thesewords, — "onfreight, warranted Shipping Ass. v. Armstrong, L. B,., 
 
 free of caption, seizure," &c. This 5 Q. B. 244. 
 
 u2 . 
 
244 CLAUSES OF THE POLICY. [pART I. 
 
 said twenty bales valued at that sum] or [at one thousand 
 pounds, being on the interest wMcb I. S. has as owner in 
 Bne fourth share of the said ship, the said one fourth share 
 being valued at that sum]," or the wprds "valued at" are 
 frequently struck out, and a description of the subject of 
 insurance then inserted without any valuation ; as, e. g., the 
 said ship and goods, &c., for so much as concerns the assured 
 and assurers in this policy are "freight," or "profits," or 
 " money lent on bottomry." 
 
 In this case it is obvious that the words " the said ship 
 and goods," &o.j are to be read as though they meant 
 "the subject insured by this policy, as far as concerns the 
 assured and imderwriters, is taken to be ' freight,' ' profits,' 
 ' bottomry,' " &c. 
 Sum insured. The words "valued at" are frequently struck out, and 
 the sum insured is then inserted thus, " 1000^. on ship," or 
 ■" on goods," &c. ; and if it is intended that it shoidd be a 
 valued policy, then it proceeds — 
 
 " £1000 on ship valued at . £2,000 
 £2000 on goods valued at , 11,000 " 
 
 By statute every policy shall specify the sum or sums 
 insured, and in case the same shall be omitted in any 
 policy, such policy shall be null and void to all intents and 
 purposes.^ 
 
 Perils insured (10.) The next clause in the policy contains an enumera- 
 tion of the perils against which the underwriters undertake to 
 insure the property on which the policy is eiiected ; or, in 
 the language of the clause, which they " are contented to 
 bear, and do take upon them " in the voyage insured. 
 
 As the underwriter is, on plain principles, considered not 
 to be liable to indemnify the assured against loss arising 
 from any perils not specified in the policy or embraced in 
 the general clause, great care has been taken to make this 
 form of words as comprehensive as possible ; and the clause 
 
 ' soviet. 0. 23,8. 7. 
 
CHAP, v.] CLAUSES OF THE POLICY. 245 
 
 in its present state may fairly be regarded as affording a 
 protection against almost every casualty which can possibly 
 happen in the course of any voyage, and for which it is 
 meant that the underwriter shall be answerable. The effect 
 of it is frequently modified by express warranties inserted 
 at the foot of the policy, e. g., " warranted free from capture 
 or any attempts thereat, or the consequences thereof." 
 
 (11, 12.) " And in case of any loss or misfortune it shall Sue and 
 be lawful to the assured, their factors, servants, and assigns, 
 to sue, labour, and travel for, in, and about the defence, 
 safeguard and recovery of the said goods and merchandises, 
 and ship, &c., or any part thereof, without prejudice to this 
 insurance : to the charges whereof we, the assurers, wiU 
 contribute each one according to the rate and quantity of 
 his sum herein assured." 
 
 The effect of this clause, when stated generally, seems to 
 be to provide by all reasonable means for the safety of the 
 subject of insurance whensoever it is in danger of loss or 
 damage by the perils insured against. Viewed more par- 
 ticularly, it enables the assured by his agents, servants, &c. 
 to interfere for the prevention of imminent damage or loss 
 without the dread of drawing thereby upon his own 
 shoulders the misfortune that may result; it authorizes 
 him to labour and to spend at the costs and charges of the 
 insurers in order to avert a loss that would fall upon the 
 insurers, or to mitigate its consequences ; so that whilst he 
 is entitled to recover all moneys properly expended by him 
 in preventing such a loss or its consequences, he is not 
 prejudiced by this interposition on his part from recovering 
 for the loss itself, or from insisting on his abandonment of 
 the subject of insurance, although notice thereof may have 
 preceded his interference.' But as this clause is at present 
 
 ' See the elaborate discussion of C. P. 535 ; in error, L. E., 2 0. P. 
 
 this clause in the very learned judg^ S-")?. See post, Part III., Ohap. II., 
 
 ment of Willes, J., in Kidston v. Appendix. 
 The Empire Insurance Co., L. E., 1 
 
246 CLAUSES OF THE POLICY. [pAKT I. 
 
 worded, it does not entitle the assured to recover moneys 
 expended in averting perils not insured against, when these 
 threaten or assail the subjeot of insurance, or perils that are 
 insured against if they do not threaten loss or misfortune 
 to the suhject insured.* 
 
 Contract to (14, 15.) "And SO we the insurers are contented and do 
 
 insure; — and . j i ■ ^ i i j> i • i. 
 
 receipt clause, promise and bmd ourselves, each one lor his own part, our 
 
 heirs, executors, and goods, to the assured, their executors, 
 
 administrators, and assigns, for the true performance of the 
 
 premises: confessing ourselves paid the consideration due 
 
 unto us for this assurance by the assured," &c. 
 
 The policy, it will be observed, contains only a promise 
 by the underwriters, without anything in the nature of a 
 counterpromise on the part of the assured; the reason of 
 this is, that the premium, or, as it is described in this clause 
 of the policy, "the consideration due unto them for the 
 assurance," is always supposed to have been paid to the 
 underwriters at the time the policy is subscribed by them, 
 and is accordingly acknowledged to have been so paid on 
 the face of the instrument. In point of fact, the premium 
 is scarcely ever, in the actual course of London business, 
 paid till long after the policy is effected ; the amount being 
 passed in account between the insurance broker and the 
 underwriter, between whom a running account is kept of 
 premiums and losses.^ 
 
 Although this is the actual course of practice, yet the 
 acknowledgment of the receipt of premium in the policy is so 
 far binding on the underwriter as to prevent him seeking to 
 recover the premium from the assured himself ; * unless there 
 be fraud on the part of the broker * or of the assured.^ 
 
 • Great Indian Peninsular Ey. Co. » Dg (Jaminde v. Pigou, 4 Taunt. 
 V. Saunders, 30 L. J. (Q. B.) 218 ; 246 ; DalzeU v. Mair, 1 Camp. 632. 
 31 id. 206 ; 1 B. & S. 41 ; 2 id. 266 ; * See Mavor v. Simeon, 3 Taunt. 
 Booth V. Gair, 33 L. J. (C. P.) 99 ; 497 n. 
 
 Meyer v. Ralli, 1 0. P. Div. 368. 5 Foy r. Bell, 3 Taunt. 493. 
 
 • See ante, pp. 193, 19.5. 
 
CHAP. V.J CLAUSES OF THK POLICY. 247 
 
 (16.) The premmm is the consideration to the insurer for Rate of 
 the contract which he makes with the assured by the policy. P™"""™' 
 It is therefore necessarily expressed in the instrument, where 
 it commonly appears in the form of a percentage " at and 
 after the rate of" so much per cent. This consideration used 
 to he required by statute to be expressed in the policy ; such 
 a statement is no less imperative now that it is left to the 
 effect of the common law. 
 
 (18.) The Memorandum clause is introduced into aU Tho common 
 policies for the purpose of exempting the underwriters from 
 liability for trivial losses. In the statutory form which is 
 used by all private underwriters in this country, it is ex- 
 pressed in the following uncouth form of words : — 
 
 N.B. Corn, fish, salt, fruit, flour, and seed, are warranted 
 free from average unless general, or the ship be stranded [a]. 
 
 Sugar, tobacco, hemp, flax, hides, and skins are warranted 
 free from average under 5 pounds per cent. [b]. 
 
 And all other goods, also the ship and freight, are war- 
 ranted free from average under 3 pounds per cent, unless 
 general, or the ship be stranded [c]. 
 
 In order to make this form of words at all intelligible, it 
 must be carefully borne in mind that the word " aoerage" 
 as employed in this clause, means damage or partial loss of 
 the subject of insurance by the perils insured against, ' and 
 that the expression " icarranted free of average" means, 
 " so insured as to exclude all liability for such damage or 
 partial loss." Hence the whole meaning of the clause is as 
 follows : — 
 
 On certain articles of a peculiarly perishable nature 
 enumerated in paragraph [aJ, the underwriter shall be 
 answerable for a total loss only.^ 
 
 On certain other articles of a less perishable nature, but 
 
 ' See Kidston v. The Empire Ins. ' PerWilles,.J.,mKid8ton4i. Em- 
 
 Co., L. K., 1 C. P. 535 ; Oppenheim pire Ins. Co., L, E., 1 C. P. 544. 
 !-. Fry, 3 B. & S. 873 ; 6 id. 348. 
 
248 
 
 CLAUSES OF THE POLICY. 
 
 [PAKT I. 
 
 still very liable to be destroyed by the perils insured against, 
 enumerated in paragraph [b], he shall only be answerable 
 when the amount of damage exceeds 5 per cent, of their 
 value. 
 
 On ship, freight, and all other goods, he shall only be liable 
 when the amount of damage exceeds 3 per cent. 
 
 But in all the three cases alike, the clause provides that 
 the underwriter will be liable for any amount of damage or 
 partial loss, however small, in case the ship be stranded ; and 
 it also provides, that he shall in every case be liable for every 
 loss, however small, which is of the nature of general average. 
 
 Subscription 
 of the policy. 
 
 Policy must 
 specify the 
 sum insured. 
 
 Mutual Club 
 Policy. 
 
 (19.) The only parties who sign their names at the foot of 
 the policies, in other words, underwrite them, are the insurers, 
 "who are hence called the underwriters or subscribers. 
 
 In policies of insurance, effected with private insurers, 
 each underwrites the policy with his name, the sum he 
 intends to insure, which is generally written in words at 
 length, and the date. But since the repeal (in 1825) of the 
 6 Geo. 1, c. 18 (which prohibited any partnership other than 
 the two chartered companies from underwriting sea policies), a 
 subscription in the name of the partnership firm has been 
 held sufficient.^ 
 
 By statute, " Every policy shall specify the names of the 
 underwriters and the sum or sums insured; and in case 
 any of these particulars shall be omitted in any policy, such 
 policy shall be null and void to all intents and purposes." ^ 
 
 In addition to this specification of the sums underwritten, 
 a sum large enough to cover the aggregate amount insured 
 is usually in practice expressed in figures on the margin of 
 the policy, either just under, or just over the stamp. 
 
 In a policy in the common form, by an insurance club, 
 where the aggregate sum insured appeared on the face of the 
 
 1 Keid V. Allan, 4 Exch. 326 ; 
 Dowdall V. Allan, 19 L. J. (Q. B.) 
 41, S. F. 
 
 It is a fundamental rule of Lloyd's, 
 
 that no member shall in the City of 
 London underwrite in the name of a 
 partnership. See ante, p. 150, note. 
 * 30 Viot. ^,. 23, s. 7. 
 
CHAP. A'.J CLAUSES OF THE POLICY. 249 
 
 policy, tut no particular sums were written opposite to the 
 names of tlie members subscribed to the policy, Gibbs, C. J., 
 held that the policy was not void on this ground.^ That 
 however, was a decision in bygone times, when the 30 Yict. 
 c. 23, had not come into existence. Since this Act came 
 into operation, it has been held that a club policy, signed 
 "A. & B. per procuration of the several members of the 
 A. A.. Association for insuring each other's ships, every 
 member bearing his equal proportion according to the sums 
 mutually insured therein," — did not comply with the Act, 
 and therefore was invalid.^ 
 
 Each underwriter is, generally speaking, only liable, in Eaoli sub- 
 case of total loss, to pay the assured up to the extent of the makes a dis- 
 sum he has thus written against his own name, i.e., up to t"ict contract, 
 the amount of his subscription ; or, in case of an average or 
 partial loss, some proportion or aliquot part of that sum.' 
 
 Each subscription makes a distinct contract ; the contract 
 being, that the underwriter is bound by the terms of the 
 policy to the extent of his subscription, but no further. 
 Hence it is that the date is not inserted in the body of the 
 policy, but is affixed by each underwriter to that which 
 forms the real contract between himself and the assured, viz , 
 the subscription. 
 
 The practical rule in this country is, that every under- Date and 
 writer, as he successively subscribes the policy, sets down 
 accurately the day, month, and year on which he does so.* 
 The subscriptions are inserted at the foot of the policy, and 
 generally in the blank space which is left in our common 
 policies under the memorandum. 
 
 1 Dowell V. Moon, 4 Camp. 166. coram M. R. 
 
 2 In re The Arthur Average Ass,, " TheCo.deCom. art. 322, requires 
 L. K., 10 Ch. App. 542. the .policy to be dated on the day and 
 
 ' But if there be a partnership, the hour when executed, distinguishing 
 
 factof there being separate subsorip- -whether before or afternoon. The 
 
 tions by the partners individually does date in France is conclusive, and so it 
 
 not bar the assured from resorting would seem to be here ; but see as to 
 
 to the partnership assets : Brett v. this, Duer, vol. i. p. 90. 
 Beokwith, 26 L. J. (Ch.) 130, 
 
250 
 
 CLAUSES OF THE POLICY. 
 
 [part I. 
 
 Stamp OfSce 
 date. 
 
 Stamp. 
 
 i 
 
 Supposing the sum which the party effecting the policy 
 wishes to insure he 1000^., of which A. B. is willing to take 
 on himself 500/., 0. D. 300/., and E. P. 200/., and that they 
 all suhscrihed for those amounts, as very' generally happens, 
 on the same day ; then the policy would he thus suhscrihed 
 and dated : 
 
 £500 A. B. [name at length] Five hundred pounds. 
 
 1st of January, a.d. 1886. 
 £300 0. D. [name at length] Three hundred pounds. 
 
 1st of January, a.d. 1886. 
 £200 B. F. [name at length] Two hundred pounds. 
 1st of January, a.d. 1886. 
 
 The date we have here be^n considering is the date of the 
 execution of the policy, hut besides this on every stamped 
 policy the day, month, and year, in which the form of policy 
 is delivered out to the party applying for it must, under 
 penalty, be truly inserted by the proper officer, and is 
 generally affixed to the upper part of the left-hand margin 
 of the form of policy, immediately under the stamp.^ 
 
 Every policy must be duly stamped before it is filled up 
 and subscribed, with the amount of duty required by statute 
 for the value of the property it is intended to insure ; if not 
 stamped in the first instance, it cannot, with two exceptions, 
 legally be stamped afterwards ; and a failure to comply with 
 the provision of the Stamp Acts in this respect, not only 
 renders the policy void, but entails a considerable penalty 
 upon all those concerned in so effecting or subscribing it.* 
 But we reserve the effect of the Stamp Laws for further 
 consideration separately. 
 
 Eeoapitula- We have seen that no contract or agreement for sea in- 
 surance, unless it be to cover the shipowner's liabilities to 
 
 1 30 Viet. u. 23, s. 5. 
 
 « 30 Vict. u. 23, SB. 7, 9, 11, 12, 13, 
 14,19,16; 33&34Viot. 0.97, B. 117; 
 39 & 40 Vict. c. 6 ; and 44 & 45 
 
 Vict. o. 12, B. 44. A policy un- 
 stamped, or insufficiently stamped, 
 is admissible in evidence on paying 
 duty and penalty. 
 
CHAl'. V.J OLlUSliS OF THE POLICY. 251 
 
 others witliiii the 25 & 26 Vict. c. 63, s. 54, is valid if it 
 be not expressed in a policy. The following appear to be 
 the substantial requisites of every policy of insurance : — 1, 
 the name of some party either really or nominally insured ; — 
 2, a description of the voyage or risk insured; — 3, of the 
 subject insured; — 4, of the perils insured against; — 5, the 
 name of the ship and master (except where the insurance is 
 on goods by ship or ships) ; — 6, the premium or consideration 
 for the contract; — 7, the sums insured; — 8, the subscription 
 of the underwriter. It is moreover requisite, that every 
 policy should be, — 9, dated; — and 10, stamped before 
 execution. 1 
 
 In addition to these, which are the common printed clauses KunniDg-- 
 ,, T » pT-iiT ii down clause. 
 
 m the ordmary form oi policy, it has become very usual to 
 
 insert what is known as the running down clause. It varies in 
 form ; we give the following copy of one in actual use : — 
 
 " And it is further agreed, that if the ship hereby insured 
 shall come into collision with any other ship or vessel, and 
 the insured shall in consequence thereof become liable to 
 pay, and shall pay, to the persons interested in such other 
 ship or vessel, or in the freight thereof, or in the goods or 
 effects on board thereof, any sum or sums of money not 
 exceeding the value of the ship hereby assured, calculated at 
 the rate of eight pounds per ton on her registered tonnage, 
 we will severally pay the assured such proportion of three- 
 fourths of the sum so paid as our respective subscriptions 
 hereto bear to the value of the ship hereby assured, calculated 
 at the rate of eight pounds per ton, or if the value hereby 
 declared amounts to a larger sum, then to such declared 
 value, and in cases where the liability of the ship has been 
 
 1 The statutory requisites are,, 1. sums insured ; 6. — At common law. 
 
 The insertion of the name of some — the premium, being the considera- 
 
 party reaUy or nominally assured tion for the contract. The omission 
 
 under 28 Geo. 3, o. 56 ; 2. The stamp ; of any of these renders the policy null 
 
 3. The risk or adventure; 4. The and void to all intents and purposes' 
 names of the underwriters ; 5. The 
 
252 EXPRESS WARRANTIES, [pART I, 
 
 contested with our consent in writing, we will also pay a, 
 like proportion of three fourth parts of the costs therehy 
 incurred, or paid, provided also, that this clause shall in no 
 case extend to any sum which the insured may become 
 liable to pay or shall pay in respect of loss of life or personal 
 injury to individuals for any cause whatsoever." ^ 
 
 We do not repeat here what has been already said in 
 reference to other statutory occasions of loss to the ship- 
 owner against which it is lawful for him to protect himself 
 by insurance.^ 
 
 Express The clauses hitherto considered are for the most part those 
 
 — '- — to be found in the statutory form of policy. With the 
 
 varying exigencies of commerce, however, and the fluctuating 
 character of the political relations between mercantile states, 
 occasions frequently arise which render additional precau- 
 tious desirable on the part of the assured and the insurer. 
 These are inserted in writing on the face of the policy, and, 
 in English law, are called Express Warranties. 
 
 The effect of these warranties will be fully discussed 
 hereafter. In point of form they are generally thus: — 
 " Warranted to sail on or before the 1st day of June, 1886." 
 " Warranted well, this 1st day of June, 1886." " Warranted 
 to depart with convoy." "Warranted neutral ship and 
 neutral property." " Warranted a Dane," &c. ; or the word 
 " warranted " is altogether omitted, and the words " to sail," 
 or " to sail with convoy," »S;c., alone inserted. All that is 
 essential with respect to the insertion of such clauses of 
 warranty is, that they fhould appear somewhere or other 
 on the face of the policy ; it need not be in the body of it ; 
 it may be either at the foot,' or on the margin of the policy,* 
 
 1 Seefor other forms and the efieot 172 ; 26 L. J. (Q. B.) 93. 
 thereof, Xenos v. Fox, L. E., 3 0. P. ^ Ante, Chap. II. p. 36. 
 
 630 ; 4 id. 665 ; Taylor v. Dewar, 5 3 Blaokhurst „. CockeU, 3 T. R. 
 
 B. & S. 58; 33 L. J. (Q. B.) 141 ; 363. 
 Thompson v. Beynolds, 7 E. & B. « Bean v. Stupart, 1 Dougl. 11. 
 
CHAP. V.J IMPLIED WARRANTIES. 253 
 
 and that either in the usual way or transversely ; ^ for 
 wherever or however written, so as it he on the face of the 
 policy, it will be a good warranty, as whatever is contained 
 in the policy at the time of signing is a part of the contract, 
 and is adopted by the signature.^ It would seem, however, 
 that unless initialed by the underwriters, or referred to in the 
 body of the instrument (in either of which eases it would no 
 doubt be operative),^ a memorandum indorsed on the back 
 of the policy would not be permitted to have any eilect in 
 varying or modifying its terms.* 
 
 Besides the various express clauses and stipulations, both Implied 
 
 .. ,, .. ,, .., .. warranties in 
 
 ordinary and extraordinary, already considered, every policy the policy, 
 of insurance impliedly contains within itself certain terms 
 and conditions, which, though not on the face of the instru- 
 ment, are of the same binding authority as if they were, and 
 combine with the express clauses to make up the whole of the 
 contract between the assured and the underwriter. 
 
 They are, in fact, the terms upon which the parties 
 mutually understand their contract to be based; and are 
 regarded as so much a matter of course, that it would be a 
 needless ceremony to express them in form. If either of the 
 parties fail to comply with any one of these conditions, he 
 entirely precludes himself from taking any advantage of his 
 contract. 
 
 1. Thus it is an implied condition in every policy that Eepreaenta- 
 the assured, at the time of procuring the policy, shall fairly ooToednTent. 
 and truly disclose to the underwriter every fact material to 
 the risk which is exclusively within his own knowledge, 
 and which is not embraced by some agreement in the 
 
 1 Kenyon v. Berthon, 1 Dougl. Deere, 7 B. & Cr. 261. 
 
 12 n. * ^ Duer, 76. See an analogous 
 
 2 Cockran v. Eetberg, 2 Esp. 121 ; decision of the House of Lords, in 
 De Hahn v. Hartley, 1 T. R. 343. respect of a passenger ticket by rail : 
 
 3 See Laird v. Robertson, 4 Br. Henderson v. Stevenson, L. E., 2 
 Pari. Gas. 488 ; Kidsdalew. Shedden, H. of Lds. (Sc.) 470. 
 
 4 Camp. 107 ; and especially Reed r. 
 
254 
 
 IMPLIED CONDITIONS. 
 
 [part I. 
 
 Seaworthi- 
 ness. 
 
 Track of tho 
 ship. 
 
 Deviation or 
 delay. 
 
 AU mercantile 
 usages are 
 incorporated. 
 
 General 
 
 effect. 
 
 policy. If this condition is not complied with, the policy- 
 is void. 
 
 2. Again, the assured is understood by the very act of 
 procuring the insurance to warrant that the vessel is sea- 
 worthy, and in every way fit for the voyage or service on 
 which it is or is to be employed ; accordingly this warranty, 
 though it is never expressed, is uniformly implied as a part 
 of the contract in voyage policies. 
 
 3. The actual course of the ship between the termiai 
 of the voyage is, as we have seen, never inserted in any 
 policy; because every underwriter is presumed to be 
 acquainted with the usual mode of conducting the voyage 
 on which he has assured the risk ; but, although never 
 inserted, the usual course of the voyage is supposed to be 
 incorporated in every policy, and as much forms part of its 
 legal effect, as though it were set out in terms on the face of 
 the instrument.^ 
 
 4. It is always an implied condition of every policy, that 
 the ship in proceeding from one terminus to the other shall 
 pursue the usual course of the voyage without any delay 
 or deviation : this implied condition is generally termed a 
 condition not to deviate ; and any failure to comply with 
 it, exempts the underwriter from liability from the moment 
 of deviation.^ 
 
 5. Not only the course of the voyage insured, but all 
 generally established usages of trade and navigation relevant 
 and applicable to the subject of their contract, are always 
 supposed to be known by the parties contracting for a 
 mercantile indemnity ; and therefore, though never expressly 
 inserted in any policy, are as binding on the parties as though 
 they were. 
 
 It is never to be forgotten, then, that the whole contract 
 between assured and underwriter is only partially expressed 
 in the policy ; and that the real contract between them is, 
 
 ' Noble V. Kennoway, 2 Dougl. 
 610 ; Pelly v. Royal Exch. Ass. Co., 
 
 1 Bnrr. 341. 
 « 1 Marshall, Ins. 177. 
 
CHAP. V.J STAMPS. 255 
 
 that, supposing the underwriter to have heen informed 
 beforehand of the real nature of the risk, supposing also the 
 ship to have been seaworthy when the risk commenced, and 
 never afterwards to have deviated from the usual course of 
 the voyage insured, and the assured not to have precluded 
 himself from recovery on the ground of illegality of the risk, 
 then the underwriters engage to indemnify him, according to 
 the terms of the policy as explained by usage, for any loss he 
 may sustain as a direct and immediate consequence of the 
 enumerated perils. 
 
 The stamping of policies of sea insurance in this country is The Stamp 
 
 Acts. 
 
 regulated mainly by the 30 Yict. c. 23. 
 
 By the fourth section of that Act it is declared that — 
 
 " Sea insurance " means any insurance (including re- Interpretation 
 
 \ 1 T • 1 -T of terms. 
 
 insurance) made upon any snip or vessel, or upon the 
 machinery, tackle, or furniture of any ship or vessel, 
 or upon any goods, merchandise, or property of any 
 description whatever, on board of any ship or vessel, or 
 upon the freight of, or any other interest which may be 
 lawfully insured in or relating to any ship or vessel. 
 By sect. 8 of the 47 & 48 Vict. c. 62, the said term of " sea 
 insurance" shall include any insurance of goods, wares, or 
 merchandise, or property of any description whatever, for any 
 transit which includes not only a sea risk, but also any land 
 risk from the commencement of such transit to the place of 
 shipment, or from the place of discharge of the ship to the 
 ultimate destination covered by the insurance, or in warehouse 
 while waiting or being forwarded for shipment, or after dis- 
 charge and while waiting to be forwarded or being forwarded 
 to the ultimate destination covered by the insurance, or any 
 other land risk incidental to the transit insured. 
 
 " Policy," by sect. 4 of the 30 Yict. c. 23, means any 
 instrument whereby a contract or agreement for any sea 
 insurance is made or entered into. 
 
256 STAMPS. [part 1. 
 
 Issue of The fifth section provides for the printing and sale of 
 
 poUoies. blank policies in the form set forth in the Schedule, duly 
 
 stamped, and for the stamping of blank forms, brought in 
 
 for that purpose, requiring the proper officer under penalty 
 
 of 100^. to mark the said forms with the date of issue or 
 
 delivery before they are issued or delivered. 
 
 Contract null The Seventh section declares any contract for sea insurance 
 
 and void if. ,. ". i-i- 
 
 not expressed invalid if not expressed in a policy, except it be insurances 
 
 m a po ey. deferred to in the 55th section of the Merchant Shipping Act 
 Amendment Act, 1862, — and also every policy null and void 
 to all intents and purposes which omits to specify any of the 
 following particulars : — the risk or adventure, the names 
 of the subscribers or underwriters, and the sum or sums 
 insured. 
 
 Limitation By the eighth section, any policy made for any time 
 
 insurance. exceeding twelve months is null and void. 
 
 Stamping of By the ninth section, any policy not duly stamped is not 
 good or available in law or equity ; ^ and any policy which 
 . after being executed is unstamped, or not sufficiently stamped, 
 may be stamped on payment of the duty and a penalty.'' 
 A policy of mutual insurance already stamped and under- 
 written, if it be not underwritten to an amount beyond what 
 the stamps will warrant, may be stamped with additional 
 stamps, without penalty. And a policy made abroad and 
 chargeable with stamp duty within the 117th section of 33 
 & 34 Vict. c. 97, may be stamped within fourteen days after 
 it has been first received in the United Kingdom on payment 
 of the duty only.' 
 
 Alterations By the tenth section (30 Yict. c. 23), nothing in the Act is 
 
 underwritten, to prohibit any alteration, which may lawfully be made, in 
 
 1 30 Vict. c. 23, B. 9. By the U & 45 Viet. c. 12, s. U, 
 
 2 39 & 40 Vict. 0. 6, s. 2, placing the effect of sect. 16 of 33 & 34 Viot. 
 =.. marine policy among the instru- c. 97, is extended to proceedings 
 ments that may he stamped after before an arbitrator or referee in 
 execution within sect. 16 of 33 & 34 respect of marine policies unstamped 
 Vict. 0. 97 (G-eneral Stamp Act), but or insufaciently stamped, 
 requiring a penalty of 100?. in each ' As amended by 44 & 45 Vict. 
 case. c. 12, s. 44. 
 
CHAP. V.J STAMPS. 257 
 
 "the torms and conditions of any policy after being under- 
 written— subject, however, to the following provisoes:—!, that 
 such alteration be made before notice of the determination 
 of the risk originally insured; — 2, that it do not prolong 
 the time beyond six months in policies for less than six 
 months, or beyond twelve months in policies for more than 
 SIX months ; — 3, that the articles insured remain the property 
 of the same person or persons ; — and, 4, that no additional 
 or further sum be insured by reason or means of such 
 alteration. 
 
 By the eleventh section, mixed policies for time and also Mixed poli- 
 for a voyage, or which cover any period beyond thirty days douMe^™^^*^ 
 after being anchored on arrival, must be stamped both as 
 time policies and as voyage policies.^ 
 
 The twelfth section declares any contract for insurance of Carriers as 
 goods or other property while on board by any carrier or contract by ^ 
 other person, in consideration of additional freight or the P"^'"?- 
 like, to be a contract for sea insurance, thereby bringing it 
 within the operation and effect of the other sections of the ' 
 Act. 
 
 Sections 13, 14, and 15 impose penalties of 100/. on Penalties, 
 persons insuring or effecting as assured or agent any in- 
 surance except by duly stamped policies, and on persons 
 making or issuing any copy of a policy which at the time is 
 not in existence as a duly stamped policy. 
 
 By section 16, any right to recover brokerage or agency, 
 or any money expended for premiums, is taken away in all 
 cases within the foregoing three sections, and any money 
 actually paid on any such account by the principal to his 
 broker or agent negotiating, transacting or making any 
 insurance contrary to the Act, may be recovered back as 
 money received for the principal's use. 
 
 Section 17 provides for allowance for spoiled stamps. Spoiled 
 
 By the 33 & 34 Vict. c. 97, s. 117 (2), a policy of sea J^^'^Jg^^a^ 
 insurance made or executed out of, but being in any manner abroad. 
 
 ' Amended by 47 & 48 Vict. c. 62, s. 8, substituting "thirty days" for 
 " twenty-four hours." 
 
 M. S 
 
258 
 
 STAMPS. 
 
 [part I. 
 
 enforceable within, the United Kingdom, is to be charged 
 with duty under the 30 & 31 Vict. o. 23, and may be 
 stamped at any time within fourteen days after it has been 
 first received in the United Kingdom on payment of the 
 duty only.^ 
 
 Scale of 
 Duties. 
 
 Bepealed. 
 
 s. d. 
 
 3 
 
 The following is the Scale of Duties on Sea Insurance^ :— 
 
 For every policy of sea insurance for or upon any 
 
 voyage — 
 
 in respect of every full sum of 100/., and in 
 respect of any fractional part of 100/. 
 
 thereby insured 
 
 For every policy of sea insurance for time — 
 
 in respect of every full sum of 10,0/., and in 
 respect of any fractional part of .100/. 
 thereby insured — 
 
 where the insurance shall be made for any 
 time not exceeding six months 
 
 where the insurance shall be made for any 
 time exceeding six months and not ex- 
 ceeding twelve months . . . .06 
 
 [If, however, the separate and distinct interests of two or 
 more persons be insured by one policy, the respective duties, 
 as the case may require, shall be charged thereon in respect 
 of each and every fractional part of 100/., as well as of every 
 full sum of 100/., which shall be thereby insured upon any 
 separate or distinct interest.'] 
 
 3 
 
 Policy may be A very important provision introduced for the first time 
 
 stamped for . ij. j • i.. 
 
 the purpose m relation to marme policies by the Act of ISTG,* permits a 
 of evidence. 
 
 ' Amended by 44 & 45 Vict. o. 12, 
 s. 44, substituting "fourteen days " 
 for "two months." 
 
 3 30 & 31 Vict. 0. 23, ached. B. 
 
 ^ Ibid. This provision as to sepa- 
 rate and distinct interests, after being 
 
 amended by the 39 & 40 Vict. c. 6, 
 B. 1, was finally repealed by the 47 & 
 48 Vict. 0. 62, a. 8. 
 
 * 39 Vict. 0. 6, a. 2, maldng sear 
 policies instruments vrithin the Stamp 
 Act, 1870 (33 & 34 Vict. u. 97), =. 16. 
 
CHAP. V.J t,-sE OF SLIPS. 259 
 
 policy of marine insurance, for the purpose of bsing given in 
 evidence, to be stamped after the execution thereof on pay- 
 ment of the duty, and a penalty of 100^. 
 
 The broker, when requested to effect an insurance, prepares SUps. 
 a brief memorandimi of the leading particulars of the proposed ' 
 risk, such as convey at a glance to those who are skilled in 
 the business a sufficient notion of the intended policy, to 
 enable them to say whether and at what premium they will 
 underwrite it. This memorandum, called the Slip, is presented, 
 if at Lloyd's, successively to the underwriters there, who, if 
 they think well of the risk and the premium at which it is 
 either offered or has already in part been taken, initial the 
 slip each for the sum he thinks proper to underwrite, and so 
 on, until the whole amount is subscribed. If the application 
 be to the companies, a fresh slip is presented to each, and the 
 secretary or underwriter, in case the risk be taken, initials it 
 for so much. 
 
 "The slip," says Blackburn, J.,^ "is in practice, and 
 according to the understanding of those engaged in marine 
 insurance, the complete and final contract between the 
 parties, fixing the terms of .the insurance and the premium, 
 and neither party can, without the assent of the other, 
 deviate from the terms thus agreed on without a breach of 
 faith, for which he would suffer severely in his credit and 
 future business. 
 
 " The Legislature, for the purpose of protecting the 
 revenue, had by the very strongest enactments provided 
 that no such instrument should be given in evidence for 
 any purpose.^ But all those enactments are repealed by the 
 
 And by the 44 & 45 Vict. u. 12, s. 44, Ins. Co., L. E., 6 Q. B. 674, 684, 685. 
 "any Court of Ci-ril Judicature," ^ So mucli so that Lord Ellen- 
 includes proceedings before an arbi- borough, C. J., refused to look at it 
 trator or referee for the purposes of as a means of showing the order in 
 sect. 16 of the above Stamp Act. which the underwriters had taken 
 ' lonides w. Pacific Fire and Marine therisk; Marsdenii.Eeid, 3East, 571. 
 
260 USE OF SLIPS. [part I. 
 
 30 Vict. c. 23 ; and the law is now governed by the 7tli and 
 9tli sections of that Act. By sect. 7 no contract or agree- 
 ment for sea insurance shall be valid unless expressed in a 
 policy. And by sect. 9 no policy shall be pleaded or given 
 in evidence in any Court unless duly stamped. As the slip 
 is clearly a contract for marine insurance, and is equally 
 clearly not a policy, it is, by virtue of these enactments, not 
 valid, that is, not enforceable at law or in equity; but it 
 may be given in evidence wherever it is, though not vaHd, 
 material." 
 Consequences Hence it has been held that after the slip was initialed, 
 tion. i.e., the contract between the parties having been made, 
 
 though not evidenced by a duly stamped policy, any fresh 
 fact coming afterwards to the knowledge of the assured need, 
 not be communicated to the underwriter, however material 
 it may be ; ^ and that this effect in law is not varied by the 
 mere fact that the slip was initialed for the agent of the 
 assured, subject to confirmation by his principal.^ In the 
 case of a company in Liverpool whose agent in London 
 initialed a slip as usual, and received from the brokers copy 
 of such slip, which he forwarded to his principals, the com- 
 pany, but no policy was returned nor any notice from the 
 company that they refused the risk, Blackburn, J., assuming 
 such second or copy slip to be a second agreement, held the 
 company to be in the position both of brokers and insurers, 
 and liable by reason of the want of such notice for the loss 
 which had occurred in the meantime. But in this opinion 
 the learned Judge was not sustained, the other members 
 of the Court and the Court of Appeal being of opinion- 
 that the two slips in the case were parts of one contract, 
 and that in the absence of a policy the company were not, 
 liable.* 
 
 1 Cory 0. Paton, L. E., 7 Q. B. 7 Q. B. 617. 
 
 304 ; on appeal, 9 Q. B. 677 ; Llsh- 2 Cory v. Paton, L. E., 9 Q. B. 
 
 man v. Northern Maritime Ins. Co., 577. 
 
 L. R., 8 C. P. 216 ; 10 C. P. 179 ; ^ Fisier «. Liverpool Maritime Ins. 
 
 lonides v. Pacific Fire and Marine Co., L. R., 8 Q. B. 469; L. E., 9. 
 
 Ins. Co., L. E., 6 Q. B. 674 ; L. R., Q. B. 418. 
 
'CHAP, v.] ALTERATIONS OF THE POLICY. 261 
 
 In the United States, where the restrictions of the revenue In the United 
 law do not interfere, and the great huUs of sea insurance 
 business is carried on by companies, it is very generally the 
 case that a memorandum of the contract, or an agreement 
 to insure, is made out and subscribed before executing the 
 policy. In such ease " the usual practice," says Mr. Phillips, 
 is, " to enter the agreement on the books of the insurance 
 company, subscribed by some officer authorized to bind the 
 company. Such a memorandum is binding on the company 
 to make out a policy if the premium is paid in due time."^ 
 
 Many questions have arisen, and very elaborate decisions 
 taken place in the United States, as to what will amount 
 to the consummation of an agreement to insure between 
 parties in different places, communicating by letter or 
 
 The policy is the only legal evidence of the terms of the Corrections 
 
 .. i-n-L -jj and altera- 
 
 contract of marine insurance, and, as such, will be avoiaed, tions in the 
 according to one of the best known rules of the common law,* ^° °^' 
 
 by any material alteration introduced into it, without the A.too™™<"i 
 consent of all parties, after it has once been underwritten. 
 
 Until that time, as it is merely in fieri, and neither a Before sub- 
 contract nor evidence of one, any alteration whatever may 
 be made with the consent only of the parties immediately 
 concerned. A policy as originally drawn was upon plain- 
 tiff's share of goods valued at 600/., but some days after it 
 had been underwritten by the defendant, and before the 
 whole sum was underwritten, it was found that plaintiff's 
 share was larger than was supposed, and therefore the 
 
 ' 1 PHUips, no. 13. 2 H. Bl. 230; .1 Smith's L. 0.; 
 
 " Ibid. DOS. 13 et seq., where Mr. Pigot's Case, 11 Kep. 26 a; David- 
 Phillips details at length the cases on son v. Cooper, 11 M. & "W. 795 ; (in 
 this SQbjeot; see also 1 Duer, 66, 109 error) 13 M. & W. 343; SufEeU v. 
 ^ geq. Bank of England, 9 Q. B. D. 555 
 
 3 Master v. Miller, 4 T. Eep. 320; (C. A.). 
 
262 
 
 ALTERATIONS OF THE POLICY. 
 
 [PAKT I, 
 
 After sub- 
 scription. 
 
 To correct a 
 mistake. 
 
 following words, "on his share of the goods say one-fifth, 
 valued at 1000/.," were added in the margin, with defendant's 
 consent and initials ; Lord Ellenhorough was of opinion that 
 the alteration, though material, did not vitiate the policy, 
 as it was all in fieri, and constituted but one agreement.^ 
 
 If it clearly appear that there has heen a mistake com- 
 mitted to the prejudice of the defendant in drawing up the 
 policy, and that the terms employed in it do not express 
 the true intention and understanding both of the assured 
 and underwriters at the time they entered into the contract, 
 this is a good ground of defence to an action on the instru- 
 ment,^ or in case complete justice cannot in that way be 
 done, then it may be a sufficient reason for reforming the 
 instrument.^ 
 
 Accordingly, where the risk was described in the early 
 part of a policy as a voyage at and from Fort St. George, and 
 the subsequent words were "beginning the adventure from 
 and immediately following the ship's departure from Fort 
 St. George ;" Lord Hardwicke, on proof that the policy had 
 been filled up from a label, signed by the agent of the 
 assured and two of the directors of the company, describing 
 the risk to be "at and from" Fort St. Greorge; and the 
 underwriters not disputing that the label expressed the inten- 
 tion of both parties, held, that it must be considered a policy 
 "at and from."* 
 
 Upon a similar application, where the evidence appeared 
 to be contradictory, Lord Hardwicke dismissed the bill, at 
 the same time stating that whilst the Court had jurisdiction 
 to relieve in respect of a plain mistake in contracts that had 
 
 1 Eobinson v. ToTjin, 1 Stark. 336. 
 
 " See Wake v. Harrop, 30 L. J. 
 (Ex.) 273 ; 6 H. & N. 768 ; (in error) 
 31 L. J. (Ex.) 4S1. 
 
 ' But in the -words of Story, J., a 
 court of equity ■will " be extremely 
 cautious in the exercise of such an 
 authority, and ■will ■withhold its aid 
 ■where the mistake is not made out 
 
 by the clearest e^vidence, according to 
 the understanding of both parties, 
 and upon testimony entirely exact 
 and satisfactory ; " Andre'ws v. Essex 
 Fire and Mar. Ins. Co., 3 Mason's 
 Rep. 6 ; In re Bird's Trusts, 3 Oh. 
 Div. 214. 
 
 '' Motteux V. London Ass. Co., 1 
 Atkyus, 546. 
 
CHAP, v.] ALTERATIONS OF THE POLICY. 263 
 
 been reduced into writing in a form contrary to tlie inten- 
 tion of the parties, it would only exert sucL. power upon 
 being satisfied by tbe strongest possible evidence that a 
 mistake bad really been made.^ 
 
 The contract of the underwriters is complete in fact and in Mistake in 
 form when they have signed the policy. A declaration of interest." 
 interest to be afterwards made stands on a different footing. 
 " It is the mere exercise of a power confen-ed on the assured. 
 It is generally put upon the policy for convenience ; but this 
 is not necessary ; nor is there any necessity for its being in 
 writing." If, therefore, a broker has committed a blunder in 
 making this declaration, as where he has declared goods by 
 the wrong ship, this blunder may be rectified without the 
 assent of the underwriters.^ 
 
 The parties themselves may, by consent, introduce any Corrections 
 alterations into the policy, even after it is underwritten, ^ °°^^^^ ■ 
 whether by an erasure, and interlineation,'' or an addition 
 in a blank space, which may be required by their mutual 
 interests, and sanctioned by their mutual agreement (subject, 
 however, as we shall see, to the provisions of the Stamp 
 Acts) ; and such alterations, if properly signed, and not 
 infringing the provisions of the Stamp Acts, form as valid 
 a contract between the parties as the original terms of the 
 policy. 
 
 Policies are required by law to be in writing, and therefore Must be in 
 alterations intended to make poHcies express the meaning '"""'^" 
 of the parties must also be in writing, either in a separate 
 instrument, or on the face or back of the policy itself ; and 
 in either case subscribed by, or as is most usual in practice, 
 signed by the initials of, the underwriters, who are intended 
 to be bound by them.* The only ground upon which a 
 
 1 Henkle v. Eoyal Exoh. Ass. Co., make them illegible, is a cancelling 
 
 1 Ves. Sen. 317. of the words; FairUe v. Christie, 7 
 
 " Eobinson i). Touray, 3 Camp. Taunt. 416. 
 1 58_ * Kaimes v. Knightly, Skinner, 54; 
 
 3 Striking a pen across words, and Kobinson v. Tobin, 1 Stark. 336. 
 
 writing others over them, so as to See Keed v. Deere, 7 B. & C. 261. 
 
264 
 
 ALTERATIONS OF THE POLICY. 
 
 [part I. 
 
 General rule 
 at common 
 law. 
 
 What are 
 
 material 
 
 alterations. 
 
 Destination. 
 
 Subject of 
 insurance. 
 
 Time of 
 sailing. 
 
 Another . 
 terminus ad 
 
 written alteration of this kind can be binding upon any of 
 tbe parties to the original policy, is his assent signified 
 thereto by his signature ; in the absence of this, dissentients 
 are not bound by the policy as altered.^ 
 
 As to alterations, the general rule is, that any material 
 alteration of the policy, by the assured, avoids the policy, 
 except as to those underwriters who have consented to it in 
 writing, by signing their initials to the memorandum in 
 which the alteration is specified, or to the interlineation, 
 erasure, or addition by which it is effected.^ 
 
 The question, therefore, has generally been, what consti- 
 tutes a material alteration ? To use the language of Judge 
 Duer, does it change the sense, or affect in any degree the 
 substance of the contract ? 
 
 Where a ship was insured from Virginia to Rotterdam, 
 with leave to call at a port in England, and the assured, 
 after the policy was underwritten, by consent of some of the 
 underwriters (indorsed on the policy), altered her destination 
 from Rotterdam to Hull : this was held to avoid the policy, 
 as to all the underwriters, except those who had signed the 
 indorsement.' 
 
 So the insertion of a specific subject of insurance in a 
 policy which had been executed in blank ;* the alteration 
 of a specified day in the warranty as to time of sailing;' 
 and the alteration of a policy which had been " from Colmar 
 to Portsmouth " into a policy " from Colmar to Portsmouth, 
 or "Weymouth ; " were severally held to be policies not bind- 
 ing on those underwriters who had not subscribed the altera- 
 tion, and this, too, in the latter case, notwithstanding the 
 
 1 Forshaw v. Chabert, 3 Br. & B. 
 158 ; 6 Moore, 369 ; see also 1 Buer, 
 78-81, notes 142 et se^. 
 
 ^ Laird v. Bobinson, 4 Brown's 
 Pari. Cases, 488 ; Langhom v. Colo- 
 gan, 4 Taunt. 330; Fairlier. Christie, 
 7 Taunt. 416 ; Campbell v. Christie, 
 2 Stark. 64 ; Saunderson v. Symonds, 
 1 Br. & B. 426 ; Torshaw v. Chabert, 
 
 3 Br. & B. 158 ; 6 Moore, 369. 
 
 ' Laird v. Robertson, 4 Brown's 
 Pari. Cases, 488. 
 
 * Langhom v. Cologan, 4 Taunt. 
 330. 
 
 ^ Fairlie v. Christie, 7 Taunt. 416; 
 1 B. Moore, 114; S. C. at N. P., 
 Holt, 331. 
 
CHAP, v.] ALTERATIONS OF THE POLICr. 265 
 
 underwriter when, first informed of it had said he would not 
 take advantage of it.^ 
 
 So, where a ship was insured from " Cuba to Liverpool, Liberty to 
 with liberty in that voyage to proceed to and touch and 
 stay at and discharge and take in at any ports or places 
 whatsoever, without prejudice," and after the subscription 
 of the policy a leave " to call off Jamaica " was inserted in 
 the body of it ; the Court held, that, as Jamaica was out of 
 the direct course of the voyage insured, this was a material 
 alteration which avoided the policy as to an underwriter 
 who had not signed it ; although his not doing so seemed to 
 be the result of accident rather than in consequence of a 
 refusal.^ 
 
 On the other hand, where the alteration is not material, Immaterial 
 it wiU. not vitiate the policy ; but, in such case, if some of 
 the underwriters have consented to the alteration, after the 
 policy is executed, and others refuse, those who consent 
 make the altered instrument their own ; but those who do 
 not, remain liable on their original contract.' 
 
 The following alterations have been considered n-ot to be 
 material: — A policy was originally filled up "on The Three 
 Sisters, at and from Cadiz and Seville to Liverpool ; " after 
 the policy was underwritten the broker added the words 
 Tres Sermanas (Spanish for The Three Sisters) and also the ^res Mer- 
 words " both or either to the description of the voyage : Kerted after 
 Lord EUenborougb said that, "as the English name, The sisters.^"" 
 Three Sisters, did not amount to a warranty that the ship 
 was an English ship, the policy was not avoided by merely 
 inserting the equivalent Spanish name of Tres Sermanas" 
 As to the words " both or either," his Lordship said, that 
 " as the ship, as originally insured, had the option of going 
 both to Seville and Cadiz or not, as it might suit the 
 exigencies of the adventure, these words did not give any 
 
 1 Campbells. Christie, 2 Stark. 64. ' Per Kiohardson, J., in Saunder- 
 
 2 Forshaw v. Chabert, 3 Br. & B. son v, M'Callmn, 4 J. B. Moore, 5. 
 158. 
 
trade." 
 
 g66 .ALTERATIONS OF THE POLICT. [PAKT I. 
 
 fidditional liberty, and therefore did not affect the legal 
 operation of the instrument." ' 
 Liberty "to A ship was insured "from Liverpool to her port or ports 
 of discharge and loading in Africa, during' her stay there, 
 and hack to Liverpool, with liberty to proceed and eail to 
 and touch and stay at any ports or places wheresoever, to 
 sell, barter, and exchange, and load, unload, or reload goods 
 at any or all of the ports and places she may call at or 
 proceed to." The broker, after the subscription of the 
 policy, fearing that the words employed might not be suffi- 
 ciently extensive to include a trading, added the words 
 " and trade." He then presented it to the various under- 
 writers for their consent to this alteration, which most of 
 them signified by putting their initials to the underlined 
 words : the defendant, however, refused to do so, alleging 
 that he never underwrote trading policies to Africa. But 
 the Court were clearly of opinion that, notwithstanding the 
 defendant had expressly refused to underwrite a trading 
 policy to Africa, the alteration was not material, because 
 upon the true construction of the policy as it originally 
 stood, there was ali'eady liberty to trade on the coast of 
 Africa.^ 
 
 There seems no doubt that a material alteration, unassented 
 to, will avoid the policy wherever made on the face thereof, 
 i. e., in the margin as much as in the body of the instrument 
 (in fact, in Fairlie v. Christie, cited above, the alteration was 
 in the margin). With regard to memoranda on the back of 
 the policy, and not signed by any of the underwriters, 
 inasmuch as they would be inoperative, they would not be 
 held to avoid the policy, even if embodying material altera- 
 tions.' 
 
 1 Clapham v. Cologan, 3 Camp. cases, and 142-146 for illustrations ; 
 
 382. including some American authorities ; 
 
 « Saunderson v. Symonds, 1 Br. & see also 1 Phillips, no. 109 et seq. 
 
 B. 426; 4 Moore, 42; Saunderson «;. ^ 1 Duer, 82. See Hendersons. 
 
 M'Callum, 4 Moore, 5, S. P. See the Stevenson, L. E., 2 H. of Lds. (Sc.) 
 
 remarks of Duer, vol. i. 78-81, on 470. 
 the general principle involved in the 
 
I. 
 
 n. 
 
 CHAP, v.] ALTEKATIONS OF THE POLICY. 267 
 
 So much for alterations considered in relation to the Alterations 
 principles • of the common law. We come now to discuss s?^mp Acts, 
 the eiieot of the stamp laws upon the same subject. 
 
 The <'50 Vict. c. 23, s. 10, in effect provides, that even 30 Vict. c. 23, 
 where the underwriter has consented to the alteration in "' * 
 the policy, the altered policy shall be void, without a fresh 
 stamp, unless the case as altered complies in all respects 
 with the conditions specified in the section. The section is Alterations 
 as follows : " That nothing in this Act shall extend or be to 1)^™""^"^ 
 construed to extend to prohibit the making of any alteration ^'^^P^*^- 
 which may lawfully be made in the terms and conditions of 
 any policy after the same shall have been underwi'itten ; 
 provided that such alteration be made (1st), before notice of Pro-s'isoes- 
 the determination of the risk originally insured; (2nd), and 
 that it shall not prolong the time covered by the insurance 
 thereby made beyond the period of six months in the case of 
 a policy made for a less period than six months, or beyond 
 the period allowed by this Act in the case of- a policy made 
 for a greater period than six months;^ ('^rd), and that the m. 
 articles insured shall remain the property of the same person 
 or persons ; (4th), and that no additional or further sum shall it. 
 be insured by reason of such alteration." 
 
 By this section (which it is said ought to have a liberal 
 construction),^ no alterations in policies are made legal, which 
 would have been illegal at common law, without the assent 
 of the underwriter ; but even with the underwriter's assent, 
 the policy will be void under the statute, if there is a violation 
 of any of the conditions of the 10th section. 
 
 From the cases upon a previous enactment similarly Meaning of 
 worded, it appears that by the words " before notice of the ^ ^^ ^°^' 
 determination of the risk originally insured," — is meant that 
 determination of the risk which is caused " by the loss, or 
 
 1 Twelve months on a time policy. 
 
 ■' Per Lord Tenterden in Brookelbank v. Sugrue, 1 B. & Ad. 81, 88. 
 
268 
 
 ALTEKATIONS OF THE POLICY. 
 
 [part I. 
 
 To sail on a 
 given day. 
 
 Change of 
 termini. 
 
 safe arrival of the thing insured, or by the final end and 
 conclusion of the voyage." ' 
 
 Hence, where a policy " on goods to be shipped on board 
 ship or ships which should sail between the 1st of October, 
 
 1799, and the 1st of June, 1800," was altered by a memo- 
 randum extending the time of sailing to the 1st of August, 
 
 1800, after the original time for sailing had expired, but 
 before the loss happened. Lord Ellenborough and the Court 
 of King's Bench held, that this was an alteration made 
 before notice of the determination of risk.^ 
 
 A warranty that the ship should sail on a given day, was, 
 with the consent of the underwriters, and for an increase of 
 premium, cancelled, subject to a return of premium if the 
 ship sailed with convoy, and was held to require no fresh 
 stamp : " For," said Lord Ellenborough, " this alteration was 
 made before notice of the determination of the risk originally 
 insured " — " the thing insured remained the property of the 
 same person" — "and no additional sum was insured by 
 means of such alteration."^ So, the specified mark on the 
 goods, as well as the warranty to sail on a given day, were 
 both altered by agreement, and did not make any fresh 
 stamp requisite.^ 
 
 So, where a ship was insured "from Stockholm to 
 Swinnemunde," and while she was lying at Wisburg for 
 repairs, as it was doubtful whether the enemy might not be 
 at Swinnemunde, the underwriters consented to alter the 
 policy, by adding the words " Kcenigsberg or Memel " after 
 the word "Swinnemunde," the Court held, that the alteration 
 was made while there was only an intention to determine 
 the risk originally insured, and before its actual determina- 
 tion.' If, indeed, the change of terminus were such as to 
 involve the entire substitution of a new adventure for that 
 originally insured, the case would be different. 
 
 ' Per Lord Ellentorough in Ken- 
 sington V. Inglis, 8 East, 273, 291. 
 ' Kensington ». Inglis, 8 East, 273. 
 ' Ridsdale v. Shedden, 4 Camp. 107. 
 
 * Hubbard«).Jao]£son,4Taunt.l69. 
 
 5 Eamstrom v. Bell, 5 M. & Sel. 
 267 ; see also Brockelbank v, Sugrue, 
 1 B. & Ad.-Sl. 
 
CHAP. V.J ALTERATIONS OF THE POLICY. 269 
 
 Fiirther, by tMs section, an alteration may he made in the Changes of 
 "terms and conditions" of the policy, on condition "that oonditionl 
 the articles insured shall remain the property of the same 
 person or persons." " These words, ' the articles insured shall 
 remain the property,' &c., appear to us," says Lord Ellen- 
 borough, "properly to require and apply to one identical 
 and continued subject matter of insurance, and not to be 
 appKcable to a case where the thing first insured is not 
 only in fact, but in name and in kind (as a specific subject 
 of insurance), essentially different from the thing first in- 
 sured." ^ 
 
 Hence, where a policy was effected " at and from London 
 to the South Seas, during the ship's stay and fishing there, 
 and at and from thence to Great Britain," "on ship and 
 outfit;" and then, with the consent of the underwriters, 
 after the subscription of the policy, but before notice of 
 loss, was altered into a policy "on ship and goods;" it was 
 held, that this alteration was in excess of the stamp on the 
 policy, because the outfit originally insured was a totally 
 different kind of thing, on a whaling voyage, from goo(h 
 to which the altered policy was made to apply.^ 
 
 It is to be observed that by the section of the statute as 
 interpreted by this decision, it is not intended that the 
 subject of insurance should, throughout the voyage, continue 
 the same specific thing, but only of the same denomination. 
 As, for instance, in bartering voyages, although the original 
 goods insured are exchanged for other goods in the course of 
 the voyage, yet, as all continue equally to come within the 
 general denomination of "goods," the alteration is of no 
 effect within the meaning of the statute.' 
 
 We have already seen, that an express warranty may be Waiving 
 altered without being in excess of the stamp. It has also ^nanty. 
 been decided that a memorandum, by which the underwriter 
 consents to waive the implied warranty that the ship was 
 
 1 Per Lord Ellenborongh in Hill*. ' Per Lord EUenborough, 8 East, 
 Patten, 8 East, 373, 376. 377. See also Kensington v. Inglis, 
 
 2 HUl V. Patten, 8 East, 373. 8 East, 273. 
 
270 
 
 ALTERATIONS OP THE POLICY. 
 
 [part I. 
 
 Oorreotion of 
 a mistake. 
 
 seaworthy at the time of sailing, is not such an alteration of 
 the policy as to he heyond the stamp; for such consent 
 prevents the inference which would otherwise arise, that the 
 unseaworthiness was a determination of the risk.^ 
 
 There is a wide difference, as regards the stamp, between 
 cases in which the alteration is merely the correction of a 
 mistake, and those in which it is, in fact, intended to make 
 a new instrument. The one is an alteration of the contract 
 for the mere purpose of making it express in terms what 
 both parties intended it should express at the time of making 
 it ; the other is an alteration for the purpose of giving it a 
 different meaning and extent from that which both parties 
 intended it to bear at the moment of its execution. Alte- 
 rations of the first class are not beyond the stamp, those of 
 the second are.^ 
 
 Hence, where the policy was on goods, by "ship or ships" 
 to Ije thereafter declared, and the broker, by mistake, made 
 declaration of a wrong ship, a memorandum rectifying this 
 mistake in no way affected the stamp.' So, in a case where 
 the assured having no interest in the ship, but only in the 
 cargo, the words " on ship," which had been inserted by pure 
 mistake, were struck out, and the words " on goods as 
 interest may appear," substituted in their room, it was held 
 that this alteration was within the stamp.* 
 
 Original 
 rights de- 
 stroyed by 
 alteration. 
 
 Where no rights or liabilities can arise under the altered 
 instrument by reason of the stamp laws, the rights and 
 liabilities which existed under the original instrument are 
 nevertheless destroyed by the alteration. 
 
 After the Court, in Hill v. Patten, had decided that the 
 alteration of outfit into goods was one which could not be 
 made without a fresh stamp, and therefore that the plaintiff 
 could not recover on the policy as altered, the plaintiff 
 
 ■ Weir V. Aberdein, 2 B. & Aid. 
 320. 
 '' Cole V. Parkin, 12 East, 471. 
 ^ Robinson v. Touray, 3 Camp. 158 ; 
 
 1 M. & Sel. 217. 
 
 * Sawtell V. Loudon, 6 Taunt. 359 ; 
 1 Marshall, E. 99. 
 
CHAP, v.] PERFECTING THE POLICY. 271 
 
 brought an action upon the policy in its original form ; hut 
 the Court held he could not recover on that either.^ Lord 
 Ellenhorough said, " The alfiered policy, though ineffectual 
 as an instrument to sue on, was effectual to do away with the 
 former agreement, which was thereby abandoned;"^ and 
 Le Blanc, J., asks " how the Court can enforce an agreement, 
 after the parties themselves, upon the very face of the same 
 instrument, have declared that it is not their agreement, and 
 have actually written another and a different agreement in 
 the place of it." ^ It seems to make no difference whether 
 the memorandum embodying the alteration is written on the 
 back or the face of the poKcy,* provided it be signed by the 
 underwriter. 
 
 We have considered in detail the form in which the ordi- The perfect- 
 nary Lloyd's policy is executed by the individual under- fe^'ure^^and 
 
 writers.^ Partnerships may execute in the name and style cancellation 
 r J •' oi the policy. 
 
 of the firm. Companies according to their deed or articles of 
 
 • • • 1 • T • 1 Mode of 
 
 association issue their policies executed under seal or by execution. 
 
 signature, or both by seal and signature, occasionally counter- 
 signed by the secretary." 
 
 After being executed in the form which is binding on the Delivery of 
 insurer, and before being issued, while the policy is still in ^° "^^ 
 his possession, he may cancel his execution of it. If when 
 executed in due form by the insurer he deliver the policy to 
 his clerk to be kept till called for, the presumption upon such 
 evidence, without more, is that by intention of the insurer it 
 is a valid and binding instrument. Little room for ques- 
 tions of this nature is left by the practice at Lloyd's, where 
 it is usual for the broker to carry round the policy for 
 the subscription of those underwriters who have initialed 
 
 1 French v. Patten, 1 Camp. 72 ; ^ Ante, p. 250, and see rule of 
 
 9 East, 351. Uoyd's cited at p. 150, note 2, dis- 
 
 ^ 9 East, 355. allowingf of any underwriting in the 
 
 3 Ibid. 357. name and style of a partnership. 
 
 4 Reed r. Deere, 7 B. & C. 261. « Ante, p. 156. 
 
273 ;perfec:ting the policy. [part i. 
 
 the slip. With companies the practice is different, for the 
 execution usually takes place in the ahsence of the assured 
 or his hroker, and hence of necessity delivery is never 
 immediate nor at any time formal. The presumption there- 
 fore is that when the instrument, completed and executed, 
 passes into the hands of the company's servants to be kept 
 till called for by the assured, it is already a valid policy.^ 
 
 The policy A policy of insurance, though containing as many con- 
 
 one instru- . , ,, . ...... 
 
 ment in legal tracts as there are msurers underwriting it, appears, never- 
 
 eonoep ion. theless, to be considered so much one instrument in legal 
 effect as to be still — in fieri — in the process of being per- 
 fected, although executed by one or more of the insurers, 
 so long as the whole amount of the insurance is not under- 
 written. Under such circumstances, an alteration, though 
 material, being made with the consent of those who had 
 underwritten, was held not to have vitiated the instrument, 
 as it was still only in the process of formation.^ 
 
 Continuing a A time poliov upon freight was effected with a mutual 
 
 poUcywith- f , , . , 
 
 out notice. assurance club, subject to the rules thereof, one of which in 
 
 effect provided that upon expiration of the time the policy 
 
 should be renewed by the committee of the club unless 
 
 notice to the contrary were given to or by them withiu a 
 
 specified period before. No such notice having been given, 
 
 it was held a continuing policy.^ But when a policy was 
 
 vitiated by concealment of a material fact on the part of the 
 
 assured's agent, and afterwards the insurer upon learning 
 
 what had happened, wrote the agent in these words: — 
 
 " Understanding that the steamer B. has been on shore, I do 
 
 not consider that my risk commences until the vessel has 
 
 been surveyed and repaired," — this letter, to which no answer 
 
 1 Xenos V. Wickham, L. E,., 2 H. 336. 
 
 ofLds.296; 33 L. J. (C. P.) 13 ; U ' Michael s.GiUespy, 2C.B.,N.S. 
 
 C. B., N. S. 452; Cox v. Troy, 5 B. & 627 ; 26 L. J. (C. P.) 306. The legal 
 
 Aid. 474. For limited efEect that may effect of the word continuing here 
 
 ie given to delivery out of a policy, must be taken to be renewed. See 
 
 see Morrison v. Universal Mar. Ins. Lishman v. Northern Marit. Ins. Co., 
 
 Co., L. R., 8 Exoh. 197. L. R., 8 C. P. 216 ; and 30 Vict. 
 
 " Robinson v. Tobin, 1 Stark. R. c. 23, a. 8. 
 
CHAP. V.J CANCELLING THE POLICY. 273 
 
 was returned, was held not to have created a fresh contract 
 of insurance. At most it was an unaccepted proposal, and 
 whether the agent without express authority could have 
 accepted it was douhted.i 
 
 The assured, after acceptance of a valid policy, may forfeit Forfeiture of 
 aU benefit under it, for instance, by breach or non-perform- ■^° ''^' 
 ance of one of the warranties expressed or implied in the 
 instrument itself, or of a condition precedent under which 
 the instrument was granted,^ or by such an alteration of the 
 instrument as, at common law or by virtue of the Stamp 
 Acts, renders it a nullity, or by such illegality affecting the 
 assured adventure that it becomes incapable of protection 
 under the sanction of law. 
 
 The rescission of the contract must be the act of both Cancellation 
 parties to it, the assured and the insurer. The insurance 
 broker, acting for the former, has no implied authority, 
 merely by virtue of his capacity as such agent, to demand 
 or consent to the cancellation of the policy,' although it had 
 been left in his hands. But the conduct of the principals 
 in this matter may be so ambiguous that their intention 
 may become a question of law for the Court upon the con- 
 struction of their written communications, or a question of 
 fact for a jury upon consideration of what was said and done 
 between them. 
 
 For instance, the assured may have sold the whole of his 
 interest without, at the same time, parting with the policy, 
 and whether, under all the circumstances of the case, he 
 meant to keep it alive, as holding it in trust for the vendee, 
 or to let it become a nullity, may be the question. A cargo 
 of wheat was insured from Gralatz to Emden and a port of 
 discharge in the United Kingdom, to return a percentage 
 
 1 Russell 1). Thornton, 4 H. & N. Tumbullw. Woolfe, 9 Jur., N. S. 57. 
 788 ; 29 L. J. (Ex.) 9 ; (in error) 6 ' Xenos v. Wiokham, L. E., 2 H. 
 H. & N. 140 ; 30 L. J. (Ex.) 69. of Lds. 296 ; 14 C. B., N. S. 452 ; 
 
 2 Hughes V. TindaU, 18 C. B. 98 ; 33 t. J. (C. P.) 13. 
 
 M. 
 
 T 
 
274 CANCELLING THE POLICY. [PART I. 
 
 of the premium in case the risk were terminated at Emden ; 
 the wheat being sold while on the voyage from Gralatz to 
 Emden, the vendor transferred the policy to the vendee, and 
 claimed from the underwriter a return of premium for 
 terminating the risk at Emden ; but the policy was afterwards 
 put in suit by the vendee for a total loss between Emden 
 and the United Kingdom, and whether the vendor had done 
 all that was requisite to cancel the policy, as against the 
 vendee for the subsequent part of the risk, was the question. 
 This was determined against the plaintifE by the bought 
 and sold note, which showed that he purchased the wheat 
 at so much a quarter, " including freight and insurance to 
 Emden."! 
 
 A vessel insured against fire for twelve months, ending 
 the 29th of July, arrived at Liverpool on the 12th of April, 
 and the assured wrote a letter to the insurance broker, pro- 
 posing a cancellation of the policy and return of premium, 
 " say from the 12th of April." The other sent for the policy 
 "to put forward returns for cancellation," and received it. 
 On the 21st of April, the broker cancelled it on the terms of 
 returning premium from the 30th April to the 30th July, 
 alleging a custom of insurance brokers not to reckon broken 
 months. The ship was burnt on the 22nd April, and that 
 same day the assured wrote a letter, withdrawing his 
 proposal to cancel, as he had then received no answer, — and 
 whether, under these circumstances, there had been a 
 cancellation, and on what terms, was the question. It was 
 held that the broker, by sending for the policy on receipt of 
 the proposal to cancel, must be taken to have acceded to the 
 terms proposed, and to have cancelled on those terms. The 
 plaintiff therefore lost the insurance, and recovered the 
 difference on the return of premium for the period between 
 the 12th and 30th April.^ 
 
 A policy on ship from Liverpool to Philadelphia and 
 
 1 lonidest!. Harford, 29 L. J. (Ex.) Co., L. R,, 10 Q. B. 249. 
 36 ; S. F. North of England Oilcake » Baines v. Woodfall, 6 C. B., N. S. 
 
 Co. V. Archangel Marit. Bk. and Ins. 657 ; 28 L. J. (0. P.) 338. 
 
CHAP, v.] CONSTRUCTION OF THE POLICY. 275 
 
 United Kingdom was altered ty memorandum substituting 
 Baltimore for Philadelphia, and -was afterwards further 
 altered hj this memorandum, " In consideration of an 
 additional premium, it is hereby agreed to allow the vessel 
 to go to Antwerp." In this state of the policy, the ship 
 arrived at Antwerp and was ordered to Leith, hut was lost on 
 her way thither. It was held that she was uninsured at the 
 time of the loss, as the effect of the second memorandum was 
 to terminate the risk at Antwerp.^ 
 
 The priuciples which govern the construction of sea-policies The prin- 
 do not vary from those applicable to all other mercantile construction 
 
 instruments. appHcable to 
 
 sea-policies. 
 
 The language of sea-policies is frequently indeterminate, 
 ambiguous, or technical. When this is so, but never other- 
 wise,^ parol evidence, as in the case of other contracts, is 
 admissible to explain it. The language of sea-policies is 
 also frequently incomplete as an expression of the meaning 
 of the parties, because it is employed, and is understood 
 so to be, with reference to the usages of trade : ^ in this latter 
 class of cases (and they are very numerous) the meaning of 
 the contract embodied in a sea-policy, even where the language 
 of the policy is on the face of it unambiguous, may, nay must, 
 be explained by parol evidence of those usages, a knowledge 
 of which in such cases forms the only available key to the 
 real intention of the parties.* 
 
 In these cases, " the question," says Lord Mansfield, " is 
 whether the usage has not explained the generality of the 
 words. If it has, every man who contracts under a usage, 
 does it as if the point of usage were inserted in the contract 
 
 1 Stones;. Mar. Ins. Co. Ocean presses it, "not of trade in the largest 
 
 Limited of Gothenburg, 1 Exoh. D. sense of the -word, but of that export 
 
 81 _ and import trade which is conducted 
 
 " Blackett v. Eoyal Exch. Ass. by navigation." 1 Duer, 180. 
 Co., 2 C. & J. 244. * Mason v. Skurray, 1 Marsh. Ins. 
 
 » Judge Duer very correctly ex- 218 ; 1 Park, Ins. 253. 
 
 t2 
 
276 CONSTRUCTION 0¥ THE POLICY. [PART I. 
 
 in terms." ^ The notion, however, which appears at one 
 time to have prevailed (favoured unquestionahly hy certain 
 reported expressions of the earlier Judges), that sea-policies 
 were not amenable to the rules of construction generally 
 applicable to all other mercantile contracts, but were to be 
 interpreted so as to carry out the assumed intentions of the 
 parties, even though repugnant to the terms in which their 
 intentions purported to be expressed on the face of the 
 instrument itself, must now be regarded as erroneous.^ 
 
 Parol evidence, whether of usage or otherwise, can in no 
 case be admitted to contradict or materially vary the plain 
 arid express terms of a sea-policy. It can only be admitted 
 either to explain those terms where they are technical or 
 ambiguous, or to modify or add to them where they are 
 plainly employed with reference to some usage of trade, and 
 where, without such reference, they would accordingly be 
 incomplete as an expression of the mind of the parties 
 contracting. In such cases the Courts, in order to effectuate 
 the real intention of the parties, will resort to such means of 
 
 ' It is to these oases (viz., where the use of the 'Word control, which, 
 
 the terms of the policy are employed as he truly states, does not necessarily 
 
 with reference to the usages of trade, imply to contradict. " The distino- 
 
 and incomplete as an expression of tion made by the learned Judge 
 
 the meaning of the parties without between explaining and controlling 
 
 such reference) that we must apply really does exist. Where the words 
 
 the strong expressions of Lord Mans- to be interpreted are indeterminate or 
 
 field and some other Judges as to the ambiguous the usage explains them ; 
 
 force of usage in interpreting poUoies. but when they convey a deiinite 
 
 Thus, in Preston v. Greenwood, 4 meaning that the Court would be 
 
 Dougl. 28, Lord Mansfield says, bound to adopt, or their construction 
 
 "Usage is always considered in po- has been settled by law, the usage 
 
 Ucies of insurance, even where the controls them ; and in these cases it 
 
 words are plain ; " and Buller, J., in does set aside what, judging only 
 
 Long». Allen, ibid. 276, "In policies from the terms of the policy or the 
 
 of insurance in particular, a great rule of law, was the plain intention 
 
 latitude of construction as to usage of the parties, but, in controlling, 
 
 has been admitted;" andagain(which the usage does not contradict the 
 
 is the strongest expression on the words, it merely varies, by restrain- 
 
 subjeot to be found in the books), ing or enlarging, their application." 
 
 " Usage not oi^y explains but con- i Duer, 245, 246. 
 
 trols the policy." Judge Duer con- « See Weston v. Ernes, 1 Taunt. 
 
 Biders BuUer, J., strictly accurate in 115. 
 
CHAP, v.] CONSTRUCTION OF THE POLICY. 277 
 
 interpreting the polioy as may he supplied either by the rules 
 of the common law, the general usages of trade, or the par- 
 ticular circumstances of the case.^ 
 
 " The same rule of construction," says Lord BUenhorough, 
 " which applies to other instruments, applies equally to this, 
 viz., that it is to he construed according to the sense and 
 meaning, as collected in the first place from the terms used 
 in it, which terms are to he understood in their plain, 
 ordinary, and popular sense, unless they have generally, in 
 respect to the subject matter, as hy the known usage of trade 
 or the like, acquired a peculiar sense, distinct from the 
 popular sense of the same words, or unless the context 
 evidently points out that they must in the particular instance, 
 and in order to effectuate the immediate intention of the 
 parties, he understood in some other special and peculiar 
 sense." ^ 
 
 The following are some of the more prominent rules of General rules, 
 construction that appear to have been acted upon hy our 
 Courts in the interpretation of sea-poHcies. 
 
 1. Every usage of a particular branch of maritime trade 
 
 ' See 1 Emerigon, u. i. b. 5, p. 17, the words they hare used upon any 
 and c. ii. ». 7, pp. 85, S6 ; see the construction will admit or convey ; 
 judgment of Lord Denman in True- but there are oases in which the 
 man v. Loder, 11 A. & E. 589 ; and language of a policy, in entire con- 
 that of Story, J., in the Schooner sistency with the rules of law, may 
 Eeeside, 2 Sumn. 567 ; see also the be interpreted in difierent senses, or 
 admirable remarks of Mr. Chancellor with a modification which, though 
 Kent (Com. iii. p. 260, and note/) ; not express, is implied; in such oases 
 and especially the two very able and parol evidence may be admitted to 
 elaborate chapters (with their notes determine the construction that, fol- 
 and illustrations) which Judge Duer lowing the intention, ought to be 
 devotes to the consideration of this adopted. The admission of such evi- 
 subject (1 Duer, 158-311). "The donee varies the construction of the 
 meaning of the rule excluding parol contract, but does not contradict or 
 evidence is, that such evidence shall vary the agreement embodied in the 
 never be received to show the inten - polioy ; on the contrary, it establishes 
 tion of the parties to have been di- its true meaning.'" 1 Duer, 176, 
 rectly opposite to that which their 177. 
 
 language expresses, or substantially ^ Robertson v. French, i East, 
 
 difiEering from any meaning which 130, 135.- 
 
278 CONSTRUCTION Ol' THE POLICY. [PART I. 
 
 1. Every which IS SO Well Settled, or so generally known, that all 
 ■well-settled j • -j. i? ' i t. i i i j.- 
 
 usage of the persons engaged m it may tamy be taken as contracting 
 
 /m^Varf oT"* '^'^^^ reference to that usage, is considered as forming part 
 
 thepoUoy. of every sea-policy designed to protect risks in such trade, 
 unless the express terms of the policy decisively repel the 
 evidence.^ Nor need any evidence be given in such cases 
 that the usage has been communicated to the underwriter ; 
 for, as Lord Mansfield says, " every underwriter is presumed 
 to be acquainted with the usage of the particular trade he 
 insures; and if he does not know it, he ought to inform 
 himself."^ The description of the voyage in the policy, he 
 says, iu another case, "is an express reference to the usual 
 manner of making it, as much as if every circumstance were 
 mentioned " on the face of the instrument. " What is usually 
 done by such a ship, with such a cargo, in such a voyage, is 
 understood to be referred to in every policy, and to make a 
 part of it as much as if it was expressed."^ 
 
 Clmia trade. It had been the custom for many years ia the China trade 
 for all European ships, while at Canton, to store their 
 rigging and furniture ia houses, built for that purpose on 
 sand banks in the Canton river, called bank-sauIs ; it was 
 held therefore, that every underwriter insuring a risk in the 
 Canton trade, must be considered to have done so with 
 reference to this usage; and that the imderwriter was, 
 therefore, as much liable for a loss by fire happening to the 
 rigging so stored, as for any similar loss occurring in any 
 other part of the adventure.* 
 
 East India It was formerly the uniform and well-known practice of 
 
 the Bast India Company to reserve in their charter-parties 
 the liberty of employing the vessel in what is called the 
 
 ' See where in case of a fire policy munds, 4 Camp. 142, 143. 
 
 the terms used did repel the evidence, ' Lord Mansfield ia PeUy v. Eoyal 
 
 Pearson v. Commercial TJnion Ase. Exoh. Ass. Co., 1 Burr. 341, 350; per 
 
 Co., L. E., 8 C. P. 548; 1 App. Lord Lyndhurst, Blaekett ». Eoyal 
 
 Cases, 498. Exch. Ass. Co., 1 Cr. & J. 249. 
 
 2 Lord Mansfield in Noble v. Ken- * Pelly v. Eoyal Exoh. Ass. Co., 1 
 
 noway, 2Dougl. 610, 513; and Lord Burr. 341; Brough v. Whitmore, 4 
 
 EUcnborough in Da Costa v. Ed- T. E. 206. 
 
CHAP. V.J CONSTKUCTION OF THE POLICY. 279 
 
 coiintry trade, that is, on iatermediate voyages from one 
 port to another in India; and all parties engaged in this 
 trade were taken to be fully cognizant of the usage. 
 Accordingly, under policies on ships employed by the company, 
 though nothing was said of an intermediate voyage in the 
 policy, yet, because the voyage insured was known by the 
 underwriter to be an East India voyage, the Courts held that 
 he must be presumed to have contracted with reference to all 
 the known usages of the East India trade ; and, therefore, 
 that the construction of the policy should be the same as if 
 liberty had been expressly reserved on the face of it, to make 
 Buch intermediate voyage.^ 
 
 In the Newfoundland and Labrador trades, where the Newfound- 
 main object of the voyage is to take fish, it is a well-known 
 and general usage that the cargoes insured on such voyages, 
 being chiefly salt and provisions, are taken out as they are 
 wanted, and not landed, like other cargoes, on arrival ; under 
 an insurance, therefore, on such a fishing voyage, on " goods " 
 in the usual form, " until discharged and safely landed," it 
 was held that the underwriter must be taken to have insured 
 with full cognizance of this usage, and could not exempt 
 himself from liability for a loss, although it had not taken 
 place until long after the time when, but for the custom of 
 the trade, his liability under the mere terms of the policy 
 would have been at an end.^ 
 
 It, is also a well-understood and familiar usage of the 
 Newfoundland trade, that the ships engaged in it, after their 
 arrival at Newfoundland, are either engaged for some time 
 in fishing (called banking), or they make intermediate voy- 
 ages from one American port to another, before beginning 
 to load a cargo for the homeward voyage. It has been 
 
 1 Salvador -o. Hopkins, 3 Burr. the ooaat of Labrador, but evidence 
 1707 ; Gregory v. Christie, 3 Dougl. was admitted to show the usage in 
 419; Farquharsonj'. Hunter, 1 Part, such case to he the same as on fish- 
 ing. 105. ing voyages to the coast of New- 
 
 * Noble V. Kennoway, 2 Dougl. foundland. 
 510. The voyage in this case was to 
 
280 
 
 CONSTRUCTION OF THE POLICY. 
 
 [part I. 
 
 luled by Lord Eldon and by Lord Ellenborough, that under- 
 writers, who had insured homeward risks on ships engaged 
 ia this trade, under policies " at and from Newfoundland," 
 were bound to know this usage ; and were not entitled to 
 contend that such intermediate voyages vitiated the policy 
 by varying the risks they had intended to insure.^ " Ac- 
 cording to the general import of the words ' at and from,' " 
 says Lord Ellenborough, in one of these cases, " the policy 
 would attach on the ship's first mooring in a harbour on the 
 coast, but it doubtless may be explained difEerently by usage, 
 and as between these parties, the policy must be taken to be 
 the same as if it had been expressed to attach on the expira- 
 tion of the banking or intermediate voyage." ^ This oertaialy 
 seems an instance of usage being permitted to control the 
 general import of a clause in the policy, as fixed by legal 
 construction. 
 
 Usage afEeot- The commencement and termination of the risk may be 
 mencement Varied by the customary usage of particular ports from that 
 tSnoT^*' ■'^liich upon the general construction of the policy they would 
 risk. otherwise have been. 
 
 Oporto trade. Thus, by a well-known usage in the Oporto trade, ships 
 complete their loading for the homeward voyage outside the 
 bar, whenever, from the low state of water in the Tagus, 
 they cannot conveniently do so within ; and an underwriter 
 on a policy " at and from Oporto to London," was not dis- 
 charged from liability by the ship, without his knowledge, 
 Plorida trade, loading outside according to usage.^ So, in the Florida 
 trade, ships customarily take in their homeward cargoes at 
 Tigre Island in St. Mary's river, and then drop down to 
 
 ' VaUanoe v. Dewar, 1 Camp. 
 503 ; Ougier v. Jennings, ibid, in 
 notis, per Lord Eldon in 1801, vhen 
 Chief Justice of the Common Pleas. 
 
 2 1 Camp. 608. 
 
 ' Kingston v. Knibbs, 1 Camp. 
 508, in notis, a very strong case, as 
 it appeared that in such policies 
 
 liberty is often expressly given to 
 load on either side of the bar ; so 
 that the underwriter might not un- 
 fairly have contended that he was 
 misled by the omission of this stipu- 
 lation. Accord, the cases in the 
 East India trade referred to ante, 
 p. 279, note 1. 
 
CHAP. V.j CONSTRUCTION OF THE POLICY. 281 
 
 Amelia Island, a little lower down the river, for the purpose 
 of paying dues and clearing ; an underwriter, on goods " at 
 and from the ship's loading port or ports in Amelia Island 
 to London," was not entitled to object that the policy never 
 attached, hecause the goods had been loaded, not at Amelia 
 Island, but at Tigre Island.^ 
 
 On proof of an ancient custom at the port of Leghorn, At Leghorn, 
 that certain goods for that port should be invariably landed 
 at the Lazaretto, it was held in the TTnited States, in the case 
 of an insurance on such goods, " tiQ they were safely landed 
 at Leghorn," that such landing at the Lazaretto was in 
 virtue of the custom equivalent to a landing at Leghorn.^ 
 
 Under a policy on ship at the Mauritius, and for thirty "Arrival." 
 days after arrival, evidence was admitted of a usage to 
 anchor at the Bell Buoy, outside the harbour of Port Louis, 
 where vessels calling for orders, seeking freight, or receiving 
 or discharging part — not the whole — of their cargo, waited, 
 and that they were then considered to be at the Mauritius, 
 and a total loss at this place within the thirty days was held 
 to be covered by the policy.' 
 
 From the rule thus illustrated, it follows by way of corol- Particular 
 lary, that if the usage of the particular trade with reference ^ef general 
 to which the underwriter insures, is opposed to any of those "^*"*™fi 
 general usages of maritime traffic, with reference to which all 
 policies are prima facie supposed to be made, the former is to 
 be taken as the true key to the construction of the policy. 
 
 On an insurance on goods, the underwriter is in general Goods carried 
 entitled to expect that they will be stowed away in the hold, usage, 
 and not on deck, which is regarded as an unusual and dan- 
 gerous place for that purpose ; and every policy is read as 
 
 1 Moxon V. Atkins, 3 Camp. 200. ' Jansonj'. Lindsay, 23 L. J. (Ex.) 
 
 In this case it should be remarked 315 ; 4 H. & N. 699. See the effect 
 
 that, as there were no ports at all in of usage at the port of Liverpool 
 
 Amelia Island, the poHoy could not on the law of demurrage, Norden 
 
 be construed literally. Steamship Co. v. Dempsey, 1 C. P. D. 
 
 ' G-racie v. Maryland Ins. Co., 8 654. 
 Cranch's Sup. Ct. R. 75. 
 
282 
 
 CONSTKUCTION OF THE POLICY. 
 
 [part I. 
 
 Stopping at 
 
 interjacent 
 
 port. 
 
 Return of 
 premium. 
 
 Liberty "to 
 touch." 
 
 though it contained an exemption in terms from all liahility 
 on goods so carried.^ But whenever it can he shown that, 
 by a well-settled and generally-known usage of the parti- 
 cular trade on which the underwriter insures, goods of the 
 specific description of those insured in the policy are custo- 
 marily carried on deck, the more general usage gives way 
 to the more particular one, and the underwriter is liable for 
 any loss upon the goods so carried, without any necessity of 
 proving notice.^ 
 
 It is a general usage, impliedly incorporated into all 
 policies, that the ship shall pursue a direct course between 
 the two termini of the voyage, without stopping at any 
 intermediate places; if, however, it be the notorious and 
 well-settled usage of any given trade to stop at certain 
 interjacent ports, the particular usage would doubtless 
 countervail the general maritime usage, and such stopping, 
 though not authorized expressly, be deemed no deviation.' 
 
 Again, it is a general rule, that where the risk and pre- 
 mium are both entire, if the policy once attach, the whole 
 premium is retained. Yet Lord Mansfield, in an action for 
 return of premium, admitted evidence of a constant and 
 invariable usage in the trade between London and Jamaica, 
 infringing this rule in particular cases.* 
 
 If the construction of a clause is not settled and fixed, 
 but comparatively doubtful, evidence of usage is d fortiori 
 admitted to explain the sense in which it is intended in the 
 particular policy. Thus, a clause giving " liberty to touch " 
 at certain islands, was held by the Court of Common Pleas, 
 upon evidence of a usage in the trade, to cover not only 
 calling at the island in question, but also taking in salt.' 
 
 ^ See tte judgment of Lord Lynd- 
 hurst in Blackett v. Royal Exoh. 
 Aes. Co., 2 Or. & J. 244, 249, 250. 
 
 ' Da Costa v. Edmunds, 4 Camp. 
 142 ; Gould v. Oliver, 4 Bing. N. 0. 
 134 ; Milward v. Hibtert, 3 Q. B. 
 120 ; Miller v. Titherington, 6 H. & 
 N. 278; 30 L. J. (Ex.) 217; (in 
 error) 7 H. & N. 954 ; 31 L. J. (Ex.) 
 
 363 ; Johnson v. Chapman, 35 L. J. 
 (0. P.) 23. 
 
 3 1 Marshall, Ins. 186 ; 1 PhilUps, 
 Ins. no. 133 et seq. 
 
 * Long V. Allen, 4 Dougl. 276 ; 2 
 Park, Ins. 797 ; 2 Marsh. Ins. 668. 
 
 " Urquhait v. Bernard, 1 Taunt. 
 450. 
 
CHAP. V.J CONSTllUCTION OF THE POLICY. 283 
 
 2. A usage, in order to be binding, must be either a 2. The 
 general and notorious trade usage of the whole mercantile br|en™af 
 world (of which the Court will take judicial notice), or a wj°°'^°"^ 
 particular proved usage of universal prevalence and notoriety oular branch 
 in the trade upon which, and of the place in respect of which, 
 the insurance is effected : the usage of a particular place, or 
 pf a particular class of persons, cannot be binding on non- 
 residents, or on other persons, unless they are shown to have 
 been cognizant of it.^ 
 
 " To make an usage obligatory on the parties," saysStory, it must he 
 J., " it should be so well settled, that aU persons engaged ^^ ^^ ^ > 
 in the trade must be considered as contracting with reference 
 to it." ^ Hence, where in case of an insurance effected from 
 Liverpool to Jamaica, the ship put into the Isle of Man; 
 and it appeared that ships bound on this voyage sometimes 
 put in there, but not usually : it was held, that this proof 
 did not amount to such a well-known and settled usage of 
 the trade between Liverpool and the West Indies, as to 
 prevent this from being a deviation.' 
 
 The usage need not, in the strict sense of the word, be and general, 
 uniform, that is, followed invariably and without exception fQ^m. 
 at all times and by all persons in the trade to which it 
 relates ; it is enough that it be general. Thus, in the case 
 of intermediate voyages in the Newfoundland fishery trade 
 already referred to, it was objected before Lord Ellenborough, 
 that the suggested usage was not uniform, for whenever a 
 ship engaged in the trade could procure a cargo on her 
 arrival at Newfoundland, she preferred returning direct to 
 Europe to taking an intermediate voyage in America. As 
 
 1 Per Lord Tenterden in Bartlett ^ In Trott v. Wood, 1 GaUison's 
 V. Pentland, lOB. &C. 760, 770; see Kep. 444, cited by Mr. Phillips, 
 Miller v. Titherington, 6 H. & N. vol. i. no. 138. 
 278 ; so per Cur. in Norden Steam- ' 1 Marshall, Ins. 186 ; Salisbury- 
 ship Co. V. Dempsey, 1 C. P. D. 654 ; v. Townson, Millar, Ins. 418 ; Martin 
 Ward V. Harris, 8 L. E., Ir. 365, v. Delaware Ins. Co., Condy's Mar- 
 C. A. shall, 186, n. 
 
B84 CONSTEUCTION OF THE POLICY. [PART I. 
 
 to tUs objection, Us Lordship said, " Although, there should 
 
 fee exceptions to the usage, that would be immaterial. Things 
 
 are presumed to go on in their ordinary course, and if a 
 
 usage be general, though not uniform, the underwriters are 
 
 bound to take notice of it." ^ 
 
 It must be The usage must be notorious. It must have existed 
 
 under such circumstances, or for such length of time, as to 
 
 have become generally well known to all persons concerned 
 
 in or about the branch of trade to which it relates, and so 
 
 as to warrant a presumption that contracts are made with 
 
 reference to it." ^ 
 
 Although the If the usage proved can satisfactorily be shown to have 
 trade be of ^ t t i ■ i i.r. £ j. i ' 
 
 recent origin, been general and notorious, as long as tne course oi trade m 
 
 which it prevails has lasted, it makes no difference that such 
 trade is itself of recent origin. Thus, when the trade to 
 Labrador, which was first opened to English shipping after 
 the Peace of Paris 1763, had been carried on only three 
 years. Lord Mansfield held, that a custom, which had been 
 invariably observed ever since its opening, was binding on 
 those who insured on Labrador risks, as though *the trade 
 itself had been of much longer continuance. In this case, 
 Lord Mansfield considered that evidence of a usage which 
 had prevailed in one trade, was rightly admitted to prove 
 that the same usage was binding on those engaged in another 
 trade of the same kind, carried on under similar circum- 
 stances in the same way.^ 
 
 ' Vallanoeii. Dewar, 1 Camp. 503; 510. Judge Duer remarks, and very- 
 see also 1 Duer, 264, 265. Judge properly on this case, that as the 
 Duer is of opinion (p. 265) that when observance of such a usage seems to 
 " the usage settles the construction have been almost a necessary result 
 of the policy, or supersedes a rule of from the nature of the trade, the 
 law, its constancy of observance, to Court were probably satisfied with 
 render it binding, must be invari- slighter proof of its existence than 
 able;" sed quaire. they would otherwise have required ; 
 
 ''■ I adopt this test, with a slight 1 Duer, 255. 
 
 difference in the phraseology, from As to when a usage of recent origin 
 
 the judgment of the Supreme Court becomes binding in law, seethejudg- 
 
 of New York in Smith v. Wright, 1 ment per Cookbum, C. J., in Goodwin 
 
 N. T. T. Eep. 45, cited by Judge ». Eobarts, L. R., 10 Ex. 337, 346 ; 
 
 Duer, vol. i. p. 267, u. (a). 1 App. Cas. 476 ; RumbaU v. Metro- 
 
 " Noble V. Kennoway, 2 Dougl. politan Bank, 2 Q. B. D. 194. 
 
CHAP, v.] CONSTRUCTION OF THE POLICY. 285 
 
 It need hardly be said that suoh usage must be reasonable. The usage 
 When the case of intermediate voyages in the Newfoundland reasonable, 
 fishing trade came before Lord Eldon, he is reported to have 
 said to the jury as to this point, " If the evidence leads to 
 this, that the ship may make an intermediate voyage of 
 several years, it is too dangerous for you to give it effect.—- 
 If you think this usage does exist, if you think it reasonable, 
 and if you think this ship acted bond fide in taking the inter- 
 mediate voyage, you will find for the plaintiff." i Lord 
 Eldon could hardly have meant by this to leave the question 
 of reasonableness to the jury (a question always, it should 
 seem, for the Court) ; what he intended must have been to 
 ask them, whether they thought the evidence established the 
 existence of suoh a usage as he had already pointed out as 
 reasonable, or of one which, as he had already told them, was 
 too dangerous to give effect to. 
 
 It is not an unfair presumption that the parties, in 
 effecting the policy, have contracted with reference to usages 
 which are either common to all trades, or perfectly well 
 known and settled in the particular trade to which the' 
 insurance relates. But with regard to usages which only 
 prevail in a given place, or amongst a particular description 
 of persons, the presumption is the other way; and in such 
 cases, accordingly, it must be satisfactorily shown, that the 
 party sought to be affected by the usage had knowledge of 
 it at the time of making the contract. In the words of Lord 
 Tenterden : " The usage of a particular place or a particular 
 class of persons, cannot be binding on non-residents or on 
 other persons, unless they are shown to have been cognizant 
 of it." 
 
 We had in a former chapter^ frequent instances of the Usages at 
 application of this rule in respect of the usages at Lloyd's. °^ 
 We saw that although clear proof be given of a particular 
 usage being established at Lloyd's, and the fact be, that the 
 
 ' Ougier*. Jennings, 1 Camp. 506; " Ante, Chap. IV. p. 199. 
 
 in notis ; see 1 Duer, 269. 
 
286 CONSTRUCTION OF THE POLICY. [PAET I. 
 
 policy was effected by a broker at Lloyd's, in the common 
 course of business, for a party resident in this country ; yet 
 the assured cannot be affected by the usage, unless it be 
 further shown, either that he was actually cognizant of it, 
 or from his general mode of dealing, habits of life, or place 
 of business, cannot be supposed to have been ignorant of it.^ 
 Cases illua- _ A Liverpool house, through the agency of a London 
 point. broker, effected a policy at Lloyd's, on horses "warranted 
 
 free of jettison and mortality," from Liverpool to Jamaica. 
 During a storm in the course of the voyage three of the 
 horses were kicked to death by the others ; and the under- 
 writers, to a claim for this loss, set up a usage of Lloyd's, 
 not to pay a loss on live stock by mortality occurring in the 
 course of the voyage, except where the ship was lost before 
 arrival. In the case stated for the opinion of the Court, 
 there was no finding that the plaintiff was cognizant of the 
 usage, and the Court therefore held that the plaintiff was not 
 bound by it.^ 
 
 By general usage in the law merchant, the insurance 
 broker is considered as debtor to the underwriter for pre- 
 miums, and the underwriter ets debtor to the assured for 
 losses;^ there is a custom, however, at Lloyd's, well known 
 to those who do business there, for the brokers to settle Avith 
 the underwriters according to the state of the accounts 
 between them, in which accounts the broker is debtor to the 
 underwriter for premiums, and the underwriter is debtor to 
 the broker for losses, and by the usage such settlement in 
 account is considered as payment. 
 
 But whether the assured is bound by such a settlement, 
 so as to oblige him to look to the broker only for what before 
 the settlement was a debt due from the underwriter, depends 
 
 1 Gabay v. Lloyd, 3 B. &Cr. 793 ; 449 ; (in error) 9 0. B., N. S. 534; 
 
 Bartlett v. Pentland, 10 B. & Or. 30 L. J. (0. P.) 109. 
 
 760 ; Scott V. Irving, 1 B. & Ad. 2 Gabay v. Lloyd, 3 B. & Or. 793. 
 
 605 ; Stewart k. Aberdein, 4 M. & » Per Lord Tenterden in Bartlett 
 
 W. 211; Sweeting v. Pearce, 29 v. Pentland, 10 B. & Cr. 780. 
 L. J. (0. P.) 265 ; 7 C. B., N. S. 
 
CHAP. V.J CONSTRUCTION OF THE POLICY. 287 
 
 on his oognizanoe of the usage, as we have seen at consider- 
 ahle length in a previous chapter.^ 
 
 3. Where the sense of the words and expressions used 3. Patent 
 in a policy is either ambiguous or ohsoure on the face of the aLugSity of 
 instrument, or is made so by proof of extrinsic ciroum- ■^°'^'^^- 
 stances, parol evidence is admissible to explain by usage 
 their meaning in the given case. 
 
 The words and phrases employed in policies may be 
 obscure in themselves, as when they are entirely technical 
 and local, so as, without explanation, to be quite unintel- 
 ligible to the generality of persons; in this case, their 
 ambiguity of meaning appears upon merely reading them as 
 they stand in the instrument ; it is patent on the face of it. 
 Again, the words employed may have an ordinary meaning 
 intelligible to people in general without reference to any 
 particular business ; yet, if they have also another meaning 
 peculiar to a particular business, and the circumstances of the 
 case show that such secondary or less general sense is that in 
 which they are used in the instrument of which the meaning 
 is to be ascertained, parol evidence may be resorted to in this 
 case also, to explain the real meaning of the contract, by 
 showing the sense in which the parties to it employed their 
 words.'^ 
 
 Several instances of the application of this rule have Cases, 
 arisen in the construction of the memorandum by which the 
 underwriters exempt themselves from liability on certain 
 perishable articles : thus, evidence of usage has been admitted 
 to show that the term corn, as used in the memorandum, is 
 meant to comprehend every sort of grain, and also beans, 
 peas,' and malt;* but that it does not include rice :° also 
 that the term salt does not include saltpetre." 
 
 > Ante, Chap. IV. p. 199. * Moody v. Surridge, ibid. 
 
 2 See Broom's Legal Maxims, pp. ' Scott v. Bourdillion, 2 B. & P. 
 588, 590. N. K. 213. 
 
 3 Mason v. SkuiTay, 1 Park, Ins. = Per Wilson, J., in Journu v. 
 245. Bourdieu, 1 Park, Ins. 245. 
 
288 CONSTKUCTION OF THE POLICY. [PART I. 
 
 TJpon the same principle, in the United States, where the 
 memorandum contained the exception of roots, the evidence 
 of mercantile men was admitted to show that the word as 
 used in the memorandum was in practice, with reference to 
 other mercantile contracts, confined in its application to 
 perishable roots, such as beets and other garden roots ; and 
 therefore that sarsaparilla, being a dry hard root and not 
 liable to decay, was not included in the memorandum.^ So, 
 in a policy on furs, similar evidence was admitted to prove 
 that the word shins in the memorandum should not exempt 
 the underwriter from liabiKty to an average loss on bear 
 skins ; it being shown that such skins were chiefly valuable 
 as furs.' 
 
 In a case before Lord Mansfield, where the insurance was 
 on ship, furniture, &c., in the usual words of the printed 
 sea-policy, the ship was employed in the Greenland fishery, 
 and the question was, whether the words of the policy covered 
 fishing tackle and stores ; his Lordship said this would depend 
 on the usage of trade, and admitted evidence of such usage 
 accordingly.^ 
 "Wither A vessel was insured "either with or without letters of 
 
 letters of marque," the intention of course being to have the liberty 
 marque.' q£ exercising the power, but to what extent, whether solely 
 in acting on the defensive, or in giving chase, or in cruising 
 generally, were questions not settled by the obvious and 
 general import of the words ; Lord EUenborough said, " It 
 may be material to ascertain in what manner parties to 
 contracts containing this form of words have acted upon 
 them in former instances, and whether they have obtained, 
 as between the assured and assurers, any known and definite 
 import."* 
 
 ' Coit 1). Commercial Ins. Co., 7 " ABtors.'D'nionlns.Co.jTCoweii's 
 
 Johnson's N. T. Rep. 383. The Rep. 202. 
 
 ■words of the memorandum in this ' Hoslrins ». Piokersgill, 2 Marsh, 
 
 case were "roots and all other articles Ins. 735 ; 1 Park, Ins. 126. 
 
 of a perishable nature," so that the * Parr v. Anderson, 6 East, 202, 
 
 very language of the clause formed 207. 
 a clue to its construction. 
 
CHAP. V.J CONSTRUCTION OF THE POLICY. 289 
 
 The risk on ship and goods is often specified to begin and 'Port." 
 end from their arrival at, sailing from, or loading at one 
 port, until their arrival or safe discharge at another port : in 
 these cases the meaning in which the word port is used in 
 the policy must he ascertained hy admitting parol evidence 
 to show what meaning and extent, in the general under- 
 standing of the mercantile world, is attached, to the word 
 port as applied to the place where, by the poKcy, the risk is 
 made to begin or end ; ^ and although the mercantile sense 
 attached to the term may give the port in question a greater 
 or a less extent than its legal or political limits, yet the 
 mercantile sense, and not the legal import of the word, shall 
 prevail. Thus, although Llanelly is, legally speaking, con- 
 sidered to be a part of the port of Carmarthen, and Bridport 
 of the port of Lyme Eegis, yet neither was considered to be 
 so, within the meaning of the words " port of Carmarthen" — 
 " port of Lyme Eegis," in a policy of insurance ; those words 
 meaning, in mercantile usage, " the town and port of Lyme 
 Eegis," — " the town and port of Carmarthen." " 
 
 Where words descriptive of seas or countries have acquired 
 a sense among mercantile men differing from their common 
 geographical import, parol evidence of the meaning put upon 
 them by the mercantile world is admissible, to show the sense 
 put on them by the parties to the policy. 
 
 Thus, under a policy " from Van Diemen's Land to a port "Indian 
 or ports of loading in India and the Indian Islands," the 
 Court held that, though amongst geographers, Mauritius was 
 deemed an African island, yet parol evidence was admissible 
 to prove that in commercial language it passed for an Indian 
 island.* So, where an insurance was " from London to any " Baltic" 
 port in the Baltic," and the vessel sailed for Eevel, in the 
 Grulf of Finland, which, among geographers, is considered a 
 
 ' Constable v. Noble, 2 Taunt. 402 ; * Constable v. Noble, 2 Tatmt. 402 ; 
 
 Payne v. Hutobinson, ibid. 405 in Payne v. Hutchinson, ibid. 405. See 
 
 notis ; Cockey v. Atkinson, 2 B. & per Brett, M. R., in Sailing Ship 
 
 Aid. 460 ; Brown v. Tayleur, 4 A. & G-arston Co. v. Hickie, 15 Q. B. D. 
 
 E. 241 ; see Maclaohlan, Shipping, 580. 
 
 p. 377. ' Eobertsonw. Clarke, 1 Bing. 445. 
 
 M. U 
 
290 
 
 CONSTRUCTION OF THE POLICT. 
 
 [part I. 
 
 " Cargo." 
 
 "IVeight." 
 
 different sea from the Baltic, yet, upon evidence that it is 
 comprehended in the Baltic in commercial language, the 
 Court gave this extension to the term Baltic in the policy.^ 
 
 No usage. But in the absence of any such usage or custom among 
 
 mercantile men, with regard to the phraseology to he found 
 in the poHoy, the meaning and effect must be ascertained by 
 the ordinary general rules of construction ; thus, in a policy 
 on ship in vrhich the warranty was " No St. Lawrence be- 
 tween " certain dates, it was held that both the river and the 
 Gulf of that name were within the terms of the warranty.^ 
 
 Where a question arose in an action on a policy as to the 
 meaning of the word " cargo," Tindal, 0. J., ruled that, as it 
 was a term of mercantile import, its sense, as used in the 
 policy, was a question for the jury, and could not be decided 
 by the dictionary.' So with regard to " freight," Story, J., 
 on the ground that it was a word which, in common parlance, 
 has several meanings, admitted parol evidence to be given of 
 the circumstances under which the contract was made, in 
 order to show its meaning in the particular case, as, for 
 instance, whether it meant " goods on board ship," or " an 
 interest in the earnings of the ship."* 
 
 "Premises." A river steamer in Canada was insured against fire in a 
 form of policy applicable to buildings, the parties probably 
 forgetting to strike out the condition that if more than 20 lb. 
 weight of gunpowder were on the premises at the time of the 
 loss, the insurers should not be liable. This condition was 
 held by the Privy Council to be incorporated with the 
 contract, and that although the word premises was popularly 
 applied to buildings, it was still applicable to the ship, in the 
 ordinary legal sense of the term, as designating the subject 
 or thing previously spoken of.' 
 
 1 XJhde V. Wailters, 3 Camp. 16 ; 
 see also Moxon v. Atldns, ibid. 200. 
 
 " Bicrell v. Dryer, 9 App. Caa. 
 315. 
 
 » Houghton V. aUbart, 7 C. & P. 
 701. 
 
 ♦ Peisoh V. Dixon, 1 Mass. Eep. 10 ; 
 
 1 Duer, 168, 1.69. 
 
 5 The Beacon Kre and Life AfS. 
 Co. V. Gibb, 1 Moore, P. 0., N. S. 73. 
 See Quebec Marine Ins. Co. v. Com- 
 mercial Bk. of Canada, L. R., 3 P. C. 
 234. 
 
CHAP, v.] CONSTRUCTION OF THE POLICY. 291. 
 
 4. Resort to parol evidence, however, whetlier of usage 4. .Usage 
 or otherwise, is only permitted in order either to explain the plain the 
 policy where it is technical or amWguous, or to fill out and ^ oontea^ot 
 add to it where it is silent: such evidence will never be the plain, 
 admitted to contradict, set aside, or control its express, plain*, 
 and unamhiguous terms. 
 
 No evidence can he admitted of a usage which is at direct 
 variance with the plain terms of the policy. It may be 
 admitted to explain technical terms or ambiguous clauses, or 
 " to introduce matter on which the policy is silent," but not 
 to show that the policy has a meaning in plain opposition 
 to its language ; " usage is only admissible to explain what 
 is doubtful^ never to contradict what is plain." ^ 
 
 " Usage," says Lord Campbell, " may be relied upon to 
 show the sense in which an expression found in a written 
 contract is used in a particular trade ; and a usage consistent 
 with a written contract may be introduced into it ; as both 
 parties being aware of it, may be supposed to have intended 
 that it shall form part of their bargain. But to let in verbal 
 evidence of a usage for the purpose of contradicting and 
 nullifying an express written contract would be contrary to 
 all principle, and has been forbidden as often as the attempt 
 has been made."^ 
 
 " Where the terms," says Judge Duer, " in which the 
 usage must be expressed, if introduced into the policy, would 
 be directly and irreconcilably repugnant to an express clause 
 or provision, the evidence must doubtless be rejected, other- 
 wise the policy would be void for uncertainty. A usage may 
 explain, modify, and control, but cannot contradict a policy ; 
 by restriction or addition it may qualify the construction of 
 
 1 Per Lord Lyndhurst, ia Blaokett v. Dale, 26 L. J. (Q. B.) 137 ; 7 E. 
 V. Royal Exoh. Ass. Co., 2 Cr. & J. & B. 266 ; S. C. (in error) 27 L. J. 
 244. (Q. B.) 390 ; E., B. & E. 1004 J 
 
 2 HaU». Jansoii,4E.&B. 504; 24 Brown v. Byrne, 23 L. J. (Q. B.) 
 L. J. (Q. B.) 101. See the judgment 313 ; 3 E. & B. 703. 
 
 of the same learned Judge in Humf rey 
 
 V2 
 
292 
 
 CONSTEUCTION OF THE POLICY. 
 
 [PAKT I. 
 
 Parkinsou v. 
 Collier. 
 
 Blackett v. 
 Koyal Exch. 
 Ass. Co. 
 
 Crofts V. 
 Marshall. 
 
 particular words and clauses, tut can never te permitted to 
 nullify or expunge them." ^ 
 
 These principles, notwithstanding some apparent discre- 
 pancy in the expressions of the Judges, have been uniformly 
 acted upon in the construction of sea-policies. Thus, where 
 the risk on goods was, hy the policy, made to continue " tUl 
 discharged and safely landed," Lord Kenyon would not admit 
 evidence of usage to show that this expression, in the par- 
 ticular trade insured, meant " until the ship was moored 
 twenty-four hours in safety ; " because this was inconsistent 
 with the plain meaning of the policy, which was too clearly 
 expressed to require or allow of any such explanation.^ 
 
 So where a policy was in the common form upon the ship, 
 that is, " upon the body, tackle, apparel, ordnance, munition, 
 boat, and other furniture of the ship called The Thames," 
 Lord Lyndhurst would not admit evidence of a usage at 
 Lloyd's, that boats slung on the ship's quarter (which was 
 proved to be the invariable mode of carrying them on such 
 voyages as that insured) were not protected by such policy.' 
 " The objection," said his Lordship, " to the parol evidence 
 is, that it was not to explain any ambiguous words in the 
 policy, any words which might admit of doubt, nor to 
 introduce matter on which the policy was silent, but was at 
 direct variance with the terms of the policy and in plain 
 opposition to the language it used ; that whereas the policy 
 purported to be upon the ship, furniture, and apparel 
 generally, the usage is to say, that it is not upon all the 
 furniture and apparel, but upon part only, excluding the 
 boat."* 
 
 On the same ground, in a case where it appeared that oil 
 had been lost by leakage, caused by the violent labouring of 
 the ship in a cross sea. Lord Denman refused to admit 
 
 > Duer, 270. He accepts the word 
 " control " from BuUer, J., and 
 defends it: ante, p. 276, note. 
 
 ' Paikinson v. Collier, 2 Park, Ins. 
 653 ; 1 Marshall, Ins. 253. 
 
 •'' Blackett v. Boyal Exoh. Ass. Co., 
 2 Cr. & J. 244. 
 
 * Per Lord Lyndhurst, 2 Cr. & J. 
 244, 249. 
 
CHAP. V, j CONSTRUCTION OF THE POLICY. 293 
 
 pvidence of a usage at Lloyd's to the effect that unless the 
 cargo shifted, or the casks were damaged, underwriters were 
 not liable for any extent of leakage, however caused, as a 
 loss by perils of the sea. His Lordship told the jury to 
 consider for themselves whether, in their opinion, the damage 
 to the oil was in fact caused by perils of the sea; — "It may 
 be very convenient for the underwriters to have such a 
 general rule, and for the commercial world to submit to it ; 
 but if they mean thereby to control the effect of a plain 
 instrument, they should introduce its terms into the policy."^ 
 
 In an action for contribution in general average against Hall v. 
 one of the underwriters on a policy " on money advanced on ^^°^- 
 account of freight," containing the usual clause in the 
 memorandum by which " freight, &c., is warranted free from 
 average under 51. per cent, unless general or the ship be 
 stranded," the defendant set up a usage in London, not to 
 pay general average contribution under such a policy. The 
 Court held that this was an attempt to set up a usage in 
 derogation and contradiction of the written contract which, 
 by virtue of the clause in the memorandum, plainly and 
 expressly rendered the underwriter on freight liable for 
 general average without regard to the extent of the loss.^ 
 
 In defence to an action for an average loss, a usage was Harrison w. 
 set up not to pay for damage to the ship below the water j^aTinTlmT 
 line unless she had taken the ground, and much evidence of *^°- 
 average adjusters and others was admitted, subject to the 
 opinion of the Court, whether it were admissible, but the 
 jury negatived the existence of any such usage.' 
 
 5. The policy being a printed form with the blanks filled 5. The wnt- 
 up in writing, it is a rule that " if there is any doubt about may control 
 the sense or meaning of the whole, the words superadded *„^^^al 
 in writing are entitled to have a greater effect attributed to pa^s of the 
 
 . policy. 
 
 them than the printed words ; inasmuch as the written words 
 
 1 Crofts V. Marshall, 7 Carr. & 2i L. J. (Q. B.) 97. 
 
 Payne, 597, 607. ' Harrisons. The Universal Marine 
 
 2 HaU V. Janson, 4 B. & B. 500 ; Ins. Co., 3 F. & F. 191. 
 
294 
 
 CONSTRUCTION OF THE POLICY. [pART I. 
 
 are tlie immediate language and terms selected by the parties 
 themselves for the expression of their meaning." ' ' 
 
 In a case where the Lloyd's form of policy was filled up 
 as a time policy on ship, it was argued from the various 
 clauses, not usually struck out and in this case left standing, 
 referring to a voyage, that certain conditions only applieahle 
 to a voyage policy, therefore applied in the case of a policy, 
 though in terms a time policy, to a ship insured- by it, and 
 judgment was given in the Exchequer Chamber accordingly. 
 
 " It has been suggested," said Lord Penzance, in moving 
 the House of Lords to reverse the judgment, "that by 
 reason of the policy having been drawn up on a printed 
 fonn, the printed terms of which are applicable to a voyage, 
 and also to goods as well as to the ship, the policy is some- 
 thing less or something more than a time policy. But the 
 practice of mercantile men of writing into their printed forms 
 the terms by which they desire to describe and limit the 
 risk intended to be insured against, without striking out the 
 words which may be applicable to a larger or different 
 contract, is too well known, and has been too constantly 
 recognized in courts of law, to permit of any such con- 
 clusion."^ 
 
 Hence it is, that in the familiar instance of words written 
 in the margin, or at the foot of policies, such written words 
 are considered as applying indefinitely to the whole of the 
 policy, and as controlling the sense of those parts of the 
 printed policy to which they apply. So that by the word 
 ship, or freight, or goods, written in the margin, the general 
 terms of the policy, applicable to other subjects besides the 
 particular one mentioned in the margin, are considered as 
 narrowed in point of construction to it.' 
 
 ' PerLordEllenboroughinEobert- see Kent's Com. 260. 
 son V. French, 4 East, 130, 136 ; per ^ Dudgeon «/. Pembroke, 2 App, 
 
 curiam, Gumm v. Tyrie, 43 L. J. (Q. Caa. 284, 293 ; 1 Q. B. D. 96 ; L. 
 
 B.) 97 ; per Blackburn, J., in Joyce E., 9 Q. B. 581. 
 V. Eealm Ins. Co., L. R., 7 Q. B. ^i 4East, 140; and see Robinson v. 
 
 583 ; per Lord Penzance, Dudgeon Tobin, 1 Stark. 356 ; see also Haugh- 
 
 V. Pembroke, 2 App. Oas. 284, 293 ; ton v. Ewbank, 4 Camp. 88. 
 
CHAP, v.] CONSTRUCTION OF THE POLICY. 295 
 
 The subsequent portions of this work -will furnish many 
 instances of this rule of construction. 
 
 6. It is also a rule, founded on the same principle, that 6- A-nd are 
 greater strictness of construction should he applied to those more strictly 
 clauses and stipulations, which the parties have themselves °°°^ ^ ' 
 introduced, than to the words of the printed formula, which 
 
 are applicable generally to other oases of insurance on similar 
 suhjects and not restrained to the circumstances of the 
 particular adventure.^ 
 
 Frequent illustrations of this rule will he afforded when 
 we come to speak of clauses giving a liberty to touch and 
 stay, of express warranties, and other written stipulations, 
 by which the parties to the policy seek either to enlarge 
 or to limit the protection afforded by the common printed 
 form. 
 
 7. If conditions which are inserted for the protection 7. As to 
 of the underwriter be ambiguous, and the ambiguityis such ambiguity, 
 as to be inexplicable by extrinsic evidence if admitted, the 
 construction will lean towards the side of the assured rather 
 
 than of the insurer.^ 
 
 1 Emerigon, o. ii. s. 7, p. 55. which the foreign house had bond 
 
 ^ Mtton V. The Accidental Death Jide executed them. And see Birrell 
 
 Insurance Co., 34 L. J. (0. P.) 28 ; v. Dryer, 9 App. Cas. 345. 
 Carr & Josling v. The Royal Exch. At the same time, see this rule 
 
 Ass. Co., 33 L. J. (Q. B.) 63 ; per as applied in its most inequitable 
 
 TindaljC. J.,inBorrodaile«i.Hunter, severity in Blaokett v. Eoyal Exch. 
 
 8 Sc. N. E. 446. See Ireland v. Ass. Co., 2 Cr. & J. 244 ; Donnell 
 
 Livingston, L. E., 6 H. of Lds. v. Columbian Ins. Co., 2 Sumner's 
 
 (Eng.) 395, in which written orders E. 366 ; and repudiated as applicable 
 
 from England to a commercial house to commercial contracts, yet never- 
 
 abroad being susceptible of two theless applied with absolute effect 
 
 senses, each of them consistent with to a policy of insurance, by Lord 
 
 the presumable intention of the prin- Esher in Stewart v. Merchants Mar. 
 
 cipals, were held to bind the English Ins. Co., 14 Q. B. D. 555, noticed 
 
 house in the one of these senses in post, Part III. Chap. III. 
 

 OHAPTEE VI. 
 
 
 VALUATION FOR THE PURPOSES OF THE POLICY. 
 
 
 Valuation of insurable interest - 296 
 
 on goods - . - 
 
 - 3U 
 
 theoretical principle - 
 
 - 296 
 
 Open policies - . - 
 
 - 317 
 
 practical principle - 
 
 - 297 
 
 amount to insure 
 
 - 318 
 
 Valued policies 
 
 - 298 
 
 on ship - . - 
 
 - 320 
 
 effect of valuation 
 
 - 299 
 
 freight 
 
 - 321 
 
 on ship - - , - 
 
 - 311 
 
 goods 
 
 - 321 
 
 on freight 
 
 - 312 
 
 Double and over insurance 
 
 - 327 
 
 Valuation of We prooeed now to consider the mode of estimating the 
 
 intCTcst.^ insuratle value of the interest at risk, with a view to pro- 
 
 otuing indemnity for the assured in case of loss. 
 
 Theoretical 
 principle. 
 
 It would sieem, d priori, that the true principle upon 
 which the interest under a policy ought to be valued, is 
 that which wiLL give the assured, as nearly as possible, a 
 complete indemnity against the consequences of loss. In 
 theory, that is to say, the object of such a valuation ought 
 to be to place the assured in exactly the same situation as he 
 would have been in if no loss had taken place. 
 
 Let us look at the result of this principle when applied 
 severally to the case of ship, goods, and freight. 
 
 A ship, in view of modem commerce, is regarded not as 
 an instrument for carrying the owner's merchandise, but as 
 in itself a source of emolument, derived from carrying goods 
 on freight, or from performing certain contracts of affreight- 
 ment on hire. Out of such freight or hire, the shipowner 
 has to pay wages, to furnish provisions, to defray the 
 expenses of the voyage, and also 'to make good that diminu- 
 tion in the value of the ship and her apparel, accruing from 
 hour to hour, in the course of every voyage, which is 
 
CHAP. VI.] VALUATION FOB INSURANCE. ' ^297 
 
 familiarly called the wear and tear of the ship. What 
 remains of the freight, after deducting these charges and 
 outgoings, is the net profit on the voyage arising to the 
 shipowner from the employment of his capital invested in 
 the ship. 
 
 On the principle of valuation just adverted to it is plain 
 that the ship, for the purposes of insurance, ought to he 
 estimated at her value after deducting the wear and tear of 
 the voyage : for that is what the ship would have been 
 worth to her owner on arrival, without loss or damage by the 
 perils insured against. 
 
 So, with regard to freight, the estimation of its value for 
 the purposes of insurance on the above principle, if such 
 a thing were practicable beforehand, would be that sum, 
 and no more, which the shipowner might calculate upon 
 receiving on the safe arrival of the ship, — that is to say, 
 the net freight, after deducting seamen's wages and the 
 other expenses of earning it ; because, in case the ship is lost, 
 that is all the shipowner loses. 
 
 And again, with regard to goods, in order to put the mer- 
 chant in the same situation as though no loss on his goods 
 had taken place, in other words, to procure him a complete 
 indemnity, it is clear that the value of the goods should 
 be estimated, for the purposes of insurance, at the price 
 which they would actually have produced, had they arrived 
 undamaged at their port of destination, together with the 
 freight, duty, and landing charges there payable upon them. 
 
 Such Mr. Benecke very ably points out is the only mode 
 of estimating the value of the interest at risk, by whicl; 
 complete and absolute indemnity can in all cases be provided 
 for the assured.' 
 
 Yet this, be the reason what it may, is not the principle Practical 
 of valuation which has been generally adopted in the P™'"^!'®* 
 practice of our own or any other country. Parties engaged 
 
 ' Prmciples of Indemnity, chaps, i., ii. pp. 1-70. 
 
298 VALUED POLicy. [part I. 
 
 in the tusiness of marine insuranoe confine themselves to an 
 indemnity of a more limited description ; the object sought 
 by the mode of insurance generally in practice, both here 
 and elsewhere, is to put the assured not in the position he 
 would have occupied if no loss had been sustained, but in 
 the position which he actually occupied at the commencement 
 of the risk. 
 
 It is upon this basis that the insurable value of the 
 interest at risk is invariably calculated in all Open policies 
 effected in this country. The worth of the thing insured 
 to its owner at the outset of the risk with the expenses of 
 the insuranoe is, in all open policies, its estimated value for 
 the purposes of insurance. 
 
 As the ship in the course of every voyage is more or less 
 diminished in value by wear and tear before the loss takes 
 place; and as the goods would, in most instances, but for 
 the loss, have realized a higher sum at their port of destina- 
 tion than at their port of loading; it is very obvious, that 
 by this mode of insurance, the assured on ship and on 
 freight, in case of loss, will, in all probability, receive more 
 than an indemnity, and the assured on goods less. 
 
 Policies for the purposes of this chapter may be con- 
 sidered as distinguished into two classes, valmd and open. 
 These we shall discuss in their order ; and first, as to valued 
 policies. 
 
 Valued policy. The statutory form and usually every other form of policy 
 in this country contains the following clause: — "The said 
 ship, &c., goods and merchandises, &o., for so much as it 
 concerns the assured, between the assured and the assurers 
 in this policy, are and shall be valued at ." ^ 
 
 What it is. The difference between an open and valued policy in point 
 
 1 In a policy on freight the two held, that this was not a valued 
 
 words " as tinder," were added to this policy ; Wilson v. Nelson, 5 B. & S. 
 
 clause, and lower down in the margin 354 ; 33 L. J. (Q. B.) 220. 
 was written " 1300?. on freight," — 
 
CHAP. VI.J VALUED POLICY. 299 
 
 of form is solely this, — that in a valued policy this blank is 
 filled up with the sum at -which the parties agree to fix the 
 amount of the insurable interest, — in an open policy it is 
 left in blank. 
 
 The difference, in point of effect, between a valued and an Effect of 
 open policy is, that under an open policy, in case of loss, the ^* ^ °"' 
 assured must prove the actual value of the subject of in- 
 surance ; under a valued policy he need never do so, the 
 valuation in the policy being conclusive between the parties, 
 except in the case of fraud.^ Yet the interest may be so 
 much overvalued, that it becomes material to disclose this 
 fact to the underwriter at the time of effecting the policy, 
 otherwise the concealment will vitiate the contract.^ 
 
 There can now be no doubt that this is the true position. Erroneous 
 There was an opinion at one time that, although the valua- "I"""""^" 
 tion was conclusive in case of total loss, yet that in cases of 
 average loss it was not so ; as the policy was then to be 
 opened. By this was meant that the agreed valuation was 
 to be set aside as the standard and basis of the underwriter's 
 liability, and the actual amount of the interest at risk proved, 
 just as in the case of an open policy. For instance, if in case 
 of an average loss under a policy on goods, the damage is 
 ascertained to amount to one-fourth, instead of claiming a 
 fourth part of the valuation in the policy, this valuation is to 
 be disregarded, and the insurable value of the goods, i. e., 
 their prime cost, together with the premiums of insurance, 
 &c., must be proved in order to call upon the xinderwriters 
 for a fourth of the value thus proved. 
 
 This doctrine, wholly repugnant to the true construction 
 of the clause on which it formed a gloss, appears to have 
 arisen out of a dictum of Lord Mansfield, in the case of 
 
 ' Barker v. Janson, L. E., 3 C. P. Stevens on Average, 179-183 ; 2 
 
 303 ; North, of England, &c., Ins. PhiUips, Ins. no. 1189 et seq. ; 3 
 
 Ass. V. Armstrong, L. E., 5 Q. B. Kent's Com. 274. 
 
 244 ; Lewis v. Eucker, 2 Burr. 1167 ; ^ lonides v. Pender, L. E., 9 Q. B. 
 
 Shawe v. Felton, 2 East, 109 ; Be- 631. 
 necke, Pr. of Indem. 152, 158 ; 
 
80Q yALUED POLICY. [part 1. 
 
 Erasmus v. Banks, where he is reported to have said, " an 
 
 average loss opens the policy." ^ The phrase is unhappy, 
 
 and suggestive of error, in consequence of the meaning 
 
 attached to the words open the policy ; but as it has ceased 
 
 from use, and with it the error which was suggested, this 
 
 notice of it may suflBce. 
 
 Object of " The object of a valuation," says Lord EUenborough, " is 
 
 valuation. ,., ,^ ■\ • , • i 
 
 to fix an estimate on the subject insured, and to supersede 
 
 the necessity of proving the actual value, by specifying a 
 certain sum as the amount of that value. If part only of 
 the subject insured be lost, the assured can only recover in 
 respect of that loss according to the proportion which that 
 bears to the whole sum at which the entire subject of 
 insurance was estimated in the poHoy." ^ By way of illus- 
 tration, Lord Mansfield puts the following example : — 
 Suppose sea-damaged goods valued at 30^. in the policy to 
 arrive at a market where, had they anived sound, they 
 would have sold for 50/. ; but arriving damaged, they only 
 sell for 40/^. — here is a depreciation of 10/., or a fifth of their 
 sound value — the underwriter must pay a fifth of the value 
 in the policy, i. e., 6/.' 
 
 In one case, in which- sugars, the invoice cost of which, 
 together with the charges, was 1543/. 18s. lOd., were valued 
 in the policy at 1500/., no doubt seemed to be entertained 
 that, on loss of half the sugars, the assured was entitled to 
 half the sum at which the sugar was valued.* In this case 
 the prime cost was greater than the agreed value; but in 
 another case, where it was less, the same rule was adhered to, 
 and the assured, on an average loss, was held entitled to 
 recover from each separate underwriter a sum bearing the 
 same proportion to his subscription, as the percentage of loss 
 
 ^ Cited in Shawe v. Felton, 2 East, Barnes, 4 Camp. 228. 
 
 113. 3 Lewis «. Eucker, 2 Bvirr. U67, 
 
 * Forbes v. Aspinall, 13 East, 323, 1169. 
 
 326, 327. See also Usher v. Noble, » Tunno v. Edwards, 12 East, 488. 
 12 East, 639, 646 ; and Bousfield v. 
 
CHAP. VI.J VALUED POUCY. 801- 
 
 ultimately sustained by the goods bore to the whole value in 
 the poHoy.i 
 
 In case of total loss, the value in the policy has always The value in 
 been held as the conclusive standard of indemnity» between ^wrys^oon- 
 the parties ; and it clearly is so in all cases, whether the loss "'^'^"^■^ 
 be total or only partial.* Nor is it any exception to this 
 rule, save in appearance, that where a ship, insured in a 
 valued policy, was sold under an Admiralty decree in a 
 coUision suit for less than the amount in the policy, the 
 assured did not recover more than she sold for, on this 
 obviously just ground, that the contract in the running-down 
 clause was to bear what the assured should be liable to pay and 
 should pay? 
 
 A vessel that had been worth 8000/., was so much injured 
 at sea that she was not worth repairing ; this, however, being 
 unknown at home, she was insured, while in that condition, 
 for 6000/., valued at 8000/., and after the policy attached she 
 was totally destroyed by the perils insured against ; in this 
 case the valuation was held binding, and the policy valid.^ 
 
 The only cases which form an exception to the generality Exception. 
 of this rule, are cases of manifestly fraudulent valuation. 
 " An exorbitant valuation," says Bovill, C. J., " may be 
 evidence of fraud ; but when the transaction is bona fide, 
 
 1 Goldamid v. GriJlies, 4 Taunt. App. Cas. 333, 335. 
 
 803. Here the invoice price of the ^ Shawe ». Pelton, 2 East, 109. 
 
 goods was 27201., the agreed vaflue * Irving v. Manning, 1 H. of Lds. 
 
 3000?. Cases, 817 ; 6 C. B. 391 ; 8. C. 
 
 2 "For the purpose of the contract (below) 1 C. B. 168; (in error) 2 
 of insurance, and for the purpose of C. B. 784. See the conouirent testi- 
 all rights arising from that contract, mony of Stevens on Average, 179- 
 whether rights of indemnity or rights 183; Benecke, Pr. of Indem. 152- 
 by way of snbrogation or substi- 158 ; 2 Phillips, Ins. no. 1189 ; 3 
 tution, it may well be that the Kent's Com. 274. 
 
 valuation in a valued policy is con- ^ Thompson v. Reynolds, 26 li. J. 
 
 elusive ; but whenever it is sought (Q. B.) 93 ; 7 E. & B. 172. 
 
 to set up an estoppel founded upon ^ Barker v. Janson, L. K., 3 C. P. 
 
 the valuation for any purpose going 303. S. F. Lidgett v. Secretan, L. 
 
 beyond that, the law does not justify E., 6 C. P. 616 ; Marshall v. Parker, 
 
 such a use of it." See per Selbome, 2 Camp. 69. 
 
 L. C, Bumand v. Bodocanachi, 7 
 
302 VALUED POLICY. [PART I. 
 
 the valuation agreed upon is binding." ' So Lord Mansfield, 
 after stating that upon valued policies " the merchant need 
 only prove some interest to take it out of the 19 Greo. 2, 
 because the adverse party has admitted the value," &o., 
 adds : " If, indeed, it should come out in proof, that a man 
 had insured 2000/., and had interest on board to the value of 
 a cable only, there never has been, and, I believe, never will 
 be, a determination that, by such an evasion, the Act of 
 Parliament may be defeated." ^ 
 
 Haigh». Accordingly, where clear evidence was given that the 
 
 goods had been fraudulently over-valued, with intent to 
 cheat the underwriters. Sir J. Mansfield would not allow the 
 assured to recover even for the value actually proved to be 
 on board ; but the evidence of fraud in this case was very 
 conclusive ; the actual value on board was only 1400/. ; the 
 valuation in the policy was 5000/. ; the invoices were proved 
 to be fictitious, and the bills of lading to have been inter- 
 polated, after they were signed by the captain ; the ship 
 was run away with, and carried to the West Indies (having 
 been insured for Pemambuco), and the goods there disposed 
 of by a person whom the assured had put on board as a 
 supercargo.' 
 
 The result. The rule, therefore, is, that under a valued policy the 
 
 assured upon traverse of interest must prove that he had, in 
 fact, some insurable interest in the subject insured ; but he 
 need never prove the value of such interest, unless the cir- 
 cumstances and the defence raise a question of fraud.* By 
 fraud, however, or by excessive over-valuation material to be 
 disclosed but in fact concealed, the contract itself is vitiated ; 
 and in either case nothing at all can be recovered.' 
 
 1 Barker v. Janson, L. E., 3 C. P. 319. 
 
 303. * Per Sir J. Mansfield, in Feise v. 
 
 " Lewis V. Euoker, 2 Burr. 1167, Aguilar, 3 Taunt. 506. 
 
 1171. The la-w is the same in the ' Haigh v. De la Cour, supra; 
 
 United States; Miner v. Tagart, 3 lonides ». Pender, L. E., 9 Q. B. 
 
 Binney, 305 ; 2 Phillips, no. 1182. 531 ; see Eivaz v. Gerussi, 6 Q. B. 
 
 3 Haigh V. De la Cour, 3 Camp. J). 222. 
 
CHAP. VT.] VALUED POLICY. 303 
 
 In fixing the valuation of goods Lord Ellenborough says, Valuing 
 " the assured may add to the first cost the premium and frofits."'' 
 commission, and, if he sees fit, the probahle profit ; " i or, as 
 he elsewhere puts it, " he may stipulate that, in case of loss, 
 the loss shall he estimated according to the value of like 
 goods at the port of delivery."^ The learned judge thus 
 distinctly admits that the assured may value his goods in 
 the policy so as greatly to exceed the invoice price, in order 
 to cever the expected profit. And, indeed, as Mr. Stevens 
 remarks, this is the real advantage that valued policies on 
 goods hold out to the merchant.^ 
 
 Mr. Benecke, agreeably to the principles already pointed Mode pro- 
 out, shows how, by means of a valued policy, the merchant Mr. Benecke. 
 may cover, not only the profit he expects to make on his 
 goods at the port of delivery, but also, in case of their arriving 
 there in bulk and sea-damaged, may protect himself against 
 the loss to which he would otherwise be exposed, from 
 having to pay full duty, freight, and landing charges. Thus, 
 supposing the sum required to be insured on the goods 
 themselves (i. e., so as to cover their prime cost, premiums of 
 insurance, and commission) to be 2000^. ; freight payable on 
 their arrival, 200/. ; expected profit, 400/.; duty and landing 
 charges at the port of delivery, 100/. (the full duty and 
 freight being payable on damaged goods arriving in bulk) : 
 then 2700/. would be the sum required to be insured alto- 
 gether. The plan recommended by Mr. Benecke is, to value 
 at 2700/. and add this clause:— "Of these 2700/., 2000/. are 
 on the goods, 200/. on freight, 400/. on expected profit, 100/. 
 on duty and landing charges."* 
 
 This clause, though unobjectionable, appears unnecessary 
 in English policies, where, according to the liberal practice 
 that prevails in the business of insurance, it seems very 
 
 1 Forbes v. Aspinall, 13 East, 323, ' Stevens on Average, 179. 
 
 327. " Benecke, Pr. of Indem., pp. 24, 
 
 2 Usher v. Noble, 12 East, 639, 29. 
 647. 
 
304 
 
 VALUED POLICY. 
 
 [part I. 
 
 unlikely that any attempt would be made to set aside a 
 Taluation wMcli was bond fide, and only intended to procure 
 for the assured a complete indemnity in case of loss. 
 
 In France. In France the rule, under the Code de Commerce ^ (as 
 
 formerly under the Ordonnance de la Marine^), is, that the 
 valuation may be set aside in case of fraud. 
 
 The French jurists have distinguished two classes of fraud: 
 fraud in fact {dolus re ipsd), and fraud in intent {dolus mains); 
 and they seem to think that any considerable and palpable 
 over- valuation of the subject insured, as where goods worth 
 only 8000 francs are insured for 10,000, though made without 
 any actual intent to deceive on the part of the assured, would 
 yet be such fraud in fact as to entitle the underwriter to set 
 aside the valuation ; except, indeed, where both parties have 
 agreed to be bound by it.' Valin thinks that, in the absence 
 of such agreement, an over-valuation to the extent of a fourth; 
 a third, or, at all events, a half, would be sufficient to open the 
 policy;* but Emerigon, and, after him, Boulay-Paty, con- 
 siders that it is better to leave the question to the decision of 
 the tribunal before which the particular case is tried, without 
 attempting to fix the exact amount of excess that shall open 
 the policy.' 
 
 Elsewhere. Mr. Beuecke, with his usual laborious comprehensiveness 
 
 of research, has examined into the law and practice of 
 Holland, Hamburg, Prussia, Sweden, Denmark, Italy, and 
 Spain, with regard to the effect of a valuation in the policy. 
 The general result appears to be, that the valuation is con- 
 clusive upon the parties to the policy, unless it is excessive 
 or fraudulent.^ 
 
 » Art. 357. 
 
 " LIt. c. t. 6, art. 8. 
 
 ' See 2 Valin, p. 52, Comment on 
 art. 8, liv. 3, t. 6 ; Pothier, des Ass., 
 no. 156, 157, ed. Estrangin, pp. 242 — 
 244 ; 1 Emerigon, c. ix. s. 5, pp. 277 — 
 282 ; 2 Delvinoourt, de Droit Comm. 
 345, 346. Boulay-Paty, Droit Mari- 
 time, vol. iii. 398—401, is of the 
 same opinion, contrary to the repre- 
 
 sentation of Mr. Ch. Kent, Com. 
 vol. iii. p. 273, note. 
 
 * Valin, loco citato supra. 
 
 « 3 Bonlay-Paty, 401. 
 
 ^ Beuecke, Pr. of Indem. 149—152. 
 Mr. Nolte, in his valuable edition, 
 gives the references to all the more 
 recent ordinances — ^the effect being 
 precisely as stated in the text; 1 
 Kolte's Beuecke, 849—855. 
 
CHAP. VI. J VALUED POLICY. 305 
 
 But without infringing on the integrity of this rule as to 
 the conclusiveness of a valuation expressed in the instrument, 
 there are two questions that may he raised, capable each of 
 affecting the amount recoverable on a valued policy. 
 
 The first of these questions is as to what it is that was 
 valued. For instance, if something has formed a constituent 
 in the estimate of value in which the assured had no insurable 
 interest — e. g., if freight, paid in advance, were included in 
 the valuation expressed in a policy on freight effected for the 
 shipowner, — it is clear that the underwriter, to the extent of 
 this element of the value, would not be liable ; and whether 
 it was so or not, ought to be known and also may be investi- 
 gated without infringing on the absolute nature of a valued 
 policy.^ 
 
 The second of these questions which may be raised under Wiether the 
 a valued policy is, whether in fact the whole interest valued ^iteresthas^ 
 has been at risk. ^een at risk. 
 
 " The valuation," says Lord EUenborough, " in case of 
 goods, looks to all the goods intended to be loaded ; and in 
 case of freight, it looks to the freight upon all the goods the 
 ship is intended to carry on the voyage insured : and if, by 
 the perils insured against in a valued policy on goods, part 
 only of the goods intended to be covered be lost, the 
 valuation must be opened, and the assured can only recover 
 in respect of that part; and so, if, by the perils insured 
 against, the freight of part only of the goods to be carried be 
 lost, the assured can only recover, in respect of that loss, 
 according to the proportion which that part bears to the 
 whole sum at which the entire freight was estimated in the 
 valuation."'' 
 
 Accordingly, in the case from which these remarks are Fortes ». 
 taken, insurance having been made on freight " at and from ^^™* 
 Hayti to Liverpool," valued at 6500/., and it appearing that 
 
 1 'Williams®. NortK China Ins. Co., 327. Seethejudgment of Blackburn, 
 
 1 C. P. Div. 757. J., in Tobin v. Harford, 33 L. J., 
 
 2 In Forbes v. Aspinall, 13 East, (C. P.) 37. 
 M. X 
 
306 
 
 VALUED POLICY. 
 
 [part I. 
 
 Eiokman v. 
 Carstairs. 
 
 Tobin V. 
 Harford. 
 
 the vessel was lost o£E tlie coast of Ilaytl, when she had 
 only taken in fifty-five bales of cotton, forming but a small 
 part of the cargo to be shipped on board, on which the 
 freight was valued, the Court would not allow the assured to 
 recover the whole amount of the valuation, but only such a 
 proportion of it as the goods actually shipped on board bore 
 to the full cargo to be loaded and taken into account in 
 estimating the freight.^ 
 
 In the case of a policy on homeward cargo, it appeared 
 that at the time of the loss, which was total, only a portion 
 of the homeward cargo was on board, but not of a value 
 equal to the valuation in the policy, although enough of the 
 outward cargo still remained on board to make up that 
 amount. The Court, holding that the outward cargo was not 
 covered by the policy, and proceeding on the principle that 
 the underwriter is only bound by the valuation when the 
 whole of the intended cargo is on board, were of opinion that 
 the cargo referred to in the valuation must, on the true 
 construction of the policy, be taken to be a fuU homeward 
 cargo, and that the assured was entitled to recover, not the 
 whole amount of the insurance, but such proportion only of 
 it as the value of the homeward cargo on board at the time 
 of the loss bore to a full homeward cargo.* 
 
 Under a time policy on ship valued at 2000/., and on cargo 
 valued at 8000/., containing all the clauses proper to the 
 barter trade on the coast of Africa, outward cargo to be con- 
 sidered homeward interest twenty-four hours after arrival 
 at first port or place of trade, the ship reached Kinsembo 
 with a cargo on board worth 6226/., of which part was there 
 discharged to the value of 3952/., and then without loading 
 other cargo, after being more than twenty-four hours at 
 Kinsembo, sailed for Congo with the residue, and was 
 lost on the way. The assured claimed 8000/. in respect of 
 the " cargo," interpreting that word in the policy as signi- 
 fying any goods on board at the time of the loss. The 
 
 ' Eorbes v, Aspinall, 13 East, 
 323. 
 
 * Rioimanff. Carstairs, 5 B. & Ad. 
 
 651. 
 
CHAP. VI.J VAtTJED POLICY. 307 
 
 Court, however, held that the valuation in the policy was of 
 a suhstantially full cargo, and that the plaintiff could only 
 recover, as for an average loss, an aliquot part of that sum, 
 corresponding to the proportion which the goods on board 
 bore to a full cargo.^ 
 
 Under a policy " upon chartered freight, valued at 7000/., Denoon v. 
 at and from Sydney to Calcutta and London," the remainder Colonial Ass. 
 of the voyage was abandoned at Calcutta on account of the 
 bankruptcy of the charterers, and the vessel took 360 
 coolies and part cargo of rice for the Mauritius. Thereupon 
 the voyage described in the policy was altered by indorse- 
 ment, and it was further indorsed as follows : — " The within 
 interest is now declared to be on freight valued at 2000/." 
 The subscription of lOOO/T by the defendants remained un- 
 altered. When near the Mauritius the vessel was wrecked ; 
 there was a total loss of the rice and of the freight of it; 
 the greater part of the coolies were saved, and their passage- 
 money, but some were lost, and with them their passage- 
 money. The question was what under this policy in these 
 circumstances the assured was entitled to recover. 
 
 The defendants contended that the word freight covered 
 the passage-money, and, consequently, that the proportion 
 would be, as the gross sum of the freight and passage-money 
 originally on board was to the amount underwritten so was 
 the gross sum of the freight and passage-money lost to the 
 sum to be recovered. It was held, however, that in the 
 absence of any usage in insurance law to designate passage- 
 money as freight, and in view of the context in the policy, 
 providing that " the insurance aforesaid shall commence upon 
 the freight and goods or merchandise from the loading of 
 the said goods," &c., the word freight in the policy did not 
 cover the passage-money. It was further held, that inasmuch 
 as there was not a f uU. cargo on board or any estimation in 
 the policy of what the freight of a full cargo would have 
 
 1 Tobin V. Harford, 32 L. J. (C. P.) 13 0. B., N. S. 791 ; 17 C. B., N. S. 
 134 ; (in error) 34 L. J. (C. P.) 37 ; 528. 
 
 x2 
 
308 VALUED POLICY. [pART I, 
 
 been, the policy must be dealt with as an open policy, and, 
 consequently, that the assured was entitled to recover in the 
 proportion of 1000/. to 2000/., or one-half of the whole 
 freight on board, not exceeding 1000/., that is, one-half of 
 1412/., being in fact 706/.1 
 In the United These principles have received abundant illustration in 
 States. ^^^ Courts of the United States. Thus, where seventy-four 
 
 mules were insured, valued at 11,000 dollars, and only 
 thirty-fivfe mules were actually shipped, the assured, in case 
 of loss, was only allowed to recover thirty-five 74th parts of 
 11,000 doUars.2 
 
 Practical _ As to the rule thus well established, there is yet in many 
 
 applying^ tHs cases a difiSculty about its praotidUl application, arising out 
 "^®' of the question, "what is a cargo, sufficient to entitle the 
 
 jury to say, that that has been shipped to which the valu- 
 ation in the policy refers ? " ' 
 In case of A difficulty was also at one time felt as to the principle 
 
 upon which the amount of loss should be adjusted, but the 
 following satisfactory solution of it, suggested in the argu- 
 ment in Eickman v. Oarstairs, has siace been accepted and 
 sanctioned with the approval of the Court of Common Pleas 
 and of Exchequer Chamber.* The passage is this : — " Even 
 supposing the policy to be opened, the valuation wUl not be 
 altogether inoperative ; for it will prevent any dispute as to 
 the value of the whole contemplated cargo. Thus, if a valued 
 policy on sugar be opened, on the ground of only four-fifths 
 of the intended cargo having been shipped and lost, the 
 underwriter will pay, not a value to be now put on the lost 
 sugar, but four-fifths of the sum underwritten." * 
 
 ' Denoon v. Home and Colonial and see the judgment, per Blackburn, 
 
 Ass. Co., L. E., 7 C. P. 341. J., in ToWn v. Harford, 34 L. J. (C. 
 
 * Brook t). Louisiana Insurance Co., P.) 37. 
 
 4 Martin's New Series, 640, 681 ; 2 * Tobiuw. Harford, 32 L.J. (C.P.) 
 
 Phillips, no. 1196, and other oases 134, 136 ; 13 C. B., N. S. 791 ; (in 
 
 there cited. error) 34 L. J. (C. P.) 37. 
 
 ' Per Parke, J., in 6 B. & Ad. 660 ; « 6 B. & Ad. 662. 
 
 average loss. 
 
CHAP. VI.] VALUED POLICY. 309 
 
 In cases of total loss under valued policies on sliip, the Ii detemin- 
 value m the policy is never employed as a standard of there be a 
 comparison -with the estimated expense rendered necessary by to^al loss, 
 the perils insured against, in order to ascertain whether the 
 case is one of constructive total loss. The sole question, e. g. 
 that determines whether a ship is so damaged as to entitle 
 the assured to recover as for a total loss, upon giving due 
 notice of abandonment, is not, whether the cost of repairs will 
 exceed the value in the policy, but whether the cost of repairs 
 will exceed the ship's value when repaired. "When this 
 test has been applied, and the nature of the loss thus deter- 
 mined, the quantum of compensation is then to be fixed. In 
 an open policy, the compensation must then be ascertained 
 by evidence. In a valued policy, the agreed total value is 
 conclusive; each party has conclusively admitted that this 
 fixed sum shall be that which the assured is entitled to 
 recover in case of a total loss." ^ 
 
 As a general rule, ihe valuation is conclusive between the Valuation 
 
 conclusive 
 parties to the same policy only. between the 
 
 If the assured has protected his interest in the subject of s^'e^poUcy!^ 
 insurance on the same risk by more than one valued policy, 
 fixing a different valuation in each on the interest insured, 
 the valuation in one policy sets no limit to the sum he may 
 recover on the other.^ But the sum recovered on the one 
 does go in reduction of the amount recoverable on the other.^ 
 
 One consequence of this in connection with the above Eight to 
 general rule is, that the whole sum recovered under all the more than ^^ 
 policies win be less or greater according as recovery is had in "q^J^^"^^'' 
 the first instance under policies of the greater or the lesser 
 valuation. Thus, if a ship be valued in one policy at 8000^., 
 
 • Opinion of the Judges in the Mann. &Grr. 593; Manning D.Irving, 
 
 Houseof Lords in Irving J). Manning, 1 C. B. Rep. 168. 
 
 6 C. B. 422, supporting the previous ^ Bousfieldw. Barnes, 4 Camp. 227. 
 
 decisions of Cambridge v. Anderton, ' Bruce v. Jones, 1 H. & C. 769 ; 
 
 2 B. & Or. 691 ; AUen v. Sugrue, 8 32 L. J. (Ex.) 132. 
 B. & Cr. 561 ; Young v. Turing, 2 
 
310. 
 
 VALUED POLICY. 
 
 [part 1. 
 
 aud 6000/. is recovered under it, and valued in another at 
 4000/., whicli is the last to he put in suit, nothing is 
 reooverahle under the second. As hetween assured and 
 underwriter under this latter policy, 4000/. is the value of 
 the ship ; hut treating the sums recovered under other 
 policies as salvage, it appears thereby that the assured 
 according to the agreed valuation has at least not sustained 
 a loss.^ It is a mere corollary to this that where the valua- 
 tion is the same in both policies, the assured is hound hy that 
 sum, and cannot recover beyond it.^ 
 
 Valued poli- 
 cies on dif- 
 ferent risks. 
 
 Insurer's 
 rights. 
 
 If the valued policies though upon the same interest were 
 on different risks, the rule above considered does not apply j 
 and consequently the same insurer has been held liable for 
 successive losses occurring on different risks to the full 
 amoimt recoverable on each policy, notwithstanding that 
 the second was a total loss occurring before a partial loss on 
 a prior risk had been repaired.* 
 
 The valuation in the policy, regarded as a conclusive con- 
 tract between the parties, may have the effect of subrogating 
 the insurers to more extensive rights than are intended to 
 be conveyed to them by the assured on effecting the policy. 
 A vessel that was insured to the amount of 6000/., and 
 valued in the policy at the same amount, was run down at 
 sea by another ship and totally lost. The insurers paid the 
 owners the full sum of 6000/., and then claimed to be en- 
 titled to the whole of the money recovered in the Admiralty 
 Court against the surviving vessel, viz., 6495/. The owners 
 of the lost ship, however, claimed a share of the sum re- 
 covered, on the ground that their vessel, though valued in 
 the policy at 6000/., was really worth &000/. But it was 
 held, that the owners were bound by the valuation in the 
 policy, and that the insurers having paid them in full upon 
 
 1 Bruce v. Jones, 1 H. & 0. 769, 
 overruling Bousfield v. Barnes, 4 
 Camp. 227. 
 
 ' Irving V. Ricliardson, 1 Mood. & 
 
 R. 163 ; aud see Morgan v. Price, i 
 Exch. Rep. 615. 
 
 . ^ Lidgett V. Seoretan, L. R., 6 
 C. P. 616. 
 
CHAP. VI.] VALUED POLICY. 311 
 
 the footing of tliat estimate, ■were sulDrogated to the rights of 
 the owners against the -wrongdoer.^ This decision has since 
 been douhted. Lord Blackburn says in respect of it, "I 
 own if I had a similar case to decide, sitting in the Court 
 of Error, I should pause before I said that it was rightly- 
 decided." ^ 
 
 The presumption is that the valuation in the policy is, Thevalua- 
 not the whole estimated value of the subject of insurance, assured's 
 but merely of the interest of the assured therein. Hence, ™*®^®^*- 
 where insurance was made on goods " valued at 19,000/.," 
 of which the assured owned four-ninths, it was contended 
 that the valuation was intended for the entire property, 
 and, accordingly, that the interest of the assured was to 
 be taken as four-nuiths of that sum; but the Court said, 
 "We must take it that the value insured is the value of 
 the assured's interest."* 
 
 From the difficulty of proving the insurable value of the Valued poli- 
 1 . . r> 1 i . . 1 . 1 cies on ship, 
 
 ship m case oi loss, policies on ship are more commonly andonsMp 
 
 valued. The value is usually determined in this country and freight. 
 by estimating the ship's worth to her owner at the .outset 
 of the risk, including stores, outfit, and money advanced 
 for seamen's wages — the whole covered with premiums and 
 commissions.'' The valuation calculated in this way deter- 
 mines the amount recoverable, how great soever may have 
 been the wear and tear of the ship and consumption of her 
 stores and provisions at the time of loss, and notwithstanding 
 the loss be near the close of a long voyage.^ 
 
 Besides, it is usually the practice in this country to value 
 the freight by a separate policy at its gross amount, and that 
 amount becomes recoverable, notwithstanding the expenses 
 
 1 North of England Iron St. Ship So, in respect of freight, AlUsou v. 
 Ins. Assoc. V. Armstrong, L. B., 5 Bristol Marine Ins. Co., 1 App. Caa. 
 Q. B. 244. 209. 
 
 2 Bnmand v. Eodocauaohi, 7 App. * Stevens on Average, 190. 
 Cas. 333, 342. ' Shave v. Pelton, 2 East, 109. 
 
 ' Feise v. Aguilar, 3 Taunt. 506. 
 
812 VALUED POLICY. [PART I. 
 
 that would have been necessary to the earning of it have 
 been prevented by the loss. By means of two such policies 
 it is clear that in case of loss the shipowner receives far more 
 than an indemnity. 
 
 For example, suppose a ship chartered for a four months' 
 voyage, to be worth to her owner, in the port of loading, 
 including rigging, &c., 2000^.; provisions, 80^. more; petty 
 expenses at port of loading, 18/. additional ; seamen's wages, 
 paid in advance to the extent of one-half, 751. ; making 
 altogether, 2173/. ; add a premium on this sum at 3 per 
 cent, and premium on premium, viz., 671. 4s., and the sum 
 which the assured would be entitled to receive on the policy 
 on ship in case of a total loss is 2240/. 4s. 
 
 So much for the policy on ship ; but now as to the freight. 
 Suppose the gross freight for the whole voyage, without 
 deducting the expenses of earning it, to be 650/. ; premium 
 at 3 per cent., &c., 20/. 2s., making together 670/. 2s., which 
 is the amoimt recoverable for freight, calculated according to 
 the principle observed in this country in respect of open 
 policies. Therefore the amount recoverable in respect of 
 ship and freight under the two policies is 2910/. 6s. 
 
 In order to show how much this exceeds an indemnity, 
 let us see what the shipowner would net in case the ship 
 arrived and full freight was earned. Taking the wear and 
 tear of the ship for the four months' voyage, at the moderate 
 sum of 100/., the ship would be worth to her owner on 
 arrival (2000/. -100/.) 1900/. 
 
 Then as to freight, taking the expenses at the port of 
 destination to be 25/., and the seamen's wages for the last 
 two months to be 75/., these two items payable out of the 
 gross freight of 650/. would reduce the net amount of freight 
 to 550/. The sum, therefore, that the shipowner would net 
 by the ship's safe arrival earning freight would be, for the 
 ship, 1900/. ; for the freight, 550/. ; making the total net value 
 of the ship and freight to the owner on safe arrival, 2450/. 
 But in case of total loss he would receive 2910/. 6s., i.e., 
 he would be a gainer by the totfil loss of his ship and freight 
 
CHAP. VI.] YALDED POLICY. 313 
 
 to the extent of 460^. 6s.,^ — " a great inducement indeed to 
 many," as Mr. Benecke exclaims, " to convert a partial into 
 a total loss! "2 
 
 In the United States the practice not unfrequently prevails In the United 
 of valuing freight for the purposes of insurance at two-thirds **'*^^' 
 of the gross amount, calculating this as ahout the sum which 
 the shipowner on the average receives as net freight.' But 
 freight, as well as other subjects, may be valued even above 
 its gross amount : and in one case in the United States the 
 Court are reported to have said, " The parties agree that the 
 freight shall be valued at a sum which eventually proves to 
 be three times the value of the carriage of the goods : but 
 we do not perceive that the estimate was made unfairly;" 
 and it was adjudged that the underwriters should pay a loss 
 according to the valuation.* 
 
 The following question has arisen, and been a good deal Where the 
 
 discussed in the Courts of the United States : — Suppose a made up of 
 
 poKcy to be on time, or on a voyage having intermediate gt'a^s and 
 
 stages, at each of which freight is earned and becomes due, ^^^^^ '? ^^^ 
 ° . ° ' one value. 
 
 independently of the circumstance of the vessel's arriving at 
 subsequent stages, — and that there is but one valuation in 
 the policy, — is this valuation to be applied to the aggregate 
 amount of all the freights, or to the amount of each 
 severally ? 
 
 > Mr. Phillips, after a learned examination of the authorities, 
 fitates the result to be "in favour of such valuation being 
 -applied to the freight successively pending on the separate 
 passages, and not to the aggregate freight for all the 
 
 ' A seaman's wages, in case of the point necessarily assumed in the 
 
 wreck or loss of ship, are now payable present state of the law for the pur- 
 
 for the full time of service prior pose of the above estimate, 
 thereto, unless barred by proof that ' Principles of Indem., o. ii., "As 
 
 he has not exerted himself to the to Insurances on Ships," from which 
 
 utmost to save ship, &o.: 17 & 18 the whole of the above calculations 
 
 Viot. 0. 104, ss. 183, 185: the differ- are taken, 
 enoe, therefore, would be less or more ' 2 Phillips, no. 1204. 
 
 than the estimate in the text, accord- ^ Coolidge v. Gloucester Marine 
 
 ing as. the loss happens before or Ins. Co., 15 Mass. Hep. 343, cited 2 
 
 after the middle point .of the voyage, Phillips, no. 1267. 
 
314 VALUES POLICY. [PAKT I. 
 
 passages.! jjg concludes that the doctrine applicable to 
 the subject is, that " a valuation of freight in a time policy, 
 or one for successive passages, is presumed to be of that 
 successively pending ; " but this presumption, he thinks, may 
 be rebutted, by showing that the valuation is applicable to 
 the aggregate amount of the successive freights.^ 
 
 If there is any provision in the charter-party suspending 
 the earning of freight till the completion of the homeward 
 passage (as was frequently the ease with ships chartered for 
 the voyage out and home in the East India Company's trade), 
 and the freight for the whole voyage be valued at a gross 
 sum, it seems that the whole sum valued may be recovered 
 whether the loss take place on the passage out or home.* 
 
 Valued poli- Valued policies on goods are stated by Mr. Stevens to have 
 originated in insurances on colonial produce, of which, as no 
 invoice could be had (no purchase having been made), a 
 valuation was necessarily adopted such as would indemnify 
 the planter in case of loss. The practice being found very 
 convenient, on account of its enabling the merchant to include 
 in the valuation a fair mercantile profit on his goods, which 
 be could not do by an open policy, was extended to classes 
 of goods as to which the original reasons for its adoption did 
 not exist. 
 Specific A cargo of different kinds of produce, as sugars, coffees, 
 
 va nations. tobacco, &c., is more usually and, for adjustment, more con- 
 veniently valued as to each kind of produce separately ; as 
 " on sugars valued at 600/., on coffee valued at," &c., or " on 
 100 hogsheads of sugar valued at," &o. Sometimes the 
 valuation is at "BO much per hogshead, tierce, barrel, bale, ewt., 
 lb., &c. This is followed in most instances with appropriate 
 clauses, "to pay average on each species, as if separate 
 iuterests, separately insured," or " to pay average on each 10, 
 15, 20 hogsheads, &c., succeeding numbers, as if separately 
 
 1 2 PhiUips, Ins. no. 1208. & Ad. 478, post, p. 324. 
 
 "^ See an analogous application of 3 Williams v. London Ass. Co., 1 
 
 principle in Crowley v. Cohen, 3 B. M. & Sel. 318. 
 
CHAP. VI.] VALUED POLICY. 315 
 
 insured." ^ We shall see hereafter that the purpose of these 
 specific insurances is in case of a partial loss to enable the 
 assured to recover notwithstanding the memorandum clauses, 
 and that the single word " effects,"^ or "goods,"' describing 
 the subjects of insurance, does not prevent the policy being 
 construed distributively, when such word is descriptive of 
 various kinds of goods or articles.* It is quite otherwise if 
 such word be descriptive of a homogeneous cargo only, such 
 as linseed ' or rice,® notwithstanding it is packed in separate 
 bags or packages; and the effect of such a policy is not 
 altered by indorsement afterwards of a declaration of the 
 ship, and of the packages and their separate value.' 
 
 When goods are valued at so much per lb., this must be 
 understood of the lb. of the place where the policy is made.* 
 
 When the assured expects goods from abroad, but does not Goods "to be 
 know the kind or the amount, he generally procures the declared and 
 policy to be effected " on goods to be thereafter declared and valued," 
 valued." 
 
 Although such declaration before loss is not a condition and are not 
 precedent to the right of the assured to recover, yet if the ^ 
 value be not declared till after the loss, the policy will be 
 regarded as an open policy.^ 
 
 Under a policy in this form, a clerk of the assured wrote 
 out and signed a declaration of interest and value on a sepa- 
 rate piece of paper, which he wafered to the policy, but it 
 did not appear that this had been shown to the underwriter 
 before the loss was known, and Lord Ellenborough held there 
 was no declaration, and consequently that it was an open 
 policy.^" 
 
 1 Stevens on Average, 186, 224, « Entwistle v. EUis, 2 H. & N. 
 225; Beneoke,Pr.of Indem. 158, 169. 549 ; 27 L. J. (Ex.) 103. 
 
 2 DnfEw. Mackenzie, 3 0. B., N. S. ' Ibid. 
 
 16 ; 26 L. J. (C. P ) 313. ^ Stevens on Average, 186; 2 Phil- 
 
 3 Wilkinson v. Hyde, 3 0. B., N. S. lips, no. 1199. 
 
 30 ; 27 L. J. (C. P.) 116. ^ Craufurd v. Hunter, 8 T. E. 13, 
 
 * Cator V. Great Western Ins. Oo. 15 n. 
 
 of New Tork, L. E., 8 C. P. 552. " Harman v. Kingston, 3 Camp. 
 
 s Ralli V. Janson, 6 E. & B. 482 ; 150 ; per Mellor, J., " It may be im- 
 
 25 L. J. (Q. B.) 300. portant that both parties should know 
 
3ia 
 
 VALUED POLICY. 
 
 [part I. 
 
 Applied to 
 the proceeds 
 or returns of 
 the outward 
 cargo. 
 
 Premium. 
 
 In the same case Lord Ellenborough doubted at first 
 ■whether a declaration of interest before loss were not a 
 condition precedent to the policy attaching ; he however 
 ultimately held that it was not, — that the policy attached 
 notwithstanding, and that the claimant's right to recover 
 depended on his proof of interest. This doctrine has since 
 been followed as law by the Court of Queen's Bench.^ As 
 we have seen elsewhere, a mistake made in declaring may be 
 corrected without the assent of the underwriters if made 
 without fraud and without prejudice to their interest.' 
 
 Questions have arisen in the United States whether a 
 valuation in a policy on goods for the voyage out and home 
 applies to the proceeds or returns purchased by the sale of 
 the outward cargo. This is a question of intention, and 
 consequently to be determined upon a construction of the 
 instrument in view of the circumstances of the case. " In 
 the absence of any collateral considerations," says Mr. 
 Phillips, " I conclude the preferable doctrine to be, that 
 a valuation of the outward cargo in a policy for the 
 round voyage is to be presumed to be a valuation of 
 its whole proceeds for the return voyage or for subsequent 
 
 Generally speaking, a valuation at a round sum is taken 
 to include the premium, and this whether the valuation be 
 on the subject in gross, or by the weight, measure, or piece, 
 except where the contrary appears from the language of the 
 policy, or from the scale of the valuation.* 
 
 as to value ; but the risk is quite a 
 different question:" Cockbum, C. J., 
 " There must be an agreement as to 
 valuation ; ". Grledstanes v. Royal 
 Exch. Ass. Co., 34 L. J. (Q. B.) 30, 
 84. 
 
 • Gledstanes v. Roy. Exch. Ass. 
 Co., 34 L. J. fQ. B.) 30. 
 
 ^ Kobinsou v. Touray, 3 Camp. 
 158. 
 
 ^ See McKJm v. Phoenix Ins. Co., 
 2 Washington Ciro. Court Rep. 89 ; 
 
 Haven v. Gray, 12 Massachusetts 
 Rep. 71 ; Whitney v. American Ins. 
 Co., 3 Cowen, 210, and 712; 2 
 Phillips, nos. 1197, 1198. 
 
 * This is thereceived doctrine in the 
 United States; 2 Phillips, no. 1201. 
 The learned author cites Mayo v. 
 Maine Fire and Marine Ins. Co., 12 
 Mass. R. 259, where the Court con- 
 cluded, from the scale of valuation 
 merely, that the premium was not in- 
 tended by the assured to be included. 
 
CHAP. Vl.] VALUED POLICY, 317. 
 
 Where goods are expected from abroad, and no value is put Stipulated 
 upon them in the policy, but it is stipulated that the coin of ohangl d^es 
 the foreign port of loading at which they are invoiced shall °^„"^''oy(, 
 be reduced into our own money, at so many shillings the 
 dollar, livre, rupee, &c. ; this, it seems, ought not to be taken 
 as a valued, but as an open policy ; for it contains no fixed 
 valuation of the goods, but only an ascertainment of the 
 value in our money of the foreign currency in which their 
 invoice value is expressed. Accordingly, it has been held in 
 America, that the invoice value, thus calculated, must have 
 the premium added to it, in order to ascertain the insurable 
 value, just as in an open policy.^ 
 
 If a cargo of various kinds of produce is not valued in One gross 
 parts according to the kind, but in the lump at one gross varieties o^f 
 sum, this, although unusual and objectionable, will not, as it "^""S"- 
 seems, in case of partial loss, be set aside, tmless it be 
 impossible to ascertain, by the invoice or otherwise, in what 
 way the valuation was intended to be apportioned on different 
 parts of the cargo.* The proportional prime cost of the 
 different kinds of goods having been ascertained by the 
 invoice, the valuation should be applied to each kind in the 
 same proportion ; and the percentage of damage sustained 
 by any one kind of goods be applied to this proportion of the 
 value, in order to ascertain the amount due thereon from the 
 imderwriter.* 
 
 An open policy is one in which there is no valuation of Of open 
 the interest at risk, but the interest remains to be estimated ^° °^^' 
 
 ' Ogden V. Columbian Ins. Co., 10 whether a valuation in the lump on 
 
 Johns. R. 273 ; and see Mayo v. ship, cargo, and freight in one policy, 
 
 Maine Fire & Mar. Ins. Co., 12 Mass. without specifying how much on 
 
 R. 259, cited 2 PhiUips, Ins. no. 1201. each, was not void for uncertainty ; 
 
 Mr. Benecke thinks otherwise, Pr. of Stocker v. Harris, 3 Mass. R. 409 ; 2 
 
 Indem. 159; but the rule in the text Phillips, no. 1203. 
 
 seems preferable. * See a similar rule followed in. 
 
 ' Stevens on Average, 185, 186. applying specific rates of freight to 
 
 In one case in the United States the other cargo than the articles specified ; 
 
 Judges were equally divided in opinion Warren v. Peabody, 8 C. B. 800. 
 
318 PRINCIPLES OF VALUATION [PART I. 
 
 according to a certain rule upon the evidence of facts in each 
 case. 
 
 Estimation of As we have already seen, the value of the iusurable 
 interest under open policies is taken to be the amount which 
 measures its worth to the assured at the commencement of 
 the risk, plus "the expense of the insurance. The iudemnity 
 contemplated hy this mode of estimation, puts the assured 
 as nearly as possible in the same position as he was ia 
 at the outset of the adventure, before effecting the in- 
 surance ; taking no account, however, of the profit he missed 
 making or of the wear and tear which his property actually 
 sustained. 
 
 If the expense therefore of effecting the insurance, and the 
 premium paid upon it, and the premium upon the premiums 
 down to the total extinction of the risk, did not enter into 
 the calculation, the indemnity would not be real and 
 complete. 
 
 For example, suppose goods, the iuvoice price of which, 
 together with shipping charges, amounts to 1000^., to be 
 insured at 5 per cent. ; it is plain that the merchant, by 
 insuring 1050^., is not fully covered ; for the premium for 
 insuring 1050^. at 5 per cent. wiU be b2l. 10s., and the whole 
 simi at risk would thus be 1052Z. 10s., while all that could be 
 recovered, in case of a total loss upon the above supposition, 
 would be 1050^. ; it is plain, therefore, that the assured, who 
 wishes to be completely protected from loss, must go further, 
 and insure the premium of the premiums, down to the 
 extinction of the risk. 
 
 Practical The simplest practical rule for ascertaining the sum neces- 
 
 sary for this purpose is as follows: — the premium being 
 contained in the sum which the underwriter pays, the assured 
 for his indemnification can only receive that sum, deducting 
 the premium ; hence, every 100/. meant to be insured, must 
 be so insured minus the premium. As this residue is to 100/. 
 so is the amount of interest intended to be insured to the sum 
 required to be insured in order fully to protect it. Thus, 
 suppose the amount of interest to be insured (no matter 
 
CHAP. Aa.] UNDER OPEN POLICY. 319 
 
 wHether in sMp, freiglit, or goods, for the rule now under 
 consideration extends to all alike) to be 1000/., and the 
 premium to be 51 5s. per cent. Then 100/. minus 51. 5s. is 
 equal to 94/. 15.9. ; and as 94/. 15s. is to 100/. so will 1000/. 
 be to the sum required to be insured, in order completely to 
 cover the interest at risk, or about 1055/.^ 
 
 Besides the premium and premiums of premium, it is 
 requisite to cover the expenses of the policy ; i. e., the stamp 
 duty, and the broker's commission, if effected by a broker. 
 We have therefore, as before, on 100/., premium 5/. 5s., stamp 
 duty, say 6d. (in case of a policy for twelve months), and the 
 broker's commission ^ per cent. ; i. e., 51. 15s. Qd. is to be 
 deducted from the 100/., and the proportion is, as 94/. 4s. Qd. 
 : 100/. : : 1000/. to the sum required to be insured, that is, 
 1062/. 
 
 In some cases it is stipulated in the policy that the charges 
 of recovery in case of loss shall also be covered by the poHey. 
 These charges, when the policy is effected by a mercantile 
 agent in this country for a foreign correspondent, through the 
 medium of a broker, are J per cent, brokerage, and 2 per 
 cent, agent's commission, making a sum of 2/. 10s. to be 
 deducted from every 100/. proposed to be insured, when it 
 is desired to find a sum that will cover the charges as weU as 
 the subject of insurance. It makes no difference if there be 
 a stipulation for a return of premium on a certain contin- 
 gency, as for convoy or safe arrival, the whole premium is, 
 nevertheless, to be added in estimating the amount of the 
 interest. 
 
 Formerly underwriters in this country generally reserved 
 an abatement of one or two per cent, on payment of all losses; 
 but as the only practical effect of this was to make the 
 assured, who wished completely to cover his interests by the 
 policy, add the same percentage to the nominal rate of 
 premium, this provision became useless, and does not occur ia 
 the common printed forms of policy in this country. 
 
 1 Stevens on Average, 193 ; Benec&e, Pr. of Indem. 119, 120. 
 
320 
 
 PRINCIPLES OF VALUATION 
 
 [part I. 
 
 Adjustment 
 of total or 
 partial loss. 
 
 In ease of total loss, tHe assured under an open policy is 
 entitled to recover up to the full extent of the value thus 
 calculated, supposing the sum insured to amount to so much. 
 In cases of partial loss the percentage of damage done to the 
 subject insured being first ascertained, the assured is entitled 
 to recover the same percentage of the insurable value calcu- 
 lated as above. 
 
 Of course the underwriter is only liable in respect of the 
 particular sum insured by himself, to pay the whole or a 
 proportion, as the case may be. Thus, if an underwriter has 
 insured 200^. on an open policy on goods, the estimated 
 insurable value of which is 1000/., and the ascertained 
 amount of sea damage 10/. per cent, on what they would 
 have fetched at the port of delivery had they arrived there 
 sound, the underwriter pays as his share of the indemnifi- 
 cation 10/. per cent, on the sum he has insured, i.e., 20/. 
 In the same way, in case of total loss, he would have paid 
 200/. If the aggregate of the sums insured equals the whole 
 amount of insurable value, the assured receives 10/. per 
 cent, on 1000/., i.e., 100/. ; if it is less than this, he is his 
 own insurer for the part uncovered by the policy ; if more, it 
 is an over-insurance. 
 
 Proof of inte- 
 rest at risk. 
 
 The mode of proving the amount of insurable interest 
 under an open policy in case of loss is ; — for the goods, by 
 the production of the invoice, bill of lading, policy, &c. ; — for 
 the ship, by the production of reports and estimates of 
 surveyors, bill of sale, &c, ; — for the freight, by the produc- 
 tion of the freight manifest, &o. 
 
 Insurable 
 value of ship. 
 
 With regard to the ship, her insurable value in an open 
 policy is what she is worth to her owner at the port where 
 the voyage commences, including stores, provisions, outfit, 
 and money advanced for seamen's wages, the whole covered 
 with the premium of insurance and premium on premium, 
 together with the stamp duty and commission for effecting 
 
CHAP. VI.] UNDER OPEN POLICY. 321 
 
 the policy, adding, if required and stipulated for, the charges 
 of recovery in case of loss.^ 
 
 The insurahle value of freight, in open policies, is the sum Insurable 
 payable to the shipowner for freight, together with the freight, 
 premiums of insurance and commissions, without deducting 
 the expenses of earning the freight; — i.e., the gross and not 
 the net freight, plus premiums and commissions, is the 
 insurahle value.^ 
 
 With regard to goods, the long-established rule in this Insurable 
 country is, that their value for the purposes of insurance, goods, 
 when not fixed by the policy, is the amount of the prime 
 cost, together with the charges cf shipping them on board, 
 stamp duty, and broker's commission for effecting the policy, 
 the whole covered with the premium, and insurance on the 
 premium.' 
 
 In stating that the prime cost of the goods is to be taken 
 as the basis of their insurable value, we give the rule as it 
 is universally acted upon in this country. The prime cost 
 is generally evidenced by the invoice price, but is not con- 
 clusively fixed by it.* In the United States it has been laid 
 down on several occasions, that the market price of the 
 goods at the commencement of the risk, is the true basis of 
 calculation, and that the prime cost or invoice price furnishes 
 no satisfactory rule of indemnity in any case where it 
 exceeds, or is less than the market value. " Suppose," says 
 "Washington, J., "the property to be destroyed within an 
 hour after the risk has commenced, what is it the owner 
 
 ' Stevens on Average, 190. thirds of its gross amount ; see 2 
 
 2 See per Lord EUenborough, Phillips, no. 1238, note. 
 
 Forbes v. Aspinall, 13 East, 323, ' Usher v. Noble, 12 East, 646 ; 
 
 326; Palmer v. Blackburn, 1 Bing. Tuite v. Royal Exch. Co., I Park, 
 
 61 ; Stevens on Average, 192. The Ins. 224, 225, 8th ed. ; Stevens on 
 
 same rule appears most generally to Average, 178 et seq. ; Beneoke, Pr. 
 
 obtain in the United States ; though of Indem. 12-14; Phillips, vol. ii. 
 
 in some of the States the insurable o. 14, ». 2. 
 
 value of freight is taken to be two- ' 2 Phillips, no. 1229. 
 
 M. Y 
 
322 
 
 PRINCIPLES OF VALUATION 
 
 [part I. 
 
 Invoice price 
 in foreign 
 money. 
 
 loses? Precisely as mucli as it is worth, or would have 
 commanded in the market at the time and place of ship- 
 ment. If the property cost him less than it was worth 
 when shipped he loses (in case of total loss) as well the first 
 cost as the increased value for which he is entitled to claim 
 indemnity from the insurer."^ In theory this is unques- 
 tionably true, but as a practical rule, the prime cost, as 
 evidenced by the invoice price, is by far the most convenient 
 standard.^ 
 
 When the invoice price of goods shipped from a foreign 
 port where there is no current rate of exchange is expressed 
 in the currency of the foreign country to which such port 
 belongs, the true mode of ascertaining the insurable value 
 is to estimate what would be the worth of the foreign money 
 in which the invoice price is expressed, supposing that it 
 had been shipped in specie, instead of the goods, to the port 
 of destination : i. e., the invoice value of the goods is to be 
 ascertained by calculating what the foreign coin in which it 
 is expressed would be worth to the consignee of the goods, 
 after paying the premium of its insurance, the freight and 
 other expense of its transportation.' On the other hand, if 
 there is a current rate of exchange at the foreign port of 
 loading, the most equitable measure of the insurable value 
 of the goods appears to be the invoice price taken at the 
 rate of the exchange there at the commencement of the risk.* 
 
 Lord Kenyon, however, acted upon a different rule in the 
 case of a policy effected in September, 1791, on sugar 
 shipped from a French port. At the time of effecting the 
 policy, the exchange in England, on the French crown of 
 
 1 See 2 Pliillips, no. 1229, citing 
 Carson v. Marine Ina. Co., 2 Wash. 
 C. C. Eep. 468. In one case, the in- 
 voice pric^Tvas taken, though higher 
 than the actual cost to the assured ; 
 see ibid. ; Coffin v. Newburyport 
 Marine Ins. Co., 9 Mass. E. 436. 
 
 ^ In Trance the rule is to take the 
 invoice price as the basis, where it 
 
 can be made out by the production 
 of the proper documents ; where not, 
 then the price current at the time 
 and place of loading ; Code de Comm. 
 art. 339. 
 
 3 See Magens on Ins., vol. i. p. 41, 
 s. 40 ; Benecke, Pr. of Indem. 119. 
 
 * 2PhiUipB, Ins.no. 1231. 
 
CHAP. VI.] UNDER OPEN POLICY. 323 
 
 3 livres, -was 2id. ; at the time of settling the loss,' in 
 January 1792, it had fallen to 7f c?. : Lord Kenyon held, 
 that as, in case the exchange had risen, the . assured would 
 have had the benefit of the rise, so, in case of a fall, they 
 must submit to the loss ; and he decided, that the insurable 
 value of the sugars must be estimated, and the loss paid 
 upon the rate of exchange at the time of the adjustment, 
 i.e., at 7fd. the French crown.^ 
 
 If the goods are purchased by barter in a foreign port, Goods pur- 
 with which there is no mode of estimating the rate of tarter. ^ 
 exchange, the French Code provides that the insurable 
 interest shall be measured by the cost and charges of the 
 goods given in barter;' the word "charges" there being 
 intended to mean the expense of bringing them to the place 
 of shipment, and shipping them.' 
 
 When the goods are such as entitle to a drawback on Drawback, 
 exportation, a question has been raised whether, in esti- 
 mating their insurable value under an open policy, the 
 amount of this drawback is to be deducted. The Courts of 
 the TJnited States have held that it is not, on the ground 
 that, though it may enter into the estimate of the value 
 of the goods for exportation, it is no part of their actual 
 market price at the port of departure;* and these decisions 
 seem conformable to sound principle.' 
 
 Where the provisions of the policy show that it is intended Continuing 
 to cover any interest that the assured may have at risk within ^° "®^' 
 the limits of the time or the voyage for which the policy 
 is effected, and the amount of insurable interest fluctuates 
 at different periods of the risk, the loss must be apportioned 
 
 1 TheUusson v. Bewick, 1 Esp. 77. ' Benecke, Pr. of Indem. 119. 
 
 The rate of exchange at the com- * See these cases collected, 2 Phil- 
 
 mencement of the risk appears a lips, no. 1235. 
 
 preferable standard. In France the ^ Weskett says that when goods 
 
 rule is to value at the rate of ex- entitle to a bounty on exportation, 
 
 change current at the time of sub- the bounty is to be deducted: but 
 
 Bcribing the policy ; Code de Com- the other seems the better rale ; see 
 
 meroe, art. 338. Weskett'sDigest, art. "Fish," no. 1. 
 
 ^ Code de Commerce, art. 340. 
 
 v2 
 
324 PRINCIPLES OF VALUATION [pART I. 
 
 between the parties in the proportion which the sum insured 
 bears to the amount of insurable interest on board at the 
 time of loss. Such policies are sometimes called continuing 
 policies. 
 Crovley v. For example, the plaintiffs, barge-masters, having several 
 
 boats constantly carrying goods for hire by canal between 
 London and Birmingham, for the purpose of protecting their 
 interest as carriers, caused themselves to be insured for 
 twelve months, " by canal navigation boats containing goods, 
 at work between London, "Wolverhampton, Birmingham, &c., 
 backwards and forwards, and in any rotation, upon goods, and 
 upon the body, tackle, &o., on thirty boats, as per margin of 
 the policy," &c. The policy proceeded, — " The said ship, 
 &c., goods, and merchandizes, &c., for so much as concerns 
 the assured, are and shall be (here the printed words 'valued 
 at' were struck out) 12,000^., on goods, as interest may 
 appear hereafter, to pay average on each package or descripr 
 tion, as if separately insured, &o., — the claim on this policy 
 warranted not to exceed 100^. per cent." At the bottom of 
 the policy was written, — "3000^. only to be covered by the 
 policy in any one boat on any one trip. " 
 
 The facts were, that within the time limited in the policy, 
 one of the thirty boats mentioned in the margin of the policy 
 had sunk in the canal, with 1700^. worth of goods on board 
 of her, which was the loss in respect of which the action was 
 brought ; and that up to the time of the loss, every one of 
 the thirty boats named in the margin had carried goods to 
 the amount of 12,000/. and upwards, so that about 360,000/. 
 worth of goods had been carried to and fro by the boats 
 named in the policy between the commencement of the risk 
 and the loss in question. 
 
 The Court held that the real nature of the transaction 
 being in effect equivalent to a fresh insurance taking place at 
 the time when each boat started, and governing all that were 
 then afloat, the mode of calculating the indemnity would be 
 that the whole value of the goods actually afloat, in the 
 boats named, at the time of the loss must be taken, and the 
 
CHAV. VI.J UNDER OPEN POLICY. 825 
 
 plaintiffs should recover such, a proportion of the loss as 
 12,000^. might bear to the whole value on hoard, supposing 
 that value to exceed 12,000/. ; if not, then the plaintiffs would 
 he entitled to the whole amount lost.' 
 
 The true measure, therefore, of the insurable interest in 
 such a policy is the amount at risk at the time of the 
 
 In another case the policy being differently framed, and Joyce v. 
 indeed not properly a marine policy at all, there was a 
 different result. The policy, an ordinary Lloyd's poUey, 
 was "lost or not lost at and from all or any of the wharves, 
 banks, quays and places of arrival and departure in the 
 river Thames, and any merchant or steam vessel of any 
 description therein, comprising the whole extent of the said 
 river, from Wandsworth downwards to the Yictoria Docks, 
 including all or any intermediate docks and wharves, and 
 I'ice versd, until on board any merchant or steam vessel, 
 barge or boat, or otherwise landed at any wharf, &c. The 
 risk to commence on the 25th September, 1869, and to 
 terminate on the 24th September, 1870, including both days, 
 upon any kind of goods and merchandize in craft of every 
 description, &c. The ship, and goods, and merchandize, &c., 
 by agreement, &c., are and shall be valued at on all goods 
 and produce as interest may appear." The sum stated in the 
 margin was 2000/. At the bottom of the policy was written 
 as follows : — " To cover and include all losses, damages, and 
 accidents amounting to 20/., and upwards, in each craft, to 
 goods carried by Messrs. Joyce, as lightermen, or delivered 
 to them to be waterborne, either in their own or other craft, 
 and from'(sw) which losses, damages, and accidents, Messrs. 
 Joyce may be liable or responsible to the owners thereof, or 
 others intrusted. It is agreed that the amount of each 
 underwriter's liability shall not exceed the amount of his 
 
 ' Crowley v. Cohen, 3 B. & Ad. similar case in the United States ; 
 478. The same principle was laid see Columbian Ins. Co. v. Catlett, 12 
 down by Mr. Justice Story, In a Wheaton, 383 ; 2 Phillips, no. 1228. 
 
"^" PRINCIPLES OF VALUATION. [PART I. 
 
 subscription." The defendants underwrote this policy for 
 100^. 
 
 During the continuance of the risk in this policy, a loss, 
 damage, and accident, within the meaning of it, had occurred 
 to goods loaded on board one of the assured's craft, called 
 the Lord Cardigan, to the amount of 1100/., for which the 
 assured were liable to the owners thereof, and which they 
 had paid. The total value of the goods at the time on board 
 the Lord Cardigan was 2906/., and the total value of the 
 goods on board that and the other barges at the same time 
 was 20,000/. and upwards. 
 
 The Court said this was not an ordinary marine policy, 
 but a policy of a mixed nature, by which the defendant 
 indemnifies the plaintiffs against any liability to the extent 
 of the sum underwritten, which they might incur, as carriers, 
 to the owners of the goods entrusted to them. It was, 
 therefore, held, on the language of the policy, that the 
 defendant was liable for the full amount underwritten by 
 him.^ 
 Subsequent Sometimes a stipulation in the policy enables the assured 
 
 at a future period to modify the risk, and therewith the 
 liability, of the underwriter. For instance, a policy on a 
 cargo of grain from Galatz to Emden and a port in the 
 United Kingdom, stipulated a return of 20s. premium in 
 case the risk were terminated at Emden. The cargo was 
 afterwards sold afloat, freight paid, and insurance to Emden ; 
 the policy in its original condition was indorsed over, and 
 the vendor claimed from the underwriter the return of 20s. 
 But as the cargo was lost on its way from Emden to the 
 United Kingdom, the vendee put the policy in suit, and 
 was defeated by the evidence of the bought and sold notes 
 as to the right against the underwriter.^ 
 
 A very anomalous practice was brought before the Court 
 
 > Joyce V. Kennard, L. R., 7 Q. B. 36 ; S. P. North of England OU Cake 
 78. Co. 1/. Archangel Marit. Ins. Co., 
 
 2 lonides v. Harford, 29 L. J. (Ex.) L. R., 10 Q. B. 249. 
 
CHAP. VI.] DOUBLE AND OVER-INSURAKCE. 327 
 
 of Chancery in the case of Ealli v. The Universal Marine Indorsed for 
 Insurance Company. A cargo of grain from the Black Sea SponsaUrf 
 had been insured with the defendants under two policies, and *^^ ^^°^^- 
 was sold afloat when the market was low, and consequently 
 at a depreciated price, including insurance. The vendor 
 indorsed over one of the policies for its full value to the 
 vendee, and the other for about half the amount insured in 
 it, making together the amount of the depreciated selling 
 price of the grain. The cargo was lost, and the vendee 
 claimed to receive the full amount under both policies ; and 
 on appeal from Wood, V.C, the Lords Justices held him 
 entitled to the whole. The defendants had paid the full 
 amount into Court in the first instance; if they had not 
 adopted this course, and the judgment of the learned Vice- 
 ChanoeUor against the vendee's claim been a£Srmed, it is 
 difficult to understand upon what principle in law the 
 vendor could have based his claim to the balance.^ 
 
 If a cargo be sold, freight and insurance included, pay- "Shipping 
 ment to be in cash in exchange for shipping documents, &c., °*™™®° • 
 it is a question for a jury, and not the Court, whether a 
 policy be of sufficient amount to be such a shipping document 
 as the vendee ought to accept.^ 
 
 Double insurance takes place when the assured makes two Of double 
 or more insurances on the same subject, the same risk and insurance. 
 
 1 Balli V. The UniTsrsal Marine already received ; but the Court 
 Ins. Co., 31 L. J. (Ch.) 207, 313. A defeated his injustice ; Carr o. Monte- 
 quibble of a singular nature has been fiore ; Id. v. Eoyal Ex. Ass. Co., 34 
 started as to the amount recoverable. L. J. (Q. B.) 21. The new system 
 In an action on a policy, the defen- of pleading, according to vrhioh the 
 dants traversed the loss, and also paid money paid into Court is pleaded to 
 money into Court for premium under be paid in on a specific account, wiU 
 the money counts. The plaintiff took prevent such a contention in future. 
 the money out of Court and then ' Tamvaco v. Lucas, 31 L. J. 
 recovered damages for the loss, which (Q. B.) 296; 30 L. J. (Q. B.) 23i ; 
 he claimed to be paid him to the full 3 B. & S. 89 ; 1 B. & S. 186. Seo 
 amount irrespective of the money per V. C. 31 L. J. (Ch.) 207. 
 
328 
 
 DOUBLE AND OVEK-INSUKANCE. 
 
 [part I. 
 
 What is 
 
 double 
 
 insurance. 
 
 What an 
 over-insur- 
 ance is. 
 
 English rule 
 for adjust- 
 ment in case 
 of over- 
 insurance. 
 
 the same interest. This is a totally different thing from a 
 re-insurance, by which an underwriter endeavours to secure 
 himself from having to pay a loss. It never has been pro- 
 hibited by the law maritime unless made fraudulently; 
 indeed it is in common use, and, as a moment's consideration 
 will show, in many cases a very necessary expedient. A 
 merchant expecting consignments from abroad, is ignorant 
 of their exact value; in the first instance he effects an 
 insurance on them to an amount which, upon subsequent 
 information or reflection, he thinks inadequate to their full 
 value ; or he may have insured as much as he is able in one 
 place, and being still desirous of further security, may then 
 proceed to effect additional insurances elsewhere; or, from 
 circumstances affecting the underwriter in particular, or an 
 occurrence of heavy losses falling upon his class about the 
 same time, he is anxious about the worth of his security ; in 
 such cases as these, it is desirable and quite lawful to resort 
 to double insurance. 
 
 If it turns out that the whole amount insured in the 
 several policies is greater than the whole vahie of the 
 interest at risk, this is called an over-insurance. In such 
 case it is quite clear, and nowhere disputed, that the assured 
 can only recover upon all the policies put together, supposing 
 them to be open policies, up to the amount actually at risk ; 
 that is, in this country, the prime cost or invoice price of the 
 goods, coupled with the expense of putting them on board 
 and the premiums of insurance. 
 
 Thus far the maritime laws of all states are agreed. There 
 exists, however, a difference of practice as to the mode in 
 which this principle is to be applied to settling the claims of 
 the assured against the undervmters on the several poHoies, 
 and of these underwriters inter se. 
 
 The rule that now prevails in this country was established 
 by Lord Mansfield, and is as follows : — In case of over- 
 insurance the several policies are considered as making but 
 one insurance, and are good to the extent of the value of the 
 effects at risk; the assured can recover no more than such 
 
CHAP. VI.J DOUBLE AND OVER-INSUBANCE. 339 
 
 value, but he may sue the underwriters on any one or more 
 of the policies, and recover to the full extent of his loss, 
 supposing it to be fully covered by the policy or policies on 
 which he elects to sue, leaving the underwriters so sued 
 and paying to recover, by virtue of their being subrogated 
 to his rights, a rateable sum, by way of contribution, from 
 the underwriters on the other policies.^ 
 
 Hence where a merchant, the value of whose whole Davis ». 
 interest was 2200/., first effected a policy on this interest at ^^'^*'^- 
 Liverpool for 1700/., and then (without fraud) another 
 policy on the same interest ^ at London for 2200/., he was 
 allowed to recover the whole amount on the London poUoy, 
 and the London underwriters were allowed to recover a 
 rateable amount, by way of contribution, from those at 
 Liverpool.^ 
 
 The rule thus established by Lord Mansfield is now the 
 received law of the land. It is not, however, the rule which 
 formerly prevailed ia this country, or which now prevails in 
 France, or which in the United States is generally preferred 
 by the parties.* 
 
 That rule is, in the words of the Code de Commerce, " if In Pramoe. 
 there be several contracts [not necessarily 'policies']' of 
 insurance effected without fraud on the same subject, and 
 the first contract insures the total value of the subject at 
 risk, it alone shall be enforced. The insurers who have 
 signed the subsequent contracts are freed from liability ; and 
 receive only J per cent, on the sum insured. If the whole 
 value of the subject insured is not covered by the first 
 contract, those insurers who have signed the subsequent 
 
 1 Newby v. Eeid, 1 W. Bl. 416 ; Davis, qua supra. 
 
 Eogersv. Davis, and Davis w.Grildart, " Davis v. GrUdart, ubi supra. 
 
 A. r. 1776 ; see 1 Marshall, Ins. 140, ' For the rule iu Holland, Spain, 
 
 141 ; 2 Park, Ins. 600, 601. Portugal, and Sardinia, see 1 Nolte's 
 
 ■' But for a different risk, a point Beneoke, 234-236 ; it is substantially 
 
 that seems, singularly enough, to have the same as in R-anoe. 
 
 attracted no attention at the time, * Each subscription to the policy 
 
 and therefore may for our present forms a new contract if it bears a 
 
 purpose be neglected, see Rogers v. separate date. 
 
330 
 
 DOUBLE a:nd over-insurance. 
 
 [part I. 
 
 Formerly in 
 this country. 
 
 In the United 
 States. 
 
 Of same date 
 ■whether poli- 
 cies different. 
 
 contracts are responsible for the surplus, in the order of the 
 date of their respective signatures." ^ 
 
 So in this country it was once pleaded, and " proved by all 
 the exchange "to be the custom of merchants, " that where 
 a policy is subscribed by a number of underwriters, and the 
 goods are not equal in value to the sums subscribed (taken 
 together), the underwriters, in case of loss, shall be liable 
 in the order in which they subscribe, and the remaining 
 underwriters shall be exonerated from all liability, and return 
 the premium, deducting J per cent."^ 
 
 The common law rule in the United States is that laid 
 down by Lord Mansfield ; but the law, as it anciently pre- 
 vailed in England, and is now established in France, is 
 deemed by the American merchants so preferable, in point 
 of simplicity and convenience, that clauses are very generally 
 introduced into their policies, to prevent the rule of contri- 
 bution, and tp make the insurers responsible according to 
 the order of their subscriptions in point of date.' 
 
 In France, and when this rule has been adopted, in the 
 United States also, if the second policy is dated on the same 
 day as the first, inquiry may be made as to which of the two 
 was actually first effected in point of time, and that which 
 was so wUl alone bear the loss.* In France, however, this 
 does not extend to different subscriptions of the same date 
 to the same policy ; for in that case they make but one 
 contract and the whole body of the underwriters, in case 
 the sum insured in the policy exceeds the value at risk, 
 
 ^ Code de Commerce, art. 359. 
 
 ■' The African Co. v. Bull, 1 Show. 
 132 ; 1 Marshall, Ins. 142 ; see also 
 Malyne's Lex Meroatoria, 112. 
 
 ' The clause to eflect this purpose 
 is, in the second or any subsequent 
 policy, to this effect : " It is further 
 agreed that if the assured shall hare 
 made any other assurance upon the 
 premises prior in date to this policy, 
 the assurers shall be answerable only 
 for so much as the amount of such 
 prior insurance may be deficient." 
 
 In the first policy it runs thus : "In 
 case of any subsequent insurance, 
 the insurers shall, nevertheless, be 
 answerable for the full extent of the 
 sum subscribed by him, without 
 right to claim contribution from 
 subsequent assurers. ' ' 3 Kent, Com. 
 280, 281. 
 
 * 4 Boulay.Paty, Droit Mar. 122, 
 123 ; Brown v. Hartford Ins. Co., 3 
 Day's Eep. 68; Potter „. Marine 
 Ins. Co., 2 Mason's Eep. 476, cited 
 in 3 Kent, Com. 281. 
 
CHAP. VI.] DOUBLE AND OVER-INSUBANCE. 331 
 
 contribute rateably to tlie loss, and return a rateable share 
 of premium for the excess.^ 
 
 If the subsequent insurance be made with the fraudulent 
 intent on the part of the assured to recover more than an 
 indemnity, and this fraudulent intent be proved, the law of 
 France, and that of this country, it is apprehended, wUl be 
 found to be the same, is, that he should pay the whole of the 
 premium on the second policy, and recover nothing under 
 it." Certainly, if the premium were already paid on the 
 sec6nd policy, it could not in an English Court be recovered 
 back. 
 
 If the underwriter and the assured are both aware, at the 
 time of effecting the second poKey, that the whole amount of 
 interest has already been fully covered by the first, this, by 
 the French law, is a mere wager and void, and the principle 
 cum utriusque turpitudo versatur cessat repetitio applies, — the 
 assured recovers nothing on such policy ; and if the premium 
 is paid, the assured cannot demand a return ; if not paid, the 
 underwriter cannot claim it.^ 
 
 It has been laid down by Mr. Marshall, as following from Rateable 
 
 Lord Mansfield's rule, that where by several policies made premimn in 
 
 without fraud the total sum insured exceeds the whole value ?^^® °* °''^^' 
 
 insurance. 
 
 at risk, and the risk attaches the same day on all, then " all 
 the underwriters on the several policies would be equally 
 bound to make a return of premium for the sum insured 
 above the value of the effects in proportion to their respective 
 subscriptions."* But if two sets of policies of different date 
 are effected on the same property, and the entire risk attaches 
 on the earlier whilst the latter are not yet executed, although 
 the amount insured in the prior set is not equal to the value 
 at risk, but the aggregate sum insured in the two exceeds it, 
 
 1 i Boulay-Paty, Droit Mar. 116, pp. 270-272, and the oonunentaiy of 
 
 117. Boulay-Paty, ibid. pp. 272, 273. For 
 
 ^ If he sues on the second policy the application of the law to the case 
 
 hemayinlFrancebeproceededagainst of double insurance, see 4 Boulay- 
 
 criminally ; see the general Fieadh Paty, Droit Mar. 124, 125. 
 
 law on the subject of fraudulent over- ' 4 Boulay-Paty,, Droit Mar. 114. 
 
 insurance, 1 Emerigon, c. ix. s. 2, * Marshall on Ins. 649. 
 
332 
 
 rOUBLE AND OVEK-INSX) RANGE. 
 
 [part I. 
 
 Irving V. 
 Klchardson. 
 
 Morgan v.. 
 Price. 
 
 the underwriters on the later in point of date shall alone he 
 called on for a rateahle return of premium.* 
 
 Where a douhle insurance has thus been effected in two 
 or more valued policies, it has been a question whether the 
 valuation in one poHoy is of any effect in limiting the 
 amount to be recovered under the other. We have seen 
 that it operates no such effect. The valuation in a policy is 
 binding on the parties to it, but the sum recovered under 
 any other policy, valued or open on the same interest and 
 risk, goes in reduction of the amount recoverable under the 
 policy in suit. So that if he have already recovered a sum 
 equal to the amount of the valuation in the policy being sued 
 on, he takes nothing by his action.^ 
 
 Therefore, where 1700^. was insured on a ship in one 
 policy, in which she was valued at 3000^., and afterwards a 
 further sum of 2000/. on the same ship in a second poHoy, in 
 which she was also valued at 3000/. : Lord Tenterden would 
 not permit the assured to recover more than 3000/. on both 
 policies together, although it was proved that the value of the 
 ship exceeded 3700/., the aggregate of the sums insured in 
 both.s 
 
 So where a bankrupt had effected one policy on a share of 
 a ship, the share valued at 2500/., and the official assignee 
 another policy on the same share with the same underwriters, 
 valued also at the same sum, a plea alleging this, averring 
 that the risk, interest, and loss under the two policies were 
 the same, and that the 2500/. had been paid on the second 
 policy, was held a good plea in discharge to an action 
 brought by the assignees of the bankrupt on the first policy.* 
 
 ' Ksk V. Mastennan, 8 M. & W. 
 165. See this subject further con- 
 sidered post, Part III., Chap. IX. 
 
 = Bruce v. Jones, 1 H. & C. 769 ; 
 32 L. J. (Ex.) 132, overruling Bous- 
 field V. Barnes, 4 Camp. 228. 
 
 ' Irving V. Biohardson, 1 Mood. & 
 Bob. 158 ; see also 5. C. in 2 B. & 
 Ad. 193. 
 
 * Morgan v. Price, i Exoh. 61 ; 
 S. C. 19 L. J. (Ex.) 201. 
 
CHAPTER VII. 
 
 THE SHIP AND SHIPMASTER IN THE RELATION OF CARRIER 
 UNDER THE POLICY. 
 
 Of the ship ... 
 Naming ship in policy - 
 
 reason for 
 Policy on goods by ship or 
 
 declaration under 
 appropriation of losses 
 Changing ship -wheu named 
 invalidates policy 
 unless justified by necessity 342 
 
 333 
 333 
 333 
 
 337 
 33r 
 340 
 342 
 342 
 
 Of the shipmaster - - - 343 
 Naming in poUoy - - 343 
 
 what change vitiates policy 344 
 His power to borrow - - 345 
 to hypothecate - 346 
 to sell part - - f350 
 the whole - 351 
 to tranship - - 358 
 under abandon- 
 ment - - 363 
 
 The ship, never absent from a marine policy of insurance, Of the ship. 
 
 has already engaged attention in a previous chapter as one 
 
 of the suhjects of such a policy. We are now to consider it 
 
 as the depot, vehicle, or instrument, in relation to other 
 
 subjects of insurance while in port, or while in the course 
 
 of transit by water from port to port. In this view, its Naming the 
 
 . . , , , , , ship in the 
 
 importance m modem commerce cannot be exaggerated, policy. 
 But we are not speaking of ships in general. A policy at 
 one period of its existence or another is ever specific and 
 definite as to the ship or the ships involved in the contract. 
 
 By far the more important reason for this definite speci- Reason for 
 fication of the vessel lies in this, that it is thereby the means of 
 specifically identifying the subject of the particular insurance. 
 As merchants in buying and selling distinguish the goods 
 about which they are bargaining from all other similar goods, 
 say, by the warehouse that contains them, the assured and the 
 underwriter take the same easy method of pointing out the 
 subject of the risk about which they are contracting. The 
 master's name is also added as a further means of particularly 
 designating the cargo, by thus specifically distiuguishing the 
 
 this. 
 
334 NAMING THE SHIP IN POLICY. [pART I. 
 
 ship in question from all other sHps of tlie same name and 
 build. Accuracy, therefore, as to both is so material to the 
 contract, that after all is executed in due form, it may turn 
 out to be no contract whatever, merely because error herein 
 having misled the mind of assured and underwriter each to a 
 different subject, has thereby prevented agreement between 
 them. 
 
 But. as it is only for the purpose of identification that such 
 accuracy is important, misdescription by name, if it be not 
 the occasion of error as to the subject designated, does not 
 invalidate the policy. This is a general principle of law ; nil 
 facit error nominis cum de corpore constat.' Accordingly, in 
 our common policies, after the names of the ship and master, 
 come the words, "or by whatsoever other name or names 
 the same ship, or the master thereof, is or shall be named or 
 called." 
 
 The following cases, although some of them are alio intuitu, 
 . are applicable to show the degree of accuracy practically 
 required on this subject. 
 
 An insurance on ship was effected as on a ship called 
 " The Leopard; " it appeared that the name of the ship was 
 in fact The Leonard, and that she had never been called The 
 Leopard; it being proved, however, that the ship lost was 
 the same that the underwriters intended to insure, the Court 
 held that the variance did not affect the validity of the policy.^ 
 An American ship called The President was described in the 
 policy as " the good ship called ' The American ship Presi- 
 dent;'" but as it clearly appeared that the error was a 
 blunder of the broker's clerk, and that the ship lost was reaUy 
 that which the underwriters meant to insure, the error was 
 held immaterial.^ And the decision of the Court was the 
 same in another case, where a ship really called by the 
 
 ' See 1 Emerigon, o. vi. s. 2, ^ Hall v. Molineaux, before Lee, 
 
 p. 160; "Error nonjinis alioujus C. J., I7th Deo. 1744, cited in 6 
 
 navis non attenditur, quando ex aliis East, 385. 
 
 ciroumstantiis constat de navis iden- ^ Le Mesurier v. Vaughan, G East, 
 
 titate." 382. 
 
CHAP. VII.] NAMING THE SHIP IN POLICY. 335 
 
 Spanish name of Las Tres Sermanas, was described in the 
 policy by an English translation of the name, as " The Three 
 Sisters."^ 
 
 When an insurer initials a slip, say for 5000/., on hides, 
 by ship or ships, he engages in effect to insure the goods by 
 any ship on which they are loaded ; and if he afterwards at 
 the request of the broker initial a slip for 2445/. on hides by 
 " The Socrates," making no inquiry as to the particular ship 
 proposed, this second slip being expressly made in order to 
 be substituted for the slip " by ship or ships " already 
 mentioned, the jury are justified in finding that, regardless 
 of what might be the name of the ship, he meant to insure 
 the goods at a premium already fixed in the first slip, by the 
 vessel on which these goods were really shipped.^ 
 
 It happened that at another interview between other clerks 
 of the broker and underwriter respectively, a policy for 121/. 
 on part of these same goods by the Socrates was negotiated ; 
 and reference was made to Veritas, at the time lying on the 
 desk, for the name and description of the ship, and when it 
 was found that Veritas contained the " Socrates, Albertson," 
 a new Norwegian ship, and the " Socrate, Jean Card," an 
 old French ship, the underwriter's clerk asked whether it was 
 the Norwegian ship that was proposed, and he was told by 
 the other he thought it was. The event showed that the 
 goods had been loaded on the French ship the " Socrate, 
 Jean Card," and that there was a total loss ; it was held that 
 the underwriter was not liable on the policy for this loss, for 
 he had been misled, and that upon an inquiry materially 
 affecting the amount of the premium, into insuring goods by 
 the Norwegian ship Socrates? 
 
 Again, events of the time at sea of a character to make 
 the underwriter cautious about undertaking risks, or about 
 imdertaking them except at an enhanced premium, may have 
 come to hand ; he may have heard of storms, of losses, and 
 
 1 Olapham v. Cologan, 3 Camp. Ins. Co., L. E., 6 Q. B. 674 ; L. E., 
 382. 7 Q. B. 517. 
 
 " lonides v. Pacific Pire and Mar. ' Ibid. 
 
336 NAMING THE SHIP IN POLICY. [PART I. 
 
 of facts affecting particular ships; and consequently it is 
 natural that he should be ahle to identify the proposed ship 
 in order to apply this information.^ 
 
 Moreover, there are degrees of seaworthiness. Enierigon,^ 
 accordingly, has employed himself in pointing out the varie- 
 ties of huild and size specifically designated hy technical 
 words, as (in our language) hy ship, hark, brig, schooner, sloop, 
 and the like ; and he has truly said that if the underwriter 
 is fraudulently misled by the designation adopted for the 
 vessel to suppose that he is insuring goods on board a ship 
 when the vessel intended is in size and rig a sloop, the policy 
 would be void. But as the generic designation ship is 
 adopted, probably invariably, in English policies for vessels 
 of every build, and therefore as synonymous with vessel, the 
 question can hardly arise except as involving a charge of 
 concealment or misrepresentation on the part of the assured, 
 which, if proved, would invalidate the policy, or, as accom- 
 panied with circumstances of such a deviation from custom as 
 ought to put the imderwriter upon inquiry. There are means 
 now of information in existence on this and cognate topics, such 
 as, with all the formal particularity of Frenchmen and French 
 administration, could hardly have been anticipated even in 
 Emerigon's time. The public register of English shipping 
 established by statute, and the classification of shipping 
 registered at Lloyd's, afford the amplest means of information 
 of the most pertinent kind.' 
 
 As the risk on any ship is very greatly aggravated by her 
 being employed as a privateer or letter of marque, Emerigon 
 considers, upon the principle above laid down, that a ship 
 intended to be so employed ought to be described accordingly 
 in the policy by which she is insured : * but it is quite certain 
 that if it were verbally represented to the underwriter that 
 such was her purpose and destination, that would be sufficient 
 
 ' See Bates v. Hewitt, L. E., 2 ' The continental Veritas supplies 
 
 Q. B. 595. similar information. 
 
 ' 1 Emerigon, c. vi. s. 3, pp. 162, * 1 Emerigon, o. vi. u. 4, p. 165. 
 163, 164. 
 
CHAP. VII.] SUBSEQUENT DECLARATION OF SHIPS. 337 
 
 in this country, thougli she were not so described in the 
 poKcy. 
 
 Although naming the ship in the policy he the rule, yet Policy on 
 cases frequently occur in the extended operations of commerce, ^p or ^ 
 in which it is utterly impossible, or would be highly injurious, ^'"P^-" 
 to compel the insertion in the policy of the name of the ship. 
 A merchant who has ordered goods from abroad is desirous 
 of effecting an immediate insurance on them, while he is 
 ignorant of the ship by which they may be sent. In time of 
 war, when merchant vessels take such opportunities of sailing 
 as the varying fortunes of the belligerents chance to afford, 
 this uncertainty is of course considerably increased. The law 
 requires nothing which is impossible, and the commercial law, 
 founding upon the customs and usages of the merchant, 
 easily conforms to the exigent peculiarities of oft recurring 
 circumstances. By the laws and practice of all maritime 
 states, it is allowable in such circumstances as are here 
 supposed to effect a policy on goods "on board ship or ships," 
 upon condition of declaring as soon as the assured becomes 
 aware of it, and, if possible, before the loss, the name of 
 the ship or ships on board of which they have actually been 
 loaded.^ 
 
 With regard to the subsequent declaration by the assured Declaration of 
 of the name of the ship or ships when known to him, the 
 practice generally is for the broker, on ascertaining the fact, 
 to indorse the declaration of the name or names as a 
 memorandum on the policy. It is not, however, necessary 
 that this declaration should be in writing, and even if written 
 on the policy, an error as to the name of the ship wiU not be 
 fatal to the contract: 
 
 1 In Kngland the legality of this " As8uraneeinquOTis,"vol. i. p. 173; 
 
 practice was declared, as far back as see also Ordonn. Ur. 3, t. vi. art. 4 ; 
 
 1794, to be too well established to be Code de Com. art. 337 ; 3 Boiday- 
 
 disputed ; Kewley ». Eyan, 2 H. Bl. Paty, Droit Mar. 410-413 ; so in the 
 
 348. In Prance it has been ably United States, see 3 Kent Com. 257, 
 
 explained by Emerigon, o. vi. s. 5, 258 ; 1 Phillips, no. 438. 
 
 M. Z 
 
338 
 
 POLICY ON " SHIP OK SHIPS." 
 
 [part I. 
 
 A mistake in 
 such denlara- 
 tion may be 
 corrected. 
 
 Port of load- 
 ing unknown. 
 
 Declaration 
 before loss not 
 a condition 
 precedent. 
 
 A polioy having been effected on goods, by sbip or sbips, 
 the broker, afterwards, upon wrong information, made a 
 declaration on the policy, which he got signed by the 
 underwriter, that the goods were shipped on board The 
 Tweende Venner and The Neptwms, but subsequently dis- 
 covering that they were not on board these ships, but on 
 board The America, he inscribed a fresh memorandum on 
 the policy to that effect. The underwriter would not sign 
 it, and afterwards refused to pay a ioss, on the ground that 
 the polioy had never attached on any goods shipped by 7%e 
 America. But Lord EUenborough held, that the declaration 
 formed no part of the contract, nor required the signature 
 or assent of the insurer; that the mistake, being a mere 
 blunder, might be corrected without a fresh stamp, and that 
 the polioy attached upon the goods shipped on board The 
 America, in the same manner as if the first declaration had 
 never been made.^ 
 
 If the merchant is ignorant at which of several porta 
 named the goods may be loaded on board for him, and there 
 is besides a very extensive license to touch, stay, and trade, 
 an insurance on goods "on board ship or ships" will 
 attach on goods loaded at any port within the limits of the 
 voyage insured ; ^ though of course it would not cover a con- 
 signment sent from a different part of the world from that 
 mentioned in the poKcy, or from any place, in short,, not 
 comprised within the limits of the risk, upon a fair construc- 
 tion of the terms of the instrument.^ 
 
 As a general rule, the name of the ship ought to be 
 declared before notice of the loss. Cases, however, may 
 occur in which this would not be possible, as where the 
 assured does not ascertain the name of the ship till he hears 
 of her loss ; this, therefore, never is a condition precedent to 
 the assured's right to recover on the policy.* Accordingly, 
 
 1 Eobinson v. Touray, 3 Camp. 
 158 ; 1 M. & Sel. 217. 
 
 2 Himter».Leatliley,10B.&C.868. 
 " Valin, tit. vi. art. 4, vol. ii. p. 46 ; 
 
 3 Boulay-Paty, Droit Mar. 410, and 
 
 his Comment, on Emerigon, vol. i. 
 p. 175. 
 
 * Gledstanes v. Eoy. Exch. Ass. 
 Co., 34 L. J. (Q. B.) 30 ; Harman v. 
 Kingston, 3 Camp. 150. 
 
CHAP. VII.] SUBSEQUENT DECLARATION OF SHIPS. 339 
 
 it is now a recognized usage, of whicli formal proof is no 
 longer required in eacli case, tliat such a declaration may be 
 altered eyen after the loss is known, if it be altered at a 
 time wlien it can be, and is, altered innocently and without • 
 fraud. ^ 
 
 The London agent of the Hong Kong Insurance Company Gledstanea v. 
 had for some time kept that company re-iosured with the Asa. Co. 
 Eoyal Exchange Assurance Company for all sums in excess 
 of 5000/. upon any one ship under a Hong Kong policy. 
 The manner was to effect a policy of re-insurance for 7000/. 
 or 10,000/. on goods by ship or ships, to be afterwards 
 declared as particulars came to hand by the Calcutta mail. 
 On the 16th of March, 1860, The Bed Gauntlet was posted 
 at Lloyd's as having been burned and scuttled, with partial 
 salvage of her cargo. On the 17th, the residue of the sum 
 under the existing policy to the extent of 5000/. was appro- 
 priated to three specific ships in different proportions ; and, 
 on the 19th, a new policy was effected for 10,000/. on goods 
 by ship or ships, lost or not lost. On the 21st, the Calcutta 
 letters announced to the agent that particulars for insurance 
 
 1 Gledstanea v. Roy. Kxch. Ass. declare them in the order in which 
 
 Co. , supra ; lonides v. Pacific Fire they are shipped. He is not entitled 
 
 andMar. Ins.Co., L. Il.,6Q. B. 674; to declare some of the risks, and 
 
 7 Q. B. 517 ; and per Brett, J., remain his own insurer as to the 
 
 Stephens v. Australasian Ins. Co., others. In case, by oversight or 
 
 L. E., 8 C. P. 18, 23. A more com- otherwise, the goods are declared on 
 
 prehensive usage was admitted in the policy in an order different from 
 
 this latter case, and as it was not that in which they were shipped, the 
 
 unreasonable, it bound the parties to assured is bound to rectify the decla- 
 
 the ease. rations, and make them correspond 
 
 The usage stated there was in these with the order of shipment. The 
 
 words :^-" According' to the usage of underwriter would require to see the 
 
 the insurance business, when a poUcy biUs of lading, and could insist on 
 
 is effected on goods by ship or ships the declarations being made to follow 
 
 to bo thereafter declared, the policy the sequence of the bills of lading, 
 
 attaches to the goods as soon as and Declarations are often thus rectified, 
 
 in the order in which they are and sometimes eyen after loss." 
 
 shipped; and directly the assured The usage, as here stated, was 
 
 knows of the shipment of the goods, recognized ia the case of the Imperial 
 
 he is bound to dedare them to the Mar. Ins. Co. v. Pire Ins. Corp. 
 
 underwriter on the policy, and to Limited, 4 C. P. Div. 166. 
 
 z2 
 
340 
 
 POLICY ON " SHIP OR SHIPS." 
 
 [part I. 
 
 To which of 
 several poli- 
 cies loss is to 
 be appro- 
 priated. 
 
 In Bnglaud. 
 
 Henchman v, 
 Offley. 
 
 on The Red Gauntlet, under tlie open policy, would te sent 
 by next mail, and he immediately desired the defendants to 
 apply the existing policy lo The Bed Gauntlet. This was. 
 refused hy the company, hut the Court held, to the contrary, 
 that the plaintiff was entitled to have the policy so applied.^ 
 It is always expected, and it may be made an express 
 condition that the assured shall declare his interest at the 
 earliest possible opportunity.^ 
 
 There is occasionally a very nice question as to the appro- 
 priation of the loss to a particular policy when there are two 
 or more policies of this description open. In this country it 
 has been established by the following decisions, that the 
 assured has a right to declare on any of the policies a loss on 
 board any ship he pleases that comes within the terms of such 
 policy. 
 
 A merchant in India caused two insurances to be effected 
 by his agent in London, one for 6000/. on goods " on board 
 any ship or ships which should sail from Bengal to London, 
 between the 1st November, a.d. 1779, and the 1st of July, 
 1780 ; " the other on goods " on board any ship or ships 
 which should sail [on the same voyage] between 1st February, 
 and 31st December, 1780." He loaded goods to the amount 
 of 4889/. on board The General Barker, and to the amount 
 of 4500/. on board The Ganges, and entered a declaration 
 before Sir Elijah Impey, then Chief Justice in Bengal, that 
 he had shipped by The General Barker, 4889/. of the risk 
 intended to be covered by the 6000/. policy.' Both ships 
 sailed within the time mentioned in the first policy. The 
 Ganges arrived safe, but The General Barker was lost. The 
 plaintiff claimed a total loss under the 6000/. policy, which, 
 under these circumstances, he contended he had a right to 
 apply to The General Barker. Lord Mansfield at the trial, 
 and afterwards in Banc, held that he had a right so to apply 
 
 1 Grledstanes v. Roy. Exch. Ass. 
 Co., 84 L. J. (Q. B.) 30. 
 
 2 See Weskett, 520 ; 1 Phillips, 
 no. 438. 
 
 " Lord Mansfield overruled an ob- 
 jection taken at the trial to the 
 admissibility of this declaration in 
 evidence, and allowed it to be read. 
 
CHAP. VII.J SUBSEQUENT DECLARATION OF SHIPS. 341 
 
 it, and he recovered accordingly 4889/., the value of the goods 
 shipped on hoard The General Barker} 
 
 Freeland and Eighy, a mercantile house at St. Vincent, Kewleyr. 
 directed the plaintiffs, their Liverpool correspondents, to get 
 1260/. insured on cotton hy The Elizabeth from Gb-anada to 
 London ; and 1300/. on other cotton, by some other ship that 
 would sail by the first convoy. This they did, and the 1300/. 
 on goods by ship or ships was insured, 700/. in Liverpool and 
 600/. in London. The 700/. policy contained a warranty to 
 sail on or before the 1st August, 1793, and no exception of 
 the goods on board The Elizabeth. The Elizabeth arrived 
 safe in Liverpool : The Heart of Oak, by which the second 
 cargo turned out to have been shipped, was totally lost on the 
 voyage ; both ships having sailed before the 1st of August, 
 the time warranted for sailing in the 700/. policy.^ The 
 plaintiff's claim for a total loss on this policy was resisted, 
 mainly' on the ground that a ship, answering the description 
 and having on board property of Freeland and Bigby, to the 
 amount insured, had arrived, and had satisfied this policy. 
 The Court, however, held, that the assured had a right to 
 apply such an insurance to whatever ship he thought proper 
 within the terms of it, and was, therefore, under the circum- 
 stances, entitled to recover the whole sum therein insured.* 
 
 In France, if the assured has effected an insurance to a In France, 
 certain amount in gross " on goods on board ship or ships," 
 and afterwards declares the names of the ships on board 
 which his goods are shipped, and the insurer does not specify 
 the precise sums which he means to underwrite on each ship, 
 the assured may distribute the gross sum in what proportions 
 he pleases among the different ships in case of loss of any of 
 them, notwithstanding the value of the cargoes by those 
 ships which have arrived exceed the whole amount of the 
 
 ' Henchman «. Offley, 2 H. Bl. legality of insurances on ship or ships, 
 
 345, note. as to which, however, the Court en- 
 
 2 2 H. Bl. 346. Mr. Marshall tertained no doubt, 
 omits this circumstance, Ins. 168. * Kewley v. Ryan, 2 H. Bl. 343 ; 
 
 ' The other ground was as to the 1 Marshall, Ins. 168. 
 
342 CHANGING THE SHIP. [PART I. 
 
 insiirance. On the contrary, ii the underwriter had specified 
 the amount insured by him on each, he would have been 
 liable for that in each case respectively, and no more.^ 
 
 To change It is an implied condition of the policy that the ship 
 
 named therein should not, after the commencement of the 
 risk, be changed without necessity or the consent of the 
 imderwriters ; for any unnecessary or unsanctioned change 
 of the ship produces an alteration of the risk underwritten, 
 and, therefore, exempts them from liability.^ 
 
 invalidates This holds good though the substituted ship be as good or 
 
 ^ ^' better than that originally named in the poHcy.' On which- 
 ever side the advantage be, whether in favour of the original 
 ship, or of that which is substituted, and although both ships 
 perish on the voyage, the unde^rwriter "is, nevertheless, dis- 
 charged from all liability, for the policy never attached upon 
 the goods on board the substituted ship.* 
 
 Thus, if the underwriter has agreed to insure three 
 several parcels of goods, each of the value of 1000/., one on 
 board The St. Joseph, another on board The Triton, and a 
 third on board The Syren, making together 3000/., but the 
 merchant afterwards loads these parcels all on board The 
 St. Joseph, the imderwriter is liable only on the policy on 
 goods by The St. Joseph, to the extent of 1000/. and no 
 more; and as to the remaining 2000/. he is discharged, 
 although all the three ships have equally perished in the 
 course of the voyage.^ 
 
 nnlessitbe If, however, the underwriters consent to the change of 
 
 OT neoess^!" ship, or, if in course of the voyage the ship be so disabled as 
 
 • 1 Emerigon, c. vi. s. S, p. 174; and reasoning; see also Pothier 
 
 andBoulay-Paty'sCommentaryjibid. Traits d' Assurance, nos. 68, 69, 70, 
 
 178; see also Code de Commerce, 71. 
 
 art. 361 ; and i Boulay-Paty, Droit ' 1 Emerigon, v. xii. s. 16, p. 420. 
 
 Mar. 130-136. * Pothier, no. 68, p. Ill, par Es- 
 
 ' Upon this subjeot, generally, con- trangin; 1 Emerigon, 421. 
 
 suit Emerigon (c. xii. s. 16, vol. i. ' Pothier, Traits d' Assurance, no. 
 
 pp. 419-426), who discusses it with 68 ; Code de Commerce, art. 361 ; 4 
 
 his usual masterly display of research Boulay-Paty, Droit Mar. 132. 
 
CHAP. VII.J THE SHIPMASTER. 343 
 
 to be incapable, by any means at the master's disposal, of 
 being repaired at all, or in time to take on the cargo, and 
 the master, as agent for all concerned, procure another ship, 
 in which to forward the cargo to its port of destination ; in 
 such case, the change of ship does not discharge the under- 
 writers on goods, freight, or profits, from the liability for 
 loss on the subjects insured, though the loss occur subse- 
 quently to the change of ship. 
 
 We shall proceed now to consider the duties of the 
 master, and to discuss those oases of necessity which give 
 him the right, if they do not impose upon him the duty, of 
 forwarding the goods in another ship. 
 
 It is not intended, in this place, to enter at any length Of the master, 
 into those general duties and obligations of the master, in 
 regard to the conduct of the ship, which more properly form 
 part of a professed treatise on shipping ;i nothing more is 
 proposed than to notice such points only, in respect of the 
 master, as have a bearing more or less direct on the subject 
 of sea insurance; and to this end we will consider — 1. The 
 naming of the master in the policy, and " subsequently 
 changing him; 2. His power, in a port of distress, of 
 hypothecating the cargo, or seUing part of it, in order to 
 repair the ship ; 3. His power, in certain cases, to sell the 
 ship or the whole cargo ; 4. His power, in case the first ship 
 is disabled, of sending on the cargo in another ; and 5. The 
 relation in which he stands to the assured and to the under- 
 writer in case of abandonment. 
 
 After the blank left in our common printed forms of Naming the 
 policy for the name of the master come the following words : ™y*y^ ™ * ® 
 — "or whosoever else shall go for master in the said ship, 
 or by whatsoever other name or names the said ship, or the 
 master thereof, is or shall be named or called." 
 
 1 See Maolaohlan on Shipping, oo. iv. and v. ; De Cuadra v. Swann, 16 
 C. B., N. S. 772. 
 
344 CHANGING THE MASTER. [PART I. 
 
 From this clause it is abimdantly evident, that it is no 
 implied condition in our English policies either that the 
 master should be correctly named, or that the same master 
 should continue on hoard throughout the voyage. 
 
 The law is the same in France.^ At the same time, it is 
 the law of France, as it is of England, that in case a change 
 be made, it be not such a change as would increase the risk 
 of the underwriters, e.g. by substituting in time of war a 
 belligerent instead of a neutral as master.^ 
 What change But although a change of the master may be made without 
 policy. the consent of the underwriters, and before the commence- 
 
 ment of the voyage, it is incumbent on the assxired to make 
 it in perfect good faith, and to provide a substitute of 
 competent skill.* If the substitution can be shown to have 
 been effected for any fraudulent purpose, it will, of course, 
 vitiate the policy.* 
 
 Suppose that a British ship sails with a certificated master 
 and mates, and immediately she is outside the port a relative 
 of the owner who has no certificate, suppose for no other 
 reason than that he is under age, takes the command, is the 
 policy valid, although the infant be not named master in it ? 
 And even though he be named in it, is the ship seaworthy 
 under command of an uncertificated master ? In both cases 
 it is with the privity of the owners. In the first case there 
 seems to be a legal fraud upon the underwriters, which 
 vitiates the contract.^ The second case appears to be deter- 
 mined in principle by the decision in Farmer v. Legg, 
 where the policy was held void because the ship, when 
 employed in the slave trade, was under the command of 
 
 1 1 Emerigon, c. tu. sb. I, 2, 3, • Bonlay-Paty on 1 Emerigon, 
 pp. 184-190. c. Tii. s. 2, p. 189. See the Morocco 
 
 2 1 Emerigon, p. 187 ; Boulay- Land and Trading Co. (Limited) v. 
 Paty, in his Comment, ibid. 188, Ery, 11 L. T., N. S. 618; 11 Jur., 
 agrees with Emerigon in this con- N. S. 76, coram Stuart, V.-C. 
 struotion of the clause. ' See The Morocco Land and Trad- 
 
 ' See Walden v. Firemen's Ins. ing Co. ». Pry, coram Stuart, V.-C, 
 
 Co., 12 Johnson's E. 138 ; 3 Kent, 11 L. T., N. S. 618 ; 11 Jur., N. S. 
 
 Com. 257, note. 76. 
 
CHAP, VII. J THE shipmaster's POWERS. 345 
 
 an uncertificated master, contrary to the 31 Geo. 3, c. 54, 
 s. 7.1 
 
 If, in course of the voyage, by reason of death, disability. Otherwise if 
 or other necessary cause, the master originally named in the of neoe^'^. ^ 
 policy be rendered incapable of acting, or if he abandon his 
 command, tho substitution of another captain in such ease of 
 necessity, wiU, of course, in no way affect the validity of the 
 policy.^ Even in such case, however, the command should 
 not be delegated to a master belonging to a belligerent 
 nation in time of war ; nor, except in case of absolute 
 necessity, if the ship be British, ought the appointment to 
 be conferred on any one that does not possess a British 
 certificate of qualification for master on such a voyage.^ 
 
 The duty of the master, in case of damage to the ship, is Master's 
 to do all that can be done towards bringing the adventure bonrowing 
 to a successful termination, to repair the ship (i£ there be a ^^^^ neoea- 
 
 reasonable prospect of doing so at an expense not ruinous) 
 
 and to bring home the cargo, and earn the freight if 
 possible.* To accomplish this object of repairing his vessel, 
 the master is authorized to bind his owner, by causing the 
 repairs to be done on his credit, in which case the tradesman 
 may sue the owner; or by borrowing money on his credit 
 where that is necessary, ia which case the lender has his 
 
 ' Fanner ». Legg, 6 T. R. 186. ber on deck) determine that the policy 
 
 See the proTisions requiring certi- is not void if the assured is not privy 
 
 ficated masters, mates, and, for to the unlawful acts of the master, 
 
 steamers, engineers also, 17 & 18 So Australasian Ins. Co. v. Jackson, 
 
 Vict. 0. 104, s. 136 ; 25 & 26 Vict. 33 L. T., N. S. 286, coram P. C. on 
 
 u. 63, s. 5. And for the construe- the Kidnapping Act, 35 & 36 Vict, 
 
 tion of the statute, see in addition to c. 19. 
 
 Farmer v. Legg, supra, Freard v. ^1 Emerigon, e. vii. s. 3, pp. 189, 
 
 Dawson, 1 Marsh. Ins. 171, and 190. 
 
 Cunard v. Hyde, 29 L. J. (Q. B.) 6, s 17 & 18 Vict. c. 104, s. 136. 
 
 compared with Cunard v. Hyde, 27 * Opinion of the Judges in Benson 
 
 L. J. (Q. B.) 408 ; and WUson v. v. Chapman, 2 H. L. Gas. 696, 720. 
 
 Eankin, 34 L. J. (Q. B.) 62. The The 39 & 40 Vict. c. 80, o. 4, 
 
 latter two of these cases being de- making it a misdemeanor in him to 
 
 cided upon the same statutory pro- take the ship to sea in an unsea- 
 
 vision (16 & 17 Viot. o. 107, 8s. 170, worthy state so as to endanger life, 
 
 172, now repealed, as to loading tim- is alio intuitu . 
 
346 
 
 THE SHIPMASTER S POWERS. 
 
 [part I. 
 
 remedy against the owner ; or by selling a portion of the 
 cargo, which is in effect borrowing from the shipper through 
 the medium of a sale, and in this case the shipper may sue the 
 shipowner ; or the master may hypothecate part or the whole 
 of the cargo, which gives a right to the proprietor of it to 
 recover a compensation from the owner of the vessel. AH 
 these are merely modes of raising money by the agent of the 
 shipowner for his account and use, to enable the agent to do 
 his duty by repairing the ship. The agency, for the purpose 
 of borrowing by these various modes, and so binding his 
 owner to the lender, is cast upon the master by the necessity 
 of the oase.^ He may also hypothecate the ship or the 
 freight, or both, which gives the lender a right of arrest by 
 Admiralty process. 
 
 Prior oom- 
 nmmcalioa 
 required. 
 
 There is this one condition, however, imposed by the law 
 on these various powers as an indispensable prerequisite to 
 their exercise, that the master is bound to communicate with 
 the owner of the subject to be so dealt with, whenever such 
 communication is under the circumstances practicable, and 
 would not be attended with such delay as must prove 
 seriously detrimental to the interests involved.^ 
 
 Power to 
 hypothecate. 
 
 It is not proposed to consider here the authority of the 
 master to bind his owner by borrowing money to repair, or 
 by causing repairs to be done on his credit,^ but merely to 
 notice a few points connected with his power to hypothecate 
 and sell the cargo, or part of it. With regard to his right 
 to hypothecate, it is now clear law, that in eases of justify- 
 ing necessity, or to use the language of Lord Stowell, in the 
 celebrated case of The Gratitudine — " of instant, unforeseen, 
 and unprovided necessity," the master having no other means 
 whatever of procuring funds, may hypothecate not the ship 
 only, but the cargo also, in order to raise money for the 
 
 ^ Judgment of Court of Exchequer 
 in Duncan v. Beneon, 1 Exch. S55 ; 
 affirmed in Benson v. Duncan, 3 
 Exch. 655. 
 
 2 Maolaohlan, Shipping, 141, 147. 
 ' See Madachlan on Shipping, o. iv. 
 pp. 139, 143. 
 
CHAP. VII.] THE shipmaster's POWERS. 347 
 
 repairs of the ship.^ In such oases the master, who in the 
 ordinary course of things is a stranger to the cargo, except 
 for the purposes of safe custody and conveyance, has forced 
 upon him the character of agent and supercargo, not by the 
 immediate act and appointment of the owner, hut by the 
 general policy of the law.^ 
 
 The extent of this agency in respect of the cargo, is to 
 bind it to the lender on respondentia ; a right of action over 
 lying for the owner of the cargo against the owner of the 
 ship, when the ship is the sole occasion of such borrowing.' 
 
 The master of The Lord Cochrane in consequence of sea- Benson v. 
 damage hypothecated for repairs the ship, freight, and 
 cargo, including the plaintiff's goods. The ship when 
 afterwards sold, and the freight, produced less than the 
 sum borrowed. The plaintiEE being obliged to contribute 
 towards the difference, and to pay costs in the Court of 
 Admiralty, brought his action for the whole of this loss 
 against the owner of the ship, on an implied promise to 
 indemnify. The Court of Exchequer unanimously sustained 
 the action,* and the Court of Exchequer Chamber on a bill 
 of exceptions, in effect afiBrmed the judgment.' Patteson, 
 J., delivering the judgment of the latter Court, lays down 
 the law as to the authority of the master, and the liability of 
 the shipowner in the following terms : — 
 
 "In ordering the repairs of the ship, the master acts Master agent 
 
 of shipowner. 
 
 1 The Gratitudine, 3 Eob. 240. dered to the ruling of the learned 
 
 * Id. 260. Judge who tried the cause on the 
 3 "The case of The Grratitudine second count; the second count was 
 
 dealt only with the authority of the on the bill of lading for the non-deli- 
 
 inasterinrespeet of binding the-cargo very of the plaintiff's goods by the 
 
 to the lender of the money, it deter- defendant, the shipowner, and the bill 
 
 mined nothing as to the relative rights of exceptions raised two substantial 
 
 of the owners of the ship and of the questions, viz. whether as against the 
 
 cargo inter se;" per Patteson, J., owners of the ship, the master, under 
 
 delivering the judgment of the Ex- the circumstances, had authority: 1. 
 
 chequer Chamber in Benson v. Dun- To order the repairs ; 2. To execute 
 
 can, 3 Exoh. 655. the bottomry bond. The Court of 
 
 * Duncan v. Senson, 1 Exoh. 537 ; Exchequer Chamber held in the affir- 
 S. C, nil. 3. (Ex.) 238. mative on both. 
 
 5 The bill of exceptions was ten- 
 
348 THE shipmastek's powers. [part I. 
 
 exclusively as the agent of the owner of the ship. No other 
 person but the owner of the ship and his agent can have 
 any authority to order the repairs. The owner of the cargo 
 cannot insist on such repairs being made, for the shipowner 
 is absolved from his contract to carry if prevented by perils 
 of the sea, and he is bound by it if prevented by inherent 
 defects in the ship. Being then the agent of the shipowner 
 in ordering the repairs, how can he be the agent of any one 
 else in borrowing money to pay for them ? If, in order to 
 borrow that money, he is obliged to hypothecate, not only 
 the ship, but the cargo, he, in effect, borrows money on the 
 cargo for the benefit of the shipowner, just as much as he 
 would have done had he sold a part of the cargo to raise" the 
 necessary funds, in which case, it is not doubted that the 
 shipowner must have indemnified the owner of the cargo." ^ 
 
 Necessity is Necessity is the origin of the master's authority to borrow; 
 
 criterion of and if simpler powers fail him, necessity is still the criterion 
 power. ^£ j^-g authority to resort to powers of a more extensive and 
 extraordinary nature.^ He must, in the first instance, 
 endeavour to raise the money upon the credit of his owners ; 
 if that resource fail him, and only then, wiU he be justified 
 in resorting to hypothecation.' It is nowhere laid down that 
 for the ship's purposes he shall not iu the first instance resort 
 to hypothecation of the cargo, but so natural is it to expect 
 one in such a situation to supply his owner's necessities from 
 their own resources, that if ship, freight, and cargo be 
 hypothecated in separate bonds, the Court of Admiralty will 
 exhaust the proceeds of ship and freight before calling upon 
 the owners of cargo to contribute.* Indeed a lien on cargo 
 for the uses of the ship is said impliedly to include ship and 
 freight also.' The law expects him, however, to communicate 
 with the owners of ship or cargo before exercising any of 
 
 > Benson v. Duncan, 3 Exch. 655, Fanning, 11 C. B. 88. 
 
 666 ; S. C, 18 L. J. (Ex.) 172, 173. * The Constancia, 10 Jut. 845 ; 
 
 ' JIaolachlan on Shipping, 141- Maclaohlan on Shipping, 706. 
 
 167. ' Maclachlan, 706. 
 
 ' Per Jervis, C. J., in Stainbank v. 
 
CHAP. VII.] THE shipmaster's POWERS. 349 
 
 his extraordinary powers of borrowing, except where the 
 opportunity of comnmnication is not correspondent with the 
 existing necessity. ^ The right to hypothecate, usually exer- 
 cised in countries other than that of the owners' residence, 
 may be resorted to even in a port of the country where his 
 owners reside, provided the master have no means of 
 communicating with them, and there is no other mode of 
 escaping from the pressure of the necessity.^ 
 
 This power of the master is confined to hypothecation. Power to 
 strictly and properly so called, as distinguished either from nottomort- 
 a mortgage, which transfers the property, or a pledge or S^s^o^v^"^^- 
 pawn at common law, which gives such a lien on the chattel 
 as is void without actual possession. Hypothecation gives 
 a maritime lien which exists independently of possession, and 
 which may be enforced against the subject of it, through the 
 medium of legal process on the termination of the voyage ; 
 moreover it is essential to the validity of hypothecation, that 
 the sea risk should be incurred by the lender, and that the 
 privilege or claim should take effect only in the event of the 
 ship's safe arrival.' 
 
 Hence, where the master, besides drawing bills on his 
 owners, also executed an instrument purporting to be an 
 hypothecation of ship, cargo, and freight, whereby the 
 merchant forbore to take maritime interest, and the master 
 took on himself and his owner the risk of the voyage, making 
 the money payable in any event, it was held that this was 
 beyond the scope of his authority as agent, and did not, 
 therefore, bind his owner to the merchant who had advanced 
 the money.* 
 
 But as instruments of hypothecation are the creatures of 
 
 1 Wallace v. Fielden, 7 Moore, Ad. 29. 
 
 P. C. 398, 409; The Hamburgh, ' See the judgment of Jervis, C.J. , 
 
 coram P. 0., 33 L. J. (Ad.) 116; in Stainbanki). Femmig, 11 0. B. 88, 
 
 Kleinwort & Co. v. Caasa Maritima and of Parke, B., in Stainbank v. 
 
 of Genoa, 2 App. Cas. 156; Mao- Shepard, 13 C. B. 441. 
 
 lachlan, 141, 147. * Stainbank v. Fenning, 11 C. B. 
 
 ' La Tsabel, Bozzo, 1 Dods. Ad. 51 ; Stainbank v. Shepard (in the 
 
 273; The Trident, Simson, IW. Rob. Exch. Chamber), 13 C. B. 418. 
 
350 
 
 THE shipmaster's POWERS, 
 
 [part I. 
 
 necessity and distress, and usually contain the language of 
 commercial men and not of lawyers, they receive a liberal 
 construction.' If, therefore, the risk should not be mentioned 
 in express terms, yet it will suffice, if it can be fairly and 
 reasonably inferred from the whole document, that it was 
 the intention of the parties to make the repayment of the 
 money dependent on this contingency.'' 
 
 Power to sell 
 portion of 
 cargo. 
 
 Amotmt 
 ' ■which the 
 owner of the 
 goods sold is 
 entitled to 
 recover. • 
 
 The sale of portion of the cargo by the master for repairs 
 of the ship in a port of distress, stands on the same conditions 
 as his other borrowing powers, and is of the nature of a loan 
 from the owner of the goods.' It is only to be exercised 
 for the purpose of enabling the ship (or a substituted ship 
 as it should seem) to proceed with the cargo, or the residue 
 of it, on the voyage chartered or insured; and, if the master 
 unduly puts an end to the voyage insured, it is held in the 
 United States, apparently on very good grounds, that the 
 master is not justified in selling any part of the cargo for 
 repairs for a new voyage.* 
 
 The owner of the goods, whether or not the ship after- 
 wards arrives at her destination, is entitled to recover as 
 against the shipowner in respect of the goods so sold ; 
 and he may claim, at his option, either the price for which 
 the goods actually sold at th« port of distress,' or, the 
 amount for which they would have sold at the port of 
 discharge.® 
 
 1 Maolaohlan on Shipping, 62. 
 
 2 Id. 60. 
 
 ' See the judgment of the Exche- 
 quer in Duncan v. Benson, 1 Exch. 
 556. 
 
 « Watt*. Potter, 2 Mason, R. 77 ; 
 3 Kent, Com. 173. 
 
 ^ Camptell v. Thompson, 1 Stark. 
 490 ; Richardson v. Nouise, 3 B. & 
 Aid. 237 ; see Hopper v. Bumess, 1 
 C. P. Div. 137. 
 
 » Per curiam, Atkinson v. Ste- 
 phens, 7 Exoh. 567, 573, 575 ; Alers 
 V. Tobin, Abhott on Ship. 266; 
 
 Hallett V. Wigram, 9 C. B. 580; 
 S. C, 19 L. J. (C. P.) 281. 
 
 It is singular that doubts should 
 have been raised about the ship- 
 owner's liability for the price of the 
 goods sold by his captain, in case the 
 ship is afterwards lost before arrival. 
 Lord Tenterden inclines to the opinion 
 of Emerigon as the more reasonable, 
 viz., that the money is only payable 
 in case of the ship's arrival, on the 
 ground that the merchant is thus not 
 placed in a worse condition than if 
 his goods had not been sold, but had 
 
CHAP. VII.] THE SHIPiMASTEr's POWERS. 351 
 
 As this power of selling the goods of the shipper for the Eight of sale 
 repairs of the ship is conferred for the sake of ultimately can extend to 
 proouring the arrival of some part of the cargo in the ^areo°°^^°* 
 repaired ship, it extends to the sale of part only of the 
 cargo, and not of the entirety ; for it is not to be presumed 
 to be for the interest of the shipper that the whole should 
 be sold, in order to enable the ship to proceed empty to her 
 port of destination,^ 
 
 On the other hand, the master may well hypothecate the But the whole 
 entirety of the cargo, as that may be for the benefit of the hypothecated, 
 whole, by providing means for forwarding th# whole to a 
 proper market, where it may realize far more than the 
 amount raised on hypothecation, and the expenses of the 
 loan.* It will be sufficient here to have pointed out thus 
 generally the extent and limits of this power, reserving any 
 particular instances of its exercise for a more detailed 
 examination in subsequent parts of this work.' 
 
 The point of the preceding inquiry was, the extent of the Pover of the 
 master's power to hypothecate ship and cargo, or sell part of g^ip, or the 
 her cargo for the purpose of repairing the ship, and enabling "^hole cargo. 
 her to prosecute her voyage. The cases now to be con- 
 sidered are those in which, the further prosecution of the 
 enterprise has become hopeless — where the ship cannot be 
 repaired or the cargo forwarded — under which circumstances, 
 by a still further extension of his powers, he is justified, 
 from the paramount necessity of the case, in selling the 
 ship or the whole of the cargo, or both.* 
 
 It is obvious that nothing but a case of absolute and 
 supreme necessity, such as sweeps all ordinary rules before 
 
 remained on hoard ; AbhottonShip- 240; and see Duncan v. Benson, 1 
 
 ping, pp. 257, 279, 10th ed. Seethe Exoh. 537 ; Benson v. Duncan, 3 
 
 authorities considered, Maelachlan Exch. 655. 
 
 on Shipping, 440-443. ' See post, Part III., Chaps. IV., 
 
 1 Ereeman v. East India Co., 5 VII., VIII., and elsewhere. 
 
 B. & Aid. 617 ; per curiam, Duncan * See Maelachlan on Shipping, 
 
 V. Benson, 1 Exoh. 537, 555. 156, 169. 
 
 2 The Gratitudine, 3 Eob. Kep. 
 
352 THE shipmaster's powers. [part I. 
 
 it, can justify such a sale on the part of the master. He is 
 employed, as servant of the owners, to navigate the ship, 
 and, as agent for both the shipowner and the merchant, 
 to carry the goods to their port of destination; and his 
 disposal by sale of that which he is thus entrusted to navigate 
 or convey, would in ordinary cases be the mere unauthorized 
 act of a servant manifestly exceeding his commission. 
 Extreme emergencies, however, may arise in which the 
 master, at a distance from his home port, and without avail- 
 able opportunity of consulting either the shipowner or the 
 merchant, has no alternative left him, acting with perfect 
 good faith as a prudent and skilful man, and for the best 
 interests of all concerned, but to sell the property entrusted 
 to his charge. What those circumstances and what that 
 emergency may be which will justify him in thus acting, we 
 shall have frequent occasion to consider, in treating of the 
 question of constructive total loss on ship and goods: we 
 therefore confine ourselves here to a brief statement of the 
 nature of the power, and the limitations on its exercise. 
 
 Nature of this The nature of this power has been thus expressed by 
 power as 
 
 vested in the Parke, B. : — " The master has, by virtue of his employment, 
 
 master by the . i ji i_t i_ i! j.i • i- 
 
 necessity of i^ot merely those powers that are necessary tor the navigation 
 
 the case. q£ ^j^q gj^-p^ ^^^ ^j^g Conduct of the adventure to a safe ter- 
 
 mination, but also a power when such termination becomes 
 hopeless, and no prospect remains of bringing the vessel 
 home, to do the best for all concerned, and therefore to 
 dispose of her for their benefit."^ 
 Limitations If the ship be driven ashore and wrecked to pieces, or no 
 
 as it relates to longer retains the character of a ship at all, the master is 
 sale of ship, clearly justified in selling the remains of the wreck." But 
 this is an extreme case. 
 
 If the master, after the utmost endeavours, is compelled to 
 renounce all hope of bringing her home, either on account of 
 the physical impossibOity of extricating her at aU with the 
 means at his command, or of his inability to find the 
 
 • Hunter v. Parker, 7 M. & W. ^ Cambridge v. Anderton, 2 B. & 
 
 342. Cr. 691. 
 
CHAP. VII.J THE shipmaster's POWERS. B53 
 
 necessary funds for the purpose, — in sucli case, if the danger 
 is imminent, and delay likely to prove destructiTe, the master 
 is justified in selling the ship as she lies, although at the 
 time of sale she still retains the character of a ship.^ 
 
 Thus, to take the case put by Lord Stowell, in The Fanny 
 and Elmira, of a ship oast away in a foreign country, where 
 there is no correspondent of the owners, and no money to 
 be had on hypothecation to put her in repair, and all this 
 at such a distance from the home port that the ship 
 may rot before the master can hear from his owners, our 
 Courts iu such a case have held a sale by the master to be 
 justifiable.^ 
 
 The exercise, however, of this power is most jealously 
 watched by the English Courts, and rigorously confined to 
 cases of extreme necessity, a necessity that leaves the master 
 no alternative as a prudent and skilful man, acting bond 
 fide for the best interests of all concerned, and with the 
 best and soundest judgment that can be formed under the 
 circumstances, but to sell the ship as she Hes.' 
 
 If he come to this conclusion hastily, either without 
 sufficient examination into the actual state of the ship,* or 
 without having previously made every exertion in his power, 
 with the means then at his disposal, to extricate her from 
 the peril, or to raise funds for her repair,' he will not be 
 justified in selling, even though the danger at the time 
 appear exceedingly imminent.^ 
 
 " Eotertsonp. Clarke, IBing. 445; of expenditure with valm which in 
 
 Mount V. Harrison, 4 Bing. 388 ; the result defeated the conBtructiTS 
 
 Hunter v. Parker, 7 M. & W. 342. total loss claimed against the under- 
 
 2 The Fannyand Elmira, Edw. Ad. writers; L. E., 2 C. P. 204. 
 
 117 ; see also Eead v. Bonham, 3 B. * Hayman v. Moulton, 5 Esp. 65 ; 
 
 & B. 147 ; The Margaret Mitchell, 4 Eeid v. Darby, 10 East, 143 ; Doyle 
 
 Jur., N. S. 1193 ; Swab. Ad. 382 ; -v. Dallas, 1 Moo. & Rob. 48. 
 
 The Glasgow, Swab. Ad. 145 ; The * Grardner v. Salvador, 1 Mood. & 
 
 Bonita, Lushington's Ad. 262. Rob. 118 ; The Fanny and Elmira, 
 
 3 Alcook V. Eoyal Exch. Co., 13 Edw. Ad. 117. 
 
 Q. B. 29 ; Ejiight v. Faith, 15 Q. B. « Idle v. Royal Exoh. Co., 3 B. & 
 
 649 ; see Famworth v. Hyde, 34 L. J. B. 151, in which the Court of King's 
 
 (0. P.) 207. This latter case went Bench reversed the judgment of the 
 
 ofi on appeal upon the comparison Common Pleas which had been given 
 
 M. ^ ^ 
 
354 THE shipmaster's powers. [part I. 
 
 A mere difficulty in procuring tlie necessary funds^ or the 
 necessary materiak for repairs," although it may be very 
 considerable, and such as to impose great sacrifice of time 
 and money, will not justify the master in selling instead of 
 repairing. 
 
 St ^ ^^^^ In t^e United States, the limitations upon the exercise of 
 this power do not seem to be even yet very certainly defined. 
 In some cases a more extensive liberty than that allowed by 
 the English rule, has been avowedly conceded, and the 
 position advanced, that the master may sell in all cases 
 where he has good reason to believe that the owner would 
 elect to abandon, i.e., in all cases of constructive total loss.' 
 On the other hand, the stricter doctrine of the English law 
 has been asserted and maintained in more recent decisions 
 of the Courts of Massachusetts,* which derive additional 
 sanction from the opinion of Ohanoellor Kent, who declares 
 " the strict rule to be the one best supported by reason and 
 authority." ^ 
 
 In France. In France, the Ordonnance de la Marine, following in this 
 
 respect the maritime laws of the middle ages,^ absolutely 
 prohibited the master from selling the ship in any case, 
 except under the special direction of the owners;' the same 
 absolute prohibition was contained in the draft of the new 
 Code de Commerce : but on strong representations of the 
 mischiefs that might ensue from so rigorous a rule, it was 
 relaxed, and the sale of the ship by the master was permitted 
 in the sole case "of innavigability legally certified " (innavi- 
 gabilite legalement constat^e), that is, as Boulay-Paty 
 
 infavourof therighttosell; STaunt. 249; Hall ». The I^anklin Ins. Co., 
 
 755 ; Cobequid Marine Ins. Co. -v. 9 Pickering's R. 466. 
 
 Barteairx, L. R., 6 P. C. 319 ; see, * 3 Kent, Com. 173, 174, note ; 
 
 however, Hunter v. Parker, 7 M. & Accord. 2 Parson, Ins. 147. 
 
 W. 342. « The Jugemens d'Oleron, art. 1 ; 
 
 ' Somes V. Sugrue, 4 C. & P. 274. the Laws of "Wisby, art. 13, and 
 
 2 Pumeaux v. Bradley, 1 Park, Ins. those of the Hanse Towns, art. 37, 
 
 365. expressly prohibit the master from 
 
 ' American Ins. Co. v. Center, 4 selling the ship in any case ; 2 
 
 Wendell's (Sup. Court) E. 45. Boulay-Paty, Droit Mar. 85. 
 
 * Gordonii.TheMassachusettsFire ' Ord. dela Marine, liv. ii. tit. 1, 
 
 and Mar. Ins. Co., 2 Pickering's E. art. 19. 
 
CHAP. VII.J THE shipmaster's POWERS. 355 
 
 explains it, upon the report of experienced navigators, 
 appointed to act as surveyors by the local authorities, and 
 followed by a formal condemnation in the local tribunals.^ 
 
 The French jurists confine the " innavigabUity," spoken of 
 in the Code, to the single case, in which the ship cannot be 
 repaired so as to continue its voyage or keep the sea, — 
 (il faut que le navire ne puisse aohever son voyage, et qu'il 
 soit juge incapable de f aire son retour : — il faut que le navire 
 ne puisse pas etre raccommode, et qu'il soit hors d'etat de 
 naviguer).^ 
 
 Boulay-Paty considers this prohibition to sell as a very 
 important safeguard of the interest of shipowners against 
 the frauds of the master; and remarks, that the Courts 
 cannot be too strict in confining it to the sole case of real 
 and bond fide innavigability in the sense above explained.^ 
 It is remarkable, that among the representations addressed 
 to the French legislature, in order to induce them to relax 
 the ancient rule, one of the cases stated as showing its 
 hardship, and in which the power of sale seems still denied, 
 is where the cost of repairing the ship will exceed its value 
 when repaired (pour ne pouvoir ^tre r^pare sans qu'il en 
 cofite sa valeur et au-dela). As no notice is taken of this 
 case, either by Boulay-Paty or Pardessus, in interpreting 
 the legal meaning of the word "innavigability," used in the 
 237th article of the Code, it is fair to conclude, that, iu the 
 opinion of these eminent jurists, the case supposed would 
 not warrant the master in selling, and that the rule of the 
 French law on this point is more rigorous than our own. 
 
 In one case in the United States, the power of the master 
 to seU. was limited to a foreign coast;* but it has since been 
 decided there, by Story, J., that in a case of overwhelming 
 urgent necessity, the master has a right to sell the vessel 
 
 1 2 BoTilay-Paty, 86; Code de 606. 
 
 Comm. art. 237. ' 2 Boulay-Paty, 89. 
 
 s 2 Boulay-Paty, Droit Mar. 88 ; « Scull v. Briddle, 2 Wash. Giro, 
 
 see also 3 Pardessus, Droit Com. no. Court K. 150. 
 
 aa2 
 
356 THE shipmaster's poweks. [pakt I. 
 
 as well on a home as on a foreign shore, and whether the 
 owner's residence be near or at a distance.^ 
 
 The power of His power to sell the whole cargo depends on exactly the 
 whole cargo, same principles as the power to sell the ship, and, like it, can 
 only be exercised in cases of extreme necessity. 
 
 In the admirable language of Lord Stowell, " though the 
 master, in the ordinary course of things, is a stranger to the 
 cargo, beyond the purposes of custody and conveyance ; yet 
 in cases of instant and unforeseen and unprovided necessity, 
 the character of supercargo or agent is forced on him by the 
 general policy of the law, unless the law can be supposed to 
 mean that valuable property in his hands is to be left without 
 protection or care." ^ 
 
 In respect of a perishable cargo, which was the ease under 
 consideration, the learned judge says, — " Suppose the case of 
 a ship driven into port with a perishable cargo ; or suppose 
 the vessel unable to proceed, or to stand in need of repairs, 
 what must be done ? The master, in such case, must exercise 
 his judgment, whether it would be better to tranship the 
 cargo, if he has the means, or to sell it ; he is not bound to 
 tranship, he may not have the means of transhipment, but 
 even if he has, he may act for the best in deciding to sell. 
 If he has not the means of transhipment he is imder an 
 obligation to sell the cargo, unless it can be said that he is 
 under an obligation to let it perish." ^ 
 
 Where the ship is disabled, and the cargo, being sea- 
 damaged, and of a perishable nature, is in danger of being 
 destroyed by the rapid progress of putrefaction if not sold, it 
 is in the master's power, if not his duty, immediately to sell 
 it;' and this duty, it seems, would be equally imperative, or, 
 at all events, the authority equally clear, in such a case, were 
 the ship not permanently disabled, but capable, after repair, 
 of taking on the cargo.* 
 
 ' The brig Sarah Ann, 2 Sumner's ' VUerboom v. Chapman, 13 M. & 
 
 K. 206, cited 3 Kent, Com. 174, note. TV. 320. 
 
 2 Per Lord Stowell in The Grratitu- * Eoux v. Salvador, 3 Bing. HT. 0. 
 
 dine, 3 Eob. Eep. 240, 257, 259. 266. 
 
CHAP. VII.] THE shipmaster's powebs. 357 
 
 The power of sale, however, where the ship is not disabled, 
 or where there is the means of transhipment, must be strictly 
 confined to cases in which the cargo is of a perishable nature, 
 and has suffered so much sea-damage as renders it physically 
 impossible for it, if sent on, to arrive in species at its port of 
 destination.^ 
 
 Where the original ship is disabled, but there is means of 
 transhipment, and the cargo neither of a perishable nature, 
 nor sea-damaged, the master is not justified in selling, but is 
 at all events entitled to tranship.^ On the other hand, if 
 there be no means of transhipment, or hope of any, or if the 
 cost of saving and transhipping and sending home the cargo 
 would be more than its worth when landed at its port of 
 destination, the master might possibly be held empowered 
 to sell the cargo if he had the opportunity, though it were 
 neither sea-damaged nor of a perishable nature.^ But if not 
 otherwise justifiable, it will not be justified by decree of a 
 Vice- Admiralty Court ordering such sale.* 
 
 "In our opinion," say James and Cotton, L.JJ., "pur- 
 chasers of cargo from a master cannot justify the sale, unless 
 it is established that the master used all reasonable efforts to 
 have the goods conveyed to their destination as merchantable 
 articles, or could not do so without an expenditure clearly 
 exceeding their value after their arrival at their destination." 
 In this case, the insurers of cargo filed a bill against the 
 purchasers of cargo to have the purchase set aside and the 
 purchasers treated as salvors only. The plaintiffs were 
 successful.* 
 
 The justifiable sale by the master of a perishable cargo at The master 
 a port of distress transfers the property, and binds the shipper shipper for 
 
 > Hunt V. Koyal Exoh. Ass. Co., 5 Aid. 617. 
 M. & Sel. 55; Eoiix v. Salvador, 3 ^ Per Bay ley, J., in Hunt «). Koyal 
 
 Bing. N. C. 266 ; Wilson </. Royal Exoh. Ass. Co., 5 M. & Sel. 66, 67. 
 Exeh. Co., 2 Camp. 623 ; Meyer v. * Van Omeron v. Dowick, 2 Camp. 
 
 EaUi, 1 C. P. Div. 358. N. P. 42; Reid i). Darby, 10 East, 
 
 2 Anderson v. Wallis, 2 M. & Sel. 143 ; Morris v. Robinson, 3 B. & Cr. 
 
 240; Wilson«'.Mmar,2Stark,N.P. 196. 
 
 1; Morris V.Robinson, 3 B. & 0.196; * Atlantic Mutual Ins. Co. v. 
 
 Freeman v. East India Co., 5 B. & Huth, 16 Ch. Div. 474, 481. 
 
358 
 
 THE SHIPMASTER S POWERS. 
 
 '■ [part, I. 
 
 piHpose of 
 creating j^ro 
 ratd freight. 
 
 on the ground that the character of agent for the shipper is 
 necessarily devolved on the master by the emergency; but 
 the master cannot in such case be considered as the agent of 
 the shipper for the purpose of receiving the damaged goods 
 at the port of distress, dispensing with their further oajriage, 
 and thereby entitling the shipowner to pt'o raid freight. 
 The presumption that he is agent for the shipper in such 
 cases in selling the goods is incompatible with the presump- 
 tion that he is also agent for the shipper in dispensing with 
 their further carriage. " The agency of the master from 
 necessity, arises from his total inability to carry the goods 
 to the place of destination, which therefore dispenses with 
 the performance of that primary duty altogether. On the 
 other hand, the right to freight pjv rata arises from the 
 presumed waiver on the part of the shipper of the per- 
 formance of a duty which the master (on behalE of the 
 shipowner) was ready to execute." ^ 
 
 Power of the 
 master to 
 Bend on the 
 cargo in 
 another ship. 
 
 The subject of which we now come to treat has been in 
 some degree anticipated in our discussion of the continuing 
 liability of the underwriter when goods are of necessity 
 shifted into a different ship from that named in the policy. 
 
 We have seen that to repair the ship, if that be reasonable 
 and practicable, is clearly his duty, in order to prosecute the 
 remainder of the voyage.^ He may retain the cargo tiU she 
 is ready, unless, from the perishable nature thereof, that 
 would be attended with serious injury.^ In that case,* or 
 in case the ship cannot be repaired at all, or not without 
 unusual loss of time, he is at liberty to procure another ship 
 and send on the cargo by it ; ^ this also he may do on the 
 
 ' Per Parke, B., VUerboom v. 
 Chapman, 13 M. & W. 230, 239. 
 
 ^ Per Judges in Benson v. Chap- 
 man, 2 H. L. Oas. 696, 720; ante, 
 p. 347. 
 
 2 The la-wfl of Oleron, art. i, 1 
 Pardess. 325 ; Matthews v. Gibbs, 
 
 30 L. J. (Q. B.) 55. 
 
 * Per Lord Stowell, The Gratitu- 
 dine, Mazzola, 3 C. Eob. Ad. 240, 
 257, et seq. 
 
 ^ Shipton V. Thornton, 9 A. & E. 
 314 ; Matthews ». Gibbs, 30 L. J. 
 (Q. B.) 55 ; Luke v. Lyde, 2 Burr. 
 
CHAP. Vtl.] THE shipmaster's POWERS. 359 
 
 high seas, if the opportunity of transhipment occurs, and 
 the occasion for it he pressing, and he is not answerahle in 
 that case, although his own ship actually survive the voyage, 
 and the other perish with the cargo. 
 
 " It never has heen decided in this country whether, under 
 any circumstances, he is hoimd to do this. By the Ehodian 
 law,^ it is left discretionary, as it is by the laws of Oleron,^ 
 and would appear to be so left by the ordinance of Wisby, 
 did not a subsequent article, copied also into the Hanse 
 Ordiaance,' bear testimony of a contrary disposition, thereby 
 agreeing with the maritime law of Amsterdam.* According 
 to the interpretation put by Vinnius upon the Roman law, 
 the master is thereby under no obKgation to procure another 
 ship when that by which he contracted to carry the goods is 
 disabled.^ But the Antwerp^ and Rotterdam' Ordinances, 
 as translated by Magens, employ the strongest terms of 
 obligation. The French law, though phrased in the clearest 
 language on this point, is so framed as to leave the intention 
 thereof in doubt, and the most distinguished jurists of that 
 country divided in opinion. Si le capitaine est contraint 
 de faire radouber le navire pendant le voyage, I'affr^teur est 
 tenu d'attendre, ou de payer le fret en entier. Dans le cas 
 oil le navire ne pourrait ^tre radoube, le capitaine est tenu 
 d'en louer un autre. Si le capitaine n'a pu louer un autre 
 navire, le fret n'est du qu'el proportion de ce que le voyage 
 est avanc4.* Looking at the first and third member of this 
 provision, and the consequent effect upon freight which is 
 operated by each, it is not unnatural to conclude that the 
 
 883, 887 ; Lutwidge v. Grey, ibid. ; = Ord. Wisby, art. 18, 1 Paidess. 
 
 Blasco V. Hetoher, 32 L. J. (0. P.) 472; Hans. Ord. (1614) t. 3, ait. 17, 
 
 284 ; The Hamburg, 33 L. J. (Ad.) 2 Pardesa. 536. 
 
 116 ; 2 Moore, P. C, N. S. 289 ; De « Art. 17, 1 Pardess. 413. 
 
 Cnadra v. Swaim, 16 C. B., N. S. * Viimius in PecMum, 285, 295. 
 
 772 ; Kidston ». Empire Ins. Co., « Art. 3, 2 Magens, 14. 
 
 L E , 1 0. P. 635 ; Notara v. ' Art. 148, 2 Magens, 105. 
 
 Henderson, L. E., 5 Q. B. 346; 7 » Co. Com. art. 296, 391; Ord. 
 
 Q B. 225. Idiil, liv. 3, t. 3, art. 11, 4 Pardess. 
 
 1 Chap. 42, 1 Pardess. 256. 362. 
 
 = Art. 4, 1 Pardess. 325. 
 
360 THE shipmaster's powees. [part I, 
 
 second member is elliptically expressed, and should be con- 
 strued as though followed by these words [ou de perdre le 
 fret en entier]. Accordingly, it is the opinion of Valin,^ and 
 Pothier,^ that he is no further bound to procure another 
 vessel than by losing his freight if he omit to do so. 
 Emerigon,* however, followed by Pardessus* and Boulay- 
 Paty,' maintains that, by the express language of the law 
 and the nature of the trusts reposed in the master, it is his 
 duty to hire another vessel, if it be possible, for the cargo, 
 and that he is answerable in damages if he neglect it." ° 
 Statement by Chancellor Kent,' stating the law of America, says: — 
 Kent of the '"In this country we have followed the doctrine of Emerigon 
 poLt in°the" and the spirit of the English cases, and hold it to be the duty 
 United States, of the master, from his character of agent of the owner of the 
 cargo which is cast upon him from the necessity of the case, 
 to act in the port of necessity for the best interests of all 
 concerned, and he has powers and discretion adequate to the 
 trust, and requisite for the safe delivery of the cargo at the 
 port of destination. If there be another vessel in the same, 
 or in a contiguous port, which can be had, the duty is clear 
 and imperative upon the master to hire it; but still the 
 master is to exercise a sound discretion adapted to the case.' " 
 The same learned jurist adds: — "He may tranship the 
 cargo, if he has the means, or let it remain. He may bind 
 it for repairs to the ship. He may sell part, or hypothecate 
 the whole. If he hires another vessel for the completion of 
 the voyage, he may charge the cargo with the increased 
 freight, arising from the hire of the new ship: the master 
 may also refuse to hire another vessel, and insist on repair- 
 ing his own, and whether the freighter be bound to wait for 
 the time to repair, or becomes entitled to his goods without 
 any charge of freight, will depend upon circumstances. 
 
 1 1 Valin, 651. ' 3 Boulay-Paty, Droit Mar. 400- 
 
 2 Chaite-paitie, no. 68. 405, 
 
 8 1 Emerig. 422, 423, 427. * The above paragraph is from 
 
 * 3 Faxdees. Droit Com. no. 715, Maclachlan ou Shipping, 399, 400. 
 and no. 644. ' 3 Kent, Com. 212. 
 
CHAP. VII.J THE shipmaster's POWERS. 361 
 
 Wliat would be a reasonable time for the merchant to wait 
 for the repairs cannot be defined, and must be governed by 
 the facts applicable to the place and time, and to the nature 
 and condition of the cargo. A cargo of a perishable nature 
 may be so deteriorated as not to endure the delay for repairs, 
 or to be too unfit and worthless to be carried on. The 
 master is not bound to go to a distance to procure another 
 vessel, or encounter serious impediments in the way of 
 putting a cargo on board another vessel. His duty is only 
 imperative when another vessel can be had in the same or 
 in a contiguous port, or at one within a reasonable distance, 
 and there be no great difficulties in the way of a safe re- 
 shipment of the cargo." 
 
 In so far as the law of the United States imposes this as 
 an imperative duty on the master, it goes far beyond the 
 decisions in English law, if it does not also diverge from 
 the course which they indicate. Lord Denman, indeed, in 
 the case of Shipton 11. Thornton,^ intimates, that cases may 
 arise in which " it will be the duty " of the master, as agent 
 for both parties, to send on the goods, though at an increased 
 freight. " In such a case," says his Lordship, " the freighter 
 wUl be bound by the act of his agent, and of coiu'se be liable 
 for the increased freight." But leaving peculiar cases out of 
 account, legal opinion in this country seems to bear wholly 
 on the side of Valin and Pothier, that whilst he is entitled to 
 carry on the goods by another ship, and thereby earn the 
 stipulated freight, he is at liberty to terminate the contract 
 where his ship breaks down, without other consequences to 
 himself or his owners than the loss of the whole of the 
 contract freight.^ 
 
 Whether, if he tranships the goods, he be the agent, in so wiose agent 
 acting, of his owners or of the freighters, is rather a question transMpsr ^ 
 upon the facts in each case. It is a natural presumption, 
 if the freight of the substituted ship be lower than the freight 
 
 1 9 A. & E. 337. Ironworks Co., 1 Q. B. D. 613 ; 
 
 2 See Metcalfe v. The Britannia Hopper v. Burness, 1 C. P. D. 137, 
 
362 
 
 THE SHIPMASTER S POWEKS. 
 
 [VART I. 
 
 Is insurer 
 liable for 
 exSess of 
 freight? 
 
 Duties of 
 master in 
 respect of 
 cargo by 
 English law. 
 
 Liability of 
 insurers. 
 
 of the original ship, that in hiring her he is agent for his 
 owners, and that he is the agent for the freighters if he bond 
 fide send on the goods at an increased freight.^ Lord Den- 
 man, in the ease abeady oited,^ does not proceed to examine 
 the question, whether such charge for increased freight is, in 
 cases of insurance, to be regarded as an average loss by the 
 perils insured against, and made good as such by the under- 
 writer on the goods. 
 
 In Prance the law upon this point is, that such excess of 
 freight by the substituted ship, together with aU expenses of 
 unloading, warehousing, and reloading the goods, shall be 
 _made good by the insurer up to the amount of his subscrip- 
 tion.' 
 
 In the United States it has been decided that the under- 
 writer on goods is not liable for the loss occasioned by such 
 extra freight;* at all events, unless there would otherwise 
 have been a total loss of the goods.^ 
 
 In this country it has been held in respect of perishable 
 cargo sustaining such damage as may, if not checked, 
 go on increasing, that the master beiug in an intermediate 
 port is not entitled to proceed on his voyage, with such 
 damaged cargo on board, the progress of the damage being 
 unchecked, and that if he do so, he or his owners are liable 
 for the further loss that ensues in consequence.^ If in such 
 a case, instead of proceeding on his voyage with the damaged 
 cargo, he incurs expense in checking the progress of the 
 damage, he is entitled to be recouped by the owner of the 
 goods, whose right of action over lies against the Tinder- 
 writer, under the Bue and labour clause of the policy, 
 
 1 See Matthews v. Gibbs, 30 L. J. 
 (Q. B.) 66 ; Shipton v. Thornton, 9 
 A. & E. 314. 
 
 '^ Shipton V. Thornton, supra. 
 
 3 1 Emerigon, o. xii. s. 16, p. 426 ; 
 Code de Commerce, art. 392, 393 ; 
 and see a very able statement of the 
 French law as to this point in 2 
 Boulay-Paty, Droit Mar. tit. viii. 
 
 s. 8, Dm Fret en Cm de Madoub, et 
 d^ InnweigaUUte du Namire, pp. 398- 
 416. 
 
 * Sohulz ». Ohio Ins. Co., 1 Mon- 
 roe's Kentucky Eep. 339. 
 
 * 2 Phillips, no. 1462; 3 Kent, 
 Com. 212, note. 
 
 ' Notara v. Henderson, L. B., 5 
 Q.B. 346; 7 Q. B. 225. 
 
CHAP. VII. j THE shipmaster's POWERS. 363 
 
 notwithstanding the damage actually sustained does not 
 reach the memorandum per-oentage, provided it appear that 
 but for such expenditure the damage would have increased 
 until it had become a loss for which the insurer was answer- 
 able.^ In short, if it appear that a loss which would have 
 fallen on the insurer has been prevented or mitigated by the 
 expenditure of money, the insurer is liable for the expense. 
 Accordingly, where the vessel, in consequence of the perils 
 insured against, was properly abandoned at an intermediate 
 port, and the goods were transhipped and carried on to their 
 destiaation at a heavy cost for iaeidental charges and for 
 freight, the underwriter on freight was held liable for the 
 whole of this expense, because thereby a total loss of the 
 original freight was prevented.^ Of course, to the extent that 
 such expense is aggravated by fraud on the part of the 
 master, neither freighter nor insurer is liable,' 
 
 On the other hand, the underwriters on ship are not 
 entitled to the benefit of an advantageous transhipment after 
 the wreck and abandonment of the original ship.* 
 
 In almost all cases of " loss or misfortune," the duty of Of the powers 
 acting for the benefit of all concerned, under the emergency, the master in 
 is thrown upon the master. If the casualty should prove to ^.o^e^t*^^'^" 
 
 be of such a nature as to justify the assured in giving notice ■ 
 
 of abandonment, a question may, and frequently does, arise 
 as to whose agent the master is in taking the steps which in 
 his judgment are necessary under the circumstances. This 
 is not the place for entering at any length into the discussion 
 of the question, which will be more fully noticed when we 
 come to treat of the subject of abandonment ; it will be 
 sufficient here to state the principle upon which it depends, 
 
 ' PerWilleB, J.jinKidstonf.Em- 357. 
 
 pire Marine Ins. Co., L. R., 1 C. P. ^ Matthews v. Gibbs, 30 L. J. 
 
 535. (Q. B.) 65. 
 
 ' Kidston v. Empire Marine Ins. * Hiokie ». Eodooanaohi, 4 H. & N. 
 
 Co., L. E., 1 0. P. 535 ; 2 C. P. • 455 ; 28 L. J. (Ex.) 273. 
 
364 THE shipmastee's powers. [part I. 
 
 •which is, that as the effect of a notice of ahandonment, if 
 accepted, or if made on good groirnds, -whether accepted or 
 not, is to Test the ownership of the ahandoned property in 
 the underwriter from the moment of the loss, the master 
 ■will he considered as the agent of the underwriter in all 
 acts done hy him from that time, -within the scope of the 
 authority given to him hy the policy, "to sue, lahour, and 
 travel," for "the defence, safeguard, and recovery of the 
 suhject insured."^ 
 
 If no notice of ahandonment is given, or none given 
 within due and proper time, the master in all that he does, 
 within the scope of his duty, is the agent of the assured.^ 
 
 ' See the iudgment in Fleming v. v. Leduc, L. E., 6 P. C. 224. 
 Smith, 1 H. L. Cas. 513 ; and per ' Fleming v. Smith, supra. 
 
 Privy Council in Provincial Ins. Co. 
 
CHAPTER VIII. 
 
 DESIGNATION OF THE RISK IN THE POLICY. 
 
 Voyage policy ... 365 
 
 what it is - - - - 365 
 description of voyage insured 368 
 
 Time policy - - - - 371 
 what it is - - - - 371 
 
 Usually the risk which is undertaken by the insurer is 
 defined by certain limits of time or certain points of locality.^ 
 When the risk is limited by time, the policy is called a time 
 policy ; when by local termini, it is called a voyage policy. 
 
 liinits of the risk - 
 
 - 371 
 
 Mixed policy ... 
 
 - 373 
 
 what it is - 
 
 - 373 
 
 construction and effect of 
 
 - 373 
 
 foreign law of - - 
 
 - 375 
 
 In voyage policies, which we shall consider first, the Voyage policy 
 terminus a quo, or place at which the risk commences, is "What it is. 
 usually, in the common policies on ship, the port of depar- 
 ture ; — in the common policies on goods, it is usually the port 
 of loading, which frequently, but not necessarily, is the same 
 place with the port of departure. The terminus ad quern, or 
 point at which the risk ends, is the port of the ship's des- 
 tination, or the port or ports of the cargo's discharge. 
 
 That which is limited or described in the pohcy, by these 
 termini, is the voyage insured {viaggium), — a technical term, 
 which must be carefully distinguished from the actual voyage 
 or course steered by the ship {iter navis).^ The distinction 
 is important. 
 
 The voyage insured {viaggium) is a transit at sea from the 
 terminus a quo to the terminus ad quern in a prescribed course 
 
 1 2 Emerigon, c. xiii. 39 ; 2 Be- 
 necke, System des Asseouranz, c. viii. 
 203, ed. 1807. 
 
 ^ Casaxegis, Disc. 67, no. 31, as 
 cited 2 Emerigon, c. xiii. s. 5, p. 60. 
 
366 
 
 VOYAGE POLICIES. 
 
 [PAKT I. 
 
 The voyage 
 of the ship. 
 
 DeTiation. 
 
 Abandonment 
 or change of 
 voyage. 
 
 niastiations. 
 
 The voyage 
 insured — and 
 the voyage of 
 the ship. 
 
 of navigation {iter viaggii), whicli is never set out in any 
 policy, but virtually forms part of aU policies, and is as 
 binding on the parties thereto equally as though it were 
 minutely detailed. The voyage of the ship {iter nam) is the 
 course of navigation on and in which the ship actually sails. 
 If the ship, in fact, sails in the prescribed course from the 
 terminus a quo to the terminus ad quern, the voyage of the ship 
 and the voyage described in the policy are identical, and the 
 underwriter has no defence upon this ground. 
 
 If the ship, without entirely abandoning the prosecution of 
 the voyage described in the policy {viaggium), yet voluntarily, 
 and without justifying cause, depart from the prescribed 
 course of that voyage {iter viaggii), this is a deviation, and 
 the underwriter is not liable for any loss that occurs after the 
 point (frequently called the dividing point) at which the ship 
 first quits the prescribed course. 
 
 If the ship either originally sail on a different voyage from 
 that described in the policy, or if, after sailing, she entirely 
 abandon all intention of prosecuting the voyage described in 
 the policy, this is a change or abandonment of voyage, which 
 avoids the policy from the moment the intention of so 
 abandoning it is definitely formed ; for it is an elementary 
 principle in this branch of insurance law, that the underwriter 
 cannot be liable for any loss which does not take place in 
 the course of prosecuting the very voyage described in 
 the policy.^ 
 
 The following simple illustrations may serve to place these 
 distinctions in a clearer point of view : — 
 
 1. As to the voyage insured, and the voyage of the ship : — 
 Suppose the ship to sail under a charter-party, on a voyage 
 from London to Sydney and back ; a merchant who expects 
 goods to be sent by her on her homeward voyage from 
 Sydney to London, effects a policy on them on board the 
 ship for a voyage "at and from Sydney to London;" — 
 in this case, the voyage of the ship is the round voyage 
 
 ' Rooous, no. 18, cited 2 Emerigon, c. xiii. p. 39. 
 
CHAP. VIII.] VOYAGE POLICIES. 367 
 
 from London to Sydney and back, that is out and home ; the 
 voyage insured, or rather (for this is the more accurate 
 mode of expression) the voyage on which the subject is 
 insured, is only the home voyage at and from Sydney to 
 London. 
 
 2. As to change of voyage and deviation : — A ship insured Deviation— 
 
 r» T 1 i-* • ■ -T- • Bjai change 
 
 on a voyage from London to Gadiz, sails from London with of voyage. 
 the intention of proceeding, not to Cadiz, but to Jamaica : 
 this is a change of voyage : and it is equally so if, after 
 sailing some distance with an intention of proceeding to 
 Cadiz, the assured changes that intention, and resolves to 
 proceed to Jamaica. 
 
 In either case, as the voyage insured ceases to exist directly 
 the purpose of prosecuting it is finally abandoned, any loss 
 accruing afterwards does not take place in the course of the 
 voyage described in the policy, and, consequently, not under 
 those conditions on which the underwriter agreed to be 
 responsible ; the policy, therefore, as to him, is a void contract 
 from that time.^ Although, in the ease supposed, the loss 
 takes place while the ship is still in the course that leads 
 indifferently to the original terminus ad quern (Cadiz), and 
 the substituted port of destination (Jamaica), yet the under- 
 writer is equally freed from liability, for the voyage insured 
 is broken up, not by altering its course, but by altering its 
 termini.^ 
 
 Again, supposing the ship to have been insured (say from 
 London to Jamaica), and the prescribed or customary course 
 of such voyage to be to sail to the south of St. Domiago, 
 instead of which the ship, without any clause in the policy 
 
 1 3 Boulay-Paty, Droit Mar. tit. x. gliani, 2 T. R. 30. 
 8. 9, p. 415. The citation here made from 
 
 ^ Si avant le depart, la destination Emerigon is in a section devoted 
 
 etaitchang^e, le voyage seraitrompu to the discussion of voijage rompu 
 
 et I'assurance serait nnUe,— etiamsi avmt le depart. We shall see here- 
 
 intra limites itineris destinati navis after (c. x. post) that in a different 
 
 Be contineat, dit Casaregis, Disc. 67, section this learned French author 
 
 no. 24, — ^Emerigon, 0. xiii. s. 11, vol. discusses voyage change, and that 
 
 ii. p. 82 ; confirmed by Woolridge v. Arnould cites from both sections 
 
 Boydell, 1 Dougl. 16; Way v. Modi- indifferently. 
 
368 
 
 VOYAGE POLICIES. 
 
 [part I. 
 
 permitting her to do so, or without any neoessity, or justifying 
 excuse, sails to the north of that island : this is a deviation. 
 Here the course actually taken by the ship (to- nam) differs 
 from the prescribed course of the voyage insured {iter viaggii) ; 
 the risk run is different from that which the underwriter 
 agreed to take upon himself ; and he is, therefore, Kable for 
 no loss that takes place after the ship has passed the 
 dividing point at which the track to Jamaica by the south of 
 St. Domingo branches off from that by the north.^ 
 
 By teimini. 
 
 Description of TJie voyage insured must be accurately described in a 
 
 the voyage </ o ^ */ ^ 
 
 ineiired in the voyage policy ; that is, the local limits of the risk, the 
 ^° ^^' terminus a quo, or port where the voyage is to commence ; 
 
 and the terminus ad quern, or port where it is to conclude, 
 must be each of them specified in the policy, which would 
 be vitiated by any material failure in this respect.^ If the 
 terminus ad quern or port of ultimate destination be left 
 in blank, though this were done for the purpose of deceiving 
 the enemy, and private instructions given to the captain as to 
 the port for which the ship was really destined, the policy is 
 nevertheless void.^ 
 
 Where there is any doubt as to the precise mercantile 
 limits of any place named in the policy as one of the 
 termini of the voyage, such doubt must be cleared up by 
 the evidence of mercantile men. For instance, whether the 
 Gulf of Finland is, by mercantile usage, deemed to be 
 within the Baltic;* or whether the Mauritius, although 
 regarded by geographers as belonging to Africa, be yet, in 
 
 Limits of 
 terminus. 
 
 ' The whole suhjeot of deviation 
 and change of voyage remains to be 
 considered more at length hereafter ; 
 meanwhile I cannot forbear directing 
 the attention of the student to the 
 thirteenth chapter of Bmerigon's 
 great work, an admirably arranged 
 magazine of legal learning and ac- 
 curate thought ; Boulay-Paty, in his 
 
 Droit Mar. vol. iii. tit. x. s. 9, has 
 done little more than copy his dis- 
 tinguished predecessor. 
 
 ' TJhde V. Walters, 3 Camp. 16. 
 
 ' 30 Vict. 0. 23, s. 7; MoUoy, 
 book ii. 0. 7, s. 14, cited 1 Marshall 
 on Ins. 328. 
 
 « tlhde V. Walters, 3 Camp. 16. 
 
CHAP. VIII.] VOYAGE POLICIES. 369 
 
 the common acceptation of mercantile men, one of the Bast 
 India Islands.^ 
 
 This description of the voyage insured by its termini is 
 all that is necessary in the policy. More is not requisite, or 
 ever attempted; the track which the ship ought to take, 
 being fixed by general usage, is received as familiar to all 
 mercantile men, and is held as binding upon the parties to 
 the policy as though it were therein f uUy described in detail. 
 All the more need is there that the termini of the voyage 
 insured be clearly specified in the policy. 
 
 Beside the termini, however, of the proposed voyage, if it Ports of call, 
 be desired that the ship should have the power of putting 
 into intermediate ports or places, the permission to do so 
 must be clearly expressed in the policy by a clause setting 
 out the ports where and the purposes for which the ship is to 
 have this power, together with the order in which they are to 
 be visited. Of these clauses and their construction we shall 
 treat at large elsewhere. 
 
 As appears by the common printed form of policy, the Policy at and 
 voyage insured is in this country generally made to com- 
 mence, not simply "from," but "at and from" the terminus 
 a quo. The reason for this is, that, under an insurance 
 simply from the terminus a quo, the voyage insured, and 
 consequently the risk, does not commence until the ship 
 actually sails on her voyage from that port ; whereas, under 
 the mode of insurance commonly adopted, by virtue of the 
 word at the ship is protected during the whole time that she 
 is in the port or harbour of the terminus a quo preparing for 
 the voyage insured.^ 
 
 Ships are very frequently insured in one policy and at one One entire 
 fixed premium, for the round voyage out and home. In JevCTal° 
 
 ' Eobertson ». Clarke, 1 Bing'. 445 ; ^ Motteux v. London Ass. Co., 
 
 see note at the end of the report, p. 1 Atkyns, 545 ; Forbes v. Wilson, 1 
 451, ibid. Marshall, Ins. 148. 
 
 M. B B 
 
370 VOYAGE POLICIES. [PART I. 
 
 Buch. cases, the form generally adopted is to insure " at and 
 from" the home port of loading "to" the out port of 
 discharge, "and at and from" such out port (naming it), 
 or "at and from thence," back agaia to the home port or 
 any other port of discharge which the parties may agree to 
 name. 
 
 When the ship is thus insured for a voyage out and home, 
 although she makes two separate passages (itinera), — ^froni 
 the home to the out port and then back again, — yet the 
 voyage insured (viaggium) is one and indivisible, and the 
 underwriter is responsible for any loss that may happen in 
 the whole course of its duration. The voyage insured is one, 
 though the passages made by the ship are several. 
 
 This principle, which is incontestably established in the law 
 of Mariae Insurance, is thus expressed by Gasaregis : — 
 Falsum est omnino in casu nostro quod itus et reditus 
 considerari debent pro diversis viagiis, sed pro unica tantum 
 navigatione vel viaggio. Quia viaggium vel navigatio, cum 
 sit nomen juris ac universale, potest complecti ^/t«ra itinera.'^ 
 This is so, moreover, however complicated the voyage may 
 be by liberty to touch and stay at intermediate ports, or by 
 being broken up into a variety of successive stages.^ A ship 
 was insured " at and from Honfleur to the coast of Angola, 
 during her stay and trade there, at and from thence to her 
 port or ports of discharge in St. Domingo, and at and from 
 St. Domingo back again to Honfleur," at a premium of 
 eleven per cent., and Lord Mansfield and the Court of Bang's 
 Bench determined, on great consideration, that as the pre- 
 mium here was entire and indivisible, so it was one voyage 
 and one entire risk.^ 
 
 ' Disc. 67, no. 28, cited by Erne- queequ'eIlesoit,constitueun voyage 
 
 rigon, 0. xiii. d. 3, vol. ii. p. 63. For simple: on consid^re moins le voyage 
 
 an illustration of this in our own juris- du navire que celui qui est determine 
 
 prudence, see Bermon J). Woodbridge, par la police; 2 Emerigon, e. xiii. s. 3, 
 
 2 Dougl. 781. p. 52. 
 
 2 En matifere d'assurance toute * Bermon ». Woodbridge, 2 Dougl. 
 
 navigation assuree, quelque Compli- 781. 
 
CHAP. YIII.] TIME POLICIES. 371 
 
 When the ship is to be employed on cruising, coasting, or Time policy. 
 
 fishing voyages, or on other adventures, which, from their What it i 
 nature, it would be inconvenient, or even impossible, to 
 designate by local termini, it is very usual to limit the risk 
 to a certain fixed period of time specified in the policy, 
 which is then called a time policy.^ It must be added, 
 however, that in these words we have rather described the 
 occasions in which this policy originated than the present 
 use of it, which is now much more general and still 
 increasing. 
 
 In such policies the risk insured is entirely independent of 
 the voyage of the ship {iter navis),^ and the policy covers any 
 voyage whatever which the ship may make, and any loss or 
 damage she may sustain by the perils insured against within 
 the space of time limited in the policy.' This assumes, 
 however, that the policy contains no exceptions of certain 
 geographical limits for certain seasons of the year, a feature 
 now become very common ; for in that case a loss within the 
 excepted limits of time and space, would not be covered by 
 the policy.* 
 
 The two extremes of the time are the termini of the Beginning, 
 risk ; and the adventure begins and ends with the term, and cessation 
 wherever the ship may then happen to be, and whether the ° * « "^ • 
 object of the voyage be then accomplished or not.^ The 
 risk once begun under a time policy, necessarily ceases 
 when the time limited in the policy comes to an end.^ 
 
 1 2 Emerigon, o. viii. s. 1, p. 41 ; obligationis et consequenter oHi- 
 2 Beneote, System des Asaecuranz, gatio, qviia post tempus, jam alia 
 442. est materia, alia res ; 3 Dumoulin, 
 
 2 2 Benecke, 446. 283, cited 4 Bolilay-Paty, Droit. 
 
 3 3 Kent, Com. 307, note. Mar. 170. 
 
 * Birrell v. Dryer, 9 App. Cas. 345. " H suffit que le risque ait oom- 
 
 5 Oasaregis, Disc. Ixvii. no. 31, mence pour qu'il finisse au tems 
 
 cited 2 Emerigon, u. xiii. s. 1, p. 42. presorit ; 2 Emerigon, u. xiii. s. 1, 
 
 Lapse tempore extincta est materia p. 41. 
 
 BB 2 
 
372 
 
 TIME POLICIES. 
 
 [part I. 
 
 May be retro- 
 spective. 
 
 Supposed 
 doctrine of 
 Meretony v. 
 Dnnlope 
 overruled by 
 Knight V. 
 Faith. 
 
 From the instant tliat the policy attaches, the insurer's right 
 to the full premium is complete, and the right of the assured 
 to a full indemhifioation in case of loss.^ Thenceforth there 
 is no suspension of the risk, whether the ship he at sea or in 
 port ; it continues to run until the expiration of the period 
 insured.^ 
 
 A time policy, like a voyage policy, may he effected retro- 
 spectively if it contain the clause "lost or not lost;"' as 
 where a policy was effected in August, 1807, " to commence 
 from 1st August, 1806," on a ship engaged in the Southern 
 whale fishery, which had sailed on her voyage in 1805.* 
 
 On general principles, it is clear that the underwriters on 
 a time policy ought to he liable for any loss which happens 
 within the limits of the time. But it is supposed to have 
 been laid down in Meretony v. Dunlope that where damage 
 is caused within the limits of the time, and the extent of it 
 not ascertained till afterwards, the underwriter is not liable. 
 The case, as shortly stated by Willes, J., was that of an 
 insurance for six months on a ship which received her 
 death-wound three days before the expiration of the period, 
 but was kept afloat by pumping till three days after it had 
 expired ; the verdict for the underwriters was confirmed by 
 the Court.' In Knight v. Faith,^ however, which raised the 
 same point for decision in more recent times, Lord Campbell, 
 in delivering judgment, intimated considerable doubt whether 
 the doctrine supposed to be established by Meretony v. 
 Dunlope was ever laid down by Lord Mansfield, and laid 
 down what the Court deemed to be the correct doctrine 
 thus : — " If a ship insured for time, during the time receive 
 damage from the perils of the seas, though the amount 
 thereof be not ascertained till the expiration of that time. 
 
 ' Tyrie v. Fletcher, 2 Cowp. 666 ; 
 Loraiue «. Thomlinaon, 2 Bougl. 
 S8S. 
 
 ' 2 Emerigon, o. xiii. s. 1, p. 41 : 
 see to the same effect, Syers v. Bridge, 
 2 Dougl. 627. 
 
 ' These words are not deemed in- 
 
 dispensable ; ante, p. 236. 
 
 « Hucks V. Thornton, Holt's N. P. 
 30. 
 
 ' Meretony v. Dunlope, stated by 
 Willes, J., in giving' judgment in 
 Lockyer ». Offley, 1 T. R. 260. 
 
 » Knight ». Faith, 15 Q. B. 649. 
 
CHAP. VIII.J MIXED POLICIES. 373 
 
 and she is kept afloat till then, upon the assured taking 
 proper steps, there does not appear any good reason why 
 they may not, according to the facts, proceed against the 
 underwriters either for a total or for a partial loss." ^ 
 
 England appears to be the only commercial state in which Limited in 
 any restriction is placed on the duration of time policies. In one^year. ° 
 France,^ Hamhurg,* Sweden,* and Prussia,' marine insurances 
 on time are expressly allowed without any limitation as to 
 their extent ; and the law is the same in the United States of 
 America.^ 
 
 In England the law is, that " no policy shall be made for 
 any time exceeding twelve months, and every policy which 
 shall be made for any time exceeding twelve months shall be 
 null and void to all intents and purposes.' 
 
 The policies we have Just been considering are purely time Mixed policies 
 policies, in form and in effect, the limits of the risk being 
 defined in the policy by points of time only, without any 
 designation of local termini at all; policies, however, are 
 sometimes, though not very frequently, made, in which not 
 only the time is specified for which the risk is limited, but 
 the voyage also is described by its local termini.^ As, for 
 instance, " at and from London to Cadiz for six months," or 
 " from the 1st of January, 1885, to the 1st of June, 1885, at 
 and from Bristol to Marseilles," &c., or " from the 1st of 
 January, 1870, at and from Liverpool to New York." 
 
 These policies are neither time nor voyage policies, but Construction 
 partake of the nature of both, and, for the sake of con- such^mixed 
 venience, may be called mixed policies. They are time po^i'^'es. 
 
 1 13 Q. B. 667. Grerman Code, art. 834. 
 
 2 Ord. Mar., liv. 3, t. vi. art. 34 ; « 1 Phillips, Ins. no. 949, note. 
 Co. Com. 363. ' 30 Vict. c. 23, s. 8 ; Lishman v. 
 
 2 Insurance Ordinance, tit. v. art. Norttem Marit. Ins. Co., L. B., 8 
 
 IS. C. P. 216. 
 
 * Insurance Code, art. 6, s. 15. * Way v. Modigliani, 2 T. K. 30 ; 
 
 5 Prussian Code, s. 2] 72-21-76; Robertson d. French, 4 East, 130, 
 
374 MIXED POLICIES. [pART I. 
 
 policies in this, that the underwriter is not liable for any 
 
 loss to the subject of insurance, unless it occur within the 
 
 limits of the time specified in the policy: and they are 
 
 voyage policies in this, that the underwriter is not liable for 
 
 any loss unless the ship originally sailed on the voyage 
 
 described in the policy, and at the time of the loss be 
 
 sailing on the prescribed course between the termini of such 
 
 voyage. 
 
 Whether Thus, as we have already seen, where a Newfoundland 
 
 the policy a ^\ t 
 
 attaches. ship was insured " at • and from the 20th of October, from 
 
 any ports in Newfoundland to Falmouth, or her port or 
 
 ports of discharge in England ; " it was held, that although 
 
 under this policy the ship need not have been in any port 
 
 in Newfoundland on the 20th of October, yet, in order to 
 
 make the policy attach at all, the ship must have originally 
 
 sailed on the voyage insured, and that as in this case she 
 
 had not done so, the assured could not recover, though the 
 
 loss took place after the 20th of October, and when the ship 
 
 had already got into the course of the voyage described in 
 
 the policy.' 
 
 So it has been held in the United States, where a brig 
 was insured "from Calais, in Maine, on the 16th day of 
 July, to, at, and from all ports to which she might proceed 
 in the coasting trade for six months," that although the 
 brig was not at Calais on the 16th July, but had been there 
 subsequently within the six months, the policy attached on 
 the 16th July; " for it was the clear intent of the parties to 
 insure on time, without regard to place where the vessel 
 might then be, but only with regard to the employment in 
 which she was engaged, viz., the coasting trade." ^ 
 
 So where insurance was effected on a ship for one year 
 " at and from Boston to Charlestown ; " and it appeared that 
 the ship, covered by a prior policy on time, had sailed from 
 Boston before such prior policy had expired, the second 
 
 ' Wajv. Modigliani, 2 T. Eep. 30. Pickering's E. 389, cited 1 Phillips, 
 " Martin v. FiBhingr Ins. Co., 20 Ins: no. 928. 
 
CHAP. YlU.j MIXED TOIJCIES. 375 
 
 policy was held to attach while the ship was at sea on the 
 voyage, immediately upon the expiration of the first.^ 
 
 A policy was effected on ship, " to, at, and from one or 
 more ports in the glohe, for one year, commencing the risk 
 at Barhadoes the 7th of December, 1810, to continue till the 
 vessel should he arrived and moored at anchor twenty-four 
 hours in safety within the year aforesaid." The vessel was 
 not at Barhadoes, as supposed by the policy, hut the Court 
 said, her being so was immaterial, and that the risk would 
 end with the year without any regard to her being in any 
 port, either at that time or before ; the beginning, duration, 
 and end of the risk being well enough described, without 
 any regard to the place where it was to commence, or to the 
 vessel being safe in port.^ 
 
 A policy " at and from the Port of Pomaroa to Newcastle, 
 and for fifteen days whilst there after arrival," was held to 
 be a mixed policy, and consequently that a loss which 
 happened after the voyage was completed, but within the 
 fifteen days, and while the ship was within the port of New- 
 castle, was covered by it.' 
 
 Where any sea insurance is made for a voyage and also for stamp duty, 
 time, or to extend to or cover any time beyond thirty days 
 after the ship shall have arrived at her destination, and been 
 there moored at anchor, the policy is chargeable with duty as 
 a policy for a voyage, and also with duty as a policy for 
 time.* 
 
 The law of France, under the Ordonnanee of 1681, differed Law of 
 from the maritime law of almost all other countries,' in 
 providing that under policies in this form, if the voyage 
 were not completed at the expiration of the time, the risk 
 should still continue, the underwriter receiving an increase 
 
 I See 1 Phillips on Ins. no. 928. the judgment helow, ibid. 8. 
 
 ■= Manley v. United Marine and * 30 Vict. u. 23, b. 11 ; as amended 
 
 Fire Ins. Co., 9 Massa. B. 85, cited by 47 & 48 Vict. c. 62, b. 8. 
 1 Phillips, no. 928. * 2 Benecke, System des Assecu- 
 
 3 Gambles v. Ocean Mar. Ins. Co. ranz, 44S. 
 of Bombay, 1 Ex. Div. 141, reversing 
 
376 MIXED POLICIES. [PART I. 
 
 of premium in proportion to the increased duration of the 
 risk.* 
 
 This provision, however, of the former law was designedly 
 omitted from the Code de Commerce, on the ground, as stated 
 by the codification committee, that to compel the underwriter 
 to continue the risk beyond the Hmit of time fixed in the 
 policy would be unjust, because the only meaning of its 
 insertion must be to exempt him from liability beyond a 
 certain fixed period.^ 
 
 ' Ord. liv. 3, tit. vi. art. 35. that the risk shall oontimie after 
 
 ^ 4 Boulay-Paty, Droit Mar. 172, the expiration of the time at a pro- 
 
 173. Boiilay-Paty himself prefers portionate increase of premimn. He 
 
 the provisions of the old law, and says such policies are of frequent use 
 
 considers it advisable to introduce in the Mediterranean and Levant 
 
 a special clause into all such policies, trade. 
 
CHAPTER IX. 
 
 DUKATION OF THE RISK UNDER THE POLICY. 
 
 Duration clause - . - 377 
 efleotof - - - - 377 
 
 In respect of goods - 378 
 
 oommeaoement of risk - - 378 
 continuance and end of risk - 389 
 
 In. respect of ship - - - 403 
 
 commenoement of risk - - 403 
 
 continuance and end of risk - 412 
 
 In respect of freight - - 432 
 
 commencement of risk - - 432 
 
 as to freight proper - - 432 
 
 chartered hire - - 439 
 
 The clause describing the voyage by its termini is distinct Duration 
 in our English policies from that which defines the commence- ° "'^^' 
 ment, continuance, and end of the risk. This latter clause, 
 upon the construction of which the nature of the contract 
 between the parties so materially depends, is in the statutory 
 form of policy as foUows : — " Beginning the adventure upon 
 the said goods and merchandises, from the loading thereof 
 ahoard the said ship upon the said ship, 
 
 &c. , and shall so continue and endure, 
 
 during her abode there, upon the said ship, &c., and further, 
 until the said ship with all her ordnance, tackle, apparel, &o., 
 and goods and merchandises whatsoever, shall be arrived 
 at , upon the said ship, &c., until 
 
 she hath moored at anchor twenty-four hours in good safety, 
 and upon the goods and merchandises until the same be there 
 discharged and safely landed." 
 
 As there are many decisions in our books on the con- Effect of this 
 struotion of this clause, and as the duration of the risk varies ° ^'"®' 
 upon the different subjects of insurance, it will conduce to 
 clearness if we consider the subject of this chapter in relation 
 to— 1. The goods; 2. The ship; and 3. The freight. 
 
378 
 
 DURATION OF THE RISK 
 
 [part 
 
 Duration of 
 the risk on 
 goods. 
 
 Commenoe- 
 meat of risk. 
 
 In considering the duration of the risk on goods, we 
 begin with the commencement of such risk. The policy- 
 runs, — " Beginning the adventure upon the said goods and 
 merchandises, from the loading thereof aboard the said 
 ship." 
 
 The common form of policy in this country, from which 
 these words are taken, affords no protection against those 
 dangers to which the goods are exposed in being carried in 
 boats or lighters from the quays or wharfs of the port of 
 loading to the ship's side. In this respect our law differs 
 from that of almost all the Continental states, which either 
 decree by their ordinances, or stipulate in their policies, 
 that the risk of the underwriters on goods shall commence 
 directly the goods leave the shore, in order to be loaded on 
 board the ship.^ 
 
 There is no bar, however, in this country against protect- 
 ing goods during this transit from quay to ship by an express 
 
 ' Thus, the law of Hamburg pro- 
 vides that the risk on goods shall 
 begin immediately from the time the 
 goods leave the shore (da das G-ut 
 vom Lande sohiedet), and continue 
 till they are landed again in safety at 
 their place of destination. (Assecu- 
 ranz-ordnung, tit. v.art. 11, 13.) The 
 insurance regulations of 1847 add: — 
 ' ' The insurer is not responsible for 
 loss caused by any mode of conveying 
 goods from ship to shore, not usual 
 at the port of discharge, unless in- 
 formed that it -will be resorted to." (1 
 Nolte's Benecke, 643.) By the Ant- 
 werp policies, ' ' The risk on merchan- 
 dise begins from the moment they 
 are loaded in the ship, or in lighters 
 to convey them there, and continues 
 tiU landed at the port of discharge." 
 (Vauoher, Guide, 16.) The ordi- 
 nances of Amsterdam (art. 5), of 
 Rotterdam (art. 46, 47), and of Spain 
 
 (Code, art. 835, 871), go even farther, 
 and declare that the risk on goods 
 shall commence from the time they 
 are brought down to the 6[uay or 
 wharf in order to be loaded on board. 
 The Stockholm policies agree with 
 these latter ordinances. (See Vau- 
 cher. Guide, 172.) The Prussian 
 code (Tit. Versicherungen, § 2184, 
 2185) makes the risk commence from 
 the loading on board of ship, or the 
 lighters that are to convey them 
 thither ; and the French Code de 
 Com. (art. 328, 341) contains exactly 
 the same provision: and see 3 Boulay- 
 Paty, Droit Mar. 418-420 ; see also 
 2 Emerigon, o. xiii. s. 2, p. 48 ; 
 and 2 Benecke, des Assecuranz, p. 
 205 ; 1 Nolte's ed. 641-646. By the 
 German code the insurers undertake 
 the risk of lighters when the use of 
 such craft is in accordance with the 
 custom of the port ; art. 828. 
 
CHAP. IX. j ON GOODS. 379 
 
 clause in tlie policy, properly framed for the purpose. Thus, 
 in a policy on goods at and from St. Petersburg to London 
 there was this clause: "Beginning the adventure on the 
 said goods from and immediately following the loading 
 thereof on board boats at St. Petersburg," and it was not 
 dis'puted that under it the risk on goods commenced directly 
 they were put on board boats at St. Petersburg to be loaded 
 (in the usual course of trade there) on board the ship at 
 Cronstadt.^ 
 
 The clause in the policy runs, — " From the loading thereof Prom the port 
 on board the said ship at," &c. Upon these words it has ° °' 
 
 been frequently decided that a policy on goods for a voyage 
 "at and from" a specified terminus in which the risk is 
 expressed to begin " from the loading thereof on board the 
 ship " in the common form, will attach only on goods loaded 
 on board at the very place named as the terminus a quo 
 of the voyage.^ It is so held although it appear from 
 extrinsic evidence that the underwriters knew the goods had, 
 in fact, been loaded on board prior to the ship's arrival at the 
 place specified as the terminus a quo of the voyage, and that 
 it was the intention of the assured by the policy to protect 
 the goods so loaded elsewhere.' Most of the cases arose 
 during the wars of the French Eevolution, when, in conse- 
 quence of Napoleon's Berlin and Milan decrees, goods really 
 
 • Hurry v. Eoyal Exoh. Ass. Co., Mellish v. Andrews, 2 M. & Sel. 
 
 2 B. & P. 430 ; see per Heath, J., 106 ; Eiokman v. Carstairs, 5 B. & 
 
 ibid. 435. The general law of Russia Ad. 651. These decisions have not 
 
 is (like our own) , that the underwriter met with approval recently, see Carr 
 
 on goods shall not be liable for any v. Montefiore, post, p. 381. 
 loss in the course of transporting the ' Per Bayley, J., in Grladstone v. 
 
 goods from shore to ship, except by Clay, 1 M. & Sel. 423 ; per Lord 
 
 virtue of a special clause in the policy. t)enman, in Hickman v, Carstairs, 5 
 
 Imperial Shipping Ordinance of Rus- B. & Ad. 65 1, 663 ; and see the facts 
 
 sia u. 10, s. 183; Nolte's Benecke, of Robertson t;. French, 4 East, 130; 
 
 vol. i. p. 646. Spitta v. Woodman, 2 Taunt. 416 ; 
 
 - Robertson e. French, 4 East, 130 ; Langhom v. Hardy, 4 Taunt. 628, in 
 
 Spitta f. Woodman, 2 Taunt. 416; all which it plainly appeared that the 
 
 Homeyera. liushington, 15East,46; underwriters knew the goods had 
 
 Langhom v. Hardy, 4 Taunt. 628 ; been previously loaded. 
 
380 
 
 DUKATION OF THE RISK 
 
 [part I. 
 
 Spitta V. 
 Woodman. 
 
 Kickman v, 
 Carstairg. 
 
 shipped in this country were insured as if shipped at some 
 Baltic port. 
 
 Thus, to take one case as an illustration of many ; a cargo 
 insured " at and from G-ottenburg to the ship's port or ports 
 of discharge in the Baltic," with the usual clause, " begin- 
 ning the adventure on the said goods from the loading 
 thereof on board the said ship," had been loaded at London, 
 carried to Gottenburg, and without being taken out and 
 reloaded there, was proceeding thence when it was captured. 
 Although the policy on which the action was brought was 
 in continuance of another policy from London to Gotten- 
 burg, effected with the same underwriter, as he weU knew, 
 the Court felt bound by the express words of the policy to 
 hold that as the goods had been loaded on board, not at 
 Gottenburg, the fer minus a quo of the voyage insured, but 
 at a previous port, the policy never attached at all, and that 
 the assured could recover nothing.^ 
 
 In this case the risk was on the goods " from the loading 
 thereof on board the ship," without saying where ; of course, 
 if the risk is from their being " loaded on board the ship at " 
 the terminus a quo or other place named, the reason for a 
 strict construction of the policy is still more cogent.^ 
 
 The rule of construction was not relaxed in the more 
 recent case of Eickman i\ Carstairs. That was an action on 
 a policy on ship and goods for a homeward voyage " at and 
 from the coast of Africa " to the ship's port of discharge in 
 the United Kingdom, beginning the adventure on the goods 
 " from the loading thereof aboard the said ship twenty-four 
 hours after her arrival on the coast of Africa ; " and it was 
 held by Lord Denman and the Court of King's Bench, that, 
 in the absence of anything upon the face of the instrument 
 
 ' Spitta».'Woodmaii,2Taiiiit.416; 
 8. C, 16 East, 188, note. See also 
 Mellisli V. AUnutt, 2 M. & Sel. 106, 
 wheie the risk was also made to begin 
 " from the loading on board ship," 
 without more. 
 
 '' See accordingly Robertson v. 
 
 French, 4 East, 130; Homeyer v. 
 Lushington, 15 East, 46; Iianghom 
 V. Hardy, 4 Taunt. 628, in all of which 
 the risk was made to commence from 
 the loading on board at a place 
 named. 
 
CHAP. IX.] ON GOODS. 381 
 
 to sliow the contrary, this policy did not attach on part of 
 the outward cargo, loaded at her port of departure in this 
 country, although still remaining on board on the coast of 
 Africa more than twenty-four hours after her arrival there 
 and at the time of the loss. " It appears very likely," said 
 Lord Denman, " that the assured intended hy this policy to 
 insure both the outward and homeward cargo : unfortunately, 
 however, they have used words which wiU not, we think, 
 effectuate that intention. The question in this and other 
 cases of the construction of written instruments is, not what 
 was the intention of the parties, but what is the meaning of 
 the words they have used." ^ 
 
 The application of this rule to some of these cases has TheCourta 
 lately been the subject of severe animadversion. " In the opport^Sy 
 several Gottenburg cases it seems to me," says Erie, C. J.,^ afiorded by ^ 
 " that a construction was put on the policies so as to defeat modifying 
 the intention of the parties." Cockbum, 0. J., in the same rule, 
 case below,^ expresses a hope that it might be brought under 
 the consideration of the highest Court of Appeal. And Lord 
 EUenborough, 0. J., himself an assisting party in the esta- 
 blishment of this construction, says of it, " A very strict and 
 certainly a construction not to be favoured, and still less to 
 be extended, was adopted in Spitta v. Woodman. But if 
 there be anything to indicate that a prior loading was 
 contemplated by the parties, it will release the case from 
 that construction."* 
 
 Accordingly, where a policy on American produce " at and Bell v. Hob- 
 from Grottenburg to any ports in the Baltic, beginning the 
 adventure on the goods from the loading thereof on board 
 the ship," was expressed to be " in continuation of five other 
 policies," and these were on the same cargo for a voyage 
 
 > Eiokmaa v. Carstairs, 5 B. & Ad. ' Id., ibid. 57 ; 5 B. & S. 408, 425. 
 
 651, 662, 663. * Bell«;. Hobson, 16 East, 240, 248; 
 
 ^ Carr & Joding v. Montefiore, 33 S. C, 3 Camp. 273. 
 L. J. (Q. B.) 256. 
 
382 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 Grladstone v. 
 Clay. 
 
 from Norfolk in Yirginia to Gottenburg, Lord Ellenborongh 
 held tliat the poHcy attached.^ 
 
 So a policy of re-insurance was in such terms as would 
 have brought it within the rule in Spitta v. Woodman ; but 
 it was expressly made " subject to all clauses and conditions 
 of the original policy," and as the original policy, being 
 upon goods embarked in the barter trade on a voyage to 
 Africa and back, stipulated that outward cargo should be 
 considered homeward interest twenty-four hours after the 
 ship's arrival at her first port of discharge, it was held that 
 the policy of re-insurance was qualified by the terms of the 
 original policy, and had attached on the goods, although not 
 loaded on the coast of Africa, but at Liverpool.^ 
 
 Lord EUenborough had, in Bell v. Hobson, suggested the 
 introduction of the words "wheresoever loaded," as a way 
 of adapting the policy to the purposes of the parties. 
 Accordingly, a policy on cargo for a homeward voyage " at 
 and from Pemambuco to Maranham, and at and from thence 
 to Liverpool," — " beginning the adventure on the said goods 
 from the loading thereof on board the said ship wheresoever," 
 was held, in virtue of this word wheresoever, to protect a 
 portion of the outward cargo loaded at Liverpool, and still 
 on board at the time of the loss while on her way from 
 Pemambuco to Maranham, not having foimd a market at 
 Pemambuco.' 
 
 Constructive 
 loading. 
 
 Another instance of the disposition of the Courts to seize 
 any opportunity of relieving the parties against the effect of 
 their own negligence and the above general rule of construc- 
 tion, in favour of their intention, is where there is such a 
 landing and re-loading, or this and such a new direction and 
 destination given to the adventure at the intermediate port 
 as may be construed a "loading on board" at that port 
 within the meaning of the policy. 
 
 1 Bell V. Hobson, 16 East, 240 ; 3 
 Camp. 272 ; S. 0. at N. P. 
 - Joyce V. Kealm Ins. Co., L. R., 
 
 7 Q. B. 580. 
 
 ' Gladstone v. Clay, 1 M. & Sel. 
 418. 
 
CHAP. IX.] ON GOODS. SSS^ 
 
 Thus, under a policy on ship and goods " at and from Nonnon v. 
 Landscrona to Wolgast," beginning the risk on the goods ^^**^^^^^- 
 "from the loading on board the ship," the goods, though 
 previously loaded on board at Grottenburg, were partly 
 taken out of the hold on the ship's arrival at Landscrona, 
 and landed on the quay there, so as to enable the custom- 
 house officers to ascertain the quality of the whole cargo and 
 adjust the duties on it, after which they were reloaded on 
 board, Lord Ellenborough held that this unloading and 
 reloading distinguished the case from that of Spitta v. 
 Woodman, and was sufficient to make the policy attach on 
 the goods at and from Landscrona.^ 
 
 Accordingly, under a similar poHoy on goods " from a port Carr and 
 or ports in the Eiver Plate," where so much of the cargo was Montefiore. 
 landed at Monte Video as to allow of repairs to the fore-peak 
 of the ship and then reloaded, it was held that this satisfied 
 the clause " from the loading thereof on board," although it 
 was a cargo of guano that had been originally shipped at 
 Liones Island in Patagonia. Cockburn, C. J., however, said 
 he relied more upon the additional fact that at Monte Video 
 after the repairs, both ship and cargo had changed hands by 
 sale, and a new destination was given to the adventure by the 
 purchasers.^ 
 
 In the United States, where the construction put upon this in the United 
 clause is as strict as in our own Courts, it has been held that 
 merely hoisting the goods from the hold to the ship's deck at 
 the terminus a quo of the voyage insured, in order to make 
 room for other goods there taken in, and then re-stowing 
 them, is not equivalent to a loading on board at such 
 terminus so as to make the policy attach on those goods.' 
 
 ' Nonnen v. Kettlewell, 16 East, average," the objection, at all events 
 
 176. In this case it was objected in this case, would not apply, 
 
 that the cargo had not been so far nn- * Caxr & Josling v. Montefiore, 33 
 
 loaded as to ascertain what amount-of L.- J. (Q. B.) 57 ; aflarmed (in error), 
 
 sea damage it had sustained on the ibid. 256; 5 B. & S. 408, 425. 
 
 voyage from its prior port of loading; ' Murrayji.Columbianlns. Co., 11 
 
 but Lord EUenborough held that'as Johnson, 302, cited 1 Phillips, Ins. 
 
 the goods were "warranted free of no. 939. 
 
d84 
 
 DURATION OF THB RISK 
 
 [part I. 
 
 Mr. Phillips seems to think that if the goods in this case had 
 been landed on the wharf and then taken on hoard again, the 
 Court would have construed it a loading on hoard within the 
 meaning of the poHcy.^ 
 
 Rule not 
 applicable 
 ■?mere liberty 
 to touch, stay, 
 and trade. 
 
 Violett ». 
 Allnutt. 
 
 Barclay v. 
 Stirling 
 
 The strict rule of construction does not prevail where, 
 the voyage heing a trading or bartering voyage, the policy 
 contains a liberty " to touch, stay, trade, &c." or any other 
 clause of that kind ; for in such cases it is obvious, on the 
 face of the policy itself, that it must have been contemplated 
 by the parties that other goods would be put on board in 
 the course of the voyage than those loaded at the port of 
 departure, and that they intended to protect such goods by 
 the policy. Wherever, therefore, it can fairly be deduced, 
 from the whole construction of the policy, that the parties 
 contemplated loading, unloading, bartering, or trading with 
 goods at any intermediate ports in the course of the voyage 
 insured, the policy attaches, not only on goods loaded on 
 board at the port of departure, but also on those loaded on 
 board at any of the ports where the ship is empowered to 
 touch and trade under the terms of the policy, or where, 
 upon a true construction of the whole instrument, it must be 
 presumed that such a loading was contemplated.^ 
 
 Thus, if a ship has liberty by such a policy to touch at a 
 specified port, it attaches on goods loaded on board at that 
 port, in order to complete the cargo.' So, a freight policy 
 with liberty " to caU, exchange, or take on board goods " at 
 any West India island between the original port of loading 
 and the ultimate port of discharge, attached on fresh goods 
 loaded on board the ship at a port of distress, in order to 
 replace part of the original cargo, which had been washed 
 
 ' 1 PhilUps, Ins. no. 939. 
 
 ■• 2 Emerigon, u. xiii. s. 8, p. 72 ; 
 Pothier d' Assurance, no. 63 ; 2 Valin, 
 liv. 3, tit. vi. art. 27, p. 78, estabUsh 
 the principle ; Violett v. Allnutt, 3 
 Taunt. 419 ; Grant v. Belaoonr, 1 
 
 Taunt. 466 ; Grant v. Paxton, ibid 
 463 ; Barclay i;. Stirling, 5 M. & Sel 
 6 ; Hunter v. Leathley, 10 B. & Or 
 858 ; affirmed (in error), 7 Bing. 617 
 ^ Violett V. Allnutt, 3 Taunt. 419 
 
CHAP. IX.] ON GOODS; 385 
 
 out of her as the ship lay ashore.^ So, in the case of Hunter Hunter v. 
 V. Leathley^ the policy attached on goods shipped on board ^ ^' 
 to complete the cargo at a port lying diametrically out of the 
 course from the original port of loading to the ultimate ports 
 of discharge ; it was not named in the policy, hut yet was 
 embraced within its very extensive terms. Lord Tenterden 
 intimated in the same case, that in policies on trading 
 voyages all places mentioned after the words with " liberty 
 to touch, &c.," may be considered as loading ports, ports, that 
 is, at which, if goods are loaded, they will be protected by 
 the policy." 2 
 
 An East India captain, to protect his interest in the Grant «. 
 adventure out and home, effected a policy " on goods as 
 interest should appear, at and from London to all ports or 
 places on this or the other side of the Cape of Good Hope 
 forwards and backwards at sea, at all times, on all services, 
 and all ports and places, until the ship's arrival back again 
 to her last station of discharge at Blackwall or Deptford — 
 beginning the adventure on the said goods from the loading 
 thereof on board the said ship at London." The Court con- 
 sidering that these voyages were for the purposes of trading 
 and barter, held, that the policy attached upon any goods 
 which the captain might acquire by trading with his outfit in 
 the course of the voyage described in the policy, wherever 
 they might be loaded on board.' 
 
 The same captain, to protect his interest for the home- Grants, 
 ward voyage, effected an insurance " on goods at and from 
 China to all or any other ports or places whatsoever, or 
 wheresoever, in the East Indies, Persia, or elsewhere beyond 
 the Cape of Grood Hope, in port or at sea, in all places, at all 
 times, and in all services, until the ship's safe arrival in 
 London — beginning the adventure upon the said goods from 
 the loading thereof on board at China ; — with liberty for 
 j:he ship in that voyage to proceed and sail to, and touch 
 and stay at any ports or places whatsoever, for any purposes 
 
 1 Barclay v. Stirling, 6 M. & Sel. 6. 858 ; (in error) 7 Bing. 617. 
 ^ Hunter v. Leathley, 10 B. & Cr. "^ Grant v. Delaoour, 1 Taunt. 466; 
 
 M. C C 
 
 Paxton. 
 
386 DUKATION OF THE RISK [PAKT T. 
 
 whatsoever, without being deemed a deviation." With a 
 cargo of tea originally loaded on board at China for the 
 homeward voyage, the ship was obliged to put into Bombay 
 to repair ; the tea cargo was sent on to England in another 
 vessel, and the captain having repaired his ship, loaded a 
 cargo of cottons at Bombay, and sent her therewith to 
 Canton, on which voyage she was lost. 
 
 The Court held, that this policy, unlike the former, had 
 never attached on the goods loaded at Bombay for the voyage 
 to Canton; the insurance, they said, in this case, was on 
 nothing but the goods laden on board at Chiaa for the 
 homeward voyage thence to London.^ 
 
 The Court remarked that there was nothing on the face of 
 this policy, nor in the circumstances of the case, to alter 
 " the plain, fair, grammatical sense " of the words " beginning 
 the risk on the goods from the loading thereof on board at 
 China," — there was no custom of trade authorizing the 
 company to send back the ship from Bombay to Canton, so 
 as to keep her still within the protection of a policy effected 
 on a homeward voyage from Canton to London, — there was 
 no intention of imloading the goods, for "it never was in 
 the contemplation of the underwriters, or of any man, that a 
 ship once laden with tea, a very valuable cargo, would ber 
 tinloaded, and employed in some other trade." 
 
 Limits of the The strict rule of construction which confines the policy to 
 
 purposes of goods loaded at the terminus a quo, is not satisfied by their 
 
 ® being loaded on board at a place that is within the legal 
 
 limits merely of the port; unless it appear that the word 
 
 used is understood in this extended sense by mercantile 
 
 men.^ 
 Constable v. TJnder a policy on goods, " at and from Lyme to London," 
 
 it appeared that the goods were, in fact, loaded on board at 
 
 ' Grant v. Paxton, 1 Taunt. 463. Sailing Ship Garston Co. v. Hickie, 
 
 2 See the tests suggested hy Lord 15 Q. B. Div. 580 ; and the cases 
 
 Esher for ascertaining the limits of collected in Maclachlan, Shipping, 
 
 port in the commercial sense, in 377. 
 
CHAP. IX.] OX GOODS. 387 
 
 Bridport, a town nine miles from Lyme town, but a member 
 of the port of Lyme ; the Court held, in the absence of any 
 mercantile usage to show that goods insured from Lyme 
 might be loaded at Bridport, that the policy never attached 
 on these goods. ^ 
 
 In this case it appeared that there was no separate custom- Payne v. 
 house at Bridport Harbour; but d fortiori where goods 
 insured " at and from Carmarthen to London," were, in fact, 
 loaded on board at Llanelly, which, though, legally speaking, 
 a member of the port of Carmarthen, yet has a separate 
 custom-house at which vessels are cleared out, independent 
 of that at Carmarthen, the Court held, that this policy had 
 never attached on the goods loaded at Llanelly.^ 
 
 On the contrary, if mercantile usage has extended the By usage, 
 meaning proper to the words employed, — if under a policy 
 on goods " at and from the ship's loading port or ports in Moxon v. 
 Amelia Island," it appears that the ship never touched at 
 Amelia Island at aU, but took in her cargo at Tigre Island, 
 which is a little higher up the river St. Mary's, and that this 
 is usual for ships with such a destination, — there it is held 
 that the policy attaches on the goods so loaded.' 
 
 A policy on goods '' at and from " a foreign port covers A policy on 
 only homeward cargo which is on board and from the time and from." 
 that it is on board. If there be a policy on outward cargo 
 " until discharged and safely landed " at the same port, it 
 will operate on so much of that cargo as remains on board, 
 and so long as it remains on board, assuming that there is no 
 itnproper delay in landing it, so that if there be homeward 
 and outward cargo on board at the same time, the policies 
 will operate concurrently and respectively.* 
 
 1 Constable v. Noble, 2 Taunt. 403. ' Moxon v. Atkins, 3 Camp. 200. 
 
 ^ Payne v. Hutchinson, 2 Taunt. * See 2 Emerigon, o. xiii. s. 20, — 
 
 405, note. The la-w as to this point Perte pent elle en meme tems arriver 
 
 is the same in the United States ; d' entree et de sortie. See 3 Boulay- 
 
 see Murray v. Columbian Ins. Co., 4 Paty, Droit Mar. 421-428, and 3 
 
 Johns. Eep. 443, cited 1 Phillips, Ins. Kent, Com. 309. 
 no. 931. 
 
 cc2 
 
38&. 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 In case of 
 several ports 
 under one 
 designation. 
 
 Barter 
 policies. 
 
 In the United 
 States, policy 
 on goods out- 
 ward, and on 
 their proceeds 
 home. 
 
 K it, be an -island and not a port merely that is named, 
 and there he two several policies, one on outward cargo, say 
 "from London to Jamaica," and the other on homeward- 
 cargo " at and from Jamaica to London," and the ship, after 
 discharging part of her outward and shipping part of her 
 homeward cargo at one port in Jamaica, be lost while pro- 
 ceeding to another port in that island, in order to dispose of 
 the residue of her outward and complete the loading of her 
 homeward cargo, having part of both cargoes on board at the 
 time of loss, — the outward policy continues to cover what 
 remains on board of the outward cargo, and the homeward 
 pohcy attaches on what has been taken on board of the 
 homeward cargo.^ 
 
 In policies on the African barter traffic, after the usual 
 clause giving extensive liberty to load, reload, exchange, sell,, 
 or barter, &c., there is usually a clause that outward cargo is 
 to be considered homeward interest twenty-four hours after 
 arrival at first port or place of trade, so that the new and the 
 old cargo on board are protected during the barter trans- 
 actions on the coast.^ 
 
 Under such a policy on ship and goods for twelve months, 
 a singular attempt was made to extend the barter clause so 
 as to render the underwriter liable for loss, by fire, of cargo 
 landed but not yet bartered, and of the produce received in 
 exchange for part of it, although not yet shipped; it was 
 held, however, that the risk ended with the safe landing of- 
 the goods.' 
 
 It has been decided in the United States that a policy 
 on goods outward, and their proceeds home, wiU apply to a 
 homeward cargo procured by money or credit of the con- 
 signees at the port of discharge, though the outward goods, 
 for want of a market, have not in fact been sold so as to 
 
 • 2 Emerigon, o. xiii. s. 20, pp. 114, 
 115 ; 3 Boulay-Paty, Droit Mar. 422 
 Camden v. Cowley, 1 W. Bl. 417 
 Forbes v. AspinaU, ,13 East, 323 
 Warre v. MiUer, 4 B. & Cr. 638 , 
 Eickman v. Carstairs, 6 B. & Ad. 
 
 651 ; 3 Kent, Com. 309. 
 
 '^ Tobin V. Harford, 13 0. B., N. S. 
 791 ; 32 L. J. (C. P.) 134 ; (in error) 
 34 L. J. (C. P.) 37. 
 
 ' Harrison i>. Ellis, 7 E. & B. 466 ; 
 26 L. J. (Q. B.) 239. 
 
CHAP. IX.J ON GOODS. 889 
 
 realize any proceeds.^ Not so, however, if the goods on the 
 return voyage be the same goods that were carried out but 
 not landed at the outward port.'' 
 
 A salvage company intending to raise the steamer Alexandra, 
 ashore near Drogheda, effected a policy on " Four steam 
 pumps, &c., valued at 2000/., at and from Ardrossan by the 
 salvage steamer Sea Mew to the Alexandra, ashore near 
 Drogheda, and whilst there engaged at the wreck, and until 
 again returned to Ardrossan; — the risk beginning from the 
 loading on board the Sea Mew upon the said ship and (or) 
 wreck, &c." The pumps safely arrived at the wreck, were 
 used on board of it, and were successful in raising it. The 
 wreck with the pumps still on board then started for Ardrossan 
 in tow of several tugs, the Sea Mew also acting in that 
 capacity; but the weather became so foul that they neces- 
 sarily put about for Belfast, and before that port could be 
 reached the wreck went down with the pumps on board. 
 Although proof of usage to keep the pumps still on board the 
 wreck until it had reached a port of safety was offered, and 
 although the Court were disposed to think the pumps on 
 board the wreck would have been covered by the policy 
 whilst on the route to Ardrossan, they held that the words of 
 the policy could not be enlarged to cover the passage to 
 Belfast.' 
 
 The clause in the statutory form providing for the con- Continuance 
 tinuance and the end of the risk is somewhat disjointed; the risk on 
 but in respect of goods, the words appear to run thus : — so°^^- 
 " and shall so continue and endure upon the goods and 
 merchandises until the same be there discharged and safely 
 landed." 
 
 By " safely landed " is meant safely delivered on shore, at ''^?'^^^^, 
 
 ' Haven v. Gray, 12 Mass. Eep. ^ Ibid. 
 
 tl ; Whitney v. The American Ins. ° Wingate v. Foster, 3 Q. B. D. 
 
 Co., 3 Cowen, 210 ; 3 Kent, Com. 582 (C. A.), 
 310. 
 
390 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 Policy covers 
 lighters in 
 landiog, 
 according to 
 usage. 
 
 the ordinary wharfs and quays, or customary landing-places 
 within the limits of the port of dischaorge.^ These limits are 
 to he ascertained, ia case of douht, by the evidence of mer- 
 cantile usage.^ 
 
 It is frequently necessary to employ smaller craft, such as 
 lighters, shallops, &o., to carry the goods from the ship to 
 the shore. Whenever it is established that such usage exists 
 by the general course of trade, the underwriters are liable for 
 loss or damage happening to the goods in the course of being 
 so carried. 
 
 " The insurer," says Lord Mansfield, " in estimating the 
 price at which he is w illin g to indemnify the trader against 
 all risks, must have under his consideration the nature of the 
 voyage to be performed, and the usual course and manner of 
 doing it. He took the risk upon the supposition that what 
 was usual and necessary would be done, and therefore, when 
 goods are insured ' till discharged and safely landed,' the 
 insurance, without express words, extends to the boat, the 
 usual manner of landing goods out of a ship upon the 
 shore."' 
 
 In the port of London public lighters being employed in 
 the general com'se of trade to unlade ships, goods while 
 being so conveyed to the wharf are under the protection of 
 the poUey.* So, where it appeared to be the usual course for 
 ships in the contraband trade in the Spanish main to stand 
 in as near to shore as they could, and then run the cargo ia 
 
 ' See as to this Gatcliffe v. Bourne, 
 i Bing. N. C. 314 ; Bourne v. Gat- 
 cKffie (in error), 3 M. & Gr. 643 -,8.0., 
 before the House of Lords, 7 M. & 
 Gr. 853. 
 
 ^ Sailing Ship Garston Co. i). 
 Hickie, 15 Q. B. Div. 680. 
 
 « 1 Burr. 348. In France this 
 general principle is confined to the 
 taking of goods from the ship to the 
 shore, and does not, as a general rule, 
 extend to their transport from the 
 ship, up rivers, to the port of dis- 
 
 charge; 2 Emerigon, o. xiii. s. 2, 
 p. 49 ; 3 Boulay-Patj, Droit Mar. 
 419. 
 
 ♦ Eucker v. London Ass. Co., 2 
 B. & P. 432, in notis ; Hurry v. 
 Royal Exch. Ass. Co., ibid. 430. 
 This protection vras prevented by 
 prior sale of the goods without pro- 
 viding for a transfer of the policy ; 
 North of England Oilcake Co. v. 
 Archa;ngel Marit. Ins. Co., L. E., 10 
 Q. B. 249. 
 
CHAP. IX.] ON GOODS. 391 
 
 launches, it was held, that goods insured for this traffic were 
 protected while in such launches.^ So, where it appeared 
 that the general usage was, with regard to all goods destined 
 for a certain shallow bay iu Jamaica, for ships to put in to 
 the nearest practicable port and thence send the goods ashore 
 in shallops. Lord Tenterden held, that the goods while being 
 so sent on were protected by the policy.^ 
 
 Goods for St. Petersburg, on board vessels of any burden, 
 are unloaded at Cronstadt, about twenty miles from the 
 capital, and thence sent on, up the Neva, in lighters. Before 
 the cutting of the great canal of the Haider to Amsterdam, 
 vessels of large burden sometimes unloaded at the Texel, 
 and the largest class of vessels are still obliged to do so 
 between Ouxhaven and Hamburg. In these cases, as the 
 river navigation is a foreseen and customary part of the 
 voyage, and the risk thereof calculated in the rate of 
 premium, the goods would be protected in the river craft, 
 under our common form of policies.' 
 
 In France, it seems that their policies, though not con- In Trance, 
 sidered, as a general rule, to protect goods when sent on from 
 the ship up a river to the port, will yet do so whenever there 
 is a usage to unload goods at the sea-board, and thus send 
 them on, as from Paimboeuf to Nantes, though the distance 
 between the two places is ten French leagues.* 
 
 So, in the United States, on its being proved that hides In the United 
 were generally sent ashore at New York from the ship in 
 boats, the Supreme Court of the United States held, that the 
 risk was covered while they were being so sent ; ' and in one 
 case there decided, the principle was carried to the extent of 
 protecting goods destined for a Mexican port while being 
 carried up from the river-bar to the town partly in boats, 
 and partly overland on mules, that being shown to be the 
 
 1 Matthie v. Potts, 3 B. & P. 23. Droit Mar. 419, 420 ; 1 Nolte'a 
 
 2 Stewart ». Bell, 5 B. & Aid. 238. Beneoke, 664. 
 
 s See 2 Beneoke, dea Assecuranz, " Wadsworth v. Pacific Ins. Co., 4 
 
 213. Wendall'a Eep. 38. 
 * 2 Emerigon, 49 ; 3 Boulay-Paty, 
 
392 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 general mode of conveying them to their place of desti- 
 nation.^ 
 
 Unless it be 
 the assured's 
 own lighter 
 or in his own 
 care. 
 
 Risk of craft 
 till landed. 
 
 But in all such cases the assured may terminate the risk 
 before the time when it would expire in the usual course 
 under the policy, by receiving the goods out of the ship into 
 his own care. Thus, although goods, while being carried in 
 lighters from ship to shore, are, generally speaking, pro- 
 tected in the port of London, yet a merchant there was held 
 to have put an end to this protection by himself sending for 
 them and bringing them ashore in his own lighter.^ 
 
 The same principle holds where the merchant takes the 
 goods into his own care and possession before they are 
 landed. Thus, where goods were brought in a public lighter 
 to the merchant's wharf, but, owing to the roughness of the 
 weather, could not then be unloaded ; and thereupon the 
 merchant dismissed the lighterman, and told him to leave his 
 lighter aU night moored to the wharf, where he himself 
 would look after it, and in the course of the night the lighter 
 with the goods on board sunk ; the Court held that the 
 merchant, by thus taking the goods into his own care and 
 possession, had discharged the underwriter from liability.^ 
 
 Where the policy expressly provided for " aU risk of craft 
 until the goods are discharged and safely landed," and the 
 goods were put into lighters at the port of destination named 
 in the policy, not, however, for the purpose of being landed. 
 
 ' Oscar V. Louisiana Ins. Co., 5 
 Martin, N. S. 386, cited 1 PhiUips, 
 Ins. no. 970. 
 
 2 Sparrow t. Carruthers, 2 Str. 
 1236. Mr. Marshall (Ins. vol. i. 252) 
 remarks un this decision, that if there 
 were a custom for merchants in any 
 port to use their own lighters in 
 landing goods, they would be pro- 
 tected by the policy ; and there is 
 no doubt they would. See also 2 
 Benecke, des Asseouranz, 213. 
 
 The words of Heath, J., in respect 
 
 of Sparrow v. Carruthers, should 
 never be cited from Hurry v. Eoyal 
 Exch. Ass. Co., 2 B. & P. 435, with- 
 out reference to Strong v. Natally, 1 
 B. & P. N. R. 16, 19, which was 
 decided upon the authority of that 
 case, and in which some miscon- 
 ception respecting Sparrow v. Car- 
 ruthers is adverted to and cleared 
 away. 
 
 3 Strong V. Natally, 1 B. & P. N. 
 B. 16. 
 
CHAP. IX.J ON GOODS. 393 
 
 but of being transhipped into export vessels bound for a 
 foreign port, the loss caused by the swamping of some of the 
 lighters, while waiting under these circumstances to tranship 
 their cargoes, was held not to be a loss within the risk 
 described in the policy.^ The goods were not landed, nor 
 were they in lighters for the purpose of being landed, but for 
 the purpose of being transhipped, a purpose that could not be 
 expressed by the term " landed." 
 
 Whenever the goods can be considered as landed according "Lauded." 
 to the usual course of business at the port of destination, 
 the risk ends, though they may never have been delivered 
 into the hands of the consignees.^ 
 
 Thus, at Eevel, the port of discharge, the cargo was (ac- 
 cording to the uniform course of business in that port) 
 unloaded into government lighters by the revenue officers 
 and lodged in government warehouses, where it was after- 
 wards confiscated, without ever coming into the hands of 
 the consignees, and Lord Ellenborough held that the risk 
 had ceased on its being landed.' 
 
 The general rule, in fact, is clear, that the underwriter in General rule, 
 a sea policy insures only against sea risks ; the risk on goods, 
 therefore, ends directly they are put on terra firma, unless 
 they are placed there only for a temporary purpose subsidiary 
 to the main purpose of the voyage, or under such circum- 
 stances as to be protected by the usage of the trade.* 
 
 The following American case, which seems to have been 
 well decided, affords a good illustration of this rule. An 
 insurance had been effected on " specie and merchandise 
 out, and merchandise home, at and from Boston to ports in 
 the islands of Sumatra and Java, for the purpose of dis- 
 posing of the outward and procuring a return cargo, &c., 
 
 ' Houlder v. Merchants Mar. Ins. * Harrison v. EUis, 7 E. &B. 465 ; 
 
 Co., 17 Q. B. D. 354. 26 L. J. (Q. B.) 239; contrasted -with 
 
 » Gatoliffe «. Bourne, 4 Bing.N.C. Pelly v. Eoyal Exoh. Ass. Co., 1 
 
 314; 8. C, before tlie House of Burr. 341; Brough v. Whitmore, 4 
 
 Lords, 7 M. & Gr. 850. T. K. 206. 
 
 3 Brown V. Oarstairs, 3 Camp. 161. 
 
394 DURATION OF THE RISK [PART I. 
 
 with liberty to touch at the usual places and trade thereat." 
 The captaiu had landed, at a port in Sumatra, a chest of 
 opium, part of the outward cargo, to he exchanged for a 
 certain quantity of pepper and dollars, but not being able 
 to come to terms, had taken up the chest and stowed it in 
 the launch for the purpose of being carried back to the 
 ship, when the natives made a rush on the crew, over- 
 powered them, and carried o£E the opium ; the Court in the 
 United States held, that, under these circumstances, the 
 opium was protected by the policy. Sedgwick, J., in giving 
 the judgment of the Court, said, — " The insurers insured the 
 plaintifE against the restraint and detention of princes for the 
 purpose of disposing of the outward, and procuring a return 
 cargo, and, while executing this purpose, the property was 
 violently seized. The goods were as much protected by the 
 policy, in the boats, while employed as auxiliary to the 
 voyage, as they were on board the ship."^ 
 Damage in J^g ty our law, the risk on the goods continues until they 
 
 are safely landed at the wharfs or usual landing places of 
 the port of discharge, any damage caused to the goods in 
 the course of unloading them from the ship into the lighters, 
 or from the lighters to the wharf, would fall on the under- 
 writers, always supposing, that is, that such damage be not 
 imputable to the fault of the assured. Accordingly, where 
 a policy, otherwise in the common form, gave a special 
 power of shipping and reshipping the goods, Lee, C. J., 
 held that the policy would extend to cover a loss happen- 
 ing in the unloading and reshipping from one ship to 
 another.^ 
 
 In a more recent case, though the words were "risk of 
 transhipment, or landing and reshipment," such as would 
 cover a loss by fire during a continuous process of tranship- 
 ment, or while being landed, or being reshipped, it was held 
 that in the absence of custom they would not cover a loss by 
 
 1 Parsons v. Massachusetts Fire & 2 Tiemey v. Etherington, cited 1 
 
 Mar. Ins. Co., 6 Mass. Eep. 197 ; 1 Burr. 348. 
 Phillips, Ins. no. 970. 
 
CHAP. IX.] ON GOODS. 395 
 
 fire while tlie goods, after being landed, were stored in a 
 
 warehouse and were waiting to be shipped.^ 
 
 The law of France, following the Guidon^ and the laws of Foreign law. 
 
 Oleron,' throws the responsibility for damage in unloading on 
 
 the master alone.* -But by the greater number of the other 
 
 Continental codes, it is made, as in our law, to rest, at all 
 
 events primarily, on the underwriter.' 
 
 In our common policies no fixed period of time is specified Time within 
 
 which goods 
 daring which the risk on the goods is limited to continue are to be 
 
 after the ship's arrival ; in other words, there is no specified 
 
 time within which their landing must be completed, and 
 
 beyond which they will be out of the protection of the 
 
 policy. The only rule in this country in such a case is, that 
 
 they must be landed within a reasonable time from the 
 
 ship's arrival. 
 
 The law of France in this respect agrees with our own.^ Foreign law 
 But by several foreign ordinances, it is provided that the 
 risk upon the goods shall continue only for a certain limited 
 number of days after the ship's arrival at the port of dis- 
 charge, unless the unloading be delayed for a longer period 
 by lawful and unavoidable hindrances; and even in such 
 case, only for a longer fixed period.' 
 
 The reasons given for preferring a fixed number of days 
 are — 1st, to avoid all litigation as to what shall be deemed 
 
 ' Australian Agricultural Co. v. The Law of the German Empire 
 
 Saunders, L. E., 10 C. P. 668. seems to he identical in this respect 
 
 * Gruidon, chap. v. art. 7. with our own (art. 828). 
 
 3 Jugemens d'Oleron, art. 10. '. By the Insurance Ordinance of 
 
 • See 2 Emerigon, c. 12, s. 48, pp. Amsterdam (art. 5), the risk is to 
 25, 26. continue fifteen days after the ship's 
 
 5 See the Hamburg Ordinance, tit. arrival : by that of Eotterdam (art. 
 
 yii. art. 4. If the defect be in the 46-49) for fourteen working days: 
 
 ship's tackle, he has his remedy over by the Insurance Code of Sweden 
 
 against the shipowner ; the Prussian (art. 5, s. 19) and of Prussia (tit. 
 
 Landgerecht, art. 2188, and others, Insurance, art. 2184, 2185, 2189, 
 
 2 Beneoke, des Assecuranz, 213 ; 1 2190), and by a clause in the Danish 
 
 Nolte's ed. 664, 665. policies, the ordinary duration of the 
 
 ^ The Code de Commerce, art. 328, risk is fixed at fifteen days, in oases 
 
 341, provides that the risk on goods of justifiable delay at twenty-one 
 
 shall continue "jusqu'au jour oil eUes days. See Magens, vol. ii., and 2 
 
 Bont delivrees k terre." Benecke, des Assecuranz, 209. 
 
896 
 
 DURATION OF THE KISK 
 
 [part I. 
 
 Under the 
 nature and 
 usages of the 
 trade. 
 
 In the barter 
 trade. 
 
 In the New- 
 foundland 
 fishing trade. 
 
 a reasonaUe time; 2ndly, to compel a speedy clearance of 
 the cargo. Mr. Beneoke, however, after examining the 
 different provisions of foreign states on this suhject, con- 
 cludes that the rule adopted in England and France is, upon 
 the whole, preferable ; and this opinion seems well founded,' 
 
 It is, of course, competent for the parties, and with some 
 of the Scotch insurance companies it appears to be customary, 
 to specify a fixed period in the policy for this purpose. But 
 as to the extent of a reasonable time after the ship's arrival 
 at the port of discharge, within the meaning of the rule in 
 this country, this depends entirely on the nature and usages 
 of trade, the main object of the adventure, and the possible 
 opportunity of discharge at the quay, or in the berth, or dock 
 usual for unloading at the port of discharge. 
 
 Thus, under a policy for the African barter trade in gum, 
 the risk to continue on ship "till moored at anchor for 
 twenty-four hours in good safety," and on cargo "till 
 discharged and safely landed," the ship was captured about 
 a month after arrival on the African coast, at which time, 
 as no gums had been brought down to the coast by the 
 natives, no part of her outward cargo had been landed for 
 the purposes of barter; and Lord Kenyon held that, as, 
 nnder the circumstances, no unnecessary delay appeared to 
 have taken place, the risk on the outward cargo was a 
 continuing risk at the time of the loss.^ 
 
 In the Newfoundland and Labrador trade the great object 
 of the adventure being to catch fish, the outward cargo very 
 generally consists in great part of gait for curing the fish 
 caught, and provisions for victualling the crew. This part 
 of the cargo is naturally consumed as it is wanted, and 
 never landed at all ; even such part of it as may consist of 
 merchandise is frequently not landed until the fishing, 
 -which is the main business of the adventure, leaves the 
 
 ^ 2 Benecke, des Assecuranz, 223 ; 
 Nolte agrees with him, vol. i. pp. 657- 
 660. 
 
 ' Parkinson!). Collier, 2 Part, Ins. 
 
 653 ; 1 Marshall, Ins. 255. It is ob- 
 vious that in such a case as this a 
 fixed rule of time would have operated 
 
 unjustly. 
 
CHAP. IX. j ON GOODS. 397 
 
 crew at liberty to discharge it. In the case, therefore, of 
 outward cargoes insured on hoard ships engaged in this 
 trade by policies in the common form, continuing the risk 
 on the goods " till discharged or safely landed," it has been 
 held that such outward cargoes were protected by the policy, 
 though in one instance, they were still on board for thirty, 
 and in another for fifty, days after the ship's arrival off the 
 coast.^ 
 
 When goods are insured in the common form, the risk Application 
 upon them continues until they are safely landed at the °uie. ^ ^^^'^'^ 
 particular port which is either named in the policy as their 
 ultimate port of discharge, or contemplated as such by the 
 parties; and this, though the ship may touch at an inter- 
 mediate port and remain there for twenty-four hours, and 
 even unload part of the cargo there, and taken in substituted 
 goods in its place.^ 
 
 Even when the place named in the policy as the terminus 
 ad quern of the voyage is one of the West India Islands, or 
 other place containing several ports, an outward policy on 
 the goods will, generally speaking, enure to protect them 
 until the whole of the outward cargo, or, at all events, until 
 the great bulk of it, has been safely landed at that port in 
 the island which was, in fact, contemplated by the parties as 
 the ultimate port of discharge.' 
 
 Where, indeed, the great bulk of the outward cargo, under Most of the 
 such a policy, has been unloaded and sold at any given port, diseharged" 
 either in that island, or elsewhere within the limits of the 
 voyage, and that which remains on board, being trifling in 
 quantity, is taken on, either as ballast, or because it could 
 not be sold at the port where the rest was disposed of, in 
 such cases the risk on the outward cargo will be held to have 
 terminated at the port where the bulk of it was sold ; and 
 the liability of the underwriters on the outward policy will 
 
 ' Noble V. Kennoway, 2 Dougl. London Ass. Co., 1 Marshall, Ins. 
 
 510; VaUaneei;.Dewar,l Camp. 503; 266 ; Leigh v. Mather, 1 Esp. 412. 
 Ougier V. Jennings, ibid. 505. ' Barrass v. London Ass. Co., 1 
 
 2 Lord Mansfield in Barrass v. Marshall, Ins. 266. 
 
398 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 lieigh. V. 
 Mather. 
 
 not he held to continue merely because, at the time of loss, 
 an insignificant portion of the outward cargo may still be on 
 hoard. 
 
 This principle, which is equitable and well adapted to the 
 real intentions of the parties, has long been established in the 
 law of Prance ; ^ and has received abundant confirmation in 
 the jurisprudence of this country.^ 
 
 Thus, where an insurance was made on ship and goods 
 " at and from Georgia to Jamaica," and the ship arrived at 
 Montego Bay, which was the port to which the cargo was 
 originally destined, where she remained a month, and during 
 that period sold and delivered the greatest part of her cargo 
 to merchants there, and would have disposed of the whole 
 but for a verbal agreement with a party who chartered the 
 vessel for a voyage from Montego Bay to St. Anne's, for a 
 cargo, and thence to London, by which agreement part of 
 the outward cargo, which was lumber, was to be carried in 
 ballast to St. Anne's ; Lord Kenyon held that, under these 
 circumstances, the risk on the outward cargo came to an 
 end when the bulk of it was landed at Montego Bay, and 
 did not continue on that part of it which was carried on as 
 ballast to St. Anne's.' 
 
 The subject will receive further illustration when we come 
 to consider the duration of risk on the ship. 
 
 When trail* 
 shipped of 
 
 When the risk on goods is declared by the policy to 
 continue, as in the common form, " during the ship's voyage 
 to the port of discharge, until the goods be there discharged 
 and safely landed," the policy protects them until the whole 
 or the bulk of them are landed at the port where, in fact, 
 the ship begins to discharge them.* If, in the course of the 
 
 ' Emerigon, c. xiii. s. 20 ; 3 
 Boulay-Paty, Droit Mar. 421-429. 
 
 ' BarraBB v. London Ass. Co., 1 
 Marshall, Ins. 266 ; Leigh v. Mather, 
 ibid. As to the ship, Inglis v. Vaux, 
 3 Camp. 437 ; Moore v. Taylor, 1 A. 
 & E. 2S. 
 
 ' Leigh V. Mather, as reported 1 
 Marshall, Ins. 266. The case, as re- 
 ported in 1 Esp. 412, is not consis- 
 tent with the principles above laid 
 down, nor, it is submitted, with la"w. 
 
 * Olason V. Simonds, 6 T. K. 533, 
 note ; Moore v. Taylor, 1 A. & E. 25. 
 
CHAP. IX.] ON GOODS. 399 
 
 voyage, the original ship becomes disatled before arriving at 
 such port, and the goods are, by the master, necessarily tran- 
 shipped and sent on in another vessel, the risk on the goods 
 continues until they are safely landed out of the substituted 
 ship at the port of original destination ; ^ but this is only so 
 where a case of clear necessity is made out.* 
 
 In the following case a question was made as to the When re- 
 continuance of the risk on goods insured " until arrived at want of a 
 the last place of discharge in the outward voyage." The ™^'^^^*- 
 goods in question were the investment of an East India 
 captain, and the voyage for which they were iasured was 
 described iu the policy to be " at and from London to 
 Madeira, the Cape of Good Hope, and all or any of the 
 ports or places in the East Indies, China, Persia, or elsewhere, 
 on this or the other side of the Cape," " until arrived at the 
 last place of discharge on the outward voyage, with leave to 
 exchange the goods in the course of the voyage." The ship 
 arrived at Calcutta, and there discharged the whole of the 
 cargo she carried out for the East India Company; after 
 which she was ordered by the Company on an intermediate 
 voyage to Madras, and took on board a cargo to be conveyed 
 thither. The captain had also landed the whole of his in- 
 vestment (the goods insured by this policy) at Calcutta, and 
 had disposed of a considerable part of it ; but, being unable 
 to find purchasers for the residue, he resolved to carry it on 
 to a new market, and, with this view, reloaded it on board 
 the ship for Madras. The ship was lost on the intermediate 
 voyage from Calcutta to Madras. Lord Ellenborough held, 
 that the risk ended at Calcutta ; for, as all the company's 
 outward cargo had been discharged there, that port was the 
 " last place of discharge on the outward voyage," upon the 
 true construction of the policy.' 
 
 ' Plantamonr *. Staples, 1 Marsh., Swann, 16 0. B., N. S. 772. 
 
 Ins. 164. ' Richardson v. London Ass. Co., 
 
 2 Bold V. Rotheram, 8 Q. B. 797 ; 4 Camp. 94. 
 15 li. J. (Q. B.) 279 ; De Cuadra v. 
 
400 
 
 DURATION OF THE BISK 
 
 [part I. 
 
 Insurance "to 
 a market." 
 
 Lord EUenborough, in the course of his judgment in 
 the preceding' case, said: "If the Company's ofl&cers wish 
 for the protection which is here sought {i.e., until the 
 goods are finally disposed of in some market in the East 
 Indies), they must not limit the risk to the duration of the 
 outward voyage, hut extend it to the arrival of the goods 
 to a market at their final port of discharge." No douht, 
 an insurance in such a form would effectually protect the 
 goods untn the whole were actually disposed of in some 
 foreign market.^ 
 
 Knal port of 
 destination. 
 
 Oliverson v. 
 Brightman, 
 
 It wiU frequently become a question of fact depending 
 upon the intention of the parties, what "the final port of 
 destination " really was. During the suspension of friendly 
 relations between this country and China, in 1841, The 
 Penang arrived in Macao Eoads, under a policy on cargo 
 from Liverpool for various ports in China, with most exten- 
 sive liberty in the China seas to tranship cargo on board any 
 other vessel, to visit any ports, and to remain there till it 
 should be deemed expedient to proceed to her port or ports 
 of discharge, continuing the risk " until the goods should be 
 arrived at their final port of destination." 
 
 The consignees at Macao, finding that it would be dan- 
 gerous to send the goods up the river to Canton, and also 
 that it would be necessary, owing to sea-damage sustained 
 in the voyage, to tranship them, hired The James Laing as 
 a temporary receiving ship, and sent her with The Penang 
 to Hong Kong, the safest anchorage in those seas, in order 
 there to receive the cargo from The Penang, for the purpose, 
 1st, of examining it ; 2nd, of keeping it on board in a place 
 of safety till it could be sent on to Canton, or some other 
 market in China, where it could be sold ; there being then 
 no market whatever at Hong Kong. In the course of 
 transhipment in Hong Kong Eoads, The James Laing, and 
 
 ' See post, p. 421, the oases as to the continuance of risk on ship. 
 
CHAP. IX. J ON GOODS. 40l 
 
 all the goods that had, up to that time, heen transhipped into 
 her, were sunk hy a violent typhoon, and utterly lost. 
 
 In an action for this loss, the Court, upon these facts, 
 were clearly of opinion that Hong Kong was not the final 
 port of destination within the contemplation of the parties ; 
 and, further, that the principle of Brown v. Vigne, — that if 
 a vessel, instead of proceediag to her originally destined 
 port, chooses to wait at another, until the termination of 
 war, the voyage is thereby determined, — was inapplicable 
 to the circumstances in this case ; for, in those of Brown v. 
 Yigne, there was the existence of actual war with Spain, 
 which rendered it illegal to send on the goods to their 
 original port of destination ; whereas here, there having 
 been no actual declaration of war against China, it would 
 not have been illegal, but only dangerous and inexpedient, 
 to have sent the goods on to Canton, or any other market 
 in China. Accordingly, the risk on these goods was held a 
 continuing risk at the time of the loss, and the plaintiff, 
 therefore, entitled to recover.^ 
 
 The facts of this case are very similar to those of Tiemey Tiemey v. 
 V. Etherington. In that case goods were insured on board a 
 Dutch ship " from Malaga to Gibraltar, and at and from 
 thence to England and Holland, both or either," continuing 
 the risk " till the ship and goods be arrived at England or 
 Holland, and there safely landed." There was a special 
 clause in the policy, by which it was agreed that, on the 
 arrival of the ship at Gibraltar, the goods might be unloaded 
 and re-shipped in one or more British ship or ships for 
 England and Holland, &c. When the ship arrived at 
 Gibraltar there was no British ship there, and the goods were 
 unloaded and put into a store-ship (which it was proved was 
 always considered as a warehouse), in order to be kept there 
 
 ' Oliverson v. Brightman, 8 Q. B. the policy contained no such liberty, 
 
 781; 15 L.J. (Q. B.) 274. In this the Court, on proof of the above facts, 
 
 case the policy contained an express directed a non-suit; Bold v. Rother- 
 
 liberty "to tranship." In another ham, ibid, 
 case on the same adventure, where 
 
 M. D D 
 
402 DURATION OF THE RISK [PART I. 
 
 till some British ship should arrive. Two days after the goods 
 were put into this store-ship they were lost in a storm. 
 
 For the underwriter it was ohjeeted that the risk on the 
 goods was at an end upon their being loaded into this store- 
 ship, which was to be considered as a warehouse on land; 
 but Lee, 0. J., held that the construction should be according 
 to the course of trade in Gribraltar ; and that, as it appeared 
 to be the usual method of unloading and re-shipping in that 
 place, that when there is no British ship there the goods 
 should be kept in store-ships until one arrives, the risk upon 
 the goods so loaded, according to such custom, should be held 
 to continue, and the underwriters to be liable. ^ 
 Predetermina- The risk may be terminated at any intermediate stage of 
 risk. the voyage, but not so as to give a right to return of pre- 
 
 mium, except either by subsequent arrangement of the parties, 
 or in accordance with prior stipulation in the policy.. There 
 was a policy on wheat to several ports named " to return 20s. 
 premium if the risk end at Emden, or in the United Kingdom 
 direct." The wheat was sold, " including insurance to 
 Emden," and was totally lost at sea between Emden and the 
 United Kingdom. The vendee sued in the name of the 
 vendor, but failed to recover owing to the conditions of his 
 own purchase,^ and the predetermination of the risk by the 
 vendor. 
 Prolongation By express contract the protection of the policy may be 
 " . prolonged after landing, and during the subsequent trans- 
 port of the goods overland. Thus, in a policy, the voyage 
 Was described, — " At and from Japan and (or) Shanghai 
 to Marseilles and (or) Leghorn, and (or) London vi^ 
 Marseilles and (or) Southampton, and whilst remaining there 
 for transit, with leave to call, &c., in the good ship or vessel 
 called The steamers or steamer, per overland, 
 
 1 Tiemey v. Etherington, cited 1 custom existed. See ante, p. 395. 
 Buir. 348, 319. *rhe custom here * lonides v. Harford, 29 L. J. 
 
 alleged and found distinguishes the (Ex.) 36. See North of England Oil 
 
 case from that of the Australian Cake Co. v. Archangel Marit. Insur. 
 
 Agricultural Company v. Saunders, Co., L. E., 10 Q. B. 249. 
 L. K., 10 C. P. 668, where no such 
 
CHAP. IX.] ON SHIP. 403 
 
 or \ik Suez Canal," &o. In the margin was thiB memo- 
 randum : " It is hereby agreed that the silks insured by this 
 policy shall be shipped by Peninsular and Oriental Company, 
 Messageries Imp^riales steamers, and (or) the steamers of 
 the Mercantile Trading Company of Liverpool only." 
 
 The goods were shipped and paid for to London by the 
 Messageries Imperiales steamers, whose customary route, 
 followed in this instance, was from Shanghai to Marseilles, 
 and thence overland, through France, yik Paris, where they 
 arrived on the 13th September, 1870 ; and while they were 
 stiU there, the German armies approached on the 19th 
 Septemberj and surrounded the city, preventing the goods 
 after that event from being forwarded to London. It was 
 held that the goods being still covered by the policy, there 
 was a total loss within the meaning of the peril described 
 therein, as " the arrests, restraints, and detainments of kings, 
 princes, and people." ^ 
 
 We come now to consider the duration of the risk on Duration of 
 ship, and, first, as to the commencement of it. sSp."'^ ^ 
 
 In most of the Continental states the commencement of Commenoe- 
 the risk on the ship is fixed by their Ordinances, subject, of 
 course, to be varied by the express stipulations of the parties. 
 In many of the mercantile states of the Continent, it is made Poreigu Law. 
 to commence from the moment of the ship beginning to load 
 the goods on board, or even to take in ballast, for the 
 purposes of the voyage insured." In France, unless other- 
 wise stipulated by the policy, the risk on ship commences 
 from the day qn which the ship sails from the port of 
 loading.^ 
 
 In this country, the period at which the risk on the ship English Law. 
 
 1 Eodooanaehi v. Elliott, L. E., 8 ' Cojg jg Commerce, art. 328, 341. 
 
 C. P. 649. The Eussian law is to the same efEeot, 
 
 ' 2 Benecke, des Assecuranz, 229 ; 2 Benecke, 230. 
 INoIte'sed. 668-671. 
 
 nD2 
 
404 
 
 DURATION OF THE KISK 
 
 [part I. 
 
 commences depends entirely on the terms of the policy, and 
 the nature of the voyage intended to he insured. 
 
 Insured 
 "from" a 
 port. 
 
 If the ship he insured simply " from " a port, or if the 
 adventure on the ship he made by the policy " to begin on 
 the ship from A. B.," the risk on the ship does not commence 
 until the ship sails on her voyage " from " such port, i. e., 
 until she quits her moorings and breaks ground, being in 
 a state of perfect equipment and readiness for the voyage.' 
 
 Insured "at 
 and from" a 
 home port. 
 
 If the ship be insured " at and from " a home port as the 
 ferminus a quo in which the ship is then lying, the risk 
 commences on the ship immediately upon the execution of 
 the policy, and continues during the whole time the ship 
 remains in the home port in a course of preparation for her 
 voyage.^ 
 
 "At and 
 from" a 
 foreign port. 
 
 Conditions 
 of the policy 
 attaching'. 
 
 The words " at and from " a foreign port do not imply a 
 warranty or a representation that the ship is at the time of 
 effecting the poKcy in the port in question;^ but they do 
 imply that the ship will he there within such a time after- 
 wards that the risk shall not be materially varied; and 
 that any imreasonable delay between the making of the 
 policy and the commencement of the risk, whether such delay 
 be voluntary or involuntary, which has the effect of materially 
 varying the risk, wiU prevent the policy from attaching.* 
 
 The facts of the case on which this latter decision was 
 founded were these. The policy, "at and from Montreal," 
 was effected on the 13th of July. No question was put by 
 the underwriter as to where the ship then was, and no 
 information was offered by the assured ; but in fact she was 
 then at sea, on a voyage intended to end at Montreal. She 
 
 1 1 Marshall, Ins. 260 ; Pittegrew 
 V. Pringle, 3 B. & Ad. 614 ; so in 
 the United States, see 3 Kent, Com; 
 307, note. 
 
 2 Motteux V. London Ass. Co., 1 
 
 Atkyns, 548 ; Palmer v. Marshall, 8 
 
 Bmg. 79. 
 ^ HuU V. Cooper, 14 East, 479. , 
 * De "Wolf V. Archangel Marit. 
 
 Bank & Ins. Co., L. E., 9 Q. B. 461. 
 
CHAP. IX.J ON SHIP. 405 
 
 did not arrive at Montreal till the 30tli of August. Evidence 
 was given on the trial that the delay of arrival at Montreal 
 had materially varied the risk and the rate of premium. 
 Evidence was offered, but not received, to show that the 
 delay was not voluntary, but was due entirely to sea perils 
 upon the voyage to Montreal. It was held, that this 
 evidence was properly rejected, as upon the facts of this 
 case, the only question for the jury was, whether the delay 
 had materially varied the risk.^ 
 
 The above decision is the earliest in our books, as to the 
 effect of involuntary delay preceding the time fixed for such 
 a policy attaching. The question had come before Tindal, 
 0. J., in respect of voluntary delay, and was then decided 
 adversely to the assured.^ That learned judge, in the course 
 of his observations, seems to intimate that his decision would 
 have been the other way in case the underwriter had been 
 prepared to expect delay by notice, or what is equivalent to 
 notice, by the existence of a usage.' But Blackburn, J., in 
 the later decision already cited, expressly reserves his opinion 
 as to the effect of either notice or usage on the question.* 
 
 A further condition of the policy attaching ia such a case, 
 is that the ship must have once been at the outward port in 
 good physical safety. 
 
 Hence under a policy on ship " at and from St. Michael's, Parmeter v. 
 or all or any of the Western Islands, to England," where it ^°^™- 
 appeared that the ship, after encountering very bad weather 
 on the whole of the outward voyage, cast anchor off St. 
 Michael's in such a leaky condition as to be unfit to take in 
 a cargo, and was only kept afloat by pumping, and that, after 
 lying in the roadstead for upwards of twenty-four hours 
 (during the whole of which time she was in great danger 
 from the storm that still continued), she was blown out to 
 sea, and wrecked. Lord EUenborough held, that, under these 
 
 1 Ibid. * De Wolf ». Aroliangel Marit. 
 
 2 Moimt V. Larkins, 8 Bing. 108. Bank & Ins. Co., supra. 
 ' Ibid. 121. 
 
406 
 
 DURATION or THE RISK 
 
 [rART I. 
 
 circumstances, the risk liad never commenoed on the ship 
 under the homeward policy, for the ship had never been at 
 St. Michael's in good safety.^ 
 
 To be there 
 in physical, 
 not political, 
 Baietj. 
 
 BeU V. Bell. 
 
 But all that is required in such case is, that the ship should 
 have been once " at " the terminus in quo of the homeward 
 voyage in good physical safety," irrespective altogether of 
 political danger. 
 
 Thus, under a policy on ship " at and from Eiga to her 
 ports of discharge in the United Kingdom," where imme- 
 diately on arrival at Eiga her papers were seized by govern- 
 ment, and the ship and cargo sequestrated and condemned 
 before the outward cargo had been discharged. Lord Ellen- 
 borough held, that, as the ship had been once " at " Eiga in 
 good physical safety, the risk under the homeward policy had 
 attached on the ship.^ 
 
 "What physi" 
 cal safety is 
 required. 
 
 All that is required, in fact, is, that the ship while in the 
 foreign port, which, by the policy, is made the terminus a quo 
 of the homeward voyage, should " be in such a condition as 
 to enable her to lie there in reasonable security, till she is 
 properly repaired and equipped for her voyage ; "' if she be 
 able to keep afloat in harbour sufficiently for the purpose of 
 being repaired,* the risk imder such a policy commences im- 
 mediately on her first arrival, and continues during the time 
 she remains there in a course of preparation for the voyage 
 insured.' 
 
 Under a poHcy on ship " at and from " Havana to Grreenock, 
 the ship arrived off Havana, and the master engaged a tug 
 
 • Parmeter v. Cousins, 2 Camp. 148 
 235. 
 
 2 BeU V. Bell, 2 Camp. 475. 
 
 ' PerLordEllenborongh, Parmeter 
 V. Cousins, 2 Camp. 235, 237 ; Haugh- 
 ton V. Empire Mar. Ins. Co., L. E., 
 1 Ex. 206. 
 
 * Annen v. Woodman, 3 Taunt. 
 299. See also per Lord Kenyon, in 
 Forhes v. Wilson, 1 Marshall, Ins. 
 
 5 Thus Lord Hafdwioke laid it 
 down that when a ship is thus in- 
 sured "at and from" an outport 
 for the homeward voyage, the words 
 "first arrival" are always implied : 
 Motteux ». London Ass. Co., 1 Atk. 
 548 ; Forbes v. WUson, 1 Marshall, 
 Ins. 148 ; Smith v. Surridge, 4 Esq. 
 25. 
 
CHAP. IX.] ON SHIP. 407 
 
 and pilot for the purpose of taking her to a clear anchorage. 
 She was towed into the harbour, past the place where she 
 ultimately discharged her cargo, to a point at the head of the 
 harbour called the Eegla Shoal. There she grounded, and 
 received damage from the anchor of another ship. " In my 
 opinion," says Channell, B., delivering judgment in the case, 
 " she was at that time at Havana, and consequently the risk 
 under the policy had attached. The damage occurred at 
 Havana, geographically speaking, and there is nothing which 
 to my mind shows that the parties, at the time this policy 
 was underwritten, contemplated any other meaning of the 
 word at. All the limitation which the law appears ever to 
 have imposed as to the time of the commencement of the 
 risk in such a case is, that the ship should arrive at the port 
 at which she is insured in a state of sufficient repair or sea- 
 worthiness to be enabled to be there in safety." ^ 
 
 Lengtb. of time consumed in necessary repairs, though Wiat delay 
 considerable, does not take the ship out of the protection of 
 the policy, if the repairs be with an ultimate view to the 
 voyage insured;^ nor does any other reasonable delay, if 
 justified by necessity, or incurred bond fide for the purposes 
 of the voyage^ — it may be to take in simulated papers,* or a 
 particular description of crew,^ or provisions when rendered 
 necessary by unavoidable delay.^ 
 
 The principle, in short, established by the cases is, " that 
 a detention for a reasonable time for the purposes of the 
 adventure insured must be allowed, and whether the time is 
 reasonable must be determined, not by any positive or 
 arbitrary rule, but by the state of things existing in the port 
 where the vessel happens to be."' 
 
 ' Haughton v. Empire Marine Ins. " Langhom v. AUuutt, 4 Taunt. 
 
 Co., L. R., 1 Exoh. 206, 209, 210. 511. 
 
 ^ Motteux V. London Ass. Co., 1 * Grant v. King, i Esq. 174. 
 
 Atk. 548. " Raine v. BeU, 9 East, 195. 
 
 3 Smith V. Surridge, 4 Esq. 25 ; ' Per Tindal, C. J., in PMUips v. 
 
 Grant v. Kong, 4 Esq. 174. Irving, 7 M. & Gr. 328. See to the 
 
408 
 
 DURATION OF THE KISK 
 
 [part I. 
 
 What delay On the other hand, it must be home in mind that a policy 
 on ship " at and from " a port implies, in respect of a ship 
 abeady in the port, that the voyage insured shall he very 
 shortly commenced, or, at all events, he in the near con- 
 templation of the parties.^ Otherwise all protection under 
 the policy is lost, if an unreasonahle time elapse before 
 preparing for the voyage insured, and there be no excuse for 
 delay, such as the necessity for repairs. 
 
 Thus, for instance, if all thought of the voyage insured he 
 laid aside, and the ship lie in the port for years, with the 
 knowledge of the owner, the risk would be held, either never 
 to have attached, or, at all events, to have come to an end 
 directly the determination to abandon the voyage was finally 
 fixed.? 
 
 In case it be a foreign port, and she have been lying there 
 a long period without reference to any particular voyage, 
 it seems the policy wiU attach only from the time that 
 preparations are commenced with reference to the voyage 
 insured.^ 
 
 In home port. In case it be a home port, and she is then lying there, the 
 policy generally attaches from the period of its subscription, 
 but the ship is not protected by it if any unreasonable delay 
 intervene between the subscription of the policy and her 
 sailing on the voyage insured. Thus a pohoy was effected 
 on the 28th January, " at and from Bristol to London," on a 
 yacht then lying in the port of Bristol, and it did not sail 
 thence till the middle of May following, the delay not being 
 
 In foreign 
 port. 
 
 same effect the remarks of Story, J., 
 in Seamaus v. Loring, 1 Mason's R. 
 127, cited 1 Phillips, no. 935. 
 
 ' Per Tindal, C. J., in Palmer v. 
 Marshall, 8 Bing. 317, 318. "It is 
 clear insurance law," says Park, J., 
 ' ' that in a poUcy ' at and from ' a port, 
 a vessel ought to be ready to sail as 
 soon as she reasonably can, and not to 
 
 lie in the port for months before she 
 takes her departure : " Palmer v. 
 Fenning, 9 Bing. 462. 
 
 * See the observations of Lord 
 Hardwioke in Chitty v. Selwyn, 2 
 Atk. 639. 
 
 ' Per Story, J. , Seamans v. Loring, 
 1 Mason's E. 127, cited in 1 Phillips, 
 Ins. no. 939. 
 
CHAP. IX. J ON SHIP. 409 
 
 for repairs or other neoessaxy purpose ; there the Court held 
 this delay unreasonable, and that the yacht at the time of 
 the loss was not protected hy the policy.^ 
 
 This general rule is liable, howcTer, to be modified by the Exception by- 
 usages of a particular trade. Thus, in the Newfoundland ^^^^' 
 trade, owing to the well-known practice of making fishing 
 expeditions or intermediate trading voyages after the ship's 
 first arrival off the coast of Newfoundland, the homeward 
 risk, though expressed to be "at and from" any port or 
 ports in Newfoundland, does not attach on the ship on her 
 first arrival out, but only from her beginning to prepare for 
 the homeward voyage.^ 
 
 What is such a beginning to prepare for her homeward "Beginning 
 voyage, within the meaning of the rule, as brings the vessel her homeward 
 under protection of the policy, appears by the following ^°y^s^- 
 case : — A ship engaged in a cruising voyage in the Southern Lamtert ». 
 Atlantic, was insured for a trading voyage home by a policy 
 " at and from Pernambuco or any other port or ports in 
 the Brazils to London, — beginning the adventure on the 
 goods from the loading thereof on board, and upon the 
 ship on the determination of her cruise, and preparing 
 for her voyage to London," &c. The cruise being ended, 
 the captain went to Pernambuco, and when off that place, 
 sent in one of his officers to see if a homeward cargo 
 could be procured there, but as there was none, he sailed 
 southwards for St. Salvador for the same purpose, and was 
 lost at sea between the two places. The Court held, that 
 this going to Pernambuco, and sending in an officer to inquire 
 after a cargo, was such "a preparing for his voyage to 
 London" within the words of the policy, that the homeward 
 risk attached from that moment, and continued at the time 
 of the loss.' 
 
 ■ Palmer v. Marshall, 8 Bing. 79, and the other cases there collected. 
 
 317. S. C, Palmer v. Penning, 9 ^ Lambert d. Liddard, 1 Marshall's 
 
 Bing. 460. E. 149 ; S. C, 5 Taunt. 479. 
 
 ' Vallanoe v. Dewar, 1 Camp. -503, 
 
410 
 
 DURATION OF THE KISK 
 
 [PAKT I. 
 
 ■What is 
 included in 
 "port." 
 
 Not neces- 
 sarily imply 
 an artificial 
 harbour. 
 
 We have already seen that the terminus "at and from" 
 which the voyage is made to commence, is, generally 
 speaking, taken to include, not different places classed 
 together in legal style, or for the purposes of revenue, as one 
 port, hut some one place, which in the more limited and 
 commercial sense is considered the port ; in other words, the 
 harhour-town.^ If the policy be " at and from a port or 
 ports" or "port or places" in the alternative, it must he 
 supposed that the insurer underwrote the greater risk of 
 letting the ship sail to several places in order to take in her 
 cargo.^ But where a ship was insured " at and from her 
 port of lading," the Court held, that the expression " port of 
 lading," pointed to one single place, and did not allow of the 
 ship loading at two distinct places (though both lying within 
 seven nules of one another in the same bay), in either of 
 which there might have been a lading.^ 
 
 It is not at all necessary to the definition of the term 
 "port," as used in policies, that it should be an artificial 
 harbour shut in with regular moles or piers. If it be a 
 natural basin protected by a headland, or even an open 
 roadstead, provided it be the usual and sole place of loading 
 and imloading, it is sufficient, especially if there be the 
 usual machinery and appendages of a harbour. Thus, in 
 one case, the Court of King's Bench held that the expression 
 "to any port or ports whatsoever," in a time policy, ought 
 to be construed as if it were " place or places," and would 
 protect the ship while anchored in an open roadstead, if 
 that were the usual place for loading and imloading goods.* 
 
 1 Constable v. Noble, 2 Taunt. 403 ; 
 Payne w. Hutchinson, ibid. 405, note; 
 Brown v. Tayleur, 4 A. & E. 241. 
 See, also, as to the meaning of the 
 word "port," Hull Dock Company*. 
 Browne, 2 B. & Ad. 43 ; Stockton and 
 Darlington Kail. Co. v. Barrett, 7 M. 
 & Gr. 870, in Dom. Proc. ; Eoelandts 
 V. Harrison, 9 Exch. 444 ; Van 
 Baggen v. Baines, 9 Exch. 523 ; 
 
 Sailing Ship Garston Co. v. HicMe, 
 15 Q. B. D. 680. 
 
 * Lambert v. Liddard, 1 Marshall, 
 E. 149 ; and see the discussion in 
 Brown v. Tayleur, 4 A. & E. 241. 
 
 ' Brown v. Tayleur, 4 A. & E. 
 241. 
 
 * Oookey v. Atkinson, 2 B. & Aid. 
 460 ; S.F.in the Unifsd States, De- 
 longuemere v. Firemen's Ins. Co., 
 
CHAP. IX.j ON SHIP. 411 
 
 A sliip insured " at and from Leith to Shetland, and from Sea Ins. Co. 
 thence to Barcelona, and at and from thence and two other 
 ports in Spain, to a port in Great Britain," was lost while 
 loading at Saloe. The roadstead there was the usual station 
 for vessels of her hurden. Saloe town lay at the hottom of 
 a natural basin, protected by a headland, and without any 
 artificial harbour. It was frequented as a port, was usually 
 designated as such, and so was recognized by the Spanish 
 government and also by this country, which had a vice- 
 consul there ; it had a custom-house and harbour-master ; 
 port dues were levied there, and at the time of the loss, 
 conveniences were erected on the shore for the purpose of 
 loading goods and of protecting smaller vessels from wind 
 and weather. On this evidence the House of Lords, affirming 
 the judgment of the Scotch Court of Session, decided that it 
 was a port within the meaning of the policy.^ 
 
 When the policy is "at and from" an island or other "At and 
 district containing several ports, the risk on ship under the il°^^ con- 
 homeward policy commences directly the ship has been tainingseve- 
 moored in good safety at the first port at which she touches 
 in the island, for the purpose of discharging her outward 
 cargo. Hence, where a ship insured for her outward voyage 
 from London to Jamaica " until moored twenty-four hours 
 in good safety," was insured by a homeward policy " at and 
 from Jamaica to London," and was lost in coasting the 
 island, after she had stayed some days at one port there, but 
 before she had delivered all her outward cargo, a special 
 jury found, and Lord Mansfield supported their finding, that 
 this loss on the ship was at the risk of the underwriters on the 
 homeward policy.^ 
 
 10 Jolinson's Kep. 120, cited in 1 word port will be found in the section 
 
 Phillips, Ins. no. 929. See per on "Warranties to be free of Seizure 
 
 curiam. Sailing Ship Garston Co. v. and Conflsoation in Port," Part III. 
 
 HicMe, 15 Q. B. Div. 580. Chap. III. Excepted Itisks. 
 
 ' Sea Insurance Co. v. Gavin, 2 ^ Camden ». Cowley, 1 W. Bl. 417, 
 
 Dow & Clark, 124. Several addi- 418. 
 tional oases as to the meaning of the 
 
412 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 Seeus, if 
 
 otherwise 
 
 described. 
 
 Ever since this ease it has been clear insurance law, that a 
 ship insured for a homeward voyage " at and from " any of 
 the "West India Islands, is protected by the word " at " in 
 going from port tb port of the island.^ 
 
 In these cases, the general word by which the termites a 
 quo of the homeward voyage is described, comprehends all 
 ports and places in the island or district named; the con- 
 struction of course would be different if the terminus a quo 
 were otherwise described in the policy. Thus, if the policy 
 were on the ship " at and from the ship's port of loading " 
 in Jamaica, that would restrict the commencement of the 
 risk to one particular port in the island.^ 
 
 Contmuance So much for the Commencement of the risk on ship ; its 
 
 and termina- . . i • i j i • n t • 
 
 tion of risk continuance is expressly stipulated in all our common poucies 
 "^ ^ ^^' to be " until the ship hath moored at anchor twenty-four 
 
 hours in good safety." 
 Foreign Law. In Spain and Portugal the rule is the same ; ' in France, 
 by the Code de Commerce, the risk ends " when the ship is 
 anchored or moored to the quay of the port of discharge."* 
 In most of the ordinances and policies of Germany, Holland, 
 and the north of Europe, the risk on the ship is decreed, or 
 stipulated to continue either tmtil the ship has entirely 
 discharged her cargo, or for a certain specified number of 
 days after her arrival.' 
 
 Magens advises, for the protection of the ship while un- 
 loading, the insertion of a clause prolonging the continuance 
 of the risk for twenty-one working days after commencing to 
 discharge.^ In the absence of any special clause of this kind. 
 
 Alteration 
 proposed by 
 Magens. 
 
 ' Crmckshank v. Janson, 2 Taunt. 
 301 ; Warre v. Miller, 4 B. & Cr. 
 538. 
 
 ^ Per Patteson, J., in Brown v. 
 TayleuT, 4 A. & E. 241, 248. 
 
 ' For the older laws, see 2 Benecke, 
 pp. 234-238 ; for the more recent. Id. 
 par Nolte, vol. i. pp. 268-671. 
 
 * Code de Commerce, art. 382, 
 341. 
 
 ' By the German Code it oontinnes 
 until the discharge of her cargo, 
 art. 826. The older ordinances are 
 collected hy Magens, vol. ii. passim, 
 and by Benecke, old and new qu^ 
 supra, p. 394. 
 
 « Magens, 47 ; accord. Mercantile 
 Marine Ins. Co. v. Titherington, 34 
 L. J. (Q. B.) 11. 
 
CHAP. IX.J ON SHIP. -413 
 
 the underwriters, in an ordinary policy, are not responsible 
 for any loss that happens after the ship has once been 
 " moored twenty-four hours in good safety." 
 
 The question has generally been what constitutes a mooring What is a 
 in good safety. go"d°safety"" 
 
 The effect of the cases appears to be, that a ship is not 
 considered to have been moored for twenty-four hours in 
 good safety, unless moored for that space of time in the 
 harbour of her port of discharge : 1 — in such a state of 
 physical safety that she can keep afloat while her cargo is 
 being unloaded ; 2 — in such a state of political safety as 
 not to have been subjected during that time to any em- 
 bargo, seizure, or capture on the part of the government 
 of the port or of strangers; and, 3— runder such circum- 
 stances as to have had an opportunity of unloading and 
 discharging. 
 
 1. As to her state of physical safety during the period of i- Physical 
 twenty-four hours. 
 
 A ship arrived at Demerara, her port of destination, a Shaw. 
 perfect wreck, having received her death-wound at sea, and 
 was with the utmost difficulty kept afloat by lashing her to 
 a hulk, till all the people on board were landed, and a few 
 days afterwards, in trying to move her, she sank in the 
 harbour; Lord Kenyon held, that the risk was still con- 
 tinuing when she sunk, "for though arrived at Demerara 
 she was never moored twenty-four hours, nor a moment in 
 safety." ' 
 
 2. As to her state of political safety during that time. 2. Political 
 An EngKsh ship, the day after arrival at Eouen, was laid Minett v. 
 
 under an embargo then existing there against all English -*-'i^s'^s°°' 
 ships, and her captain and crew treated as prisoners of war ; 
 Lord Kenyon held, that the risk was still continuing, for 
 she could not be said, under the circumstances, to have been 
 twenty-four hours, or even a minute, moored in safety, 
 
 ' Shawe v. Felton, 2 East, 109. 
 
414 DERATION OF THE RISK [pART I. 
 
 having been immediately she entered the port, to all intents 
 and purposes, captured by the Prench.^ 
 Homeyer v. Where immediately on the ship's arrival at Eiga (which 
 
 iiusmngton. •' ^ . 
 
 was her port of discharge under the policy), her hatches 
 
 were sealed down and her papers sent to St. Petersburg to 
 
 be examined, on which examination the ship and cargo 
 
 were seized, and afterwards condemned; it was held, that 
 
 as there had been an incipient seizure immediately on the 
 
 ship's arrival, which ended in condemnation, this was not a 
 
 mooring twenty-four hours in good safety.^ 
 
 But our Courts have refused to regard a seizure as having 
 
 a relation back to the moment of arrival merely on the 
 
 ground of the ship's liability to seizure from that moment 
 
 onwards. 
 
 L^kyer v. A ship insured, " from Hamburg to London," had become 
 
 Ofiney. , , 
 
 liable to forfeiture under our revenue laws for smuggling 
 
 committed during the voyage; she arrived at London on 
 
 the 1st of September, was not seized by the revenue officers 
 
 for the said smuggling tiU the 27th, having been all that 
 
 time safe at her moorings in the river Thames, and the 
 
 Court held that the risk was at an end twenty-four hours 
 
 after the ship's arrival.' 
 
 3. So moored 3. The ship must have been so moored as to have an 
 
 as to have an . « . 
 
 opportunity Opportunity of unloading and discharging ; otherwise, what- 
 
 and dTsoharg. ^"^^^ t™® ^^7 ^^"^^ elapsed since her arrival, the risk will 
 
 "'^- be deemed to be still continuing. 
 
 Waples V. A ship from Leghorn to London arrived on the 8th July 
 
 at Fresh Wharf and moored, but, that same day, was ordered 
 back into quarantine for a fortnight, and her crew thereupon 
 deserted her ; she did not ultimately get into quarantine till 
 the 30th July, having in the meantime remained at her 
 moorings; and was burnt on the 23rd August, before she 
 could get permission to leave the quarantine ground. The 
 Court held that, though so long at her moorings before going 
 
 ' Minett ». Anderson, Peake's E. 46. 
 211. s Lockyer i'. OfBey, 1 T. R. 262. 
 
 ' Horneyerr. Lushington, 15 East, 
 
CHAP. IX.J ON SHIP. 415 
 
 into quarantine, ste had not been there in good safety', 
 as that must mean an opportunity of unloading and dis- 
 charging.^ 
 
 The captain of a tea-laden ship from Sierra Leone tO Samuel ». 
 London, having got orders from his owners to take the ship Ass. Co. 
 into the King's Dock at Deptford, hrought her up the river 
 for that purpose, and on Sunday evening, the 18th of 
 February, arrived ofE the dock gates ; not being able then 
 to enter, he lashed her to a King's ship outside the gates, 
 and on Monday morning, and for several days until the 
 27th, no attempt to get her into the dock could be made in 
 consequence of the state of the river from drift ice ; but on 
 that day, while she was being warped towards the dock, 
 the rope broke and the ship went ashore near the dock 
 gates and was totally lost. Lord Tenterden held, that under 
 the orders given to the captain the King's Dock must be 
 considered her place of discharge, and, consequently, as she 
 had never been there, she had not been moored twenty-four 
 hours in good safety, and so the risk continued.^ 
 
 On the contrary, if the ship be moored in such a place, 
 and under such circumstances that she has only to wait 
 till her turn of unloading comes, without again unmooring, 
 this is held a mooring in good safety. 
 
 A ship insured to London arrived at the wharf where Aiigersteiin» 
 it was intended she should unload, but was laid on the 
 outside of the tier of shipping for want of room to lay 
 her inside, and she remained so moored and lashed to 
 other vessels for seven days, when she was forced adrift 
 by the ice and lost ; Lord Kenyon held, that she had been 
 moored twenty-four hours in good safety.' 
 
 A case illustrating more than one of these points was that Lidgett v. 
 
 Secretan. 
 
 1 Waples V. Eames, 2 Str. 1243. v. Unit. Ins. Co., II Johns. R. 358, 
 
 2 Samuel ». Royal Exoh. Ass. Co., 8 cited 1 Phillips, no. 968. i 
 B. &Cr. 119. See the case of Zacharie ^ Angerstein v. Bell, 1 Park, Ins. 
 V. New Orleans Ins. Co., 5 Martin's 54 ; 1 Marshall, Ins. 263. 
 Louisiana R. N. S. 637, and Dickey 
 
416 DURATION OF THE RISK [PART I. 
 
 of The Charlemagne^ insured " at and from London to Cal- 
 cutta, and for thirty days after arrival ; " the words " until 
 she have moored at anchor twenty-four hours in good 
 safety " still remaining part of the policy. She sailed from 
 London on the 22nd of July, 1866, with troops on board, 
 and on the 24th of October, while on her voyage, she struck 
 on a reef, and thereby suffered such damage that her pumps 
 required to be kept constantly going, and her steering gear 
 was materially injured. In this condition, on the 28th of 
 October, she came to anchor in the river opposite Calcutta, 
 within the harbour of Calcutta, at a place where vessels 
 commonly discharge their cargo, and there she safely com- 
 pleted the discharge of her cargo on the 8th of November, 
 sixteen lascars being employed with a fire engine in pumping 
 the water out of her, until she lightened sufficiently to lessen 
 the leak and to place the water under control of the ship's 
 pumps. The ship while in this position was exposed to the 
 perils common to all vessels so anchored, viz., the strong 
 currents and the bore in the Hooghly, aggravated in her 
 case by the bad condition of her steering gear if she had 
 broken adrift. She was then placed in a dry dock for 
 repairs, and while there, and after the lapse of twenty-four 
 hours, and more than thirty days in addition, she was 
 completely destroyed by fire. 
 
 It was unnecessary in the events which had happened to 
 determine in this case whether under this policy the thirty 
 days were to be reckoned from the arrival of the vessel at 
 Calcutta, or from her having moored at anchor twenty- 
 four hours in good safety. BoviU, C. J., delivering the 
 judgment, said : — " Assuming, then, that the thirty days are 
 to be reckoned from the time of the ship being moored for 
 twenty-four hours in good safety, the question arises. 
 What is the meaning of those words in such a policy ? 
 We are of opinion that the meaning is not, as has been 
 contended, that the moorings are safe, but that the words 
 
 ' Lidgett V. Secretan, L. E., 5 C. P. 190. 
 
CHAP. IX.] ON SHIP. 417 
 
 refer to the ship being in safety. The words cannot mean 
 that the vessel is to arrive vnthout any damage or injury 
 whatever from the effects of the voyage; otherwise, the 
 loss of a mast or even a spar, a sail, or rope, though the 
 vessel was perfectly fit to keep not only the river hut the 
 sea, would, contrary to all the ordinary meaning of lan- 
 guage, prevent her from being considered as in safety. So, 
 on the other hand, the words would not, in our opinion, be 
 satisfied by the vessel arriving and being moored in a sinking 
 state, or as a mere wreck, or by a mere temporary mooring. 
 "We think, also, that the mere liability to damage, whether 
 partial or total, during the twenty-four hours, by the occur- 
 rence of some or all of the perils insured against, cannot 
 prevent the running of the twenty-four hours, because the 
 extension of the period of risk for twenty-four hours, after 
 having moored in good safety, clearly implies that, not- 
 withstanding the safety intended, the ship is liable to 
 partial or total loss by the occurrence of a perU insured 
 against. In the present case the vessel, though considerably 
 damaged and leaky, and with one compartment full of 
 water, existed as a ship at the time of her arrival, and she 
 was able to keep afloat, and did keep afloat as a ship more 
 than twenty-four hours after being moored, by exerting the 
 means within the power of the captain. She arrived and 
 moored at the ordinary place for unloading, and was so 
 moored as a ship in the possession or control of her owners 
 for more than twenty-four hours; and she remained as a 
 ship and in possession of her owners for more than thirty 
 days after the lapse of the twenty-four hours before de- 
 scribed, and until the time of the fire by which she was 
 totally lost." It was therefore held, that the total loss which 
 had occurred was not within the period of risk covered by the 
 outward policy, and that only the average loss was recoverable 
 under it.^ 
 
 ' lidgett V. Secretan, L. S., 6 C. policy on a different point (L. E., 6 
 P. 190, 198, 199, 200. See this case 0. P. 616), post. Part III. o. 6. 
 considered with reference to another 
 
 M. E E 
 
418 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 Arrival. In Case the policy were to a place, say " Mauritius, and for 
 
 thirty days after arrival," it must become a question whether 
 under the circumstances there had heen any arrival within 
 the meaning of the policy, and if any, when, and that would 
 be a question of fact for the jury.^ 
 
 Whitwell V, 
 Harrison. 
 
 A ship insured from Liverpool to Quebec and back to a 
 port in the United Kingdom, was, by the charter-party, to 
 proceed to Wallasey Pool, on the river Mersey, or as near 
 thereto as she could safely get. She arrived in the Mersey 
 on the 4th September, and was towed up next morning 
 abreast of Wallasey Pool, where, as she could not enter the 
 Pool by reason of her great draught of water, the captain 
 anchored and reported the vessel at Liverpool. He engaged 
 lumpers and discharged the crew; and after the deck 
 loading, and also a considerable portion of the cargo, had 
 been unloaded, the ship, on the 14th September, fell over 
 and sustained injury. The captain had always intended to 
 take the vessel into Wallasey Pool with as much of the 
 cargo as she could safely carry. The Court of Exchequer 
 nevertheless held, that the ship had moored twenty-four 
 hours in safety, and consequently that the underwriters were 
 not liable.^ 
 
 Duration of If there were no such clause as that which we are discussing 
 ordinary in the policy, the risk on the ship would continue until safe 
 ciaxise. arrival at her port of destination, but would cease immediately 
 
 on being at her moorings.' 
 
 When insured What, under a policy to an island, or to a district com- 
 prising severar ports, at all of which the ship may discharge, 
 
 ' Lindsay 4). Janson, 28 L. J. (Ex.) 
 315; 4H. &N. 699. 
 
 '■' Whitwell V. Harrison, 2 Exch. 
 127 ; 18 L. J. (Ex.) 465. 
 
 ' Anonymous case, Skin. E. 243. 
 See also Dickey v. United Ins. Co., 
 
 11 Johnson's cases, 358, cited 1 Phil- 
 lips, Ins. no. 968. "I quite agree 
 ■with the statement in Arnonld: " per 
 BramweU, B., in Stone v. Marine 
 Ins. Co., Ocean, Limited, of Gothen- 
 burg, 1 Exch. Div. 81, 85. 
 
CHAP. IX. J ON SHIP. 419 
 
 is the duration of the outward risk on ship so insured ? This 
 
 mode of insurance is exceedingly common in the West India 
 
 trade. Circumstances, which can only be ascertained on 
 
 arrival, may make it expedient for the ship to touch at more 
 
 or fewer of these ports, or to visit them in any order which 
 
 may seem most suitable on the spot. 
 
 It was decided in the time of Lord Mansfield, and has The outward 
 . . n 1 1 • 1 ^^^ °^ snips 
 
 ever smce been a clear pomt m insurance law, that the risk so msured. 
 
 on the outward voyage upon a ship so insured, terminates 
 
 immediately after the ship has moored for twenty- four hours 
 
 in safety at the first port in the island at which she stops to 
 
 discharge the bulk of her cargo, and that afterwards, if lost 
 
 in coasting round the island, it is the underwriters on the 
 
 homeward policy, if any, who are alone liable.^ 
 
 Nor does it make any difEerence as to the liability of the 
 underwriters on the outward policy on ship, that a small 
 part of the outward cargo is stiU on board at the time of loss. 
 Thus, in Leigh v. Mather, as the ship had moored and un- 
 loaded the great bulk of her outward cargo at Montego Bay, 
 in the island of Jamaica, the outward risk on the ship was 
 held to be at an end, notwithstanding a small part was sent 
 round to the port of St. Ann's in the same island.^ 
 
 A ship insured " to Martinique and aU or any of the Inglia v. 
 Windward and Leeward Islands, with liberty to touch at 
 any ports or places whatsoever, to take on board and land 
 goods, stores," &c., arrived at Martinique, where the captain 
 disposed of all his outward cargo, except a small quantity of 
 lime and bricks, with which he sailed for, and arrived at 
 Antigua, and there remained for about five weeks, partly, as 
 he said, to dispose of the remnant of the outward cargo, and 
 partly to procure a homeward cargo ; at the end of this time 
 she went down in a hxirricane, with the lime and bricks still 
 
 1 Camden v. Cowley, 1 "W. Bl. 417, 301. 
 
 418 ; Barrass v. London Ass. Co., 1 " Leigh v. Mather, 1 Marshall, Ins. 
 
 Park. Ins. 74; 1 Marshall, Ins. 266; 266. 
 Cruiokshank v. Janson, 2 Taunt. 
 
 E E 2 
 
420 DURATION OF THE RISK [pART I. 
 
 on board; and Lord Ellentorough held the underwriters 
 on the outward policy not liahle for this loss, as the risk on 
 the ship came to an end, at aU events, directly the disposal of 
 the outward cargo at Antigua ceased to be the sole object of 
 the captain's stay there.^ 
 Moore v. A ship was insured for a trading voyage from the West 
 
 Indies to this country and back, in the following terms : — 
 " At and from St. Yincent's, Barbadoes, and all or any other 
 of the "West India Islands (Jamaica and St. Domingo ex- 
 cepted), to her port or ports of discharge and loading in the 
 United Kingdom, during her stay there, and thence back 
 again to Barbadoes and all or any other West India Islands 
 (Jamaica and St. Domingo excepted), until the ship should 
 be arrived at her final port as aforesaid, with liberty to th% 
 ship in that voyage to proceed to and touch and stay at any 
 port or places whatsoever, and to load and unload goods at 
 all places she might call at." Having sailed to Liverpool, 
 she there took on board for the return voyage, amongst other 
 things, a quantity of coals and bricks ; which, in weight, 
 formed about one-third of the whole cargo, but in value not 
 above one-eighteenth. She arrived at Barbadoes, and dis- 
 posed of all her cargo except the coals and bricks ; with these 
 on board, and also some empty sugar casks loaded on board 
 at Barbadoes, she was ordered to proceed to Berbice for the 
 purpose of bringing back a cargo, when, just before sailing, 
 she was lost by a hurricane oif Barbadoes. 
 
 There was some doubt on the evidence whether the coals 
 and bricks were on board as ballast, or whether they formed 
 part of the outward cargo, and were intended to be disposed 
 of at Berbice. Lord Denman directed the jury to find for 
 the defendant {i.e., that the risk on the ship was at an end 
 at the time of loss) if they thought that the cargo had been 
 substantially discharged at Barbadoes: the jury thought 
 that it had, and found accordingly for the defendant. The 
 Court in banc held this direction right, and, though they 
 
 ' Inglis V. Vaux, 3 Camp. 437. 
 
CHAP. IX.] ON SHIP. 421 
 
 seemed to think that the jury had drawn an incorrect 
 conclusion from the facts, refused to disturh the verdict.^ 
 
 It has been held in the United States that under a policy To au i8laiid 
 ■, . , A ./ ^^^ g^ market, 
 
 on ship to any West India Island named, say Barbadoes, 
 
 " and a market," the ship wUl be protected in going bond fide 
 
 from island to island till her cargo is disposed of.^ 
 
 The special jury, in the case of Leigh ». Mather, stated, Effect of dis- 
 and Lord Kenyon admitted, that if a ship, insured from A. smaU part 
 to E. put into a port of distress, and there disposed of part of °° ^' 
 her cargo, the risk on the ship does not terminate there, but 
 continues until her arrival at some port at which it was 
 originally contemplated that she should discharge her cargo 
 in whole or in part.' 
 
 This appears to be a very just rule, and is illustrated and 
 confirmed in the jurisprudence of the United States. Where 
 a ship was insured from the United States to Europe and 
 back " to her port of discharge in the United States," it was 
 held that the landing of 150 boxes of lemons at New York, 
 a port into which the ship had put to wait for orders, the 
 lemons, moreover, being in a perishing state and likely to be 
 spoiled, did not make New York the port of discharge. under 
 this policy, so as to terminate there the risk on the ship.* 
 In the same Court, where a ship, under the same form of 
 policy, having put into New York for orders, and being 
 directed to proceed up the Connecticut River to Middletown, 
 necessarily landed about 3000 bushels of salt into lighters at 
 New York to be carried up to Middletown, and then herself 
 proceeded thither with the residue of the cargo, it was held 
 that, notwithstanding this necessary discharge of part of the 
 cargo there, New York was only the port of arrival, and not 
 
 1 Moore v. Taylor, 1 A. & E. 25. = Leigh v. Mather, 1 Esp. 412. 
 
 - Max-well».Bobmson,l Johnson's * Sage v. Middletown Ins. Co., 1 
 
 Eep. 333, cited 1 Phillips, Ins. no. Connecticut Eep. 239 ; 1 PhiUips, 
 
 960. So, Deblois v. Ocean Ins. Co., Ins. no. 962. 
 16 Pick. (Mass.) 303. 
 
422 DURATION OF THE RISK [pART I. 
 
 the port of discharge, and therefore that the risk continued 
 to Middletown.i 
 Eesult. From these cases it evidently is not the fact of unloading 
 
 at any port into which the ship runs in the course of the 
 voyage, that puts an end to the risk on the ship, when 
 insured either generally to an island or country, or to her 
 port or ports of discharge. It is not until she has moored 
 twenty-four hours in good safety at the first port at which 
 she was intended to unload, and at which the master actually 
 breaks hulk for the purpose of unloading, either the whole 
 or the greater part of the cargo, that the risk on the ship will 
 be held to terminate. 
 
 If, indeed, the port she puts into be one to which she was 
 originally destined, then, if she be lost after having moored 
 there twenty-four hours in good safety, the risk on the ship 
 will, no doubt, be at an end, even although she has not actually 
 broken bulk, but be only preparing to unload her cargo at 
 the time of the loss. 
 
 On the other hand, if the ship enter a port with only a 
 ' contingent purpose to unload there in case circumstances 
 should render it expedient, it has been decided in the United 
 States that such port shall not be deemed her port of dis- 
 charge, so as to terminate the risk on the ship by her mooring 
 there for twenty-four hours in good safety. A vessel, insured 
 from the West Indies "to her port of discharge in the United 
 States," put into Savannah in Georgia, where the master in- 
 tended to discharge his cargo if the market was favourable ; 
 but, not finding it so, he resolved to proceed to Boston, and 
 accordingly, after doing repairs at Savannah, but without 
 breaking bulk there, he sailed for Boston, and was lost ; the 
 Court in Massachusetts held, and apparently on very sound 
 prraciples, that the risk on the ship, under the circumstances, 
 continued to Boston.^ But where the insurance was to 
 
 ' King V. Middletown Ina. Co., ^ Lapham v. Atlas Ins. Co., 24 
 
 1 Connecticut Eep. 184 ; 1 Phillips, Pickering's Mass. Eep. 1. See 1 
 Ins. no. 962. PhiUips, Ins. no. 962; 3 Kent. Com., 
 
CHAP. IX.J ON SHIP. 423 
 
 " Bilboa or a port of discharge," and the ship had put into 
 
 Bilhoa and discharged part of her cargo, and then sailed to 
 
 Lishon ; it was held, in the United States, that the outward 
 
 risk ended at Bilboa.^ 
 
 The general rule in France, as to the duration of the out- ^^^ °* 
 ° ' . . France, 
 
 ward, and commencement of the homeward risk on a ship 
 
 insured for the West India trade, seems to he substantially 
 the same as our own ; viz., that the risk on the ship under 
 the outward policy continues till her arrival at the port of 
 substantial discharge, and cannot be extended beyond that, 
 merely because an inconsiderable portion of the outward 
 cargo may stiU be on board after she has sailed from that 
 port, or at the time of loss.^ 
 
 Thus, where a ship, under a policy on the French West 
 India trade, by which the risk was expressed to continue 
 " until the whole cargo should be discharged and landed in 
 good safety," touched at St. Louis in St. Domingo, com- 
 menced the sale of her outward cargo, and then proceeded to 
 Aux Oayes in the same island, where she completed the sale 
 of all but one package of hats, and whUst sailing thence for 
 Port-au-Prince was lost with the hats on board; the under- 
 writers on the outward policy were held by the French 
 Courts not liable for this loss, on the ground that the risk 
 had terminated at Aux Cayes, the port of substantial dis- 
 charge.^ 
 
 But where a ship, similarly insured, having touched at 
 Jacmel, St. Domingo, and there sold a small portion of 
 her outward, and taken in a small portion (twenty-six bales 
 of cotton) of her return cargo, was lost while sailing from 
 Jacmel to St. Louis, in order, partly to sell the residue of 
 her outward, and partly to complete the loading of her 
 homeward cargo ; it was held, that the ship, at the time of 
 
 309, note. See also tte case of Coo- meaning' of the expression," said the 
 
 lidge V. Gray, 8 Mass. R. 527, cited 1 Chief Justice, " is to Bilboa or some 
 
 Phillips, Ins. no. 962. other port of discharge." 
 
 1 Stephens J). Beverly Ins. Co., cited ^ 2 Emerigon, c. xiii. s. 18, p. 108. 
 
 1 Phillips, no. 963. "The plain ^ 2 Emerigon, 109. 
 
424 DURATION OF THE RISK [pART I. 
 
 loss, was still at risk under the outward policy, the great 
 bulk of the outward cargo still remaining on board. ^ 
 
 As it seems to be repugnant to French law that the out- 
 ward and homeward policies on ship should be concurrent, 
 Emerigon proceeds to consider what rules will enable the 
 practitioner to determine when the one ceases and the other 
 attaches.^ No such principle exists in the law of England ; 
 so that if the "outward policy be " until moored twenty-four 
 hours in good safety," and the homeward policy be " at and 
 from " the same port, both policies may well be concurrent 
 during the last four-and-twenty hours. 
 
 Port or ports Questions have arisen as to the duration of the risk on the 
 
 ^^' ship when she is insured " to her port of discharge," or, " to 
 
 her port or ports of discharge," or to a named place " and 
 
 her port of discharge," or " to her final port of discharge or 
 
 destination." 
 
 In one of the earlier English cases it was said, that the 
 ship's port of discharge means that at which it was originally 
 intended that the goods should be delivered;' and it has 
 been held in the United States, apparently on good grounds, 
 that the risk on the ship under an insurance " to her port of 
 discharge" (in the singular) terminates twenty-four hours 
 after she is moored in safety at the port where, in pur- 
 suance of the original intention of the parties to the policy, 
 she first breaks bulk for the purpose of discharging her 
 cargo.* 
 
 Where the insurance is to her " port or ports of discharge" 
 
 ' 2 Emerigon, p. 109, 110; seealso for disoriminatmg between the re- ' 
 
 p. 11*- spective assurers as to liability, and 
 
 2 See 2 Emerigon, 0. xui. s. 20, and the editor's neglect of M. Pazery's 
 
 note by Boulay-Paty. So Boulay- query— why not divide the loss, 
 
 Paty, Droit Mar. t. ui. 423-426. It evince a repugnance on their part 
 
 is true, Emerigon assumes that the to conceive of the liability being con - 
 
 agreements in the policies may be current and the loss common, 
 found "en conoours," and asks ' Claaon». Simmonds, 6T.R. 533, 
 
 whether "la perte est-elle commune note. 
 
 aux assureurs des polices respeo- * CooHdge i». Gray, 8 Mass. K. 527 ; 
 
 tives?" But the rules he lays down 1 PhiUips, Ins. no. 962. 
 
CHAP. IX.J ON SHIP. 425 
 
 in the alternative, the duration of the risk could not, it would 
 seem, be confined to the first port at which she has hroken 
 hulk and discharged the cargo to any amount, however 
 trifling, but would be extended until twenty-four hours after 
 her arrival at that port, where, in fact, she substantially 
 discharges her cargo, i. e., the great bulk of it.i 
 
 This is unquestionably the rule when the ship is iasured Mnal port of 
 " to her final port of discharge," as appears by the following ^°^s^- 
 cases : — 
 
 A ship insured " till her safe arrival at her last port of MofEat v. 
 discharge in the East Indies or China," unloaded all her '^'^' 
 cargo at Madras, and was afterwards lost on her way to 
 Bengal ; the Court held, that the risk on the ship had ended 
 before the time of the loss ; for by the true interpretation of 
 the policy, the last port of discharge was not that where the 
 ship might have been originally destined to discharge any 
 part of her cargo, but that where she actually did discharge 
 the whole of it.^ 
 
 In this case the whole cargo had been discharged at 
 Madras : iu that which follows, only a part of the cargo was 
 unloaded there, and the residue, intended for an ulterior 
 port, was stni on board at. the time of the loss. 
 
 A ship, insured " from London to Madras and Bengal, or Preston v. 
 the ship's last port of discharge of her Europe cargo beyond ^^^^^°° • 
 the Cape of Good Hope," was, to the knowledge of the under- 
 writers at the time of subscribing the policy, destined for 
 China; on arriving at Madras she unloaded a considerable 
 part of her cargo there, but still had on board all that part 
 of it which had been originally destined for China, when she 
 perished by a hurricane in Madras roads. Lord Mansfield 
 told the jury to find for the plaintiffs, for he held that the 
 risk on the ship, under this policy and these circumstances, 
 continued till the ship's arrival at China.^ 
 
 ' See ante, p. 419. ^ Preston n. Grreeuwood, i Dougl. 
 
 2 Moffat X,. Ward, i Dougl. 29, 28, 33 ; see also Moore v. Taylor, 1 
 note (ff), 31, note (A). A. & E. 25. 
 
426 
 
 DURATION OF THE KISK 
 
 [part I. 
 
 Wten it is 
 illegal 
 to enter the 
 last port of 
 
 Brown v. 
 Vigne. 
 
 If a ship insured to port or ports, " until arrival at her last 
 port of discharge," elects to put into some other port hecause 
 it would be illegal by the laws of war to continue her voyage 
 to the port of original destination, and disposes of a consider- 
 able part of her cargo in the substituted port, the risk on the 
 ship ends after she has moored there twenty-four hours, even 
 though the captain may not at the time of loss have entirely 
 abandoned the intention of ultimately proceeding to the place 
 of his original destination. 
 
 A ship was insured " at and from London to any port or 
 ports in the River Plate, until her arrival at her last port of 
 discharge in the River Plate." There are three ports in the 
 River Plate, which are reached in the following order by a 
 ship arriving from England : 1. Maldonado ; 2. Monte 
 Yideo ; 3. Buenos Ayres. The captain, on sailing from 
 England, had intended to proceed to Buenos Ayres, but on 
 his arrival in the River Plate, learning that Buenos Ayres 
 was in the hands of the Spaniards, then at war with this 
 country, he sailed past Maldonado, and put into Monte Yideo, 
 which was then occupied by the English. His intention, on 
 putting into Monte Yideo, was to land and sell his whole 
 cargo and finish the voyage at that place, if he found the 
 markets favourable ; finding the sale, however, duller than 
 he expected, he had not given up all thoughts of proceeding 
 on to Buenos Ayres for a market, with that portion of the 
 cargo which he could not sell at Monte Yideo, when his ship 
 was fouled in Monte Yideo harbour, and received the damage, 
 to recover which the underwriter was now sued under this 
 policy. The Court held that the plaintiff could not recover, 
 the risk on the ship having come to an end after she had been 
 safely moored for twenty-four hours in Monte Yideo.^ 
 
 In the course of the argument Bayley, J., intimated that 
 the words "last port of discharge," must mean "the last 
 practicable friendly port of discharge ; " just as in an insur- 
 ance on a ship " from Liverpool to any of the Windward 
 
 ' Brown v. Vigne, 12 East, 283. 
 
CHAP. IX. j ON SHIP. 427 
 
 or Leeward Isles," Lord Kenyon had previously held that 
 the meaning of such policy must be to any of such isles as 
 ■were friendly ; for that a hostile port could not be in the 
 contemplation of the parties at the time the policy was 
 effected.^ 
 
 It will be observed, that in this case the port originally 
 contemplated as the final port of discharge, was in a state 
 of open hostility at the time the vessel reached the River 
 Plate ; so that it would have been absolutely illegal for her 
 to have proceeded to such port : this is very different from 
 the case of a mere temporary obstruction, or one in which, 
 though there might be danger, yet there would be no ille- 
 gality in proceeding to the final port ; and that constitutes 
 the point of distinction between this case and that of 
 Oliverson v. Brightman.^ 
 
 If a ship entirely abandons the voyage insured, and finally If the ship 
 gives up all hope of proceeding to the port of her original dons all 
 destination, the risk on the ship is at an end immediately OTOMedSigto 
 that determination is definitely formed. On the other hand, ^^? p™* "* 
 
 ... . original 
 
 if the ship, yielding to the irresistible force of present cir- destination, 
 cumstances, merely put back or lie by for a time, with the 
 intention of ultimately proceeding to the original terminus, 
 she is deemed to be still on the voyage insured, and the risk 
 continues till her arrival at the final terminus. But in order 
 to this being so held, the obstruction must be temporary only 
 in its nature, and the ultimate point of destination continue 
 the same. 
 
 A ship insured to a port in the Baltic, finding it blocked 
 up with ice, took shelter for the winter in a place as near to 
 it as she could safely go, and waited till the spring, when, on 
 the first thaw, she sailed for it again ; the risk on the ship 
 was held to continue till her arrival there.* 
 
 ' Neilson v. Delaoour, 2 Esp. 619. citing the case in the judgment in 
 
 2 Oliverson v. Brighfcman, 8 Q. B. Blaokenhagen v. London Ass. Co., 1 
 781, ante, p. 400. Camp. 454 ; and in Brown v. Vigne, 
 
 3 Per Lord EUenborongh, 0. J., 12 East, 283, 286. 
 
428 
 
 DURATION OF THE RISK 
 
 [PAKT 1. 
 
 Blaokenhagen But where a ship insured from London to Revel, finding 
 Assirrauce ^n embargo at Eevel, sailed back from the Baltic by orders 
 ompany. q£ g^ British man-of-war to Copenhagen Eoads, and then, 
 entirely abandoning her voyage, accompanied the fleet to 
 England ; Lord EUenborough nonsuited the plaintiff on the 
 ground that the risk had terminated under this poHoy, at 
 all events, directly the ship had put about for England in 
 Copenhagen Eoads.^ 
 
 His Lordship, however, remarked that had the ship been 
 coming home as the best means of getting finally to Eevel, 
 and there had been a possibility of her accomplishing that 
 object when the loss happened, she might still have been 
 considered in the course of the voyage insured ; but that all 
 thought of completing her original voyage seemed to have 
 been abandoned when she sailed home from Copenhagen with 
 the fleet.2 
 
 In such cases, in fact, the risk may be held to continue 
 on the ship during the whole period in which she can be 
 fairly considered as taking measures with a view to ulti- 
 mately arriving at the port of destination ; but she will not 
 be protected if, when turned away or forced to desist from 
 proceeding to her original port, because of its being in the 
 hands of the enemy, she forthwith prosecutes a new voyage 
 to the nearest friendly port, even though it be a voyage of 
 necessity." 
 
 Parkin v. 
 Tuuno. 
 
 Duration 
 prolonged by 
 usage. 
 
 The usages in the East India Company's trade may still 
 be referred to for the purposes of illustration. By the usual 
 course of that trade, the Company's ships on arriving out 
 were liable to be employed at the discretion of the different 
 presidential governments in intermediate voyages, or in what 
 was called the country trade ; their charter-parties stipulated 
 permission to prolong the ship's stay for a year or more; 
 and their policies adapted to this usage were uniformly held, 
 in the absence of restricting clauses, to cover all intermediate 
 
 ^ Blackenhageu v. London Ass. 
 Co., 1 Camp. 454. 
 
 Ibid. 
 
 Parkin v. Tunno, U East, 22. 
 
CHAP. IX.J ON SHIP. 4-29 
 
 voyages in the Indian seas.' So great, indeed, was the 
 influence of usage in the construction of these policies, that 
 the clause " to touch, stay, and trade at any ports whatso- 
 ever," or this clause, omitting the words "and to trade," 
 sufficed, with the usage, to protect the ship while engaged on 
 one or even a second country voyage for trading purposes.^ 
 
 It was formerly a rule in the East India trade, that a Preston v. 
 voyage to China was not to he held included in a policy on 
 a Company's ship, unless China were expressly named in 
 the instrument ; where, however, it clearly appeared that the 
 ship's destination for China was publicly known at the India 
 House, and that the premium was the same as it would have 
 been on a China voyage, although the insurance in terms 
 was only " from London to Madras and Bengal, or the ship's 
 last port of discharge of her Europe cargo beyond the Cape 
 of Grood Hope," Lord Mansfield held that although the word 
 China was not introduced into the policy, yet, as the words 
 in themselves certainly extended to China, the risk, under 
 the circumstances, must be considered as continuing on the 
 ship till her arrival in China, and the underwriters as having 
 contemplated the ship's proceeding thither when they sub- 
 scribed the policy.^ 
 
 If the assured and the consignees of cargo agree to sub- Earlier termi- 
 stitute an earlier port for the port of delivery, the risk will consent. 
 end there. A ship insured " from Boston to Tonningen," 
 was compelled, by stress of weather, to enter the Elbe for 
 safety, and proceed up to Gluckstadt, where the consignees 
 consented to receive the cargo, and did receive it : it was held 
 in the United States, that there was an end of the risk on 
 the ship at that port.* But the risk on a ship insured for a 
 
 ' Salvador v. Hopkins, 3 Burr. ' Preston v. Grreenwood, 4 Dougl. 
 
 1707 ; G-regory v. Christie, 3 Dougl. 28. Bnller, J., had on a former trial 
 
 419 ; 1 Park, Ins. 104 ; 1 Marshall, directed the jury to find for the 
 
 Ins. 273. defendants. 
 
 2 Farquharson v. Hunter, 1 Park, * Shapley v. Tappan, 9 Mass. E. 
 
 Ins. 105 ; 1 Marshall, Ins. 274 ; 20, cited 1 Phillips, Ins. no. 964. 
 Gregory v. Christie, qud supra. 
 
430 
 
 DURATION OF THE EISK 
 
 [part I. 
 
 Exception of 
 
 fishing 
 
 voyages. 
 
 Stone V. 
 Marine Ins. 
 Co., Ocean 
 Limited of 
 Gothenburg. 
 
 fishing voyage cannot be terminated by a portion of the 
 cargo or produce of the voyage being sent home by another 
 ship, and arriving in safety before the loss.^ 
 
 In the case of a ship reinsured " from Liverpool to Phila- 
 delphia and back to the United Kingdom," it was found 
 that a large part of her homeward cargo had been sold by 
 the charterer to persons in Antwerp, and the underwriters, 
 at request of the assured, endorsed the policy thus : " In 
 consideration of an additional premium of 7s. 6d. per cent., 
 it is hereby agreed to allow the vessel to go to Antwerp." 
 The question was as to the effect of this memorandum under 
 the following circumstances. The vessel, without calling at 
 the United Kingdom, had arrived in the outer dock on her 
 way into the inner dock of Antwerp, when the captain was 
 ordered by telegraph to Leith. He sailed for Leith as soon 
 as he could, and on his way thither his ship was totally lost 
 by perils of the seas. It was held that the memorandum 
 construed with the policy might mean to Antwerp by way 
 of the United Kingdom, but whether this or not, that 
 Antwerp was certainly to be taken to be the final port of 
 her destination, and consequently that the ship was not 
 protected by the policy at the time of her loss.^ 
 
 Continuance 
 of risk by 
 usage. 
 
 Generally speaking, the underwriter on a sea-policy only 
 insures against sea risks ; consequently, in the absence of 
 usage to modify such a policy, he is not responsible for a loss 
 that takes place on shore.' Usage, however, in this, as in 
 other cases, may determine the rights of parties under 
 policies of insurance; and if it can be shown that ship's' 
 furniture is regularly landed at certain ports on the voyage 
 by the usage of trade, it is then as much within the 
 
 ' Phillips !). Champion, 6 Taunt. 3 ; 
 1 Marshall's R. 402, S. C. In Taun- 
 ton the insurance is stated to have 
 been "on ship," in Marshall "on 
 freight : " the former is probably 
 correct. The Court dismissed the 
 
 underwriter with ridicule, which, in- 
 deed, it deserved. 
 
 ^ Stone V. Marine Ins. Co., Ocean 
 Limited of Gothenburg, 1 Exch. Div. 
 81. 
 
 3 Ha;rrison ». Ellis, 7 E. & B. 465 ; 
 
 argument against the liability of the 26 L. J. (Q. B.) 239. 
 
CHAP. IX.] ON SHIP. 431 
 
 protection of a policy on ship, while thus put on shore, 
 according to the course of trade, as when on hoard the ship 
 herself.^ 
 
 A policy on ship "to any port or ports in the South or Prolongation 
 North Pacific Oceans, in any order backwards and forwards, •*" "^^"^^'^ 
 and during thirty days' stay in her last port of discharge," 
 proceeded iu the nsual words of the printed form " upon the 
 said ship until she hath moored at anchor twenty-four 
 hours in good safety." After the expiration of thirty days 
 from the ship's arrival, and during the currency of the next 
 four-and-twenty hours, a total loss of the ship took place, 
 which was held to be within the risk covered by the policy. 
 
 In the argument for the insurer in this case, a subtle 
 construction of the policy was suggested, only admissible on 
 the assumption that the stipulated thirty days preceded the 
 usual twenty-four hours at anchor. The order of precedence 
 in respect of these two stipulated periods in prolongation of 
 the risk became in that case, as it may become in others, of 
 the very essence of the contract. The Court said, " We 
 must construe the policy so as to make all the parts of it 
 available, and we cannot see why we should not read it as 
 meaning that the thirty days should run from the expiration 
 of the twenty-four hours after the ship had moored at anchor 
 [in good safety]." ^ 
 
 In the case of time policies, usually expressed to begin On time 
 from the meridian of such a day, the calculation of time for 
 the end of 'the risk must be in accordance with the meridian 
 of the place where the policy was executed, otherwise the 
 ship, by sailing eastward or westward of that place, would 
 appear to shorten or prolong the duration of the risk. 
 
 1 Pelly f. Royal Exchange Asa. words witMn brackets from the policy 
 
 Co., 1 Burr. 341 ; Brough v. Whit- as properly expressing the meaning 
 
 more, i T. R. 206. and intention of the Court, because 
 
 ' The Mercantile Marine Ins. Co. they may be of vital importance in 
 
 41. Titherington, 34 L. J. (Q. B.) II ; some cases. See Lidgett ». Secretan, 
 
 5 B. & S. 765. I have added the L. R., 5 0. P. 190. 
 
432 
 
 DURATION OF THE RISK 
 
 [part I.. 
 
 Duration of 
 risk on 
 freight. 
 
 Commence- 
 ment of risk. 
 
 On freight 
 proper. 
 
 We now come to discuss the subject of this chapter in 
 relation to freight. The object of an insurance on freight is 
 to protect the shipowner from being deprived, by any of the 
 perils insured against, of the profits he would otherwise acquire 
 under the affreightment of his ship, or by the carriage of his 
 own goods, or the goods of another. 
 
 In considering at what moment, or under what circum- 
 stances, the risk on freight commences, it is material to bear 
 in mind the two general significations of this word; — the 
 first as being the reward which is earned by the carriage on 
 shipboard of another's goods, the proper signification of the 
 word in the law of shipping: — and the second as being the 
 stipulated hire of a ship or part of it for performance of the 
 contract in the charter-party, called by us, shortly, the char- 
 tered hire of the ship. There is a third use of the word in 
 insurance law to designate the accession of value accruing to 
 the shipowner by the carriage of his own goods in his own 
 ship ; but for our present purpose that use may be neglected 
 here. In order to avoid confusion we shall deal with this 
 subject in relation to each of these two general significations 
 of freight severally and apart. 
 
 Freight, in the first of these senses, becomes a perfected 
 right upon the carriage being completed by delivery of the 
 goods, that is to say, in abstract terms, upon the relation in 
 fact and law between the ship and the goods which was 
 formed for a certain purpose being dissolved on the accom- 
 plishment of that purpose. Consequently an insurable inte- 
 rest in such freight first arises, the risk then commences, an 
 inchoate title to this freight accrues when ship and goods 
 are for the first time so placed in this relation in fact and 
 law that nothing but the intervention of the perils insured 
 against can prevent the accomplishment of the purpose 
 contemplated by means of it.> Whether this relation be 
 
 ' See the case of, and observations 
 by Lord Ellenborongh on, Forbes v. 
 Aspinall, 13 East, 323 ; Williamson 
 
 V. Innes, cited 8 Bing. 81, note; 
 Warre v. Miller, 4 B. & Cr. 538. 
 
CHAP. IX.J ON FREIGHT. 433 
 
 constituted, and when, are questions of considerable nicety, to 
 be determined on the circumstances in each case seTcrally as it 
 arises ; but they admit of being illustrated, and much assist- 
 ance may be obtained from cases that have already been the 
 subject of judicial decision. 
 
 For instance, if the goods are actually on board, such a 
 relation no doubt subsists between ship and goods, that an 
 insurable interest in freight is in existence and the policy on 
 freight has attached. It by no means follows, however, that 
 if the goods are not actually on board, no insurable interest 
 on freight can have accrued. Such indeed was the ratio 
 decidendi in an old case, of which the facts appear to have 
 been such as to justify the decision, but upon a different 
 principle. 
 
 In Tonge v. Watts,^ it seems that there was a cargo ready Tonge v. 
 to be shipped. The vessel herself was being careened with a 
 view to the voyage ; but she was lost by a sudden tempest 
 before any cargo was shipped or she was ready to receive it. 
 In that case, although the cargo was ready, the ship was not, 
 and consequently both were not then in fact and law in that 
 relation proper and necessary to the earning of freight, so 
 that the risk had not commenced. This, as the law now 
 stands, seems to be the principle of the case, and not the 
 absence of the goods on board, although that is said to have 
 been the ratio decidendi. 
 
 A learned text writer of America has formulated the rule 
 upon this subject in these terms, that is to say, that the risk 
 commences when the owner or hirer, having goods ready to 
 ship, or a contract with another person for freight, has com- 
 menced the voyage, or incurred expenses or taken steps 
 towards earning the freight.^ And a learned English judge 
 expressly adopts the part of it as to incurring expense as the 
 statement of the rule of law in the case supposed.^ It would 
 appear that this is rather the ratio of a particular decision, 
 
 • Tonge V. Watts, 2 Str. 1251. ' Blackburn, J., in Barber u.Plem- 
 
 * 1 PhilUps, Ins. no. 328. ing, L. R., 5 Q. B. 59, 71. 
 M. F r 
 
434 
 
 DURATION OF THE RISK 
 
 [part I. 
 
 Montgomery 
 V. KggingtoD, 
 
 Parke v. 
 Hebsou. 
 
 than the statement of a general rule.^ I have cited it, as an 
 illustration of a possible case of insurable interest, though of 
 very little value in fixing the commencement of that interest 
 and of the risk ; indeed, it seems quite misleading in such a 
 state of facts as those in Tonge v. Watts. 
 
 Another way of stating the rule on this subject is this : — 
 That where a cargo has been contracted for, and is ready to 
 be shipped on board at the time of the loss, and the ship 
 being otherwise in a condition to receive the cargo, is only 
 prevented from doing so by the intervention of the perils 
 insured against, the policy on freight has attached, and the 
 underwriters are liable for the loss of the whole freight that 
 would have been earned on the voyage, even though no part 
 of the cargo has ever been shipped on board at all.'' 
 
 The first case which extended the rule laid down by Lee, 
 C J., in Tonge v. Watts, was Montgomery v. Eggington, 
 which established that, where part of the goods were actually 
 on board at the time of the loss, and all were ready to be 
 shipped, the policy attached on the whole freight. It was 
 an insurance on freight valued at 1500/. ; when only 500/. of 
 freight was on board, the ship was driven from her moorings 
 and lost, but goods to the amount of the rest of the freight 
 were ready to be shipped, and were lying on the quay for 
 that purpose at the time of the loss. The jury, under the 
 direction of Lord Kenyon, found a verdict for the whole sum, 
 which the Court of King's Bench, on motion for a new trial, 
 refused to disturb.^ 
 
 On the same principle, under a policy on the freight of a 
 general ship which was to complete her lading at a number 
 
 " This view aooords ynih a very 
 usual practice of Mr. Phillipa, rather 
 to extract the ratio of a particular de- 
 cision and give it in a separate para- 
 graph than to exhibit it in the state- 
 ment of the case on the one hand, or 
 on the other to formulate a principle 
 in such tenns that it shall serve as a 
 general rule. 
 
 ^ Montgomery v. Eggington, 3 T. 
 B. 362 ; Trusoott v. Christie, 2 B. & 
 B. 320 ; Parke ». Hebson, ibid. 329 
 "Warre v. MiUer, 4 B. & Cr. 538 
 Hint V. Hemyng, 1 B. & Ad. 45 
 Devaux v. J' Anson, 5 Bing. N. 0, 
 519. 
 
 ' Montgomery v. Eggington, 3 T 
 E. 362. 
 
CHAP. IX.j ON FREIGHT. 435 
 
 of different ports and to be paid freight for the same 
 according to the terms usual in the colonial trade, the ship, 
 after having taken on board part only of her return cargo, 
 was lost at Jamaica, while passing from port to port in that 
 island, in order to complete it. It appeared, however, by 
 several letters from merchants and planters, which plaintiff 
 produced at the trial, that, although only part of the cargo 
 was shipped at the time of the loss, yet contracts had pre- 
 viously been made for the whole of the residue, and upon 
 this evidence he recovered for the whole freight.^ 
 
 Under a policy on freight and passage money for a home- Truscott f. 
 ward voyage " at and from Madras and all ports and places 
 in the East Indies to the United Kingdom," the shipowner, 
 in pursuance of an agreement with the government of Madras 
 to carry goods for them on board his ship at certain freight, 
 and also to fit her up with an extra deck, and make Other 
 alterations for the purpose of accommodating 200 invalidsj 
 whom the company engaged to send home in his ship at. & 
 fixed rate of passage money, had commenced making the 
 proposed alterations, had actually received on board the 
 greater' part of the cargo, and had shipped water for 100 
 invalids, when, before the alterations were completed, or any 
 of the invalids embarked, the ship was driven froni her 
 moorings and totally disabled. The Court held him entitled 
 to recover the whole freight for all the goods that were to be 
 shipped under the contract, and passage money for as many 
 invalids as his ship would have carried.^ 
 
 The later decisions show that the freight for the whole intimate 
 cargo is equally due, though no part has been shipped, if the of the rule? 
 whole has been purchased or contracted for at the time of the 
 loss, and the ship were then in a condition to receive it '.on 
 board. 
 
 Thus, where freight was insured on a homeward voyage Flint v. 
 
 Plemyng, 
 
 » Parke v. Hebson, cited in 2 B. & ^ Truscott v. Christie, 2 B. & Bj 
 B. 326, 329, 320. 
 
 P F 2 
 
436 DURATION OF THK RISK [PART 1. 
 
 " at and from Madras to London," and the day after the ship 
 had finished discharging her outward cargo at Madras she 
 ■was totally lost hy the perils of the sea, and no part of the 
 homeward cargo was then shipped, but the captain had pur- 
 chased for the ship a quantity of red wood to be laden on 
 board, and a mercantile house at Madras had also engaged 
 to ship a quantity of saltpetre, the Court' held that the 
 plaintiff was entitled to his fuU freight for the red wood and 
 saltpetre.* 
 Devaux v. An insurance was effected on the freight of a French ship 
 
 on a return voyage " from Calcutta or any port or place on 
 the Coromandel coast to Bourbon." The ship, after sailing 
 on her outward voyage, arrived at Coringa, a small English 
 settlement on the Coromandel coast, where, owing to sea 
 damage sustained on the voyage, it was necessary to take 
 her into a dry dock for repairs. During the course of these 
 repairs the supercargo purchased, on behalf of the owners, a 
 fuU return cargo to Bourbon, which was warehoused at a 
 place seven miles from Coringa, and was there lying ready 
 to be conveyed aboard the ship on the day when she was 
 reported ready for sea. On that day she was stiU in dock, 
 but on being floated into the river would have been in fuU 
 readiness to receive her cargo ; by some mismanagement, 
 however, in attempting to get her out of the dock, the ship 
 was so much damaged that she veas obliged to be broken up 
 and sold. Under these circumstances the Court of Common 
 Pleas held, that as the whole of the return cargo was pur- 
 chased and ready to be put on board at the time of the ship's 
 loss, and as that loss was occasioned by a peril within the 
 poUoy, the plaintiffs were entitled to recover the full freight 
 on the whole of the return cargo.^ 
 
 As to the cargo being seven miles off, the Coiirt considered 
 it impracticable to lay down any precise rule as to the distance 
 
 » Flint V. Memyng, 1 B. & Ad. 45, MUler, 4 B. & 0. 538. 
 
 see post, p. 437. This position was " Devaux ». J' Anson, 5 Bing. N. 0. 
 
 not disputed, but also not decided in 519. 
 relation to the facts of Warre v. 
 
CHAP. IX.] ON FREIGHT. ,437 
 
 witMn wUcli the cargo must be from the ship at the time of 
 the loss, whether close to it upon the quay or at a more con- 
 siderahle distance. " All that it seems necessary to determine 
 with regard to the cargo, being, that it must have become the 
 property of the [freighters]^ by a contract made with a 
 view to its being sent on board, and actually in a state of 
 readiness, reference being had to the nature and description 
 of the voyage insured, to be put on board when the ship 
 arrives at the place of deposit." ^ 
 
 As to the contract under which the cargo is to be shipped The contract 
 on board, all that is required is, that it be valid and binding 
 at law. But then this is essential and indispensable. 
 
 Thus under a policy on freight, the ship had sailed from Patrick v. 
 Sierra Leone with the intention of taking in a complete cargo 
 of orchella weed from the Cape de Verd Islands, and was 
 lost when only 150 bags had been shipped on board, and it 
 did not appear that any more orchella weed was then ready 
 to be loaded,' or that any binding contract, whether verbal 
 or otherwise, had been made for supplying it ; Lord Ellen- 
 borough held, that the plaintiff was only entitled to the freight 
 -on the 150 bags actually shipped.* So in the case of Flint Flint v. 
 V. Memyng, in addition to the red wood which the captain ^"'y^e' 
 had purchased, and the saltpetre, which the mercantile house 
 had formally contracted to put on board, it was proved that 
 a partner in that house had also engaged verbally to ship 
 on board ninety tons of light goods. With regard to these 
 ninety tons of light goods, the Court ordered a new trial, 
 because the question was not distinctly submitted to the 
 jury, whether there was any binding contract for shipping 
 these goods.' 
 
 If the bulk of the homeward cargo be not ready, though 
 
 ' The words are" parties insuied," islands in picking and preparing it. 
 
 viz., the shipowners in that case. See the Report. 
 
 2 5 Bing. N. 0. 539. * Patrick v. Eames, 3 Camp. 441. 
 
 3 Thoughitwasprovedthatpersons ' Flint f. Flemyng, 1 B. &Ad. 46. 
 were actually engaged in the difEereut 
 
438 
 
 DURATION OF THE KISK 
 
 [part I. 
 
 Hule where 
 readiness of 
 cargo and 
 ship is but 
 partial. 
 
 Forbes v. 
 Aspinall. 
 
 ■there is a valid contract to ship, and the ship be not ready- 
 inasmuch as the hulk of her outward cargo is still on hoard, 
 the policy nevertheless attaches on the freight of such goods 
 as have been actually loaded on board for the homeward 
 ■voyage prior to her loss. In such a case if it be a valued 
 policy, the assured shaU recover only such a proportion of 
 the whole sum insured, as the goods actually shipped bear to 
 a full cargo, or to those intended to have been shipped. 
 
 With a policy on freight valued at 6500/.^ for a homeward 
 voyage, " at and from any port or ports in Hayti to Liverpool, 
 or the ship's port of discharge in the United Kingdom," there 
 was no charter-party, and the ship, which was engaged as a 
 general or seeking ship, sailed from Liverpool to Hayti with 
 a cargo intended fer barter. At the port of Jaemel, in Hayti, 
 she bartered away part of her outward cargo, and took in 
 exchange fifty-five bales of cotton as part of her homeward 
 lading ; and she was proceeding thence to Aux Cayes, also 
 in Hayti, to barter away the rest of her outward cargo and 
 Complete her lading home, when she was totally lost by the 
 perils of the sea vsdth the great bulk of her outward cargo 
 still on board. It did not appear that any goods were ready, 
 or had been contracted for, at Aux Oayes, to be shipped at 
 the time of the loss; and the Court held the plaintiffs 
 entitled to recover only for the loss of freight in the pro- 
 portion of the fifty-five bales actually on board to what 
 would have been a full cargo.^ 
 
 The grounds upon which this decision proceeds are: — 1. 
 That, as in this case there was no entire contract for freight 
 under a charter-party for the whole voyage out and home, 
 the right to the whole freight did not accrue by the inception 
 of the outward voyage ; 2. That none of the cargo, in respect 
 of which freight was claimed, beyond that which was taken 
 on board, was ever ready for the ship ; 3. That even had it 
 
 1 The case of Forbes v. Cowie, 1 
 Camp. 520, was the same case with 
 Forbes v. Aspinall, only on an open 
 instead of a valued policy. 
 
 " Forbes v. Aspinall, 13 East, 323 ; 
 Forbes v. Cowie, 1 Camp. 520; S. F., 
 Tobiu V. Harford, 13 0. B., N. S. 
 791. 
 
CHAP. IX. J ON FUElGIiT. 439 
 
 been so, the ship at the time of the loss was not in a state of 
 readiness to receive the cargo. " The homeward cargo, which 
 was the subject of insurance, was to be obtained by barter of 
 the outward cargo ; and at the time of the loss the bulk of 
 the outward cargo had not been disposed of : it was impos- 
 sible, therefore, at that time, that the homeward cargo could 
 be put onboard."^ 
 
 This last groimd of decision was afterwards adopted by 
 Lord Lyndhurst in determining a question which, though 
 indirectly iuvolved, was not explicitly raised in Forbes v. 
 Aspinall, viz., whether the risk under a freight policy "at 
 and from " an out-port for the homeward voyage had attached 
 or not. 
 
 A policy was effected on freight for a homeward voyage 
 " at and from Algoa Bay to London." The ship, after she 
 had arrived at Algoa Bay, and had unloaded there all the 
 outward cargo destined for that place that she safely could, 
 was just about commencing to load on board her homeward 
 cargo, which was there lying ready for her, when she was 
 lost by a hurricane. Lord Lyndhurst told the jury that if, 
 under these circumstances, the ship was in a condition to 
 begin to take in her homeward cargo at the time of the loss, 
 the plaintiff was entitled to recover for the whole freight, 
 and the jury found accordingly.^ 
 
 In the cases hitherto considered the freight insured was Chartered 
 freight strictly and properly so called, the reward, that is, to gMp. 
 be earned for the shipowner by the carriage of the merchant's 
 goods. Unless, therefore, some goods were in fact shipped 
 on board, or only prevented from being shipped by the 
 intervention of the perils insured against, the shipowner's 
 inchoate right to freight, as the price of the carriage of such 
 goods, could obviously not have accrued. 
 
 Freight in the second of the two senses already mentioned 
 
 ' PerWilde,Serjt., arguendo; De- " WiUiamBOn v. Innes, cited in 8 
 
 vaux V. J'Anson, 5 Bing. N. C. 519, Bing. 81, note ; see also Warre v. 
 528. Miller, 4 B. & Or. 538. 
 
440 DURATION OF THE RISK [PART I. 
 
 is a fixed sum stipulated to te paid to the shipowner in the 
 terms of a charter-party for the use of his ship, or of part 
 of it, on the voyage therein described. The question now to 
 he considered is, what are those circumstances that determinie 
 the commencement of the risk on this species of freight, 
 which we have called the chartered hire of the ship. 
 
 Under such a contract, it is obvious, the ship may earn freight, 
 in this sense of the term, though no goods may ever be put, or 
 be ready or engaged to be put, on board. Consequently, if 
 there have been an inception of performance under the charter- 
 party, and such performance is interrupted and the completion 
 of the contract is prevented by the perils insured against, the 
 assured is entitled to recover the whole amount insured upon 
 freight, quite irrespective of the question whether, at the time 
 of loss, she had taken any goods on board for the voyage 
 insured, or whether any were contracted to be shipped. 
 Thompson v. A shipowner who insured half the freight of his ship on a 
 voyage " at and from London to TenerifEe, and at and from 
 thence to the Bay of Honduras," had chartered the ship to 
 sail from London to TenerifEe, where she was to take wine 
 on board and carry it out to the "West Indies ; freight for the 
 whole voyage to be paid at the rate of 35s. per pipe. The 
 ship sailed from London on her voyage under the charter- 
 party; and before her arrival at Teneriffe, and, of course, 
 before any of the wine was taken on board, she was captured 
 by the French. The Court held the plaintiff entitled to 
 recover the whole amount of the sum insured on his freight.' 
 Suppose upon the contract of charter-party and insurance 
 in that case, the fact had been that the ship was destroyed by 
 fire at London, the question then, and that a very nice one 
 upon the facts, would have been whether there had been an 
 inception of performance under the charter-party.^ The 
 charter-party being to proceed from London to Teneriffe, 
 and there load, although the policy was " at and from 
 
 1 Thompson v. Taylor, 6 T. R. v. Pleming, L. R., 5 Q. B. 59, 70, 71, 
 478. cited post, p. 442. 
 
 ' See per Blaokhum, J., in Barber 
 
CHAP. IX. J ON FREIGHT. 441 
 
 London," there could have been no inception of performance 
 under sueli a charter-party, if she had been destroyed while 
 on the gridiron, or in a graving dock for repairs, notwith- 
 standing such repairs were being done with a view to the 
 chartered voyage. This would have been so, although she 
 was then at her moorings, if her sails were still not bent to 
 the yards.i For the question under consideration arises on a 
 policy upon freight. If it were a policy on the body of the 
 ship, the question could receive but one answer from the 
 moment of her being at London. But freight the subject of 
 insurance being under and in virtue of a contract, the whole 
 question is when, or under what circumstances, the title 
 thereto first becomes inchoate. Negatively, it may be 
 answered, that such title at the terminus a quo of the charter- 
 party does not arise until the ship is in a fit condition to 
 perform the contract. The contract of charter-party, however, 
 may be such that the question of fit or unfit condition may 
 not arise, the terminus a quo of the policy being in fact 
 an intermediate port in respect of performance under the 
 charter-party. This appears by the following case : — 
 
 A ship that was loaded and about to sail from Calcutta Foley ». 
 to Mauritius was chartered to " proceed on her present m. Ins. Co. 
 voyage to Mauritius, and having discharged her cargo there, °* Sydney, 
 to proceed to Akyab, and there load," &c., and a policy was 
 then effected " on chartered freight valued at 1150^. at and 
 from Mauritius to rice ports," &c. The vessel accordingly 
 sailed from Calcutta with the cargo then on board, and at 
 Mauritius, while she was discharging, but while there were 
 still about two thirds of that cargo on board, she was driven 
 from her moorings by a hurricane, and reduced to a wreck. 
 It was held in an action on the policy that the assured was 
 entitled to recover as for freight to arise under the second 
 charter-party.'' 
 
 The policy being at and from Mauritius attached at the 
 
 ^ Tonga V. Watts, 2 Str. 1251, Insurance Co. of Sydney, L. E., 5 
 ante, p. 433. C. P. 155 (Exoh. Ch.). 
 
 ' Foley V. United Fire and Marine 
 
Keming. 
 
 443 DURATION 01' THE RISK [I'ART I. 
 
 moment of the vessel's arrival there. But for the purposes 
 of an insurable interest whioh could have been covered by a 
 policy suitably worded, there appears to have been an 
 inchoate title to freight under the second charter-party, from 
 the moment of the ship's proceeding from Calcutta under the 
 first; for, performance of the first charter-party was so 
 incorporated with the terms of the other as for all the 
 purposes of a policy properly worded to become performance 
 under the second. This is illustrated by the following 
 cases : — 
 Barber ». A vessel " now lying in the harbour of Bombay" was 
 
 chartered for a voyage from Howland's Island to a port of 
 discharge in Ghreat Britain with a cargo of guano. A policy 
 was effected "on freight, chartered or otherwise, valued at 
 3600^. at and from Bombay to Howland's Island, wlule 
 there, and thence to ports of discharge in the United 
 Kingdom, with liberty to sail to, touch and stay at any port 
 or places whatsoever." She .sailed in ballast from Bombay 
 for Howland's Island intending to call at AucMand, in New 
 Zealand, to complete her supply of provisions and water. 
 But while making for Auckland she got ashore and was so 
 injured as to be quite incapable of the voyage. It was held 
 that an inchoate title to freight had accrued, and that the 
 assured was entitled to recover on the policy.^ 
 
 " Prom the moment," says Oockbum, 0. J.,^ " that a 
 vessel is chartered to go from port A. to port B., and at port 
 B. to take a cargo and bring it home to England, or to take 
 it to any port, which I will call port 0., for freight, the 
 shipowner having got such a contract, has an interest un- 
 questionably in earning the freight secured to him by the 
 charter ; and having such an interest it is manifest that that 
 interest is insurable ; and he loses the freight and benefit of 
 his charter just as much by the ship being disabled on her 
 voyage to the port at which the cargo is to be loaded, and 
 
 ' Barber v. Fleming, L. E., 6 * Barber v. Fleming, L. K., 5 
 
 Q. B. 69. Q. B. 67. 
 
CHAP. IX.] ON FREIGHT. 443 
 
 from which it is to be brought, as he would lose it by the 
 disaster arising from the perils insured against between the 
 port of loading and the port of discharge." 
 
 In the same case Blackburn, J.,i says : " Upon the face of 
 the policy there is a bargain between the assured and the 
 underwriters by which, if during that voyage, by one of the 
 perils insured against, freight is lost, the underwriters should 
 pay. We have, therefore, to see whether there was freight 
 lost during the voyage, which involves the question whether 
 this chartered freight had come into existence at the time the 
 accident happened which caused the alleged loss ; whether at 
 that time the interest had commenced. When there is an 
 insurance upon freight, so long as the matter remains merely 
 contiagent, — so long as the shipowners have only a good 
 hope of getting freight, no freight is in existence ; and if the 
 ship is lost, there would be no loss of freight, inasmuch as 
 the freight had never come into existence, and all that the 
 shipowners have lost is the hope of earning the freight. But, 
 on the other hand, when a shipowner has got a contract with 
 another person under which he will earn freight, and has 
 taken steps and incurred expense upon the voyage towards 
 earning it, then his interest ceases to be a contingent thing, 
 but becomes an inchoate interest, and is an interest which, if 
 afterwards destroyed by one of the perils insured against, is 
 lost, and ought to be paid for by the underwriters." 
 
 By charter-party it was agreed that the 8ir William Eyre Potter v. 
 should proceed to New Zealand with a cargo for owners' 
 benefit, and from thence to Calcutta, and there load a cargo 
 for Liverpool for the freighter. The owners of the ship 
 effected a policy on 4,000^. homeward chartered freight from 
 Calcutta to Liverpool, " lost or not lost, at and from Clyde 
 to New Zealand, and for thirty days after arrival." After 
 her arrival at New Zealand the vessel grounded, and received 
 such damage by sea perils as to have become a constructive 
 total loss. As soon as the owners knew the extent of the 
 
 1 Barber v. Fleming, L. R., 5 Q. B. 70, 71. 
 
444 
 
 DURATION OF THE RISK 
 
 [part 1. 
 
 Homcastle v. 
 Suart. 
 
 Davidson v. 
 Willasey. 
 
 damage, which was not till she got to Calcutta, they refused 
 to repair, and sued the insurers for the amount of the home- 
 ward chartered freight, the damage having occurred before 
 the expiration of that policy. It was held, in the Exchequer 
 Ohamher and by the House of Lords, that there was an 
 insurable interest in this homeward freight from the moment 
 that she sailed on the voyage from Clyde to New Zealand, 
 which had been incorporated with the homeward charter- 
 party, and that as the ship had been incapacitated for per- 
 forming the voyage from Calcutta to Liverpool by sea perils, 
 the right to recover under the policy had accrued.^ 
 
 A shipowner insured the freight of his ship for a home- 
 ward voyage " at and from Dominica, and all or any other 
 of the West Indian Islands (Jamaica and St. Domingo 
 excepted), to London," having chartered the ship for a 
 voyage from London to the Island of Dominica and back to 
 London, on the terms of being paid half the net freight of 
 the outward voyage, if it exceeded 1000/., but if not, then 
 500/. ; and, as to the homeward freight, the current rate 
 for a full cargo, or, if the cargo should not be full, dead 
 freight for the deficiency. The ship arrived safely at 
 Dominica with her outward cargo, and there unloaded as 
 much of it as she safely could before taking in some part of 
 the homeward lading. A full cargo of West Indian produce 
 had been procured by the charterer's agents at Dominica, 
 and was ready to be loaded on board the ship there ; but 
 before any portion of it could be actually taken in, the ship 
 was captured by the enemy. The Court held that, as the 
 voyage had commenced under which the freight was to be 
 earned, the assured was entitled to recover the whole amoimt 
 of the insurance on the homeward freight.^ 
 
 Upon the same principle, where an insurance was effected 
 on the homeward freight of a West Indian ship, chartered 
 for a voyage out and home on the terms of taking in a full 
 
 ' Potter V. lUnkin, L. E., 6 H. of 
 LdB. 83, 151. 
 
 ' Homoastle v. Suart, 7 East, 400. 
 
CHAP. IX.j ON FREIGHT. 445 
 
 cargo of produce for the homeward voyage, and carrying it 
 either to London or Liverpool at the current rate of freight ; 
 and the ship after arriving at her out-port of discharge in the 
 West Indies, was lost there, when she had taken on board 
 only half her homeward cargo, the Court held that there had 
 been at the time of loss, an inception of the entire voyage 
 out and home, and that the assured was entitled to recover as 
 for a total loss of the homeward freight.^ 
 
 A shipowner insured the outward freight by a "West Indian Atty v. 
 ship under a charter-party from London to Madeira, and 
 thence to Jamaica ; the freight or hire for the whole voyage 
 being 135/., to be paid at Madeira, on a true delivery of the 
 whole of the London cargo there, in wine to be taken on 
 board and carried on, with the rest, to Jamaica, free of 
 freight, under the denomination of freight wine. The ship 
 at Madeira had taken in part of her Jamaica cargo, but not 
 the freight wine, when she was blown out of Funchal roads 
 by a storm, and captured at sea by the French. The assured 
 recovered the whole amount insured, for the reason that as 
 soon as the ship broke ground from London on the voyage, 
 an inchoate right to the whole freight attached, which was 
 defeated only by the intervention of a peril insured against.^ 
 
 The Court were also of opinion that under this policy, 
 considered with reference to the terms of the charter-party, 
 the risk must be held as continuing till the ship, with the 
 freight wine on board, arrived at Jamaica ; it being an in- 
 surance, not only that the shipowner should be in a con- 
 dition to earn freight by receiving freight wine on board at 
 Madeira, but also that the wine so received should, notwith- 
 standing the perils insured against, be safely carried to 
 Jamaica.' 
 
 By a charter-party at Monte Video, a vessel was to proceed Ellis v. 
 to the Falkland Islands, and thence to Santa Cruz, Lq Pata-, 
 gonia, there to take in a cargo of guano, and to discharge it 
 
 1 Davidson v. Willasey, 1 M. & Sel. 236. 
 313. ' Per Sir J. Mansfield, 1 B. & P. 
 
 » Atty V. Lindo, 1 B. & P. N. R, N. B. 241. 
 
446 DURATION OF THE RISK [pART 1. 
 
 at a port in Europe ; freight at 250^. a month, pay for one 
 month to he made when the vessel sailed from the Falkland 
 Islands, the balance at the port of discharge. There was a 
 safe delivery of cargo at the FaUdands, and an advance of 
 250^., being one month's freight. She then loaded guano at 
 §||.nta Oruz, and completed the cargo with hides at Monte 
 Video, where a new charter-party in effect annulling the 
 first was made, by which the vessel was to proceed to Havre 
 direct with the cargo then on board, freight (at the same 
 rate as by the first charter) to be paid at the port of dis- 
 charge, after deducting 250/. received on account of that 
 charter-party. The vessel sailed, and went down at sea, a 
 total loss. 
 
 In an action on a policy, "lost or not lost at and from 
 Monte Video to Havre on 450/. freight advanced," the Court 
 held the plaintiffs entitled to recover the 250/. as freight 
 advanced, since that was not a separate sum paid in respect 
 of the voyage to the FalMand Islands, but part of an entire 
 Bum payable for the whole voyage insured, which therefore 
 remained at risk till the ship arrived in Havre, her port of 
 discharge in Europe.^ 
 
 Care and Inadvertence in filling up the blank form of the policy 
 
 ingthe not unfrequently defeats the intention manifested in the 
 
 ^° °^' earlier clauses of it. 
 
 Thus where a ship had been chartered for a voyage from 
 Liverpool to Lagos, and thence with a cargo to the United 
 Kingdom, at a lump sum for the round voyage, a policy 
 was effected on freight " at and from Lagos," " the insurance 
 to commence on freight from the loading of the goods on 
 board at as above." The ship had arrived at Lagos, and 
 was lost before she had shipped any of her homeward cargo ; 
 but it was held that in consequence of the second of the two 
 clauses cited, the first was so modified that the assured could 
 not recover.^ 
 
 1 Ellis V. Lafone (in error), 8 Exoh. ^ Beckett v. West of England Ins. 
 
 R. 546 ; 22 L. J. (Exoh.) 124. Co., 25 L. T., N. S. 739, 
 
CHAP, IX.] ON FREIGHT. 447 
 
 A policy of reinsurance on chartered freight was effected 
 "lost or not lost, upon freight payable in respect to this 
 present voyage to he performed hy the vessel Napier, frona 
 Baker's Island to a port of discharge in the United Kingdom ; 
 the insurance on the freight beginning from the loading of 
 the vessel." The vessel was wrecked whilst at Baker'^ 
 Island after she had taken two thirds of her cargo on board; 
 and the question was, what was the effect of the latter 
 branch of this clause, " beginning from the loading," upon 
 the former describing the insured voyage "from Baker's 
 Island." The majority of the Court, Mellor and Lush, JJ., 
 held that the loading intended was a complete loading, and 
 that the policy would have attached upon this being com- 
 pleted, although before the vessel sailed from Baker's Island. 
 Blackburn, J., was of the same opinion as to the loading 
 intended being a complete loading, but he was of opinion 
 that the latter part of the clause did not enlarge the effect 
 of the former, and consequently that the policy would not 
 attach until the vessel sailed on her voyage. By the opinion 
 of the whole Court the assured could not recover.^ 
 
 If there has been no inception of performance under the The contract 
 contract, or if the contract which is being performed at the fo^ifmust 
 time of the loss is not that which is described in the policy, "^^^^ ™ ^^^ 
 of course the policy never attaches. 
 
 Freight valued at 500/. was insured on a voyage " at and Sellar v. 
 from Demerara, Berbice, and any of the Windward and 
 Leeward Islands, to London." By a verbal agreement with 
 a Demerara house, the ship, then in that port, was to carry a 
 cargo of colonial produce for them from Berbice to London, 
 at the current rate of freight, and also take on some bricks 
 and planks from Demerara to Berbice, on the same terms. 
 The ship was lost while proceeding from Demerara to Ber- 
 bice with the bricks and planks on board, in virtue of this 
 
 1 Jones V. Neptune Mar. Ins. Co., Wear Marine Ins. Co., 46 L. T., 
 li. E., 7 Q. B. 702. So, Hopper v. N. S. 107. 
 
448 DURATION OF THE RISK ON FREIGHT. [PAKT I. 
 
 verbal agreement. The plaintifEs oontended that the whole 
 was one entire voyage on which freight was to be earned ; 
 but the Court were clearly of opinion, that the voyage 
 insured was a voyage at and from Demerara or Berbice to 
 London, or from any of the Windward or Leeward Islands, 
 according as the ship might happen to begin her voyage to 
 London, and that no such voyage had ever been commenced 
 at the time of the loss.^ 
 
 1 SeUar ». M'Vioar, 1 B. & P. N. E. 23. See Clapham v. Cologan, 3 
 Camp. 382. 
 
CHAPTER X. 
 
 DEVIATION AND CHANGE OF THE VOYAGE UNDER THE POLICY. 
 
 Doctrine of deviation 
 
 - 449 
 
 by cruising .... 493 
 
 Change of the voyage 
 
 - 453 
 
 under justifying causes - . 499 
 
 Deviation - . . 
 
 - 461 
 
 offeree .... 500 
 
 ■without licence clauses - 
 
 - 461 
 
 not of force ... 501 
 
 in relation to them 
 
 - 469 
 
 of force not insured against 608 
 
 by delay ... 
 
 - 486 
 
 
 In almost all voyages, as we have already seen, experience Of the gene- 
 and usage have prescribed a certain course of navigation as ^f deviation.^ 
 the safest, directest, and most expeditious mode of proceeding 
 from one terminus to' the other. The course thus prescribed 
 is the lawful course of the voyage insured. Being a matter 
 of general mercantile notoriety, this course is presumed to 
 have been contemplated by the parties to the policy at the 
 time of entering into their contract ; and is therefore con- 
 sidered as forming part of the policy quite as much as though 
 it were in express terms therein set forth. 
 
 In every contract of insurance, by means of a voyage An implied 
 policy, the meaning of the parties is taken in law to be that the policy, 
 the assured shall have the protection of the policy only so 
 long as he strictly pursues this prescribed course of the 
 voyage insured from beginning to end throughout with all 
 safe, convenient, and practicable expedition.^ It is only upon 
 this condition, never expressed, but universally implied, that 
 the underwriter agrees to indemnify the assured ; any failure, 
 therefore, to comply with it alters the nature of the risk 
 
 ^ The subject of this chapter affects 
 voyage policies only. 
 
 M. 
 
 « 3 Kent, Com. 
 
 G G 
 
450 
 
 DEVIATION. 
 
 [part I. 
 
 Deviation 
 defined. 
 
 Includes 
 delay. 
 
 Does it vary 
 the risk f 
 
 which the underwriter had assumed, and from that moment 
 frees him from liability for subsequent loss.^ 
 
 This tacit understanding not to depart from the lawful 
 course of the voyage insured, is technically called an implied 
 condition not to deviate ; and a deviation, in the legal sense 
 of that term, may be defined to be any unnecessary or 
 unexcused departure from the usual course or general mode 
 of proceeding towards the original terminus ad quern of the 
 insured voyage, so that the risk is altered, although it be not 
 aggravated, by such departure.^ 
 
 This implied condition extends as well to the time in 
 which the voyage insured ought to be accomplished, as to 
 the track or course of navigation by which it ought to be 
 pursued. The understanding implied in the contract between 
 the parties is not only that the ship, in sailing between the 
 termini of the voyage insured, shall follow the course which 
 custom has prescribed, but also that she shall commence and 
 complete the voyage with that reasonable expedition which 
 the insurer has a right to expect.' 
 
 Hence, any unreasonable and unexcused delay either in 
 commencing or prosecuting the voyage insured, no less 
 absolves the underwriter from his liability to subsequent loss 
 than a local departure from the usual course of the navigation.* 
 
 It is not necessary to prove that the peril has been 
 enhanced by the delay or deviation. The underwriter only 
 undertakes to indemnify the assured upon the implied con- 
 dition, that the risk shall remain precisely the same as it 
 appears to be on the face of the policy interpreted by usage. 
 Immediately that this risk is, by the act of the assured or 
 
 ' Les lieirs des lisques une fois 
 abandonnfis par lederoutement volon- 
 taire ne se retrouvent point aux yeux 
 de la loi ; le contrat une fois dissous 
 ne pent se renouveler que par le oon- 
 sentemeut respectif des parties ; 2 
 Emerigon, c. xiii. s. 16, p. 18. 
 
 2 2 Emerigon, v. xiii. s. 16, p. 94 ; 
 2 Beneoke, des Assecuranz, 234 ; 3 
 Kent, Com. 312. The language of 
 
 Emerigon is marked Tinth all his 
 usual terseness and perspicuity. ' 'Le 
 navire change de route lorsqu', au 
 Heu de suivre la voie usitte, il en 
 prend ime diff&ente, sans perdre 
 toutefois de vue I'endroit de sa desti- 
 nation: " — ^loo. oit. 
 
 ' Hartley ». Buggin, 2 Park, Ins. 
 652. 
 
 * Kent, Com. 315. 
 
CHAP, X.] DEVIATION. 451 
 
 his agents, in any degree varied, although not aggravated, 
 the underwriter's liahility ceases by breach of the condition 
 on which alone he engaged to become liable. The true pro- 
 position, therefore, is, that every voluntary and unnecessary 
 departure from the prescribed course of the voyage, by 
 which the risk is varied, is a deviation, whether the risk be 
 thereby aggravated or not.^ 
 
 On the same principle it is not necessary, in order to The loss need 
 discharge the underwriter, that the subsequent loss should neotedwith 
 be shown to be in any, even the remotest degree, connected * ® eyiation. 
 with the prior deviation ; the ship after the deviation may 
 have returned in perfect safety to the proper course of the 
 voyage, without having sustained the slightest injury in 
 consequence of her departure from it ; and yet on the ground 
 that the risk passed through was thereby varied from the risk 
 insured, the underwriter will be discharged from his liability 
 for any loss subsequent to the deviation.^ 
 
 Deviation does not, however, like imseaworthiness, dis- Deviation 
 charge the underwriter from liability on the policy, ab the policy aJ 
 initio; he still remains liable for losses incurred prior to *"'**"• 
 the deviation. This condition differs in this effect from 
 that other relating to seaworthiness, only because this latter 
 respects the state of the ship the instant befpre the com- 
 mencement of the risk, and consequently is a condition 
 precedent to the policy attaching. The implied condition 
 not to deviate relates to the conduct of the ship in the course 
 of the voyage, and cannot by relation be carried back, so as 
 to exempt the underwriter from liabilities incurred prior to 
 its being broken.' 
 
 There must be an actual deviation, in order to discharge Intention to 
 
 ,1 ■, ., -ij-ji-i ii deviate is of 
 
 tne underwriter ; a mere intention to deviate, never executed, ^o effect. 
 is not sufficient.* 
 
 1 Hartley v. Buggin, 3 Dongl. 39, v. Hopper, 26 L. J. (Q. B.) 18^ 22. 
 Lord Mansfield's judgment. ' See Grreen v. Toung, 2 Salk. 444 ; 
 
 " ElUott V. Wilson, 7 Brown's P. Hare v. Travis, 7 B. & Or. 14. 
 Cases, 459 ; Davis v. G-arrett, 6 Bing. ' Kewley v. Ryan, 2 H. Bl. 343 ; 
 
 716. See the principle expounded by TheUusson v. Fergusson, 1 Dougl. 
 
 Lord Campbell, C. J., in Thompson 361. 
 
 G g2 
 
452 
 
 CHANGE OF THE VOYAGE. 
 
 [PAKT I. 
 
 The deyiation 
 must be 
 voluntary. 
 
 There is no 
 implied 
 waiver of 
 deviation. 
 
 Moreover, it must be a voluntary departure from the usual 
 course of the voyage in order to be a deviation ; yet if it take 
 place through, the gross ignorance of the captain, it is none 
 the less a deviation.^ 
 
 A prior deviation is not impliedly waived, although known 
 to the underwriter at the time he accepts the risk, in case the 
 policy in the usual way so describe the voyage as that the 
 deviation in question is a breach of the condition implied in 
 such description.^ 
 
 Distinguished 
 from change 
 of voyage. 
 
 Distinction. 
 
 The definition of what constitutes deviation seems to require 
 that it should be distinguished from what is called abandon- 
 tnent or change of voyage. The great distinction between a 
 deviation and a change or abandonment of the voyage, lies 
 in this, that in the former the original voyage, as described 
 in the policy, is not given up or lost sight of, while in the 
 latter it is, 
 
 " A deviation," says Chancellor Kent, " is not a change of 
 the voyage, but of the proper and usual course of performing 
 it. The voyage insured is never lost sight of in cases of 
 deviation, actual or intended. If, however, the original 
 place of destination be abandoned, in order to go to another 
 port of discharge, the voyage itself becomes changed, because 
 one of the termini of the voyage is changed. The identity 
 of the voyage is gone, and a new and distinct voyage is 
 substituted." ' 
 
 ' Phyn V. Koyal Exch. Ass. Co., 
 7 T. R. 605. 
 
 ' Redman v. Loudon, 3 Camp. 603 ; 
 S. C, 6 Taunt. 462 ; 1 Marshall, R. 
 136. 
 
 The contrary has been ruled in the 
 United States, Coles v. Marine Ins. 
 Co., 3 Washington's Circ. Court Rep. 
 159. Mr. Phillips says (vol. 1, no. 
 1041), in support of "the equitable- 
 ness ' ' of that decision, that the insurer 
 ought not to he heard to set up his 
 own fraud in defence. But is it 
 
 necessary for him to do so ? By the 
 admission of a deviation, in fact, the 
 policy is gone, and with it the liability 
 of the insurer. The only question 
 then remaining, as the fact of devia- 
 tion was known to both parties at 
 the time of making the policy, is, 
 whether the instrument as drawn 
 expressed the intention of both par- 
 ties. 
 
 ' In New York Pirem. Ins. Co. v. 
 Laurence, 14 Johnson's R. 46 ; 3 
 Kent, Com. 317. 
 
CHAP. X.J CHANGE OF THE VOYAGE. 453 
 
 For the sake of eonvenience and iUustratioii, as it can be Of the gene- 
 1 -ii J / • 1 I. 1. • 1 n 1 ""^^ dootrine 
 
 clone Without any great risk of confusion, we shall here of change of 
 
 consider this subject of change of voyage, which, though ^°y°'g^- 
 
 broadly distinguished in principle, so closely upon the facts 
 resembles deviation, that one as against the other is often 
 argued upon the same facts. 
 
 A change of voyage takes place when, either before or What it is. 
 after sailing, the assured definitively abandons all thought 
 of proceeding to the port of destination set down in the 
 policy. 
 
 The effect of this is to discharge the underwriter from all Its effect, 
 liability on the policy from the moment»the purpose of so 
 changing the voyage is definitively formed. Hence, if the 
 purpose of changing the voyage be fixed before the com- 
 mencement of the risk, the policy is void ab initio, and the 
 risk never attaches ; if it be not formed till after the ship has 
 sailed, the underwriter is discharged from all liabiKty for 
 losses which may accrue subsequently to its having been 
 formed, although such loss may take place while the ship is 
 still on the track common both to the voyage insured and to 
 that which is substituted for it.^ 
 
 An intention to deviate, on the other hand, may be defined Distin- 
 
 „ , guished. 
 
 to be a purpose to depart from the true course of the voyage, 
 
 without giving up the design of ultimately proceeding to the 
 
 terminus ad quern. However decisively such an intention 
 
 1 2 Emerigon, c. xiii. ss. 11 and Errors, in a case of N. T. Eiremen's 
 
 14, pp. 82, 92. Both the sections here Ins. Co. v. Laurence, 14 Johns. 46, 
 
 referred to must be consulted in order reversing the decision below, held 
 
 to discover that the Erench law is that the voyage was changed from 
 
 identical with ours on the present the moment the master had deter- 
 
 subjeot. In the former of these seo- mined upon a new destination, al- 
 
 tions the learned author discusses though he had not entered upon the 
 
 what he calls " le voyage rompu avant altered route when his ship was 
 
 le depart" ; in the second " fe voyage captured. 1 PhiUips, no. 966, where 
 
 change." See, also, 2 Benecke, des the author offers reasons against the 
 
 Assecuramz, 314-325. decision. 
 
 In the United States the Court of 
 
454 
 
 CHANGE OF THE VOYAGE. 
 
 [part I. 
 
 Woolridge v, 
 BoydeU. 
 
 Thellusson v. 
 Fergiisson. 
 
 Ke-wley v. 
 Kyan, 
 
 may be formed, the underwriter remains liable for all loss 
 incurred prior to its being actually carried into effect ; /. e., 
 as long as the vessel continues on the direct course of the 
 voyage insured, and before she has reached the point of 
 deviation.^ 
 
 A ship, insured " from Maryland to Cadiz," cleared out 
 for Falmouth in this country, gave bonds to land her cargo 
 in Great Britain, and sailed with the intention of making 
 Falmouth her port of destination; but was captured while 
 on the course common both to Falmouth and Cadiz. It was 
 contended that this was a mere case of intended deviation. 
 The Court said it was a change of voyage ; for that on which 
 the vessel sailed was different from the voyage insured ; and 
 they accordingly h»ld the underwriter not liable for the loss, 
 though it had taken place before the ship passed the dividing 
 point.'' Lord Mansfield thus distinguished the case from 
 that of an intended deviation: — "In all cases of that sort 
 the terminus a quo and ad quern are certain and the same ; 
 but in the present case the terminus ad quern has been 
 altered, for there was no intention of going into Cadiz 
 at all." 
 
 On the other hand, when the master of a vessel insured 
 for a voyage " from Guadaloupe to Havre," had, in pursuance 
 of his instructions, formed the intention of sailing first to 
 Brest, as the safest way, in time of war, of getting to Havre, 
 which latter place still continued the port of the ship's 
 ultimate destination; this was held to be a mere intention 
 to deviate, leaving the underwriter liable for the loss of the 
 ship before she had reached the dividing point at which the 
 course to Brest diverges from that of Havre.* 
 
 So, where a vessel insured from " Grranada to Liverpool " 
 took out clearances for Cork, at which place the master was 
 instructed and intended to put in, though bound ultimately 
 
 1 'WooMdge V. Boydell, 1 Dougl. * Woolridge v. BoydeU, 1 Dougl. 
 
 16 a; Thellusson v. FerguBson, 1 16 a. * 
 
 Dougl. 361; Kewley*. Ryan, 2 H. ' Thellussonti.Fergusson, IDougl. 
 
 Bl. 343. 361. 
 
CHAP. X.J CHANGE OF THE VOYAGE. 455 
 
 for Liverpool, and the ship was lost before reaching the 
 dividing point, the Court held the voyage continued the 
 same, the design of putting into Cork being a mere intention 
 to deviate, and the underwriter was liable for the loss.i 
 
 Goods, warranted "free of average under 3 per cent., were Hare». 
 insured from Liverpool to London," but the master had '*^^' 
 taken in goods for Southampton, and did afterwards put in 
 there ; the Court held this a deviation, which discharged the 
 underwriters from subsequent, but not from prior, loss ; and 
 as the goods had sustained more than 3 per cent, damage 
 before the ship diverged from the course of her voyage to 
 London in order to go into Southampton, the assured 
 recovered.^ 
 
 Where a ship sailed with an intention to deviate by putting 
 into an intermediate port, but before she turned off for that 
 purpose was overtaken by a storm and driven into that very 
 port, this was held no deviation, and of no effect on the 
 underwriter's liability.^ 
 
 It is sometimes a matter of very nice discrimination, to Testofdis- 
 draw the line between an intention to deviate, and an aban- 
 donment of the voyage. The test in all cases is, whether the 
 terminus ad quern, specified in the policy, remains the ulti- 
 mate place of intended destination ; if it does, then the 
 design, though formed before sailing, of putting into any 
 other port or taking an intermediate voyage in the way to 
 such ultimate place of destination, does not necessarily 
 amount to a change of voyage. 
 
 In one case where the voyage insured was " from Heligo- Heselton v. 
 land to Memel," it appeared that the ship sailed with a 
 preponderating purpose to proceed to Memel, but with orders 
 to go into Grottenburg to learn whether it would be safer to 
 proceed to Memel or to Anhalt, and the ship was afterwards 
 captured in sailing from Heligoland to Grottenburg while on 
 
 • Kewley v. Eyan, 2 H. Bl. 343. 165 ; so held also in the United 
 
 * Hare v. Travis, 7 B. & Or. 14. States, Hobart v. Norton, 8 Hoker- 
 ' Kingston «). Phelps, cited 7 T. E. ing's Massachusetts Eep. 159. 
 
 Allnutt. 
 
456 CHANGE OF THE VOYAGE. [PARX I. 
 
 the direct oovirse both to Anhalt and to Memel ; Lord Ellen- 
 borough held, that there was only an intention to deviate to 
 Gottenburg, and that the contingent purpose of going to 
 Anhalt was not a change of voyage, and, consequently, that 
 the underwriters were not discharged.^ 
 
 . An unavoidable deviation, though it extend to the inter- 
 
 position of an intermediate voyage, does not discharge the 
 underwriters, if there be no abandonment of the original 
 voyage, and the ship be lost while prosecuting it. 
 Drisool V. A ship was insured for a round voyage " from Lisbon to 
 
 Madeira, from Madeira to Saffi on the coast of Africa, in 
 ballast, and thence back to Lisbon with a cargo of wheat," 
 and an insurance on the freight of the wheat by her " from 
 Saffi to Lisbon" was effected on a representation that the 
 ship, which was then at Madeira, was about to pursue her 
 voyage to Saffi immediately. Instead, however, of doing 
 this, the captain was forced by his crew, alarmed by reports 
 of Moorish cruisers, to take the ship back from Madeira to 
 Lisbon. On his arrival at Lisbon the charterers insisted on 
 his taking the ship direct from that port to Saffi iu ballast, 
 which he accordingly did, loaded a cargo of wheat at Saffi, 
 and was captured while sailing on his homeward passage 
 from Saffi to Lisbon. In an action upon the freight policy, 
 the Court was clearly of opinion that there had been no 
 abandonment of the original adventure, and that as when 
 taken she was sailing from Saffi to Lisbon, the voyage 
 actually insured in the freight policy, the underwriters were 
 not discharged.^ 
 
 If there be no justifying cause for such intermediate 
 voyage, and it is not allowed by usage, nor involved in the 
 voyage contemplated by the parties as the principal object of 
 the contract, this will be deemed an abandonment of the 
 
 ' Heselton v. Allnutt, 1 M. & Sel. ' Drisool v. Passmore, 1 B. & P. 
 
 46. 200. 
 
QHAP. X.] CHANGE OF THE VOYAGE. 457 
 
 original adventure, and the underwriter disoL.arged from all 
 loss taking place after the oommenoenient of the intermediate 
 voyage, whatever may be the intentions of the oaptaiu as to 
 the terminus ad quern named in the poHcy.^ 
 
 How strictly this rule is enforced appears by the following Way v. 
 case : — A ship iasured " at and from the 20th October, 1783, ° ^ 
 from any ports in Newfoundland to Falmouth or her port 
 or ports of discharge in England," did, on the 1st of October, 
 sail from her port in Newfoundland to fish on the banks ; 
 there she continued fishing till the 7th, and on that day 
 sailed from the banks to England ; she was, on the 20th of 
 October, sailing on a cotirse common both to a voyage from 
 the banks to England, and from Newfoundland to England, 
 and so continued until and at the time of the loss for which 
 the action was brought. The Court held, that as the voyage 
 insured was from Newfoundland to England direct, and that 
 on which the ship sailed was from Newfoundland to the 
 banks, and then to England, the ship had never sailed on the 
 voyage insured, and the policy had never attached.^ 
 
 Whether, in point of fact, the intention to abandon the 
 original destination of the voyage has been definitely adopted 
 at the time of the loss,' is a question of evidence, and the 
 fact of sailing does not necessarily enter into the determina- 
 tion of it. The conduct of the assured in respect of the ship 
 while she is still in port may be such as, in case of a policy 
 " at and from," will alter his relations with the underwriter 
 entirely. " "When a person," says Lord Eldon, " is insured 
 
 1 Bottomley*. Bovill, 5 B. & Or. " on the specified voyage : " butwas 
 
 210 ; see also Hamilton v. Shedden, she so ? She -ro-as on the same iter, 
 
 3 M. & W. 49. hut not on the same viaggium ; see 1 
 
 ' Way V. ModigUani, 2 JT. K. 30. Phillips, no. 992. 
 Mr. Phillips (1 PhiUips, no. 992) ' For a good illustration of this, see 
 
 doubts this decision on the same the case of HaU v. Brown, 2 Dow's 
 
 ground as Benecke (Des Assecuranz, Pari. Cases, 367, a case which stands 
 
 vol. ii. 331), fiz., that the terminus a too much on its own particular oir- 
 
 quo of the risk was the 20th of Oo- cumstances to be of any value except 
 
 tober, before which day the vessel was as an illustration. 
 
458 CHANGE OF THE VOYAGE. [pART I. 
 
 ' at and from,' a port, the probable continuance of the ship 
 in that port is in contemplation of the parties to the con- 
 tract. If the owners, or persons having authority from them, 
 change their intention, and the ship is delayed in that port 
 for the purpose of altering the voyage and taking in a 
 different cargo, the underwriters run a different risk, if such 
 change of intention is not to affect the contract." ^ 
 Tasker v. The case alluded to was this : A British ship arriving in 
 
 Cadiz whilst the French army were in possession of the 
 saltpans round that city, so that no salt could be procured, 
 the agents there wrote to the owners in this country, that 
 under the circumstances they had resolved, with the advice 
 and concurrence of the captain, to despatch the ship to 
 Liverpool to load with salt for Newfoundland. The owners, 
 on receiving this communication, insured the ship "at and 
 from Cadiz, to her port or ports of discharge in St. Greorge's 
 Channel, including Clyde." Much time having been spent 
 in discharging her cargo of fish at Cadiz, the agents, thinking 
 that the ship would arrive too late at Newfoundland, if sent 
 first to Liverpool for 'salt, changed their plans, and resolved, 
 after consulting with the master, to load the ship with what 
 salt they could procure at Cadiz, and despatch her direct for 
 Newfoundland. They again wrote to the owners of this 
 proposed alteration, and about a week after the date of this 
 last letter the ship, while still in the bay at Cadiz, and 
 before she had entirely discharged her cargo of fish, or taken 
 any steps whatsoever towards commencing the direct voyage 
 from Cadiz to Newfoundland, was taken by the French, and 
 burnt where she lay. 
 
 Upon this state of facts, the Scotch Courts three times 
 decided that the ship, when so destroyed, was still under 
 the protection of the policy ; but the House of Lords finally 
 reversed their decision, on the ground that a fixed determina- 
 tion had been formed to abandon the voyage insured before 
 the loss took plaoe.^ 
 
 1 1 BHgh, 100. 
 
 " Tasker v. Cunningham, 1 Bligh's Pari. C. 87. 
 
CHAP. X.] CHANGE OF THE VOYAGE. 459 
 
 Lord Eldon, in the course of Ms judgment, said, "It The evidence 
 appears tliroughout the correspondence that the captain and ™ ^ °^^' 
 the agents had taken upon themselves to direct and alter 
 the destination of the ship, with the acquiescence, at least, of 
 the owners." — " Undouhtedly a mere meditated change does 
 not affect a policy; hut circumstances are to he taken as 
 evidence of a determination ; and what better evidence can 
 we have than that those who were authorized had determined 
 to change the voyage? In my opinion, the voyage was 
 abandoned, and I have the highest authority in Westminster 
 Hall to confirm that opinion." ^ 
 
 From the preceding authorities, then, it is clear that if the Result, 
 assured, either before or after the ship sails, have determined 
 to abandon the original port of destination, that discharges 
 the underwriter from all loss happening after such determi- 
 nation is finally formed, though the loss occur before the ship 
 quits the track of the original voyage, or under a policy " ai 
 and from," before she sails from the port where the risk was 
 made to commence. 
 
 It seems also clear on principle, though never expressly so Abandonment 
 decided in this country, that abandonment of the voyage has speotive in 
 no relation back, so as to discharge the underwriter from ®*^®°*" 
 liability for loss incurred prior to the formation of the defini- 
 tive purpose. It is only where this purpose of changing the 
 voyage has been fixed before the commencement of the risk, 
 that it can avoid the policy ab initio.^ 
 
 The mere fact of taking in goods, and clearing out for a What is not 
 different port from that named in the policy as the terminus 
 ad quern, does not per se amount to a change of voyage ; for 
 it is possible that this may have been done with the design 
 
 ' Tasker v. Cunningham, 1 Bligh's of M. Estrangin, in his learned notes 
 Pari. C. 99. on Pothier, in Appendix, p. 471. 
 
 ' See upon this point the remarks 
 
460 
 
 CHANGE OF THE VOYAGE. 
 
 [PAKT I. 
 
 Shortening 
 the voyage. 
 
 Middlewood 
 V. Blakes. 
 
 of putting into sucli port on the way to tlie original terminus, 
 and with a purpose of ultimately carrying out the original 
 adventure. In that case it would be a mere intention to 
 deviate, not a change of voyage ; and the assured would still 
 be liable for all loss incurred before passing the dividing 
 point.^ So, d fortiori, it is no change of voyage for a ship 
 insured to two or more specified ports of discharge to take in 
 goods, and clear out for only one of them.^ 
 
 With regard to shortening the voyage, a ship, if insured 
 to several successive ports, may terminate the voyage at one 
 of the nearer of them without vitiating the policy ; but it is 
 otherwise if, being insured to a single port, she sail with a 
 fixed purpose not to go beyond a port that is nearer, and not 
 contemplated in the policy. Emerigon, in accordance with 
 this view of the law, after stating it as a general principle, 
 that a mere shortening of the voyage will not avoid the 
 policy, adds, "provided that, at the outset, the voyage 
 insured was not abandoned (rompu) by a change of destina- 
 tion." 3 
 
 The case of Middlewood v. Blakes,* which has given rise 
 to diversity of opinion, is supposed to be in close relation 
 with the present discussion. In that case it appeared that 
 usage in respect of the voyage insured, from London to 
 Jamaica, left a captain, on arriving at a certain point, the 
 choice of three tracks (one to the north, and two to the 
 south of St. Domingo), all equally leading to the terminus ad 
 quern. In the particular case the captain, under orders from 
 his owners (not communicated to the imderwriter), took the 
 northernmost track, intending to touch at Cape Nicola Mole, 
 a port in that track, yet out of the direct course from London 
 to Jamaica; but while still pursuing the direct course to 
 
 ' Henldet). Royal Exoh. Ass. Co., 
 1 Ves. 317; Planche v. Fletcher, 1 
 Dougl. 251 ; Kewley v. Eyan, 2 H. 
 Bl. 343. 
 
 2 Marsden v. Eeid, 3 East, 571. 
 
 ^ See 2 Emerigon, c. xiii. b. 11. 
 
 Voyage enticement rompu avant le 
 depart. See also the yery lucid com- 
 mentary of M. Estrangin on Pothier, 
 Appendix, u. v. s. 3, p. 471. 
 
 * Middlewood v. Blakes, 7 T. E. 
 162. 
 
CHAP. X.] DEVIATION. 461 
 
 Jamaica, and before having turned off towards Cape Nicola 
 Mole, the ship was lost by capture. 
 
 On these facts the finding of the jury, that the conceal- 
 ment of the intention to go to St. Domingo had vitiated the 
 policy, was sustained by the majority of the Court in banc, 
 viz., Lord Kenyon, C. J., Ashurst, and Grose, JJ., whereas 
 Lawrence, J., thinking this ground untenable, upheld the 
 verdict on the ground that there was a deviation not 
 merely intended but entered upon at the point where the 
 northern track turns aside from the tracks to the south. 
 Judge Duer,^ after a learned discussion of the case, adopts 
 the opinion of the majority of the Court, that " the effect of 
 the concealment was to vitiate the policy," because it exposed 
 the underwriter to a loss from a risk which he never meant 
 to assume ; he likewise thinks that the policy was void in its 
 origin, because the master was bound by the orders of his 
 owner to follow a voyage not described in it.^ 
 
 We resume the subject of Deviation, and proceed to Cases of 
 examine in detail the various decided cases by which the irrespective 
 doctrine has been illustrated in English jurisprudence ; and ?< to'^touoh^" 
 in doing so, we will confine our attention, in the first place, and stay." 
 to those instances of deviation depending entirely on the 
 fact of a local divergence from the direct course of the 
 voyage, and not in any degree on the construction of the 
 clauses giving liberty " to touch, stay, or trade." 
 
 In the absence of any usage or stipulation to the contrary, 
 
 ' 2 Duer, 491-498. formed at the time of effecting the 
 
 ^ When was the intention formed policy — and I infer this to have heen 
 
 to send this ship to Cape Nicola so, for I gather that she was then 
 
 Molef If afterthepolicywaseffeoted, under charter-party to Cape Nicola 
 
 then I snhmit it was an intention to Mole ; in that case, I submit, the 
 
 deviate, carried into effect probably voyage never was described in the 
 
 at the dividing point of the three policy; the policy consequently never 
 
 routes : it was not a substitution of attached, and to call the absence of 
 
 a new voyage, because Jamaica was any mention of Cape Nicola Mole 
 
 preserved as the terminus ad qmm ; a concealment, seems under these 
 
 Kewley v. Eyan, 2 H. Bl. 343. If circumstances to be a misuse of lan- 
 
 tJiis intention had been definitely guage. 
 
462 
 
 DEVIATION. 
 
 [part I. 
 
 Deviation ia 
 the absence 
 of usage. 
 
 the contract in the policy is held to be, that the ship should 
 proceed from one terminus of the voyage insured to the 
 other, in a direct course, with all due expedition, and with- 
 out touching at any interjacent port, or pursuing any inter- 
 mediate adventure. Anything that she does to the contrary 
 of this, unjustified by any of the emergent causes that shall 
 be considered hereafter, or without leave expressly given in 
 the policy, however trifling in extent or duration, is a fatal 
 deviation, although the ship afterwards return to her proper 
 course nothing damaged in consequence of this departure 
 from it.* 
 
 Where there 
 is a usage. 
 
 Where, however, by the usage of trade, it is customary, in 
 the course of the voyage insured, to stop at interjacent ports, 
 though out of the direct line, it is no deviation to stop there, 
 though leave for that purpose is not expressly reserved ; for 
 upon the principles already developed, such stopping is 
 deemed to be in the regular course of the voyage insured, 
 and therefore to have been contemplated by the parties to 
 the policy. But for this purpose the usage must be precise, 
 clear, and established. Thus, to put an instance that did 
 exist, when all ships sailing through the Sound stopped at 
 Elsinore to pay the Sound dues, it was no deviation, though 
 liberty to stop there was not reserved in the policy.^ 
 
 But a stoppage at the Isle of Man, by a ship insured from 
 Liverpool to the West Indies, was held not to be justified by 
 proof that ships on that voyage had occasionally, but not 
 customarily, stopped there before.' So, in the United States 
 two instances of stopping at an intermediate port, not named 
 in the policy, by other ships engaged in the same trade, was 
 held inadequate to prove a usage or justify a departure from 
 the direct course.* 
 
 ' Fox V. Black, 2 Park, Ins. 620 ; 
 Townson v. Gruyon, ibid. ; Clason v. 
 Simmonds, 6 T. B.. 633, note; 3 Kent, 
 Com. 312. 
 
 ' Cormack v. Grladstone, 11 East, 
 347. 
 
 ' Salisbury v. Townson, Millar, 
 Ins. 418. 
 
 * Martin v. Dela-vrare Ins. Co., 2 
 Washington's R. 254 ; Condy's Mar- 
 shall, 186, note. 
 
CHAP. X.] EXCEPT UNDER USAGE. 463 
 
 On the same ground of usage, in the East India and 
 Newfoundland trades, it has repeatedly been held to be no 
 deviation to engage in intermediate voyages, although no 
 liberty be given in the policy so to do.^ In fact, where the 
 termini only of the voyage insured are indicated by the 
 policy, and the parties to the contract have done nothiag 
 else towards indicating its course, the sole guide in deter- 
 mining what that course should be, is mercantile usage ; and 
 nothing can be considered a deviation which follows only the 
 course that usage has sanctioned. 
 
 Where, however, the policy itself, besides indicating the Unless the 
 
 termini of the voyage, contains any directions as to the presslyex- 
 
 course which the ship shall take in sailing between them, ^oondstent 
 
 such directions must be followed with the most scrupulous ^^'^ *'^^ 
 
 . usage. 
 and literal exactness, and the slightest failure to comply with 
 
 them will amount to a fatal deviation. 
 
 Hence, where liberty is given in the policy to touch at 
 any one specified intermediate port, it will be a deviation to 
 put into any other than that named in the policy, though 
 calling at such other port be sanctioned by usage apart from 
 the policy, and neither the risk nor premium would have 
 been increased had such port been substituted for that named 
 in the clause. Expressio unius est exclusio alterius. 
 
 It seems to have been usual for vessels sailing from Elliott ». 
 Carron for Hull, in going down the Firth of Forth, to touch 
 at different places for the purpose of taking in and delivering 
 goods, particularly at Borrowstounness, Leith, and Morrison's 
 Haven. A merchant, desirous of insuring goods from Carron 
 to Hull, directed his broker to effect an insurance with 
 liberty in the policy " to call as usual " (which would have 
 enabled the ship to touch at all or any of the three places 
 
 ' As to the East Indian trade, see 105 ; 1 Marshall, Ins. 274. As to the 
 Salvador J). Hopkins, 3 Burr. 1707; Newfoundland trade, see VaUance ». 
 Gregory v. Christie, 3 Dougl. 419 ; 1 Dewar, 1 Camp. 503 ; Ougier v. Jen- 
 Park, Ins. 104; IMarshaU, Ins. 273; nings, ibid. 505, note. 
 Earquharson v. Hunter, 1 Park, Ins. 
 
464 
 
 DEVIATION. 
 
 [part 1. 
 
 above mentioned) ; instead of this the broker, contrary to 
 the directions of the merchant, and without his knowledge, 
 insured from " Carron to HuU, with liberty to call at Leith." 
 The premium was the same as though the general liberty to 
 call as usual had been inserted in the policy. 
 
 The ship on her voyage did not call at Leith but put into 
 Morrison's Haven, and afterwards without damage got safe 
 again into the direct course of the voyage from Carron to 
 Hull, and had been proceeding on such course for about a 
 day, when she was overtaken by a storm and wrecked 
 on the coast of Northumberland, with a total loss of the 
 cargo. 
 
 The Scotch Courts, upon this state of facts, decreed that 
 the underwriters should pay the loss; but the House of 
 Lords reversed their judgment, on the ground that putting 
 into Morrison's Haven, under a pohoy which contained no 
 liberty so to do, but, on the contrary, gave express permission 
 to put into another named port, was a deviation discharging 
 the underwriters from all further liability.^ 
 
 The geo- 
 graphical 
 order of 
 ' ports of 
 
 Clason V. 
 Simmonds. 
 
 Where a ship is insured on a voyage to "ports of dis- 
 charge," which are not specifically named in the policy, the 
 general principle is, that the ship must visit such ports in 
 the geographical order of their distance from the terminus a 
 quo, or port of departure. 
 
 Thus, where a ship, insured on a voyage " from London to 
 her ports of discharge within the Straits (of Gibraltar) as 
 high as Messina," sailed on her voyage, with a freight for 
 Marseilles, but with instructions to go also to Genoa, Leg- 
 horn, and Naples ; and on arriving off Marseilles, her first 
 port of discharge in geographical order, as she was prevented 
 by contrary winds from putting in there, she proceeded fitrst 
 to Genoa and then to Leghorn, from which latter place she 
 was making her way back to Marseilles, when she was 
 captured : a special jury found this sailing back to Marseilles 
 
 1 Elliott V. Wilson, 7 Brown's P. C. 459. 
 
CHAP. X.] AS TO THE ORDER OF PORTS. 465 
 
 to be a deviation, ■which determiaed the policy from the 
 moment of her leaving Leghorn.^ 
 
 If , however, the several successive ports of discharge are Wieuthe 
 specifically named in the policy, then, upon the principle m^nes thV " 
 already stated," it -will be a deviation if the ship does not °amed.*^°''' 
 visit such ports in the precise order in which their names 
 occur in the policy, whether that be the geographical order 
 or not, unless, indeed, long and uniform usage, not mani- 
 festly excluded by the tenor of the policy, have established 
 a different course. 
 
 A ship insured "at and from Fisherrow to Gottenburg, Beatson«. 
 and back to Leith and Oockenzie," was on her homeward ^ 
 passage with goods on board both for Leith and Oockenzie. 
 This latter port lies nearer to Grottenburg than Leith, and 
 is about a mile and a half out of the direct course between 
 the two ; but there appeared to be no settled course of trade 
 as to the order of calling at the two places on such a voyage 
 as this. The ship first put into Oockenzie, and in coming 
 out V7as stranded and lost. Upon these facts, the Oourt held 
 that the ship was guilty of a deviation by putting first into 
 Oockenzie, and the underwriter was discharged from his 
 liability.' 
 
 It is not, however, necessary that a ship thus insured to 
 several successive named ports of discharge should sail to all 
 the ports so named. She may omit any or sail only to one ; 
 the sole limitation is, that if she visits more than one, she 
 must take them in the order in which their names occur 
 in the policy, imless there be a usage not excluded by the 
 policy. 
 
 Thus, where a ship was insured "from Liverpool to Marademj. 
 Palermo, Messiua, and Naples," Lord EUenborough held the 
 true construction of the insurance to be that the assured 
 
 1 Clason V. Simmonds, 6 T. E. * Ante, p. 463. 
 
 533, in. notis ; see per Sir Vicary ' Beatson v. Havorth, 6 T. K. 
 
 Gribbs, Andrews v. Melliah, in error, 631 ; see also Marsden v. Beid, 3 
 
 6 Taunt. 496, 502. East, 571, 677. 
 
 M. H H 
 
466 
 
 DEVIATION. 
 
 [fart I. 
 
 might drop any of tlie places named, but that if he went to 
 more than one he must take them in the order named in the 
 policy.^ 
 
 Sununaiy and 
 rale. 
 
 As a general rule, therefore, where there are several ports 
 of discharge, the ship must take them either in the order in 
 which they are named in the policy, or, if not named, then 
 in the geographical order of their distance from the port of 
 departure. But if long and uniform usage have established 
 a different order, there can be little doubt that the other may 
 be disregarded and this observed. It has even been intimated, 
 though this is doubtful, that the order fixed by usage over- 
 rules that which is specified in the policy.^ 
 
 To revisit is 
 to deviate, 
 unless jus- 
 tified by the 
 poUoy or 
 usa^e. 
 
 Generally speaking, it will be a deviation, after having 
 once touched at one of several ports, to revisit it, or to sail 
 backwards and forwards from one to the other ; unless express 
 liberty for that purpose be inserted in the policy ;^ or unless 
 it appear by the terms of the policy, that the purposes of the 
 voyage as described necessarily involve such a liberty.* As 
 for instance, in the United States, a ship insured on a West 
 India voyage to any one of the islands " and a market," was 
 held to be justified in seeking a market at the different islands, 
 without regard to their geographical oi'der, and even in 
 touching at the same port once and again, if it be with the 
 bona fide intention of finding a market.* 
 
 From some Where a ship is insured " at and from " some one named 
 
 one named , « - 
 
 terminus a quo po^t 01 departure and " other port or ports " to a fixed ter- 
 
 portOTports" ™ii'is, it depends entirely on the language of the clause and 
 not named. 
 
 ' Marsden v. Eeid, 3 East, 571. 
 Same rule in the United States ; see 
 Kanew. Columbian Ins. Co., 2 John- 
 son'sE. 264 ; and see other cases illus- 
 trating the same point, 1 Phillips, 
 Ins. no. 1010. 
 
 ' Beatson». Haworth, 6T. R. 631; 
 Gairdner v. Senhouse, 3 Taunt. 16. 
 
 ° Gairdner v. Senhouse, 3 Taunt. 
 16. 
 
 * MeUish v. Andrews, 2 M. & Sel. 
 26 ; S. C.,b Taunt. 496, in error. 
 
 * Deblois v. Ocean Ins. Co., 16 
 Pickering's R. 303; see 1 Phillips, 
 Ins. no. 1014. 
 
CHAP. X.] AS TO THE ORDER OF PORTS. 467 
 
 the true construotion of the policy whether it be a deviation 
 for the ship to depart from the direct course between the 
 first-named port of departure and the ierminus ad quern, 
 for a purpose connected with the main object of the voyage 
 insured. 
 
 Thus, a ship insured " at and from Martinique and all or Bragg v. 
 any of the other West India Islands to London," sailed to 
 take in her cargo at St. Domingo, a place very wide of the 
 direct course of a voyage from Martinique to London ; this 
 was yet held to be no deviation ; " For in order to make it 
 so," said Sir J. Mansfield, " you must read the insurance to 
 be, not at and from Martinique and all or any other of the 
 West India Islands, but ' at and from Martinique and such 
 of the West India Islands as lie between Martinique and 
 London.'"! 
 
 So, it Was held no deviation for a ship insured " at and Lambert v. 
 from Pemambuco or any other port or ports in the Brazils 
 to London," after touching at Pemambuco, and finding no 
 cargo there, to seek it at St. Salvador, another port in the 
 Brazils 500 miles to the south of Pemambuco, and con- 
 sequently so far in the opposite direction from that to London. 
 Gibbs, C. J., said that if the insurance had been at and from 
 Pemambuco or any other port in the Brazils, there might 
 have been something in the objection, as it might then have 
 been contended that, by electing Pemambuco as the port of 
 loading, the assured could not go to another without a 
 deviation ; but that the alternative being, any other port or 
 ports, there must have been an intention of sending her to 
 more than one.^ 
 
 A ship was insured " at and from Liverpool to ports and Ashley v. 
 places in China and Manilla, all or any, during the ship's 
 stay there for any purposes, and from thence to her port or 
 ports of calling and discharge in the United Kingdom." The 
 ship sailed from Liverpool for the coast of China, discharged 
 part of her outward cargo at the Chinese port of Tonghoo, 
 
 ' Bragg V. Anderson, 4 Taunt. * Lambert v. Liddard, 5 Taunt. 
 
 229. ° 480 ; 1 MarshaU's R. 149. 
 
 HH 2 
 
468 DEVIATION. [PAET I. 
 
 and proceeded to Manilla, where she discharged the residue. 
 At Manilla, finding freights low, the captain took on hoard 
 only a tenth part of a cargo and sailed hack for Tonghoo, 
 with the intention of there completing his homeward cargo 
 and sailing thence direct to England, hut on this passage 
 the ship was lost. Tonghoo is quite out of the direct course 
 from Manilla to England. The Court of Exchequer, not- 
 withstanding, held this to be no deviation, for the words, 
 " from thence " in the policy, applied not to Manilla only, 
 but to " ports or places in China and Manilla, all or any." ' 
 
 Port and It may become a question, under a policy to or from " port 
 
 ing of. A. and a port or ports in B.," of considerable nicety, whether 
 
 a particular place be a port within the meaning of the pohcy, 
 so as to excuse what would otherwise be a deviation. First, 
 is it a place within the country or province of B. ? Secondly, 
 is it such a place as would answer the designation port ? We 
 have seen that where the character and formation are such as 
 would not be chosen for convenience, yet the efEect of use and 
 wont may justify the application of this term to an anchorage 
 in an open roadstead.^ 
 
 In one case where the alleged port was a roadstead or hay 
 formed by headlands, and open to the east and north-east, 
 without any other artificial formation than a jetty or pier 
 attached to a slaughter-house, and vessels loading there 
 were obliged to lie off in the roadstead a quarter of a mile 
 from the jetty, and to load by means of craft, — this place, 
 although frequented only by coasters trading to Buenos 
 Ayres, and not at all by vessels loading for Europe, and 
 although it was unknown to underwriters as a place of load- 
 ing, was nevertheless held to he a port within the meaning 
 of the poHcy.' 
 
 As in this last case the vessel was obliged to sail back to 
 
 1 Ashley e. Pratt, 16 M. & W. s Harrower*. Hutchinson, L. E., 
 
 471 ; affirmed, in error, 1 Exch. 257; 4 Q. B. 523 ; in error, 5 Q. B. 584, 
 
 S. C, 17 L. J. (Exch.) 135. 689. 
 
 ' See also ante, p. 410. 
 
CHAP. X.] AS TO THE LICENPE CLAUSES. 469 
 
 Buenos Ayres to complete her cargo and obtain Ker clear- 
 ances, it was argued that such. sailing back was evidently not 
 contemplated by a policy " from a port or ports of loading to 
 a port or ports of call and discharge in the United Kingdom," 
 and consequently was a deviation ; but the Court held that 
 the language of the policy permitted the ship to go from port 
 to port and back to the same port until she had completed her 
 cargo.i 
 
 Everything in these cases depends on the meaning of the 
 parties, so far as it can be ascertained from the terms of the 
 policy, explained where doubtful by extrinsic evidence of 
 usage. 
 
 Thus, it was held a deviation for a ship' insured " at and Brown «. 
 from her port of loading in North America to Liverpool," *^ ^^' 
 after loading partly in one creek of a bay, to go afterwards 
 eight miles ofE, to another creek of the same bay, to take in 
 the rest. The tei^ns of the policy showed that the under- 
 writer did not mean to run the risk of loading the ship at 
 two such distant places, and there was no evidence to show 
 that the two places were considered by the mercantile world 
 as forming parts of the same port.^ If, indeed, the ship were 
 at a particular quay on a river, as at Liverpool, and merely 
 removed to another quay, a mile or two ofE, that would not 
 be a deviation, for there the ship would be all the time at one 
 port or place; but it is a deviation if she removes to a 
 different town or different place of habitation, which might 
 itself be a port of loading.' 
 
 We next come to cases of deviation decided on the con- Deviation 
 struction of those special clauses in the policy, by which clause "to 
 liberty is given to the ship "to call," or "to touch," or "to ^^^V""^ 
 touch and stay," or " to touch, stay, and trade," either at 
 
 ' narrower V. Hutchinson, L. R., ' Brown v. Tayleur, 4 A. & E. 
 
 4 Q. B. 523 ; in error, 5 Q. B. 584, 241. 
 589. " Per Patteson, J., ibid 249. 
 
470 
 
 DEVIATION. 
 
 [part 1. 
 
 Classes tmder 
 which the 
 cases range 
 themselves. 
 
 iJertain specified ports, or " at all ports whatsoever, for all 
 purposes whatsoever," &c. 
 
 These cases are divisible into two classes. 
 
 1st. Those ia which the question is, Whether the ship was 
 justified, under the policy, in originally putting into the port 
 at all: — and this question mainly turns upon the two 
 following points,— (a.) Was the port one which, on the true 
 construction of the policy, was within the course of the 
 voyage as contemplated by the parties ?—{b.) If so, was the 
 purpose for which it was visited connected with and in 
 furtherance of the main scope and object of the adventure ? 
 
 2ndly. Supposing the ship to have been thus justified in 
 originally visiting the port, as nothing which she does during 
 the period of her lawful stay there, though foreign to the 
 purposes of the adventure, and not specifically permitted by 
 the policy, wHl be held to discharge the underwriter, unless 
 it substantially varies the risk, the only question is, whether 
 the trading, &o., at such port, has, in fact, varied the risk 
 originally assumed by the underwriter. 
 
 A principle Formerly, it appears to have been supposed that a great 
 
 doned. deal turned on the exact words of the clause, without refer- 
 
 ence to the real scope and purpose of the adventure, as dis- 
 coverable from the whole language of the policy. Thus, a 
 liberty " to touch " was supposed to have a different meaning 
 from a liberty "to touch and stay;" and a ship, insured 
 under a policy containing only the former clause, was con- 
 sidered to have no power thereby conferred on her of trading 
 in the port at which she had touched, though such trading 
 was obviously contemplated as part of the adventure.' 
 
 Present rale. But now the Courts, conformably with the good sense of 
 the matter, hold that the licence conferred by these words 
 must depend upon the real object which the parties had in 
 view when they inserted the clause in the policy. 
 
 1 Urqnhart v. Bernard, 1 Taunt. 
 454, where Sir J. Mansfield said he 
 
 could not find the distinction any- 
 where defined. 
 
CHAP. X.J AS TO THE LICENCE CLAUSES. 471 
 
 Thus, in the case of a ship insured " at and from Madeira Urquhart v. 
 to Santos, with liherty to touch at the Cape de Verd Islands," 
 where it appeared from communications made by the assured 
 to the underwriter before effecting the policy, that the parties 
 intended the ship to take in salt at one of the Cape de Verd 
 Islands, she was held entitled to do so, under the mere liberty 
 to touch there.^ 
 
 So, where a ship was insured from "Antigua to England," Metcalfe v. 
 with an extensive "liberty to touch" at aU or any of the 
 West Indian Islands, Gibbs, 0. J., held that as the main 
 object of the voyage plainly appeared to be that the ship 
 should go about from island to island seeking freight, the 
 bare liberty " to touch " included a liberty to stay and take 
 goods, and therefore that the ship's remaining two months 
 at one of the islands, waiting for a cargo, was no deviation.^ 
 
 In short, wherever it appears to have been clearly con- 
 templated by the parties, or necessary to the purposes of the 
 voyage insured, that the ship should trade where she has 
 liberty merely to touch, her doing so will not be deemed a 
 deviation. 
 
 We revert now to our classification of the cases illustrative What ports 
 
 of these principles of interpretation, and first proceed with ^{ted^ and 
 
 those in which the question is, whether the ship was origi- ^°^ ^^^^ 
 ...... . . purposes. 
 
 nally guilty of a deviation in visiting or staying at any given 
 
 port. 
 
 The clause in question, whatever be the language, or how- Bule. 
 
 ever extensive the terms, cannot convey a liberty of touching 
 
 at any port out of what, on the true construction of the 
 
 policy, appears to have been the understood course of the 
 
 voyage, or of putting into any port within the limits of the 
 
 voyage for purposes unconnected with the real objects of the 
 
 adventure.* 
 
 1 Urquiart v. Bernard, 1 Taunt. strains the effect of general terms to 
 
 450. tilings ejmdem generis, or otherwise 
 
 * Metcalfe v. Parry, 4 Camp. 123. to matter of a tenor consistent with 
 
 3 This is but another instance the context, 
 under the general rule which re- 
 
472 
 
 DEVIATION. 
 
 [part I. 
 
 Ports only in 
 the direct 
 course of the 
 voyage. 
 
 Lavabre i 
 Wilflon. 
 
 Hogg V. 
 Homer, 
 
 The true points of inquiry, then, are, Ist, Was the port at 
 which the ship touched a port in the course of the voyage as 
 understood by the parties ? 2nd, Was the purpose, for which 
 she so touched there, bond fide connected with the main 
 object of the adventure ? 
 
 Ist. Unless, upon the true construction of the policy, it 
 appears manifest that the parties had a different meaning, it 
 may be taken as a general rule that a liberty to touch and 
 stay, though conceived in very extensive terms, can only 
 confer a power of visiting such ports as lie in the usual and 
 direct course between the termini of the voyage insured. 
 This inference is insurmountably strong if there be anything 
 ia the language of the policy expressly favouring such au 
 interpretation. 
 
 For instance, a ship was insured on an East India voyage, 
 " out and home," " with liberty to touch in the outward or 
 homeward voyage at the Isles of France and Bourbon, and 
 at all or any other place or places what or wheresoever;" 
 and with a stipulation " that it should be lawful for the said 
 ship in this voyage, to touch and stay at any ports or places 
 whatsoever, as well on this side as on the other side of the 
 Cape of Good Hope, without being deemed a deviation." 
 Lord Mansfield, in the course of the argument, intimated a 
 clear opinion that the general words were qualified and 
 restrained by the clause " in the outward and homeward- 
 bound voyage," and " in this voyage," so as to mean " all 
 places whatsoever in the usual course of the voyage to and 
 from the places mentioned in the polioy." ^ 
 
 Upon the same principle, where a ship was iasured " at 
 and from Lisbon to a port in England, with liberty to call 
 at any one port in Portugal for any purpose whatever," Lord 
 Kenyon was of opinion that the liberty given by this polioy 
 must be confined to ports to the northward of Lisbon, and 
 in the direct course of a voyage thence to England ; and he 
 held accordingly, that the ship was guilty of deviation in 
 
 ' Lavabre v. 'WilBon, 1 Dougl, 284. 
 
CHAP. X.J AS TO THE LICENCE CLAUSES. 473 
 
 sailing to Faro, a port to the southward of Lishon, although 
 she sailed there to complete her cargo — a purpose connected 
 with the voyage insured."- 
 
 So, where a ship was insured " at and from Africa to the Ranken v. 
 Canaries, Madeira, and Lishon, with Hherty to touch, stay, 
 and trade at all ports," &c., " in the voyage," it was held that, 
 after having once moored at anchor for twenty-four hours in 
 a port in Africa, so as to give an inception to the risk, she 
 could not then proceed to the southward, hut only northward, 
 towards Europe, the ohject heing only to protect deviations 
 in the direct course of the voyage insured.^ 
 
 So, where a ship was insured " at and from London to Grairduer v. 
 Trinidad and the Spanish main," with liberty " to call at all 
 or any of the West Indian Islands or Settlements," Sir J. 
 Mansfield expressed a clear and undoubted opinion that this 
 liberty of calling must be confined to places taken in the 
 direct and customary course between the termini of the 
 voyage insured, and therefore could not be held to protect 
 the ship, after having once sailed southward as far as Deme- 
 rara, in then sailing up northward to Martinique and St. 
 Thomas's, unless, indeed, very satisfactory evidence were 
 given that such was a customary course on such voyages as 
 those insured in this policy.^ 
 
 If, upon the true construction of the whole policy, it The purpose 
 plainly appears that the parties could not have intended to ^y reqmrf a 
 give this limited effect to these clauses, they wiU be held to '^*«rent eon- 
 confer a power of visiting any ports within the scope of the 
 policy, although they lie wide of the usual and direct course 
 between the termini of the voyage, and even in a diametri- 
 cally opposite direction ; but then they must be visited for 
 a purpose connected with the prosecution of the adventure 
 contemplated by the policy. 
 
 Thus, where a trading ship was insured on a homeward Bragg v. 
 
 Anderson. 
 ' Hogg V. Homer, 2 Park, Ins. 627. 
 626 ; 1 Marshall, Ins. 184. » Gairdner v. Senhouse, 3 Taunt. 
 
 2 Banken v. Beeye, 2 Park, Ins. 16. 
 
474 
 
 DEVIATION. 
 
 [part 1. 
 
 Metcalfe ( 
 Parry. 
 
 Barolay » 
 Stirling. 
 
 voyage " at and from Martinique, and all or any other of the 
 West Indian Islands, to London," with liberty " in that voy- 
 age to touch and stay at any ports or places whatever," it was 
 held to he no deviation under this policy for the ship after 
 sailing from Martinique to put in for a cargo at one of the 
 West Indian Islands (St. Domingo), which lay very wide 
 of the direct course of the voyage from Martinique to 
 London, Mansfield, 0. J., said, " There is no getting over 
 these words ; instead of ' aU ' you must substitute the 
 words ' some of the "West India Islands, such as lie between 
 Martinique and London.' That would make quite a new 
 agreement."^ 
 
 So, where a ship was insured " at and from Antigua to 
 England, with liberty to touch at aU or any of the West 
 Indian Islands, Jamaica included ; " and the ship, in order 
 to complete her homeward cargo, put into St. Kitts, which 
 lies wide of the direct course of the voyage from Antigua 
 to England; it was contended that this was a deviation; 
 but Qibbs, 0. J., ruled decisively that it was not; for, by 
 including Jamaica, which lies at least 500 miles wide of the 
 direct course of the voyage from Antigua to England, it 
 plainly appeared to be the meaning of the parties that the 
 islands might be touched at without regard to their lying 
 on or off such direct course, and that the ship was to go 
 about, if necessary, from island to island, for the purpose of 
 seeking freight.^ 
 
 Freight was insured on a voyage " from Jamaica to the 
 United Kingdom ;" and liberty was given in the poHoy "to 
 call at all, any or every one of the foreign and British West 
 Indian Islands, with leave to discharge, exchange, and take 
 goods at any ports or places she may call at, or proceed to, 
 without being deemed a deviation." The ship was driven 
 
 ' Bragg V. Anderson, 4 Taunt. 
 229 ; Bee also Lambert v. Liddard, S 
 Taunt. 480. In the case of Violett 
 V. Allnutt, 3 Taunt. 419, the ship 
 put into Penzance, where she had 
 express liberty given her "to touch 
 
 for any purpose whatever," in order 
 to complete her cargo, and was after- 
 wards lost there while waiting for a 
 wind : the Court were clear this was 
 no deviation. 
 2 Metcalfe v. Party, 4 Camp. 123. 
 
CHAP. X.] AS TO THE LICENCE CLAUSES. 475 
 
 ashore on the coast of Cuba, where by sea perils she lost a 
 great part of her original cargo. She was then taken into 
 the Havannah and repaired, and there, in addition to the 
 remains of her original cargo, loaded on board a fresh cargo 
 of colonial produce, with which she proceeded to her 
 original destination. The freight earned from Havannah 
 was held to be freight earned on the voyage insured, 
 and, consequently, to be given up to the underwriters on 
 abandonment.^ 
 
 Many instances occurred, during the pressure of Napoleon's Baltic risks. 
 Continental system, of a liberal interpretation of such clauses 
 in those adventures generally called " Baltic risks ; " not 
 because the Court in such cases were guided by any peculiar 
 principles of interpretation, but because the troubled and 
 shifting nature of our relations with the different ports in 
 the Baltic, under the political circumstances of the time, 
 was such as to render the voyages then insured for those 
 seas more vague in their objects, and less definite in their 
 limits. , 
 
 Groods were insured " at and from London to any port or Eucker v. 
 ports in the Baltic, backwards and forwards, &o., with leave ^ ' 
 to touch and stay at any ports or places for all purposes 
 whatever" ; and, by another clause, "particularly with leave 
 to wait for information off' any ports or places." The ship 
 went iuto the port of Carlshamn to wait for information, 
 and while there an embargo was laid on her, and the goods 
 were seized and confiscated. At the trial Lord Ellenborough 
 intimated an opinion, that the words reserving liberty to 
 wait off any port for information abridged the liberty of 
 " touching and staying for all purposes ; " and the jury 
 accordingly found for the underwriters. 
 
 On motion for a new trial Lord Ellenborough altered his 
 view of the case, and, with the concurrence of the Court, 
 directed a new trial, principally on the ground that obtaining 
 
 1 Barclay v. Stirling, 5 M. & Sel. 6. 
 
476 DEVIATION. [part I. 
 
 information as to the political state of tlie Baltic ports was 
 a necessary purpose intimately connected with the prosecu- 
 tion of such a voyage as that which was insured, in which no 
 fixed ports of discharge were named, and the ship could not 
 venture to proceed to any without first learning whether they 
 were friendly or hostile.^ 
 
 Mellisli V. So where a ship was insured " at and from London to the 
 
 Andrews. , . , . , 
 
 ship s discharging port or ports in the Baltic," with liherty 
 
 "to touch at any port or ports for orders, or any other 
 purpose," it was held no deviation for the ship, before she 
 had fixed upon her port of discharge, to call for orders twice 
 at the same port.^ In this case, as Lord EUenhorough 
 remarked, " the adventure is stated to be a voyage all over 
 the Baltic, the object of the adventure was that the assured 
 should call as often as necessity required, and there is nothing 
 in the nature of the thing which makes calling again at the 
 same port absurd or contrary to what may be presumed to 
 have been the intention of the parties.' 
 
 When this case came before the Court of Error, the judg- 
 ment of Lord Ellenborough was affirmed; but Sir Vicary 
 Gibbs, who delivered the judgment in error, laid great stress 
 on the point that no port of discharge had been fixed on 
 when the ship put in a second time for orders ; had this been 
 otherwise, he thought she would then have been obliged to 
 take the ports in their order of succession ; as it was, he was 
 of opinion that, under the terms of the policy, " the assured 
 had a right to go backwards and forwards from port to port 
 for orders as to his port of discharge, until his port of dis- 
 charge was fixed."* 
 
 ' Euoker v. Allnutt, 15 East, 278. but in his judgment in 2 M. & Sel, 
 
 2 Mellisli V. Andrews, 2 M. & Sel. he states that the non-introduction 
 
 26. On the former trial of the same of these -words could make no difier- 
 
 case. Lord EUenhorough thought enoe imder the circumstances. 
 
 this was a deviation, especially as ' 2 M. & Sel. 34. 
 
 the policy did not contain the words ' Andrews v. Mellish, in error, 6 
 
 "hackwards and forwards" (see Taunt. 496. 
 
 Mellish V. Andrews, 16 East, 312) ; 
 
CHAP. X.J AS TO THE LICENCE CLAUSES. 477 
 
 The two following decisions proceed upon, and perhaps in 
 some degree extend, the same principle : — 
 
 A convict ship was insured on a voyage "at and from Armettv. 
 London to New South Wales, and at and from thence to the ""^^' 
 ship's loading port or ports in the Bast Indies, Persia, China, 
 or elsewhere, forwards and backwards, and backwards and 
 forwards, as well on this side as on the other side of the 
 Cape of Good Hope, until her safe arrival at her final port 
 of discharge in Great Britain," with leave for the ship " in 
 the voyage insured, to proceed and sail to, touch and stay at 
 any ports or places whatsoever, and wheresoever, and for 
 any purpose whatsoever, without being deemed a deviation." 
 The ship, after arriving at New South Wales, and discharg- 
 ing her convicts there, sailed in ballast to Batavia, where 
 she took in a cargo of iron for Sourabaya; — sailed to that 
 port, discharged her iron there, and took in a cargo of rice 
 for the Mauritius ; — at the Mauritius she unloaded part of 
 the rice, iatending to load on board there a cargo of cotton 
 for England, but being on survey found unseaworthy, was 
 broken up there and sold. 
 
 The jury found, at the trial, that the ship had not touched 
 at too many places, nor stayed an unreasonable time, but 
 had pursued the usual course on a voyage of this description. 
 The defendant, however, contended, that the purpose of 
 touching not only to load, but also to discharge goods, was a 
 deviation ; but the Court held that it was not so.^ Park, J. : 
 " The terms contained in the policy cannot be more general 
 and extensive. The vessel might sail and touch at any ports 
 or places whatsoever, for any purposes whatsoever. Is not 
 trading a purpose ? If an underwriter enters into a covenant 
 of this kind it is his own fault." 
 
 A merchant in this country having reason to expect a Hunter i;. 
 shipment of goods on his account from some of the ports of ^ ^' 
 the Indian Archipelago, without knowing, however, of what 
 nature they were, at what port to be loaded, or by what ship 
 
 1 Armett v. lunes, 4 J. B. Moore, 150. 
 
478 DEVIATION. [PAUT I. 
 
 to be sent, effected a policy on goods generally, on board of 
 some one out of four different ships named in tbe policy 
 (witb leave to declare his interest more particularly, as it 
 might thereafter appear), upon a voyage " at and from Sin- 
 capore, Penang, Malacca, and Batavia, all or any, to the 
 ship's port or ports of discharge in Great Britain or Holland," 
 &c., " with leave to touch, stay, and trade at all or any ports 
 or places whatsoever and wheresoever in the East Indies, 
 Persia,^ or elsewhere, and also with permission to touch and 
 stay at any ports or places in any direction, and for any 
 purpose, necessary or otherwise, particularly Sincapore, 
 Penang, Malacca, Batavia, the Cape of Good Hope, and 
 St. Helena, and to take on board, discharge, reload, and 
 exchange goods and passengers, without being deemed a 
 deviation." 
 
 Under this policy the ship took in part of her cargo at 
 Batavia, and then proceeded to Sourahaya (another port in 
 Java, lying 400 miles to the eastward of Batavia, and di- 
 rectly out of the course from Batavia, or any other of the 
 four ports mentioned in the policy, to Europe), where she 
 took on board the reniainder of her cargo, and returned with 
 it to Batavia, whence she sailed for Europe, and was after- 
 wards lost by the perils of the seas. The Court of King's 
 Bench held this putting into Sourahaya for the purpose of 
 completing her cargo to be no deviation, and the Court of 
 Exchequer Chamber subsequently affirmed the judgment.^ 
 
 The purpose 2nd. The purpose for which a port is visited must he within 
 
 of the visit, 
 
 ' It was expressly found by the Lord Tenterden remarked, "That 
 
 special case that the nearest port or the order in which the four places 
 
 place in Persia was more than 1000 named stood iu the policy, showed 
 
 miles out of the direct coiurse of a clearly that a voyage in the direct 
 
 voyage from either Sincapore, or geographical course was not thought 
 
 Penang, dr Malacca, or Batavia, to of." 10 B. &Cr, 873. The geographi- 
 
 Enrope. cal order is, 1. Penang; 2. Malacca; 
 
 » Hunter v. Leathlej, 10 B.. & Or. 3. Sincapore; 4. Batavia. Theordjer 
 
 858; jS. C. confirmed in error, 7 Bing. in the policy is, 1. Sincapore; 2. 
 
 517 ; 5 Moore & P. 457 ; 1 Or. & J. Penang ; 3. Malacca ; i. Batavia. 
 423 ; S. C. at N. P., LI. & Wels. 244. 
 
CHAP. X.] AS TO THE LICENCE CLAUSES. 479 
 
 the scope of the adventure contemplated by the policy, other- 
 wise the. visit will be a deviation, notwithstanding the port 
 visited is within the terms of the policy. 
 
 However extensive may be the language of the clauses, 
 " the permission to stay ' for any purpose whatever,' must be 
 for some purpose within the scope of the adventure." i " The 
 liberty in the policy must always be construed with reference 
 to the main scope of the voyage insured."^ 
 
 Thus, where goods were insured " at and from London to 'Wmiams v. 
 Berbice, with liberty to touch and stay at any ports and 
 places whatsoever and wheresoever, and for all purposes 
 whatsoever, particularly to land, load, and exchange goods, 
 without being deemed a deviation," Lord EUenborough held 
 that, notwithstanding the extensive terms in which this 
 liberty was conceived, the ship, which had sailed with con- 
 voy, was guilty of a deviation by putting into Madeira, for 
 the purpose of unloading goods and taking on board wines 
 (which did not form part of the subject of the insurance), 
 and there delaying, for that purpose, till after the convoy 
 had proceeded on the voyage.' 
 
 A ship was insured on a voyage "at and from Para to Hammond j". 
 New York," during her stay there, and at and from thence 
 to Para, " with leave to call at all or any of the "Windward 
 and Leeward Islands on her passage to New York, with 
 leave to discharge, exchange, and take on board the whole or 
 any part of any cargo or cargoes at any ports or places she 
 might call at or proceed to, particularly at all or any of the 
 Windward and Leeward Islands, without being deemed any 
 deviation, and without prejudice to that insurance." Under 
 this extensive liberty, the ship, after sailing from Para, on 
 her passage to New York, put into St. Thomas's and St. 
 Bartholomew's, two of the Leeward Islands, not for any 
 
 ' Per Gibbs, J., in Langhom v. see also Eedman ». Loudon, ibid. 503, 
 
 Allnutt, i Taont. 510, 519 ; see also which was a policy on the same ship 
 
 Eucker v. Allnutt, 15 East, 278. for the same voyage, without the 
 
 ' Per Lord EUenborough, in Wil- clause, and in which it was admitted 
 
 liams V. Shee, 3 Camp. 469. there had been a deviation. 
 
 3 Williams v. Shee, 3 Camp. 469 ; 
 
480 DEVIATION. [part I. 
 
 purpose connected with the voyage insured, but in order to 
 obtain information for the shipowner whether the state of the 
 market in those islands was suoh as to make it worth hig 
 while to send goods out there in another vessel of his, on a 
 separate adventure from New York. The Court held that, 
 although these islands were undoubtedly within the language 
 of the policy, yet putting into them for a purpose wholly 
 unconnected with the voyage insured, and which had refer- 
 ence to some new adventure subsequently to be undertaken 
 in another vessel, was a deviation.^ 
 Solly V. A ship was insured on an outward voyage " at and from 
 
 °'®' HuU to her port or ports of loading in the Baltic or Gulf of 
 Finland, with liberty in the said voyage to touch and stay 
 at any ports or places whatever, for all purposes, particularly 
 at Elsinore, without being deemed a deviation." The ship's 
 intended port of loading was Pillau ; before sailing, however, 
 she had taken goods on board for Elsinore and Dantzic, and 
 on her voyage she stopped at both these places, in order to 
 deliver those goods, and was afterwards lost before reaching 
 Pillau ; the Court held, under this policy, that the stopping to 
 deliver goods, being a purpose wholly foreign to the main 
 object of the voyage insured, was a deviation.'' 
 
 A ship and cargo were insured " at and from Liverpool to 
 the west and (or) south-west coast of Africa, during her stay 
 and trade therein, and back to a port of call or (and) dis- 
 charge in the United Kingdom." The vessel stayed a month 
 on the African coast for the purpose of earning salvage ; she 
 was damaged while in that employment, and was afterwards, 
 while on the voyage home, driven ashore on a savage part of 
 Africa, and totally lost. It was held that salvage, in the 
 absence of usage, could not be construed a purpose within the 
 licence contained in the policy, and consequently that the risk 
 had been substantially varied by what had been done.' 
 
 1 Hammond v. Beid, 4 B. & Aid. v. Brit. & For. Mar. Ins. Co., L. K., 
 
 72. 8 Exch. 154. 
 
 ' Solly V. Whitmore, 6 B. & Aid. Whether and how far purposes of 
 
 45. salvage will justify deviation is oon- 
 
 ' Company of African Merchants sidered ^os<. 
 
CHAP. X. j AS TO THE LICENCE CLAUSES. 
 
 481 
 
 The same principles apply in the case of intermediate Intermediate 
 voyages, according as such voyages are or are not within the ''°^^^^^- 
 licence given by the policy. 
 
 Thus, a ship was insured " at and from London to New Bottomley v. 
 South Wales, and at and from thence to all ports or places ■^°''"- 
 in the East Indies and South America," with liberty " to 
 proceed and sail to, touch and stay at, any ports whatsoever, 
 &c., for all purposes whatsoever, particularly to trade and 
 sail backwards and forwards, and forwards and backwards." 
 Under this policy the ship sailed from London with convicts 
 for New South Wales, and soon after arriving there the 
 captain received orders from his employers to proceed from 
 New South Wales to the East Indies. Before this, however, 
 he had entered into engagements for a voyage to New 
 Zealand and back again to New South Wales, and accord- 
 ingly sailed on this voyage, intending to return to New 
 South Wales, and then to sail, as directed by his employers, 
 for the East Indies. On his way back, however, from New 
 Zealand, his ship was lost, and the underwriters resisted 
 payment, on one ground, amongst others, that as New 
 Zealand lay entirely out of the course of the voyage from 
 New South Wales to the East Indies, the sailing thither 
 was a deviation, even under the extensive terms of this 
 policy, and the Court, on the principle already stated, held 
 that it was so.' 
 
 Upon the same principle, where an insurance was effected Hamilton ». 
 on goods on board a ship which, as appeared upon the face 
 of the policy, was taeant to act as a tender to other ships 
 employed in the palm oil trade on the African coast, the 
 Court held that it was a deviation for a ship so insured 
 to sail away from the Benin river (where she had been for 
 some time acting as a tender) to Cameroons with the cargo 
 of one of the oil ships which had gone ashore at the bar of 
 
 1 Bottomley v. BotiII, 5 B. & Or. 210. 
 M. I I 
 
482 DEVIATION. [part I. 
 
 the Benin river, because instead of her subsidiary duties 
 she had assumed the responsibilities of a principal voyage, 
 yet the policy in this case was conceived and expressed in 
 terms of the most extensive licence.^ 
 
 Trading no We come now to the consideration of those cases which 
 without ' establish the position, that if the ship, under the terms of 
 ^ ^^' the policy, was justified in originally visiting the port, any 
 
 trading during her stay, although foreign to the main pur- 
 poses of the adventure, is not a deviation, unless it causes 
 additional delay, or otherwise substantially varies the risk. 
 Formerly this was otherwise.^ 
 Eaine v. Bell. Ship and freight were insured on a voyage " from the 
 ship's loading port or ports on the coast of Spain to London, 
 with liberty to touch and stay at any port or place whatever, 
 without being deemed a deviation." The ship was necessarily 
 obliged to put into Gibraltar for a supply of provisions, and 
 while there the captain also took on board some chests of 
 dollars on freight. The putting into Gribraltar was justifi- 
 able, and no additional delay was caused by taking the 
 doUars on board ; the Court, therefore, held that there had 
 been no deviation.' 
 
 The Court held in the same case that there had been no 
 variation of the risk by taking treasure on board, and thereby 
 
 1 Hamilton v. Shedden, 3 M. & W. places -whatsoever, and to load, un- 
 
 49. load, reload, sell, barter, andexchange 
 
 Thepolioy was "at and from Liver- goods, and property, &c., particularly 
 pool to any port or place of loading with liberty to tranship," and mth 
 and trade on the African coast and a memorandum "that the said vessel 
 islands, during her stay and trade might he employed and used as a 
 there, and at and from thence to her tender to any other ship or vessel in 
 port or ports of discharge in the the same employ." 
 United Kingdom, with leave to oaU = gy^t ^_ Wardell, 1 Esp. 610; 
 at all ports and places, backwards and Sheriff v. Potts, 5 Esp. 96. This latter 
 forwards, and forwards and back- case may be supposed to have pro- 
 wards, in any order, for any purpose, ceeded partly on the principle that 
 without being deemed a deviation ; expressio unius est exolusio alterius ; 
 and with liberty also for the said ship but even then it is overruled by 
 in the said voyage to proceed and sail Laroche v. Oswin, 12 East, 131. 
 to and touch and stay at any ports or ^ jfaine v. Bell, 9 East, 195. 
 
483 
 
 CHAP. X.J AS TO THE LICENCE CLAUSES. 
 
 increasing the temptation to attack her, it heing then a time 
 of war.i 
 
 So, where a ship was insured "from Stockholm to New Cormaok^. 
 York," it was held no deviation for the owner of live stock ^^*'^^**'"«- 
 on board to take in provender for their use while the ship, 
 as was then customary on such a voyage, was waiting at 
 Elsinore for the purpose of taking convoy and paying 
 Sound dues; the whole of such provender having been 
 loaded on board before the Sound dues could be paid, so 
 that no additional delay was thereby occasioned.^ 
 
 In the case of Eaine v. Bell, where the policy was on Whether on 
 ship and freight, Lord Ellenborough expressly reserved his l^^^t, or 
 opinion as to the effect of a change in the state of the cargo °^ s°°^- 
 under a policy "on goods." The following ease dissipates 
 the doubt thus raised, and shows that it makes no difference 
 whether the policy be on goods or any other subject of 
 insurance. 
 
 Groods were insured on a voyage "at and from Gotten- Larooher. 
 burg to a port or ports in the Baltic, with liberty, in case of °^'^'''- 
 non-admittance, to imload at Carlshamn." After the ship 
 had sailed from Gottenburg with convoy, and while she was 
 lying in Malmoe roads under orders of the commodore, a 
 boat came alongside with some boxes of indigo, which 
 formed no part of the original intended cargo, but the 
 whole was got on board without any delay to the ship ; the 
 Court held this no deviation,* "for the risk insured was 
 neither enhanced nor varied; but somethiag was done in 
 the course of the voyage which made no difference in 
 either, and therefore was no discharge of the underwriter's 
 Uability."* 
 
 The principle of interpretation thus established in English Cases in the 
 law has received abundant confirmation in the jurisprudence states. 
 of the United States. Thus, where a ship, under liberty to 
 touch and stay, sold part of her cargo, while detained in 
 
 ' Ibid. ' Laroohe v. Oswin, 12 East, 131. 
 
 " Cormack v. Gladstone, 11 East, * Per Lord Ellenborough, 12 East, 
 
 347. 133. 
 
 ii2 
 
4S4f. 
 
 DEVIATION. 
 
 [part I. 
 
 port by an embargo,^' or wliile waiting 'for necessary- repairs,* 
 or for fear of capture,' sucli trading was held not to amount 
 to a deviation, because proved to have caused no delay and 
 no variation of the risk. 
 
 It is other- 
 wise if it 
 cause delay. 
 
 Inglis V. 
 Vaux. 
 
 Sectii if no 
 delay. 
 
 In all such cases, however, additional delay, if caused by 
 the trading, will amount to a deviation. 
 
 Any act of trading indeed, not contemplated ' by the 
 parties to the policy, and unconnected with the main object 
 of the adventure, is justifiable only on condition that it be 
 completed during the period of the ship's lawful stay, at an 
 allowed port, for a justifiable purpose.* 
 
 Nay, more, though the delay be partly for a purpose 
 connected with the main objects of the voyage insured, if it 
 be partly also for a purpose which is foreign, it wiU be held 
 a deviation. 
 
 Thus, where a ship was insured on a West Indian voyage, 
 outwards " at and from Liverpool to Martinique, and aU or 
 any of the Windward and Leeward Islands, with liberty to 
 touch at any ports or places whatever," it was held by Lord 
 EUenborough, that, though the captain, under the poHcy, 
 was quite justified in putting into Antigua, to dispose of the 
 residue of his outward cargo, yet he had no right to stay 
 there longer than was reasonable for that single purpose; 
 but he delayed partly to dispose of his outward and partly to 
 procure a homeward cargo, and such delay was a deviation 
 under the outward policy. " When," said his Lordship, " the 
 disposal of his outward cargo ceased to be the sole reason of 
 his stay, the underwriters on this poKcy on the outward, 
 voyage were discharged." * 
 
 At the same time the mere fact of putting into a port with 
 
 1 Kingston v. Grirard, 4 DaU. R. 
 274 ; Oondy's Marshall, 189 ; 1 Phil- 
 lips, no. 999. 
 
 ' Kane v. Columbian Ins. Co., 2 
 Johns. Efip. 264 ; 1 Phillips, no. 999. 
 ^3 Hughes V. Union Ins. Co., 3 
 Wheaton's Eep. 159 ; 1 Phillips, no. ■ 
 
 999. 
 
 ' Williams v. Shee, 3 Camp. 469. 
 See Company of African Merohts. ». 
 Brit. & For. Mar. Ins. Co., L. E., 8 
 Exch. 154. 
 
 = Inglis ». Vaux, 3 Camp. 437. 
 
CHAP. X.J AS TO THE LICENCE CLAUSES. 485 
 
 a twofold purpose, partly connected and partly unconnected 
 •with the adventure contemplated by the policy, will not 
 amount to a deviation, if there he no additional delay or 
 variation of the risk caused by the unjustifiable purpose. 
 
 Thus, where a vessel sailing outwards from London to Warren. 
 Grrenada was insured on freight homewards "at and from '^^^' 
 Grenada to London," and on arriving at the island, where 
 there is but one custom-house, proceeded to deliver her out- 
 ward cargo in different bays there, and was lost in entering 
 one of these bays for the two-fold purpose of delivering the 
 remainder of her outward, and taking in a homeward, cargo, 
 it was held that this was no deviation, and the underwriters 
 were liable for the loss of the homeward freight.^ 
 
 The line of distinction between the class of cases of which Distinction. 
 Hammond v. Eeid is the leading authority and those which 
 are governed by Eaine v. Bell, though not at first sight 
 obvious, is, nevertheless, clear and intelligible. 
 
 In Hammond v. Eeid, and eases of that class, the ship . 
 would not have touched at the port at all except for some 
 purpose totally unconnected with the main object of the 
 voyage insured ; and the execution of which purpose was 
 itself the sole cause of the delay. 
 
 In Eaine v. Bell, and the eases decided on the authority of 
 it, the ship had originally put in, and was actually staying at, 
 the port for a purpose connected with the voyage ; and during 
 her justifiable and necessary stay there, an act was done, 
 which, though in itself unconnected with the adventure, and 
 not originally contemplated by the parties to the policy, was 
 held not to be a deviation, because there was no material 
 variation of the risk, and no additional delay in consequence. 
 
 In Hammond i>. Eeid, the ship would never have touched 
 at St. Bartholomew's at all, except for the purpose, — wholly 
 alien to the object of the voyage insured, — of procuring 
 information for the guidance of another adventure. In 
 
 1 Warre v. MiUer, 4 B. & Cr. 538; 1 Car. & P. 237. 
 
48a 
 
 DEVIAIION 
 
 [rART I. 
 
 Eaine v. Bell, the ship, when the dollars were put on board, 
 was actually staying at Gibraltar for provisions, without 
 which the voyage insured could not have been prosecuted, 
 and no extra delay or risk was incurred by taking the dollars 
 on board. 
 
 Result. The principles of law, therefore, applicable to the interpre-i 
 
 tation of these clauses, appear to be, — 
 
 1. That the extent of the powers they confer on the ship 
 is to be judged of, not so much by verbal criticism of their 
 terms (" to call," " to touch," or " to touch and stay"), as by 
 reference to the true scope and nature of the adventure 
 contemplated in the policy. 
 
 2. That, however extensive the language of these clauses 
 may be, they can never confer a power of visiting ports out 
 of what, upon a fair construction of the whole policy, appears 
 to have been the course of the voyage insured as contem- 
 plated by the parties ; nor can they justify the ship ia 
 visiting any port, even though within the local limits of the 
 voyage insured, for any purpose unconnected with the main 
 object of the adventure. 
 
 3. If the ship visits an allowed port for an allowed purpose, 
 trading, breaking bulk, landing, or loading cargo, however 
 alien to the main object of the adventure, is held to be no 
 deviation, if completed during the period of the ship's justifi- 
 able stay in the port, without additional delay, or substantial 
 variation of the risk in consequence. 
 
 4. If, however, there be trading such as gives rise to delay 
 that would not otherwise have been incurred, it will, on that 
 ground, amount to a deviation. 
 
 Deviation by 
 reason of 
 delay. 
 
 As the sole ground on which a deviation discharges the 
 underwriter is that it varies the risk, and as that may be 
 brought about as much by delay in commencing or prose- 
 cuting the voyage as by local divergence from its prescribed 
 course, it follows that every such delay, if unreasonable or 
 
CHAP. X. j BY REASON OF DELAY. 487 
 
 unexoused, will disoliarge the imderwriter. In the words of 
 Tindal, 0. J., " The voyage in the commencement or prose- 
 cution of which any unreasonable delay takes place, becomes 
 a voyage at a different period of the year, at a more advanced 
 age of the ship, and, in short, a different voyage than if it ' 
 had been prosecuted with reasonable and ordinary diKgence ; 
 the risk is altered from that which was intended by all parties 
 when the policy was effected." ^ 
 
 To begin with the commencement of the voyage, — any un- Delay in 
 reasonable delay under an insurance " at and from," between thTmya^f 
 the time when the policy attaches "at" the port, and the 
 time when the ship sails on her voyage, will discharge the 
 underwriter.^ 
 
 As long, indeed, as she is bond fide preparing for her 
 voyage, by repairs, or the like, the delay will be excusable 
 and the underwriter liable ; but if all thoughts of the voyage 
 be laid aside, and the ship still detained in port, the under- 
 writer is discharged.' 
 
 So, although the voyage be not abandoned, yet any waste 
 of time, or unnecessary delay in port, not excused by justify- 
 ing cause, nor in any degree connected with the purposes of 
 the voyage insured, is held to vary the risk; as where a 
 yacht lying in Bristol harbour was insured on a voyage " at 
 and from Bristol to London," and did not sail for five months 
 after the policy was effected.* 
 
 That an unreasonable delay in performing the voyage 
 insured is equivalent to a deviation, was expressly ruled 
 by Lord Mansfield, in the case of Hartley v. Buggin, in 
 which, the ground of defence being the detention of the 
 ship as a floating slave depot on the African coast, his Lord- 
 ship said, " The single point before the Court is, whether there 
 
 ' Per Tindal, C. J., in Mount v. ^ Per Lord Hardwioke in Motteax 
 
 Larkins, 8 Bing. 108, 122. v. London Ass. Co., 1 Atkyna, 6i5 ; 
 
 ' Delay, whenitpreventsthepolicy Chitty v. Selwyn, 2 Atkyns, 359. 
 
 attaching, properly belongs to the * Palmer v. Marshall, 8 Bing. 79, 
 
 subject of the preceding chapter, and 317. 
 is considered there. 
 
488 
 
 DEVIATION 
 
 [part I. 
 
 Samuel v. 
 Eoyal Exoh. 
 Ass. Co. 
 
 Hamilton v. 
 Shedden. 
 
 has not been what is equivalent to a deviation — whether the 
 risk has not been varied, no matter whether the risk has or 
 has not been thereby increased." ^ 
 
 Where a ship insured " at and from Sierra Leone to 
 London " was delayed in the Thames, off Deptford Dockyard, 
 from the 18th to the 27th of February, before she was ad- 
 mitted into the dock to unload her cargo, it was not disputed 
 that this delay, i£ unexcused or unnecessary, would amount 
 to a deviation at that, as at any other, stage of the voyage.* 
 
 On the same ground, where a vessel engaged in the 
 African palm oil trade, with liberty to act as a tender to 
 other ships in the same employ, was kept thirteen months 
 in the Benin river, this was found by the jury to be an 
 unreasonable delay, and the Court refused to disturb their 
 verdict.^ 
 
 In short, whenever the delay exceeds a reasonable time, 
 though for a justifiable purpose, or is incurred for purposes 
 unconnected with the true object of the voyage insured, it 
 will amount to a deviation. 
 
 Deviation of 
 
 This rule is so strictly observed, that, even where the ship 
 quits from necessity the course prescribed by the policy, she 
 must compass this inevitable detour by the most direct 
 course, and in the shortest time, otherwise it wOl amount to 
 a deviation.* 
 
 The Carnatic, a French East Indiaman, was insured %at 
 and from Port L'Orient to Pondicherry, Madras, and China, 
 
 ' Hartley v. Buggin, 2 Park, Ins. 
 652. See the case of a fire policy dis- 
 tinguished on this particular from a 
 voyage policy, in Pearson v. The 
 Commercial Union Ass. Co., 15 C. B., 
 N. S. 304 ; 33 L. J. (C. P.) 85 ; on 
 appeal, L. R., 8 C. P. 548 ; and in 
 the Lords, 1 App. C. 498 : per Kelly, 
 C. B., "This is not the case of an 
 insurance on a voyage, but an insur- 
 ance against fire for a certain period 
 of time in certain specified places." 
 Therefore a loss by fire during a 
 
 delay justified by usage in a place 
 which mi ght fairly seem to fall within 
 the description in the policy, had it 
 been a voyage policy, was held not 
 to be covered, as it was a fire poUcy, 
 and as the loss had occurred beyond 
 the limits of place, probably of time, 
 expressly specified. 
 
 '' Samuel v. Royal Exch. Ass. Co., 
 8 B. & Cr. 119. 
 
 3 Hamilton v. Shedden, 3 M. & W. 
 49. 
 
 * 3 Kent, Com. 315. 
 
CHAP. X. ] BY REASON OF DELAY. 489 
 
 and at and from thence back to the ship's port or ports of 
 discharge in Prance." On her arrival at Pondicherry she 
 •was found to be so much damaged that it became necessary 
 for her to go to Bengal for repairs, that being the only place 
 where the repairs could be properly done. The usual time 
 in which tho direct voyage from Pondicherry to Bengal is 
 performed is about six or seven days ; but The Carnatic, by 
 touching and trading at different intermediate ports, con- 
 sumed six weeks in going to Bengal, and about two months 
 in returning thence to Pondicherry. Lord Mansfield said, 
 that even if necessity were admitted to have been the sole 
 motive for substituting the voyage to Bengal in the place of 
 that to China, still it was incumbent on the assured to have 
 pursued that voyage of necessity directly, in the shortest and 
 most expeditious manner, and that the delay in going from 
 Pondicherry to Bengal, and the repeated stoppages by touch- 
 ing at different places and trading there, were deviations 
 which discharged the underwriter.' 
 
 If a vessel is driven out of her course, it is not necessary 
 that she should retrace her route to the point of divergence ; 
 but she must prosecute her voyage by the safest and most 
 direct course from the point to which she may have been so 
 driven.^ 
 
 As every special clause contained in the policy must be Limit of ex- 
 strictly construed, it follows that, if express permission be 
 given in the policy to delay for a given time specified in the 
 policy, that delay cannot lawfully be prolonged. Thus, 
 where liberty was given in the policy " to wait two months 
 at Monte Video if needful," a longer delay than two months 
 was held to discharge the underwriters.' 
 
 It is only, however, an unreasonable or inexcusable delay. Justifiable 
 i. e., a wilful and unnecessary waste of time, that will amount deviatfoii. 
 
 ' Lavabre v. Wilson, 1 Dougl. 284. T. R. 22. 
 
 2 Harrington v. Halkeld, 2 Park, ^ Doyle v. Powell, 4 B. & Ad. 267. 
 
 Ins. 639 ; Delaney v. Stoddart, 1 
 
490 DKVIATION [part I. 
 
 to a deviation. If justified by necessity, or incurred bond, 
 fide with a view to the purposes of the voyage insured, the 
 underwriter will not be discharged by the delay, although its 
 absolute duration may be very considerable. 
 
 EllenboroTigh. " To discharge the policy," says Lord EUenborough, " there 
 must be a clear imputation of waste of time ; mere length 
 of time elapsing between the sailing of the vessel and the 
 underwriting of the policy, is not of itself sufficient, if it is 
 
 Story. capable of explanation." ^ "What delay wiU constitute a 
 
 deviation," says Story, J., "depends on the nature of the 
 voyage and the usage of trade. That delay which is neces- 
 sary to accomplish the object of the voyage, according to 
 the course of the trade, if incurred lond fide, cannot be 
 
 Tiudal. admitted to avoid the insurance."^ So Tindal, 0. J., lays it. 
 
 down, that the " detention for a reasonable time, for the pur- 
 poses of the adventure, must be allowed ; and, whether the 
 delay be reasonable or not, must be determined not by 
 any positive or arbitrary rule, but by the state of things 
 existing at the time at the port where the ship happens 
 to be." 3 
 
 Smith V. A ship insured the 15th of May, " at and from PiUau to 
 
 ^ ^^' London," and at that time lying at Pillau, was obliged to 
 undergo thorough repairs there before she could sail on the 
 voyage insured. These repairs were not completed till the 
 end of June, when the water in the harbour had become so 
 low that she could not get over the bar, and for the same 
 reason did not actually sail till November. Lord Kenyon 
 held that this was not such a delay as to discharge the 
 underwriter.* 
 
 Grant «>. A policy was effected in August, 1789, on an American 
 
 ship " at and from Brest to London," against British capture, 
 while she was lying in Brest harbour, and while that port 
 was under blockade by the British. As the ship did not sail 
 
 1 Grant v. King, 4 Esp. 175. " In PBiUipa v. Irving, 7 M. & Gr. 
 
 2 In Columbian Ins. Co. v. Catlett, 328. 
 12 Wheaton's R. 283 ; 1 Phillips, * Smith v. Surridge, 4 Esp. 25. 
 Ins. no. 1002. 
 
 King. 
 
CHAP, X.J BY REASON OF DELAY. 491 
 
 till Maroh, 1790, it was contended that this delay of nearly 
 seven months discharged the underwriter ; but proof having 
 heen given that the voyage had never been abandoned, and 
 that the time had been consumed in bona fide attempting to 
 procure an American crew from England (there being no 
 possibility of doing so in France), a special jury, imder the 
 direction of Lord EUenborough, found for the plaintiff. 
 
 Lord EUenborough told the jury, that while the vessel was 
 in a fair state of preparation for the voyage, it was covered 
 by the policy ; but if the voyage was abandoned for a length 
 of time, the underwriters would be discharged. " The ques- 
 tion whether there was an abandonment of the original 
 adventure is to be decided," said his Lordship, " from a fair 
 review of all existing circumstances at the time when the 
 voyage might reasonably be presumed to commence. Here 
 the extreme difficulty of obtaining men is to be taken into 
 consideration." ^ 
 
 The main point in all these cases is, whether the delay Wheu is delay 
 were bona fide incurred with a view to promote and carry out ^^ ■" ^ 
 the main objects of the voyage insured. 
 
 Thus, where a vessel, chartered for the timber trade Schroder «.■. 
 between this country and the United States, was insured on o'^P^'"'- 
 a voyage " from London to her loading port in Yirginia and 
 back to London," it was held that waiting fifteen months at 
 Norfolk, her loading port, until an embargo was taken off, 
 and long enough afterwards to take on board a cargo of 
 lumber there, was not a deviation, although the ship might 
 have sailed home in ballast immediately the embargo was 
 laid on.^ 
 
 So, where the captain of a ship, insured on a trading Bain i>. Case, 
 voyage to all or any ports in the North or South Pacific 
 Ocean, delayed one hundred and nine days at one of the 
 ports in those seas, in the hope of getting permission to land 
 her outward cargo, for which purpose he was, during that 
 
 1 Grant v. King, 4 Esp. 174. 
 
 '^ Schroder v. Thompson, 7 Taunt. 463. 
 
492 DEviAa'n>N - [part i. 
 
 time, negotiating with the government ; a special jury, under 
 the direction of Lord Tenterden, found that the delay, under 
 the circumstances, was not unreasonahle.^ 
 Phillips V. Likewise, where a seeking ship insured on a trading voyage 
 
 " at and from London to Bombay, and thence to China and 
 hack to the United Kingdom," stayed at Bombay for more 
 than six months after she was ready to take in cargo there, 
 for the purpose of procuring a remunerative freight, such 
 delay was held to be no deviation, since it was justified by a 
 purpose strictly connected with the main object of the 
 adventure.^ 
 
 The law is In the jurisprudence of the United States the same prin- 
 
 the United ciple has been illustrated by several decisions, which appear 
 ^ ^^' to have proceeded on a very sound application of general 
 
 rules.' Thus, if a vessel enters a port to dispose of her cargo, 
 it has been decided by Story, J., that the master may stay 
 there a reasonable time for that purpose, though he meets 
 with no success. In the case alluded to, insurance was made 
 on a cargo of flour " from Alexandria to St. Thomas, and 
 two other West Indian ports, and back to the United 
 States ; " and the ship on arriving at St. Thomas remained 
 there seventy-two days, during which time the master en- 
 deavoured, but with only partial success, to dispose of his 
 outward cargo at the price limited by his instructions : the 
 Court held this delay no deviation, although it was proved 
 that the captain might at once have sold his flour at half a 
 dollar per barrel less than the limited price.* 
 Per Story, J. In answer to the argument that the delay to procure the 
 limited price was unreasonable, Story, J., in delivering the 
 ■ judgment of the Court, says, " In almost every voyage of 
 this nature, where different ports are to be visited for the 
 
 ' Bain v. Case, 3 C. & P. 496. ^See ' See 1 Phillips on Ins. no. 1002 ; 
 
 also Suydam v. Marine Ins. Co., 2 and especially Suydam ». Marine Ins. 
 
 Johnson's E. 143; 1 Phillips, Ins. Co., 2 Johnson's E,. 143 ; Laphamt'. 
 
 no. 1002. Atlas Ins. Co., 24 Pickering, B. 1. 
 
 2 Phillips V. Irving, 7 M. & Gr. * Columbian Ins. Co. ». Catlett, 12 
 
 325. Whcaton, 283 ; 1 Phillips, no. 1002. 
 
CHAP. X.] BY REASON OF CKITISING. 493 
 
 purposes of trade, and to seek markets, it is almost universal 
 to prescribe limits to the price of sales. It cannot be tbat 
 the master, if entitled to go to a single port only, is bound to 
 sell, at whatever sacrifice, as soon as he arrives at that port, 
 and within that period within which he might unload and 
 reload a return cargo. He must, from the very nature of the 
 case, have a discretion on the subject. He is not bound to 
 sell the whole cargo at once, whatever may be the sacrifice, 
 and thus frustrate the projected adventure. He must exer- 
 cise in this, as in all other cases, a sound discretion 
 for the interests of all concerned. To be sure, if the owner 
 should limit the price to an extravagant sum, or the master 
 should delay, after all reasonable expectations of a change 
 of market were extinguished, such circumstances might 
 probably be left to a jury to infer a delay amounting to a 
 deviation." ^ 
 
 Lord Kenyon once held that the mere fact of carrying Deviation by 
 
 letters of marque, without the consent of the underwriters, °''™°™^- 
 
 was a fatal deviation, for, although she had made no use of 
 them, nor had deviated, such letters were a temptation to 
 deviate.^ This law, however, must now be considered as 
 overruled. 
 
 The same learned Judge, on a subsequent occasion, ad- Letters of 
 mitted that the case was decided on principles which were toard. 
 new, and which went to the very verge of the law;* and he 
 refused to extend them to a case where it clearly appeared 
 that the letters of marque were taken on board without any 
 
 ^ See also EUery v. New England have acceded to the views of the 
 
 Ins. Co., 8 Pickering, R. 14. Allied Powers, it is impossible to say 
 
 ^ It might have been hoped, since that in these decisions are not to be 
 
 the Declaration of Paris, 1856, abo- found those practical rules which the 
 
 lishing privateering, that the prao- course of events may hereafter bring 
 
 tical value of the decisions here into actual use. 
 
 collected would be reduced to a mere ' Dennison v. ModigUani, 5 T. R. 
 
 illustration of general principles. 580. 
 
 Until, however, the United States • See 6 T. Rep. 382. 
 
491 
 
 DEVIATION 
 
 [PAKT I. 
 
 Bale. 
 
 Cruising is a 
 deviation for 
 a trading 
 ship. 
 
 Justifiable 
 exceptions. 
 
 intention of cruising, but solely for the purpose of more 
 easily procuring a crew.^ 
 
 Later Judges have demurred entirely, not only to the law 
 thus laid down, but to the principles on which it was put. 
 Lawrence, J., says: "If an intention to deviate not carried 
 into effect will not avoid a policy, still less can a temptation 
 to deviate."^ And Lord EUenborough declares, that, al- 
 though it was formerly considered that the mere taking 
 letters of marque aboard, without the consent of the under- 
 writer, vitiated the policy, from the temptation it held out 
 to privateering, yet that the more general opinion now is, 
 that a "mere irritation of this sort shall not operate as a 
 deviation." ' 
 
 How far a ship, on a mere mercantile adventure, carrying 
 letters of marque, with the consent of the underwriters, but 
 without express liberty in the policy so to do, would be 
 justified in departing from the direct course of the voyage 
 insured, seems to have been subject for doubt. 
 
 The true principle appears to be, that no departure from 
 the usual course of the voyage, occasioned by repelling 
 hostile force, or even attackiag an enemy's ship, will be 
 held to be a deviation, provided it be fairly attributable to 
 motives of seK- defence ; if, however, such a vessel cruises 
 from a desire of profit, i. e., lies by, or departs from the 
 direct course of the voyage, in hope of meeting with prizes, 
 that is a deviation.* 
 
 It is at the same time admitted, that if an enemy comes 
 in the way, she may engage in her own defence, and prose- 
 cute the engagement to capture, even though in so doing 
 she may be obliged to depart from the direct course of the 
 voyage.' It appears equally clear, that if an enemy comes 
 across her course, she may attack and take him from other 
 
 1 Moss V. Byrom, 6 T. Rep. 379. 
 
 2 In Raine v. BeU, 9 East, 195, 
 201. 
 
 ^ Jarratt v. Walker, 1 Camp. 263, 
 266. 
 
 * Cook V. Townson, 2 Park, Ins. 
 630. As to what constitutes cruising, 
 see Syers ». Bridge, 2 Dougl. 527. 
 
 6 Jolly V. Walker, 2 Park, Ins. 
 630 ; Parr v. Anderson, 6 East, 202. 
 
AP. X.] BY REASON OF CRTJTSING. 495 
 
 stives than those of self-defence, if the so doing does 
 t involve any departure from the direct course of the 
 yage.i 
 
 The really doubtful point is, whether a ship so circum- What is uu- 
 mced has a right to alter her course for the purpose of ^^^ ^ ^ 
 asing a strange sail. 
 
 In one case that came before Lord Mansfield, a special Jolly ». 
 ry returned their verdict, imder his Lordship's direction, 
 at an armed merchant vessel, insured on a trading voyage 
 )m London to the West Indies, and having letters of 
 arque on board, but no express liberty to carry them, 
 ight, on discovering a strange sail in her course, give 
 ase, and continue such chase till she came up with her, 
 ough in the pursuit she was obliged to depart from the 
 rect course of the voyage, and had once lost sight of the 
 l1 she was chasing.^ 
 
 In a subsequent case that came before Lord EUenborough, Parr v. 
 lere a merchant ship, insured on a trading adventure, but 
 rrying letters of marque under an express licence, on seeing 
 strange sail a quarter of a point on her lee bow, altered her 
 urse to that extent, and gave chase ; his Lordship was 
 :ongly incliaed to think that, if this departure from the 
 urse was for the purpose of hostile capture, it was a devia- 
 in ; but if it were bond fide for the purpose of defence, as, 
 • making a show of confidence to deter the enemy from 
 ;ack, or with a view to obtain some advantage in the con- 
 3t, or the like ; in that case it was no deviation.* 
 
 The subject has occupied the attention of the Courts of In the United 
 B United States,* and the law has been laid down by 
 ory, J., in the following terms : — " Whether a vessel be 
 nmissioned or not, she has a right to repel any attempt 
 an enemy, and to protect and defend herself by aU 
 
 JoUy V. Walker, 2 Park, Ins. 13 Massachusetts R. 127; Wiggins. 
 
 I. Boardman, 14 Mass. E. 12; Haven 
 
 Ibid. »■ Holland, 2 Mason's R. 230 ; 1 
 
 Parr ». Anderson, 6 East, 202. Phillips, Ins. nos. 1029, 1030. 
 See the case of Wiggin v. Amory, 
 
.496 
 
 DEVIATION 
 
 [part I. 
 
 To man a 
 prize. 
 
 reasonable precautions, against a meditated hostile attack. 
 If a vessel, supposed to be an enemy cruiser, be in sight, 
 and apparently intend to attack a merchant vessel, the master 
 of the latter is bound to exert his best skill and judgment 
 as to the time and mode of his defence ; and if he act 
 honestly and fairly, he will be justified, whatever may be the 
 event. He is not bound to endeavour to make his escape in 
 the first instance ; and on failure of this, to meet the enemy. 
 He may lie to, or chase the enemy, if he deem that the most 
 effectual way to secure his object. The only question in 
 cases of this nature is, whether what is done be fairly 
 attributable to motives of self-defence, or to motives of 
 another nature — such as a desire to profit ; if the latter, then 
 it is a deviation." The learned Judge accordingly held that 
 delay for the purpose of manning a prize justifiably captured 
 by a merchant ship carrying letters of marque, but without 
 express liberty so to do, was no deviation. The right to 
 make the capture at all drew after it the right to make the 
 capture effectual ; and it would be most mischievous to the 
 interests of trade to discourage men from making a gallant 
 defence, by the knowledge that in no event could they reap 
 the reward of their victory.' 
 
 Chancellor Kent, in his Commentaries, speaks of this ease 
 as having confided to the captain a pretty enlarged discretion 
 as to the best mode of defence, and one carried to the very 
 verge of the law ; ' but the decision seems conformable to the 
 spirit of the maritime law, if not to the very letter of the 
 earlier authorities. 
 
 Under leave 
 "to cruise," 
 "to carry 
 letters of 
 marque," &e. 
 
 The oases hitherto considered have been principally those 
 in which the policy has contained no clauses empowering the 
 ship "to cruise," "to carry letters of marque," &c. The 
 general rule with regard to all such permissions, is that they 
 should be construed strictly, so as not to extend their force 
 beyond the plain meaning of the words in relation to the 
 
 ' Haven v. Holland, 2 Mason's 
 Eep. 230. 
 
 « 3 Kent, Com. 316. 
 
CHAP. X.J BY REASONS OF CRUISING. 497 
 
 subject matter and the intention of the parties as collected 
 from the whole of the document.' 
 
 Thus, where a ship was insured, " with liberty to cruise six Syers v. 
 weeks," this was held to mean six weeks successively from 
 the commencement of the cruise. "The meaning of the 
 clause," said Lord Mansfield, " is, I will excuse a deviation 
 for six weeks." 2 
 
 A ship, iasured on a slaving voyage, "with or without Parr v. 
 letters of marque," saw a sail which afterwards proved to 
 be an enemy, about a quarter of a point on her lee bow; 
 she altered her course accordingly, and gave chase, but after 
 about a quarter of an hour abandoned it, and returned into 
 the direct course of the voyage insured. Lord EUenborough, 
 at the trial, and afterwards in banc, strongly inclining to 
 think this a deviation, said, " That under such a liberty of 
 carrying a letter of marque, no deviation from what would 
 otherwise be the natural and ordinary course of the voyage, 
 for the purpose of pursuing (in quest and for the chance of 
 a prize) vessels which, at the time of instituting such 
 pursnit, were not even known to belong to the enemy, was 
 warranted."' On a new trial, it appeared that the ship had 
 clearly been engaged in cruising, which discharged the 
 underwriter, and put an end to all questions as to the con- 
 struction of the clause.* 
 
 When such clauses contain an express permission to do Exclusive 
 certain specified things, they come under the principle positive per- 
 eccpressio unius est exclusio atterius, and the permission "^^^o''' 
 cannot be extended to objects not mentioned. 
 
 Thus, where a ship was insured on a slaving and trading To man, not 
 
 adventure, " with or without letters of marque, with leave t° '^°^^°^' 
 ' _ ■■■ ' Lawrence v. 
 
 to chase, capture, and man prizes," Lord EUenborough held, Sydebothana. 
 that this permission did not authorize the captain, after 
 
 1 Per Lord EUenborough, in Law- 205. 
 
 rence ». Sydebotham, 6 East, 45, 51. "2 Park, Ins. 632; and eee, as 
 
 '' Syers v. Bridge, Dongl. 527. above, 1 Phillips, Ins. uos. 1029, 
 
 3 Parr v. Anderson, 6 East, 202, 1030 ; 3 Kent, Com. 315. 
 
 M. K K 
 
498 
 
 DEVIATION 
 
 [part I. 
 
 To "captui'e, 
 man, and see 
 into port" is 
 not to delay 
 in port. 
 
 Jarratt v. 
 Ward." 
 
 Eestrioted in 
 locality. 
 
 Hibbert «v 
 HaUiday. 
 
 4;aking a prize, to shorten sail and lie to, in order to convoy 
 it to port, although that port was within the limits of the 
 voyage insured. " On the short point of the case," says 
 Lord EUenhorough, " my opinion is, that a liberty to chase, 
 capture, and man, cannot be extended beyond what is 
 necessary for the performance of those acts, and that the 
 convoying the prize afterwards does not necessarily arise 
 out of such liberty."' Yet it is to be assumed in such a case 
 that the mere act of convoying a prize to port under such 
 liberty, is not per se a deviation, unless it involves delay, or 
 departure from the direct course of the voyage, and it has 
 been so held in the United States.^ 
 
 Where a ship was insured for the Southern whale fishery, 
 with leave to carry letters of marque, and " to cruise for, 
 chase, capture, man, and see into port any enemy's ships," 
 this was held not to authorize the assured to remain in port 
 while the prize was receiving necessary repairs there, but, at 
 most, to see the prize moored safely, and give the necessary 
 orders for its final destination.^ 
 
 So, where a ship, also insured for the Southern whale 
 fishery, with liberty " to chase, capture, and man prizes, &c., 
 and also to cruise thirty-one days, either together or separate, 
 anywhere and in any latitude on the outward-bound passage, 
 on this side of Cape Horn," lay to for nine days, for the 
 purpose of capturing a prize, ofE a port within the limits of 
 her fishing ground, but on the other side of Cape Horn, the 
 Court held: 1st. That such lying to was not within the 
 liberty to chase, capture, or man, but was a cruising ; 2nd. 
 That, as such, it came within the clause giving liberty to 
 cruise for thirty-one days on this side Cape Horn, and, 
 therefore, that having taken place on the other side of Cape 
 Horn, it was a deviation.* 
 
 From the above cases it sufficiently appears that the real 
 
 ' Lawrence «. Sydebotham, 6 East, 
 46, 52. 
 
 ^ Ward ». Wood, 13 Mass. R. 539 ; 
 1 Phillips, Ins. no. 1030. 
 
 = Jarratt v. Ward, 1 Camp. 264. 
 * Hibbert v. Halliday, 2 Taunt. 
 428. 
 
CHAP. X.J UXUER JUSTIFYING CAUSES. 4' 
 
 ground of tlie underwriter's discharge is substantial variation Whatever 
 of the risk. Such a change of risk, although not arising from ^^ 
 any of the causes hitherto considered, is a good defence to 
 the action, if the underwriter can show it to have arisen from 
 culpable intention or gross negligence, but not otherwise. 
 
 Thus, -where it appeared that three Spanish prisoners of Toulmin v. 
 war, who had been taken on board on parole, without the ° 
 knowledge of the underwriter, had, together with the crew, 
 mutinously run the ship ashore, and the assured on goods 
 brought an action on the policy as for a loss by barratry. 
 Lord EUenborough held, that, though the taking these men 
 on board might slightly have increased the risk, yet, as there 
 was no culpable intention in taking them on board, in the 
 first instance, nor any gross negligence in watching them 
 afterwards, the underwriter could not defend the action on 
 the groimd that the risk had been thereby varied.^ 
 
 We come noV to consider what causes and circumstances Causes that 
 justify or excuse deviation. "We have seen, by the definition, Jj^n. ^ ®^' 
 that only a voluntary and inexcusable departure from the 
 course of the voyage wUl amount to a deviation, so as to 
 discharge the underwriter from subsequent loss. 
 
 If produced by ignorance of the captain, it will not be 
 the less considered a voluntary act on the part of the 
 assured, for it was his fault not to have appointed a com- 
 petent master.^ 
 
 Hence, where a ship, insured on a voyage " at and from 
 London to Jamaica," while proceeding direct to the latter 
 place, was driven out of her course by strong currents and 
 other circumstances, to a point between the Grand Canary 
 and TenerifEe, from which point her direct course to Jamaica 
 was south-west, but as, instead of taking this course, the 
 
 1 Touhnin v. Inglis, 1 Camp. 421. not appoint the master ; but he uu- 
 
 2 This applies to the assured, on dertakes that the ship is seaworthy, 
 goods quite as much. True, he does 
 
 kk2 
 
500 
 
 DEVIATION 
 
 [part I- 
 
 Moral or 
 physical 
 force, or other 
 justifying 
 cause. 
 
 The deviation 
 must be no 
 more than 
 commensurate 
 with the 
 necessity. 
 
 What is un- 
 avoidable 
 necessity. 
 
 Violence of 
 
 mutinous 
 
 crew. 
 
 captain ignorantly bore up for Santa Cruz, tMrty miles to 
 the north-west, this was held to be a deviation.^ 
 
 But if it be necessitated either by moral or physical force, 
 or excused by a justifying cause, it is not such a deviation as 
 discharges the underwriter. Si iter mutaverit magister ex 
 aliqua justa et necessaria causa, puta ex caus& refectionis 
 navis, vel ad evitandam maris tempestatem, vel ne inoiderit 
 in hostibus, in istis casibus, mutato itinere, tenetur asse- 
 curator.* " There is not, probably, any exception to be met 
 with," says Chancellor Kent, "to the application of the 
 general rule, that if the vessel departs from the usual course 
 of the voyage from necessity, and departs no further than 
 that necessity requires, the voyage wiU stiU be protected by 
 the policy."^ 
 
 The delay, or departure indeed, must be strictly comment 
 surate with the necessity that justifies it ; there must be no 
 waste of time, nor any needless divergence from the course of 
 the voyage.* On this there is no doubt ; the only difficulty 
 is in ascertaining — {a). What degree of force or constraint 
 will amount to such an unavoidable necessity as, on that 
 ground, to justify a departure from the course of the voyage ; 
 — {b). What circumstances, short of such unavoidable neces- 
 sity, will excuse the ship in departing from, or delaying, the 
 usual course of the voyage. 
 
 (a). With regard to what amounts to an unavoidable 
 necessity, we have the following decisions in this country : — 
 
 Where the crew of a letter of marque mutinously insisted 
 on their captain's returning home with a prize he had taken, 
 instead of proceeding on the voyage, and, on his remon- 
 strating, forced him to submit ; this compulsory return was 
 held not to be such a deviation as to discharge the under- 
 writers.' So, where a crew, dreading the attacks of pirates 
 
 ' Phyn V. Eoyal Exch. Ass. Co., 
 7 T. R. 605. 
 
 2 Eocous, not. 52, 53, cited 2 Eme- 
 rigon, 0. xiii. o. 15, p. 94. See also 
 2 Benecke, des Asseouranz, o. viii. 
 s. 2. 
 
 ^ In Robinson v. Marine Ins. Co., 
 2 Johnson's R. 89. 
 
 * Lavabre v. Wilson, 1 Dougl. 
 284. 
 
 = Elton V. Brogden, 2 Strange, 
 1264. 
 
CHAP. X.J UNDER JUSTIFYING CAUSES. 501 
 
 if they pursued the voyage, all left the ship and refused to 
 return to her, unless the captain would promise immediately 
 to sail hack to the home port ; his returning thither in pur- 
 suance of such promise was held no deviation.^ 
 
 Where a neutral ship was carried out of her course by a A ship of 
 
 ■n . . . . . . . war. 
 
 British cruiser, and detained in a port far out of the limits 
 of the policy for about six weeks, this was held to be no 
 deviation, having been caused by overruling necessity.^ 
 
 On the other hand, where the master of a merchant ship. Not mere 
 while he lay at a port in Iceland taking in his loading, was king's ship, 
 ordered by the captain of a king's ship to go out to sea and 
 examine a strange sail in the offing bearing enemy's colours, 
 which he did, without any remonstrance on his part, or any 
 threat of force on the other, his so doing was held to amount 
 to a deviation.^ 
 
 On the whole, therefore, it appears that when a deviation Result, 
 is sought to be justified on the ground of unavoidable 
 necessity, it must be shown that a degree of force was 
 exercised towards the captain, which either physically he 
 could not resist, or morally, as a good subject, he ought not 
 to resist.* 
 
 The principle illustrated in these decisions has been 
 followed and maintained in the decisions of the Courts of the 
 United States.^ 
 
 (b). Where departure from the course has not been caused Causes short 
 
 , „ ± • 1. 1 -u • 1 -i. 1, 1 -J of constraint 
 
 by force or constraint, moral or physical, it may be laid -v^Mohyet 
 down as a general rule that it cannot be excused, unless the ^^^^ devia- 
 state of circumstances be such as to leave the master no 
 alternative, as a reasonable and prudent man, exercising a 
 sound judgment, and acting for the best interests of all 
 
 1 Drisool V. Bovil, 1 B. & P. 313. Washington's Giro. C. R. 7 ; Lee v. 
 
 '' Soott V. Thompson, 1 B. & P. Gray, 7 Mass. Rep. 349 ; Wiggin v. 
 
 N. R. 181. Amory, 13 Mass. Rep. 123; Kettell». 
 
 3 Phelps V. Auldjo, 2 Camp. 350. Wiggin, 13 Mass. Rep. 68 ; Robert- 
 
 * Per Lord EUenborough, 2 Camp. sonj). Columbian Ins. Co., 8 Johnson, 
 351. 383. 
 
 * Winthrop v. Union Ins. Co., 2 
 
port to refit. 
 
 502 DEVIATION [part I. 
 
 concerned, but to depart from, or delay tlie usual course of 
 the voyage. 
 
 Those circumstances that are short of actual constraint and 
 force, and are yet generally held to excuse a deviation, may 
 be thus enumerated: — 1. Making a port to refit; 2. or to 
 recruit the crew when generally disabled by sickness, «S;c. ; 
 3. Stress of weather; 4. Endeavouring to avoid capture;- 
 5. or to join convoy ; 6. or to succour ships in distress. 
 Making a 1. Making a port to refit. — The going into a port out of 
 
 the usual course for necessary repairs and staying till they 
 are completed, is never held to be a deviation, provided it 
 plainly appear that such repairs under the circumstances and 
 at such port were reasonably necessary, and the delay not 
 longer than was requisite for repairs to enable the ship to 
 proceed on her voyage.^ Thus, in one case, where a captain,; 
 finding he had too little ballast to steady his ship, at the 
 importunity of the crew, and to save his and their lives, put' 
 into a port out of the course of the voyage, where he took in 
 600 rolls of tobacco as ballast ; ^ and in another case, where 
 an overladen ship, shortly after sailing, put back into a port 
 out of the course of her voyage, to unload part of her cargo ; — 
 this was held no deviation'.^ It must be added that both the 
 cases here cited in illustration of a well-established rule of 
 insurance law are cases of unseaworthiness at sailing; that 
 this objection seems not to have been taken in the first of 
 them, and that the same objection in the second was pre-' 
 vented by express licence indorsed on the policy by the. 
 insurers to go into Eamsgate and discharge part of her 
 lading.* 
 
 ' Motteui 1/. London Ass. Co., 1 v. Aberdein, cleared up in the judg- 
 
 Atkyns, 545. ment of the Privy Council pronounced 
 
 * Guibert v. Readshaw, 2 Park, by Lord Penzance in Quebec Mar. 
 Ins. 637. Ins. Co. v. Commercial Bank of 
 
 •'" 'W'sir V. Aberdein, 2 B. & Aid. Canada, L. R., 3 P. C. 234, 244. 
 
 320. And also post. Part II. Chap. IV., 
 
 * See this misreported and uni- Waeeanty of Seawoethiness. 
 versally misunderstood case of 'Weir 
 
CHAP. X.] tINDER JUSTIFYING CAUSES. 503 
 
 And, of course, if the ship does not find in the first port 
 she enters what is indispensable to refit her, she may seek it in 
 a second, without heing deemed to have deviated.^ 
 
 2. To recruit a disabled crew, or procure fresh hands. — There To proouro 
 appears to be little doubt that if a ship, which was originally 
 sufficiently manned and equipped for the Toyage, were in the 
 course of it to lose so great a proportion of her officers or 
 crew by sickness or other cause, that it became impossible to 
 continue the voyage without procuring more, and no more 
 could be procured except by making a port out of the direct 
 course of the voyage, the putting into such port for that 
 purpose would not be held a deviation. 
 
 Thus, at Nisi Prius Lord Eldon admitted, " That if by the 
 visitation of Grod so many of the crew, who were otherwise 
 sufficient, became so afflicted with sickness as to be incapable 
 of managing the ship, such an Ulness of the crew was a 
 necessity which might justify a deviation."^ 
 
 So, it has been held in the United States, and apparently 
 on good grounds, that the death of all the superior officers of 
 an East India ship justified the crew in putting into tl^e Isle 
 of France, though out of the course of the voyage.^ 
 
 It must be carefully borne in mind, however, that going Secus, if 
 out of the course for such purposes can only be justified when orf^L Jty^ 
 the ship was adequately manned, equipped, and stored in the inadequately 
 first instance; if the ship when she sailed was deficient in 
 any of the elements of seaworthiness, the going into port to 
 supply such deficiency, however necessary it may be, will be 
 deemed a deviation. 
 
 Thus, where a ship put into a port, out of her course, in 
 order to procure medicines and medical assistance, with 
 which she ought to have been adequately provided when she 
 sailed ; this was held to amount to a deviation.* So, where 
 a ship, which ought to have sailed with a full complement of 
 
 1 Hall V. Franklin Ins. Co., 9 Pick- 257. 
 
 ering'B Mass. Hep. 466; 1 Phillips, ^ Winthrop <o. Union Ins. Co., 2 
 
 Ins. no. 1020. Washington's Giro. C. Eep. 7. 
 
 2 In Woolf V. Claggett, 3 Esp. * Woolf v. Claggett, 3 Esp. 256. 
 
504 DEVIATION [part I. 
 
 men engaged for the whole voyage, sailed with two of her 
 number engaged for part only of the voyage, and put into a 
 port out of the limits of the policy in order to siipply that 
 deficiency, this was held a deviation.^ Upon the same prin- 
 ciple, the fact of a ship, insufficiently provisioned at the 
 outsfet for the voyage going off the course to procure pro- 
 visions will, as a general rule, discharge the underwriter on 
 the ground of deviation.^ It would be otherwise were such 
 lack of provisions wholly due to exhaustion during unavoid- 
 able delay, through contrary winds or the like.' 
 Stress of 3. Stress of weather. — It is no deviation, if a ship be driven 
 
 "WAS t\\ PT 
 
 out of her course by stress of weather ; or if the captain puts 
 into a port out of his course, or delays his sailing, to take 
 refuge from a tempest, or to wait for a wind, provided that 
 in so acting the captain did what a prudent man, in the 
 exercise of sound judgment, would have done under the 
 circumstances with a view to the benefit of all concerned. 
 Consequently, a ship driven out of her course is under 
 protection of the policy though lost before she can get back 
 into her course; and a ship so driven by stress of weather 
 from her course is not obliged to sail back to that point 
 whence the storm drove her ; she is to make the best of her 
 way to her port of destination from the point where she finds 
 herself. 
 
 Harrington v. Thus, a ship, insured " from London to St. Kitts," was 
 separated from her convoy by a storm, and was afterwards 
 baptured while stiU out of her course, but taking the best 
 course for St. Kitts or the convoy ; Lord Mansfield held this 
 was no deviation.* 
 
 Delaney v. So, where a ship, insured from St. Kitts to London, was 
 
 driven by a storm ofE St. Kitts with only part of her cargo 
 got on board, and was obliged to run to St. Eustatius, and 
 
 > Forshaw v. Chabert, 3 B. & B. and Thomas ». EoyalExch. Ass. Co., 
 
 158 ; S. C, 6 J. B. Moore, 369. 1 Price, 195. 
 
 ^ See the American case of Kettell * Harringrton v. Halkeld, 2 Park, 
 
 V. Wiggin, 13 Mass. Eep. 68. Ins. 639. 
 
 ' See Eaine v. Bell, 9 East, 195 ; 
 
CHAP. X.] UNDER JUSTIFYING CAUSES. 505 
 
 after many unsueoessful efforts to get back to St. Kittsj 
 she gave up the attempt, and completed her lading at 
 St. Eastatiua, whence she sailed for London ; Lord Mans- 
 field held this no deviation, and said, "If a storm drive a 
 ship into any port out of the course of her voyage, and, 
 being there, she do the best she can to return to her port of 
 destination, she is not obliged to return back to the port 
 whence she is driven."' 
 
 Upon the same principle, it has been suggested by Lord 
 EUenborough, in this countryj^ and held in the United 
 States, that if a ship find her port of destination blocked up 
 by ice, or otherwise rendered physically inaccessible, she 
 may make the nearest practicable port, with a view of 
 staying there till her own is open, without its being deemed 
 a deviation.^ 
 
 Where a captain being delayed by adverse winds and 
 dangerous weather puts into a roadstead for safety, it has 
 been decided to be no deviation to send ashore for provisions, 
 if requisite.* 
 
 4. Endeavour to avoid Capture. — The endeavour to avoid To avoid 
 the imminent peril of capture, either by lying in the port of 
 loading, or putting into a port out of the course of the voyage, 
 or by departing from the track of the voyage insured, has 
 always been held to justify a deviation, provided the danger 
 was real and immediate, or the apprehension were founded 
 on reasonable grounds.' 
 
 So a ship, insured " against capture in her port of loading," 
 may hurry out of such port to avoid the imminent peril of 
 capture, though only half loaded and totally unprepared for 
 her voyage ; and putting into a port afterwards out of the 
 course of her voyage, in order to repair damage occasioned 
 
 1 Delaney v. Stoddart, 1 T. E. 22. 1 Price, 195. 
 
 * Blaokenhagen v. London Ass. * Drisool ». Bovil, I B. & P. 313; 
 Co. 1 Camp. 453. Drisool v. Pasmore, ibid. 209 ; Black- 
 
 ' Graham v. Commercial Ins. Co., euhagenp. London Asa. Co., 1 Camp. 
 
 11 Johnson's Eep. 352, cited 1 Phil- 454; O'Reilly v. Gonne, 4 Camp, 
 
 lips, Ins., no. 1023. 249. 
 
 * Thomas v. Royal Exch. Ass. Co., 
 
306 
 
 DEVIATION 
 
 [part I. 
 
 To join 
 convoy. 
 
 Succounng 
 distress. 
 
 by such hasty escape froia her port of loading, will nofe 
 amount to a deviation.^ 
 
 In the United States several cases have been decided upon; 
 this principle ; and, in all, the main point of inquiry seems to 
 have been, whether the danger was so real and immediate as 
 to justify the deviation.^ 
 
 5. Endeavour to join Convoy. — It is no deviation for a ship, 
 whether warranted to sail with convoy or not," to depart 
 from the direct course of the voyage in order to seek convoy 
 either at the usual place of rendezvous or elsewhere, provided 
 such subsequent necessity do not arise out of her own prior 
 default or delay ; the only question in such case is whether 
 the circumstances show to the satisfaction of the jury, that the 
 captain, in so departing from the direct course of the voyage^ 
 acted fairly and bona fide according to the best of his judg- 
 ment, and with no other view or motive but to meet with 
 convoy, and thereby be enabled to reach the terminus of the 
 voyage by the safest way.* 
 
 It is not a deviation for a ship, warranted or not to sail 
 with convoy, if she has once sailed therewith and is after- 
 wards driven back to port, to sail the second time without 
 convoy.* 
 
 If it clearly appears that, in the common course of the 
 voyage insured, the ship might have obtained convoy at a 
 nearer port, and she is obliged by her instructions to call for 
 it at a more distant port, this may amount to a deviation, as 
 varying the risk.® 
 
 6. Succouring the Distressed. — A doubt, dishonourable to 
 
 ' O'Eeilly v. Gonne, 4 Camp. 249. 
 
 * Olivier v. Maryland Ins. Co., 7 
 Craneh's S. C. Eep. 493 ; Whitney v. 
 Haven, 13 Mass. Eep. 172 ; Eeade v. 
 Conim. Ins. Co., 3 Johnson's Eep. 
 352. 
 
 3 D' Agnilar v. Tobin, Holt's N. P. 
 185. So held also in the United 
 States; Paitrioki-. Ludlow, a John- 
 son's Cases, 10 ; 1 Phillips, Ins. no. 
 1023. 
 
 * Bond V. Gonzales, 2 SaJk. 445 ; 
 Gordon v. Morley, 2 Str. 1265 ; Camp- 
 bell V. Bordieu, ibid. 1265 ; Bond «>; 
 Nutt, 2 Cowp. 601 ; Enderby v. Flet- 
 cher, 2 Park, Ins. 646 ; D'Aguilaro. 
 Tobin, Holt's N. P. 185 ; S. C, 2 
 Marshall's Eep. 265. 
 
 6 Laing v. Glover, 5 Taimt. 49. 
 
 8 Heselton v. AJlnutt, 1 M. & Sel. 
 45. 
 
CHAP. X.] TNUER JUSTIFYING CAUSES. 507 
 
 the jurisprudence of Christian communities, appears for 
 some time to have prevailed both in this country and the 
 United States, whether a departure from the direct course 
 of the voyage for the purpose of saving the lives of men 
 threatened with imminent danger of shipwreck or founder- 
 ing, were or were not a deviation which would discharge the 
 underwriters. It must, now, however, be taken as clear 
 law, both on this and the other side of the Atlantic, that a 
 deviation of this kind, sanctioned alike by the true interests- 
 of commerce and the clearest precepts of humanity, can in no 
 instance be held to discharge the underwriters.' 
 
 This liberty, however, has been expressly confined, in the 
 United States, to those cases only in which the object of the 
 deviation is the preservation of human life ; and it has been- 
 held not to extend to the case of saving property.^ I 
 apprehend the law will be found the same in this country. 
 
 Since the last edition of this Work, the general question 
 has been raised and argued, before the Court of Appeal in 
 England, upon an action by a goods owner against the 
 shipowner and carrier, whose vessel and her cargo, including 
 the plaintiff's goods, were lost whilst the ship was performing- 
 a salvage service for another vessel and her cargo, but not 
 such a service as necessarily included sialvage of human life. 
 The Court held the deviation to be no defence to the action, 
 and gave judgnient for the plaintiff.^ 
 
 After a review of the English authorities, the Court were 
 obliged to regard the ease as of the first impression in our 
 Courts. Upon the American authorities, the Court formu- 
 lated the following propositions, as containing the existing 
 
 1 In this country see the dictum of Com. 313. See especially the judg- 
 
 Lawrenoe, J., in Lawrence v. Syde- ment of Story, J., in the Schooner 
 
 botham, 6 East, 54, and the judg- Boston, 1 Sumner's E. 328. 
 
 ments of Lord Sto-well in The Beaver, '^ See the oases referred to, 1 PhU- 
 
 3 C. Kob. Ad. R. 292; and The Jane, lips, Ins. no. 1028. 
 
 2 Hag-g. Ad. Hep. 338, 345. In the ' Scaramanga v. Stamp, 5 C. P. D. 
 
 United States, see the cases collected 295. 
 in 1 Phillips, Ins. no. 1027 ; 3 Kent's 
 
508 DEVIATION [part I. 
 
 law of the United States on the question, and expressed their 
 cordial concurrence with the law as thus laid down : — 
 
 " Deviation for the purpose of saving life is protected, and 
 involves neither forfeiture of insurance nor liahility to the 
 goods owner in respect of loss which would otherwise he 
 ■within the exception oi perils of the seas. And, as a necessary 
 consequence of the foregoing, deviation for the purpose of 
 communicating with a ship in distress is allowable, inasmuch 
 as the state of the vessel in distress may involve danger to 
 life. On the other hand, deviation for the sole purpose of 
 saving property is not thus privileged, but entails all the 
 usual consequences of deviation. 
 
 " If, therefore, the lives on board a disabled ship can be 
 saved without saving the ship, as by taking them off, devia- 
 tion for the purpose of saving the ship will carry with it all 
 the consequences of an imauthorized deviation. 
 
 " But where the preservation of life can only be effected 
 through the concurrent saving of property, and the hon& fide 
 purpose of saving life forms part of the motive which leads 
 to the deviation, the privilege will not be lost by reason of 
 the purpose of saving property having formed a second 
 motive for deviating."' 
 
 Irresistible It is also now clearly established, that where the departure 
 
 force of penis . ., . ., • . , 
 
 not insured irom the course 01 the voyage is the necessary effect of the 
 
 agams . immediate and irresistible operation of a peril not insured 
 
 against, it will not be held to amount to a deviation, although 
 
 the peril so operating be one not included among the ordinary 
 
 risks, or be expressly excluded by the specific terms of the 
 
 policy. 
 
 Thus, where a neutral ship, insured expressly "against 
 
 sea risks and fire only," was carried out of her course and 
 
 detained six weeks by a British cruiser, this was held to be 
 
 no deviation, though capture and seizure were perils not 
 
 insured against ; for the Court said, that in cases where the 
 
 ' See per Sprague, J., in Crocker v. Jackson, Sprague, R. 141. 
 
CHAP. X.] UNDER JUSTIFYING CAUSES. 509 
 
 deviation was necessitated by superior force there was no 
 ground for a distinction between a policy confined to parti- 
 cular risks, and a general policy embracing all risks.^ 
 
 It has been held in the United States, that, if the voyage 
 is given up, and another entirely distinct one undertaken, on 
 account of a peril not insured against, the risk thereupon 
 ceases.^ And from what fell from the Court in the case of 
 Delaney v. Stoddart,' it seems that those learned judges 
 would have felt themselves constrained by the English law 
 to come to a similar conclusion, had the facts warranted it. 
 
 1 Scott V. Thompson, 1 B. & P.N. ' Lee v. Gray, 7 Mass. Eep. 349, 
 
 K. 181. See also per Kent, C. J., in and cited 1 Phillips, Ins. no. 1025. 
 Eobinson». Marine Ins. Co., 2 John- ' j x. E. 22. The Judges were 
 
 son, 89 ; 1 Phillips, Ins. no. 1025 ; Lord Mansfield, BuUer, "Willes, and 
 
 3 Kent's Com. 316. Ashurst, JJ. 
 
PAUT II. 
 
 OF CERTAIN MATTERS THAT RENDER THE CONTRACT OP 
 INSURANCE VOID OR UNAVAILABLE. 
 
CHAPTER I. 
 
 MISREPRESENTATION. 
 
 General piincsiple - - - 513 
 
 BepresentatioDS defined - - 514 
 
 distinguished from warranties 516 
 
 why they avoid the policy - 519 
 
 by actual fraud ... 520 
 
 materiality and falsehood 520 
 
 what are material . - - 530 
 
 what is compliance with - 535 
 
 in case of fraud - - - 535 
 
 of no fraud - - 536 
 
 construction of - - - 538 
 
 to the first underwriter - - 544 
 
 effect of - - - - 545 
 
 in respect of what - - 645 
 
 on whom - - - - 547 
 
 In almost every instance in which a policy of sea insurance Of misrepre- 
 is effected, the underwriter must rely solely on the good aiiegatio faU. 
 faith of the assured for supplying him with full and true 
 information of many of those facts on which the character 
 and nature of the risk, and consequently the rate of premium, 
 depend. It is to the assured, that all communications re- 
 specting the actual state of the property proposed for insur- 
 ance, such as the time and place at which the goods are to be 
 loaded, or the ship is to sail, — ^the force and equipment of 
 the vessel, her then situation, and progress in her voyage, 
 &e., — are in the first instance addressed; he is thus the 
 natural and sole depositary of much of that information, a 
 full and true communication of which is absolutely essential 
 to the underwriter, in order that he may form a right judg- 
 ment of the nature of the risk and the proper rate of 
 premium. 
 
 In consequence of this inequality in information existing 
 between the parties to the proposed contract of insurance, 
 and the complete dependence of the one upon the informa- 
 tion to be supplied by the other, this contract is received in 
 law as eminently a contract uberrimm fidei, to be made, 
 i. e., in the utmost good faith ; and, as a matter of public 
 policy, its integrity and equitable character are guarded 
 
 M. 
 
 L T. 
 
514 MISREPRESENTATION [pART II. 
 
 by this implied condition precedent, that the contract is 
 free from misrepresentation or concealment, whether the 
 same be due to fraud, negligence, accident, or mistake. The 
 effect of this is that the contract is void, ipso facto, when- 
 ever misrepresentation or concealment has entered into the 
 making of it on the side of either of the parties to it, the 
 assured or the insurer.^ 
 
 Eepreseiita- A representation, in the technical sense which the word 
 described, and bears in the law of insurance, may be defined to be: — A 
 distinguished, ^^^-^^i Q^ written statement made by the assured to the 
 underwriter, at the time of the making of the contract, as to 
 the existence of some fact or state of facts, tending to induce 
 the underwriter more readily to assume the risk, by diminish- 
 ing the estimate he would otherwise have formed of it. 
 
 A statement of facts may either be, — 1, a positive affirma- 
 tion by the assured, as of his own knowledge and upon his 
 own responsibility, that the facts represented either do or 
 will exist ; or, — 2, a mere declaration of his belief, or expec- 
 tation that such facts do or will exist; or, — 3, a mere 
 communication of information which he has received from 
 others respecting them. 
 
 It is to the first of these three classes of statement that the 
 word representation, in its technical sense, is more properly 
 applied; though, as we shall have occasion afterwards to 
 observe, it may with certain limitations be extended also to 
 the other two. For the sake of marking the distinction more 
 clearly, we shall call those statements that positively affirm 
 the actual, or future existence of material facts, i.e., of facts 
 tending to alter the judgmeut the underwriter would form of 
 the risk, — positive representations; and denominate the two 
 other classes respectively, — representations of belief, — and 
 representations of information. 
 Of positive First, — a representation to take it by steps is " a verbal or 
 
 representa- •i.l j. l . i i -i •' r 
 
 tions. written statement made by the assured or his agent to the 
 
 1 Blackburn v. Vigors, 55 L. J. Willes, J., Anderson v. Pacific Fire 
 (Q. B.) 347 ; 1 Phillips, 537; per & Mar. Ins. Co., L. R., 7 0. P. 65. 
 
CHAP. I.J DISTINGUISHED FROM WARRANTY. 515 
 
 tinderwriter, at the time of the making of the contract." It 
 may be either oral or in writing, and in point of actual prac- 
 tice, generally consists of either yerbal communications made, 
 or written instmctions shoMno, by the broker to the under- 
 writer at the time the risk is proposed to him or the policy is 
 submitted for his subscription. Though made only Terbally, 
 every representation generally is, and ought always to be, 
 entered by the broker in his book at the time, and carefully 
 preserved as evidence of the real terms on which the con- 
 tract was made.^ 
 
 The contract is regarded in most cases as made and com- 
 plete when the slip is initialed by the underwriter. But 
 until the 30 Vict. c. 23, we have seen^ the slip could not be 
 looked at by the Courts for any purpose whatever. Now, 
 however, although the contract at this stage still lacks 
 sundry additions before it becomes a valid contract of sea 
 insurance, it yet may be given in evidence to show the inten- 
 tion of the parties; and consequently any representation 
 made by one of the parties to the other, after their common 
 consent has been ascertained and thus expressed, is of no 
 effect on a policy made in accordance with the slip, although 
 such policy be, drawn up and executed after such a represen- 
 tation. 
 
 A broker proceeding to effect insurances on goods on board 
 the vessel named in his instructions omitted to take his in- 
 structions, with him, and finding, when with the underwriter, 
 that in Veritas there were two vessels, a new one called the 
 Socrates, and an old one called the 8ocrate, said he believed 
 the goods were on board the Socrates. Two slips on the 
 same goods were thereupon initialed, the one being on goods 
 " by ship or ships," the other on goods by the Socrates. 
 Afterwards the underwriter, at the request of the broker, 
 initialed another slip on goods by the Socrates, and substi- 
 tuted that for the slip by ship or ships. When policies had 
 been executed in accordance therewith, it was found that the 
 
 1 Pawson V. Watson, 2 Cowp. 785, ' Ante, p. 259. 
 
 788. 
 
 ll2 
 
516 MISREPRESENTATION [pART 11. 
 
 goods were on board the old vessel called tlie Socrate. The 
 policy answering to the original specific slip on goods by the 
 Socrates was void by reason of this misrepresentation ; but 
 the other policy, answering to the, slip which was originally 
 on goods hj.&Up or ships, was held binding notwithstanding, 
 because the original contract of the underwriter being to 
 insure goods by any ship, it consequently covered the goods, 
 on board the Socrate} 
 
 Distinguklied A representation, to be of any effect, must be made at the 
 m^j. ^^'" t™e of entering into the contract, and yet it is never, in terms, 
 inserted in the policy. This, in fact, constitutes the main 
 distinction in form between a representation and a warranty, 
 viz., that a representation may be made either orally or in 
 writing, but in neither case is introduced into the policy ; 
 whereas a warranty, not implied by law, must always be in 
 writing and appear upon the face of the policy.^ 
 
 No statement not actually written on the face of the 
 policy itself will be construed as a warranty; not even 
 though the paper on which the statement is written be 
 wrapped up with the policy, or wafered to it at the time of 
 subscription ; such a paper writing may be a representation, 
 it is no more.^ 
 
 The same statement which, when made orally or in writing 
 distinct from the policy by the broker to the underwriter, is 
 construed as a positive representation, would, if written on 
 the face of the policy, in almost all cases be in law and effect 
 a warra,nty. Thus, where a broker, in effecting a policy on 
 a ship, showed the underwriter, in order to induce him to 
 take the risk, written instructions, in which it was stated 
 with reference to the ship, "she mounts twelve guns and 
 
 1 lonides v. Pacific Fire & Mar. in Pawsou v. "Watson, 2 Cowp. 785 ; 
 
 Ins. Co., L. R., 6 Q. B. 674 ; 7 Q. B. M'DowaU v. Fraser, 1 Dougl. 260 ; 
 
 517. See also, Cory ». Paton, L. R., and of Lord Abinger in Cornfoote v. 
 
 7 Q. B. 304 ; Lishman v. Northern Fowke, 6 M. & W. 378. 
 Marit. Ins. Co., L. R., 8 C. P. 216 ; ' Pawson v. Bamevelt, 1 Dougl. 
 
 10 C. P. 179. 12, note 4 ; Bize v. Fletcher, ibid. 
 
 " See the dicta of Lord Mansfield 
 
CHAP. I.J DISTINGUISHED FROM WAUEANTY. 517 
 
 twenty men," this was construed as a positive representation ; 
 but had these same words been written on the face of the 
 policy they would have been held to be a warranty.^ 
 
 Wherever, therefore, the representation is a positive state- 
 ment of the actual or eventual existence of some fact material 
 to the risk, it is only distinguishable in form from a warranty 
 by not being written on the face of the policy. 
 
 From this distinction in form arises a very important ■Warranty- 
 distinction in effect.^ As a representation is not inserted tation differ " 
 on the face of the instrument, the assured is not tied down ^" ^^^o^- 
 to the same rigid and literal compliance with its terms, as 
 he is in the case of a warranty. Unless a warranty is true 
 to the letter, and fulfilled with the most scrupulous exactness, 
 the policy is avoided; for in such cases there is a breach 
 of an express stipulation, which the assured himself has 
 inserted in the instrument as one of its terms. In the case 
 of a representation, on the other hand, the very fact that 
 the assured has declined to insert on the face of the policy 
 the statement which he has yet represented to be true, 
 shows that he does not intend to be bound down to this 
 exact and rigorous accuracy, and accordingly a substantial 
 compliance with the terms of a representation is all that is 
 required.* 
 
 Thus, to take an illustration from the case already cited, 
 had the words " she mounts twelve guns and twenty men " 
 been written on the face of the policy, this would have been 
 a warranty, and the policy been void had the ship carried 
 one gun or one man less than the stipulated number. But, 
 as these words were in fact only shown to the underwriter 
 before subscribing the policy to inform him of the probable 
 risk to be insured, and were not inserted in the policy, they 
 were held to be a representation only, and the policy not 
 void by reason merely of the ship's carrying a force of men 
 and guns, not literally the same with that stated in the 
 
 ' Pawson «. Watson, 1 Cowp. 785, 414. 
 788. ' Pawsont). Watson, 2 Cowp. 785 ; 
 
 2 See Dent v. Smith, L. R., 4 Q. B. Christie v. Seoretan, 8 T, R. 192, 
 
518 
 
 M tSKEPKESENTATION. 
 
 [part II. 
 
 representation, though in point of strength, convenience, and 
 for the purpose of resistance, even more favourable to the 
 risk.i 
 
 Materiality 
 of the repre- 
 sentation. 
 
 Compared 
 with a 
 ■warranty in 
 respect of 
 inateriality. 
 
 Further, it appears, by the definition, that a representation 
 is a statement of the existence of some fact or state of facts 
 " tending to induce the underwriter more readily to assume 
 the risk by diminishing the estimate he would otherwise 
 have formed of it." Facts, the statement of which may 
 reasonably be presumed likely to have such an influence on 
 the judgment of the underwriter are called " material facts :" 
 a statement of such facts is called a material representation ; 
 and it is the falsehood of such a representation only that will 
 have the effect of avoiding the policy. 
 
 This constitutes a further distinction between a repre- 
 sentation and an express warranty. In the case of a 
 warranty all questions of the materiality or immateriality 
 of the fact warranted are entirely excluded ; the sole inquiry 
 is, whether it be, or be not warranted that the fact is, or 
 shall be so and so? If warranted, then, however unim- 
 portant the fact so warranted be to the risk, however little 
 its existence or non-existence may have influenced the 
 judgment of the underwriter as to the rate of premium, 
 it must be absolutely true, or literally performed, as war- 
 ranted, otherwise the policy is wholly void. The falsehood 
 of a representation, in part, on the other hand, produces 
 no effect on the policy unless the fact misrepresented be 
 material. 
 
 Statements of belief or information would, if inserted in the 
 policy, and false to the knowledge of the assured, have the 
 effect of avoiding the policy on the ground of their being 
 fraudulent. Thus, where the words " the vessel was expected 
 to be loaded between the 13th and 20th of September," were 
 inserted in the policy, this was construed as a representation 
 
 ' Pawson V. Watson, 2 Cowp. 785 ; 
 see also Von Tugdn v. Dubois, 2 
 
 Camp. 151 ; Nonnen v. KettleweU, 
 16 East, 176. 
 
CHAP. I.J WHY IX AVOIDS THE POLICY. 519 
 
 that the ship had not been loaded -within the knowledge of the 
 assured before the 13th of September ; and as it turned out 
 that he, in fact, knew she had been, the policy was held void 
 on that account.^ 
 
 Moreover, the language of the policy may itself be such Eepreeenta- 
 as to imply a representation, which wiU thus virtually form a ii thetemw 
 part of the written instrument. °* *^^ ^^'^■ 
 
 Thus, where an insurance was e£Eected on ship and cargo Hodgson ». 
 at and from Grenoa to Dublin, " the adventure to begin from 
 the loading to equip for the voyage," — Lord Mansfield held, 
 that these words plainly implied a representation that the 
 vessel had loaded or would load at Genoa; and as it 
 appeared she had not done so, but at Leghorn, and this 
 being material, his Lordship considered the policy void for 
 misrepresentation and concealment.^ 
 
 So, in case of an insurance on goods, where the words Reid». 
 " to return five per cent, for convoy and arrival " were 
 inserted in the policy, Lord Eldon was of opinion that these 
 words clearly amoimted to a representation that it was 
 probable the vessel would sail with convoy, or, at all 
 events, that there was a chance of her doing so ; and, as it 
 appeared that the assured knew, when the policy was 
 effected, that the ship had actually sailed without convoy, his 
 Lordship held the misrepresentation fraudulent, and the 
 contract therefore void.' 
 
 Formerly it appears to have been laid down m some cases. The ground 
 
 ,. 1 n , 1 n-111 • upon which 
 
 and assumed m others, that the ground upon which the mis- false repreaen- 
 representation of a material fact avoided the policy, was theMlicv. 
 moral fraud, or a wilful intention on the part of the assured 
 to deceive the underwriter.* This ground, however, is long 
 
 ' Stewart v. Morrison, Millar on Bl. 463 ; 1 Park, Ins. 412. 
 
 Ins. 39 ; and see some American de- ^ Reid v. Harvey, 4 Dow's Kep. 
 
 cisions to the same efBect, cited by 97. 
 
 Judge Duer, vol. ii. 721-738. * See the dicta of Lord Mansfield in 
 
 2 Hodgson V. Richardson, 1 W. Pawson v. Watson, 2 Cowp. 785, and 
 
520 MISREPRESENTATIONS [PART II. 
 
 since entirely abandoned, and the principle now establislied 
 
 is, that misrepresentation from mistake, ignorance or accident, 
 
 of any material fact, however innocently made, avoids the 
 
 policy ,^ and this upon the principle in law already expressed 
 
 on a previous page.* 
 
 Moral fraud Of couTse, if the purposo of the representation be fraudu- 
 
 poliy, mate- lent, that is, to deceive the underwriter, by inducing him to 
 
 rial or not. ■believe that which the assured, at the time, knows to be 
 
 false,^ or does not know to be true,* the policy is equally 
 
 avoided, whether the false statement be material to the risk 
 
 or not, and this on the broad ground of moral fraud. 
 
 The loss need It is not neoessary, in order to avoid the policy on the 
 nected with ground of misrepresentation, that the loss should have arisen 
 sent^mf"' f™™- ^ ^^^^ connected with the fact or circumstance mis- 
 represented. In cases of moral fraud, no matter how trivial 
 the circumstance, or how utterly unconnected with the cause 
 of loss, the assured will be precluded from recovering on the 
 policy. And the rule is the same, even in cases of misre- 
 presentation from ignorance, accident, or mistake, if the fact 
 were material to the risk, however foreign to the cause of 
 loss. Thus, if the assured represent that the ship or goods 
 are neutral property, and they are, in fact, enemy's property, 
 he shall not recover even for a loss occasioned by shipwreck, 
 
 Bize V. Hetoher, 1 Dougl. 12 ; the time, made with the intent that it 
 
 diotnm of Lord Tenterden in Flinn v. should he acted on by the insurer, 
 
 Tobin, Moody & Malic. 337, and the and which has led to the policy being 
 
 remarks of Judge Duer on Represen- granted, will defeat the policy": 
 
 tation, 112, 113, note 3. Anderson v. Pacific Fire & Marine 
 
 ' The cases that establish this posi- Ins. Co., L. B., 7 C. P. 6S. 
 
 tion are the following ; M'DoweU v. ' Ante, pp. 513, 514. 
 
 Fraser, 1 Dougl. 260 ; Fillis v. Brut- ^ 1 Marshall, Ins. 452 ; 3 Kent, 
 
 ton, 1 Park, Ins. 414; Fitzherbertji. Com. 283; 2 Duer, Ins. 692; 1 
 
 Mather, 1 T. E. 12; Steels. Lacy, 3 Park, Ins. 405 ; and Roberts ». Fon- 
 
 Taunt. 285 ; Feise v. Parkinson, 4 nereau, there cited ; 3 Kent, Com. 
 
 Taunt. 640 ; Dennistoun v. Lillie, 3 283. 
 
 Bligh, P. C. 202; per Lord Abinger * PerMaule, J.jEvansti.Edmonds, 
 
 in Comfoote i: Fowke, 6 M. & W. 13 C. B. 777, 785 ; Pawson v. Wat- 
 
 378 ; per 'WiUeB, J. ; " There is no son, 2 Oowp. 785 ; see also FiUis v. 
 
 doubt that a material misrepresenta- Brutton, 1 Park, Ins. 414 ; 1 Phil- 
 
 tion, though perfectly honest at the lips, Ins. no. 642. 
 
CHAP. I.J CLASSIFIED. 521 
 
 whether the mis-statement were made through mistake, or 
 from design to deceive.^ 
 
 If the policy be avoided by a mere misrepresentation Return of 
 without moral fraud, the assured is entitled to a return of 
 premium ; ^ not so, however, if the representation were false 
 within his own knowledge, and made with the intention to 
 deceive.' 
 
 Positive representations have been subdivided into — 1. ClassiBoation 
 Affirmative ; — 2. Promissory ; the former averring the actual premutations" 
 existence of the fact to which it relates ; the latter, that such 
 fact shall or will thereafter exist. 
 
 , This distinction, however, is one more of. form than sub- 
 stance ; as, in fact, most positive representations, even when 
 in terms affirmative, in effect are promissory. As, where it 
 is represented that a vessel is neutral, or has a licence to 
 trade, or has a certain armament, or a certain kind of cargo, 
 the mere affirmation of these facts as existing at the time, 
 is unimportant; it is the implied promise that, as far as 
 depends on the assured, they shall be and continue unchanged 
 throughout the duration of the risk, which alone gives value 
 to the representation. 
 
 To take an instance in point. In the case of Pawson v. Eepresenta- 
 Watson, the representation made by the broker in effecting affinnative^ 
 a policy on the ship was in these words:— "She mounts ^o;^^^^;^ 
 twelve guns and twenty men." Although affirmative in effect, 
 point of form, it is plain that this representation was promis- 
 sory in its meaning ; for, when the policy was effected, the 
 ship, which, as appears by the report, did not sail for a 
 month afterwards, had not a single gun or man on board ; 
 so that the representation, unless construed to refer to a 
 future event, was false when made. The whole judgment of 
 Lord Mansfield plainly shows that he took it to be, what 
 
 1 Per Holt, C. J., Skinner's Bep. Dunsford, 14 East, 494. 
 
 327; 1 Marshall, Ins. 452; 1 Park, " Tjler v. Home, 1 Park, Ins. 
 
 Ins. 405 ; Lynch v. Hamilton, 3 455 ; Chapman v. Eraser, ibid. 456. 
 
 Taunt. 36 ; S. C. (in error), Lynch v. ' Peise v. Parkinson, 4 Taunt. 639. 
 
522 
 
 MlSKEPJlKSENTATlOJiS 
 
 [part II. 
 
 Is there any 
 difference of 
 effect p 
 
 Plinn V. 
 Tobin. 
 
 Flinn v. 
 Headlam. 
 
 Tindouttedly it was, not a mere assertion of the actual force 
 of the Tassel at the time, hut a stipulation that she would 
 sail with the armament described on the voyage insured.^ 
 Had the representation just stated been thus expressed: — 
 " She is to (or ' She will ') mount twelve guns and twenty 
 men," it would have been an instance of a representation 
 promissory in terms as well as in effect. 
 
 It is an important question, whether there is any difference 
 between an affirmative representation and a promissory 
 representation, as to the ground on which, if false, they will 
 avoid the policy? In other words, whether the positive 
 misrepresentation of a future fact, material to the risks, will 
 just as much avoid the policy, in the absence of moral fraud, 
 as the positive misrepresentation of a past or existing fact, 
 equally material ? 
 
 The distinction seems first to have been taken in FHnn v. 
 Tobin, before Lord Tenterden, at Nisi Prius. That case was 
 this: — To induce an underwriter to take a risk on a ship 
 about to sail with a cargo of rock salt, the broker falsely, 
 but not fraudulently, represented that " the ship would only 
 take fifty or sixty tons of rock salt, which would put her in 
 light ballast trim." The ship sailed the day after the policy 
 was signed, with 160 tons of rock salt on board, being a full 
 and very heavy cargo. The counsel for the plaintiff, though 
 they admitted that the misrepresentation of past facts might, 
 if false, avoid the policy, even without actual fraud, yet 
 contended that the misrepresentation of facts which are 
 hereafter to happen, beiug properly a matter of stipulation 
 and contract, could not have that effect, unless inserted in 
 the policy." It appears by a subsequent case involving the 
 same facts, that his Lordship, in terms, took the distinction 
 in question, and advised the jury to find for the defendant 
 if they thought that a material misrepresentation was made 
 by the broker as to the quantity of rook salt actually on 
 
 ' See2Duer, 766. I have adopted 
 the language of this able writer almost 
 without a change. 
 
 367 
 
 Plinn V. Tobin, I Mood. & Malk. 
 
CHAP. I.] CLASSIFIED. 523 
 
 board, but to find for the plaintiff if they thought that the 
 representation was respecting the cargo expected to be 
 shipped.^ 
 
 But this distinction, even when confined to the sole case 
 of promissory representations, is totally irreconcilable with 
 principle or with express authorities of the greatest weight. 
 The principle on which the false affirmation of the actual or 
 past existence of a material fact avoids the contract in cases 
 where there is no moral fraud, is, that the underwriter only 
 engaged to be liable upon the faith that such fact existed ; 
 so that the falsity of the statement is the breach of a con- 
 dition precedent that the contract should be free from misre- 
 presentation. 
 
 On principle there is no ground for the distinction, and 
 it is also quite irreconcilable with authority.^ Instead of 
 citing all the cases to show that the doctrine of the Courts 
 has been, that such representation, although made in good 
 faith, must be substantially complied with, in order to sustain 
 the policy, a single decision to this effect in the House 
 of Lords whilst it was presided over by Lord Eldon, may 
 suffice. 
 
 A policy on ship and goods from Nassau (New Providence) Dennistoun v. 
 to the Clyde (in Scotland), was effected on the 18th June, 
 1814. On that occasion the broker showed the underwriters 
 a letter, dated the 2nd April, and received by the owners the 
 day before the policy was effected, in which it was stated, 
 " T/ie brilliant," the ship insured, " will sail on the 1st of 
 May." In point of fact, it turned out that the ship had 
 sailed on the 20th April, and on the 11th of May had been 
 captured by an American privateer. These facts were wholly 
 unknown to the parties by whom the representation was 
 made ; yet it was held, that the policy was avoided by the 
 
 ' Flinn v. Headlam, 9 B. & Cr. Dennistoun v. Lillie, 3 Bligh, P. C. 
 
 g94. 102. See also the American cases to 
 
 2 See Steel v. Lacy, 3 Taunt. 285 ; the same effect collected by Judge 
 
 Feise v. Parkinson, i Taunt. 639 ; Duer, Ins., vol. ii. 741-743, and 
 
 Edwards v. Footner, 1 Camp. 530 ; 749-769. 
 
524 MISREPRESENTATIONS [PART II. 
 
 misrepresentation. " There is a difference," said Lord Eldon, 
 " between the representation of an expectation and the repre- 
 sentation of a fact. The former is immaterial, but the latter 
 avoids the policy if the fact misrepresented be material to the 
 risk."! 
 
 This case, then, is an explicit authority for the position, 
 that a positive promissory representation of a material fact, 
 will, if false, avoid the policy though no moral fraud can be 
 alleged. 
 Ed^j-ards v. Accordingly, where a representation was made some time 
 
 before the ship sailed, to the effect that she " was to sail " 
 with convoy and a certain armament, so that the representa- 
 tion was both promissory in its terms, and related to an 
 actually future fact. Lord EUenborough held, that as it had 
 not been substantially complied with, it avoided the policy, 
 though made without moral fraud.^ 
 
 Upon the authority of previous cases, then, the distinction 
 assumed by Lord Tenterden appears to be untenable ; and, 
 in point of fact, it seems on further reflection to have been 
 abandoned by himself.' 
 
 It may, therefore, safely be laid down, as the conclusion 
 to be derived from all the authorities, that the positive 
 representation of a future fact material to the risks, will, 
 if false, avoid the policy, though it may not be morally 
 fraudulent. 
 
 Ecpresenta- Second, — There is a great distinction to be drawn between 
 
 tions of belief , ... . , ,. 
 
 or expeeta- such positive promissory representations, and representations 
 
 of belief or expectation which we have placed in a distinct 
 
 class and come now in the course of this inquiry to consider. 
 
 The former are positive engagements that certain material 
 
 facts do, or wiU, exist; the latter, merely expressions of 
 
 an expectation or belief that they either do, or will, exist. 
 
 The former involve a stipulation, that, unless facts take 
 
 ' Dennistoun v. Lillie, 3 Bligh's 630. 
 P- C. 202. •■< Flinn v. Headlam, 9 B. & Cr. 
 
 ^ Edwards v. Footner, 1 Camp. 693, 696. 
 
 tion. 
 
CHAP. I.J CLASSIFIED. 525 
 
 place substantially corresponding witli those specified, the 
 underwriter shall not be liable on the policy ; the latter 
 imply no stipulation of the kind, and their falsification 
 accordingly can only avoid the poKcy in case of moral 
 fraud. 
 
 A moment's consideration will show that this distinction 
 is well founded. If a man assures me positively that certain 
 events, over which he has a control, and without which I 
 should decline entering into a contract with him, shall take 
 place in a given way, and I enter into the contract on the 
 faith of that positive assurance, it seems clear that such 
 statement must substantially be made good, in order to 
 make me liable on such contract. If, however, he merely 
 tells me that he believes or expects that such events will 
 happen in a certain way, and I choose to enter into the 
 contract upon the mere chance of such belief or expectation 
 turning out well founded, I have no right to be released from 
 my contract on its proving fallacious ; for its failure was a 
 contingency which I ought to have contemplated on entering 
 into the contract. If, indeed, I can show that, with a design 
 to deceive me, he represented himself as expecting or 
 believing that which he knew at the time to be impossible 
 or untrue, I shall be released from my contract on the special 
 ground of this his moral fraud, and on the general ground 
 that his fraud is a breach of a condition of the contract. 
 
 And the result would appear to be the same if, with the 
 intention to deceive me, he stated his belief or expectation 
 of that, with regard to the possibility or truth of which he 
 knows nothing, either one way or the other.^ 
 
 Thus, if, with the intention to deceive, the owner of a 
 ship states to the underwriter that he believes the ship to 
 be neutral, kno'W'ing nothing on the subject, and having 
 no reason to believe either way, the better opinion would 
 seem to be, that this representation, if false, would avoid the 
 policy.^ 
 
 • Per Maule, J., Evans i: Ed- ^ Lord Mansfield in Pawson v. 
 
 mouds, 13 C. B. 777, 785. Watson, 2 Cowp. 787, laid down the 
 
526 
 
 MISREPRESENTATIONS 
 
 [part II. 
 
 Barber v. 
 Fletcher. 
 
 A statement 
 is to be con- 
 strued with 
 reference to 
 the parties 
 and the cir- 
 cumstances. 
 
 Bowden v. 
 Vaughan. 
 
 It has this effect, however, only -when made with the 
 intention to deceive. 
 
 Thus, where a broker employed to effect a policy on 
 certain ships engaged in the African trade, represented that 
 they were "expected to leave the coast of Africa in Novemher 
 or December," when, in fact, they" had all left in May : this, 
 though material to the risk, yet, not being fraudulently made, 
 was held not to be a representation, but a mere expectation, 
 into the grounds of which the underwriter ought to have 
 inquired before he relied on it.^ 
 
 When it is evident from the position of the parties and 
 the whole circumstances of the case, that a statement, though 
 in terms a direct and positive assertion, must, in fact, be 
 regarded as a mere expression of expectation or belief, or 
 opinion, it will be so construed. 
 
 If, for instance, the owner of goods were to make a state- 
 ment as to the time of the ship's sailing, without knowledge 
 either the one way or the other, such statement ought to be 
 looked upon as totally immaterial, coming from such a 
 quarter.^ And this principle has been extended to cases 
 in which the statement is, on the face of it, a positive 
 promissory representation or explicit engagement for the 
 existence of future facts, where made, in the absence of 
 fraud, by parties who have no interest in the subject, or 
 control over the event, to which the statement refers. 
 
 Thus, where a broker, employed to effect a policy on 
 goods, for a party who had no interest in the ship, repre- 
 sented that " the ship," which was then at Lisbon, " was to 
 sail in a few days," and the ship did not, in fact, sail for a 
 month. Lord EUenborough held, that this statement, though 
 material to the risk, but made by the owner of the goods. 
 
 contrary ; but the observations of 
 Maule, J., ubi supra, of Mr. Marshall 
 (Ins. p. 453), and of Judge Duer (Ins. 
 Tol. ii. 710, 711) seem unanswerable 
 in favour of the other view. 
 
 1 Barber*. Fletcher, 1 Dougl. 306. 
 It appears from the report that there 
 
 was no allegation of moral fraud. 
 See also the remarks made on this 
 case by Bayley, J., in Bridges v. 
 Hunter, 1 M. & Sel. 19. 
 
 ° Duer on Representations, 95, 96, 
 97. 
 
CHAP. l.J CLASSIFIED. 527 
 
 who had no control over the time of the ship's sailing, must ■ 
 be regarded merely as the expression of a prohahle expecta- 
 tion, which, as it appeared to have been made boncL fide, could 
 not avoid the policy.^ 
 
 A broker employed to procure an insurance on a ship, for Hubbard v. 
 a voyage " from St. Petersburg or Cronstadt to London," in ^^°''^'^- 
 order to induce the underwriter to take the insurance as a 
 summer risk, told him, on the 13th of June, just before the 
 policy was effected, "the ship had sailed some time {i.e., 
 from London), and must now be at Grottenburg. There is 
 a cargo ready for her («. e., at Cronstadt), and she is sure to 
 be an early ship." The ship, in fact, did happen to be at 
 Gottenburg when this statement was made, but at Cronstadt 
 found no cargo ready for her; and in consequence of the 
 delay thus caused, did not begin her voyage from Cronstadt 
 to London till after the winter risk had begun. Lord Ellen- 
 borough held that this did not avoid the policy, as the state- 
 ment must have been understood by the underwriters to 
 mean nothing more than the expression of a probable belief 
 that a cargo would be ready for the ship at Cronstadt, so 
 that she might be expected to be an early ship.^ 
 
 Where a broker, employed to effect an insurance on a Brine ». 
 ship " at and from Messina to her port or ports of discharge ^^atherstone. 
 in the Channel," stated to the underwriter at the time of 
 effecting the policy, " that the ship was then ("28th June) 
 either near Messina, or at Messina, or on her homeward 
 voyage ; " and it turned out in fact that the ship, although 
 she sailed from London a fortnight before this statement 
 was made, yet had not sailed from Falmouth till two days 
 after it {i. e., on 30th June) — Gribbs, C. J., held at the trial, 
 and the Court of Common Pleas confirmed his decision, 
 that this was not a positive representation, but merely the 
 expression of an opinion formed by the broker, from know- 
 ing the time at which the ship had sailed from London ; 
 
 1 Bowden v. Vaughan, 10 East, ' Hubbardv. Glover, 3 Camp. 313. 
 
 415. 
 
528. MISREPRESENTATIONS [PART II. 
 
 and, therefore, althougli it might have bound the assured to 
 a substantial compliance, if he had stated it positively as a 
 fact, jet, as he merely stated the ship to be in one of three 
 situations, and did not allege specifically in which, that the 
 very form of the statement itself showed that it was merely 
 to be taken as the expression of a calculation, which, 
 though erroneous, could not avoid the policy in the absence 
 of fraud.^ 
 
 At the time of effecting a policy on the freight of the 
 Clarendon "from Belize to Rendez-vous Point, thence back 
 to Belize, and thence to London," E,endez-vous Point being 
 unknown to either of the . parties, the master's letter was 
 shown to the underwriter containing this passage: — "It is 
 considered by the pilot here as a good and safe anchorage, 
 and well-sheltered. I have been out and seen the place, 
 and consider it quite safe." It was proved on the trial 
 that Eendez-vous Point was a dangerous place for a vessel 
 to anchor during the hurricane months ; but the jury found 
 that the pilot and master considered it was not dangerous. 
 
 Willes, J., when the case came before the Court in banc, 
 said : " There is no doubt that a material misrepresentation, 
 though perfectly honest at the time, made with the intent 
 that it should be acted on by the insurer, and which has led 
 to the policy being granted, will defeat the policy. The 
 question, however, is, whether the passage in question 
 amounts to an absolute statement of fact, or only to a 
 statement of opinion. If the latter, it ma;y be that, if it 
 was an opinion which the writer of the letter really did not 
 entertain — a conclusion which the jury would easily have 
 arrived at, if they thought no person could honestly have 
 entertained such a belief, I think the assured would be bound. 
 But the jury found that it was an opinion honestly formed. 
 I am of opinion the words do not amount to an absolute 
 statement of a fact. The effect of them is this. It was 
 considered by the pilot a safe place, and from information 
 
 ' Brine r. Peatherstone, i Taunt. 867. 
 
f^AP. 1.] CLASSIFIED. 529 
 
 received of the pilot and my own inspection, I consider it 
 quite safe. Fraud being out of the question, I think that is 
 no misrepresentation." ^ 
 
 If, however, the form of statement he positive, and there 
 is nothing in the circumstances to show that it was not so 
 intended, then, although the error consist merely of a wrong 
 inference from facts truly communicated, the positive nature 
 of the statement will bind the assured to a substantial 
 compliance, and its falsehood, in fact, will avoid the policy. 
 
 Thus, a broker, having been informed that a ship was seen M'Dowall v. 
 in the Delaware five days after she had sailed from New 
 York, understood this to mean, as by the usage of mercantile 
 men it well might, five days after she had sailed from Sandy 
 Hook, which he knew to have been on the 6th of December, 
 and he consequently stated it as a positive fact that the ship 
 " was seen safe in the Delaware on the 11th of December ; " 
 this was held a representation which must be substantially 
 borne out by actual facts, notwithstanding it was shown to be 
 a mere miscalculation made on the assumption that the ship's - - 
 sailing intended was from Sandy Hook, and not, as it 
 was in fact, from New York quay, which was some days 
 earlier.'^ 
 
 The ground of distinction between these two classes of Ground of 
 cases, is, that from the one mode of statement the under- tetween these 
 writer must necessarily have inferred that the assured did °^^^^- 
 not mean to affirm the fact positively ; and from the other 
 he must equally have inferred that he did. In the former 
 the underwriter ought not, as a cautious man, to take the 
 risk, without inquiring into the grounds of such expectation,- 
 belief, or opinion ; otherwise, the law presumes that he relies 
 and acts exclusively on his own judgment, and has no right 
 to complain of the consequences. 
 
 1 Anderson v. Pacific Kre & Mar. slightly abbreviated. 
 Ins. Co., L. E., 7 C. P. 65. This ' M'Dowall v. Fraser, 1 Dougl. 
 extract from the judgment has been 260. 
 
 M. M M 
 
530 
 
 MISREPRESENTATIONS 
 
 [part II. 
 
 Third class of 
 representa- 
 tions. 
 
 Third, — A third class of representations consists of those 
 in which the assured neither states positively the actual or 
 future existence of a fact, nor his belief or expectation of its 
 existence; but either, 1. qualifies his statement by adding 
 that it is made on the information of others ; or, 2. merely 
 submits the information in its whole extent to the under- 
 writers, leaving them to draw their own conclusions from it.^ 
 
 In these cases the assured is bound, not to any substantial 
 compliance with the statement made, but, only to show that 
 such statement corresponded with the information he really 
 received ; in other words, he is not answerable for the truth 
 of the facts, but only for the truth with which he stated the 
 information received. 
 
 What repre- 
 sentations are 
 material. 
 
 Materiality. 
 
 Fitzherbert 
 Mather. 
 
 As we have already seen, when no moral fraud can be 
 imputed, a representation, although false, will not avoid 
 the policy unless it be material. It becomes important, 
 therefore, to inquire what it is that makes a representation 
 material. 
 
 Every representation is to be presumed material which is 
 of such a nature as would likely induce a fair and reasonable 
 underwriter to take the risk or to take it at a lower premium 
 than he otherwise would. The test of materiality is the 
 probable efPect which the statement might naturally and 
 reasonably be expected to produce on the mind of the under- 
 writer.^ 
 
 Thomas, a corn-factor at Hartland (in Devonshire), shipped 
 by order a cargo of oats on the 16th of September to a con- 
 signee at Portsmouth, on account of the assured. The same 
 day he wrote to an agent of the assured at Portsmouth, 
 stating that he had that morning shipped the oats, that the 
 ship had sailed immediately, but that he was afraid the 
 
 1 2 Duer, Ins. 707. 
 
 2 Seel Marsh. Ins. 449; 1 Phillips, 
 
 Ins. nos. 624, 526, 526 ; Duer on Re- 
 presentations, 71. 
 
CHAP. I.J WHEN MATERIAL. 531 
 
 wind was coming from the westward, and would force hei' 
 back; lie also, the same day, wrote to the same effect to 
 another agent of the assured in London, directing him to 
 eilect an insurance, and adding these words: "I wish the 
 whole were safe in hand. The weather appears stormy." 
 These letters by the course of post did not leave Hartland 
 till 1 P.M. on the 17th, early on the morning of which day 
 Thomas knew of the loss of the ship, which had been driven 
 back by the wind and wrecked on the night of the 16th ofE 
 Hartland pier. He sent no further information. The 
 London agent, who, on the morning of the 26th received 
 the letter which left Hartland on the 17th, and also an order 
 from the assured to procure an insurance, submitted these 
 letters to the underwriter as his instructions, and upon them 
 procured a policy to be effected on the oats, " lost or not lost, 
 from Hartland to Portsmouth." 
 
 The Court held that the policy was void on the ground of 
 misrepresentation. The assured himself was innocent, yet as 
 he had built his information on that of his agent (Thomas), 
 and the agent had been guilty of misrepresentation, the 
 assured himself ought to suffer for it. "This policy," said 
 Lord Mansfield, "was effected by misrepresentation, because 
 the underwriter was warranted on the information of the 
 agent {i.e., Thomas) to take for granted that on the 17th of 
 September, at 1 o'clock" (the post-time at Hartland), "the 
 ship was safe; for the agent gave an account of the ship 
 being loaded, but said nothing at all of what had happened 
 to her." 1 
 
 m 
 
 So where merchants, residing in this country, had received Dennistoun v. 
 from their correspondents, abroad several letters relating to a • 
 risk, on which they wished to effect an insurance, in one of ■ 
 which it was stated positively, but, as it turned out, falsely, 
 that the ship "will sail" on a given day, and the under- 
 
 1 Fitzherbert v. Mather, 1 T. Rep. was not to be made till Thomas's 
 12, 15, 16; — ^perBuUer, J., "Accord- letter arrived; it -waa therefore the 
 ing to plaintiff's letter the insurance foundation of the insurance." 
 
 M M 2 
 
532 
 
 MISRE PRESENTATIONS 
 
 [part 11. 
 
 Ribbald v. 
 
 Hm. 
 
 Flinm;. 
 Headlam. 
 
 writers subscribed the policy after inspecting all tbese letters 
 which were communicated to them by the merchants as their 
 instructions, it was held that the assured, though innocent 
 themselves, were responsible for this misrepresentation of 
 their correspondents.^ 
 
 Where a London merchant induced an insurer at Leith to 
 underwrite insurances on two of his ships engaged in the 
 whale fishery at eight guineas per cent., by representing that 
 such was the highest premium which he had given for insur- 
 ances on the same risk in London, whereas to the London 
 underwriters he had paid premiums of fifteen, eighteen, and 
 even twenty-five guineas per cent., the Leith underwriter, on 
 this appearing, refused to pay the loss. The Court of Session 
 in Scotland decided against him, on the ground that " the 
 statement as to the premium was not a misrepresentation as 
 to any of the circumstances attending the situation or condi- 
 tion of the ship, or nature of the voyage, which could affect 
 the nature of the risk. The House of Lords, however, on 
 the motion of Lord Eldon, reversed the judgment on the 
 general principle, " that every misrepresentation is fatal to a 
 contract, which is made under such circumstances and in such 
 a way, as to gain the confidence of the other party, and 
 induce him to act when otherwise he would not." ^ 
 
 How far the following case is misreported, or if tndy 
 presented, whether it can be justified on any principle 
 recognised in insurance law, is exceedingly to be doubted. 
 
 It was stated as a fact " that the vessel would only take in 
 fifty or sixty tons of rock salt, which would be no more than 
 ballast trim," and the materiality' of this statement was 
 admitted on all hands ; but as at the same time a certificate 
 of the ship's fitness to proceed on her voyage with a cargo of 
 rock salt was shown to the underwriters, Lord Tenterden told 
 the jury to consider whether the underwriter was guided by 
 the certificate or the representation; and the jury, under 
 
 1 Dennistoun v. LiUie, 3 BUgh's » Sibbald v. HiU, 2 Dow's P. 
 
 P. C. 202. 263. 
 
CHAP, I.] WHEN MATERIAL. 533 
 
 this direction, having found for the assured, saying they 
 thought the representation, under the oiroumstances, not 
 material, the Court, on motion for a new trial, refused to 
 disturb the verdict.^ 
 
 There are facts, however, that have so plain and direct a When the 
 bearing on the estimate of the risk, that a misrepresentation of materiality 
 as to them or any of them will, in all cases, avoid the policy ; aga^^ed"^' *^^ 
 unless the assured can show, to the satisfaction of the jury, 
 that the judgment of the underwriter was not, under the 
 circumstances, influenced by the misrepresentation. 
 
 Thus, positive representations of the day on which the 
 ship has sailed, or will sail,^ or on which she was last seen 
 in safety,' of the kind of armament she is to be fitted out 
 with, the number of men with which she is to be manned,* 
 and the nature of the cargo she is to carry,' — being each of 
 them a statement material to the risk, and of a nature to 
 affect the underwriter's estimate of it, will, if false, avoid the 
 policy, unless the assured can show conclusively that the 
 underwriter was not in fact influenced by it. In the absence 
 of such proof, the presumption is to the contrary, and against 
 the policy. 
 
 If made in reply to inquiries of the underwriter touching Answers to 
 points material to the risk, the representation avoids the J^a^^ter. 
 policy if not substantially true, and this, even though it 
 relate to facts which the assured is not bound to disclose, as 
 the age, structure, or condition of the vessel, and generally 
 all those points which are included in the implied war- 
 ranty of seaworthinessj — facts themselves material, and any 
 
 ' Flinn v. Headlam, 9 B. & Cr. P. C. 202 ; Arnotii. Stewart, 5 Dow, 
 
 690. Mr. Phillips is unable to find a 274. 
 
 legal principle, or a statement of fact ^ M'Dowall v. IFraser, 1 Dongl. 
 
 in the case, which would support this 260. 
 result, no. 681. * Pawson v. Watson, 2 Cowp. 785; 
 
 * Anderson v. Thornton, 8 Exch. Edwards v. Eootner, 1 Camp. 530. 
 425; FiUisj'.Brutton, iParkonlns., ^ Flinn v. Headlam, 9 B. & Cr. 
 
 414 ; Dennistoun v. Lillie, 3 Bligh's 693, 
 
634 
 
 REPKESENTATIONS. 
 
 [PAKT II. 
 
 representation, in respect of wHoli "will be presumed to have 
 influenced the mind of the underwriter.^ 
 
 IMacldntosh v. 
 Harshall. 
 
 On the same principle, a positive misrepresentation of a 
 fact material to the risk, the truth of which might be ascer- 
 tained from Lloyd's List, will avoid the poKoy, unless distinct 
 proof can be adduced that the underwriter actually did 
 inspect the lists, the presumption being that he relied upon 
 such representation, and not upon the lists.^ 
 
 Bate of pre- 
 mium as a 
 test, 
 
 Where the facts represented are not so obviously material 
 to the risk, a presumption as to the materiality of the repre- 
 sentation may be raised by the rate of premium at which the 
 risk has been taken ; e. g., if the premium is much lower 
 than is required in the absence of any such representation, 
 there is occasion and room for the presumption that the 
 representation induced the underwriter to take it at the lower 
 premium. As naturally would the presumption be the other 
 way, if the premium were higher than usual, or at least not 
 lower.* 
 
 a question 
 exclusively 
 for the jury. 
 
 The materiality of a representation is a question which 
 falls exclusively within the province of a jury.* But whether 
 the jury, in forming their judgment on this point, are to be 
 left to draw their conclusions simply from the facts, or to be 
 aided with the opinions of witnesses of experience and skill, 
 such as underwriters, insurance brokers and merchants, is, as 
 ■we have already had occasion to observe, a point on which 
 the English authorities are not agreed.' 
 
 ' Per Lord EUenborough, Hay- 
 •wood V. Eodgers, 4 East, 690, 696, 
 697 ; 1 PhiUips, lus. no. 542. 
 
 " Mackintosh v. Marshall, 11 M. & 
 W. 116. There is an opinion not in 
 accord -with this decision attributed 
 to Erie, C. J., Foley r. Tabor, 2 F. 
 & P. 662. 
 
 ' See as to presumptions from the 
 rate of premium, Court v, Martineau, 
 
 3 Dougl. 161 ; Bridges ij. Hunter, 1 
 M. &Sel. 18, 19. 
 
 ' M'Dowall V. Eraser, 1 Dougl. 
 260 ; Shirley v. Wilkinson, 1 Dougl. 
 306, n. ; Willes v. Glover, 1 B. & P. 
 N. E. 14 ; Mackintosh v. Marshall, 
 11 M. & W. 116, 121; DueronEe- 
 presentations, 78, 196, notexxii. and 
 the cases there cited. 
 
 ' Ante, p. 181. 
 
CHAP. I. j WHAT IS COMPHAXCE WITH. 535 
 
 The oases in wHcli the point has arisen have been almost 
 all cases of concealment ; but the principles on which they 
 have been decided are quite as applicable to the subject of 
 representation, and a reference to them is therefore sub- 
 joined.1 
 
 That which avoids the policy is the falsity of a material What 
 representation. What representations are to be regarded as substantial 
 material, we have been considering. We proceed now to ^^a Mrae- 
 inquire when it is that a representation will be regarded as sentation. 
 falsified by fact. 
 
 A representation may in general terms be said to be 
 falsified when the facts to which it relates turn out not to 
 correspond with the statements or stipulations it contains. 
 
 If the representation be made with intent to deceive, any in case of 
 want of correspondence between the facts as they occur and ™" ' 
 
 the facts as stated, however trivial, or however immaterial to 
 the nature of the risk, will avoid the policy on the ground of 
 moral fraud. 
 
 Thus, to take a case put by Judge Duer, suppose the 
 owner of a vessel insured " at and from " a foreign port has 
 intelligence of her sailing, and also that a certain number of 
 her crew had died since the commencement of the voyage, if 
 he states truly the fact and time of her sailing, but yet, 
 fearing the effect of the whole truth on the mind of the 
 underwriter, represents the number of deaths to be fewer 
 than he knows to have occurred, then, although the remain- 
 ing crew may still be abundantly competent to perform the 
 voyage, and the misrepresentation consequently immaterial 
 
 ' The oases against the admissi- Peake'sN. P. 43; Berthonw. Lough- 
 
 bility of the evidence are Carter v. man, 2 Stark. 229 ; Eiokards v. Mur- 
 
 Boehm, 3 Burr. 1905; Durrell v. dock, 10 B. & Or. 527; indirectly, 
 
 BederleyjHolt'sN.P. 283; Campbell Haywood v. Kodgers, 4 East, 690; 
 
 V. Eickards, 5 B. & Ad. 840 ;— for Littledale v. Dixon, 1 B. & P. N. R. 
 
 the admissibility of the evidence, 151 ; Chapman v. Walton, 10 Bing. 
 
 directly, Ohaurand v. Angerstein, 57. 
 
^36 . REPRESENTATIONS, [PART II. 
 
 to the risk, yet tliis falsity of statement, teing intentional, 
 ■will avoid the policy.^ 
 
 In the ab- In casBS^ however, where there is no moral fraud, the rule 
 
 fraud. is different. It is the result of all the oases, that although 
 
 a warranty, heing in terms written on the face of the policy, 
 will avoid it unless fulfilled to the letter, yet a representation, 
 forming no part of the policy, will, in the ahsence of moral 
 fraud, be satisfied by a substantial compliance, and will not 
 be deemed falsified unless departed from in some material 
 point. In the words of Lord Mansfield, " A representation 
 may be equitably and substantially answered, but a warranty 
 must be strictly complied with."^ 
 Pawsoii». Thus, to take an illustration from a case already more 
 
 than once referred to, where the representation made as to 
 the ship was, — " she mounts twelve guns and twenty men," — 
 and it turned out that the ship, in fact, had on board only 
 nine carriage-guns and sixteen men, yet, as she had also on 
 board, in addition to the above, six swivels and nine boys, 
 and as it was satisfactorily proved that with this force she 
 was stronger than she would have been with twelve carriage- 
 guns and twenty men, Lord Mansfield held, that there had 
 been a substantial compliance with the representation, i.e., 
 no such falsification of it as would avoid the policy.' Had 
 these same words been inserted in the policy as a warranty, 
 the policy would have been avoided by her carrying one man 
 or one gun less than the exact number specified. 
 
 A statement that the vessel had been last metalled in 1 867, 
 was held to be substantially true where the bottom had been 
 then overhauled and new metal put on where required.* A 
 ship which is represented to be neutral, and which in fact 
 belongs to a neutral state, and is documented and navigated 
 according to the laws of that state, does not lose the protection 
 of the policy through being condemned by a Court of a 
 
 > 2 Duer, Ins. 692. -■" Pawson v. "Watson, 2 Cowp. 785. 
 
 ^ He Hahn v. Hartley, 1 T. E. « Alexander v. Campbell, coram 
 
 3*6- L.JJ., 41 L. J. (Chamc.) 478. 
 
CHAP. I.J WHAT IS COMPLIANCE WITH. 637 
 
 belligerent for not ponforxning to an ordinance which is not 
 binding on the state to which she belongs.' 
 
 Wherever there is no intention to deceive, the falsity of Reason for 
 the representation, in order to avoid the policy, must produce 
 such a variation of the risk represented to the underwriter, 
 as to lead to the reasonable conclusion, that had the truth 
 been known, he would either not have underwritten the 
 policy at all, or would have asked a higher premium for so 
 doing. If, upon the whole of the evidence, it appears 
 doubtful whether such would be the effect of the non-corre- 
 spondence of the facts with the statement, the assured is 
 entitled to the benefit of the doubt, and the policy should be 
 enforced. 
 
 Under this rule, different degrees of strictness in compli- Degrees of 
 ance may well be required in case of different representations. """'^ '"'^' 
 For instance, positive representations with regard to the time 
 of the ship's sailing, where that fact is material to the risk, 
 must be complied with almost as literally as express warran- 
 ties to the same effect. The smallest difference in such cases 
 is often very material; as in the case mentioned by Lord 
 EUenborough of two vessels, one of which sailed to Nova 
 Scotia and back before the other had made any material 
 progress in her voyage, only from the advantage of having 
 a few hours' start.^ 
 
 Hence where, in case of a policy "at and from," the 
 broker's instructions stated the ship to be ready to sail on 
 the 24th of the month, and the broker represented the ship 
 to be in port, when in fact she had sailed on the 23rd, this 
 was held such a falsity as to avoid the policy.' So where 
 the representation was that the ship "would sail in the 
 month of October," which, by the usage of trade, was shown 
 
 • Von Tugeln v. Dubois, 2 Camp. chell, Peake's Additional Cases, 141, 
 
 151 ; see also Nonnen v. Kettlewell, as to what will satisfy a representa- 
 
 16 East, 176, in whioli the same point tion that ship is to sail with convoy, 
 
 was determined on a representation ' In Kirby v. Smith, 1 B. & Aid. 
 
 by the assured that his property was 672, 674. 
 
 neutral, but who refused to warrant '■■ FilUs v. Brutton, I Park, Ins. 
 
 it as such. See also Christian ». Dit- 414; 1 Marshall, Ins. 462, 465. 
 
§38 REPIIESEKTATIONS. [PART II. 
 
 to mean " between the 25th of October and the 1st or 2nd 
 of November," and the ship in fact sailed on the 11th of 
 October, this was held fatal to the policy.* So where the 
 broker, proceeding on a false computation, founded on a 
 misconception of intelligence truly communicated to him, 
 stated to the underwriter that the ship " was seen safe in the 
 Delaware on the 11th," whereas, in fact, she had been taken 
 on the 9th, this was held such a misrepresentation as to avoid 
 the policy.^ 
 
 Where, however, it appears reasonable to conclude, from 
 the whole circumstances of the case, that the failure to 
 comply with the strict terms of the representation has not 
 substantially altered the nature of the risk, as described in 
 the policy, such non-compliance wiU not discharge the under- 
 writer's contract.' 
 
 ATraiveraa Moreover, if the insurer underwrite a policy inconsistent 
 
 sentetio2"^^" i^ terms with a representation made to him before doing 
 
 Bo, he waives his right to require a substantial compliance 
 
 with the representation, or to insist on a failure therein as 
 
 avoiding the policy.* 
 
 Eepresenta- A representation may be withdrawn at any time before 
 drTwTbefore the policy is actually signed, either expressly by the assured 
 policy signed, declaring to the underwriters that he was mistaken, or will 
 not hold himself bound to compliance with it, or else im- 
 pliedly by a subsequent qualifying or controlling statement.' 
 
 ConBtruction In the Construction of representations, the primary rule is 
 tionsf'^^^^'^ *' to take the words in their plain and obvious meaning, and in 
 
 1 Chauraud v. Angerstein, Peake's ^ Bize v. Fletcher, 1 Sougl. 284. 
 
 N. P. 4. « Ibid. 1 Dougl. 284, 288. 
 
 ■' M'Dowall V. Praser, 1 Dougl. ' Carter v. Boehm, 8 Burr. 1905 j 
 260. And see the principle of the Dawson v. Atty, 7 East, 366; Ed- 
 above cases further illustrated in that wards v. Footner, 1 Camp. 530. 
 of Arnot v. Stewart, 5 Dow, 274. 
 
CHAP. I.J HOW CONSTRUED. 539 
 
 that sense in whioh it is most reasonable to conclude that Words in' 
 they were understood by the underwriter.^ and obvious 
 
 Thus, it has been determined in the United States, in the ™«8'°^S- 
 case of a policy effected at Boston on a New York ship, 
 that a representation on the part of the assured, residing at 
 New York, that she was " coppered," must have been under- 
 stood by the Boston underwriters to have been used, and was 
 satisfied in the sense which it bears at New York.^ 
 
 This rule comprehends in the representation whatever 
 -would reasonably and necessarily be inferred by mercantile 
 men from the language under the circumstances in which it 
 vpas employed. 
 
 Thus, where the assured knowing that the ship had Bateliffe». 
 sailed from the coast of Africa in the course of the 2nd of 
 October, but, without a word to that effect, simply stated to 
 the underwriter, " that the ship was on the coast the 2nd of 
 October," this representation was construed as meaning 
 that the last intelligence left the ship on the coast, and 
 that no advice of her actual sailing had been received ; and 
 the jury, under the direction of Lord Mansfield, found there 
 was misrepresentation and concealment which avoided the 
 policy.' 
 
 So, where the owner of a ship, in order to induce the Kirbyc. 
 
 underwriters to take an insurance on her "from Elsinore 
 
 to Hull," stated to them that the ship "was all well at 
 
 Elsinore on the 26th of July," "the natural conclusion 
 
 would be," as Bayley, J., said, " that she was left there well 
 
 -at the time;" and therefore, as it appeared that she had 
 
 sailed from Elsinore, to the owner's knowledge, on the 26th 
 
 of July, six hours before the vessel on board which he 
 
 •himself had left that port, the Court held the policy void for 
 
 misrepresentation and concealment.* 
 
 If the language of the representation be designedly If ambiguous 
 
 by design. 
 
 1 See Sibbald v. Hill, 2 Dow, 263. ' Eatoliffe v. Shoolbred, 1 Park, 
 
 2 Hazard v. New England Marine Ins. 413. 
 
 Ins. Co., 8 Peter's Sup. C. R. 557; 1 " Kirby v. Smith, 1 B. & Aid. 672. 
 
 PhiUips, no. 566. 
 
540 
 
 KEPRESENTATIONS. 
 
 £PART 11. 
 
 If obviously 
 ambiguouB 
 without 
 fraud. 
 
 Freeland v. 
 Glover. 
 
 Explained 
 by usage. 
 
 ambiguous, the underwriter, if deceived, would be dis- 
 charged from all liability upon the policy on the ground 
 of fraud. 
 
 If, in the aljsence of fraudulent design, there be such 
 obvious ambiguity as might have suggested doubts to the 
 underwriter about the meaning, and have impelled him to 
 seek an explanation from the assured, and he omit to do so, 
 he will not be permitted afterwards to avail himself of the 
 representation not being true in the sense in which he 
 understood it. Especially will this be so where in all pro- 
 bability it appears not to have been meant as a positive 
 representation; or where it is suggested on the face of it, 
 by reference, for instance, to other sources of informa- 
 tion, that it is not to be taken as a complete statement of 
 the case.' 
 
 Thus, where a policy was effected on a ship " lost or not 
 lost, at and from twenty-four hours after her arrival at her 
 first place of trade on the coast of Africa, during her stay 
 and trade on the coast, and at and from thence to Liverpool," 
 and the assured had submitted to the underwriters, before 
 the subscription of this policy, a letter from the master con- 
 taining the latest intelligence as to the then state and 
 condition of the ship (which appeared to have been then for 
 some time on the coast of Africa), but referring to a former 
 letter from the master on the same subject, which was not 
 exhibited; the Court held that the mention of the former 
 letter, in the second, ought to have put the underwriters upon 
 inquiry as to the nature of the first communication, but that 
 they were not entitled to complain of the suppression of the 
 first letter as a concealment.^ 
 
 The terms in which a representation is expressed, equally 
 with those of the policy itself, must, if technical, or of 
 peculiar mercantile import, be construed with reference to 
 the usage of trade. Thus, where it was represented that a 
 
 ' Brine v. Peatherstone, 4 Taunt. 
 867; Freeland v. Glover, 7 East, 
 
 462. 
 
 ^ Freeland v. Glover, 7 East, 462. 
 
CHAP. 1.] HOW CONSTRUED. 641 
 
 ship was to sail "in the month of October," evidence was Chauraudp. 
 admitted to show that this, by the usage of trade, meant that ^^™ 
 she was to sail " between the 25th of October and the 1st or 
 2nd of November; " and as she actually did sail on the 1 1th 
 of October, this was held a failure to comply with the repre- 
 sentation and rendered the contract void.^ 
 
 It has already been observed, says Mr. Amould in this Parol evi- 
 plaoe, that evidence of a positive representation can ia no missibleto 
 case be admitted to contradict the express terms of the ^aag'ffrom'^^ 
 written policy; but, he continues, there seems little doubt ttepoUcy. 
 that it may be admitted to supersede a usage of trade in- 
 consistent with it, the terms of which are not expressed in 
 the policy.^ 
 
 Blackburn, J., after argument and time taken to consider, 
 has decided the contrary in respect of custom and usage,^ 
 and when the same question incidentally came before him in 
 respect of an implied warranty he expressed a very strong 
 opinion to the same effect, stating that there is no decision 
 in our books from which any support can be derived for such 
 an opinion as that here expressed by Mr. Arnould, either in 
 respect of a general usage, or a warranty implied by law.* 
 This result of the learned Judge's research is not surprising, 
 if, as I think it may be shown, the established usages of a 
 particular trade, like the general customs of merchants, stand 
 in relation to contracts upon such matters exactly as do 
 the laws of the land. The laws and the usages alike form 
 part of the contract unless they are expressly excluded by 
 the same kind of evidence that is required to sustain the 
 contract itself.' If I am right in assigning to trade usage 
 
 1 Caiauraud v. Angeretein, Peake's (Q. B.) 17 ; 3 B. & S. 669, 696. 
 
 N. P. 43. ' This is the first proposition in the 
 
 2 Bef erring to Urquhart v. Bern- course of the argument -vrhioh is over- 
 ard, 1 Taunt. 450 ; 2 Pewar, Ins. looked by those (like the American 
 670-672. text writers) that maintain the con- 
 
 ^ S'aTrkes if. Lamb, 31 L.J. (Q. B., trary opinion. A general usage is 
 
 BaU Court), 98. certain. It is in the knowledge of 
 
 • Surges V. Wiokham, 33 L. J. Hundreds who also act upon it in the 
 
642 REPRESENTATIONS. [pART II. 
 
 within its own sphere not only the same all-pervading 
 intimacy with contracts, hut also the same high ohligatory 
 force as appertains to the law of the land over a much wider 
 dominion, then Mr. Arnould is inconsistent with himself and 
 not justified in suggesting the admissibility of representations 
 to contradict such usages after confessing that they are in- 
 admissible to contradict the express terms of the written 
 policy with which such usages are co-ordinate in evidence 
 and blended in effect. 
 
 The same opinion as is here expressed by Mr. Amould, is 
 maintained by the American text writers, Phillips, Parsons, 
 and Duer, who all hold, but without any judicial authority 
 in support of it, that a general usage may bo excluded 
 from the policy by oral evidence of a representation 
 inconsistent with it.' Duer declines to adopt the same 
 opinion respecting the exclusion of an implied warranty.^ 
 But Phillips, more consistent with himself, holds the same 
 thing of an implied warranty, without, however, any autho- 
 rity for his opinion.' 
 
 daily concerns of life. A writing think the whole of this conclusion -was 
 
 cannot be more certain for the pur- involved in the decision of Pawkes r. 
 
 poses of evidence. More than this ; Lamb, 31 L. J. (Q. B.) 98, by Black-- 
 
 a general usage grows up out of bum,' J., and that it is a case directly 
 
 the convenience of business, is delibe- in point. But what is true of general 
 
 rately adopted by all, and continues usage holds good in this same respect 
 
 to be constantly acted upon by sucoes- of warranties implied by law in the 
 
 sive generations of men. Can the contract, and oral testimony is not 
 
 solemnities of a deed be witness of admissible to show that the parties 
 
 greater deliberation than the exist- at the time of making the contract had 
 
 ence of such a general usage ? It is agreed to exclude such a warranty, 
 
 accordingly received by the Courts ' 1 Phillips, no. 594; 1 Parsons, 
 
 of England and America as co- Ins. 432 ; 2 Duer, Ins. 668. 
 
 ordinate and of equivalent value in '2 Duer, Las. 669. 
 
 evidence with a writing and with a '1 Phillips, no. 602. 
 
 deed. Wiggleaworth o. DaUison, 1 It cannot but appear odd to find 
 
 Doug. 201. When this is settled, it these text writers of the United 
 
 follows under the niles of evidence. States citing Mr. Amould as opposed 
 
 that oral testimony is not admissible to their opinion on this subject. I 
 
 to show that such a usage does not suppose his opinion must have stood 
 
 form part of the written contract. so in the First Edition of this work. 
 
 Nothing but evidence of the same which appeared in 1848. These 
 
 order as the contract to be affected by learned writers do not condescend to 
 
 it is admissible for that purpose. I tell the profession what edition of an 
 
CHAP. l.J HOW CONSTRUED. 543 
 
 Eepresentations are generally to be taken in relation to Eepfeaenta- 
 the time when they are made, whether at or before -the genlr^y'to 
 initialing of the slip, or at or before the underwriting of tlietimeof 
 the policy; and to be construed to mean, that any facts the policy, 
 represented as existing are then true, and that no other 
 material facts are then known to the assured. 
 
 "Wliat is stated before subscription of the policy is liable 
 to be qualified or controlled by what passes at the time of 
 signing. 
 
 A broker stated to the underwriter, when the slip was Dawson v. 
 initialed, that the ship was an American, but afterwards, 
 when the policy came to be signed, said nothing of the sort, 
 but only, "that it was an insurance on goods by The Sermon," 
 without a word as to the national character of the ship, and 
 Lord EUenborough held, that the first conversation had been 
 qualified and controlled by what followed, and that the ship 
 was not represented to be American so as to require docu-. 
 ments of nationality.^ 
 
 A representation once made is considered binding, unless Am unoontra- 
 there is evidence of its being subsequently altered or with- sentation"^^' 
 drawn within the time allowed by law. foroe™''^' °* 
 
 The broker, at the time of signing the slip, stated that the Edwards ». 
 ship would sail under convoy, and with a certain armament, ^°°^'^^^- 
 and this was held binding, there being no evidence of any 
 further conversation on the subject having passed between 
 the parties, when the policy was signed, or in the period 
 intervening.^ 
 
 author they are quoting ; but I find controvert. 
 
 that whenever they cite Amould in • Dawson v. Atty, 7 East, 367. 
 order to differ from him, the citation This is a remarkable decision, as 
 is from an edition that I am not there is nothing to qualify or cancel 
 acquainted with, and therefore the the first statement in what is here 
 edition of 1848. It might be no set down as the second. Lord Ellen- 
 injustice to the author or to the pub- borough, however, continued of the 
 lishers of the work, it certainly would same mind when Edwards ». Footner 
 be a great convenience to the pro- was before him, and this case was 
 fession, to be informed by these referred to and approved of by him. 
 learned gentlemen what edition it * Edwards v. Eootner, 1 Camp, 
 is which they cite from in order to 530. 
 
644 
 
 MISREPRESENTATION 
 
 IMPART II. 
 
 Christie ». The initialing of the slip was always among merchants 
 
 regarded as the making of the contract, and since the statute 
 30 Yict. 0. 23, the Courts are enahled so to deal with it ; ' and 
 accordingly it is held that after the initialing of the slip, 
 any fresh fact coming to the knowledge of the assured need 
 not he communicated to the underwriters, however material it 
 may be.^ 
 Any repre- So long as the policy is unexecuted, there is opportunity of 
 
 be withdrawn withdrawing or qualifying a representation, and this should 
 i^^^F° '^ be done forthwith in case there be reason to suppose that it 
 cannot be sustained as made. Thus, where the agent of the 
 assured, after hearing of the loss of the ship, allowed the post 
 to go with his previous letter uncontradicted, inducing 
 others to suppose that she was safe when the post left, such 
 omission amounted to a misrepresentation which avoided the 
 policy.' 
 
 It has been held in the United States, but before the days 
 of the electric telegraph, that, although the assured, or his 
 agents, are bound to act with promptitude and despatch ini 
 countermanding an order for insurance founded on false 
 intelligence, they are not bound to resort to extraordinary 
 means of communication for this purpose ; they need not send 
 an express unless that be the usual mode.* 
 
 Misrepresen- 
 tation to the 
 first under- 
 writer ex- 
 tends to all. 
 
 If there be several underwriters to the same slip or policy, 
 a representation to the underwriter whose name stands first 
 extends to all the rest, so that each, when it proves false, may 
 avail himself of the defence. This rule is founded on the 
 reasonable presumption that the others subscribed from their 
 
 ^ Ante, Chap. V., p. 259. 
 
 " Cory V. Paton, L. R., 7 Q. B. 
 304 ; L. R., 9 Q. B. 677 ; Lishman 
 V. Northern Maritime Ins. Co., h .R., 
 8C. P. 216; L. R., IOC. P. 179; 
 lonides v. Pacific Fire & Marine Ins. 
 Co., L. R., 6 Q. B. 674 ; L. R., 7 
 Q. B. 517. 
 
 ' Ktzherbert v. Mather, 1 T. R. 
 12. 
 
 * See Greene v. Merchant Ins. Co. , 
 10 Pickering's Mass. Rep. 402 ; 
 M'Lanahan v. Universal Ins. Co., 1 
 Peter's Supreme Court Rep. 186 ; 1 
 Phillips, no. 561. 
 
CHAP. I.] TO FIRST UNDERWRITER. 545 
 
 confidence in the still and judgment of him whose name 
 stood first, and their belief that he had duly ascertained and 
 weighed all the circumstances material to the risk.^ This Limitations, 
 rule, however, is subject to many limitations. 
 
 1. It must be strictly confined to intelligence pertinent to It only 
 the proposed insurance as expressed in the slip, such as an representa- 
 underwriter would require, and without which it may be pre- tio"f perti- 
 
 ^ ' J r ngnt to an 
 
 sumed he would not initial the slip or subscribe the policy, ordinary 
 It cannot, therefore, extend to such representations as relate 
 to matters of collateral agreement which a subsequent under- 
 writer can have no reason to infer from the terms of the 
 policy to have been communicated to the first. 
 
 Thus, in Pawson v. Watson, Lord Mansfield held, that a 
 representation that " the ship mounts twelve guns and 
 twenty men," being in effect an engagement that the ship 
 should sail with that armament, could not affect subsequent 
 underwriters to whom it had never been communicated, 
 merely upon proof that it had been made to the under- 
 writer whose name stood first in the policy. " A represen- 
 tation to the first underwriter," says his Lordship, "has 
 nothing whatever to do with that which is the agreement, 
 or the terms of the policy ; no man who underwrites a 
 policy subscribes, by the act of underwriting, to terms of 
 which he knows nothing, but he reads the agreement and is 
 governed by that; matters of intelligence, such as that a 
 ship is, or is not missing, are things in which a man is 
 guided by the name of the first underwriter, who is a good 
 man, as to which another will therefore give faith and credit 
 to him, but not as to a collateral agreement, which he can 
 know nothing of."" 
 
 Of course if the representation to the first underwriter be 
 of immaterial facts, it cannot avail anyone ; and if it was of 
 
 1 The English cases which establish East, 572; Peise v. Parkinson, 4 
 
 the rule are, Pawson v. Watson, 2 Taunt. 640; Forester ». Pigou, 1 M. 
 
 Cowp. 785; Barber v. Fletcher, 1 & Sel. 13 ; BeU p. Carstairs, 2 Oamp. 
 
 Doug. 306 ; Stackpoole v. Simon, 2 543. 
 
 Park, Ins. 932 ; Marsden v. Reid, 3 ' 2 Cowp. 788. 
 
 M. 
 
 N N 
 
546 
 
 MISREPRESENTATION 
 
 [part II. 
 
 The rule 
 includes only 
 representa- 
 tions that 
 lower the 
 terms. 
 
 The rule not 
 favoured. 
 
 such a nature as ought to have put the first underwriter on 
 further inquiry, it will be equally imputed to the negligence 
 of the subsequent underwriters that no such inquiry was 
 made.' 
 
 2. Until the recent alteration of the law by the 30 Vict. 
 c. 23,2 tjjg applicability of this rule was restricted to the 
 policy, because the slip could not even be given in evidence 
 for any purpose whatever:' but now as the slip, though 
 not a valid contract of sea-insurance unless stamped, may be 
 given in evidence whenever it is material, * the rule becomes 
 applicable to either the policy or the slip, and will probably, 
 in consequence of the state of facts, be more frequently 
 applied to the latter than the former. 
 
 3. A still further limitation of the same rule is, that it 
 only applies where the tendency of the representation is to 
 induce the underwriters to take the risk on lower terms. 
 
 Where the first underwriter was called to prove a repre- 
 sentation made to him, the tendency of which would have 
 been to increase the estimate of the risk, Lord Tenterden 
 decided, at Nisi Prius, that this evidence was not admissible 
 as against a subsequent underwriter.' 
 
 Even under these limitations the English Courts have 
 regarded the rule with great jealousy, and on many occasions 
 have expressed their dissatisfaction with it. Heath, J., on 
 one occasion said, " That the evidence had been admitted 
 rather on precedent than on reason;"^ and Lord EUen- 
 borough — "Whenever the question comes distinctly before 
 the Court, whether a communication to the first underwriter 
 is virtually a notice to all, I shall not scruple to remark, that 
 
 1 Barher ». Fletcher, 1 Doug. 360. 
 
 ' See ante, p. 259. 
 
 ^ Marsden v. Eeid, 3 East, 572. 
 In this case the names of the under- 
 writers appeared in a different order 
 on the policy from that on the slip ; 
 but the slip was not admissible in 
 evidence, as the law then stood, to 
 show that the underwriter to whom 
 a representalion had been made 
 
 stood first in order on the slip 
 though not on the policy. 
 
 * Per Blackburn, J., lonides v. 
 Pacific Fire & Mar. Ins. Co., L. R., 
 6 Q. B. 674, 684, 685. 
 
 ^ Robertson v. Majoribanks, 2 
 Stark. N. P. 503 ; 2 Kuer, Ins. 779. 
 
 « Brine v. Featherstone, 4 Taunt. 
 869. 
 
CHAP. I.J 
 
 TO FIRST UNDERWRITER. 
 
 547 
 
 the proposition is to be received with great qualification : it 
 may depend on the time and circumstances under which the 
 commimication was made ; but on the mere naked, unaccom- 
 panied fact of one name standing first on the policy, I should 
 not hold, that a communication made to him was Yirtually 
 made to all the subsequent underwriters ; "' and his Lordship 
 said, that the question was one of such magnitude, that if it 
 should arise, he should direct it to be put on the record for 
 the opinion of all the Judges.^ 
 
 Of course, if the subscription of the first underwriter is Wiere the 
 . , first under- 
 
 obtamed under a secret agreement, or understandmg, that it writer is a 
 
 is not to be binding, and for the sole purpose of leading duck." ^""^ 
 others to insure, the exhibition of the policy or slip, thus 
 subscribed, is justly regarded as a fraud on the subsequent 
 underwriters, and on that ground as rendering the policy 
 Toid.^ This rule, it is said, would apply to any prior under- 
 writer, though his name may not be first in the policy.' 
 
 ' In Forester v. Pigou, 1 M. & Sel. 
 13. 
 
 ' WLittingham v. Thornburgh, 2 
 Vernon, 206; Wilson v. Ducket, 3 
 Burr. 1361 ; see also the observations 
 of Lord Kenyon in Sibbald v. Hill, 2 
 Dow's P. 0. 262. The first under- 
 
 writer in such cases is called in Eng- 
 land a decoj/ duck ; on the Continent 
 he is termed a dolphin, who leaps 
 from the water that others may 
 foUow ; 1 Emerigon, o. ii. s. 4, p. 43. 
 3 2 Duer, 679. 
 
 NN 2 
 
OHAPTEE II. 
 
 CONCEALMENT. 
 
 Definition 
 and general 
 principles. 
 
 Time of con- 
 cealment. 
 
 Greneral principles - - - 548 
 Concealment 
 
 by agent ... 550 
 
 principals . - - 561 
 
 of facts as to missing ship - 562 
 
 aggravating risk - 570 
 
 presumed known - 579 
 
 waived ... 587 
 
 materiality how proved - 591 
 
 law of election under - - 594 
 
 Concealment, in the law of insurance, takes place at the 
 time of negotiating the contract, and is the suppression of, 
 or neglect to communicate, a material fact within the 
 knowledge of one of the parties which the other has not 
 the means of knowing, or is not presumed to know. Defined 
 in these terms, the law is equally applicable to the assured 
 and the underwriter. 
 
 A material fact in this connection is one which, if commu- 
 nicated to the other of the parties, would induce him either 
 to refrain altogether from the contract, or not to enter into 
 it on the same terms. 
 
 Defined in relation to the assured as the party acting malA 
 fide or negligently, concealment takes place at the time of 
 negotiating the contract, and is the suppression of or neglect 
 to communicate a material fact, which, if communicated, 
 would affect the judgment of a fair and rational underwriter 
 in considering whether he would enter into the contract at 
 all, or enter into it at one rate of premium, or at another.^ 
 
 In order that a concealment should have the effect of avoid- 
 ing the policy, it must have taken place at the time of making 
 the contract ; and for the reasons already stated in respect of 
 
 ^ lonides v. Fender, L. B., 9 
 Q. B. 531 ; Kivaz v. Gerussi, 6 
 
 Q. B. D. 222 ; 1 Parsons, Ins. 495 ; 
 1 Phillips, no. 531. 
 
CHAP. II.J CONCEALMENT. '549 
 
 EepresentationSji the contract is now regarded by the Courts 
 as complete when the slip is initialed hy the underwriter. 
 Consequently, anything coming to the knowledge of either 
 party after that, however material it may be, need not be 
 communicated to the other, notwithstanding a policy has not 
 yet been executed in accordance with the sHp.^ 
 
 As we have seen in the preceding chapter, it is a condition Principles on 
 of this contract, implied by law as a matter of public policy, oealment " 
 that the contract is free from misrepresentation or conceal- po^™ 
 ment ; and if there is a breach of this condition, either by 
 misrepresentation or concealment of a material fact, the 
 contract is void. Fraud in its effect goes beyond the condi- 
 tion ; for if fraud be present in either form, whether of mis- 
 representation or concealment, it avoids the policy, although 
 the subject misrepresented or concealed be not a material 
 fact. 
 
 Each of the parties to this contract owes to the other all 
 such relevant and necessary information as will enable both 
 to enter into a contract of indemnity in respect of the subject 
 to be insured. It is not enough that if either speaks, he 
 must speak the truth substantially; it is required of him 
 that if he know anything which is special and relevant to 
 the contract, he should communicate it to the other. This 
 obligation arises of necessity out of the nature and objects of 
 the contract proposed to be made, and the inequality of 
 information usually existing between the parties relevant to 
 the circumstances of the risk and the subject to be insured. 
 It is therefore received in law as eminently a contract 
 uberrimce fidei. 
 
 It is characteristic of the assured more than of the insurer 
 that all or nearly all the knowledge which he has of a kind 
 available for the purposes contemplated in a contract of 
 marine insurance, is derived from agents and correspondents, 
 
 1 Ante p. 544. 0. P. 179 ; lonides v. Pacific Kre 
 
 ' Cory V. Paton, L. E., 7 Q. B. and Mar. Ins. Co., L. E., 6 Q. B. 
 
 304; LiBhinan v. Northern Marit. 674; 7 Q. B. 617. 
 
 Ins. Co., L. E., 8 C. P. 216; 10 
 
560 CONCEALMENT [PART II. 
 
 and this, whether the ship or goods be at home or in a 
 distant part of the globe. There is no shipowner, no shipper 
 or importer without these agents. No insurer would consent 
 to meet the one or the other for the purposes of business who 
 wanted them. The knowledge which they can supply is the 
 indispensable basis of business of this nature, which without 
 it becomes mere gambling, ruinous in its ultimate conse- 
 quences alike to private and to public interests. It is a tacit 
 condition, therefore, of their meeting that the one of them 
 comes to the other with the latest information respecting the 
 proposed subject of insurance which reasonable dUigence in 
 the use of reasonable means of communication can supply. 
 If there be no information forthcoming notwithstanding 
 important events, the insurer left in ignorance is entitled to 
 make the contract and to rely upon this condition for its 
 defeasance in case the assured against his duty shall have 
 been found chargeable with concealment. 
 
 It is on the principal that the obligation of disclosing the 
 true state of circumstances affecting the proposed subject of 
 insurance up to the latest hour at which communication of 
 intelligence continues to be reasonable, is imposed by law. 
 It is for him to discover the condition of his ship or his cargo 
 at the latest possible moment before he insures it, or anything 
 relating to it, freight or profits, &c., and if his agent or 
 correspondent fails to forward the intelligence, it is the 
 assured that must suffer the consequence in finding his policy 
 invalid. With one, and only one, exception among all the 
 agents and correspondents of the assured, there is no direct 
 legal obligation on them in relation to an insurance effected 
 in the ordinary way unless special appeal be made to them 
 or any of them. In the absence of such a special appeal, 
 within the limit of time up to which information might 
 reasonably be expected by the principal, whether that infor- 
 mation be communicated or not, the knowledge of these 
 agents, since it might in fact have been the knowledge of the 
 assured, must be deemed in law to be his knowledge for the 
 purpose of entering into the contract of marine insurance. 
 
CHAP. II.J BY AGENT. 551 
 
 It is not intended or implied that there is a breach of law or 
 legal obligation committed by these subordinate or distant 
 agents by their not forwarding the proper iatelligenoe within 
 proper time. A breach of duty in their business relations as 
 commercial agents there may be in that case, such as their 
 principal in his commercial capacity may effectually control, 
 check, and even punish. But that there is a breach of the 
 condition of the contract by their principal in his coming to 
 the making of it otherwise than posted up with the latest 
 information reasonably possible relating to the subject of 
 insurance, and ready to communicate the same so far as the 
 objects of the contract may require, is the English law, and 
 of the very essence of universal justice.^ 
 
 If the principal employ a broker to effect the policy for 
 him, he thereby extends his responsibility for all knowledge 
 of the subject possessed by the broker, whether acquired 
 before or during the agency; for he cannot through that 
 agent obtain contract rights that are of a nature inconsistent 
 with the agent's knowledge, since by the constitution of 
 the agency the broker owes his knowledge to his prin- 
 cipal, and in virtue of his principal's duty is bound to 
 communicate his knowledge to the insurer. Such agent, 
 upon finding that his knowledge is hostile to the in- 
 terests of his principal, cannot throw up the agency, con- 
 ceaKng still what he knows, and intending that the policy 
 should be effected through a broker who has not the same 
 knowledge, without thereby putting a fraud upon the insurer 
 through the innocent principal and defeating the validity of 
 the policy so effected. 
 
 Lord Bsher, on the contrary, holds that if the principal and 
 his agent through whom the policy is effected, disclose all 
 knowledge of the subject of insurance and relating to the 
 risk actually possessed by them at the time of the contract, 
 the law is satisfied ; that in the absence of legal obligation 
 upon the agent to communicate his knowledge to the assured 
 
 1 See as to the foregoing proposi- Montefiore, L. E., 2 Q. B. 511, 521, 
 tions, the judgment in Proudfoot v. 522. 
 
652 CONCEALMENT [PART 11. 
 
 or the insurer, no other agent than he through whom the 
 policy is effected can bind his principal by his knowledge if 
 not communicated; and that there is no implied obligation in 
 law upon any other agent to communicate his information. 
 The learned Judge therefore holds that Gladstone v. King, 
 Proudfoot V. Montefiore, and Stribley v. Imperial Marine 
 Ins. Co., cannot be sustained in law.^ 
 
 His Lordship at the same time, rejecting public policy from 
 all connection with the contract as being in no way concerned, 
 gives this account of what must be received as a very 
 factitious origin of the condition attaching to it : — " It seems 
 to me that the only persons who can attach a condition to a 
 contract are those who in fact make the contract. Those who 
 have nothing to do with the making of the contract cannot 
 have anything to do with agreeing to a condition which is to 
 affect the attaching of the contract. He who makes the 
 contract agrees to the condition that it shall riot be binding 
 if he or the person whose alter ego or representative he is has 
 made any misrepresentation, or has been guilty of any con- 
 cealment. This confines the consideration of an agent's 
 conduct to the conduct of the agent by or through whom the 
 contract is made."^ This is a very narrow and unfounded 
 view of the condition attached to the contract, and I think 
 wholly unnecessary to his Lordship's general conclusion on the 
 law of the case ; for it may safely be averred that never in 
 fact, since a contract of insurance was for the first time made, 
 has such a condition been mentioned between the parties or 
 their agents. The law, on the contrary, not leaving this 
 provision to the discretion of the parties or their agents, but 
 with a view to preserving the advantages of marine insurance, 
 and preventing contracts of that nature from becoming mere 
 gambling wagers, implies such a condition from the nature 
 and objects of the contract, but allows the parties, if they 
 think fit, by express terms in the contract to exclude the 
 
 ' Blackburn v. Vigora, 55 L. J. « 55 L. J. (Q. B.) 351. 
 
 (Q. B.) 347. 
 
CHAP. II.J BY AGENT. 653 
 
 condition from attaching, a permission wliicli they are not 
 known ever to have used. 
 
 The case^ in which this discussion arose was as follows : — 
 Blackburn & Co., of Glasgow, finding that a ship on which Blaokbnm v. 
 they were insurers was four or five days overdue, instructed ^^°™" 
 Murison & Co., of the same place, to procure a re-insurance, 
 and they applied to their London agents, Thompson & Co., 
 for that purpose. One hour later on the same day, Murison 
 was informed of facts tending to show that the ship had been 
 lost some days previously. Soon after came the reply from 
 London, quoting a higher rate than the limit fixed. Murison 
 showed the plaintiffs the reply, and then, without communi- 
 cating to them the information as to the loss, telegraphed in 
 the name of the plaintiffs to London, and thus put the 
 plaintiffs in direct communication with their agents in 
 London, thereby terminating Murison's connection with the 
 business. Re-insurances to the amount of 800/. were effected 
 in London the same afternoon ; but as rates continued to 
 rise, the plaintiffs closed their communications with Thompson 
 & Co., and next day through their own brokers, Roxburgh & 
 Co., in London, effected the policy with the defendant Vigors. 
 Up to this time both Vigors and the plaintiffs Blackburn & 
 Co. were ignorant of any material information about the ship. 
 Lord Esher held upon that state of facts, that as Murison's 
 agency was terminated before the policy was effected with 
 the defendant, that policy was not invalidated by the 
 knowledge acquired and not communicated by Murison 
 whilst he was the plaintiff's agent. The other members of 
 the Court, Lindley and Lopes, L. JJ., accepting the previous 
 decisions of the English Judges, referred to and dissented 
 from by Lord Esher, as being well founded in law, and 
 advisable in public policy for the prevention of fraud, held 
 that the contract was void by reason of the concealment of a 
 material fact known to Murison whilst his agency for the 
 plaintiffs continued. 
 
 1 Blackburn v. Vigors, 55 L. J. (Q. B.) 347. 
 
554 CONCEALMEKT [PART II. 
 
 Lindley, L. J., says, " It appears to me to be established 
 by tbe cases to which I have referred, that in order to prevent 
 fraud and wilful ignorance on the part of persons efEectiag 
 insurances, no policy can be enforced by an assured who has 
 been deliberately kept in ignorance of material facts by some 
 one whose moral, if not legal, duty it was to inform him of 
 them, and who has been kept in such ignorance purposely ia 
 order that he might be able to effect the insurance without 
 disclosing those facts." ^ 
 
 ProudfootK. Ill the case of Proudfoot v. Montefiore, the plaintiff, in 
 Montefiore. Manchester, employed an agent at Smyrna, who purchased 
 and shipped for him there a cargo of madder, of which he 
 advised him on the 12th January, and forwarded the 
 shipping documents on the 19th. The ship sailed on the 
 23rd of that month, and went ashore the same day, whereby 
 there was a total loss of the cargo. Next day the agent had 
 intelligence of the loss, and might have telegraphed the 
 casualty to his principal immediately, but refrained on 
 purpose that his principal might insure the cargo. On the 
 
 1 55 L. J. (Q. B.) 358. and ends that Buoh agents in oom- 
 
 I have cited the words of Lindley, merce are appointed to serve, — I 
 
 L. J., for the purpose of showing his have ventured to desorihe as a mere 
 
 view of the kind of obligation which, businessduty, anyf ailure inwhiohcau 
 
 as I understand him, he considered be effectually and promptly checked 
 
 binding on Murison or any agent in by the principal. On the principal, 
 
 the relation which he sustained under therefore, it is no injustice to lay 
 
 the circumstances of the case before the legal duty, and the consequent 
 
 the Court ; but as in no way ex- loss which accrues from failure in 
 
 pressing his Lordship's view of the that duty. I cannot but think with 
 
 nature of the obligation under which all the English Judges, who in later 
 
 commercial agents and correepon- times have delivered their opinions 
 
 dents generally are bound to com- from the Bench, that if the law 
 
 municate important events affecting shall be determined in accordance 
 
 the property of their principals. with the opinion of Lord Esher, ex- 
 
 This latter obligation I have ven- pressed in Blackburn v. Vigors, 
 
 tured, on the authority of Proudfoot marine insurance will become a con- 
 
 V. Montefiore, and from oonsidera- tract ttberrima fraudit, and the 
 
 tion of the nature and purposes of Judge's function in respect of it, the 
 
 the contract of marine insurance helpless concession of their demands 
 
 taken in connection with the general to the fraudulent parties, 
 commercial law, and the purposes 
 
CHAP. II.] BY AGENT. 556 
 
 26th, which was the earliest post-day for England, he 
 announced the loss to his principal hy letter. Meanwhile, 
 before the arrival of that letter, hut after the loss had heen 
 posted on Lloyd's Lists, the principal effected an insurance 
 on the cargo. It was held, that the policy was void on the 
 ground of concealment of material facts with a fraudulent 
 intention by the agent. ^ 
 
 " The impKed condition on which the underwriter under- 
 takes to insure, — not only that every material fact which is, 
 but also that every fact which ought to be, in the knowledge 
 of the assured shall be made known to him — was not ful- 
 filled ; and as was said by the Court in Fitzherbert v. Mather, 
 where a loss must fall on one of two innocent parties through 
 the fraud or negligence of a third, it ought to be borne by 
 the party by whom the person guilty of the fraud or negli- 
 gence has been trusted or employed"^ The Court con- 
 tinued: — "By thus holding we shall prevent the tendency 
 to fraudulent concealment on the part of masters of vessels 
 and agents at a distance, in matters on which they ought to 
 communicate information to their principals, as also any 
 tendency on the part of principals to encourage their servants 
 and agents so to act." 
 
 In the course of their judgment the Court, besides review- Buggies v. 
 ing the English decisions and approving of them, considered interest Ins. 
 the American ease of Euggles v. Greneral Interest Ins. Co.,^ 
 before Mr. Justice Story, and expressed their disapprobation 
 of the decision, and of the reasoning by which the learned 
 Judge supported it. In that case, on the 9th February the 
 assured, resident at Newport, Ehode Island, effected a policy 
 in Boston on the sloop Harriet for six months ia the coasting 
 trade of the United States. That vessel had sailed on the 
 12th January previous, and was totally lost on Cape Hatteras 
 on the 19th of the same month, and between that date and 
 the date of the policy, the master had purposely refrained 
 
 1 Proudfoot V. Montefiore, L. E., ' L- R-, 2 Q. B. 522. 
 
 2Q. B. 511. 3 4 Mason, 74. 
 
556 CONCEALMENT [pART II. 
 
 from communicating the loss to her owner in order that he 
 might have time to insure. The learned Judge in the face 
 of these facts sustained the validity of the policy, and his 
 reasoning in support of the decision has been revived and 
 adopted in England by the Master of the Rolls in the recent 
 case of Blackburn v. Vigors. Mr. Justice Story's decision 
 was sustained on appeal in the Supreme Court, not only on 
 the ground that the master was not an agent for the purpose 
 of effecting the insurance, but also on the extraordinary 
 ground that by the loss of the vessel the master had ceased 
 to be the agent of the assured.^ 
 
 An exception A question that has received but little attention hitherto, 
 made by the although involved as the ratio decidendi in two English cases, 
 iiSffes. ^^ ^y ^^® criticism of the Master of the Rolls become too 
 
 emphatic to be dismissed with mere mention of the judicial 
 preference for one view of it rather than another. Suppose 
 that a commercial agent of the assured should omit, contrary 
 to his business duty, but without fraudulent' purpose, any 
 mention of a material fact relating to the subject of insur- 
 ance, and as a direct consequence of this omission no mention 
 is or can be made of it by the innocent principal in procuring 
 the policy ; what is the effect in law upon the policy so pro- 
 cured? Merely, said Lord Ellenborough, the implied ex- 
 ception from the policy of the average loss resulting from 
 the facts omitted from mention by the agent.^ I prefer the 
 opinion, said Blackburn, J.,' that where there is no fraud on 
 the part of the agent, the policy is not void, save in respect 
 of the average loss not mentioned. The learned Judge and 
 Lush, J., go thus far in their judgment; Quain, J., their 
 colleague, on the contrary — "All we need say is that the 
 question was not taken at Nisi Prius, otherwise it might 
 have been necessary to take the opinion of the jury as to the 
 materiality of the omitted communication." 
 
 But perhaps the most extraordinary thing in relation to this 
 
 1 12 Wheaton, 408. 3 strfbley v. Imperial Mar. Ins. 
 
 "^ aiadstone v. King, IM. &Sel. 35, Co., L. R., 2 Q. B. 507. 
 
CHAP. If.] BY AGENT. 657 
 
 question is exhibited in the judgment of the Court in Proud- 
 foot V. Montefiore; for after expressing their opinion that 
 Gladstone v. King was well decided, they f oUow that opinion 
 up with language which is wholly subversive of the decision 
 so approved of, in so far as that decision sustained the validity 
 of the policy, notwithstanding the concealment of a material 
 fact. They say,^ " If an agent whose duty it is, in the ordi- 
 nary course of business, to communicate information to his 
 principal as to the state of a ship and cargo omits to dis- 
 charge such duty, and the owner, in the absence of informa- 
 tion as to any fact material to be communicated to the 
 underwriter, effects an insurance, such insurance will be void, 
 on the ground of concealment or misrepresentation. The 
 insurer is entitled to assume, as the basis of the contract 
 between him and the assured, that the latter will communi- 
 cate to him every material fact of which the assured has, or 
 in the ordinary course of business ought to have, knowledge ; 
 and that the latter wUl take the necessary measures, by the 
 employment of competent and honest agents, to obtain 
 through the ordinary channels of intelligence in use in the 
 mercantile world, all due information as to the subject- 
 matter of insurance. This condition is not complied with 
 where, by the fraud or negHgence of the agent, the party 
 proposing the insurance is kept in ignorance of a material 
 fact, which ought to have been made known to the under- 
 writer, and through such ignorance fails to disclose it." 
 
 This language, in perfect accord with which the several pro- 
 positions to be found near the commencement of this chapter 
 have been laid down, gives full effect to the concealment of 
 a material fact, although it originate with a mere irrespon- 
 sible agent, and he has in it no fraudulent purpose ; and it 
 properly lays the effect of the concealment as if the sole fact 
 of the concealment, together with the duty of disclosure, were 
 on the principal in negotiating the policy. It were vain 
 labour here to conjecture what might have been in the miad 
 
 > Proudfoot V. Montefiore, L. E., 2 Q. B. 511, 521. 
 
658 CONCEALMENT [pART II. 
 
 of Lord EUenborough or of Lord Blackburn in giving the 
 effect of law to the opinion which they expressed in the cases 
 that foUow. 
 
 Gladstone v. In Grladstone v. King,' the vessel had been driven on the 
 ™^' rocks in Manchineal harbour, Jamaica, and got off again, 
 
 seemingly without injury ; and the master, with no fraudu- 
 lent intent, omitted to mention it in his correspondence with 
 his owner; but on arriving home, the vessel was examined 
 and found to have sustained damage from the rocks to the 
 extent of 15 per cent. Lord BUenborough and the rest of 
 the Court held, that the policy was not void, but that the 
 partial loss, the only claim in the action, was an implied 
 exception out of the poHoy. Such a decision was admitted 
 by the learned Chief Justice to be a novelty, as Scarlet at the 
 bar had asserted it to be. The effect of it in respect of the 
 assured was, that he neither recovered his loss nor got back 
 his premiums. The insurer retained his premiums though 
 there had been no fraud, the only meaning of that being 
 that it was held a valid policy, but did not cover the partial 
 loss. As there was no other loss, nor hazard of further loss 
 happening, no wrong could arise to the insurer. But then 
 to accept this judgment as involving a general principle and 
 to apply it to other cases not exactly similar in facts and 
 circumstances, would be not to judge of facts, but to speculate 
 about the tmknown, whether subsequent losses were or were 
 not the consequences of the average loss that had been con- 
 cealed. 
 
 Stribley v. In a more recent case^ before the Queen's Bench Division, 
 
 fXtX X i PT1 51.1 ^rf"3,r 
 
 Ins. Co. the ship whilst lying off Mazagan, in an open roadstead, the 
 
 usual place of loading, had been driven out to sea by a 
 hurricane from her anchorage with loss of her anchor and 
 chain ; but no mention of this had been made by the master 
 in a letter written to his owner a week after it had happened, 
 and consequently no mention was made of it by the owner to 
 
 ' 1 M. & Sel. 35. 
 
 2 stribley v. Imperial Mar. Ins. Co., 1 Q. B. Div. 507. 
 
CHAP. II.] BY AGENT. 559 
 
 the underwriter at the time of effecting the policy. This 
 was the last letter the owner had from the master, and the 
 ship after leaving Mazagan was never again heard of. The 
 Court, as to the total loss, sent the case to a second trial on a 
 question of concealment hy the owner himself, which will 
 come under notice separately ; hut as to this partial loss of 
 the anchor and chain, they held, following Q-ladstone v. King, 
 that in the ahsence of fraud on the part of the master in 
 suppressing all mention of it, the loss was not covered by 
 the policy, though the policy was not thereby rendered void. 
 At the same time they refused to enter the verdict for the 
 defendant, even as to the partial loss, as it might be the 
 subject of further investigation at the new trial. 
 
 What was the eilect of the hurricane upon the vessel 
 which drove her out to sea, whether she did not return to her 
 anchorage a mere wreck, only hanging together sufficiently 
 to take in the rest of her cargo, but ready to founder in the 
 first dirty weather she met with, or whether the loss of her 
 anchor and chain did not contribute to her total loss, are 
 possibilities which cannot be proved or disproved, which yet 
 Lord Blackburn assumes to be all one way, and this not only 
 without the shadow of a principle to justify him, but in 
 defiance of the principle that concealment in one material 
 point, apart from fraud, vitiates the whole policy. 
 
 If an agent, in ignorance of a loss, efEect insurance for his 
 principal who knew of the loss, but not in time to counter- 
 mand the policy, it is not void by reason of the non- 
 communication. If a principal, knowing of the loss, efEect 
 insurance through an agent who was ignorant of it, this 
 concealment of the fact of loss vitiates the policy.^ 
 
 The underwriter, equally as the assured, is bound to dis- Concealment 
 close all circumstances, peculiarly within his own knowledge, -j^ter. ™ ^" 
 in any degree aifecting the risk ; and, therefore, if at the 
 time of subscribing the policy, he know that the ship has 
 arrived safe, the contract is void as to him, and the premium 
 
 1 Valin, Kv. 3, t. 6, art. 40, p. 95. 
 
560 
 
 CONCEALMENT 
 
 [part II. 
 
 may be recovered back.^ Moreover, when he underwrites by 
 means of an agent, he does so subject to the law of principal 
 and agent already considered. 
 
 Two points 
 determimng 
 the nature of 
 the assured's 
 communica- 
 tiona. 
 
 Seaman v. 
 Fonnereau. 
 
 Lynch v, 
 Hamilton, 
 
 It is the duty of the assured to communicate to the under- 
 writer all the intelligence he has that may affect the mind of 
 the underwriter as to either of the two following points: 
 1st, whether he will take the risk at all; 2nd, at what 
 premium he will take it. 
 
 This is a duty attaching at the time of effecting the 
 insurance, and not at all dependent on subsequent events,* 
 for the effect of a concealment on the policy is determined 
 not by its eventual relation to the nature of the risk, but 
 with reference to its immediate influence on the judgment of 
 the underwriter. For so is the law, that were the inteUigenoe 
 concealed to turn out to be whoUy unfounded, or the loss to 
 arise from a cause totally unconnected with the fact concealed, 
 the policy is nevertheless void. 
 
 The agent of the assured, before effecting the policy, held 
 a letter from the captain of another ship stating that he had 
 been in company with the ship insured, and lost sight of her 
 all at once at twelve o'clock at night, — that she had been 
 reported leaky by her captain the day before, — and thai a 
 hard gale had ensued the day after. It was held that this 
 intelligence ought to have been communicated to the under- 
 writer, and that the policy was void by reason of its suppres- 
 sion ; yet in point of fact the inference suggested by the 
 intelligence turned out to be unfounded, and the ship was 
 lost, not by perils of the sea, but by capture, and that not 
 till a week after the period to which the letter referred.' 
 
 A policy was effected on goods on board "ship or ships" 
 
 ' Per Lord Mansfield, in Carter v. 
 Boehm, 1 "W. Bl. 594 ; 3 Burr. 1909. 
 See also 3 Beueoke, System des Asse- 
 oiiranz, o. x. pp. 90, 91. 
 
 * See the dicta of Mansfield, C. J., 
 Lynch v. Hamilton, 3 Taunt. 37, 44, 
 and of Lord Ellenborough, Lynch v. 
 
 Dunsford, S. C. in error ; 14 East, 
 494, 497 ; and of the Court in Strih- 
 ley V. Lnperial Mar. Lis. Co., 1 Q. 
 B. D. 507. 
 
 ' Seaman v. Fonnereau, 2 Str. 
 II83. 
 
CHAP. II,] OF WHAT SHOULD BE DISCLOSED. 361 
 
 from the Canary Islands to London, by an agent of the 
 assured, who at the time knew that a portion of the goods to 
 be insured were on board The President, and also that The 
 President had been reported at Lloyd's, as at sea, deep and 
 leaky. He did not inform the underwriter that The President 
 was one of the ships connected with the proposed risks, so 
 that the underwriter had no means of applying the intelli- 
 gence existing at Lloyd's. Under these circumstances the 
 Court of Common Pleas held, and the Court of King's Bench 
 aflBrmed their decision, that the suppression of this fact by 
 the assured vitiated the poHcy, notwithstanding it turned out 
 that the intelligence at Lloyd's was unfounded, The President 
 never having been deep or leaky on any part of the voyage 
 insured, and that she was lost, not by perils of the seas at 
 all, but by capture, which occurred three weeks after the 
 period referred to in Lloyd's intelligence.^ 
 
 The result, therefore, is, that every concealment by the Result of the 
 assured of a material fact, whether by design or mistake, 
 avoids the policy; and that it has this effect, although the 
 intelligence suppressed should ultimately turn out to be 
 imtrue, or the loss to have arisen from a cause quite different 
 from that which the intelligenee, if communicated, might 
 have given reason to apprehend. 
 
 The practical rule for policy brokers and other agents, Practical rule 
 
 TOT* nrofeprfi 
 
 consequently, is to disclose to the underwriter all they know 
 respecting the proposed adventure, and not to exercise their 
 own judgment as to the materiality of any part of the 
 information they possess; for if they do not disclose the 
 whole, and what is kept back appears to the Court to be 
 material, the policy will be avoided, though the concealment 
 was without any intention of fraud, and arose merely from 
 an error of judgment.^ 
 
 If fraud enter into the contract it vitiates the policy, Eraud. 
 whether the thing concealed be material or otherwise. 
 
 1 Lynch V. Hamilton, 3 Taunt. 37 ; ^ See . per curiam, in Shirley v. 
 
 Lynch v. Dunsford, 14 East, 494, Wilkinson, 1 Doug. 306, note. 
 S. C. in error. 
 
 M. 
 
562 CONCEALMENT [PART II. 
 
 A series of four open policies on fruit and produce from 
 Greece and the Ionian Islands to Liverpool or London "by 
 ship or ships " was effected at several sucoessive dates in the 
 year 1875, the one to follow and succeed the other of them 
 seriatim. At the time of effecting the later two of these 
 policies respectively, declarations of shipments had been made 
 on the earlier two of the four policies, but they remained 
 unexhausted to a large amount in consequence of the ship- 
 ments having been declared very much under their real 
 value. It was after the safe arrival of the respective cargoes, 
 and to enable the assured to place other cargoes under pro- 
 tection of the premiums already [exhausted by previous ship- 
 ments, that these declarations under value were made. In 
 this state of facts there was a total loss of a large shipment 
 of produce sunk in the Thames, which was declared on the 
 apparently unexhausted policies, and on the policies which 
 had been effected to follow. The jury, having regard to the 
 effect of what seemed to be the unexhausted state of the 
 earlier policies in inducing the underwriters to subscribe the 
 later policies, found that the declarations under value wera 
 a material fact which had been fraudulently concealed at the 
 time of negotiating the two later policies, and the Court of 
 Appeal sustained their finding.^ 
 
 Time of saU- The time of the ship sailing, or the time of her being last 
 laft heard of . heard of , are facts which, one or other, must enter into and 
 form part of every conceivable case. But whether in any 
 particular ease, this or that, as it happens to be, is a material 
 fact to be disclosed on occasion of proposing to insure, is 
 often a question of critical and perplexing difficulty. The 
 criterion of the materiality of any fact has been abeady 
 stated. Beyond this, it seems that nothing more definite 
 can be laid down. What seemed to be a more definite rule, 
 laid down by so high authority as Tindal, 0. J., must now be 
 considered as set aside. 
 
 ' Rivaz V. Gernssi, 6 Q. B. D. 222. 
 
CHAP. ll.J AS TO MISSING SHIP. 563 
 
 That learned Judge, in Elton v. Larkins,! said:— "The 
 law clearly is, that a party is not bound to communicate the 
 time of sailing of a ship, unless at the time of effecting the 
 policy the ship is what is called a. missing ship. If the 
 underwriter inquires and a false answer is given, that will 
 vitiate the policy ; but it is not generally necessary d priori 
 that the assured should communicate the time of sailing." 
 
 Except what relates to the false answer, every part of this 
 statement may now be considered to be effectually impugned 
 by the following oases : 
 
 A poKcy on ship " at and from Mazagan " was effected by Stribley v. 
 the plaintiff on the 24th of February, who, at the time of 1118^00! 
 effecting it, made no mention of a letter received by him on 
 the 24th of January, from the master of the ship, dated the 
 9th of January, and stating that he had had a fine passage 
 but, that he had commenced loading, but had very bad 
 weather and did not know when he would finish ; he would 
 write again. The master never did write again ; and the 
 ship after sailing from Mazagan was never again heard of. 
 The main question put to the jury by Grove, J., following 
 the above authority of Tindal, C. J., was, whether the ship 
 was, at the time of effecting the policy, an overdue ship? 
 The jury found in the negative, and gave a verdict for the 
 plaintiff. But the defendant moved for a new trial on the 
 ground of misdirection. The Court, Blackburn, J., presiding, 
 held that the proper question had not been put to the jury, 
 and said that the proper question was, whether the contents 
 of the master's letter, the dates at which it had been written 
 and received, and the time that had elapsed since anything 
 had been heard of the vessel, were not facts which might 
 properly have influenced the underwriter as to the accepting 
 of the risks. "I think," said Blackburn, J., "the test is 
 whether a fair and reasonable underwriter, looking at this 
 letter and the circumstances under which it was received, 
 
 » Elton V. Larkins, 6 C. & P. 392. 
 
 oo2 
 
564 
 
 CONCEALMENT 
 
 [part II. 
 
 Batoliffe v. 
 Shoolbied. 
 
 M'Andre-w v. 
 BeU. 
 
 Webster i>. 
 Foster. 
 
 would say, ' I think this is a speculative risk, which I will 
 either decline to take, or, if I do take it, it shall be at 
 a greater premium than is usual.' " * 
 
 A shipowner, on the 22nd of February, having informa- 
 tion that his ship had sailed from the coast of Africa on the 
 2nd of October, directed his broker, " as the ship had been 
 rather long, and he did not think it prudent to run so large 
 a risk at so critical a time," to effect an insurance on her 
 "at and from the coast of Africa to the West Indies;" 
 adding, " "We expect to hear from her soon ; " and ordering 
 the broker to communicate to the underwriters "that the 
 ship was on the coast on the 2nd of October," but saying 
 nothing of her having sailed on that day. There was here 
 an implied misrepresentation, and an express concealment, 
 which the Court held to be fatal to the policy.'' 
 
 So, where the owner, on the 24 th of November, received 
 a letter from Lisbon, written on the 8th of November, in- 
 forming him that the ship was then ready to sail from that 
 port, but did not effect an insurance on her until the 2nd of 
 December, after the arrival from Lisbon of another vessel 
 which had sailed at the same time as the ship insured, and 
 even then did so without communicating to the underwriters 
 the letf er he had previously received ; Lord Eenyon held that 
 the keeping back this letter avoided the policy.' 
 
 AU ships sailing to the Baltic before the abolition of the 
 Sound dues, used to touch at Elsinore to pay these dues, and 
 were entered in a list called the Sound List: the voyage 
 from Liverpool to Elsinore could then be performed in from 
 fourteen to eighteen days, and the list be brought to England 
 in ten or twelve ; so that, in thirty days, at the most, it could 
 be known here whether a ship sailing from Liverpool had or 
 had not touched at Elsinore. Hence, where an insurance was 
 effected on the 23rd of October, on a ship from Liverpool to 
 
 1 StriUey v. Imperial Mar. Ins. 
 Co., 1 Q. B. Div. 507. 
 » Ratoliffe v. Shooltred, 1 Mar- 
 
 shall on Ins. 466. 
 ■' M'Andrew v. Bell, 1 Esp. 373. 
 
Grlover. 
 
 CHAP. I1.J AS TO MISSING SHIP. 565 
 
 the Baltic, and it appeared that the ship had sailed from 
 Liverpool on the 7th of September, or more than six weeks 
 (forty-six days) before the policy was effected, and no news, 
 had been heard of her down to that time. Lord Kenyon told 
 the jury that the plaintiffs, at the time the poHcy was effected,, 
 must have suspected the ship to be a missing ship, and ought 
 to have communicated to the underwriter the time of her 
 sailing.i 
 
 It was remarked in this ease by his Lordship as a sus- 
 picious circumstance, that, though the plaintiffs were ia 
 London at the date of the policy, and could have effected it 
 there, they chose to get it effected at Hull. It also appeared 
 that the underwriters inquired of the broker the time of 
 the ship^s sailing, and that he told them he knew nothing 
 about it, having no information from the plaintiff on the 
 subject. 
 
 The voyage from Berderygge to London was often per- waies v. 
 formed in four or five days, and, when the weather was not 
 favourable, in about ten days. On the 13th of December, the 
 consignees in London received from the shipper of the goods 
 in Berderygge a letter, dated the 30th of November, and 
 containing these words: "I think the captain will sail to- 
 morrow ; but should he not be arrived in your port, be so 
 kind as to make the insurance as low as you possibly can on 
 my account." 
 
 The consignees accordingly effected an insurance on the 
 goods " from Berderygge to London," on the 14th of Decem- 
 ber, the day after receiving this letter, and without communi- 
 cating it to the underwriters. It turned out that the ship 
 did not, in fact, sail till the 24th of December ; yet the Court 
 held the suppression of the letter to be a fatal concealment. 
 Though the jury had found for the plaintiff, on the ground 
 that the concealment was not material, the Court sent the 
 case down for a new trial, and then a verdict was given for 
 the defendant.^ It appeared moreover to the Court, from the 
 
 1 Webster v. Foster, 1 Esp. 406. 14. I submit in this case (and that 
 
 ' WiUes V. Glover, 1 B. & P. N. E. on the high authority of Maule, J., 
 
566 
 
 CONCEALMENT 
 
 [part II. 
 
 Bridges v. 
 Hunter, 
 
 Foley V. 
 Holine. 
 
 terms of the ehipper's letter, that in his opinion a high 
 premium would probably be exacted if the ship had not 
 arrived before his letter ; the letter, therefore, seemed to them 
 material to be communicated to the underwriters, with,a view 
 to the premium, 
 
 An insurance was effected on the 12th of November, on 
 wines by The Stag, " at and from Oporto to Liverpool," " to 
 return four guineas per cent, for convoy and arrival." 
 Twelve days before effecting this insurance the plaintiff had 
 received two letters, written from Oporto, one on the 11th 
 of October, stating, "We are loading the wines on board 
 T/ie 8tag, Captain Whatley, who pretends to s&.il after to- 
 morrow;" the other, dated the iJrth of October, enclosing 
 the bills of lading, which were filled up with the words 
 "With convoy." Neither of these letters was communi- 
 cated to the underwriters. The Stag did sail on the 13th 
 of October, but failing to come up with convoy, was obliged 
 to put into Lisbon. The convoy with which she ought to 
 have sailed arrived in London before her on the 31st of 
 October, and on the 1st of November a list of the ships that 
 had sailed with it was entered at Lloyd's, in which the name 
 of The Stag was not included. Lord EUenborough told the 
 jury that the question was, whether a disclosure of these 
 letters would probably have varied the judgment of the[ 
 underwriter so as to have induced him either to decline 
 subscribing the policy, or to demand a higher premium ; a,nd 
 if so, that they were material letters to be communicatedj 
 The jury, notwithstanding, found a verdict for the plaintiff; 
 but the Court, thinking they had come to a wrong conclusion 
 on the facts, granted a new trial.^ 
 
 The non-communication of a letter, showing that a vessel 
 
 in Mackintosh v. Marshall, 11 M. & 
 W. p. 119), as I have done in that of 
 Eiokards v. Murdook, post, p. 568 
 note, — that the only illegal suppres- 
 sion -was of the date of the expected 
 sailing ; and that if that date had 
 baen communicated, the letter, con- 
 
 taining besides only an expression of 
 opinion or of apprehension founded 
 on nothing that was unknoim to the 
 underwriter, ought not to have been 
 shown, 
 
 1 Bridges ti. Hunter, 1 M. & Sel. 
 14, 
 
CHAP, n.] AS TO MISSING SHIP. 567 
 
 ■was out only nine days on the voyage from Youghal (in 
 Ireland) to "Weymouth, which usually was a voyage of eight 
 or ten days, was held not such a concealment as would avoid 
 the policy.^ 
 
 A policy was effected at Whitehaven on the 8th January, Littiedale v. 
 upon the ship Cumberland, " at and from Barhadoes to "'^'^°'^' 
 Liverpool," in consequence of a letter of orders from a 
 Liverpool hroker, in which he said, " The Cumherland, we 
 expect, will have taken her departure from Barhadoes on the 
 26th of Novemher; The Barton sailed on the 24th, and 
 arrived at Liverpool last Sunday (the 5th January), hut she 
 is coppered, and a remarkahly fast vessel." This letter was 
 shown to the underwriters at the time of effecting the policy ; 
 hut it was not communicated that the ship Agreeahk, also 
 coppered and remarkably fast, which had left Barhadoes on 
 the 29th Novemher, had arrived at Liverpool on the 5th of 
 January. The Cumberland was not coppered, was full built, 
 and a slow sailer, and was not considered a missing ship at 
 the time the letter of orders was written. Upon these facts 
 the jury found for the plaintiff, and the Court of Common 
 Pleas refused to disturb the verdict.^ 
 
 An insurance was effected on the ship Fanny, " at and Elton v. 
 from Cadiz to London," on the 29th of December, at which 
 time the plaintiff held a letter stating that she was to sail 
 on the 22nd of November; but this letter was not com- 
 municated to the underwriter. It was in this case that 
 Tindal, C. J., laid down the doctrine cited above,' which is 
 no longer the doctrine of , the English Courts, and accordingly 
 put it to the jury as the main question in the cause, whether 
 The Fanny, having been thus out thirty-seven days from 
 Cadiz to London at the time of effecting the policy, could 
 fairly be called a missing ship, and the jury having found 
 
 ' Foley V. Moline, 5 Taunt. 430 ; 1 Judge Duer, for very good reasons, 
 
 Marshall's Rep. 117, 8.C. upholds its authority (Marine Ins. 
 
 « littiedale v. Dixon, 1 B. & P. Tol. ii. pp. 544, bib). 
 
 N. E. 151. Although Mr. Marshall ^ Siipra, p. 563. 
 thinks this case -wrongly decided, 
 
56& 
 
 CONCEAhMENT 
 
 I^PAET II. 
 
 Eiokards v. 
 Muidock. 
 
 Westbiiiy v 
 Aberdein, 
 
 for the plaintiff, tlie Court refused to disturb their verdict.^- 
 This case must now be regarded as no longer of any 
 authority. 
 
 A merchant at Sydney consigned goods to England by 
 The Cumberland, (sailing from Sydney about the end of 
 April, and to sail from Van Diemen's Land about the last 
 week in May,) and sent by The Australia (which sailed from 
 Sydney the 20th of May) an order to insure, directing hia 
 London agents to wait thirty days after the arrival of 
 The Australia before effecting the insurance on The Cum- 
 berland, in order to give the latter ship every chance of 
 arriving. This order by The Australia was retained for 
 thirty-six days, and as The Cumberland had not then 
 arrived, although two ships had in the meantime come in 
 which left Sydney after The Australia, they procured an 
 insurance, not informing the underwriters when, or by what 
 ship, the order to insure had arrived, nor how long and why 
 they were to wait before effecting the policy. The jury found 
 this a material concealment, and the Court refused to disturb 
 their verdict, being of opinion that both these facts ought to 
 have been communicated to the underwriters.^ 
 
 Two ships. The Fruiter and The King George, sailed from 
 Malaga for London, the first on the 9th of October, the 
 second on the 10th ; both ships were frequently in sight of 
 each other till the 21st of October, on which day The Fruiter^ 
 
 1 Elton V. Larkins, 5 0. & P. 85, 
 385 ; 8 Bing. 198. 
 
 2 Kiokardsj). Murdook, 10 B. & Cr. 
 527 ; see S. 0. at N. P. ; Danson & 
 LI. 221, and LI. & Wels. 132. 
 
 Sed quaere as to tlie part of the 
 letter which required the delay, and 
 stated the reason. No one can doubt 
 its haying an effect, a most prejudicial 
 effect ; but it is not on that ground, 
 surely, a proper subject of discovery, 
 since it would be the occasion of 
 blind prejudice, and therefore an 
 impediment to the exercise of sound 
 judgment. 
 
 The counsel for the underwriter 
 argued, in accordance with this 
 opinion of the Court in another case, 
 where the circumstances were some- 
 what similar [Mackintosh v. Marshall, 
 11 M. & "W. p. 119]; but Maule, J., 
 presiding at the trial, in addressing 
 the jury said, — "Another ground 
 has been a good deal relied on by the 
 defendant, namely, the direction not 
 to insure until a reasonable risk had 
 been run. In my opinion that is not 
 a circumstance which the assured is 
 bound to communicate." See Bell ii. 
 Bell, 2 Camp. 475. 
 
CHAP. II.] AS TO MISSIKG SHIP. 569 
 
 off Oporto, parted company with The King George in a gale. 
 The Fruiter arrived in London on the 30th October, and upon 
 knowledge of these facts the plaintiff on the 3rd of Novemher 
 effected a policy on The King George " at and from Malaga 
 to London," informing the underwriter of the time of sailing 
 from Malaga, but not that The Fruiter had seen The King 
 George off Oporto on the 21st. The King George was lost in 
 the chops of the channel on the 25th of October. Under the 
 direction of Lord Abinger, that the fact of The Fruiter having 
 seen The King George off Oporto was not material to be 
 communicated, the jury found for the plaintiff. The Court, 
 however, granted a new trial, holding that the question of the 
 materiaKty of these circumstances ought to go to the jury.^ 
 
 A bill drawn at SevUle on the 11th of January for the ElHn v. 
 disbursements at that port, and sent thence on the 17th, *'^®°' 
 which arrived in London on the 31st, was held to be material 
 in respect of these dates, and ought not to have been 
 concealed by the broker at the time of effecting a policy on 
 the ship in question on the 21st of February.^ 
 
 The ship Ocean sailed from Elsinore for Hull in rough Kirby*. 
 weather, on the 26th of July; six hours after, her owner "" ' 
 sailed from Elsinore foi' Hull in another ship. This was a 
 voyage sometimes of four or five days, but on the average 
 of eight or ten. Owing to tempestuous weather, the owner 
 of The Ocean did not arrive at Hull till the 9th of Augiist, or 
 fourteen days after leaving Elsinore ; and then, finding The 
 Ocean had not arrived, he immediately caused his broker to 
 effect an insurance on her " at and from Elsinore to Hull, 
 from the 26th July inclusive." The broker, at the time of 
 effecting this policy, did not communicate any more of the 
 above facts than that The Ocean was " all well at Elsinore on 
 the 26th of July." The Court held that this was a conceal- 
 ment fatal to the policy .^ 
 
 A Liverpool merchant, on whose account a quantity of Mackmtosli v. 
 ^ 1 ./ MarshaU. 
 
 • 1 Westbury v. Aberdein, 2 M. & 655. 
 
 W. 267. ^ Kirby v. Smith, 1 B. & Aid. 
 
 2 Eliin V. Jansen, 13 M. & W. 672., 
 
570 CONCEALMENT [PART II. 
 
 train oil was to be shipped at St. Jolin's, Newfoundland, on 
 board The Elizabeth, wrote on tbe 27tli of January to his 
 brokers in London to effect an insurance, telling them " that 
 he had advices from St. John's of the 27th of December, of 
 the train oil being shipped for him on board The Ulizabeth, 
 to sail the end of the month." The real facts were : — 1st. 
 That he had received no advices of that date from St. John's, 
 but had been merely told, that intelligence from St. John's 
 down to the 27th had come to hand, which made no mention 
 of the sailing of The Elizabeth ; and 2nd. That before giving 
 the order to insure, he had received two letters from St. 
 John's, both dated the 24th of December, but the second 
 not sent till the 30th, in the first of which his correspondents 
 stated that The Elizabeth was to sail on the 25th, that she 
 was a new vessel, that he might endeavour to save the 
 insurance by giving three or four days, according to the state 
 of the weather in England ; and in the second they said, 
 " You can allow her from sixteen to twenty days : You can 
 run a reasonable risk to save the insurance, but all will 
 depend on the state of the weather." The insurance having 
 been effected on the 27th January, solely on the letter of 
 instructions sent to the broker, the Court were clearly of 
 opinion, that these facts showed both a positive misstatement 
 and a material concealment, either of them sufScient to 
 avoid the policy .^ 
 
 Concealment In a time of war, any circumstance, within the knowledge 
 
 of facts that . ,, j i j n . -i . 
 
 aggravate the 01 the assured, and not equally within the knowledge of the 
 
 ^ underwriter, which affects the national character of the 
 
 subject insured, and therefore exposes it to capture or de- 
 tention, must be disclosed to the underwriters. 
 
 Yet there may be facts of this nature most material to 
 the risk, and not within the knowledge of the assured, or his 
 means of information. Thus a ship, warranted Portuguese, 
 
 ' Mackintosh v. Marshall, II M. & W. 116. 
 
CHAP. 11.] OF NATIONAL CHARACTER. 571- 
 
 was taken by a French privateer, and condemned because Mayne v. 
 sbe had an English supercargo on board, on the ground of a ^*^'®''- 
 recent French ordinance declaring aU. neutral ships liable to 
 capture if the supercargo was the subject of a state at war 
 with France ; Lord Mansfield held that, as neither the 
 assured nor the underwriters appeared to have known 
 anything of this ordinance, the former was not guilty of a 
 material concealment in not disclosing the fact of the super- 
 cargo being English.^ 
 
 His Lordship, however, was of opinion that, though this 
 ordinance was contrary to the law of nations, yet, if known 
 to the assured, it would have been a material concealment 
 not to have disclosed the fact of his non-compliance with it ; 
 and if, on the other hand, the underwriters had known of 
 it, they ought to have inquired who was, or was to be, 
 supercargo.^ 
 
 Although a knowledge of the political state of the world. Private infor- 
 of the allegiance of particular countries, of their standing, ^^"ations^'' 
 mercantile regulations, of the risk and embarrassment affect- 
 ing the course of trade contemplated by the insurance, must 
 all necessarily be imputed to the underwriter, and therefore 
 need not be disclosed by the assured : yet it has been held 
 in the United States, and apparently on very good grounds,- 
 that the new or shifting regulations of foreign states, by 
 which the property is exposed to seizure, if privately known 
 to the assured, ought to be disclosed by him, for they cannot 
 be presumed to be necessarily within the knowledge of the 
 underwriter.^ 
 
 All facts lying peculiarly within the knowledge of the Facts which 
 assured, which may expose the property to belligerent risks, to°capture.°^^ 
 ought to be disclosed to the underwriters. Thus, it has been 
 
 1 Mayne v. Walter, 1 Park, Ins. 473. 
 
 431 ; 1 Marshall, Ins. 402, 471. ' Hoyt v. Grilman, 8 Mass. Eep. 
 
 2 1 Marshall, Ins. 402, 471 ; see 336 ; Blagge v. New York Ins. Co., 
 also BarziUay v. Lewis, 1 Marshall, 1 Caines, 549 ; 1 Phillips, nos. 595, 
 Ins. 402, 404 ; and Marshall v. 696, 697 ; see also 2 Duer, 616, 561. 
 Union Ins. Co., Condy's Marshall, 
 
573 
 
 COKCEALMENT 
 
 [part II,. 
 
 Bates V. 
 Hewitt. 
 
 Campbell v. 
 Innes. 
 
 held in the United States, that not disclosing that the 
 property insured belongs to a house established and doing 
 business in a belligerent state will be a material concealment, 
 and defeat a policy made in a neutral country " for whom it 
 may concern ;" ^ so the not disclosing that enemy's property 
 embarked ia a neutral ship was covered as the property of a 
 neutral, was there also held to be a material concealment, 
 vitiating the policy.^ 
 
 The Georgia had been in the service of the Confederate 
 States of America as a cruiser during 1863-4, and was 
 afterwards laid up in Liverpool, and there purchased at 
 pubHo auction by the plaintiff, who converted her into a 
 merchant vessel. When he proposed her to the defendant 
 for iusurance, it was as " The Georgia, s. s., chartered on 
 a voyage from Liverpool to Lisbon and the Portuguese 
 Settlements on the West Coast of Africa and back." She 
 was captured on her voyage by a war steamer of the United 
 States. It was held that the plaintiff ought to have commu- 
 nicated the fact that she had been the Confederate cruiser, 
 and consequently that by reason of this suppression the 
 policy was void.' 
 
 Ship and goods, the property of an American subject, 
 were, in a policy dated the 30th July, 1812, insured 
 " from London to certain ports in America against all risks, 
 American capture and seizure included." On arrival, the 
 ship was seized by the American government, on account 
 of a war with America, which had broken out in the same 
 month of July, 1812, before, but not known till after, the 
 policy was effected. The fact that the assured was an 
 American subject was not stated on the face of the policy, 
 nor disclosed by the broker to the underwriter, and this was 
 held by Lord Tenterden and the Court of King's Bench to 
 
 ^ Bauduy v. Union Ins. Co., 2 
 ■Washington's C. C. Rep. 391, cited 
 1 PHUips, no. 624. See, however, 
 Buck V. Chesapeake Ins. Co., 1 Peter's 
 Sup. C. Eep. 151; 1 PhiUips, no. 
 626. 
 
 ^ Stocker v. Merchants' Kre and 
 Marine Ins. Co., 6 Mass. Rep. 210 ; 
 1 Phillips, no. 629. 
 
 s Bates V. Hewitt, L. R., 2 Q. S. 
 595. See further as to this case, 
 post, p. 682. 
 
CHAP. II.] OF SPECIAL INFORMATION. 573 
 
 be a suppression that vitiated the policy, since the fact, if 
 disclosed, might have inade a material difference to the risk.^ 
 It is manifest from the fact of American seizure being in- 
 cluded as one of the risks in the policy that war between this 
 country and the United States was at the time of effecting 
 the insurance feared and anticipated. 
 
 So, sailing without convoy, unless the ship be within the Without 
 exception of the convoy statutes, is a material circumstance 
 to be disclosed. A broker having proposed an insiirance on Sawtell v. 
 the ship Sophia, from Bristol to Port Mahon, &c., with °^ °°' 
 liberty to seek, join and exchange convoy in the English and 
 Irish Channels, the underwriter stated, that a ship called 
 The Sophia, of Bristol, was reported at Lloyd's as being then 
 at sea without convoy ; the broker afterwards was informed 
 by his employer that this was the same ship; this letter 
 however was not communicated, and the Court held that, as 
 the ship in question was not within any of the exceptions of 
 the Convoy Act, the concealment was fatal to the policy 
 effected under these circumstances.^ 
 
 If the ship was foreign built, and, therefore, not within the Long v. Duff, 
 scope of the Convoy Act, the fact of her having sailed without 
 convoy need not have been communicated, nor yet the fact 
 that she was foreign built, or otherwise excepted from the 
 operation of the Act ; for it is the duty of the underwriter to 
 obtain such information for himself.' 
 
 Where an insurance was effected on goods " to return five Eeid v. 
 per cent, for convoy and arrival ;" the non-communication of ^^^' 
 the fact that the vessel had saUed without convoy, coupled 
 with the above stipulation, was held fatal to the policy.* 
 
 ' Campbell v. Innes, 4 B. & Aid. but of special reference in the speech 
 
 423. from the throne on the 7th January 
 
 Although this ■war did not break in that year, 
 
 out till the month of July, 1812, ^ Sawtell v. London, 1 Marshall's 
 
 differences had arisen some time E. 99 ; 5 Taunt. 359. 
 
 previously between the British and ' Long i>.Dufl,andLong D.Bolton, 
 
 tr. S. governments, and were the sub- 2 B. & P. 209. 
 
 ject not only of common conversation, * Reid v. Harvey, i Dow's P. C. 97. 
 
5n 
 
 CONCEALMENT 
 
 [part II. 
 
 The state of 
 the ship on 
 the voyage. 
 
 De Costa v. 
 Soaudret. 
 
 Durrell ». 
 Bederley. 
 
 Beokthwaite 
 V. Nalgrove. 
 
 All material information communicated to the assured 
 with regard to the state of the ship in the course of the 
 voyage ought to be disclosed whether it be certain intelligence 
 or doubtful rumour. If it concern matters preceding the 
 commencement of the voyage, e. g., such as would be covered 
 by a warranty of seaworthiness, Lord EUenborough was of 
 opinion that it was unnecessary to disclose it : ^ under a time 
 policy it may be otherwise.^ 
 
 One that had a doubtful account of a ship like his own 
 being captured, caused his own to be insured without com- 
 municating what he had heard, and the insurance was held 
 to be void.' So in case of rumoured shipwreck.* 
 
 A policy was effected on the 24th of March on a privateer, 
 which had sailed from Jersey on the 6th, and reports in 
 Jersey that some French frigates were about the coast and 
 had made a capture on the 7th, continued to prevail and 
 receive credit until the plaintiff sent the orders on which the 
 insurance was effected, yet he had not said a word about 
 them in his letter ; this was held to be a material conceal- 
 ment which vitiated the policy.^ So where the plaintiff 
 concealed from the underwriters the fact that he had received 
 a letter from the Cape of Good Hope, stating that there were 
 then two or three French privateers in those seas, he was 
 nonsuited on the ground of that concealment.^ 
 
 Important, Even though the report eventually prove to be totally false 
 
 mately false, and unfounded, its communication, as we have already seen, 
 
 is not on that account less indispensable, if it would have 
 
 1 Per Lord Mansfield, Shoolbred ®. 
 Nutt, 1 Marshall, Ins. 474 ; per Lord- 
 EUenborough, Haywood «. Eodgers, 
 4 East, 590. 
 
 * EusseU V. Thornton, 4 H. & N. 
 788 ; 29 L. J. (Ex.) 9 ; in error, 30 
 L. J. (Ex.) 69. 
 
 = De Costa v. Soandret, 2 P. Wms. 
 170. 
 
 * Nicholson v. Power, 20 L. T., N. 
 S. 680, 
 
 = Durrell v. Bederley, Holt, N. P. 
 283. The privateer, it appeared, had 
 actually been captured by the !Frenoh 
 on the 7th of March, about thirty 
 miles from Jersey. 
 
 " Beckthwaite v. Nalgrove, Holt's 
 N. P. 388, cited in 3 Taunt. 41. 
 
CHAP. II.] OF SPECIAL INFORMATION. 57d 
 
 materially influenced the judgment of the imderwriter in 
 assuming the risk.^ 
 
 A., accustomed to open floating policies on which he 
 declared shipments from abroad as he heard of them, having 
 received intelligence of a shipment for him to be made by 
 The Candida about the same time that an anonymous letter 
 had been received at Lloyd's of an intention to lose that 
 vessel on the ensuing voyage, concealed his expectation of a 
 shipment by her, and his knowledge of the letter respecting 
 her owners when he was opening a fresh policy, but did so 
 on the reasonable belief that he should be able on the coming 
 forward of her bills of lading to declare her shipment on the' 
 policy already open. He was disappointed of this expec- 
 tation by the mere accident of advices of other vessels coming 
 to hand before those as to The Candida, and when intelligence 
 of her did come forward he was obliged to declare her on the 
 fresh policy. Held by the Court of Queen's Bench that by 
 this concealment the policy had been invalidated.^ 
 
 " Loose rumours, indeed, which have gathered together, no Not loose 
 one knows how, need not be communicated:"' and intelli- 
 gence may be so general, and its application to the subject 
 insured so doubtful and remote, that the assured need not 
 communicate it, though it may possibly turn out to be related 
 to the subject insured.* 
 
 Caution, however, in seeking to be safe will rather trust to a Caution, 
 f uU disclosure of rumours, as the following case will illustrate. 
 
 The plaintiff in Liverpool, on the 8th October, wrote to Morrison v. 
 his broker in London to insure 5000/. on the ship Cambria, uar. Ins. Co. 
 and a similar sum on her freight. On the evening of that 
 day his eye met a paragraph in the "Liverpool Mercury," 
 which caused him to write to his broker on the 10th thus : 
 " Since writing on Saturday a paragraph in the ' Mercury,*^ 
 
 1 Seaman v. Fonnereau, 2 Str. ' Per Gibbs, C. J., in Dnrrell v. 
 
 1183 ; Lynch v. Hamilton, 3 Taunt. Bederley, Holt's N. P. 285. 
 
 37, 8. C. in error; Lynch v. Duns- * 1 Phillips, Ins.no. 610; Euggles 
 
 ford, 14 East, 494. »• General Int. Ins. Co., 4 Mason, 
 
 ' Leigh V. Adams, 25 L. T., N. 9. K. 74. 
 566. 
 
576 
 
 CONCEALMENT 
 
 [part II. 
 
 State of the 
 weather. 
 
 Kature of 
 cargo. 
 
 ' Cambria qy., Cameo, from New Orleans, aground on North 
 Breakers.' To-day's 'Mercury' says, 'The vessel on the 
 North Breakers reported yesterday as The Cambria is stated 
 to be The Cameo from New Orleans.' Can you find out at 
 Lloyd's ? Let me know before acting." The broker made 
 inquiries that satisfied him it was not The Cambria ; and on 
 the 12th he, effected a policy on freight with the defendants^ 
 without mentioning what had appeared in the public news- 
 papers or in Lloyd's list, in which the above announcement 
 had first appeared on the 8th. It turned out to be, in fact, 
 The Cambria, and the concealment was held fatal to the 
 poHcy.^ 
 
 The assured, in a retrospective policy, is bound to disclose 
 the state of the weather subsequently to the ship's sailing 
 when the voyage commences from a foreign port, if the 
 assured have private information, e.g., of some violent storm 
 at or near the port within so short a period after her sailing 
 as that she might have been exposed to it. If the ship sails 
 from a home port, the underwriter is as well informed as the 
 assured of the state of the weather; and, unless the storm 
 were all the more violent, it would not Hkely affect his 
 estimate of the risk.^ 
 
 The nature of the cargo shipped or intended to be shipped 
 may be most material to be communicated. For without 
 exactly rendering the ship unseaworthy, a cargo may be of a 
 nature less desirable for safety than another, owing to the 
 dead weight in proportion to bulk, or its tendency to shift, 
 its unwieldiness for stowage, or its gaseous or other dangerous 
 chemical or infiammable qualities, and the like. In -a recent 
 
 ' Morrison v. Universal Mar. Ins. 
 (5o., L. R., 8 Ex. 197. 
 
 ' See the two American cases, Ely 
 V. Hallett, 2 Caine's Eep. 57, and 
 Kske V. New England Ins. Co., 15 
 Pickering's Eep. 310, cited 1 Phillips, 
 no. 577, not without dissent from the 
 judgment in Ely v. Hallett. The 
 ground of that decision was, that the 
 
 assnred's knowledge was precise and 
 specific, his conmninications vague 
 and general ; he knew there had been 
 a violeiit storm at the port, he only 
 oommnuioated that there had been 
 "blowing weather and severe storms 
 on the coast. " Even thus the case is 
 inter apices Juris; see the comments 
 of Judge Duer (vol. ii. pp. 399-401). 
 
CHAr. II.J OF SPECIAL INFOIvMATIOX. 577 
 
 case excessive valuation was held a circumstance material to 
 be communicated. 
 
 It appeared that part of the cargo insured consisted of Excessive 
 222 casks of whistj, the cost, charges, and insurance of ^^ "* ^™' 
 which amounted to 973/., but which were valued for in- 
 surance at 2800/. It was in evidence that excessive 
 valuation to such an extent as here was considered by 
 underwriters to be a speculative risk, which one class of 
 underwriters would not take at all, and another class would 
 take only if a sufficient premium were offered ; that 25 per 
 cent, added was not unusual; and that in one case 30 per 
 cent, added had been taken by the former class; but that 
 beyond this it became a speculative risk. The excuse 
 offered by the assured was that the excess represented ex- 
 pected profits at a Russian port, which was not at the time 
 of shipment within the geographical range of the Russian 
 Custom House, but was to be shortly brought within that 
 line; and that a paper containing the insured value was 
 shown to the English underwriter, containing these words, 
 but in German: "On spirits with anticipated profits, how- 
 ever high or low." The underwriter saw the German words, 
 but did not understand them. The jury found that the con- 
 cealment was without fraud but was material ; and the Court 
 refused to disturb their verdict.^ 
 
 The port of loading is material. The tme port 
 
 Goods were insured " at and from Genoa to Dublin, the ° °"' ^°^' 
 adventure to begin from the loading to equip for the voyage," 
 but the goods were actually loaded at Leghorn and not at 
 Genoa, which was an intermediate port into which the ship 
 ■was obliged to put and wait five months for convoy, and the 
 non-communication of this fact was held to be a material 
 concealment.* 
 
 Where it was known that the ship was to load at a place Harro-wer v. 
 
 _ , ■, -r-. 1 1 • Hutohinaon. 
 
 called Laguna de los Padres, a mere anchorage in an open 
 
 1 lonidcB V. Pender, L. E., 9 Q. B. ' Hodgson ». Richardson, 1 W. Bl. 
 
 531. 463. 
 
 M. P P 
 
578 
 
 CONCEALMENT, 
 
 [part II. 
 
 Any service 
 of danger. 
 
 Serious 
 damage to 
 the ship. 
 
 Aggravated 
 consequences 
 of loss. 
 
 roadstead, whieli was unknown to underwriters as a port of 
 loading for Europe, and the risk when express mention of 
 that place was made had heen already refused, it was held to 
 be a vicious concealment, if not moral fraud, to effect a 
 policy on the same risk without further description of it 
 than " at and from the port of Buenos Ayres and port or 
 ports of loading in the province of Buenos Ayres." ' 
 
 So is any service of peculiar danger a subject of material 
 concealment, if it cannot be inferred from the terms of the 
 policy, e.g., to employ the ship in the foreign smuggling 
 trade.^ 
 
 Neglect by the captain of a ship, aware of her having met 
 with an accident that might be the cause of serious damage, 
 to inform his owners of it before effecting the policy, will at 
 least prevent them recovering on the policy for loss resulting- 
 from the accident.' 
 
 The Thames lightermen at the port of London, finding 
 that the law of common carriers bore hard upon them when 
 it gave insurers recourse against them for loss which had not 
 been the consequence of negligence, formed an association for 
 the purpose of doing the lighterage on the terms of being' 
 subject to liability for loss only in case of negligence, briefly 
 called by them "no recourse terms." Insurers, upon this 
 becoming public, published their disapproval of that course, 
 and thenceforward refused to subscribe policies containing 
 craft risks, except on a higher scale of premium wherever 
 the "no recourse terms" had been adopted by the assured. 
 Policies on goods containing the craft risk were effected for 
 the plaintiffs with the defendant. Before the policies had 
 been effected, the plaintiffs had agreed with a particular 
 lighterman that he should lighter all their goods on the " no. 
 recourse terms." This was not made known to the defendant- 
 
 ' Harrowerj). Hutchinson, in error, 
 
 X. E,., 6 Q. B. 684, reversing the 
 
 judgment below, L. R., 4 Q. B. 523. 
 
 .' 1 Emerigon, 172 ; and see his 
 
 opinion in 2 Valin, liv. 3, t. 6, art. 
 
 49, pp. 127, 128. 
 
 ' Gladstone v. King, 1 M. & Sel. ) 
 35 ; Stribley v. Imperial Mar. Ins. 
 Co., 1 Q. B. Div. 607. Ante, p. 558. 
 
CHAP. II.] WHEN OF NO EFFECT. 5^9 
 
 at the time of negotiating the policies, which were under- 
 written, therefore, on the same terms as formerly, that is, for 
 a lower premium than would have heen demanded for craft 
 risk coupled with no recourse terms. A loss having occurred 
 under these policies in the course of the lighterage, this action 
 was brought, and it was held that this suppression of any 
 mention of the agreement with the lighterman was conceal- 
 ment of a material fact which a fair and reasonable under- 
 writer would have taken into account in fixing the terms on 
 which he would accept the risk, and therefore vitiated the 
 policies.' 
 
 " The assured need not mention what the underwriter Matters that 
 knows, what way soever he came by that knowledge; or oommuni-" 
 
 what he ought to know; or takes upon himself the know- °^^^' 
 
 ledge of ; or waives being informed of ; or what lessens the 
 risk agreed and understood to be run ; or general topics of 
 speculation ; or every cause which may occasion natural 
 perils, as the difficulty of the voyage, kind of seasons, proba- 
 bility of hurricanes, earthquakes, &c. ; or every cause which 
 may occasion political perils, from the rupture of states, from 
 war, and the various operations of it, upon the probability of 
 safety from the continuance and return of peace, or from the 
 imbecility of the enemy." ^ 
 
 For instance, facts comprised in the general usages of What the 
 trade, such as the usage of the Newfoundland trade for ships ought to 
 arriving on the coast either to be employed for some time ^°'^' 
 in fishing on the banks (called banking), or to make inter- 
 mediate voyages in the American seas, before beginning to 
 take in their homeward oargo.^ 
 
 1 Tate V. Hjslop, 15 Q. B. D. 368 Ongierv. Jennings, ibid. 505 ; King- 
 (0. A.). ston V. Knibbs, 1 Camp. 508, note. 
 
 ' Per Lord Mansfield, in Carter v. For further iHustrations of the same 
 Boehm, 3 Burr. 1909. principle, see Moxon v. AtMns, 3 
 
 ' Vallance v. Dewar, 1 Camp. 503 ; Camp. 200 ; Da Costa v. Edmunds, 
 
 pp2 
 
580 CONCEALMENT, [PAKT II. 
 
 Or the established custom during the great French war 
 for a ship insured "at and from London or Eamsgate to 
 Nantes, with liberty to touch at Ostend," to sail direct to 
 Nantes, with false clearances for Ostend, and false bills of 
 lading, purporting to be made at Ostend, and expressing that 
 the goods were shipped there. ^ 
 
 But to justify this, such usage must be general, and uni- 
 versally known to all engaged in the trade. Thus, a ship 
 was insured in the African wood and ivory trade, without 
 communicating to the underwriters the fact of her intended 
 mutual or combined trading with another ship on the 
 African coast, and it appeared that such mutual trading was 
 of occasional occurrence on such African voyages, but not of 
 universal prevalence ; the concealment of this was held to be 
 fatal to the insurance.^ 
 
 Every underwriter is presumed to be as well acquainted 
 as the assured himself with the general and established 
 restrictions on commercial freedom imposed in different 
 states for the sake of revenue, or fancied protection to their 
 interests ; ' but if the prohibition be of recent date, or only 
 occasional in its nature, the assured, supposing him to have 
 private means of information, ought to communicate the fact 
 to the underwriter ; if he be himself ignorant of it, of course 
 the rule will not apply.* 
 
 It is held in the United States that, under an insurance on 
 " aU lawful goods," it is not necessary to disclose that they 
 are contraband of war, or that such constitute a part of the 
 cargo.' So, in this country, an American neutral, who 
 
 4 Camp. 142 ; Stewart v. Bell, 5 B. P. 0. 324. 
 
 & Aid. 238 ; and the oases decided on 3 Lever v. Fletcher, I Park Ins. 
 
 the East India trade, as Salvador v. 507. 
 
 Hopkins, 3 Burr. 1707 ; Gregory v. <■ See Mayne !.. Walter, I Marshall, 
 
 Christie, 3 Dougl. 419 ; Grant v. Ins. 478, and the American oases, 1 
 
 Paxton, 1 Taunt. 463 ; 1 Marsh, on Phillips, no. 595 et uq. 
 
 ^^- 2^^- ° Juiels.Rhiuelander, 2 Johnson's 
 
 1 Planch^p. Fletcher, 1 Dougl. 251. Cases, 120, 487 ; and Seton v. Low, 1 
 
 See BamewaU v. Church, 1 Caines, Johnson's Cases, 1 ; cited 1 PhilUps 
 
 217 ; 1 PhilUps, no. 598. no. 621. 
 * Tennant v. Henderson, 1 Dow, 
 
CHAP. II.] WHEN- OF XO EFFECT. 581 
 
 had effected an insurance on goods on board an American 
 ship, did not inform the British underwriter that enemy's 
 property, not included in the goods insured, was also on 
 board the same ship; but this was no bar to his right of 
 recovery.! 
 
 As to the contents of Lloyd's Lists, whether the under- Contents of 
 writer being a member of Lloyd's or a subscriber, and as ^ 
 such receiving, or having access to these Lists daily, is to 
 be affected with knowledge thereof, irrespective of its being 
 actual knowledge, so as to be bound thereby in law, has been 
 for many years a matter of great uncertainty, and different 
 opinions expressed upon it by eminent judges on the bench 
 are to be found in the books. For instance, upon an 
 insurance on The LusUania from Brazil to Lisbon being pro- 
 posed, it was stated that the ship was out fifty-seven days ; 
 but the fact that another vessel which had sailed at the same 
 time had arrived at Lisbon ten days before the date of the 
 orders to insure, might have been learned from Lloyd's Lists, 
 and was not stated. Burroughs, J., there held that the 
 policy was not vitiated, on the ground that " what the under- 
 writer by fair inquiry and due diligence may learn from the 
 ordinary sources of information need not be disclosed." ^ A 
 similar opinion is attributed to Erie, 0. J., at Nisi Prius, in 
 the following terms : " Actual knowledge is not essential ; if 
 the insurer knew he had the means of knowing the fact, then 
 it was within his knowledge. If, for example, he knew that 
 he could learn the exact cargo at Lloyd's, and chose not to 
 asoertain it, knowing or believing it would include iron, it 
 was within his knowledge."' 
 
 To the same effect seems to be the opinion expressed by 
 Lord.Abinger, in banc, in a case where the assured had not 
 only concealed, but had made a misrepresentation as to the 
 time of sailing : he says, — " The materiality of such a 
 
 1 Barker v. Blakes, 9 East, 283. of Elton ». Larkins, 5 C. & P. 85 ; 8 
 
 » Friere i!. Woodliouse, 1 Holt's Blng. 198. 
 N. P. 572. So, upon the first trial = relay v. Talwr, 2 F. & F. 662. 
 
582 CONCEALMENT, [PART II. 
 
 document (Lloyd's Lists) depends entirely on the silence of 
 all parties respecting the day of the vessel's sailing. Where 
 there is no wrong representation about it, no communication 
 calculated to mislead, then the document at Lloyd's is com- 
 petent evidence, where the means of knowledge are common 
 to both." 1 
 
 In that case objection was taken before the Court, ia 
 banc, to the admission in evidence on the trial by Maule, J., 
 of Lloyd's Lists, and the learned judge was sustained in 
 thinking them evidence. On this point there seems to be 
 no doubt or ground for doubting, the same point having been 
 frequently ruled as to the admissibility in evidence of a 
 newspaper, which the party against whom it is adduced is 
 proved to take in regularly. It is upon the next point that 
 the difference of opinion exists, namely, the use to be made 
 of it when admitted in evidence, unless the particular entry 
 in it can by evidence be traced to his knowledge. 
 
 In Nicholson r. Power ^ there was no occasion to consider 
 the point, because although the same entry had first appeared 
 in Lloyd's Lists, which afterwards appeared in the " Shipping 
 Grazette," and of which no mention was made to the under- 
 writer, the assmred had peculiar information from his captain 
 that enabled him to fix the entry as applying to his own ship, 
 and to none other. 
 
 In the case of Ihe Georgia,^ the assured had omitted to 
 state to the underwriter that the vessel proposed to him 
 had been a Confederate cruiser in the years 1863—1864, and 
 this concealment defeated the policy. The chief difficulty 
 in the case, which will always sui-round it with much 
 interest, arose upon a question as to the state of knowledge 
 on the part of the underwriter of the omitted fact, and as 
 to the effect of his forgetfulness of it at the time that he 
 took the risk. The Georgia had been notorious to the 
 
 ' MacHntosh !). Marshall, 11 M. & 14 East, 404. 
 
 "^- 116. 3 Bates v. Hewitt, L. E., 2 Q. B. 
 
 * Nicholson v. Power, 20 L. T., 595. 
 N. S. 5&0. So, Lynch v. Dunsford, 
 
CHAP. H.J WHEN OF NO EFFECT. 98S 
 
 British public at the time she was cruising, and after she 
 had been laid up in Liverpool, had been the subject of 
 commenfc in the London newspapers, and in the House 
 of Commons, as appeared by the published debates. The 
 defendant, one of Lloyd's underwriters in London, had been 
 cognisant of all this. But at the time that the risk was 
 proposed to him, nothing revived his recollection of these 
 things, and it did not occur to him that this was or might 
 be the Confederate cruiser. It was a fact that at the time 
 of the risk being proposed there was no Georgia s. s. in 
 Lloyd's Lists. Under these circumstances, the jury found 
 that the defendant was not aware that The Georgia he was 
 underwriting was the Confederate cruiser, but that at that 
 time he had abundant means from his previous knowledge, 
 coupled with the particulars -supplied by the plaintiff, of 
 identifying the ship. The Court held that the previous 
 knowledge possessed by the defendant of the material fact 
 omitted from the particulars of the risk, as it was not present 
 to his mind at the time of taking the risk, did not release the 
 plaiutiff from the obligation to communicate it. 
 
 In Morrison v. Universal Marine Insurance Co.,' the 
 defendants were subscribers to Lloyd's, and the entry found 
 in the " Liverpool Mercury " newspaper, had first appeared 
 in Lloyd's Lists, where however their underwriter did not 
 discover it until after he had initialed the slip, and as the 
 broker admitting his own knowledge of the entry had taken 
 upon him to suppress all mention of it, this concealment 
 defeated the policy. Upon the point here under considera- 
 tion, Bramwell, B., said : " It is impossible to say that there 
 is any rule of law or any principle or authority which 
 affects the underwriter with knowledge of what is contained 
 in Lloyd's Lists. No doubt some knowledge may be assumed 
 in the underwriter ; what, — I will not attempt to define or 
 describe ; though, I agree with what was thrown out by my 
 
 1 Morrison v. UniTersal Mar. Ins. 197. Ante, p. 575. 
 Co.,L. R., 8EX.-40; on appeal, ibid. 
 
584. 
 
 CONCEALMENT, 
 
 ]|PAUT II. 
 
 Smamary. 
 
 brother Oleasby in the course of the argument, that the 
 matters he must take knowledge of are matters of general 
 knowledge, not matters relating to any particular ship. • 
 But to hold that the underwriter is bound to carry in his 
 head all, that is contained in Lloyd's Lists relating to a ship 
 in which he has no interest, rather than to hold the owner 
 of the ship bound to disclose it, would be to put a diflSoult 
 and useless burden on the underwriter, while the opposite 
 view puts no difficulty at all in the way of the owner." 
 
 This view of the law thus expressed by Bramwell, B., 
 was concurred in by the other members of the Court of 
 Exchequer; and Blackburn, J., presiding in the Court of 
 Appeal upon the same case, expressed his concurrence in this 
 with the Court below.^ 
 
 So stands the point here in question in relation to judicial 
 authority, which may be gathered from this last case and 
 the case of Bates v. Hewitt to have concluded against any 
 presumption of knowledge of particular facts concerning 
 particular ships on the part of the underwriter, merely on 
 the ground that such facts have appeared in Lloyd's Lists, or 
 the "London Gazette," or a newspaper. 
 
 General 
 
 maritime 
 
 intelligence. 
 
 It is a question a good deal canvassed in the United 
 States, how far maritime intelligence inserted in the public 
 papers, and open to all the world, need be stated. The 
 conclusion, upon the whole, appears to be, that such articles 
 of intelligence need not be stated, unless thef apply peculiarly 
 to the case of the owner, or he is privately in possession of 
 information which enables him to infer, with more certainty 
 than the rest of the pubKc, that the intelligence iu the 
 journals is, in fact, material to the risk.^ Mere items of 
 ordinary shipping intelligence in the public papers, equally 
 open to both parties, and too general to lead to any 
 
 ' Morrison v. Universal Marine 
 Ins. Co., L. E., 8 Ex. 197. 
 
 2 Nicholson t). Power, 20 L. T. N. S. 
 
 580. See Bates i>. Hewitt, L. E., 
 2 Q. B. S95. 
 
CHAP. II.] WHEN OF NO EFFECT. 585 
 
 particular application to the risk proposed, need not be 
 communicated.' 
 
 If the facts in question are comprised under the head of 
 marine intelligence in papers actually and hahitually taken 
 in and filed at the office where the insurance is effected, it 
 seems a fair general presumption, that the insurers "have 
 examined with some care the items of mariae intelligence, 
 which are expressly designed speedily to diffuse information 
 on a subject so immediately interesting to them, especially 
 in relation to vessels belonging to their own port."^ This In the United 
 is, however, at the highest, only a primd facie presumption ; 
 no case in the United States has carried it beyond this ; and 
 in New York and Massachusetts, the law, we are told by 
 Judge Duer, may be regarded as settled, that in such cases 
 the defence of a concealment is only to be met by direct or 
 circumstantial proof of actual knowledge on the part of the 
 underwriter.^ 
 
 In one of the cases cited in illustration of this position, 
 the defence set up was, that a letter of the plaintiff alleged 
 to contain material information had been withheld; the 
 answer was, that the same information had appeared in 
 substance in a New York gazette that had been received at 
 the office of the defendants, and was on the file there when 
 the application for the insurance was made. The judge told 
 the jury, that if they thought the newspaper contained all 
 the information the letter did, and was actually seen by the 
 president of the insurance company before he subscribed 
 the policy, and that part of it which contained the iaforma- 
 tion was read by him, then the omission to communicate 
 the letter was immaterial. The jury found for the plaintiff ; 
 and, on motion for a new trial, the Court upheld the direction 
 of the judge.^ 
 
 1 3 Kent's Com. 285; 1 Phillips, Merchants' Ins. Co., 10 Pickering's 
 no. 606 ; 2 Duer, 480, 481 ; and see Mass. Eep. 402 ; 1 PhiUips, no. 606 ; 
 the case of Euggles v. General Int. 2 Duer, 481. 
 
 Ins. Co., 4 Mason, 81, and Alsop v. ^ 2 Duer, 481, 482. 
 
 Com. Ins. Co., 1 Sumner's Eep. 41. ' Greene v. Merchants' Ins. Co., 
 
 2 Per Shaw, 0. J., in Greene v. qua supra. 
 
58&. CONCEALMENT. [PART II. 
 
 Where, from the rate of premium or other circumstances, 
 the fair prohahility appears to he that the insurer, though 
 regularly taking in the gazette, could not, before completing 
 the insurance, have read the paragraph conveying the infor- 
 mation complained of as withheld, the prima facie presump- 
 tion is repelled, and the defence of concealment unanswered. 
 
 Court V. A Liverpool merchant directed his London broker to effect 
 
 insurance on a prize ship, informing him by letter that should 
 the ship arrive, he (the merchant) would send up an express 
 to communicate the fact. The broker delayed insuring, to 
 give time for the arrival of the express, and none having 
 arrived, effected an insurance at 50 guineas per cent, without 
 saying anything about the non-arrival of the express. It 
 was held that, under the circumstances of the case, and 
 especially the enormous amount of premium, this was not a 
 fatal concealment ; the underwriter ought to have inquired.' 
 
 An insurance was effected at New York on a sloop " from 
 Washington, North Carolina, "to Charleston, South Caro- 
 lina." The premium was at the ordinary rate. The sloop 
 had been, in fact, lost on Ocracoke Bar, North Carolina, 
 nine days before the policy was effected. The day before 
 effecting the insurance, the plaintiff had read a paragraph 
 in a New York mercantile gazette stating that information 
 had been received, "that a New York sloop, bound from 
 Washington, North Carolina, to Charleston, South Carolina, 
 had been stranded, Thursday week, on Ocracoke Bar." The 
 plaintiff did not disclose this fact. The insurance company 
 subscribed to and regularly received the gazette in question. 
 It was contended that they must, therefore, be held to be 
 as well acquainted with its contents as the plaintiff. The 
 judge, however, held, the plaintiff ought to have disclosed 
 the fact, and that the concealment was material and avoided 
 the policy.^ 
 
 ' Courtf.Martineau, SDougl. 161. ^ Dickenson t'. The Comm. Ins. 
 
 See the case stated by Duer, vol. ii. Co. of New York, Anthon's N. P. E. 
 pp. 568, 569. 92; 2Duer,486,cotea. Mr. Phillips, 
 
CHAP. II.J INFORMATION WAIVED. 58^ 
 
 Judge Duer adds, "The rate of premium was doultless 
 considered by the judge as such conclusive proof of the 
 ignorance of the underwriter, that it superseded the necessity 
 of submitting the question to the jury. The verdict was in 
 conformity with the charge of the judge, and no attempt 
 was made to disturb it. In New York the propriety of the 
 decision has never been questioned." 
 
 Another principle laid down by Lord Mansfield in the Nothing need 
 celebrated judgment already cited, is, that nothing need be ^LvhlhT^ 
 disclosed to the underwriter which he himself waives being y""ierwriter 
 informed of. Thus, to take the illustration given by his ^ives /eing 
 Lordship in the same case:— "If the insurance be on a '°^°'™'^°^- . 
 private ship of war, from port to port, the underwriter needs prfv^rf 
 not to be told of the secret enterprises it is destined upon ; 
 for, from the nature of the contract, he waives this infor- 
 mation." ^ 
 
 Upon this principle, an insurance on ship for a homeward Need of 
 voyage "at and from" a foreign port, implies that, in aU ''^^™^" 
 probability, repairs will be required before she can "sail on her 
 homeward voyage ; the fact, therefore, of such repairs being 
 requisite need not be communicated ; the underwriter, if he 
 TOshes for particular information on the point, ought to ask 
 for it.^ So, where a ship is insured " at and from" her home 
 port, " lost or not lost," it is not necessary to disclose that she Lost or not 
 has, in fact, sailed before the policy is effected ; for, if the ^°^' 
 underwriters want to be satisfied as to this point, they ought 
 to inquire into it.' 
 
 A policy "at and from" a foreign port by no means Wietherat 
 implies that the ship is already at the port in question, and ""^^'^ ^°^- 
 consequently information that she is not then there is not Cooper. 
 
 in his statement of the case, adds a Nicholson v. Power, 20 L. T., N. S. 
 
 fact that makes the decision still 580. 
 
 stronger, viz., that on account of the ' Carter v. Boehm, 3 Burr. 1909. 
 
 intelligence, another office had, in the ^ Beckwitht). Sydehotham, 1 Camp. 
 
 earlier part of the same day, refused 116. 
 
 the risk; 1 Phillips, no. 606. See ^ Fort i>. Lee, 3 Taunt. 381. 
 
588 
 
 INFORMATION WAIVED. 
 
 {part II. 
 
 Seaworthi- 
 ness. 
 
 Shoolbred v. 
 Nutt, 
 
 Haywood v. 
 Eodgers. 
 
 required.'' But as it is implied in sucli a policy that the 
 vessel will he there within such a reasonahle time as that the 
 risk shall not be varied by the delay, it would seem that the 
 assured ought to communicate any information possessed by 
 him that this reasonable time is likely to be exceeded.^ Yet 
 if such delay in excess be excused by a general usage, such 
 usage is one of those things that the underwriter is bound to 
 know, and therefore need not be mentioned in the particular 
 case.' 
 
 On the same principle the assured under a voyage policy 
 need not profEer any disclosure to the prejudice of the ship's 
 seaworthiness; the underwriter waives his right to the 
 information, trusting entirely to the implied warranty. 
 Hence, in an action on a policy " at and from Madeira to 
 Charleston," it was held that the captain's letters from 
 Madeira to the owner, stating that the ship had been very 
 leaky on her voyage thither, need not be communicated. 
 " It is a condition, or implied warranty, in every policy, that 
 the ship is seaworthy, and therefore there is no necessity for 
 a representation of that. If she sail without being seaworthy 
 the policy is void."* 
 
 So, where the owners of a ship insured "at and from 
 Trinidad to London," &c., without communicating the cap- 
 tain's letter, stating that he had been obliged to have a 
 survey on the ship at Trinidad " on account of her bad cha-- 
 racter ;" or the survey which accompanied the letter and gave 
 the ship a good character : it was held, that the non-disclosure 
 of this letter and survey to the underwriters did not vacate 
 the policy, though it appeared in evidence that such circum- 
 stance, if known, would have enhanced the premium.' 
 
 1 Hull V. Cooper, 14 East, 479. 
 
 2 De Wolf V. Archangel Marit. 
 Bk. &Ins. Co., L. E., 9 Q. B. 461. 
 
 3 Per Tindal, C. J., in Mount v. 
 Larkins, 8 Bing. 108, 121. 
 
 * Per Lord Mansfield, Shoolbred v. 
 Nutt, 1 Marsh. Ins. 474. 
 
 ' Haywood«>.Eodgere,4East,S90. 
 See also Beckwith v. Sydebotham, 1 
 
 Camp. 116. The deeieions in the 
 United States follow the law as thus 
 laid down. See Walden ». New 
 York Kremen's Ins. Co., 12 Johns. 
 128 ; De Wolf -u. New York Fire- 
 men's Ins. Co., 20 Johns. 214; 3 
 Kent, Com. 281 ; 2 Duer, 623 ; 2 
 Parsons, 178. 
 
CHAP. II.] IKFOEMATION WAIVED. 589 
 
 The owner of a ve8sel classed A 1 for seven years at Lloyd's 
 refused to subjeot her to the half-time survey (indicated when 
 undergone by H. T. in the Register), which refusal by 
 Lloyd's rules involved her being struck off the Eegister, but 
 before she was struck ofE he effected a policy on her without 
 mentioning this refusal ; this was held, by the majority of the 
 Court {dissentienfe Cockburn, 0. J.), to be no ground for 
 defeating the policy.^ 
 
 If, indeed, the underwriter particularly calls for informa- AUt^jihe 
 tion on the subject, then the assured must disclose truly all 
 that he knows as to the particulars required. The principles 
 upon which this doctrine rests are thus clearly and admirably 
 stated in Lord Ellenborough's judgment in the case of 
 Haywood v. Eodgers : — " It certainly," said his Lordship, 
 " would have some weight in guiding the judgment of the 
 underwriter to know how old the ship was : where she was 
 built, whether originally British or foreign; what was the 
 form of her construction, whether clinker built or not, 
 whether copper bottomed or not; what repairs she had 
 received, and when, and in what dock those repairs were done 
 to her, and how lately before the voyage insured ; and if the 
 voyage were, as this was, a voyage home, what accidents the 
 ship had met with on the outward voyage. All this may be 
 very proper and convenient for an underwriter to be informed 
 of, before he takes upon him the risk, and aU this may be 
 asked of the assured ; and if he should withhold, on being 
 asked for it, any material part of such required information, 
 his policy could not be sustained for a moment ; for such a 
 suppression would be a fraudulent concealment of material 
 ffl,cts, which has always been considered as avoiding the 
 policy. But the question is, Is it the duty of the assured, in 
 the first instance, and as a condition precedent on his part, to" 
 inform the underwriter of aU these circumstances to the 
 extent of his, the assured's, own actual knowledge on the 
 subject?" His Lordship answers this question in the 
 negative. 
 
 1 Gandy v. Adelaide Mar. Ins. Co. [coram Q. B.), 25 L. T., N. S. 742. 
 
590 
 
 INFORMATION WAIVED. 
 
 [part II. 
 
 More than 
 enough. 
 
 Inherent vice. On tte same principle the assured on perishable goods is 
 not bound to maJie any disclosure as to whether they were 
 in a damaged condition; and yet, if they have been put 
 on board in such a state as to produce, e. g., spontaneous com- 
 bustion, and are thereby consumed, the assured can make 
 no claim in respect of the loss which he has himself thus 
 occasioned.^ 
 
 Upon the same principle it has been decided that the 
 assured need not, unasked, disclose all the bygone calamities 
 that have befallen the ship, or produce his whole portfolio 
 of letters; it is enough, in the first instance, if he com- 
 municates fully and truly all material facts relative to the 
 state the ship was in, at the time the last intelligence left 
 her; and it is for the underwriters to require further 
 information if they wish it, especially where the letter laid 
 before them expressly refers to a prior communication as 
 to the state of the ship in the earlier part of the same 
 voyage.^ 
 
 Although it be fatal to misrepresent that previous under- 
 writers have taken the proposed risk at the same or a lower 
 premium than that offered,^ yet the assured is not bound to 
 disclose the estimate formed by other underwriters of the 
 risk, that they have declined it, or what their apprehensions 
 or opinions were respecting it.* Nor need he communicate 
 the fears and apprehensions of foreign correspondents : it is 
 enough to state the facts on which such apprehensions are 
 founded.' 
 
 "The assured," says- Lord Mansfield, "need not disclose 
 what lessens the risk agreed and understood to be run." 
 
 Thus, to take the instances furnished by his Jjordship: 
 " If the underwriter insures for three years, he needs not to 
 be told any circumstances to show it may be over in two : 
 
 Apprehen- 
 sions. 
 
 Nor what 
 lessens the 
 risk. 
 
 1 Boyd V. Duhois, 3 Camp. 133. 
 ' Preeland v. Glover, 7 East, 457. 
 s Sibbald v. HiU, 2 Doiv's P. 0. 
 263. 
 * So held in the United States: 
 
 Euggles V. General Int. Ins. Co., 4 
 Mason, 74; Clasonv. Smith, 3 Wash- 
 ington's Giro. E. 156 ; 1 Phillips, 
 no. 578. 
 
 « Bell V. Bell, 2 Camp. 475. 
 
CHAP. 11.] MATERIALITY OF CONCEALMENT. '591 
 
 80 if he insures a voyage, with liberty of deviation, he 
 needs not to be told what tends to show there will be no 
 deviation." ^ 
 
 Material facts, brought to knowledge after orders given to Subsequently 
 insure, ought to be forwarded with the utmost degree of knowT^ge. 
 reasonable diligence, so as to reach before the contract is 
 actually made.^ And if the countermand is not in time, 
 owing to the fraud, negligence, or mistake of the agent, the 
 agent's fault will be that of the principal. 
 
 As there is a complete contract as soon as the slip is 
 initialed, the policy is not defeated by the non-communica- 
 tion of anything coming to the knowledge of the assured 
 after that.' 
 
 The materiality of the facts concealed is a question mainly Materiality of 
 for the jury, whose finding thereon is not lightly disturbed ment— how" 
 by the Courts, unless.it be against the weight of evidence, ^'^° 
 or be the result of erroneous direction by the judge presiding 
 at the trial.* 
 
 Whether the jury, in forming their judgment upon the Evidence of 
 materiality of the fact concealed, may be assisted by the nesses. 
 evidence of skilled witnesses, such as brokers, underwriters, 
 &o., called to give their opinion whether the fact, iu their 
 judgment, was likely, if communicated to the underwriter, 
 to have materially influenced him in his estimate of the 
 risk, is a question that has been very much canvassed in 
 this country, and must be regarded as stiU undecided. 
 
 1 Carter v. Boehm, 3 Burr. 1909. 10 C. P. 189; "Wake v. Atty, 4 Taunt. 
 
 ^ Grieve v. Toung, Millar on Ins. 493. 
 63 ; and see the cases in the United * See WUles v. Glover, 1 B. & P. 
 
 States, collected by Mr. Phillips, vol. N. R. 14 ; Bridges v. Hunter, 1 M.. 
 
 i., no. 561. & Sel. 15; Elton ». Larkins, 8 Bing. 
 
 = lonides v. Pacific Ins. Co., L. E., 198 ; Westbury v. Aberdein, 2 M. & 
 
 6 Q. B. 674 ; Cory v. Paton, L. R., W. 267 ; Mackintosh v. Marshall, 11 
 
 7 Q. B. 304; Lishman v. Northern M. & W. 116; Stribley v. Imperial 
 Marit. Ins. Co., L. R., 8 C. P. 216; Mar. Ins. Co., 1 Q. B. Div. 507. 
 
592 .MATEKIALITY OF CONCEALMEKT. [pART II. 
 
 ■ Lord Mansfield,^ Sir Yicary Gribbs,'' and Lord Dennian,' 
 have maintained tliat the evidence is inadmissible, on the 
 ground that it is not a question of science in which scientific 
 men will mostly think alike, but a question of opinion, 
 liable in the most reasonable minds to be affected by fancy, 
 and in which the diversity might be endless ; that it is a 
 mere statement of the views entertained by the witness of 
 matters of legal and moral obligation, and on the manner in 
 which others would probably be influenced if the parties 
 had acted in one way rather than another ; finally, that it 
 is an opinion which, however rightly formed, could only be 
 drawn from the same premises from which the Court and 
 jury were to determine the cause, and therefore is irrelevant 
 and improper in the mouth of a witness. 
 
 On the other hand, Lord Kenyon,* Holroyd, J.,' Lord 
 Tenterden,^ and Tindal, C. J.,' have all held this evidence 
 admissible ; and it has also been admitted without objection, 
 in two reported cases, which came respectively before Sir 
 James Mansfield' and Lord EUenborough,^ in the former of 
 which it had a material influence on the judgment, both of 
 the Court and jury. 
 
 The grounds upon which these learned persons have held 
 the evidence admissible, are that in questions on the arts 
 and sciences, the evidence of persons versed in those arts is 
 daily admitted ; that the materiality of any matter can only 
 be ascertained by the evidence of persons conversant with 
 the subject-matter of inquiry ; and that neither judge nor 
 jury could arrive at a proper conclusion on such a point if 
 
 ' In Carter v. Boehm, 3 Burr. ' Riokards v. Murdook, 10 B. & 
 
 1909. Or. 527. 
 
 ' At N. P., in Durrellj!. Bederley, ' Chapman ». Walton, lOBing. 57. 
 
 1 Holt, 283. See also Elton u. Larkins, 6 C. & P. 
 
 " In Camptell v. Riokards, 5 B. 392, tried the year before the decision 
 
 & Ad. 840, the latest case on the of Chapman v. Walton, and Campbell 
 
 point. V. Riokards. 
 
 * Chanrand v. Angerstein, Peake's " Littledale v. Dixon, 1 B. & P. 
 
 N. P. 43. N. R. 151. 
 
 •■^ Berthon v. Loughman, 2 Stark. ' Haywood v. Rodgers, 4 East, 
 
 229. 690. 
 
CHAP. II.] MATEKIALITY OF CONCEALMENT. 593 
 
 miaasisted by the evidence of skilled witnesses, because 
 they could not have the experience upon which alone a 
 judgment could be satisEaotorily formed. 
 
 As far as judicial decisions are concerned, the law in the in the United 
 United States on this point is in the same unsettled state as ^***^^' 
 our own; but the more recent authorities in that couritry, 
 including Chancellor Kent,i Story, J.,2 and Jiidge Duer,' are 
 aU in favour of the admissibility of this evidence. 
 
 The arguments in favour of the admission of this evidence 
 far outweigh in the opinion of Mr. Arnould those which have 
 been urged agaiust it. As a matter of practice, the evidence 
 of underwriters and brokers on such questions is being more 
 and more resorted to,, sometimes on both sides, and frequently 
 by one side without objection by the other, the judge making 
 no difficulty when no objection is made by coimsel. 
 
 The burthen of proof of concealment lies on him who Onus et modus 
 pleads it. No doubt it must have been a question of some ^° '"'^'" 
 difficulty, so long as parties to the cause could not be 
 examined as witnesses, how far the defendant was obliged 
 to carry his negative evidence before the presumption was 
 sufficiently turned ia his favour to compel the plaintiff to 
 produce rebutting evidence. In the present state of the law 
 it would not be safe for the underwriter defending, if the 
 policy was effected with him personally, to refrain from 
 giving evidence ia person under this plea. It must more- 
 over be proved on his behalf, — 1, that the facts were known 
 to the plaintiff before the initialing of the slip ; and, 2, that 
 these facts were of such a nature that, if communicated, 
 it is unreasonable to suppose that the underwriter would 
 have taken the risk, at all events, on the same terms.* 
 
 1 3 Kent, Com, 284, note. * Per Blackburn, J., in lonides v. 
 
 " Per Story, J., in M'Lamahan v. Pender, Ii. R., 9 Q. B. 531 ; and in 
 
 Universal Ins. Co., 1 Peter's S. C. K. Stribley v. Imperial Marine Ins. Co., 
 
 188, cited in 2 Duer, 786. 1 Q. B. Div. 507 ; 2 Duer, Ins. 685, 
 
 3 2 Duer, Ins. 783-789. 686, ' 
 
 M. . , - Q « 
 
594 MATEEIALITT OF CONCEALMENT. [PABT II. 
 
 The law of Upon the discovery of tlie fact that the contract has been 
 
 relation to induced by concealment, arise the right and duty of the 
 
 concealment. 
 
 party deceived to elect whether he will affirm or disaffirm 
 the contract. The law touching this right and duty was 
 considered by the Court of Appeal in relation to the facts in 
 Morrison v. The Universal Marine Ins. Co.^ The London 
 broker of the plaintiff, being informed of an entry in a 
 Liverpool newspaper, copied, as it afterwards appeared, 
 from Lloyd's List, that The Cambria, qy. Cameo, from New 
 Orleans, was aground on the North Breakers, suppressed all 
 mention of it to the defendants, who, in ignorance of it, 
 accepted the risk, and initialed the slip on the 12th of 
 October. Two hours afterwards the defendants' under- 
 writer met the broker in Lloyd's rooms, and drew the 
 attention of the latter to the entry, who admitted that he 
 had had knowledge of the entry for some time. The policy 
 duly executed was delivered out by. the defendants to the 
 broker on the 15th, without protest or observation. On 
 the 19th it was known that the ship was lost, and on the 
 20th, the defendants informed the broker that they did not 
 hold themselves liable on the policy. It was contended on 
 the part of the plaintiff that the defendants by delivering 
 out the policy under the circumstances without protest had 
 irrevocably made their election to stand by the contract. 
 
 Blackburn, J., at the trial, told the jury that the defen- 
 dants upon coming to a knowledge of the concealment might 
 elect either to go on with the contract nevertheless, or to 
 return the premium and announce that they did not consider 
 themselves bound by the policy : but that they were bound 
 to make their election within a reasonable time. And he 
 put the question to the jury, whether the defendants in 
 delivering out the executed policy meant to elect to go on 
 with the contract. The jury answered this in the negative. 
 
 The Court of Exchequer (Martin, BramweU, and Cleasby, 
 BB.) were of opinion against the defendants. But the Court 
 * Morrison v. Universal Mar. Ins. Co., L. E., 8 Ex. 40, 197. 
 
-CHAP. II.] MATERIALITY OF CONCEALMENT. 595 
 
 of Appeal reversed the judgment below, and in stating tlie 
 law respecting election they adopted the ohservations of the 
 same Court, made in Clough v. London and North Western 
 Epaalway Company, on appeal,' a case of electing to avoid a 
 contract on the ground of fraud. In that case it was said : 
 ■" The fact that the contract was induced by fraud did not 
 render the contract void or prevent the property from 
 passing, but merely gave the party defrauded a right, on 
 discovering the fraud, to elect whether he would continue 
 to treat the contract as binding, or would disaffirm the 
 contract and resume his property. The contract continues 
 valid tin it is avoided by election; election is made by 
 express words or by act; but an election once made shall 
 be determined for ever. We think the party defrauded may 
 keep the question open so long as he does nothing to affirm 
 the contract. So long as he has made no election, he retains 
 the right to determine it either way, subject to this, that if 
 in the interval, whilst he is deliberating, an innocent third 
 party has acquired an interest in the property, or if in 
 consequence of his delaying, the position even of the wrong- 
 doer is affected, it wiU preclude him from .exercising his 
 right to rescind. And lapse of time, without rescinding, 
 -wiU furnish evidence that he has determined to affirm the 
 contract; and when the lapse of time is great, it probably 
 would in practice be treated as conclusive evidence to show 
 that he has so determined." Applying these principles to 
 the case before them, and finding it clear upon the evidence 
 that the plaintiff had suffered no injury by the delay and 
 silence of the defendants, and so far from having been 
 deterred thereby from making further insurances, that he 
 had tried to do so and been unable, the Court held that the 
 election on the part of the defendants was in due time, and 
 consequently that the policy was void.'' 
 
 ^ Clough V. London and North pared by Lord Blackburn. 
 "Western Rail. Co., L. B., 7 Ex. 34. ' Morrison v. Universal Mar. Ins. 
 
 The judgment in this case was pre- Co., L. K., 8 Exoh. 197. 
 
January, 1896. 
 
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 an Appendix of Forms, and of the Statutes relating to Arbitration. 
 By FEiHCis Russell. Seventh Edition. By the Author and Hbebeet 
 Rttssell, Esq., Barrister-at-Law. Koyal 8vo. 1891. 30s. 
 
 AVERAGE. — Hopkins' Hand-Book of Average. — ^Fourth Edition. 
 By Manlbt Hopkins, Esq. Demy 8vo. 1884. U. la. 
 
 Lowndes' Law of General Average, — English and Foreign! 
 Fourth Edition. By Riohaed Lowndes, Average Adjuster. Author 
 of " The Law of Marine Insurance," &c. Royal 8vo. 1888. 1?. 10s. 
 " The most complete store of materials relating to the subject in every par- 
 ticular." — Law Quarterly Seview, 
 
 AUCTIONEERS.— Hart's Law relating to Auctioneers,— By Hebee 
 Habt, Esq., LL.D., Barrister-at-Law. Demy 8vo. 1895. 7s. 6d. 
 
 BALLOT, — Fitzgerald's Ballot Act,— With an Litroduction. Forming 
 a Guide to the Procedure at Parliamentary and Municipal Elections. 
 Second Edjtion. By Gebau) A. R. FirzaEEALD, Esq., Barrister- 
 at-Law. Feap. 8vo. 1876. 6s. 6rf. 
 
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 BANKING, — Walker's Treatise on Banking Law. — Second Edition. 
 By J. D. 'Wai.kee, Esq., Q.C. DemySvo. 1886. 15». 
 
 BANKRUPTCY. — Lawrance's Precedents of Deeds of Arrange- 
 ment between Debtors and their Creditors ; inoluding Forme of 
 Resolutions for Compositions and Schemes of Arrangement under tiie 
 Bankruptcy Acts, 1883 and 1890, with Introductory Chapters, also the 
 Deeds of Arrangement Acts, 1887 and 1890, Tvith Notes. FouithEd. 
 By H. Aethtte Smith, Esq., Barrister-at-Law. 8vo. 1892. 7». 6rf. 
 " Concise, practical, and reliable." — Lout Times. 
 
 Williams' Law and Practice in Bankruptcy. — Comprising the 
 Bankruptcy Acts, 1883 to 1890, the Bankruptcy Rules and Forms, 
 1886, 1890, the Debtors Acts, 1869, 1878, the Bankruptcy (Discharge 
 and Closure) Act, 1887, the Deeds of AJrrangement Act, 1887, and 
 the Rules thereunder. By the Hon. Sir Rolaotj L. Vattohaw 
 WnjJAMS, a Justice of the High Court. Sixth Edition. By Edwaed 
 Wm. Hanbell, Esq., Barrister-at-Law. Roy. 8to. 1894. 25«. 
 
 *' This book -vriH now, if possible, since the appointment of its distin^nisbed 
 author as BanJoruptcy Judge, take bigber rank as an authority than beK)re." — 
 Law Journal, 
 
 BASTARDY.— Bott.— ri<fo "Affiliation." 
 
 BILLS OF EXCHANGE,— Chalmers' Digest of the Law of Bills 
 of Exchange, Promissory Notes, Cheques and Negotiable 
 Securities, Fourth Edition. By His Honour Judge Chalmees, 
 Draughtsman of the BiUs of Exchange Act. Demy 8vo. 1891. 18«. 
 " As a statement and explanation of the law, it ynil be found singularly 
 useful." — SoUdtoTB* Journal, 
 
 BILLS OF LADING,— Leggett's Treatise on the Law of Bills of 
 
 Lading, — Second Edition. By Eugene Leggett, SoUoitor and 
 
 Notary Public. DemySvo. 1893. 30«. 
 
 "A very complete and useful exposition of the law relating to this most 
 
 important branch of mercantile law." 
 
 BOOK-KEEPING,— Matthew Hale's System of Book-keeping for 
 Solicitors, containing a List of all Books necessary, with a compre- 
 hensive description of their objects and uses for the purpose of 
 Drawing BUls of Costs and the rendering of Cash Accounts to clients ; 
 also showing how to ascertain Profits derived from the business ; with 
 an Appendix. Demy 8vo. 1884. 5«. 6d, 
 
 *' The most sensible, useful, practical little work on solicitors' bookrkeeping 
 that we have seen." — Law Slmdrntf? Journal, 
 
 BRACTON. — Bracton's Note Book, A Collection of Cases decided 
 in the King's Courts during the reign of Henry the Third, annotated 
 by a Lawyer of that time, seemingly by Henry of Bratton. Edited 
 byF.W. Maitland, Esq.,Bar.-at-Law. 3 vols. 8vo. 1887. Net Zl.Zt. 
 
 BUILDING SOCIETIES,— Craies' Building Sotieties Act, 1894, 
 with Introduction and Lidex. — By W. F. Cbaies, Esq., Barrister- 
 at-Iiaw. Royal 8vo. 1894. Net Is. 
 
 Wurtzburg on Building Societies, — The Law relating to Building 
 Societies, with Appendices containing the. Statutes, Regulations, 
 Act of Sederunt, and Precedents of Rules and Assurances. Third 
 Edition. By E. A. Wubtzbubq, Esq., Barrister-at-Law. Demy 
 8vo. 1895. , 15«. 
 
 "Win be of use not only to lawyers but also to secretaries and directors of 
 bnilding societies. It is a carefully arranged and carefully written book." — 
 Law Times. 
 
 * * All gtandard Law Works are hept in Stock, m law calf and other bindiitgs. 
 
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STEVENS AND SONS, LIMITED, 
 
 CANALS.-^Webster's Law Relating to Canals.— By Eobket Gj-. 
 Wbbstee, Esq., Barrister-at-Law. Demy 8to. 1885. U. la. 
 
 CARRIERS. — Carver's Treatise on tfie Law relating to the Car- 
 riage of Goods by Sea. — Second Edition. By Thomas Gilbeet 
 Cabteb, Esq., Barrister-at-Law. Koyal 8vo. 1891. 11. 12«. 
 
 " A recognizecl authority." — Solicitors* Journal. 
 " A. caJCTul and accurate treatise." — Law Quarterly Review, 
 
 Macnamara's Digest of the Law of Carriers of Goods and Pas- 
 sengers by Land and Internal Navigation. — By Waicteb Hbnbt 
 Maonamaea, Esq., Barrister-at-La-w, Registrar to the Eailway 
 Commission. Eoyal 8vo. 1888. 11. 8». 
 
 " A complete epitome of the law relating to caxtiers of every class." — SaHuiay 
 Press. 
 
 CHAIVIBER PRACTICE,— Archibald's Practice at Judges' Cham- 
 bers and in the District Registries in the Queen's Bench 
 Division, High Court of Justice ; with Forms of Summonses and 
 Orders. Second Edition. By W. F. A. ABGHiBAin, Esq., Bar- 
 rister-at-Law, and P. E. Vizabd, of the Summons and Order De- 
 partment, Royal Courts of Justice. Royal 12mo. 1886. 15«. 
 
 CHANCERY, and Vide "Equity." 
 
 Danlell's Chancery Practice. — The Practice of the Chancery Diyision 
 • of the High Court of Justice and on appeal therefrom. Sixth Edit. 
 By L. Field, E. 0. Dtnnj, andT. Ribton, assisted hy W. H. TJpjohn, 
 Esqrs.,BarristerB-at-Law. 2 vols, in 3 parts. 8vo. 1882-84. 6Z. 6«. 
 Danlell's Forms and Precedents of Proceedings in the Chancery 
 Division of the High Court of Justice and on Appeal there- 
 from, Fourth Edition. With Summaries of the Rules of the 
 Supreme Court, Practical Notes and References to the Sixth Edition of 
 "Daniell's Chancery Practice." By Ohaeles BmuraiT, B.A. Oxon., a 
 ChiefClerkoftheHon. Mr. Justice Chitty. Royal 8vo. 1885. 2Z.10*. 
 
 CHARITABLE TRUSTS,— Mitcheson's Charitable Truists,- The 
 Jurisdiction of the Charity Commission. By Riohaed EBitnuD Mrr- 
 OHEBON, Esq., Barrister-at-Law. Demy 8to. 1887. 18s. 
 
 CHARTER PARTIES,— Carver.— Fsifo "Carriers." 
 
 Leggett's Treatise on the Law of Charter Parties. — ByEuaEHii 
 LEoaETT, Solicitor and Notary Public. Demy 8vo. 1894. 25s. 
 
 CHILDREN,— Hall's Law Relating to Children, A Short Treatise 
 on the Personal Status of Children, and the Statutes that have been 
 enacted for their protection, including the complete text of the 
 Prevention of Cruelty to Children Act, 1894, -with Notes and Forms. 
 By "W. Claexb Hall, Esq., Banister-at-La-w. Demy 8vo. 1894. 4s. 
 
 CHURCH LAW, —Whitehead's Church Law,— Being a Concise 
 Dictionary of Statutes, Canons, Regulations, and Decided Cases 
 affecting the Clergy and Laity. By BEirjAunir Whitehead, Esq., 
 Barrister-at-Law. Demy 8vo. 1892. 10s. 6d. 
 
 "A perfect mine of learning on all topics ecclesiastical.*' — Daily TeUgraph. 
 The Statutes relating to Church and Clergy (reprinted from 
 " Chitty's Statutes"), -with Preface and Index. By Benjamin 
 Whitehead, Esq., Barrister-at-Law. .Royal 8vo. 1894. 6s. 
 
 CIVIL ENGINEERS,— IWacassey and Strahan's Law relating to 
 Civil Engineers, Architects and Contractors, — Primarily in- 
 tended for their own use. By L. Livinqston Maoassbt and J. A. 
 Steahan, Esqrs., Barristers-at-Law. Demy 8vo. 1890. 10s. 6rf. 
 
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 -COLLISIONS. — Marsden's Treatise on the Law of Collisions at 
 Sea,— With an Appendix containing Extracts from the Merchant 
 Shipping Acts, and the International Regnlations. By Eeqinau) G-. 
 Maesdbn, Esq.,Barrister-at-Law. Third Edition. By the Author 
 and the Hon. J. W. Mansfibij), Barrister-at-Law. Demy 8vo. 
 1891. U. 6s. 
 
 " Clear in statement and careful in summarizing tbe restilts of decisions."— 
 Solicitor^ Journal, 
 
 COMMERCIAL LAW. — The French Code of Commerce and 
 most usual Commercial Laws, — By L. GrOiEiNi), Licenoie en 
 droit. Demy 8to. 1880. Eeduoed to net 12». 
 
 COMMON LAW.— Chltty's Archbold's Practice of the Queen's 
 Bench Division of the High Court of Justice and on Appeal 
 therefrom to the Court of Appeal and House of Lords in 
 Civil Proceedings, Foirrteenth Edition. By Thomas Willes 
 Chitty, assisted by J. St. L. Lbslie, Esqrs., Barristers-at-Law. 
 2to1s. DemySvo. 1886. (PuhlishedatSZ. 13s. 6rf.) Reduced to«e< 30*. 
 
 Chitty's Forms,— F««fe " Forms." 
 
 Fisher's Digest of Reported Decisions in all the Courts, with 
 a Selection from the Irish ; and references to the Statutes, Rules 
 and Orders of Courts from 1756 to 1883. Compiled and arranged by 
 John Mews, assisted by C. M. Chapmah, Haeet H. W. Sfabham and 
 A. H. Todd, Esqrs., Barristers-at-Law. 7 vols. Royal 8vo. 1884. 
 (Published at 12?. 12».) Reduced to net hi. 6s. 
 
 Mews' Consolidated Digest of all the Reports in all the Courts, 
 for the years 1884-88, inclusive. By John Mews, Esq., Barris- 
 ter-at-Law. Roy. 8vo. 1889. (Pub. at 11. lis. 6d.) Reduced to ««< 16«. 
 
 The Annual Digest for 1894, By John Mews, Esq., Barrister-at- 
 Law. Royal 8vo. 16»- 
 
 Pollock and Wright's Possession in the Common Law,— 
 Parts I. and II. by Sir F. Pollock, Bart. , Barrister-at-Law. Part III. 
 by R. S. Weioht, Esq., Bajrister-at-Law. 8yo. 1888. 8s. 6d. 
 
 Shirley, — Vide " Leading Cases." 
 
 Smith's Manual of Common Law,— For Practitioners and Students. 
 Comprising the Fundamental Principles, with useful Practical Rules 
 and Decisions. By Josiah W. Smith, B.C.L., Q.C. Tenth Edition. 
 By J. TiirsTEAM, LL.M., Esq., Barrister-at-Law. 12rao. 1887. 14s. 
 
 COMPANY LAW,— Hamilton's Manual of Company Lawr For 
 Directors and Promoters. By "Wtt.t.tam Feedebick HliimroN, LL.D. 
 (Lond.), assisted by Kennaed Golboene Mbtoaipe, M.A., ESqrs., 
 Barristers-at-Law. Demy 8to. 1891. 12s.6d. 
 
 " . . . . May be safely recommended as a most useful manual of the law "with 
 which it deals." — Law Gazette. 
 Mackenzie, Geare, and Hamilton's Company Law,— An Abridg- 
 ment of the Law contained in the Statutes and Decisions, Alpha- 
 betically Arranged. By M. MuiE Mackenzie, E. A. Geaee, and 
 G-. B. Hamilton, Esqrs., Barristers-at-Law. Roy. 8vo. 1893. 21s. 
 
 Palmer's Private Companies and Syndicates, their Formation and 
 Advantages ; being a Concise Popular Statement of the Mode of Con- 
 verting a Business into a Private Company, and of establishing and 
 working Private Companies and Syndicates. Twelfth Edition. By 
 F. B. Palmbe, Esq., Barrister-at-Law. 12mo. 1895 Is. 
 
 Palmer,— r«<?« " Convey aneing" and "Winding-up." 
 '^* All standard Law Works are kept in Stock, in Um calf md other bindings. 
 
 • 
 
STEVENS AMD SONS, LIMlTEt), 
 
 COMPANY LA\N— continued. 
 
 Palmer's Shareholders, Directors, and Voluntary Liquidators' 
 Legal Companion.— A Manual of Every-day Law and Practice for 
 Promoters, Shareholders, Direotors, Seoretaries, Creditors, Solicitors, 
 and Voluntary Liquidators of Companies under the Companies Acts, 
 ■with Appendix of useful JForms. Fifteenth edit. By F. B. Palmeb, 
 Esq., Barrister-at-Law. 12mo. 1895. Net, 2». 6rf. 
 
 Street's Law relating to Public Statutory Undertaking;s; com- 
 prising Railway Companies, Water, G-as, and Canal Companies, Har- 
 bours, Docks, &c., with special reference to Modem Decisions. By J. 
 BameieldStbebt, Esq., Barrister-at-Law. DemySvo. 1890. 10s. 6d. 
 
 COMPENSATION.— Cripps' Treatise on the Principles of the 
 Law of Compensation. Third Edition. By C. A. Cbiffb, Esq., 
 Q.O. Demy 8vo. 1892. 20». 
 
 " An accurate exposition of the law." — Law Journal. 
 
 COMPOSITION DEEDS.— Lawrance.— Fi* "Banimptcy." 
 
 CONSIDERATION.— Jenks' History of the Doctrine of Consider- 
 ation. — ByEDWAiED Jenks, Barrister-at-Law. Post 8to. 1892. 3s. 6d. 
 CONSTITUTION.— Anson's Law and Custom of the Constitution, 
 By Sir William K. Anson, Bart., Barrister-at-Law. Demy 8vo. 
 Parti. Parliament. Second Edition. 1892. 12«. 6rf. 
 
 Partn. The Crown. 1892. lis. 
 
 CONTRACT OF SALE.— Blackburn.— Fi& "Sales." 
 
 Moyle's Contract of Sale in the Civil Law. — ^With References to 
 the Laws of England, Scotland, and France. By J. B. Moyle, 
 Esq., Barrister-at-Law. 8vo. 1892. 10s. 6d. 
 
 CONTRACTS.— Addison on Contracts. — A Treatise on the Law of 
 Contracts. 9th Edit. By Hobaob Smith, Esq., Bencher of the Inner 
 Temple, Metropolitan Magistrate, assisted by A. F. Febceval Keep, 
 Esq., Barrister-at-Law. Royal 8vo. 1892. 21. 10s. 
 
 " This and the companion treatise on the law of torts are the most complete 
 works on these suhjects, and form an almost indlEfpensahle part of every lawyer's 
 library." — Law Journal. 
 
 Anson's Principles of the English Law of Contract. — By Sir 
 William R. Anson, Bart., Barrister-at-Law. Seventh Edit. Demy 
 8vo. 1893. 10s. 6d. 
 
 Finch's Selection of Cases on the English Law of Contract. — By 
 G. B. FiNOH, Esq., Barrister-at-Law. Royal 8vo. 1886. 28*. 
 
 Fry. — Vide " Specific Performance." 
 
 Leake's Law of Contracts. — A Digest of Principles of the Law of 
 Contracts. Third Edition. By Stephen Mabun Leaze, Esq., 
 Barrister-at-Law. Demy 8vo. 1892. 32s. 
 
 *' Complete, axjcurate, and easy of reference." — SoUcitors* Journal. 
 " Clear, concise, accurate, and exhaustive." — Imw Times. 
 " Leake treats the subject from every point of view in which it can interest 
 the litigant."— Sib Wm. Ahsoh. 
 
 Pollock's Principles of Contract. — Being a Treatise on the General 
 Principles relating to the Validity of Agreements in the Law of 
 England. Sixth Edition. By Sir Feedebiok Follooe, Bart., Bar- 
 rister-at-Law, Author of "The Law of Torts," "Digest of the 
 Law of Partnership," &c. Demy 8to. 1894. 28s. 
 
 Smith's Law of Contracts. — Eighth Edition. By V. T. Thompson, 
 Esq., Barrister-at-Law. Demy 8vo. 1886. 1/. Is. 
 
 %* A U standard Law Works are kept in Stock, in law ealf and other imOngs. 
 
119 & 120, OHAi^^CERT LANE, LONDON, W.O. 
 
 CONVEYANCING,— Dart,— riife " Vendors and Purchasers." 
 
 Greenwood's Manual of Conveyancing, — A Manual of the 
 Practice of ConTeyancing, showing the present Practice relating to 
 the daily routine of Conveyancing in Solicitors' Offices. Eighth 
 Edition. Edited by Haebt GtBeenwood, M.A., LL.D., Esq., Bar- 
 rister-at-Law. Demy 8vo. 1891. 16«. 
 
 "A complete guide to Conveyancing Where and how the author 
 
 obtained his information ib a perfect puizle to us, and no conceivable state of 
 affairs seems to have been left unprovided for."— iaw Gazette. 
 
 " "We Bhould like to see it placed by his principal in the hands of every articled 
 clerk. One of the most useful practical works we have ever seen." — Law Students 
 Jourrtdl. 
 Morris's Patents Conveyancing, — Being a Collection of Precedents 
 in Conveyancing in relation to Letters Patent for Inventions. 
 With Dissertations and Copious Notes on the Law and Practice. By 
 EoBEET MoEKis, Esq., Barrister-at-Law. Royal 8vo. 1887. 11. 6s. 
 
 "Well selected, well arranged, and thoroughly practical." — Law Timea. 
 
 Palmer's Company Precedents, — Eor use in relation to Companies 
 subject to the Companies Acts, 1862 to 1890. Part I. Arranged as 
 follows: — Promoters, Prospectus, Agreements, Underwriting, Memo- 
 randa and Articles of Association, Private Companies, Employes' 
 Benefits, Eesolutions, Notices, Certificates, Powers of Attorney, 
 Debentures and Debenture Stock, BanMng and Advance Securities, 
 Petitions, Writs, Pleadings, Judgments and Orders, Eeoonstruction, 
 Amalgamation, Special Acts. With Copious Notes and an Appendix 
 containing the Acts and Rules. Sixth Edit. By Pbanois Beaupobt 
 Pat.htke, assisted by Chaeles Maonaqhtbn and Aethtte John Chittt, 
 Esqrs., Barristers-at-Law. Royal 8to. 1895. \l. 16«. 
 
 Part II. WiNBiNO-XJp AND Aeeanoements. With Copious 
 Notes, and an Appendix of Acts and Rules. Sixth Edition. 
 By P. B. Paimee, assisted by Eeank Evans, Esqrs., Bar- 
 risters-at-Law. Royal Svo. 1896. [Nea/rly ready.) 
 " No company lawyer can afford to be without it." — Law Journal. 
 " The new edition of Mr. Palmer's work is a distinct improvement even upon 
 its excellent and unrivalled predecessors, and we can confidently recommend it 
 to the profession, and to all others interested in company law." — Law Times, ■ 
 Oct. 19, 1895. 
 
 Prideaux's Precedents in Conveyancing — With Dissertations on 
 its Law and Practice. 1 6th Edit. By John Whitcombe and Bethunb 
 HoESBETTQH, Esqrs., Barristers-at-Law. 2vols. Royal8vo. 1895. Sl.lOs. 
 
 " We adhere to the statement made when reviewing a previous edition, that 
 * Frideaux * is the best work on Conveyancicg. The manner in which it is kept up 
 to date will make it more than everafavourite with conveyancers." — LawJoumatj 
 April 27, 1895. 
 
 *' A clerk who has but small legal knowledge can frame a draft correctly, if 
 indeed the draft is to follow closely any of the precedents contained in this book, 
 with only a moderate amount of supervision from his principal." — Law Quarterly/ 
 Beviewj July, 1895. 
 
 ** Accurate, concise, dear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner." — 
 Law Times. 
 
 Turner's Duties of Solicitor to Client as to Partnership Agree- 
 ments, Leases, Settlements, and Wills, — By Edwaed P. 
 Ttjenbe, Solicitor. Demy 8vo. 1884. 10s. 6d. 
 
 COPYHOLD,— The Copyhold Act, 1894,— With a short Introduc- 
 tion, Notes, and Index. — By W. A. Peck, Esq., Barrister-at-Law. 
 Royal Svo. 1894. Net, Is. 6d. 
 
 CORONERS, — Jervis on the Office and Duties of Coroners, — 
 With Eorms and Precedents. By R. E. Melshbimee, Esq., Barrister- 
 at-Law. Fifth Edition. Post Svo. 1888. 10s. 6tl. 
 " The standard work on the subject." — Law Times. 
 
 •,* All standard Law Works are Icept in Stock, in law calf and other bindings. 
 
8 STEVENS AND SONS, LrMITED, 
 
 COSTS. — SummerhaysandToogood's Preoedentsof Bills of Costs 
 In the Chancery, Queen's Bench, Probate, Divorce and Ad- 
 miralty Divisions of the High Court of Justice; mConveyanoing; 
 Bankruptcy ; Lunacy ; Arbitration ; the Mayor's Court ; the County 
 Courts ; the Piivy Council, &c., &o. By Wm:. Fkakk Stjmmeehats, 
 and Thoenton ToooooD, Solicitors. Seventh Edition. ByTHOENTON 
 ToooooD, Solicitor. Boyal 8vo. 1895. [Nearly ready.) U. 10s. 
 
 Webster's Parliamentary Costs, — Private BiUs, Election Petitions, 
 Appeals, House of Lords. Eourtii Edition. By C. Cavanaoh, Esq., 
 Barrister-at-Lav^. Post 8vo. 1881. 20». 
 
 COUNTY COUNCILS.— Bazalgette and Humphreys, Chambers. 
 — Vide "Local and Municipal Grovemment." 
 
 COUNTY COURTS.— The Annual County Court Practice, 
 1896. — By His Honour Judge Smtlt, Q.C. 2 vols. Demy 8vo. 
 
 (Seady m Ja/imary.) 11. Sa. 
 
 Pitt-Lewis' County Court Practice.— By &. Pitt-Lewis, Esq., Q.C., 
 
 Eeoorder of Poole. 3 vols. Demy 8vo. 1890-91. 21. 10». 
 
 COVENANTS.— Hamilton's Law of Covenants.— A Concise Treatise 
 on the Law of Covenants. By G-. Bauiwih Hauh/ton, Esq., Bar- 
 rister-at-Law. Demy 8vo. 1888. 7«. 6d. 
 
 CRIMINAL LAW. — Archbold's Pleading and Evidence in Criminal 
 Cases. — ^With the Statutes, Precedents of Indictments, &c., and the 
 Evidence necessary to support them. Twenty-first Edition. By 
 William Betjob, Esq., Stipendiary Magistrate for the Borough of 
 Leeds. Koyal l2mo. 1893. 11. lit. &d. 
 
 Chitty's Collection of Statutes relating to Criminal Law. — (Re- 
 printed from "Chitty's Statutes.") With an Introduction and Index. 
 By W. E. CEAiBa, Esq., Barrister-at-Law. B«yal 8vo. 1894. 10». 
 Disney and Gundry's Criminal Law. — A Sketch of its Principles 
 and Practice. By Henet W. Disney and Haeold Guttdet, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1895. 7». 6d. 
 
 "We think we have here just what students want. The work is based upon a 
 perfect knowledge of the statute law, and is compiled from the best and most 
 recent authorities." — Law TimeSt Aug. 3, 1895. 
 
 '* The book is well written and arranged, and will be found useful by students, 
 and by persons who desire to gain a general acquaintance with the criminal law." 
 — Solicitors* Journal^ Oct. 5, 1895. 
 
 Rosooe's Digest of the Law of Evidence in Criminal Cases. — 
 Eleventh Edition. By Hoeaoe Smith and Gilbbet Geoeqb Ken- 
 nedy, Esqrs., Metropolitan Magistrates. DemySvo. 1890. ll.lla.&d. 
 "To the criminal lawyer it is his guide, philosopher and friend. "What 
 lioacoe says most judges will accept without question." — Lom Times. 
 
 Russell's Treatise on Crimes and Misdemeanors.— Sixth Edit. 
 By Hoeaoe Smith, Esq., Metropolitan Police Magistrate, and A. P. 
 Peeoeval Keep, Esq., Bairister-at-Law. 3vols. Roy. 8vo. 1896. 
 
 [Nearly ready.) hi. 15*. 6<?. 
 
 Shirley's Sketch of the Criminal Law.— By W.'S. Shielet, Esq., 
 Bamster-at-Law. Second Edition. By Chaeles Stephen Huntee, 
 Esq., Barrister-at-Law. Demy 8vo. 1889. 7«. &d. 
 
 Warburton. — Vide " Leading Oases." Thring. — Vide "Navy." 
 DEATH DUTIES— Freeth'sGuide to the New Death Duty charge- 
 able under Part I. of the Finance Act, 1894, with an Introduction and 
 an Appendix containing the Act and the Forms issued for use under 
 it. Re-issue with Revised Forms. By Evelyn Febbth, Deputy- 
 Controller of Legacy and Succession Duties. Demy8vo. 1895. 7«. 6rf. 
 " The official position of the Author renders his opinion on questions of proce- 
 dure of great value, and we think that this book will be found very tiseful to 
 solicitors who have to prepare accounts for duty." — SoUcUorif Jour. 
 
 •„* All standard La/u) Works are kept in Stock, in law cay and other lindingt. 
 
119 & 120, OHAKCERT LANE, LONDON, W.O. 9 
 
 DEATH DUTIES— eontimied. 
 Harman's Finance Act, 1 894, so far as it relates to the Death Duties, 
 and more especially the New Estate Duty. With an Introduction 
 and Notes, and an Appendix of Forms. By John Eustace Hab- 
 MAN, Esq., Barrister-at-Law. Royal 12mo. 1894. 5s. 
 
 " This book gives a very concise account of the old ^eath duties, followed by 
 a short account of the new estate duty, as an introduction to the Pinance Act, 
 1894. . . . with explanatory notes." — SoUcitors* Journal, 
 
 Leiy and Craies' Finance Act, 1894 (57 & 58 Vict. o. 30).— With 
 Notes and Index, and an Introduction specially directed to the Death 
 Duties as affected by the Act. By J. M. Lelt and W. E. Craies, 
 Esqrs., Barristers-at-Law. Royal 8vo. 1894. Net Is. 
 
 DECISIONS OF SIR GEORGE J ESS EL,— Peter's Analysis and 
 Digest of the Decisions of Sir George Jessel ; with Notes, &c. 
 By AP8I.ET Petbe Petee, Solicitor. Demy 8to. 1883. 16«. 
 
 DIARY.— Lawyers' Companion (The) and Diary, and London and 
 Provincial Law Directory for 1896.— For the use of the Legal 
 Profession, Public Companies, Justices, Merchants, Estate Agents, 
 Auctioneers, &c., &o. Edited by Edwin Layman, Esq., Barrister-at- 
 Law ; and contains Tables of Costs in the High Court of Judicature 
 and County Court, &o. ; Monthly Diary of County, Local Government, 
 and Parish Business ; Oaths in Supreme Court ; Summary of Sta- 
 tutes of 1896 ; Alphabetical Index to the Practical Statutes since 
 1820 ; Schedule of Stamp Duties ; Legal Time, Interest, Discount, 
 Income, Wages and other Tables ; the New Death Duties ; and a 
 variety of matters of practical utility : together with a complete List 
 of the English Bar, and London and Country Solicitors, with date 
 of admission and appointments. Published Annually. Fiftieth 
 Issue. 
 Issued in the following forms, octavo size, strongly bound in cloth : — 
 
 1. Two days on a page, plain da.Od. 
 
 2. The above, intbbleaved for Attendances . . . .70 
 
 3. Two days on a page, ruled, with or without money columns . S 6 
 
 4. The above, with money columns, intbeleaved for Attendances .80 
 
 5. Whole page for each day, plain 7 6 
 
 6. The above, inteeleaved for Attendanobs . . . .96 
 
 7. 'Whole page for each day, ruled, with or without money columns 8 6 
 
 8. The above, inteeleaved for Attendances . . . 10 6 
 
 9. Three days on a page, ruled blue lines, without money columns . 6 
 
 The Diary contains memoranda of Legal Business throughout the Tear. 
 
 " Combines everything required for reference in the lawyer's office."— iaio 
 Times. 
 
 " The amount of information packed within the covers of this well-known 
 book of reference is almost incredible. In addition to the Diary, it contains 
 nearly 800 pages of closely printed matter, none of which could be omitted without, 
 perhaps, detracting from the usefulness of the book. The publishers seem to 
 have made it their aim to include in the Companion every item of information 
 which the most exacting lawyer could reasonably expect to find in its pages, 
 and it may safely be said that no practising solicitor, who has experienced the 
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 DICTIONARY.— The Pocket Law Lexicon.— Explaining Technical 
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 DISCOVERY.— Sichel and Chance's Discovery, — The Law relating 
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 DIVORCE. — Browne and Powles' Law and Practice in Divorce 
 
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 Barrister-at-Law. Demy 8vo. 1889. 11. 6s. 
 
 "The practitioner's standard work on divorce practice." — Law Quarterly 
 
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 Kelly's French Law. — Vide "Marriage." 
 
 DOGS. — Lupton's Law relating to Dogs. — By Febdbeiok Lupion, 
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 Rogers' Law and Practice of Elections. — 
 
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 Vol. II. PARTTATvrEKTABY ELECTIONS AJTD PETITIONS ; with Appen- 
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 "The leading hook on the difficult subjects of elections and election peti- 
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 ENGLISH LAW.— Pollock and Maitland's History of English Law 
 iaefore the time of Edward I. — By Sir Fbedeeick Pollock, Bart., 
 andFEED.W. MAiTLAirD,Barri8ters-at-Law. 2vols.roy.8vo. 1895. 11. 
 EQUITY, <?«<? rj<fe CHANCERY, 
 Chitty's Index.— F«e "Digests." 
 
 Kerly's Historical Sketch of the Equitable Jurisdiction of the 
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 Seton's Forms of Judgments and Orders in the High Court of 
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 ESTOPPEL.— Everest and Strode's Law of Estoppel', By Lancelot 
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 EXECUTIONS,— Edwards' Law of Execution upon Judgments 
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 FARM, LAW OF. — Dixon's Law of the Farm: including the Cases 
 
 and Statutes relating to the subject ; and the Agricultural Customs 
 
 of England and Wales. FifthEfition. By Aubeet J. Spenoee, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1892. 26«. 
 
 " The book is well and carefully edited." — Law Journal. 
 
 " A complete modern compendium on agricultuial matters." — Law Timeft. 
 
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 FIXTURES. — Amos and Ferard on the Law of Fixtures and other 
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 ** An accurate and well written work," — Satwrday Seview, 
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 Division. Twelfth Edition. By T. W. Chitty, Esq., Baxrister-at- 
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 " The standard work on Chancery Procedure," — Law Qua/rterly Review. 
 FRAUD AND MISREPRESENTATION.— MoncreifPs Treatise 
 on the Law relating to Fraud and Misrepresentation. — By 
 the Hon. F. MoNCEEiTP, Barrister-at-Law. 8vo. 1891. 21«. 
 
 FRENCH CIVIL CODE.— Cachard's French Civil €ode, with the 
 various Amendments thereto, as in force on March 15th, 1895. 
 — By Henet Cachaee, B,A., and Counsellor-at-Law of the New 
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 1895. 20». 
 
 "It would involve a denial of the plainest justice to contend that the Cod-^ 
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 Code of Commerce. — Vide" Commercial Law." 
 GOODWILL,— Allan's Law relating to Goodwill,— By Chaeibs E. 
 Ai-i.Aif,M.A.,LL.B.,Esq.,Barri8ter-at-Law. Demy8vo. 1889. Is.&d. 
 ** A work of much value." — Solicitors' Journal. 
 
 HIGHWAYS,— Chambers' Law relating to Highways and Bridges, 
 being the Statutes in full and brief Notes of 700 Leading Cases. By 
 GrEOBOE F. Chambbes, Esq., Barrister- at-Law. 1878. Is. 6d. 
 
 HOUSE TAX.— Ellis' Guide to the House Tax Acts, for the use of 
 the Payer of Inhabited House Duty in England,— By Aethtje 
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 Income Tax Acts." Royal 12mo. 1885. 6». 
 
 " We have found the information accurate, complete and very clearly ex- 
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 ** Contains in a convenient form the law l>earing upon the Income Tax." — Law 
 
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 Robinson's Law relating to Income Tax^ with the Statutes, 
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 Ireland. — By Aethtje Eobinsoit, Esq., Barrister-at-Law. Eoyal 
 8vo. 1895. 21». 
 
 " Mr. Bobinson has -written a; book which should rank as the standard work 
 on a complieated and difficult subject."— iow Jov/mal, 
 
 " Mr. Bobinson has exercised the greatest care in the work, which commends 
 iiself to our judgment in every respect." — Law Times. 
 
 INLAND REVENUE CASES.— Highmore's Summary Proceed- 
 ings in Inland Revenue Cases in England and Wales. — Second 
 Edition. By N. J. Hiqhmoeb, Esq., Barrister- at-Law, and of the 
 Solicitors' Department, Inland Eevenue. Eoy. 12mo. 1887. Is.dd. 
 
 INSURANCE. — Arnould on the Law of Marine Insurance.— Sixth 
 Edition. By David MA.oiii.OHLXS, Esq., Barrister-at-Law. 2 vols. 
 Eoyal 8vo. 1887. 31. 
 
 "As a text book, *Amould' is now all the practitioner can waat."— Law Times ^ 
 Lowndes' Practical Treatise on the Law of Marine Insurance. — 
 By EiOHABD Lo-wuDES. Author of " The Law of General Average," 
 &o. Third Edition. By Waltee Lownbes. {In preparation.) 
 
 MoArthuron the Contract of Marine Insurance. — Second Edition. 
 By Chaexbs MoAbthtjb, Average Adjuster. Demy 8vo. 1890. 16«. 
 " The work is carefully executed and brought down to date." — Law Journal. 
 Tyser's La.w relating to Losses under a Policy of Marine Insur- 
 ance. — By Oeaeles Eobbet Ttsbe, Esq., Barrister-at-Law. Demy 
 8vo. 1894. 10». 6d. 
 
 " A dear, correct, fuU, and yet concise statement of the law." — Law Times. 
 " The substantive part of the book is systematically arranged and clearly 
 stated." — Law Journal. 
 
 INTERNATIONAL LAW.— Hall's International Law.— Fourth Edit. 
 Demy 8vo. 1895. U. 2s. 6d. 
 
 Hall's Treatise on the Foreign, Powers and Jurisdiction of the 
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 SALES OF LAND.— Gierke and Humphry's Concise Treatise 
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 Svo. 1885. 1'. S». 
 
 SALVAGE.— Kennedy's Treatise on the Law of Civil Salvage.— By 
 
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 " The best work on the law of salvage. It is a complete exposition of the 
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 Royal Svo. 1894. 25«. 
 
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 Royal Svo. 1892. 6». 
 
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 " A useful ^de to those who deEiire to understand the present state of the 
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 STATUTE LAW.— Wilberforce on Statute Law. The Principles 
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 STATUTES, and vide " Acts of Parliament." 
 Chitty's Statutes,— New Edition.— The Statutes of Practical Utility, 
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 1848 — ^1884i including Proceedings Preliminary and Subse- 
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 TAXPAYERS' GUIDES.— F«fe "House," "Income," & "Land Tax." 
 
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 TITHES, — Easterby's History of the Law of Tithes in England, — 
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 " An indispensable addition to every lawyer's library." — Law Magazine, 
 
 Ball's Leading Cases on the Law of Torts, with Notes. Edited 
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 " Concise, logically arranged, and accurate." — Law Times. 
 
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 Shearwood's Sketch of the Law of Tort for tbe Bax and Solicitors' 
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 TRADE MARKS.— Aston.— r«fe" Patents." 
 
 Sebastian on the Law of Trade Marks and their Registration, 
 and matters oonneoted therewith, including a chapter on Goodwill ; 
 together with the Patents, Designs and XVade Marks Acts, 1883-8, 
 and the Trade Marks Rules and Instructions thereunder ; Porms and 
 Precedents ; the Merchandize Marks Act, 1887, and other Statutory 
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 " Stands alone as an authority upon the law of trade-marks and their regis- 
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 By Lewis BoTsSsBASKiAir, Esq., Barrister-at-Law. 8to. 1879. 12. U. 
 
 " Will be of very great value to aU practitioners who have to advise on matters 
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 TRAMWAYS.— Sutton's Tramway Acts of the United Kingdom! 
 with Notes on the Law and Practice, an Introduction, including tiie 
 Proceedings before the Committees, Decisions of the Referees with 
 respect to Locus Standi, and a Summaiy of the Principles of Tramway 
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 Second Edition. ' By Henet Stoton, assisted by Robebt A. Ben- 
 nett, Barristers-at-Law. Demy 8to. 1883. 15». 
 
 TRUST FUNDS.— Geare's Investment of Trust Funds.— Incorpo- 
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 Trusts Investment Act, 1889. By Edwaed Aeundbl GtEAee, Esq., 
 Barrister-at-Law. Royal 12mo. 1889. 7s. 6d. 
 
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 a Guide for Trustees to Investments. By Aethub Lbb Ellis, Esq., 
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 " The entire Act is annotated, and the way in which this is done is satis- 
 factory." — Law Journal. 
 
 " Mr. Arthur Lee Ellis gives many valuable hints to trustees, not only with 
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