UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A 
 
 TREATISE 
 
 LAW OF INSURANCE. 
 
 By WILLARD PHILLIPS. 
 
 IN TWO VOLUMES. 
 
 FIFTH EDITION. 
 
 VOL. L 
 
 NEW YORK: 
 PUBLISHED BY IIURD AND HOUGHTON, 
 
 459 Broome Street. 
 
 1867.
 
 Entered according to Act of Congress, in the year 1867, by 
 
 WiLLARD Phillips, 
 
 in the Clerk's Office of the District Court of the District of Massachusetts. 
 
 T 
 
 m^ 
 
 RIVERSIDE, CAMBRIDGE: 
 PKINTED BY H. O. HOUGHTON AND COMPANY.
 
 r 
 
 PREFACE 
 
 In the present fifth edition of this work, bearing date 
 forty-four years after the original one, those consulting it 
 will find additions and modifications, supplied by recent 
 jurisprudence as well as by revision ; instances of which 
 will be found in respect to implied warranty in time poli- 
 cies ; express warranties in fire insurance ; assignment of 
 policies ; alienation of the subject ; premium notes ; pecu- 
 liarities of mutual insurance companies ; subrogation or 
 salvage in fire insurance ; and especially under life policies. 
 Eight hundred additional recently adjudicated cases have 
 been stated or cited, and some retrenchments have been 
 made. 
 
 I wish still especially to commemorate the kindness of 
 the late Honorable George Cabot, of Boston, in giving 
 me the benefit of his experience as president of a marine 
 insurance company, in the settlement of losses ; and also 
 that of the late Christian Mayer, President of the Patapsco 
 Insurance Company of Baltimore. D. A. Gleason, Esq., of 
 Boston, has rendered me his valuable assistance in prepar- 
 ing the present edition. 
 
 WILLARD PHILLIPS. 
 
 Cambridge, Massachusetts, 
 September, 1867. 
 
 735727
 
 /
 
 CONTENTS. 
 
 CHAPTER I. 
 
 OF THE CONTRACT OF INSURANCE. 
 
 Sect. 1. Insurance defined and 
 
 explained 1 
 
 2. The Form of the Con- 
 
 tract 4 
 
 3. An Agreement for In- 
 
 surance 10 
 
 4. The Execution of the 
 
 Contract 21 
 
 6. The Provisions of a Com- 
 mercial Policy 25 
 
 6. The Provisions of a Fire 
 
 Policy 40 
 
 7, The Provisions of a Life 
 
 Policy 43 
 
 Sect. 8. What is comprehended 
 by the Policy as being 
 a part of it 44 
 
 9. Renewal of the Con- 
 tract 50 
 
 10. Assignment of the Pol- 
 
 icy 53 
 
 11. Alteration and Cancel- 
 
 ling of the Policy 69 
 
 12. The Judicial Correction 
 
 of Mistakes 71 
 
 13. Leading Princijjles of 
 
 Construction. — Usage 73 
 
 CHAPTER H. 
 
 WHO MAY BE INSURED. 
 
 Sect. 1. Capacity to Contract 
 2. Alien Enemy 
 
 94 I Sect. 3. National Character. — 
 94 I Domicile 
 
 99 
 
 CHAPTER m. 
 
 INSURABLE INTEREST. 
 
 Sect. 1. What Interest is sufE- I Sect. 2. The Legality of the In- 
 
 dent 106 I terest 119
 
 VI 
 
 CONTENTS. 
 
 Sect. 3. Interest of a Mortgager 
 
 4. Interest of a Mortgagee 
 
 5. Interest of a Lender in 
 
 Bottomry and Respon- 
 dentia 
 
 6. Interest of a Borrower 
 
 in Bottomry and Re- 
 spondentia 
 
 7. Interest of a Consignee, 
 
 Factor, Agent, or Car- 
 rier 
 
 8. Interest in Profits 
 
 PAGE 
 
 151 
 153 
 
 156 
 
 160 
 
 161 
 166 
 
 Sect. 9. 
 
 "nterest of Captors and 
 
 
 
 Prize Agents 
 
 169 
 
 10. 
 
 Interest of the Char- 
 
 
 
 terer of a Ship 
 
 170 
 
 11. 
 
 Interest in Freight 
 
 171 
 
 12. 
 
 Interest in Fishing Voy- 
 
 
 
 ages 
 
 181 
 
 13. 
 
 Interest in Fire Insur- 
 
 
 
 ance 
 
 183 
 
 14. 
 
 Interest in Lives 
 
 185 
 
 15. 
 
 Interest in Double In- 
 
 
 
 surance 
 
 187 
 
 16. 
 
 Interest in Reinsurance 
 
 194 
 
 CHAPTER IV. 
 
 THE PARTIES TO AN INSURANCE. DESCRIPTION OF THE 
 
 ASSURED ........ 
 
 196 
 
 CHAPTER V. 
 
 DESCRIPTION OF THE SUBJECT. 
 
 Sect. 1. Description of the Sub- 
 ject in General. — Of 
 different Kinds of In- 
 terest, as Owner, Mort- 
 gagee, &c. 217 
 2. Cargo, Goods, Wares, 
 
 Merchandise,Property 223 
 
 Sect. 3. Profits 239 
 
 4. Ship 240 
 
 5. Freight 244 
 
 6. Subject of Fire Policies 249 
 
 7. Of Fishing Voyages 258 
 
 8. Of Reinsurance 254 
 
 CHAPTER VI. 
 
 THE PREMIUM. 
 
 At Certain Rate, amount must depend on Amount at Risk 
 
 257
 
 CONTENTS. 
 
 Vll 
 
 CHAPTER VII. 
 
 REPRESENTATION AND CONCEALMENT. 
 
 1. What is a Eepi-esenta- 
 
 tion or Concealment 274 
 
 2. To what Time the Doc- 
 
 trine of Representa- 
 tion refers 296 
 
 3. Revocation of the Order 297 
 
 4. Representation or Con- 
 
 cealment by an Agent 298 
 
 5. Construction of a Rep- 
 
 resentation ?00 
 
 6. What Facts must in 
 
 general be Disclosed 
 and in what Manner 304 
 
 7. Speciesof Property, and 
 
 Nature of the Interest 315 
 
 8. Usages of the Trade 
 
 need not be Disclosed 316 
 
 9. Evasion of Foreign 
 
 Commercial and Mu- 
 nicipal Regulations 318 
 
 10. Matters of Express Stip- 
 
 ulation in the Policy 320 
 
 1 1. Matters of Implied War- 
 
 ranty or Stipulation 321 
 
 Sect. 12. What Kinds of Intelli- 
 gence must be Com- 
 municated 325 
 
 13. Time of Sailing or be- 
 
 ing Spoken 331 
 
 14. National Character and 
 
 Belligerent Risk 336 
 
 15. Representation and 
 
 Concealment in In- 
 surance against Fire 341 
 
 16. Representation and 
 
 Concealment in Life 
 Insurance 351 
 
 17. Presumption from the 
 
 Rate of Premium 360 
 
 18. The Withdrawing, Su- 
 
 perseding, or Waiv- 
 er of a Representa- 
 tion 361 
 
 19. Compliance with a Rep- 
 
 resentation '365 
 
 20. Effect of a Conceal- 
 
 ment or Misrepre- 
 sentation 369 
 
 CHAPTER VHI. 
 
 rMPLIED WARRANTIES, CONDITIONS, AND STIPULATIONS. 
 
 Sect. 1. What Warranties, Con- 
 ditions, and Stipula- 
 tions are implied 375 
 2. Seaworthiness of the 
 
 Ship 3 78 
 
 3. Lei'al Conduct 
 
 406 
 
 Sect. 4. Belligerent Risks 407 
 
 5. The Abrogation of an 
 Implied Warranty, 
 Condition, or Stipula- 
 tion 4 1 2
 
 VIU 
 
 CONTENTS. 
 
 CHAPTER IX. 
 
 EXPRESS WARRANTIES, STIPULATIONS, AND CONDITIONS. 
 
 Sect. 1. What constitutes an Ex- 
 press Warranty 
 
 2. Construction of, and 
 
 Compliance with an 
 Express Warranty 
 
 3. Warranty of the Time 
 
 of Sailing 
 
 413 
 
 418 
 
 423 
 
 4. Warranty of Convoy 430 
 6. Warranty of Neutral 
 Property, its Eorm, 
 Import, and Construc- 
 tion. — Ownership 431 
 
 6. Origin of Property war- 
 
 ranted Neutral 436 
 
 7. Documents, Proofs, and 
 
 Insignia of Neutral 
 Property 437 
 
 Sect. 8. Warranty of Neutral 
 Property requires 
 
 Neutral Trade, Em- 
 ployment, and Con- 
 duct 442 
 9. Particular Warranties 
 
 and Conditions 458 
 
 10. Warranties, Conditions, 
 
 and Stipulations in 
 Fire Policies 464 
 
 11. Warranties, Conditions, 
 
 and Stipulations in 
 Life Policies 491 
 
 12. Stipulation for Set-off 498 
 
 13. Waiver of Forfeiture by 
 
 Non-compliance with 
 
 an Express Warranty 499 
 
 CHAPTER X. 
 
 WHAT RISKS MAY BE INSURED AGAINST . 
 
 503 
 
 CHAPTER XL 
 
 THE VOYAGE. DURATION OF THE RISK. 
 
 Sect. 1. At what Time or Place i Sect. 2. Termination of the Risk 530 
 
 the Risk begins 510 \ 3. Suspension of the Risk 649 
 
 CHAPTER XH. 
 
 DEVIATION AND CHANGE OF RISK. 
 
 Sect. 1. Of Deviation and Change 
 of Risk in general. — 
 The Effect 553 
 
 Sect. 2. The Substitution of an 
 entirely other Voy- 
 age 659
 
 CONTENTS. 
 
 IX 
 
 Sect. 3. Change of the Risk in 
 Port. — Time and Man- 
 ner of Loading and 
 Landing Cargo 563 
 
 4. Varying unnecessarily 
 
 from the usual Course 565 
 
 5. Intention to Deviate 566 
 
 6. Delay after the Risk has 
 
 begun, either in Port 
 
 or on a Passage 568 
 
 7. Usage will justify Deflec- 
 
 tions and Delay of the 
 Voyage 572 
 
 8. Liberty to turn from the 
 
 direct or usual Course 
 or to delay or vary 
 from the usual Risks 573 
 
 9. Turning off and Delay 
 
 for Repairs or to Re- 
 fit 684 
 
 Sect. 10. Turning off to avoid 
 Peril insured against, 
 or not insured against 585 
 
 11. Delay for the Purpose 
 
 of succoring the Dis- 
 tressed, or to save the 
 Property of others 589 
 
 12. Taking Letters of 
 
 Marque. — Cruising. — 
 Convoying 590 
 
 13. Departui-es from the 
 
 Route, Delays, and 
 Changes of the Risk, 
 not imputable to the 
 Assured 592 
 
 14. Changes of the Risk in 
 
 Fire Policies 593 
 
 15. Changes of the Risks in 
 
 Life Policies 595 
 
 16. Waiver of a Forfeiture 
 
 incurred by Deviation 595 
 
 CHAPTER XIII. 
 
 RISKS COVERED. 
 
 Sect. 1. Of the Risks covered 
 
 genei-ally 596 
 
 2. Acts of the Assured and 
 
 his Agents 699 
 
 3. Barratry 610 
 
 4. The Insurers are not lia- 
 
 ble for ordinary Perils 
 and Losses 624 
 
 5. Damage arising from the 
 
 Qualities of the Sub- 
 ject 626 
 
 6. Events which Enhance 
 
 the Risk 628 
 
 7. Loss by Fire 629 
 
 8. Perils of the Seas, Riv- 
 
 ers, Lakes, 635 
 
 9. Piracy, Robbery, Theft 648 
 10. Capture, Arrests, Re- 
 
 straints, and Deten- 
 tions 652 
 Sect. 11. Risks from prohibited 
 
 and contraband Trade 665 
 
 12. Other Perils. — General 
 
 Clause 670 
 
 13. Loss from Fear of Perils 673 
 
 14. Remote and Consequen- 
 
 tial Losses. — Concur- 
 rence of different Per- 
 ils. — Loss upon one 
 Subject by Damage to 
 another 673 
 
 15. What Losses are within 
 
 the Period of the Risk 689 
 
 16. Risks excepted 694 
 
 1 7. Risks in Bottomry Inter- 
 
 est 705
 
 TABLE OF CASES 
 
 The references are to the subsections. 
 
 Abbott v. Broome, 1 Caines, N. Y. 292, . 
 V. Sebor, 3 Johns. Cas. N. Y. 39, 
 V. Shawmut Ins. Co. 3 All. Mass. 213 
 Abby; The, 5 C. Kob. Adm. 251, 
 
 Pratt, The, 6 La. Ann. 410, 
 Abel V. Potts, 3 Esp. 242, . 
 
 Abitbol V. Bristow, 6 Taunt. 464, . 
 Acey V. Fernie, 7 Mees. & W. Exch. 151, 
 Adams v. Del. Ins. Co. 3 Binn. Penn. 287, 
 V. Lindsell, 1 Barnew. & Aid. 681, 
 f. Mackenzie, 13 C. B. N. s. 442, . 
 V. Penn. Ins. Co. 1 Eawle, Penn. 97, 5, 330 
 
 V. Saunders, 4 Carr. & P. 25, . 
 V. Warren Ins. Co. 22 Pick. Mass. 163, 
 Adamson v. Kentucky Ins. Co. 2 B. Monr. Ky. 470, 
 Adelaide, The, 2 C. Eob. Adm. Ill, n. ; 3 id'. 281, 
 Adonis, The, 5 C. Kob. Adm. 256, 
 Adriana, The, 1 C. Rob. Adm. 313, 
 ^tna Ins. Co. v. Grube, 6 Minn. 82, . * 
 V. Harvey, 11 Wise. 394, . 
 V. Jackson, 16 B. Monr. Ky. 242, 
 V. Miers, 5 Sneed, Tenn. 139, 
 ^tna F. Ins. Co. r. Tyler, 16 Wend. N. Y. 385, 
 African Company v. Bull, 1 Show. 132 ; Gilb. 238, 
 Agar V. Macklew, 2 Sim. & S. Ch. 418, 
 Aguilar v. Rodgers, 7 Term, 421, 
 
 Aiken v. Miss. Mar. & F. Ins. Co. 4 Mart. N. s. La. 661, 
 Airy v. Bland, Park, Ins. 36 ; Marshall, Ins. 294, 
 Albretcht v. Sussman, 2 Ves. & B. Ch. Ir. 323, 
 Alchorne v. Saville, 6 J. B. Moore, 199 n. 
 Alciator v. Smith, 3 Campb. 245, 
 Aldrich V. Eq. Ins. Co. 1 Woodb. & M. C. C. 272, 
 Aldridge v. Bell, 1 Stark. 498, 
 
 V. Great Western Railway, 3 Mann. & G. 514, 
 Alers V. Tobin, Abbott, Shipp. 5th ed. 245, . 
 Alexander, The, 1 Gall. C. C. 582 ; 8 Cranch, 169, 
 V. Bait. Ins. Co. 4 Cranch, 370, . 
 V. Pratt, Arnould, Ins. 6 70, . 
 Alexandre v. Sun Ins. Co. Supreme Ct. N. Y. 1865, . 
 
 1528, 1868 
 
 319, 1590, 1656, 1699 
 
 871, 874 a 
 
 220 
 
 . 1099 
 
 1983 
 
 720, 1951, 2021 
 
 897, 1850, 2064 
 
 1622, 1662 
 
 17 
 
 . 1767 
 
 331, 1182, 1208, 1814 
 
 2167 
 
 . 335, 476, 985 
 
 146 
 
 829, 836 
 
 . 838, 1058 
 
 . 258 
 
 755 
 
 510 
 
 131, 309, 311, 423, 1965 
 
 180, 1808 
 
 87, 881, 885, 889, 1712 
 
 . 1837 
 
 865 
 
 120, 1840 
 
 1182, 1604 
 
 507, 1993, 2052 
 
 236 
 
 1213, 1935, 1991 
 
 2030, 2113 
 
 203, 413, 1746, 1958 
 
 1669 
 
 . 1711 
 
 1427 
 
 226 
 
 . 1141, 1523, 1662 
 
 710, 720 
 
 1268
 
 XU TABLE OF CASES. 
 
 Allegre's Admrs. v. Maryl. Ins. Co. 6 Harr. & J. Md..408; 2 Gill & J. 
 
 Md. 136, . . 144,453,479,591,620,1802,1803,1984 
 
 Allen V. Charlestown Ins. Co. 5 Gray, Mass. 384, . . 641, 872 a 
 
 V. Commercial Ins. Co. 1 Gray, Mass. 154, . . 1539, 1684 
 
 V. Hearne, 1 Term, 56, . . . . . .211 
 
 V. Hudson River Ins. Co. 19 Barb. N. Y. 442, . . . 1265 
 
 v. Mut. F. Ins. Co. 2 Md. Ill, .... 146,883 
 
 V. Pacific Ins. Co. 21 Pick. Mass. 257, . . . . 1932 
 
 V. Thompson, 10 N. H. 32, • . . . . . 1853 
 
 V. Sugrue, 8 Baruew. &. C. 561 ; Dans. & L. Cas. 188 ; 3 Mann. & 
 R. 9, . . . . . . . 1526, 1538 
 
 u. Vermont Mut. F. Ins. Co. 12 Vt. 366, . . . 668 
 
 Alliance Mar. Ins. Co. v. La. State Ins. Co. 8 La. 11, . 369, 383, 1838 
 
 Alliance Mut. Ins. Co. c. Swift, 10 Cusb. Mass. 433, . . . 510 
 
 Alsop V. Coit, 12 Mass. 40, . ..... 670,1904 
 
 V. Commercial Ins. Co. 1 Sumn. C. C. 451, 7, 318, 568, 585, 610, 617, 
 
 1196, 1474, 2127 
 Alston V. Campbell, 4 Brown, Pari. Cas. 476, . . . . 286 
 
 V. Mechanics Mut. Ins. Co. 1 Hill, N. Y. 510 ; 4 id. 329, . 66, 553, 642 
 Alwood V. Henckell, Park, Ins. 280 ; Marshall, Ins. 593, . 1493, 1669 
 
 Alves V. Bunburv, 4 Campb. 28, . . , . . . 2050 
 
 American Ins. Co. v. Bryan, 26 Wend. N. Y. 563 ; 1 Hill, N. Y. 25, 733, 1081, 
 
 1106, 2076 
 V. Center, 4 Wend, N. Y. 45, 1434, 1442, 1461, 1536, 1539, 
 
 1543, 1548, 1575, 1631 
 
 u. Coster, 3 Paio-e, Ch. N. Y". 323, . 1057,1563,1626 
 
 V. Dunham, 12 AYend. N. Y. 463 ; 15 id. 9, . 1072, 1154 
 
 V. Francia, 9 Penn. St. 390, 1543, 1605, 1801, 2095, 2174 
 
 V. Griswold, 14 Wend. N. Y. 399, 432, 1260, 1261, 1815 
 
 * V. Insley, 7 Penn. St. 223, . . 1049, 1959, 2052, 2058 
 
 V. Ogden, 15 Wend. N. Y. 532; 20 id. 287, 719, 727, 729, 
 
 732, 735, 1046, 1537, 1539, 1940 
 
 V. Whitney, 3 Cow. N. Y. 210 ; 5 id. 712, . 441, 1197 
 
 Amery v. Rodgers, 1 Esp. 207, .... 1203, 1829, 2126 
 
 Ames V. New York Union Ins. Co. 14 N. Y. 253, . 641, 881, 1983 
 
 Amesbury v. Bowditcb Ins. Co. 6 Gray, Mass. 596, . . 1932, 1983 
 
 Amicable Society i;. Bolland, 2 Dow & & Hou. L. Cas. 1, . 1043, 1046 
 
 Amory v. Gilman, 2 INIass. 1, . . . . . . 6, 211 
 
 r. Hamilton, 17 Mass. 103, .... 1766,1868 
 
 r. Jones, 6 Mass. 318, . ..... 1115 
 
 V. McGregor, 15 Johns. N. Y. 36, . . . . 226 
 
 Anderson v. Burnett, 6 Miss. 165, ..... 540 
 
 u. Edie, Marshall, Ins. 776; 2 Park, Ins. 640, . . . 353 
 
 V. Fitzgerald, 4 Hou. L. Cas. 484 ; 24 Eng. L. & Eq. 1, . 643, 892 
 r. Pitcher, 2 Bos. & P. 164; 3 Esp. 124, . . .781 
 
 V. Royal Exch. Ass. Co. 7 East, 38, . . 1607, 1767, 1777 
 
 V. Thornton, 8 Exch. 425 ; 20 Eng. L. & Eq. 339, . 516, 1844 
 
 V. WaUis, 2 Maule & S. 240, .... 1524, 1618 
 
 Andree v. Fletcher, 2 Term, 161 ; 3 id. 266, . . . 377, 498, 1846 
 
 Andrew v. Robinson, 3 Canipb. 199, . . . . . 1883 
 
 Andrews ?^ Beecker, 1 Johns. Cas. N. Y. 411, . . . 2060 
 
 D. ElHson, C J. B. Moore, 199, . . . . .1935 
 
 r. Essex F. & M. Ins. Co. 3 Mas. C. C. 6, 117, 1048,1117, 1154.1937, 
 
 1940 
 Ex parte, 2 Rose, Bank. 416, . . . . 397 
 
 u. Glover, Abbott, Shipp. 11, ..... 1587 
 
 V. Marine Ins. Co. 9 Johns. N. Y. 32, ... 561
 
 TABLE OF CASES. 
 
 XUl 
 
 Andrews v. Mellish, 5 Taunt. 496, 
 
 V. Palsgrave, 9 East, 325, 
 
 V. Union Ins. Co. 37 Me. 256, . 
 Angelrodt r. Delaware Ins. Co. 31 Mo. 593, 
 Angerstein v. Bell, Park, Ins. 55, . 
 Ann, The, 1 Dods. Adm. 221, . 
 Anna Catharina, The, 4 C. Rob. Adm. 107, 
 Annen v. Woodman, 3 Taunt. 299, 
 Ann Green, The, 1 Gall. C. C. 274, 156, 
 Anonymous, 1 Chitt. 49, 
 
 Skinn. 327, , 
 
 1 Johns. N. Y. 312, 
 Ld. Ravm. 840, 
 9 Mod. "66, 
 
 2 Salk. 519, . 
 2 Salk. 444, 
 2 Show. 283, . 
 V. Sands, 10 Mod. 79, 
 V. Westmore, 6 Esp. 109, 
 
 Anthon i'. Fisher, Dougl. 649, u. 
 
 Anthony v. Moline, 5 Taunt. 711, 
 
 Antoine v. Morshead, 6 Taunt. 237, 
 
 Antonia Johanna, The, 1 Wheat. 159, 
 
 Apollo, The, 5 C. Rob. Adm. 286, 
 
 Appleton V. Braybrook, 2 Stark. 6 ; 6 Maule & S. 34, 
 
 V. Crowninshield, 3 Mass. 443, 
 Appleton F. Ins. Co. v. Jesser, 5 All. Mass. 446, 
 Aranzimendi v. La. Ins. Co. 2 La. 433, 
 Areangelo v. Thompson, 2 Campb. 620, 
 Archibald v. Mercantile Ins. Co. 3 Pick. Mass. 70, 
 Ariadne, The, 2 Wheat. 143, . 
 
 Arniet v. Innes, 4 J. B. Moore, 150, . 
 Armitage v. Winterbottora, 1 Mann. & G. 130, 
 Armroyd v. Union Ins. Co. 2 Binn. Penn. 394, 
 Armstrong v. Gilchrist, 2 Johns. Cas. N. Y. 424, . 
 
 V. Toler, 1 1 Wheat. 258, . 
 Arnold v. United Ins. Co. 1 Johns. Cas. N. Y. 363, 
 Arnot V. Stewart, 5 Dow, Pari. Cas. 274, 
 Arnsby v. Woodward, 6 Barnew. & C. 519, 
 Arrogante Barcelones, The, 7 Wheat. 496, 
 Arthur, The Ship, Edw. Adm. 202, 
 
 V. Schooner Cassius, 2 Stor. C. C. 81, 
 Ashland Ins. Co. v. Housinger, 10 Ohio, St. 10, 
 Ashley V. Ashley, 3 Sim. Ch. 149, . 
 
 V. Pratt, 16 Mees. & W. Exch. 471 ; 1 Exch. 257 
 
 . 1011 
 
 2061, 2063 
 
 11 
 
 1263 a 
 
 968 
 
 . 164, 169 
 
 253, 791, 792, 793, 815 
 
 720 
 
 158, 161, 171, 260, 791, 812, 815, 816 
 
 217,230,2154 
 
 676 
 
 1232 
 
 913, 2106 
 
 2050 
 
 . 2014 
 
 913 
 
 . 482 
 
 . 199, 1621 
 
 996 
 
 2029 
 
 247, 1109 
 
 228 
 
 . 164, 814, 815 
 
 838 
 
 . 2050 
 
 170, 1985, 2008, 2010 
 
 523 a 
 
 1615,1769 
 
 022, 2097, 2122, 2140 
 
 1117 
 
 253 
 
 1014 
 
 191, 1908 
 
 849 
 
 . 1868 
 
 214, 219, 221 
 
 168 
 
 1898 
 
 771 
 
 194 
 
 841 
 
 1621 
 
 . 1481 
 
 . 77, 79, 82 
 
 1009, 1012, 1013, 
 
 1068, 
 
 1015 
 Assievedo y. Cambridge, 10 Mod. 77, .... 211,1621 
 
 y. Sands, 10 Mod. 79, ..... 173 
 
 Associated Firemen's Ins. Co. v. Assum, 5 Md. 165, . . . 881 
 
 Astley v. Ray, 2 Taunt. 214, ...... 533 
 
 Astor V. Union Ins. Co. 7 Cow. N. Y. 202, 66, 144, 457, 551, 600, 1764, 2119 
 Atalanta, The, 6 C. Rob. Adm. 440, . . . . .825 
 
 Atherford y. Beard, 2 Term, 610, ..... 211 
 
 Atherton v. Brown, 14 Mass. 152, . . . . .66, 660, 757 
 
 Atkins V. Boylston F. & Mar. Ins. Co. 5 Mete. Mass. 439, . .437, 445 
 
 Atkinson v. Abbott, 11 East, 135, . . . . . 230 
 
 VOL. I. b
 
 XIV 
 
 TABLE OF CASES. 
 
 Atkinson v. Gylby, 2 De Gex, M. & G. Ch. 670 ; 13 Eng. L. & Eq. 209, 
 
 78 a, 413 a, 1938 
 Atlantic Ins. Co. v. Concklin, 6 Gray, Mass. 73, . 
 
 V. Goodall, 29 N. H. 182, 
 35 N. H. 328, 
 
 V. Lunar, 1 Sandf. Ch. N. Y. 91, 
 
 V. Sanders, 36 N. H. 252, . 
 
 V. Stoirow, 5 Paige, Ch. N. Y. 285, 
 
 V. Wrisrht, 22 111. 462, 
 Atlas, The, 3 C. Rob. Adni. 299, . 
 Attorney-General v. Cast Plate Glass Co. 2 Anstr. 39, 
 
 510 
 
 . 881 
 
 . 510, 904 
 
 . 1938 
 
 523 a 
 
 1106, 1711, 1796, 2162 
 
 1876 
 
 . 174, 260, 790 
 
 67 
 
 Atty r. Lindo, 4 Bos. & P. 236, 
 
 Audley i>. Duff, 2 Bos. & P. Ill, 
 
 Audubon v. Excelsior Ins. Co. 27 N. Y. 216, • . 
 
 Augusta, The, 1 Dods. Adm. 283, 
 
 Augusta Ins. Co. v. Abbott, 12 Md. 348, . 
 
 Aurora, The, 4 C. Rob. Adm. 218, 
 
 Pike, Master, 8 Cranch, 203, • . 
 
 Walden, Claimant, 1 Wheat, 96, 
 Austin V. Drew, Holt, 126; 6 Taunt. 436 ; 4 Campb. 360, 
 Avery v. Scott, 7 Exch. 487, 497 ; 22 Eng. L. & Eq. 287 
 
 Eq. 327, 334, .... 
 
 Aveson v, Kinnard, 6 East, 188 ; 2 Smith, 646, . 
 Avlwin V. Favin, 5 Bos. & P. 430, 
 Aymer v. Astor, 6 Cow. N. Y. 266, 
 Ayres V. Hartford F. Ins. Co. 17 Iowa, 176, . 
 
 . 1646 
 
 . 780, 945 
 
 14 
 
 184, 289, 1568, 1847 b 
 
 383, 586, 600, 620 
 
 . 174, 794 
 
 253 
 
 1985 
 
 1096, 1097 
 
 ; 20 Eng. L. & 
 
 . 865, 1940 
 
 . 894 
 
 1989 
 
 . 1100 
 
 . 880, 1876 
 
 B. 
 
 Babcock v. Montgomery County Mut. Ins. Co. 6 Barb. N. Y 
 Backhouse v. Ripley, 1 Park, Ins. 8th ed. 24, 
 Badger v. Ocean Ins. Co. 23 Pick. Mass. 347, 
 V. Bank of Cumberland, 26 Me. 428, . 
 Baillie v. Moudigliani, Park, Ins. 8th ed. 117 
 
 Marshall, Ins. 2d ed. 
 1135, 1138, 1140, 
 
 1662, 1663,1665, 
 
 Bain v. Case, 3 Carr. & P. 496, 
 
 r. Kippen, Millar, Ins. 445, . 
 Bainbridge v.Neilson, 10 East, 329 ; 1 Campb. 237, 
 Baines v. Woodfall, 6 C. B. n. s. 657, 
 Baker v. Bent, 1 Russ. & M. Ch. 224, cited Beaumont, F 
 ed. 1846, p. 8, n., ... 
 
 V. Corey, 19 Pick. Mass. 496, 
 
 V. Langhorne, 4 Campb. 396 ; 2 Marsh. 215 ; 6 Taunt 
 V. Manufacturers' Ins. Co. 12 Gray, Mass. 603, 
 V. Paine, 1 Vez. Sen. 456, 
 V. Towry, 1 Stark. 436, 
 Bakewell v. United Ins. Co. 2 Johns. Cas. N. Y. 246, 
 Baldwin v. Ncav York Ins. Co. 3 Bosw. N. Y. 530, 
 Ballard v. Merchants' Ins. Co. 9 La. 258, 
 Baltic, The, 1 Act. Prize Cas. 25, . 
 Baltimore Ins. Co. v. Loney, 20 Md. 20, 
 
 V. M'Farlane, 4 Harr. & J. Md. 31, 
 V. McGowan, 16 Md. 47, 
 V. Tailor, 3 Harr. & J. Md. 198, 
 Baltimore Merchants' Ins. Co. v. Wilson, 2 Md. 217, . 
 Bangor Ins. Co. r. Colman, 16 Me. 207, . 
 
 637, . 1097 
 
 460 
 
 . 1696 
 
 265 
 
 728, 
 
 1462, 1718 
 
 2101, 2147 
 
 . 1001 
 
 1666, 1704 
 
 109 
 
 & L. Ins. 2d. 
 
 1236 
 
 540 
 
 . 519, . 1924 
 
 1099, 1129 
 
 117 
 
 . 1758 
 
 1764 
 
 895 a 
 
 451 
 
 222 
 
 1263 a 
 
 2028, 2044 
 
 1973 
 
 . 1956 
 
 133 
 
 . 1772
 
 TABLE OF CASES. 
 
 XV 
 
 Bangs V. Duckinfield, 18 N. Y. 592, 
 
 V. Gray, 15 Barb. N. Y. 264 ; 12 N. Y. 477, 
 
 V. Mcintosh, 23 Barb. N. Y. 591, 
 
 V. Skidmore, 21 N. Y. 136, 
 Bank of U. S. v. Devau.x, 5 Cranch, 62, 
 Bank of Utica v. Smalley, 2 Cow. N. Y. 770, 
 Barbara, The, 4 C. Eob. Adm. 1, , 
 Barber v. Brace, 3 Conn. 49, . 
 
 V. Fletcher, 1 Dousl. 305, . 
 
 V. French, 1 Dough 281, 
 Barclay v. Cousins, 2 East, 544, 
 
 V. Stirling, 5 Maule & S. 6, . 
 Bargett v. Orient Ins. Co. 3 Bosw. N. Y. 385, 
 Baring v. Christie, 5 East, 398, 
 
 v. Claggett, 3Bos. & P. 201, 
 
 V. Henkle, Marshall, Ins. 240, 
 
 I'. Royal Exch. Ass. Co. 5 East, 99, 
 
 V. Veaux, 2 Campb. 541, 
 Barker v. Blakes, 9 East, 283, 261, 746, 
 
 V. Ludlow, 2 Johns. Cas. N. Y. 289, 
 
 V. Marine Ins. Co. 2 Mas. C. C. 369, . 
 
 V. Phcen. Ins. Co. 8 Johns. N. Y. 307, 5 
 
 Barkie t;. Chandless, 3 Canipb, 17, 
 Barlow lu Leckie, 4 J. B. Mooi-e, 8, 
 
 V. Mcintosh, 12 East, 311, 
 
 V. Ocean Ins. Co. 4 Mete. Mass. 270, 
 Barnard v. Adams, 10 How. 270, 
 Barnewall v. Church, 1 Caines, N. Y. 217, 
 Barnes v. Union Ins. Co. 51 Me. 110, 
 45 N. H. 21, 
 Barney v. CofBn, 3 Pick. Mass. 115, . 
 
 V. RIaryland Ins. Co. 5 Harr. & J. Md. 139, 
 Barr v. Gibson, 5 Mees. & W. Exch. 390, 
 Barras v. London Ass. Co. Marshall, Ins. 2d ed. 200 ; 
 Barre Boot Co. v. Milford Ins. Co. 7 All. Mass. 42, 
 Barrelli v. Hagan, 13 La. 480, 
 Barrett v. Rogers, 7 Mass- 29 7, 
 
 V. Union Mut. F. Ins. Co. 7 Cush. Mass. 175, 
 Barrow v. Bell, 4 Barnew. & C. 736 ; 7 Dowl. & R. 244, 
 Barry v. Louisiana Ins. Co. 11 Mart. N. s. La. 630, 
 Bartlett v. Pentland, 10 Barnew. & C 
 
 . 523 a 
 523 a 
 
 510, 523 a 
 510 
 167 
 2013,2113 
 . 1940 
 1-281 
 551, 554 
 2144 
 315,1209 
 474, 942,1142, 1740 
 125 
 813 
 813, 2109 
 1758 
 . 2109 
 1160, 1162 
 747, 748, 824, 916, 1129, 1669 
 144, 1764 
 . 192, 312 
 7, 802, 806, 1268, 1328, 1742, 
 1801, 1802, 1804 
 1886 
 388, 2021 
 245 
 . 1815 
 1326, 1953 
 134, 598, 724, 994, 1086 
 880 
 904, 1965, 1974 
 134 
 1161, 1507, 2022 
 . 185, 925 
 Park, Ins. 64, 
 
 V. Union Ins. Co. 46 Me. 500, 
 
 V. Walter, 13 Mass. 26 7, 
 Bartle v. Colman, 4 Pet. 184, 
 Barzillai v. Lewis, 2 Park, Ins. 526, 
 Bas V. Steele, 3 Wash. C. C. 381, . 
 Bates V. Grabham, 2 Saik. 444, 
 
 V. N. Y. Ins. Co. 3 Johns. Cas. N. Y. 238, 
 V. Todd, 1 Mood. & R. 106, 
 Batre v. Louisiana Ins. Co. 13 La. 577, 
 Battaille v. Merchants' Ins. Co. 3 Rob. La. 384, 
 Battersby v. Smith, 3 Madd. Ch. 110, 
 Battles V. York Co. Ins Co. 41 Me. 208, 
 Bauduy v. Union Ins. Co. 2 Wash. C. C. 391, 
 Baxeudale v. Harvey, 4 Hurlst. & N. Exch. 445, 
 
 955 
 
 70, 871 
 
 . 1395 
 
 758 
 
 881, 2116 
 
 1758 
 
 1083, 2124 
 
 760; 1 Lloyd & W. Cas, 235, 140, 
 
 1883 
 1813, 1932 
 326, 419, 480, 588, 1516 
 
 . 214 
 
 802 
 
 . 2124 
 
 116 
 
 87 
 
 2126 
 
 . 1815 
 
 866 
 
 . 2124 
 
 874 a 
 
 383, 624 
 
 1037
 
 TABLE OP CASES. 
 
 Belleville Ins. Co. v. Van Winkle, 1 Beasl. N. J. 333, 
 Bello CoiTunes, The, 6 Wheat. 152, . 
 Bempde v. Johnstone, 3 Ves. Jun. Ch. 198, 
 Bendvr v. Oyle, Style, 166, 172, 
 Be;iedict v. Ocean Ins. Co. 31 N Y. 389, 
 
 Baxter v. Chelsea Ins. Co. 1 All. Mass. 294, 
 V. Lansing, 7 Paige, Ch. N. Y. 350, 
 V. New England Mar. Ins. Co. 3 Mas. C. C. 96 
 
 6 Mass. 277, 
 V. Rodman, 3 Pick. Mass. 435, 
 Bay State Ins. Co. v. Sawyer, 12 Cush. Mass. 64, 
 Bayard i;. Mass. F. & M. Ins. Co. 4 Mas. C. C. 256, 
 Bayles v. Hillsborough Ins. Co. 3 Dutch. N. J. 163, 
 Bazett V. Meyer, 5 Taunt. 824, 
 Beach V. Fulton Bank, 3 Wend. N. Y. 573, 
 Beadle v. Chenango County Mut. Ins. Co. 3 Hill, N. Y. 161, 
 Beake v. Tyrrell, or TyrvThitt, 1 Show. 6 ; 3 Mod. 105 ; Comb 
 
 Beal w. Park F. Ins. Co. 16 Wise. 241, 
 
 Beale v. Pettit, 1 Wash. C C. 241, 
 
 Beals V. Home Ins. Co. 36 Barb. N. 1". 614, 
 
 Bean v. Stupart, 1 Dougl. 10, . 
 
 Beardslee v. Richardson, 11 Wend. N". Y. 25, 
 
 Beatson v. Haworth, 6 Term, 531, 
 
 Beatty v. Marine Ins. Co. 2 Johns. N. Y. 109, 
 
 Beaver, The, 3 C. Rob. Adm. 292, 
 
 Beckwaite v. Nalgrove, 3 Taunt. 41 ; 1 Holt, 288, . 
 
 Beck with v. Sidebotham, 1 Campb. 116, 
 
 Beddington, The, 2 Hagg. Adm. 422, 
 
 Bedford Com. Ins. Co. v. Parker, 2 Pick. Mass. 1, 
 
 Beebe v. Hartford Ins. Co. 25 Conn. 51, . 
 
 Beldon v. Campbell, 6 Exch. 886 ; 6 Eng. L. & Eq. 4 72 
 
 V. Seymour, 8 Conn. 304, . 
 Bell V. Aheorpe, 12 Ir. Ch. 578, 
 
 ?;. Ansley, 16 East, 141, . . . 881,418 
 
 V. Auldjo, 4 Dougl. 48, . 
 
 V. Bell, 2 Campb. 475, 
 
 V. Beveridge, 4 Dall. 272, . 
 
 r. Bromfield, 15 East, 364, 
 
 I'. Carstairs, 14 East, 3 74 ; 2 Campb. 544, 
 
 V. Chapman, 10 Johns. N. Y. 183, 
 
 V. Columbian Ins. Co. 2 Johns. N. Y. 98, . 
 
 V. Firemen's Ins. Co. 3 Rob. La. 423 ; 4 id. 423, 
 
 V. Gilson, 1 Bos. & P. 345, . 
 
 r. Hobson, 16 East, 240, 
 
 V. Humphries, 2 Stark. 345, 
 
 V. Janson, 1 Maule & S. 201, . 
 
 V. Marine Ins. Co. 8 Serg. & R. Penn. 98, 
 
 V. Nixon, 1 Holt, 423, 426, n., 
 
 V. Puller, 12 East, 496, n., 
 
 V. Reid, 1 Maule & S. 726, 
 
 V. Reed, 4 Binn. Penn. 127, 
 
 V. Shibley, 33 Barb. N. Y. 610, 
 
 V. Smith, 7 Dowl. & R. 646, 
 
 2 Johns. N. Y. 98, . 
 
 V. Western M. & F. Ins. Co. 3 Rob. La. 428 : 5 id. 42 
 
 . 505 
 771 
 570 
 2109 
 345 
 523 a 
 790 
 1973 
 . 1109 
 11 
 . 873 
 120; Holt, 47, 
 
 2104 
 
 1876 
 
 1662, 2126 
 
 1482, 1983 
 
 68, 756, 766 
 
 . 1885 
 
 1012 
 
 . 1690 
 
 1027 
 
 607 
 
 . 619, 2112 
 
 1249, 1265 
 
 1392, 1410 
 
 638, 1876 
 
 . 289, 301 
 
 515 
 
 209 
 
 2021, 2059, 2061 
 
 1873 
 
 72, 575, 934, 1125 
 
 1669, 1678. 1679 
 
 . 809 
 
 554, 745, 751, 2109 
 
 . 2030 
 
 1951 
 
 189 
 
 148, 223, 1965 
 
 939, 2117 
 
 1851 
 
 . 2013 
 
 593, 933, 1146 
 
 . 1497 
 
 1725 
 
 152 
 
 . 701, 720 
 
 . 523 a 
 
 2054 
 
 1379, 1815 
 
 90, 117, 120, 190, 
 
 193, 394, 422, 996 
 
 605, 510, 523 a 
 
 . 194, 198 
 
 158, 159 
 
 1931 
 
 . 125, 635, 904
 
 TABLE OF CASES. 
 
 XVII 
 
 Benliam v. United Guaranty and Life Ins. Co. 7 Exch. 744 
 
 Benjamin v. Saratoga Ins. Co. 17 N. Y. 415, 
 
 V. Sinclair, 1 Bail. So. C. 174, 
 Bensley v. Bignold, 5 Barnew. & Aid. 335, 
 Benson v. Cliapnian, 6 Mann. & G. 792, 
 Bent V. Baker, 3 Term, 27 ; 7 id. 604, 
 Bentaloe v. Pratt, Wall. C. C. 64, 
 Bentham i'. Benson, Gow, 45, 
 Bentley v. Columbia Ins. Co. 17 N. Y. 421, . 
 Bentzon (Claimant) v. Boyle, 9 Cranch, 191, 
 Berens v. Backer, 1 W. Blackst. 313, . 
 Berkley v. Presgrave, 1 East, 220, 
 
 V. Watlings, 7 Ad. & E. 29, . 
 Bermon v. Woodbridge, Dougl. 781, 
 Beruon, The, 1 C. Rob. Adm. 102, 
 Bernardi v- Motteux, Dougl. 554, . 
 
 Berne, City of, i'. Bank of England, 9 Ves. Jun. Ch. 347, 
 Bersche v. Globe Ins. Co. 31 Mo. 546, 
 
 V. St. Louis Ins. Co. 31 Mo. 555, 
 Berthon v. Loughman, 2 Stark. 258, 
 Berthoud v. Atlantic Ins. Co. 13 La. 539, 
 Betlmne v. Neilson, 2 Caines, N. Y. 139, 
 Betsey, The, 1 C. Rob. Adm. 93, 
 
 1 C. Rob. Adm. 332, . 
 The Ship, 2 Hagg. Adm. 28, . 
 Bettemore v. Hayes, 5 Barnew. & Ad. 456, 
 Betty Cathcart, The, 1 C. Rob. Adm. 220, 
 Beurse Van Koningsberg, The, 2 C. Rob. Adm. 169, 
 Bevan v. United States Bank, 4 Whart. Penn. 301, 
 Bevin v, Connecticut Ins. Co. 23 Conn. 244, 
 Biays v. Union Ins. Co. 1 Wash. C. C. 506, 
 
 V. Chesapeake Ins. Co. 7 Cranch, 415, 
 Bid well V. North Western Ins. Co. 19 N. Y. 179, 
 
 24 N. Y. 302, . 
 Bigler v. New York Ins. Co. 20 Barb. N. Y. 635, 
 Bilbie v. Lumley, 2 East, 469, 
 Bilbrougl) i\ Metropolis Ins. Co. 5 Du. N. Y. 587, 
 Bill V. Mason, 6 Mass. 313, 
 
 Birch V. Depeyster, 4 Campb. 385 ; 1 Stark. 210, 
 Bird V. Appleton, 8 Term, 562, 
 
 V. Pigou, 2 Sel. N. P. 981, 
 
 V. Thompson, 1 Esp. 339, 
 Birdsey i;. City F. Ins. Co. 26 Conn. 165, 
 Bishop V. Pentland, 7 Barnew. & C. 219; 1 Mann. & R. 49, 
 Bixby V. Franklin Ins. Co. 8 Pick. Mass. 86, . 
 Bize V. Dickason, 1 Term, 285, 
 
 V. Fletcher, 1 Dougl. 271, 
 Black V. Marine Ins. Co. 11 Johns. N. Y. 287, 
 
 V. Braybrook, 2 Stark. 7, 
 Blackburne n. Thompson, 15 East, 81 ; 3 Campb. 61, 
 Blackenhagen v. London Ass. Co. 1 Campb. 454, 
 Blackett v. Weir, 5 Barnew. & C. 384, 
 
 V. Royal Exch. Ass. Co. 2 Crompt. & J. Exch. 244, 
 
 Blackford v. Preston, 8 Term, 89, . 
 Blackham's Case, 1 Salk. 290, . 
 6* 
 
 14Eng. L. &Eq. 524, 
 
 527, 642 
 
 14 
 
 758 
 
 219 
 
 1637, 1701 
 
 . 2052 
 
 138, 1003, 2134 
 
 . 2086 
 
 . 16, 1877 a 
 
 825 
 
 . 278, 817 
 
 1279, 1299 
 
 2126 
 
 699, 1819, 1834 
 
 . 159, 671 
 
 . 2106, 2109 
 
 224 
 
 668 
 
 . 641, 668 
 
 . 2112 
 
 24 
 
 1849, 1865, 1881 
 
 326 
 
 ^ . 831 
 
 2095 
 
 14 
 
 1623 
 
 245 
 
 1340, 1407 
 
 356, 904 
 
 548 
 
 1773, 1777 
 
 403 
 
 588, 904 
 
 . 489, 881 
 
 1818, 1997, 2052 
 
 . 866, 1813 
 
 968, 969 
 
 1944 
 
 221, 231, 2109 
 
 219 
 
 . 2003, 2052 
 
 185, 1973, 1986 
 
 711, 733, 1758 
 
 265, 1328, 2124 
 
 507, 551, 1853 
 
 . 660, 1009 
 
 . 1162 
 
 2060 
 
 163, 225 
 
 966, 1023, 1111, 1115 
 
 • 2053 
 
 131,464, 985, 
 
 1416, 1780 
 
 215 
 
 2105 
 
 81
 
 XVIU 
 
 TABLE OF CASES. 
 
 Blackhurst v. Cockell, 3 Term, 300, 
 Blagg V. New York Ins. Co. 1 Caines, N. Y. 54 9, 
 Blaine v. The Charles Carter, 4 Craneh, 328, 
 Blake v. Exchange Ins. Co. 12 Gray, Mass. 265, 
 Blanchard v. Alleghany Mut. Ins. Co. 1 Penn. 359, 
 
 V. Atlantic Ins. Co. 33 N. H. 9, . 
 
 V. Dyer, 21 Me. Ill, 
 
 V. Waite, 28 Me. 51, 
 Blood V. Howard Ins. Co. 12 Cush. Mass. 472, 
 Blundell v. Brettargh, 17 Ves. Ch. 232, 
 Blyth i: Shei^ard, 9 Mees. & W. Exch. 7G8, 
 Boardman v. Merrimack Ins. Co. 8 Cush. Mass. 583, 
 
 V. New Hampshire Ins. Co. 20 N. H. 551, 
 Boddington v. Castelli, 1 Ell. & B. 879 ; 18 Eng L. & Eq. 427, 84, 1847 a 
 
 Bodle V. Chenango Mut. Ins. Co. 2- N. Y. 53, . . 1813, 1935, 1973 
 
 . 638, 762, 848 
 
 596,802,809,1117 
 
 298, 1561 
 
 492, 664, 881, 1263 a, 1813 
 
 . 1939 
 
 873, 881, 1971 
 
 . 1964 
 
 24 
 
 . 883 
 
 865 
 
 . 2022 
 
 1038 
 
 72, 539, 871, 1876 
 
 Bodwy V. Union Ins. Co. See Bauduy. 
 Boedes Lust, The, 5 C. Rob. Adm. 233, 
 Boehm v. Bell, 8 Term, 154, 
 
 V. Combe, 2 Maule & S. 172, . 
 Boetlinck v. Schneider, 3 Esp. 58, . 
 Boetlingk V. Inglis, 3 East, 381, 
 Boggs V. Amei'ica Ins. Co. 30 Mo. 63, 
 Bohlen V. Delaware Ins. Co. 4 Binn. Penn. 444, 
 Bold V. Rotheram, 8 Q. B. 797, . 
 Bolton V. Gladstone, 5 East, 155, 
 Bonaparte, The, 3 W. Rob. Adm. 298; 1 Eng. L 
 Bond V. Brig Cora, 2 Wash. C. C. 80, . 
 V. Gonzales, 2 Salk. 445, 
 V. Nutt, Cowp. 601 ; 1 Dougl. 344, 
 Bondret v. Hentig, Holt, 149, 
 Bonner v. Home Ins. Co. 13 Wise. 677, 
 Booth V. Hodgson, 6 Term, 405, 
 Borden (;. Hingham M. F. Ins. Co. 18 Pick. Mass. 
 Bordes v. Hallett, 1 Caines, N. Y. 444, 
 Bork V. Norton, 2 M'Lean, C. C. 423, 
 Borradaile v. Hunter, 5 Mann. & G. 639 ; 5 C. B. 
 Bosley v. dies. Ins. Co. 3 Gill & J. Md. 450, . 
 Boston, The Schooner, 1 Sumn. C. C. 328, 
 Bottomly v. Bovill, 5 Barnew. & C. 210 ; 7 Dowl. 
 Boulton V. Dobree, 2 Campb. 163, . 
 Bouser v. Colby, 1 Hare, Ch. 109, 
 Bousfield V. Barnes, 4 Campb. 228, . 
 V. Creswell, 2 Campb. 545, 
 Boutflower v. Wilmar, 2 Selwyn, N. P. 590, 
 Bouton V. American Ins. Co. 25 Conn. 542, 
 Bowden v. Vaughan, 10 East, 415, 
 Bowditch Ins. Co. v. Winslow, 3 Gray, Mass. 415, 
 Bowen v. Bell, 20 Johns. N. Y. 338, 
 
 V. Hope Ins. Co. 20 Pick. Mass. 275, . 
 
 V. Merchants' Ins. Co. 20 Pick. Mass. 275* 
 Bowman v. Pacific Ins. Co. 27 Mo. 152, 
 Bowne V. Shaw, 1 Caines, N. Y. 489, 
 Bowring v. Elmslie, 7 Term, 216, n., 
 Box of Bullion, Sprague, Dist. Ct. 57, 
 Boyd V. Dubois, 3 Campb. 133, 
 Boynton v. Clinton Ins. Co. 16 Barb. N. Y. 254, 
 
 150, 165, 241 
 
 321, 322, 1819, 2008 
 
 1064, 2022 
 
 . 2110 
 
 2110 
 
 . 539 
 
 . 1057, 1670, 1674 
 
 963, 983 
 
 2109 
 
 & Eq. 641, . 302, 1561 
 
 1027, 1028 
 
 780 
 
 773 
 
 974, 1107, 1129 
 
 .884,2174 
 
 . 1908 
 
 523, . . 1215 
 
 1621, 1705, 1742 
 
 1441, 1442 
 
 N. 8. 418, . 891,895 
 
 . 1526, 1666, 2028 
 
 . 1027 
 
 &R. 702, . 1008, 1027, 1063 
 
 . 2030 
 
 771 
 
 368. 370, 1191 
 
 1901 
 
 . 1078 
 
 505, 516, 904 
 
 551 
 
 410, 874 a 
 
 515 
 
 953 
 
 . 953 
 
 883 
 
 625, 1157 
 
 1089, 1094, 1758 
 
 . 1027 
 
 611 
 
 81, 880 
 
 V. Middlesex F. Ins. Co. 4 Mete. Mass. 212, 
 
 1932
 
 TABLE OP CASES. 
 
 XIX 
 
 Boyfield V. Biown, 2 Strange, 1065, 
 Boyle V. Atty, 1 Gow, 50, .... 
 
 Bracebridge v. Buckley, 2 Price, Excb. 200, 
 Bradford v. Boylston Ins. Co. 11 Pick. Mass. 162, 
 
 V. Levy, 2 Carr. & P. 137 ; 1 %. & M. 331, 
 Bradhurstw. Col. Ins. Co. 9 Johns. N. Y. 17, . . 1057 
 
 Bradley v. Hunt, 5 Gill & J. Md. 54, . 
 
 V. Nashville Ins. Co. 3 La. Ann. 708, . 
 Bradlie v. Maryland Ins. Co. 12 Pet. 378, 1523, 1524, 1525 
 
 Bradstreet v. Neptune Ins. Co. 3 Sumn. C. C. 600, 
 
 Brady v. North Western Ins. Co. 1 1 Mich. 425, . 
 
 Bragdon v. Appleton Ins. Co. 42 Me. 259, 
 
 Bragg V. Anderson, 4 Taunt. 229, .... 
 
 Barndagee v. Nat. Ins. Co. 20 Johns. N. Y. 328, 
 
 Brandon v. Curling, 4 East, 410, .... 
 
 V. Nesbitt, 6 Term, 23, ... 
 
 Brazier v. Clap, 5 Mass. 1, . 
 Breasted v. Farmers' Loan Society, 8 N. Y. 299, 
 Breed v. Eaton, 10 Mass. 22, .... 
 
 V. Ship Venus, Abbott, Shipp. by Story, 350, n., 
 Brewer v. Chelsea Ins. Co. 14 Gray. Mass. 203, 
 
 V. Union Ins. Co. 12 Mass. 170, ' 
 Brewster v. Kitchell, Ld. Raym. 371 ; 1 Salk. 198, 
 
 V. Sevvall, 3 Barnew. & Aid. 296, 
 Brichta v. N. Y. Lafayette Ins. Co. 2 Hall, N. Y. 372, 
 Bridge v. Niagara Ins. Co. 1 Hall, N. Y. 247, 423, . 38i 
 Bridger v. Whitehead, 8 Ad. & E. 571, 
 Bridges ;;. Hunter, 1 Maule & S. 15, . 
 Bridgeman's Case, Hob. 11, 
 Briggs V. Call, 5 Mete. Mass. 504, 
 
 V. Lawrence, 3 Term, 454, .... 
 Brine v. Featherstone, 4 Taunt. 869, . 
 Brinley v. Nat. Ins. Co. 11 Mete. Mass. 195, 
 Brisban v. Boyd, 4 Paige, Ch. N. Y. 1 7, 
 Brockelbank V. Sugrue, 5 Carr. & P. 21 ; 1 Mood. & R. 102 ; 
 
 81, 
 
 Bromley v. Hesseltine, 1 Campb. 75, . 
 
 Brooke v. La. Ins. Co. 4 Mart. n. s. La. 640, 681 ; 5 id. 530, 
 
 Brooks V. McDonnell, 1 Younge & C. 502, 
 
 V. Oriental Ins. Co. 6 Pick. Mass. 259, 
 
 Broom's Case, 1 Salk. 32, 
 
 Brotherston v. Barber, 5 Maule & S. 418, . 
 
 Brough V. Higgins, 2 Gratt. Ya. 408, . 
 
 V. Whitmore, 4 Term, 206. . 
 Brouwer v. Hill, 1 Sandf. Ch. N. Y. 629, 
 
 V. Appleby, 1 Sandf. NT. Y.*158, . 
 Brown v. Bullen, Dougl. 392, . 
 
 V. Carstairs, 3 Campb. 161, . 
 V. Cattaraugus Ins. Co. 18 N. Y. 385, 
 V. Cooke, 4 N. Y. 51, 
 u. Donnell, 49 Me. 421, . 
 V. Girard, 4 Yeates, Penn. 115, 
 V. Hartford Ins. Co. 3 Day, Conn. 58, 
 5 R. 1.394, 
 
 704, 985, 
 1426 
 
 1726,1727 
 
 1564, 1591 
 
 771 
 
 2132 
 
 1050, 1135 
 
 1142, 1635, 1639 
 
 79 
 
 1146 
 
 1539, 1543, 1551, 
 
 1558 
 
 1154 
 
 75, 1098 b 
 
 24 
 
 . 1013 
 
 849, 2035 
 
 149, 150 
 
 147, 149, 2029 
 
 . 1051 
 
 895 
 
 . 1025 
 
 1328 
 
 904 
 
 1114 
 
 769 
 
 2103 
 
 . 107, 108, 423 
 
 1469, 1868, 2174 
 
 . 2122 
 
 620, 659, 682 
 
 1"61, 1985 
 
 1815, 1881, 1908 
 
 . 1846 
 
 . 551, 554 
 
 . 1484 
 
 . 17,1858 
 
 1 Barnew. & Ad. 
 
 1872, 2114 
 
 158, 159, 238 
 
 1196, 1535, 1767, 
 
 1773 
 
 . 1713 
 
 1201, 1300, 1406, 
 
 1435, 1778, 1790 
 
 2105 
 
 1663, 1704 
 
 349 
 
 144,463 
 
 . 523, 1939, 1945 
 
 523 
 
 2105 
 
 971 
 
 881 
 
 523 
 
 510 
 
 720 
 
 1839, 2034 
 
 1815, 1983
 
 TABLE OF CASES. 
 
 Brown v. Neilson, 1 Caines, N. Y. 525, . 
 
 V. People's Ins. Co. 11 Cush. Mass. 280, 
 
 i>. Phoenix Ins. Co. 4 Binn. Penn. 445, . 
 
 V. Quilter, Ambl. Ch. 619, . 
 
 V. Roger Williams Ins. Co. 7 R. I. 301, 
 
 5 R. I. 394, . 
 
 I'. Royal Ins. Co. 1 Ell. & E. 853, 
 
 V. Savannah Ins. Co. 24 Ga. 97, . 
 
 V. Smith, 1 Dow. Pari. Cas. 349, 
 
 V. Stapyleton, 4 Binch. 119, 
 
 r. Tayleur, 4 Ad. & E. 241 ; 5 Nev. & M. 472, 
 
 V. Tierney, 1 Taunt. 517, . 
 
 t). Vigne, 12 East, 283, . . . . 
 
 V. Union Ins. Co. 6 Hall, Law Journ. 526, 
 
 V. Williams, 28 Me. 252, 
 Browning v. Morris, Cowp. 790, 
 Bruce v. Jones, 1 Hurlst. & C. Exch. 769, 
 
 V. Ship Mary, Bee, Adm. 1 20, 
 Brutus, The, 5 C. Rob. Adm. 331, n. & App. No. 1, 
 
 1149, 1496, 1951, 2139 
 
 679, 874 a 
 
 1494, 1674 
 
 . 402 
 
 1983 
 
 1815, 1983 
 
 1098 b 
 
 . 1983 
 
 . 1106, 1531, 1702 
 
 1394, 1398 
 
 1000 
 
 . 963, 966, 1160 
 
 . 963, 966 
 
 1068, 1074 
 
 . 183, 592 
 
 . 1846 
 
 1192 
 
 . 1985 
 
 270 
 
 Bryant v. Commonwealth Ins. Co. 6 Pick. Mass. 131 ; 9 id. 485; 13 id. 543, 
 
 134, 1602, 1732, 1953, 1983, 2024 
 
 V. Poughkeepsie Ins. Co. 17 N. Y. 200 ; 21 Barb. N. Y. 154, . 883 
 
 V. Ocean Ins. Co. 22 Pick. Mass. 200, . . . . 551, 553 
 
 V. Rogers, MS. . . . . • . .1300 
 
 Buchanan r. Ocean Ins. Co. 6 Cow. N. Y. 318, . 5, 202, 1267, 2018 
 
 V. Rucker, 1 Campb. 63, .... 
 Buck r. Ches. Ins. Co. 1 Pet. 151, 
 
 Buckbee v. United States Ins. & Trust Co. 18 Barb. N. Y. 541, 
 Buckley v. Garrett, 47 Penn. St. 204, 
 
 V. Lvttle, 10 Johns. N". Y. 117, 
 Bufe V. Turner, 2 Marsh. 46 ; 6 Taunr. 338, 
 Buffalo City Bank v. North AVestern Ins. Co. 30 N. Y. 251, 
 Buffalo Works v. Sun Mut. Ins. Co. 17 N. Y. 401, 
 Buffuui V. Bowditch Ins. Co, 10 Cush. Mass. 540, 
 
 V. Fayette Ins. Co. 3 All. Mass. 360, 
 Bulkley v. Derb. Fish. Co. I Conn. 271, 
 
 V. Protection Ins. Co. 2 Paine, C. C. 82, . 
 BuUard v. Roger Williams Ins. Co. 1 Curt. C. C. 148, 
 
 Bullen V. Denning, 5 Barnew. & C. 842, 
 Buller V. Harrison, Cowp. 565, 
 
 V. Fisher, 3 Esp. 67; Peake, Add. Cases, 183, 
 Bumstead i'. Dividend Ins. Co. 12 N. Y. 81, 
 Bunting v. Lepingwell, 4 Coke, 29 a; 7 id. 43, 
 Burbaiik t'. Rockingham Ins. Co. 24 N. H. 550, 
 Burgess v. Alliance Ins. Co. 10 All. Mass. 221, 
 
 V. New England Ins. Co. 10 All. Mass. 221, 
 Burgher v. Columbian Ins. Co. 17 Barb. N. Y. 274, . 
 Burgnot V. La. State M. & F. Ins. Co. 12 La. 326, 
 Burnes i'. Provincial Ins. Co. 35 Barb. N. Y. 525, 
 Burnet i'. Kensington, 1 Esp. 416 ; 7 Term, 210, . 
 Burr i\ Foster, Dane's Abridg. Tit. Concealment, 
 Burritt v. Saratoga County Mut. Ins. Co. 5 Hill, N. Y. 1! 
 
 Burrows v. Turner, 24 Wend. N. Y. 276, 
 Burt V. People's Ins. Co. 2 Gray, Mass. 39 7, 
 
 2050, 2104 
 
 313, 384, 6-25 
 
 . 505, 897 
 
 81, 880, 904 
 
 2030 
 
 635 
 
 1649 
 
 81 
 
 874 a 
 
 904 
 
 . 253, 860 
 
 601,963 
 
 700, 1539, 1684, 2079, 
 
 2141 
 
 131 
 
 1930, 1998 
 
 1099, 1424 
 
 . 1811 
 
 2105 
 
 292, 880 
 
 . 485, 1481 
 
 485, 1481 
 
 . 2018 
 
 . 2123 
 
 510 
 
 . 1761 
 
 609 
 
 70, .542, 635, 
 
 638, 674, 872 a 
 
 953, 1958 
 
 881 
 
 Burton, Ex parte, 13 Eng. L. & Eq. 435 ; 16 Eng. Jur. 967; 21 Eng. Law J. 
 (n. s.) Chan. 781, .... 1795 a, 1939, 1957
 
 TABLE OF CASES 
 
 Busk V. Roy, Exch. Ass. Co. 2 Barnew. & Aid. 73 
 
 r. Bell, 16 East, 3, . 
 Butler V. Allnut, 1 Stark. 222, 
 
 V. Wiklman, 3 Barnew. & Aid. 398, 
 Buttrick v. Allen, 8 Mass. 273, 
 Byfield, The, Edw. Adm. 188, 
 Byrne v. Louisiana State Ins. Co. 7 Mart. N. s. La. 
 
 V. Rising Sun Lis. Co. 20 Ind. 103, 
 Byrnes v. Alexander, 1 Brev. So. C. 213, 
 
 V. National Ins. Co. 1 Cow. N. Y. 265, 
 
 709, 711, 733 
 
 126, 
 
 XXI 
 
 049, 1096 
 
 245 
 
 232, 247 
 
 115, 1126 
 
 2050 
 24 7, 826 
 982, 1535 
 . 1813 
 559, 560 
 . 1434 
 
 Caines v. Bleecker, 1 2 Johns. N. Y. 300, 
 Calbreath v. Gracy, 1 Wash. C. C. 198,219, 
 
 1867 
 
 595, 788, 809, 1669, 1674, 1682, 
 
 1688 
 
 . 2126 
 
 510 
 
 133, 1099, 1126, 1162 
 
 731 
 
 222 
 
 832, 1068, 1073, 2109 
 
 . 314, 985 
 
 Caldwell V. Ball, 1 East, 21 ; 1 Term, 205, 
 
 V. Mercantile Ins. Co. 32 Penn. St. 75, 
 
 V. St. Louis Perpetual Ins. Co. 1 La. Ann. 85, 
 
 V. Western Ins. Co. 19 La. 42, 
 Caledonia, The, 4 Wheat. 100, 
 
 Calhoun v. Ins. Co. of Pennsylvania, 1 Binn. Penn. 293, 
 Calisto, The, Dav. Dist. Ct. 29, . . . 
 
 Callaghan I'. Atlantic Ins. Co. 1 Edw. Ch. N. Y^. 64, . . 567,779 
 
 Callander r. Oelrichs, 5 Bingh. N. c. 58, . . . . 1900 
 
 Callender v. Ins. Co. of North America, 5 Binn. Penn. 525, . . 1634 
 
 Calvert u. Bovill, 7 Term, 523, ..... 2109 
 
 V. Hamilton Ins. Co. 1 All. Mass. 308, .... 883 
 Calypso, The, 2 C. Rob. Adm. 154, 298, .... 829 
 
 Camberleng v. McCall, 2 Dall. Penn. 128; 2 Yeates, Penn. 281, . 1496 
 
 Cambioso'sE.x'rs v. Assignees of Maflit, 2 Wash. C. C. 98. . . 219 
 
 Cambridge v. Anderton," 2 Barnew. & C. 691 ; 1 Rv. & M. 60; 4 Dowl. & R. 
 203; 1 Carr. & P. 213, . . " . 1495,1534,1577 
 
 Camden v. Anderson, 5 Term, 709 ; 1 Bos. & P. 272, 210, 219, 265, 2125 
 
 f. Cowley, 1 W. Blackst. 417, . . . . .955 
 
 V. Edie, 1 H. Blackst. 21, 
 Came v. Moy, 2 Sid. 121, . 
 Camelo v. Britten, 4 Barnew. & Aid. 184, 
 Cammell, v. Sewell, 3 Hurlst. & N. Exch. 617, . 
 Campbell v. Bourdieu, 2 Strange, 1265, 
 
 V. Charter Oak Ins. Co. 10 All. Mass. 213, 
 
 V. Christie, 2 Stark. 64, 
 
 V. Hamilton Ins. Co. 51 Me. 69, . 
 
 V. Lines, 4 Barnew. & Aid. 423, 
 
 V. International L. Ass. Soc. 4 Bosw. N. Y. 298, 
 
 V. Rickards, 5 Barnew. & Ad. 840, 
 
 V. Stein, 6 Dow, Pari. Cas. 116, 
 
 V. Thompson, 1 Stark. 490, . 
 
 V. Williamson, 2 Bay, So. C. 237, 
 Campion v. Colvin, 3 Bingh. N. c. 17, 
 
 Cannan v. Meaburn, 1 Bingh. 243; 8 Moore, 127, 633, . 
 Cantillon v. London Assurance Co. 3 Burr. 1553, 
 Capen & Bangs v. Boylston Ins. Co. MS. . 
 
 V. Washington Ins. Co. 12 Cush. Mass. 517, 
 Cardigan, Earl of, v. Armitage, 2 Barnew. & C. 197, 
 Carl, The, Edw. Adm. 339, .... 
 
 1989 
 
 . 1931 
 
 232, 2122 
 
 1574, 2108 
 
 780 
 
 . 2068 
 
 113 
 
 . 880 
 
 627 
 
 897 
 
 2112 
 
 265 
 
 1796 
 
 . 1000 
 
 1084 
 
 . 1625 
 
 1761 
 
 191, 1741 a 
 
 727, 735 
 
 131 
 
 148, 246
 
 XXll 
 
 TABLE OP CASES. 
 
 Carl Walter, Tlie, 4 C. Rob. Adm. 207, .... 255, 796 
 
 Carolina, The, (Skinner,) 1 C. Rob. Adm. 305, ... 794 
 
 (Nord(juist.) 4 C. Rob. Adm. 256, . . . 815 
 
 Caroline, The, 6 C. Rob. Adm. 461, . . . . . 825 
 
 Carpenter v. Washington Ins. Co. 16 Pet. 495; 4 How. 185, 286, 289, 640, 
 
 688, 825, 868, 881, 1511, 1712, 1728 
 
 V. American Ins. Co. 1 Stor. C. C. 57, . . . .543 
 
 Carrere v. Union Ins. Co. 3 Harr. & J. Md. 324 ; 2 Hall, Law Jom-n. 197, 809, 
 
 1956, 2028 
 Carrington v. Commercial F. Ins. Co. 1 Bosw. N. Y. 152, 
 
 V. Merchants' Ins. Co. 8 Pet. 495, 
 Carroll v. Boston Mar. Im. Co. 8 Mass. 515, 
 Carruthers v. Gray, 3 Campb. 142 ; 15 East, 35, 
 
 V. Sheddon, 6 Taunt. 14; 1 Marsh. 416, 
 
 V. Sidebotham, 4 Maule & S. 77, 
 Carson v. Marine Ins. Co. 2 Wash. C. C. 468 ; 1 id. 509, 
 Carstairs v. Allnut, 3 Campb. 497, 
 Carter v. Boehm, 1 W. Blackst. 593; 3 Bm-r. 1905, 
 
 V. Humboldt Ins. Co. 12 Iowa, 287, 
 17 Iowa, 456, 
 V. Rocket, 8 Paige, Ch. N. Y. 437, 
 V. Royal Exch. Ass. Co. 2 Strange, 1249, 
 V. United Ins. Co. 1 Johns. Cli. N. Y. 463, 
 Gary v. White, 1 Brown, Pari. Cas. 284, 
 
 V. King, Cas. Temp. Hardw. 304, 
 Case V. Barber, T. Raym. 450, 
 
 V. Davidson. 5 Moore, 116; 5 Maule & S. 79; 8 
 
 &B. 379, .... 
 
 r. Hartford Ins. Co. 13 111. 6 76, . 
 Casler v. Connecticut Ins. Co. 22 N. Y. 427, 
 Cassedy v. La. State Ins. Co. 6 Mart. N. s. La. 421, 
 Casseres v. Bell, 8 Term, 166, 
 
 Castelli v. Boddington, 1 Ell. & B. 66 ; 16 Eng. L. & 
 Castling V. Aubert, 2 East, 325, 
 
 Catharine, The, 3 W. Rob. Adm. 1 ; 1 Eng. L. & Eq. 
 Catherina Elizabeth, The, 5 C. Rob. Adm. 232, 
 
 Maria, The, Edw. Adm. 33 7, . 
 Catlett V. Columbia Ins. Co. 3 Cranch, C. C. 192, 
 
 510 
 
 222, 281, 1123, 1154 
 
 . 76, 84, 88, 185, 2124 
 
 . 221, 2138 
 
 311, 392, 423, 2021, 2125 
 
 1059, 1758 
 
 1219, 1229 
 
 . 210', 1049 
 
 211, 533, 568, 572, 667, 
 
 1943, 2112 
 
 108, 174, 1983 
 
 872 
 
 405 
 
 . 992, 1001 
 
 85, 1973, 1975 
 
 1564, 1591 
 
 . 2039 
 
 2004 
 
 e, Exch. 542; 2 Brod. 
 
 1649, 1740 
 
 1098, 1811, 2144 
 
 . 895 a 
 
 1683, 1881, 1953 
 
 . 2029 
 
 Eq. 127, 84, 1847 a 
 
 . 1853, 1915, 1923 
 
 679, 302, 303, 1579, 1596 
 
 274 
 
 247 
 
 1230 
 
 Pric 
 
 V. Pacific Ins. Co. 1 Wend. N. Y. 561 ; 4 id. 75, 
 Paine, C. C. 594, 
 
 386, 1628, 1702, 2021, 
 
 2122 
 
 386, 806, 1702, 1828, 1932, 2050, 
 
 2051, 2091 
 
 Catlin V. Springfield Ins. Co. 1 Sumn. C. C. 434, . . 878, 1096, 1811 
 
 Catron v. Tennessee Ins. Co. 6 Humphr. Tenn. 176, . . . 639 
 
 Cavan v. Stewart, 1 Stark. 525, ..... 2050 
 
 Cazalet r. St. Barbe, 1 Term, 187, . . . 1538, 1539, 1555 
 
 Caze V. Baltimore Ins. Co. 7 Cranch, 358, . . . 1138, 1718 
 
 V. Richards, 2 Serg. & R. Penn. 237, n., . . . . 1318 
 
 V. Reillv, 3 Wash. C. C. 298, ..... 1318 
 
 Cazenove r. British Ass. Co. 6 C. B. N. s. 437, . . . .648 
 
 Center v. Am. Ins. Co. 7 Cow. N. Y. 564, 1057, 1426, 1539, 1548, 1732, 1741 
 
 V. Union Ins. Co. 7 Cow. N. Y. 564, . . . .1953 
 
 Chaffee i\ Cattaraugus Ins. Co. 18 N. Y. 376, . . . 872 a 
 
 Chahners v. Bell, 3 Bos. & P. 604, . . . . .210 
 
 Chamberlain i>. Harrod, 5 Me. 420, ..... 116,1590 
 
 Chandler v. Worcester Mut. F. Ins. Co. 3 Cush. Mass. 328, . . 1095
 
 TABLE OF CASES. 
 
 xxni 
 
 Chanome v. Fowler, 4 Wend. N. Y. 173, .... 2110 
 
 Chapman v. Frazer, Park, Ins. 450; 3 Burr. 1361, . . 1844, 1845 
 
 V. Kennett, 1 Park, Ins. 329, .... 1845 
 
 V. Walton, 10 Biu^ll. 57, ..... 2112 
 
 Charleston Ins. & Trust Co. V. Corner, 2 GilI,Md. 410, 1447, 1497, 1644, 1647, 
 
 1953, 2021 
 
 V. Neve, 2 McMull. So. C. 237, . 98, 1797 
 
 Charlotta, The, Edw. Adm. 252, . . . . . 843 
 
 Charlotte, The, 4 C. Rob. Adm. Ap. 13; 5 id. 275, 305, . . 271 
 
 Chase v. Eagle Ins. Co. 5 Pick. Mass. 51, . . . . 704, 726 
 
 V. Hamilton Ins. Co. 20 N. Y. 52. . . . . 638, 667 
 
 22 Barb. N. Y. 527, . . . 874 a 
 
 V. Washington Mut. Ins. Co. 12 Barb. N. Y. 595, . . 567, 1939 
 
 Chattock V. Shaw, 1 Mood. & R. 498, .... 648, 901 
 
 Chauraud v. Angerstein, Peake, 43, .... 145, 620 
 
 Cheriot r. Barker, 2 Johns. N. Y. 346, . . 116,133,415,483,1207 
 
 V. Toussat, 3 Binn. Penn. 220, . . . . 2109 
 
 Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, 1669, 1685, 1703, 1705, 1881 
 
 V. Ailegre's Adm'rs, 2 Gill & J. Md. 164, . 591, 2028 
 
 Child V. Sun Mut. Ins. Co. 3 Sandf. N. Y. 26, 119, 141, 144, 458, 980, 1002, 
 
 1801, 1803, 2100 
 Chinnery v. Blackburne, 1 H. Blackst. 117, . . . .1738 
 
 Chitty V. Selwyn, 2 Atk. Ch. 359, .... 935, 1002 
 
 Chope ?;. Reynolds, 5 C. B. N. s. 642, . . . . .1654 
 
 Christian v. Combe, 2 Esp. 489, .... 1815, 2095 
 
 Christiansberg, The, 6 C. Rob. Adm. 376, 
 Christie v. Secretan, 8 Term, 192, 
 
 V. Lewis, 2 Brod. & B. 410; 5 Moore, 211, 
 Christopher, The, 2 C. Rob. Adm. 209, 
 Church V. Bedient, 1 Caines, Cas. N. Y. 21, 
 V. Hubbart, 2 Cranch, 187, 
 V. Marine Ins. Co. 1 Mas. C. C. 341, 
 I". Teasdale, 1 Brev. So. C. 255, 
 Cincinnati Ins. Co. v. Bake well, 4 B. Monr. Ky. 541, 
 & Firemen's Ins. Co. v. May, 20 Ohio, 211 
 
 Citizens' Ins. Co. v. Glasgow, 9 Mo. 406, 
 
 V. Marsh, 41 Penn. St. 386, 
 V. Sort well, 8 All. Mass. 217, 
 Citto, The, 3 C Rob. Adm. 38, . 
 City Bank v. Cutter, 3 Pick. Mass. 414, 
 City Ins. Co. v. Corlies, 21 Wend. N. Y. 367, 
 Clamageran v. Banks, 6 Mai-t. n. s. La. 551, . 
 Clapham, i\ Cologan, 3 Campb. 382, 
 Clapp V. Tirrell, 20 Pick. Mass. 247, , 
 
 V. Union Ins. Co. 27 N. II. 143, 
 Clarena, The, 3 W. Rob. Adin. 283, . 
 Clark r. Baker, 11 Mete. Mass. 186, 
 
 V. Bush, 3 Cow. N. Y. 151, 
 
 V. Firemen's Ins. Co. 18 La. 431, 
 
 V. Gray, 6 East, 564, 
 
 V. Inhabitants of Blytring, 2 Barnew. & C. 254; 
 
 V. Manufacturers' Ins. Co. 8 How. 235 ; 2 Woodb. & M. C. C. 472, 70, 
 
 553, 635, 636, 875, 2165 
 
 V. Mass. F. & Mar. Ins. Co. 2 Pick. Mass. 104, 1142, 1447, 1451, 1633, 
 
 1634, 1641 
 
 V. Middleton, 19 Mo. 53, . . . . . 510 
 
 281 
 551, 745, 1844, 2109 
 , 1083 
 2104 
 . 1662 
 411, 1154, 2050, 2110 
 1523, 1524, 1590, 1662 
 2095 
 1693, 1697, 1705 
 1046, 1049, 1480 a, 
 1557, 2112, 2174 
 . 1099, 1162, 1684 
 . 1046 
 510, 2065 a 
 159 
 140 
 . 1097 
 1980 
 430, 757 
 515 
 874 a 
 1137 a, 1420 
 126 
 1743 
 . 422, 484, 489 
 2014, 2025 
 3 Dowl. & R. 489, 2001
 
 XXIV 
 
 TABLE OF CASES. 
 
 Clark V. Morey, 10 Johns. N. Y. 69, .... 2030, 2113 
 
 V. Ocean Ins. Co. 16 Pick. Mass. 289, 336, 481, 1181, 1230, 1238, 1950 
 V. Protection Ins. Co. 1 Stor. C. C. 109, 195, 215, 220, 221, 231, 235, 703 
 V. Union Ins. Co. 40 N. II. 333, . . . 1876, 1949 
 
 V. United F. & M. Ins. Co. 7 Mass. 365, 133, 1000, 1203, 1219, 1267, 
 
 1328, 1410 
 Clarke v. New England Mut. F. Ins. Co. 6 Cash. Mass. 342, . 641, 880, 
 
 881, 904, 1812, 1813 
 
 Clarkson v. Phoenix Ins. Co. 9 Johns. N. Y. 1, 1337, 1535, 1613, 1708, 1733 
 
 V. Philadelphia Ins. Co. 1 Browne, Penn. 152, . . . 810 
 
 Clary v. Protection Ins. Co. 1 Wright, Ohio, 227, 
 
 Clason V. Smith, 3 Wash. C. C. 156, 
 
 V. Simmonds, 6 Term 533, n., . 
 Clay V. Harrison, 1 Lloyd & W. Cas. 104, 
 Clayton v. The Harmony, 1 Pet. Adm. 70, 
 Clegg V. Levy, 3 Campb. 166, 
 
 Clement v. Jones, 12 Mass. 60, . . . 
 
 Clendinning v. Church, 3 Caincs, N. Y. 141, 
 Cleveland v. Union Ins. Co. 8 Mass. 308, . 735, 751 
 
 Clifford V. Hunter, 3 Carr. & P. 16; 1 Mood. & M. 103, 
 
 V. Thomaston Ins. Co. 50 Me. 197, 
 Clio, The, alias The Wm. Pitt, 6 C. Rob. Adm. 67, 
 
 Clues V. Bathurst, Cas. Temp. Hardw. 11; 2 Strange 
 Clugas (;. Penaluna, 4 Term, 466, 
 Cobb V. New England Ins. Co. 6 Gray, Mass. 192, 
 Cochran v. Fisher, 1 Crompt. M. & R. Exch. 809 ; 2 
 4 Tyrwh. Exch. 424 ; 5 id. 496, . 
 V. Retbcrg, 3 Esp. 121, . 
 Cockerell v. Cincinnati Mut. Ins. Co. 16 Ohio, 149, 
 Cockey v. Atkinson, 2 Barnew. & Aid. 460, 
 Cocking V. Eraser, 4 Dougl. 215, 
 Cocksedge v. Eanshaw, 1 Dougl. 114, 
 Coffin i;."Newburyport Mar. Ins. Co. 9 Mass. 436, 
 
 V. Phoenix Ins. Co. 15 Pick. Mass. 291, 
 
 V. Storer, 5 Mass. 252, . 
 Coggeshall v. American Ins. Co. 3 Wend. N. Y. 283, 
 
 11. Read, 5 Pick. Mass. 454, 
 Coggs V. Barnard, 2 Ld. Raym. 909, . 
 Cognac, The, 2 Hagg. Adm. 277, . 
 Cogswell V. Ocean Ins. Co. 18 La. 84, 
 Cohen V. Bulkeley, 5 Taunt. 165, . 
 V. Haunam, 5 Taunt. 101, 
 V. Hinckley, 2 Campb. 51 ; 1 Taunt. 249, . 
 Coit V. Commercial Ins. Co. 7 Johns. N. Y. 385, 
 
 V. Smith, 3 Johns. Cas. N. Y. 16, 
 Colby ('. Hunter, 3 Carr. & P. 7 ; 1 Mood. & M. 81, 
 Cole V. Bangor Ins. Co. 16 Me. 207, 
 
 V. Union Ins. Co. 12 Grav, Mass. 501, 
 Coles V. Mar. Ins. Co. 3 AVash. C. C. 159, 
 CoUamer v. Day, 2 Vt. 144, . 
 
 CoUett V. Morrison, 9 Hare, Ch. 162 ; 12 Eng. L. & Eq. 171, 
 Colley V. Streeton, 2 Barnew. & C. 271 ; 3 Dowl. & R. 522, 
 Cologan V. London Ass. Co. 5 Maule & S. 447, 
 Colquhoun v. N. Y. Fireman's Ins. Co. 15 Johns. N. Y. 352, 
 Colson V. Bonzey, 6 Me. 474, . 
 
 Columbia, The, 1 C. Rob. Adm. 154, . 
 
 960, 
 
 Cromjit 
 
 489 
 
 578 
 
 1007, 1010 
 
 178, 197, 198, 1986 
 
 1719 
 
 . 2110 
 
 1868 
 
 . 7, 211, 2018 
 
 , 953, 978, 1050, 1056 
 
 . 708, 1947 
 
 . 1149 
 
 247 
 
 . 2105 
 
 1846 
 
 . 383, 516, 865 
 
 & M. Exch. 581 ; 
 
 773 
 
 68, 144 
 
 . 9, 75, 975 
 
 144 
 
 1767 
 
 . 2085 
 
 7, 1050, 1219, 1229 
 
 2132, 2174 
 
 1441, 1719, 1726 
 
 432, 442, 939, 941, 
 
 970, 997 
 
 . 1651 
 
 1867 
 
 . 1265 
 
 1099 
 
 . 1989 
 
 381, 417, 418, 2018, 2021 
 
 907, 1049, 2129, 2139 
 
 . 144, 1764 
 
 1136, 1148 
 
 778, 1321, 1844 
 
 . 1767 
 
 953 
 
 1041, 1086, 2132 
 
 211 
 
 117 
 
 1559 
 
 1704,1773 
 
 . 253, 258 
 
 . 2124 
 
 826, 829, 839 
 
 97 
 
 133,
 
 TABLE OP CASES. 
 
 XXV 
 
 Columbia Ins. Co. v. Lawrence, 10 Pet. 507, 
 
 V. Stone, 3 All. Mass. 385, . 
 Columbian Ins. Co. v. Ashby, 4 Pet. 139, . 
 13 Pet. 343, 
 V. Bradhurst. 9 Johns. N. Y. 9, 
 V. Catlett, 12 Wheat. 383, 
 
 1261, 1676, 1677, 1678, 1686, 1718, 2157 
 t'. Lawrence, 2 Pet. 25, 180, 421, 640, 673, 1810, 1947 
 
 V. Lynch, 11 Johns. N. Y. 233, 369, 1251, 1834, 1839 
 
 733, 1096, 1810, 1947, 1948, 
 1962, 2052 
 523 a 
 1279, 1700, 1710, 1732, 1953 
 1302, 1313, 1318, 1545 
 . 1318 
 133, 447, 1002, 1228, 1260, 
 
 Columbus, The, 3 W. Rob. Adm. 158, 
 Columbus Ins. Co. v. Cooper, 50 Penn. St. 331, 
 
 V. Walsh, 18 Mo. 229, 
 Colvill, Ex parte, 1 Mont. Bank. 110, 
 Colvin V. Thompson, 1 Lloyd & W. Cas. 140, . 
 Comber r. Anderson, 1 Campb. 523, 
 Comet, The, Edw. Adm. 32, . 
 
 5 C. Rob. Adm. 285, . 
 Commercen, The, 1 Wheat. 382 ; 2 Gall. C. C. 264, . 
 Commei-cial Ins. Co. r. Hallock, 3 Dutch. N. J. 645, 
 
 17. Union Ins. Co. 19 How. 318, . 
 Commonwealth Ins. Co. v. Berger, 42 Penn. St. 285, 
 V. Chase, 20 Pick. Mass. 142, 
 V. Globe Ins. Co. 35 Penn. St. 475, 
 V. Sennett, 37 Penn. St. 205, 1, 7, 5 
 
 41 Penn. St. 161, 
 Concord Ins. Co. r. Woodbury, 45 Me. 44 
 
 1559, 1940 
 
 . 1876 
 
 1997 
 
 95 
 
 1534 
 
 1899, 1902 
 
 830 
 
 . 2104 
 
 . 272,825 
 
 . 925 
 
 14 
 
 . 880 
 
 . 1557, 1559 
 
 377 
 
 1219, 1480 a 
 
 . 2144 
 
 1712 
 
 Conizares v. Santissima Trinidad, Hopk. Adm. 35 ; also, Marshall, Ins. 714 b, n., 
 
 1564, 1568 
 Connecticut Ins. Co. v. N. Y. & N. H. R. R. Co. 25 Conn. 265, . 2003 
 
 Conover v. Mut. Ins. Co. of Albany, 3 Den. N. Y. 254, 84, 93, 879, 1973, 
 
 207 7 
 Consequa f. Willings, Pet. C. C. 229, . . . 2110,2119,2120 
 
 Constable v. Noble, 2 Taunt. 403, . . . . 116, 144, 9 75 
 
 Constantia, The, (Henricksen,) 6 C. Rob. Adm. 321, . . 255, 264 
 
 (Holbec,) 6 C. Rob. Adm. 461, n., . . . 825 
 
 Contee v. Dawson, 2 Bland, Ch. Md. 264, . . . . .865 
 
 Convenientia, The, 4 C. Rob. Adm. 201, .... 278, 914 
 
 Converse v. Citizens' Ins. Co. 10 Cush. Mass. 37, . . . . 208 
 
 Conway r. Davidson, 10 East, 536, . . . . . 914 
 
 y. Forbes, 10 East, 539, .... .393,914,1518 
 
 V. Gray, 10 East, 536, ..... 311,393,1518 
 
 Conway Tool Co. v. Hudson River Ins. Co. 12 Cush. Mass. 144, . . 881 
 
 Cook V. Black, 2 Jones, Annuities, 1186, . . .91, 896, 1815 
 
 r. Com. Ins. Co. 11 Johns. N. Y. 40, . ^ . , . . 1080 
 
 i;. Essex F. & M. Ins. Co. 6 Mass. 122. . . . . 1115 
 
 V. Townson, Park, Ins. 448, ...... 1030 
 
 Cooker. Graham, 3 Cranch, 235, . . . . , 120 
 
 V. Oxley, 3 Term, 653, . . . . . .17 
 
 Cookendorper v. Preston, 4 How. 317, . , . , . 122, 133 
 
 Coolidge i;. Blake, 15 Mass. 429, ...... 855 
 
 V. Gloucester Mar. Ins. Co. 15 Mass. 341, 1204, 1207, 1439, 1539, 
 
 1540, 1605, 1639, 1649, 1659, 1708, 1741 
 V. Gray, 8 Mass. 527, . . . , . 962 
 
 V. N. Y. Firemen's Ins. Co. 14 Johns. N. Y. 308, 733, 802, 1162, 
 
 2047, 2091 
 Cooper V. Farmers' Ins. Co. 50 Penn. St. 299, . . . . 874 a
 
 XXVI 
 
 TABLE OP CASES. 
 
 Cooper V. South, 4 Taunt. 802, . 
 
 Cope V. Rowlands, 2 INIees. & W. Exch. 6 7, 
 
 Copeland v. Mercantile Ins. Co. 6 Pick. Mass. 198, 
 
 V. N. E. Ins. Co. 2 Mete. Mass. 432, 
 Copper V. Wells, 1 Saxt. Ch. N. J. 1 0, . 
 Corban v. Downe, 5 Esp. N. P. 41, 
 Corcoran v. Gurney, 1 Ell. & B. 456 ; 16 Eng. L. & Eq, 
 Corlett V. Gordon, 3 Campb. 4 72, . 
 Cormack v. Gladstone, 11 East, 34 7, . 
 Cornelia, The, Edw. Adm. 360, 
 Cornell v. Le Roy, 9 Wend. N. Y. 163, 
 Cornu V. Blackburne, Dougl. 641, 
 Cornwal v. Wilson, 1 Ves. Sen. Ch. 511, 
 Corp V. United Ins. Co. 8 Johns. N. Y. 277, 
 Cort V. Delaware Ins. Co. 2 Wash. C. C. 375, . 
 Cosmopolite, The, 4 C. Rob. xVdm. 8, 
 Coster V. Phoenix Ins. Co. 2 Wash. C. C. 51, . 
 Coston V. Allesihany County Mut. Ins. Co. 1 Penn. 323 
 Cotterili V. Cuff, 4 Taunt. 285, . 
 Coulon V. Bowne, 1 Caines, N. Y. 288, 
 Courier, The, Edw. Adm. 249, . 
 Coursiu r. Pennsylvania Ins. Co. 46 Penn. St. 323, 
 Court V. Delaware Ins. Co. 2 Wash. C. C. 480, 
 
 V. Martineau, 3 Dougl. 161, . 
 Courtnay v. Miss. F. & M. Ins. Co. 12 La. 233, 
 Courtney v. New York Ins. Co. 28 Barb. N. Y. 116, 
 Cousiiie Marianne, The, Edw. Adm. 346, 
 Cousins V. Nantes, 3 Taunt. 513, . 
 Covington v. Roberts, 5 Bos. & P. 378, . 
 Cowie V. Barber, 4 Maule & S. 16, . 
 Cox V. Mav, 4 Mauie & S. 152, . 
 
 *;. Parry, 1 Term, 464, .... 
 V. Prentice, 3 Maule & S. 344, 
 Crafts V. Union Ins. Co. 36 N. H. 44, 
 Craib v. D'^th, 7 Term, 670, n., 
 Craig V. Murgatroyd, 4 Yeates, Penn, 161, 
 
 V. Tennet, 1 Carr. & M. 43, 
 
 V. The Hartford Fire Ins. Co., Blatcbf. C. C. 280 
 Feb. 1853, 96, . 
 
 V. United Ins. Co. 6 Johns. N Y. 226, 
 
 V. United States Ins. Co., Pet. C. C. 410, 
 Cram v. Aiken, 13 Me. 299, 
 Crane v. Evansville Ins. Co. 13 Ind. 446, 
 Cranston v. Philadelj)hia Ins. Co. 5 Binn. Penn. 538, 
 Craufurd, )). Hunter, 8 Term, 13, . 322, 438, 11 
 
 Cray v. Hartford F. Ins. Co. 1 Blatchf C. C. 280, . 
 Creery v. HoUey, 14 Wend N. Y. '26, . 
 Crocker v. Jackson, Sprague Dec. Dist. Ct. 141, 
 17. People's Ins. Co. 8 Cush. Mass. 79, . 
 V. Whitney, 10 Mass. 323, . 
 Crockett V. Dodge, 12 Me. 190, 
 
 Crofts V. Marshall, 7 Carr. & P. 597, . 136, 108 
 
 Crombie v. Portsmouth Ins. Co. 26 N. H. 389, . 
 Cromie v. Kentucky Ins. Co. 15 B. Monr. Ky. 432, 
 Crooke v. Mali, 1 1 Barb. N. Y. 205, . 
 Crosby v. Fitch, 12 Conn. 410, . 
 
 V. Franklin Ins. Co. 5 Gray, Mass. 504, 
 
 2124 
 
 . 1846 
 
 185, 192, 1970 
 
 727, 731, 733 
 
 865 
 
 940 
 
 461, , . 1758 
 
 1869, 1888 
 
 999 
 
 247, 249 
 
 885, 1806 
 
 148 
 
 1864 
 
 . 1115 
 
 725 
 
 247 
 
 125 
 
 1795, 1939 
 
 2014 
 
 539, 2119 
 
 842 
 
 . 1983 
 
 2152 
 
 581, 585, 1998 
 
 66,448, 923, 995 
 
 108 
 
 , 245, 795 
 
 1932, 2018 
 
 1297 
 
 . 1297 
 
 1129 
 
 383, 2061 
 
 1997 
 
 . 1974 
 
 2060, 2162 
 
 361, 1251, 1838 
 
 2052 
 
 Livingston, Law Mag., 
 
 2171 
 
 1115,1802 
 
 253, 724, 2122 
 
 . 1282 
 
 2017 
 
 . 1959 
 
 859, 1966, 2018, 2021 
 
 . 1983 
 
 2119 
 
 1027, 1028 
 
 638 
 
 . 1974 
 
 1271, 1316 
 
 7, 1424, 1953, 2112, 2119 
 
 1268, 1743 
 
 486, 1263 a, 1747 
 
 523 
 
 1000, 1950 
 
 489 
 
 93,
 
 TABLE OF CASES. XXVll 
 
 Crosby v. New York Ins. Co. .5 Bosw. N. Y. 369, . . . .383 
 
 Cross V. Shutliffe, 2 Bay, So. C. 220, . . . . .1010 
 
 Crousillat v. Ball, 4 Dall. 294, ...... 1074 
 
 Crowley v. Cohen, 3 Barnew. & Ad. 478, 191, 378, 424, 437, 439, 444, 498, 
 
 1471, 1478 
 
 CrowningsliieUl v. New York Ins. Co. 3 Johns. Cas. N. Y. 142 . . 1040 
 
 Cruder v. Philadelphia Ins. Co. 2 Wash. C. C. 262, . 710, 723, 727, 1018 
 
 V. Pennsylvania Ins. Co. 2 Wash. C. C. 339, . . 720, 1018 
 
 Cruikshank v. Browner, 11 Barb. N. Y. 228, .... 528 
 
 V. Jansen, 2 Taunt. 301. .... 770, 774, 933 
 
 Cucullu V. Louisiana Ins. Co. 5 Mart. N. s. La. 480, . . . 2104 
 
 V. Orleans Ins. Co. 6 Mart. x. s. La. 13, . . . 1157, 2104 
 
 Cudworth V. South Carolina Ins. Co. 4 Rich. So. C. 416, . . 1051 
 
 Cullen V. Butler, 3 Barnew. & A. 403; 5 Maule & S. 461 ; 1 Stark. 138, 1052, 
 
 1099, 1126, 2022 
 
 Cumberland Valley Ins. Co. v. Mitchell, 48 Penn. St. 374, . . 1949 
 
 V. Schell, 29 Penn. St. 31, 635, 877, 1741 a, 2127 
 
 Cumniing v. Forrester, I IMaule & vS.494, ..... 507, 514 
 
 Cumpston V. M'Nair, 1 Wend. N. Y. 457, ..... 1852 
 
 Cunard v. Hvde, 2 Eil. & E. 1, . . . , . 221 
 
 Curcier r. Philadelphia Ins. Co. 5 Serg. & R. Penn. 113, . . .1731 
 
 Curell V. Mississippi Ins. Co. 9 La. 163, . . . . 529, 620 
 
 Curling V. Long, 1 Bos. & P. 636, . . . . . .333 
 
 Curry y. Bland, Park, Ins. 8th ed. 811, .... .507 
 
 V. Commonwealth Ins. Co. 10 Pick. Mass. 535, . 635, 640, 1037, 1806 
 
 Curson V. Smith, Wharton, Dig. tit. Insurance, No. 28, p. 320, . 537 
 
 Curtis r. Perry, 6 Ves. Ch. 739, ...... 2124 
 
 Curtissos's Case, 3 C. Rob. Adm. 21, n., .... 159 
 
 Cushman t^. North Western Ins. Co. 34 Me. 487, . . . 491,1183 
 
 Cynthia, The, 20 Eug. L. & Eq. 623 ; 16 Eug. Jur. Adm. 749, . 289 
 
 D. 
 
 Dachett p. Williams, Ellis, Ins. 142, ..... 1845 
 
 Da Costa v Edmunds, 4 Campb. 142, ..... 460 
 
 t-. Firth, 4 Burr. 1966, ..... 211,1815 
 
 V. Jones, Weskett, tit. Wager, a. 3 ; Cowp. 729, . . 211 
 
 17. Newnham. 2 Term, 407, . 1104, 1326, 1328, 1329, 1431, 1558 
 
 V. Scandret, 2 P. Will. Ch. 170 ; 2 Eq. Cas. Abr. 636, . 609, 1938 
 
 V. Villa Real, 1 Atk. 49 ; Strange, 961 ; 1 Ves. Ch. 159, . 2105 
 
 Dadmun Manuf. Co. v. AVorcester F. Ins. Co. 11 Mete. Mass. 429, 87, 92, 880 
 
 D'Aauilar v. Tobin, 1 Holt, 185; 2 Marsh, 215, . . . 750, 2153 
 
 Daifjie, The, 3 C. Rob. Adm. 139, . . . ... . 254 
 
 Dakin r. Hudson, 6 Cow. N. Y. 221, . . . . . 2037 
 
 Dalby v. India & London L. Ass. Co. 15 C. B. 365 ; 28 Eng. L. & Eq. 312, 7, 
 
 356, 378, 1515, 1729, 1755 
 
 1100, 2006 
 
 778, 1160, 1841J 2025 
 
 . 1414 
 
 2109 
 
 210, 906 
 
 514 
 
 433, 753 
 
 Dale r. Hall, 1 Wils. 281, . 
 Dagleish r. Brooks, 15 E;ist, 295, 
 
 V. Davidson, 5 Dowl. & R. 6, 
 
 V. Hodgson, 7 Bingh. 495, 
 Dalmada v. Motteux, 9 Pai-k, Ins. 357 
 Dalzell V. Muir, 1 Campb. 532, . 
 Damson v. Cawlcv, Newfoundland, 433, . 
 Dana ;'. Mnnson, 23 N. Y. 564, . . . . . . 523 a 
 
 Danaous, The, 4 C. Rob. Adm. 255, n., . . . . .165 
 
 Daniels v. Hudson River Ins. Co. 12 Cush. Mass. 416, 527, 544, 673, 1947, 
 
 2112 a
 
 XXVlll 
 
 TABLE OP CASES. 
 
 Dante, The, 2 W. Rob. Adm. 427, .... 523 b, 1847b 
 
 Darby v. Newton, 6 Taunt. 544, ...... 210 
 
 Davenport v. New En>,rland F. Ins. Co. 6 Cusli. Mass. 340, . . 641 
 
 V. Peoria Ins. Co. 17 Iowa, 276, . . . .16 
 
 D'Aubigny v. Duval, 5 Term, 604 ; 4 Notes of Adm. Cases, 408, . 1917 
 
 David V. Hartford Ins. Co. 13 Iowa, 69, . . . . . 881 
 
 Davidson v. Case, 5 J. B. Moore, 116 ; 2 Brod. & B. 379 ; 5 Maule & S. 79 ; 8 
 
 1649, 1708, 1740 
 
 . 1452 
 
 332 
 
 409, 857, 1969 
 
 Price, Exch. 542, 
 V. Gwinne, 12 East, 381,. 
 V. Willasey, 1 Maule & S. 313, 
 Davis V. Boardman, 12 Mass. 80, 
 V. Davis, 49 Me. 282, 
 V. Gildart, Beawes, Lex Merc. 242 ; 2 Park, Ins 
 
 V. Quincy Ins. Co. 10 All. Mass. 113, 
 
 V. Wilkinson, 4 Bingh. 573; 1 Stark. 115, . 
 Davy V. Hallett, 3 Caines, N. Y. 16, . . . 333 
 
 V. Milford, 15 East, 559, 
 Dawes v. North River Ins. Co. 7 Cow. N. Y. 462, 
 Dawn, The, Dav. Dist. Ct. 121, 
 Dawson v. Atty, 7 East, 367, . 
 Day V. Charter Oak Ins. Co. 51 Me. 91, . 
 De Aguilar v. Tobin, Holt, N. P. 185, . 
 Dean v. American Ins. Co. 4 All. Mass. 96, 
 
 V. Dicker, 2 Strange, 1250, 
 
 V. Hornby, 3 Ell. & B. 180; 24 Eng. L. & Eq. 85, 
 Dearie v. Hall, 3 Russ. Ch. 24, . 
 Deblois V. Ocean Ins. Co. 16 Pick. Mass. 303, . 706, 726 
 
 Debegnis v. Armistead, 10 Bingh. 107, . 
 
 Debolle v. Pennsylvania Ins. Co. 4 Whai't. Penn. 68, 
 
 Decrow v. Waldo Ins. Co. 43 Me. 460, . 
 
 Dederer v. Delaware Ins. Co. 2 Wash. C. C. 61, 1063 
 
 Defflis V. Parry, 3 Bos. & P. 3, . 
 
 De Forest v. Fulton F. & M. Ins. Co. 1 Hall, N. Y. 84, 
 
 424, 
 
 361, 1251, 1838, 
 
 2146 
 
 880 
 
 1925, 2126 
 
 1208, 1649, 1741 
 
 . 1773 
 
 2058 
 
 . 1719 
 
 . 671, 745 
 
 . 874 a 
 
 2153 
 
 . 895 
 
 . 211, 1621 
 
 . 1530 
 
 79 
 
 1014, 1492, 1539, 
 
 1543, 1577 
 
 215 
 
 389, 2072 
 
 1154, 2109 
 
 1068, 1732, 1803 
 
 248 
 
 . 311, 313, 383, 
 
 412, 1158, 1856, 1864, 1868, 1889, 2019 
 De Frise v. Stephens, Park, Ins. Co. 349 ; Marshall, Ins. 521, n., . 1081 
 
 De Gaminde v. Pigou, 4 Taunt. 246, .... 507, 1847 
 
 De Garey v. Clagget, Park, Ins. 511 ; Marshall, Ins. 368, . . 780 
 
 De Garron v. Gal'braith, Park, Ins. 194, . . . . . 1815 
 
 De Ghetoft v. London Ass. Co. 4 Brown, Pari. Cas. 436 ; Mosel. Ch. 83, 77, 
 
 1933, 1939, 1973 
 De Guelder v. Depeyster, 1 Vern. Ch. 363, 
 D'Eguino V. BewicJ^e, 2 II. Blackst. 551, 
 
 De Halm v. Hartley, 1 Term, 343, ..... 
 Deidericks v. Commercial Ins. Co. of N. Y. 10 Johns. N. Y. 234, 
 
 Delahay v. Memphis Ins. Co. 8 Humphr. Tenn. 684, 
 
 Delaney v. Stoddart, 1 Term, 22, 
 
 Delano i-. Bedford Mar. Ins. Co. 10 Mass. 347, . 
 
 Delanoy v. Robson, 5 Taunt. 605, 
 
 Delavigne v. United Ins. Co. 1 Johns. Cas. N. Y. 310, . 
 
 Delaware Ins. Co. v. Archer, 3 Rawle, Penn. 216, 
 
 V. Hogan, 2 Wash. C. C 4, . 
 
 V. Winter, 38 Penn. St. 176, 
 Delbie v. Proudfoot, 1 Show. 396, . 
 Delonguemere v. N. Y. F. Ins. Co. 10 Johns. N. Y. 120, 
 V. New York Ins. Co. 10 Johns. N. Y. 201, 
 
 1847 b 
 
 780 
 
 669, 1997 
 
 1661 
 
 640 
 
 77, 82, 999, 1866, 1892 
 
 913, 1129 
 
 . 906, 912 
 
 1844, 1937 
 
 1789 
 
 . 117, 133, 1937 
 
 1603 
 
 . 1931 
 
 144,593, 759,929 
 
 . 333
 
 TABLE OF CASES. 
 
 XXIX 
 
 Delonguemere v. Phoenix Ins. Co. 10 Johns. N. Y. 127, 
 V. Tradesman's Ins. Co. 2 Hall, N, Y. 589, 
 
 Delovio V. Boit, 2 Gall. C. C. 398, 
 
 De Lunevilie v. Phillips, 5 Bos. & P. 97, . 
 
 Dempzey v. Ins. Co. of Pennsylvania, 1 Binn. Penn. 299, n., 
 
 Dennis v. Ludlow, 2 Caines, N. Y. Ill, 
 
 Dennison v. ]\Iodigliani, 5 Term, 580, . 
 
 V. Thomaston Mut. Ins. Co. 20 Me. 125, . 
 Dennistown v. Lillie, 3 Bligh, Hon. L. 202, 
 Depaiba v. Ludlow, 1 Com. 361, 
 
 . 333, 1207 
 
 125, 673, 871, 873, 
 
 882 
 
 1934, 1940 
 
 .149 
 
 2109 
 
 . 601, 756, 776 
 
 . 584, 1029 
 
 . 537, 542, 638 
 
 553 
 
 211 
 
 1101 
 
 113 
 
 Depau V. Ocean Ins. Co. 5 Cow. N. Y. 63, 
 
 Depeau v. Russel, 1 Brev. So. C. 441, 
 
 Depeyre v. Western F. & M. Ins. Co. 2 Rob. La. 45 7 
 
 Depeyster v. Columbian Ins. Co. 2 Caine.s, N. Y. 85, 
 
 V. Gardner, 1 Caines, N. Y. 492, . 
 
 V. Sun Ins. Co. 19 N. Y. 272, . 
 
 1 7 Barb. N. Y. 306, . 
 Deraismes v. IMerchants' Ins. Co. of Albany, 1 N. Y. 371,. 
 Deshon v. Merchants' Ins. Co. 11 Mete. Mass. 199, 
 De Silvale v. Kendall, 3 Maule & S. 37, . 
 De Silver v. State Ins. Co. 38 Penn. St. 130, . 
 De Sousa v. Ewer, Park, Ins. 361, .... 
 De Symonds v. De la Cour, 5 Bos. & P. 374, 
 V. Shedden, 2 Bos. & P. 153, . 
 De Symons v. Johnson, 5 Bos. & P. 7 7, 
 De Tastet v. Crousillat, 2 Wash. C. C. 136, 
 
 V. Taylor, 4 Taunt. 233, 
 Devall V. Burbridjre, 4 Watts & S. Penn. 305, 
 De Vaux v. J' Anson, 5 Bingh. n. c. 519, 
 V. Salvador, 4 Ad. & E. 420, 
 I'. Steele, 6 Bingh. N. c. 358, 
 Devendorf j;. Beardsley, 23 Barb. N. Y. 656, 
 De Vignier v. Swanson, 1 Bos. & P. 346, n., . 
 De Wolff V. N. Y. Firemen's Ins. Co. 20 Johns. N. Y. 214 ; 2 
 
 V. State Ins. Co. 6 Du. N. Y. 191, . 
 Dey V. Poughkeepsie Ins. Co. 23 Barb. N. Y. 623, 
 D'ilahn v. Haitley, 1 Term, 343 ; 2 id. 186, . 
 Diana, The^ 5 C. Rob. Adm. 60, . 
 Dick V. Allen, Park, Ins. 16 7, . 
 Dickenson i'. Commercial Ins. Co. Anth. N. Y. 92, 
 Dickey v. American Ins. Co. 3 Wend. N. Y. 658, 
 
 V. Baltimore Ins. Co. 7 Cranch, 327, 
 V. New York Ins. Co. 4 Cow. N. Y. 222, 
 
 V. United Ins. Co. 11 Johns. iST. Y. 358, 
 Dickson v. Lodge, 1 Stark. 226, 
 Diehl V. General Mut. Ins. Co. 1 Sandf. N. Y. 257, 
 Dispatch, The, 3 C. Rob. Adm. 278, . 
 D'lsraeli r. Jowett, 1 Esp. 427, 
 Dix r. Cobb, 4 Mass. 512, 
 
 I'. Mercantile Ins. Co. 22 111. 272, 
 
 V. Union Ins. Co. 23 Mo. 57, 
 Dixon V. Hammond, 2 Barnew. & Aid. 310, 
 
 1363, 1414, 1425, 1433, 1539, 
 
 1547, 1554 
 
 . 2147 
 
 . 731, 1049 
 
 , 1535, 1539, 1547 
 
 282, 628, 1157 
 
 1004, 176 7 
 
 1606 
 
 . 523,1795 a 
 
 10, 221, 724, 1043 
 
 338, 482 
 
 71 
 
 . 2109 
 
 2052 
 
 . 2017, 2021 
 
 2017 
 
 . 1888 
 
 151 
 
 1900, 1901 
 
 333 
 
 , 1328, 1416, 1436 
 
 . 183, 323 
 
 . 523 a 
 
 382 
 
 Cow. N. Y. 56, 
 
 260, 600, 601, 791, 2109 
 
 1142 
 
 . 879 
 
 762 
 
 159 
 
 1460 
 
 . 606 
 
 1535, 1539, 1556, 1557, 
 
 1662, 1701 
 
 959 
 
 1434, 1535, 1539, 1589, 1593, 
 
 1662, 1681, 1701 
 
 968, 969, 1162 
 
 2013, 2021, 2092, 2126 
 
 903 
 
 . 285, 822 
 
 . 2094 
 
 95 
 
 . 1973 
 
 1129 
 
 . 2124
 
 XXX TABLE OF CASES. 
 
 Dixon V. Hovill, 1 Moore & P. 65G ; 4 Bingli. 6G5, . . . 1895 
 
 V. Reid, 5 Barnew. & Aid. 597 ; 1 Dowl. & R. 207, . 10G8, 1542, 1G19 
 
 V. Sadler 5 Mecs. & W. Exch. 414, . . 706, 727, 729, 733, 1049 
 
 Dobson D. Bolton, Park, Tns. 177, ...... 1758 
 
 V. Sotheby, 1 Mood. & M. 90, . . . . . 883 
 
 V. Wilson, 3 Campb. 480, . . . . 1139, 130G, 1934 
 
 Dodge V. Bartol, 5 Me. 28G, . . . . . .1282 
 
 V. Essex Ins. Co. 12 Gray, Mass., G5, . . . .950 
 
 V. Union Ins. Co. 17 Mass. 4 71, 1129,1138,1330, 1381,1388,1402,1579 
 Dodge Ins. Co. w. Rogers, 12 Wise. 337, . .... 1947 
 
 Doe v. Lea, 11 East, 312, ...... 67 
 
 V. Rosser, 3 East, 15, ...... 2105 
 
 Doe ex deal. Pitt v. Laming, 4 Campb. 7G, . . . . 636 
 
 Dole V. Equitable Ins. Co. 6 All. Mass. 373, . . . 1109, 1129 
 
 V. Merchants' Ins. Co. 51 Me. 465, .... 1106,1109 
 
 V. New England Ins. Co. 6 All. Mass. 373, . . . 1109, 1129 
 
 Domett V. Young, Carr. & M. 465, ..... 1533 
 
 Donaldson v. Thompson, 1 Campb. 429, . . . 1834, 2104, 2109 
 
 Donath v. Ins. Co. of North America, 4 Dall. 463, . . . ,393 
 
 Donellan v. Read, 3 Barnew. & Ad. 906, .... 14 
 
 Donnell v. Columbian Ins. Co. 2 Snmn. C. C. 366, . . 131, 1780, 2141 
 
 Dorothy Foster, The, 6 C. Rob. Adm. 88, ... . 1385 
 
 Dorr y. New England Ins. Co. 11 Mass. 1, .... 1147,1670 
 
 Marine Ins. Co. 4 Mass. 221, . 1602, 1622, 1662, 
 
 1684, 1868 
 
 V. Pacific Ins. Co. 7 Wheat, 581, . . 849, 851, 852, 853, 1844 
 
 w. Union Ins. Co. 8 Mass. 494, . . . 1331,1621,1669,1670 
 
 Dos Ilermanos, The, 2 Wheat. 76, ..... 166,167 
 
 Douglas V. Moody, 9 Mass. 548, . . 1337, 1374, 1379, 1392, 1403 
 
 17. Scougal, 4 Dow, Pari. Cas. 269, .... 700,726 
 
 Douville w. Sun Mar. Ins. Co. 12 La. Ann. 259, . . .439 
 
 Dow V. Hope Ins. Co. 1 Hall, N. Y. 170, . . . . . 442 
 
 y. Smith, 1 Caines,N. Y. 32, .... 709,1815,1818 
 
 V. Whetten, 1 Hall, N. Y. 174 ; 8 Wend. N. Y. 160, 119, 144, 439, 1937 
 Doyle V. Anderson, 1 Ad. & E. 635, . . . . .1989 
 
 0. Dallas, 1 Mood. & R. 48, . . . . 1*572, 1582 
 
 I'. Powell, 4 Barnew. & Ad. 267, ..... 1002 
 
 Draco, The, 2 Sumn. C. C. 157, .... 1166,1755 a 
 
 Drake r. Marryatt, 1 Barnew. & C. 4 73, .... 1875,2051 
 
 Draper v. Charter Oak Ins. Co. 2 All. Mass. 569, • . . 70, 874 a 
 
 v. Commercial Ins. Co. 21 N. Y. 378; 4 Du. N. Y. 234, . . 707 
 
 Dree Gebroeders, The, 4 C. Rob. Adm. 232, . . . *. 258 
 
 Drehcr ?;. Etna Ins. Co. 18 Mo. 128, . . . . .880 
 
 Diie Vrienden, The, 1 Dods. Adm. 269, .... 830 
 
 Driggs V. Albany Ins. Co. 10 Barb. N. Y. 440, . . . 75, 111 
 
 Drink water v. London Assurance Co. 2 Wils. 363, . . . 11 62 
 
 Driscol y. Bovill, 1 Bos. & P. 313, ..... .984 
 
 V. Passmore, 1 Bos. & P. 200, . . . 550, 924, 984, 1081 
 
 Drury v. Defontaine, 1 Taunt. 131, . . . . .215 
 
 Duchess of Kingston's Case, 20 How. St. Tr. ed. 1816, p. 355 ; Hale, Hist. Com. 
 
 Law, 31 ; 11 Hargr. St. Tr. 198, ed. 1781, . 2105, 2109 
 
 Ducket V. Williams, 2 Crompt. & M. Exch. 348 ; 4 Tyrw. Exch. 240, 649, 653, 
 
 G55, 902 
 Duerhagen v. United Ins. Co. 2 Serg. & R. Penn. 309, . . 1005 
 
 Duff V. Mackenzie, 3 C. B. n. s. 16, . . . . 1478, 1785 
 
 Duffell y. Wilson, 1 Campb. 401, ..... 173,533 
 
 Duguet V. Rhinelander, 1 Johns. Cas. N. Y. 360; 2 id. 476; 1 Caines, Cas. 
 N. Y. XXV, ..... 166,167,627,1844
 
 TABLE OF CASES. 
 
 XXXI 
 
 Dumas v. Jones, 4 Mass. 647, 
 
 V. Union Ins. Co. 12 Serjr- & R- Penn, 437, 
 Duncan v. Clianiberlayne, 11 Sim. Ch. 123, 
 
 V. Coates, 3 Yeates, IVnn. 378, 
 
 V. Koch, Wall. C. C 33, . 
 
 V. Sun F. Ins. Co. 6 Wend. N. Y. 488, 
 12 La. Ann. 486, 
 Duncanson v. McCIure, 4 Dall. 308, . 
 Dunckbaar Africaan, The, 1 C. Rob. Adm. 107, . 
 Dunham *•. Commercial Ins. Co. 11 Johns. N. Y. 315, 
 Dunlop V. Gill, 1 Barnew. & Aid. 334, 
 Depeyre r. Western Mut. Ins. Co. 2 Rob. La. 457, 
 Dupin V. Mutual Ins. Co- 5 La. Ann. 482, 
 Du[)lanty v. Commercial Ins. Co. 1 Anth. N. Y. 114, 
 Dupuy i\ United Ins. Co. 3 Johns. Cas. N. Y. 182, 
 Durand r. Thoiiron, 10 Ala. 283, 
 Durell V. Bederley, 1 Holt, N. P. 283, . 
 DuiTant V. Friend, 5 De Gex & S. Ch. 343 ; 11 Eng. 
 Dutilgh V. Gatliffe, 4 Dall. 446; 4 Cranch, 31, n., 
 Dutton V. New England Ins. Co. 29 N. H. 153, 
 Duval V. Commercial Ins. Co. 10 Johns. N. Y. 278, 
 Dwyer r. Edie, Marshall, Ins. 779 ; 2 Park, Ins. 7th 
 Dyer v. Ashton, 1 Barnew. & C. 3, 
 Dyson v. Rowcroft, 3 Bos. & P. 474, . 
 
 E. 
 
 132 
 
 L. 
 
 ed. 
 
 380, 471 
 
 1205, 1653 
 
 96 
 
 1678 
 
 1667, 1669, 1678 
 
 68, 763, 866, 867,883 
 
 385 
 
 265 
 
 797 
 
 1385,1407,1429,1431 
 
 210 
 
 2083 
 
 . 2167 
 
 433 
 
 1535, 1539, 1543 
 
 2087 
 
 607, 2112 
 
 & Eq. 2, . 104 
 
 1621, 1705, 1881 
 
 874 a 
 
 1161 
 
 639, . 354, 356 
 
 2061 
 1766 
 
 E. Carver Co. v. Manufacturers' Ins. Co. 6 Gray, Mass. 2 
 Eager r. Atlas Ins. Co. 14 Pick. Mass. 141, 
 Eagle, The, 1 Act. Prize Cas. 65, 
 Eagle Ins. Co. v. La Fayette Ins. Co. 9 Ind. 443, 
 Earle v. Harris, 1 Dougl. 357, 
 V. Rowcroft, 8 East, 126, 
 V. Shaw, 1 Johns. Cas. N. Y. 313, 
 East India Co. v. Atkins, 1 Strange, 768; Com. 348, 
 Eastman r. Carrol Ins. Co. 45 Me. 307, . 
 Eaton V. Lyon, 3 Ves. Jun. Ch. 690, 
 
 V. Smith, 20 Pick. Mass. 150, 
 Eddy V. Tennessee Ins. Co. 21 Mo. 587, 
 Eden v. Parkinson, 2 Dougl. 732, 
 
 V. Poole, 1 Term, 132, n. ; Park, Ins. 91, 
 Edes V. Hamilton Ins. Co. 3 All. Mass. 362, 
 Edgar v. Bumstead, 1 Campb. 411, . 
 
 V. Fowler, 3 East, 222, . 
 Edmands v. Mutual Ins. Co. 1 All. Mass. 311, 
 Edward, The, 4 C. Rob. Adm. 68, 
 Edwards v. Baltimore F. Ins. Co. 3 Gill, Md. 276, 1810 
 I'. Barrow, Ellis, Ins. 116, 
 i;. Footner, 1 Campb. 530, 
 V. St. Louis Perpetual Ins. Co. 7 Mo. 382, 
 Eenigheid, The, 1 C. Rob. Adm. 210, 
 Eenrom, The, 2 C. Rob. Adm. 1, 
 Egan V. Mut. Ins. Co. of Albany, 5 Den. N. Y. 326, 
 Egginton v. Lawson, 6 C. B. 414, 
 Ekins V. East India Co. 1 P. Will. Ch. 395, 
 Ela V. French, 11 N. H. 356, . 
 Fibers r. United Ins. Co. 16 Johns. N. Y. 128, 
 Eliason v. Henshaw,4 Wheat, 225, 
 
 14, . . 438 
 
 . 1434 
 
 825 
 
 1752, 1983, 2173 
 
 773 
 
 1062, 1068, 1073 
 
 , 912, 1002, 1670, 1674 
 
 2071 
 
 904 
 
 771 
 
 . 126, 143, 1943 
 
 880 
 
 . 784, 799, 915 
 
 . 463, 1328 
 
 410 
 
 . 507, 1922 
 
 507, 1908, 1929 
 
 1037 
 
 272, 284, 791 
 
 1811, 1812, 1813, 1950 
 
 646 
 
 547, 559, 667 
 
 439, 918 
 
 226 
 
 216, 223 
 
 866, 877 
 
 1538 
 
 1985 
 
 1888, 1892, 1894 
 
 157, 164, 1844, 2113 
 
 21
 
 xxxu 
 
 TABLE OP CASES. 
 
 Ellicott V. Alliance Ins. Co. 14 Gray, Mass. 318, . 
 Elliot V. AVilson, 4 Brown, Pari. Cas. 470, 
 Eliza and Katy, The, 6 C. Rob. Adm. 185, 
 Eliza, The, 1 Moore Priv. Conn. 5, . 
 Elizabeth, The, Edw. Adm. 198, . 
 Elkin V. Janson, 13 Mees. & W. Exch. G55, . 
 Ellcry V. Merchants' Ins. Co. 3 Pick. Mass. 46, . 
 V. New England Ins. Co. 8 Pick. Mass. 14, 
 
 1317, 1527, 1545 
 1006 
 819 
 1847 b 
 .841 
 2074 
 1760 
 954,975,999,1002, 1049, 
 1094, 1099, 1126 
 Ellmaker's Ex'rs v. Franklin Ins. Co. 5 Penn. St. 183, . . .493 
 
 Elsabe, The, 4 C. Rob. Adm. 408, ..... 320 
 
 Eking V. Scott, 2 Johns. N. Y. 157, . 555, 600, 746, 1817, 1997, 2066 
 
 Elton c. Brogden, 2 Strange, 1264, ..... 984,1081 
 ?'. Larkins, 8 Bingh. 198; 5 Carr. & P. 86, 385, . . 60,605,621 
 
 Elwell V. Crocker, 4 Bosw. N. Y. 22, . . . . 504, 510, 523 
 
 Ely r. Haliett, 2 Gaines, N. Y. 5 7, . 
 
 Emancipation, The, 1 W. Rob. Adm. 124, 
 
 Embden, The, 1 C. Rob. Adm. 16, 
 
 Eminence Ins. Co. v. Jesse, 1 Mete. Ky. 523, . 
 
 Emmet v. Reed, 4 Sandf. N. Y. 229, 
 
 Emulous, Cargo of the, 1 Gall. C. C. 583, 
 
 Endraught, The, 1 C. Rob. Adm. 19, 
 
 Ennis V. Harmony F. Irs. Co. 3 Bosw. N. Y. 516, 
 
 Eutwisle V. Ellis, 2 Hurlst. & N. Exch. 549, 
 
 Erasmus (?. Banks, cited 2 East, 113, . 
 
 Erick v. Johnson, 6 Mas*. 193, . 
 
 Errington v. Ayuesley, 2 Brown, Ch. 341, 
 
 Essex", The, 5 C. Rob. Adm. 369, . 
 
 Estrella, The, 4 Wheat. 298, . 
 
 Etches V. Alden, 1 Mann. & R. 157, 
 
 Etrusco, The, 3 C. Rob. 31, . 
 
 Europa, The, Edw. Adm. 342, 
 
 Evans v. Commercial Ins. Co. 6 R. I. 4 7, 
 
 V. Trimountain Ins. Co. 9 All. Mass. 329, 
 Everard v. HoUingworth, 2 Bos. & P. Ill, n., . 
 Everett v. Desborough, 5 Bingh. 503, 
 Everth v. Bell, 7 Taunt. 450 ; 1 J. B. Moore, 158, 
 
 V. Blackburne, 2 Stark, 66, 
 
 V. Hannam, 2 Marsh. 72; 6 Taunt. 375, 
 
 V. Smith, 2 Maule & S. 278, 
 
 V. Tunno, 1 Barnew. & Aid. 142, 
 Ewer V. Washington Ins. Co. 16 Pick. Mass. 502, 
 Exall V. Partridge, 8 Term, 308, 
 Exchange, The, Edw. Adm. 39, . 
 Expedite, The, 1 C. Rob. Adm. 206, . 
 Eyles V. Ellis, 4 Bingh. 112, 
 Eyre v. Glover, 16 East, 218, . 
 
 I?. Marine Ins. Co. 6 Whart.Penn. 247; 5 Watts & S. Penn. 116, 120, 123, 
 
 134, 144, 953 
 
 5 Watts & S. Penn. 116, . . .123, 144, 953 
 
 V. Palsgrave, 2 Campb. 605, . . . . . 2103 
 
 576,577 
 
 1568, 1847 b, 1940 
 
 . 169 
 
 874 a 
 
 . 528 
 
 147 
 
 . 169, 271, 790 
 
 1971 
 
 . 1773 
 
 1203 
 
 . 1882 
 
 771 
 
 278 
 
 2103 
 
 72,482, 1238, 1981, 2021, 2125 
 165 
 . 247 
 . 1460, 1785, 1943 
 . 904 
 780 
 570, 653, 893, 1055, 2026 
 2061 
 265 
 2106 
 1104, 1644 
 . 246, 2122 
 68, 1937, 2119 
 1559 
 830, 836 
 223 
 17 
 317,462, 1209, 1243, 1831 
 
 F. 
 
 FaV.yan v. Union M. F. Ins. Co. 33 N. H. 
 Fail lie v. Christie, 7 Taunt. 416, 
 
 V. Hastings, 10 Ves. Jr. Ch. 123, 
 
 203, 
 
 70, 881, 952 
 
 112 
 
 2086
 
 TABLE OF CASES 
 
 Falkner v. Ritchie, 2 Maule & S. 290, 
 Fall V. Chambers, Mosel. Ch. 193, . 
 Falls V. Conway Ins. Co. 7 All. Mass. 46, . 
 Falmouth v- Roberts, 5 Mees. & \V. Exch. 469, 
 Fanny, The, 1 Dods. Adm. 443, . 
 Fanny an<l Elmira, The, Edw. Adm. 117, 
 Faris v. Newburyport Ins. Co. 3 Mass. 4 76, 
 
 ?'. North American Ins. Co. 1 Hill, N. Y. i 
 Farmer v. Russell, 1 Bo.s. & P. 296, 
 
 V. Leg,2, 7 Term, 186, . 
 Farmers' Ins. Co. v. Marshall, 29 Vt. 23, . 
 
 V. Simmons, 30 Penn. St. 299, 
 Farmers' Ins. and Loan Co. v. Snyder, 16 Wend. N. Y. 481, 
 Farcjuharson v. Hunter, 1 Park, Ins. 105, . 
 Farrow i). Commercial Ins. Co. 18 Pick. ]Mass. 53, 
 Faudel v. Phceni.x. Ins. Co. 4 Serjj. & R. Penn. 29, 
 Fauirier i--. Hallett, 2 Johns. Cas. N. Y. 233, . 
 Favorite, The, 2 C. Rob. Adm. 232, 
 
 Fawcus V. Sarsfield, 6 Ell. & B. 192 ; 34 Eug. L. & Eq. 21 
 Fayette Ins. Co. v. Fuller, 8 All. Mass. 27, 
 Fayle t". Bourdillon, 3 Taunt. 546, 
 Feise v. Aguilar, 3 Taunt. 506, 
 
 V. Bell, 4 Taunt. 4, . , . 
 
 V. Newnham, 16 East, 197, . 
 
 V. Parkinson, 4 Taunt. 640, 
 
 V. Thompson, 1 Taunt. 121, . 
 
 V. AVaters, 2 Taunt. 248, 
 
 V. Wray. 3 East, 93, 
 Felton V. Brooks, 4 Cush. Mass. 203, . 
 Fenno v. Craig, 3 Younge & C. Ch. 216, . 
 Fenton r. Pearson, 15 East, 419, 
 Fenwick r. Bell, 1 Carr. & K. 312, 
 
 V. Robinson, Dans. & L. Cas. 8 ; 3 Carr. & P. 323, 
 Ferguson v. Caj)peau, 6 Harr. & J. Md. 394, 
 I'. Harwood, 7 Cranch, 408, 
 I'. Phoeni.x Ins. Co. 5 Binn. Penn. 544, 
 Fernandez v. Da Costa, Park, Ins. 177, 
 Ferris v. North American F. Ins. Co. 1 Hill, N. Y. 73, 
 Fiedler v. New York Ins. Co. 6 Du. N. Y. 282, 
 Field V. Citizen's Ins. Co. 11 Mo. 50, 
 
 V. Ins. Co. of North America, 3 Md. 244, 
 Fierson v. Brenham, 5 La. Ann. 540, 
 Fifield V. The Ins. Co. 4 7 Penn. St. 166, 
 Fillis V. Brutton, 1 Park, Ins. 414, 
 Finley v. Lycoming Ins. Co. 3i) Penn. St. 311, 
 Finney v. Fairhaven Ins. Co. 5 Mete. Mass. 192, 
 
 V. New Bedford Commercial Ins. Co. 8 Mete. Mass. 348, 
 
 V. Warren Ins. Co. 1 Mete. ^lass. 16, 
 Fire and Marine Ins. Co. of Wheeling v. Morrison, 11 Leigh, 
 
 Fireman's Ins. Co. v. Crandall, 33 Ala. n. s. 9, . 
 
 V. Fitzhugh, 4 B. Monr. Ky. 160, . 
 
 V. Powell, 13 B. Monr. Ky. 311, 186 
 
 Fisher V. Ogle, 1 Campb. 418, 
 
 V. "Willard, 13 Mass. 379, 
 Fisk V. Commercial Ins. Co. 18 La. 77, 
 
 
 xxxm 
 
 1071 
 
 1531 
 
 1662 
 
 . 1933 
 
 1939 
 
 1973 
 
 
 641, 
 
 874 a 
 
 114 
 
 819 
 
 1578 
 
 
 429, 439 
 
 
 
 2036 
 
 
 , 
 
 1908 
 
 
 
 210 
 
 
 
 510 
 
 
 
 882 
 
 J 
 
 72, 538, 873 
 
 
 
 140 
 
 
 
 1971 
 
 
 
 11.54 
 
 
 1816 
 
 1817 
 
 1719 
 
 727 
 
 523 a 
 
 
 24 
 
 5, 248 
 
 1183 
 
 1187 
 
 1195 
 
 
 . 24 
 
 5, 248 
 245 
 554 
 245 
 
 
 246, 248 
 
 
 
 197 
 
 
 87, 1847 a 
 
 
 
 1938 
 
 
 
 151 
 
 
 
 2112 
 
 
 
 1431 
 
 
 
 2025 
 
 
 
 2048 
 
 
 
 961 
 
 
 
 764 
 
 
 1956, 
 
 1974 
 
 . 1138, 
 
 1539, 
 
 1545 
 
 
 1126, 
 
 1703 
 
 
 724, 
 
 2152 
 383 
 
 1109 
 619 
 
 880 
 
 
 388, 
 
 1868 
 
 48, 12 
 
 2, 143 
 
 , 380, 
 
 
 389, 
 
 2174 
 588 
 
 Va. 355 
 
 ' 
 
 348, 
 2003 
 1813 
 
 
 1312, 
 
 1431 
 
 6, 1000, 
 
 1048, 
 
 1148, 
 
 
 1507, 
 
 1679 
 
 • 
 
 636. 
 
 2109 
 2053 
 1431
 
 XXXIV TABLE OF CASES. 
 
 risk y. Masterman, 8 Mees. & W. Exch. 105, . . . 1837,1838 
 
 Fiske V. New England Mar. Ins. Co. 15 Pick. Mass. 310, 54G, 577, 621, 2076, 
 
 2158 
 ritclibur2 R. K. Co. v. Charlestown Ins. Co. 7 Gray, Mass. 64, . . 489 
 
 Fitzgerald v. Anderson, 4 Hou. L. Cas. 484, .... 643, 892 
 
 V. Pole, 4 Hon. L. Cas. 484, .... 643, 892 
 
 I'"itzherbert I'. Mather, 1 Term, 1 2, . . . 529,543,549,559,564 
 
 Fitzsiumions f. City F. Ins. Co. 18 Wise. 234, . . . .1256 
 
 V. Newport Ins. Co. 4 Crancli, 185, . . . 832, 2109 
 
 Flad Oyen, The, 1 C. Rob. Adm. 135, . . . . . 2104 
 
 Flanagan v. Camden Ins. Co. 1 Dutch. N. J. 506, . . , 1, 1974 
 
 Flanigan o. Washington Ins. Co. 7 Penn. St. 307, 221, 267, 712, 1043, 2038 
 
 Fleming y. Ins. Co. 12 Penn. St. 391, . . 2079,2105,2113,2122 
 
 V. Marine Ins. Co. 3 Watts & S. Penn. 144 ; 4 Whart. Penn. 59, 2095, 
 
 2132 
 
 V. Smith, 1 Hou. L. Cas. 513, . . . 1498, 1623, 1669 
 
 Fletcher v. Commercial Ins. Co. 18 Pick. Mass. 419, . . . 640 
 
 V. Inglis, 2 Barnew. & Aid. 315, ..... 1097 
 
 V. Parry, 3 Stark. 64, ..... 2097 
 
 V. Poole, Park, Ins. 89, . . . . . . 1328 
 
 V. St. Louis Mar. Ins. Co. 18 Mo. 193, . . . 972,983 
 
 V. United States Bank, 8 Wheat. 338, . . , .11 
 
 Flindt v. Atkins, 3 Cami)b. 215, . . . . . 2090 
 
 V. Crockett, 5 Taunt. 6 74, . . . . . .248 
 
 V. Le Mesurier, Marshall, Ins. 107, 138 ; Park, Ins. 8th ed. 563, 311 
 
 V. Ohio Ins. Co. 8 Ohio, 505, ..... 24 
 
 r. Scott, 5 Taunt. 6 74, . . . '. . 248 
 
 V. Waters, 15 East, 260, . . . . .681, 2030 
 
 Flinn r. Ileadlam, 9 Barnew. & C. 693, .... 681,1949 
 
 V. Tobin, 1 Mood. & M. 36 7, . . . . . 553 
 
 Flint V. Flemyng, 1 Barnew. & Ad. 45 ; 1 Lloyd & W. Cas. 257, . 332, 471, 
 
 944 
 Flower i;. Young, 3 Campb. 240, ...... 2124 
 
 Fogg y. Middlesex Ins. Co. 10 Cush. Mass. 33 7, . . . 72,2077 
 
 Foley V. Addenbroke, 4 Ad. & E. 179, . . . . .1960 
 
 i>. Moline, 5 Taunt. 430; 1 Marsh. 117, ... 615 
 
 Folsom I'. Belknap Ins. Co. 30 N. H. 231, . . . . . 880 
 
 (J. Merchants' Ins. Co. 38 Me. 414, .... 918,1018 
 
 Fomin V. Oswell, 3 Campb. 357, ..... 1886, 1898 
 
 Fontaine o. Columbian Ins. Co. 9 Johns. N. Y. 29, . . . 1232 
 
 V. Phoenix Ins. Co. 10 Johns. N. Y. 58, . . 195, 703, 2152 
 
 11 Johns. N. Y. 293, . 1524, 1535, 1539, 1577 
 
 Forbes v. Agawam Ins. Co. 9 Cush. Mass. 4 70, . . . . 881 
 
 u. Aspin wall, 13 East, 323, . . 333,463,1196,1203,1204 
 
 V. Church, 3 Johns. Cas. N. Y. 159, . . 992, 1819, 2085 
 
 V. Cowie, 1 Campb. 520, ..... 333 
 
 V. Manufacturers' Ins. Co. 1 Gray, Mass. 371, 1203, 1348, 1545, 1611 
 
 V. The Brig Hannah, Hopk. Adm. 23, . . . 1568, 1940 
 
 V. Wilson, Park, Ins. 344, ..... 720 
 
 Forbush v. Western Ins. Co. 4 Gray, Mass. 337, . . . . 881 
 
 Forrester v. Pigou, 3 Campb. 380 ; 1 Maule & S. 9, . . . 554, 2052 
 
 Forshaw V. Chabert, 3 Brod. & B. 158 ; 6 J. B. Moore, 369, . 113, 710 
 
 Forster u. Christie, 11 East, 205, ..... 1115 
 
 Fort V. Lee, 3 Taunt. 381, . . . . 568, 585, 586, 621 
 
 Fortescue v. Barnett, 3 Mylne & K. Ch. 36, . . . . .79 
 
 Fortitude, The Ship, 3 Sumn. C. C. 228, .... 1524, 1566 
 
 Fortuna, The, 5 C. Rob. Adm. 27, . . . . . .843
 
 TABLE OF CASES. 
 
 XXXV 
 
 Fortuna, The, 1 C. Rob. Adm. 212, 
 
 3 Wheat. 245, . 
 Fosdick V. Norwich Mar. Ins. Co. 3 Day, Conn. lOi 
 Foster r. Alvez, 3 Bingh. IS. c. 896, . 
 
 V. Belknap Ins^Co. 30 N. H. 231, . 
 
 V. E((uitable Ins. Co. 2 Gray, Mass. 216, 
 
 V. Gardner, 11 Am. Jur. 21 ; Kent, Comm. 314, 3d ed., 
 
 V. Hovt, 2 Johns. Cas. N. Y. 327, 
 
 V. Mentor Ass. Co. 3 Ell. & B. 48 ; 24 Eng. L. & Eq. 
 
 V. Preston, 8 Cow. N. Y. 198, . 
 
 V. United States Ins. Co. 11 Pick. Mass. 85, 
 
 V. Wilmer, 2 Strange, 1249, . 
 Fowk V. Pensack, 2 Lev. 153, 
 Fowler V. JEtna. Ins. Co. 6 Cow. N. Y. 673 ; 7 Wend. N 
 
 V. New York Ins. Co. 23 Barb. N. Y. 143, 
 Fox V. Black, Park, Ins. 488, .... 
 Fov V. Bell 3 Taunt. 492, 
 Frances of Leith, The, 2 Dods. Adm. 420, 
 Francis, The, 8 Cranch, 335 ; 1 Gall. C. C. 445, 618, 
 
 103, 
 386, 1827 
 
 159, 
 
 Francis v. Ocean Ins. Co. G Cow. N. Y. 404, 757, 
 
 78, 
 
 913, 1060 
 205: 
 
 V. Somerville Ins. Co. 1 Dutch. N. J 
 Franklin Ins. Co. v. Coates, 14 Md. 285, . 
 V. Culver, 6 Ind. 137, 
 V. Drake, 2 B. Moiir. Ivy. 51, . 
 V. Findlev, 6 Whart. Penn. 483, 
 V. Hamiir, 6 Gill, Md. 87, 
 
 5 Md. 170, 
 V. Hewitt, 3 B. Monr. Ky. 239, 
 V. Lord, 4 Mas. C. C. 248, . 
 V. Massey, 33 Penn. St. 221, 
 V. UpdegraflT, 43 Penn. St. 350, 
 Fraternal Ins. Co. v. Applegate, 7 Ohio St. 292, . 
 Frau Margaretha, The, 6 C. Rob. Adm. 92, . 
 Frazer v. Hopkins, 2 Taunt. 5 ; 2 Campb. 170, 
 Frear v. Evertson, 20 Johns. N. Y. 142, 
 Freard v. Dawson, Marshall, Ins. 176, 
 Frederick, The, 5 C. Rob. Adm. 8, . 
 Frederick Molke, The, 1 C. Rob. Adm. 86, 
 Freeden, The. 1 C. Rob. Adm. 213, . 
 Freeland v. Glover, 7 j:ast, 457 ; 6 Esp. 14 ; 3 Smith, 424 
 
 V. Walker, 4 Taunt. 4 78, . 
 Freeman v. Baker, 5 Carr. & P. 4 75, 
 
 V. East India Co. 5 Barnew. & Ad. 617, 
 r. Taylor, 8 Bingh. 124, 
 French v. Backhouse, 5 Burr. 2727, 
 r. Connelly, 2 Anstr. 454, . 
 V. Hope Ins. Co. 16 Pick. Mass. 397, 
 IK La Fayette Ins. Co. 5 McLean, C. C. 461, 
 V. Reed, 6 Binn. Penn. 308, . 
 Friedlander i'. London Ass. Co. 4 Barnew. & Ad. 193, 
 Fricndschaft, The, (Winn, Claimant,) 3 Wheat. 14, 
 
 (Moreira, Claimant,) 4 Wheat. 105, 
 Friendship, The, 6 C. Kob. Adm. 420, 
 Friere v. Woodhouse, 1 Holt, N. P. 5 72 
 Frierson v. Brenham, 5 La. Ann. 540, 
 
 226, 227 
 
 810 
 
 318,1474 
 
 1989 
 
 882 
 
 81 
 
 1027 
 
 . 213, 1923 
 
 1948 
 
 1901 
 
 1828, 1852 
 
 1001 
 
 507 
 
 270, 866, 873, 2119 
 
 2018, 2020, 2123 
 
 1000 
 
 513 
 
 1568, 2124 
 
 71, 260, 261, 263, 
 
 794, 797, 1755 a 
 
 1154, 1803, 2052, 
 
 , 2103, 2104, 2109 
 
 . 1036, 1818 
 
 292, 1813, 1949 
 
 888 
 
 1, 350, 488, 881 
 
 193 
 
 886, 1953, 2174 
 
 1983 
 
 16, 1937 
 
 858 
 
 74, 1880 
 
 131 
 
 . 2059 
 
 272 
 
 . 2124 
 
 81, 2044, 2060 
 
 . 2061 
 
 169 
 
 . 826, 827, 830 
 
 227 
 
 559, 576, 659, 665 
 
 246 
 
 . 2100 
 
 1625 
 
 690 
 
 1852, 1854, 2052 
 
 . 1938 
 
 316 
 
 . 1 983 
 
 1863, 1888 
 
 . 2056 
 
 161, 165 
 
 240 
 
 825 
 
 604, 605 
 
 177
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Friesmuth v. Asawam Ins. Co. 10 Cusli. Mass. 587, 
 
 Frisbie v. Fayette Ins. Co. 27 Penn St. 325, . 
 
 Fritchette v. State Ins. Co. 3 Bosw. N. Y. 190, . 
 
 Frith V. Barker, 2 Johns. N. Y. 327, . 
 
 Frost V. Saratoga Mut. F. Ins. Co. 5 Den. N. Y. 154, 
 
 Frothingham v. Prince, 3 Mass. 563, . 
 
 Fullam V. New York Union Ins. Co. 7 Gra}', Mass. Gl 
 
 Fuller V. Alexander, 1 Brev. So. C. 149, 
 
 V. Boston Mut. F. Ins. Co. 4 Mete. Mass. 206, 
 
 V. Kennebec Mut. Ins. Co. 31 Me. 325, 
 
 V. McCall, 1 Yeates, Penn. 464, 
 
 V. Wheelock, 10 Pick. Mass. 135, 
 Fulton Ins. Co. v. Goodman, 32 Ala. N. s. 108, 
 Fulton r. Lancaster Ins. Co. 7 Ohio, Part II. p. 5, 
 Furneaux v. Bradley, Marshall, Ins. 584 ; Park, Ins. 
 Furnell o. Thomas, 5 Bingh. 188, 
 Furnis v. Gilchrist, 1 Sandf. IST. Y. 53, 
 Furtado v. Rodgers, 3 Bos. & P. 191, . 
 
 57, 
 
 679, 874 a, 1845 
 
 539 
 
 . 1087 
 
 6 7 
 
 872 a, 904 
 
 1719, 1721 
 
 . 1983 
 
 1947, 1953 
 
 . 1214 
 
 1524, 1801 
 
 . 1679 
 
 2053 
 
 72, 1516, 1539, 1557 
 
 1049 
 
 1129, 1148, 1555 
 
 2155 
 
 510, 523 
 
 149 
 
 G. 
 
 Gabay v. Lloyd, 5 Dowl. & R. 641 ; 3 Barnew. & C. 793, 
 Gage V. Bulkeley, Ridgew. App. Ir. 266, . 
 Gahn V. Broome, 1 Johns. Cas. IS". Y. 120, . 
 Gairdner v. Senhouse, 3 Taunt. 16, 
 Gale V. Laurie, 7 Dowl. & R. 711, 
 
 V. Mackill, Marshall, Ins. 659 ; Park, Ins. 589, 
 Gales V. Belknap Ins. Co. 41 N. H. 170, 
 Gall V. Comber, 7 Taunt. 558, . , 
 
 Gallini v. Laborie, 5 Term, 242, 
 Galloway v. Morris, 3 Yeates, Penn. 445, 
 Gamba v. Le Mesurier, 4 East, 407, . 
 Gammon v. Beverly, 1 J. B. Moore, 563 ; 8 Taunt. 119, 
 Gam well v. Merchants' Ins. Co. 12 Cush. Mass. 16 7, . 
 Gardere v. Columbian Ins. Co. 7 Johns. N. Y. 514, 
 Gardiner r. Collins, 2 Pet. 89, ... 
 
 V. Croesdale, 1 W. Blackst. 198; 2 Burr. 904, 
 tj. Lachlan, 4 Mylne & C. Ch. 129, . 
 V. Piscataquis Ins. Co. 38 Me. 439, 
 r. Salvador, 1 Mood. & R. 118, 
 V. Smith, 1 Johns. Cas. N. Y. 141, 
 Gardner v. Columbian Ins. Co. of Alexandria, 2 Cranch, Dist. 
 
 V. Ship New Jersey, 1 Pet. Adm. 223, 
 
 r. Columbian Ins. Co 2 Cranch, C. C 550, 
 Garrell v. Hanna, 5 Harr. & J. Md. 412, 
 Garrells v. Kensington, 8 Term, 230, 
 Garrett v. Barclay, 5 Mann. & G. 643, n., 
 Garrigues r. Coxe, 1 Binn. Penn, 592, 
 Gates V. Madison County Mut. Ins. Co. 2 N. Y. 
 
 73 
 
 Gaty V. Phoenix Ins. Co. 30 Mo. 56, 
 
 Gazzam v. Ohio Ins. Co. AVright, Ohio, 202, . . . . 
 
 V. Cincinnati Ins. Co. 6 Ohio, 73, ... 
 
 Geach v. Iniiall, 14 Mees. & W. Exch. 95, . 
 
 Gelston V. Iloyt, 13 Johns. N. Y. 141, 561 ; 15 id. 221 ; 3 Wheat. 246 
 General Hamilton, The, 6 C. Rob. Adra. 61, . 
 
 140, 141, 1145, 1162 
 
 . 2106 
 
 1229, 1235 
 
 1012, 1014 
 
 2006 
 
 . 1834 
 
 881 
 
 . 1853 
 
 215 
 
 212 
 
 . 149, 915 
 
 1815, 2011, 2021 
 
 1038, 1950 
 
 845, 1057, 1733, 2050 
 
 2106 
 
 . 2023 
 
 95 
 
 904 
 
 1579, 1625 
 
 268, 972, 1608, 1732, 1735 
 
 Ct. 473, . 928 
 
 289 
 
 1183, 1671 
 
 1967 
 
 799, 818, 822, 2109 
 
 895 
 
 699, 932, 1100 
 
 43 ; 5 id. 469 ; 3 Barb. N. Y. 
 
 638, 866 a, 872 a, 904, 1096 
 
 . 864 
 
 982, 987 
 . 1429 
 648, 899 
 195, 224 
 830
 
 TABLE OF CASES. XXXVll 
 
 General Int. Ins. Co. r. Ruggles, 12 Wheat. 408, . . . .549, .564 
 
 General Mut. Ins. Co. v. Sherwood, 14 How. 352, . 1096, 1137 a, 1416 
 
 Gentleman, The, Ok. Adm. 110, ...... 711 
 
 George v. Claggett, 7 Term, 359, ..... 1916 
 
 Georgia Ins. and Trust Co. v. Dawson, 2 Gill. Md. 365, . . . 1049 
 
 Gernoii v. Royal Exch. Ass. Co. Holt, 49 ; 6 Taunt. 383 ; 2 Marsh. 88, 1606, 
 
 1669, 1673, 1767 
 Gever v. Aguilar, 7 Term, 681, . . . . . . 2109 
 
 Gibson r. \iair, 1 Marsh. 39, . . . . . . 269, 2109 
 
 V. Philadelphia Ins. Co. 1 Binn. Penn. 405, 1169, 1233, 1249, 14.S4 a 
 
 V. Service, 15 Taunt. 433 ; 1 Marsh. 119, . . . 210, 267 
 
 V. Small, 16 Ad. & E. 128, 141 ; 4 Hou. L. Cas. 353 ; 3 Eng. L. & Eq. 
 
 290, 299 ; 24 id. 16, .... 720', 727, 2032 
 
 V. Winter, 5 Barnew. & Ad. 96, . . 413, 2060, 2160, 2169 
 
 Gilbert v. North American F. Ins. Co. 23 Wend. N. Y. 43, . .1805 
 
 V. Phoenix Ins. Co 36 Barb. N. Y. 372, . . . 881, 1876 
 
 V. Redshaw, Marshall, Ins. 208 ; Park, Ins. 30, . . . 999 
 
 Giles V. Cynthia, 2 Pet. Adm. 208, ..... 1719 
 
 r. Eagle Ins. Co. 2 Mete. Mass. 140, . 1290, 1329, 1340, 1424, 1429 
 
 Gilfert v. Hallett, 2 Johns. Cas. N. Y. 296, . . . 1002, 1608 
 
 Gill y. Dunlop, 7 Taunt. 193, ..... 217,230 
 
 t'. Hinckley, 1 J. B, Moore, 79, . , . . . . 1989 
 
 Gillespie v. Moore, 2 Johns. Ch. N Y. 593, . . . .1936 
 
 Girard Ins. Co. v. Stephenson, 37 Penn. St. 293, . 636, 882, 1033, 1950 
 
 Gist V. Mason, 1 Term, 84, ..... 148, 223 
 
 Gladstone v. Clay, 1 Maule & S. 418, . . . . 940 
 
 V. King, 1 JNIaule & S. 35, .... 54.'), 564 
 
 Glaser v. Cowie, 1 Maule & S. 52, .... 915, 1886, 1894 
 
 Glass r. Sloop Betsey, 3 Dall. 16, . . . . . . 200 
 
 Glen V. Lewis, 8 Exch. 607 ; 20 Eng. L. & Eq. 364, ... 883 
 
 Glendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19, 527, 638, 639, 642, 
 
 883, 2116 
 Glennie r. Edmunds, 4 Taunt. 775, . . . . . 903, 2044 
 
 V. London Ass. Co. 2 Maule & S. 371, . . . 1766, 1767 
 
 Glidden v. Manufacturers' Ins. Co. 1 Sumn. C. C. 232, . . 1040 
 
 Gloire, La, 5 C. Rob. Adm. 192, . . . . . .254 
 
 Gloucester Ins. Co. v. Younger, 2 Curt. C. C 322, . . 1693, 1940 
 
 Gloucester Manufacturing Co. v. Howard Ins. Co. 5 Gray, Mass. 497, 872, 
 
 1877 a 
 Glover V. Black, 1 W. Blackst. 422 ; 3 Burr. 1394, . . 300, 427 
 
 Glynn v. Locke, 3 Drur. & Warr. Ch. Ir. 11, . . . . 354, 1978 
 
 Goddart i;. Garrett, 2 Vern. Ch. 269, . . . . .211 
 
 Godin V. London Ass. Co. 1 Burr. 489 ; Keny. 244 ; 1 W. Blackst. 103, 87, 
 
 311, 361, 373, 1251, 1838, 1915 
 Godsall V. Boldero, 9 Ea.st, 72, .... 1515, 1729 
 
 Goede Hoop, The, Edw. Adm. 327, .... 246, 248 
 
 Goicoechea v. Louisiana State Ins. Co. 6 Mart. x. s. La. 51, . . 1154 
 
 Goit V. National Protection Ins. Co. 25 Barb. N. Y. 189, . . 108, 516 
 
 Goix V. Knox, 1 Johns. Cas. N. Y. 337, . . . 911, 1126, 2142 
 
 v. Low, 1 Johns. Cas. N. Y. 341, . . 120, 757, 802, 1048, 2109 
 
 Goldschmidt v. Lyon, 4 Taunt. 534, ..... 1924 
 
 V. Whitmore, 3 Taunt. 508, . . . 1068, 1074, 2140 
 
 Goldsmidt v. Gillies, 4 Taunt. 803, .... 1203,1456,1713 
 
 Goldstone i'. Osborn, 2 Carr. & P. 550, . . . 865, 890, 1941 
 
 Good ('. Eliot, 5 Term, 693, . . . . . , 211 
 
 Goodall ('. New England Ins. Co. 25 N. H. 169, . . . 881,1965 
 
 Goodson V. Brook, 4 Canipb. 163, . . . . . 1874 
 
 VOL. I. d
 
 XXXVlll TABLE OF CASES. 
 
 Gookin v. New England Ins. Co. 12 Gray, Mass. 501, . , . 953 
 
 Goold V. Slia'v, 1 .Johns. Cas. N. Y. 293*; 2 id. 442, . . . 1134 
 
 r. United Ins. Co. 2 Caines, N. Y. 73, . . . 788, 798 
 
 Gordon v. American Ins. Co. 4 Den. N. Y. 360, . . .341, 944 
 
 V. Howne, 2 Johns. N. Y. 150, . . . 1099, 1496, 2022 
 
 V. Cliurch, 2 Caines, N. Y. 299, .... 413 
 
 V. Mass. F. & Mar. Ins. Co. 2 Pick. Mass. 249, 287, 399, 1497, 1505, 
 
 1516, 1569, 1574, 1577, 1589, 1623, 2116, 2123 
 
 V. Morlay, 2 Strange, 1265, . . . . .780 
 
 i;. Rininiington, 1 Campb. 123, . . . 1095,1097,1115 
 
 ?;. Vaughan, 12 Ea!<t, 302, n., .... 232.247 
 
 Goram v. Sweeting, 2 Saund. 200, 379, . . . 2011, 2023, 2028 
 
 Goss V. Withers, 2 Burr. 683, . . . 1492, 1531, 1532, 1621 
 
 Gottlieb I'. Cranch. 17 Jur. 686, . . . . . 97 
 
 Gould V. Citizen's Ins. Co. 13 Mo. 524, ..... 1707 
 
 V. Gould, 4 K H. 173, ..... 68 
 
 V. Oliver, 4 Bingh. n. c. 134 ; 5 Scott, 445 ; 2 Mann. & G. 208, 137, 
 
 460, 1282 
 r. York Ins. Co. 47 Me. 403, .... 416,642,874 a 
 
 Gourdon i. Ins. Co of North America, 1 Binn. Penn. 430, n. ; 3 Yeates, Penn. 
 327, . ....... 77, 82 
 
 Gourlay ('. Duke of Somerset, 19 Ves. Ch. 429, ... 865 
 
 Gove r. Deblois, 1 Term, 112, . . . . . . 1853 
 
 Gouverneur v. L'nited Jns. Co. 1 Caines, N. Y. 592, . . . 1023 
 
 Gojon V. Pleasants. 3 Wash. C. C. 241, ..... 1022 
 
 GraiitFBernstotf, The, 3 C. Rob. Adm. 109, .... 285 
 
 Gracie v. Bowne, 2 Caines, N. Y. 30, . . . . . 1199 
 
 V. Marine Ins. Co. 8 Cranch, 75, . . . . 144, 971 
 
 r. Maryland Ins. Co. 8 Cranch, 84, . . . 1773,1774 
 
 V. New York Ins. Co. 8 Johns. N. Y. 237, . 1493, 1494, 1507, 1675, 
 
 1723, 1724 
 
 V. New York Ins. Co. 13 Johns. N. Y. 161, . . . 1154 
 
 Graham r. Barras, 3 Nev. & M. 1 25, ..... 772 
 
 V. Commercial Ins. Co. 11 Johns. N. Y. 352, . . . 1023 
 
 V. Pennsylvania Ins. Co. 2 Wash. C. C. 113, . 1154, 1158, 2127 
 
 V. Russell, 5 Maule & S. 498 ; 2 Marsh. 561 ; 3 Price, Exch. 227, 903, 
 
 2044 
 Gransrer r. Howard Ins. Co. 5 Wend. N. Y. 200, . . . 2015, 2019 
 
 Gran Para, The, 7 Wheat. 471 ; 6 id. 16, n., . . . . 194 
 
 Grant v. Dalacour, 1 Taunt. 466, 474, . . . . 130, 140 
 
 w. Howard Ins. Co. 5 Hill, N. Y. 10, . . 882,975,1036,1950 
 
 u. King, 4 Esp. 175, .... 935,1002,1950 
 
 V. Lexington Ins. Co. 5 Ind. 23, 131, 766, 1002, 1151, 1163, 1983 
 
 V. Parkinson, Park, Ins. 97, 107, 133, 279 ; 1 Marshall, Ins. 97 ; 3 Bos. & 
 
 P. 85, n. ; 6 Term, 483, n., . . . .7, 317, 2127 
 
 V. Paxton, 1 Taunt 463, .... 140, 447, 942 
 
 V. Royal E.xch. Ass. Co. 5 Maule & S. 439, . . . 2044 
 
 Gratitudine, The, 3 C. Rob. Adm. 240, . . 1357, 1360, 1623, 1625 
 
 Graves v. Boston Mar. Ins. Co. 2 Cranch, 419, 120, 380, 391, 417, 1937, 2021 
 
 V. Marine Ins. Co. 2 Caines, N. Y. 339, 117, 939, 1819, 1844, 1937 
 
 Gray «. Muirav, 3 Johns. Ch. N. Y. 67, ..... 1881 
 
 V. Sims, 3 Wash. C C. 276, . . . 210, 519, 906, 909 
 
 u. Thorndike, Mass. 1817, MS., ..... 1030 
 
 v. Walm, 2 Serg. & R. Penn. 229, . 1313,1318,1369,1379,1383 
 
 V. Wilson, 4 Watts, Penn. 39, .... . 865 
 
 Great Indian R. Co. v. Saunders, 1 Best & S. 41, . . . 1767 
 
 Great Western Ins. Co. v. Staaden, 26 111. 360, . . . ,1813
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Greely v. Tremont Ins. Co. 9 Cush. Mass. 415, 
 Green v. Brown, 2 Strange, 1199, . 
 
 r. Elmslie, Peake, 212, 
 
 V. Farmer, 4 Burr. 2214, 
 
 V. Merchants' Ins Co. 10 Pick. Mass. 402, 
 
 V. Itoyal Exch. Ass. Co. 1 Marsh. 44 7 ; 6 Taunt. 68, 
 
 w. Young, 2 Salk. 444 ; 2 Ld. Ravm. 840, . 
 Greene v. Pacific Mut. Ins. Co. 9 All. Alass. 217, 
 Greery v. Holley, 14 Wend. N. Y. 35, . 
 
 Gregory v. Christie, 3 Uougl. 419, 
 
 Gregson v. Gilbert, Dougl 232, .... 
 Grieve o. Young, Millar, Ins. 65, 
 
 Griffith V. Ins. Co. of North America, 5 Binn. Penn. 464, 
 Griffiths 0. Y^jung, 12 East, 513, 
 Grigg V. Scott, 4 Campb. 339; Holt, 129, . 
 Griggs V. Austin, 3 Pick. M:iss. 20, 
 Grim V. PiitEni.K Ins. Co. 13 Johns. X. Y''. 451, 
 Griswold V. National Ins. Co 3 Cow. X. Y. 96, 
 
 V. New York Ins. Co. 1 Johns. N. Y. 205; 3 id. 321, 
 
 . 1274, 1545, 1571 
 
 1099,1196,2139 
 
 1025, 1136, 2022, 2140 
 
 . 1912 
 
 561, 604, 606, 610, 612, 2100 
 
 1500, 1569, 1583, 
 
 1644, 1725 
 
 1109, nil 
 
 1109, 1537 
 
 . 985 
 
 140, 427, 1005 
 
 1051, 2022 
 
 561 
 
 . 808 
 
 14 
 
 151, 245 
 
 340 
 
 1049, 1061, 1096 
 
 849, 854, 2035 
 
 13>^6, 1416, 
 
 733 
 
 1451, 1633, 1634, 1641, 1692, 2003 
 V. Wad<lington. 15 Johns. N. Y''. 57 ; 16 id. 438, . 147, 150, 228 
 
 Groning v. Crockett. 3 Campb. 83, ..... 246 
 
 Grosvenor y. Atlantic F. Ins. Co. 17 N. Y". 391, . , . 81,82,880 
 
 Groussett o. Sea Ins. Co 24 Wend. N. Y. 219, . . . 955 
 
 Grove V. Dubois, 1 Term, 112, . . . . . 507, 2044 
 
 Guerlain i;. Columbian Ins. Co. 7 Johns. N. Y. 527, . . 68,1660,1773 
 
 Guibert v. Readshaw, Park, Ins. 454, ..... 1000 
 
 Gute Erwartung, The, 6 C. Rob. Adin. 182, . . . 830 
 
 Gute Gesellschaft Michael, The, 4 C. Rob. Adm. 94, . . . 271 
 
 H. 
 
 Haabet, The, 2 C. Rob. Adm. 174, 
 Hacker v. Young, 6 N H. 95, 
 Hackett V. Martin, 8 Me. 77, 
 Haddow f. Parry, 3 Taunt. 303, 
 Hadkinson v. Robinson, 3 Bos. & P. 388, . 
 Huff' V. Marine Ins. Co. 8 Johns. N. Y. 163 
 Hagedorn v. Bazett, 2 Maule & S. 100, 
 
 I'. Bell, 1 Maule & S. 450, . 
 
 V. Oliverson, 2 Maule & S. 485, . 
 
 V. Reid. 5 Canipb. 3 77 ; 1 Maule & S. 567, 
 
 V. Whitmore, 1 Stark. 157, 
 Haggart v. Morgan, 4 Sandf. N. Y. 198; 5 N. Y^ 422, 
 Halm 0. Corbett, 2 Bingh. 205 ; 9 J. B. Moore, 390, 
 Haigh V. De la Cour, 3 Campb. 319, 
 Haines c. Busk, 5 Taunt. 521, 
 Hale V. Mechanics' Ins. Co. 6 Gray, Mass. 169, 
 V. Mercantile Ins. Co. 6 Pick Mass. 172, 
 V. Union Ins. Co. 32 N. II. 295, . 
 V. Washington Ins. Co. 2 Stor. C. C. 1 76, 
 Haley v. Dorchester Ins. Co. 12 Gray, Mass. 545, 
 
 1 All. Mass. 536, 
 Halford v. Kymer, 10 Barnew. & C. 724. 
 
 4 id. 132; Anth. 14, 
 
 Halhead v. Young, 6 Ell. & B. 312 ; 36 Eng. L. & Eq. 109, 
 
 272 
 
 2124 
 
 81, 410, 2044, 2055, 2060, 2170 
 
 2126 
 
 . 1115 
 
 849, 1802 
 
 234, 245 
 
 . 163, 238 
 
 388, 389, 1965 
 
 151, 247, 248, 2098 
 
 . 2022 
 
 865 
 
 , . 1136, 1137, 1162 
 
 1182, 1816 
 
 217 
 
 84, 881 
 
 . 1010 
 
 904 
 
 1137, 1416, 1419, 1436, 1940 
 
 635, 883, 1256 
 
 . 881, 1263 a 
 
 3=>6 
 
 . 944
 
 xl 
 
 TABLE OF CASES. 
 
 Hall V. Brown, 2 Dow, Pari. Cas. 36 7, . . . . . 332, 937 
 
 V. Cazanove, 4 East, 477, . . . . . 29, 128 
 
 V. Franklin Ins. Co. 9 Pick. Mass. 466, . . 1020, 1548, 1571, 1580 
 
 t;. Janson, 4 Ell. & B. 500; -29 Enjr. L. & Eq. Ill, . . .133 
 
 V. Rlolineux, cited 6 East, 385, ..... 430 
 
 V. Ocean Ins. Co. 21 Pick. Mass. 472, 465, 1105, 1429, 1539, 1553, 2112, 
 
 2152 
 
 r. People's Ins. Co. 6 Gray, Mass. 185, . . 673, 872 a, 1038, 1932 
 
 Hallet V. Columbian Ins. Co. 8 Johns. N. Y. 272, .... 1083 
 
 V. Peyton, 1 Caines, Cas. N. Y. 28, . . . . 1662 
 
 V. Plicenix Ins Co. 3 Wash. C. C. 279, . . . . 2147 
 
 Hallett V. Dowdall, 18 Ad. & E. 2 ; 9 Eng. L. & Eq. 347, 1475 a, 1741 a, 
 
 1795 a, 1939, 1957, 2174 
 V. Jenks, 3 Cranch, 210, . 
 Halliday v. Martinett, 20 Johns. N. Y. 168, 
 Hallock V. Commercial Ins. Co. 2 Dutch. N. J. 268, 
 Hambro' v. Hull Ins. Co. 3 Hurlst. & N. Exch. 789, . 
 Hamilton v. Baldwin, 15 Beav. Rolls, 232 ; 19 En<r. L 
 J'. Lycoming Mut. Ins. Co. 5 Penn. St. 339, 
 V. Mendez, 2 Burr. 1198 ; 1 W. Blackst. 276 
 V. Shedden, 3 Mees. & W. Exch. 49, 
 Hammond v. Reid, 4 Barnew. & Aid. 72, . 
 Hanniionds v. Barclay, 2 East, 277, 
 Hampton v. Brig Thaddeus, 4 Mart N. s. La. 582, 
 Hancox v. Fishing Ins. Co. 3 Sunin. C. C. 132, 
 Hand v. Baynes, 4 Whart Penn. 204, 
 Harding v. Carter, Mai'shali, Ins. 303 ; Park, Ins 
 Hardy v. Lines, 6 J. B. Moore, 574, 
 
 V. Union Ins. Co. 4 All. Mass. 217, 
 Hare, The, 1 Act. Prize Cas. 252, . 
 Hare v. Groves, 3 Anstr. 687, . 
 
 V. Travis, 7 Barnew. & C. 14, 
 Harley v. Milward, 1 Jones & C. Exch. Ir. 224, 
 Harman v. Kingston 3 Campb. 150, 
 
 V. Vanhatton, 2 Vern. Ch. 717, 
 V. Vaux, 3 Campb. 429, 
 Harmony, The,' 2 C. Rob. Adm. 322, . 
 Harper v. Albany Ins. Co. 1 7 N. Y. 1 94, . 
 V. City Ins. Co. 1 Bosw. N. Y. 520, 
 V. New York Ins Co. 2-1 N. Y". 441, 
 Harper's Adm'r v. Phoenix Ins. Co. 19 Mo. 506, 
 Harratt v. Wise, 9 Barnew. & C. 712, 
 Harrington v. Wheeler, 4-Ves. Ch. 6S6, 
 
 V. Halkeld, Park, Ins. 8tli ed. 639, 
 Harris v. Columbiana Ins. Co. 4 Ohio St. 285, . 
 V. Eagle Fire Ins. Co. 5 Johns. N. Y. 368, 
 r. Nichols, 5 Munf. Va. 483, 
 V. Ohio Ins. Co. 5 Ohio, 461, 
 t'. Reynolds, 7 Q. B. 71, 
 V. AVatson, Peake, 72, 
 V. York Ins. Co. 50 Penn. St. 341, 
 Harrison v. City F. Ins. Co. 9 All. Mass. 231, 
 
 V. Douglas. 3 Ad. & E. 396 ; 5 Nev. & M 
 V. Ellis, 7 Ell. & B. 465, . 
 V. M"Conkey, 1 Md. Ch. Dec. 34, 
 Hart V. Achilles, 28 Barb. N. Y. 5 76, 
 
 V. Delaware Ins. Co. 2 Wash. C C 346, . 
 
 936, 
 
 229 
 
 2098 
 
 . 24, 505, 925 
 
 11, 510 
 
 & Eq. 283, . 104 
 
 . 14, 16, 17 
 
 , 1183,1531,1621,1704 
 
 1002 
 
 1007 
 
 1915 
 
 1282 
 
 182 
 
 983 
 
 1892, 1904, 1992, 2071 
 
 1457, 1817 
 
 872 a, 881 
 
 830 
 
 402 
 
 937, 1001, 1149, 1951 
 
 1 222 
 
 438, 1193, 2030, 2113 
 
 . 300, 988 
 
 1758 
 
 180, 
 
 153 
 
 155, 156, 157 
 
 . 883 
 
 883 
 
 . 883 
 
 891 
 
 . 1051 
 
 771 
 
 981, 1010 
 
 673 
 
 68, 1180 
 
 132 
 
 . 881 
 
 865 
 
 . 1304 
 
 350, 1162 a 
 
 . 1876 
 
 . 761, 2061 
 
 443 
 
 . 79, 1939 
 
 510, 523 a 
 
 334, 471, 1557
 
 TABLE OP CASES. xli 
 
 Hart V. Western Railroad Corporation, 13 Mete. Mass. 99, . .1711 
 
 Hartford r. Jones, 1 Ld. Rayua. .343, . . . . . 1717 
 
 r. Maynard, Park, Ins. 33, . . . . .1106 
 
 Hartford Ins. Co. v. Harnier, 2 Ohio St. 452, 527, 587, 871, 1813, 1876, 1949 
 V. Ross, 23 Ind. 179, . . . . .880 
 
 Hartley v. Busgin, 3 Dougl. 39, .... 979, 983, 1002 
 
 Hartnian v. Keystone Ins. Co. 21 Penn. St. 466, . . . 651, 895 
 
 Hartsliorne v. Union Ins. Co. 5 Bosw. N. Y. 538, . . . 18' 7 a 
 
 Harvey r. Turner, 4 Rawlc, Penn. 223, .... 1900,1901 
 
 Haskins v. Hamilton Ins. Co. 5 Gray, Mass. 432, . . 1482, 1983 
 
 Hassam c. St. Louis Perpetual Ins. Co. 7 La. Ann. 11, . . .1319 
 
 Hastie v. Depeyster, 3 Caines, N. Y. 190, . . . 1129, 1506, 2145 
 
 Hatch y. Dennis, 10 Me. 244, . . . . . .81 
 
 V. Smith. 5 Mass. 53, . . . • . . . 265 
 
 V. Taylor, 10 N. H. 538, . . . . . .1880 
 
 Hathaway t'. Trenton Ins Co. 11 Cush. Mass. 448, . . . 895 a 
 
 Haughlon v. Ewbnnk, 4 Campb. 88, . . . 1872, 2017, 2114 
 
 Havelock r. Hanei'l, 3 Term, 277, .... .770,1075 
 
 w. Roekwood, 8 Term, 268, ..... 1336 
 
 Haven r. Grav, 12 Mass. 71, ..... 441,1182,1198 
 
 r. Holland, 2 Mas. C. C. 230, ..... 1029 
 
 Haverhill Ins. Co. i\ Prescott, 42 N. H. 547, . . . . 510 
 
 Hawkes y Dodge Ins. Co. 11 Wise 188, . . . . .874 a 
 
 Hawkins v. Woodgate, 8 Jur. 743, ..... 97 
 
 Haxall's Ex'rs v. Shippen, 10 Leigh, Va. 437, . . 104, 349, 1978 
 
 Hay V. Le Neve. 2 Shaw, Hou. L. Sc, 395 ; 3 Hagg. Adm. 328, n. ; Abbott, 
 
 Shipp. 7th ed. 230, n., . . . . . . . 1420 
 
 Hayman v. Moulton, 5 Esp. 65, . . . . 1574, 1583 
 
 Haynes o. Rowe, 40 Me. 181, . . . . . . 383 
 
 Hay ward y. Blake, 12 Mass. 176, ..... 253 
 
 V. New Engluid Ins. Co. 10 Cush. Mass. 444, . . . 641 
 
 Haywood r. Rogers, 4 East, 590, ..... 601 
 
 Hazard v. Franklin Ins. Co. 7 R. L 429, .... 880, 904 
 
 V. New England Mar. Ins Co. 8 Pet. 557; 1 Sumn. C. C. 218, 548, 
 
 566, 731, 1101 
 Head t'. Diggon, 3 Mann. & R. 97, . . . . . .17 
 
 V. Providence Ins. Co. 2 Cranch, 167, .... 11, 109 
 
 Headley v. Clark, 8 Term, 259, ...... 16.iO 
 
 Hearne v. Edmunds, 1 Brod. & B. 388, .... 1 768 
 
 Heath c. Franklin Ins. Co. 1 Cush. Mass. 257, . . 486, 487, 1812, 1813 
 
 Heaton v. Manhattan Ins. Co. 7 U. I. 502, .... 880 
 
 Heokemath v. American Mut. Ins. Co. 1 Barb. N. Y. 363, . 404, 1751 
 
 Hedberg t>. Pear-son, 1 Holt, 349 ; 7« Taunt. 154, . . 1767,1773 
 
 Helena, The, 4 C. Rob. Adm. 3, . . . . . . 2104 
 
 Henmienway v. Bradford, 14 Mass. 121, .... 1847 
 
 V. Eaton, 13 Mass. 108, . . . . 67, 1179 
 
 Henchman v. Offley, 8 Term, 15, n.; 3 Doug. 135 ; 2 H. Blackst. 345, n., 438 
 Henderson v. Hinde, 1 Taunt. 250, ..... 210, 1049 
 
 V. Maid of Orleans, 12 La. Ann. 352, . . . 1460 
 
 Hendricks f. Commercial Ins. Co. 8 Johns. N. Y. 1, . . 771, 1820 
 
 Heiikle v. Royal Exch. Ass. Co. 1 Ves. Sen. Ch. 317, 117, 147, 994, 1844, 1937 
 Hennel «;. Perry, 5 Term, 117, ...... 195 
 
 Hennes.sy, In re, 2 Drur. & Warn Ch. Ir. 555, . . 95, 96, 1978 
 
 Henrick'and Maria, The, 1 C. Rob. Adm. 146, . . 826, 828, 829, 834 
 
 Henrickson v. Margrt-on, 2 East, 549, n., . . . . 317 
 
 Henricus, The, 3 C. Kob. Adm. 159, n., . . . . . 842 
 
 Henrietta, The, 1 Dods. Adm. 168, . . . . . 247 
 
 d'
 
 xlU 
 
 TABLE OF CASES. 
 
 Henry v. Adey, 3 East, 221 ; 4 Esp. 228, . 
 
 V. Risk, 1 Ball. 265, .... 
 
 V. Stanitbrth, 4 Campb. 270, 
 Henry Ewbank, The Ship, 1 Sumn. C. C. 400, 
 Henshaw v. Marine Ins. Co. 2 C^iines, N. Y. 274, . 
 
 V. Mutual Safety Ins. Co. 2 Blatchf. C. C. 99, 
 V. IMeasanee, 1 W. Blackst. 1174, 
 Hentig V. Stanifortli, 5 Maule & S. 122, 
 Herbert v. Champion, 1 Campb. 134, 276, n., 
 
 V. Hallett, 3 Johns. Cas. N. Y. 93, . 1446, 
 Herkimer ". Riee, 27 N. Y. 163, . 
 Herman, The Ship, 4 C. Rob. Adm. 228, 
 Herman v. Louisiana State Ins. Co. 7 La. 502, . > 
 Hermann v. Western M. & F. Ins. Co. 15 La. 517, 
 Heme v. Hay, 6 C. B. 414, .... 
 Herrick v. Union Ins. Co. 48 Me. 558, . 
 Hersey v. Merrimack Ins. Co. 27 N. H 149, 
 Herstelder, The, 1 C. Kob. Adm. 114, . 
 Heselton c. AUnutt, 1 Maule & S. 46, 
 Hewitt V. Flexney, Beavves, Lex Merc. 308, 
 Hewison v. Guthrie, 2 Bin;j:h. N. C. 755, 
 Heyiiger v. N. Y. Firemen's Ins. Co. 11 Johns. N. Y. 85, 
 Heyman v. Parish, 2 Campb. 149, . 
 Hey wood. Ex parte, 2 Rose Bank, 357, 
 Hibbert i'. Carter, 1 Term, 745, 
 
 V. Halliday, 2 Taunt. 428, . 
 
 V. Martin, 1 Campb. 538 ; Park, Ins. 8th ed. 4 72, 
 V. Pigou, 2 Park, Lis. 498 ; 3 Uougl. 224, 
 Hickie V. Rodocanachi, 4 Hurlst. & N. Exch. 455, . 
 Hicks V. Fitzsimmons, 1 Wash. C. C. 279, 
 Higgins V. Livermore, 14 Mass. 106, 
 
 «>. Sargent, 2 Barnew. & C. 348 ; 3 Dowl. & R. 618, . . 2147 
 
 Hiaginson v. Dall, 13 Mass. 96, . 66, 133, 286, 368, 426, 1262, 1505, 1516, 
 
 1715, 2116 
 V. Pomerov, 11 Mass. 104, 
 Hill r. Barclay, 18 Ves. Jr. Ch. 63, 
 V. Patten, 8 East, 373, . 
 
 V. Reed, 16 Barb. N. Y. 280, . 
 V. Secretan, 1 Bos. & P. 315, 
 Hillier r. Alleghana Ins. Co. 3 Penn. 470, . 
 Hills L\ London Ass. Co 5 Mees. & W. Exch. 569, 
 Himely v. So. Car. Ins. Co. 1 Const. So. C. 154, 
 V. Stewart, 1 Brev. So. C. 209, , « . 
 Hinde r. Vattier, 5 Pet. 398, 
 Hiram, The, 8 Cranch, 444 ; 1 Wheat. 440, 
 HifCD( ks u. Hiscocks, 5 Mees. & W. E.xch. 363, 
 Hiscox ?'. Barrett, 16 East, 145, 
 Hitchcock V. North Western Ins. Co. 26 N. Y. 68, . 
 Hobart V. Drogan, 10 Pet. 108; 2 Pet. Adm. 186, n., 
 
 . 2050 
 67 
 . 1846 
 1027 
 1001, 1328, 1453 
 . 444, 2018 
 . 2105 
 1846 
 1815, 1816, 2151 
 631, 1633, 1634, 1641 
 201 
 814 
 . 1973 
 135, 137, 139, 987, 1002 
 . 1538 
 872 
 635, 2080 
 240 
 993, 1001, 1005 
 1815 
 . 1919 
 1334, 1392 
 1074, 2022 
 79 
 286, 2123, 2126 
 1030 
 .409, 720, 2021 
 780 
 . 1739 
 2052 
 767, 802 
 
 V. Norton, 8 Pick. Mass. 159, 
 Hobbs V. Hannam, 3 Campb. 93, . . . 
 
 V. Memphis Ins. Co. 1 Sneed, Tenn. 444, . 
 Hobby r. Dana, 17 Barb. N. Y. HI, . 
 Hoby r. Roebuck, 7 Taunt. 157; 2 Marsh. 433, 
 Hockin V. Cooke, 4 Term, 314, .... 
 Hodgkins v. Montgomery Ins. Co. 34 Barb. N. Y. 213, 
 Hodgson V. Blackiston, Park, Ins. 8th ed. 400, n. ; Marshall, Ins. 2d ed. 600, 
 
 . 1098, 1131, 1154 
 
 771 
 
 436, 463, 497 
 
 . 523 a 
 
 291 
 
 1098.1129 
 
 1773, 1777 
 
 . 554. 556,-605 
 
 653, 559. 560, 1048 
 
 . 2110 
 
 253 
 
 126 
 
 . 392, 2021 
 
 864, 880 
 
 1719 
 
 . 1001 
 
 . 325, 1083 
 
 81, 879, 880, 1964 
 
 636 
 
 14 
 
 67 
 
 1806, 1876 
 
 1497
 
 TABLE OF CASES. 
 
 xliii 
 
 Hodg.son V. Glover, fi East, 316 ; 3 Campb. 27 7, 
 
 V. Ins. Co. 2 La. 341, 
 
 V. Malcolm, 5 Bos. & P. 336, . 
 
 V. Marine Ins Co. 1 Crancli, C. C. 460, . 
 
 V. Marine Ins. Co. of" Ale.xandria, 5 Cranch, 100, 
 
 V. ]\Iississip|)i Ins. Co. 2 La 341, . 
 
 V. Richardson, 3 Bun. 1477; 1 \Vm. Blackst?463, 
 Hodson V. Observer L. Ass. Soc. 8 Ell. & B. 40, . 
 Hoee V. Mason, 1 Wash. Va. 107, 
 Hoffman v. Mtua Ins. Co. 32 N. Y. 405, . 
 
 V. MarshEll, 2 Binjrh. N c. 383, 
 
 V. Western F. & M. Ins. Co. 1 La. Ann. 216, 
 
 HofTnung, The, (Berens,) 2 C. Rob. Adm. 162, 
 (Smi.it,) 6 C. Rob. Adm. 112, 
 (Hardrath,) 6 C. Rob. Adm. 383, 
 Hogan V. Dei. Ins. Co. 1 Wash. C. C. 419, 
 Hogg t'. Gouldney, Beawes, Lex Merc. 310 ; Park, Ins. 193, 
 
 r. Horner, Park, Ins. 444, 
 Hoit ('. Hodge, 6 N. H. 104, . 
 Hoibrook V. American Ins. Co. 1 Curt. C. C. 193, 
 
 r. Brown, 2 Mass. 280, 
 Holdwortli V. Wise, 7 Barnew. & C. 794, . 
 
 Holland v. Hall, 1 Barnew. & Aid. 53, . 
 
 V. Russell, 1 Best & S. 424, 
 
 V. Sniitli, 6 Ivxp. 11,. 
 HoUingworth v. Brodricl<, 7 Ad. & E. 40, . 
 Holly e. Huggeford, 8 Pick. Mass. 73, . 
 Holman v. Johnson, Cowp. 341, . 
 Holmes V. Charlestowu Mut. Ins. Co. 10 Mete. Mass. 211, 
 
 V. Unit. Ins. Co. 2 Johns. Cas. N. Y. 329, . 
 HoItzapfTcl V. Baker, 18 Ves. Ch. 115, . 
 Homer v. Dorr, 10 Mass 26, .... 
 
 V. Fisl), 1 Pick. Mass. 435, .... 
 
 Hone V. Ballin, 1 Sandf. N. Y. 181, 
 
 I'. Folger, 1 Sandf. N. Y. 177, . . 
 
 • V. Mut. Safety Ins. Co. 2 N. Y. 235 ; 1 Sandf. N. Y. 137, 
 
 « 
 Honnick v. Phoenix Ins. Co. 22 Mo. 82, ... 
 
 Hood V. Manhattan Ins. Co. 1 1 N. Y. 53?; 2 Du. N. Y. 191, 
 Hoo<ls Ex'rs V. Nesbitt, 2 l)<iil. Penn. 137 ; 1 Yeates, Penn. 114, 
 Hooe V. Groverman, I Cranch, 214, 
 
 Hoop, Tlie, 1 C. Rob. Adm. 196, 
 Hooper V. Hudson River Ins. Co. 
 
 17N. Y. 424, . 
 15 Barb. N. Y. 413, 
 
 V. Lu.<bv, 4 Campb. 66, 
 Hope, The, 1 D'ods. Adm. 226, ... 
 Hope Ins. Co. v. Boardman, 5 Cranch, 57, . 
 
 V. Broiasl<ey, 35 Penn. St. 282, . 
 
 V. Weed, 2;^ Conn. 51, 
 Hoppett, The, Edw. Adm. 369, . . . . 
 
 Hore r. Wiiiimore, Cowp. 784, 
 Hornby v. Houlditch, 1 Term, 93, n., 
 
 V. Lacy, 6 Mauie & S. 166, 
 Horncastle o. Haworth, 2 Marshall, Ins. ed. 1823, 681, 
 
 7, 317, 1209, 165 
 
 . 1948 
 
 1049, 2022 
 
 . 2052 
 
 . 627, 1183 
 
 588, 944, 1948 
 
 527, 580, 939 
 
 382 
 
 571 
 
 880, 1973 
 
 1759 
 
 888, 1484, 1805, 2144, 
 
 2:54 
 
 . 247, 837 
 
 . 829 
 
 261 
 
 117, 120, 133, 1253, 1937 
 
 1815 
 
 1001, 1008 
 
 211 
 
 421, 588, 880, 881 
 
 . 456, 462 
 
 731, 733, 735, 1049, 1529, 1531, 
 
 1534, 1541, 1542, 1594, 1704 
 
 . 217, 231 
 
 . 1930 
 
 79, 3«8, 397 
 
 . 727, 729, 731, 2032 
 
 1917 
 
 269 
 
 122, 130, 233, 494, 
 
 866, 877, 2065 
 
 391,408, 1829, 1852 
 
 402 
 
 134, 1834 
 
 1998 
 
 523 
 
 523 
 
 122, 143,499, 
 
 1752, 1753 
 
 75 
 
 493 
 
 1074 
 
 1083 
 
 23, 226 
 
 880 
 
 491 
 
 1851 
 
 244 
 
 167 
 
 874 a 
 
 510 
 
 247 
 
 >, 2026 
 
 1060 
 
 1853 
 
 1840 
 
 147 
 
 148, 2 
 
 77
 
 xliv TABLE OP CASE3. 
 
 Hornciistle v. Stuart, 7 East, 400, . . . . . .332 
 
 Horneyer v. Lushinc;ton, 15 East, 46 ; 3 Campb. 85, . 744, 809, 939, 1830 
 
 Horton v. Stanley, 1 Miles, Peiin. 418, ..... 865 
 
 Hoskiiis ('. Pic-kerso-iU, 3 Doul'I. 222; Park, Ins. 97; Marshall, Ins. 727, 497 
 
 Houjrh V. City Fire Jus. Co. 29 Conn. 10, . 180, 874 a, 878, 1876, 1947, 2069 
 Houghton, Ex parte, 17 Ves. Ch. 2.i3, ..... iiCo, 289 
 
 V Gilbert, 7 Carr. & P. 701, ..... 144 
 
 V. Manuf. Mut. F. Ins. Co. 8 Mete. Mass. 114, 66, 544, 638, 6 70, 
 
 673, 871, 872,1948 
 Houlditch u. Milne, 3 Esp. 86, . . . . . .1853 
 
 Houstman v. Thornton, 1 Holt, K P. 242, . . . 1595, 1683, 2139 
 
 Houston I'. N. E. Ins. Co. 5 Pick. Mass. 89, . . . 600, 1010, 2089 
 
 Houstoun V. Brodenave, 6 Taunt. 451, ..... 1924 
 
 V. Robertson, 6 Taunt. 448 ; 4 Campb. 342; 1 Holt, 88, . 507, 1924 
 Hovey V. American Ins. Co. 2 Da. N. Y. 554, . . . .872 
 
 Howard, Sir Hubert's case, 2 Salk. 625 ; 1 Ld. Raym. 480, . . 921 
 
 r. Albany Ins. Co. 3 Den. N. Y. 301, . . .5,84,87,185 
 
 V. Kentucky Ins. Co. 13 B. Monr. Ky. 282, . . . 1033 
 
 ?'. Tucker, 1 Barnew. & Ad. 712, .... 2126 
 
 Howard las. Co. v. Bruner, 23 Penn. St. 50, . . . 66, 1037, 1876 
 
 V. Cornick, 24 111. 554, . . . . .636 
 
 V. S<-ribner, 5 Hill, N. Y. 298, . . . 366, 1263 
 
 Howell V. Baltimore Soc. 16 Md. 3 77, . . , . .882 
 
 V. Cincinnati Ins. Co. 7 Ohio, 276, . 1049, 1136, 1148, 1214, 2052 
 
 V. Protection Ins. Co. 7 Ohio, 284, . . . .1148 
 
 V. Union Mut. Ins. Co. of Philadelphia, Hunt's Mag. July, 1851, 1539, 
 
 1571 
 
 Howland v. Edmonds, 33 Barb. N. Y. 433, . . . 523, 528 a 
 
 r. Marine Ins. Co. of Alexandria, 2 Cranch, C. C. 473, . . 1048 
 
 Hoxie V. Home Ins. Co. 32 Conn. 21, . . . . . 727, 904 
 
 V. Pacific Ins. Co. 7 All. Mass. 211, . . . . .727 
 
 Hoxsie r. Providence Ins. Co. 6 R. I. 517, . . . 880, 882, 1741 a 
 
 Hoyt I). Oilman, 8 Mass. 336, .... 596, 1845, 1938 
 
 V. New York L. Ins. Co. 3 Bosw. N. Y. 440, . . . 354, 356 
 
 Hubbard t;. Glover, 3 Campb. 313, . . . . . .551 
 
 V. Jackson, Marshall, Ins. 3d ed. 647, . . . 2147 
 
 Hucker y. Youn^r, 6 N. H. 95, . . . . . .2091 
 
 Huckins V. People's Ins. Co. 31 N. H. 238, . . 1095 c, 1215, 1943 
 
 Huckman v. Fernie, 1 Horn & H. Exuh. 149 ; 3 Mees. & W. Exch. 505, 64 7, 
 
 • 653, 6.i4, 893, 898 
 
 Hucks V. Thornton, 1 Holt, 30, . . . . . 699, 709, 727 
 
 Hudson y. Ouestier, 4 Cranch, 293, ..... 2104 
 
 V. Harrison, 3 Brod. & B. 97 ; 6 J. B. Moore, 288, 1603, 1669, 1691, 
 
 1704, 1732 
 
 Hujiji V. AujTUsta Ins. Co. 7 How. 595, . . 470, 1642, 1643, 1772 
 
 Hughbh V. N. O. & Carrollton Railroad Co. 6 La. Ann. 495, 498, . .1395 
 
 Hughes V. Cornelius, Carth. 32; 1 Show. 143; 2 id. 232; T. Raym. 473; Skin. 
 
 59; 2 Ld. Raym. 893, 935, ..... 2106 
 
 V. Tindall, 18 C. B. 98 ; 36 Eng. L. & Eq. 413, . . 864 
 
 V. Union Ins. Co. 3 Wheat. 159 ; 8 id. 294, 473, 983, 999, 1006, 1182, 
 
 1208, 1956 
 Huguenin u. Rayley. 6 Taunt. 186, .... 647,1948 
 
 Hull r. Cooper, 14 East, 4 79, ..... 618,690 
 
 HuUman a. Whitmore, 3 Maule & S. 337, . . . 245, 24 7, 248 
 
 Humphries v. Carvalho, 16 East, 45, . . . . . 17 
 
 Humphrey u. Arabin, Lloyd & G. Cas., Temp. Plunk. 318, . 409, 1712 
 
 V. Llnio!! Ins. Co. 3 Mas. C C. 429, 1359, 1431, 1452, 1540, 1594, 
 
 1662, 1705, 1773 
 
 I
 
 TABLE OF CASES. 
 
 xlv 
 
 Hunt r. Roval Exch. Ass. Co. 5 Maule & S. 47, . 1603,1669,1776,1881 
 
 Hunter, The, Ware, Dist. Ct. 249, . . . 289, 1249. 1568 
 
 V. Leathlev, 10 Barnew. & C. 8.58 ; 7 Bingh. .517, 447, 933, 942, 1901 
 
 V. Parker, 7 Mees. & W. Exch 322, 
 
 V. Potts, 4 Campb 203 ; Selw. N. P. 907, n., 
 
 V. Prinoep, jMarsliall, Ins. 316, 
 
 V. Prinsep, 10 East, 378, 
 
 V. Wright, 10 Barnew. & C. 714; 1 Lloyd & W. Cas. 138, 
 Huntley v. Beecher, 30 Barb. N. Y. 580, . 
 
 V Merrill, 32 Barb. N. Y. 626, 
 Hurlbert v. Pacific Ins. Co. 2 Snmn. C C. 4 71, 
 Huribut V. Carter, 21 B.irb. N. Y. 221, 
 Hurry v. Assignees of Hurrv, 2 Wash. C. C. 145, 
 
 V. Royal Exch. Ass. Co. 3 Ksp. 289 ; 2 bos. & P. 430 
 
 V. Ship John and Alice, 1 Wash. C. C. 293, . 
 Hurtiiie Hane, The. 2 C. Hob. Adm. 124, 
 Hurtin i\ Phoenix Ins. Co. 1 Wash. C. C. 400, 
 
 V. Union Ins. Co. 1 Wash. C. C. 530, 
 Hussey v. Jacob, 1 Ld. Ilayui. 87, 
 Hutchiris V. Cleveland Ins. Co. 11 Ohio, St. 477, 
 Hutchinson v. Bowker, 5 Me.-s. & W. P:x. h. 542 ; 8 id. 823 
 
 V. AVestern Ins. Co. 21 Mo. 97, 
 Hutton V. American Ins. Co. 7 Hill, N. Y. 321, 
 
 V. Bragix, 7 Taunt. 14, 
 Hvatt V. McMahon, 25 Barb. N. Y. 457, 
 Hyde V. Bruce, 3 Dougl. 213, 
 
 r. Goodnow, 3 N. Y. 2h6, 
 
 I'. Louisiana State Ins. Co. 2 Mart. N. s. La. 410, 
 
 V. Lvnde, -1 N. Y. 387, .... 
 
 V. Mississippi Ins. Co. 10 La. 525, 
 Hygum V. iEtna Jns. Co. 11 Iowa, 21, 
 Hynds V. Schenectady Ins. Co. 11 N. Y. 554 ; 16 Barb. N. 1" 
 
 1593 
 
 709, 1100 
 
 415 
 
 . 1574 
 
 976, 1843 
 
 9, 510 
 
 11, 510 
 
 385, 413, 516, 1797 
 
 523 a 
 
 . 1985 
 
 3 id. 308, 938, 
 
 970, 1460, 1464 
 
 1940, 1985 
 
 843 
 
 1523, 1659, 1685 
 
 . 1634 
 
 2035 
 
 641 
 
 120 
 
 . 881 
 
 953 
 
 . 1083 
 
 510 
 
 768 
 
 121 
 
 1535, 1547 
 
 523, 1795 a 
 
 760 
 
 70, 881 
 
 119, 883, 1095 
 
 I. 
 
 Icard V. Goold, 11 Johns. X. Y. 279, . . . . . 406 
 Idle V. Royal Exch. Ass. Co. 8 Taunt. 755 ; 3 J. B. ^Moore, 115, 1049, 1-197, 
 
 1500, 1524, 1531, 1574. 1575, 1583, 1587, 1630 
 
 Illinois l\Iut. Fire Ins. Co. v. Marseilles Manufacturers' Ins. Co. 6 III. 237, 2026 
 
 M It. Ins. Co. V. O'Neil, 13 111. 39, .... 120 
 
 Imina, The, 3 C. l{ob. Adm. 167, .... 262, 279, 835 
 
 Immanuel. The, 2 C. Kob Adm. 186, . . . . .278 
 
 Indep< ndent Ins. Co. (•. Airnew, 34 Penn. St. 96, . . . 1098 a 
 
 India and London Lil'e Assurance Co. t;. Dalby, 4 De Gex & S. Ch. 462; 7 Eng. 
 
 L & E(i. 250, . . . , . . 378, 1939 
 
 Indian Chief, The, 3 C. Rob. Adm. 12, . . 153, 165, 168, 169, 171 
 
 Indiana Mutual Fire Ins. Co. c. Chamberlain, 8 Blackf. Ind. 150, 510, 1939 
 
 V. Coquillard, 2 Ind. 645, . . .510 
 
 I?. Rmtledge, 7 Ind. 25, . . 1932 
 
 Indiana, The, 3 C. Rob. Adm. 44, . . . . . 171, 814 
 
 Indianajiolis Ins. Co. v. Ma.*on, 11 Ind. 171, . . . . 1779 
 
 In-ers.)ll V. Van Biokelin, 7 Cow. N. Y. 670, . . , .312 
 
 Ingham y. Agnew, 15 East, 517, ..... 210 
 
 luLdedcn r. Foster, 4 Yin. Ahr. 281 ; Marshall, Ins. 2d ed., 751, . . 950 
 
 Inglis y. Usherwood, 1 East, 515, ..... 2110
 
 xlvi 
 
 TABLE OF CASES. 
 
 Inglis r. Vanx, 3 CampK 437, .... .332,944,963 
 
 Inland Ins. Co. r. Stauffer, 33 Penn. Sf. 397, . . . 1806 
 
 Inman v. Western Fire Ins. Co. 12 Wend. N. Y. 452, . . 1806, 1810 
 
 Innes v. Alliance Mut. Ins. Co. 1 Sandf. N. Y. 310, . . . 849, 852 
 
 Insurance Co. v. Johnson, 23 Penn. Sr. 72, .... 16, 21 
 
 i;. Mordecai, 22 How. Ill, .... 14,470 
 
 V. Slockbovver, 26 IVnn. St. 199, .... 904 
 
 V. Updegrart; 21 Penn. St. 513, . . 1481, 1712 
 
 Insurance Co. of North America v. Jones, 2 Binn. Penn. 547; 4 Dall. 246, 
 
 1347, 1453 
 
 of Pennsjlvania v. Duval, 8 Serg. & R. Penn. 138, 1175, 1755 a 
 
 Iowa Ins. Co. v. Prosser, 11 Iowa, 115, . . . . . 510 
 
 Irene, The, 5 C. Roh. A.im. 76, .... . 837, 841 
 
 Irving V. Kxcelsior F. Ins. Co. 1 Bosw. N. Y. 507, . . .416 
 
 V. Manning 1 C. B. 168 ; 2 id. 784 ; 6 id. 419 ; 1 Hou. L. Cas. 817, 3, 
 
 15;i3, 1538 
 V. Richardson, 2 Barnew. & Ad. 193 ; 1 Mood. & R. 153, 289, 359, 393, 
 
 421, 1191, 1244, 1997 
 
 Jackson v. Bird, 4 Jolins. N. Y. 230, 
 V. Colegrave, Carth. 338, 
 V. Fanners' Ins. Co. 5 (iray, Mass. 52, 
 V. Massachusetts Mut. F. & M. Ins. Co. 23 
 V. New Ydik Ins. Co. 2 Johns. Cas. N. Y. 
 
 Jacob ('. J'Ansen, 3 Taunt. 534, 
 
 Jacob, The, 4 C. Rob. Adm. 245, 
 
 Jacobs v. Eagle Ins. Co. 7 AU. Mass. 132, . 
 
 Jacobus Johannes, The, 1 C. Rob. A(]n». 14, . 
 
 Jalabert v. Collier, Millar, Ins. 323, 
 
 James c. Bixbv, 11 Mass. 34, . 
 
 V. Enieiy, 5 Price, Plxch. 521 ; 8 Taunt. 245 
 V. Jones, 3 Esp. 27 ; Abbott, Ship[). 5tli ed 
 r. Rogers, 15 Mees. & W. Exch. 3 75, 
 
 James Cook, The, Edw. Adm. 261, 
 
 Jameson v. Swainstone, 2 Campb. 546, n., . 
 
 Jane, The, 2 Hagg. Adm. 338, 
 1 Dods. Adm. 461, 
 
 Jan Frederick, The, 5 C. Rob. Adm. 128, 
 
 Janney i\ Columbian Ins. Co. 10 Wheat. 411, 
 
 Janson v. Ralli, 6 Ell. & B. 422 ; 36 Eng. L. & Eq 
 
 Jaques c. Golightly, 2 W. Blarkst. 1073, . 
 r. Wllty, 1 II. Blackst. 65, 
 
 Jarman v. Coape, 13 East, 394 ; 2 Campb. 615, 
 
 Jarratt v. Walker, 1 Campb. 277, 
 V. Ward, 1 Campb. 263, 
 
 Jefferson Ins. Co. v. Cotheal, 7 Wend. N. Y. 72, 
 
 Jeftery v. Walton, 1 Stark. 267, 
 
 Jeffries v. Lcicendre, 4 Mod. 582 ; Salk. 443, 
 
 Jell r. Pratt, 2 Stark. 6 7, . 
 
 Jellinghaus v. New York Ins. Co. 4 Sandf. 18, 
 
 Jenkins v. Ileycock, 8 Moore, P. C. 351, 
 i\ Mckenzie, Millar, Ins. 321, 
 V. Quincy Ins. Co. 7 Gray, Mass. 370, 
 V. Union Ins. Co. 39 N. H. 172. . 
 
 29, 127 
 
 . 5 '7, 1993 
 
 874 a, 881, 1962 
 
 Pick. Mass. 418, 8'<0, 881 
 
 191, . . 166, 167 
 
 210 
 
 306 
 
 . 880 
 
 . 258, 814 
 
 . 1521 
 
 1564, 1591 
 
 2 J. B. Moore, 125, 1960 
 
 20, . . 1083 
 
 . 1915 
 
 . 835, 836 
 
 . 1929 
 
 1027 
 
 950, 1568 
 
 255, 260, 791, 796, 797 
 
 849, 852 
 
 198, . . 1773 
 
 . 1846 
 
 1846 
 
 . 1160 
 
 1029 
 
 . 1030 
 
 72, 638, 642, 866, 1037, 2112 
 
 9 
 
 782 
 
 1883 
 
 . 1850 
 
 727 
 
 . 1521 
 
 874 a 
 
 510
 
 TABLE OF CASES. 
 
 xlvii 
 
 Jenks V. ITallett, 1 Caines, N. Y. 60 : 1 Caines, Cas. N. Y. 43, 
 Jennings v. Chenango County Mut. Ins. Co. 2 Den. N. Y. 75, 
 
 69, 229, 757 
 
 70, 567, 673, 
 866 a, 872 a 
 
 427, 1568, 1847 b, 1985 
 
 . 1940 
 
 84, 1973, 1974 
 
 . 278 
 
 246 
 
 1046 a 
 
 1282 
 
 . 225 
 
 221 
 
 615 
 
 1460, 1464 
 
 . 1583 
 
 2114, 2129 
 
 . 1802 
 
 V. Pennsylvania Ins. Co. 4 Binn. Penn. 244, 
 Jerusalem. The, 2 (iail. C. C. 191, 
 Jesse! v. Willianisbnrgh ins. Co. 3 Hill, N. Y. 88, 
 Johanna Tholen, The, 6 C. Rob. Adm. 72, 
 Johan Pieter, The, Eilw. Adm. 355, • 
 Johnson v. Berkshire Ins. Co. 4 All. Mass. 388, 
 V. Crane, Kerr, New B'unswiok, 356, 
 ?'. Greaves, 2 Taunt. 344, 
 1-. Hudson, 11 East, 180, 
 V. Phffini.K Ins. Co. 1 Wash. C. C. 378, . 
 V. Shedden, 2 East, 581, 
 V. Shippen, 2 Ld. Kaym. 982, 
 V. Ward, 6 Esp. 4 7, . 
 Johnston v. Columbian Ins. Co. 7 Johns. N. Y. 315, 
 
 V. Ludlow, 2 Johns. Cas. N. Y. 481 ; 1 Caines, Cas. N. Y. xxix., 1154, 
 
 2109 
 
 V. Sutton, Dougl. 241, . . . , . .906 
 
 Jolly r. Baltimore Eijuity Ins. Society, 1 Harr. & G. Md. 294, . 1034 
 
 V. Walker., Beawes', 316 ; Park,' Ins. 448 ; Marshall, Ins. 195, . 1030 
 
 Jolly's Ex'rs r. Ohio Ins. Co. 1 Wright, Ohio, 539, ... 987 
 
 Jones V. Bow, Carth. 225, ....... 2105 
 
 V. Gibbons, 9 Ves. Jr. 407, ..... 79 
 
 V. Herbert, 7 Taunt. 421, ..... 2060, 2160 
 
 V. Ins. Co. ot North America, 4 Dall. 246, . . . 1206 
 
 V. Maine Mut. Fire Ins. Co. 18 Me. 155, . . . • 864, 881 
 
 V. Paris, Coop. Ch. 56, . . . . . . 1978 
 
 V. Provincial Ins. Co. 3 C. B. x. s. 65, . . . . 652 
 
 V. Randall, Cowp. 37 ; Lofl't. 383, .... 211 
 
 V. Schmoll, 1 Term, 130, n., . . . . . 1129 
 
 V. Sisson, 6 Gray, Mass. 288, . . . . . 523 a 
 
 V. Smith, 3 Gray, Mass. 500, ..... 510 
 
 r. Tlie Ins. Co. 2'Wail. Jr. C. C. 278, .... 727 
 
 Jones Manufacturing Co. v. Manufarturers' Ins. Co. 8 Cush. Mass. 82, . 2122 
 Jonge Arend, The, 5 C. Rob. Adm. 14, ... . 247 
 
 Clara, The, Edw. Adm. 371, . . . , .251 
 
 Frederiik, The, IMw. Adm. 357, .... 247 
 
 Johannes, The, 4 C. Rob. Adm. 263, .... 245 
 
 Klassina, The, 5 C. Rub. Adm. 29 7, . . . . 164, 245 
 
 Margaretlia, The, 1 C. Rob. ,\dm. 189, . . . 271, 272 
 
 Pieter, The (Amsterdam), 4 C. Rob. Adm. 79, . 237, 828, 844 
 
 Ruiter, The, 1 Act. Piize Cas. 116, . . . .161 
 
 Thomas, Tl.e, 3 C. Rob. Adm. 233, .... 278 
 
 Tobias, The, 1 C. Rob. Adm. 329, .... 232, 284, 791 
 
 Jordaine >•. Cornewall. 1 Stark. 6, . . . . . 1996 
 
 Jordan v. Church, 2 Caines, N. Y. 299, ..... 2044 
 
 V. James, 5 Ohio, 88, . . . . . . 197 
 
 V. Tremont Ins. Co. Sup. Jud. Ct. Mass. Suffolk, March, 1852, 1545 
 
 V. Warren Ins. Co 1 Stor. C. C. 342, 1049. 1386, 1443, 1446, 1447, 
 
 1449, 1451, 1452, 1623, 1632, 1644 
 Joseph, The, 1 Gall. C. C. 545 ; 8 Cranch, 451, . 222, 226, 281, 320, 819 
 
 Josephine, The, 4 C. Rob. Adm. 25, . . . . . 1 74, 794 
 
 Journie v. Bourdieu, Park, Ins. 179; Marshall, Ins. 223, . . . 1764 
 
 Joyce V. Maine Ins. Co. 45 Me. 168, .... 872, 1033, 2112 a 
 
 y. Williamson, 3 Dougl. 164, .... 1166,1174 
 
 Jube i;. Brooklyn Ins. Co. 28 Barb. N. Y. 412, ... 885
 
 xlviii TABLE OP CASES. 
 
 Judah V. Judd, 5 Day, Conn. 534, . . . . .95 
 
 y. Ran.lall, 2 Caines, Cas. ]Sr. Y. 324, . . 1606,1608,1616,1771 
 
 Juffrow Catharina, The, 5 C. Rub. Adm. 141 ; id. 21 ; 1 Bos. & P. 349, 227, 
 
 247, 800 
 
 Louisa Maraaretha, The, 1 C. Eob. Adm. 203, . . .226 
 
 Miria Schroeder, The, 3 C. Rob. Adm. 147, . . 827, 842 
 
 Juhel V. Church, 2 Johns. Cas. N. Y. 333, . . 5, 7, 211, 1846 
 
 V. Rhinelander, 2 Johns. Cas. 120, 487, . 282, 446, 628, 748, 1122 
 
 Julia, The, 8 Craueh, 181; 1 (Jail. C. C. 594, . . . 223, 253, 814 
 
 Juliana, The, 2 Do<ls. Adm. 501, ..... 212 
 
 Jumel V. iNIarine Ins. Co. 7 Jolins. N. Y. 412, 1268, 1331, 1350, 1357, 1592, 
 
 1704, 1732, 1736, 1742, 2147 
 Juno, The, 2 C. Rob. Adm. 116, ..... 248,830,837 
 
 K. 
 
 / • 
 
 Kaines r. Knightly, Skinn. 54, ..... 109,116 
 
 Kahl V. Colo^an, 4 Taunt. 565, ..... 2086 
 
 V. Jansen, 4 Taunt. 565, ...... 2086 
 
 Kane v. Columbian Ins. Co. 2 Johns. IST. Y. 264, . . , 999, 1010 
 
 u. Co nmercial Ins. Co. 8 Johns. N. Y. 229, . 368,1191,1262 
 
 Kathman v. General M. Ins. Co. 12 La. Ann. 35, . . , 240, 2125 
 
 Kay /. Youn<r, Millar, Ins. 62, . . . . . .615 
 
 Keeler v. Fireman's Ins. Co. 3 Hill, N. Y. 250, 221, 267, 713, 718, 1043 
 
 u. Niagara Ins. Co. 16 Wise. 523, . . . . .880 
 
 Keenan i'. Dubuque Ins. Co. 13 Iowa, 375, . . . . 904 
 
 V. Missouri Ins. Co. 12 Iowa, 126, . 510, 904, 1812, 1876 
 
 Keir r. Andrade, 6 Taunt. 4 98, ..... 232 
 
 Keisselbrack v. Livingston, 3 Johns. Ch. N. Y. 144, . . . 1926 
 
 Keith V. Quincy Ins. Co. 10 All. Mass. 228, . . . . 872 
 
 Kelbv ('. Steel, 5 Esp. 194, ...... 1960 
 
 Kellner r. Le Mesurier, 4 East, 396, . . 149, 915, 916, 1841, 2018 
 
 Kelly V. Walton, 2 Campb. 155, . , . . . .1669 
 
 Kemble v. Bowne, 1 Caines, N. Y. 75, . . 527, 559, 576, 935, 1251 
 
 V. Rhinelander, 3 Johns. Cas. N. Y". 130, 380, 391, 417, 756, 767, 824, 
 
 1965, 2109 
 Kendrick v. Delafield, 2 Caines, N. Y. 67, . . . . 1080 
 
 Kennebec Co. i\ Augusta Ins. Co. 6 Gray, Mass. 204, . . 510,1872 
 
 Kennedy v. Baltimore Ins. Co. 3 Harr. & J. Md. 367, . . 1741, 1955 
 
 V. St. Lawrence Mut. Ins. Co. 10 Barb. N. Y. 285, 70, 637, 872, 
 
 2069 
 Kensington v. Inglis, 8 Ea<t, 273, .... 151, 248, 2030, 2103 
 
 Kenni.ston v. Merrimack Mut. Ins. Co. 14 N. H. 341, . . . 1097 
 
 Kenny v. Clarkson, 1 Johns. N. Y. 385 ; 2 id. 107, 300, 425, 426, 1191, 2110 
 Kent V. Bird, Cowp. 583, ...... 7 
 
 V. Elstob, 3 East, 18, . . . . . . .1420 
 
 V. Manufacturers' Ins. Co. 18 Pick. Mass. 19, 363, 928, 992, 1259, 1838 
 
 Kentucky Ins. Co. v. Jenks, 5 Ind. 96, .... 22, 505 
 
 V. Southard, 8 B. Monr. Ky. 636, ... 70 
 
 Kenyon v. Berthon, 1 Dougl. 12, n., . . . . 68, 756, 757 
 
 Ker y. Osborne, 9 East, 3 78, . . . ' . . 1740,2010 
 
 Kernochan y. New York Ins. Co. 17 N. Y. 428, . . . 289,1813 
 
 Kettell V. Wiggin, 13 Mass. 68, .... . 1026 
 
 Kewly V. Ryan, 2 H. Blackst. 343, .... 438, 1001 
 
 Keyser y. Scott, 4 Taunt. 660, .... 778, 1160, 1163 
 
 Kierhghett, The, 3 C. Rob. Adm. 96, . . . . .2104 
 
 Kill y. HoUister, 1 Wils. 129, ..... 58,865,1940 
 
 I
 
 TABLE OF CASES. xlix 
 
 Kimball v. iEtna Ins. Co. 9 All. Mass. .540, . . . 553, 878 
 
 V. Howard Ins. Co. 8 CJrav, Mass. 33, . . . 881, 1950 
 
 Kinilerslev y. Chase, Marshall, Ins. 2d ed. 4 23, .... 2109 
 
 King V. Accumulative L. F. Co. 3 C. B. N. s. 151, . . . 510 
 
 V. Delaware Ins. Co. 2 Wash. C. C. 300; 6 Cranch, 71, . .1115 
 
 V. Franklin, 2 Hall, N. Y. 1, . . . . . 2124 
 
 V. Glover, 5 Bos. & P. 206, . . . . . .213 
 
 r. Hartford Ins. Co. 1 Conn 333, .... 962 
 
 V. Middletown Ins. Co. 1 Conn. 184, . 962, 1002, 1526, 1.557, 1698 
 
 V. Siiepherd, 3 Stor. C. C. 349, .... 1081, 1099 
 
 17. Stale Mut. Ins. Co. 7 Cush. Mass. 1, .... 1712 
 
 V. Walker, 2 Hurlst. & C. K.xch. 384, . . . . 1680 
 
 Kinffsford v. Marshall, 1 Moore & S. 657 ; 8 Bingh. 458, . . .1758 
 
 Kiuirslev c. New England Ins. Co. 8 Cush. Mass. 393, 70, 886, 1150, 1974 
 
 Kingston V. (iirard, 4 Dall. 274. . . ; . . 999, 1331 
 
 V. Knibbs, 1 Campb. 508, n., . ' . . . 593, 997 
 
 V. MIntosh, 1 Campb. 518, ..... 2147 
 
 V. Phelps, Peake, 227, ..... 1001 
 
 I'. Wil.son, 4 Wash. C. C. 310, .... 1858 
 
 Kinlock V. Craig, 3 Term, 783, . . . . . .1913 
 
 Kinnear o. Borradaile, 5 Mann. & (i. 643. n , . . . . 895 
 
 Kinsman r. New York Ins. Co 5 Bosw. N. Y. 460, . . 338, 1632 
 
 Kirby r. Smith, 1 Barnew. & Aid. 672, .... 527, 550 
 
 Klein V Lancaster Ins. Co. Wliarton, Dig. 319, .... 574 
 
 Klein wort v. Shepard, 1 Ell. & E. 447, . . . . 1106 
 
 Klendyn i\ Widow, 1 Benecke. 390, ..... 1894 
 
 Klett k Delaware Ins. Co. 23 Perm. St. 262, .... 131 
 
 Klingender c. Bond, 14 East, 484, ...... 245 
 
 Knight r. Cambridge, 8 Mod. 230 ; 2 Ld. Raym. 1349; 1 Strange, 581, 1062, 
 
 1072, 2022 
 Knill r. Hooper, 2 Hurlst. & N. Exch. 277, .... 695 
 
 Knox r. Wood, 1 Campb. 541, . . . . . .311 
 
 Kohne v. Ins. Co. of North America, 6 Binn. Penn. 219 ; 1 Wash. C. C. 93, 158, 
 
 24, 546, 624, 625, 1117 
 V. New Orleans Ins. Co. 12 La. 349, .... 1158 
 
 Koster v. Eason, 2 Maule & S. 112, . . . . , 607 
 
 V. Il;ne.^, lly. & M. 333, . . . . . .2139 
 
 r. Reed. 6 Barnew. & C. 19, . . . . . 2139 
 
 Krumbhaar v. Marine Ins. Co. 1 Serg. & R. Penn. 281, . , . 1669 
 
 Kulen Kemp v. Vigne, 1 Term. 304, ... 7, 1141, 1523, 2022 
 
 Kymer r. Suwercropp. 1 Campb. 109, 180, n., . . . . 197 
 
 Kynaston v. Liddell, 8 J. B. Moore, 223, .... 1989 
 
 L. 
 
 Lacaus,sade v. White, 7 Term, 535, ..... 1846 
 
 Lack ('. Siward, 4 Carr. & P. 106, . . . . . 1420 
 
 Lacon V. Higgins, 3 Stark. 1 78, . . . . . .2110 
 
 Lady Durham, The, 3 Hagg. Adm 196, • . . . 212 
 
 Lady Jane, The, 1 C. Rob. Adm. 202, • • . . . 226 
 
 La Fayeite Ins. Co. v. French, 18 How. 404, . . . 2105 
 
 Laing V. Glover, 5 Taunt. 49, ...... 7g2 
 
 V. United Ins. Co. 2 Johns. Ca.s. N. Y. 174, 487, . 1154^ 2109 
 
 Laird v. Robertson, 4 Brown, Pari. Cas. 488, . . . . ' 113 
 
 Lake, Sir Francis's case, Dy. 365, ..... 2028 
 
 Lake v. Columbian Ins. Co. 13 Ohio, 48, ..... 1757 
 
 VOL. I. e
 
 1 TABLE OF CASES. 
 
 Lamb 17. Durant, 12 Mass. 54, . . . . . ,2124 
 
 Lambert v. Liddanl, 1 Marsh 149 ; 5 Taunt. 480, ... 935 
 
 V. Smith, 1 Cranch, C. C- 361, .... 2109, 2112 
 
 Lambeth v. Western F. & M. Ins. Co. 4 Rob. La. 235 ; 11 id. 86, . 383 
 
 Lane v. Maine Fire Ins. Co. 12 Me. 44, . . . . 441, 880 
 
 V. Penniman, 4 Mass. 92, . . . . . .313 
 
 Lang V. Anderson, 3 Barnew. & C. 495 ; 5 Dowl. & R. 393 ; 1 Carr. & P. 171, 773 
 Lanirdale y. Mason, Marshall, Ins. 791, ..... 1162 
 
 Langdon i;. N. Y. Ecjuity Fire Ins. Co. 2 Hall, N. Y. 226, . . 883 
 
 Langhorn y. Allnutt, 4 Taunt. 511, .... 1007,2086 
 
 V. Cologan, 4 Taunt. 330, . , . . 113, 115, 415 
 
 V. Hardy, 4 Taunt. 628, ..... 939 
 
 Lanyon v. Blanchard, 2 Campb. 597, . . . . , 1916 
 
 Lapltam v. Atlas Ins. Co. 24 Pick. Mass. 1, . . . 962, 985, 1002 
 
 Lapsley y. Pleasants, 4 Binn. Penn. 502, . . . 1348,1617,1799 
 
 Laroche i;. Oswin, 12 East, 131, ...... 999 
 
 Lateward v. Carling, Park, Ins. 207, .... 1 )28 
 
 Latham v. Rutley, 2 Barnew. & C. 20; 3 Dowl. & R. 211, . . 2025 
 
 Lavabre v. Wilson, and Lavabre i-. Walter, 1 Dougl. 271, . 147, 1000, 1008 
 Lavinia, The Ship, v. Barclay, 1 Wash. C. C. 49, . . . 1985 
 
 La Virsinie, 5 C. Rob. Adm. 98, ..... 171,1137 
 
 Law i'.'Goddard,12 Mass. 112, .... 311,1162 
 
 V. Hodgson, or Hodson, 2 Campb. 147; 11 East, 300, . . 215 
 
 V. Hollingsworth, 7 Term, 160, . . . 713, 714, 715, 733 
 
 V. Warren, Drur. Ch. Ir. 31, . . . . . . 97 
 
 Lawrence v. Aberdein, 5 Barnew. & Aid. 107, . . 140, 1136, 1162, 1163 
 
 V. Columbian Ins. Co. 2 Pet. 25, . . . . . 392 
 
 V. Holyoke Ins. Co. 11 All. Mass. 387, . . .880 
 
 V. McCready, 6 Bosw. N. Y. 329, . . 504, 510, 523 
 
 V. Nelson, 21 N. Y. 158, ..... 510 
 
 V. New Bedford Com. Ins. Co. 2 Stor. C. C. 471, . 1602 
 
 r. New York Ins. Co. 3 Johns. Cas. N. Y. 217, . 1460,1464 
 
 V. Ocean Ins. Co. 11 Johns. N. Y. 241, . . 1801, 1819, 2101 
 
 r. Sebor, 2 Caines, N. Y. 203, . 383,397,416,1674,1852 
 
 V. Sydebotham, 6 East, 54, ... . 1027, 1029 
 
 V. Vanhorne, 1 Caines, N. Y. 276, 383, 416, 588, 1700, 1742, 1852 
 Lawrent v. Chatham, F. Ins. Co. 1 Hall, N. Y. 41, . . 1213, 1245 
 
 Lazarus v. Commonwealth Ins. Co. 19 Pick. Mass. 81, 92, 98, 107, 287, 880, 
 
 1971, 21 )2 
 
 5 Pick. Mass. 76, . 92, 107, 265, 2124 
 
 Leach r. Perkins, 17 Me. 462, ...... 135,136 
 
 Leadbetter v. iEtnaFire Ins. Co. 13Me. 265, .... 1808 
 
 Leary i;. Blanchard, 48 Me. 269, ..... 510 
 
 Leathamu. Terry, 3 Bos. &P. 479, .... 1649,1740 
 
 Leathers v. Farmers' Insurance Co. 24 N. H. 259, . . . 874 a 
 
 Leathy v. Hunter, 7 Bingh. 517; 10 Barnew. & C. 858, . 447, 933 
 
 Leavenworth & Delafield, 1 Caines, N. Y. 573, 1332, 1337, 1369, 1379, 1392, 
 
 1708, 1741 
 
 Leavitt v. Western F. & M. Ins. Co. 7 Rob. La. 351, . . 87, 881 
 
 Le Cheminant v. Allnutt, 4 Taunt. 367, . 247, 745, 1267, 1742, 1743 
 
 V. Pearson, 4 Taunt. 367, . . 247, 745, 1267, 1742, 1743 
 
 Le Cras v. Hughes, 3 Dougl. 81, . . . . .321 
 
 Lee V. Barreda, 16 Md. 190, . . • . . .338 
 
 V. Beach, Park, Ins. 342 ; Marshall, Ins. 160, . . . 695, 725 
 
 r. Boardman, 3 Mass. 238, .... 1620,1705,1732 
 
 r. Gray, 7 Mass. 349, ..... 1023,1025,1115 
 
 V. Howard Ins. Co. 11 Cush. Mass. 324, . . . .872
 
 TABLE OF CASES. li 
 
 Lee V. Howard Ins. Co. 3 Gray, Mass. 583, . . . 882, 904, 2069 
 
 V. Mass. F. & M. Ins. Co. 6 Mass. 208, . . 364, 383, 1253 
 
 Leeds v. Clieetham, 1 Sim. Ch. 14C, .... 402 
 
 V. Marine Ins. Co. 2 Wheat. 380 ; 6 id. 565, . . 1915, 1939 
 
 1-. Mechanics' Ins. Co. 8 N. Y. 351, . . . . 125 
 
 246 
 
 1998 
 
 2132 
 
 883 
 
 2060, 21«0 
 
 955 
 
 534 b, 2123 
 
 66 
 
 Leevin v. Corniac, 4 Taunt. 483, 
 
 Lefevre v. Boyle, Ellis, Ins. 16^, 
 
 Leftwitch V. St. Louis Perpet. Ins. Co. 5 La. Ann. 706, 
 
 Le<r<ren V. JEtna. Ins. Co. 1 Rich. So. C. 202, 
 
 Legh V. Legh, 1 Bos. & P. 44 7, 
 
 V. Maiher, 1 Park, Ins. 64; 1 Esp. 412, 
 Leiand v. The Medora, 2 Woodb. & M. C. C. 92, . 286, 
 
 v. Stone, 10 Mass. 459, 
 Le Mesurier v. Vaughan, 6 P^ast, 382, ..... 430 
 
 Le Neve v. Edinb. & Lond. Shipping Co. 1 Bell, Com. 5th ed. 581, . 1420 
 Lempke v. Vaughan, 1 Bingh. 4/3 ; 7 Uowl. & R. 236 ; 8 J. B. Moore, 649, 245 
 Lenox v. United Ins. Co. 3 Johns. Cas. N. Y. 178, and 2d ed. 451, 1282, 1283, 
 
 1414 
 
 Leonard i;. Bredenbrugh, 8 Johns. N. Y. 29, ... 1853 
 
 r. Huntington, 15 Johns. N.Y. 298, . . . .2124 
 
 Le Pypre y. Farr, 2 Vern. Ch. 716, .... .211,2129 
 
 Leroy v. Gouverneur, 1 .Johns. Cas. N Y. 226, . . . .1 766 
 
 r. United Ins. Co. 7 Johns. N. Y. 343, . . . 1226, 1229 
 
 Lester v. AVebb, 5 All. Mass. 569, . . . . .510 
 
 Lethulicr's case, 2 Salk. 443, ..... 119,780 
 
 Lett V. Morris, 4 Sim. Ch. 607, ... . . .79 
 
 Lever u. Fletcher, Park, Ins. 360, .... 216,595,1171 
 
 Leverick i>. Meigs, 1 Cow. N. Y. 645, .... 1853,1886 
 
 Levie V. Newnham, 4 Taunt. 722, ..... 1950 
 
 Levy y. AUnutt, 15 East, 267, . . .' . . . 1160 
 
 V. Bailie, 7 Bingh. 349, ...... 888 
 
 i;. Barnard, 2 J. B. Moore, 34 ; 8 Taunt. 149, . . .1920 
 
 v. Merrill, 4 Me 180, ...... 2119 
 
 r. Vaughan, 4 Taunt. 387, ...... 1160 
 
 Lewen v. Suasso, Postleth. Diet. Art. Assur. . . . 1062, 1082 
 
 Lewis 0. The Elizabeth & Jane, Ware, Dist. Ct. 41, . . . 1719 
 
 V. Rucker, 2 Burr. 1167, . . 1181, 1203, 1219, 1460,2127 
 
 V. Thatcher, 15 Mass. 431, . . . . .757 
 
 17. Williams, 1 Hall, N. Y. 430, .... 1288, 1289 
 
 Lexington Ins. Co. v. Pavor, 16 Ohio, 324, .... 539 
 
 Liberty Hall Ass. v. Housatonic Ins. Co. 7 Gray, Mass. 261, , 126, 664 
 
 Liddard *;. Lopes, 10 East, 526, . . . . . .1116 
 
 Liddle «;. Market Ins. Co. 4 Bosw. N. Y. 179, . . 75, 122, 904 
 
 Liebman v. Pooley, 2 Stark. 167, . . . . .2101 
 
 Lightbody v. N. Am. Ins. Co. 23 Wend. N. Y. 18, . 25, 26, 922, 1865, 1880, 
 
 2112, 2174 
 Ligon V. Orleans Nav. Co, 7 Mart. La. 682,. . . . 2124 
 
 Lillie V. Dennison, 3 Bligh, Hou. L. 220, .... 620 
 
 Lilly V. Ewer, 1 Dougl. 72, . . . . . , .780 
 
 Lincoln r. Battelle, G Wend. N. Y. 475, . .2050,2057,2101,2103 
 
 V. Hope Ins. Co. 8 Gray, Mass. 22, . . . . 1548 
 
 Lindauer D. Delaware Ins. Co. 13 Ark. 461, . . . . 510 
 
 Lindenau v. Desborough, 8 Barnew. & C. 586, 557, 570, 572, 6-16, 64 7, 654, 
 
 655, 659, 8'.i8, 2159 
 Lindsay y. .Tanson, 4 Hurlst. & N. E.xch. 699, . . . 144,969 
 
 Lindsey I'. Union Ins Co. 3 R. I. 1.5 7, .... 872,1948 
 
 Liotard v. Graves, 3 Caines, N. Y. 226, . . • ^ . • 840
 
 lii 
 
 TABLE OP CASE3. 
 
 Lippincott »'. Louisiana Ins. Co. 2 La. 399, 
 Lisfoni i. Boston Mut. F. Ins. Co. 9 Mete. Mass. 205, 
 List'tte, Tlie, 6 C. Eob. Adm. 387, 
 Little V. Louisiana Perp. Ins. Co. 7 Miss. 379, 
 Little William, The, 1 Act. Prize Cas. 141, 
 Littledale r. Dixon, 4 Bos. & P. 151, 
 V. Kenj'on, 4 Bos. & P. 151, 
 
 1004, 1950 
 
 871,881, 1481 
 
 262, 835 
 
 . 1028 
 
 841 
 
 615, 1948, 1949 
 
 615 
 
 Livermore u. Newburyport Mar. Ins. Co. 1 ]\Iass. 264 ; 2 id. 232, 1674, 16 75 
 
 Livie c. Jansen, 12 East, 648, . . . 1137,1161,1267,1743 
 
 Livingston v. Col. Ins. Co. 3 Johns. N. Y. 49, . 332, 334, 164 7, 1741 
 
 V. Delafield, 1 Johns. N. Y. 523, 
 3 Caines, N. Y. 49, 
 V. Hastie, 3 Johns. Cas. N. Y. 293, 
 V. Maryland Ins. Co. 6 Cranch, 274 ; 7 id. 506, 
 
 789, 809, 111 
 V. Ralli, 8 Ell. & B. 132 ; 30 Enjr. L. & Eq. 279, 
 V. Roosevelt, 4 Johns. N. Y. 265, . 
 Llovd V. Collett, Brown, Ch. 469, . 
 
 V. M'Masters, 7 Mart. N. s. La. 247, 
 Locke r. ^N". Am. Ins. Co. 13 Mass. 61, 
 Lockett V. Merchants' Ins. Co. 10 Rob. La. 339, 
 Lockyer v. Offley, 1 Term, 252, 
 Lodwicks V Kennedy, 5 Ohio. 436, 
 Loehiier i\ Home Ins. Co. 17 Mo. 247, 
 London A.ss. Co. v. Sainesliury, 3 Dougl. 245, 
 London Packet, The, 1 Mas. C. C. 14, 
 London R. Co. v. Glyn, 1 Ell. & E. 652, 
 Long V. Allan, or Allen, 4 Dougl. 276, 
 V. Bolton, 2 Bos. & P. 209, 
 V. Duff, 2 Bos. & P. 209^ 
 V. Gienville, 3 Barnew. & C 10, 
 r. Perm. Ins. Co. 6 Penn. St. 421, . 
 Long Pond F. Ins. Co. v. Houghton, 6 Gray, Mass, 77, 
 Loouiis V. Engle Ins. Co. 6 Gray, Mass. 396, 
 
 V. Shaw, 2 Johns. Cas. N. Y. 36, 
 Lopes V. Winter, Fortieth waite. Diet. Tit. Average, 
 Loraiue c. Thomlinson, Dougl. 564, 
 Lord V. Dall, 12 Mass. 115, 
 
 V. Ferguson, 9 N. H. 380, 
 Lorcnt V. S. Car. Ins. Co. 1 Nott & M'C. So. C. 505, 
 Lorillard v. Palmer, 15 Johns. N. Y. 14, 
 X.oring v. Gurney, 5 Pick. Mass. 15, 
 
 V. Manufacturers' Ins. Co. 8 Gray, Mass. 28, . 
 V. Neptune Ins. Co. 20 Pick. Mass. 411, . 
 V. Proctor, 26 Me. 18, . . . . 
 
 Lothian v. Henderson, 3 Bos. & P. 409, . 
 Lotiirop r. Greenfield Ins. Co. 2 All. Mass. 82, 
 Loud V. Citizens' Ins. Co. 2 Gray, Ma.ss 221, 
 Louisa IJcrtha, The, 1 Eng. L. & Eq. 665, . , 
 
 Louisa Charlotte, The, 1 Dods. A(hn. 308, 
 Louisiana, The Ship, v. Barclay, Condy's Marsh. 741 b, 
 Louisiana Ins. Co. o. New Orleans Ins. Co. 13 La. Ann. 246, 
 Louisville F. & Mar. Ins. Co. v. Coleman, 9 Dan. Ky. 147, 
 Louisville Mut. Ins. Co. v. Bland, 9 Dan. Ky. 143, . 
 Louiisbury v. Prot. Ins. Co. 8 Conn. 4o9, 
 Lovcjoy V. Augusta Ins. Co. 45 Me 4 72, . 
 
 Leveling v. Mercantile Ins. Co. 12 Pick. Mass. 348, 
 
 1948, 1949 
 
 615, 2074, 2158 
 
 16ti2, 1700 
 
 524, 560, 595, 
 
 1677, 2110, 2119 
 
 865 
 
 1852 
 
 . 771 
 
 1985 
 
 286, 426, 588, 641 
 
 980, 1003 
 
 195, 1062, 1147, 1484 
 
 1048. 1096 
 
 636, 679, 871, 874 a 
 
 2001 
 
 274 
 
 313 
 
 133, 1834,1844 
 
 632 
 
 632 
 
 2061 
 
 523, -^0 14 
 
 523 a 
 
 354 
 
 . 318, 1474, 1655 
 
 . 1336 
 
 1820, 1832, 2119 
 
 211,;i56 
 
 2124 
 
 127, 1111 
 
 16.iO 
 
 140, 2119 
 
 76, 880 
 
 1414 
 
 . 24 
 
 757, 2106, 2109 
 
 . 952 
 
 «72 
 
 . 303, 1719 
 
 245 
 
 1564 
 
 132. 1753 
 
 1775 
 
 1773, 2025, 2132 
 
 881, 1162, 2026 
 
 641 
 
 1676, 1686,1833
 
 TABLE OF CASES. 
 
 liii 
 
 Low r. Daw, 5 Binn. Penn. 595, .... 973,1059,1601 
 
 Lowell V. Columbia Ins. Co. 3 Cranch, C. C. 83, ... 1326 
 
 V. Middlesex Ins. Co. 8 Cush. Mass. 127, . . . 8 74 a 
 
 Lowrv r. Bourdieu, 1 Doujjfl. 451,4 68, ..... 1X46 
 
 V. Russell, 8 Pick. Mass. 360, .... 980, 1003 
 
 Lozano y. Janson, 2 Ell. & E. 160, .... 1109,1621 
 
 Lubbufk V. Potts, 7 East. 449, .... 220, 915, 1846 
 
 V. Roweroft, 5 Esp. 50, . , . . . 1, 1115 
 
 Lucas r. Gronina, 2 Marsh. 460 ; 7 Taunt. 164 ; 1 Stark. 391, . 1944 
 
 t'. Jefferson Ins. Co. 6 Cow. N. Y. 635, . 1250, 1256, 2001, 2146 
 
 Lucena v. Craufurd, 3 Bos. & P. 75; 5 id. 269, 174, 199, 212, 241, 321, 322, 
 
 323, 324, 382, 388, 482, 1858, 1973, 2018, 2021 
 
 . 1957 
 
 . 260, 791 
 
 1057, 1059, 1601, ]6<»8 
 
 . 2109 
 
 Luciani v. Am. Ins. Co. 2 Whart. Penn. 167, 
 Ludlow V. Bowne, 1 Johns. N. Y. 1, 
 
 V. Columbian Ins. Co. 1 Johns. N. Y. 335, 
 V. Dale, 1 Johns. Cas. N. Y. 16, . 
 Luke f. Lvde, 2 Burr. 882. . . . . . .1739 
 
 Lupton f. Cutter, 8 Pick. Mhss. 298, ..... 1797 
 
 Lutwidiie V. Grey, Abbott, Shipp. 292, .... 1445 
 
 Luxtord y. Large, 5 Carr. & P. 4 21, ..... 1420 
 
 Lycoming Ins. Co. v. Mitchell, 48 Penn. St. 367, . . . 866, 876 
 
 V. Sihollenberjrer. 44 Penn. St. 259, . . 904, 1M13 
 
 r. Schreffler, 42 Penn. St. 188 ; 44 id. 269, 1813, 2144 
 
 D. Up'legraff, 40 Penn. St. 311, . . . 1811 
 
 Lyman u. United Ins Co. 2 Johns. Ch. N. Y. 630, . . 117, 1937 
 
 Lynch «. Ddlzell, 4 Brown, Pari. Cas. 431, 
 
 V. Dunsford, 14 East, 494, 
 V. Hamilton, 3 Taunt. 37, 
 Lynn r. Bmgoyne, 13 B. Monr. Ky. 400, 
 Lyon V. Commercial Ins. Co. 2 Rob. La. 266, 
 I'. Summers, 7 Conn. 399, 
 
 78, 87, 179, 1828, 1973, \9H6, 
 
 2021, 2052 
 
 676 
 
 . 538, 608, 676 
 
 22 
 
 635, 1038, 1949 
 
 81 
 
 M. 
 
 Maanss r. Henderson, 1 East, 335, ..... 1916 
 
 Maastrom, The, 5 C. Rob. Adm. 21, . . . . 810 
 
 McAllister y. Tennessee Ins. Co 1 7 Mo. 306, .... 1162 
 Macarty o. Louisiana Ins. Co. 17 La. 366, . . . .87, 1743 
 
 McAndrew v. Bell, 1 Esp. 373; Holt, 572, . . . 286, 615, 2126 
 
 McAndrews r. Vauuhan, M^^shall, Ins. 232, .... 1767 
 
 McArthy V. Able, 5 East, 388, .... 1649, 1704, 1740 
 
 McBride o. Marine Ins. Co. 7 Johns. N. Y. 431 ; 5 id. 299, 913, 1111, 1268, 
 
 1347, 1430, 1453, 1620, 1742 
 
 McCall I'. Marine Ins. Co. 8 Cranch, 59, . . , .1116 
 
 McCargo v. Merchants' In>^. Co. 10 Rob. La. 202, 334, . . 449, 697 
 
 V. New Orleans Ins. Co. lO Rob. La. 202, . . . 1110 
 
 McCombie v. Davies, 7 East, 52; Smith, 557, . . . 1918 
 
 McConnell y. Hector, 3 Hos & P. 113, .... 149,153 
 
 McConochie v. Sun Ins. Co. 3 Bosw N. Y. 99, . . . 1666 
 
 26 N. Y. 477, .... 1684 
 
 McCorniick i;. Ferrier, Hayes & J. Exch Ir. 12, . . . 396,1960 
 
 McCrea i\ Purmont, 16 Wend. N. Y. 4 60, .... 515 
 
 McCuUoch V. Eagle Ins. Co. 1 Pick. Mass. 278, . . . .17 
 
 V. Indiana Mut. Fire Ins. Co. 8 Blackf. Ind. 50, . . 510 
 
 V. Royal Exch. Ass. Co. 3 Campb. 406, . . 1»24
 
 llv TABLE OP CASES. 
 
 Macflonald ?;. Black, 20 Ohio, 123, ..... 405 
 
 Mc'DoiiMell V. Carr, Hayes & J. Exch. Ir. 257, .... 952 
 
 McDoucrle V. Royal Exch. Ass. Co. 1 Stark. 130; 4 Maule & S. 503; 4 Caiiipb. 
 283, . . . . . . . .1758 
 
 McDowall V. Eraser, Doutrl. 24 7, . . . . . .54 6 
 
 McEvers V. Lawrence, HoHm. Ch N. Y. 173, . . . . 886 
 
 McEwen V. MontjTomery Mut. F- Ins. Co. 5 Hill, N Y. 101, . 536,^881 
 
 McFee v. South Caroliiia Ins. Co. 2 M'Cord, So. C. 503, . .1001 
 
 McGaw V. Ocean Ins. Co. 23 Pick. Mass. 405, . 1439, 1446, 1451, 1G38 
 
 M.Ginney v. Phoenix Ins. Co. 1 Wend. N. Y. 85, ... 180 
 
 McGregor 17. Horsfall, 4 Mees &W. Exch. 321, . . . 1!>«9 
 
 V. Ins. Co. of Pennsylvania, 1 Wash. C. C. 39, 134, 1238, 1744, 
 
 2120 
 
 Mclntire v. Bowne, 1 Johns. N. Y. 229, . . . 1082, 1083, 1803 
 
 Mcintosh c. Marshall, 11 Mees. & W. E.xch. 116, . . 605, 1953, 20 78 
 
 V. blade, 9 Dowl. & R. 7;i8, .... 2007 
 
 Mclver y. Henderson, 4 Maule & S. 576, . . . . .1704 
 
 V. Humble, 16 East, 16'>, . . . . f. 2124 
 
 McKee v. Phoenix Ins. Co. 28 Mo. 383, .... 354, 505 
 
 Mackenzie w. Shedden, 2 Campb. 431, . . . 332,336,975 
 
 Mackey v. lihinelander, 1 Johns. Cas. N. Y. 408^ . . 620, 2052 
 
 Mackie v. Pleasants, 2 Binn. Penn. 363, .... 758 
 
 McKim y. Phoenix Ins. Co. 2 Wash. C. C. 89, . 368,1182,1191,1198, 
 
 1241, 1258, 1262 
 M'Kintire v Bowne, 1 Johns. N. Y. 229, . . 1024, 1082, 1688, 1803 
 
 Mackrell v. Siniond, 2 Chitt. 666, . . . . . .1652 
 
 McEanahan v. Universal Ins. Co. 1 Pet. 170, . 286, 534, 559, 615, 
 
 616, 720, 726, 733, 1944, 1950, 2112 
 M'Laren I', Hartford Fire Ins. Co. 5 N. Y. 151, . . . 2123 
 
 McLaiiLddin v. Washinjiton County Mut. Ins. Co. 23 Wend. N. Y. 525, 2147 
 
 McLellan v. Maine F. & M. Ins. Co. 12 Mass. 246, . 818, 823, 1688, 1815 
 McMahon v. Portsmouth Ins. Co 22 N. H. 15, . . . . 881 
 
 M'Masters v. West Chester Ins. Co. 25 Weud. N. Y. 374, . . 1813 
 
 McMasters >'. Schoolbred, 1 Esp. 237, . . . . 1590, 2023 
 
 McMillan v. Union In.s. Co. Rice, So. C. 249, .... 713, 726 
 
 McNair y. Coulter, 4 Brown, Pari. Cas. 450, . . . .1183 
 
 Macomber v. Howard F. Ins. Co. 7 Gray, Mass. 257, . . . 883 
 
 V. Parker, 13 Pick. Mass. 175, . . . . 132, 133 
 
 Mactire's Adm'rs y. Frith, 6 Wend N. Y. 104, . . . . 17 
 
 Macy j;. Mutual Ins. Co. 12 Grav, Mass. 497, . . . .727 
 
 V. Whahns Ins. Co. 9 Mete. Mass. 354, . . 136, 144, 497, 1684 
 
 Madison, The, Edw. Adm. 224, ...... 825 
 
 MadoTina delle Gracie, The. 4 C. Rob. Adm. 195, . . . 226 
 
 Mii'zalhaens v. Busher, 4 Campb. 54, . . . . . 2004 
 
 Maggrath v. Church, 1 Caines, N. Y. 196, 1286, 1348, 1385, 1386, 1545, 1617, 
 
 1766 
 Magnus V. Buttemer, 11 C. B. 876 ; 9 Eng. L. & Eq. 461, . . 1087 
 
 Magoun v. New England Mar. Ins. Co. 1 Stor. C. C. 157, 1098 a, 1107, 1137, 
 
 1154 
 Maine Ins. Co. v. Neal, 50 Me. 301, . . . . .523 a 
 
 Maisonnaire v. Keating, 2 Gall. C. C. 325, .... 272, 273 
 Malleable Iron Works v. Phoenix Ins. Co. 25 Conn. 465, . . . 1876 
 
 Maley V. Shattuck, 3 Cranch, 458, . . . . .2109 
 
 Mallough V. Barber. 4 Campb. 150, .... 1884, 1894 
 
 Man V. Shitfner, 2 East, 523, ..... 1915, 1921 
 
 Manchester, The, 2 Act. Prize Cas. 60, . . . . 830, 836 
 
 Mandeviile v. Welch, 5 Wheat. 277, . . . . . 85
 
 TABLE OP CASES. 
 
 Manhattan Co. v. Ledvard, 1 Caines, N. Y. 192, 
 
 Manilla, The, Edw. Adm 1, . 
 
 Manly, Tlie. 1 Dods. Adm. 257, 
 
 Manly *-. United M. & F. Ins. Co. 9 Mass. 85. 
 
 Mann ". Forester, 4 Campb. GO, 
 
 Mannino; c. (li«t, Marshall. Ins. 367, 
 
 . 2021 
 224 
 
 249 
 
 116, 918. 928, 992 
 
 1870, 1916 
 
 782 
 
 V. Irving, 1 C. B. 168 ; 2 id. 784 ; 6 id. 319 ; 1 Hou. L. Cas. 817, 3, 
 
 1533, 1538 
 V. Newnham, Millar, Ins. 303; 3 Dougl. 130; Park, Ins 260, 1526, 
 
 1547, 1601. 1766 
 Mansfield r. Maitland, 4 Barnew. & Ahl. 582, 
 Mansnr /'. New England Ins. Co. 12 Gray, Mass. 520, 
 Marblehead Ins. Co. v. Hayward. 3 Gray, Mass. 208, 
 
 V. Underwood. 3 Gray. Mass. 210, 
 Marcardier r. Chesapeake Ins. Co. 8 Cranch, 39, 1070, 1 
 
 March, Earl of, v. Pigot, 5 Burr. 2802, 
 
 Marchesseau v. Merchants' Ins. Co. 1 Rob. La. 438, 
 
 Marchington v. Vernon, 1 Bos. & P. 101, n., 
 
 Many o. Sun Ins. Co. 14 La. Ann. 264, 
 
 Marden v. South Carolina Ins. Co. 1 Const. So. C. 200 
 
 Margaiette, The, 1 Act Prize Cas. 333, 
 
 Maria, The, 1 C. Rob. Adm. 340, . 
 
 5 C. Rob. Adm. 3(;5, 
 Maria Jane. The, 1 Eng. L. & Ecj. 658, 
 Marianna, The, 6 C. Rob. Adm. 24, . 
 Marianna Flora, The, 11 Wheat. 43, 
 Mariatigue v. Louisiana State Ins. Co. 8 La. 68, 
 Marigny c. Home Ins. Co. 13 La. Ann. 338, 
 Marine Ins. Co. v. Straas, 1 Mumf. Va. 408, . 
 V. Swanton, 4 9 Me. 448, . 
 V United Ins. Co. 9 Johns. N. Y. 190, 
 Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332, 
 
 6 Cranch, 206, 
 V. Tucker, 3 Cranch, 357, 
 V. Wilson, 3 Cranch, 187, 
 V. Young. 1 Cranch, 332, 
 Marion v. Great Republic Ins. Co. 33 Mo. 148, 
 Marryait i'. Wilson, 8 Term, 31 ; 7 id. 269; 2 Esp. 546 ; 
 Mars, The, 6 C. Rob. Adm. 79, . 
 
 8 Cranch, 417, . 
 Marsden j;. Gray, 6 East, 564, 
 V. Reid, 3 East, 572, 
 Marsh v. Robin.son, 4 Esp. 98, 
 Marshall v. Columbian Ins. Co. 27 N. II. 157, 
 
 V. Delaware Ins. Co. 4 Cranch, 202 ; 2 Wash. C. C. 54, 
 IK Nashville Ins. Co. T Humphr. Tenn. 118,. 
 V. Parker, 2 Canipb. 69j . 
 V. Union Ins. Co. 2 Wash. C. C. 35 7, 
 Marsham v. Dutrey, Sel. Cli. Cas. 58, 
 Martin v. Crockett, 14 East, 465, 
 
 V. Delaware Ins. Co. 2 Wash. C. C. 254, 
 V. Fishing Ins. Co. 20 Pick. Mass. 389, 
 
 V. Salem Marine Ins. Co. 2 Mass. 420, 
 V. Sitwell, 1 Show. 156, 
 Mary, The, (Folger,) 5 C. Rob. Adm. 200, 
 
 338, 1234 
 
 972 
 
 . 523 a 
 
 523 
 
 2, 1083, 1608, 1615, 
 
 1769 
 
 731, 925 
 
 2144 
 
 . 1965 
 
 2132 
 
 862, 1002 
 
 . 222, 281 
 
 818, 819, 822 
 
 830 
 
 1719 
 
 . 261, 263 
 
 818 
 
 . 195, 1147 
 
 864. 880 
 
 1010, 2095 
 
 . 523 a 
 
 1741 
 
 . 1183 
 
 2028 
 
 992, 1001, 1531, 1819 
 
 849, 1.S44 
 
 1955 
 
 888 
 
 161 
 
 818 
 
 195 
 
 2014, 2025 
 
 13, 554, 992, 1010 
 
 265, 1968, 1970, 2124, 2126 
 
 640 
 
 1622, 1662 
 
 1106 
 
 1182, 2093, 2109, 2129, 2131 
 
 624,678,2112 
 
 . 1299 
 
 1491, 1573, 1623. 1682 
 
 . 1003 
 
 760, 866, 928, 992, 1162, 1224, 
 
 1X03, 2152 
 
 975, 1101. 1347 
 
 1819, 1994 
 
 254 
 
 1 Bos. k P. 4 30,
 
 TABLE OF CASES. 
 
 Mary, The, 9 Cranch, 126; 1 Gall. C. C. 620, 
 
 Mary Ann, The, 4 Notes of Cas. in Admiralty, 376, 
 
 Mary Ford, The, 3 Dall. 18H, . 
 
 Mary, The Sloop, Paine, C. C. 671, 
 
 Maryland Ins. Co. v. Bosley, 9 (Jill & J. Md. 337, 
 V. Bossiere, 9 Gill & J. Md. 121, 
 V. Graham, 3 Uarr. & J. Md. 62, 
 
 226, 262, 1568, 1755 a, 2104, 
 
 2106 
 
 . 523 b, 917 a 
 
 321 
 
 . 1847 b, 1940 
 
 1774 
 
 70, 931 
 
 1956, 1959, 1964, 2011, 
 
 2028 
 
 . 983 
 
 1953 
 
 749, 831, 837, 2109 
 
 V. Le Roy, 7 Cranch, 26, 
 V, Ruden's Admr. 6 Cranch, 338, . 
 V. Woods, 6 Cranch, 29, 
 Maryland and Phoenix Ins. Co. v. Bathurst, 5 Gill & J. Md. 159, . 550, 56 7, 
 
 593, 617, 625, 631, 1044, 1590, 167(», 1694 
 
 Mason r. Franklin F. Ins. Co. 12 Gill & J. Md. 468, . . 141,491,493 
 
 V. Harvey, 8 Exch. 819 ; 20 Eng. L. & Eq. 541, . . 886 
 
 V. i.,ickbarrow, 2 Term, 63, . . . . . .2126 
 
 V. Sainesbury, 3 Doujjl. 61, ..... 2001 
 
 V. Ship Biaireau, 2 Cranch, 240, ..... 1028 
 
 V. Skiirray, Park, Ins. 191 ; Marshall. Ins. 226, 133, 144, 663, 1764, 1767 
 Masters «;. Madison Mut. Ins. Co. 11 Barb. ISr. Y. 624, . 641, 872 a, 874 a. 
 
 V. Miller, 4 Term, 320, . 
 Matchless, The, 1 Ha.sg. Adm. 97, . 
 Matthews v. Ilougl.ton, 10 Me. 420, 
 
 V. Howard Ins. Co. 13 Barb. N. Y. 234 ; 11 N. Y. 9, 
 Matthie v. Potts, 3 Bos. & P. 23, . 
 
 Maury v. Shedden, 10 East, 540, .... 
 
 Mavor V. Pyiie, 2 Carr. & P. 91 ; 3 Bingh. 285, . 
 
 V. Simeon, 3 Taunt. 49 7, n., .... 
 Maxwell IK Robinson, 1 Johns. N. Y. 333, 
 May V. Babcock, 4 Ohio, 334, .... 
 
 V. Christie, 1 Holt, 67, 
 V. Delaware Ins. Co. 19 Penn. St. 312, . 
 Mayall v. Mitlbrd, 1 Nev. & P. 732; 6 Ad. & E. 670, 
 Maydew v. Forrester, 5 Taunt. 615, .... 
 
 V. S.ott, 3 Campb. 205, .... 
 Maynard c. Rhodes, 1 Carr. & P. 360; 5 Dowl. & R. 266, 
 
 Mayne v. Walter, Don^l. 79, ... . 
 
 Mayo V. M,iine F. & M. Ins. Co. 4 Mass. 374, 
 
 12 Mass. 2.i9, 
 Mayor of New York v. Lord, 1 7 Wend. N. Y. 285, . 
 Mead v. Davison, 3 Ad. & E. 303, 
 
 V. Northwestern Ins. Co. 7 N. Y. 530, . 
 Mechanics' Bank v. Merchants' Bank, 6 Mete. Mass. 13, . 
 Meech v. Philadelphia F. & I. Nav. Co. 3 Whart. Penn. 4 73, 
 
 I. Robinson, 4 Whart. Penn. 360, . 
 
 Mellen v. Hamilton F. Ins. Co. 17 N. Y. 609 ; 5 Du. N. Y. 101, 108, 881, 1876 
 
 V. National Ins. Co. 1 Hall, N. Y. 452, . 116, 337, 480, 2119 
 
 Mellick y. Peterson, 2 Wash. C. C. 31, . . . . .515 
 
 Mellish V. Allnutt, 2 Mauie & S. 106, .... 938, 939, 2061 
 
 V. Andrews, 5 Taunt. 496 ; 15 East, 13; 2 Maule & S. 271, . 1491, 
 
 1669,1674 
 V. Bell, 15 East, 4, . . . . . .2021 
 
 D. Stanilbrth, 3 Taunt. 499, ..... 1160 
 
 Mellon f. Bucks, 5 Mart. N. s. La. 371, ..... 1710 
 
 880, 1876 
 
 113 
 
 153 
 
 81 
 
 1137 a 
 
 970, 2022 
 
 914, 1518 
 
 14 
 
 613 
 
 . 960 
 
 758 
 
 . 1815 
 
 1742 
 
 872 
 
 1892, 1896 
 
 . 1160 
 
 570, 648, 6.51, 653, 
 
 654, 893. 898 
 
 630, 820, 2109 
 
 1453 
 
 . 1201 
 
 1484 
 
 13, 925 
 
 638, 883, 2112 a 
 
 . 1884 
 
 1240 
 
 1305, 1313, 1315
 
 TABLE OF CASES. 
 
 Ivii 
 
 Mellon V. Louisiana State Ins. Co. 5 Mart. N. s. La. 563, 
 Mennett v. Bon ham, 15 East, 4 7 7, 
 Mercantile Lis. Co. v. Calebs, 20 N. Y. 173, . 
 
 V. State Lis. Co. 25 Barb. N. Y. 319, 
 Merchants' Ins. Co. v. Algeo, 32 Penn. St. 330, 
 
 V. Butler, 20 I\M. 41, . 
 
 V. Clapp, 1 1 Pick. Mass. f^G, 
 
 V. Shiiiito, 15 Oliio, St. 559, . 
 Mercliants' Ins. Co. of Alexandria u. Tucker, 3 Cranch, 357, 
 Merchants' Mut. Ins. Co. v. Rav, 1 Sandf. N. Y. 184, 
 
 y. Wilson, 2 M.l. 217, 
 Mercurius, The, (Muncher,) 1 C Rob. Adni. 2S8, 
 
 (Gerdes,) 1 C. Rob. Adm. 80, 
 Meretony v. Dunlop, 1 Term, 260, 
 
 Merriam'r. Middlese.x Mut. F. Ins. Co. 21 Pick. Mass. 162, 
 Merrificld v. Baker, 9 All. Mass. 29. 
 Merrill v. Boviston Ins. Co. 3 All. Mass. 24 7, 
 Merrimack, The, 8 Cranch, 317, . 
 Merry o. Prince, 2 Mass. 176, . 
 Mestaer v. Gillespie, 11 Ves. Ch. 621, 
 Metcalfe v. Parry, 4 Campb. 123, 
 Me.xbornngh v. Bower. 7 Beav. Rolls, 127, 
 Mey V. South Carolina Ins. Co. 3 Brev. So. C. 329, 
 Meyer v. Gresrson, Marshall, Ins. 658, 676; 3 Doujj 
 Michael v. Gillespy, 2 C. B. N. s. 627, 
 
 V. Tredwin, 1 7 C B. 551 ; 33 Eng. L. & E([. 325, 
 Mickles v. Rochester Citv Bank, 11 Paige, Ch. N. Y. 118, 
 Middlewood '■. Blakes, 7" Term, 162, . . 58 
 
 Mildmay ;'. Folgliam. 3 Ves. Ch. 472, . 
 Miles V. Connecticut L. Ins. Co. 3 Gray, Mass. 580, 
 
 V. Sheward, 8 East, 7, . 
 Miliary. Ilcinrick, 4 Campb. 155, .... 
 
 V. Russell, 1 Bay, So C 309, . 
 Millaudon v. Atlantic Ins. Co. 8 La. 557, . 
 
 V. New Orleans Ins. Co. 11 Mart. N. s La. 602, 
 4 La Ann. 15, 
 
 , 1669, 1951 
 
 215 
 
 1710 
 
 122 
 
 98^ 
 
 733, 1634 
 
 721, 726, 996 
 
 460 
 
 1951 
 
 523 
 
 2174 
 
 284, 791 
 
 826, 829, 836 
 
 . 1U8 
 
 . 866, 1036 
 
 184 7 a 
 
 992 
 
 227, 794 
 
 . Ill, 498 
 
 3.! 6, 2124 
 
 210, 1005, 1007, 1016, 1049 
 
 . 865 
 
 946 
 
 . 1834 
 
 341 
 
 727 
 
 351, 388, 400 
 
 602, 663. 992, 1001 
 
 . 104, 1977 
 
 402, 
 
 643 
 
 2014 
 . 2110 
 
 1023 
 208, 489, 490 
 
 2161 
 . 1097 
 
 V. Western M. & F. Ins. Co. 9 La. 32, 
 
 Miller t). Depeyster, 2 Caines, N. Y. 301, . 
 
 V. Eagle L. Ins. Co. 2 E. D. Smith, N. Y. 268, 
 r. South Carolina Ins. Co. 2 M'Cord, So. C. 336, . 
 V. Tetherington, 6 Ilnrlst. & N. E.xch. 278, 
 r. Woodtall, 8 Ell. & B. 4 93, 
 Milles V. Fletcher, Dowj.\. '219, 
 
 Millikeii V. Kidd, 4 Drur. & Warr. Ch. Ir. 274, . 
 Mills V. Campbell, 2 Younge & C. 389, 
 
 V. Lailbrooke, 13 Eng. L. J. N. s. Com. PI. 125, 
 r. Roebuck, Marshall, Ins. 3d ed. 124 ; Park, lus. 335, 
 Milnes i: Gery, 14 Ves. Ch. 400, .... 
 Milteiibergher v. Beacom, 9 Penn St. 198, 
 Milward v. Ilallett, 2 Caines, N. Y. 7 7, . 
 
 V. Hibbert, 3 Q. B. 120, 
 Miner v. Taggart, 3 Binn. Penn. 204, 
 Minerva, The, 3 C. Rob. Adm. 229, . 
 6 C. Rob. Adm. 396, 
 E<lvv. Ailm. 375, 
 Miuett V. Forester, 4 Taunt. 541, . 
 
 361, 1213, 1214, 1245, 1246, 
 1251, 1482, 1S38 
 . 1732 
 354, 1813 
 . 20 79 
 1282 
 . 1740 
 . 1531, 1569, 1951 
 414 
 
 313 
 
 460, 985 
 1183 
 
 1979 
 
 . 1960 
 
 699, 731 
 
 865 
 
 402, 2084 
 
 1564, 1591 
 
 128-.', 2031 
 
 1892, 1904 
 
 2 78 
 
 . 257 
 
 249 
 
 507, 1924
 
 Iviii 
 
 TABLE OP CASES. 
 
 Minnett v. Anderson, Park, Ins. 55 ; Pcake, 211, 
 Minstrel I5oy, The, 7 Notes of Adni. Cas. 341, 
 Minturn v. Columbian Ins. Co. 10 Johns. N. Y. 75, 
 
 V. Warren Ins. Co. 2 All. Mass. 86, 
 Mississippi Ins. Co. v. Injiram, 34 Miss. 215, . 
 
 V. Stanton, 10 Miss. 340, 
 Missouri Ins. Co. v. Spore, 23 Mo. 26, ... 
 
 Mitchell V. Edie, 1 Term, 608, . . 1492, 1497, 1669, 1674 
 
 V. (ilennie, 1 St,irk. 230, .... 
 
 V. Harris, 2 Ves. Ch. 129, 
 
 V. New England Ins. Co. 6 Pick. Mass. 117, 
 
 V. Union Ins. Co. 45 Me. 104, .... 
 Moadinjrer r. Mechanics' Ins. Co. 2 Hall, N. Y. 490, . 
 Mobile Ins. Co. v. McMillan, 2 7 Ala. N. s. 77, . 
 
 1148 
 
 . 1568 
 
 368, 1191, 1201, 1235, 1262 
 
 . ' . 340 
 
 1481 
 
 752 
 
 523 a 
 
 1675, 1732 
 
 1726 
 
 . 865 
 
 2096 
 
 354 
 
 489 
 
 125, 132 
 
 31 Ala. N. s. 711, . . 9, 917 a, 938 
 
 Moffat y. Ward. 4 Dougl. 31, n., . . . . .964 
 
 Moir V. Royal Exch. Ass. Co. 4 Campb. 84 ; 6 Taunt. 241 ; 3 Maule & S. 461, 
 
 777 
 Moilison V. Staples, Park, Ins. 640, n., ... 
 
 Molloy t'. French, 13 Ir. Ch. 261, . 
 Money v. Union Ins. Co. 4 M'Cord, So. C. 511, 
 Monongaiiela Iiis. Co. i\ Chester, 43 Penn. St. 491, 
 Monro, Ex parte. Buck, Bank. ;i03, .... 
 Montjfomery v. Eixgington, 3 Term, 362, . 
 
 i\ Fn-emen's Ins. Co. 16 B. Monr. Ky. 427, 
 V. Ship Abby Pratt, 6 La. Ann. 410,' 
 V. United States Ins. Co. 4 Binn. 445, . 
 Montoya v. London Ass. Co. 6 Exch. 451 ; 4 Eng. L. & Eq. 500, 
 Montreal, The, 24 Eng. L. & Eq. 580, 
 Moody V. Jones, 4 Barnew. & C. 394 ; 6 Dowl. & R. 749, 
 V. Surridge, 2 Esp. <i33 ; 1 Park, Ins. 179, . 
 V. Webster, 3 Pick. Mass. 424, 
 
 Moore v. Morgue, Cowp. 4 79, 
 
 V. Perpetual Jns. Co. 1« Mo. 98, 
 
 V. Protection Ins. Co. 29 Me. 97, 
 
 V. Taylor, 1 Ad. & E. 25, . 
 
 V. Wuolsey, 4 Ell. & B. 243 ; 28 Eng, 
 Morck V. Abel, 3 Bos. & P. 35, 
 Mordecai i'. Fireman's Ins. Co. 12 Rich. So. C. 512, 
 
 211 
 
 79 
 
 571 
 
 . 1106 
 
 79 
 
 333, 1204 
 
 1162 
 
 . 1099 
 
 1674 
 
 . 1138 
 
 14 20 
 
 1142, 1452 
 
 1764 
 
 19-23, 1924 
 
 1897, 1899 
 
 125, 1045, 1086 
 
 880, 883, 884, 888, 2099, 2144 
 
 963, 1963 
 
 & Eq. 248, . 
 
 Morean v. United States Ins. Co. 3 Wash. C. C. 256 ; 1 Wheat. 219, 
 
 Morgan v. Bliss, 2 Mass. Ill, 
 
 V. Mather, 2 Ves. Jr. Ch. 18, . 
 V. OsvvahL 3 Taunt. 554, . 
 
 Morish V. Foot, 8 Taunt. 457, . 
 
 Morn V. Slue, 1 Ventr. 190, 238; 3 Kebl. 72; 
 
 896, 917 a 
 
 210, 1846 
 
 1608, 1732 
 
 1615, 1766, 
 
 1768, 1777 
 
 540 
 
 9 
 
 245, 248 
 
 2052 
 
 T. Raym. 220; 1 Dav. 12, 
 
 2006 
 
 Morrell v. Irving Ins. Co. 33 N. Y". 42^1, . 
 
 V. Trenton Ins Co. 10 Cush. Mass. 282, 
 Morrice v. Dillon, 2 Selwyn, N. P. 992, . 
 Morris v. Cleasby, 4 Maule & S. 566, . 
 
 V. Robinson, 3 Barnew & C. 196 ; 5 Dowl. & R. 35, 
 r. Sunnnerl, 2 Wash. C. C. 203, 
 Morrison r. Muspratt, 4 Bingh. 60, . . . 
 
 V. Noorman. Benecke, 259, London ed. 1824, 
 V Parsons, 2 Taunt. 407, 
 Morrison's Admr. v. Tennessee Ins. Co. 18 Mo. 262, . 
 
 1754, 1983 
 
 353 
 
 780 
 
 1853 
 
 . 1625 
 
 1888, 1904 
 
 648, 893 
 
 1939 
 
 . 1740 
 
 880,1712
 
 TABLE OF CASES. lix 
 
 Morse V. Sun Ins. Co. 1 Du. N. Y. 159, ..... 1046 
 
 Morton y. Burn, 7 Ad. & E. 19, . . . . . 1956 
 
 Moses i;. Columbian Iris. Co. 6 Johns. N. Y. 219, . . 160S, 1610 
 
 V. Delaware Ins. Co. 1 Wash. C. C. 385 .. . 57 7, 2112 
 
 V. Pratt, 4 Campb. 297, . . . . 333, 1820 
 
 Moss V. Bvron, 6 Term, 379, .... 1029, 1069, 1074 
 
 V. Smith, 19 Eng. Law J. n. s. ; Com. PI. 226, . . .1767 
 
 Motley I'. Manufacturers' Ins. Co. 29 Me. 33 7, . . 1962,1971 
 
 Motteux V. London Assurance Co. 1 Atk. Ch. 545, 117, 710, 720, 935, 1018, 
 
 1937, 1939 
 Mount ?'. Harrison, 4 Binjrh. 388, . . . . . 1501,1648 
 
 r. Larkins, 8 Binjrh. 108, .... 690,995,2129 
 
 r. Waite, 7 Johns. N. Y. 434, . _. . . .211 
 
 Mount Vernon Ins. Co. v. Summit Ins. Co. 10 Ohio, St. 347, . 880 
 
 Mowry r. Charleston Ins. Co. 6 Rich. So. C. 146, . . 1569.1700 
 
 Moxon V. Atkins, 3 Campb. 200, ..... 144, 928 
 
 Muir V. Fleming, Dowl. & R. N. c. 29, . . . . . 1909 
 
 r. United Ins. Co. 1 Caines, N. Y. 54, . . . 14 65, 1666 
 
 Muller r. Hartshorn, 3 Bos. & P. 556, .... 2061,2062 
 
 v. Thomson, 2 Campb. 610, . . . . .217,759 
 
 Mnllett r. Shedden, 13 East. 304, . . . . 1497,1670,1674 
 
 ISIulrey v. Shawmut Ins. Co. 4 All. Mass. 116, . . . 904 
 
 Muuitbrd v. Church, 1 Johns. Cas. N. Y. 147, .... 1662 
 
 V. Commercial Ins. Co. 5 Johns. jST. Y. 262, . 1138, 1462 
 
 t;. Hallett, 1 Johns. N. Y. 433, 120, 130, 318. 462, 1209, 1474, 1503, 
 
 1657 
 
 V. Phoenix Ins. Co. 7 Johns. N. Y. 449, . . . 1 158 
 
 Munroe v. Vaudam, Park, Ins. 133, . . . 724, 725, 2152 
 
 Munson v. New England Mar. Ins. Co. 4 Mass. 88, . 1705, 1802, 1965 
 
 Murdock v. Chenango County Mut. Ins. Co. 2 N. Y. 210, 71, 185, 873, 
 
 904, 1032, 1964, 2123 
 V. Potts, Marshall, Ins 326, . . . . .473 
 
 Murgatroid v. Crawibrd, 3 Uall. 491, ..... 524, 571 
 
 Murphy u. Bell, 4 Bingh. 567, . ..... 7 
 
 V. People's Ins. Co. 7 All. Mass. 239, .... 904 
 
 Murray v. Alsop, 3 Johns. Cas. N. Y. 4 7, . . . .671 
 
 V. Columbian Ins. Co. 4 Johns. N. Y. 443, . . . 931 
 
 11 Johns. N. Y. 302, 392, 416, 447, 931, 939 
 
 r. Hatch, 6 Mass. 465, . . 1682,1766,1767,1771,2119 
 
 V. Ins. Co. of Pennsylvania, 2 Wash. C. C. 186, 368, 1191, 1258, 1453, 
 
 1505 
 
 r. United Ins. Co. 2 Johns. Cas. N. Y. 263, . . . 1662 
 
 2 Johns. Cas. N. Y. 168, . 627,757,790,1844 
 
 Mussey v. Atlas Ins. Co. 14 N. Y. 79, . . . . . 881 
 
 Mutual Benefit L. Insurance Co. D. Davis, 12 N. Y. 569, . . 510 
 
 V. Fuller, 14 Barb. N. Y. 373, . . 523 a 
 
 V. Jarvis, 22 Conn. 133, . . 523 a 
 
 Mutual Fire Ins. Co. v. Marseilles, 6 111. 237, . . . 1947, 1950 
 
 Mutuallns. Co. y. Deale, 18 Md 26, . 350,422,640,641,1949,1955 
 
 V. Hamilton, 5 Sneed, Tenn. 269, ... 79 
 
 Mutual Marine Ins. Co. v. Munro, 7 Gray, Mass. 246, . . . 497 
 
 Mutual Safety Ins. Co. v. Cargo of Ship George, 01c. Dist. Ct. 89, 1315, 1375, 
 
 1490, 1707 
 
 Mutual Safety Ins. Co. v. Cohen, 3 Gill & J. Md. 45, . . . 1497 
 
 V. Hone, 2 N. Y. 235, 122, 499, 1264, 1752, 1753 
 
 Myer r. Vander Deyl, Abbott, Shipp. 355. . . . • . 1282 
 
 Myers v. Girard Ins. Co. 26 Penn. St. 192, . . . 695, 725, 753
 
 Ix TABLE OF CASES. 
 
 Mvers V. Kevstone Ins. Co. 27 Peiin. St. 268, . . 18, 1904, 1071 
 
 Mygatt V. New Yoik Ins. Co. 21 N. Y. 52, . . . . 523 a 
 
 N. 
 
 Naiade, The, 4 C. Rob. Adm. 251, . . . . . .165 
 
 Nancy, The, 3 C. Rob. Adm. 122, .... 222, 281 
 
 1 Act. I'rize Cas. 57, . . . ... .826 
 
 Nantes v. Thompson, 2 Enst, 385, .... 1109, 2018 
 
 Nash V. Union Mut. Ins. Co. 43 Me. 343, .... 510, 904 
 
 Natchez Ins. Co. v. Buckner, 4 How. 63, 
 
 V. Stanton, 10 Miss. 340, . 1002, 1050, 1052. 1474 
 
 Nathaniel Hooper, The, 3 Sunin. C. C. 542, 1291, 1294, 1301, 1318, 1386 
 
 National Ins. Co. v. Crane, 16 Md. 260, . . . 91, 131, 904 
 
 V. Pursell, 10 All. Mass. 231, . . . .510 
 
 Natta V. Mutual Security Ins. Co 2 Sandf. N. Y. 490, . . .424 
 
 Nayade, Tiie, 4 C. Rob. Adai. 251, ..... 165 
 
 Naylor c. Palmer, 8 E.xch. 730; 22 Eng. L. & Eq. 573, . . 1106 
 
 V Taylor, 9 Barnew. & C. 718, . 840, 1051, 1129, 1594, 1663, 1704 
 
 Neal U.Irving, 1 Esp. 61, ...... 2114 
 
 Neale, Adm'r of Whittle v. Reid, 1 Barnew. & C. 657 ; 3 Dowl. and R. 158, 
 
 296 
 Neely v. Onondaga County Mut. Ins. Co. 7 Hill, N. Y. 49, . 523, 523 a, 904 
 
 Negotie en Zeenvaart, 1 C. Rob. Adm. Ill, . . . . 797 
 
 Neilson v. Columbian Ins. Co. 3 Caines, N. Y. 108 ; 1 Johns. N. Y. 301, 1000, 
 
 1767, 1951, 2147 
 r. Commercial Ins. Co. 3 Du. N. Y. 455, . . . 1162 
 
 r. De la Cour, 2 Esp. 619, ..... 960 
 
 u. Louisiana Ins. Co. 5 Mart. N. s. La. 289, . . 593,1765 
 
 Nelson v. Salvador, Uans. & L. Cas. 219; 1 Mood. & M. 309, . . 773 
 
 V. Suffolk Ins. Co. 8 Cush. Mass. 477, . . . 1137 a 
 
 Nelson, The, 3 Hagg. Adm. 107, ..... 1568 
 
 Neptune, The, 1 Haaa. Adm. 227, . . . 212, 1719 
 
 Neptuie Ins. Co. ?'. Robinson, 11 Cill & J. Md. 256, . . .537 
 
 Neptunus, The, (Hempel) 2 C Rob. Adm. 110, . . . 271,829 
 
 (Kuyp.) 1 C. Rob. Adin. 170 ; 3 id. 173, . 829, 830, 836 
 
 Nereide, The, 9 Cranch, 388, ..... 824, 2106 
 
 Nesbitt V. Lushington, 4 Term, 783, . . 1106, 1110, 1335, 1761, 2022 
 
 Neutralitet, The, (Burning), 3 C. Hob. Adm. 295, . . .216 
 
 (Zeverver), 6 C. Rob. Adm. 30, ... 841 
 
 Neve V. Columbia Ins. Co. 2 M'MulI. So. C. 220, .... 1946 
 
 Neville V. Merchants' Manuf. Ins. Co. of Cincinnati, 17 Ohio, 192, . 15, 1936 
 Nevins V. Rockingham Ins. Co. 25 N. H. 22, . . 876, 1971, 1983 
 
 Newbury y. Colv in, 7 Bingh. 190, ..... 1083 
 
 Nevvburypoi-t Ins. Co. v. Oliver, 8 Mass. 402, .... 1815 
 
 Newbv y. Reed, 1 VV. Blackst. 416, . 361, 1099, 1837, 1838, 1961, 2139, 2146 
 Newcastle F. Ins. Co. v. McMorran, 3 Dow, Pari. Cas. 255, 637, 755, 762, 870 
 Newell V. Griswold, 6 Johns. N. Y. 45, . . . . • 2147 
 
 j;. Norton, 3 Wall. 25 7, . ..... 1731 
 
 New Eno'land Ins. Co. v. Belknap, 9 Cush. Mass. 140, . . 510, 523 a 
 
 V. Brig Sarah Ann, 13 Pet. 387, . . 1578 
 
 v. Butler, 34 Me. 451, . . 110, 413 a, 510, 698 
 
 V. Wetmore, 32 111. 221, . . • 1973 
 
 Newhall r. Vargas, 13 Me. 93; 15 id. 314,. . . . .197 
 
 New Hampslwre Ins. Co. v. Rand, 24 N. H. 428, . . . 523 a 
 
 Newlaud v. Horseman, 1 Veru. Ch. 20, . . . . . 2105
 
 TABLE OF CASES. Ixi 
 
 Newley v. Reed, 1 W. Blackst. 416, 361, 1099, 1837, 1838, 1961, 2139, 2146 
 
 Newlin V. Insurance Co. 20 Penn. St. 312, . . . 17 73, 2174 
 
 Newman i'. Cazalet, Marshall, Ins. 76 ; Park, Ins. 900, . 133, 1414, 1416 
 
 f. Walters, 3 Bos. & P. 612, ..... 1.^59 
 
 Newmark i'. Liverpool Ins. Co. 30 Mo. 160, . . . 1098 a, 2144 
 
 Newson's Adni'rs v. Douglas, 7 Harr. & J. Md. 417, . . 383, 385, 1966 
 
 New York Bowery Ins. Co. r. N. Y. F. Ins. Co. 17 Wend. N. Y. 359, 377,498, 
 
 546,587, 1807, 1982 
 
 New York Equity Fire Ins. Co. v. Langdon, 6 Wend. N. Y. 623, . . 883 
 
 New York Firemen's Ins. Co. t'. Delcvan, 8 Paige, Ch. N. Y. 419, . 887, 2081 
 
 V. De W^olf, 2 Cow. N. Y. 56, . 600, 2109 
 
 V. Ely, 2 Cow. N. Y. 678, . . 11 
 
 V. Lawrence, 14 Johns. N. Y. 46, . . 966 
 
 V. Sturges, 2 Cow. N. Y. 664, . . 11 
 
 V. Walden, 12 Johns. N. Y. 513, . 524, 1948 
 
 New York Gas Light Co. v. Mechanics' F. Ins. Co. 2 Hall, N. Y. 108, 639, 2119 
 
 New York Ins. Co. v. National Ins. Co. 20 Barb. N. Y. 468, 71, 505, 1806, 2145 
 
 V. Roberts, 4 Du. N. Y. 141, . . . .451 
 
 V. Robinson, 1 Johns. N. Y. 616, . . .311, 1658 
 
 V. Roulet, 24 Wend. N. Y. 505, . . 1713, 1939 
 
 V. Thomas, 3 Johns. Cas. N. Y. 1, . . 133, 145, 1839 
 
 New York L. Ins. Co. v. Flack, 3 Md. 341, . . . . 76, 79 
 
 New York State Mar. Ins. Co. v. Protection Ins. Co. 1 Stor. C. C. 458, 2045, 
 
 2145, 2173 
 Niagara F. Ins. Co. v. De Graff, 12 Mich. 124, . . . 883, 906 
 
 Niagara Ins. Co. v. Seale, 2 Hall, N. Y. 22, .... 950 
 
 Niblo V. North American Fire Ins. Co. 1 Sandf. N. Y. 551, 181, 462, 640, 872, 
 
 1129, 1484 
 Nichols V. Chalie, 14 Ves. Ch. 265, ..... 865 
 
 V. Fayette Ins. Co. 1 All. Mass. 63, . . 641, 881, 1214, 2123 
 
 V. Johnson, 10 Conn. 192, . . . . . 45 
 
 Nickels v. Maine F. & M. Ins. Co. 11 Mass. 253, .... 1431 
 
 Nickleson v. Croft, 2 Burr. 1188, .... 2016, 2023 
 
 Nicolet V. Ins. Co. 3 La. 371, ...... 1481 
 
 Nicol V. Goodall, 10 Ves. Ch. 157, . . . . . 320 
 
 NicoU V. American Ins. Co. 3 Woodb. & M. C. C. 529, . 568, 667, 872 a 
 
 Nightingale v. State Ins. Co. 5 R. I. 38, . . . . 902 
 
 Nimrod, The, Ware, Dist. Ct. 14, . . . . . . 1280 
 
 Noble V. Kennoway, 1 Dougl. 492, . . . 133, 138, 970, 998, 1003 
 
 Nonnen v. Reid, and Same Pl'ff r. Kettlewell, 16 East, 176, . 527, 861, 939 
 
 Noonan v. Hartford Ins. Co. 21 Mo. 81, ... . 1813 
 
 Norcross v. Insurance Co. 17 Penn. St. 429, .... 294 
 
 Norris r. Harrison, 2 Madd. Ch. 268, .... .104,1977 
 
 V. Ins. Co. of North America, 3 Yeates, Penn. 84, . . . 66 
 
 North River Ins. Co. v. Lawrence, 3 Wend. N. Y. 482, . . 11 
 
 North Western Ins. Co. v. Phoenix Co. 31 Penn. St. 448, . . .1983 
 
 Norton v. Lexington Ins. Co. 16 111. 23.5. . . . 1559, 1662, 1693 
 
 V. Rensselaer and Saratoga Ins. Co. 7 Cow. N. Y. 645, . 1811, 1983 
 Norville V. St. Barbe, 5 Bos. & P. 434, ..... 247 
 
 Notman v. Anchor Ass. Co. 4 C. B. N. s. 476, . . . . 895 a 
 
 Noyes v. Washington Ins. Co. 30 Vt. 659, .... 1813 
 
 Nuova Loanese, 17 Eng. Jur. 263, ...... 301 
 
 Nute V. Hamilton Ins. Co. 6 Gray, Mass. 174, . . . . 1932 
 
 Nutt V. Bourdieu, 1 Term, 323, ...... 1077 
 
 VOL. I. /
 
 Ixii 
 
 TABLE OP CASES. 
 
 O. 
 
 Ocean, The, 5 C. Rob. Adm. 90, 
 
 3 C. Rob. Adm. 297, . 
 Ocean Ins. Co. v. Carrington, 3 Conn. 357, . 
 V. Fields, 2 Stor. C. C. 59, . 
 V. Francis, 2 Wend. N. Y. 64, . 
 V. Polleys, 13 Pet. 157, 
 Oddy V. Bovil, 2 East, 473, . 
 Odin, The, 1 C Rob. Adm. 248, . 
 Odlin r. Ins. Co. of Pennsylvania, 2 Wash. C. C. 312, 
 Of^den V. Ash, 1 Dall. Penn. 162, . 
 
 V. Barker, 18 Johns. N. Y. 87, . 
 
 V. Columbian Ins. Co. 10 Johns. N. Y. 273, 
 
 V. General Ins. Co. 2 Du. N. Y. 204, . 
 
 V. N. Y. Firemen's Ins. Co. 10 Johns. N. Y. 17 
 
 Ogle V. Wrangham, Abbott, Shipp. 5th ed. 76, 
 
 Ohl V. Eagle Ins. Co. 4 Mas. C. C. 172, 390, 
 
 Oldden r. M'Chesney, 5 Serg. & R. Penn. 71, . 
 
 Oldman v. Bewick, 2 H. Blackst. 577, n., . 
 
 Olive V. Smith, 5 Taunt. 56, . , 
 
 Oliver r. Cowley, Park, Ins. 343 ; Marshall, Ins. 161, 
 
 V. Greene, 3 Mass. 133, . 
 
 V. Maryland Ins. Co. 7 Cranch, 487, 
 
 u. Mutual Ins. Co. 2 Curt. C. C. 27 7, . 
 
 V. Newbin-yport Mar. Ins. Co. 3 Mass. 37, . 
 Olivera v. Union Ins. Co. 3 Wheat. 183, 
 Oliverson v. Brightman, 8 Q. B. 781, 
 
 V. Loughman, 2 Barnew. & Aid. 322, 
 O'Mealy v. Wilson, 1 Campb. 482, 
 Omnibus, The, 6 C. Rob. Adm. 71, 
 O'Neil V. Buffalo Fire Ins. Co. 3 N. Y. 123, 
 
 159 
 
 828, 844 
 
 18, 1466, 1788 
 
 . 2080 
 
 1060, 1803, 2108, 2122 
 
 . 195, 221, 265 
 
 2104 
 
 . 223 
 
 . 913, 1111, 1620 
 
 . 859 
 
 253 
 
 1201, 1202, 1669 
 
 1633 
 
 12id. 25, 114, 913, 
 
 1111, 1699, 1841 
 
 1851 
 
 265, 2124 
 
 . 830, 842 
 
 70, 2130 
 
 . 1911, 1913, 1923 
 
 695 
 
 325, 419, 480, 583 
 
 . 1002, 1023 
 
 . 14, 117 
 
 1590, 1591 
 
 830, 840, 1111, 1114, 1116 
 
 963, 983 
 
 720 
 
 153 
 
 256 
 872, 883, 885, 889, 1038, 1812, 
 1813 
 Oom V. Bruce, 12 East, 225, ...... 1846 
 
 r. Taylor, 3 Campb. 204, . . . . . .1160 
 
 O'Reilly V. Gonne, 4 Campb. 249, .... 1023, 1025 
 
 V. Royal Exch. Ass. Co. 4 Campb. 246, . . . 1025 
 
 Orell V. Hampden F. Ins. Co. 13 Gray, Mass. 431, ... 880 
 
 Orient Ins. Co. v. Wrisht, 23 How. 401, . . . . .504 
 
 1 Wall, 456, . • . . 133 
 
 Oriental, The, 3 W. Rob. Adm. 244 ; 2 Eng. L. & Eq. 549, . . 1568 
 
 Oriental Bank v. Tremont Ins. Co. 4 Mete. Mass. 1, . . . 2147 
 
 Orozembo, The, 6 C. Rob. Adm. 430, . . . . .825 
 
 Orrok V. Commonwealth Ins. Cc. 21 Pick. Mass. 456, 1087, 1326, 1424, 1432, 
 
 1433, 1539, 1548, 1551, 1552, 1571, 2096, 2112 
 Osacar v. Louisiana Ins. Co. 5 Mart. n. s. La. 386, . . 970, 2147 
 
 Osborne v. Rogers, 1 Saund. 268, ..... 2029 
 
 Osmandi, The, 4 W. Rob. Adm. 198 ; 7 Notes of Admiralty Cases, 322, . 1568 
 Ospray, The, 1 C. Rob. Adm. 14, . . . . . 258, 814 
 
 Oster Risoer, The, 4 C. Rob. Adm. 199, . . . . .249 
 
 Oswell V. Vigne, 15 East, 70, . . . . . . 809 
 
 Otis V. Raymond, 3 Conn. 413, ...... 540 
 
 Ougier v. Jennings, 1 Campb. 505, n., 134, 140, 593, 690, 998, 1003, 1944, 1953 
 OvuK'ton i;. Bell, 3 Campb. 237, . . . " . . . 1883
 
 TABLE OF CASES. Ixiii 
 
 Pacific Ins. Co. v. Catlett, 4 Wend. N. Y. 75, 1628, 1673, 1966, 2021, 2122, 
 
 2147 
 Packard v. Affawam Ins. Co. 2 Gray, Mass. 334, . . . 874 a 
 
 ' y. Hill, 2 Wend. N. Y. 411, 2110 
 
 Packet, The Ship, 3 Mas. C C. 255, 302, 306, 523 b, 1249, 1352, 1524, l.')63, 
 
 1847 b, 1934, 1985, 2010, 2149 
 
 Packet de Bilboa, The, 2 C Rob. Adm. 133, . . . 260, 792, 793 
 
 Paddie v. Quebec Fire Ins. Co. Stu. Low. C. 174, . . . ^1481 
 
 Paddock v. Commercial Ins. Co. 2 All. Mass. 93, . . . 1106 
 
 V. Franklin Ins. Co. 11 Pick. Mass. 227, 454, 720, 721, 727, 728, 731, 
 
 735, 925, 2079, 2152 
 Padelford v. Boardman, 4 Mass. 548, .... 1104, 1328 
 
 V. Providence Ins. Co. 3 R. I. 102, .... 1950 
 
 Page V. Fry, 3 Esp. 185 ; 2 Bos. & P. 240, .... 2021 
 
 V. Rodgers, Marshall, Ins. 731, ..... 2143 
 
 V. Thompson, 1 Park, Ins. 8th ed. 175, . . . .913,1111 
 
 u. Western Ins. Co. 19 La. 49, ..... 288 
 
 Paine v. Columbian Ins. Co. 2 Johns. N. Y. 264, . . . 999 
 
 V. Mclntire, 1 Mass. 69, . . . . . .66 
 
 Palm i\ Medina Ins. Co. 20 Ohio, 529, . . . ^. 16 
 
 Palmer v. Blackburn, 1 Bingh. 61, . . . . 470, 1238, 2120 
 
 V. Penning, 9 Bin<jh. 460, ..... 992, 1002 
 
 u.Lorillard, 16 Johns. N. Y. 348, . . . . .1650 
 
 V. Marshall, 8 Bingh. 79, .... 992,1002,2113 
 
 V. Naylor, 10 Exch. 382 ; 26 Eng. L. & Eq. 455, . . . 1106 
 
 V. Pratt, 2 Bingh. 185, . . . . . . 203, 459 
 
 V. Warren Ins. Co. 1 Stor. C. C. 360, . . 131, 760, 1162, 1163 
 
 Paradise v. Sun Mut. Ins. Co. 6 La. Ann. 596, 91, 395, 398, 420, 47 7, 1083, 
 
 1238, 1711, 2003, 2052 
 Parage v. Dale, 3 Johns. Cas. N. Y. 156, .... 1531, 1532 
 
 Parfitt V. Thompson, 13 Mees. & W. Exch. 392, ... 698 
 
 Paris i;. Gilham, Coop. Ch. Cas. 56, .... 16,1978 
 
 Parish v. Crawford, Abbott, Shipp. 5th ed. 19, . . . 1083 
 
 Park V. Hammond, 2 Marsh. 189 ; 6 Taunt. 495 ; 1 Holt, 80 ; 4 Campb. 344, 
 
 931, 1884, 1892 
 Parker v. Beaslie, 2 Maule & S. 423, .... 507, 1925 
 
 w. Carter, Cook's Bankrupt Laws, 547, .... 1923 
 
 w. James, 4 Campb. 112, ...... 2004 
 
 v. Jones, 13 Mass. 173, .... 583,1117,1965 
 
 V. Potts, 3 Dow, Pari. Cas. 23, . . . . .724 
 
 V. Smith, 16 East, 382, .... 507, 1877, 1924, 1927 
 
 u. Towers, 2 Browne, Penn. 80, .... 1703,1881 
 
 Parkin v. Dick, 2 Campb. 221 ; 11 East, 602, ... . . 232 
 
 u. Tun no, 2 Campb. 59; 11 East, 22, . . . .1115 
 
 Parkinson «;. Collier, 1 Park, Ins. 470, . . . . 145,970,998 
 
 Parkman v. Allen, 1 Stair, Dec. 29; 6 C. Rob. Adm. 382, . . 281 
 
 Parks V. General Interest Ins. Co. 5 Pick. Mass. 34, . . . 490, 752 
 
 Parraeter v. Cousins, 2 Campb. 235, .... 720, 9.34 
 
 V. Todhuiiter, 1 Park, Ins. 280 ; 1 Campb. 541, . 1500, 1630, 1678, 
 
 1682 
 Parr v. Anderson, 6 East, 202; 2 Smith, 316, .... 144, 1030 
 
 Parrott f. Thacher, 9 Pick. Mass. 4 26, . . . . .2119 
 
 Parry v. Aberdein, 9 Barnew. & C. 411, . 1766, 1767, 1769, 1771, 1772 
 
 y. Ashley, 3 Sim. Ch. 97, ..... 104,1976
 
 Ixiv TABLE OP CASES. 
 
 Parry v. Great Ship Co. 4 Best & S. 556, . . . . 13 
 
 Parsons v. Massachusetts F. & M. Ins. Co. 6 Mass. 197, . . 941, 970 
 
 V. Scott, 2 Taunt. 363, ...... 1662 
 
 Patapsco Ins. Co. v. Coulter, 3 Pet. 222, . 318, 1049, 1074, 1096, 12G9, 1474 
 
 V. Piscoe, 7 Gill & J. Md. 293, . . . 1208 
 
 V. Smith, 6 Harr. & J. Md. 166, . . .517, 1849 
 
 V. Southgate, 5 Pet. 604, . 1497, 1524, 1539, 1680,' 1682 
 
 Patrick V. Commercial Ins. Co. 11 Johns. N. Y. 9, . 1129, 1137, 1162, 1526 
 
 11 Johns. N. Y. 14, . . . 1137 
 
 V. Eames, 3 Campb. 441, ..... 332, 333 
 
 V. Farmers' Ins. Co. 43 N. H. 621, . . . 1813, 1983 
 
 V. Hallett, 3 Johns. Cas. N. Y. 763 ; 1 Johns. N. Y. 241, 699, 2085, 2152 
 
 V. Ludlow, 3 Johns. Cas. N. Y. 10, . . 932, 1023, 2085 
 
 Patten v. Merchants' Ins. Co. 38 N. H. 338, .... 641 
 
 Patterson v. Black, Marshall. Ins. 2d ed. 781, . . . 1149, 1951 
 
 V. Gandasequi, 15 East, 62, . . . . . 1849 
 
 V. Maryland Ins. Co. 3 Harr. & J. Md. 71, . . . 2095 
 
 V. Powell, 9 Bingh. 320, ..... 3 
 
 v. Eitchie, 4 Made & S. 393, .... 1663,1704 
 
 Pattison v. Mills, 1 Dow & C. Hon. L. 342 ; 2 Bligh, N. s. 519, . 1094 
 
 Patton V. Nicholson, 3 Wheat. 204, .... 214, 219 
 
 V. Jenney, 2 Cranch, C C. 7, . . , . . 2055 
 
 V. Randolph, Gilp. Dist. Ct. 457, . . . . . 301 
 
 Pawson V. Barnevelt, 1 Dougl. 12, n., . . . . . 145 
 
 V. Watson, Cowp.785 ; Dougl. 12, n., 527, 545, 551, 554, 669, 762, 1892 
 Payne v. Hutchinson, 2 Taunt. 405, n., . . . . . 931 
 
 V. Rogers, 2 H. Blackst. 349 ; 1 Dougl. 391, . . 66, 2060, 2160 
 
 Pay ton u. Hallett, 1 Caines, N. Y. 363, . . . . .2126 
 
 Peabody v. Mar. Ins. Co. of Salem, before Referees, Boston, 1839, . 333, 1203 
 
 V. Washington Ins. Co. 20 Barb. N. Y. 339, . .77, 185, 1973 
 
 Peacock v. New York L. Ins. Co. 20 N. Y. 293, ... 75 
 
 1 Bosw. N. Y. 338, . 658, 897, 1813 
 
 Peale v. Waddington, 7 Taunt. 478, . . . . . 2044 
 
 Pearson I'. Lord, 6 Mass. 81, ..... 380,391. 
 
 Peck V. New London Ins. Co. 22 Conn. 575, . . . 874 a, 881, 2117 
 
 Pedrick v. Fisher, Sprague Dec. Dist. Ct. 565, . . . .213 
 
 Peele v. Merchants' Ins. Co. 3 Mas. C. C. 27, 1267, 1431, 1492, 1524, 1526, 
 
 1539, 1543, 1547, 1556, 1557, 1691, 1693, 1705, 1940 
 
 u. Northcote, 7 Taunt. 478, . . . . . 1853,1924 
 
 u. Suffolk Ins. Co. 7 Pick. Mass. 254, . . . 1143,1559,1693 
 
 Peirce v. Ocean Ins. Co. 18 Pick. Mass. 83, 1575, 1578, 1681, 1682, 1684 
 
 Peisch V. Dixon, 1 Mas. C. C. 10, . . . . . .126 
 
 Pelly V. Royal Exch. Ass. Co. 1 Burr. 341, . . . 975, 1019, 1099 
 
 Pelican, Tlie, Edw. Adm. App. D. iv., ..... 224 
 
 Pendar v. American Ins. Co. 12 Cush. Mass. 469, ... 881 
 
 Penhallow v. Doane's Administrators, 3 Dall. 54, .... 2109 
 
 Penn, The Wm., Pet. C. C. 106, •:.... 254, 1568 
 
 Penniman v. Tucker, 11 Mass. 66, ...... 1844 
 
 Penniiigfon Adm'r v. Gettings Ex'r, 2 Gill & J. Md. 208, . . 79 
 
 Peniisy'lvania, The, 3 Act. Prize Cas. 31, , . . . . 818 
 
 Penn^ylvania Ins. Co. v. Bowman, 44 Penn. St. 89, . . . 881 
 
 V. Gottsman's Adm'r, 48 Penn. St. 151, . . 866 
 
 V. Smith, 3 Whart. Penn. 520, . . 616, 517 
 
 Penny v. New York Ins. Co. 3 Caines, N. Y. 155, . . 1332, 1347, 1662 
 
 Penson f . Lee, 2 Bos. & P. 330, . . . . .2174 
 
 Pentz V. Receivers of the ^tna Ins. Co. 9 Paige, Ch. N. Y. 569, 1484, 1711, 
 
 1749,1795 a, 2144
 
 TABLE OP CASES. 
 
 Ixv 
 
 People V. Beigler, Hill & D., N Y. 133, . 
 
 V. Iinlay, 20 Barb. N. Y. 68, 
 People's Ins. Co. Petitioners, 9 All. Mass. 319, 
 V. Arthur, 7 Gray, Mass. 267, 
 V. Babbitt, 7 AIL Mass. 235, 
 Peoria Ins. Co. v. Hall, 12 IMicli. 202, . 
 V. Hervey, 34 III. 46, 
 V. Lewis, 18 111. 553, 
 V. Walser, 22 Ind. 73, 
 V. Wbitehill, 25 111. 466, . 
 V. Wilson, 5 Minn. 53, 
 Peppin V. Solomons, 5 Term, 496, . 
 Perchard v. Whitmore, 2 Bos. & P. 155, n., 
 Percival v. Maine Ins. Co. 33 Me. 242, . 
 Perkins v. New England Mar. Ins. Co. 12 Mass. 214, 
 
 V. Washington Ins. Co. 4 Cow. N. Y. 645, 1848, 1880, 1892, 1936, 1991 
 
 6 Johns. Ch. N. Y. 485, . . 11,20 
 
 Perrin's Administrator v. Prot. Ins. Co. 11 Ohio, 147, . . 1049, 1099 
 
 879 
 
 510 
 
 . 523 a 
 
 510 
 
 . 523 a 
 
 . 416, 904, 1983 
 
 . 1973 
 
 361, 489, 567, 1806 
 
 16, 1808 
 
 1808, 1813, 1983, 2023 
 
 . 1482 
 
 2021 
 
 379, 2021 
 
 1948 
 
 367, 1125, 1251 
 
 Perrins v. Marine Ins. Soc. 2 Ell. & E. 317, 
 Perry v. Merchants' Ins. Co. 25 Ala. N. s. 355, 
 
 V. Ohio Ins. Co. 5 Ohio, 306, 
 Perry Ins. Co. v. Stewart, 19 Penn. St. 45, 
 Pervis v. Tuimo, 1 Brev. So. C. 261, . 
 Peters r. Delaware Ins. Co. 5 Serg. & R. Penn. 473, 
 V. Milligan, Millar, Ins, 244 ; Park, Ins. 211, 
 V. Phoenix Ins. Co. 3 Serg. & R. Penn. 25, 
 
 658 
 108, 1973 
 1429 
 493, 883, 1037 
 1054 
 . 1251 
 1397, 1400 
 699, 735, 1129, 1532, 1555, 
 1741 
 V. Warren Ins. Co. 14 Pet. 99 ; 3 Sumn. C. C. 389 ; 1 Stor. C. C. 463, 1099, 
 
 1137, 1272, 1326, 1416, 1423, 1436, 1781 
 
 Peterson v. Grover, 20 Me. 363, 
 Petrie's Executors v. Aitchison, 3 Sess. Cas. 501, 
 Peyton t\ Hallet, 1 Caines, N. Y. 363, 
 Pezant v. National Ins. Co. 15 Wend. N". Y. 453, 
 Phelps I'. Auldjo, 2 Campb 350, . 
 Philadelphia Ins. Co. v. American Ins. Co. 23 Penn. St. 65 
 V. Mills, 44 Penn. St. 241, . 
 V. Washington Ins. Co. 23 Penn. St. 
 Philbrook v. New England Ins. Co. 37 Me. 137 
 Philips V. Baillie, 3 Dougl. 374, . 
 
 V. Barber, 5 Barnew. & Aid. 161, . 
 
 V. Crawley, Freem. 83, .... 
 
 V. Knox County Mut. F. Ins. Co. 2 Ohio, 1 74, 
 Phillips V. Bridge, 11 Mass. 242, 
 
 V. Champion, 6 Taunt. 3 ; 1 Marsh. 402, . 
 
 V. Eastwood, Lloyd & G. 291, . 
 
 V. Fielding, 2 H. Blackst. 131, 
 
 V. Headlam, 2 Barnew. & Aid. 380, 
 
 V. Hunter, 2 H. Blackst. 409. 
 
 V. Laidley, 1 Wash. C. C 226, . 
 
 V. Merrimack Ins. Co. 10 Cush. Mass. 350, 
 
 V. Nairne, 16 Law J. Eng. Com. PL 194, 
 
 V. Protection Ins. Co. 14 Mo. 220, 
 
 . 1986 
 1893 
 . 2101 
 1532, 1543, 1545, 1.555 
 984, 1023 
 127, 376, 922 
 880 
 
 250, . 376 
 . 66, 881, 904 
 
 Philliter v. Shippand, 12 Jur. 203, . 
 
 Philpott V. Swann, 11 C. B. N. 8. 270, . 
 
 Phoenix, The, 5 C. Rob. Adm. 20, . 
 
 Phoenix Ass. Co. v. Sheridan, 8 Hou. L. Cas. 745, 
 
 2005 
 
 1126, 2022 
 
 2105 
 
 641 
 
 2053 
 
 964 
 
 94 
 
 . 2014 
 
 715, 716 
 
 . 2104 
 
 • 2124 
 
 108, 1214. 19 74 
 
 698, 752, 1137 
 
 884, 886 a, 1097, 1810, 1811, 1813, 
 
 1953 
 . 2003 
 1142 
 278, 800, 815 
 505
 
 lx^ 
 
 TABLE OF CASES. 
 
 635, 688, 866 a, 8 
 
 195 
 
 378, 
 214 
 
 Phoenix Ins. Co. v. Gurnee, 1 Paige, Ch. N. Y. 278, 
 V. Fiquet, 7 Johns. N. Y. 383, 
 V. Lawrence, 4 Mete. Ky. 9, 
 V. Philip, 13 Wend. N. Y. 81, 
 V. Pratt, 2 Binn. Penn. 308, 
 V. Taylor, 5 Minn. 492, 
 Phyn ;;. Royal Exch. Ass. Co. 7 Term, 505, 
 Pickering v. Dowson, 4 Taunt. 779, 
 Pieschell v. Allnutt, 4 Taunt. 792, . 
 Pigott V. Thompson, 3 Bos. & P. 147, 
 Pirn V. Reid, G Mann. & G. 1, 
 Pinkham v. Morang, 40 Me. 587, 
 Pipon 0. Cope, 1 Campb. 434, 
 Pirie v. Anderson, 4 Taunt. 652, 
 
 V. Steele, 8 Carr. & P. 200 ; 2 Mood. & R. 49, 
 Pitman v. Hooper, 3 Sumn. C. C. 50, . 
 Pitt V. Yalden, 4 Burr. 20G0, 
 Pittigrew v. Pringle, 3 Barnew. & Ad. 514, 
 Pizarro, The, 2 Wheat. 227, 
 Place V. Kelegal, 6 Mees. & W. Exch. 492, 
 Planch6 V. Fletcher, Dougl. 238, . 
 Plantamour v. Staples, 3 Dougl. I ; 1 Term, 611, n.. 
 Planters Wensch, The, 5 C. Rob. Adm. 22, 
 Pleasants v. Maryland Ins. Co. 8 Cranch, 55, . 
 Plumb V. Cattaraugus Ins. Co. 18 N. Y. 392, 
 Plummer v. Wildman, 3 Maiile & S. 482, 
 Poingdestre v. Royal Exch. Ass. Co. Ry. & M 
 Pole" u. Fitzgerald, Willes, 644; Ambl. Ch. 
 
 5 id. 131, ..... 
 Pollard V. Bell, 8 Term, 434, 
 
 V. Somerset Ins. Co. 42 Me. 221, 
 PoUevs V. Ocean Ins. Co. 21 Me. 141, 
 Pollock V. Babcock, 6 Mass. 234, 
 
 V. Donaldson, 3 Dall. 510, . 
 Polly, The, 2 C. Rob. Adm. 361, 
 Polyart v. Leckie, 6 Maule & S. 290, 
 Pond V. King, 1 AVils. 191, 
 
 V. Smith, 4 Conn. 217, 
 Pontalba v. Phoenix Ins. Co. 2 Rob. La. 131, . 
 Pontz V. Louisiana Ins. Co. 4 Mart. n. s. La. 80, . 
 Poole V. Prot. Ins. Co. 14 Conn. 33, 
 Pope V. Nickerson, 3 Stor. C. C. 465, 
 Popleston V. Kitchen, 3 Wash. C. C. 138, 
 Portage Ins. Co. v. West, 6 Ohio St. 599, . 
 Porter v. Bussey, 1 Mass. 436, . 
 Portland, The, 3 C. Rob. Adm. 41, _ 
 Portsmouth Ins. Co. v. Brazee, 16 Ohio, 81, 
 Post V. Hampshire Mut. Fire Ins. Co. 12 Mete. Mass 
 V. Kimberly, 9 Johns. N. Y. 479, . 
 V. Phoenix Ins. Co. 10 Johns. N. Y. 79, 
 Posten, The, 1 C Rob. Adm. 335, 
 Potter V. Marine Ins. Co. 2 Mas. C. C. 475, 
 V. Ocean Ins. Co. 3 Sumn. C. C. 27, 
 V. Ontario Ins. Co. 5 Hill, N. Y. 147, 
 V. Prov. Wash. Ins. Co. 4 Mas. C. C. 298, 
 V. Suffolk Ins. Co. 2 Sumn. C. C. 197, 
 Potts V. Bell, 8 Term, 548 ; 2 Esp. 612, 
 
 117, 120 
 
 1926 
 
 874 a, 880, 904, 2144 
 
 2112 
 
 810 
 
 125, 883, 1813 
 
 1051, 1062, 1063 
 
 660 
 
 . 232 
 
 1959 
 
 , 874, 2122, 2128 
 
 592 
 
 1072, 1076, 1081 
 
 2124 
 
 . 1431 
 
 1719 
 
 1884, 1885 
 
 772, 773 
 
 818, 2082 
 
 126 
 
 147, 593, 599, 993, 1093 
 . 699, 910 
 248 
 1191, 1262, 1715 
 . 1876 
 1300, 1320, 1328 
 . 1431 
 Pari. Cas. 439 ; 
 1522, 1531, 1555 
 . 2109 
 . 81, 880 
 . 195, 751, 852 
 595, 1117, 1118 
 502, 1829, 1833 
 278 
 . 1846 
 1521 
 283 
 1484 
 . 1843 
 1766, 1767, 1772 
 1168, 1623, 1625 
 . 586, 2152 
 . 1983 
 1844 
 814 
 1749 
 
 555, . . 877 
 
 1852 
 . 1195 
 837 
 365, 1253 
 1129, 1274, 1326 
 67, 131, 536, 881 
 1349, 1388, 1742,2044 
 . 1053 
 . 147, 223 
 
 368 
 
 1104 
 
 Brown 
 1521
 
 TABLE OF CASES. 
 
 Ixvai 
 
 Pouverin v. La. State F. & M. Ins. Co. 4 Rob. La. 234, 
 Powell V. Gudizeon, .5 Maule & S. 431, . 
 
 V. Hyde, 5 Ell. & B. 607 ; 34 Enir. L. & Eq. 44, 
 Power V. Butcher, 10 Barnew. & C. 329; 5 Mann. & R. 327, 
 V. Ocean Ins. Co. 19 La. 28, 
 V. Whitmore 4 Maule, & S. 141, 
 Powles V. Innes, 11 Mees. & W. Exch. 10, 
 Rowling V. Wilson, 1 Johns. N. Y. 192, 
 Pratt i;T Ashley, 1 Exch. 2.") 7, .... 
 
 r. Phoenix Ins. Co. 1 Browne, Penn. 267, 
 Pray v. Edie, 1 Term, 313, . 
 Prescott V. Union Ins. Co. 1 Whart. Penn. 399, 
 President, The, 5 C. Rob. Adm. 27 7, 
 Preston v. Greenwood, 4 Dougl. 28, 
 Price V. Bell, 1 East, 663, .... 
 V. Depeau, 1 Brev. So. C. 452, 
 V. HoUis, 1 Maule & S. 105, . 
 r. Noble, 4 Taunt. 123, . 
 Prieger v. Exchange Ins. Co. 6 Wise. 89, . 
 Priest i;. Citizens' Ins. Co. 3 All. Mass. 602, 
 Prince George, The, 4 Moore, Priv. Coun. 21, 
 Prince of Saxe Coburgh, The, 3 Moore, Priv. Coun. 1, 
 Prince v. Equitable Ins. Co. 12 Gray, Mass. 527, 
 
 V. Ocean Ins. Co. 40 Me. 481, . 
 Prince ofWales Ass. Co. v. Harding, 1 Ell. B. & E. 183, 
 Princessa, The, 2 C. Rob. Adm. 49, . 
 Pringle v. Hartle, 3 Atk. Ch. 195, . . , 
 
 Prit<:hard v. Merchants' Ass. Soc. 3 C. B. N. s. 622, . 
 Pritchett v. Ins. Co. ofN. America, 3 Yeates, Penn. 461, 
 Progress, The, Edw. Adm. 210, 
 Proprietors v. Hillsborough Ins. Co. 19 N. H. 580, 
 Protection Ins. Co. v. Hall, 15 B. Monr. Ky. 411, 
 V. Pherson, 5 Ind. 417, 
 V. Wilson, 6 Ohio St. 553, . 
 Providence County Bank v. Benson, 24 Pick. Mass. 204, 
 Providentia, The, 2 C. Rob. Adm. 142, 
 Prudham i: Phillips, Ambl. Ch. 763, 
 Push t: Leeds, Cowp. 714, .... 
 Puller n. Glover, 12 East, 124, 
 V. Halliday, 12 East, 494, 
 V. Staniforth, 11 East, 232, . 
 Pupke V. Resolute F. Ins. Co. 17 Wise. 378, . 
 Putnam v. Mercantile Marine Ins. Co. 5 Mete. Mass. 386, 
 V. Wood, 3 Mass. 481, . 
 
 388, 1004 
 
 39, 1363, 1367 
 
 . 1162 
 
 516, 1849, 1993 
 
 880 
 
 467, 1328, 1414 
 . 87, 89 
 2104 
 1012, 1015 
 . 265, 293 
 382 
 . 695, 1947 
 159 
 126 
 945, 2109 
 589 
 . 2105 
 1293 
 667, 872 
 1813 
 . 523 b 
 1847 b 
 . 1535 
 1497, 1569 
 2114 a 
 275 
 815, 1531 
 897 
 211,462 
 1385 
 881 
 
 314, 1481, 2080 
 . 1808 
 1099, 1958 
 91, 189, 401 
 278 
 . 2105 
 921 
 1519, 2023 
 336, 1725 
 336, 1519 
 108 
 310, 1225 
 . 731, 1115 
 
 Q. 
 
 Queen's case. The, 3 Starkie, Ev. Am. ed. 1828, p. 1742, . . 2103 
 
 Queen v. Union lus. Co. 2 Wash. C. C. 331, . . 1531, 1535, 1590, 1662 
 
 R. 
 
 Rachel, The, 3 C. Rob. Adm. 29, . . . 
 
 Radcliffy. Schoolbred, Marshall, Ins. 468, 
 
 V. U. S. Ins. Co. 7 Johns. N. Y. 38 ; 9 id. 277. 
 
 . 165 
 
 550, 567, 619 
 
 826, 829, 834, 1159
 
 Ixvlil TABLE OP CASES. 
 
 Rafferty v. N. Brunswick F. Ins. Co. 3 Harr. N. J. 480, . . 882, 1038 
 
 Raine 17. Beil, 9 East, 195, . ...... 999 
 
 Ralston v. Union Ins. Co. 4 Binn. Penn. 386, . . . 1532, 1580, 1684 
 
 Ramsay v. Alle<>re, 12 Wheat. 638, . . . . .1940 
 
 Randall v. Cochrane, 1 Ves. Ch. 98, . . . . .1724 
 
 Randcl V. Chesapeake & Del. Canal Co. 1 Harr. Del. 233, . . 865 
 
 Randers Bye, The, 6 C. Rob. Adm. 382, n., .... 281 
 
 Randolph v. Ware, 3 Cranch, 503, .... 793, 1857, 1860 
 
 Ranker, The, 6 C. Rob. Adm. 125, . . . . 271, 272, 284 
 
 Rankin v. American Ins. Co. 1 Hall, N. Y. 619, . 145, 1472, 2052, 2134 
 
 V. Reeve, 2 Park, Ins. 7th ed. 415, .... 1008 
 
 Rapage v. Amory, 2 Dall. 51, 231, ...... 2116 
 
 Rapid, The, 8 Cranch, 155; 1 Gall. C. C. 295, . . . 223, 226 
 
 Edw. Adm. 228, ...... 825 
 
 Ratcliffe v. Shoolbred, Park, Ins. 290; 1 id. 8th ed. 413 ; Marshall, Ins. 468, 
 
 550, 567, 619 
 Rathbone v. Williams, 7 Term, 360, n., . . . . . 1916 
 
 17. City Ins. Co. 31 Conn. 193, . . . 883,904,1876 
 
 Rawlins v. Desborough, 8 Carr. & P. 321 ; 2 Mood. & R. 70, 328, 653, 655, 
 
 656, 2122 
 Rawlinson v. Janson, 12 East, 223, ..... 245 
 
 Rawls V. American L. Ins. Co. 27 N. Y. 282, . 7, 185, 353, 356, 654, 1755 
 
 Raymonds. Squire, 11 Johns. N. Y. 47, ..... 2060 
 
 Rayner u. Godmond, 5 Barnew. & Aid. 225, . . . .1758 
 
 Raynham v. Canton, 3 Pick. Mass. 293. . . . . .2110 
 
 Read v. Bonham, 3 Brod. & B. 147 ; 6 J. B. Moore, 397, 1534, 1669, 1678, 1875 
 V. Isaacs, 6 J. B. Moore, 437, . . . . .1989 
 
 Reade v. Com. Ins. Co. 3 Johns. N. Y. 352, . . . 1023, 1357, 1985 
 
 Rebecca, The, 2 C. Rob. Adm. 101, . . . . .278 
 
 Redman v. Lowdon, 5 Taunt. 462 ; 3 Marsh. 136 ; 3 Campb. 503, 66, 1041 
 
 - V. Wilson, 14 Mees. & W. Exch. 476, . . . 735, 1049 
 
 Redmond v. Smith, 7 Mann. & G. 457, . . . 210, 1043, 2029 
 
 Reed v. Cole, 3 Burr. 1512, . . .89, 186, 187, 188, 498, 2021 
 
 V. Lukens, 44 Penn. St. 200, .... 880 
 
 V. Pacific Ins. Co. 1 Mete. Mass. 166, . . . 1881, 1915 
 
 Reeside, The Schooner, 2 Sumn. C. C. 567, ... 133, 144 
 
 Reeves v. Ship Constitution, Gilp. Dist. Ct. 579, . . . . 1420 
 
 Regnier v. Louisiana State M. & F. Ins. Co. 12 La. 336, . 2080, 2154 
 
 Reichard v. Manhattan Ins. Co. 13 Mo. 518, . . . .658 
 
 Reid V. Darby, 10 East, 143, ...... 1587 
 
 V. Harvey, 4 Dow, Pari. Cas. 97, .... . 527 
 
 Reimer v. Ringrose, 6 Exch. 263 ; 4 Eng. L. & Eq. 388, . . 17 70 
 
 Rendsborg, The, 4 C. Rob. Adm. 121, .... 278,815 
 
 Renner <;. Bank of Columbia, 9 Wheat. 581, .... 133,138 
 
 Reyner i;. Hall, 4 Taunt. 725, 1815,1817 
 
 V. Pearson, 4 Taunt. 662, . . . . 1950, 2086 
 
 Reynolds v. Ocean Ins. Co. 1 Mete. Mass. 160; 22 Pick. Mass. 191, 1313, 1545, 
 
 1559, 1671, 1672, 1815, 1881, 1953, 2002, 2166 
 V. Pitt, 19 Ves. Ch. 134, . . . . .771 
 
 V. State Ins. Co. 2 Grant, Cas. Penn. 326, . . . 180, 640 
 
 V. Toppan, 15 Mass. 370, . . . . . 398 
 
 Rex u. Johnson, 7 East, 65, ...... 2097 
 
 V. Plumer, Russ. & R. 264, ...... 2097 
 
 V. Watson, 1 Campb. 215, . . . . . , . 2097 
 
 Rhadamanthus, The, 1 Dods. Adm. 201, ..... 1565 
 
 Rhind (;. Wilkinson, 2 Taunt. 237, . . . 179,266,2021,2103 
 
 Rhinelander w. Ins. Co. of Penn. 4 Cranch, 29, . . 1109,1621,1705
 
 TABLE OF CASES. 
 
 Ixix 
 
 Ehinelander v. Juhel, 2 John?. Cas. N. Y. 487, . . 628, 748, 1122 
 
 Rhinehart t\ Alleghany ISIut. Ins. Co. 1 Penn. 359, . . . 1939 
 
 Rhodes v. Hunter"; 2 Huds. & B. Ir. 581, . . . . 1953 
 
 Ribbans v. Crickett, 1 Bos. & P. 2G4, . . . .215, 2061 
 
 Rice V. Gove, 22 Pick. Mass. 158, ..... 2053 
 
 t?. Homer, 12 Mass. 230, ..... 1136,1517 
 
 V. New Eng. Mar. Ins. Co. 4 Pick. Mass. 439, . 551, 553, 570, 620 
 
 V. Tower, 1 Gray, Mass. 426, . 
 Rich V. Jackson, 4 Brown, Ch. 514, . 
 
 V. Parker, 2 Esp. 615 ; 7 Term, 705, . 
 Richards v. Marine Ins. Co. 3 Johns. N. Y. 307, 
 
 V. Murdock, 1 Lloyd & W. Cas. 132 ; 10 Barnew. & C. 527 
 
 57, 
 
 Richardson v. Anderson, 1 Campb. 43, n., 65, n., . 
 V. London Ass. Co. 4 Campb. 94, . 
 V. Maine F. & M. Ins. Co. 6 Mass. 102, 
 
 V. Maine Ins. Co. 46 Me. 394, 
 
 V. Mellish, 1 Ry. & M. 56, . 
 
 V. Nourse, 3 Barnew. & Aid. 237, . 
 
 r. Suffolk Ins. Co. 3 Mete. Mass. 5 73, 
 Richmond, The, 5 C Rob. Adra. 325, . 
 
 Richmondville Seminary v. Hamilton Ins. Co. 14 Gray, Mass. 459, 
 Rickards v. Murdock, 10 Barnew. & C. 527 ; 1 Dowl. & R. 221, . 
 Rickman v. Carstairs, 2 Xev. & M. 502 ; 5 Barnew. & Ad. 651, 
 Ricord V. Bettenham, 3 Burr. 1 734, 
 Rider v. Ocean Ins. Co. 20 Pick. Mass. 259, 
 Ridout V. Johnson, BuUer, N. P. 283, 
 Rijrgin v. Patapsco Ins. Co. 7 Harr. & J. Md. 279, 
 Riley v. Delafield, 7 Johns. N. Y. 5->2, 
 
 i: Hartford Ins. Co. 2 Conn. 368, . . 327, 333 
 
 V. Ocean Ins. Co. 4 Rob. La. 225, 
 Ring V. Franklin Ins. Co. 2 Hall. N. Y. 1, . 
 Ringende Jacob, The, 1 C. Rob. Adm. 89. 
 Ripley v. iEtna Ins. Co. 30 N. Y. 136, 
 
 29 Barb. X. Y. 552, 
 Risdale v. Newnham, 3 Maule & S. 456, 
 Rising P. Bjrnett, Marshall, Ins. 730, 
 Rising Sun, The, 2 C. Rob. Adm. 104, 
 Rison V. Wilkerson, 3 Sneed, Teiin. 565, 
 Ritchie V. United Ins. Co. 5 Sorg. & R. Penn. 501, 
 Rivers v. Gregg, 5 Rich. Eq. So. C. 274, 
 Ri.K V. Mutuallns. Co. 20 X. II. 198, 
 
 (;. Ocean Ins. Co. MS. Referees, September, 1831, Mass 
 Robbins v. New York Ins. Co. 1 Hall, N. Y. 325, 
 Robert v. Traders' Ins. Co. 17 Wend. N. Y. 631, 
 
 1936 
 764, 813 
 939 
 10 Bingh. 
 524 
 1873, 2111 
 963 
 748, 846, 966, 1025, 1074, 
 1114, 1115, 1117, 1119,1121 
 641, 1876 
 
 2098 
 
 . 1364 
 
 1815, 2070 
 
 271 
 
 872 a. 1949 
 
 . 2111 
 
 447, 940 
 
 147 
 
 180, 197, 2021 
 
 2052 
 
 1025 
 
 339, 480, 1965 
 
 1179, 1204, 1208 
 
 1535 
 
 265, 2124 
 
 284, 791 
 
 638, 1983 
 
 1973 
 
 . 776 
 
 416, 2019 
 
 . 261 
 
 79 
 
 1523, 155 7 
 
 356 
 
 1806 
 
 1196, 1197 
 
 338,482, 1802, 2125 
 
 297, 881, 1712 
 
 . 71 
 
 616 
 
 2105 
 
 1906, 1995 
 
 1534 
 
 Roberts v. Chenango County Mut. Ins Co. 3 Hill, N. Y. 501, 
 
 V. Fonnereau, Park, Ins. 285 ; Beawes, Le.x^ Merc. 266, 
 V. Fortune, 1 Hargr. Law Tracts, 446, 
 I'. Ogilby, 9 Price, Exch. 269, .... 
 Robertsons. Carruthers, 2 Stark. 271, 
 
 V. Clarke, 1 Ry. & M. 75; 1 Bingh. 445; 8 J. B. Moore, 622, 144, 
 
 979, 1534, 1584 
 V. Columbian Ins. Co. 8 Johns. N. Y. 491, . 1026, 1503, 1841 
 
 V. Ewer, 1 Term, 127, . . . 463, 1068, 1074, 1347 
 
 V. French, 4 East, 130 ; 4 Esp. 246, 120, 125, 939, 2052, 2124,2126 
 r. Hamilton, 14 East, 522, .... 311,1859
 
 IxX TABLE OP CASES. 
 
 Robertson tJ. Majoribanks, 2 Stark. 573, .... 1647 
 
 V. Money, 1 Ry. & M. 75, ... . 933, 2119 
 
 V. Stewart, Bell. Comm. 520, . . . . 1662 
 
 V. United Ins. Co. 2 Johns. Cas. N. Y. 250, . 427, 1583, 1822 
 
 V. Western F. & M. Ins. Co. 19 La. 227, . . .134, 1580 
 
 Robinson v. Cheesewright, 1 Maule & S. 220, .... 245 
 
 u. Clifford, 2 Wash. C. C. 1, . . . 2096,2110 
 
 V. Commonwealth Ins. Co. 3 Sumn. C. C. 221, 1547, 1569, 1625, 
 
 1765, 1767, 2076 
 V. Georges Ins. Co. 17 Me. 131, . . 58, 1497, 1941, 1990 
 
 6 Harr. & J. Md. 408, . . 865 
 
 t'. Gleadow, 2 Scott, 250 ; 2 Bingh. N. c. 156, . . 1849, 1852 
 
 17. Jones, 8 Mass. 536, . . . 818,821,1051,2109 
 
 V. Lyall, 7 Price, Exch. 592, .... 289, 301 
 
 V. Manufacturers' Ins. Co. 1 Mete. Mass. 143, . . 335, 4 75 
 
 V. Marine Ins. Co. of New York, 2 Johns. N. Y. 89, . . 1025 
 
 V. Morris, 5 Taunt. 720, ..... 245, 2123 
 
 y. New York Ins. Co. 2 Caines, N. Y. 357, . . .311 
 
 V. Tobin, 1 Stark. 336, .... 109, 125, 2014 
 
 V. Touray, 3 Campb. 158 ; 1 Maule & S. 217, 73, 246, 248, 437, 440, 
 
 1194 
 Roche u. Thompson, Millar, Ins. 20, . . . . .1148 
 
 Rockingham Ins. Co. v. Bosher, 39 Me. 253, .... 2003 
 
 Roebuck v. Hamerton, Cowp. 737, . . . . .211 
 
 Rogers v. Davis, Beawes, Lex Merc. 242; Park. Ins. 423, 361, 1251, 1838, 
 
 2146 
 V. Hosack's Ex'rs, 18 Wend. N. Y. 319, . . . 1707 
 
 V. Howard Ins. Co. 6 Paige, Ch. 583, . . 76, 399, 403, 1971 
 
 I'. M'Arthy, Park, Ins. 45";n., ..... 13 
 
 V. Maylor, 1 Esp. 489 ; Park, Ins. 8th ed. 267, 1815, 1817, 2040, 2151 
 
 • V. Mechanics' Ins. Co. 1 Stor. C. C. 603 ; 2 id. 173, 135, 137, 140, 460 
 
 V. Niaoara Ins. Co. 2 Hall, N. Y. 86, . . . 851, 2035 
 
 V. Traders' Ins. Co. 6 Paige, Ch. N. Y. 583, 76, 387, 399, 402, 403, 
 
 1971 
 Roget V. Thurston, 2 Johns. Cas. N. Y. 248, . . 1025, 1162, 1674 
 
 Rohl w. Parr, 1 Esp. 445, ...... 1101,1774 
 
 RoWe V. Harris, 2 Price, Exch. 26, ..... 771 
 
 Rolla, The, 6 C. liob. Adm. 364, .... 827, 828, 829, 830 
 
 Rolleston v. Hibbert, 4 East, 114 ; 3 Term, 406, . . 265, 2124 
 
 r. Smith, 4 Term, 161, . . . . . .264 
 
 Rollins V. Columbian F. Ins. Co. 25 N. H. 200, . . 880, 1974 
 
 Romeo, The, 6 C. Rob. Adm. 351, ..... 818 
 
 Roper V. Lendon, 1 Ell. & E. 825, ..... 1807 
 
 Rosalia and Elizabeth, The, 4 C. Rob., note to Table of Cases, . 222, 281 
 Rosalie and Betty, The, 2 C. Rob. Adm. 343, .... 222, 281 
 
 Roscow V. Corson, 8 Taunt. 684, ..... 1068 
 
 Rose, The, 2 C. Rob. Adm. 206, ..... 278 
 
 Rose V. Himely, 4 Cranch, 239, ..... 2104 
 
 Rosetto V. Gurney, 11 C. B. 176 ; 7 Eng. L. & Eq. 461, 1046, 1462, 1767, 1777 
 
 Ross V. Bradshaw, 1 W. Blackst. 312, . . . 647, 669, 771 a, 894 
 
 i;. Hunter, 4 Term, 33, . . . . 1066,1082,2133,2156 
 
 V. Sloop Active, 2 Wash. C. C. 226, .... 1320 
 
 V. Thwaite, 1 Park, Ins. 23, . . . . . .460 
 
 Rotch w. Edie, 6 Term,413, ..... 240,1111 
 
 Roth V. City Ins. Co. 6 McLean, C. C- 324, . . . 1876 
 
 llotheroe v. Elton, Peake, 84, . . . . . . 2052 
 
 Rothwelli;. Cooke, 1 Bos.&P. 172, 1834
 
 TABLE OF CASES. 
 
 Ixxi 
 
 Rouse V. The Ins. Co. 25 Law Reporter, 52.3, .... 727 
 
 Rousset V. Ins. Co. of North America, 1 Binn. Penn. 429, . 77, 82, 903 
 
 Routh V. Thompson, 11 East, 428; 13 East, 274, 320, 323, 388, 428, 1824, 
 
 1825, 2018 
 
 Routledge v. Burrell, 1 H. Blackst. 254, . . 70, 756, 1805, 2130 
 
 V. Grant, 3 Carr. & P. 267 : 4 Bingh. 653, . . .17 
 
 Roux V. Salvador, 1 Bingh. N. c. 526 ; 3 id. 266, 1497, 1569, 1606, 1611, 1762, 
 
 1767,1771, 1776 
 Rowcroft u. Dunsmore, 3 Taunt. 228, .... 1099 
 
 Rowley t'. Bigelow, 12 Pick. Mass. 307, . . . . .179 
 
 Ruan r. Gardner, 1 Wash. C. C. 145, . 430,1932,2052,2095,2136 
 
 Rubicon, The, 1 Hagg. Adm. 13, 
 Rucker v. Allnut, 15 East, 278, 
 
 V. Ansley, 5 Maule & S. 25, 
 
 V. Conyngham, 2 Pet. Adm. 295, 
 
 V. Green, 15 East, 288, 
 
 I". London Assurance Co. 2 Bos. & P. 432, n., 
 
 V. Palsgrave, 1 Taunt. 419 ; 1 Campb. 557, 
 Ruckman v. Merchants' Ins. Co. 5 Du. N. Y. 342, 
 Ruggles V. General Int. Ins. Co. 4 Mas. C. C. 74, 
 Rundie v. Moore, 3 Johns. Cas. N. Y. 36, 
 Ruse V. Mutual Ins. Co. 23 N. Y. 516, 
 
 26 Barb. N. Y. 556, 
 Russel V. Union Ins. Co. 1 Wash. C. C. 409 ; 4 Dall. 421, 
 Russell V. Bangley, 4 Barnew. & Aid. 395, 
 
 V. Boheme, Strange, 1127, . 
 
 V. De Grand, 15 Mass. 35, . 
 
 V. Dunskey, 6 J. B. Moore, 233, . 
 
 V. New England Mar. Ins. Co. 4 Mass. 82, 
 
 V. Pellegrini, 6 Ell. & B. 1020; 38 Eng. L. & Eq. 99, 
 
 V. Thornton, 4 Hurlst. & N. Exch. 788 ; 6 id. 140, 
 Ryall r. Rowles, 1 Ves. Sen. Ch. 348, . 
 
 289 
 
 1007 
 
 247 
 
 1172, 1568, 1847 b 
 
 . 2025 
 
 970 
 
 2061 
 
 . 1523, 1572, 1700 
 
 549, 564, 578, 610, 622, 2159 
 
 1897 
 
 . 66, 121, 356, 2123 
 
 505 
 
 290, 309, 311, 421 
 
 140, 1883 
 
 2126, 2127 
 
 210, 519, 2119 
 
 . 2151 
 
 380,382,408 
 
 865 
 
 . 562, 576 
 
 79 
 
 S. 
 
 Sadler v Dixon, 5 Mees. & W. Exch. 415 ; 8 id. 895, 
 
 Sadlers' Co. v. Badcock, 2 Atk. Ch, 554, . 
 Sage V. Middletown Ins. Co. 1 Conn. 239, 
 
 5 Day, Conn. 409, 
 Saidler r. Church, cited 2 Caines, :N. Y. 244, 288, 
 St. Catharine, Hagg. Adm. 250, 
 St. Ivan, The, Edw. Adm. 3 76, 
 St. John V. American L. Ins. Co. 2 Du. N. Y. 419 
 St. .Johns V. American Ins. Co. 11 N. Y. 516, 
 St. Jose Indiano, The, 2 Gall. C. C. 268, 
 St. Juan Baptista, The, 5 C. Rob. Adm. 33, . 
 St. Lawrence, The, 1 Gall. C. C. 467, 
 St. Lawrence Ins. Co. v. Paige, 1 Hilt. N. Y. 430, 
 St. Louis Ins. Co. v. Glasgow, 8 Mo. 713, . 
 
 V. Kyle, 11 Mo. 278, 
 St. Philip, The, 8 Term, 556, 
 Sale V. Sun Ins. Co. Sup. Ct. N. Y. 1865, 
 Salem India Rubber Co. v. Adams, 23 Pick. Mass 
 Salisbury v. Marine Ins. Co. 23 Mo. 553, 
 V. Townson, Millar, Ins. 418, 
 
 78, 87 
 962, 
 
 256, 
 
 87, 691, 706, 717, 727, 
 
 733, 1049 
 
 402, 1973, 1986, 2018 
 
 1087, 1328, 1424, 1429 
 
 . 2101 
 
 1699 
 
 . 1568 
 
 250 
 
 121 
 
 1162 
 
 165, 803, 814, 815 
 
 1051 
 
 171, 216 
 
 523 a 
 
 1058, 1096 
 
 886 
 
 226 
 
 1466, 1605 
 
 540 
 
 983 
 
 . 139
 
 Ixxii TABLE OF CASES. 
 
 Sally, The, C. Rob. Adm. 300, n., . . . . . 260, 791 
 
 Saloucei i'. Johnson, Park, Ins. 55G ; 4 Dougl. 224, . . 784, 799 
 
 V. Woodmass, Park, Ins. 364 ; Marshall, Ins. 401, . 2096, 2109 
 
 Saltash, Corporation of, v. Jackman, 13 Eng. L. J. N. s. Q. B. 105, . 1989 
 
 Saltus V. Commercial Ins. Co. 10 Johns. N. Y. 487, . . . 1328 
 
 V. Ocean Ins. Co. 12 Johns. N. Y. 107, . . 1438,1602,1639 
 
 14 Johns. N. Y. 138, . . 1386,1451,1768 
 
 V. United Ins. Co. 15 Johns. N. Y. 523, . . . 1093, 1115 
 
 Salvador i'. Hopkins, 3 Burr. 1, 707, . . . . 140, 144, 342 
 
 Salvin v. James, 2 Smith, 646 ; 6 East, 5 71, . . . 74, 953 
 
 Sampson, The, 1 C. Rob. Adm. 346, . . . . . 819 
 
 Samuel v. Royal Exch. Ass. Co. 8 Barnew. & C. 119, . . 968, 1002 
 
 Sanches i'. Davenport, 6 Mass. 258, ..... 1890 
 
 Sanders v. Ilillsborouoh Ins, Co. 44 N. H. 238, . . . 383, 1795 a 
 
 0. Pope, 12 Ves. Cli. 281, . . . . . 771 
 
 Sanderson v. Busher, 4 Campb. 54, n., . . . . . 2004 
 
 v. M'Cullom, 4 J. B. Moore, 5, .... 113,114 
 
 V. Marine Ins. Co. 2 Cranch, C. C. 218, . . , 1431 
 
 t'. Symonds, 1 Brod. & B. 426, .... 114 
 
 Sands v. , 10 Mod. 79, ...... 199 
 
 V. St. John, 36 Barb. N. Y. 628, . . . . 523 a 
 
 Sanford v. Mechanics' Ins. Co. 12 Cush. Mass. 541, . . 403, 1032 
 
 San Jose Indiano, 2 GaU. C. C. 268, . . . 165, 803, 814, 815 
 
 Sanson v. Ball, 4 Dall. 459, .... 336, 342, 482, 484 
 
 Santa Maria, The, 7 Wheat. 490, . . . . . 194 
 
 Santissima Trinidad, The, 7 Wheat. 283, . . . 166,194,282,909 
 
 Sarah Ann, The, 13 Pet. 387; 2 Sumn. C. C. 206, . . 1524, 1583, 1708 
 
 Sarah Christina, The, 1 C. Rob. Adm. 237, . . 271, 284, 791 
 
 Sarah Maria, The, Edw. Adm. 361, ..... 249 
 
 Saratoga, The, 2 Gall. C C. 164, . . .. . . 1115, 1719 
 
 Sargent v. Morris, 3 Barnew. & Aid. 277, .... 1959 
 
 Sarquy ?'. Hobson, 2 Barnew, & C. 7 ; 3 Dowl. & R. 192; 4 Bingh. 131; 1 
 Younge & J. Exch. 437, . ...... 1139 
 
 Saunders v. Drew, 3 Barnew. & Ad. 445, .... 338, 482 
 
 V. Frost, 5 Pick. Mass. 259, ..... 1962 
 
 Saurez v. Sun Mut. Ins. Co. 2 Sandf. N. Y. 482, . . 1535, 1541 
 
 Savage v. Corn Exchange Ins. Co. 4 Bosw. N. Y. 1, . 313, 1129, 1132, 1233, 
 
 1813 
 
 V. Pleasant, 5 Binn. Penn. 403, . . 1115, 1129, 1154, 1669, 1675 
 
 Savill V. Barchard, 4 Esp. 53, . . . . . 133 
 
 Saville v. Campion, 2 Barnew. & Aid. 503, .... 1083 
 
 Sawtell I'. Loudon, 5 Taunt. 359 ; 1 Marsh. 99, . . . 559, 633 
 
 Sawyer v. Coasters' Ins. Co. 6 Gray, Mass. 221, . . . 537, 864 
 
 V. Maine F. & M. Ins. Co. 12 Mass. 291, . . 1122, 1591, 2104 
 
 V. Mayhew, 51 Me. 398, ...... 309 
 
 Sayles v. North Western Ins. Co. 2 Curt. C. C. 610, . . . 131, 872 
 
 Scaifv. Tobin, 3 Barnew. & Aid. 523, ..... 1999 
 
 Scaife v. Johnson, 3 Barnew. & C. 422, . . . 2060, 2160 
 
 Schenck v. Mercer Ins. Co. 4 Zabr. N. J. 447, . 881, 1037, 1806, 1813, 1876 
 Schieffehn v. New York Ins. Co. 9 Johns. N. Y. 21, 1057, 1137, 1438, 1662, 
 
 1708 
 
 Schmidt v. New York Ins. Co. 1 Gray, Mass. 529, . . . 2154 
 
 V. United Ins. Co. 1 Johns. N. Y. 249, . . . 1115 
 
 Schnakoneg v. Andrews, 5 Taunt. 716, . . . . . 1109 
 
 Schondler v. Wace, 1 Campb. 487, . . . . . 1973 
 
 Schroder y. Thompson, 1 J. B. Moore, 163; 7 Taunt. 462, . . 1002 
 
 V. Vaux, 15 East, 52, . . . . . 244
 
 TABLE OP CASES. Ixxiii 
 
 Schwartz i>. Ins. Co. of North America, 3 Wash. C. C. 276, . . 810 
 
 Scioto, The, Dav. Dist. Ct. 352, ..... 1420 
 
 Scott V. Averv, 5 Hou. L. Cas. 811 ; 36 Eng. L. & Eq. 1 ; 8 Exch. 487; 20 
 Eiiff. L. & Eq. 327, . . . . . . 865 
 
 u. Bourdillion, 5 Bos. & P. 213, . • . . . 144,1764 
 
 r. EaMeF. Ins. Co. 7 Paige, Ch. N. Y. 198, . . .1939 
 
 V. Irving, 1 Barnew. & Ad. 605, .... 140, 1883 
 
 V. Libbey, 2 Johns. N. Y. 336, . . . . .1115 
 
 V. Phoenix F. Ass. Co. Stu. Low. C. 354, .... 1808 
 
 V. Quebec F. Ass. Co. Stu. Low. C. 147, . . . .872 
 
 V. Rouse 8 Ir. Ch. 170, . . . . . 1939 
 
 r. Thompson, 4 Bos. & P. 181, .... 1025,1081 
 
 Scottish Mar. Ins. Co. v. Turner, 4 Hou. L. Cas. 312; 1 Macq. Hou. L. Sc. ; 20 
 Eng. L. & Eq. 24, . . . . • • . 1 740 
 
 Scriba v. Ins. Co. of North America, 2 Wash. C. C. 107, . 939, 947, 1844 
 
 Scripture v. Lowell Ins. Co. 10 Cush. Mass. 356, . . . 1097 
 
 Scudder v. Bradford, 14 Pick. Mass. 13, . . . . . 1318 
 
 Scull V. Briddle, 2 Wash. C. C. 150, ..... 1578 
 
 Sea Ins. Co. v. Fowler, 21 Wend. N. Y. 600, . . . .450 
 
 Sea Ins. Co. of Scotland v. Gavin, 2 Dow. & C Hou. L. 129, . 958 
 
 Seabury y. City Mutual M. & F. Ins. Co. MS. . . . .1796 
 
 Seaman v. Fonnereau. 2 Strange, 1183, . . . . 876 
 
 Seamans v. Loring, 1 Mas. C. C. 128, 204, 309, 363, 383, 384, 919, 935, 1253, 
 
 1838 
 Searle v. Scovill, 4 Johns. Ch. N. Y. 218, . . 1138, 1388, 1441, 1462, 1602 
 
 Sechs Geschwistern, The, 4 C. Rob. Adm. 100, . . 256 
 
 Seccomb v. Provincial Ins. Co. 10 All. Mass. 305, . 136, 1003, 1015 
 
 Sellar t;. M'Vicar, 4 Bos. & P. 23, . . . 332,930,945,991 
 
 Seller V. Work, Marshall, Ins. 299, . . . 1886,1892,1898 
 
 Seringapatam, The, 2 W. Rob. Adm. 38, . . . 1137 a, 1420 
 
 Servante v. James, 10 Barnew. & C. 410, . . . . . 1960 
 
 Senat v. Potter, 7 Term, 158, . . . . . . 2095 
 
 Seton V. Delaware Ins. Co. 2 Wash. C. C. 175, . . 1117,1154,1611 
 
 V. Low, 1 Johns. Cas. N. Y. 1, 282, 446, 527, 628, 748, 846, 1122, 1981 
 
 Sevier V. Greenway, 19 Ves. Ch. 413, .... 97 
 
 Sewall V. United States Ins. Co. 11 Pick. Mass. 90, 1424, 1526, 1527, 1543, 
 
 1548, 1551, 1607 
 V. Royal Exch. Ass. Co. 4 Taunt. 855, . . . .231 
 
 Sexton V. Montgomery County Ins. Co. 9 Barb. N. Y. 191, 872 a, 881, 886, 
 
 1806, 1876, 1949, 2090, 2144 
 Seyerstad, The, 1 Dods. Adm. 241, . . . . .249 
 
 Shapley u. Tappan, 9 Mass. 20, ..... 964,2118 
 
 Sharp V. Gladstone, 7 East, 24, . . . . 1332, 1347, 1740 
 
 r. United Ins. Co. 14 Johns. N. Y. 201, . . . 2124 
 
 Shaughnes.sy v. Rensselaer Ins. Co. 21 Barb. N. Y. 605, . . 523, 523 a 
 
 Shaw V. Robberds, or Roberts, 6 Ad. & E. 75 ; Nev. & P. 279, 871, 874, 1096 
 Shawe r. Felton, 2 East, 109, ..... 1183,1203 
 
 Shawmut Co. v. Hampden Ins. Co. 12 Gray, Mass. 540, . 383 
 
 ?'. People's Ins. Co. 12 Gray, Mass. 535, . . . 1805 
 
 Shearer v- Louisiana Ins. Co. 14 La. Ann. 797, . . . 451, 2129 
 
 Shee i;. Clarkson, 12 East, 507, . . . 1865, 1924, 1925, 1926 
 
 Shelburne v. Inchiquin, 1 Brown, Ch. 350, .... 1936 
 
 Sheldon v. Atlantic Ins. Co. 26 N. Y. 460, . . . 505, 512, 515 
 
 V. Connecticut Ins. Co. 25 Conn. 207, ... 24 
 
 V. Hartford F. Ins. Co. 22 Conn. 235, . . 70,122,527,2117 
 
 Shepherd V. Chewter, 1 Campb. 274, .... 1815 
 
 V. Union Ins. Co. 38 N. H. 232, . . ,93, 1036, 1950, 1973 
 
 VOL. I. g
 
 Ixxiv 
 
 TABLE OF CASES, 
 
 Shepherdess, The, 5 C. Rob. Adm. 2G2, 
 
 Sheppard i\ Wright, Show. Pari. Cas. 18, . 
 
 Sheriff v. Potts, 5 Esp. 96, . 
 
 Sherman v. Fair, 2 Speers, So. C. 647, . 
 
 Sherwood v. General Mut. Ins. Co. 1 Blatchf. C. C. 251, 
 
 Shieffelin v. New York Ins. Co. 9 Johns. N. Y. 21, 
 Shiff V. Louisiana Ins. Co. 6 Mart. n. S. La. 629, 
 Shiffner v. Gordon, 12 East, 296, . 
 Shilling V. Accidental Ins. Co. 2 Hurlst. & N. Exch. 42 ; 
 
 Shipton V. Thornton, 9 Ad. & E. 314, 
 Shirley v. Wilkinson, 1 Dougl. 306 ; 3 id. 41, 
 
 V. Mut. Ass. Co. 2 Rob. Va. 707, . 
 Shirtleff r. AVhitfield, 2 Brev. So. C. 71, 
 Shoemaker v. Smith, 2 Binn. Penn. 239, . 
 Shoolbred v. Nutt, Park, Ins. 346, 
 Shore v. Bentall, 7 Barnew. & C. 798, n., . 
 Shot well V. Jefferson Ins. Co. 5 Bosw. N. Y. 247, 
 Shultz V. Ohio Ins. Co. 1 B. Monr. Ky. 336, 
 Shumway i'. Stillman, 6 Wend. N. Y. 447, 
 Sibbald v. Hill, 2 Dow, Pari. Cas. 263, 
 Sideways v. Todd, 2 Stark. 400, 
 Siffken v. AUnut, 1 Maule & S. 39, 
 Siffkin V. Glover, 4 Taunt. 717, 
 
 V. Lee, 5 Bos. & P. 484, . 
 Sillem V. Thornlon, 3 Ell. & B. 868 ; 26 Eng. L. & Eq. 238, 
 Silloway v. Neptune Ins. Co. 12 Gray, Mass. 73, . 
 Silva V. Linder, 2 Marsh. 437, 
 
 V. Low, 1 Johns. Cas. N. Y. 184, . 
 Sills V. Brown, 1 Carr. & P. 60, 
 Simeon r. Bazett, 2 Maule & S. 94, 
 Simmes v. Marine Ins. Co. 2 Cranch, C. C. 618, 
 Simond v. Boydell, 1 Dougl. 255, . 
 Simonds v. Hodgson, 6 Bingh. 114, . 
 
 V. Union Ins. Co. 1 Wash. C. C. 382, 443, 
 
 V. White, 2 Barnew. & C. 805 ; 8 Dowl. & R. 375 
 Simpson v. Accidental Ins. Co. 2 C. B. N. s. 257, . 
 
 V. Pennsylvania Ins. Co. 38 Penn. St. 250, 
 Sims V. Gurney, 4 Binn. Penn, 513, 
 
 V. Wilhng, 8 Serg. & R. Penn. 103, 
 Simson v. Charleston F. & Mar. Ins. Co. Dudl. 
 Siordet v. Hall, 4 Bingh. 607, . 
 Sisters, The, 5 C. Rob. Adm. 155 ; 4 id. 275, 
 Skidmore v. Desdoity, 2 Johns. Cas. N. Y". 77, 
 Skinner v. Dayton, 2 Johns. Ch. N. Y. 526, 
 
 V. Stocks, 4 Barnew. & Aid. 437, 
 
 V. Western F. & M. Ins. Co. 19 La. 273, . 
 Sleght V. Hartshorne, 1 Johns. N. Y. 192; 2 id. 531, 
 Slingsby's case, 5 Coke, 19 ; 2 Leon. 47, . 
 Sloat V. Royal Ins. Co. 49 Penn. St. 14, 
 Slocum V. United Ins. Co. 1 Johns. Cas. N. Y. 151, 
 Small V. Gibson, 16 Ad. & E. 128, 141 ; 16 Hou. L. Cas. 353 ; 3 Eng. L. & Eq. 
 290, 299; 24 id. 16, . . . 720,727,728,729,2032 
 Smetz V. Kennedy, Ril So. C. 218, . . . . 135, 698, 727 
 Smidt y. United Ins. Co. 1 Johns. N. Y. 249, . . 1115,2122 
 
 Smith i;. Bell, 2 Caines, Cas. N. Y. 153 1539, 1543 
 
 831, 838, 840 
 
 . 1934 
 
 . 999, 2151 
 
 91 
 
 1416, 1419, 1436, 
 
 2105 
 
 . 1137 
 
 1297, 1414 
 
 244 
 
 40 Eng. L. & Eq, 465, 
 
 358 
 
 . 1462 
 
 546 
 
 . 593 
 
 . 1889, 1891 
 
 . 1871 
 
 601 
 
 733, 1049 
 
 91, 180, 880 
 
 . 1777 
 
 2104 
 
 530, 579 
 
 1908 
 
 246, 342, 1819, 1846 
 
 246 
 
 . 808 
 
 70, 553 
 
 1631, 1678, 1785 
 
 1957, 1972, 1998 
 
 710, 1001, 1018 
 
 2112 
 
 911, 914 
 
 . 177,527 
 
 782, 1840, 1943 
 
 467 
 
 1645, 1741 
 
 1375, 1414, 1416 
 
 505, 897 
 
 881, 883, 904 
 
 1279, 1313, 1318, 1934 
 
 . 1360, 1411, 2148 
 
 So. C. 239, . .1129 
 
 1051 
 
 265, 2124 
 
 282, 446, 748, 846, 1122, 1126 
 
 771 
 
 1959 
 
 1767, 1771 
 
 67, 120, 144, 786, 805 
 
 . 1960 
 
 1263 a 
 
 1662
 
 TABLE OF CASES. 
 
 Ixx 
 
 448, 
 
 592, 641, 1481 
 
 286 
 
 Smith v. Bowditch Mut. F. Ins. Co. 6 Cush. Mas 
 V. Brown, 3 N. H. .580, 
 V. Buchanan. 3 Wash. C. C. 127, 
 V. Cologan, 2 Term, 188, n., 
 V. CoUimbia Ins. Co. 1 7 Penn. St. 2.53, 
 V. Delaware Ins. Co. 3 Serg. & R. Penn. 82, 
 
 3 Wash. C. C. 127, 
 17. Empire Ins. Co. 25 Barb. N. Y. 497, 
 V. Fuge, 3 Campb. 456, 
 V. Insurance Co. 24 Penn. St. 320, 
 V. Lascelles, 2 Term, 187, 
 V. Manufacturers' Ins. Co. 7 ]Metc. Mass. 448, 
 V. Mechanics' Ins. Co. 32 N. Y. 399, . 
 V. Mississippi F. & Mar. Ins. Co. 11 La. 142, 
 V. Mobile Ins. Co. 30 Ala. x. s. 16 7, 
 V. Monmouth Ins. Co. 50 Me. 96, 
 V. Newburvport Mar. Ins. Co. 4 Mass. 668, 
 V. Odiin, 4 Yeates, Penn. 468, 
 V. Plummer, 1 Barnew. & Aid. 575, 
 I'. Readshaw, Park, Ins. 510, 
 
 V Reynolds 1 Hurlst. & N. E.xch. 221 ; 38 Eng. L. & Eq. 292 
 V. Robertson, 2 Dow, Pari. Cas. 474, 
 17. Saratoga Mut. Ins. Co. 1 Hill, N. Y. 49 
 
 641, 874 a 
 
 . 758 
 
 1669 
 
 1870, 1890 
 
 1716, 1749 
 
 . 1154 
 
 3 id. 508, 
 
 1156 
 
 874 a, 1876 
 
 2124 
 
 667 
 
 1862, 1888 
 
 . 1497 
 
 642, 882 
 
 . 460 
 
 938 
 
 879, 880 
 
 1669 
 
 9 
 
 289 
 
 780 
 
 461 
 
 1662, 1691, 1704 
 
 97, 510, 523, 879, 
 
 904 
 t7. Scott, 4 Taunt. 1 26, ..... 1099,2004 
 
 V. Smith, 1 Tyrw. Exch. 52; 2 Crompt. & M. Exch. 231, . 95 
 
 V. Steinback, 2 Caines, Cas. N. Y. 158, 
 
 V. Surridge, 4 Esp. 25, 
 
 V. Taylor, 2 Chitt. 142, 
 
 V. Touro, 14 Mass. 112, 
 
 17. Universal Ins. Co. 6 Wheat. 176, 
 
 t;. Williams, 2 Caines, Cas. N. Y. 110, 
 
 V. Wilson, 3 Barnew. & Ad. 728, 
 
 V. Wright, 1 Caines, N. Y. 43, . 
 
 Snapp V. Merchants' Ins. Co. 8 Ohio, St. 458, 
 Snell V. Delaware Ins. Co. 4 Dall. 430 ; 1 Wash. C. C. 509, 
 V. Faussatt, 1 Wash. C. C. 271, . 
 
 17. Marryatt, xVbbott, Shipp. 644, .... 
 Snook 17. Davidson, 2 Canipb. 218, . 
 Snowden v. Phoenix Ins. Co. 3 Binn. Penn. 457, . 
 Snyder i;. Farmers' Ins. & Loan Co. 13 Wend. N. Y. 92 ; 16 id. 481, 
 
 992, 1494, 1507, 2085 
 
 200, 690, 710, 720, 1002, 2104 
 
 1960 
 
 . 1735 
 
 1113, 1114, 1115, 1956 
 
 300, 307, 2109 
 
 67, 144 
 
 138, 1282 
 
 1162 
 
 1219, 1229, 2127 
 
 2104 
 
 . 2005 
 
 1915 
 
 118, 820 
 
 72, 539, 
 
 638, 871, 873 
 Soares v. Thornton, 7 Taunt. 627 ; 1 J. B. Moore, 373, . . 1056, 1083 
 
 Sobrey v. Terrier de Laistre, 2 Harr. & J. Md. 193, . . . 2049 
 
 Society for the Propagation of the Gospel v. Wheeler, 2 Gall. C. C. 105, 151, 
 
 167, 814 
 Sohier v. Xorwich F. Ins. Co. 11 All. Mass. 336, . . . ,1163 
 
 Solly i'. VVhitmore, 5 Barnew. & Aid. 45, . . . 1007 
 
 Somerville v. Somerviile, 5 Ves. Ch. 787, . . . . .164 
 
 Somerset Ins. Co. v. McAnally. 46 Penn. St. 41, . . . 874 a 
 
 Somes 17. E;(juitable Ins. Co. 12 Gray, Mass. 531, . . . 1928, 1965 
 
 V. Sugrue, 4 Carr. & P. 276, .... 1534, 1579 
 
 Sorbe v. Merchants' Ins. Co. 6 La. 185, . . . . .447 
 
 South, Ex parte, 3 Swanst. Ch. 394, ..... 79 
 
 South Sea Co. v. Bumstead, 1 Eq. Cas. Abr. 76, . . . . 2071 
 
 Southcoinbe v. Merriman, Carr. & M. 286, . . . 900 
 
 Spatlbrd v. Dodge, 14 Mass. 66, . . 1319, 1332, 1374, 1379, 1387, 1392
 
 1: 
 
 TABLE OF CASES. 
 
 Sparenburg v. Bannatyne, 1 Bos. & P. 163, 
 
 Sparkesu. Marshall, 2 Bingh. N. c 761, . 82,180,: 
 
 Sparrow v. Carruthers, 2 Strange, 1236, 
 
 Speculation, The, Edw. Adm. 344, 
 
 Spencer v. Franco, 2 Burr. 1211, . 
 
 Sperry v. Delaware Ins. Co. 2 Wash. C. C 243, 
 
 Spes and Irene, The, 5 C. Rob. 'Adm. 76, 
 
 Speyer v. New York Ins. Co. 3 Johns. N. Y. 88, 
 
 Spicer v. Cooper, 1 Q. B. 424, 
 
 Spitta V. Woodman, 2 Taunt. 416 ; 16 East, 188, n., 
 
 Spitzer v. St. Mark's Ins. Co. 6 Du. N. Y. 6, 
 
 Splidt V. Bowles, 10 East, 279, 
 
 Spring V. South Carolina Ins. Co. 8 Wheat. 268, 101, ] 
 
 Spring Ins. Co. v. Evans, 15 Md. 54, 
 
 Spruiil ?'. North Carolina Ins. Co. 1 Jones, No. C. 126, 
 
 Staadt Embden, The, 1 C. Rob. Adm. 26, 
 
 Stacey v. Franklin F. Ins. Co. 2 Watts & S. Penn. 506, 
 
 Stackpole v. Arnold, 11 Mass. 27, . 
 
 Stackpool V. Simond, Marshall, Ins. 7 72 ; Park, Ins. 648, 
 
 Staflbrd v. Clark, 2 Bingh. 437, . 
 
 Stainbank v. Fenning, 11 C. B. 51 ; 6 Ens^. L. & Eq. 412 
 
 V. Shepard, 20 Eng. L. & Eq. 547, 
 Stamma v. Brown, 2 Strange, 1173 ; 8 East, 136, 
 Stanton v. Eagar, 16 Pick. Mass. 467, 
 Stanwood v. Rich, Sup. Jud. Ct. Mass. Suffolk, 1817, 
 Starbuck v. New England Ins. Co. 19 Pick. Mass. 198, 
 Stark County Mut. Ins. Co. v. Hurd, 19 Ohio, 149, . 
 State Ins. Co. v. Arthur, 30 Penn. St. 315, 
 
 V. Roberts, 31 Penn. Sr. 438, . 
 ■Stebbins v. Globe Ins. Co. 2 Hall, N. Y. 632, 
 Steel V. Lacy, 3 Taunt. 285, . 
 Steele v. Franklin Ins. Co. 17 Penn. St. 290, 
 Steinbach v. Church, 3 Johns. Cas. N. Y. 269, 
 
 V. Columbian Ins. Co. 2 Caines, N. Y. 132, 
 
 V. Ogden, 3 Caines, N. Y. 1, . 
 
 V. Rhinelander, 3 Johns. Cas. N. Y. 269, 
 
 Stephenson v. Pacific Ins. Co. 7 All. Mass. 232, 
 
 Stert, The, 4 C. Rob. Adm. 65, . 
 
 Stetson V. Mass. Mut. F. Ins. Co. 4 Mass. 330, 
 
 170, 171 
 
 973, 2011, 2018, 2123 
 
 . 970 
 
 247 
 
 . 1531 
 
 . 625, 831 
 
 337 
 
 144, 967, 1331 
 
 144 
 
 . 861, 939 
 
 . 1038 
 
 1740 
 
 909, 1919, 1920, 1923, 
 
 1978 
 
 . 2174 
 
 901 
 
 . 232, 284, 791 
 
 122, 864, 881 
 
 518 
 
 353, 528, 554, 652 
 
 2037, 2061 
 
 289 
 
 301 
 
 1062, 1072, 1074, 2022 
 
 . 197 
 
 701, 715, 726 
 
 731, 735 
 
 881 
 
 762, 872 
 
 81 
 
 72, 145, 642, 1033, 1943 
 
 527, 550, 626, 642, 745, 809, 1817 
 
 . 1850 
 
 . 388, 393 
 
 992, 1674, 1820, 2103 
 
 1082 
 
 388, 393, 919, 1827, 2054 
 
 1578, 1586 
 
 828, 844 
 
 187, 211, 286, 394,422, 1036, 
 
 1956 
 
 Stevens v. Beverly Ins. Co. Mass. Sup. Jud. Ct. Essex, Oct. 1820, 66, 963 
 
 V. Columbian Ins. Co. 3 Caines, N. Y. 43, . . 1238, 1744 
 
 17. Stevens, 1 Ashm. Penn. 190, ..... 95 
 
 Stevenson i'. Snow, 3 Burr. 1237; 1 W. Blackst. 318, . 1834, 1844 
 
 Stewart v. Aberdein, 4 Mees. & W. Exch. 288, . . 1881, 1893, 2169 
 
 V. Bell, 5 Barnew. & Aid. 238, .... 593 
 
 V. Dunlop, 4 Brown, Pari. Cas. 483 ; Marshall, Ins. 2d ed. 467, 562, 
 
 2159 
 r. Greenock Mar. Ins. Co. 2 Hou. L. Cas. 159, . . 1740 
 
 j;. Morrison, Millar, Ins. 59, ... . 527, 551, 620 
 
 I'. Steele, 5 Scott, N. R. 727, . . . . ,1743 
 
 V. Tennessee Ins. Co. 1 Humphr. Tenn. 242, . . 982, 1048 
 
 V. Wilson, 12 Mees. & W. Exch. 11, . . . 70, 864, 2026 
 
 Stiles V. Stokes, 7 East, 506, ...... 2014 
 
 Stillwell V. Staples, 19 N. Y. 401, ..... 429, 439 
 
 Stimpson v. Monmouth Ins. Co. 47 Me. 379, .... 1806 
 
 A
 
 TABLE OP CASES. 
 
 Stirling V. Vaughan, 2 Campb. 225; 11 East, 619, 
 Stitt V. Wardell, Park, Ins. 438 ; 2 Esp. 610, 
 Stockdale v. Diinlop, 6 Mees. & W. Exch. 224, 
 Stocker t-. Harris, 3 Mass. 409, . .963 
 
 V. Merrimack Ins. Co. 6 Mass. 220, 
 Stocking ?;. Fairchild, 5 Pick. Mass. 181, 
 Stocks V. Dobson, 17 Jur. 223, 
 Stockton V. Hall, Hard. Ky. 160, 
 Stoever v. Whitman, 6 Binn. Penn. 417, . 
 Stokes V. Carne, 2 Campb. 339, 
 
 «;. Cox, 1 Hurlst. & N. Exch. 320, 533 ; 3 
 437, .... 
 
 Stone V. Ball, 3 Lev. 348, . 
 
 r. Dennis, 12 Ala. 231, . 
 V. National Ins. Co. 19 Pick. Mass. 34, 
 V. Wood, 7 Cow. N. Y. 453, 
 Storer v- Elliot Ins. Co. 45 Me. 175, 
 
 V. (iray, 2 Mass. 565, 
 Story t). Strettell, I Dall. Penn. 10, 
 Stout V. City Ins. Co. 12 Iowa, 371, 
 Stracy v. Deey, 7 Term, 361, n., 
 Street v. Augusta Ins. Co. 12 Rich. So. C. 13, 
 
 V. Kigby, 6 Ves. Ch. 815, . 
 Strong V. Ilarvey, 3 Bingh. 304, 
 
 V. High, 2 Rob. La. 103, . 
 
 V. ]\Ianufacturers' Ins. Co. 10 Pick. Mass. 40, 
 
 V. Natally, 4 Bos. & P. 16, . 
 
 V. New York Firemen's Ins. Co. 11 Johns. 
 
 V. Rule, 3 Bingh. 315, 
 
 I'. Sun Mut. Ins. Co. 31 N. Y. 103, 
 •Stuart V. Columbian Ins. Co. 2 Cranch, C. C. 442 
 Sturgt^ss V. Cary, 2 Curt. C. C. 59, 
 Sturgis V. Cary, 2 Curt. C. C. 382, 
 Suart V. Powell, 1 Barnew. & Ad. 266, . 
 Success, The, 1 Dods. Adm. 131, . 
 Suckley v. Delafield, 2 Caines, N. Y. 222, 
 Suffolk Ins. Co. V. Boyden, 9 All. Mass. 123, 
 Sullivan v. Mass. Mut. F. Ins. Co. 2 Mass. 318, 
 Sun Ins. Co. v. AV right, 23 How. 412, 
 Sunderland Mar. Ins. Co. v. Kearney, 16 Ad. & E. 
 
 Surtees v. Hubbard, 4 Esp. 204, 
 
 Susa, The, 2 C. Rob. Adm. 251, . 
 
 Susan, Tiie, 6 C. Rob. Adm. 461, n., . 
 
 Sussex Ins. Co. v. Woodruff, 2 Dutch. N. J. 541, 
 
 Sutherland v. Pratt, 11 Mees. & W. 296 ; 12 id. ll 
 
 Sutton V. Buck, 2 Taunt. 302, 
 
 Suydam v. Mar. Ins. Co. 1 Johns. N. Y. 181 ; 2 id 
 
 Swan V. Nesmith, 7 Pick. Mass. 220, 
 
 Sweeney v. Franklin F. Ins. Co. 20 Penn. St. 337 
 
 Sweet V. Pym, 1 East, 4. . 
 
 Sweeting v. Pearce, 9 C. B. N. 8. 534, . 
 
 Swete V. Fairlie, 6 Carr. & P. 1, . 
 
 Swift V. Vermont Mut. F. Ins. Co. 18 Vt. 303, 
 
 Syers v. Bridge, Dougl. 529 ; 1 Park, Ins. 133, 
 
 Symonds v. Union Ins. Co. 4 Dall. 417, 
 
 293, 321, 1859, 1965 
 
 999, 1001 
 
 183 
 
 1002, 1004, 1017, 1203, 1659 
 
 . 629, 742, 744 
 
 68 
 
 79 
 
 95 
 
 67, 133 
 
 2124 
 
 Eng. L. & Eq. 561 ; 38 id. 
 
 883 
 
 27, 127 
 
 865 
 
 917,1065 
 
 11 
 
 . 2119 
 
 1581 
 
 . 1590 
 
 7, 314, 755, 870, 1983 
 
 . 1916 
 
 1137 a, 2109 
 
 . 865 
 
 1424, 1983, 2014, i!043 
 
 . 1892 
 
 286, 640,880, 1481 
 
 973 
 
 N. Y. 323, . 1385, 1414 
 
 2014, 2026 
 
 1162 
 
 177,950 
 
 1313 
 
 . 1326 
 
 210 
 
 804 
 
 . 669, 1075 
 
 . 1712 
 
 . 950,1956 
 
 504 
 
 925; 6 Eng. L. & Eq. 312, 
 
 409, 2113 
 
 1974 
 
 814,815 
 
 825 
 
 421, 588, 1712 
 
 291, 577, 2029, 2038 
 
 . 2124 
 
 138, 1002, 1154, 1480, 
 
 1678, 1681, 1684, 1723 
 
 . 1SJ3 
 
 172 
 
 . 1917 
 
 1928 
 
 648, 657 
 
 347 
 
 129, 1002, 1030 
 
 1115
 
 Ixxviii 
 
 TABLE OP CASES. 
 
 T. 
 
 Tabbsv. Bendelack, 4 Esp. 108, ...... 162 
 
 Taggard v. Lorinc;, 16 Mass. 336, . . . . .1083 
 
 Tait V. Levi, 14 East, 481, ....... 707 
 
 Talbot, Ex parte, 5 De G. & S. Ch. 386 ; 13 Eng. L. & Eq. 205, . 1795 a 
 
 ■Talcot V. Commercial Ins. Co. 2 Johns. N. Y. 1 24, 467, . . 725, 2152 
 
 598, 994, 1801, 1802 
 
 . 2050 
 
 1057, 1059, 1578, 2144 
 
 . 70,74 
 
 1568 
 
 937 
 
 7, 202 
 
 . 1083 
 
 2028 
 
 1048, 1092, 1129 
 
 108, 137, 139, 460, 
 
 1282 
 
 17, 1813 
 
 895 a 
 
 144 
 
 309; 4 Campb. 337, 
 
 1310 
 
 508, 720, 721, 723, 724, 726, 734, 735, 771, 996, 
 
 1820, 1849, 1993 
 
 . 2052 
 
 V. Marine Ins. Co. 2 Johns. N. Y. 130, 
 Taleott i;. Del. Ins. Co. 2 Wash. C. C 449, 
 Tanner v. Bennett, Ry. & M. 182, 
 Tarlton v. Stanifbrth, 5 Term, 695, 
 Tartar, The, 1 Hagg. Adm. 1, . 
 Tasker v. Cunningham, 1 Bligh, Hou. L. 87, 
 
 V. Scott, 6 Taunt. 234, .... 
 Tate V. Meek, 8 Taunt. 280 ; 2 J. B. Moore, 278, . 
 Tatem v. Perient, Yelv. 195, . 
 Tatham v. Hodgson, 6 Term, 656, . 
 Taunton Copper Co. v. Merchants' Ins. Co. 22 Pick. Mass 
 
 Tayloe v. Merchants' Ins. Co. 9 How. 390, 
 Taylor i\ ^tna L. Ins. Co. 13 Gray, Mass. 434, 
 
 V. Briggs, 2 Carr. & P. 525, 
 
 V. Curtis, 1 Holt, 192 ; 6 Taunt. 608; 2 Marsh 
 
 V. Lowell, 3 Mass. 331, 
 
 V. M' Vicar, 6 Esp. 27, 
 V. Popham, 2 Brown, Ch. 168, . 
 V. Sumner, 4 Mass. 56, 
 V. The Cato, Pet. Adm. 48, 
 V. Wilson, 15 East, 324, 
 V. Woodness, Park, Ins. 510, 
 Teal V. Auty, 2 Ball & B. 100, 
 Teasdale v. Charleston Ins. Co. 2 Brev. So. C. 190, 
 Tebbetts v. Hamilton Ins. Co. 1 All. Mass. 305, . 
 
 3 All. Mass. 569, 
 Tenant v. Eliot, 1 Bos. & P. 3, . 
 Tenet v. Phoenix Ins. Co. 7 Johns. N. Y. 363, . 
 Tennant v. Henderson, 1 Dow, Pari. Cas. 324, 
 Tennessee Marine Ins. Co. v. Scott, 14 Mo. 18, 
 Thatcher v. Bellows, 13 Mass. Ill, . 
 
 Thayer v. Middlesex Mut. F. Ins. Co. 10 Pick. Mass. 326, 
 Tbellusson v. Bewick, 1 Esp. 77, . 
 
 V. Fergusson, Dougl. 346, . 
 V. Fletcher, Dougl. 301, 
 
 1 Esp. 73, . 
 
 V. Shedden, 5 Bos. & P. 228, . 
 V. Staples, Dougl. 351, n., . 
 Theobald v. Railway Ass. Co. 10 Exch. 45 ; 26 Eng. L. & 
 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 
 Thomas v. Achilles, 16 Barb. N. Y. 491, . 
 V. Graves, 1 Const. So. C. 308, 
 V. Foyle, 5 Esp. 88, . . . 
 
 V. Rockland Ins. Co. 45 Me. 116, 
 V. Royal Exch. Ass. Co. 1 Price, Exch. 195, 
 V. Whallon, 31 Barb. N. Y. 172, 
 
 771 
 
 1823, 1825 
 
 1719, 
 
 341,473, 480, 590 
 
 781 
 
 14 
 
 1669, 1741 
 
 . 872 a 
 
 904,2114 a 
 
 . 1908 
 
 961 
 
 . 1002 
 
 46 
 
 . 856 
 
 17,20 
 
 . 1231 
 
 773, 915, 945, 1001 
 
 211 
 
 1692 
 
 . 2137 
 
 772, 773, 945» 
 
 Eq. 432, 1046 a 
 
 238 
 
 . 523 a 
 
 2119 
 
 2124, 2126 
 
 . 1435, 1529, 1680 
 
 . 432 
 
 523 a
 
 TABLE OF CASES. 
 
 h 
 
 XXIX 
 
 266, 
 
 Thomas v. Withers, 5 Term, 117, . 
 Thompson v. Barker, 1 Root, Couii. 64, 
 
 V. Buchanan, 4 Brown, Pari. Cas. 482, . 
 
 V. Charnock, 8 Term, 139, . 
 
 V. Donaldson, 3 Esp. 63, 
 
 V. Hopper, 1 Ell. B. & E. 1038; 6 Ell. & B. 937 ; 
 39 . . . 
 
 6 Ell. & B. 172; 34'Eng. L. & Eq 
 
 V. Hunter, 2 Mood. & R, 251, n., 
 
 V. Leake, 1 Madd. Ch. 39, . 
 
 V. Perkins, 3 Mas. C. C 232, . 
 
 V. Read, 12 Serg. & R. Penn. 440, . 
 
 V. Redman, 11 Mees. & W. Exoh, 487, . 
 
 V. Reynolds, 7 Ell. & B. 172, 
 
 V. Rowcroft, 4 East, 34, . 
 
 V. Royal Exchange Ass. Co. 1 Maule & S. 30, 
 16 East, 214, 
 
 V. Stewart, 3 Conn. 171, 
 
 V. Taylor, 6 Term, 478, . 
 
 V. Whitmore, 3 Taunt. 227, . 
 Thomyris, The, Edw. Adm. 17, 
 Thorndike v. Boardman, 4 Pick. Mass 471, 
 
 V. Stone, 11 Pick. Mass. 183, . 
 Thome v. Deas, 4 Johns. N. Y. 84, 
 V. Hicks, 7 Cow. N. Y. 797, 
 Thornley v. Hebson, 2 Barnew. & Aid. 513, 
 Thornton v. Knight, 16 Sim. Ch. 509, 
 V. Lance, 4 Campb. 231, 
 V. Roval E.-ichange Ass. Co. Peake, 25, 
 
 V. U.'S. Ins. Co. 12 Me. 150, 
 Thurston v. Koch, 4 Ball. 348, 
 
 V. Murray, 3 Binn. Penn. 326, 
 
 . 195 
 
 1001 
 
 529, 571 
 
 58, 865, 1940 
 
 925 
 
 38 Eng. L. & Eq. 
 
 . 1132 
 
 727, 1046 
 
 . 1431 
 
 2124 
 
 . 1854 
 
 115, 1116, 1886, 1899 
 
 . 1924 
 
 1416 
 
 1649,1740 
 
 1166,1173 
 
 1766, 1773 
 
 2050 
 
 332 
 
 1099, 1758 
 
 278 
 
 1009 
 
 950, 1265, 1484 a, 1568, 1847 b 
 
 . 1861, 1866, 1867, 1885 
 
 398 
 
 1528, 1558 
 
 . 1939 
 
 . 217, 2153 
 
 • 2112 
 
 1415, 1455 
 
 361, 1251 
 
 2090 
 
 Thurtell V. Beaumont, 8 J. B. Moore, 612 ; 1 Bingh. 339, 
 Tidmarsh v. Wash. F. & M. Ins. Co. 4 Mas. C. C. 439, 
 
 Tidswell v. Angerstein, Peake, 151, 
 
 Tierney v. Etherington, 1 Burr. 348, . 
 
 Tillou V. Kingston Mut. F. Ins. Co. 7 Barb. N. Y. 570 
 
 Tilton, The, 5 Mas. C. C. 475, 
 
 Tilton V. Hamilton F. Ins. Co. 1 Bosw. N. Y. 367, 
 
 Tindall v. Bell, 11 Mees. & W. Exch. 228, 
 
 V. Brown, 1 Term, 167, . 
 Tinkler v. Walpole, 14 East, 226, 
 Titcomb v. Thomas, 5 Me. 282, 
 Tittemore v. Verm. Mut. Ass. Co. 20 Vt. 546, . 
 Tobago, The, 5 C. Rob. Adm. 218, 
 Tobey v. County of Biistol, 3 Stor. C. C. 800, . 
 Tobin V. Harford, 13 C. B. x. s. 791, 
 Todd V. Reed, 4 Barnew. & Aid. 210, . 
 Toledo Ins. Co. v. Speares, 16 Ind. 52, 
 Tolman v. Manuf. Ins. Co. 1 Cush. Mass. 73, . 
 Tom V. Smith, 3 Caines, N. Y. 245, 
 Tomlinson v. Monmouth Ins. Co. 47 Me. 232, . 
 Tonge V. Watts, 2 Strange, 1251, . 
 Toppan V. Atkinson, 2 Mass. 365, 
 Topping V. Bickford, 4 All. Mass. 120, . 
 
 2080, 2154 
 
 561, 719, 724, 2152, 
 
 2157 
 
 293 
 
 119, 941, 997 
 
 5N. Y. 405, 81,636, 
 
 868, 872, 872 a, 880 
 
 1524, 1569 
 
 1098 a 
 
 1098 
 
 . 1953 
 
 2124 
 
 80 
 
 880 
 
 . 263 
 
 ■ . . 865 
 
 . 1198 
 
 1883 
 
 460, 1282 
 
 192 
 
 1503, 1674 
 
 880 
 
 329 
 
 395, 416, 423 
 
 . 510
 
 1: 
 
 TABLE OF CASES. 
 
 Toulmin v. Anderson, 1 Taunt. 227, 
 V. Inglis, 1 Canipb. 421, . 
 Toiitenn; v. Hubbard, 3 Bos. & P. 291, . 
 Townc (;. Fitt-hburg Ins. Co. 7 AH. Mass. 51, 
 Townseud v. North Western Ins. Co. 18 N. Y. 168, 
 
 V. Weld, 8 Mass. 146, . 
 Towson V. Guyon, Park, Ins. 438, 
 Traders' Ins. Co. v. Robert, 9 Wend. N. Y. 404, 474, 
 
 81, 
 
 V. Stone, 9 All. Mass. 483, . 
 Tracy v. Wood, 3 Mas. C. C. 132 . 
 Trask r. State Ins. Co. 29 Penn. St. 198, 
 Treadvvay v. Hamilton Ins. Co. 29 Conn. 68, 
 Treadwell v. Union Ins. Co. 6 Cow. N. Y. 270, 708, 710 
 
 Tredwen v. Holman, 1 Hurlst. & C. Exch. 72, . 
 Tremenhere v. Tresilian, 3 Kebl. 91 ; 1 Sid. 453, . 
 Trench v. Chenango County Mut. Ins. Co. 7 Hill, N. Y. 122, 
 Trende Sostre, The, 6 C. Rob. Adm. 390, n., 
 Trenholm v. Alexander, 2 Brev. So. C. 238, . 
 Trenton Ins. Co. v. Johnson, 4 Zabr. N. J. 576, . 
 
 V. McKelway, 1 Beasl. N. J. 133, 
 Trew V. Railway Ass. Co. 5 Hurlst. & N. Exch. 211 ; 6 id. 839 
 Trident, The, I'W. Rob. Adm. 33, . 
 Triheten, The, 6 C. Rob. Adm. 65, 
 Tripp V. Pacific Ins. Co. 7 All. Mass. 230, 
 Triston v. Hardey, 14 Beav. Rolls, 232, . 
 Trott V. Wood, 1 Gall. C. C. 443, 
 Troy F. Ins. Co. v. Carpenter, 4 Wise. 20, . 
 Truman v. Child, 1 Brown, Ch. 94, . 
 Trumbull v. Portage County Ins. Co. 12 Ohio, 305, 
 Truscott V. Christie, '2 Brod & B. 320 ; 5 J. B. Moore, 33, 
 Trustees v. Brooklyn Ins Co. 19 N. Y. 305, 
 Tucker v. Juhel, l' Johns. N. Y. 20, . 
 
 V. United M. & F. Ins. Co. 12 Mass. 288, . 
 Tuckerman r. Brown, 33 N. Y. 297, . 
 Tudor V. Macomber, 14 Pick. Mass. 34, . 
 
 V. New England Ins. Co. 12 Cush. Mass. 554, . 
 Tullock V. Boyd, 1 J. B. Moore, 174 ; 7 Taunt. 471 ; 1 Holt, 487, 
 Tunno t;. Edwards, 12 East, 488, 
 Turley v. North American Fire Ins. Co. 25 Wend. N. Y. 374, 
 
 1081, 2022 
 982 
 
 915, nil 
 
 . 874 a 
 
 872 
 
 66 
 
 1000 
 
 105, 289, 880, 881. 
 1973, 1987 
 523 a 
 1885 
 1806 
 874 a 
 , 1602, 1766, 1769 
 865 
 . 1583 
 70, 870, 872 a 
 262, 835 
 . 2066, 2174 
 7, 356, 1755 
 510 
 . 2132 
 289, 1565 
 829 
 510 
 79 
 138 
 2014, 2077 
 1937 
 
 516, 
 
 332 
 
 9, 14, 904 
 
 1154 
 
 . 1115 
 
 523 a 
 
 1361, 1365 
 
 1132, 1767 
 
 246, 2124 
 
 1203, 1695 
 
 1808, 1809, 
 
 1813 
 Turnbull v. The Ship Enterprise, Hopk. Adm. 17 ; Condy's Marsh. 741 b, n., 
 
 1565, 1568 
 Turner v. Burroughs, 5 Wend. N. Y. 544 ; 8 id. 144, 
 V. Protection Ins. Co. 25 Me. 515, 
 V. Scottish Mar. Ins. Co. 4 Hou. L. Cas. 312 ; 1 Macq. Hou 
 
 Eng. L. & Eq. 24, . 
 V. Stetts, 28 Ala. N. s. 420, .... 
 Turpin v. Bilton, 5 Mann. & G. 455, .... 
 
 Tutela, The, 6 C Rob. Adm. 177, . 
 
 Tuttle V. Robinson, 33 N. H. 104, ..... 
 Twee Frienden, The, 3 C. Rob. Adm. 29, . 
 
 Twee Gebroeders, The, Edw. Adm. 95, . 
 Twee Juffrowen, The, 4 C. Rob. Adm. 242, ... 
 Twenilow v. Oswin, 2 Campb. 85, . . . . 1099, 
 
 Two Catherines, The, 2 Mas. C. C 319, 
 
 Tyler v. Mtna. Ins. Co. 12 Wend. N. Y. 507 ; 16 id. 385, 640, 881, 
 V. Carlton, 7 Me. 175 
 
 145, 393, 407, 1953 
 1004, 1022 
 L. Sc. ; 20 
 . 1740 
 490 
 . 1892 
 829, 838 
 . 511 
 165 
 247, 249 
 271 
 1496, 2139 
 1719 
 1712, 1948 
 515
 
 TABLE OF CASES. Ixxxi 
 
 Tyler v. Horn, 1 Park, Ins. 329, ..... 1844, 1845 
 Tyrie V. Fletcher, Covvp. 666, ..... 1819,1834 
 
 Tyson w. Gurney, 3 Term, 477, ...... 784 
 
 U. 
 
 Uhde V. Walters, 3 Campb. 16, . ....*• 144 
 
 Underbill v. Agawam Mut. F. Ins. Co. 6 Cusb. Mass. 440, . 553, 638, 1481, 
 
 1812, 1813, 2174 
 Underwood v. Robinson, 4 Campb. 138, .... 1579 
 
 Union Bank v. Knapp, 3 Pick. Mass. 96, . . . . . 2098 
 
 t;. Laird, 2 Wheat. 390, ..... 1797 
 
 Union Ins. Co. v. Commercial Ins. Co. 2 Curt. C. C. 524, . . .117 
 
 V. Hoge, 21 How. 35, . . . . . 523 a 
 
 V. Keyser, 32 N. H. 313, . . . . .510 
 
 v. Russell, Antb. N. Y. 128, .... 1718 
 
 V. Tysen, 3 Hill, N. Y. 118, .... 953 
 
 United Ins. Co. v. Lenox, 1 Johns. Cas. N. Y. 377 ; 2 id. 443 ; 3 Caines, N. Y. 
 251, ....... 1741 
 
 V. Robinson, 2 Caines, N. Y. 280 ; 1 Johns. N. Y. 592, 1590, 
 
 1736, 1868 
 
 r. Scott, 1 Johns. N. Y. 106, . . . 1722,1732 
 
 United States f. Amedy, 11 Wheat. 392, . . . . 2110 
 
 V. Grundy, 3 Cranch, 337, . . . . .195 
 
 V. Hunt, 2 Stor. C. C. 121, . . . . 726 
 
 V. Ins. Co. of Alexandria, 2 Cranch, C. C. 266, . 1877 a 
 
 V. Jones, 4 Dall. 412, . . . . . 2110 
 
 V. McDaniell, 7 Pet. 1, . . . . .122 
 
 V.Peters, 3 Dall. 121, ..... 321 
 
 V. The Anthony Mangin, 3 Cranch, 356, n. ; 7 Pet. Adm. 452, 
 
 195 
 
 V. The Paul Sherman, 1 Pet. C. C. 98, . . . 210 
 
 V. Wilder, 3 Sunm. C. C. 308, . . . 1343, 1345 
 
 V. 1960 Bags of Coffee, 8 Cranch, 398, . ' . . 195 
 
 Upton V. Salem Commercial Ins. Co. 8 Mete. Mass. 605, . . . 963 
 
 Urquhart v. Barnard, 4 Taunt. 450, . . . , .66, 1005 
 
 V. Mclver, 4 Johns. N. Y. 103, . . . .1917, 1918 
 
 Usher «. Noble, 12 East, 639, ..... 1219,1232,1460 
 
 Usparichav, Noble, 13 East, 332, . .... 151,245,248 
 
 Utica Ins. Co. v. Kipp, 8 Cow. N. Y. 20, . . . . il 
 
 Vairin v. Canal Ins. Co. 10 Ohio, 561, . . . . 294, 2052 
 
 Vallance v. Dewar, 1 Campb. 503, . . . 593, 690, 998, 1003, 1093 
 
 Vallcjo V. Wheeler, Lo0"t, 645 ; Cowp. 143, 698, 1024, 1062, 1066, 1070, 1072, 
 
 1074, 1079, 1081, 1083, 1144 
 Valton V. National Ass. Co. 20 N. Y. 32 ; 22 Barb. N. Y, 9, 7, 79, 185, 354, 
 
 358, 541, 1942 
 Vanbrynen v. Wilson, 9 East, 324, ..... 2030 
 
 VandegrafF!;. Medlock, 12 Ala. 389. ..... 1939 
 
 Vandeuheuvel v. Church, 2 Johns. Cas. N. Y. 127, 173, n. ; 3 id. 486, 527, 
 
 550, 626, 671, 765 
 
 V. United Ins. Co. 2 Johns. Cas. N. Y. 127,451; 3 id. 486, 527, 
 
 550, 626, 757, 845, 1057, 1339, 2109 
 
 1 Johns. N. Y. 406, . . 1599, 1613
 
 Ixxxii 
 
 TABLE OF CASES. 
 
 Vanderplank v. Miller, 1 Mood. & M. 169, 
 
 Vandervoort v. Columbian Ins. Co. 3 Johns. Cas. N. Y. 137, 
 
 V. Smith, 2 Gaines, N". Y. 155, 
 
 1420 
 2057 
 
 G6, 133, 660, 847, 958, 2050, 
 2051 
 . 1846 
 244 
 244 
 . 490, . . 2020 
 
 . , 1587, 2098, 2100 
 716 
 . 1087 
 278, 816, 2109 
 
 Vandyck v. Hewitt, 1 East, 96, . 
 Vandyke r. Wliitmore, 1 East, 475, . 
 Vanharthals v. Halben, 1 East, 487, 
 Van Natta..*;. Mutual Security Ins. Co. 2 Sandf. N. 1 
 Van Onieron w. Dowick, 2 Campb. 42, . 
 Van Svckel v. The Ewing, Crabbe, Dist. Ct. 405, 
 Van Valkenberg v. Astor Ins. Co. 1 Bosw. N. Y. 61, 
 Yasse V. Ball, 2 Dall. Penn. 270, . . 
 
 Vaughan v. Lemcke, 8 J. B. Moore, 646; 7 Dowl. & R. 236; 1 Bingh. 473, 
 
 245 
 Vennell v. Garner, 1 Crompt. & M. Exch. 21, . . . . 1420 
 
 Venus, The, 8 Cranch, 253, ..... 155, 159, 794 
 
 Verdon v. Wihnot, 3 Dougl. 74; Park, Ins. 500, n., . . . 781 
 
 Vernon v. Snjith, 5 Barnew. & Aid. 1, . . . . . 103 
 
 Vezian v. Grant, Park, Ins. 485, . . . . . .775 
 
 Victorin v. Cleve, 2 Strange, 1250, . . . ... 781 
 
 Vigers V. Ocean Ins. Co. 12 La. 367, ..... 1115 
 
 Vigilantia, The, 6 C. Rob. Adm. 122, . . . . . 830 
 
 1 C. Rob. Adm. 1, .... 790, 805, 814 
 
 Vilibia, The, 1 W. Rob. Adm. 1, .... . 1565 
 
 Vinal V. Burrill, 16 Pick. Mass. 401, .... 265, 2124 
 
 Violett u. Allnut, 3 Taunt, 419, ..... 942 
 
 Virgin, The, 8 Pet. 538, . . . . . . 1249,1568 
 
 Visger V. Prescott, 5 Esp. 184, . . . . . . 261, 918 
 
 Vlierboom v. Chapman, 13 Mees. & W. Exoh. 230, . . 1449, 1642 
 
 Von Lindenau v. Desborough, 8 Barnew. & C. 586 ; 3 Carr. & P. 353, 357, 
 
 570, 572, 646, 647,654, 655, 659, 898, 904, 2159 
 Von Tungeln v. Dubois, 2 Campb. 151, .... 626, 674 
 
 Vos V. Robinson, 9 Johns, N. Y. 192, . . . 1803, 1812, 1813 
 
 V. United Ins. Co. 1 Caines, Cas. N. Y. vii. ; 2 Johns. Cas. N. Y. 180, 840, 
 
 1048, 1068, 1844, 2109 
 Vose V. Eagle Life & Health Ins. Co. 6 Cush. Mass. 42, 641, 643, 647, 667, 
 
 1876 
 V. Handy, 2 Me. 322, . . . . . . .80 
 
 Vredenburgh v. Gracie, 4 Johns. N. Y. 444, n., ... 939 
 
 Vreede Scholtys, The, 5 C. Rob. Adm. 5, n., . . . 239, 805, 812 
 
 Vriendschap, The, 4 C. Rob. Adm. 166, .... 169, 232 
 
 Vrierboom v. Chapman, 13 Mees. & W. Exch. 230, . . . 1449 
 
 Vrow Anna Catherina, The, 5 C. Rob. Adm. 15, . . 161, 800, 815 
 
 Vrow Barbara, The, 3 C. Rob. Adm. 158, n., . . . . 842 
 
 Vrow Cornelia, Tlie, Edw. Adm. 349, ..... 247 
 
 Vrow Elizabeth, The, 5 C. Rob. Adm. 2, ... 239, 804 
 
 Vrow Hennina, The, 1 C. Rob. Adm. 163, .... 256, 790 
 
 Vrow Johanna, The, 2 C. Rob. Adm. 109, . . . .831 
 
 Vrow Judith, The, 1 C. Rob. Adm. 150, . • . 826, 829, 830 
 
 Vrow Margaretha, The, 1 C. Rob. Adm. 336, . . 255, 260, 791, 796 
 
 W. 
 
 Waddell v. Columbian Ins. Co. 10 Johns. N. Y. 61, 
 Waildington v. United Iu«. Co. 17 Johns. N. Y. 23, 
 Wadsworth v. Pacific Ins. Co. 4 Wend. N. Y. 33, . 
 
 1338, 1535, 1613 
 
 1819 
 
 970, 997, 1773, 1777
 
 TABLE OF CASES. Ixxxiii 
 
 Wainhouse v. Corrie, 4 Taunt. 178, . . . . . 210 
 
 Wainwright v. Bland, 1 Tyrw. & G. Exch. 417:1 Mees. & W. Exch. 32, 358, 
 
 650 
 Waithman, Ex parte, 2 Deac. & C. Bank. 412, ... 95 
 
 Wake V. Atty, 4 Taunt. 493, ..... 210, 612 
 
 Wakefield v.'Martin, 3 Mass. 558, ..... 77 
 
 Walden v. Fire & Mar. Ins. Co. 12 Johns. N. Y. 128, 513, . 601, 661, 707 
 
 V. Le Roy, 2 Caines, N. Y. 263, . . . 1320, 1328 
 
 V. Louisiana Fire Ins. Co. 12 La. 134, . . . 9, 11, 647 
 
 V. New York Firemen's Ins. Co. 12 Johns. K. Y. 128, 539, 601, 661, 
 
 1948 
 V. Phoenix Ins. Co. 5 Johns. N. Y. 310, 218, 907, 913, 914, 1111, 
 
 1700 
 Waldron r. Combe, 3 Taunt, 162, . .... 1456,2051 
 
 Wales V. China Ins. Co. 8 All. Mass. 380, .... 953 
 
 Walker v. Birch, 6 Term, 258, ...... 1915 
 
 V. Boston Ins. Co. 14 Grav, Mass. 288, . . . 113 7 a 
 
 V. Maitland, 5 Barnew. & Aid. 171, . . 378, 733, 1049 
 
 r. Protection Ins. Co. 29 Me. 317, . . . 949,1495,2112 
 
 V. United States Ins. Co. 11 Serg. & R. Penn. 61, 1313, 1315, 1709 
 
 V. AVitter, 1 Dougl. 1, . . . . . . 2106 
 
 Wall V. East River Ins. Co. 7 N. Y. 370, . . . . . 882 
 
 V. Howard Ins. Co. 51 Me. 32, . . . . . 888 
 
 14 Barb. N. Y. 383, . 125,142,489,539,871 
 
 Wallace v. Ins. Co. 4 La. 289, . . . . . 125, 1213, 1754 
 
 u. Ohio Ins. Co. 4 Ohio, 234, ..... 1431 
 
 V. Tellfair, 2 Term, 188, n., . . . . 1885, 1892, 1898 
 
 Waller v. Louisiana Ins Co. 9 Mart. N. s. La. 276, . . 1426, 1428 
 
 Wallerstein v. Columbian Ins. Co Sup. Ct. N. Y. 1865, . 1767, 1773 
 
 Wallingiord v. Home Ins. Co. 30 Mo. 46, . . . . 22, 505 
 
 Wain V. Thomson, 9 Serg. & R. Penn. 115, . . . 1474, 1773 
 
 Walpole V. Ewer, Marshall, Ins. 762 ; Park, Ins. 629, 467, 1169, 1416, 2110 
 
 Walsh i'. Wa.shington Ins. Co. 32 N. Y. 427, . . . 1947, 2079 
 
 Walters v. Washington Ins. Co. 1 Iowa, 404, . . . . 108 
 
 Waltham v. Thompson, 1 Marsh. 3 76, . . . . . 781 
 
 Walton I'. Bethune, 2 Brev. So. C. 453, . . . .2109 
 
 V. Louisiana State Mut Fire Ins. Co. 2 Rob. La. 563 . . 881 
 
 Want y. Blunt, 12 East, 183, ...... 74,897 
 
 Waples *'. Fames, 2 Strange, 1243, ..... 968 
 
 Ward y. Wood, 13 Mass. 539, . . . . 221,974,1030,1958 
 
 Warder v. Goods saved, &c. 1 Pet. Adm. 31, . . . 1028, 1583 
 
 V. Horton, 4 Binn. Penn. 529, . . .174, 373, 1251 
 
 Waring v. Scott, 4 Taunt. 605, ...... 244 
 
 Warner v. Middlesex Ass. Co. 21 Conn. 444, . . . . 874 a 
 
 Warre v. Miller, 1 Carr. & P. 237 ; 7 Dowl. & R. 1 ; 4 Barnew. & C. 538, 333, 
 
 1014 
 
 Warren v. Manufacturers' Ins. Co. 13 Pick. Mass. 518, . . 221, 703, 704 
 
 V. Ocean Ins. Co. 16 Me. 439, . . .24, 110, 510 
 
 V. United Ins. Co. 2 Johns. N. Y. 231, . . . 695, 2152 
 
 Warrior, The, 2 Dods. Adm. 288, ..... 1524 
 
 Warwick i'. Slade, 3 Campb. 127, . . . . . .1871 
 
 V. Scott, 4 Cam[)b. 62, .... . 68, 780 
 
 Washington v. Ins. Co. of North America, 2 Wash. C. C. 152, 480, . 2096 
 
 Washington Ins. Co. v. Colton, 26 Conn 42, . . . , 510 
 
 V. Dawes, 6 Gray, Mass. 376, . . . 510 
 
 r. Hastings, 2 All. Mass. 398, . . . 510 
 
 V. Merchants' Ins. Co. 5 Ohio St. 450, . .1948
 
 Ixxxiv 
 
 TABLE OF CASES. 
 
 Washington Ins. Co. r. Reed, 20 Ohio, 199, .... 188 
 
 V. Wilson, 7 Wise. 169, . . . . 2154 
 
 Watchorn v. Lanoford, 3 Campb. 422, ..... 489 
 
 Waters v. Allen, 5 Hill, N. Y. 421, . 82, 106, 220, 1833, 1834, 1846 
 
 V. Merchants' Louisville Ins. Co. 1 McLean, C. C. 275; 11 Pet. 213, 
 
 733, 1049, 1096, 1137 
 
 V. Monarch Ass. Co. 5 Ell. & B. 870 ; 34 Eng. L. & Eq. 116, . 191 
 
 Watkins v. Durand, 10 Ala. 251, . . . . . 388 
 
 Watson V. Clark, 1 Dow, Pari. Cas. 144, .... 699, 724, 725 
 
 V. Delafield, 2 Caines, N. Y. 224 ; 1 Johns. N. Y 
 
 V. Ins. Co. of North America, 2 Wash. C. C 152, 
 
 1192,1196,1494 
 1 Binn. Penn. 47, 
 V. King, 4 Campb. 272, . 
 
 1 Stark. 121, . 
 
 V. Mainwaring, 4 Taunt. 763, . 
 V. Marine Ins. Co. 7 Johns. N. Y. 57, 
 V. Swann, 11 C. B. n. s. 756, . 
 Watt V. Morris, 1 Dow, Pari. Cas. 32, 
 Way V. Modigliani, 2 Term, 30, ... 
 
 Waymell v. Reed, 5 Term, 599, 
 Webb V. Dickenson, 11 Wend. N. Y. 62, 
 
 V. National Fire Ins. Co. 2 Sandf. N. Y. 497, 
 V. Protection Ins. Co. 6 Ohio, 456, 
 14 Mo. 3, 
 
 V. Thompson, 1 Bos. & P. 5, 
 
 Webster v. Detastet, 7 Term, 157, . 
 V. Foster, 1 Esp. 407, . 
 
 Wedderburne v. Bell, 1 Campb. 1, . 
 
 Weeks v. The Catherine Maria, 2 Pet. Adm. 424, 
 
 Weir V. Aberdeen, 2 Barnew. & Aid. 320, . 
 
 Welch V. Mandeville, 1 Wheat. 233, 
 
 Welcome «'. People's Ins. Co. 2 Gray, Mass. 480, . 
 
 Welles V. Boston Ins. Co. 6 Pick. Mass. 182, . 
 V. Gray, 10 Mass. 42, 
 
 Wellington v. Mackintosh, 2 Atk. Ch. 569, 
 
 Wells V. Archer, 10 Serg. & R. Penn. 412, 
 V. Hopwood, 3 Barnew. & Ad. 20, 
 V. Philadelphia Ins. Co. 9 Serg. & R. Penn. 103, 
 V. Williams, 1 Salk. 45 ; 1 Lutw. 34, 35 ; 1 Ld. Raym. 282 
 
 Welsh V. Barrett, 15 Mass. 380, 
 
 Welvaart, The, 1 C. Rob. Adm. 122, . 
 
 Welvaart Van Pillaw, The, 2 C. Rob. Adm. 128, . 
 
 Wendover v. Hogeboom, 7 Johns. N. Y. 308, . 
 
 West V. Old Colony Ins. Co. 9 All. Mass. 316, 
 
 V. Skip, 1 Ves. Sen. 239, .... 
 V. Sutton, 1 Salk. 2, . 
 
 West Branch Ins. Co. v. Helfenstein, 40 Penn. St. 289, 
 
 Westbury v. Aberdeen, 2 Mees. & W. Exch. 267, . 
 
 Westerdell v. Dale, 3 Term, 306, 
 
 Western v. Genessee Ins. Co. 12 N. Y. 258, 
 V. Wildy, Skinn. 152, 
 
 Western Ins. Co. v. Cropper, 32 Penn. St. 351, . 
 V. Duffey, 2 Ivans. 347, 
 V. Riker, 10 Mich. 279, . 
 
 Westfall V. Hudson River Ins. Co. 12 N. Y. 289, 
 
 2 Du. N. Y. 490, 
 
 150; 2 id. 526, 561 
 
 480 ; 3 id. 1, 849, 
 
 1688,1956,2144,2152 
 
 . 1688 
 
 2094 
 
 . 2083 
 
 . 894, 2164 
 
 1333, 1742 
 
 . 380, 507 
 
 701, 703 
 
 992 
 
 . 1846 
 
 1743 
 
 . 489 
 
 1429, 1815, 2147 
 
 1098, 1161 
 
 781 
 
 212, 1892 
 
 615 
 
 702 
 
 1719 
 
 705, 720, 726, 752 
 
 85 
 
 . 1811 
 
 1277 
 
 . 1337 
 
 865 
 
 80, 98, 99, 100 
 
 1758 
 
 204, 292,421 
 
 151, 2030 
 
 . 2098 
 
 278 
 
 . 830 
 
 . 265, 2124 
 
 . 2119 
 
 79 
 
 . 2030 
 
 108, 880, 1806 
 
 620 
 
 2124 
 
 11 
 
 . 979, 988 
 
 131, 1162 
 
 14 
 
 . 880 
 
 883 
 
 . 1150
 
 TABLE OP CASES. 
 
 Ixxxv 
 
 Westlake v. St. Lawrence Ins. Co. 14 Barb. N. Y. 206, 
 Weston V. Ernes, 1 Taunt. 115, . 
 
 V. Penniman, 1 Mas. C. C. 306, 
 Westwood V. Bell, 4 Campb. 349 ; Holt, 122, 
 Wharton i'. De La Rive, Park, Ins. 573 ; Marshall, Ins, 
 Wheatland v. Gray, 6 Mass. 124, . 
 Wheelton v. Hardisty, 8 Ell. & B. 232, 
 Wheelwright v. Uepeyster, 1 Johns. N. Y. 472, 
 Whitaker v. Farmers' Ins. Co. 29 Barb. N. Y. 312, 
 White V. Baring, 4 Esp. 22, 
 
 V. Browne, 2 Cash. Mass. 412, . 
 V. Haight, 16 iSr. Y. 310, . 
 V. Mann, 26 Me. 361, . 
 ' V. Ship Dffidalus, 1 Stu. Low. C. 130, 
 V. Warren, 2 Mer. Ch. 459, 
 Whitehead v. Bance, Park, Ins. 122. 
 
 V. Price, 2 Crompt. M. & R. Exch. 447, 
 V. Vaughan, Cook, Bankrupt Laws, 579, 
 Whitehiirs case, 5 C. Rob. Adm. 60, . 
 Whitehurst r. Fayetteville Ins. Co. 6 Jones, No. C. 352 
 V. North Carolina Ins. Co. 7 Jones, No. C 
 Whiting V. Independent Ins. Co. 15 Md. 297, 
 Whitmarsh v. Charier Oak Ins. Co. 2 All. Mass. 581, 
 Whitney v. American Ins. Co. 3 Cow. N. Y. 210, . 
 V. Haven, 13 Mass. 172, 
 f>. New York Firemen's Ins. Co. 18 Johns. N 
 
 V. Ocean Ins. Co. 14 La. 485, 
 Whiton V. Old Colony Ins. Co. 2 Mete. Mass. 1, 
 Whitteridge v. Norris, 6 Mass. 1 25, . 
 Wiebe v. Simpson, Selwyn, N. P. 995, 
 Wienholt v. Roberts, 2 Campb. 586, . 
 Wiggin V. American Ins. Co. 18 Pick. Mass. 158, 
 
 V. Amory, 13 Mass. 118, 
 
 14 Mass. 1, . 
 
 V. Boardman, 14 Mass. 12, . 
 
 V. Mercantile Ins. Co. 7 Pick. Mass. 271, 
 
 V. Suffolk Ins. Co. 18 Pick. Mass. 145, 106, 206, 
 
 Wigglesworth v. Dallison, 1 Dougl. 190, 
 Wightman v. Macadam, 2 Brev. So. C. 230, . 
 
 I". Western M. & F. Ins. Co. 8 Rob. La. 
 Wilbraham v. Wartnaby, 1 Lloyd & W. Cas. 144, 
 Wilbur I'. Bowditch F. Ins. Co."lO Cush. Mass. 446 
 Wilcocks I'. Union Ins. Co. 2 Binn. Penn. 574, 
 Wilhelmina, The, 4 C Rob. Adm. App. 4, 
 Wilkes V. People's F. Ins. Co. 19 N. Y. 184, . 
 Wilkie V. Geddes, 3 Dow, Pari. Cas. 60, . 
 Wilkinson v. Clay, 6 Taunt. 110 ; 4 Campb. 171, 
 V. Cowerdale, 1 Esp. 75, 
 V. Hyde, 3 C. B. N. s. 30, . 
 V. Lindo, 7 Mees. & W. Exch. 405 
 V. Loudensack, 3 Maule & S. 117, . 
 V. Scott, 17 Mass. 249, . 
 Wilksy. Davis, 3 Mer. Ch. 507, 
 Willard v. Millers' Ins. Co. 24 Mo. 561, . 
 30 Mo. 35, 
 
 VOL. I. h 
 
 642, n. 
 
 433, 
 
 208, 
 
 36i 
 
 442, 
 
 822, 
 
 823. 
 
 881, 1813, 2055 
 66 
 . 76, 2124 
 . 1916 
 . 211, 1846 
 . 1115 
 655 
 . 2104 
 16 
 . 313 
 380 
 . 523 a 
 295 
 305 
 771 
 . 1521 
 872 
 1920, 1923 
 165 
 539, 1098 a 
 1806 
 1251, 1477 
 883 
 441, 1197 
 . 66, 551 
 1142, 1448, 
 1642 
 713 
 455 
 1289 
 , 1815 
 2044 
 903 
 
 1023, 1029, 1030 
 
 1074 
 
 66, 1029, 1030 
 
 456, 462, 478 
 
 903, 1253, 1797, 
 
 1839, 1961 
 
 132 
 
 1326 
 
 1811, 1813 
 
 . 909, 1059 
 
 . 874 a 
 
 1062, 1068, 1075 
 
 278 
 
 195 
 
 702 
 
 1882 
 
 1867, 1885, 1892 
 
 1785 
 
 413 
 
 210 
 
 515 
 
 865 
 
 . 1602 
 
 470, 1632 
 
 1925,
 
 Ixxxvi 
 
 TABLE OF CASES. 
 
 Willes V. Glover, 4 Bos. & P. 14, . 
 
 William, Tlie, 1 C. Rob. Adm. 214, . 
 
 Williams v. Amroyd, 7 Cranch, 424, 
 
 V. Atkyiis, 2 Jones & Lat. Ch. Ir. 653, 
 V. Babcock, 25 Barb. N. Y. 109, . 
 V. Cheney, 3 Gray, Mass. 215, 
 
 615, 676, 1948, 1949 
 
 226 
 
 . 2109 
 
 97 
 
 510 
 
 11, 510 
 
 V. Chester and Holyhead Railway Co. 5 Eng. L. & Eq. 197 ; 15 Eng. 
 Jur. 828, ...... 1872 
 
 V. Cole, 16 Me. 207, . . . . . .1765 
 
 V. Duiafield, 2 Caines, N. Y. 329, . . ' . . 620 
 
 V. Despard, 5 Term, 112, . . . . . .195 
 
 V. Fire Ins. Co. 29 Me. 465, . . . . . 1932 
 
 V. Ins. Co. of N. America, 1 Hilt. N. Y. 345, . . .189 
 
 r. Kennebec Mut. Ins. Co. 31 Me. 455, . . . 1767 
 
 v. Leper, 3 Burr. 1886, ...... 1853 
 
 V. London Ass. Co. 1 Maule & S. 318, . 1320, 1350, 1385, 1387 
 
 V. Marshall, 1 J. B. Moore, 162 ; 2 Marsh. 292 ; 6 Taunt. 390 ; 7 id. 468, 
 
 246, 776 
 w. New England Mut. F. Ins. Co. 31 Me. 219, . 642,883,14 75 a, 
 
 1741, 1795 a 
 V. Ocean Ins. Co. 2 Mete. Mass. 303, . . . 1928, 1964 
 
 V. Shee, 3 Campb. 469, ..... 1002 
 
 V. Siuith, 2 Caines, Cas. N. Y. 110 ; 2 Caines, N. Y. 13, 7, 300, 307, 
 
 427, 826, 834, 1134, 1249, 1517, 1715, 1716 
 
 V. Stedman, Holt, 126 ; Skinn. 345, .... 988 
 
 V. Suffolk Ins. Co. 13 Pet. 415 ; 3 Sumn. C. C. 270, 510, 1049, 1050, 
 
 1325, 1334, 1588, 1599, 1719 
 
 V. Thorpe, 2 Sim. Ch. 257, 
 
 V. Vermont Ins. Co. 20 Vt. 222, . 
 
 ?'. Younghusband, 1 Stark. 139, 
 
 Williams's Adm'r o. Cincinnati Ins. Co. Wright, Ohio, 542, 
 
 Williamson v. Innes, 8 Bingh. 81, n., . 
 
 V. Tunno, 1 Brev. So. C. 151, . 
 
 Willlngs V. Consequa, Pet. C- C. 172, 301, 
 
 Willis V. Cooke, 5 Ell. & B. 641 ; 33 Eng. L. & Eq. 63, . 
 V. Poole, Marshall, Ins. 7 71, . 
 
 Willison V. Patterson, 1 J. B. Moore, 133 ; 7 Taunt. 438, 
 
 Wilmer v. The Smilax, 2 Pet. Adm. 295, n., . 
 
 Wilson V. yEtna Ins. Co. 27 Vt. 99, ... 
 
 V. Conway F. Ins. Co. 4 R. I. 141, 
 V. Creighton, Marshall, Ins. 29 7 ; 3 Dougl. 132, n., 
 V. Ducket, 3 Burr. 1361, 
 V. Foster, 2 Marsh. 425 ; 6 Taunt. 25, 
 V. General Ins. Co. 12 Cush. Mass. 360, 
 V. Gencssee Ins. Co. 16 B,irb. N. Y. 511, 
 V. Hampden F. Ins. Co. 4 R. I. 15'), . 
 V. Marryatt, 1 Bos. & P. 430; 8 Term, 31, 
 V. Martin, 11 E.\ch. 684; 34 Eng. L. & Eq. 496, 
 V. Millar, 2 Stark. 1, 
 V. Koval Exch. Ass. Co. 2 Campb. 623, 
 V. Sniith, 1 W. Blackst. 507 ; 3 Burr. 1550, 
 V. Trumbull Ins. Co. 19 Penn. St. 372, 
 V. United Ins. Co. 14 Johns. N. Y. 227, 
 
 Wilton V. Reaston, Park, Ins. 20, . 
 
 Winder v. Wise, 1 Dowl. & L. 240, 
 
 79, 95 
 
 . 1983 
 
 2103 
 
 , 286, 588, 881 
 
 . 332, 944 
 
 . 2109 
 
 1237 
 
 . 1129 
 
 894 
 
 147, 153 
 
 1168, 1170, 1568 
 
 . 1983 
 
 542 
 
 1917, 1924 
 
 . 528, 1938 
 
 . 1591 
 
 1082 
 
 879, 881, 1876 
 
 565, 2026, 2122 
 
 231 
 
 340 
 
 1562, 1623 
 
 338, 340, 1234, 1602, 1766 
 
 . 1761 
 
 87, 185 
 
 . 1162 
 
 382 
 
 840, 1051 
 
 Wing v. Harvey, 5 De Gex, M. & G. Ch. 265 ; 27 Eng. L. & Eq. 140, 895 a 
 Winn V. Columbian Ins. Co. 12 Pick. Mass. 279, . - . 1524, 1539, 1543
 
 TABLE OF CASES. 
 
 Ixxxvli 
 
 Winsor v. Dillaway, 4 Mote. Mass. 221, 
 Winter v. Delaware Ins. Co. 30 Penn. St. 334, 
 
 V. Haldimand, 2 Barnew. & Ad. 049, 
 Wintlirop V. Union Ins. Co. 2 Wash. C. C. 7, 
 Witlierell v. Maine Ins. Co. 49 Me. 200, 
 Witherlce v. Ocean Ins. Co. 24 Piclc. Mass. 68, 
 
 138 
 
 . 1001 
 
 . 338, 1234, 1404 
 
 1001, 1004, 1018, 1031, 2057 
 
 . 668, 1098 a, 1942 
 
 . 2174 
 
 Wittinrrham v. Thornborough, 2 Vern. Ch. 206 ; Prec. in Chan. 20, 211, 528, 
 
 ^ 1938 
 
 Wohronzoff, The Conipte de, 1 C. Rob. Adm. 205, . . .223 
 
 Wolcott V. Eagle Ins. Co. 4 Pick. Mass. 429, 415, 430,452, 453, 460, 471, 4 79, 
 
 591, 1181, 1196, 1197, 1204, 1208, 1802, 2126 
 Wolfarth, The, Edw. Adm. 365, ..... 247 
 
 Wolfe V. Howard Ins. Co. 1 Sandf. N. Y. 124; 7 N. Y. 583, . . 1232 
 
 Wolff u. Horncastle, 1 Bos. & P. 316, 309, 311, 382, 393, 423, 1858, 1889, 
 
 1965, 2021 
 V. Koppel, 5 Hill, N. Y. 448 ; 2 Den. 368, .... 1853 
 Wood V. Dwarris, 11 Exch. 493 ; 33 Eng. L. & Eq. 514, . . 66 
 
 757 
 
 2119 
 
 1524, 1526, 1535, 1556, 
 
 1559 
 
 . 953, 1118, 1154 
 
 . 9, 880, 1973 
 
 70, 439, 885, 2130 
 
 95 
 
 121, 881, 1876, 
 
 1983 
 
 . 2117 
 
 901 
 
 . 1416 
 
 15 
 
 125, 1129 
 
 2124 
 
 992 
 
 1420 
 
 703, 1018 
 
 764 
 
 . 1964 
 
 492 
 
 56, 885, 2026, 2130 
 
 2096, 2109 
 
 . 2109 
 
 181,462,495 
 
 775 
 
 495 
 
 217, 2021, 2126 
 
 . 640, 1811 
 
 . 104 
 
 104 
 
 V. Hartford F. Ins. Co. 13 Conn. 533, 
 
 V. Hickok, 2 Wend. N. Y. 501, 
 
 V. Lincoln and Kennebec Ins. Co. 6 Mass. i't 
 
 V. New England Mar. Ins. Co. 14 Mass. 31, 
 
 V. Rutland Ins. Co. 31 Vt. 552, 
 
 V. Worsley, 2 H. Blackst. 574, . 
 Woodbridge v. Perkins, 3 Day, Conn. 364, 
 Woodbury Association v. Charter Oak Ins. Co. 31 Conn. 517, 
 
 Woodbury Savings Bank v. Charter Oak Ins. Co. 29 Conn. 374, 
 Woodfiii V. Asheville Ins. Co. 6 Jones, l^o. C. 558, 
 Woodrop Sims, The, 2 Dods. Adm. 83, 
 Woodruff y. Columbus Ins. Co. 5 La. Ann. 697, 
 
 V. Commercial Ins. Co. 2 Hilt, N. Y. 122, 
 Woodward v. Larking, 3 Esp. 286, 
 Woodridge v. Boydelf, Dougl. 16, . 
 Woolf f. Beard, 8 Carr. & P. 373, . 
 
 V. Claggett, 3 Esp. 257, 
 Woolmer v. Muilman, 3 Burr. 1419 : 1 W. Blackst. 427, 
 Work V. Merchants' Ins. Co. 11 Cush. Mass. 271, . 
 Workman v. Ins. Co. 2 La. 507, 
 Worsley v. Wood, 6 Term, 710, 
 Wright V. Barnard, 2 Esp. 700, 
 
 V. Butler, 6 AVend. N. Y 
 
 V. Pole, 1 Ad. & E. 621, 
 
 V. Shiffner, 11 East, 515; 2 Carapb. 247, 
 
 V. Sun Fire Office, 3 Mann. & R. 819, 
 
 V. Welbie, 1 Chitt. 49 ; Jeremy's Index, 1819, p. 74, 
 Wyman v. People's Ins. Co. 1 All. Mass. 301, 
 
 V. Prosser, 36 Barb. N. Y. 368, . 
 
 V. Wyman, 26 N. Y. 253, 
 
 70, 439, 
 
 284, 
 
 X. 
 
 Xcnos V. Wickham, 13 C. B. n. s. 381, 
 
 21
 
 Ixxxviii 
 
 TABLE OF CASES. 
 
 Yallop, Ex parte. 15 Ve?. Ch. GO, 68, 
 
 Yates V. Maynell, 2 J. B. Moore, 297 ; 8 Taunt. 302, 
 
 V. llailston, 8 Taunt. 293, 
 
 17. Whyte, 4 Blngh. N. c. 272, 
 Yeaton v. Fry, 5 Cranch, 335, 
 York Ins. Co. v. Knight, 48 Me. 75, 
 Y^oung V. Alexander, 8 East, 1 0, 
 
 V. Eagle Ins. Co. 14 Gray, Mass. 150, 
 
 V. Turing, 2 Mann. & G. 593 ; 2 Scott, N. R. 752, 
 Younger v. Gloucester Ins. Co. Sprague Dec. Dist. Ct. 236 ; 
 
 Ysabel, The, 1 Dods. Adm. 273, . 
 
 Zacharie v. Orleans Ins. Co. 5 Mart. n. s. La. 637, 
 
 Zelden Rust, The, 6 C. Rob. Adm. 93, 
 
 Zephyr, The, 3 Mas. C. C. 341, 
 
 Zino V. Louisiana Ins. Co. 6 Mart. N. s. La. 62, 
 
 265 
 
 ,289, 
 
 2124 
 1083 
 1083 
 
 1711, 
 
 1796, 
 
 2163 
 
 1159 
 
 623 a 
 
 2124 
 
 880 
 
 . 1532, 
 
 1538, 
 
 1549 
 
 2 Curt 
 
 C. C 
 
 . 322, 
 
 
 1516, 
 
 1559 
 1565 
 
 
 968, 969 
 
 , 
 
 . 
 
 272 
 
 , 
 
 
 1626 
 
 , 
 
 . 
 
 2109
 
 LIST OF AUTHORS AND TREATISES CITED. 
 
 Abbott on Shipping, 398, 1057, 1166, 1282, 1318, 1321, 1328, 1334, 1344, 
 
 1390, 1394, 1452, 1580, 1719, 2005, 2091, 2124 
 Alauzet, Traite des Assurances, . . • .76, 109, 113, 388 
 
 Amsterdam, Regulations of, . . • • • • ^j 9, 1836 
 
 Annesly on Insurance, .....•• 537 
 Angel 1 and Ames on Corporations, . . . • . 11, 2013 
 
 Angell on Fire and Life Insurance, . . • • • 1095 
 
 Antwerp, Ordinance of, .... • 699, 771, 1313 
 
 Arnould's Marine Insurance, 54, 216, 524, 537, 977, 1001, 1025, 1049, 1328, 
 
 1422, 1606, 1674, 1704, 1740, 1756, 1761, 1773, 1838, 1849, 1867, 
 
 2074 
 Azuni, ......... 258 
 
 Bacon, Lord, Law Tracts, . . . • • • 1416 
 
 Beaumont on Fire and Life Insurance, . . 1092, 1095, 1236, 1483 
 
 Beawes, . 1104, 1111, 1166, 1318, 1328, 1331, 1332, 1334, 1347, 1370, 1521 
 Bell's Commentaries, .....•• 1318 
 
 Benecke, 468, 1140, 1183, 1201, 1209, 1221, 1223, 1230, 1232, 1242, 1271, 
 
 1273, 1285, 1288, 1296, 1297, 1298, 1309, 1310, 1315, 1318, 1328, 
 
 1339, 1340, 1347, 1357, 1358, 1361, 1362, 1363, 1367, 1387, 1394, 
 
 1404, 1407, 1408, 1410, 1422, 1428, 1429, 1432, 1435, 1441, 1461, 
 
 1718, 1764, 1779, 1783 
 Bilboa, Ordinance of, . . . . . . . 1183 
 
 Blackstone's Commentaries, . . . • .1111, 2003 
 
 Boeckh's Public Economy of Athens, . . . . .1167,1279 
 
 Boucher's Institution au Droit Maritime, ..... 1318 
 
 Consolat del Mer, ...... 1318 
 
 Boulay Paty, Coiirs de Droit Com., 3, 5, 8, 14, 301, 352, 360, 364, 523 b, 991, 
 
 992, 1106, 1166, 1168, 1416, 1420, 1421, 1484 a, 1737, 1755 a, 
 
 1847 b, 2083, 2139 
 Sur Emerigon, . . ... .8 
 
 Browne's Civil and Admiralty Law, ..... 1318 
 
 Bunyon on Life Insurance, . . . . . 79, 9 7, 409 
 
 Bvnkershoek, Quest. Juris Publici, . . 232, 830, 1001, 1313, 1318, 1321 
 
 Casa Regis, Disc, 5, 361, 364, 1080, 1094, 1251, 1286, 1308, 1310, 1311, 1313, 
 
 1324, 1402, 1660, 1847 b 
 Chitty on Contracts, ...... 214,219 
 
 on Pleading, . . 2011, 2014, 2021, 2025, 2030, 2037, 2042 
 
 Cleirac. See Les Us et Coutumes. 
 Clift, ......... 2018 
 
 Code de Commerce, 9, 29, 176, 352, 360, 521, 918, 983, 1104, 1111, 1166, 
 
 1168, 1170, 1183, 1230, 1249, 1281, 1282, 1286, 1287, 1288, 1312, 
 
 1313, 1318, 1320, 1328, 1331, 1332, 1354, 1360, 1372, 1379, 1382, 
 
 1396, 1416, 1420, 1421, 1422, 1429, 1430, 1581, 1660, 1679, 1705, 
 
 1719, 1736, 1755 a, 2003
 
 XC LIST OP AUTHORS AND TREATISES CITED. 
 
 Collect. Jurld., . . . . . , . 813, 818 
 
 Comyn's Digest, ....... 2003 
 
 Consolato del Mare, . . . 223, 1313, 1318, 1361, 1379, 1390 
 
 Copenhajren, Ordinance of, . . . . . 1099, 1229, 1318 
 
 Cunniiiirham's Law Dictionary, ...... 1269 
 
 Dane's Disrest, ........ 1580 
 
 Daniel's Equity Practice, by Perkins, . . . . .81 
 
 Danvers's Abridgment, ...... i960 
 
 Denisart, . . . . . . , . .176 
 
 De Vinq. ad Q. Weytsen des Average, . . .■ . 1313 
 
 Digest of the Roman Law, 1100, 11G8, 1279, 1288, 1313, 1318, 1354, 1373, 
 
 1375, 1382, 1390, 1394, 1400, 1717 
 Doubousquie de L'Assurance, ...... 1416 
 
 Dowdeswell on Fire and Life Insurance, .... 1098 
 
 Droit Civil, Traites sur different Matieres de, . . . . 1416 
 
 Droit Hanseatique, Cours de, . . . . 1416, 1421 
 
 Duer, Marine Insurance, 1, 9, 12, 13, 14, 17, 29, 76, 81, 131, 147, 150, 166, 
 
 226, 232, 248, 260, 264, 271, 278, 281, 524, 537, 649, 573, 582, 
 
 666, 672, 680, 791, 794, 797, 816,825, 840, 992, 1116, 1416, 1H27, 
 
 1853, 1857, 1862, 1864, 1867, 1884, 1894, 1903, 1905, 1926, 2074, 
 
 2123 
 
 Ellis on Fire and Life Insurance, 78, 95, 179,397, 402, 1484, 2012, 2021, 2026 
 
 Emerigon, 3, 5, 13, 120, 123, 126, 149, 173, 205, 212, 223, 352, 382, 390, 416, 
 
 432, 439, 463, 521, 583, 768, 769, 858, 983, 991, 992, 1048, 1049, 
 
 1051, 1062, 1080, 1092, 1094, 1096, 1100, 1105, 1106, 1107, 1108, 
 
 1115, 1116, 1129, 1138, 1168, 1182, 1183, 1223, 1229, 1241, 1248, 
 
 1279, 1282, 1283, 1285, 1288, 1297, 1307, 1309, 1312-, 1318, 1323, 
 
 1331, 1332, 1336, 1348, 1390, 1394, 1395, 1396, 1416, 1432, 1557, 
 
 1605, 1616, 1660, 1678, 1687, 1705, 1708, 1726, 1736, 1737, 1767, 
 
 1819, 1820, 1822, 1833, 1845, 1846, 1847 b, 1862, 2106, 2159 
 
 Evans on Insurance, . , . . . . .537 
 
 Estrangin, Notes on Emerigon, ..... 430 
 
 Notes on Pothier, . . 352,1108,1115,1129,1660,1715 
 
 Falconer's Marine Dictionary, . . . . . 327 
 
 Florence, Ordinance of, . . . . . . .9 
 
 French Ordinance of Marine. See Marine Ordinance. 
 
 Genoa, Ordinance of, . . . . . . . 5, 9 
 
 Gould on Pleading, ....... 2014, 2025 
 
 Greenleaf on Evidence, 66, 81, 123, 125, 126, 131, 132, 143, 214, 217, 219, 515, 
 
 1944, 2011, 2116 
 Grotius de Jur. Bell., ..... 228,270,1111,1420 
 
 Hamburg, Ordinance of, . . . 9, 382, 1249, 1312, 1379, 1?91 
 
 Hargrave's Law Tracts, . . . . . . .2105 
 
 Harris's Pleading and Practice, by Evans, .... 2001 
 
 Holland, Regulations of the States General, 1630, . . . 830 
 
 Holt on Shipping, . . . , . . . 1357 
 
 Huberi Praelect. ad Pandect, ...... 1318 
 
 Hughes on Insurance, 537, 1275, 1303, 1318, 1333, 1339, 1392, 2014, 2018, 
 
 2021, 2040, 2042, 2151 
 Jacobsen's Sea Laws, ..... 265,1057,1312 
 
 Journal of Congress, ....... 826 
 
 Jurist, American, ........ 1434 
 
 Kent's Commentaries, 228, 260, 281, 537, 731, 791, 907, 1007, 1030, 1061, 
 
 1096, 1097, 1106, nil, 1304, 1462, 1719 
 Koningsberg, Ordinance of, . . . . . . 1285, 1379 
 
 Kuricke, Jus. Mar. Hans., ..... 364, 1095, 1837 
 
 Lafond's Guide to Insurers and Assured, Paris, 1837, . . 1047, 1779
 
 LIST OF AUTHORS AND TREATISES CITED. XCl 
 
 Lanjrenbeck's Annotations, . . . . . . 1312 
 
 Le Guidon de la Mer, 5, 8, 222, 382, 1166, 1230, 1269, 1281, 1310, 1318, 
 
 1608, 16G0, 1836 
 Les Us et Couturnes de La Mer, 5, 584, 1120, 1318, 1371, 1372, 1394, 1398 
 
 Livermore on the Law of Principal and Agent, . . . 2106 
 
 Loooenius de Jur. Mar. ... 3, 1095, 1348, 1420, 1820, 1829 
 
 Maccabees, . . . . . . • . 270 
 
 Magens, 5, 9, 212, 415, 431, 432, 1104, 1105, 1106, 1112, 1129, 1166, 1168, 1169, 
 
 1170, 1203, 1267, 1286, 1287, 1288, 1295, 1313, 1318, 1324, 1328, 
 
 1332, 1334, 1351, 1368, 1370, 1375, 1389, 1394, 1410, 1464, 1784 
 Malvnes, ..... 1106, 1221, 1318, 1394, 1820 
 
 Marine Ordinance of 1681, 5, 13, 173, 232, 352, 969, 1140, 1163, 1169, 1312, 
 
 1318, 1332, 1336, 1379, 1420, 1421, 1430, 1583, 1602, 1605, 1666, 
 
 1687, 1719, 1736, 1775 a 
 Marquardus, ........ 1348 
 
 Marshall on Insurance, 13, 125, 139, 147, 523 b, 537, 584, 736, 977, 979, 1029, 
 
 1062, 1166, 1318, 1348, 1422, 1555, 1661, 1687, 1836, 1837, 1838, 
 
 1846, 1931, 2027, 2028 
 Insurance, Shee's ed., ...... 1773 
 
 Martin's Compendium, ....... 1796 
 
 Middelberg, Ordinance of, . . . . . . . 5, 9 
 
 Millar on Insurance, .... 983,1183,1397,1547,1764 
 
 Molloy, ...... 918, 983, 1057, 1286, 1318 
 
 Oleron, Jugemens de, 345, 1281, 1360, 1372, 1379, 1394, 1398, 1416, 1421, 
 
 1462, 1561 
 Ordinances, Marine, and Sea-Laws. See Amsterdam, Antwerp, Bilboa, Con- 
 
 solato del Mare, Copenhagen, Droit Hanseatique, Florence, Genoa, 
 
 Le Guidon, Hamburg, Holland, Koningsberg, Les Us et Couturnes, 
 
 Marine Ordinance of 1681, Middelburg, Oleron, Prussia, Kolter- 
 
 dam, Stockholm, Wisbuy. 
 Park on Insurance, usually cited with Marshall. See Marshall. 1062, 1106, 
 
 1422, 1931, 2021 
 Parsons on Contracts, ..... 1960,1972,1974 
 
 Pecc. ad Leg. Rh., . . . . . . . 1318 
 
 Phillips on Evidence, .... 515,2037,2052,2101,2110 
 
 Portal is, ........ 200 
 
 Pothier on Charter-parties, ..... 1431, 1602 
 
 Insurance, 5, 223, 232, 301, 321, 430, 521, 581, 911, 945, 1089, 109'^, 
 
 1094, 1099, 1115, 1120, 1288, 1310, 1313, 1318, 1328, 1332, 1348, 
 
 1402, 1416, 1422, 1462,1605, 1661, 1687. 1755 a, 1767, 1836, 1845, 
 
 1847 b, 2159 
 Powell on Contracts, ....... 143 
 
 Prussia, Ordinance of, . . . . . . , 5, 9 
 
 Pufieiidorf, ......... 278 
 
 Rastel's Ent., ........ 2030 
 
 Report of Committee of House of Com., ..... 146 
 
 Ricard, . . . . . . . . .1332 
 
 Robinson's Col. Mar., ..... 199,270,278,1051 
 
 Roccus de Assec, . 5, 435, 704, 977, 1106, 1168, 1313, 1318, 1836, 2159 
 
 Rolle's Abr., . . . . . . . .2124 
 
 Roscoe on Evidence, ..... 2097,2101,2110,2124 
 
 Rotterdam, Ordinance of . . . . . . 9, 1318 
 
 Sea-I>aws. See Ordinances. 
 
 Starkie on Evidence, . 133, 2047, 2097, 2101, 2103, 2105, 2106, 2110, 2112 
 
 Smith's Leading Cases, . . . . . , .2112 
 
 Statutes of the United States, concerning Consulting the Crew, . 1279 
 
 Evidence, 2048, 2062, 2091, 2110
 
 XCU LIST OP AUTHORS AND TREATISES CITED. 
 
 Statutes of the United States, concerning Passports, . . . 805 
 
 Proceedings, . ... 85 
 
 Registry of Vessels, 264, 265, 289, 
 
 2124 
 Statutes of Massachusetts, limiting the Liability of Ship-owners, . 1057, 2006 
 Statutes of New York, concerning Set-off, .... 903 
 
 Statutes, British, concerning Composition with an Enemy, . . 1336 
 
 Liability of Ship-owners, . 1057, 2006 
 
 the amount of Interest in India Voyages, . 307 
 Insurance of Lives, . . . 1247 
 
 Insuriii2 the price of Public Stocks, . 209 
 
 Time Policies, .... 949 
 
 the Registry of Vessels, . . . 264 
 
 Salvage, . . . . . 1717 
 
 Pilots, . . . . .2007 
 
 the Export of Wool, . . .1846 
 
 Insuring a Public Enemy, . . . 140 
 
 Gaming Policies, . . . 5, 211 
 
 the Form of Policies, . 9,13,382,2011 
 
 Insuring on Births and Christenings, . 209 
 
 Insuring on the Slave Trade, . 209, 210 
 
 Cargoes of Timber, . . . 1282 
 
 Stevens on Average, 1091, 1104, 1105, 1203, 1232, 1238, 1285,1288, 1296,1297, 
 
 1299, 1313. 1315, 1316, 1318, 1333, 1379, 1385, 1386, 1389, 1394, 
 
 1422, 1431, 1462, 1465, 1466, 1480, 1718, 1756, 1761, 1780, 1785, 
 
 1791 
 
 Stockholm, Ordinance of, . . . . . 5, 9, 1379 
 
 Story, Conflict of Laws, ...... 2104, 2109 
 
 Equity Jurisprudence, ...... 53, 71 
 
 on Agency, ....... 1848, 1867 
 
 on Bailments, ....... 1884 
 
 See Abbott. 
 
 Commentaries on the Constitution, . . . . .218 
 
 on Sales, ........ 
 
 Straccha, . 1100,1847 b 
 
 Targa, ........ 1094, 1115 
 
 Touilin's Law Dictionary, ....... 1960 
 
 Treaty of United States with France, 1778, .... 813 
 
 Valin, 3, 5, 147, 149, 272, 276, 583, 908, 1090, 1092, 1095, 1105, 1115, 1116, 
 
 1129, 1138, 1170, 1223, 1241, 1248, 1267, 1282, 1289, 1312, 1313, 
 
 1318, 1332, 1354, 1370, 1390, 1394, 1398, 1420, 1430, 1484 a, 1557, 
 
 1581, 1602, 1605, 1660, 1661, 1705, 1726, 1736, 1737, 1743, 1845 
 
 Vattel, ....... 166, 228, 270, 272, 326 
 
 Verver Adrian, . . . . . . . .1332 
 
 Viner's Abridgment, ....... 1416 
 
 Vivian, . . . . . . . . . 2018 
 
 VoetadPand., ...... .1313,1318 
 
 Wait, Am. State Papers, . . . . . . '278, 816 
 
 Watson on Partnership, ...... 1852 
 
 Weskett, 3, 147, 211, 212, 415, 438, 453, 483, 1095, 1106, 1148, 1166, 1183, 
 
 1203, 1221, 1222, 1232, 1235, 1269, 1296, 1297, 1312, 1332, 1372, 
 
 1397 
 
 Weytsen, Q., • . 1286, 1288, 1318, 1354, 1371, 1372, 1379, 1397 
 
 Wheaton, Appendix to Rep. Vol. 2, . . . . . 153 
 
 International Law, ...... 281 
 
 Wisbuy, Ordinance of, . . . . 1322, 1360, 1379, 1416, 1421
 
 TREATISE 
 
 ON THE 
 
 LAW OF INSURANCE 
 
 CHAPTER I. 
 
 OF THE CONTRACT OF INSURANCE. 
 
 Sect. 1. Insurance defined and explained. 
 
 2. The form of the contract. 
 
 3. An agreement for insurance. 
 
 4. The execution of the contract. 
 
 5. The provisions of a commercial 
 
 policy. 
 
 6. The provisions of a fire policj'. 
 
 7. The provisions of a life policy. 
 
 Sect. 8. What is comprehended hy the pol- 
 icy as a part of it. 
 9. Renewal of the contract. 
 
 10. Assignment of the policy. 
 
 11. Alteration and cancelling of the 
 
 policy. 
 
 12. The judicial correction of mistakes. 
 
 13. Leading principles of construction. 
 
 Usage. 
 
 SECTION I. INSURANCE DEFINED AND EXPLAINED. 
 
 1. Insurance is a contract whereby, for a stipulated considera- 
 tion, one j^arty undertakes to indemnify the other against damage 
 or loss on a certain subject by certain perils} 
 
 Marine insurance is a contract whereby, for a consideration 
 stipulated to be paid by one interested in a ship, freight, or cargo 
 subject to marine risks, another undertakes to indemnify him 
 against some or all of those. risks during a certain period or 
 voyage. 
 
 1 Mr. Duer, Mar. Insurance, Vol. I. are i'requently made ■without such a 
 
 p. 49, considers the amount insured to limitation. An indemnity must be stip- 
 
 bc an essential part of the contract ; ulated for. Flanagan v. Camden Mut. 
 
 but I do not see any thing to prevent an Ins. Co. 1 Dutch. N. J. 506. See also 
 
 insurance without any limitation of the Commonwealth Ins. Co. v. Sennett, 37 
 
 amount. Other contracts of indemnity Penn. St. 205. 
 
 VOL. I. 1
 
 2 OF THE CONTRACT OF INSURANCE. [CHAP. I, 
 
 The other species of insurance most in use are those against 
 loss by fire on land, and loss of life.^ 
 
 2. The jjarty undertakings to make the indemnity is called the in- 
 surer or UNDERWRITER j thd party to be indemnified^ the assured 
 or insured. The agreed consideration is called a premium ; the 
 instrument by which the contract is made, a policy ; the events 
 and causes of loss insured against, risks or perils ; and the prop- 
 erty or rights of the assured^ in respect to ivhich he is liable to 
 
 loss, THE subject Or INSURABLE INTEREST. 
 
 3. The INDEMNITY intended in assurance is not the putting of the 
 party insured into as good a condition as he would, in fact, have 
 been in had no loss happened, it means the repayment of the ex- 
 penses incurred, and the payment for as much of the insured sub- 
 ject as is lost, at its market value at the commencement of the risk, 
 or its value as agreed in the ptolicy. Where such value exceeds 
 the real value of the subject at the time of the loss, the assured 
 is, in fact, more than indemnified ; where it is less, he is, in fact, 
 not fully indemnified ; but he is in either case precisely indemni- 
 fied according to the principles and stipulations of the contract.^ 
 
 This contract was formerly defined as a maritime, or at most 
 a mercantile one ; ^ but it is now considered as extending not 
 only to indemnity against sea-risks, fire on land, and death, but 
 many other events are its subjects. It was held by the Court of 
 Common Pleas in England, that an agreement, in consideration 
 of the payment of 40 guineas, to pay <£100 "in case the Impe- 
 
 1 Mr. Justice Lawrence says : " The 3 So Emerigon describes it from Le 
 contract of insurance is applicable to Guidon, and cites Stypmannus, c. 7, n. 
 protect men against uncertain events 262, as extending it to property trans- 
 which may in any wise be of disad- ported. So Locceuius, De Jure Ma- 
 vantage to them." 5 Bos. & P. 301, ritimo, Lib. 2, 65, n. 4, 5. Weskett, tit. 
 Lucena v. Craufurd. See, for sundry Insurance, 2, confines it to sea risks, 
 definitions of insurance, Mr. Sergeant and says, " he offers his definition as 
 Coleridge's argument in Paterson v. more adequate and complete than any 
 Powell, 9 Bingh. 320. For a history he had met with, and comprehending 
 of Insurance, see Beckmann, History those of all the esteemed authors who 
 of Inventions, &c. by Johnson, 4th had treated of it." Valin, Vol. II. p. 
 edit. Lond. 1846, Vol. I. p. 234, tit. 26, defines marine insurance only, be- 
 Insurance. Anderson, Hist, of Com. cause the Ordinance on ivhich he com- 
 Lond. 1789, Vol. II. pp. 102, 202, A. D. mented related only to that species of 
 1560, IGOl. insurance. See also Boulay Paty, 
 
 2 See remarks ofPatteson, J. 6 C. B. Droit Com. tit. 10, tom. 3, p. 233, ed. 
 42?, Irving v. Manning. 1822.
 
 SECT I.] INSURANCE DEFINED AND EXPLAINED. 3 
 
 rial Brazilian mining shares should be done at or above £100 
 per share, on or before the 31st of December, 1829," was an in- 
 surance, and, as such, prohibited by statute.^ Since, however, it 
 is most frequently entered into as a mercantile contract, and the 
 greater part of the principles of insurance apply to it as such, this 
 form of contract is always understood to be intended when the 
 contrary is not expressed. 
 
 4. As to the essential part of this contract, it does not differ from 
 a bond of indemnity, or a guaranty of a debt, since the obligor or 
 guarantor takes upon him certain risks, to which the obligee or 
 creditor would otherwise be exposed. The only difference is in 
 names, and the form of the instrument, the consideration for an 
 insurance being always called a premium, and the instrument 
 containing the terms of the contract, a policy, which is usually 
 made in a form peculiar to this species of contract. 
 
 5. Insurances are usually described to be of two kinds, namely, 
 policies on interest, and gaming policies, in which latter the per- 
 son insured is not required to have any interest in the thing in- 
 sured, and needs not to be exposed to any risk against which the 
 policy is intended to protect him. " Gaming policies," says Lord 
 Mansfield, "are mere games of hazard, like the casting of a die."^ 
 They are wagers made in the form of policies, which in other re- 
 spects differ, no less than other wagers, from the contract of insur- 
 ance. A wagering policy does not seem properly to belong to 
 the subject of insurance,^ since it is prohibited by positive law in 
 
 1 14 Geo. III. c. 48. Paterson v. safe, or that a certain event does not 
 Powell, 9 BIngh. 320. happen." 2 Blackstone, Conmi. 459, n. 
 
 2 Dougl. 470. It is described by the civilians to be an 
 
 3 Emerigon, c. 1, s. 1, says, a wager aleatory contract, "since the considcra- 
 in the form of insurance resembles it tion which one party receives is not the 
 only in name. So Valin, in his defi- price of a thing which he gives, but of a 
 nition of marine insurance. Vol. II. risk which he agrees to take upon liim- 
 p. 2G, excludes a wagering policy, self." Boulay Paty's Emerigon, c. 1, 
 Christian, on the contrary, says, that s. 2. 
 
 " insurance is in effect nothing more Where wagers in general are enforced 
 than a wager, for the underwriter, who as legal contracts, wagers on the arrival 
 insures at five per cent., receives five of a ship are sometimes declared to be 
 pounds to return one hundred, upon the unlawful, as against public policy ; for a 
 contingency of a certain event, and it is community, it is said, has a great inter- 
 precisely the same in its consequences est in its commerce, and it is wrong to 
 as if he had betted a wager of ninety- permit any one to have an interest that 
 five pounds to five, that the ship arrives may make him desire that a ship should
 
 OF THE CONTRACT OP INSURANCE. 
 
 [chap. 
 
 many countries, and is considered to be illegal, without any ex- 
 press legislative provision, in others, and is very little used where 
 it is held to be lawful ; and especially since it is distinguished by 
 one essential circumstance from what is properly an insurance, 
 inasmuch as insurance is universally considered to be a contract 
 of indemnity, which a wager is not. The subject of gaming poli- 
 cies will therefore be noticed only for the purpose of distinguish- 
 ing what policies belong to this class. 
 
 The contract of insurance, then, agrees in substance with a 
 bond or any other contract of indemnity or guaranty, but differs 
 in form ; whereas it agrees with a wagering policy in form, but 
 differs in its character, its objects, and the rules by which it is 
 interpreted. 
 
 SECTION II. THE FORM OF THE CONTRACT. 
 
 6. Where the subject, the relation of the parties, and the ob- 
 
 be wrecked, since the cupidity of men 
 cannot be trusted in such a case. Eraer. 
 c. 1, s. 1. Wagers of this description 
 have, however, been allowed in some 
 parts of Italy. Roccus, de Assec. n. 73; 
 Pothier, par Estrangin, No. 11, n. By 
 the French Ordinance, Ins. a. 22, and 
 Code, see Boulay Paty, Droit Com. tit. 
 10, torn. 3, p. 238, ed. 1822, wagers in 
 the form of insurance are prohibited ; 
 and long ago the French courts refused 
 to take cognizance of frivolous wagers 
 in the form of insurance. Les Us et 
 Cout. de la Mer, p. 116. Le Guidon, 
 0. 1, a. 5. So by the regulations of Am- 
 sterdam, a. 13, 2 Mag. 132, No. 524; 
 and those of Genoa, Casa Regis Disc. 7 
 and 15; of Stockholm, a. 2, s. 7, 2 Mag. 
 257, No. 1C29 ; of Prussia, c. 6, a. 10, 
 2 Mag. 189, No. 780; of Middleburg, 
 a. 2, 2 Mag. G8, No. 161. 
 
 Wagering policies on voyages were 
 held to be lawful, and were very much 
 in use, in England before 1746, when 
 they were prohibited by the Stat. 19 
 Geo. II. c. 37, "because the permitting 
 of them had been productive of many 
 pernicious practices, whereby great num- 
 
 bers of ships with their cargoes had been 
 fraudulently lost ; and had encouraged 
 prohibited and clandestine trades to the 
 diminution of the revenue, and the great 
 detriment of fair traders;" and by Stat. 
 14 Geo. III. c. 48, wagering policies on 
 deaths and other events were prohib- 
 ited; and by Stat. 8 and 9 Vict, c, 109, 
 s. 18, all wagering contracts are de- 
 clared void. In Massachusetts, wager- 
 ing policies are considered void, though 
 not prohibited by statute. Amory v. 
 Gilman, 2 Mass. 1. And this doctrine 
 seems to be adopted in Pennsylvania. 
 Adams V. Pennsylvania Ins. Co. 1 
 Rawle, Penn. 97. In New York they 
 Avere formerly held to be legal. Juhel 
 V. Church, 2 Johns. Cas. N. Y. 333. 
 Mr. Chief Justice Savage, however, 
 says, " it is to be regretted that wagers 
 were ever allowed to be the subject of 
 an action." Buchanan v. Ocean Ins. 
 Co. 6 Cow. N. Y. 318. And by the 
 Revised Statutes of that State, which 
 came into force in 1830, Vol. I. p. 662, 
 no action can be maintained on any 
 wager. And see Howard v. Albany 
 Ins. Co. 3 Den. N. Y. 301.
 
 SECT. II.] THE FORM OF THE CONTRACT. 5 
 
 ject of the contract, continue to be the same, some degree of uni- 
 formity is naturally preserved in the general form of the contract. 
 The ancient outline of the policy has been more nearly adhered 
 to in England than in the United States. In the latter, there is 
 a considerable variety, and new features and modifications have 
 been introduced from time to time. " A policy of insurance has 
 been considered as an obscure, incoherent,^ and a very strange 
 instrument." 2 But the obscurity and uncertainty complained of 
 do not probably arise altogether from any imperfection in the 
 policy which can be remedied.^ A contract embracing so many 
 interests and parties, and liable to be affected by so many events, 
 cannot but be subject to some difficidties of construction, however 
 skilfully it may be drawn. 
 
 7. In the United States, whether a policy be a wager or not, de- 
 pends on the whole instrument. 
 
 Though the assured have an interest in the subject and the risk, 
 this does not preclude his making a wager respecting them."^ As, 
 where a policy was, that a ship should save her passage to China 
 that season, it was held to be a wager, though the insured had 
 some goods on board.^ The expressions " interest or no interest," 
 or others equivalent, are commonly used in wagering policies. A 
 great variety of expressions might be adopted in this sort of policy, 
 according to the subject, and the event upon which the wager 
 depends. It often happens in insurances intended to be on inter- 
 est, that the assured has, in fact, no interest exposed to the risks 
 enumerated ; yet these are not therefore wagering policies, and 
 he is entitled to a return of the premium. To render a policy a 
 wager, it must appear to be such on its face.^ 
 
 1 Per Bullcr, J. 4 Term, 210. " The instrument is conceived in an in- 
 
 2 Per Mansfield, C. J. 4 Taunt, accurate form of words." 1 Burr. 34 7. 
 380. But that " length of time and a variety 
 
 3 Mr. Justice Lawrence says, " It is of decisions have reduced It to a cer- 
 •wonderful that policies should be drawn tainty." Dougl. 270. 
 
 with so much laxity." Marsden v. Reld, 4 Juhel v. Church, 2 Johns. Cas. N. Y. 
 
 3 East, 579. Chief Justice Marshall, 333. 
 
 " Policies of insurance are generally 5 Kent v. Bird, Cowp. 583. See also 
 
 the most informal instruments which Kulen Kemp v. Vigne, 1 Term, 305 ; 
 
 are brought into courts of justice." 5 Tasker v. Scott, 6 Taunt. 234. 
 
 Cranch, 342. And again, " The con- 6 Cousins v. Nantes et al. 3 Taunt, 
 
 tract of insurance is very loosely drawn." 513 j "Williams v. Smith, 2 Calnes, N. Y. 
 
 6 Cranch, 45. Lord Mansfield said, 13. 
 1*
 
 6 OP THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 Accordingly, though the instrument contain phrases and provis- 
 ions usually belo?iging- to a ivagering policy, still, if it appear, on 
 the ivhole, to he a contract of indemnity, by which the claims of the 
 assured are to be commensurate with the damage he may sus- 
 tain, and if it can be executed as such, the provisions contained in 
 it, inconsistent with the general tenor of the instrument, ivill be con- 
 trolled and made void. 
 
 Where it was stipulated that, in case of loss, no proof of inter- 
 est should be required, and that there should be no return of pre- 
 mium, the court decided that those stipulations were void, and 
 there should be proof of interest, and return of premium, as under 
 policies in the usual form.^ 
 
 But where it was agreed in a policy that a total loss should be 
 paid if the ship did not return, and that no partial loss should be 
 paid, and no benefit of salvage claimed, and no proof of interest, 
 except the policy, required, it was held to be a wager on the 
 return of the ship ; for the contract provided that, if it did not 
 return, the whole sum insured should be paid, and by the other 
 parts of the policy, as well as this, it appeared plainly that it was 
 not intended to be a contract of idemnity, under which the sum 
 to be paid by the insurer was to be measured by the damage sus- 
 tained by the assured.^ 
 
 By the statute of 19 Geo. II. c. 37, s. 1, it is enacted, that no 
 insurance shall be made on any ship or goods to be taken on 
 board of a ship, " interest or no interest, or without any further 
 proof of interest than the policy, or by way of gaming or wager- 
 ing, or without benefit of salvage to the insurer." Before the 
 passing of this act, gaming policies were resorted to for the pur- 
 pose of protecting persons who were carrying on illegal traffic, 
 and were made the means of gaining by the wilful destruction of 
 ships. Privateers, and also ships going to Spain and Portugal, 
 and accordingly not being likely to export wool, or import articles 
 that could interfere with British manufactures, were excepted 
 from the act, which shows, as Mr. Chief Justice Abbott, since 
 Lord Tenterden, remarks, that the object of the act was not 
 merely to prevent gaming. It has been held that " a policy which 
 dispenses with all proof of interest is within the act, and void," 
 
 'i Hemnienwayy. Eaton, 13 Mass. 108. Park, 402; 3 Bos. & P. 101; 6 Term, 
 See also Clendining et al. v. Church, 3 483, n. 
 
 Caines, N. Y. 141; Grant v. Parkinson, 2 Juhel v. Church, 2 Johns. Cas. 
 
 N. Y. 333.
 
 SECT. II.] THE FORM OF THE CONTRACT. 7 
 
 and accordingly, that a policy in which "the goods insured were 
 five tierces of coffee, valued at X27 per tierce; the policy to be 
 deemed sufficient proof of interest," was void under this act, 
 though it was made bona fide for the purpose of protecting an 
 insurable interest, and was not in any respect, except its form, a 
 gaming policy.^ 
 
 Mr. Justice Story considers that in Massachusetts a policy on a 
 substantial interest, though greatly overvalued, to the amount of 
 from four to ten or fifteen times its probable value at the time of 
 making the valuation, is not a gaming policy and void as such, by 
 the laws of that State, the underwriters not having any intention 
 to underwrite a gaming policy. The question might be raised, 
 whether such a valuation was an indication of unfairness on the 
 part of the assured, and this would depend upon the other circum- 
 stances as well as the valuation.^ A party insured in a policy 
 on his own life is conclusively presumed to have an insurable 
 interest.^ 
 
 8. Cleirac says, there were formerly in use in France unwritten 
 contracts of insurance, called insurances " in good faith,"* (con- 
 fiance,) and illegal verbal insurances upon the slave-trade, called 
 insurances " upon honor," ^ were heretofore in use. 
 
 9. The French Code prescribes that the contract of insurance 
 shall be made in writing, bearing date on the day when it is sub- 
 scribed, expressing whether made before or after noon, and that it 
 shall contain other particulars specified, and that no blank space 
 shall be left in the instrument. Divers marine ordinances and 
 statutes require that the contract shall be in writing ; *^ and pre- 
 scribe more or less particularly what it shall contain.' 
 
 1 Murphy and another v. Bell, 4 < Le Guidon, c. 1, a. 27. 
 
 Blngh. 5li7. But see Grant v. Parkin- ^ Boulay Paty, sur. Erner. c. 2, 
 
 son. Park, 402; Hodgson v. Glover, 6 s. 1. 
 
 East, 316. 6 Ord. of Florence, Philip II. ; Bil- 
 
 2 Alsop V. Commercial Ins. Co. 1 boa ; Genoa ; Middleburg ; Rotterdam ; 
 Sumn. C. C. 451. Amsterdam; Prussia; Hamburg; Stock- 
 
 3 Valton V. Nat. &c. Ass. Soc. 22 Barb, holm ; Stat. 35 Geo. HI. c. 63. 
 
 N. Y. 9. The time and mode of pay- ' Code de Com. Liv. 2, tit. 10, art. 
 
 ment of loss are subjects of stipulation. 332, 333, 337 ; Genoa, 2 Mag. 65 ; 
 
 Commonwealth Ins. Co. u. Sennett, 3 7 Middleburg, 2 Mag. 71, 72; Ptotter- 
 
 Penn. St. 305 ; and see Rawls v. Amerl- dam, 2 Mag. 94 ; Amsterdam, a. 23, 
 
 can L. Ins. Co. 27 N. Y. 282; Trenton 2 Mag. 128 ; Prussia, a. 3, 2 Mag. 189 ; 
 
 Mut. L. & F. Ins. Co. v. Johnson, 4 Hamburg, 2 Mag. 212; Stockholm, 2 
 
 Zabr. N. J. 576; Dalby v. The India, Mag. 407. 
 &c. Ass. Co. 15 C. B. 365.
 
 8 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 We have no such provision of law in the United States relating 
 specifically to insurance. 
 
 The risk of barratry and misconduct of agents could be insured 
 against only in writing, according to the usual provisions of the 
 statute law on the subject of oral and written contracts ; but it 
 does not appear why^ under the common law, a valid oral insur- 
 ance may not he made against loss by fire^ or the ordinary perils 
 of the sea, if it were upon a real interest, for a good consideration, 
 and made in terms sufficiently explicit.^ 
 
 It has been held in England by Judges Eyre, Ashhurst, and 
 Wilson, sitting as commissioners in chancery, that an insurance 
 not in writing would be void, as an evasion of the stamp duty.^ 
 And the English statutes, requiring the assured in certain cases 
 to be named in the policy, imply that the contract is in writing.^ 
 Mr. Justice Tilghman, of Pennsylvania, hesitated to say that a 
 valid insurance could be made otherwise than in writing; * and 
 in Louisiana^ and Ohio ^ the courts have said distinctly that it 
 must be in writing ; and it is usually spoken of as being so. In 
 New York and Alabama parol insurance is held to be valid. '^ 
 
 There does not seem to be any reason for prescribing by law 
 the contents of a policy of insurance, any more than those of any 
 other species of contract. Where a species of contract is used 
 as a cloak to gambling or cheating, or for any other purpose per- 
 nicious to the public, this may be a reason for legislative inter- 
 ference ; otherwise, the common course appears to be the better 
 one, namely, to leave parties to make such stipulations, and in 
 such terms, as they may choose. 
 
 10. ^ policy being; forfeited by a violation of some of its con- 
 ditions, a mere oral waiver of the forfeiture is not sufficient to 
 
 1 Mr. Duer, in his learned and able * Smith v. Odlln, 4 Yeates, Penn. 
 ti'eatise on Marine Ins. Voh I. p. 60, 4G8. 
 
 expresses the opinion that, under the ^ Walden v. Louisiana Ins. Co. 12 
 
 common law, a valid insurance may be La. 135. 
 
 made by words spoken. And see Jef- ^ Cockerill v. Cincinnati Ins. Co. 16 
 
 fery v. Walton, 1 Stark. 267, and Bou- Ohio, 149. 
 
 lay Paty, Droit Com. tit. 9 des Con- 7 Trustees, &c. v. Brooklyn F. Ins. 
 
 trats a la Grosse, s. 1, tom. 3, p. 44, ed. Co. 19 N. Y. 305; Mobile, &c. Inst. 
 
 1822. Co. V. McMillan, 31 Ala. N. s. 711. See 
 
 2 Morgan v. Mather, 2 Ves. jun. 18. also, Wood v. Rutland, &c. Ins. Co. 31 
 
 3 25 Geo. in. c. 44; 28 Geo. IIL Vt. 552. 
 c. 56.
 
 SECT. II.] THE FORM OF THE CONTRACT. 9 
 
 revive it,^ unless some new consideration on the part of the as- 
 sured supervenes, or some transaction takes place between the 
 parties under the contract importing a waiver ; such, for instance, 
 as would be equivalent to receiving rent from a tenant for a time 
 posterior to the forfeiture of a lease by non-payment of rent. 
 
 11. Insurance is most frequently made by an incorporated 
 company ; and " such a company is the mere creature of the act 
 to which it owes its existence, and may be said to be precisely 
 what the incorporating act has made it, to derive all its powers 
 from that act, and to be capable of exerting its faculties only in 
 the manner which that act authorizes." ^ It is not only necessary 
 that the corporation should be authorized to underivrite policies ; 
 the contract must also be made in a form to bind the company? 
 The old doctrine, however, that a corporation must contract under 
 seal, no longer prevails; a corporation, as well as an individual, 
 may, unless its charter restrains its power in this respect, without 
 seal, authorize an agent to bind it. But a corporation is distin- 
 guished from an individual contractor in one respect ; being usu- 
 ally an aggregate body, as insurance companies commonly are, it 
 can bind itself, and, indeed, act in any respect, only by its agents. 
 In contracting with such a body, therefore, it is necessary, not 
 only to see that the contract is one within its authority to make, 
 and that the person acting as the agent of the company is author- 
 ized to bind it, but also that the contract is in a form by which 
 the company, according to its constitution, may be bound. 
 
 12. Different forms of policy are used by some companies for 
 ship, freight, and carg-o.'^ The same form seems to be more 
 generally used, for the reason, probably, that two or more of the 
 
 1 Cockerill v. Cincinnati Ins. Co. 3 Utica Ins. Co. v. Kip, 8 Cow. N. Y. 
 16 Ohio, 149. See beyond, Nos. 904, 20 ; North River Ins. Co. i'. Lawrence, 
 1040. 3 Wend. N. Y. 482; Beach u. Fulton 
 
 2 Head and Amory v. Prov. Ins. Co. Bank, 3 Wend. N. Y. 283. New York 
 2 Crauch, 167; and see Walden v. Firemen Ins. Co. y. Sturges, 2 Cow. N.Y. 
 Louisiana Ins. Co. 12 La. 135 ; Andrews 664; New York Firemen Ins. Co. v. 
 V. Union Mut. Ins. Co. 37 Me. 256 ; Ely, 2 Cow. N, Y. 678; Angell & A. 
 Williams v. Cheney, 3 Gray, Mass. 215 ; Corp. c. 7; Fletcher v. United States 
 Western v. Genessee Mut. Ins. Co. Bank, 8 Wheat. 338 ; Stone v. Wood, 
 12 N. Y. 258; Huntley v. Merrill, 32 7 Cow. N. Y. 453; Perkins v. AV ash- 
 Barb. N. Y. 626; Hambro' I'. Hull, &c. ington Ins. Co. 6 Johns. Ch. N. Y. 
 Ins. Co. 3 Hurlst. & N. Exch. 789 ; 485. 
 
 Huntley v. Beecher, 30 Barb. N. Y. 4 in ]S[ew York, 1 Duer, Mar. Ins. 
 580. 64.
 
 10 OF THE CONTRACT OF INSURANCE. [CHAR. I. 
 
 interests in marine insurance, namely, ship, freight, cargo, and 
 profits, are frequently insured at the same time between the same 
 parties, and the transaction is simplified by combining them in 
 the same instrument. Accordingly, the common forms of such 
 policies contain some stipulations applicable only to the ship, 
 others to the freight, or cargo ; and others applicable to all these 
 subjects, as well as to an interest in bottomry, respondentia, and 
 commissions. 
 
 SECTION III. AN AGREEMENT FOR INSURANCE. 
 
 13. It is often desirable to conclude an agreement for insur- 
 ance immediately, lest some intelligence should induce one of 
 the parties to recede. Accordingly, it is the practice with private 
 English insurers, on agreeing vpon a risk, to subscribe a " 5/27?," or 
 short memorandum of the proposed insurance,^ which, according 
 to the statement of one of a special jury, and so probably a man 
 practically acquainted with the course of business, is considered 
 to be binding on the parties ; but Lord Kenyon held that it was 
 not legally binding for want of a stamp,^ and Lord Ellen borough 
 gave, in effect, the same opinion.^ 
 
 The practice in some companies 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 bind- 
 ing upon the company as an agreement to make a policy, if the 
 premium is paid by the applicant in due time.* 
 
 1 Marshall, Ins. 286, n. a compliance with an agreement to keep 
 
 2 Rogers u. McCarthy, Park, 45, n. insured; Parry v. Great Ship Co. 4 
 
 3 Marsden v. Read, 3 East, 572. By Best & S. 556. 
 
 the Stat. 35 Geo. III. c. 37, and 63, an 4 The president of an insurance com- 
 unstamped agreement to insure is not pany in Providence, giving his testimony 
 available as a contract. Stat. 54 Geo. said, " In effecting or settling a policy, 
 III. c. 144, provides for stamping it. the assent of the parties to doing a thing 
 Lord Denman remarks of such an un- is in all respects as binding as the thing 
 stampted agreement, on which the pre- done, according to the usage and prac- 
 mium had been paid, that " a court of tice among underwriters." 2 Cranch, 
 equity would have compelled the insurer 164. And the practice and understand- 
 to execute a policy," (Mead v. David- ing of insurers generally are according 
 son, 3 Ad. & E. 303,) on the ground, as to this statement. 
 
 Mr. Duer supposes, that the agreement At Marseilles, instead of a slip signed 
 
 had been partly executed. 1 Mar. Ins. by the insurer, Emerigon says that the 
 
 131. The execution of such slips is not broker made out an abstract of the risk
 
 SECT, III.] AN AGREEMENT FOR INSURANCE. 11 
 
 14. A parti/ is not legally bound to the full extent of all the 
 ordinary risks, by an agreement to make a policy, the same being 
 executory on both sides, without some memorandum signed by him 
 to that effect} 
 
 Insurance against some of the usual risks, whether in a marine, 
 or fire policy, being required by the ordinary statutory provisions 
 to be in writing, a merely executory oral agreement for a policy 
 againet those risks, so long as nothing is done on either side to- 
 wards executing it, will not be binding. But where the premium 
 has been paid, and the oral agreement has been in all respects 
 executed by the party applying for the insurance, the transactions 
 between the parties will be likely to amount to conclusive evi- 
 dence, by admission of the underwriters, that they have executed 
 and constructively delivered a policy containing the usual provi- 
 sions, and that the same is in their office subject to the order of 
 the assured, precluding any proof to the contrary on their part. 
 This construction is favored by the frequent practice in the ordi- 
 nary course of business, for assureds not to call for the policies 
 at the office of the underwriters until some time after the same 
 are made out, and it is not to be presumed that underwriters are 
 at liberty, during all this time, to repudiate the contract ; and if 
 they have not this privilege, it is on the ground of a constructive 
 delivery, by the policy being in the hands of the clerk, subject to 
 the order of the assured. The company may therefore be well 
 estopped from exonerating themselves by alleging their own 
 neglect to make out the policy. 
 
 and terms, and the underwriter sub- it, until the policy is filled up. So long as 
 scribed to the policy in blank, leaving the contract consists of the mutual prom- 
 it to be filled up by the broker accord- ises of the parties, the signatures of both 
 ing to the abstract. Emer. c. 2, s. 4. are requisite, the promise of each being 
 Signing policies in blank is contrary to the consideration for that of the other; 
 the French Ordinance, and is disap- but when the premium is acknowledged 
 proved of by Emerigon as exposing in- to have been paid, the signing of a policy 
 surers to frauds, since they often found or an agreement for one, by the under- 
 that the policy did not correspond to writer, constitutes a valid contract. See 
 the broker's note. Boul. Paty, Droit Com. tit. 10, s. 1, tom. 
 1 Some insurance companies keep a 3, p. 253, ed. 1822. Hamilton r. Lycom- 
 blank form of a memorandum of an ing Mut. Ins. Co. 5 Penn. St. 339. In 
 agreement for insurance, to be filled up Audubon r. Excelsior Ins. Co. 27 N. Y. 
 and signed by both parties. 1 Duer, ]\Iar. 216, a verbal agreement to make out a 
 Ins. 107. The agreement is signed by policy was held to be a contract of 
 both parties, since the premium is usually present insurance. See also, Western 
 not paid, or the promissory note given for Mass. Ins. Co. r. DufTey, 2 Ivans. 347.
 
 12 OF THE CONTRACT OF INSUEANCE. [CHAP. I. 
 
 Some adjudications on other contracts than insurance give some 
 countenance to the doctrine, that where the proposed assured has 
 paid the premium, and fully performed the agreement on his part, 
 the underwriter is bound by his oral promise to insure.^ Other 
 decisions of preponderating authority bear strongly against the 
 doctrine, in reference to risks coming within the usual provisions 
 of statutes of frauds.^ If the underwriter is held not to be bound 
 by his oral agreement so made and executed on the part of the 
 proposed assured, the particular circumstances would be likely to 
 be such as to render him liable in an action on the case. 
 
 In New York an agreement to continue an insurance to the 
 mortgagee who had foreclosed was held equivalent to issuing a 
 new policy to him.^ 
 
 Under an agreement for insurance with one known to the 
 company to be merely an agent, the company was held bound to 
 issue a policy for whom it may concern.^ 
 
 15. A memorandum that a subject " is insured" or " shall stand 
 insured," means that it is insured, or shall be so, according' to the 
 ordinary form of policy used in the office where the memorandum 
 is made.^ 
 
 Negotiations being had concerning an insurance upon wheat, 
 the secretary of the insurance company wrote to the applicant, 
 that the company did not understand how he made the value so 
 much as he proposed to get insured, saying, " The market price 
 and five per cent, is the rule," and that he might call the next 
 Monday on the subject, and that, in the mean time, " it might 
 stand insured until Monday;" before which day a loss occurred. 
 This was held in Ohio to be an insurance.^ This supposes the 
 secretary to have authority to bind the company in such a case, 
 which most usually he has not. 
 
 So an application for reinsurance on a certain policy, with the 
 indorsement, " Taken at three per cent.," duly signed, is an agree- 
 
 1 Hoby V. Roebuck, 7 Taunt. 157 ; temere i\ Hayes, 5 Barnew. & Ad. 456, 
 S. C. 2 Marsh. 433; Mavor v. Pyne, 2 per Parke, B. 
 
 Carr. & P. 91; S. C. 3 Bingh. 285 ; 3 Benjamin v. Saratoga Ins. Co. 17 
 
 Donellan v. Read, 3 Barnew. & Ad. 906 ; IST. Y. 415. 
 
 Commercial Ins. Co. v. Union Ins. Co. 4 Oliver v. Mutual Ins. Co. 2 Curt. 
 
 19 How. 318; Trustees, &c. v. Brooklyn C. C. 277. 
 
 Ins. Co. 19 N. Y. 305. 5 Ins. Co. v. Mordecai, 22 How. 111. 
 
 2 Teal r. Auty, 2 Ball & B. 100; 6 Neville v. M. M. Ins. Co. of Cincin- 
 Griffiths V. Young, 12 East, 513; Bet- nati, 17 Ohio, 192.
 
 SECT. III.] AN AGREEMENT FOR INSURANCE. 13 
 
 ment to reinsure against the rislis taken in the original policy, 
 and may be enforced to the same effect as the policy might have 
 been, if made out.^ 
 
 16. Tlie agreement for an insurance, like other contracts, re- 
 quires the mutual assent of the parlies, and remains in force, and 
 is not discharged, until such a policy as is agreed for, is made out, 
 or the claim for it is waived. 
 
 A fire company having agreed by indorsement on a certificate 
 in which the application was recited, to issue a policy upon a 
 building, provided the applicant should make a certain alteration 
 in it, and procure a ratification of the insurance by the trustees 
 of the building, the applicant thereupon made the alteration, 
 procured the consent of the trustees, and paid a part of the pre- 
 mium to the agent of the company, and gave his premium note 
 for the remainder. The agent promised to inspect the alteration, 
 and examine the document whereby the trustees had given their 
 consent, but, though frequently requested by the applicant, he 
 neglected so to do for more than a year, when the building was 
 burnt. Gibson, C. J., and his associates of the Supreme Court 
 of Pennsylvania, held this to be a valid agreement.^ 
 
 An insurance company may agree for a policy by its agent as 
 well as by its officers. An agent of a fire company who was 
 authorized to make surveys of buildings, and agree for, but not to 
 make out and sign policies, agreed with an applicant for a policy 
 of a certain amount on a certain building for a certain period, and 
 received the premium, and while the application and premium 
 note, having been dispatched by inail by the agent, were on the 
 way, and the officers of the company had as yet no notice of the 
 application, the building was burnt. The company were held in 
 Ohio to be liable for the loss, though in the blank printed form 
 which was filled up to make the application, it was stated that a 
 policy would be issued if the application should be approved by 
 the company ; ^ their refusal to make out the policy, not being 
 
 1 Woodruff u. Columbus Ins. Co. 5 Ins. Co. 17 N. Y. 421; Whitaker v. 
 La. Ann. 697. Farmers, &c. Ins. Co. 29 B^rb. N. Y. 
 
 2 Hamilton v. Lycoming Mut. Ins. 312; Peoria, &c. Ins. Co. v. Walser, 22 
 Co. 5 Penn. St. 339. Ind. 73 ; Davenport v. Peoria, &c. Ins. 
 
 3 Palm r. Medina Fire Ins. Co. 20 Co. 17 Iowa, 276. In this case the 
 Ohio, 529. See also, Ins. Co. v. John- ajrreenient was made on the 20th, the 
 son, 23 Penn. St. 72; Bentley v. Col. building was burnt that night, and the 
 
 VOL. I. 2
 
 14 OP THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 on the ground that the risk was objectionable, at the time of the 
 application being accepted by the agent. 
 
 A p-licy was agreed for, and one made out differing from the 
 agreement, and delivered to the clerk of the party proposed to be 
 insured, who did not see it, and was not apprised of the variation 
 until a loss had happened, and did no act accepting the policy as 
 made out. It was held that the agreement remained in force, 
 and that the applicant was entitled to such a policy as was 
 agreed for.^ 
 
 17. The question has arisen as to what will amount to the con- 
 summation of an agreement for insurance between parties in differ- 
 ent places commnnicating by letter or message. 
 
 The doctrine must be the same, whether the inquiry relates to 
 a contract of insurance or sale, or any other agreement not the 
 subject of specific regulation in this respect. The question is, 
 what is such an acceptance of an offer, as will bind the party 
 accepting and the party offering ; and what, if any, right of 
 revocation of his offer or acceptance either party has, and within 
 what time, and in what manner, he must avail himself of such 
 right. 
 
 In case of inquiry made of insurers by letter, for the terms on 
 which they would insure the vessel of the writer, for a specified 
 voyage, they immediately answered by mail, naming the premium, 
 but on the next day, having thought better of the matter, they 
 wrote by mail revoking their offer and declining the risk. On the 
 following day the applicant received their first letter, and on the 
 same day replied, accepting the terms, and requesting them to fill 
 up a policy for $2500 or $3000. After dispatching this letter, 
 he received their second letter, revoking their offer. The court in 
 Massachusetts held that the contract was not consummated, and 
 that the insurers were not bound,^ that is to say, that the party 
 making the offer may revoke it if he takes the proper steps to 
 give notice of his revocation at any time before receiving notice 
 of its acceptance by the other party. 
 
 In a case in the Court of King's Bench in England,'^ not pre- 
 
 policy was executed on the 21st, and 2 M'CuIloch v. Eagle Ins. Co. 1 Pick, 
 
 dated the 20th, both parties being igno- Mass. 278. 
 
 rant of the loss. The policy was held 3 Adams r. Lindsell, I Barnew. & Aid. 
 
 valid. 681. 
 
 1 Franklin Ins. Co. v. Hewitt, 3 B. 
 Monr. Ky. 230.
 
 SECT. III.] AN AGREEMENT FOR INSURANCE. 1') 
 
 cisely similar to the preceding one, but very closely analogous, it 
 was, on the contrary, held that the party making the offer will be 
 bound, if the party to whom it is made duly communicates notice 
 of his acceptance. Lindsell, by letter, offered a lot of wool to 
 Adams, saying he expected an answer by the course of post ; but, 
 through mistake in directing the letter, it was delayed. Lindsell, 
 after not receiving an answer when he should have received one 
 if his own letter had been transmitted as he supposed, and an- 
 swered by course of mail, sold the wool to another, after which 
 Adams's letter was received by him, accepting his offer, and dis- 
 patched in course of post after receipt of Lindsell's. The court 
 considered that Lindsell was bound by his offer to the same effect 
 as if his letter had gone direct, its delay being through his fault, 
 and that it was a standing continuing offer up to the time of his 
 letter being received by Adams, and thus held him to be answer- 
 able for a breach of his contract. 
 
 The circumstance in which these two cases differ is, that, in 
 the Massachusetts case, the company immediately dispatched 
 notice of their revocation to the other party ; in the English case, 
 Lindsell, though by the sale of the wool he showed distinctly that 
 he intended to retract his offer, gave no such notice. Though 
 the court do not expressly put stress upon this circumstance, yet 
 we cannot say that such notice would have had no weight with 
 them. 
 
 In a subsequent case,i in the English Court of Common Pleas, 
 Mr. Chief Justice Best questioned the correctness of the decision 
 in the Court of King's Bench ; and in a subsequent case in Mas- 
 sachusetts, Mr. Chief Justice Shaw, giving the opinion of the 
 court,^ collaterally stated a proposition, that has been construed 
 by a learned and able jurist ^ to import a renunciation of the 
 doctrine previously adopted in that State. He said that, " when 
 notice is to be given by mail, a notice actually put into the mail, 
 especially if forwarded and beyond the control or revocation of 
 the party sending it, may be good notice." 
 
 The point specifically decided was, that the acceptance of the 
 offer had not been dispatched at the time of the fire, but remained 
 in the hands of the applicant's agent, and subject to the appli- 
 
 l Routledge v. Grant, 3 Carr. & P. '- Thayer v. Middlesex Mut. Fire Iiis- 
 267 : S C. 4 Bingb. 653. Co. 10 Pick. Mass. 326. 
 
 3 1 Duer, Mar. Ins. 121.
 
 16 OF THE CONTRACT OF INSURVXCE. [CHAP. I. 
 
 cant's control when the fire happened, and so, under the ordinary 
 rule in such case, the policy would not have been binding upon 
 the insurance company, if, without having had notice of the loss, 
 they had issued one. The remark of the chief justice, however, 
 considering the facts to which it had reference, certainly indicates 
 a different doctrine from that of the previous case in the same 
 court, though consisting in part of different judges.^ 
 
 The case of a contract for insurance evidently differs from no- 
 tices on bills and the like, and would be subject to a new and 
 embarrassing question, where there should be a telegraphic com- 
 munication. 
 
 This same question has come up in a New York case relative 
 to a contract of sale.^ Frith, December 24th, offered by letter a 
 quantity of brandy to Mactier the intestate, upon specified terras, 
 who, March 25th, dispatched a letter accepting the offer, and died 
 on the 10th of April, before his letter had come to the hands of 
 Frith. The question was, whether the contract was consummated 
 on Mactier's dispatching his acceptance, or his acceptance re- 
 mained revocable until it should be received, for if it did so, it 
 was revoked by his death, Mr. Justice Marcy gave a learned 
 and elaborate opinion in the Court of Errors, that the contract 
 was consummated, and bound Frith from the time of Mactier's 
 dispatching his letter of acceptance; and a majority of the court, 
 a part of whom only were jurists, concurred in this opinion.^ 
 
 In a case before the Supreme Court of the United States, the 
 
 1 In respect to the doctrine, that a cepted, and thus the negotiation might 
 
 party may retract any time before re- continue and never come to any result, 
 
 ceiving notice of the othei-'s assent, the Adams v. Lindsell, 1 Barnew. & Aid. 
 
 English Court of King's Bench objects 681. This reason is adopted by Gibson, 
 
 that, if the insurer is not bound by his C. J., of the Supreme Court of Penn- 
 
 offer until he has received notice of its sylvania ; Hamilton v. Lycoming Mut. 
 
 acceptance, but in the interval may re- Ins. Co. 5 Penn. St. 339, at p. 342, 
 
 tract it, the applicant cannot be bound and by Judge Duer, 1 Mar. Ins. 68. 
 
 by his acceptance until he has received This is merely supposing a very improb- 
 
 notice that it has been assented to by able contingency, which, admitting that 
 
 the insurer; nor, again, the insurer until it might happen, does not seem to be a 
 
 he has received notice that his assent conclusive objection. 
 to the acceptance has been assented to 2 Mactier's Administrators v. Frith, 
 
 by the applicant, and so the parties 6 Wend. N. Y. 104. 
 might go on corresponding indefinitely, 3 See also Brisban v. Boyd, 4 Paige, 
 
 each retracting before the other had ac- N. Y. 20.
 
 SECT. III.] AN AGREEMENT FOR INSURANCE. 17 
 
 agent in Fredericksburg, Virginia, of a Baltimore fire insurance 
 company, in reply to an application for a policy, had by instruc- 
 tion from his company, on the 2d of December, stated the terms 
 on which they would make a policy, by letter addressed to the 
 applicant; and the applicant, then in Alabama, on the 21st of 
 that month, the day after receiving the agent's letter, put his let- 
 ter of acceptance of their terms, inclosing a check for the pre- 
 mium, into the post-office, addressed to the agent. On the next 
 day, namely, the 22d of the same month, the dwelling-house in 
 Fredericksburg, on which the insurance was proposed, was burnt. 
 The agent received the letter of acceptance, inclosing the check 
 for the premium, on the 31st, and immediately replied, declining, 
 on behalf of the company, to take the risk. In a bill in equity 
 for relief upon this correspondence, as an agreement to make a 
 policy, it was decided that, on the letter of the applicant being 
 put into the mail in Alabama, the agreement for the insurance 
 was completed, subject to the contingency of the applicant's 
 remanding his letter, or giving notice of his revocation of his 
 acceptance, so as to reach the agent before the receipt of his let- 
 ter of acceptance of the terms offered.^ 
 
 These cases sufficiently show the difficulty and subtilty of this 
 question. Pothier's doctrine^ is, that, if the party to whom an 
 offer is held out sustains damage by its being revoked, while he 
 is reasonably relying and acting upon it, his remedy should be an 
 action for the breach of good faith, not one alleging the contract.^ 
 
 His opinion accordingly coincides with most of the decisions 
 above cited. 
 
 The doctrine decidedly predominating in the cases, accord- 
 ingly, is, that a written offer by insurers of terms on ivhich they 
 will insure^ where the subject^ risks, and terms are adequately speci- 
 fied, becomes binding- on a dispatch of an acceptance, provided the 
 
 1 Tayloe v. Merch. Fire Ins. Co. 9 for remarks ou Cooke v. Oxley, which 
 How. 390. See also remarks of Gibson, is incorrectly reported; also Eyles v. 
 C. J., Hamilton v. Lycoming Mut. Ins. Ellis, 4 Bingh. 112 ; Head v. Diggon, 3 
 Co. 5 Penn. St. 339, at p. 342. Man, & R. 97; Dig. lib. 17, tit. 1, s. 15; 
 
 2 Traite du Contrat du Vent, s. 2, a. and 1 Duer, Mar. Ins. p. 6 7, s. 13, and 
 8, no. 32. p. 116, n. ix., where this subject is very 
 
 3 See 1 Duer, Mar. Ins., 127-129. learnedly and ably treated, to whom I 
 Also 1 Maule & S. 95 ; 2 Ves. jun. 1 18 ; am indebted for some of the above refer- 
 Cooke V. Oxley, 3 Term, 653. See also ences. 
 
 Humphries v. Carvalho, 16 East, 45, 
 2 *
 
 18 OF THE CONTRACT OP INSURANCE, [CHAP. I. 
 
 acceptance reaches them prior to a letter countermanding it, and in 
 reasonable time, or ivithin the time prescribed. 
 
 18. Where an applicant applies by mail for a policy in certain 
 terms, and transmits the premium note, and the insurers fill vp and 
 transmit by mail a policy in different terms, saying they accept his 
 proposition, it is not an agreement, as the minds of the parties do 
 not concur, and the applicant is not liable on his note. 
 
 Carrington applied to a company for their terms for a policy 
 " on horses and oxen, on board the Gleaner, from Saybrook to the 
 West Indies." The company replied, " The office will take the 
 risk at 15 per cent." Carrington replied by mail the next day, 
 " We accept your terms, wish a policy filled on 26 horses, valued 
 at $2200 dollars, and on 20 oxen, valued at 300 dollars. Inclosed 
 is a note for the premium." The company on the next day for- 
 warded by mail a policy for " 3000 dollars, on stock on the deck 
 of the brig Gleaner;" with this note on the margin: — "46 head 
 of horses and oxen valued at 3000." Carrington refused to ac- 
 cept the policy, on account of the stock being valued together at 
 one sum, instead of a separate valuation of the two descriptions 
 of stock, and immediately returned it to the company. 
 
 In a suit in Connecticut on the premium note, Hosmer, C. J., 
 said, that the second letter of Carrington was in effect a new pro- 
 posal, as it specified the amount and mode of valuation, which 
 were not in his first letter. " This was a new proposal, which 
 Carrington might presume the company would accept, but could 
 not know it. The office had assumed no such obligation, as the 
 office had not agreed to underwrite a valued policy ; neither had 
 the defendants agreed to receive an open policy. The minds of 
 the parties had not met. The parties never did agree." 
 
 Three of the judges concurring in this opinion, judgment was 
 given against the right to recover on the premium note. Mr. 
 Justice Bristol dissented.^ 
 
 19. There is no difference in respect to the completion and valid- 
 ity of an agreement for an insurance, whether it be for a marine, 
 life, or fire policy. 
 
 20. Where an agreement for insurance is made by an agent, 
 
 1 The Ocean Ins. Co. v. Carrington, liable for a loss in such a case where the 
 
 3 Conn. 357. Carrington had he.ard of application was made through the com- 
 
 the arrival of the vessel before writing pany's agent. Myers v. Keystone Ins. 
 
 his second letter. Nor is the company Co. 27 Penn. St. 268.
 
 SECT. III.] AN AGREEMENT FOR INSURANCE. 19 
 
 it must, in order to bind his principal, he made ivithin his au- 
 thority. 
 
 The Washington Insurance Connpany in New York were in 
 the practice of taking risks against iire at Savannah, in Georgia, 
 and had taken divers risks procured, and for which the premium 
 had been forwarded by R., their agent at Savannah. The agent 
 having had a negotiation with P. respecting an insurance on his 
 stock of goods, on the 5th of January, 1820, received from him 
 the premium for the insurance of $5000, to commence from that 
 day, for which he gave P. a receipt, as agent. On the 11th of 
 January, and before the company had received the premium in 
 New York, or made out the policy, the property was burnt. The 
 agent had previously written to the company, that, at so great a 
 distance, " there was difficulty in getting along with insurances, 
 unless the company would furnish him with blank policies ready 
 signed, or his receipt for the premium was made binding upon 
 the company." The secretary answered, that "the directors were 
 aware of the difficulty, and would obviate it so far as was con- 
 sistent with the principle, that no insurance should be binding 
 until the premium had been received by them in New York." 
 The president also replied to him, that " the most that could be 
 done was, that all insurances he might agree to make, and for 
 which the premium should be actually paid, and received in New 
 York, the office would consider as inuring at the time of the pay- 
 ment to the agent, provided the company should be satisfied with 
 the risk." 
 
 The printed conditions and proposals of the company, put up 
 in R.'s counting-room, specified, among other things, that " appli- 
 cations for insurance must be made at the office of the company." 
 In April, 1821, P. tendered the amount of the premium to the 
 company in New York. 
 
 Mr. Chancellor Kent was of opinion, that no ground was shown 
 for any one to suppose that the agent was authorized to bind the 
 company to insure, or that he intended to bind them ; and that 
 they would not be bound until after receiving the premium in 
 New York, and giving their assent to the proposals ; and he 
 decreed accordingly.^ The case being carried to the Court of 
 Errors, Mr. Justice Woodworth, with the concurrence of Mr. 
 Chief Justice Savage and Mr. Justice Sutherland, said : " Upon 
 1 Perkins i'. Washington Ins. Co. 6 Johns. Ch. N. Y. 485.
 
 20 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 the payment of the premium to the agent, the applicant for 
 insurance was subject to the following contingencies : 1. That 
 the premium should be received at the office. 2. That the rate 
 of premium - should be recognized at the office. 3. That the 
 company should be otherwise satisfied with the risk. As to the 
 first, there can be no doubt. As to the second, it was undoubt- 
 edly intended, that, if the rate of premium taken by the agent 
 conformed to the rules and regulations of the company, and was 
 not less than the uniform rate before taken in other and similar 
 cases, the applicant would be entitled to a policy commencing 
 on the day the premium was paid ; for, although it is provided 
 that the office shall recognize the rate of premium, it must 
 be understood as having referred to the rules and regulations 
 sanctioned by the board." 
 
 Mr. Senator Colden, a judge in the same court, considered the 
 agent of the company to be such for remitting the premium ; and 
 since, if he had immediately remitted it in this case, the company 
 would have received it before the news of the fire reached them, 
 and have made the policy, they should not be permitted to take 
 advantage of his delay. 
 
 The court were unanimously of opinion, that the plaintiff was 
 entitled to recover.^ 
 
 On the same question the following case has been decided in 
 Massachusetts. On the 15th of January a proposal was made in 
 behalf of Thayer to a mutual fire insurance company at Concord, 
 to insure buildings in Hopkinton, where he resided, distant about 
 twenty miles. The directors stated the terms on which they 
 would take the risk, and the secretary of the company filled out 
 proposals, and a premium note, both dated on the 16th of January. 
 All the blanks in these proposals were filled up by the secretary, 
 excepting that for the value of the buildings, which was left to be 
 filled up by Thayer, the negotiation being made by his agent, 
 Harrington, from whose description the secretary had filled up 
 the proposals. The secretary told Harrington, that, when the 
 premium note and proposals were signed by Thayer, they might 
 be returned to him, the secretary, by mail or otherwise, and he 
 would then return the policy bearing the same date with the note 
 and proposal. There was a weekly mail between Hopkinton 
 and Concord. Harrington presented the papers to Thayer, at 
 
 1 Perkins v. Washinston Ins. Co. 4 Cow. N. Y. 645.
 
 SECT. IV,] THE EXECUTION OF THE CONTEACT. 21 
 
 Hopkinton, on the 28th of January, two mails having gone thence 
 to Concord after the 15th. Thayer signed the proposal without 
 filling up the blank for the value. He also signed the premium 
 note, and on the 28th gave the papers to Harrington, who was 
 postmaster at Hopkinton, to be forwarded to Concord by the 
 next mail, on the 3d of February. On the 31st of January, the 
 buildings were burnt On the 3d of February, Harrington for- 
 warded the papers by mail, and they were duly received by the 
 secretary. Mr. C. J. Shaw, giving the opinion of the court on 
 the question whether this was an agreement to insure, said : 
 " The proceedings at Concord did not purport to be a contract, 
 and were not understood so to do. Harrington was not author- 
 ized to make insurance." And though the chief justice intimates 
 that, where a notice is actually put into the mail, especially if 
 forwarded and beyond the control or revocation of the party for- 
 warding it, it may be a good notice, the court were of opinion 
 that the company was not bound in this case, because the accept- 
 ance of the offer of the company, if it were such, and the papers 
 signifying it, were still in the hands of the postmaster, who was 
 the agent of Thayer, and had not been forwarded, at the time 
 of the buildings being burnt.^ 
 
 21. An offer to insure is not binding/ upon the party making it, 
 unless it is accepted ivithin a reasonable time? And if the time 
 or place of acceptance is prescribed, the answer must be in con- 
 formity.3 A proposal is not presumed to be accepted from a 
 delay for five months to reply.* 
 
 SECTION IV. THE EXECUTION OF THE CONTRACT. 
 
 22. There is nothing to distinguish the execution of the con- 
 tract of insurance from that of other written instruments. Though 
 a policy is a contract between two parties, each of whom is under 
 certain obligations, and entitled to demand of the other a compli- 
 ance with certain implied and expressed conditions and stipula- 
 tions, it is subscribed only hy the insurer himself, or by his agent 
 or attorney, and ivhen so subscribed and actually or constructively 
 
 1 Thayer v. IMiddlesex Mut. Fire Ins. 3 Eliason v. Henshaw, 4 Wheat. 225, 
 Co. 10 Pick. Mass. 32G. and cases above cited. 
 
 2 Ibid. Xenos u. Wickham, 13 C. B. ^ Ins. Co. v. Johnson, 23 Penn. St. 
 n. s. 381. 72.
 
 22 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 delivered, tmconditionallt/,^ to the assured, it is a completed and 
 binding" contract.^ 
 
 23. In the usual form of the policy the insurer on a marine risk 
 acknowledges payment of premium, and, in fire and life policies, 
 of the whole or first annual premium, or deposit or first instal- 
 ment, and accordingly always imports a settlement by cash or 
 premium note, of a part of the whole of the premium simultaneously 
 with the execution and delivery of the policy. This is equivalent 
 to saying, that the contract is not in force until such 'payment or 
 settlement has been made. 
 
 24. But the rules of an insurance company, or the agreement 
 of the parties, may control the rule just stated, and the policy be 
 binding upon the insurers, though the premium has not been paid 
 or any note given for it, nor the policy actually delivered from the 
 insurance office? 
 
 Thus, in a case that occurred in Maine, Loring, one of the 
 owners of a vessel, applied, November 5th, in Portland, for insur- 
 ance on the vessel, and the terms were agreed upon, and he signed 
 the proposition-book, which was considered in the course of busi- 
 ness at the office to entitle the applicant to a policy, though the 
 premium note had not been signed, the frequent practice being to 
 fill up the policy immediately, and let it remain in the office for 
 the benefit of the applicant, and persons insured frequently did 
 not call and give their premium notes, and take away their poli- 
 cies, until the time of credit on the note to be given had nearly 
 expired. Four or five days after, the applicant called again at 
 the office, and was told by the president that his policy was 
 ready, and he then took a premium note filled up at the office, to 
 get it signed by the three other owners, for whom he was not 
 authorized to sign, and, who, as well as himself, resided out of 
 the city. On the 6th of December, the president of the office met 
 Loring, and requested him to call and take his policy, which he 
 replied that he would do at some other time. On the 9th, news 
 of a loss was received at Portland, and then known to both par- 
 ties. Two days afterwards, Loring offered the premium note at 
 
 1 Lynn v. Burgoyne, 13 B. Rlonr. accepted by the assured. TVallingford 
 Ky. 400. V. Home Ins. Co. 30 Mo. 46. 
 
 2 Kentucky Mut. Ins. Co. v. Jenks, 5 3 Warren v. Ocean Ins. Co. 16 Me. 
 Ind. 06. If the policy does not corre- 439. 
 
 spond with the application, it must bo
 
 SECT. IV.] THE EXECUTION OF THE CONTRACT. 23 
 
 the office, duly signed, which the president declined to accept, 
 and refused to deliver the policy. The policy contained the usual 
 acknowledgment of the payment of the premium. It was held 
 that the contract had been executed, and was available to the 
 assured as a valid insurance.^ 
 
 It has been held in the Circuit Court of the United States for 
 Pennsylvania, by Mr. Justice Washington, in an action of trover 
 for a policy, that an agreement for an insurance was executed on 
 the part of the underwriters, by their causing the policy to be 
 filled up, and subscribing it, and giving to the applicant notice 
 of its being filled up, mentioning at the same time intelligence 
 received of the capture of the vessel, though the policy stiU 
 remained in their office, and the premium had not been paid, nor 
 had any note been given for it.'-^ 
 
 It does not appear in this case that the underwriters had signi- 
 fied their dissent until the agent of the assured had called at their 
 office, and offered to sign the premium note. If this offer be con- 
 sidered to be equivalent to the actual signature of the note with 
 the assent of the underwriters, or if the agreement for the policy, 
 which was probably merely verbal, no mention being made of its 
 being written, is considered to be binding on the parties, then 
 there seems to be no question of the liability of the underwriters, 
 though, if their liability rested wholly on the agreement, the 
 remedy would seem to have been more properly on that. The 
 circumstance of the policy remaining in the office cannot be 
 material, if the premium has been paid, and the policy is con- 
 sidered to be subject to the order of the assured. 
 
 In this case, the doctrine as to the acts requisite to the com- 
 plete execution by the underwriters of the agreement to insure by 
 their having executed a policy, is certainly pushed very far. Sup- 
 pose the applicant had subscribed his premium note at his own 
 counting-room, could the underwriters have maintained trover 
 for it ? . Perhaps Judge Washington put greater stress upon the 
 
 1 Loring i'. Proctor, 26 Me. 18 ; 2 Kohne v. Ins. Co. of N. America, 
 
 Blanchard v. Waite, 28 Me. 51. Each 1 Wash. C. C. 93. See also Bragdoa 
 
 owner was separately insured by each v. Appleton, &c. Ins. Co. 42 Me. 259; 
 
 of the twenty members of the insur- Sheldon v. Conn. M. Ins. Co. 25 Conn, 
 
 ance company, according to the terms 207 ; Hallock v. Ins. Co. 2 Dutch. N. 
 
 of the policy and the rules of the asso- J. 268. 
 ciation of insurers.
 
 24 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 notice that the policy was filled up, than appears in his report of 
 the case. It may possibly have been such as to admit of the 
 construction that the underwriters acknowledged that they held a 
 policy belonging to the assured, and waived the previous payment 
 of the premium, or delivery of his note therefor, as a preliminary 
 essential to the consummation of the contract. 
 
 Where it was notified to the applicant, upon whose application 
 the secretary had minuted the rate of the premium but not signed 
 the minute, that the insurance would not be considered to be in 
 force until the premium should be paid, it was held in Louisiana 
 that no contract existed between the parties so long as the pre- 
 mium remained unpaid, though the policy was in the office, filled 
 up and signed, when the loss occurred, and policies for the same 
 party had previously been treated as being in force, though they 
 remained in the office and no premium had been paid.^ 
 
 25. Where a policy , as often happens, is delivered subsequently 
 to its date, the risk is presumed to have been assumed from that 
 date, to the same effect as if then delivered, no reason appearing 
 for a different construction.^ 
 
 26. Insurance is often negotiated through an agency for one or 
 both of the parties. It is necessary to the validity of such a con- 
 tract, that the agent acting for either party should be previously 
 authorized, or the contract subsequently ratified and adopted by 
 the principal, or that the purported 7;ri»'?ij»aZ should have given the 
 other party sufficient ground to believe the person assuming to be 
 agent to have been duly authorized as such.^ 
 
 Where a policy was delivered by an agent of a fire insurance 
 company before his agency was revoked, it was held to be valid 
 and binding on the company, though the assured had prior notice 
 of their intention to revoke it.* 
 
 27. A policy in which the value of the subject is stated is called 
 a " VALUED POLICY," ouc in which it is not stated is an " open 
 
 •POLICY." 
 
 The expression " open policy " is also sometimes used in refer- 
 ence to one kept open for new subscriptions, or one on cargo kept 
 
 1 Berthoud v. Atlantic Ins. Co. 13 ^ See chap. iv. 
 
 La. 53y. See also Fliudt v. Ohio Ins. * Liglitbody v. North American Ins. 
 Co. 8 Ohio, 505. Co. 23 Wend. N. Y. 18. 
 
 2 Lightbody v. North American Ins. 
 Co. 23 Wend. N. Y. 18.
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 2") 
 
 open for new subjects of insurance, in which latter case the voy- 
 age and risks are described in the body of the policy, and addi- 
 tional amounts or new cargoes are afterwards entered, from time 
 to time, at the foot of the instrument, by merely specifying the 
 amount,^ or by naming a different vessel, or specifying whatever 
 circumstance distinguishes the risk or subject from those described 
 in the body of the policy. 
 
 SECTION V. THE PROVISIONS OF A COMMERCIAL POLICY. 
 
 28. The jjarty really interested as the assured in a marine 
 2yolicy does not alivays appear on the face of the instrument. 
 The policy is executed only by the insurer. The party insured 
 is most frequently named in the policy, but not always, for it 
 may be made by the party named for his own benefit, and is 
 often made by him as agent oi> trustee, in which case the party 
 interested is named ; or, if not, the agent describes himself to 
 be such, or the policy is declared to be made for the benefit of 
 whom it may concern, or contains some indication of the interest 
 of another party than the one named. 
 
 29. Policies alivays bear a date, hut proof by parol, or other- 
 wise aliunde, is admissible to show that a policy, or other written 
 instrument, was executed and delivered and became a binding 
 contract, on a different day from its date,^ which is an exception 
 to the general rule that the provisions of a written instrument 
 cannot be superseded by parol testimony.'^ 
 
 30. The essential stipulation is usually, at least, if not invari- 
 ably and universally, expressed by the word " insured 
 
 31. The thing insured, the " subject,^^ as, ship, freight, cargo, 
 profits, commissions, must necessarily apptear on the face of the 
 policy. 
 
 The quantity or amount of these subjects, other than the vessel 
 may Jje uncertain, in which case the policy is applied to whatever 
 there may be at risk, not exceeding the amount or quantity ex- 
 pressed in the policy. 
 
 1 Form of the Atlantic Mutual In- 3 The French Code of Commerce, 
 Burance Co. New York. a. 332, requires that the date of the 
 
 2 Stone i;. Ball, 3 Lev. 348 ; Hall execution of the contract shall be truly 
 V. Cazanove, 4 East, 477 ; Jackson r. expressed. 
 
 Bard, 4 Johns. N. Y. 320 ; 1 Duer, Mar. 
 Ins. 90. 
 
 vol.. I. .1
 
 26 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 32. In the United States, marine ^w//c/e5 uniformly contain tlie 
 provision that they are to be apiylicable only to the excess of the 
 value of the subject over the amount insured by jyrior policies, and 
 in respect of subsequent insurances, the policy is to be applied as 
 if no such had been made. 
 
 33. The value of the subject as so much in the whole, or per 
 hundred-weight, yard, or piece, etc., is sometimes declared in the 
 policy ; and, where it is not so, the value in the market at the be- 
 ginning of the risk is understood to be referred to by the parties.^ 
 
 A policy on cargo is not unfrequently applicable to successive 
 shipments, coming within the description of subject specified. 
 
 34. The premium is always named. 
 
 35. Tlie risks, or perils, or causes of loss for which indemnity 
 is promised, must be specified. 
 
 These are usually perils of the seas, fire, public enemies, thieves ; 
 captures, restraints, and detentio*is, by governments or people; 
 and barratry of the master and mariners ; and all other perils. . 
 
 The first of these descriptions, namely, " perils of the seas," is 
 the most comprehensive. It includes all the others, while the sub- 
 ject is off land, except the last, which has very little practical 
 effect, since it can be applied only to perils of the like kind to 
 those specifically enumerated, and the clause is very rarely relied 
 upon by parties, and still less by the courts.^ 
 
 36. The risks specified in the policy are qualified, and limited 
 
 1 A Lexington form of commercial Some American companies adopt this 
 policy provides respecting valuation, enumeration, exactly or very nearly, as 
 that in case of loss the insurers shall the Atlantic, Sun, Union, Mutual, and 
 be liable according to the value of like Mercantile Mutual, of New York. The 
 goods at the port of destination. Boston forms, that of the Charleston In- 
 
 2 There is some diversity in the enu- surance Company, and the Lexington 
 meration of perils in the common forms Life and Marine Insurance Company, 
 of policies of different places. ,, and others, for "thieves" substitute 
 
 The old and the present enumeration " assailing thieves ; " and some (the New 
 
 in English policies is, " perils of the York Mercantile and Charleston Com- 
 
 seas, men of war, fire, enemies, pirates, mercial and some others) " overpower- 
 
 rovers, thieves, jettisons, letters of mart ing thieves," intending to take the risk 
 
 and countermart, surprisals, takings at only when it comes within the description 
 
 sea, arrests, restraints and detainments of "«uperior force." Some omit "rovers," 
 
 of all kings, princes, and people, of " letter of mart and countermart," " sur- 
 
 what nation, condition or quality soever, prisals," " takings at sea," and " arrests," 
 
 barratry of the master and mariners on the supposition that they are included 
 
 and all other perils." in " perils of the sea," which, no doubt,
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 27 
 
 or enlarged, by the description of the voyage, adventure, or em- 
 ployment of the ship, or the designation of the species of trade to 
 which the insm'ance relates. So the place where the insurance is 
 made, as we shall see, affects its construction, since every con- 
 tract must be construed in reference to the customs and usages 
 of the country, and even the port where it is entered into, as well 
 as by the subject-matter to which it relates, and the surrounding 
 circumstances. Such customs and usages are in effect included 
 in the contract, and, as will more fully appear in the sequel, have 
 a material bearing in respect to the character and extent of the 
 risks and perils included in the insurance. 
 
 The established printed form of marine policy used in Great 
 Britain has a clause expressly referring to usage, whereby it is 
 declared that it " shall have as much force and effect as the surest 
 writing or policy of assurance heretofore made in Lombard Street, 
 the Royal Exchange, or elsewhere, in London." Similar clauses 
 have been sometimes introduced into American policies, usually, 
 however, for the purpose of circumscribing rather than enlarging 
 
 cover all losses from superior force, phrase is used ; but if it is not made on 
 
 while the subject, whether ship, freight, account of any peril insured against, 
 
 or cargo, is at sea ; but the risk on each then it is not intended to be covered, 
 
 subject is, under many policies, intended and so the term "jettisons" may well 
 
 to be covered when it is not strictly at be omitted in the specific enumeration 
 
 sea, as on the ship when, in the course of perils in the general form of marine 
 
 of the voyage, it is hauled up for re- policies, if averages are expressed or 
 
 pairs, and so on for freight, and on implied. 
 
 goods also, when, in the prosecution of The risk of " barratry by the master 
 the voyage, they are temporarily on or mariners," is taken by some corn- 
 hand. Therefore, it is safer to specify, panics without any words of qualifica- 
 in the general form of marine policies, tion. In the Boston forms of policy the 
 losses, by fire, and all losses, intended risk of barratry is not insured against 
 to be covered, that happen from supe- if the insurance is for the owner of the 
 rior force, by other words than " perils vessel. This qualification of the risk 
 of the sea." arises from the fact, that the master is 
 The word "jettisons" is omitted in appointed by the assured himself, and 
 the Boston form, for the reason that, it is supposed that he will be more cir- 
 when a jettison is made on account of cumspect in employing a master, when 
 any one of the perils insui-ed against by the dishonesty of the person whom he 
 a policy, indemnity for it may be claimed employs is at his own risk. The Fire 
 under such peril, and is impliedly and Marine Insurance Company of Bal- 
 included in the stipulations common timore and the South Carolina Insur- 
 to marine policies respecting general ance Company of Charleston, except 
 and particular average, and also comes the bai-ratry of the master If he is con- 
 within " perils of the sea," where that signee.
 
 28 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 the risks assumed by the insurer ;^ but every such clause is wholly 
 superfluous, as we shall see, since the contract itself, by legal con- 
 struction, and without any express provision, provides for the cases 
 intended to be provided for by a general clause of this description. 
 Provisions are ordinarily introduced in filling up marine poli- 
 cies, for the purpose of limiting, enlarging, or otherwise qualify- 
 ing, the risks enumerated in the printed form, where such quali- 
 fications are intended by the parties. 
 
 37. The description of the risk always specifies its commencement 
 and termination, hy time or place, or both, or by some event. 
 
 The more usual commencement of the risk on a marine policy 
 is, "at and from," or "from," a certain place ; and its continuance 
 on a certain voyage outward or homeward, or both outward and 
 homeward, to a certain place, on the vessel until it is moored 
 twenty-four hours in safety, and usually on goods until they are 
 safely landed. 
 
 But in the coasting trade, or on successive short voyages, and in 
 uncertain employments, the policy on the vessel is usually made for 
 a certain period, beginning on a certain day, and ending on a cer- 
 tain other, at noon ; and such a policy is called a time policy. It 
 is often stipulated, that, if the vessel is at sea at the end of the 
 specified period, the risk is to continue at the same rate of pre- 
 mium until its arrival at some port. 
 
 38. It is one of the understood conditions of a marine policy, 
 that, if the subject is not put at risk within the terms of the policy, 
 the premium ivill not be due, or if paid, will be returnable. Such 
 return is often expressly stipulated for. 
 
 89. A marine policy is subject to the following implied condi- 
 tions relative to the risk, to be complied with by the assured : — 
 
 1st. The ship must be sea-worthy. 
 
 2d. The assured must not make any material misrepresentation, 
 whether written or oral, relative to the risk, importing that it is 
 less than it really is. 
 
 3d. The assured must state to the insurer every fact known to 
 him that is material to the risk, and which is not known to the in- 
 surer, or presumed to be so. 
 
 If the assured fails to comply with either of these implied con- 
 ditions, the policy is void from the first. 
 
 4th. The vessel must not deviate fi*om the voyage, so as to sub. 
 
 1 Boston form.
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 29 
 
 stitute another risk than that described in the policy. If this 
 condition is not complied with, the policy ceases to be of force 
 thereafter. 
 
 40. Where the risk is to begin on the shipment of goods, sail- 
 ing on a voyage, or on any event or circumstance which it is not 
 obviously to be presumed may be distant in time, it is an implied 
 condition that the risk shall begin ivithin a reasonable time. 
 
 41. It is an implied exception to the risks insured against in 
 every marine policy, that the assured is not entitled to indemnity 
 for loss incurred by his own fraud or gross fault, or his violation 
 of lata. 
 
 42. The risk of illicit, prohibited., and contraband trade is ex- 
 pressly excepted in American policies generally ; which exception 
 does not appear in the common English printed form. 
 
 43. The provision is common to both English and American poli- 
 cies, and the old as well as the recent, that in case of disaster the 
 assured may labor, travel, and sue for the safeguard and recovery 
 of the properly, for the expense of which the insurer shall contrib- 
 ute in the proportion of the amount insured by him to that of the 
 whole property at risk. 
 
 44. A new and mutually advantageous stipulation was added 
 to American policies in 1825 and subsequently, that acts, of either 
 the assured or insurer, to recover or save the property, shall not be 
 construed to be a waiver or acceptance of an abandonment. 
 
 Ad. The American forms generally provide, in case of the block- 
 ade of the port of destination, that the assured shall not abandon, 
 but that the vessel may enter a neighboring port, and wait for the 
 blockade to be raised, or discharge the cargo and end the voyage 
 there. 
 
 46. The unsatisfactory decisions of some colonial and consular 
 courts of admiralty, between 1790 and 1814, were the occasion of 
 a stipulation in many American policies, that the adjudications 
 by such courts should not be conclusive of the facts adjudged, as 
 between the parties. 
 
 47. It is a frequent provision, that, in case of the assignment of 
 the policy without the consent of the underwriter, it shall be void. 
 
 48. It is a rule in the United States, though not in England, 
 that damage or loss exceeding half of the value of the subject, 
 gives the assured a right to assign what remains to the under- 
 writer, and to be paid the whole amount insured on the subject. 
 
 3*
 
 30 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 A question has arisen in divers cases, ivhether the value intended 
 by this rule is that at ivhich the subject is rated in the policy, or 
 its actual value in the market at the time of the loss. This is a 
 material question, since the repairs of a damaged ship may cost 
 more than the ship will be worth when repaired, and yet be less 
 than half of the amount of its value by the policy. This ques- 
 tion has given rise to a stipulation in some policies, that the assured 
 shall not have the right to recover for a total loss on account of 
 damage merely, unless the loss adjusted as a partial one exceeds 
 one half of the amount at ivhich the subject is insured by the pol- 
 icy.i And a like construction has been put in some cases upon a 
 policy not containing such a provision. 
 
 49. We shall see hereafter more particularly, that, where the 
 insurer pays to the assured the whole sum insured on the subject, 
 he is entitled to the remnants of it, so far as he insures it, which, 
 or the proceeds thereof, usually come into the hands of the as- 
 sured. Some policies provide that the assured, in accounting to 
 the underwriters for these remnants or proceeds, shall not make 
 any deduction for the wages earned, or services rendered by the 
 officers or crew previous to the loss, whether allowed to them un- 
 der the name of wages or otherwise.^ 
 
 50. It is a general custom, in adjusting losses on the vessel, to 
 deduct one third of the expense of labor and new materials in re- 
 jyairing or replacing parts of the vessel injured or destroyed by the 
 perils insured against, on account of the new or repaired part be- 
 ing better than the old. This is designated the allowance of 
 A THIRD FOR NEW. It is Understood as being not applicable to a 
 new anchor, and heretofore was not applied to a new chain-cable, 
 this exception being made, when sych cables were first introduced, 
 for the purpose of encouraging the introduction of them, but the 
 third is now deducted. The deduction is not made by some un- 
 derwriters on copper sheathing during the first voyage. A partic- 
 ular stipulation has been introduced into some forms of policy, 
 that, instead of the allowance of a third for new, the expense of 
 recoppering shall be subject to the deduction of two and a half 
 per cent, for each month after the vessel has been coppered, from 
 the net expense of recoppering, over and above the proceeds of 
 the old copper sheathing and nails, which, of course, exonerates 
 
 1 Boston ibrm. Western inland trade contain a similar 
 
 2 Boston form. Policies upon the provision.
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 31 
 
 the insurer from all expense for recoppering, after the fortieth 
 month.^ 
 
 51. The premium on a marine insurance is, in the United States, 
 usually paid by promissory note, and it is generally stipulated, 
 that, in case of loss, this premium note, if unpaid, shall be de- 
 ducted^ and the provision for set-off is usually extended to all 
 demands of the underwriters against the assured. 
 
 52. Some forms provide that the assured shall not abandon and 
 claim for a total loss, on account of capture or detention, until proof 
 is given of condemnation, or detention for ninety days? 
 
 This provision seems to be omitted in the New York and Bal- 
 timore forms in time of peace.^ 
 
 53. TFAere less properly is put at risk than the amount insured, 
 it is the practice to return the ijremium that has been paid on the 
 deficiency, reserving in some places one quarter,^ in others one half^ 
 of one per cent, on the amount not put at risk, and in others ' ten 
 per cent, of the amount of the premium, which will be in some 
 cases more, in others less, than a quarter or half of one per cent, 
 on the amount insured, according as the rate of premium is high 
 or low. 
 
 54. All marine policies exempt the underwriters from all loss, 
 except total, or such as is a subject of contribution on certain 
 articles ; and from loss by damage under certain specified rates 
 on certain other enumerated articles ; and from such loss under 
 a certain other rate on the ship, cargo, or freight. The specific 
 exceptions are inserted in English, and in some American pol- 
 icies, under a memorandum, or N. B., and thence the articles 
 specified are called " memorandum articles,^'' and the body of ex- 
 ceptions taken together, " the memorandum.^'' 
 
 The reason of these specific exceptions is the great liability of 
 such articles to damage from slight causes, insomuch that it is 
 not easy to discriminate damage by ordinary causes from that 
 resulting from the extraordinary operation of the perils insured 
 
 1 A Boston form. The policy of the 4 The form of the South Carolina 
 South Carolina Insurance Company of Insurance Company of Charleston, on 
 Charleston provides for a similar deduc- cargo, provides against abandonment 
 tion for each month. for capture or detention, except in case 
 
 2 New York, Philadelphia, and Bal- of condemnation. 
 
 timore forms. 5 Baltimore and Charleston forms. 
 
 3 Boston, New York, and Philadel- 6 Boston and New York forms, 
 phia forms. 7 Philadelphia form.
 
 32 
 
 OP THE CONTHACT OP INSURANCE. 
 
 [chap. I. 
 
 against, which latter cause of loss, as will be subsequently seen, 
 is the only one against which the assured is erttitled to indem- 
 nity. Accordingly, these specific exceptions are introduced as 
 one test of the operation of the peril being extraordinary. 
 
 There is a great variety in the lists of memorandum articles 
 presented in the common forms of policies used in different ports, 
 and also in the degree of damage at which the liability of the 
 underwriter begins. 
 
 A much greater number of articles appear in the printed Ameri- 
 can forms of policies than in the English, but the printed form 
 cloes not fully present the practice of the several offices, since 
 each one has rules of its own, and introduces exceptions of losses 
 in any particular case at discretion.^ 
 
 1 The memorandum articles of the cinnati, 20 ; Charleston Com. Ins. Co. 
 London form of policy used at Lloyd's, 
 which is generally adopted in Great 
 Britain, (1 Arnould, Ins. 21,) and 
 those found in the forms used in Bos- 
 ton, New York, Buffalo, Philadelphia, 
 Baltimore, Charleston, Cincinnati, and 
 Lexington, which sufficiently represent 
 the American forms, are given below, 
 where the figures express the rate per 
 cent, of loss under which the insurer is 
 
 100; South Carolina Ins. Co. 100; 
 Lexington Ins. Co. 100. 
 
 Beans. Baltimore, in bulk, 100; in 
 casks or bags, 10; Cincinnati Ins. Co. 
 20 ; Charleston Com. Ins. Co. 100. 
 Butter. Lexington Ins. Co. 100. 
 Cars, railroad. Charleston Com. Ins. 
 Co. 100. 
 
 Cigars. Cincinnati, 20. 
 Cheese. New York, 100 ; Philadel- 
 not liable for particular average. Thus phia, lOO, or if by stranding, 20 on 
 100 indicates that the insurers are liable aggregate ; Lexington Ins. Co. and 
 only for a total loss; 20, that they are Charleston Ins. Co. 100. 
 liable only in case of damage to the Carriages, pleasure. New York, 100; 
 amount of twenty per cent, of the value Philadelphia, 100, or if by stranding, 20 
 of the article, &c., always excepting on aggregate; Baltimore, Lexington, 
 
 general average, which all the forms 
 agree in allowing, at whatever rate. 
 The particular qualifications of the ex- 
 ceptions, as whether an article is in bags 
 or casks, &c., are not in all cases noted. 
 
 Bacon. Cincinnati Ins. Co. and 
 Charleston Com. Ins. Co. 10. 
 
 Bread. Charleston, Boston and New 
 York, 7 ; Philadelphia, 15 ; Baltimore 
 and Cincinnati, 10; Lexington, 100. 
 
 Books and Stationery. Cincinnati Ins. 
 Co. 20 ; Charleston Com. Ins. Co. 10. 
 
 Ba<rs, bagcins. New York, 100; 
 Philadelphia, 100, or if by stranding, 
 20 on aggregate; Baltimore, 20; Cin- 
 
 Charleston Ins. Co. and Com. Ins. Co. 
 of Charleston, 100; Cincinnati, 10. 
 
 Cassia, not in boxes. New York, 
 20; Philadelphia, 15; Baltimore, 20; 
 Cincinnati, 20 ; South Carolina and 
 Charleston Commercial, 20. 
 
 Coffee, in bags or bulk. New York, 
 1 ; Philadelphia, 7 on aggregate ; Bal- 
 timore, in bags, 7, in bulk, 100 ; Cin- 
 cinnati and Charleston Commercial, 10; 
 South Carolina Ins. Co. and Charleston 
 Com. Ins. Co. 100. 
 
 Cocoa. Baltimore, in bags, 7 ; 
 Charleston and Charleston Commer- 
 cial, 10.
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 
 
 33 
 
 55. Some printed forms prescribe to the manner of applying the 
 memorandum, that is, whether a loss, in order to be payable, must 
 
 Hops. Charleston Com. Ins. Co. 
 100. 
 
 Iron. Boston, New York, Philadel- 
 phia, and Baltimore, in bars, bundles, 
 rods, hoops, or plates, 100; Charleston 
 Ins. Co., if by wet or rust, 100 ; Cincin- 
 nati, 20. 
 
 Indian Meal. New York, 100 ; Phil- 
 adelphia, 15 on aggregate; Baltimore, 
 100 if not in casks, 10 if in casks; 
 Charleston, 100 and 20. 
 
 Ice. Charleston Ins. Co. 100. 
 
 Jerked Beef. Charleston Com. Ins. 
 Co. 100. 
 
 Lard. Lexington, 100. 
 
 Looking-Glasses. New York, 100; 
 Philadelphia, 100, or if by stranding, 
 
 Clothing. Charleston Commercial, 
 100. 
 
 Crockery and Glass Ware. Charles- 
 ton Com. Ins. Co. 10. 
 
 Corn. Cincinnati, 10. 
 
 Cotton. Lexington, 10. 
 
 Fish. England, Boston, and New 
 York, 100, or if by stranding, 7 on 
 aggregate ; Philadelphia, Baltimore, 
 Lexington, South Carolina, Charleston, 
 and Charleston Com. 100. 
 
 Flaxseed. England, 100; Boston, 7; 
 New York, 7 ; Baltimore, 7. See Seed. 
 
 Flax. England, 5; Boston, 20; New 
 York, 8 ; Philadelphia, 7 ; Baltimore, 
 20 ; Charleston, 20 and 7. 
 
 Fruit. Boston, 100, or if by strand- 
 
 ing, 7 ; New York, 100; Philadelphia, 20 on aggregate ; Baltimore and Charles- 
 100, or if by stranding, 20; Baltimore, ton, 100. 
 
 100; Charleston, 100. 
 
 Furniture, household. New York, 
 100 ; Philadelphia, 100, or if by strand- 
 ing, 20 on aggregate ; Baltimore, 100 ; 
 Charleston, 100; Cincinnati, 100. 
 
 Flour. Charleston, 100 and 10. 
 
 Furs. Lexington, 100. 
 
 Grain. England, 8; Boston, 100, 
 or if by stranding, 7 on aggregate ; 
 
 Liquids. Baltimore, in casks, 10. 
 
 Machinery. Charleston Com. Ins. 
 Co. 100, if by rust. 
 
 Madder. New York, Philadelphia, 
 Baltimore, and Charleston, 100 ; Cin- 
 cinnati, 10. 
 
 Musical Instruments. New York, 
 100 ; Philadelphia, 100, or if by strand- 
 ing, 20 on aggregate; Baltimore, 100; 
 
 New York, Philadelphia, Baltimore, Lexington and Charleston, 100. 
 
 and Charleston, 100. 
 
 Gunny-bags. Charleston Com. Ins. 
 Co. 10. 
 
 Hemp. England, 5 ; Boston, 20 on 
 whole aggregate ; New York, 20 ; Phil- 
 adelphia and Lexington, 15; Baltimore, 
 Cincinnati, and Charleston, 20. 
 
 Hides and Skins. England, 5 ; Bos- 
 ton, 100, or if by stranding, 7 on aggre- 
 gate ; New York, 100; Philadelphia, 
 100, or if by stranding, 20 ; Baltimore, 
 10; Lexington and Charleston, 100. 
 
 Hempen Yarn. New York, 100; 
 Philadelphia, 100, or if by stranding, 
 20 on aggregate ; Baltimore, 100 ; 
 Charleston, 100. 
 
 Matting. New York, 20 ; Philadel- 
 phia, 15; Baltimore, 20; Cincinnati, 
 10; Charleston Com. Ins. Co. 20. 
 
 Nuts. Cincinnati, 10. 
 
 Oil-cloth, Cincinnati, 10. 
 
 Osuaburgs. Charleston Ins. Co. 100. 
 
 Paintings. Charleston Com. Ins. Co. 
 100; Cincinnati, 20. 
 
 Palmleaf. Charleston Com. Ins. Co. 
 20. 
 
 Paper. Cincinnati, 20. 
 
 Paper-hangings. Cincinnati, 20. 
 
 Pepper. New York, 10 ; Phila- 
 delphia and Baltimore, in bags or 
 bulk, 7 on aggregate ; Cincinnati, 10 ; 
 Charleston, in bags, 10.
 
 34 
 
 OF THE CONTRACT OF INSURANCE. 
 
 [chap. 
 
 amount to seven, ten, or other rate per cent, on the whole quan- 
 tity of the article at risk, or on each box or bale, or each ten 
 boxes or bales, in order of invoice,^ and stipulations of this de- 
 scription are very frequently inserted, in filling the blanks of the 
 printed form. 
 
 56. In the United States the underwriters are exonerated from 
 loss on g-oods hy dampness, change of flavor, or being spotted, dis- 
 colored, or mouldy, unless caused by actual contact w^ith sea- 
 water.2 
 
 in casks or bales, 20 ; leaf in casks, 
 
 10; Cincinnati, 20; Lexington, 100; 
 
 Charleston, 100, leaf 7 and 10, or in 
 
 bales 20, stems 20. 
 
 Tin Plates. New York, Philadol- 
 Rice. Boston, Pliiladelphia, and Bal- pliia, and Baltimore, 100; Charleston, 
 
 Peas. Baltimoi-e, in bulk, 100, in 
 casks or bags, 10 ; Charleston Com. Ins. 
 Co. 100. 
 
 Peltries. Baltimore, 20. 
 
 Pork. Lexington, 100. 
 
 timore, 7 ; New York and Cincinnati, 
 10 ; Lexington, 100. 
 
 Rags. New York and Cincinnati, 
 100 ; Philadelphia, 100, or if by strand- 
 ing, 20 on aggregate; Baltimore, 100; 
 Charleson, 20 and 100. 
 
 Rope, bale. Charleston, 100; Cin- 
 cinnati, 20. 
 
 Roots. Charleston Ins. Co. 100. 
 
 100 ; or Charleston Com. Ins. Co., if by 
 wet or rust, 100; Cincinnati, 20. 
 
 Twine. Charleston Ins. Co. 100. 
 
 Vegetables and Roots. New York, 
 100 ; Philadelphia, 100, or if by strand- 
 ing, 20 on aggregate ; Baltimore, veg- 
 etables and medicinal roots, 100 ; 
 Charleston, 100. 
 
 Wicker Ware and Willow. New 
 
 Salt. England, 100 ; Boston, 100, but York, 100 ; Philadelphia, 100, or if by 
 if by stranding, 7 on aggregate ; New stranding, 20 on aggregate ; Baltimore 
 York, Philadelphia, Baltimore, Cincin- and Charleston, 100. 
 
 nati, Lexington, and Charleston, 100. 
 
 Seed. England, 100 ; Philadelphia, 
 100, or if by stranding, 20 on aggre- 
 gate; Baltimore, 100; Cincinnati, 20. 
 
 Sugar. England, 5 ; Boston, 100, 
 or if by stranding, 7 on aggregate ; 
 New Y^'ork, 7 ; Philadelphia, 7 on ag- 
 gregate ; Baltimore, in boxes or casks, 
 7 ; Charleston, 7 and 10 ; Cincinnati, 10. 
 
 Steel. New York, Philadelphia, Bal- 
 timore, Charleston, 100. 
 
 Sumac. New York, Philadelphia, 
 Baltimore, Charleston, 100. 
 
 Saltpetre. Philadelphia, 7 on aggre- 
 gate ; Charleston Com. Ins. Co. 10. 
 
 Straw Braid and Straw, Cut, 100. 
 
 Tobacco. England, 5 ; Boston, 7, 
 
 Wire. New York, Philadelphia, Bal- 
 timore, Charleston, 100. 
 
 All East and West India articles, 
 Charleston Ins. Co. 10. 
 
 Articles of any kind by stranding or 
 collision. Charleston Com. Ins. Co. 20. 
 
 Articles perishable in their own na- 
 ture. Boston, 100, or if by stranding, 
 7 on aggregate value ; New York, 100; 
 Philadelphia, 100, or if by stranding, 
 20 on aggregate ; Baltimore, Charles- 
 ton, Lexington, 100; Cincinnati, 20. 
 
 All other articles, ship and freight. 
 England, 3 ; Boston, New York, Phila- 
 delphia, Baltimore, Lexington, and 
 Charleston, 5. 
 
 * Form of Atlantic Ins. Co. of New 
 
 on aggregate value; New York, 100; York for China risks. 
 
 Philadelphia, leaf or stem, 15; Balti- 2 Boston, New York, Philadelphia, 
 
 more, in bulk, 100 ; leaf in bales, stems and Baltimore.
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 
 
 35 
 
 57. A loss is usually made pai/ahle in sixfTj day% after proof of 
 it, and of its amount, is exhibited to the insurers. The time and 
 mode of payment of loss are subjects of specific stipulations.^ 
 
 58. Marine policies, and also those upon inland trade, 2:)rovide 
 for submitting disputes betiveen the parties to arhitration? 
 
 1 Commonwealth Ins. Co. v. Sennett, 
 37 Penn. Sts. 205. 
 
 '-^ The provision for arbitration has 
 little or no practical efficacy in marine 
 insurance in Great Britain or the United 
 States. 2 Story, Equit. Jurisprudence, 
 §§ 1450, 1457 ; Kill v. Hollister, 1 AVils. 
 149 ; Thompson v. Charnock, 8 Term, 
 139. The assured may bring a suit for 
 a loss without offering a reference. 
 Robinson v. Georges, 17 Me. 131. 
 The remedy at law for the breach of 
 such a stipulation would be very preca- 
 rious if it were brought into litigation, 
 for it would be difficult for the jury to 
 estimate the damage occasioned to a 
 party hy the other refusing to substitute 
 an arbitration for the ordinary legal 
 tribunals ; and these tribunals, when 
 resorted to by the assured, have declined 
 to admit a plea to their jurisdiction, 
 that a judicatory has been established 
 by voluntary agreement of parties, to 
 supersede those provided by law, in re- 
 , spect to future causes of action ; though 
 they lend their authority to the enforce- 
 ment of an award once duly made by 
 referees duly appointed. There does 
 not appear to be any way of giving ef- 
 fect to such a stipulation, except through 
 the agency of a judicial tribunal, which 
 is almost equivalent to annulling the 
 stipulation. 
 
 The French ordinance of Marine of 
 1861, tit. Insurance, a. 3, 2 Val. 143, 
 requires that the policy shall contain the 
 clause for submission to arbitration ; but 
 in another part, a. 70, implies that this 
 is optional; and the French Code of 
 Commerce, tit X. Insurance, s. 1, n. 
 332, after enumerating this among the 
 
 provisions of the policy, leaves its in- 
 sertion to the discretion of the parties. 
 By the French law, as stated by Valin, 
 where, in a dispute between copartners, 
 or the parties to a policy of insurance 
 containing this clause, either demands 
 a submission to arbitrators, and the other 
 refuses to name one, a judicial tribunal 
 is authorized to name one for the party 
 so refusing. Neither the English tribu- 
 nals, nor our own, have any such au- 
 thority, unless it is conferred by the 
 agreement of parties in a case already 
 pending. Pothler, Ins. n. 201, is of 
 opinion that the tribunals applied to for 
 the registration and execution of an 
 award of unskilled arbitrators, in a case 
 involving questions of law, should pay 
 no regard to it, to which Emerigon re- 
 plies, that, at Marseilles, such cases are 
 submitted to advocates, and that the 
 parties usually acquiesce in the a\wird. 
 So most cases of disagreement on poli- 
 cies, in England and the United States, 
 are settled by reference voluntarily 
 agreed upon by the parties after the 
 (juestions arise. If I rightly understand 
 Emerigon, a party has a right to nega- 
 tive the nomination made by the other, 
 in which case the judge nominates the 
 two arbitrators; and if so, the proceed- 
 ing, so far as it is compulsory, is equiv- 
 alent to a reference of a case, by one of 
 our courts, to a master in chancery, or 
 to auditors, subject to the supervision 
 of the court. But what distinguished 
 the proceeding from an arbitration, in 
 our acceptance of the term, is, that an 
 appeal lay from the award, as is stated 
 by both Valin and Emerigon. 
 
 One ground of objection to setting
 
 36 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 59, Fishing- voyages have certmn peculiarities requiring pecul- 
 iar provisions, so that some companies have a distinct printed 
 form of policy for them.^ 
 
 The enumeration and descriptions of risks are the same ; and 
 so also all the provisions as to losses, that are applicable to such 
 voyages, are expressed in the same words. 
 
 The principal differences are clauses providing that " catchings " 
 shall take the place of " outfits," in a certain proportion, as the 
 former are gained and the latter consumed in the course of the 
 voyage ;^ and that " catchings " shipped homeward by other ships 
 shall not diminish the amount at risk under the policy,^ or that 
 catchings shipped homeward by other vessels shall, in certain 
 cases, diminish the amount at risk under the policy, where the 
 assured can be presumed to have notice of their being so shipped, 
 and so run the risk himself or get other insurance : 
 
 That, in case of the ship and all on board being lost, the value 
 insured by the policy shall be presumed to have been at risk at 
 the time of the loss : * 
 
 That the policy shall not attach on catchings until permanently 
 stowed under deck,^ or shall not attach on " blubber," nor on oil, 
 until it is put into casks ; nor on other articles of catchings until 
 stowed below deck : 
 
 And that jettisons of catchings from on deck shall not be con- 
 tributed for in general average. 
 
 Policies on whaling voyages are made by many offices on the 
 blank forms used for common marine policies, with additional 
 provisions to adapt the contract to fishing interests. 
 
 So policies on voyages for cod, mackerel, and other fishing voy- 
 ages, and on those for taking seals, are usually made upon the 
 common printed forms for marine policies. 
 
 60. The great inland commerce of the country gives occasion 
 
 up and enforcing an agreement for the be, thus far, an imperium in imperio. 
 
 submission of all future disputes between Some of the Charleston forms of policy, 
 
 party and party to the final decision of if not all, provide that the parties 
 
 arbitrators is, that associations might, " may " submit disputes to arbitration, 
 
 on the same principle, be formed, with 1 New York and New Bedford forms, 
 
 agreements to have all questions of ^ New York and New Bedford forms, 
 
 the civil rights and obligations of the ^ New York form, 
 
 members among themselves settled in- ^ New Bedford form, 
 
 dependently of tlie public legal tribu- 5 New York form, 
 nals and the general laws, which would
 
 SECT, v.] THE PROVISIONS OF A COMMERCIAL POLICY. 37 
 
 for a proportionate business of insurance^ on risks differing very 
 considerably from those of maritime navigation, and accordingly 
 demanding modified forms of the contract of insurance. The 
 forms of policies on this trade present the following among other 
 provisions.^ 
 
 The assured on the vessel is required to recover and repair it 
 in case of accident, if practicable ; and if he neglect to do so, is 
 bound to give notice to the underwriters, if within a convenient 
 distance, who have thereupon a right to repair at their own ex- 
 pense, and that of the assured proportionally. 
 
 The assured is not to make abandonment or sale of the vessel 
 on account of damage or disaster without the consent of the 
 insurers,^ or notice to them, if within a certain distance.^ 
 
 The insurers are not liable for wages and provisions of the 
 master and crew while detained by disaster, but only for their 
 extra services.* 
 
 In some forms ^ two and a half per cent, is deducted on pay- 
 ment of a loss. 
 
 The seasons of the year are specified when the vessel may 
 make passages in certain waters, and when in others, and when 
 it is to be laid up for the winter.^ 
 
 It is also specified whether the insurers take the risk of fixe, 
 flood, and ice, when the vessel is laid up during the winter.^ 
 
 The specification of the risks, for the lakes and rivers, in some 
 forms, includes " perils of the seas, rivers, lakes, fires, jettisons, 
 enemies, pirates, assailing thieves, and all other perils ; " in others, 
 where the navigation does not communicate with the ocean, the 
 
 1 These provisions are taken from mentioned in the text do not belong to 
 
 policies of the St. Louis companies, as all the forms in use in those three places, 
 
 stated in the St. Louis Insurance Re- There is some difference in the forms of 
 
 porter, No. 3, for March, 1851 ; that of the same place. Distinct forms are also 
 
 the Delaware Mutual Safety Company, used on different kinds of craft, as a 
 
 of Philadelphia ; and those of the Co- steamboat or sailing vessel ; or on differ- 
 
 lumbus, the Mutual, and the North- ent navigations, as on a canal, or river, 
 
 western Insurance Companies, which do or lake, 
 
 business at Buffalo, the last being estab- 2 Buffalo, 
 
 lished at Oswego ; also those of Cincin- 3 Philadelphia, 
 
 nati and Lexington. The forms of 4 St. Louis, 
 
 contract used in these places will prob- 5 Ibid, 
 
 ably represent those generally adopt- c Buffalo, 
 
 ed on the Mississippi, the lakes, and ^ Ibid. 
 other western waters. The provisions 
 
 VOL. I. 4
 
 88 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 specification is of " perils of the lakes, rivers, canals, fires, jettisons 
 and damage to the vessel." 
 
 The risk of liability for damage done to other vessels by the 
 one insured is sometimes expressly excepted. 
 
 The risk of damage by the bursting of boilers or collapse of 
 flues, of breaking of the machinery of steamboats, except from 
 unavoidable external cause, is also excepted.^ 
 
 So also damage by overloading : 
 
 By having on board gunpou^der:^ 
 
 Innavigability from rottenness : 
 
 Risk of illicit or contraband trade : and 
 
 Kisk from war.^ 
 
 The right of abandonment for total loss is restricted to cases 
 where the recovery or reparation of the vessel is impracticable. 
 
 It is stipulated, that exertions to save the property shall not 
 be a waiver or acceptance of an abandonment, as in marine 
 polices : 
 
 That the subject insured and the salvage abandoned shall be 
 free from lien and incumbrance : 
 
 That on change of master the insurers may terminate the 
 policy : * 
 
 That the assured shall not abandon cargo for the amount of 
 damage or expense merely, unless he would be liable to the 
 amount of fifty per cent, in an adjustment as a partial loss, as in 
 some forms of marine policies : 
 
 That in adjusting a loss on a vessel, reference shall be had 
 to its value at the time of the loss, unless it is valued in the 
 policy : 
 
 That detention by the season of the year shall not authorize 
 abandonment : 
 
 That delay on account of low water shall not prejudice the 
 insurance : 
 
 That abandonment shall be made in writing : 
 
 llhat in cases of loss, the premium-note ; or that and all other 
 demands of the insurer, shall be deducted : 
 
 ^ Some insurers take the risk of fire 2 Cincinnati, Philadelphia, 
 in such case. The Delaware Mutual ^ Delaware Mutual Safety and Phil- 
 Safety Co., of Philadelphia, lets in all adelpia; the same form includes risk of 
 damage by these causes, in case of enemies, 
 stranding. 4 Lexington, Philadelphia.
 
 SECT. V.J THE PROVISIONS OF A COMMERCIAL POLICY. 39 
 
 That the contract shall be void if hemp is carried on deck ; and 
 in case of over insurance,*or of assignment of the policy, or of 
 the subject, without the consent of the insurers : 
 
 That the adjustment of losses shall be subject to certain 
 usages : ^ 
 
 That on return of premium, ten per cent, of its amount shall 
 be retained. 
 
 61. A distinct form of policy is sometimes used for insurance 
 on canals."^ 
 
 The usual description of cargoes, in a policy kept open for new 
 subscriptions, is " all kinds of goods, merchandise, and country 
 produce." " Money, bullion, promissory notes, and other evidence 
 of debt," are excepted. 
 
 In the blanks of the printed forms are inserted a description of 
 the boat or boats, the limits of the navigation, and the period of 
 time, or the passage for which the insurance is made. 
 
 The boats may be loaded in the customary way : 
 
 May touch and stay at the usual places ; or for discharging 
 and taking in cargo ; or when necessary on account of an ac- 
 cident or stress of weather. 
 
 The perils insured against are, of the " rivers, canals, and fires ; " 
 excepting " thefts, robbery, ice, and barratry ; " and losses from 
 " want of ordinary care and skill," or from " the boat being unduly 
 laden." ^ 
 
 Any loss must be ascertained before reshipping the goods at 
 the port where they are landed. 
 
 The provisions for recovering and saving the property ; pay- 
 ment of loss in sixty days after proof; deducting the premium in 
 case of loss ; respecting prior, subsequent, and over insurance ; 
 illicit trade ; in navigability from rottenness ; assignment of claims 
 (in case of loss) against third parties by whom the loss was oc- 
 casioned; the assignment of the policy without the consent of 
 the insurers ; the settling of averages on each passage separately ; 
 and settlement by arbitration, are the same as those already 
 
 1 Those of New York are referred to inland navigation, but which differs 
 in a Buffalo form. much less from the common marine 
 
 2 The provisions mentioned in the policies. 
 
 text, under this head, are taken mostly 3 Buffalo form. The perils enumer- 
 from forms used in Buffalo, in the trade ated in the Philadelphia form for in- 
 between that place and Albany. Some land navigation, are the common perils 
 are from a Philadelphia form used for of marine policies.
 
 40 OP THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 stated in maritime insurance, or that on the lakes and the Mis- 
 sissippi. * 
 
 No loss is payable that does not amount to one hundred dollars 
 on one cargo. 
 
 Notice of loss is to be forthwith given to the insurers. 
 
 It is expressly provided that the boat shall be kept tight, and 
 well found and manned. 
 
 Lights must be shown when the boat is moored at night,^ or 
 anchored or under way.^ 
 
 Goods carried on deck must be secured thereto. 
 
 The form of policy used in this trade, like one already men- 
 tioned for marine risks, is so framed as to admit of adding new 
 subjects by merely indorsing the date, amount, subject, name of 
 boat, passage or period, and premium. 
 
 62. A distinct form of policy is used for insurance of the car- 
 goes of flat-boats on the rivers. 
 
 A Cincinnati form of that description provides, — 
 
 That the risk may continue five days after arrival : 
 
 That the risks are those of " the rivers, fire, and jettison : " 
 
 That the boat may touch and stay during the night : 
 
 That the insurers shall not be answerable for the conduct of 
 
 the master or pilot ; 
 
 Or for damage by ordinary stranding ; 
 
 Or for damage to articles subject to inspection, if the same 
 
 pass inspection as sound ; 
 
 Or for damage to any article, except by fire 5r actual contact 
 
 with water; 
 
 Or for damage by goods being damp, spotted, discolored, 
 
 mouldy, or rusty, unless caused by some disaster to the boat ; or 
 
 in any case for merely soiled or stained packages : 
 
 That damaged goods shall not be sold at any place except that 
 
 of destination, unless in a perishing condition : 
 
 And that the boat shall be properly manned, and be laden only 
 
 to a specified depth. 
 
 SECTION VI. THE PROVISIONS OF A FIRE POLICY. 
 
 63. The general principles applicable to policies against fire 
 on land, coincide ivit/i those applicable to marine insurance ; but 
 
 1 Buffalo form. 2 Philadelpliia form.
 
 SECT. VI.] THE PROVISIONS OF A FIRE POLICY. 41 
 
 the specific provisions of the contracts in the two kinds of insur- 
 ance differ very much. In some fire, as in most marine policies, 
 the whole written contract appears in the instrument subscribed 
 by the insurers ; but most of the former refer to rules and reg- 
 ulations, conditions, and requirements, indorsed upon, or other- 
 wise annexed to the inscribed instrument, and referred to in it, 
 and so the mutual stipulations become more fully a part of the 
 express contract ; being thus indorsed or annexed, because, in 
 case of the conditions and requirements being quite various and 
 numerous, as they are in many of the forms of fire policy, they 
 can, in this manner, be more conveniently and intelligibly ex- 
 pressed. 
 
 Some of the forms in use by stock companies have no such 
 indorsements and references, and their forms are not found to be 
 attended by any inconvenience on that account; but the policies 
 of mutual companies usually consist in part of indorsed or an- 
 nexed instructions and conditions, and this form is preferable for 
 such associations, since the stipulations referred to are usually the 
 provisions of the charters of the company, or its rules and reg- 
 ulations. 
 
 Fire policies generally include the following particulars,^ 
 namely ; 
 
 Names of the parties: 
 
 Amount insured : 
 
 The premium : 
 
 Period of the risk, for a specified time from twelve o'clock, at 
 noon, on a certain day, like marine policies on time : 
 
 Description of the subject.^ as a building, situated in such a 
 place ; built of such and such materials ; of a specified value j 
 how occupied ; how near to other buildings, or what others are 
 within a specified distance, and what kind of buildings, and how 
 occupied : 
 
 If on goods, what kind ; in what buildings kept, with a de- 
 scription of the building and situation, as in case of a policy 
 upon the latter : 
 
 The interest of the assured in the subject, if he be not absolute 
 owner, as that of lessee, depositary, trustee, agent entitled to a 
 commission, or insuring for his own benefit or that of his princi- 
 
 1 Taken from forms in Boston, Hartford, New York, Philadelphia, Balti- 
 more, and Charleston. 
 
 k*
 
 42 OP THE CONTRACT OP INSURANCE. [CHAP. I 
 
 pal, or for both. The rule of some companies, as expressed in 
 the indorsed instructions and provisions, is, that any such quali- 
 fied interest may be covered, as in a marine policy, by the phrase 
 " for whom it may concern." ^ 
 
 Certain articles, as books of account, written securities, deeds, 
 or other evidences of title to lands, bonds, bills, notes, and other 
 evidences of debt, and money or bullion, are excepted from the 
 insurance. 
 
 Others, such as jewelry, precious stones, watches, plate, medi- 
 cal, musical, and scientific instruments, medals, and other curios- 
 ities, paintings, prints, engravings, statuary, and sculpture, are 
 usually not included, unless distinctly specified. 
 
 Valuation is made of articles of precarious value : 
 
 If no valuation, the amount of loss to be determined by the 
 value at the time of the loss : 
 
 Exception of loss by lightning, explosion of steam or gunpow- 
 der, or other explosive substances, unless the article insured is 
 burnt : 
 
 Exception of loss by fire occasioned by invasion, insurrection, 
 riot, civil cominotion, or military or usurped power : 
 
 Condition that the insurance is void if prior insurance is not in- 
 dorsed ; or subsequent, forthwith, or as soon as may be, or within 
 a certain time, after being made. 
 
 Or if any trade classed as hazardous in the memoradum an- 
 nexed to the policy, shall be carried on in the premises insured, or 
 where the goods insured are stored : 
 
 Or if the subject or policy shall be assigned without the consent 
 of the insurers; 
 
 Or if the risk shall be increased hy alterations or otherwise by 
 the assured; 
 
 Or in case of fraud or false swearing on the part of the assured. 
 
 It is provided in some policies that, where there is other insur- 
 ance, all the insurers are to pay only pro rata for a loss : 
 
 That the policy may he continued by indorsements to that effect '.^ 
 
 That the insurers may cancel the policy, if others, by erecting 
 buildings or otherwise, enhance the risk : ^ 
 
 1 Delaware Mutual, Philadelphia. 3 Some forms provide that such en- 
 
 2 Blank forms for continuance of the hancement shall be at the risk of the 
 policies are indorsed, to be filled up insurers, and not give them any right to 
 from time to time, in some forms of fire cancel the policy. 
 
 policies, as in some marine policies.
 
 SECT. VII.] THE PROYISIONS OF A LIFE POLICY. 43 
 
 That the policy is not binding' until the premium is paid : 
 
 That the assured shall^ in case of fire, use his utmost endeavors 
 to save the property : 
 
 That on a loss occurring^ the assured shall forthwith give notice 
 to the insurers, make out an account, under oath, of the articles 
 lost; produce a certificate of some magistrate that he believes 
 the assured to have sustained the loss and acted honestly ; and 
 shall produce books, bills, and schedules relative to the descrip- 
 tion, quantity, and value of the property lost or damaged : 
 
 That the insurers may replace articles lost or damaged, by others 
 equivalent : 
 
 That a loss shall be payable in sixty days after notice and proof : 
 
 That any dispute about the amount of loss shall be settled by 
 appraisers. 
 
 That an action on the policy shall be brought within a certain 
 time or in certain courts. 
 
 SECTION VII. THE PROVISIONS OF A LIFE POLICY. 
 
 64. The provisions of life policies are much fewer, and the 
 forms of policy more simple and of less variety, than those of 
 commercial and fire insurance. 
 
 A life policy usually contains the following particular's, namely : 
 
 Names of the parties, and for whose benefit the policy is made, 
 if not for that of the party procuring the insurance : 
 
 The name of the life insured, whether the assured himself, or 
 his debtor, or other person in whose life he is interested : 
 
 The prefnium, usually annual, sometimes a single premium for 
 the whole period of the insurance : 
 
 The amount insured. 
 
 The period, whether for life or a term of years : 
 
 The time for payment of a loss, usually, as in other insurance, 
 in sixty days after notice and proof of the Iojjs : 
 
 The condition that the policy shall be void and forfeited ; 
 
 In case the person whose life is insured shall die at sea, some 
 printed forms giving liberty of certain coasting or other passages : 
 
 Or pass beyond certain latitudes and longitudes, or certain ter- 
 ritorial boundaries ; 
 
 Or if the life shall be beyond a specified limit during certain 
 seasons ;
 
 44 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 Or if he shall enter into the naval service^ or the militari/, other- 
 wise than that of the militia ; 
 
 Or die hy his own hands, or hy the hands of justice, or in a duel, 
 or in consequence of a violation of law ; 
 
 Or if any of the statements made by the applicant at the time 
 of procuring the policy, and as the basis of the contract, are un- 
 true ; 
 
 Or if the iwemium shall not he paid at the time specified. 
 
 It is usually stipulated that in case of forfeiture of the policy, 
 the premiums previously paid shall he forfeited ; 
 
 And in some policies, that notiae of any assignment of the pol- 
 icy shall be given to the underwriters. 
 
 Various liberties are inserted in these policies, according to the 
 particular circumstances, such as to travel or reside beyond the 
 ordinary limits; follow the sea; or enter into the military or naval 
 service ; or pursue any employment prohibited by the ordinary 
 provisions of the policy. 
 
 SECTION VIII. WHAT IS COMPREHENDED BY THE POLICY AS BEING 
 
 A PART OF IT. 
 
 65. The principles whereby it is determined what constitutes a 
 part of the'contract, are the same in commercial, fire, and life insur- 
 ance. 
 
 66. The correspondence of the p>arties, or communications be- 
 tween them, previously to executing the policy, do not constitute 
 a part of the contract, to the same effect as if inserted, unless incor- 
 porated by a reference. 
 
 Where the agent of the owner of the insured property left a 
 memorandum at the office, signed by himself, " that the policy 
 was to take effect, if no insurance should be made by the owner 
 elsewhere," which was shown to the underwriters at the time of 
 signing, and the owner did in fact make insurance abroad, though 
 not to the full value of the property ; yet this memorandum was 
 held not to be any part of the contract, and could not be taken 
 advantage of by the underwriters to avoid payment of a loss. 
 Chief Justice Parker, giving the opinion of the court, said, that 
 " Policies, though not under seal, have nevertheless ever been 
 deemed instruments of a solemn nature, and subject to most of 
 the rules of evidence which govern in the case of specialties. The
 
 SECT. VIII.] WHAT IS COMPREHENDED BY THE POLICY. 45 
 
 policy itself is considered to be the contract between the parties, 
 and whatever proposals are made, or conversations had, prior to 
 the subscription, they are to be considered as waived, if not in- 
 serted in the policy or contained in a memorandum annexed to 
 it." 1 
 
 And a correspondence concerning an insurance previously to 
 making it, in which the voyage is described, will not control the 
 construction of the policy j^ nor will a paper that was shown to 
 the underwriters at the time of signing, in which the number of 
 men and guns on board was stated,-^ or one in which it was stated 
 that the vessel had deviated from the voyage described in the 
 policy before the insurance was effected;^ nor are words spoken 
 by the parties at the time of signing the policy of the same effect 
 as if they had been inserted in the policy ; as where the under- 
 writer at the time of signing, said he would not be held if the 
 vessel did not sail by a certain day,^ and where a broker told the 
 underwriters that the goods were not on board of a certain ship,*^ 
 and where the assured said the ship was American." 
 
 Nor is evidence admissible to prove that, where, according to 
 the construction put upon a policy on goods from L. to O. it 
 covered goods on only one trip of a steamboat, the president of 
 the insurance company orally agreed that the insurance should be 
 applied to shipments on two successive trips.^ 
 
 " No instance can be found," says Parker, C. J., " where the 
 knowledge of the underwriter that a deviation was intended, has 
 been set up as an excuse for such deviation. " ^ 
 
 Proof of a statement by the assured, that the goods at risk were 
 memorandum articles, as a reason for a lower premium, was held 
 
 1 Higginsoa v. Dall, 13 Mass. 96. 3 Pawson r. Barnevelt, Dougl. 12, n. 
 And see 1 Greenleaf, Ev. c. 15, § 275, 4 Redman v. Sowdou, 5 Taunt. 462 ; 
 &c., p. 315, &c., ed. 1842. Philbrook 1 Marsh. 136; 3 Campb. 503. 
 
 I'. New England Ins. Co. 37 Me. 137; 5 Whitney et al. v. Haven, 13 Mass. 
 
 Howard Ins. Co. v. Bruner, 23 Penn. 172. 
 
 St. 50. 6 Weston v. Ernes, 1 Taunt. 115. 
 
 2 Vandervoote v. Smith, 2 Caines, 7 Atherton v. Brown, 14 Mass. 152. 
 N.Y.I 55; Stevens V. Beverly Ins. Co. S Courtnay v. Miss. Fire and Mar. 
 S. J. C. Mass., Essex, Nov. 1822. It Ins. Co. 12 La. 233. 
 
 is, however, said, in one case, that the 9 Wiggin et al. t'. Boardman, 14 ^Mass. 
 written order for insurance will control 15. See also Weston v. Ernes, 1 Taunt, 
 the policy. Norris v. Ins. Co. of N. A. 115. 
 3 Yeates, Penn. 84, for which 1 Atk. 
 547, is cited.
 
 46 OP THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 in New York not to be admissible, on the part of the underwriter, 
 to show that they were to be brought under the memorandum, 
 this being a mere opinion on the construction of the terms of the 
 policy designating those articles, the meaning of which terms 
 must be regulated by the usage.^ 
 
 Evidence of an oral promise by the assured in a fire policy, that 
 he would substitute a stove for an open fire-place if the insurance 
 should be made, was held in New York to be inadmissible, on the 
 ground that its admission would be introducing a new distinct 
 stipulation into the policy ; and that it could not avail as a rep- 
 resentation, because it was not the statement of a fact.^ This 
 reason is, however, not good.^ 
 
 But where the assured in a fire policy, in his application for 
 insurance, stated the mode of conducting business and precautions 
 taken to guard against fire in the building to which the policy 
 related, it was held in Massachusetts that he was bound to a sub- 
 stantial compliance with the statement, whereby it was, in effect, 
 construed to be an implied condition, or promise, relative to the 
 risk during its continuance.* 
 
 The subsequent oral admissions of one ^arty are not permitted 
 to he proved by the other to contradict the written contract,^ since 
 this would give them the same effect as if inserted in it. 
 
 But though the proposal or order for insurance, or ap aper 
 shown or words spoken at the time of signing, are not a part of 
 the contract, to the same effect as if the words spoken or con- 
 tained in the proposal or paper shown, had been inserted in the 
 policy, still the contract may be affected by them, if they are such 
 
 ^ Astor V. Union Ins. Co. 7 Cow. and the risks insured against were not 
 
 N. Y. 202. Accordingly, the position enhanced by taking in cargo, but the 
 
 reported to have been taken by the decision was put upon a wrong ground. 
 
 English Court of Common Pleas in one 2 Alston v. The Mechanics' Mutual 
 
 case, Urquhart v. Barnard, 4 Taunt. 450, Ins. Co. 4 Hill, N. Y. 329. 
 
 that written notice of an intention to 3 See infra, Ko. 533. 
 
 take in cargo at a port named is equiv- 4 Houghton v. Manuf. Mutual Fire 
 
 alent to a custom so to do, cannot be Ins. Co. 8 Mete. Mass. 114. 
 
 supported ; though such a notice might 5 Paine v. M'Intier, 1 Mass. Rep. 69. 
 
 be a ground for application to a court A similar admission was, however, al- 
 
 of equity to reform the policy, if the lowed to be proved on a question as to 
 
 liberty to take in goods were omitted the amount of damage for breach of a 
 
 inadvertently and through mistake, written contract. Leland i'. Stone, 10 
 
 The case was rightly decided, as it ap- Mass. 459 ; Townsend t;. Weld, 8 Mass. 
 
 peared that no delay was occasioned, 146.
 
 SECT. VIII.] WHAT IS COMPREHENDED BY THE POLICY. 47 
 
 as to induce the underwriter to take the risk, as will be seen under 
 the head of representation.^ 
 
 67. The stipulations implied by the language of the policy of 
 insurance are as much a part of the instrument as any of its ex- 
 press provisions, and, therefore, cannot be countervailed by proof 
 of oral agreements, understandings, notices, or representations 
 between the parties, since this would be adding to or abstracting 
 from the written contract.^ 
 
 68. What is contained in the policy^ or other instrument, or 
 written upon it, purporting to belong to it, at the time of signing, 
 is apart of the contract, and is adopted by the signature ; whether 
 the words are in the margin,^ or WTitten transversely,* or indorsed.^ 
 
 69. A provision inserted in the policy, with consent, after it is 
 subscribed, is part of it.^ 
 
 70. A policy, as well as other instruments, may refer to records, 
 or other papers, so as to make them a part of the written contract. 
 
 Where, in a policy under seal against fire, the insurers agreed 
 to pay the loss, " according to the tenor of their printed proposals," 
 
 1 It is held in New York that a pro- 
 spectus of a life insurance company not 
 referred to in the policy is not a repre- 
 sentation binding on them under any 
 circumstances [Comstock, Davis, Mason 
 dis.]. Reeve v. Mutual Ins. Co. 23 
 N. Y. 516; see also Wood v. Dwarris, 
 11 Exch. 493; 33 Eng. L. & Eq. 514. 
 
 2 Creery v. Holley, 14 Wend. N. Y. 
 25. See 1 Greenleaf, Ev. § 275 ; 2 id. 
 § 377, who cites Smith v. Wilson, 3 
 Barnew. & Ad. 728; Hockin v. Cooke, 
 4 Term, 314 ; Attorney-General v. The 
 Cast Plate Glass Co. 2 Anstr. 39 ; 
 Sleght V. Rhinelander, 1 Johns. N. Y. 
 531 ; Frith v. Barker, 2 Johns. N. Y". 
 327 ; Stoever v. Whitman, 6 Binn. 
 Penn. 417; Henry v. Risk, 1 Dall. 
 Penn. 265 ; Doe v. Lea, 11 East, 312. 
 Whatever is fairly implied by the lan- 
 guage of the policy is part of it. Per 
 Bronson, J., Potter v. Ont. & Liv. Mut. 
 Ins. Co. 5 Hill, N. Y. 147. 
 
 3 Cockran v. Retberg et al. 3 Esp. 
 121 ; De Hahn v. Hartley, 1 Term, 
 
 343 ; Guerlain v. Col. Ins. Co. 7 Johns. 
 N. Y. 527, but the margin is referred 
 to in the policy ; Bean r. Stupart. 
 Dougl. 1 1 ; Ewer o. Washington Ins. 
 Co. 16 Pick. Mass. 602. 
 
 4 Ken yon et al. v. Berthon, Dougl. 
 12, n. 
 
 5 Mod. Cas. 237, cited Jacob. L. Die. 
 tit. Deed, III. ; Harris v. Eagle F. Ins. 
 Co. 5 Johns. N. Y. 368, though the 
 words and figures indorsed are referred 
 to in the policy in this case ; Warwick 
 V. Scott, 4 Campb. 62, where the regu- 
 lations of the insurance company, and 
 the conditions on which they insured, 
 were indorsed. And see Stocking v. 
 Faiichild, 5 Pick. Mass. 181 ; Gould 
 r. Gould, 4 N. H. 173. The terms and 
 conditions of fire policies are usually 
 indorsed and referred to in the policy. 
 Duncan v. The Sun Fire Ins. Co. 6 
 Wend. N. Y. 488; Hygum v. ^tna 
 Ins. Co. 11 Iowa, 21. 
 
 6 Jenks V. Hallet, 1 Caines, N. Y. 
 60.
 
 48 
 
 OF THE CONTRACT OF INSURANCE. 
 
 [chap. I. 
 
 and it was objected that a distinct paper could not be thus incor- 
 porated into a sealed instrument, the court held that it might be 
 so, and that it was too clear to admit of a doubt.^ 
 
 A written representation or document may be referred to in the 
 policy to the same effect as if inserted in the body of it, and thus 
 be made a part of it, and accordingly become a warranty of the 
 facts stated in it, or other stipulation or condition equally obliga- 
 tory with the policy itself. The rules and regulations of an insur- 
 ance company are frequently so referred to in marine and fire 
 policies, more especially those of mutual insurance companies.^ 
 The effect of such reference must, however, depend on the man- 
 ner and object of making it.^ 
 
 71. A paper annexed to the policy at the time of its delivery, 
 and purporting to belong to it, is part of it, if so intended, though 
 not expressly referred to in it^ 
 
 But in case of a document delivered with the policy, and not 
 
 1 Routledge v. Burrell et al. 1 H. Bl. 
 254 ; and see Oldman v. Bewicke, 2 
 H. Bl. 677, n.; Wood et al. v. Wors- 
 ley, 2 H. Bl 574; Worsley i'. Wood, 6 
 Term, 710; Tarleton etal. i\ Staniforth 
 et al. 5 Term, 695 ; S. C. 1 Bos. & P. 
 471; 3 Anstr. 707. 
 
 2 Clark V. Manufacturers' Ins. Co. 8 
 How. 235, where the representations 
 referred to in a fire policy were those of 
 a previous assured ; Jennings v. Chen. 
 Mut. Ins. Co. 2 Den. N. Y. 75 ; Bur- 
 ritt V. Saratoga Mut. Fire Ins. Co. 5 
 Hill, N. y. 188, where the reference 
 was for a description of the property 
 insured ; and Kentucky and Louisville 
 Ins. Co. V. Southard, 8 B. Monr. Ky. 
 636, also a reference for description; 
 Trench v. Chenango Mut. Ins. Co. 7 
 Hill, N. Y. 122, reference to the state- 
 ment of the distance of the insured 
 building from others ; and see Maryland 
 Ins. Co. V. Bossiere, 9 Gill & J., Md. 
 121 ; Stewart v. Wilson, 12 Mees. & W. 
 Exch. 11, a case of reference to a rule of 
 a mutual marine company, making a 
 condition for repairs and outfits to be 
 ordered by a committee. See also Ken- 
 
 nedy I'. St. Lawrence County Mut. Ins. 
 Co. 10 Barb. N. Y. 285; Sillem v. 
 Thornton, 3 Ell. & B. 868 ; 26 Eng. L. 
 & Eq. 238 ; Sheldon v. Hartford Ins. 
 Co. 22 Conn. 235 ; Draper v. Charter 
 Oak Ins. Co. 2 All. Mass. 569 ; Fabyan 
 V. Union M. F. Ins. Co. 33 N. H. 203. 
 But the by-laws of a company do not 
 form part of the policy, unless referred 
 to. Kingsley v. New England Ins. Co. 
 8 Cush. Mass. 393. See Barre Boot 
 Co. V. Milford Ins. Co. 7 All. Mass. 42, 
 on the point that a condition that the 
 application is true is an express condi- 
 tion, but does not make the application 
 a part of the contract. 
 
 3 Burritt v. Saratoga Mutual Fire 
 Ins. Co. 6 Hill, N. Y. 188 ; and see 
 Maryland Ins. Co. v. Bossiere, 9 Gill & 
 J. Md. 121. 
 
 4 Murdock v. Chenango Mutual Ins. 
 Co. 2 N. y. 210 ; a condition was sub- 
 joined on the same sheet. See also 
 Roberts v. Chenango Mut. Fire Ins. 
 Co. 3 Hill, N. Y. 501 ; New York Ins. 
 Co. V. National Ins. Co. 20 Barb. N. Y. 
 468; Desilver v. State Ins. Co. 38 
 Penn. St. 130.
 
 SECT. 7III.] WHAT IS COMPREHENDED BY THE POLICY. 49 
 
 referred to in it, though it is presumed to be part of the policy if 
 it yo purports, yet this presumption may be rebutted by evidence 
 that it was so delivered by mistake.^ 
 
 72. Where a document referred to in a policy for a description 
 of the subject^ states facts not material to the risk, the reference 
 does not amount to a ivarranty of such facts ; as where the policy 
 was on premises described in it and said in the policy to be " more 
 particularly described in the application and survey furnished by 
 the assured, No. 938, in the office of the underwriters," it was 
 held by the Supreme Court and Court of Errors of New York, 
 not to be a warranty that all the facts stated in the application 
 and survey, material or not material to the risk, were strictly and 
 literally as stated, but that it was enough, if they were substan- 
 tially correct, that is, correct so far as they were material to the 
 risk. Therefore, though the survey stated that a partition ex- 
 tended up to the roof, which did not, in fact, extend so high, yet, 
 as the jury found the variance not material, it was held that the 
 j^licy was not thereby defeated.^ 
 
 The written proposals for previous policies on the same 
 subject were referred to, " loss to be paid to C. as described in 
 report No. 193." Some immaterial alteration had been made 
 in the mean time, so that the building did not precisely con- 
 form to the report: Held not to affect the validity of the pol- 
 icy.3 
 
 Insurance against fire was made on three tenements in Mobile, 
 *' per report No. 36,748, filed in the Washington office." When 
 application for insurance was made at the Washington office, the 
 assured had given a plan of the buildings insured, and the ad- 
 joining buildings and ground. The buildings occupied a corner 
 of a square, and the ground in the rear of them was represented 
 as being vacant. It does not appear that this plan was included 
 in, or how particularly it was connected with, the report referred 
 to. The insurers contended, that this plan was by such reference 
 made a part of the policy, and constituted a warranty that the 
 adjoining ground was vacant at the time of making the insurance, 
 
 1 Roberts v. Chenango Mut. Fire N. Y. 481 ; Boardman v. New Ilamp- 
 Ins. Co. 3 Hill, N. Y. 501. shire Ins. Co. 20 N. H. 551. 
 
 2 Snyder v. Farmers' Ins. & Loan ^ Jefferson Ins. Co. v. Cotheal, 7 
 Ins. Co. 13 Wend. N. Y. 92; Farmers' Wend. N. Y. 72. 
 
 Ins. & Loan Co. t;. Snyder, 16 Wend. 
 
 VOL I. 5
 
 50 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 and should continue to be so during the risk. But it was held 
 not to be such a warranty.^ 
 
 Where two policies were made on interest in freight at the 
 same office, one by the owner, the other by the charterer, ref- 
 erence to one was allowed by the court to explain the 
 other ; ^ though no such reference was made in the policies to be 
 explained. 
 
 73. Verbal declarations even mai/, by a provision in the policy, 
 be made to form, directly, a j^art of the contract ; as where the 
 policy is on goods, " thereafter to be declared," the subsequent 
 declaration of the assured, though not made in writing, will de- 
 termine the subject to which the policy is to attach. And the 
 assured, having made a declaration, by mistake, that the goods 
 were on board of a certain ship, on board of which he had no 
 goods, was permitted to make a second declaration. Lord 
 EUenborough said, it was a " corrigible mistake," and that " the 
 first declaration did not form any part of the contract." ^ This 
 is a special exception to the general rule already laid down ; 6r 
 rather it is a written agreement to abrogate that rule in the par- 
 ticular case. 
 
 SECTION IX. RENEWAL OF THE CONTRACT. 
 
 74. Policies, whether commercial or against fire or on a life, 
 sometimes contain a provision for reneival or continuance, by the 
 payment of the premium within a certain time,^ or on some 
 other condition. 
 
 It was agreed in a life policy by a society for mutual insurance, 
 that, if the assured should pay, or cause to be paid, the premium 
 on certain days quarterly during his life, " or within such time 
 after those days respectively as was or should be allowed for 
 that purpose by the rules of the society ; and if he would pay 
 
 1 Stebbins r. Globe Ins. Co. 2 Hall, 3 Robinson u. Touray, 3 Campb. 158; 
 N. Y. 632. 1 Maule& S. 217, 
 
 2 Etches 17. Aldan, 1 Mann. &R. 157. 4 Tarleton v. Staniforth, 5 Term, 
 So in the case of two policies between 695 ; S. C. 1 Bos. & P. 471 ; 3 Anstr. 
 the same parties on a building and its 707 ; Franklin F. Ins. Co. r. Massey, 33 
 contents. Fogg v. Middlesex Ins. Co. Penn. St. 221. 
 
 10 Cush. Mass. 337 ; contra, Fulton 
 Ins. Co. V. Goodman, 32 Ala. N. s. 108.
 
 SECT. IX.] RENEWAL OF THE CONTRACT. 51 
 
 his proportion of the moneys which the members should, during 
 his life, be called on to contribute, according to the rules, to- 
 wards making good any deficiency of the funds of the society 
 to answer the claims upon it," then on his death the society 
 should pay to his widow, in case she should survive him, a cer- 
 tain annuity. 
 
 By the rules of the society, if any " member " neglected to 
 pay the quarterly premiums for fifteen days after the same be- 
 came due, the policy was to be void, unless the " member " (con- 
 ^.tinuing in as good health as when the policy expired) " should pay 
 up, within six months then next, all arrears, together with five 
 shillings for every month elapsed after such premium became due." 
 
 The quarterly premiums were regularly paid previously to the 
 one becoming due on the 20th of December, 1808. The assured 
 died on the 25th of December, without having paid or tendered 
 the premium. On the 27th of the same December, the quarterly 
 premium was tendered to the society by his executors. 
 
 Lord Ellenborough and his associate judges held, that the 
 privilege of paying the premium within fifteen days from the 
 end of a preceding quarter belonged exclusively to the assured 
 himself, who was a member of the society, and not to his widow 
 or representatives, and, in support of this position, referred to 
 the provision for an assessment, saying, if the policy could be 
 kept alive by the survivors, then this provision would be in effect 
 cancelled, as there would be a subsisting policy on which an 
 assessment could be made. The judgment was accordingly 
 against the claimants.^ 
 
 By a policy of a mutual company against fire, it was stipu- 
 lated, that the assured should pay the premium for a certain 
 time, " and should, as long as the managers should agree to 
 accept the same, make payments annually, within fifteen days 
 after the time limited by the policy, upon forfeiture thereof, and 
 that no insurance should take place until the premium should be 
 paid." The policy was for six months, and expired before the 
 premises were consumed by fire. The assured tendered the 
 premium after the fire, within fifteen days, which the society 
 refused to accept. Lord Kenyon, C. J. : " It was admitted by 
 the plaintiff, that the insurance, when made, did not extend to a 
 half-year and fifteen days. If, when the first premium was paid, 
 1 Waut I'. Blunt, 12 East, 183.
 
 52 OF THE CONTRACT OP INSURANCE. [cHAP. I. 
 
 the insurance did not extend to fifteen days beyond this half- 
 year, the continuation of the term depends on two circumstalnces, 
 that the assured should pay the premium and the insurers agree 
 to accept it." Ashhurst, J. : " The assured are at their own risk 
 during this interval;" if any accident happen before the pre- 
 mium is paid, they stand uninsured.^ 
 
 Under a policy containing the same provision, the insurance 
 company gave notice, that they would not continue it without 
 an increase of premium, to which the assured replied, that they 
 would not give any additional premium. Within the fifteen days, 
 the insured building was burnt down, and the assured tendered 
 the premium which had been demanded, which the company 
 refused to accept. Lord EUenborough and his associates held, 
 that if the assured had, by the terms of the contract, the right 
 to continue the insurance by payment of the premium within 
 the fifteen days, their tender would have entitled them to recover 
 the loss. But as the underwriters had the right to terminate it at 
 the end of the specified term, and had elected so to do, unless 
 the assured should agree to pay a higher premium, which they 
 declined to do, the insurance was terminated at the end of that 
 term.2 
 
 75. If the policy contains no provision for renewal by some act 
 of the assured, it requires a written agreement of the underwriter 
 to renew it after its termination,^ except in case of termination 
 by forfeiture of a condition within the stipulated period of the 
 risk, in which case it may be continued in force by some transac- 
 tion between the parties, amounting to a waiver of the forfeiture 
 on the part of the underwriters. 
 
 A policy for $1800 on a building and $700 on machinery, 
 being continued for $2500 on the building and machinery with- 
 out any apportionment of the amount, was held, in New York, 
 to be applicable to the two subjects indiscriminately.^ 
 
 1 Tarleton et al. r. Stanifortli et al. 2 Salvin et al. v. James & Langston, 
 
 5 Term, 695; S. C. 1 Bos. & P. 471 ; 6 East, 571. 
 
 Anstr. 707. In consequence of this de- 3 Cockerell v. Cincinnati Ins. Co. 16 
 
 cision, sundry offices gave public notice, Oliio, 149. 
 
 that persons insured by policies taken ^ E)'''ggs v. Albany Ins. Co. 10 Barb, 
 
 out for one year or longer were con- N.Y. 440. See also, Honnick v. Phoenix 
 
 sidered as insured for fifteen days be- Ins. Co. 22 Mo. 82 ; Peacock v. N. Y. 
 
 yond the time of the expiration of their &c. Ins. Co. 20 N. Y. 293 ; Liddle 
 
 policies. Hughes, 508. j;. Market, &c. Ins. Co. 4 Bosw. N. Y.
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 
 
 SECTION X. ASSIGNMENT OF THE POLICY. 
 
 76. Policies of insurance in their usual form, whether marine, 
 fire, or life, are not negotiable nor subject to be assigned, without 
 the consent of the insurers, so as to give the assignee a right to 
 prosecute claims upon them, in his own name, as he may on an 
 assigned bill of lading.^ 
 
 M. Alauzet^ says, that under the French law nothing prevents 
 a marine policy being made payable to order or bearer. And 
 Mr. Duer ^ is of opinion, that a marine policy would be transfer- 
 able so as to authorize a demand, and suit upon it, in the name 
 of the assignee of both the policy and its subject, without the 
 consent of the insurer. A marine policy " for account of whom 
 it may concern at time of loss," is an instance of an insurance, 
 transferable with, and as incidental to, the subject, according to 
 the terms of the policy itself. And Chancellor "Walworth, of 
 New York, held the insurers on a steamboat to be answerable in 
 equity according to the purport of the policy, saying at the same 
 time, that he did not intend to give any opinion respecting a suit 
 at law."* Mr. Duer^ considers the contract, being a marine one, 
 and coming within the law merchant, not to be subject to the 
 common-law rule respecting the assignment of choses in action. 
 
 A marine policy of insurance on goods seems to be precisely 
 similar to a bill of lading as to its assignableness, provided it 
 imports on its face a responsibility directly to the assignee of the 
 goods, and I accordingly venture to state it as the better doctrine, 
 that the interest in a marine policy purporting on its face to insure 
 the owner of the goods, whoever he may he, is assignable with the 
 goods, to the effect of giving the assignee a right to make demands 
 and bring suits upon it in his own name. And the same doctrine 
 is, I think, applicable to a similar policy upon a vessel, or one 
 
 179. A renewal is a new contract and 1829, c. 51. New York L. Ins. Co. f. 
 
 governed by the laws in force at the Flack, 3 Md. 341. 
 
 time of renewal; Brady v. North-west- 2 Vol. I. p. 360, § 192. 
 
 em Ins. Co. 11 Mich. 425. 3 Marine Insurance, Vol. II. pp. 
 
 1 Carroll v. Boston Mar. Ins. Co. 8 51, 52, §§ 9, 32. 
 
 Mass. 515 ; Loring v. Manuf. &c. Ins. 4 Rogers v. Traders' Ins. Co. and 
 
 Co. 8 Gray, Mass. 28. It is held in same plaintitf v. The Howard Ins. Co. 
 
 Maryland that a life policy being a 6 Paige Ch. N, Y. 583. 
 
 chose in action is assignable by Stat. 5 Marine Insurance, Vol. II. p. 51, n. 
 5*
 
 64 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 against fire upon land, for though the personal confidence of the 
 underwriter in the assured is greater in such a policy than in one 
 on a cargo, still I am not aware of any principle of law incon- 
 sistent with his using his own discretion in this case, so far as to 
 make his contract pass with the subject.^ 
 
 77. Where the insured interest is assignable, ivhether in a ma- 
 rine, fire, or life insurance, the policy is assignable in equity to 
 the assignee to whom the subject-matter or interest thereby in- 
 sured is assigned, provided it contains no provision to the con- 
 trary.2 
 
 If a contract is mutually executory, or executory on one part, 
 and imports personal confidence and trust, as in contracts for 
 labor or professional service, a party by whom the service is to be 
 performed, and in whom personally a trust is reposed respecting 
 the manner of executing the contract, cannot, by an assignment, 
 substitute another in his place, since he does not in this way 
 furnish to the other party what was agreed for. The doctrine of 
 the assignableness of policies, therefore, proceeds on the pre- 
 sumption that no personal confidence is reposed in the skill of 
 the assured, in respect to the conducting of the voyage. But it 
 does not follow that this presumption is conclusive. On the 
 contrary, it is easy to imagine the stipulations of a policy to be 
 such as to import the confidence of the underwriter in the assured 
 personally; in which case the voluntary substitution of another, 
 by the transfer of the interest, and the management and control 
 of the subject, would be such a change of the risk as to discharge 
 the underwriter. 
 
 78. The doctrine was early laid down by Lord Chancellor 
 King, that a fire policy cannot be assigned pending the risk so 
 as to give any interest in it whatever, legal or equitable, to the 
 assignee.^ 
 
 1 In Weston v. Penniman, 1 Mas. Condy's March, 287, n.; Delany v. 
 C. C. 306, Judge Story decided that an Stodart, 1 Term, 22: Marshall Ins. 
 assignee of a draft not negotiable, and 800 ; Ashley v. Ashley, 3 Sim. Ch. 151 ; 
 accepted " to pay any one to whom it Wakefield v. Martin, 3 Mass. 558 ; De 
 should be assigned," could sue in his Ghetoft v. London Ass. Co. Mosel. 83, 
 own name. and see 1 Atk. 547; Earle v. Shaw, 1 
 
 2 Gourdon v. Ins. Co. of N. America, Johns. Cas. N. Y. 313. 
 
 3 Yeates, Penn. 327 ; S. C. 1 Binn. 3 Lynch v. Dalzell, 4 Brown Pari. 
 Penn. 430; Rousset v. Ins. Co. of N. Cas. 431, Toml. ed. 
 America, 1 Binn. Penn. 429 ; S. C.
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 55 
 
 And the same doctrine is countenanced, though not directly- 
 declared, by Lord Chancellor Hardwicke.^ But Mr. Ellis 2 implies 
 that afire policy, containing no provision or implication to the con- 
 trary, is assignable in equity with the subject itself, on notice being 
 given to the insurers.^ 
 
 78 a. A71 insurance company cannot, by reinsurance, turn an 
 assured over to the reinsurers without his consent. 
 
 Where an insurance company, to which a policy issued by 
 it is assigned by the insured life, as collateral security for the 
 assured's bond for money loaned to him by the company, it was 
 decreed by Kindersley, V. C, that the company could not, by 
 assigning the bond to another company, and effecting reinsur- 
 ance on the life with such other company, disengage itself from 
 its own liability to the representatives of the assured on its 
 policy.* 
 
 79. A life policy in favor of a creditor, or other assured, having 
 an assignable interest depending upon another's life, either par- 
 tially or entirely, or one on which the premium for the whole life 
 has been paid, stands upon the same footing as to the assign- 
 ment of the policy with the interest upon which it is made, as 
 one against marine or fire risks, and 7nay upon the same principle, 
 be transferred ivith the debt or other interest, which constitutes its 
 subject-matter. 
 
 In England, life policies for an annual premium, on the assured^ j 
 own life, or those on another'' s life, upon an interest thct ij not 
 assignable, for instance on the life of a relative upon whose 
 bounty the assured depends, appear to be equally assignable with 
 those made upon an interest which is of a transferable character. 
 
 A party whose life was insured, assigned and delivered his 
 policy to one of his creditors as collateral security, ordering the 
 surplus of the proceeds, if any, after satisfying his debt out of 
 other security and the proceeds of the policy, to be paid over 
 to his widow, intending that she should have the benefit of 
 the policy in preference to his creditors. The amount insured 
 being paid over to the assignee, iVIr. Chancellor Johnson, of 
 
 1 Saddlers' Co. v. Badcock, 2 Atk. subject. Stout t;. City, &c. Ins. Co. 12 
 554. Iowa, 371. Contra, Peabody v. Wash 
 
 2 ElHs, Ins. 70. Ins. Co. 20 Barb. N. Y. 339. 
 
 3 It was held in Iowa that a policy 4 Atkinson v. Gylby, 2 De Gex, M. 
 may be assigned without assigning the & G. 670 ; 13 Eng. Law & Eq. 209.
 
 56 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 Maryland, decreed that, the creditor, after retaining enough to 
 satisfy his demands, first applying his other collateral security 
 for that purpose, should pay over the surplus to the widow, and 
 rejected the claim of the assured's administrator to an interest in 
 the policy.^ 
 
 It has been held in Maryland that the reasons requiring the 
 assent of the underwriters to an assignment do not apply to life 
 policies,^ but that the assured, if there is no restriction in the 
 policy, may assign it to any one, whether the assignee has an 
 interest in the life or not ; ^ and it has been held in Tennessee 
 that even an express stipulation for notice need not be complied 
 with.* 
 
 An assigned policy should he actually or constructively delivered^ 
 and due notice given to the underwriters.^ 
 
 Wliere the premium is paid by the debtor whose life is insured, 
 the policy reverts to him on payment of the debt,^ but not neces- 
 sarily to his representatives.^ 
 
 Delivery and deposit of a life policy was held by Lord Eldon to 
 give a lien to the depositee against creditors of a bankrupt.^ 
 
 80. Policies are usually assigned in writing, but a merely verbal 
 assignment, ivith delivery of the policy, gives to the assignee an 
 equitable right to the j^roceeds, where the policy itself contains no 
 provision to the contrary.^ 
 
 1 Harrison i'. M'Conkey, 1 ]\lcl. Cb. IMorris, 4 Sim. 607 ; Williams v. Thorp, 
 Dec. 34. The chancellor distinguishes 2 Sim. 25 7; Ryall v. Rowles, 1 Ves. 
 this case from Pennington Adm'r v. sen. 348 ; Dearie v. Hall, 3 Russ. 24 ; 
 Gettings Ex'r, 2 Gill & J. Md. 208, Ex parte Monro, Buck, 303 ; West v. 
 and Bradley v. Hunt, 5 Gill & J. Md. Skip, 1 Ves. sen. 239 ; Mutual Ins. 
 54, on the ground that the assured Co. v. Hamilton, 5 Sneed, Tenn. 269. 
 had divested himself of all interest in It is implied, Bunyon, Life Ins. 24, 
 the policy and all control of it. citing Ashley v. Ashley, 3 Sim. 149, 
 
 2 New York L. Ins. Co. v. Flack, 3 that where the interest of the assignee 
 Md. 341. in the life of an insured debtor had 
 
 3 Valton V. National Ass. Soc. 20 ceased and subsequently a new interest 
 N. Y. 32. had accrued, the policy covered such 
 
 4 Mutual Ins. Co. v. Hamilton, 5 new interest. 
 
 Sneed, Tenn. 269. See also Rison v. 6 Holland v. Smith, 6 Esp. 11. 
 Wilkerson, 3 id. 565. 7 Triston v. Hardey, 14 Beav. 232; 
 
 5 Jones V. Gibbons, 9 Ves. Jun 407; cited Bunyon Ins. P. 2, ch. 6, sect. 3. 
 MoUoy I'. French, 13 Ir. Ch. 261 ; For- 8 Ex parte Hey wood, 2 Rose, 357. 
 tescue V. Barnett, 3 Mylne & K. Ch. ^ Per Ld. Abinger, C. B., and Parkes, 
 36 ; Stocks v. Dobson, 17 Jur. 223 ; B., 11 Mees. & AV. Exch. 10; Wells v. 
 Ex parte South, 3 Swanst. 3)4 ; Lett v. Archer, 10 Serg. & R. Penn. 412. So
 
 SECT. X.] 
 
 ASSIGNMENT OF THE POLICY. 
 
 57 
 
 81. After a valid assignment and delivery of the policy to the 
 assignee, and notice to the underwriters, the assignor cannot, by 
 any act of his, intercept or impair the rights of the assignee under 
 the assignment.^ An assignment to a subsequent assignee, with 
 notice of the prior assignment, will be subject to it; and the un- 
 derwriters, after notice of a valid assignment, will be hound by it, 
 and any payment made by them inconsistent with it will be in 
 their own wrong.^ 
 
 82. The legal proceedings on an assigned policy, in common- 
 law courts, must be in the name of the original assured, whom the 
 underwriter has a right to regard as his contracting party, and 
 the assured cannot, without the consent of the underwriter, impose 
 upon him any responsibility to a third person, whereby the rights of 
 the underwriter will be impaired, or his liability enhanced; or will 
 be modified in any respect, any further than to put him under 
 obligation, after notice, to be accountable to the assignee for the 
 amount for which he is liable under the policy. Whatever set-off 
 he was entitled to at the time of notice of the assignment, and what- 
 ever other defence he could make against the original assured, 
 he may still make, notwithstanding the assignment.^ 
 
 a promissory note, payable to order, has 
 been held in Maine to be assignable in 
 equity by parol and delivery merely. 
 Titcomb v. Thomas, 5 Me. 282 ; and 
 see Vose v. Handy, 2 Me. 322. 
 
 1 Boynton v. Clinton, &e. Ins. Co. 16 
 Barb. N. Y. 254 ; Foster v. Equity, &c. 
 Ins. Co. 2 Gray, Mass. 216; Traders' 
 Ins. Co. V. Robert, 9 AVend. N, Y. 404 ; 
 Tillou V. Kingston Ins. Co. 5 N. Y 405 ; 
 Hobbs V. Memphis Ins. Co. 1 Sneed, 
 Tenn. 444. Contra, Grosvenor v. At- 
 lantic, &c. Ins. Co. 17 N. Y. 391 ; Buf- 
 falo, &c. Works V. Sun Mut. Ins. Co. 
 ib. 401; State, &c. Ins. Co. v. Roberts, 
 31 Penn. St. 438; Buckley v. Garrett, 
 47 Penn. St. 204. 
 
 2 See 2 Duer, Ins. Lect. 9, § 3G, and 
 cases there cited in notes ; also 1 Green- 
 leaf, Ev. § 190; Daniel, Eq. Pr. by 
 Perkins, 248, n. ; and Ilackett v. Mar- 
 tin, 8 Me. 77; Hatch v. Dennis, 10 Me. 
 244; Matthews v. Houghton, ib. 420; 
 
 Frear v. Evertson, 20 Johns. N. Y. 42 ; 
 Traders' Ins. Co. i'. Robert, 9 Wend. 
 N. Y. 404 and 4 74; Pollard v. Somer- 
 set, &c. Ins. Co. 42 Me. 221. 
 
 AVhere the payee of a promissory 
 note not negotiable, gave the maker a 
 discharge at the time of its being made, 
 and then assigned it, for a valuable con- 
 sideration, with intent, by the parties, 
 to defraud the assignee, the latter was 
 held not to be affected by the discharge. 
 Lyon V. Summers, 7 Conn. 399. 
 
 3 See Gourdon v. Ins. Co. of North 
 America, 3 Yeates, Penn. 327 ; S. C. 
 1 Binn. Penn. 430; Rousset v. Ins. Co. 
 of North America, 1 Binn. Penn. 429 ; 
 S. C. Condy's Marshall, 287, n.; Dela- 
 ny V. Stodart, 1 Term, 22 ; Sparks v. 
 Marshall, 2 Bingh. n. c. 761; Waters v. 
 Allen, 5 Hill, N. Y. 421 ; Ashley v. 
 Ashley, 3 Sim. 151 ; Grosvenor v. Atlan- 
 tic F. Ins. Co. 17 N. Y. 391 ; Tennes- 
 see Mar. Ins. Co. v. Scott, 14 Mo. 46.
 
 58 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 83. If the underwriter has agreed to account and make payment 
 to an assignee, the latter may, at the common law, commence 2^fO' 
 ceedings in his own name, where nothing remains to be done on the 
 part of the assignor ; and all his interest in the contract has ceased} 
 
 84. If the assignment, taken in connection with the policy, 
 plainly transfers the assured's whole interest, the underwriter's as- 
 sent to it is equivalent to his agreement to be directly answerable to 
 the assignee, and the proceedings to enforce payment may be in 
 the assignee's name. 
 
 This and the preceding proposition are stated as the result of 
 the jurisprudence on the subject, and as reconciling the, in some 
 degree, apparently discordant decisions. The cases on policies, 
 no less than on other contracts, support the doctrine, that an 
 agreement by the obligor to be answerable to the assignee, or 
 his assent to an assignment of such import, substitutes the as- 
 signee for the assignor, and authorizes proceedings in the name 
 of the assignee;^ while in other cases, not discriminating the 
 above-mentioned difference in assignments and assent, the gen- 
 eral rule is differently laid down.^ 
 
 An assignment may transfer only a part of the claims accru- 
 ing to the assured on the policy, as in case of an assignment of 
 all claims for loss under a marine policy to the vendee of the 
 goods thereby insured, which is held not to transfer the claim 
 for a return of any part of the premium previously paid by the 
 assignor.^ 
 
 85. The assignee of a policy of insurance, or other contract 
 which is assignable in equity, needs not to resort to a court of 
 equity to enforce it. A court of law will recognize his rights un« 
 der the assignment, and give a remedy in a suit brought by him 
 in the name of the assignor.^ 
 
 86. A mere sale and transfer of the assured's interest in the sub- 
 ject insured, does not operate as an assignment of the policy, as in- 
 cidental to the subject. 
 
 1 See next proposition. Eng. L. & Eq. 127 ; 1 Eng. L. & Eq. 281. 
 
 2 Carroll v. Boston Mar. Ins. Co. 8 See Hale v. Mich. Ins. Co. 6 Gray, 
 Mass. 515; Howard v. Albany Ins. Co. Mass. 169. 
 
 3 Den. N. Y. 301 ; Conover v. Mut. Ins. ^ Carter v. Union Ins. Co. 1 Johns. 
 
 Co. of Albany, 3 Den. N. Y. 254. Ch. N. Y. 463 ; Welch v. Mandevllle, 1 
 
 3 Jessel V. Williamsburgh Ins. Co. 3 Wheat. 233; Mandeville v. Welch, 5 
 Hill, N. Y. 88. id. 277. A statute of Pennsylvania au- 
 
 4 Castelli v. Boddington, and Bod- thorizes proceedings in the name of the 
 dington V. Castelli, 1 Ell. & B. 66, 16 assignee. 1 BInn. Penn. 483.
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 59 
 
 87. Accordingly, if 'property insured is sold, so that the assured 
 retains no interest in it, and is subject to no risk or responsibility 
 on account of it, and no assignment, or agreement for the as- 
 signment, of the policy is made, and afterwards a loss happens, and 
 after the loss the policy is assigned to the vendee, the assignment will 
 he ineffectual in respect to such loss, and neither the party originally 
 insured nor his assignee can recover for the loss.^ 
 
 88. Whether on an absolute sale of the insured subject pending 
 the risk without condition or reservation, so that no insurable in- 
 terest can revert to the assured, and without any agreement or 
 understanding, express or implied, respecting the assignment of 
 the policy, the policy becomes extinct, so that it cannot be after- 
 wards assigned to the vendee before any loss occurs ? or avail 
 the assured on his regaining his insurable interest? 
 
 The question supposes the subject and the risk still to corre- 
 spond to the description in the policy. 
 
 Take a case of the absolute sale of a vessel insured for a 
 period, the whole premium having been paid, and a repurchase, 
 before the expiration of the period. As the risk is supposed to 
 have commenced, the assured would not be entitled to a return 
 of any part of the premium, if there had been no agreement to 
 that effect. In case of the risk reviving on the repurchase, the 
 assured loses the premium only for the time during which the 
 vessel belonged to the vendee, instead of losing it for the whole 
 remainder of the period, as he otherwise would have done. 
 
 It is distinctly implied, though not directly decided, in a Mas- 
 sachusetts case,2 that the risk would revive on the repurchase. 
 It would not revive to cover any intermediate loss, since the as- 
 sured, having had no interest in the mean time, could not sustain 
 any loss. And, in case of an intermediate total loss, the policy 
 would have become extinct. 
 
 There are, as we shall see in another place, not unfrequent 
 
 1 Lynch v. Dalzell, 4 Brown, Pari. York Ins. Co. 3 Johns. Cas. N. Y. 238 ; 
 
 Cases, Tomlins's ed. 431; The Saddler's H'oward v. Albany Ins. Co. 3 Den. N. 
 
 Co. V. Badeock, 2 Atk. 554 ; Godin v. Y. 301 ; Leavitt v. Western Mar. & Fire 
 
 London Ass. Co.' 1 Burr. 489; Keny. Ins. Co. 7 Rob. La. 351 ; Powles v. In- 
 
 244 ; 1 W. Blackst. 103 ; iEtna Fire Ins. nes, 1 1 Mees. & W. E.xch. 10 ; Wilson i-. 
 
 Co. V. Tyler, 16 Wend. N. Y. 385 ; Ma- Trumbull, &c. Ins. Co. 19 Penn. 372 ; 
 
 carty v. Com. Ins. Co. 17 La. 366 ; Dad- Felton r. Brooks, 4 Cushing, Mass. 203. 
 
 mun ]\Ianuf. Co. v. Worcester Fire Ins. 2 Carroll v. Boston Mar. Ins. Co. 8 
 
 Co. 11 Mete. Mass. 429; Bates v. New Mass. 515.
 
 60 OP THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 instances of the suspension and subsequent revival of the risk, 
 to which the underwriter cannot object, as he is in that case a 
 gainer by receiving the premium for a time, without running any 
 risk, and his claim to receive it upon those terms for a still longer 
 time could not be made but with a very ill grace. So long, then, 
 as the subject and the risk remain the same that they are de- 
 scribed to be in the policy, we have ground for the doctrine 
 that, if the assured., after parting- with his interest, regains it, 
 the polici/ ivill reattach, in case of no prejudice to the under- 
 writer. 
 
 It follows, that the assured continues to have an interest in the 
 policy during the interruption of the risk for want of a subject- 
 matter to which it can attach. 
 
 I conclude, that, though the subject may have been absolutely 
 transferred pending the risk, and the risk may have been thus 
 interrupted, it will revive by an assignment of the policy to the 
 vendee of the subject, and cover subsequent losses. 
 
 89. If the assured sells, agreeing to stand trustee of the subject 
 for the vendee, he will hold the policy as such} 
 
 90. If the sale of the subject is conditional, and the vendor 
 retains an insurable interest as mortgagee, or guarantor, as to 
 the perils insured against in the policy, the policy is not annulled, 
 but remains in force, unless the transfer, or subsequent risk, is 
 in contravention of some express or implied obligation of the 
 assured.'-^ 
 
 91. If a party who has an interest in preserving or insuring a 
 subject, whether by reason of his property in it, or lien upon it, or 
 a liability he may be under respecting it, agrees with another, 
 who has an insurable interest in it, to insure it for such otherh 
 benefit, in the name of either, and effects insurance in terms im- 
 porting that it is for the benefit of such other, or consistent with 
 such construction, this is a constructive equitable assignment of 
 the policy to such other, where an assignment or trust is requisite 
 to give such other the benefit of the contract.^ 
 
 A debtor agreed to effect a policy on his life for the benefit of a 
 creditor, and to assign it to him and leave it in his hands, and in 
 
 1 Powlcs V. Innes, 11 Mees. & W. 2 Bell v. Western Mar. & Fire Ins. 
 Exch. 10; Reed v. Cole, 3 Burr. Co. 5 Rob. La. 423. 
 1512. 3 National Ins. Co. v. Crane, 16 Md. 
 
 260.
 
 SECT. X.] ASSIGNMENT OP THE POLICY. 61 
 
 pursuance of that agreement effected a policy in his own name, 
 expressed to be payable to the creditor. This was decreed, in 
 England, by Wigram, V. C, to give to the creditor an equitable 
 interest in the policy, though it had not been assigned to the 
 creditor, or left in his hands.^ 
 
 A purchaser of one of the tenements insured by a policy, was 
 admitted by the insurance company, being a mutual one, as a 
 member in respect to the purchased tenement, at the request of 
 the vendors, and it was held in South Carolina that this was a suf- 
 ficient assignment of an interest in the policy to be the ground 
 for the grantor's recovering of the grantee the proportion of pre- 
 mium previously paid by the grantor, on account of the unexpired 
 risk on the conveyed tenement at the time of the conveyance-.^ 
 
 Wool was delivered to the manufacturer to be manufactured, 
 and, on payment being made therefor, it was to become his, on an 
 agreement that he should effect insurance upon it, in the mean 
 time, for the benefit of the owner ; and, in pursuance of the agree- 
 ment, he insured it in his own name. It was held in Massachu- 
 setts, that the owner had such an insurable interest in the policy 
 as to prevent a creditor of the manufacturer from availing himself 
 of the proceeds of the policy by means of a foreign attach raent.^ 
 That is, the manufacturer was considered to hold the policy as 
 trustee for the owner of the wool. 
 
 92. A general assignment of the property of the assured, in- 
 cluding the subject of a policy of insurance, with apt words for 
 transferring policies of insurance or other choses in action, will 
 be operative, as an equitable assignment of a policy, at least where 
 the policy contains no restriction against its assignment.* And it 
 
 ' Cook V. Black, Trustee of the Bri- particular circumstances, construed by 
 
 tannia Life Ins. Co. reported 2 Jones's Eustis, C. J., and his associates, to be 
 
 Annuities, p. 1186. In Paradise v. Sun subject to the same exceptions of risks 
 
 Mut. Ins. Co. 6 La. Ann. 596, an iusur- to be run by the insurers, that it would 
 
 anee of freight for whom it may concern be subject to if it had been made in the 
 
 by the assignee of the freight-list in his name of the ship-owner and for his sole 
 
 own name, to whom it is assigned as col- benefit. See also Shotwell v. Jefferson 
 
 lateral security for advances, with an Ins. Co. 5 Bosw. N. Y. 247. 
 
 agreement that he shall insure it and 2 Sherman i;. Fair, 2 Speers, So. C. 
 
 charge the premium to the assignor, and 64 7. 
 
 account to the assignor for the surplus of 3 Providence County Bank v. Ben- 
 
 the proceeds of the policy after reim- son, 24 Pick. Mass. 204. 
 
 bursement of his advances, is, under the 4 See No. 2123. 
 
 Vol. I. 6
 
 62 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 has been held in some cases, that such an assignment will avail, 
 notwithstanding a condition that the policy shall be void on 
 assignment.^ 
 
 93. Mortgaging the insured premises is not an " alienation," 
 under a provision of the charter of an insurance company making 
 the policy void on an alienation by sale or otherwise.^ One ground 
 of the decision is, that the assured still retained his insurable in- 
 terest to the amount of the full value, which makes the decision 
 applicable to cases of mortgaging by the assured generally. 
 
 94. A policy by a testator on the life of a debtor ivill pass under 
 a general bequest, as that of " debts and debentures." ^ 
 
 95. Under the English jurisprudence it is necessary, in order 
 to secure the assigned policy to the assignee against the claims 
 of the creditors of a bankrupt or insolvent assignor, that notice of 
 the assignment should be given to the insurers before the act of 
 bankruptcy.^ 
 
 This rule is put upon the ground of a presumption in favor of 
 creditors, that the interest in the policy remains with the assured 
 or other holder of a policy, until the insurers are put under a legal 
 or equitable liability to the assignee by notice of the assignment. 
 
 The reason on which that rule is founded is as applicable in the 
 United States as in England. Some American decisions, in anal- 
 ogous cases, are in favor of it,^ others against it.'' But the assign- 
 ment in question surely ought not to put the assignees in any better 
 position than that of an assignee in other cases, and the law is, 
 if it does not, that, in case the underwriter has notice of the 
 assignment before payment of the loss, whether the assignor is 
 
 1 See Lazarus r. General Interest 4 Jn re Hennessy, 2 Drur. & Warr. 
 Ins. Co. 5 Pick. Mass. 76 ; Lazarus v. Ir. Ch. 555; Williams v. Thorpe, 2 Sim. 
 Commonwealth Ins. Co. 19 Pick. Mass. 257; Ellis, Ins. 144; Ex parte Colvill 
 81 ; and Dadmun Manuf. Co. v. Wor- et al., 1 Mont. 110; S. C. Ellis, Ins. 
 tester Fire Ins. Co. 11 Mete. Mass. 429, 148; Smith v. Smith, 1 Tyrwh. 52; 2 
 in which last case the assignment for the Crompt. & M. Exch. 231 ; Gardiner v. 
 benefit of creditors is held to be a for- Lachlan, 4 Mylne & C. 129 ; Ex parte 
 feiture. But see infra. No. 107. Waithman, 2 Deac. & C. 412. 
 
 2 Conover v. Mutual Ins. Co. of Al- ^ Woodbridge v. Perkins, 3 Day, 
 bany, 3 Den. N. Y. 254 ; Shepherd v. Conn. 364 ; Judah t>. Judd, 5 Day, 
 Union, &c. Ins. Co. 38 N. H. 232. And Conn. 534. 
 
 see infra, No. 880. 6 Dix v. Cobb, 4 Mass. 512 ; Stevens 
 
 3 Phillips V. Eastwood, Lloyd & G. v. Stevens, 1 Ashm. Penn. 190; Stock- 
 Cas. 291, temp. Sugden. ton v. Hall, Hard. Ky. 160.
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 63 
 
 solvent or has become insolvent after the assignment, he is liable 
 to the assignee, claiming against the other creditors under insol- 
 vency or bankruptcy. This I understand to be the law on the 
 subject in the United States. 
 
 96. Where notice to the insurers prior to an act of bankruptcy^ 
 is necessary to the validity of the assignment of a policy, as 
 against the claims of the creditors of an insolvent assured, it is 
 not enough that the assignor is himself an agent of the insurers. 
 The agent's knowledge of the assignment, or notice to him, will 
 not, in such case, be imputed to his principal.^ 
 
 But where an assured member of a joint-s^ock company assigns 
 his policy together with the property insured, the fact that the 
 assignor is a member of the company, and so a copartner with 
 the other members, will affect the company with notice of the 
 assignment, and secure the policy for the benefit of the assignee 
 against a subsequent disposition of it by the assignor.^ 
 
 97. Tlie fact of making out a policy with notice to the insurers 
 of an intention to assign it, is held not to be of itself a consent of 
 the insurers to such assignment, where one of the conditions requi- 
 site to its assignment has not been complied with. 
 
 Under a provision that the policy should be void if assigned 
 without the written consent of the insurers, a by-law of a fire com- 
 pany provided that policies might be assigned to mortgagees on 
 their signing the premium note. In the written application of the 
 mortgager for a policy, he stated that he proposed the assignment 
 of a certain amount of it to the mortgagee, but no specific assign- 
 ment was made, nor was the premium note signed by the mort- 
 gagee, nor was any assent given by the company to an assignment, 
 otherwise than by making out the policy to the mortgager, which 
 contained an express reference to the written application " for a 
 more particular description, as forming a part of the policy." It 
 was held in New York that the act of making out the policy was 
 not a written consent to an assignment of it.-^ 
 
 A mortagee has a lien for premium paid by him to keep up the 
 policy assigned to himJ^ 
 
 A life policy, effected as collateral security to the grantor of a 
 
 1 In re Hennessy, 2 Drur. & Warr. a Smith v. Saratoga Mut. Fire lus. 
 Jr. Ch. 555. Co. 3 Hill, N. Y. 508. 
 
 2 Duncan v. Ciiamberlayne, 11 Sim. * Bunyon, Life Ins. P. 2, c. 2, § 
 Ch. 123. 10.
 
 64 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 redeemable annuity, in concurrence with the grantor of the annuity, 
 must be assigned to him on the redemption of the annuity} But 
 if there is no such concurrence, then no such assignment is to 
 be made.2 
 
 98. The mere delivery of the policy, without any other act of 
 assignment, for the purpose of security to the depositary, gives 
 him a lien on the proceeds of the policy, for the purpose of such 
 security or indemnity against other claims on the policy or pro- 
 ceeds of which such depositary had no notice at the time of the 
 delivery of the policy to him.'^ 
 
 99. Where a policy is delivered to a second assignee, without 
 notice to him, by indorsement on the policy or otherwise, of a 
 prior assignment to another, the second assignment will prevail 
 against the first.* 
 
 100. So an assignment of the policy, ivith delivery of it, with- 
 out notice to the assignee of a prior lien, ivill prevail over the 
 lien, which will not be revived by the policy subsequently com- 
 ing into the hands of the party who had the lien, for the pur- 
 pose of prosecuting the claim of the assignee against the under- 
 writers.^ 
 
 101. A mere depositary of a policy has not, as such, authority, 
 by any act of his, to give a third party any lien upon it.*^ 
 
 102. The assent of the insurers to an order, dated after a loss 
 by fire, to '•''pay the loss " to a third party, does not deprive them 
 of the election reserved in the policy, to rebuild, instead of paying 
 damage.'^ 
 
 103. A covenant by a tenant to keep premises insured, runs 
 with the land, and enures to the benefit of the assigns of the 
 lessor.^ 
 
 1 Bunyon, Life Ins. P. 2, c. 6, p. 256, Trust Co. v. Neve, 2 M'Mull. So. C. 
 citing Williams v. Atkyns, 2 Jones & L. 237. 
 
 Ir. Ch. 653 ; Hawkins v. Woodgate, 8 4 Wells v. ArcLer, 10 Serg. & R. 
 
 Jur. 743 ; but see Gottlieb v. Cranch, 17 Penn. 412. 
 
 Jur. 686. 5 Ibid. 
 
 2 Sevier ii. Greenway, 19 Ves. jun. ^ Spring i\ S. C. Ins. Co. 8 Wheat. 
 413; Law v. Warren, Drur. Ir. Ch. 268. 
 
 31. 7 Tolman v. Manufacturers' Ins. Co. 
 
 3 Wells V. Archer, 10 Serg. & R. 1 Cush. Mass. 73. 
 
 Penn. 412. See also Lazarus r. Com- ^ Vernon v. Smith, 5 Barnew. & 
 monwealth Ins. Co. 5 Pick. Mass. 76, Aid. 1. 
 and 19 id. 81, and Charleston Ins. &
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 65 
 
 104. Li case of the decease of an assured, where the premium 
 has been paid and the policy survives for a subsequent period, 
 the question arises ivhetlier the equitable interest in it passes by 
 will, or by the laws of distribution of the property, to the same 
 party to ivhom, or in trust for whom, the insured subject passes. 
 
 The question is stated thus generally for the purpose of sug- 
 gesting more distinctly to the mind what ought to be the rule. 
 It is obvious that, if the amount paid by the insurers for a loss 
 subsequent to the decease does not go to the same party to 
 whom the insured subject was destined by will, or the laws of 
 descent and distribution of estates, the intent of the deceased 
 is directly contravened. This is equally true, whether he died 
 testate or intestate, since, in the latter case, he is presumed to 
 have intended that his estate should go as it would pass by the 
 laws of descent and distribution, in the form in which he left it 
 at his decease. 
 
 In some cases, where a trust existed, or could be presumed, 
 courts have treated the proceeds accordingly. 
 
 A tenant for life stated in his will that certain stocks were an 
 investment of the proceeds of an insurance of the real estate, 
 burnt down, and paid for, during the life of a preceding tenant 
 for life, and were parcel of the real estate. The English V. C, 
 Plumer, decreed this disposition of the fund ; ^ although it does 
 not appear that either tenant for life had any interest in the fund, 
 otherwise than as such tenant. 
 
 In another case, the Vice- Chancellor presumed a renewal of 
 a policy upon a house to have been made by an executrix in 
 trust, as such, instead of being renewed exclusively on her own 
 proper account, the presumption being made for the purpose 
 of rendering the amount, paid by the insurers, auxiliary to giv- 
 ing security for an annuity granted by the testator's will to his 
 widow.^ 
 
 But the doctrine which the courts have generally felt bound to 
 adopt, is, that, in the absence of any destination of the proceeds 
 of a policy by the deceased, through a trust created by his will or 
 otherwise, the devise or bequest of the subject does not cause the 
 policy to pass as incident to it.-^ 
 
 1 Norris v. Harrison, 2 Madd. Ch. 3 A policy in favor of an annuitant, 
 ^^°' on the life of the grantor of the annuity, 
 
 2 Parry v. Ashly, 3 Sim. Ch. 97. payable during the life of the grantor
 
 66 Of THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 In a case of insurance of chattels, the policy passes with them 
 to the administrator or executor, and is available to the executor 
 for indemnity so long as they remain in his possession in trust, 
 unless the policy contains some provision to the contrary. But 
 in such cases it does not appear distinctly^ in the jurisprudence on 
 the subject, that the proceeds of the policy that come into the 
 hands of the executor as indemnity for a loss that happens after 
 the testator's decease, will be payable to a legatee, to whom an 
 interest in the chattel is bequeathed. There does not, however, 
 seem, to be any difficulty in making' such a disposition, since the 
 proceeds of the policy are received by the executor in his capacity 
 of trustee, the same in which he possesses the bequeathed chattel. 
 The cases above referred to, so far as their authority goes, would 
 justify the application of the fund in this way.^ 
 
 An insurance on buildings which survives the original assured, 
 presents difficulties in the way of an equitable disposition of the 
 amounts paid for losses happening after his decease, which the 
 judicial tribunals have generally considered to be insurmountable. 
 No legal tribunal seems to have laid down the doctrine, that the 
 transfer of real estate, by the decease of the assured, carries the 
 policy as incident to the estate, any more than a transfer during 
 his life would have that effect. On the contrary, what there is 
 of jurisprudence on this subject favors the doctrine that the in- 
 surance on real estate is a personal contract, and that the proceeds 
 of it, if any, go as personal property .^ 
 
 Where buildings were insured in a company, by the articles 
 of which the interest in policies was to survive to executors, 
 Lord Eldon remarked, " It is impossible to make the executor 
 trustee." ^ Equity, and the general principles governing insur- 
 ance, require a provision in policies upon the subject, or legisla- 
 tive interposition.* 
 
 does not pass under a bequest of the the chattels were lost by the same peril. 
 
 annuity. Hamilton v. Baldwin, 1 5 Beav. Held that the legatee had no interest in 
 
 232, 19Eng. L. &. Eq. 283. In Wyman the policy. 
 
 V. Wyman, 26 N. Y. 253, the insurance 2 Haxall's Ex'rsv. Shippen, 10 Leigh, 
 
 was held to be realty and to go to the Va. 437 ; Wyman v. Prosser, 36 Barb. 
 
 heirs subject to dower, &c. and not to N. Y. 368. 
 
 the administrator. 3 Mildmay v. Folgham, 3 Vea. jun. 
 
 1 Durrant v. Friend, 11 Eng. L. & 472. 
 
 Eq. 2. In this case the testator and 4 Fire policies frequently have pro-
 
 SECT. X.] ASSIGNMENT OF THE POLICY. 67 
 
 Where a court is not hindered by precedents from equitably 
 effectuating the intention of the testator in making a devise, or of 
 the law in prescribing the descent of real estates, such intention 
 seems to authorize and require the same disposition of the proceeds 
 of the policy as would have been made of the subject of it, in case 
 no provision in the will of the deceased indicates a different in- 
 tention. And the same rule seems to be equally applicable to 
 an outstanding claim for a loss, where a different intention is not 
 indicated by some act of the deceased during his life. The rule 
 is no more than equivalent to that of equity, that a fund directed 
 to be converted into real estate shall be treated as such. It is 
 merely holding that the substitute for a piece of real estate or for 
 a part of its value, shall be subject to the same disposition that 
 is made of the subject itself. 
 
 105. Wiether, in case of a fire policy having been assigned by 
 the mortgager to the mortgagee, and suit commenced and judg- 
 ment recovered for a loss in the name of the mortgager for the 
 benefit of the mortgagee, the payment of the debt by the mort- 
 gager, before the judgment is satisfied, is a constructive reassign- 
 ment of the policy and judgment to the mortgager ? It was 
 held in New York, that the payment of the debt to the mort- 
 gagee did not operate as a reassignment of the interest in the 
 policy, so as to put the mortgager in place of the mortgagee, and 
 entitle him to the benefit of the judgment, against the insurers, 
 for the loss.^ 
 
 It is so held on the ground that the assignment is equivalent 
 to the making of a new insurance by the mortgagee in his own 
 name, upon his own insurable interest, which is a sufficient basis 
 of an insurance made independently of the mortgager ; for the 
 circumstance that the name of the mortgager must be used in 
 the suit is mere matter of form in the remedy, w^hich is not 
 necessary if the assignment is assented to by the insurers. But 
 in most cases of such assignments, the premium is paid by the 
 mortgager, and the assignment of the policy, or the policy itself 
 is, in fact, made to the mortgagee in trust, to apply the proceeds 
 of the policy in repairing damage, or in payment of the debt ; and 
 
 visions relative to assignments, and i Traders' Ins. Co. v. Roberts, 9 
 notice thereof to the insurers, but not Wend. N. Y. 474. 
 respecting the payment of a loss to a 
 legatee or devisee.
 
 68 OP THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 in case of any express or implied understanding to this effect, 
 written or spoken, the mortgager would certainly be required to 
 account for and apply the proceeds of the policy accordingly, and 
 his liability so to do constitutes a sufficient insurable interest, 
 notwithstanding the payment of the debt by the mortgager or 
 any surety of his. The mere statement of the circumstances 
 would, in most cases, plainly import such a relation between the 
 parties to the mortgage and the policy, though nothing were 
 written or said directly upon the subject.^ 
 
 106. Where a policy is assigned by consent of the underwriters, 
 reserving "dSS. rights of set-off, the I'eservation applies to rights of 
 set-ofFof contracts or liabilities existing at the date of the assign- 
 ment.^ 
 
 107. A restriction in a policy, that it shall becoine void by 
 assignment without the consent of the underwriters, is not void, 
 but is to be strictly construed.^ 
 
 Accordingly, where a policy, containing this restriction, was 
 effected by an agent, expressed to be for a principal named, loss 
 payable to the agent, in whose hands it was left, subject to his 
 lien, it was held in Massachusetts, that the restriction was valid, 
 but that the policy was not made void and forfeited by an assign- 
 ment by the assured of the steamboat insured, and his other prop- 
 erty, including " all policies of insurance," to a trustee for the 
 benefit of his creditors, which was substantially the constituting 
 of an agency and a trust for the management of the property, 
 and applying the proceeds of the policy for the benefit of the 
 assured.* 
 
 Since a general assignment of property to a trustee, to be 
 managed for the benefit of the assured and his creditors, leaves 
 him to be still a party, and is to be favored by the law, and in 
 fact usually leaves the property to be still managed by the debtor 
 himself, so far as the assignee and creditors can avail of his ser- 
 vices for this purpose, and at the most is substantially only the 
 
 ^ In the case above cited, the court 3 Lazarus v. General Interest Ins. 
 
 remark that they do not say what would Co. 5 Pick. Mass. 76. 
 
 have been the elFect, had the mortgagee ^ Lazarus v. Commonwealth Ing. 
 
 assigned his judgment to the mortgager. Co. 5 Pick. Mass. 76 ; see also Lazarus 
 
 2 Wiggin V. Suffolk Ins. Co. 18 Pick, v. Commonwealth Ins. Co. 19 Pick. 
 
 Mass. 145; Waters v. Allen, 5 Ilill, Mass. 81. See also Brichta v. N. Y. 
 
 N. Y. 421. La Fayette Ins. Co. 2 Hall, N. Y. 372.
 
 SECT. XI.] ALTERATION AND CANCELLING OP THE POLICY. 69 
 
 appointment of an agent by the assured to manage the property 
 and apply its proceeds for him, as also those of the policy, it can- 
 not be presumed to be such an assignment as was contemplated 
 by the underwriters in providing the restriction, any more than a 
 transfer by will, on his decease, would be. 
 
 108. Tlie clause against assignment uiithout the consent of the 
 underwriters, does not jyr event the assured from making a valid 
 assignment of his claim upon the underwriters after a loss has 
 happened, and the risk has terminated, without such consent.^ 
 
 SECTION. XI. ALTERATION AND CANCELLING OF THE POLICY. 
 
 109. An alteration in the contract is commonly made by an 
 indorsement on the policy, signed by the insurers. A contract 
 varying the policy, or to cancel it, is as solemn an act as the con- 
 tract of insurance itself whether it be done by indorsement or by 
 a separate instrument.^ 
 
 110. Alterations duly inserted in a policy by the underwriters, 
 without any new signature, wull be valid if assented to by the 
 assured, though merely verbally.^ 
 
 Where it has been the practice of the company to execute 
 alterations by the secretary, this makes his act valid.^ 
 
 A mutual insurance company of which the assured is a mem- 
 ber, cannot, by any vote or regulation adopted subsequently to 
 the issuing of the policy, make any valid alteration of it without 
 the authority or consent of the assured. Such a company stands 
 upon the same footing in this respect as any other company, or 
 as individual underwriters.^ 
 
 1 Brichta v. N. Y. La Fayette Ins. subject to the equities between the orig- 
 Co. 2 Hall, N. Y. 372 ; Perry v. IMer- inal parties; Pupke v. Resolute F. Ins. 
 chants Ins. Co. 25 Ala. N. s. 355; Co. 17 Wise. 378. 
 Phillips V. Merrimack Ins. Co. 10 Cush. 2 Head v. Providence Ins. Co. 2 
 Mass. 350 ; Mellen v. Hamilton F. Ins. Cranch, 167 ; Kaines v. Knightly, Skinn. 
 Co. 17 N. Y. 609; Goit v. National 54; Robinson v. Tobin, 1 Stark. 336; 
 Protection Ins. Co. 25 Barb.N. Y. 189; Alauzet, n. 193. See Raines v. Wood- 
 Courtney V. New York Ins. Co. 28 fall, 6 C. B. n. s. 657. 
 Barb. N. Y. 116 ; Walters v. AVashing- 3 Warren v. Ocean Ins. Co. 16 Me. 
 ton Ins. Co. 1 Clarke, Iowa, 404 ; West 439. 
 Branch Ins. Co. v. Helfenstein, 40 Penn. 4 Jbid. 
 
 St. 289; Carter v. Humboldt Ins. Co. 5 Xew Eng. Mut. Fire Ins. Co. v. 
 
 12 Iowa, 287. Such an assignment is Butler, 34 Me. 451.
 
 70 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 111. And SO other underwriters may be substituted for the 
 original one, for any part or the whole of the amount insured, by 
 indorsement duly executed by the substituted underwriters, with 
 the verbal consent merely of the assured.^ 
 
 112. Striking- a pen across ivords ivithout obliterating them, 
 so as to make them illegible, and ivriting others in their stead, 
 with consent of the underwriters, is a cancelling of such words.^ 
 
 113. A material alteration of the policy by the assured, with- 
 out the consent of an underivriter, makes the policy void as to 
 such underivriter, though it is made without any fraudulent pur- 
 pose, but with the intent to obtain the underwriter's consent.*^ 
 
 The underwriter is not liable on the instrument executed by him, 
 which has thus been voluntarily cancelled, and not on the altered 
 instrument, since he is not a party to it. 
 
 But where divers underwriters subscribe the same policy, any 
 agreement by one of them in a separate instrument, without 
 erasure or additions in the policy itself, will not affect it in 
 respect to the others.^ 
 
 In a policy on a voyage " from Cuba to Liverpool," the assured 
 inserted " with leave to call off Jamaica," intending to get the 
 assent of the underwriters ; all of whom assented except one, in a 
 suit against whom, Dallas, C. J., Park, J., Burrows, J., and Rich- 
 ardson, J.j of the English Court of Common Pleas, held that the 
 policy was thus made void as against the defendant. Dallas, 
 C. J. : " It is clear that an alteration in a material fact will ren- 
 der an instrument void. In this case, the alteration, when made, 
 was material." ° 
 
 Lord EUenborough ruled in like manner in a similar case.^ 
 
 114. An immaterial cdteration, at least if honestly made, does 
 not annul the contract. 
 
 As where the assured inserted a clause giving a liberty, which 
 was authorized by the policy as originally executed, with the 
 
 1 Merry D. Prince, 2 Mass. 176. So 5; Laird v. Robertson, 4 Brown, Pari. 
 alterations may be indorsed. Driggs v. Cas. by Tonilin, 488. 
 
 The Albany Ins. Co. 10 Barb. N. Y. 4 Alauzet, n. 193, Vol. I. p. 360. 
 
 440. 5 Forshaw v. Chabert, 3 Brod. & B. 
 
 2 Fairlie v. Christie, 7 Taunt. 416. 158. 
 
 3 Masters v. Miller, 4 Term, 320; 6 Campbell v. Christie, 2 Stark. 64; 
 Sanderson v. McCulIom, 4 J. B. Moore, see also, to the same effect, Langhorn 
 
 V. Cologan, 4 Taunt. 330.
 
 SECT. XII. ] THE JUDICIAL COEEECTION OF MISTAKES. VI 
 
 intention of obtaining the consent of the underwriters to 
 it.i 
 
 115. Tlie alteration of the policy hy another person than the 
 assured, without his consent or privity, does not render it void? 
 
 SECTION XII. THE JUDICIAL CORRECTION OF MISTAKES. 
 
 116. If a mistake has occurred in framing the contract, to the 
 correction of luhicli the jwlicy itself affords no clew, it cannot he 
 corrected by a court of law^ which will only construe, and will 
 not reform the contract. The mistake can be corrected only by 
 the consent of the parties, or by a court of equity. 
 
 Thus it was held in New York, that a policy on "freight" 
 could not be ap|)lied, upon the strength of verbal testimony 
 merely, to any subject different from that to which, by its terms, 
 it appeared to be applicable.* 
 
 117. A court of chancery ivill, upon sufficient proof, correct a 
 mistake in filling up the policy I^ 
 
 Lord Chancellor Hardwicke says : " No doubt this court has 
 jurisdiction to relieve in regard to a plain mistake in contracts in 
 writing, as well as against frauds in contracts, so that if reduced 
 
 1 Sanderson v. Symonds, 1 Brod. & agreement that the policy should not 
 B. 426 ; Sanderson v. McCullom, 4 commence till the ship came to such a 
 Moore, 5. I am indebted to Judge P^ace. And it was held that the parol 
 Duer, for pointing out the error in stat- agreement should avoid the writing." 
 ing these two cases in my early editions. But Chief Justice Pemberton seems to 
 See also Falmouth v. Roberts, 5 Mees. have entertained a different opinion. 
 & W. Exch. 469. "Policies," he said, "were sacred things, 
 
 2 Langhorn v. Cologan, 4 Taunt, and a merchant should no more be al- 
 330; Nichols v. Johnson, 10 Conn, lowed to go from what he had subscribed 
 192. in them, than he that subscribes a bill 
 
 3 Cheriot u. Barker, 2 Johns. N. Y. of exchange." Kaines v. Knightly, 
 346 ; Constable t-. Noble, 2 Taunt. 403 ; Skinn. 54. 
 
 Manly V. United Mar. & Fire Ins. Co. * Mellen and Nesmith v. National 
 
 9 Mass. 85. In Bates v. Grabham, 2 Ins. Co. 1 Hall, N. Y. 452; and see 
 
 Salk. 444, Holt, C. J., cites, with appar- Chamberlin v. Harrod, 5 Me. 420. 
 
 ent approbation, a case which he says ^ Implied by Lord Eldon, 5 Bos. & 
 
 was decided in Chief Justice Pember- P- 322; Livingston, J., Graves i'. Mar. 
 
 ton's time. " An insurance was made Ins. Co. 2 Caines, N. Y. 339 ; and Wash- 
 
 from Archangel to the Downs, and from ington, J., Hogan v. Delaware Ins. Co. 
 
 thence to Leghorn, but there was a parol 1 Wash. C. C. 419.
 
 72 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 into writing contrary to the intent of the parties, on proper proof, 
 that would be rectified. But there ought to be the strongest proof 
 possible.^ 
 
 The Supreme Court of the United States assumes, very dis- 
 tinctly, that a court of equity may correct a mistake in a policy.'-^ 
 
 Mr. Justice Story says, on the same subject : ^ " There cannot 
 be any doubt that a court of equity has authority to reform a 
 contract, where there has been an omission of a material stipula- 
 tion by mistake. A policy of insurance is within this principle. 
 But a court ought to be extremely cautious in the exercise of 
 such an authority. It ought to withhold its aid where the 
 mistake is not made out by the clearest evidence." * 
 
 A case occurred in 1739, before Lord Hardwicke, on a policy 
 upon the ship Eyles, the risk being described to commence 
 "from" and immediately "after" her departure from Fort St. 
 George. In another part of the policy the risk was described to 
 be " at and from " that port. In the " label," signed by the 
 agent of the assured and two of the directors of the insurance 
 company, whereby the policy was agreed for, the risk was 
 described to be " at and from " Fort St. George. It was not 
 disputed by the insurers that it was the intention of both parties 
 that the policy should be so made. It seems also that the label 
 was considered of great authority in practice. One of the counsel 
 remarked, that " merchants rely so much upon the label, that the 
 policy is rarely made out, in many instances, unless in case of 
 loss." Lord Hardwicke decided that the policy should be con- 
 sidered to be " at and from." ^ In this case the policy itself 
 appears to have authorized such construction. It seems, how- 
 ever, to have been assumed that the court had authority to reform 
 it by the label. 
 
 A New York case supplies a precedent of the direct exercise 
 of the authority of a court of chancery in ordering a correction of 
 
 1 Henkle v. Royal Exch. Ass. Co. 4 Andrews r. Essex Fire & Mar. Ins. 
 1 Yez. sen. 317. Co. 3 Mas. C. C. 6. See also Delaware 
 
 2 Graves v. Boston Mar. lus. Co. 2 Ins. Co. v. Hogan, 2 Wash. C. C. 4 ; 
 Cranch, 441. See also Baker v. Paine, Bell v. Western Mar. & Fire Ins. Co. 
 1 Vez. sen. 456. 5 Rob. La. 423. 
 
 3 Lyman v. United Ins. Co. 2 Jobns. ^ Motteux v. London Ass. Co. 1 Atk. 
 Ch. N. Y. 630. Ch. 545.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 73 
 
 a mistake in filling up a policy, on the application of the assured, 
 the mistake being distinctly proved.^ 
 
 SECTION XIII. LEADING PRINCIPLES OF CONSTRUCTION. USAGE. 
 
 118. It is proposed to introduce in this place only such leading 
 doctrines on the construction of policies of insurance as seem to 
 be properly preliminary to the subsequent chapters.^ 
 
 119. The subject-matter of marine insurance and other written 
 mercantile contracts^ makes if necessary to go out of the written 
 instruments, in order to interpret them, more frequently than in 
 most other contracts. 
 
 It was early laid down as a rule, thatj in determining the 
 meaning of a policy, regard must be had to the course of the 
 trade to which it relates.^ 
 
 The mere description of a voyage or adventure for which the 
 insurance is made, includes the risks according to the usual mode 
 of pursuing it. 
 
 Thus a voyage from A to B may include, by implication, the 
 liberty of touching at C. 
 
 A " whaling voyage," by the import merely of that designation, 
 includes the liberty of touching at the usual places for supplies, 
 or other usual purposes of such a voyage, and also that of agree- 
 ing on a partnership, or " mateship," with other vessels.* 
 
 Accordingly, in marine policies a great many stipulations are 
 impliedly included in a few short phrases, which stipulations are 
 not obvious on the face of the instrument, except to persons 
 conversant in the trade referred to. 
 
 Hcn.ce a notion seems to have been entertained, that the prin- 
 ciples of construing this contract are not the same that are appli- 
 cable to others. It is said that " policies are to be construed 
 
 1 Phoenix Fire Ins. Co. v. Gurnee, 2 The subject of construction will 
 
 1 Paige, Ch. N. Y. 278. Sec also Col- again recur frequently, especially under 
 
 lett V. Morrison, 9 Hare, Ch. 162; 12 the head of Risks and Evidence. 
 
 Eng. L. & Eq. 171 ; Oliver v. Mutual 3 Lethulier's case, 2 Salk. 443, A. D. 
 
 Ins. Co. 2 Curt. C. C. 277 ; Union Ins. 1692. 
 
 Co. V. Commercial Ins. Co. ib. 524; 4 Child v. Sun Mutual Ins. Co. 3 
 
 Woodbury &c. Assoc, v. Charter Oak Sandf. N. Y. 26. 
 Ins. Co. 31 Conn. 517. 
 
 VOL. I. 7
 
 74 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 largely," ^ according to the intention of the parties, and for the 
 indemnity of the assured and the advancement of trade.^ 
 
 120. Tlie principles of construction are, however, the same in 
 regard to this, and all other contracts in writing; in which the 
 intention of the parties is ahvays to be sought for in the instrument 
 itself. 
 
 " If," says Emerigon, " the stipulations of the policy are clear 
 and contain nothing prohibited by law, the court is not permitted 
 to stray out of them." ^ 
 
 Lord Kenyon says : " It would be attended with great mischief 
 and inconvenience, if, in construing contracts of this kind, we 
 were not to decide according to the words used by the contracting 
 parties ; " * and Lord EUenborough, " that the same rule of con- 
 struction which applies to other instruments, applies equally to 
 this, namely, that it is to be construed according to the sense and 
 meaning, as collected in the first place from the terms used in it, 
 which terms are to be understood in their plain, ordinary, and 
 popular sense, unless they have generally, in respect to the 
 subject-matter, as by the known usage of trade, or the like, ac- 
 quired 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, be understood in some other 
 special and peculiar sense." ° 
 
 The principle of construing according to the intention applies 
 to other instruments as well as policies. " There are many cases 
 on the construction of bonds, where the letter of the condition has 
 been departed from, to carry into effect the intention of the par- 
 ties." ^ That policies of insurance are governed by the same laws 
 of construction as other written contracts, has been many times 
 decided directly or in effect.^ And though, in a written commer- 
 
 1 Lee, C. J., in Tierney v. Ethering- 6 Per Marshall, C. J., Cooke v. Gra- 
 ton, 1 Burr. 348, A. D. 1743. bam, 3 Cranch, 235. 
 
 2 Park, 49 ; Per Yates, J., 2 Binn. ^ Per Kent, J., Goix v. Low, 1 Johns. 
 373. And see Dow D. Whetten, 1 Hall, Cas. N. Y. 341; Per Livingston, J., 
 N. Y. 174. Mumford v. Hallet, 1 Johns. N. Y. 433 ; 
 
 3 Chap. 1, sect. v. § 1. and Marshall, C. J., Graves v. Boston 
 
 4 Aguilar v. Rodgers, 7 Term, 421. Mar. Ins. Co. 2 Cranch, 419. See also 
 
 5 Robertson v. French, 4 East, 135. Ilogan v. Delaware Ins Co. 1 AVash. C. 
 And see Illinois Mutual Ins. Co. v. C. 419; Sleght «. Rhinelander, 1 Johns. 
 O'Neile, 13 111. 89. N. Y. 192 ; S. C. in Error, 2 Johns.
 
 SECT. XIII.] LEADIxN'G PRINCIPLES OF CONSTRUCTION, 75 
 
 cial contract, it is necessary to go out of the instrument itself to 
 interpret it, more frequently than in most others, yet the instru- 
 ment, being understood, is conclusive of the rights and liabilities 
 of the parties ; and its provisions are not subject to be controlled 
 and superseded by preliminary negotiations, or communications, 
 or by verbal agreements.^ 
 
 121. The validity and construction of a policy of insurance, as 
 of other instruments, are governed by the laws of the place ivhere 
 it was made, and of the places to which it has reference in respect 
 to acts to be done under it. 
 
 A policy made by a mutual fire insurance company in New 
 York, on property in Ohio, on an application transmitted by 
 their agent in Ohio with the premium note, the policy being 
 transmitted directly to the assured, and not through the agent, 
 was held, in a suit on the premium note in New York, not to be 
 in contravention of a law of Ohio providing that " no policy 
 should be signed, issued, and delivered," in that State, by a 
 company not chartered by that State, or by an agent not licensed 
 there.2 
 
 122. A policy of insurance, or any other ivritten contract, 
 must be taken in the sense in which the parties respectively and 
 reciprocally ivere authorized to intend and understand it, and 
 no other construction can be put upon it by means of parol 
 testimony.^ 
 
 Thus, where a part-owner insures in his own name, and noth- 
 ing in the policy indicates the interest of another, it is not per- 
 mitted to apply the contract to the interest of another part- 
 owner, for whom he is not a trustee.* 
 
 The rule is the same in respect to the subject insured. A 
 
 N. Y. 531 ; and see also 2 Johns. N. Y. of the laws of the place where it is 
 
 861. made. See also St. John v. American 
 
 1 See Bell u. Western Mar. & Fire Ins. Co. 2 Du. N. Y. 419; Ruse v. 
 Ins. Co. 5 Rob. La. 423 ; Phoenix Fire Mutual, &c. Ins. Co. 23 N. Y. 51G. 
 Ins. Co. V. Gurnee, 1 Paige, Ch. N. Y. ^ Sheldon v. Hartford F. Ins. Co. 22 
 278; Eyre i\ Marine Ins. Co. 6 Whart. Conn. 235; Liddle v. Market, &c. Ins. 
 Penn. 247; Hutchinson v. Bowker, 5 Co. 4 Bosw. N. Y. 179. 
 
 Mees. & W. Exch. 542 ; 8 id. 823. < Finney v. Bedford Com. Ins. Co. 
 
 2 Hyde V. Goodnow, 5 N. Y. 266. 8 Mete. Mass. 348 ; Cookendorper r. 
 But though the thing agreed to be done Preston, 4 IIow. 317 ; United Statei 
 in another place be lawful there, the v. McDaniel, 7 Pet. 1. 
 
 contract will be void, if it be a violation
 
 76 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 policy on " fixtures " cannot be applied to movable furniture, 
 upon parol evidence of an intention that is should be so ap- 
 plied, ^ 
 
 Where a reinsurer agreed to " reinsure to a certain amount, 
 and make good all loss or damage " to an underwriter against 
 his risk on a fire policy, whereby a greater amount had been in- 
 sured by him, the court refused to admit testimony, that, accord- 
 ing to usage, the reinsurer was liable to make good only such 
 proportion of the loss as the amount reinsured bore to that 
 originally insured ; such evidence being contradictory to the in- 
 disputable sense of the policy of reinsurance.^ 
 
 A policy being on '' cofiee and other goods without exception, 
 either on board the J. S. or in store No. 37,*' &c., parol evidence 
 was held not to be admissible for the purpose of proving that 
 the policy was intended to be applicable only to such goods 
 in No. 37 as were not insured in a prior policy, on the ground 
 that such evidence would be contradictory to the written con- 
 tract.^ 
 
 123. A courts in selecting among different meanings of which 
 the phraseology is susceptible, will avoid such as are absurd or 
 lead to unreasonable or inconvenient consequences.^ 
 
 124. The predominant intention of the parties in a contract of 
 insurance is idemnity, and this intention is to be kept in view and 
 favored in putting a construction upon the policy. 
 
 125. In determining the construction of written instruments 
 consisting of a printed form, the blanks in which are filled in 
 manuscript, as is usual with policies of insurance, " the words 
 superadded in writing are entitled to have a greater effect at- 
 tributed to them than the printed ivords, and may supersede them, 
 inasmuch as the written words are the immediate language and 
 terms selected by the parties themselves for the expression of 
 their meaning."^ 
 
 1 Holmes v. Charlestovvn Mar. & Fire * Eyre v. Marine Ins. Co. 5 Watts 
 Ins. Co. 10 Mete. Mass. 211. & S. Penn. 116; and see 1 Greenleaf, 
 
 2 llone I'. Mutual Safety Ins. Co. 1 Ev. § 288 ; Emerigon, Ins. c. l,sect. vii. 
 Sandf. N. Y. 137; Mutual Safety Ins. §§3,4. 
 
 Co. V. Hone, 2 N. Y. 235. 5 Lord Ellenborougb, in Robertson 
 
 3 Stacey v. Franklin Fire Ins. Co. 2 v. French, 4 East, 130 ; Coster v. 
 Watts & S. Penn. 506 ; Mercantile Ins. Phoenix Ins. Co. 2 Wash. C. C. 51; 
 Co. r. State Ins. Co. 25 Barb. N.Y. 319. Wallace v. Insurance Co. 4 La. 289;
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 77 
 
 "As where the word 'ship' is written'in the margin of a 
 policy ; or ' freight,' or ' goods; ' the general terms of the policy, 
 applicable to other subjects besides the particular one mentioned 
 in the margin, are thereby considered as narrowed in point of 
 construction to that one." ^ 
 
 126. Extrinsic evidence may be introduced to explain ambigui- 
 ties and ivords and phrases of indeterminate meaning, in policies 
 of insurance, upon the same principles, and subject to the same 
 rules, that are applicable to other written contracts? 
 
 127. A written contract is presumed to take effect at its date, if 
 nothing to the contrary appears upon its face, but it may be proved 
 by the testimony of witnesses that it was delivered and took effect 
 on a day subsequent? 
 
 An instrument is of no force so long as it remains in the hands 
 of the obligor, and not actually or constructively delivered ; and 
 contracts are often, perhaps most frequently, so worded, as not to 
 be inconsistent with the fact of their delivery on a day different 
 from the date.* 
 
 128. So it may be proved aliunde, that a policy ivas executed on 
 a day subsequent to the date ivhich it bears? 
 
 129. In construing all written documents, and a policy of insur- 
 ance no less than others, the construction of particular parts may 
 be determined by the subject-matter of the writing. 
 
 Thus, where liberty was given to cruise six weeks. Lord Mans- 
 
 Delonguemere v. Tradesmen's Ins. Co. ton v. Greenwood, 4 Dougl. 28 ; Clark 
 2 Hall, N. Y. 589; Wall r. Howard Ins. v. Baker, 11 Mete. Mass. 586; Eaton 
 Co. 14 Barb. N. Y. 383 ; Moore v. Per- v. Smith, 20 Pick. Mass. 150 ; Emerigon 
 pctual Ins. Co. 16 Mo. 98; Leeds v. on Ins. c. 1, sect. vii. § 4. Instruments 
 Mechanics' Ins. Co. 8 N. Y. 351 ; Mobile are to be construed with reference to 
 Mar. Ins. Co. v. McMillan, 27 Ala. N. s. the " surrounding circumstances." His- 
 77 ; Bargett v. Orient Ins. Co. 3 Bosw. cocks v. Hiscocks, 5 Mees. & W. Excb. 
 N. Y. 385 ; Woodruff v. Commercial 363 ; Place v. Delegal, 6 id. 492 ; Lib- 
 Ins. Co. 2 Hilt. N. Y. 122 ; Phcenix Ins. erty Hall Ass. v. Ilousatonic Ins. Co. 7 
 Co. ih Taylor, 5 !Minn. 492; Benedict Gray, Mass. 261. 
 V. Ocean Ins. Co. 31 N. Y. 389. 3 Stone v. Bale, 3 Lev. 348 ; Lorent 
 
 1 4 East, 140. Sec also Robinson v. v. S. C. Ins. Co. 1 Nott & M'C. So. C. 
 Tobin, 1 Stark. S36 ; Marshall, Ins. by 505 ; Philadelphia L. Ins. Co. v. Ameri- 
 Condy, 304, 805 ; 1 Greenleaf, Ev. ed. can L. Ins. Co. 23 Penn. St. 65. 
 1842, p. 317, § 278. 4 See Jackson v. Bard, 4 Johns. N. 
 
 2 See 1 Greenleaf, Ev. §§ 287, 288; Y. 230. 
 
 Peisch V. Dixon, 1 Mas. C. C 10 ; Pres- 5 Hall v. Cazenove, 4 East, 477. 
 7*
 
 78 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 field ruled, merely in consideration of the subject-matter of the 
 policy, that this meant six consecutive weeks, without recurrence 
 to any testimony as to usage, or common understanding of this 
 language, as influencing the construction.^ 
 
 130. The literal and more obvious meaning of a clause may 
 be controlled by other parts of a policy or other written instru- 
 ment, taking the ivhole together^ or by other documents referred 
 to in it. 
 
 Thus, in an action on a policy " at and from London to all 
 ports and places on this side and on the other side of the Cape 
 of Good Hope, forwards and backwards at sea, at all times, on 
 all services, and in all ports and places, until the ship's arrival 
 back again at her last station of discharge at Blackwall or 
 Deptford, upon any kind of goods in the Brunswick, as interest 
 might appear, beginning the adventure upon said goods from 
 the loading thereof on board the said ship at London," Sir J. 
 Mansfield ruled, " that these words, though literally applying 
 only to goods laden in London, must be intended to apply to 
 any goods brought back to London, though they were not the 
 same goods." '^ 
 
 So, a fire policy, whereby a building was expressed to be 
 insured to the amount of seven eights of its value, referred to 
 the statute chartering the company by which it was issued, and 
 its by-laws, as governing its construction, both of which re- 
 stricted the amount to be insured to three fourths of the value 
 of the building insured, the policy was held to cover only that 
 proportion.^ 
 
 131. In construing a contract, a provision whereby an obliga- 
 tion is imposed by one party upon the other, is to be taken in the 
 sense in ivhich the other may fairly be supposed to have under- 
 stood it.^ 
 
 The underwriters in a fire policy inserted the condition follow- 
 ing, namely : " In case the assured shall make other insurance on 
 
 1 Syers v. Bridge, Dougl. 529. Ins. Co. 23 Penn. St. 262 ; ^Etna Ins. 
 
 2 Grant v. Delacour, 1 Taunt. 466, Co. v. Jackson, 16 B. Monr. Ky. 242; 
 474. Western Ins. Co. v. Cropper, 32 Penn. 
 
 3 Holmes v. Charlestown Fire Ins. St. 351 ; National Ins. Co. v. Crane, 16 
 Co. 10 Mete. Mass. 211. Md. 260; Franklin Ins. Co. v. Upde- 
 
 4 Sayles v. North Western Ins. Co. graff, 43 Penn. St. 350. 
 2 Curt. C. C. 610 ; Klett v. Delaware
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 79 
 
 the same property, and shall not, with all reasonable diligence, 
 give notice thereof to this company, and have the same indorsed 
 on this instrument, or otherwise acknowledged and approved by 
 them in writing, then this policy to cease and be of no effect." 
 The assured made other insurance and gave notice of it to the 
 company, whose secretary replied in writing acknowledging the 
 receipt of the notice. Bronson, J., for the court, said : " The 
 assured could not but understand from the answer, that the 
 notice — or the further insurance, if such be the true reading of 
 the clause — was ' acknowledged and approved,' and that noth- . 
 ing further remained to be done." And accordingly it was held 
 that the condition had been complied with on the part of the 
 assured.^ 
 
 Exceptions of risk are to be taken most strongly against the 
 insurer for whose benefit they are intended.^ 
 
 132. Tlie construction of written instruments is subject to be 
 affected by usa^e? 
 
 133. The usages of the trade ^ as already mentioned, are ex- 
 pressly included in the policy, since the naming or describing of 
 a voyage or other risks comprehends the usages incidental to it^ 
 So the practice of any trade is binding upon those who employ 
 a tradesman.^ 
 
 " Evidence of usage is received," says Mr. Justice Thompson, 
 " for the sake of ascertaining the sense of the parties by their 
 
 1 Potter i\ Ontario & Liv. Mut. Ins. 13 Pick. Mass. 175 ; Harris v. Nichols, 
 Co. 5 Hill, N. Y. 147; and see 1 Duer, 5 Munf. Va. 483; Wigglesworlh v. 
 Mar. Ins. 200. P«ctionem obscuram iis Dallison, 1 Dougl. 190; Louisiana Mut. 
 nocere in quorum fuit potestate legem Ins. Co. v. N. O. Ins. Co. 13 La. Ann. 
 apertius conscrlbere. Dig. 1. 2, t. 14. 246. 
 
 And see 1 Greenleaf, Ev. 282. * Mason v. Skurrey, Park, Ins. 191 ; 
 
 2 Biachett v. Royal Exch. Ass. Co. Col. Ins. Co. v. Catlett, 12 Wheat. 383; 
 2 Crompt. & J. Exch. 244. See also Noble i;. Kennoway, 1 Dou<'l. 492; 
 Palmer v. Warren Ins. Co. 1 Stor. C. Caldwell v. St. Louis Perpetual Ins. 
 C. 360 ; Donnell t;. Col. Ins. Co. 2 Co. 1 Rob. La. 85 ; Mobile Mar. Ins. 
 Sumn. C. C. 366; Bullen v. Denning, Co. v. McMillan, 27 Ala. x. s. 77. 
 
 6 Barncw. & C. 842; The Earl of ^ SavilU. Barchard, 4 Esp. 53. So 
 
 Cardigan v. Annitage, 2 Barnew. & C. also of any transaction implicated in the 
 
 197 ; Grant v. Lexington Ins. Co. 5 contract. Cookendorfer v. Preston, 4 
 
 Ind. 23. How. 317, as to demand and notice on 
 
 3 See cases infra. Also 1 Greenleaf, a note. The doctrine is a familar one 
 Ev. § 292 ; also Macomber v. Parker, in jurisprudence.
 
 80 OP THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 contract made with reference to such usage, for the custom then 
 becomes part of the contract." ^ 
 
 Mr. Justice Sewall says, that, in giving a construction to poli- 
 cies, "there is more than an ordinary reference to established 
 usages, and those, when ascertained and found suitable applica- 
 tions of general principles, or not inconsistent with them, or with 
 the tenor of the contract, are considered as authoritative upon the 
 parties." ^ And for this reason the contract of insurance is said 
 to have a liberal construction.^ 
 
 " In all matters of trade," says Mr. Justice Buller, " usage is a 
 sacred thing,* and in policies of insurance, in particular, a great 
 latitude of construction, as to usage, has been admitted ; " and 
 he even says, that usage not only explains, but also controls the 
 policy," which is true, if " to control " means to interpret the 
 policy, and give a meaning to it different from that imported by 
 the language in its more ordinary acceptation. The common 
 dictionaries are resorted to for the ordinary meaning of words 
 and phrases, and a technical dictionary for the meaning in some 
 art or trade, and the usage of such art or trade is proved by oral 
 testimony for the same purpose. The evidence of usage is in- 
 troduced to show what is the ordinary, meaning of the phraseol- 
 ogy in reference to the subject-matter in a particular district and 
 between parties in like circumstances. There is no peculiar 
 sacredness of usage in respect of commercial contracts. The 
 term " control," in this application, is likely to convey an er- 
 roneous meaning ; and such erroneous meaning was obviously 
 intended by Mr. Justice Buller, if he used the phraseology re- 
 ported, for it contrasts " to control " with " to explain," whereas 
 the doctrine on the subject is, that such extraneous evidence can 
 be introduced for no other purpose than to explain what is writ- 
 ten. Evidence of usage cannot be admitted, to control what 
 is written, in contrast with explaining it, since courts not unfre- 
 quently pronounce the meaning of the parties to be so plain, on 
 the face of the instrument, as to exclude all evidence to the con- 
 
 ^ Renner i'. Bank of Columbia, 9 3 Coggeshall r. American Ins. Co. 3 
 
 Wheat. 581. See 2 Salk. 443 ; 2 Dougl. Wend. N. Y. 283. 
 
 610; 1 Ves. sen. 457; 7 Cow. N. Y. < Newman v. Cazalet, Park, 630. 
 
 202; 3 Starkie, Ev. 1034. 5 Long v. Allen, Park, Ins. 589; 
 
 2 Clark V. United Marine & Fire Ins. Marshall, Ins. 2d ed. 660 ; 4 Dougl. 
 
 Co. 7 Mass. 365. 276.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 81 
 
 trary. Therefore, judges often say that evidence aliunde is ad- 
 missible in certain cases " to explain," but they do not say it is 
 so " to control," what is written.^ 
 
 " I know of no rule better established," says Mr. Justice Kent, 
 "than that parole evidence shall not be admitted to disannul or 
 substantially vary, or extend, a written instrument." ^ 
 
 A general usage may he superseded by a local one? 
 
 134. A usage, in order to affect the parties to a contract, must 
 be conformable to laiu. " The usage of no class of citizens can 
 be sustained in opposition to the principles of law." * 
 
 135. A usage, in order to affect a contract, must be definite, and 
 brought home to the knotvledge of the party to be affected ; or 
 from its being well known, or from the particular circumstances, 
 there must be ground to presume that he had tiotice of it, or that 
 it ivas his concern to inform himself of it, and not the duty of the 
 other party to inform him.^ 
 
 136. A usage, in order to its being obligatory, must be reason- 
 able,^ for the courts will not hold parties to be bound by futile or 
 absurd practices, however uniform and well known, 
 
 137. A usage, in order to its affecting the parties to a policy, 
 must appear to be applicable to insurance. 
 
 It was proved to have been usual, in the transportation on 
 
 1 So per Story In the Reeside, 2 a usage for the master to sell the cargo, 
 Sutnn. C. C 567. without necessity for so doing, would be 
 
 2 New York Ins. Co. v. Thomas, 3 an illegal one. See also Ougier v. Jen- 
 Johns. Cas. N. Y. 1. See also Mum- nings, 1 Campb. 505, n. ; Barney v. 
 ford V. Hallett, 1 Johns. N. Y. 433; CoOln, 3 Pick. Mass. 115; McGregor 
 Cheriot v. Barker, 2 Johns. N. Y. 44C ; v. Ins. Co. of Tenn. 1 Wash. C. C 39; 
 Hogan V. Delaware Ins. Co. 1 ^Vash. C. Eyre r. Marine Ins. Co. 6 Whart. Penn. 
 C. 419; 2 id. 4; Vandervoort u. Smith, 249; S. C. 5 Watts & S. Penn. 116; 
 2 Gaines, N. Y. 155; Iligginson v. Dall. Robertson v. Western Fire & Mar. Ins. 
 13 Mass. 96; Hall v. Janson, 4 Ell. & Co. 19 La. 227. 
 
 B. 500; 29 Eng. L. & Eq. Ill; Orient » Rogers v. Mechanics' Ins. Co. 1 
 
 Ins. Co. V. Wright, 1 Wall. 456 ; Ma- Stor. C. C 603 ; Leach v. Perkins, 17 
 
 comber v. Parker, 13 Pick. Mass. 175 ; Me. 462 ; Smetz c. Kennedy, Ril. So. C. 
 
 Stoever v. Whatman, 6 Binn. Penn. 218; Ilermamn s;. AVestern F. & Mar. 
 
 416. Ins. Co. 15 La. 517. 
 
 3 Baltimore Merchants' Ins. Co. v. 6 Per Shaw, C. J., Macy v. AVhaling 
 Wilson, 2 Md. 217. Ins. Co. 9 Mete. Mass. 354 ; Leach v. 
 
 4 Homer r. Dorr, 10 Mass. 26. Sec Perkins, 1 7 Me. 462 ; Crofts v. Marshall, 
 Byrant i;. Commonwealth Ins. Co. 6 7 Carr. & P. 59 7 ; Seccomb t;. Provincial 
 Pick. Mass. 131, where it was held that Ins. Co. 10 All. Mass. 305.
 
 82 OF THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 the route for which an insurance on cargo was made, to carry 
 articles of the same kind on deck, but this was held not to 
 affect the liability of the insurers, it being shown that the ship- 
 owner was liable in practice for a loss of the goods so carried. 
 That is, the usage though proved did not extend to the liability 
 of the insurers.^ 
 
 So under a policy on " copper" from New York to Taunton, a 
 part of which was carried on deck and a part in the hold, it was 
 proved to be customary to carry the article on deck, but the in- 
 surers were held not to be liable for the loss of the part so car- 
 ried, as the case itself showed it not to be the uniform practice 
 to carry it on deck, and the usage proved was accordingly held 
 not to be applicable, for the purpose of affecting the liability of 
 the underwriters.^ 
 
 But where the usage for an article to be on deck is uniform, 
 or it is invariably on deck under given circumstances, the policy 
 will be subject to the usage. 
 
 Thus, under a policy upon " catchings " in a whaling voyage, 
 it was proved to be a general and uniform usage to retain the 
 " blubber " on deck, while the oil was being tried out, and 
 Judge Story ruled that upon such usage the underwriters were 
 liable for a loss upon the " catchings," while in this state, on 
 deck.^ 
 
 It was remarked in one of the above cases,* that it had not 
 been proved that insurers had ever paid any loss on the article in 
 question, namely, copper, carried upon deck on the same passage. 
 But such evidence could not have been necessary to fix the liabil- 
 ity upon the underwriters, for if a uniform usage to stow the 
 article on deck, had been proved, the insurers would have been 
 responsible, upon the ordinary rule as to usage.^ 
 
 In a Louisiana case, on the question as to a usage for freight 
 
 1 Gould V. Oliver, 2 Mann. & G. 208, it was proved to be usual to carry 
 208 ; S. C. 4 Bingh. n. c. 134. a part of a full cargo of lumber on deck 
 
 2 Taunton Copper Co. v. Merchants' on board of vessels laden at Quebec 
 Ins. Co. 22 Pick. Mass. 108. for Europe, but that it was also the 
 
 3 Rogers v. Mechanics' Ins. Co. 1 practice for the owner of the ship to be 
 Stor. C. C. 603. answerable to the shipper for any part 
 
 * Taunton Copper Co. r. Merchants' of the deck-load washed overboard or 
 Ins. Co. 22 Pick. Mass. 108. jettisoned. 
 
 5 In Gould i;. Oliver, 2 Mann. & G.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 83 
 
 and passenger steamboats, on their passages on the Mississippi, 
 to take vessels in tow, it was proved that steamboats did take 
 vessels in tow, but it does not appear that it was proved under 
 what particular circumstances this was done, nor that it was 
 uniformly done in the circumstances of the case before the court; 
 it was held that no usage was proved whereby the underwriters 
 were affected, or, in other words, that no such usage of that nav- 
 igation was shown. Mr. Justice Slidel, in giving the opinion of 
 the court, laid stress upon the fact that no evidence was given 
 that a loss consequent upon such towing had been paid by under- 
 writers, or any such usage recognized by them.^ 
 
 In this case, as well as that in Massachusetts above cited, the 
 evidence of usage was insufficient, and the defect might have 
 been supplied by further evidence of a practice to settle losses by 
 reason of, or notwithstanding, such towing. But this would by 
 no means show that such acquiescence or recognition on the part 
 of underwriters was necessary in order to establish a usage of the 
 navigation and fix a liability upon them. 
 
 138. No particular period is requisite to the establishment of a 
 usage so as to affect contracts. The period during ivhich it has 
 existed, is one of the grounds of a conclusive presumption of its 
 being knoicn to parties. 
 
 " The true test of a usage," say the Supreme Court of New 
 York, " is its having existed a sufficient length of time to have 
 become generally known." ^ 
 
 To make a usage obligatory on the parties, " it should," says 
 Mr. Justice Story, " be so well settled, that persons engaged in a 
 trade must be considered as contracting with reference to it." ^ 
 
 "Where a trade had existed and been carried on in the same 
 manner for three years, and another similar trade had been carried 
 on in the same manner for many years, it was held to constitute a 
 usage. And Lord Mansfield said, " It is no matter if the usage 
 has only been for a year." ^ 
 
 That is, it is not indispensably requisite that the usage should 
 
 1 Hermann v. Western Fire & Mar. 3 Trott v. Wood, 1 Gall. C. C. 
 Ins. Co. 1.5 La. 517. 443. 
 
 2 Smith V. Wright, 1 Caines, N. Y. ■* Noble v. Kennoway, 1 Doiigl. 510. 
 45. See also Renner v. The Bank of See also Bentaloe v. Pratt, Wall. C. C. 
 Columbia, 9 Wheat. 581, opinion of 64. See also Winsor v. Dillaway, 4 
 Thompson, J. Mete. Mass. 223.
 
 84 OF THE CONTRACT OF INSURANCE. [CHAP, I. 
 
 have existed more than a year, and if it has existed for that time, 
 it will not therefore necessarily affect all persons ; for one usage 
 may obtain more publicity in a year than another in five or ten 
 years. So a trade may have been carried on but for a year, and 
 during the whole of that time have been carried on in the same 
 way, and therefore an insurance, or any contract relating to it, 
 will, of itself, import that it is conducted in that manner; more 
 especially when another similar trade, as in the case before Lord 
 Mansfield above referred to, has been so conducted for many 
 years. 
 
 139. Occasional instances ivill not constitute a usage of which 
 parties are presumed to have notice. 
 
 That vessels on a voyage from Liverpool to Jamaica sometimes 
 stopped at the Isle of Man was considered as not constituting a 
 usage so to do. ^ 
 
 140. A usage may be local and confined to the particular place 
 ivhere a contract is made, or may he coextensive with a district or 
 territory, or he general in respect to the subject-matter. 
 
 Mr. Justice Story says, that "the usage or custom of a partic- 
 ular port, in a particular trade, is not such a custom as the law 
 contemplates to limit or control or qualify the construction of 
 contracts of insurance. It must be some known general usage or 
 custom in the trade, applicable and applied to all the ports of the 
 State where it exists, and from its character and extent so notori- 
 ous, that all contracts of insurance in that trade must be presumed 
 to be entered into by the parties with reference to it as a part of 
 the policy." 2 
 
 But the fact that a usage extends, or does not extend, through- 
 out a State, cannot be a material test. The uniform prevalence 
 of a usage, and its being notorious throughout extensive parts of 
 two States, might be as good ground for imputing a knowledge 
 of it to a party, as prevalence throughout a State. The judge 
 probably had in mind voyages between ports that were at a great 
 distance from each other. But voyages between neighboring 
 ports may establish a usage of their trade so far as parties could 
 
 1 ]\Iarsball, Ins. 186 ; Salisbury v. ern Fire & Mar. Ins. Co. 15 La. 
 
 Townson, Millar, Ins. 418; Taunton 517. 
 
 Copper Co. v. Merchants' Ins. Co. 22 2 Rogers v. Mechanics' Ins. Co. 1 
 
 Pick. Mass. 108; Hermann v. West- Stor. C. C. 603.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 85 
 
 be presumed to have notice of it ; still the question may arise, 
 how far, and under what circumstances, persons not concerned in 
 such trade shall be presumed to have notice of it. 
 
 The usage of a single institution, as a bank, may affect a per- 
 son who does business at the same, where he has notice, or there 
 is ground of a presumption that he has notice of it.^ A knowl- 
 edge of the usage of the East India Company is imputed to the 
 owners of ships chartered by that company.^ 
 
 So a knowledge of the usages of a public office, where individ- 
 ual insurers are in the practice of underwriting, is imputed to 
 those who are in the habit of transacting business at such office.^ 
 
 Even the practice of an individual may have the effect of a 
 usage in respect of those doing business with him at his place of 
 business, and who can be considered to be bound, under the cir- 
 cumstances, to take notice of his practice.* 
 
 In a case betv/een a plaintiff resident at Plymouth, in England, 
 and an underwriter at Lloyd's, in London, Lord Tenterden, speak- 
 ing of a usage at Lloyd's, said : " The usage in a particular place, 
 or of a particular class of persons, cannot be binding upon other 
 persons, unless the other persons are actually acquainted with the 
 usage and adopt it. Merchants residing in London, and making 
 insurances there, may reasonably be supposed to be acquainted 
 with that usage and to act upon it. But there is nothing in the 
 case to raise such a presumption against the present plaintiff." 
 And the other judges concurred in this opinion.^ 
 
 It appears, therefore, that the territorial extent of a usage, and 
 the number of persons who observe it, are grounds of inference, 
 that those having transactions in a business or trade, are apprised 
 of it, but not the only evidence, for the fact of its being known 
 
 1 City Bank v. Cutter, 3 Pick. Mass. 4 Loring v. Gurney, 5 Pick. Mass. 
 414. See also Salvador v. Hopkins, 15. 
 
 3 Burr. 1707; Gregory v. Christie, 3 5 Bartlett v. Pentland, 10 Barnew. & 
 
 Dougl. 419; Farqubarson v. Hunter, C. 760; S. C. I Lloyd & W. Cas. 235. 
 
 Park, Ins. 84 ; Grant v. Paxton, 1 See also Russell v. Bangley, 4 Barnew. 
 
 Taunt. 463. & Aid. 39.5. See also Gabay v. Lloyd, 
 
 2 Grant v. Delacour, 1 Taunt. 4GG. 3 Barnew. & C. 793; S. C. 5 Dowl. & 
 
 3 Gabay i'. Lloyd, 3 Barnew. & C. K. 6-11 ; also Lawrence v. Abordein, 5 
 763 ; and 5 Dowl. & R. 641 ; Ougier v. Barnew. & Aid. 107 ; and Scott v. Erv- 
 Jennings, 1 Canipb. 505, n., relating to ing, 1 id. 605. 
 
 the usage at Lloyd's. 
 
 VOL. I. 8
 
 86 OP THE -CONTRACT OF INSURANCE. [CHAP. I. 
 
 to a party, or any grounds of presumption that it is so, may be 
 proved.^ 
 
 141. It follows from the fact that a usage may be local, that 
 contracting parties are not bound by the usages of other places than 
 that ivhere the contract is made, or to which it has reference. 
 
 The construction of a fire policy on a vessel that was being 
 built in Baltimore, was held not to be subject to the usages of 
 other ports of the United States.^ 
 
 A policy underwritten in New York on a Rhode Island ship 
 and cargo, for a whaling voyage in the Pacific, was held not to 
 be governed by the usage of Nantucket as to similar voyages.^ 
 
 142. Common words and phrases in contracts are presumed to 
 be used in their ordinary meaning.'^ 
 
 Where it is suggested that a common ivord or phrase of the 
 vernacular language has, in a contract, the peculiar meaning of 
 some science, art, or business, though the meaning must, in such 
 case, as in others, be determined by usage, yet as local and pecul- 
 iar usages are not presumed to be known to the courts, they may 
 be proved by extrinsic evidence, upon the same principle on which 
 the contract is, in other respects, affected by usages to which it 
 has explicit or implied reference. 
 
 143. So also, if a ivord or phrase is used not belonging to the 
 common vernacular language, its meaning must be determined by 
 evidence introduced for the purpose.^ 
 
 144. Jurisprudence abounds in illustrations of the meaning of 
 wc;ds and phrases used in contracts being determined by evi- 
 dence of usage. 
 
 Where the assured undertook that his vessel should have a sea- 
 letter on board ; to ascertain what the parties meant, or must be 
 
 1 Bartlett v. Pentland, 10 Barnew. & 5 1 Powell on Contracts, 403 ; 1 Term, 
 C. 760; Russell t;. Bangley, 4 Barnew. 701; 2 Term, 436; 3 Terra, 525; 2 
 & Aid. 395 ; Scott v. Irving, 1 id. 605. Maule & S. 363 ; 5 Barnew. & Aid. 
 
 2 Mason j;. Franklin Fire Ins. Co. 12 416; 8 Barnew. & C. 575; Eaton v. 
 Gill & J. Md. 468. See also Gabay v. Smith, 20 Pick. Mass. 150; Finney v. 
 Lloyd, 3 Barnew. & C. 763, and other Bedford Com. Ins. Co. 8 Mete. Mass. 
 cases, supra, No. 140. 348 ; Hone v. Mutual Safety Ins. Co. 
 
 3 Child V. Sun Mut. Ins. Co. 3 Sandf. 1 Sandf. N. Y. 137. See also 1 Green- 
 N. Y. 26. leaf, Ev. c. 15, where the admissibility 
 
 4 Terms of trade are presumed to be of parol evidence to determine the con 
 used in the meaning of the trade. Wall struction of writings is, as is usual with 
 V. Howard Ins. Co. 14 Barb. N. Y. the author, treated learnedly, lucidly, 
 383, and with succinct accuracy.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 87 
 
 supposed to have meant, by a " sea-letter," it was necessary to 
 resort to the public statutes and treaties, or the common usage 
 among men of business.^ 
 
 Where a policy provided that no other than a total loss should 
 be paid on " roots" and a loss which was not total happened on 
 a quantity of sarsaparilla, the court was of opinion that it should 
 be paid notwithstanding it came literally within the exception, it 
 being shown that the provision was introduced in reference to 
 trade, principally from Connecticut to the West Indies, in '•' beets " 
 and other garden roots, which were green and perishable, whereas 
 the sarsaparilla, being a dry, hard root, is less liable to decay, 
 from its internal qualities, than merchandise in general, and had 
 never been considered, in practice, as one of the articles excepted 
 in the policy.^ 
 
 A question arose under the exception of partial loss on " corw," 
 whether " rice " was comprehended in that term, and Sir James 
 Mansfield said, that no one reading the policy would be apprised 
 that rice was intended ; yet, " if a clear usage to the contrary 
 were shown," rice might be considered as comprehended in the 
 word " corn." ^ 
 
 In a policy on "/i//-5," that word was held to be applicable to 
 bears' skins, and those of various other descriptions, being of a 
 kind chiefly valuable as furs, and it was held also, that, upon the 
 same principle, the ordinary sense of the word, " skins " would be 
 
 1 Sleght I'. Ilhinelander, 1 Johns, parties, sarsaparilla is not a root. The 
 N. Y. 192 ; Sleglit v. Ilartsliorne, 2 id. court was probably prevented from re- 
 531. sorting to the subsequent words, out of 
 
 2 Coit I'. Commercial Ins. Co. 7 Johns, respect to one of its former decisions, 
 N. Y. 385. The memorandum in this namely. Barker v. Ludlow, 2 Johns, 
 policy was, that " roots and all other Cas. N. Y. 289, in which it is said that 
 articles perishable in their own na- the " subsequent words are not appli- 
 ture," should be free from average un- cable to the articles previously enumer- 
 less general, and it would not seem to ated, nor can they repel the implication 
 be a forced construction to qualify the arising from the enumeration of them." 
 term " roots " by reference to the other The Commercial Ins. Co. of Charleston, 
 subjects of the memorandum, and -re- S. C, excludes the question made in the 
 strain it to such roots as are perishable above case, by e.xcepting from particu- 
 in their own nature. This would avoid lar average " sarsaparilla and other 
 the seemingly great latitude of construe- roots." 
 
 tion in allowing a party to prove by 3 Scott v. Bourdillion, 5 Bos. & P. 
 oral testimony, that, as between the 213.
 
 88 OF THE CONTRACT OF INSURANCE. [CHAP. I. 
 
 excluded in construing such a policy ; and, though it expressly- 
 exonerated the underwriters from particular average on " skins," 
 yet they might be, notwithstanding, liable for a particular average 
 on skins, valuable chiefly as furs,^ 
 
 It was ruled by Abbott, C. J., that, " cotton in hales " may be 
 proved to mean, in trade between Liverpool and Alexandria, in 
 " pressed " bales.^ 
 
 In a policy upon a ship and its furniture, the term '■'■furniture " 
 was held, by virtue of usage, to include the provisions.^ 
 
 K policy being on a vessel for twelve months, "with liberty of 
 the globe, and, if at sea at the expiration of twelve months, to 
 continue till arrival at her port of destination in the United States," 
 it was held in Pennsylvania, that according to usage, this was a 
 trading voyage, and the phraseology was well understood to mean, 
 not that the vessel was, at the end of the twelve months, to be 
 destined directly to the United States, but that it might then be 
 destined and would be covered on a voyage to any foreign port 
 whatsoever.* 
 
 Under the bill of lading to deliver goods, " the dangers of the 
 seas excepted^'' the ship-owner is liable only for loss by fault of 
 the master and mariners.^ 
 
 In deciding on the meaning of "-free from average^'' Lord 
 Mansfield referred to the usage which had prevailed in adjusting 
 losses as a ground of construction.^ 
 
 So a policy on " outfits " of a whaling voyage was held to be 
 applicable to one quarter of the catchings, on proof of a usage to 
 that effect in New Bedford, where the vessel belonged and the 
 policy was made.''' 
 
 So a policy on a " ivhaling voyage " was held in New York, by 
 virtue of usage, to be applicable to the taking of sea-elephants.^ 
 
 So, under a policy upon " cargo," common usage must deter- 
 mine the application of this term.^ 
 
 1 Astor V. Union Ins. Co. 7 Cow. 6 Mason v. Skurray, Marshall, Ins. 
 N. Y. 202. 226. 
 
 2 Taylor v. Briggs, 2 Carr. & P. 525. 7 Macy v. Whaling Ins. Co. 9 Mete. 
 
 3 Brough V. Whitmore, 4 Term, 206. Mass. 354. 
 
 4 Eyre v. Marine Ins. Co. 5 Watts 8 Child v. Sun Mutual Ins. Co. 3 
 & S. Penn. 116 ; S. C. 6 Whart. Penn. Sandf. N. Y. 26. 
 
 247. 9 Houghton v. Gilbert, 7 Carr. & P. 
 
 5 The Schooner Reeside, 2 Sumn. 701. In this case Mr. C. J. Tindal 
 C. C. 567. stopped the counsel, who was about to
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 
 
 89 
 
 Insurance was made from New York to Batavia and back, 
 " on goods out and the proceeds thereof home." The assured 
 proposed to prove, that, according to commercial usage, the term 
 " proceeds " would apply to, and cover, the same goods on the 
 return voyage. This testimony was rejected in the Supreme 
 Court, on the ground that it was inconsistent with the language 
 of the policy. In the Court of Errors, seventeen senators were 
 of opinion that evidence of such a usage was admissible, and five 
 of a contrary opinion ; the decision accordingly being that it was 
 admissible.^ 
 
 So the word " thousand" used in a lease in reference to rabbits, 
 may be proved to mean, in the place where the leased premises 
 are situated, twelve hundred.^ 
 
 So a ^^ pocket of hops, ''^ has been proved to mean one hundred 
 weight.'^ 
 
 Under a policy on freight from Van Dieman's Land " to port 
 or ports of lading in India, and the Indian Islands,'' the vessel 
 took in a cargo at Mauritius, and the question arose whether 
 this was an " Indian " island. In geographical divisions, it is an 
 African island, but the court held, that if, in commercial language, 
 it was considered an " Indian " island, it would be within the 
 voyage described in the policy. That is, the words of the policy 
 must receive the construction given them by commercial usage.* 
 
 Where the policy stipulated for payment ninety days after 
 proof and adjustment of the loss, evidence of the meaning of 
 "/?roo/," according to usage, was admitted. It was objected that 
 the policy has implicit reference to, and in its construction only 
 comprehends, usages of "trade;" but this objection was not 
 considered by the court to be well made.^ 
 
 Insurance being made " from London to any port in the Bal- 
 tic,'' the vessel sailed for Revel, in the Gulf of Finland, a distinct 
 
 road the definition in a dictionary, 2 Smith v. Wilson, 3 Barnew. & Ad. 
 
 (Entick's,) saying it must be left to the 728. 
 
 knowledge of the jury. But if the 3 Spicer v. Cooper, 1 Q. B. 424. 
 
 question were respecting an ancient ^ Robertson v. Clark, 1 Bingh. 445 ; 
 
 usage, contemporary dictionaries and 8 Moore, 622. See Seccorab v. Provin- 
 
 other books would be resorted to neces- cial Ins. Co. 10 All. Mass. 305. 
 
 sarily. 5 AUegre's Adm'rs u. Maryland Ins, 
 
 1 Dow V. Whetton, 8 Wend. N. Y. Co. 6 Harr. & J. Md. 408. 
 160. 
 
 8*
 
 90 OP THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 sea from the Baltic, according to geographers, but as it was com- 
 prehended in the Baltic, in commercial language, the court gave 
 this extent to the term in the policy.^ 
 
 Where a policy was "at and from Amelia Island^'' and the 
 vessel loaded at Tigre Island, it being customary for vessels nom- 
 inally bound to and from Amelia Island to discharge and load 
 there, the court held, that taking a cargo on board at Tigre 
 Island, and sailing from there, satisfied the terms of the policy ; ^ 
 for, this being the voyage usually made by vessels said to sail 
 from Amelia Island, must have been the voyage intended in the 
 policy. 
 
 The construction of the policy was affected by usage, in a case 
 where the shipper was to pay for demurrage, unless the cargo 
 should be discharged within fourteen days. Lord Eldon said, 
 " If it were left to the construction of law, he should be of opinion 
 that holidays were to be included, but if the fact was clearly made 
 out that the fourteen days meant working days," according to 
 usage and common acceptation, the contract should receive that 
 construction.^ 
 
 Goods being insured to Bordeaux, with an agreement not to 
 abandon if the ship should be " turned away,^^ the vessel was for- 
 bidden by the French government to enter the Garonne ; and it 
 being agreed by the parties, with the acquiescence of the court, 
 that, by the common understanding, the turning away contem- 
 plated by the parties was a turning away by blockade, the court 
 did not consider the ship to be " turned away " within the mean- 
 ing of the policy.* 
 
 Goods insured at and from Lyme, were put on board of the 
 vessel at Bridport harbor, a member of the port of Lyme, about 
 nine miles distant from that place. The court said, if the as- 
 sured could prove any usage for vessels to load at Bridport, 
 under a policy from Lyme, it might make the insurance good. 
 No such usage could, however, be proved.^ 
 
 In the case of a policy " from New York to the port of Sisal" 
 there being no " port," in the proper sense of the word, belonging 
 to Sisal, as it has no harbor or haven where ships may lie in 
 
 1 Ubde V. Walters, 3 Campb. 16. 4 Speyer v. New York Ins. Co. 3 
 
 2 Moxon V. Atkins, 3 Campb. 200. Johns. N. Y. 88. 
 
 3 Cockran v. Retberg, 3 Esp. 121. 5 Constable v. Noble, 2 Taunt. 403.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 91 
 
 safety, but they lie off in an open roadstead while discharging 
 and loading, the court gave a construction according to the fact, 
 and considered the voyage in the pohcy to be a voyage to Sisal, 
 as such a voyage is" ordinarily performed.^ Where the policy 
 was " from the last^or^ of lading," and the vessel completed her 
 lading off Angostura, which has properly no "port" or harbor, 
 yet the court decided that it should be considered the " last port 
 of lading," within the terms of the policy.^ 
 
 So an insurance of a vessel for four months from St. Michael's 
 to " any port or ports" is held to be equivalent to an insurance 
 to " any place or places," and the sailing to a place that had no 
 port, and where vessels are discharged in an open roadstead, was 
 held to be within the policy.^ 
 
 It was the uniform and well-known practice of the British 
 East India Company to reserve in the charter-party the liberty 
 of employing the vessel on an intermediate voyage from one 
 port to another in India. Accordingly, under a policy on a ship 
 employed by the company, though nothing was said of an in- 
 termediate voyage in the policy, yet, because the voyage was 
 described to be an " India voyage^" it was held that the under- 
 writer should be presumed to know what was incident to such a 
 voyage, and that the construction of the contract should be the 
 same as if liberty had been expressly reserved in the policy to 
 make such intermediate voyage.* 
 
 A vessel was insured either " with or without letter of marque," 
 the intention of course being to have the liberty of using it, but 
 to what extent, whether in acting on the defensive, or in giving 
 chase to vessels that hove in sight, or in cruising, were questions 
 not settled by the obvious and general import of the words. 
 Lord Ellen borough 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 assureds and assurers, any known and 
 definite import." ^ 
 
 1 De Lonp;uemere v. New York Fire 3 Cockey v. Atkinson, 2 Barncw. & 
 Ins. Co. 10 Johns. N. Y. 120. See also Aid. 460. 
 
 Lindsay v. Janson, 4 Hurlst. & N. Excb. < Salvador v. Hopkins, 3 Burr. 1 707. 
 
 See Seccomb v. Provincial Ins. Co. 10 
 All. Mass. 3 
 5 6 East, 
 Smith, 316. 
 
 699 
 
 2 De Lonnrueniere v. New York Fire All. Mass. 30.5. 
 Ins. Co. 10 Johns. N. Y. 120. 5 6 East, 207 ; Parr v. Andereon, 2
 
 92 OP THE CONTRACT OP INSURANCE. [CHAP. I. 
 
 Goods insured " till they were safely landed at Legliorn^'' were 
 landed at the Lazaretto, about half a mile from the city of 
 Leghorn, as was customary in regard to goods of the kind in- 
 sured, where a loss happened upon them before the period of 
 quarantine had expired. Marshall, C. J., giving the opinion of 
 the court : " This cause may be decided upon the usage found 
 in this case, a usage of ancient date and general notoriety. When 
 the parties stipulated that the adventure should continue till the 
 goods were landed in safety at Leghorn, they knew that the 
 place of landing was the Lazaretto, and that the landing would 
 be made under the direction and control of the local authority. 
 This, then, must be the landing contemplated in the policy. . . . 
 Had the parties intended to continue the risk during the contin- 
 uance of the goods in the Lazaretto, they would have inserted 
 in the policy words manifesting that intention." ^ 
 
 145. A distinct, additional, independent stipulation, not com- 
 prehended or covered by the language of the policy, cannot be in- 
 troduced into it by proof of a usage : — 
 
 As of a usage to give notice of the erection by the assured 
 of new buildings near those insured, where the policy contained 
 no provision which could refer to such usage, or be explained 
 by it.2 
 
 Where goods were insured " till landed," it was proposed to 
 show that this expression meant till the ship was moored twenty- 
 four hours in safety ; but Lord Kenyon would not permit it, 
 because it was inconsistent with the meaning of the policy, 
 which was too clearly expressed to admit of any such explana- 
 tion.^ 
 
 Where a policy began " S. E. B. on account of do 
 
 make insurance," &c., it was held that proof of usage to consider 
 these blanks to be equivalent to the clause " for whom it may 
 concern," was not admissible.^ 
 
 Mr. Chancellor Walworth^ was of opinion that the blank 
 must be considered as left to be filled up by the nominal assured. 
 
 1 Gracie v. Mai-. Ins. Co. 8 Cranch, 3 Parkinsons. Collier, Park, 470. 
 75. 4 Turner v. Burrows, 5 Wend. N. Y. 
 
 2 Stebbins v. Globe Ins. Co. 2 Hall, 541; 8 id. 144. 
 
 N. Y. 632 ; and see Pawson v. Barne- 5 Turner r. Barrows, in the Court of 
 velt, 1 Dougl. 12, and New York Ins. Errors, 8 Wend. N. Y. 144. 
 Co. V. Thomas, 3 Johns. Cas. N. Y. 1.
 
 SECT. XIII.] LEADING PRINCIPLES OF CONSTRUCTION. 93 
 
 The judges of the Supreme Court and the Court of Errors of 
 New York were of opinion that the blank was not to be filled 
 at all, and that the words "on account of" might be considered 
 surplusage. 
 
 In a suit on a policy made in New York, for a particular 
 average on goods by sea-damage on a voyage from Liverpool to 
 New York, the insurers proposed to prove, that, by a usage of 
 the port of New York and other ports, the production of a report 
 of a survey made on board of the vessel by the port-wardens, or 
 other officers of the port, that the goods were properly stowed 
 and were damaged on the voyage by perils of the sea, was in- 
 dispensable in order to charge the underwriters. Oakly, J. : 
 " An attempt is made to introduce into the policy a condition 
 that the insurer shall not be responsible unless such damage is 
 ascertained in a particular mode, and that, too, by the act of 
 third persons, over whom the assured has no control. Such a 
 condition would vary the legal obligations of the defendants, as 
 ascertained in the precise language of the policy." It was 
 accordingly held, that proof of such a usage, as an indispensa- 
 ble requisite to the assured's right to recover a loss, was inad- 
 missible.^ • 
 
 Under a policy on a voyage from St. Domingo to Nantes, the 
 assured exhibited a letter from the master, saying he expected 
 to sail in October. He sailed on the 11th of that month. Lord 
 Kenyon ruled that parol evidence was admissible to prove the 
 meaning to be that he expected to sail after the 20th, or at least 
 the 15th, of that month.^ Assuming that this was equivalent, 
 as it seems to be, to the admission of the same testimony to 
 prove the meaning of the same language in the policy itself, it 
 is carrying the doctrine of construction of what is written by 
 parol testimony to a very questionable length. 
 
 1 Rankin v. American Ins. Co, 1 ^ Chauraiid v. Angerstein, Peake, 
 all, N. y. 619. Cas. 43.
 
 CHAPTER 11. 
 
 WHO MAY BE INSURED. 
 
 Sect. 1. Capacity to contract. | 3 National character. — Domi- 
 
 2. Alien enemy. | cile. 
 
 SECTION I. CAPACITY TO CONTRACT. 
 
 146. Insurance is not distinguished from other contracts, in 
 respect to the ability of the parties to contract. Any one capable 
 of binding himself by a contract may be an insurer ; ^ and in 
 general any person, having an insurable interest^ may become an 
 assured. 
 
 An incorporated company can make insm-ance only as its 
 charter authorizes.^ 
 
 section II. alien enemy. 
 
 147. No contract loith the subjects of a hostile state, or on their 
 behalf, is binding. 
 
 During a war, all trading with the public enemy is interdicted, 
 and he is regarded as an outlaw.^ " No principle of national or 
 municipal law," says Mr. Justice Story, " is better settled, than 
 that all contracts with an alien enemy, made during a war, are 
 utterly void." * 
 
 Accordingly, a contract made, during war, by the subject of 
 
 1 In England, the London and the Co. 2 B. Monr. Ky. 470. See also No. 
 Royal Exchange Assurance Companies 510, beyond. 
 
 have certain privileges as insurers, which 3 The Hoop, 1 C. Rob. Adm. 196; 
 
 have been complained of, and consid- Griswold v. Waddington, 15 Johns, 
 
 ered to be prejudicial to trade. See N. Y. 57; 16 id. 438. 
 
 Rep. Com. of H. of Com., A. D. 1810. 4 Cargo of the Emulous, 1 Gall. C. C. 
 
 2 Allen V. Mut. F. Ins. Co. 2 Md. 571. See also Potts v. Bell, 8 Term, 
 111, citing Adamson v. Kentucky Ins. 548; 2 Esp. 612.
 
 SECT. II.] 
 
 ALIEN ENEMY. 
 
 95 
 
 one belligerent with that of the other, cannot be enforced, either 
 during the war, or on the return of peace.^ 
 
 148. It ivas formerly heldj that the contract of insurance might 
 be made in favor of an alien enemy, and enforced in time of w^ar, 
 though it was not the practice to make the policy in his name.^ 
 The arguments in favor of keeping up this commercial inter- 
 course with the enemy were drawn, not from any legal principles, 
 but wholly from a supposed interest, the calculation being, that 
 the insurers would receive in premiums more than they would 
 pay in losses.^ Lord Mansfield favored these insurances upon 
 this ground, though Mr. Justice BuUer says, he never could get 
 him to reason upon their legality.* 
 
 1 Willison V. Patterson, 7 Taunt. 
 438 ; S. C. 1 Moore, 1 33. 
 
 2 Planche v. Fletcher, 1 Dougl. 238 ; 
 Gist V. Mason, 1 Term, 84 ; Lavabre v. 
 Wilson, 1 Dougl. 271. Contracts for 
 the ransom of captured property were 
 another exception to the general rule, 
 and after the war of 1 756, between 
 England and France, and during tliat 
 of 17 78, Frenchmen maintained actions 
 in the English courts on ransom bills. 
 Ricord v. Bettenham, 3 Burr. 1 734 ; 
 Cornu V. Blackburne, Dougl. G41. In 
 the former of these actions, Sir William 
 Blackstone is said to have been informed 
 by several eminent jurists of the Con- 
 tinent, that a similar action would have 
 been maintained in their courts. Sir 
 Willi.im Scott says, that, " even in cases 
 of ransoms, the enemy was not permitted 
 to sue in his own proper jierson for the 
 payment of the ransom bill. The action 
 was brought by the hostage for the 
 recovery of his freedom." The Hoop, 
 1 C. Bob. Adm. 201. But the above 
 actions, brought by Ricord and Cornu, 
 were both brought in the names of the 
 aliens. Lord Kenyon says, Ricord i'. 
 Bettenham " was not brought until 
 pe.^ce was restored, which gets rid of 
 the objection " to the plaintiff as an 
 alien enemy. Brandon v. Nesbitt, 6 
 Term, 23. But the action of Cornu t-. 
 
 Blackburne was brought during the 
 continuance of the war. In Ilenkle v. 
 Royal Exch. Ass. Co. 1 Vez. sen. 317, de- 
 termined in 1749, the Chancellor says, 
 " No determination has been, that in- 
 surance of enemy's ships during war is 
 unlawful," though trade in general, he 
 savs, is so. The French boasted that 
 the English had, during the war ending 
 in 1 763, indeninificd them by insurances 
 for what they had lost by captures. 2 
 Valin, 32, a. 2. But perhaps the French 
 had again indemnified the English in- 
 surers by premiums. INIr. Marshall, Vol. 
 I. p. 35, &c., goes at some length into 
 the history and discussion of this prac- 
 tice of insurance in behalf of enemy's 
 subjects, and on trade with the enemy. 
 Mr. Duer, Marine Insurance, Vol. I. 
 p. 463, also gives a particular recapitu- 
 lation and an able exposition of this 
 branch of English jurisj)rudcnce. 
 
 3 Wcskett, Ins. tit. Enemy. 
 
 4 Bell r. Gilson, 1 Bos. & P. 345. It 
 is somewhere said, that when French- 
 men were insured in England, during 
 a war between the two countries, some 
 French merchants would have them- 
 selves fully insured at home, and to 
 three or four times the amount of their 
 interest in England, and then send 
 their vessels out to be captured.
 
 96 ~ WHO MAY BE INSURED. [CHAP. II. 
 
 The same arguments might be used in favor of almost every 
 species of commercial intercourse, where it might be supposed 
 that the subjects of the government permitting it would profit 
 more than those of the enemy, and so the enemy be compara- 
 tively weakened. Against the expediency of insuring enemies' 
 property, it was urged that it gave to citizens an interest on the 
 side of the enemy. The British parliament has, by two several 
 statutes, prohibited such insurances during the respective wars 
 pending at the time.^ 
 
 149. But the courts have decided that these insurances were 
 illegal, independently of those statutes,^ and it is well settled, that 
 an underivriter cannot, under the laws of his own country, bind 
 himself to indemnify an alien for a hostile capture by a ship acting 
 under a commission from his own government, though at the date 
 of the contract the alien may have been a friend;^ and that he 
 cannot bind himself to indemnify a person who is at the time an 
 alien enemy against any loss, or contract with him for insurance, 
 or for any other purpose. And it is indifferent whose name appears 
 in the policy, for if the interest proposed to be protected is that of 
 an enemy, the contract is void.* 
 
 150. Nor is the underwriter liable in such case, after the 
 restoration of peace, to an action by the assured, who has thus 
 become an alien friend, or a fellow-subject, for a loss on such a 
 policy, that took place during hostilities.^ 
 
 151. But if an alien enemy has any privilege of trading or 
 holding property, he ivill have the usual incidents to such privi- 
 lege, and, among others, the right of protecting his property by 
 insurance. 
 
 1 21 Geo. II. c. 2 ; 33 Geo. III. c. 27, 191 ; Kellner v. Le Mesurier, 4 East, 
 s. 4. 396 ; Gamba v. Le Mesurier, 4 East, 
 
 2 Furtado v. Rodgers, 3 Bos. & P. 407. 
 
 191 ; where Lord Alvanley gives the * Brandon i'. Nesbitt, 6 Term, 23. 
 opinion of the court very elaborately, ^ Brandon v. Curling, 4 East, 410. 
 
 which has been confirmed in Kellner v. A previous agreement for copartnership 
 
 Le Mesurier, 4 East, 396 ; Gamba v. between persons belonging to the oppo- 
 
 Le Mesurier, 4 East, 407; Brandon v. site belligerent countries, is so suspended, 
 
 Curling, 4 East, 410; McConnell v. at least, if not extinguished. Griswold 
 
 Hector, 3 Bos. & P. 113; De Luneville v. Waddington, 15 Johns. N. Y. 57, 
 
 V. Phillips, 5 Bos. & P. 97. And see 16 id. 438, cited by Mr. Duer, Vol.1. 
 
 2 Valin, 32,h.t. a. 2; 1 Emerigon, 128, p. 477; The Boedes Lust, 5 C Rob. 
 
 c. 4, s. 9. Adm. 233. 
 
 3 Furtado v. Rodgers, 3 Bos. & P.
 
 SECT. III.] NATIONAL CHARACTER. — DOMICILE. 97 
 
 It has been held, that an alien enemy, residing, under a safe- 
 conduct, in a country at war with his own, may bring an action 
 in the courts of that country; ^ and it seems to be a consequence 
 of this rule, that he may make valid contracts. If he have the 
 privilege of holding lands he may, during war, maintain an 
 action for the possession, or other rights growing out of his title,^ 
 from which it may be inferred, that, if he has the privilege of 
 hiring a house, he may have it insured. If he has a license to 
 carry on a particular trade, he ceases to have a hostile character 
 as respects such trade, and it may be insured;^ and the other 
 rights incident to the trade, such as that of stoppage in transitu, 
 will be enjoyed by the party licensed.* License being granted to 
 three persons to trade with an enemy of Great Britain, a policy 
 in the name of a broker, was made on the adventure, and before 
 the action was brought on the policy, two of the three became 
 themselves alien enemies. It was held that, notwithstanding this 
 circumstance, the broker might recover on the policy.^ But a 
 license " to A and B on behalf of themselves and other British 
 neutral merchants," for a particular voyage, will not legalize the 
 interest of one who is an alien enemy.^ 
 
 152. A neutral may he insured in one belligerent country against 
 capture by the other? 
 
 SECTION III. NATIONAL CHARACTER. DOMICILE. 
 
 153. In regard to the circumstances which constitute national 
 character, " it is clear by the law of nations, that the national 
 character of a person, for commercial purposes, depends upon his 
 
 1 "Wells V. Williams, 1 Salk. 45 ; it for Lis benefit. But in Uspariclia v. 
 S. C. 1 Ld. Raym. 282. Noble, 13 East, 332, the same judge 
 
 2 Society, &c. v. Wheeler, 2 Gall, says, the license may exempt any per- 
 C. C. 105. son, as well as any branch of commerce, 
 
 3 Ilagcdorn v. Reid, 1 Maule & S. from the disabilities and forfeitures aris- 
 567, &c. In Kensington v. Inglis, 8 ing out of a state of war. 
 
 East, 273, Lord Ellenborough says, the 4 Fenton v. Pearson, 15 East, 419. 
 
 license cannot remove the personal dis- 5 J)q Tastet v. Taylor, 4 Taunt. 
 
 ability of the trader to briifg a suit in 233. 
 
 his own name, yet it purges the trust, 6 Grigg v. Scott, 4 Campb. 339 ; Holt, 
 
 so that his agent, in whose name the 129. Per Gibbs, C. J. 
 
 policy is made, may bring a suit upon 7 Bell v. Reid, 1 Maule & S. 726. 
 
 VOL. I. 9
 
 98 WHO MAT BE INSURED. [CHAP. II. 
 
 domicile" ^ " No position. is more established than this, that if a 
 person goes into another country and engages in trade, and re- 
 sides there, he is, by the law of nations, to be considered as a 
 merchant of that country." ^ 
 
 " What is a residence, or domicile, is in itself a question of 
 considerable difficulty, depending on a great variety of circum- 
 stances, that cannot be enumerated with precision. The active 
 spirit of commercial enterprise increases this difficulty, by increas- 
 ing the variety of local situations in which the same individual 
 is to be found at no great distance of time."'^ 
 
 154. The circumstances which determine the domicile of a per- 
 son are^ in general, the pwpose for ivhich he goes to a country, the 
 time he has remained or proposes to remain there, the extent of his 
 business in comparison with its extent in other places, and his form- 
 ing there domestic ties and an establishment, or retaining them in 
 the place of his former residence. 
 
 155. In determining national character, the purpose for ivliich a 
 person takes up Ids residence in a country is of iveight, but not 
 always conclusive. 
 
 If he intends to reside there an indefinite time, and has no 
 ulterior residence in viev/, he at once assumes the commercial 
 character of his domicile.* 
 
 So where he establishes himself for an object that may detain 
 him for an indefinite period.^ 
 
 156. If one comes to a country with a special object, likely to 
 detain him only for a short time, his residence does not immediately 
 invest him with the commercial character of the place? 
 
 A Scotchman came to reside indefinitely in the United States 
 in 1795, and was naturalized, and in 1807 joined a commercial 
 house in New York, and went to Jamaica in 1808 to attend to 
 the business of his firm there temporarily, and remained for that 
 purpose nearly a year, and in 1811 went thither again for a like 
 purpose, where he was surprised by the war of 1812. He was 
 
 1 7 Cranch, 542 ; McConnell v. Hec- The subject of domicile is elaborately 
 tor, 3 Bos. & P. 113 ; The Matchless, 1 treated of in 2 Wheat. Appendi.x. 
 Hagg. Adm. 203. 3 The Harmony, 2 C. Kob. Adm. 322. 
 
 2 The Indian Chief, 3 C. Kob. Adm. •» The Venus, 8 Cranch, 253. 
 
 12; Willison r. Patteson,7 Taunt. 438; 5 The Harmony, 2 C. Rob. Adm. 
 O'Mealy v. Wilson, 1 Campb. 482. 322 6 Ibid.
 
 SECT. III.] NATIONAL CHARACTER. DOMICILE. 
 
 99 
 
 held to retain the commercial character of his domicile in New 
 York.i 
 
 157. Tliongh one may have come to a country originally for 
 a special temporary purpose^ yet if the time for accomplishing it 
 becomes protracted and indefinite, he is considered to be domiciled 
 the re. ^ 
 
 Sir William Scott says he must take " the compound ratio of 
 time aud occupation with a great preponderance on time." ^ 
 
 A foreigner who came to New York for his health, and remained 
 there and engaged in trade, was held to have acquired a domicile 
 there.* 
 
 158. Lord Ellenborough says, that if a man be entrapped, 
 and detained in a foreign country, this ivill not confer upon him its 
 national character ; ^ and Lord Loughborough,*'' that, though " the 
 actual place where a man is, is prima facie, to a great many 
 purposes, his domicile, yet you encounter that, if you show that 
 it is either constrained, or, from the necessity of his affairs, trans- 
 itory ; that he is a sojourner." By " necessity of his affairs " can- 
 not be intended that of remaining in order to make profits by 
 entering into commercial enterprises, but that of a temporary 
 stay in order to retrieve his property. 
 
 159. Where a person resident in a foreign country for a special 
 temj)orary purpose, is surprised there by a war breaking out be- 
 tween his own country and that of his temporary residence, and 
 he loses no time, on the earliest notice that war is declared or 
 impendiny^ to put Idmself on his way home, the mere fact of his 
 being in the enemy country on the luar breaking out will not fix 
 upon him the alien national character,' 
 
 This discriminating point of the proposition just stated is, that 
 
 » The Ann Green, I Gall. C. C. 274. 3 S. C. 2 C. Rob. Adm. 322. 
 
 2 The Harmony, 2 C. Rob. Adm. 4 Elbers v. Union Ins. Co. 16 Johns. 
 
 S22. Sir William Scott gives, as an il- N. Y. 128. 
 
 lustration, the case of a person going to 5 Bromley v. Hesseltine, 1 Canipb. 
 
 a country to follow a lawsuit, the dura- 75. 
 
 tion of which is protracted and becomes ^ Bempde v. Johnstone, 3 Ves. jun. 
 
 indefinite. In case of a person coming 198. See also the Ann Green, supra. 
 
 to a belligerent country at or before the ' Bromley v. Hesseltine, 1 Campb. 
 
 beginning of a war, he says, "it cer- 75; Bempde v. Johnstone, 3 Vcs. jun. 
 
 tainly is reasonable not to bind him too 198; The President, 5 C. Rob, Adm. 
 
 «ooa to an acquired character." 277.
 
 100 WHO MAY BE INSURED. [CHAP. II. 
 
 in such case the residence after the commencement of hostilities 
 is involuntary, or one which the party reluctantly prolongs. We 
 exclude all question as to the national character of any particular 
 parcel of his property on account of its origin, use, destination, 
 or other circumstance than his ownership. The position is, that, 
 under the circumstances stated, his ownership merely, and inde- 
 pendently of other considerations, as far as that is the criterion, 
 invests his property with the national character of his country, to 
 which he has at the time, and previously had the animus rever- 
 tendi. This doctrine I take to be reasonable in itself and recog- 
 nized in the whole course of jurisprudence on the subject. It was 
 much discussed in a case before the Supreme Court of the United 
 States. 
 
 Some American merchants residing in England, before hearing 
 of the declaration of war by the United States against Great 
 Britain in 1812, and while they had no particular expectation of 
 it, shipped cargoes thence to the United States, which were cap- 
 tured by American cruisers. Some of these merchants were na- 
 tive British subjects, who had formerly emigrated to the United 
 States, and become naturalized citizens. " It was contended by 
 the captors, that, as these claimants had gained a domicile in 
 Great Britain, and continued to enjoy it up to the time when war 
 was declared, and when these captures were made, they must be 
 considered as British subjects in reference to this property, and, 
 consequently, that it might be legally seized as prize of war, in 
 like manner as if it had belonged to real British subjects. But 
 if not so, it was then insisted, that these claimants, having, after 
 their naturalization in the United States, returned to Great Bri- 
 tain, the country of their birth, and there resettled themselves, 
 they became redintegrated British subjects, and ought to be con- 
 sidered in the same light as if they had never emigrated." 
 
 " On the other side, it was argued that American citizens, set- 
 tled in the country of the enemy, were entitled to a reasonable 
 time to elect, after they knew of the war, to remain there, or to 
 return to the United States, and that, until such election was 
 bona fide made, the courts of this country were bound to con- 
 sider them as American citizens, and their property, shipped be- 
 fore they had an opportunity to make this election, as being 
 protected against American capture." ^ 
 
 1 The Venus, 8 Cranch, 277.
 
 SECT, in.] NATIONAL CHARACTER. — DOMICILE. 101 
 
 A majority of the judges were of opinion, "that the doctrine, 
 that a native, or naturalized subject of one country, who is sur- 
 prised in the country where he was domiciled, by a declaration of 
 war, ought to have time to make his election to continue there or 
 to remove to the country to which he owes a permanent alle- 
 giance; and that, until such an election is made, his property 
 ought to be protected from capture by the cruisers of the latter, — 
 is as unfounded in reason and justice as it clearly is in law. The 
 character of the property during war cannot be changed, in 
 transitu, by any act of the party." 
 
 Marshall, C. J., dissented. He said, " I think I cannot be mis- 
 taken when I say, that, in all views taken of this subject by the 
 most approved writers on the law of nations, the citizen of one 
 country residing in another is not considered as incorporated in 
 that other, but is still considered as belonging to that society of 
 which he was originally a member. And if war break out be- 
 tween the two nations, he is to be permitted, and is expected, to 
 return to his own. But if, while prosecuting his business in a 
 foreign country, he contemplates a return to his own ; if, in the 
 prosecution of that business, he is promoting, rather than coun- 
 teracting, the interests and policy of the country of which he is a 
 member, — it would seem to me to be pressing the principle too 
 far, and to be drawing conclusions which the premises will not 
 warrant, to infer, conclusively, an intention to continue in a 
 country which has become hostile, from a residence and trading 
 in that country while it was friendly." 
 
 " The character of his property shipped before a knowledge of 
 the war ought not to be decided absolutely by his residence at 
 the time of the shipment or capture, but ought to depend on 
 his continuing to reside and trade in the enemy's country, or on 
 his taking prompt measures for returning to his own." 
 
 He thought that the acts of the party, on his hearing of a 
 declaration of war, are proper and safe evidence of what were 
 his previous intentions; the other judges thought that such 
 evidence could not safely be admitted.^ 
 
 It is to be observed that Chief Justice Marshall does not rely 
 upon the doctrine so strenuously disclaimed by the majority of 
 the court, namely, that a resident in a foreign country is to iiave 
 
 1 The Venus, 8 Crancb, 277. 
 9*
 
 102 WHO MAY BE INSURED. [CHAP. II. 
 
 a reasonable time allowed to him after the commencement of the 
 war to elect his commercial character ; he merely says, that it 
 is determined by the motives of the residence, and the intention 
 of the party, before and at the time of the breaking out of the 
 war, gathered from his acts and declarations at the time, and 
 previously, and directly subsequent to that event. In the case 
 in question, the claimants stood upon precisely the same ground 
 as if the voyage had been from China, instead of Great Britain. 
 Looking at the case in this light, the construction put upon the 
 facts by the majority of the court seems to have been very strict 
 upon the claimants. The case is mainly a decision on a rule of 
 evidence, and a construction of circumstances as establishing 
 this or that hypothesis relative to domicile. The better ground 
 on which to support the decision in the particular case seems to 
 be that incidentally suggested in its favor, namely, that the 
 native character easily reverts, and so determines the decision, 
 where there is an equiponderance of evidence between two 
 domiciles. 
 
 The consequence apprehended by the other judges from the 
 adoption of Chief Justice Marshall's opinion, namely, that the 
 private property of some subject of the enemy might escape 
 condemnation, does not seem to be worthy of being greatly dep- 
 recated, whereas the opposite consequence — the confiscation, 
 by the government, of the property of its own subjects or neutral 
 foreigners, without any fault on their part — is grievous and in- 
 tolerable. It seems, therefore, to be a case in which the leaning 
 of the court, if it may be supposed that any case admits of such 
 a leaning, is more safe if in favor of the claimant. 
 
 Mr. Justice Story says,^ " that the interest of friends may 
 sometimes be involved in our vengeance upon enemies, is a 
 matter impossible to avoid;" which is a reason for guarding, as 
 much as possible, against a consequence so unjust and so much 
 to be regretted. 
 
 In the case of the Bernon,^ Sir William Scott says, " The 
 presumption arising from a man's residence is, that he is there 
 animo manendi ; it lies on him to explain it." ^ 
 
 1 1 Gall. C. C. 617. C. Rob. GO; and of The President, 5 
 
 2 1 C. Rob. 102. C. Rob. 277, in which latter it is said, 
 
 3 See also the case of The Diana, 5 an intention, accompanied by some
 
 SECT. III.] NATIONAL CHARACTER. — DOMICILE. 103 
 
 160. W/iei'e the residence in the enemy country is voluntarily 
 continued after notice of the ivar, though for a short time, for 
 commercial purposes, such residence invests the resident ivith the 
 national commercial character of the place. 
 
 161. A person having established himself abroad, and acquired 
 a foreign domicile, does not lose his acquired national commercial 
 character by visiting his native country for a merely temporary 
 purpose.^ 
 
 162. The mere intention of a person to change his domicile for 
 his native one, or a foreign one, has not that effect until acts are 
 done in its execution? 
 
 163. If the government treats the inhabitants of a third coun- 
 try, in the occupation of the enemy, as neutral, insurance may be 
 made in their behalf, as was done in Great Britain, in regard to 
 the inhabitants of Hamburg, in 1810, when it was occupied by 
 the French.^ 
 
 164. If a man acts as a merchant in tivo countries, he must be 
 liable to be considered as a subject of each, in respect to the trans- 
 actions originating respectively in those countries.^ 
 
 165. A resident in a colony or a commercial factory established 
 in a foreign country, independent of any control and authority of 
 
 overt act. may rebut the presumption tliat liis mind leans strongly in favor of 
 
 from residence ; but whether the act the captors." 8 Cranch, 299. See also 
 
 must precede, or may be subsequent to, the case of Curtissos, cited 3 C. Rob. 
 
 the declaration of war, is not said ; and 21 ; and The Frances, 8 Cranch, 335. 
 also The Ocean, 5 C. Rob. 90, in which l The Friendschaft, 3 Wheat. 14 ; 
 
 the party, an Englishman, on the ap- Maryatt v. Wilson, 1 Bos. & P. 438 ; 
 
 pearance of hostilities, being then in 8 Term, 31 ; The Ann Green, 1 Gall. 
 
 France, had taken measures to return C. C. 274 ; The Jonge Ruiter, 1 Act. 
 
 to P^ngland, but was detained after- 116. 
 
 wards by the French government; his ^ Tabbs v. Bendelack, 4 Esp. 108. 
 property was restored to him ; and The ^ Ilagedorn v. Bell, 1 Maule & S. 
 
 Citto, 3 C. Rob. 38, in which the prop- 450. See also Blackburne v. Thomp- 
 
 erty of a British su!)ject, who resided son, 3 Campb. 61 ; 15 East, 81. 
 in Holland after the declaration of war, 4 The Jonge Klassini, 5 C. Rob. 
 
 forthepurpose, as he alleged, of collect- 302; Somerville v. Somerville, 5 Ves. 
 
 ing his debts, was condemned by Sir 787; The Ann, 1 Dods. Adm. 221. 
 
 William Scott. Chief Justice Marshall, The Antonia Johanna, 1 Wheat. 159 ; 
 
 however, says of Sir William Scott's Fibers v. United Ins. Co. 10 Johns. N. 
 
 decisions, "It is impossible to consider Y. 128. 
 them attentively, without perceiving
 
 104 WHO MAY BE INSURED. [CHAP. II. 
 
 the local government^ has the national character of the colony or 
 factory} 
 
 166. Where a merchant removes from a belligerent country to 
 a neutral one, pending a ivar, and carries on trade in the latter, 
 his motiues will be strictly scrutinized, and if his object appears 
 to be merely to mask his trade for the time, he will be considered 
 as still retaining the national character of the country which he 
 left.' 
 
 There is a dictum of Judge Kelsall, Vice- Admiralty Judge in 
 the Bahama Islands, that an emigrant from a belligerent country 
 to a neutral, flagrante bello, is conclusively presumed to retain his 
 belligerent character. The same doctrine has been reproduced 
 in the Supreme Court of New York in 1801, and that of the 
 United States in 1817, as if it were a familiar one, and without 
 reference to any authority. The Court of Errors of New York 
 reject it; but also without any citation of authority. VatteP 
 says all citizens of a belligerent country bear the belligerent 
 character wherever they may be. But he intends only those 
 who do not change their citizenship, which he maintains ^ that 
 a citizen has a right to do in certain cases, notwithstanding the 
 wishes or decrees of his government, and in others by permission 
 implied by practice, or expressly given. This doctrine is obvi- 
 ously so reasonable, that I venture to leave it as involved in the 
 common doctrines on the subject of commercial national char- 
 acter, and not an exception. 
 
 167. The national character of a corporation depends upon that 
 of its rnembers.^ 
 
 It has been held in the Supreme Court of the United States, 
 and that of New York, that a subject of a belligerent country, 
 
 1 The Indian Chief, 3 C. Rob. 22; Cas. N. Y. xxv. ; and 2 Johns. Cas. N. Y. 
 The llachel, The Etrusco, and The 470; Jackson v. New York Ins. Co. 2 
 Twee Vrienden, id. 29, 31 ; The Boe- Johns. Cas. N. Y. 191 ; The Dos Her- 
 des Lust, 5 id. 233 ; Whitehill's case, manos, 2 AVheat. 76 ; The Santissima 
 cited 5 id. GO. Otherwise, if the local Trinidad, 7 Wheat. 283 ; 1 Duer, Mar. 
 authority has jurisdiction and control. Ins. 545. 
 
 See The San Jose Indiano, 2 Gall. C. 3 B. 3, c. 5. 
 
 C. 268; The Friendschaft, 3 Wheat. 4 B. l,c. 19. 
 
 14 ; The Danons, 4 C. Rob. 255, n. ; ^ Hope Ins. Co. v. Boardman, 5 
 
 The Naiadc, 4 C. Rob. 251. Cranch, 57 ; Bank of U. S. v. Deveaux, 
 
 2 SeeDuguetc.Rhinelander,! Johns. 5 Cranch, 62; Society, &c. u. Wheeler, 
 Cas. N. Y. 360 (ISOi; ; S. C. 1 Caines 2 Gall. C. C. 105.
 
 SECT. III.] NATIONAL CHARACTER. — DOMICILE. 
 
 105 
 
 who emigrated to a neutral country during war, did not acquire 
 the national character of the neutral country, by residence, while 
 the war continued.^ But the Supreme Court of Errors in New 
 York decided, that the emigrant, in such case, if he emigrated 
 bona fide, and not merely to mask commercial enterprises under 
 a neutral flag, would acquire the national character of the coun- 
 try to which he emigrated, in the same manner as if he had come 
 from a friendly country.^ 
 
 168. The commercial national character of a consul is not 
 affected by his office, but is determined, like that of other persons, 
 by residence, and the various other circumstances that constitute 
 national character, as affecting that of his property.^ 
 
 169. Mariners are considered to be of the nation to ivhich the 
 ships belong', on board of ivhich they are employed.^ 
 
 170. The native national character continues until another is 
 acquired.^ 
 
 111. The native character easily reverts, and it requires feiver 
 circumstances to constitute domicile in the case of a native than 
 to impress the national character on one who is originally of 
 another country.^ 
 
 Accordingly, if the party puts himself in itinere to return to 
 his native country, and is in pursuit of his native character, he is 
 deemed already to have resumed it;''' provided he has been en- 
 gaged in a trade completely lawful in his native character.*^ 
 
 1 Dugiiet V. Rbinelander, 1 Johns. ^ Sparenburgh v. Bannatyne, 1 Bos. & 
 Cas. N. Y. 360; Jackson v. New York P. 163. 
 
 Ins. Co. 2 Johns. Cas. N. Y. 191 ; The o La Yirginie, 5 C. Rob. 98 ; The 
 
 Dos Hermanos, 2 Wheat. 76. Indiana, 3 id. 44 ; The St. Lawrence, 
 
 2 1 Caines's Cas. N. Y. xxv. ; 2 1 Gall. C. C. 467 ; Sparenburgh i;. Ban- 
 Johns. Cas. N. Y. 476. natyne, 1 Bos. & P. 163. 
 
 3 The Indian Chief, 3 C. Rob. 12; 7 The Frances and Cargo, 1 Gall. 
 Arnold f. United Ins. Co. 1 Johns. Cas. C. C. 616; The Indian Chief, 3 C. 
 N. Y. 363. Rob. 12; The Ann Green, 1 Gall. 
 
 4 The Endraught, 1 C. Rob. 19 ; The C. C. 274. 
 
 Embden, 1 id. 16 ; The Frederick, 5 8 The St. Lawrence, 1 Gall. C. C. 
 id. 9 ; The Ann, 1 Dods. Adm. 221 ; 467; La Virgiuie, 5 C. Rob. 98. 
 The Vriendschap, 4 C. Rob. 166 ; The 
 Indian Chief, 3 id. 12.
 
 CHAPTER III. 
 
 INSURABLE INTEREST. 
 
 Sect. 1. What interest is sufficient. Sect. 8. Interest in profits. 
 
 2. The legality of the interest. 
 
 3. Interest of a mortgager. 
 
 4. Interest of a mortsrasree. 
 
 9. Interest of captors and prize- 
 agents. 
 10. Interest of the charterer of a ship. 
 
 5. Interest of a lender in bottomry ; 11. Interest in freight. 
 
 and respondentia. j 12. Interest in fishing voj-ages. 
 
 6. Interest of a borrower in bottomry 13. Interest in fire insurance. 
 
 and respondentia. j 14. Interest in lives. 
 
 7. Interest of a consignee, factor, ; 15. Interest in double insurance. 
 
 agent, or carrier. | 16. Interest in reinsurance. 
 
 SECTION I. WHAT INTEREST IS SUFFICIENT. 
 
 172. It is essential to every conti-act of insurance, that the 
 assured has an interest at risk. If he has no interest, or if his 
 interest is not at risk, he can be liable to no loss, and accordingly 
 there is nothing against which the insurer can agree to indemnify 
 hirn.^ 
 
 173. It is not requisite^ however, that the thing to which the 
 insurance relates, or the interest of the assured, should be a species 
 of property subject to iwssession or tradition, or that the interest 
 should be that of absolute ownership, or that the subject shoidd 
 be such as to have what is properly called a value or price, or be 
 capable of being assigned. 
 
 One may insure the life or liberty of a freeman, although a 
 freeman cannot be said to have a pecuniary value, nor can another 
 have any directly salable, assignable right of property in his life 
 or liberty. The French Ordinance permitted a person interested 
 in the liberty of a mariner or passenger upon a voyage, to insure 
 him against capture.^ And it permitted the relatives of a person 
 ransomed from slavery among the Barbary corsairs, and also the 
 
 1 See Sweeney v. Franklin F. Ins. Co. 29 Penn. St. 337. 2 h. t. a. 9.
 
 SECT. I.] WHAT INTEREST IS SUFFICIENT. 107 
 
 person who had paid his ransom, to insure his safe return home.^ 
 The ordinance plainly recognizes an insurable interest in these 
 cases. 
 
 A person being insured against the risk of being drafted to 
 serve in the militia, no doubt was suggested that one liable to be 
 so drafted had an insurable interest in that event.^ 
 
 174. But insurance is a contract for pecuniary indemnity ; 
 and, consequently, though neither the thing concerning which the 
 contract is made, nor the interest of the assured, must necessarily 
 have any specific worth, that can be computed in money, or ex- 
 changed, yet the peril or event insured against 7nust be such, that 
 its happening might bring upon the insured a pecuniary loss? It 
 is sufficient that it might bring a loss, and by no means necessary 
 that it should certainly have that consequence, were it to happen. 
 A creditor has an insurable interest in the life of his debtor, 
 though it is not certain that the debtor would pay him, should 
 he live, yet there is some probability, more or less remote, that 
 he would.'* 
 
 Where goods, being ordered, were consigned to the agent of 
 the consignor to be delivered to the party ordering them, on 
 payment of the price, and were lost in the transit, it was held 
 that the party ordering them could not recover against his under- 
 writers for their value,^ on the ground that he was not liable for 
 the price, and so had sustained no loss. 
 
 175. In order to constitute an insurable interest against any 
 peril, or render a subject insurable against any peril, it must be 
 such an interest or subject that the peril may have a direct effect 
 vpon it, instead of a remote, circuitous, consequential effect.*^ 
 That is to say, the interest must be a direct one, in reference to 
 the perils insured against. 
 
 ' a. 11, 1 Emcr. 203, c. 8, s. 3. 5 Warder v. Horton, 4 Binn. Penn. 
 
 2 Duflell V. Wilson, 1 Campb. 401 ; 529. See The Aurora, 4 C. Rob. 218 ; 
 Astley V. Ray, 2 Taunt. 214. The Josephine, 4 C. Rob. 25 ; and The 
 
 3 Carter v. Humboldt, &c. Ina. Co. 12 Atlas, 3 C. Rob. 299. 
 
 Iowa, 287. As to the modification of 6 See infra, as to the interest of a 
 
 this statement in life insurance, see creditor in the safety of his debtor's 
 
 Chap. I. and infra, sect. xiv. property. See also infra, chapter on 
 
 4 See Mr. Justice Lawrence's opinion Risks, section on remote and consequen- 
 in Lucena v. Craufurd, 5 Bos. & P. 301, tial losses. 
 
 as to insurable interest generally.
 
 108 INSURABLE INTEREST. [CHAP. Ill, 
 
 176. A conditional interest is a sufficient subject for insurance^ 
 if it be properly described, that is, such an interest as a party 
 actually has, but which is subject to be defeated by certain 
 events. 
 
 An interest subject to the contingency of survivorship between 
 two or -more persons, is a common subject of insurance in life 
 policies. 
 
 A query was heretofore suggested in Louisiana, whether, under 
 a donation inter vivos according to the civil law, the donee had 
 an insurable interest in the thing so given.^ 
 
 This must evidently depend upon the sort of condition to 
 which the donation is subject, either by law or by its terms. If 
 the condition be such that the gift is valid, and binding on the 
 donor, unless it shall be forfeited by the ingratitude of the donee, 
 during the life of the donor, then the donee has an interest in the 
 thing given, so long as ingratitude cannot be imputed to him. 
 Against his loss by such imputation he has no insurable interest, 
 as it depends on himself. 
 
 177. An assured having- possession of a vessel, claiming' the 
 Slime mider a purchase at a public sale by a public officer m pursu- 
 ance of legal proceedings, has an adequate insurable interest, the 
 sufficiency of which is not subject to be disputed by his insurers 
 after a loss, on the ground of the invalidity of the proceedings 
 whereby he acquired his title.^ 
 
 Bo one having given a bond for the purchase of a vessel, has 
 an insurable interest in its freight.^ 
 
 So one having agreed to sell his vessel for a certain price and 
 make a title, still has an insurable interest.^ 
 
 178. A purchaser, who is liable for the price of goods, has an 
 insurable interest in them, though the vendor has a lien upon them 
 for the exercise of his right of stopping them in transitu.^ 
 
 179. Policies are frequently made in reference to a future 
 interest. " It is every day's practice to insure goods before they 
 are bought;"^ yet, if one insures them on his own account, the 
 
 1 See Denisart, Collection de Deci- 4 Stuart v. Columbian Ins. Co. 2 
 sions, tome 12; Code Napoleon, Nos. Crancli, C. C 442. 
 
 953-955. 5 See Clay v. Harrison, 1 Lloyd & 
 
 2 Frierson v. Brenba, 5 La. Ann. W. 104, and cases cited in No. 197, 
 540. note. 
 
 3 Simmes I'. Marine Ins. Co. 2 Cranch, ^ Rhind v. Wilkinson, 2 Taunt. 237. 
 C. C. G18.
 
 SECT. I.] WHAT INTEREST IS SUFFICIENT. 109 
 
 property must pass to him before a loss happens, otherwise he can 
 recover nothing under the policy. 
 
 Where, before goods are shipped, a bill of lading is made out 
 and signed, and transmitted to the consignee, and he makes ad- 
 vances thereon, his interest attaches as soon as the goods are 
 subsequently laden on board.^ A policy would accordingly then 
 attach also. 
 
 Mr. Ellis 2 cites Lord Chancellor King ^ in support of the prop- 
 osition, tha* a fire policy can be made only upon an interest 
 subsisting at the time. Parties do not make either fire or life 
 policies in anticipation of their interest, for the obvious reason, 
 that, as the premiums are usually payable in advance for certain 
 periods, the proportion for the time prior to the interest being ac- 
 quired would be thrown away. The same would be true on a 
 marine policy on time. But there does not appear to be any 
 reason why a fire policy or life policy cannot be made in antici- 
 pation of an interest, as well as a marine policy, where there is 
 no concealment, or fraud, or prejudice to the underwriter. The 
 policy could not, of course, take effect until an interest should 
 accrue. 
 
 180. A valid executory contract for a thirty, gives an insurable 
 interest in it to the party holding the contract, the amount of 
 which will be that of his loss if it is destroyed, or of his gain if 
 the contract is fulfilled. The interest accruing on a contract will 
 be fully illustrated in considering the insurable interest in freight. 
 
 So, where the assured had agreed for the purchase of oats to 
 be shipped for him to P., and notice was given him that they 
 were shipped, not specifying to what port, and they were shipped 
 for S. instead of P., and he insured them for S. and P., it was 
 held that the underwriters could not object his want of interest, 
 because the oats had not been shipped to the place designated, 
 for he had a right to accept them, and waive any objection on 
 that account.^ 
 
 • So a contract for the purchase of a vessel, and part payment, 
 the legal title and control and right to sell the vessel still remain- 
 ing with the vendor as security for the payment of the rest of the 
 
 J Rowley v. Bigelow, 12 Pick. Mass. 3 Lynch v. Dalzell, 4 Brown, Pari. 
 307. Cas. 131. 
 
 2 Ellis, Ins. 21, cd. 1832. 4 Sparkes v. Marshall, 2 Bingh. n. c. 
 
 761. 
 
 VOL. I. 10
 
 110 INSURABLE INTEREST. [CHAP. III. 
 
 purchase-money, gives the purchaser an insurable interest in the 
 vessel to the amount of her full value, where he is absolutely liable 
 to pay the remainder of the purchase-money.^ 
 
 A decision precisely similar in doctrine was made by the Su- 
 preme Court of the United States. One of the two tenants in 
 common of a mill, by both of whom it was insured, had agreed 
 to purchase the other's half on condition of paying a certain 
 amount of outstanding debts, which he had not paid, and was 
 unable to pay, when it was burnt down. The deci^on was in 
 favor of the assureda for the whole amount insured, on the ground 
 that the underwriters could not object to the want of insurable 
 interest by reason of non-compliance with the condition, since the 
 other co-tenant, and his co-assured, Of whom he had purchased, 
 to whom alone it belonged to enforce the condition, had not 
 elected to annul the agreement for the sale on account of such 
 non-compliance.2 
 
 So, in pursuance of the same doctrine, it was held in New 
 York, that where the assured had agreed to purchase a building, 
 and made a payment of interest on the agreed purchase-money, 
 and had made improvements on the building, he had insm'able 
 interest in it to its full value.^ So one who has bid off property 
 sold under execution,'^ and a vendee with light of possession un- 
 der a contract for a deed ^ are held to have an insurable interest. 
 
 181. The expected profit on a maritime adventure is an ordi- 
 nary subject of insurance. 
 
 So the profit of an inn,^ or a theatre,^ is a sufficient insurable 
 interest.^ 
 
 1 Rider v. Ocean Ins. Co. 20 Pick, were not requisite in order to give an 
 Mass. 259. insurable interest, though the latter 
 
 2 Columbian Ins. Co. i'. Lawrence, 1 would augment the amount of the in- 
 Pet. 25. terest. 
 
 3 McGinney v. Phoenix Ins. Co. 1 4 ^tna Ins. Co. v. Miers, 5 Sneed, 
 Wend. N. Y. 85. I infer from the re- Tenn. 139. 
 
 port, that the assured was liable for the 5 Shotwell v. Jefferson Ins. Co. 5 
 
 whole purchase-money notwithstanding Bosw. N. Y. 247; Hough v. City F. 
 
 the title had not been conveyed to him, Ins. Co. 29 Conn. 10. See also Rey- 
 
 and the building had been destroyed; nolds v. State Ins. Co. 2 Grant, Cas. 
 
 and that the title was retained by the Penn. 326. 
 
 vendor, as security, making the case 3 Wright v. Pole, 1 Ad. & E. G21. 
 
 equivalent to tliat of a mortgage, where 7 jSTiblo v. North American Ins. Co. 
 
 mortgager and mortgagee both have' an 1 Sandf. N. Y. 551. 
 
 insurable interest; and if so, the facts 8 See beyond, sect. viii. 
 of part payment and of improvements
 
 SECT. I.] WHAT INTEREST IS SUFFICIENT. Ill 
 
 182. The share of a seaman in the ^prospective catchings of a 
 fishing- voyage gives him an interest sufficient for insurance, after 
 
 he has shipped and embarked on the voyage, on which his assignee 
 may make insurance for his own benefit, whether the seaman 
 himself could do so or not. That is to say, the seaman may in- 
 sure his share in the catchings after they are on board, but it is 
 matter of query whether he can insure beyond the amount real- 
 ized, since his share of the prospective catchings is in the nature 
 of wages to be earned. Accordingly, where the ship-owner or 
 other party had shipped a quantity of clothing on board of a 
 sealing vessel, to be supplied to the men on the credit of their 
 pledged shares of the catchings, and insured his shipment and 
 its "proceeds," meaning, by this term, the shares of the men, it 
 was held by Mr. Justice Story, that he thereby had an insurable 
 interest to the full amount at which the subject was valued in 
 the policy, though the amount of goods remaining and the shares 
 of the men in the fruits of the voyage that were on board at the 
 time of the loss, might be less, or might even be nothing, the 
 clothes having been distributed and no seal-skins taken. Judge 
 Story remarked, that the interest did not necessarily cease be- 
 cause, at the moment, there might not be any tangible, corporeal 
 subject.^ 
 
 183. A mere contingent expectation of a thing, not founded 
 upm any legal right or title to it, or property in it, or upon any 
 contract for it, or any possession of it, liable to he defeated only 
 by some contingency, does not give an insurable interest in the 
 thing, irhich will be covered by an insurance upon it. 
 
 An expectation may, in many cases, be insured, against certain 
 risks, by a policy particularly specifying its nature. 
 
 A mere verbal promise which is not legally binding does not 
 give an insurable interest in the thing promised.^ 
 
 Nor does a contract which has been forfeited by non-com- 
 pliance with its conditions give such an interest in the thing con- 
 tracted for.3 
 
 An expectation of a fishing bounty from government, encour- 
 aged merely by some instances of the bounty being given, but 
 
 1 Ilancox u. Fishing Ins. Co. 3 Sumn. 2 Stockdale v. Dunlop, G Mees. & W. 
 C. C. 132. Exch. 224. 
 
 3 Brown v. Williams, 28 Me. 252.
 
 112 INSURABLE INTEREST. [CHAP. III. 
 
 not founded on any promise of the government, does not give 
 such an interest.^ 
 
 184. Retrospective insurance is matter of common j^^^ctice, 
 when neither of the parties is supposed to know ivhether a loss 
 has happened^ and is provided for in the printed form of marine 
 insurance by the clause, "lost or not lost;" so that the policy 
 may be thus applied to a subject which has ceased to exist at the 
 time of making it. 
 
 185. It is plain that there must be a subsisting interest at the 
 time of the loss, in order to give any claim against underwriters 
 for indemnity .2 
 
 186. A parti/ having agreed to assume certain risks, or stand 
 insurer on a subject, has an insurable interest in it against the risks 
 for which he is himself liable.^ The interest in such case is iden- 
 tical with that for reinsurance. 
 
 187. A change of an absolute ownership, to an interest as mort- 
 gagee, or other interest not required to be specifically described in 
 the policy, does not defeat a policy on the subject, which does not 
 specify the kind of interest that is insured.* 
 
 188. So, where the oioner has sold the subject, agreeing still 
 to stand insurer in respect to certain risks, for a certain period, 
 under his then subsisting policy, this constitutes a sufficient still 
 subsisting interest under such policy. 
 
 Thus, where a member of a mutual marine insurance asso- 
 ciation, formed for the purpose of insuring ships, sold his ship on 
 which he was insured by the association, but agreed with the 
 purchaser, that, in case of her being lost on a certain voyage or 
 within a certain time, specifying the risk for which she had been 
 
 1 Deveaux v. Steele, 6 Bingh. n. c. Valton v. National Ass. Co. 20 N. Y. 
 358. 32,: Rawls v. American L. Ins Co. 27 
 
 2 Carroll v. Boston Mar. Ins. Co. 8 N. Y. 282. 
 
 Mass. 515; CopelancI u. Mercantile Ins. 3 Reed v. Cole, 3 Burr. 1512. Af 
 
 Co. 6 Pick. Mass. 198; Murdock v. the obligor in a bond to dissolve an at- 
 
 Chenango County Ins. Co. 2 N. Y. tachment of a vessel. Fireman's Ins. 
 
 210 ; Bair v. Gibson, 5 Mees. & ^Y . Co. v. Powell, 13 B. Monr. Ky. 311. 
 Exch. 390 ; Howard v. Albany Ins. Co. ^ Stetson v. Mass. Mut. Fire Ins. Co. 
 
 3 Den. N.Y. 301 ; Wilson ('.Trumbull, 4 Mass. 330 ; Reed v. Cole, 3 Burr. 
 
 &c.Ins. Co. 19 Penn St. 372; Peabody 1512. See Bell y. Firemen's Ins. Co. 
 
 r. Washington Ins. Co. 20 Barb. N. Y. 3 Rob. La. 428, contra, but the doc- 
 
 339 ; Birdsey v. City F. Iiis. Co. 26 trine in the text is asserted S. C. 5 id. 
 
 Conn. 165; contra in life insurance, 423.
 
 SECT. I.] WHAT INTEREST IS SUFFICIENT. 113 
 
 insured, he would pay the purchaser five hundred pounds, the 
 vendor still had an insurable interest in the ship to that amount 
 in respect to such risk under the policy.^ 
 
 189. Where the assured has agreed to sell the subject, deliver- 
 able on payment of the -price, or puts it into the vendee^s hands, 
 the property to pass on payment, he still retains an insurable inter- 
 est to its full value? 
 
 190. Though the interest of the assured is subject to be defeated 
 by the fraudulent act of another, still it is a sufficient subject for 
 insurance, and he will recover for a loss, unless he has been 
 divested of his interest before the loss takes place. 
 
 As where the interest is a mortgage, or other lien, which, to be 
 valid against a subsequent purchaser without notice, requires to 
 be recorded or other publicity to be given to it.^ 
 
 191. A bailee, or depositary, being liable hy law or by contract 
 for certain risks wherely the subjects bailed or deposited may be 
 damaged or lost, has an insurable interest in it in respect to such 
 risks. This follows from the preceding propositions.* 
 
 192. It is a general rule that a trustee or agent for the sale of a 
 ship, or other subject, cannot himself become the pmrhaser, wiihout 
 the consent or ratification of his principal or cestui que trust, and 
 his assuming to be absolute owner ivill not divest the p>rincipal or 
 cestui que trust of his property or insurable interest. 
 
 Thus, where the master and supercargo, being authorized to 
 make sale of a vessel, agreed between themselves that one of 
 them should be the purchaser and absolute owner, this agreement 
 was held not to divest the owners of their insurable interest.^ 
 
 So if, upon some disaster, the cargo is put up to sale and 
 bought by the master, he obtains no interest by such purchase 
 except by the shipper's consent, and the property will still belong 
 
 1 Reed v. Cole, 3 Burr. 1512. 4 See Crowly r. Cohen, 3 Barnew. 
 
 2 Warder v. Horlon, 4 Binn. Ponn. & Ad. 478. Implied also in Armitage 
 629; Bell v. Fireman's Ins. Co. 3 Rob. v. WinterboUom, 1 Mann. & G. 130; 
 La. 428 ; Providence County Bank v. wharfingers and warehousemen como 
 Benson, 24 Pick. Mass. 204 ; Williams within this rule ; Waters v. Monarch 
 V. Ins. Co. of N. America, 1 Hilt. N. Y. Ass. Co. 5 Ell. & B. 870, 34 Eng. L. & 
 3-15. Eq. 116. 
 
 3 Bell V. Western Mar. & Fire Ins. ^ Copeland v. Mercantile Ins. Co. 6 
 Co. 5 Rob. La. 423. Pick. Mass. 198. 
 
 *10
 
 114 INSURABLE INTEREST. [CHAP. III. 
 
 to the shipper, who will continue to retain his insurable inter- 
 est.i 
 
 193. The attachment or arrest of goods or other subject at the 
 suit of a creditor on mesne process, or a seizure on execution to 
 satisfy a judgment, does not deprive the owner of his interest or 
 diminish it, until a legal absolute sale is made.^ 
 
 194. The illegal capture of a subject, and the purchase of it hy 
 the captor at a sale under condemnation in a foreign court, will 
 not divest the oivner of his property, nor, consequently, of his 
 insurable interest.^ 
 
 195. Where property is forfeited to the government by some 
 illegal act, but still remains in possession of the oivner as his, and 
 is not illegally employed or exposed to illegal risks in the adven- 
 ture upon which an insurance is made, the owner still continues 
 to have sufficient insurable interest,^ but from the time of the seizure 
 for the forfeiture his insurable interest ceases, in case the proceed- 
 ings are thereupon prosecuted to final condemnation. 
 
 In some cases a distinction has been taken between a violation 
 of law, whereby the thing alone is forfeited, and one whereby the 
 thing or its value is so; the forfeiture of the thing being consid- 
 ered as divesting the owner of his property simultaneously with 
 the illegal act :^ but in case of the forfeiture of its value merely, 
 the property being considered not to be devested until the seizure 
 of the thing for the forfeiture.^ 
 
 When a seizure is made for forfeiture by breach of law, it 
 necessarily operates retroactively, and overrides all mean convey- 
 ances and liens ; ^ but the established doctrine is, that, in general, 
 without any such distinction as above stated, the owner is not 
 divested of his property by an act of forfeiture until seizure there- 
 
 1 Barker v. Marine Ins. Co. 2 Mas. 4 Wilkes r. People's Ins. Co. IDN. Y. 
 C. C. 3G9. 184. 
 
 2 Franklin Ins. Co. v. Findlay, 6 5 Fontaine v. Phcenix Ins. Co. 10 
 Whart. Penn. 483 ; Bell v. Western Johns. N. Y. 58. 
 
 Mar. & Fire Ins. Co. 5 Rob. La. 423 ; c United States r. Grundy, 3 Cranch, 
 
 3 id. 428. 337. 
 
 3 The Arroj^ante Barcelones, 7 <5 Gelston v. Hoyt, 3 Wheat. 246. 
 Wheat. 49G. See also Santa Maria, 7 See also United States v. lOCO Bags of 
 Wheat. 490; The Santissima Trinidad, Coffee, 8 Cranch, 398; The Mars, 8 
 7 Wheat. 283 ; The Gran Para, 7 Wheat. Cranch, 41 7. 
 
 471 ; 6 AVheat. 16, n. ; The Bello Cor- 
 runes, G AVheat. 152.
 
 SECT. I.] WHAT INTEREST IS SUFFICIENT. 115 
 
 for,i that is to say, after the act of forfeiture the owner holds a'- 
 precarious title, subject to be devested, and coming within the 
 doctrine above laid down as to conditional interests.^ 
 
 In a case of insurance, where the underwriters alleged in 
 defence a forfeiture of the insured vessel, by an act of smuggling, 
 for which no seizure had been made, Mr. Justice Story said : " I 
 have long been accustomed to lay up as an elementary axiom, 
 that, in all cases of forfeiture of personal chattels, the property of 
 the owner is not devested until there is an actual seizure thereof 
 by, or for the use of, the government." ^ 
 
 196. Wiere the property in a thing- is conditional, and subject 
 to a contingency whereby it may be defeated and extinguished, 
 the question occurs, whether the assured can, after the happoiing- 
 of the contingency, and being divested of his title, recover for a 
 loss that occurred after the act of forfeiture. 
 
 This case has not, to my knowledge, occurred in jurisprudence. 
 It may be objected to the assured's recovering the loss in such 
 case, that it would be thus far screening him from the conse- 
 quences of a contravention of the law. But to this it may be 
 answered, that denying to him the indemnity for an intermediate 
 loss would be aggravating or positively adding to the penalty, for 
 the right of the government to the forfeited thing attaches to it 
 only in the state in which it is at the time of the seizure, without 
 regard to the diminution of its value after the act of forfeiture by 
 wear and tear, decay, the action ot the elements, or the negligence 
 and mismanagement of the owner. As between the assured and 
 the insurer, the rights of the government prior to the seizure are 
 res inter alios. It is a matter of mere chance whether the value 
 of the thing may be increased or diminished subsequently to the 
 act of forfeiture and before the seizure. The owner may have 
 replaced the damage by repairs, and may have increased its value 
 
 1 Pipon V. Cope, 1 Campb. 434. See ~ Supra, sub. sec. No. 176. 
 
 also "Williams r. Despard, 5 Term, 112; ^ Clark v. Protection Ins. Co. 1 Stor. 
 
 where Thomas c. Withers is cited by C. C. 109; and see Lockyer v. Offley, 
 
 Gould, J., and Ilennel v. Perry by 1 Term, 252 ; PoUeys v. Ocean Ins. Co. 
 
 Lord Mansfield, to the same point. 14 Me. 141; Ocean Ins. Co. »;. Polleys, 
 
 See also United Stales r. The Anthony 13 Pet. 157; and Mariatigui v. La. 
 
 Mangin, 3 Cranch, 35G, n. ; S. C. 7 State Ins. Co. 8 La. G3. 
 Pet. Adm. 452, per Winchester, J., an 
 elaborate case.
 
 116 INSURABLE INTEREST. [CHAP. III. 
 
 'by improvements and additions. The denying him indemnity 
 on account of circumstances occurring after the loss would be 
 contrary to the general princijoles of jurisprudence in this respect 
 relative to insurance. It would be equivalent to the decision of 
 Lord Ellenborough in denying indemnity for sea-damage, which 
 was insured against, because a total loss subsequently haj)pened 
 by a seizure, which was not insured against. I therefore venture 
 to state, as law, that 
 
 A loss, before seizure for forfeiture, is recoverable after seizure. 
 
 197. The preceding case is not precisely equivalent to that of 
 loss before stoppage in transitu. It has been decided in one case 
 that a stoppage in transitu annulled the sale ab initio, and con- 
 sequently, in such case, it would divest the consignee of all 
 insurable interest to which the policy could apply.^ But the 
 decision was put upon the circumstances of that case, and does 
 not profess to adopt a general doctrine to that effect, for the gen- 
 eral, well-established doctrine on the subject is, that, where goods 
 ordered are once delivered to the carrier, so as to render the party 
 who ordered them liable for the price, he is not discharged from 
 his liability by their being stopped in transitu by reason of his 
 insolvency or refusal to pay on the arrival of the goods, if so 
 agreed. In such case the vendor exercises a right, which is 
 secured by a lien, and is accountable for the proceeds of the 
 goods. 
 
 The vendee, therefore, evidently, has an insurable interest in the 
 goods to their full value, after, as ivell as bsfore, they are stopped 
 in transitu ; and, in the adjustment of a salvage loss or construc- 
 tive total loss, is accountable to his underwriters for the salvage 
 that goes to diminish the amount for which he is liable to the 
 vendor, in deduction for the loss under his insurance.^ 
 
 I Clay V. Harrison, 1 Lloyd & W. tion without the consent of the vendee. 
 
 104. See Kymer v. Suwereropp, 1 Campb. 
 
 '-^ This doctrine is distinctly and ably 109 ; and other authorities cited by 
 
 laid down in the note to the above case counsel in the above case of Clay v. 
 
 of Clay V. Harrison by the reporters, Harrison. See also Newhall v. Vargas, 
 
 and the positions taken by the court 15 Me. 93, and cases cited. Story, Sales, 
 
 respecting the effect of the stoppage in c. 11, s. 320, and 2 Kent's Com. Lect. 
 
 transitu in annulling the contract of sale 39, s. 11, p. 551 of Gth ed. 1848 ; Stan- 
 
 ab initio, is questioned and shown to be ton v. Eager, 10 Pick. Mass. 4fi7; Jordan 
 
 erroneous in the particular case. The v. James, 5 Ohio, 88 ; Feise v. Wray, 3 
 
 stoppage of the goods in transitu by the East, 93. 
 vendor cannot operate as a revendica-
 
 SECT. I.] "WHAT INTEREST IS SUFFICIENT. 117 
 
 198. The lavj seeks to protect the owner ag-aimt the loss of his 
 property^ and with it his insurable interest, in consequence of a 
 forfeiture by the act of a party into irhose possession it has come 
 without his authority or consent. 
 
 Where property illegally captured is recaptured, and the re- 
 captor commits an act of smuggling, it has been held not to be 
 thereby forfeited.^ 
 
 199. In regard to the requisites to a change of interest in an 
 enemy'^s ship, Lord Eldon says : " If a ship be taken by hostile 
 force, the title to that ship, as against foreigners, cannot be 
 changed by any act of local legislation, but the ship must be con- 
 demned in a court proceeding according to the laiu of nations, on 
 rules binding, not only on subjects of the country where the 
 court is held, but on foreigners who are not so ; " ^ and the in- 
 surable interest of the owner will accordingly continue notwith- 
 standing a condemnation by an incompetent tribunal. 
 
 200. A consul can have no judicial Jurisdiction in any country, 
 except ivhat is authorized by the goverment of such country ; and 
 his decrees vnll, therefore, ajfect the insurable interest in any prop- 
 erty only as far as his jurisdiction is so authorized. 
 
 It has been a practice of the French government, since 1793, 
 to grant commissions to its consuls in foreign countries to hold 
 prize courts.'^ A question has been made, whether the title to a 
 ship, acquired by a condemnation and sale under a decree of one 
 of these tribunals, gave to the purchaser an insurable interest. 
 A Dutch vessel was condemned at Bergen, in Norway, by the 
 French consul there, and purchased undef that decree by a 
 Danish subject, who sold her to the assured. A loss happening, 
 his interest was disputed. Lord Kenyon said to the jury, that 
 " the sentence of a French court, in a country out of the juris- 
 diction of France, had been wisely held not to change the prop- 
 erty ; but where it had been acquiesced in, in that country, it 
 might make a difference."* The French writers are of opinion, 
 that these courts are not legal, unless their establishment is 
 acquiesced in and sanctioned by the government of the country 
 
 1 The Bello Corrunes, G Wheat, years without condemnation is held not 
 152. to diange tlie property. 
 
 2 Lucena v. Craufurd, 5 Bos. & P. 3 Robinson's Col. Mar. 32, n. 
 
 319. Sec also v. Sands, 10 Mod. 4 Smith v. Surridge, 4 Esp. 25. 
 
 79, where possession by captors four
 
 118 INSUEABLE INTEREST. [CHAP. III. 
 
 in which they are established ; and, accordingly, unless they are 
 so sanctioned, their decrees have no force whatever in changing 
 the title of the property condemned by them.^ 
 
 It has been laid down, that consent by treaty is requisite to 
 the establishment of any such foreign consular court in the 
 United States.^ 
 
 201. A creditor, merely, as such, has no insurable interest in 
 the property of his debtor.^ 
 
 202. Advances for repairs of a ship give no insurable interest 
 in it, ntiless when secured by a lien by law or contract.'* 
 
 Where money was advanced to the master of a ship to pay 
 for repairs in Canada, and he drew a bill on his owners in Lon- 
 don for the amount, with orders, in case it should be dishonored, 
 to insure the ship, it was held that this did not give to the holder 
 of the bill an insurable interest in the vessel,^ though the payee 
 recovered against the master the amount of the premium paid 
 for the insurance. 
 
 203. Where the proceeds of goods shipped to a foreign fort 
 are payable to a creditor of the shipper, he has an insurable in- 
 terest in respect to the risks of the voyage, which, however, ought 
 to be specially described in the policy, unless the goods are con- 
 signed to hirn or his agent.*' 
 
 1 Opinion of M. Portalis, cited 6 policy. The case was one of advances 
 Wheat. 156. made in London to the master of an 
 
 2 Ghiss r. Sloop Betsey, 3 Dall. Pcnn. East India vessel to purchase goods for 
 16. See cases infra, titles Evidence, his adventure, the consignee in India 
 Judgment. being ordered to pay the proceeds over 
 
 3 But one having a statutory right to to the agent of the lender, for whose 
 sell the real estate to pay his debt, has security insurance was to be made. This 
 such an interest. Herkimer v. Rice, 27 was a form of contract which had pre- 
 N. Y. 163. vailed for some ten or twelve years in- 
 
 4 Buchanan v. Ocean Ins. Co. 6 Cow. stead of respondentia. In giving opin- 
 N. y. 318. ions on a policy intended to cover the 
 
 5 Tasker v. Scott, 6 Taunt. 234 ; 1 interest of the lender, Park, J., con- 
 Marsh. 556. sidered it to be " the duty of the court 
 
 6 See Aldrich r. Equitable Safety Ins. to restrain these novelties;" and Bur- 
 Co. 1 Woodb. & M. C. C. 272. In Palmer rough, J., was opposed to introducing 
 r. Pratt, 2 Biiigh. 185, the decision is " new modes of expression into policies 
 against the assured in a policy intended of insurance." These are certainly very 
 to cover such an interest, but the in- objectionable considerations to influence 
 terest was not properly stated in the a judicial decision.
 
 SECT. 11.] THE LEGALITY OP THE INTEREST. 119 
 
 204. It is a familiar doctrine, that a jKirty^ having a lien on 
 a vessel or cargo under a contract /or advances, may be rightfully 
 considered as the special owner of them to the extent of those 
 advances, and, as such, may protect himself bij insurance ; and that 
 a creditor, to whom goods are assig-7ied as coUaterial security, has 
 an insurable interest in them to the amount of his debt.^ 
 
 205. The party insured has an insurable interest in the solvency 
 of his underwriters, since they are conditionally responsible to 
 
 him.^ 
 
 206. An insurance to the full value does not exhaust the insur- 
 able interest of the assured, unless the policy contains the clause 
 relating to prior insurance, nor even then, for he can, notwith- 
 standing, make double insurance in simultaneous policies,* which 
 is in effect a mere insurance of the solvency of each set of un- 
 derwriters, by the policies of the others, for he can recover but 
 one indemnity from all. 
 
 207. >Sb, if insurance is made against certain risks, the as- 
 sured still has an insurable interest to the full value against other 
 risks. 
 
 208. A partner, equally interested with his copartner, and 
 largely in advance to the partnership concern, has an insurable 
 interest in the whole stock to its full value. 
 
 It is held in Louisiana that he may insure it to its full value 
 in his own name, and on his own account.'^ 
 
 And in Massachusetts, that he may so insure a building built 
 with partnership funds, on the land of his copartner.^ 
 
 SECTION II. THE LEGALITY OF THE INTEREST. 
 
 209. The insurable interest in property may be extinguished by 
 a prohibition of insurance upon it." 
 
 1 Seamans v. Loring, 1 Mas. C. C. G Converse v. Citizens Ins. Co. 10 
 127. Cush. Mass. 37. 
 
 2 Wells V.' Philadelphia Ins. Co. 9 ^ As on births and christenings, 6 
 Serg. & R. Tenn. 103, and s. 4, 5, 7, 9, Geo. I. c. 18; price of public stocks, 7 
 infra. Geo. II. c. 18, s. 4 ; the slave-trade, 47 
 
 3 Emerigon, torn. l,c. l,s. 2. Geo. III. c. 36; the codes of other 
 * Wiggin V. Suffolk Ins. Co. 18 Pick. European States prohibit insurance in 
 
 Mass. 145. divers cases. 
 
 5 Millaudon v. Atlantic Ins. Co. 8 La. 
 557.
 
 120 INSURABLE INTEREST. [CHAP. III. 
 
 210. So insurance upon a subject is void if the interest insured 
 is illegal, or if the contract contemplates an unlaioful use of it.^ 
 
 Thus, a policy on a cargo imported from a foreign port, with 
 which intercourse is prohibited by the law of the place where 
 the insurance is effected, is void.^ 
 
 If the trade be illegal, it defeats the policy on the ship, as well 
 as that on the cargo.^ 
 
 Ships or goods destined in contravention of the monopoly 
 granted by law to the British East India or South Sea Com- 
 pany, cannot be effectually insured in England.* 
 
 So insurance on a ship not manned in conformity to the 
 navigation laws of the place where the policy is made, and 
 where she belongs, has been held to be void.^ 
 
 This decision is, however, a very stringent application of the 
 doctrine in question, since the illegality is not in the contract 
 nor in the property or the use of it, but in an incidental collat- 
 eral delinquency for which the law itself prescribes the forfeit- 
 ure,*5 jjj^j which may be classed with the exceptions specified 
 below. 
 
 Before the prohibition of the slave-trade by a British statute,' 
 it was required, that the captain of a slave-ship should have a 
 certain description of certificate. It was held that, by the want 
 of such certificate on the part of the captain employed, a voyage 
 was rendered illegal.^ 
 
 So a policy on a voyage in violation of an embargo, laid by 
 the government of the country to which the owner of the property 
 belongs, is void.^ 
 
 In like manner, insurance was defeated by an evasion of the 
 act of Parliament requiring vessels to sail with convoy. ^'^ 
 
 ' Redmond v. Smith, 7 Mann. & G. 5 Suart v. Powell, 1 Barnew. & Ad. 
 
 457. 266. 
 
 2 The United States r. The Paul 6 See Deshon v. Merchant's Ins. Co. 
 Shearman, 1 Pet. 98. 11 Mete. Mass. 199. 
 
 3 Gray v. Sims, 3 Wash. C C. 276. ^ 31 Geo. III. c. 54, s. 2. 
 
 4 Camden v. Anderson, 5 Term, 709; ^ Farmer v. Legg, 7 Term, 186. 
 
 1 Bos. & P. 272; Morck v. Abel, 3 Bos. ^ Dalmada v. Motteux, Park, 357. 
 
 & P. 35 ; Chalmers v. Bell, 3 Bos. & P. lo Ingham v. Agnew, 15 East, 517 ; 
 
 604; Dunlop u. Gill, 1 Barnew. & Aid. Wainhouse v. Cowie, 4 Taunt. 178; 
 
 334 ; Jacob v. J'Ansen, 3 Taunt. 534 ; Darby v. Newton, 6 Taunt. 544 ; Wake 
 
 Wilkinson v. Londonsack, 3 Maule & S. v. Atty, 4 Taunt. 493. See Metcalfe. 
 
 117. Parry, 4 Campb. 123 ; Carstairs i'. All-
 
 SECT. II.J THE LEGALITY OF THE INTEREST. 121 
 
 Where, in pursuance of law, a bond was given conditioned to 
 employ a cargo in trade on the coast of Africa, it was held that, 
 by the forfeiture of the bond, the insurance on the cargo was 
 defeated.^ 
 
 Where the parties being citizens of the United States stipu- 
 lated against any exception " on account of ports interdicted by 
 the laws of the United States," and the ship was destined to such 
 a port, the policy was thereby made void.^ 
 
 211. Though there is no express prohibition in respect to a 
 subject, still, if insurance vpo?i it is contrary to the spirit and gen- 
 eral principles, or what is called " the policy " of the law, the 
 ou'ner cannot make a valid insurance upon it.^ 
 
 Thus, an assured cannot be protected by insurance against loss 
 and damage by his own crimes, frauds, and misconduct. 
 
 Upon the same ground, ivagering policies have been held void 
 by some courts. Mr. C. J. Dana, of Massachusetts, says : " As 
 wager policies are injurious to the morals of the citizens, and 
 tend to encourage an extravagant and peculiarly hazardous spe- 
 cies of gaming, they ought not to receive the countenance of this 
 court." * " They are," says Chief Justice Parker, " against the 
 policy of our laws." ^ And they are held to be illegal in Penn- 
 sylvania.*^ 
 
 Such insurances were, however, considered to be legal in New 
 York,' before the prohibition of them by the Revised Statutes of 
 that State. 
 
 In England a wagering policy is not considered to be, by its 
 essential character as a wager, so injurious to morals and incon- 
 sistent with the public interest, as to be void at the common law 
 
 nutt, 3 Campb. 497; Hendersou u. Hiiid, < Ainory v. Gilman, 2 Mass. 1. See 
 
 1 Taunt. 250. also Stetson v. Mass. Miit. Fire Ins. Co. 
 
 ' Gibson I'. Service, 5 Taunt. 433 ; 4 Mass. 330. 
 S. C. I Marsh. 119. 5 J^ord v. Dall, 12 Mass. 115. See 
 
 2 Russell r. Degrand, 15 Mass. 35. also Iloit v. Hodge, 6 N. H. 104, and 
 
 3 Mount I'. Waite, 7 Johns. N. Y. Collamore v. Day, 2 Vt. 144. 
 
 434 ; Jones v. Randall, Cowp. 3 7 ; Lofft, 6 PHtchet v. Ins. Co. of North Amer- 
 
 383; Carter v. Boehm, 3 Burr. 1905; ica, 3 Yeates, Penn. 461. 
 
 S. C. 1 W. Blackst. 593 ; Da Costa v. 7 Clendening v. Church, 3 Caines, 
 
 Jones, Woskett, tit. Wager, a. 3 ; S. C. N. Y. 141 ; Juhel r. Church, 2 Johns. 
 
 Cowp. 729; Roebuck v. Ilammertoii, Cas. N. Y. 333. 
 
 Cowp, 737. 
 
 VOL. I. 11
 
 122 INSURABLE INTEREST. [CHAP. III. 
 
 independent of the statute.^ Yet the chancellor required proof 
 of interest, in one case, on a policy, which was a wagering one 
 
 in form.^ 
 
 If the wager, whether by a policy or otherwise, creates a bias 
 in the discharge of a public duty, or is otherwise against the 
 policy of the laws and the public interest, it is void at the common 
 law.^ And it was probably upon this ground that Lord Mansfield 
 said, " Though every man had an interest in the events of war 
 and peace, yet he doubted whether that was an insurable in- 
 terest." * 
 
 A policy made in New York vpon a ticket in a lottery out of 
 that State, was held to be illegal, on the ground that a contract 
 is void " if it be against the principles of public policy, equally as 
 if it contravened a positive law;" and insurance on the tickets 
 of lotteries within the State was prohibited by a statute, the rea- 
 sons of which, as alleged in the statute, were, that such insurances 
 are against public policy, and of an immoral tendency ; and the 
 court say, the reasons of the act extend to all insurances of 
 lottery tickets, though not comprehended in its express pro- 
 visions.^ 
 
 212. The wages of rnariners are universally considered ?iot to 
 be insurable by the mariners themselves ; not on account of the 
 insufficiency of the interest and risk, but lest their motives to 
 exertion for the safety of the ship and cargo should be dimin- 
 ished.^ 
 
 The maters ivages are not insurable^ nor is any privilege he 
 may have in the vessel instead of wages. But he may insure his 
 property on board-J^ though bought with the money received as 
 wages.^ 
 
 1 19 Geo. II. c. 37, s. 1 ; Da Costa v. 4 Mollison v. Staples, Park, 640, n. 
 Firth, 4 Burr. 1966 ; Dean v. Dicker, See also Wharton v. De la Rive, Park, 
 2 Strange, 1250 ; Thelluson v. Fletcher, 573 ; Marshall, 642, n. 
 Dou}il.301; Goddart r. Garrett, 2 Vern. 5 Mount v. Waite, 7 Johns. N. Y. 
 269 ; Wittingham r.Thorn borough, Prec. 434. 
 
 in Chane. 20 ; Weskett,tit. Lives, n. 7 ; 6 i Emer. 235, c. 8, s. 10 ; Lucena v. 
 
 Good V. Elliott, 5 Term, 693 ; Assievedo Craufurd, 5 Bos. & P. 294 ; Weskett, tit. 
 
 V. Cambridge, 10 Mod. 77; De Paiba r. Wages; The Juliana, 2 Dods. Adm. 
 
 Ludlow, 1 Com. 361. 509 ; The Lady Durham, 3 Hagg. Adm. 
 
 2 Le Pyprer. Farr, 2 Vern. 716. 201 ; The Neptune, 1 id. 227. 
 
 3 Allen ?'. Hearne, 1 Term, 56 ; Ath- ' Webster v. De Tastet, 7 Term, 157. 
 erford v. Beard, 2 Term, 610. ^ i Magens, 18.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 123 
 
 A mariner having a privilege of carrying a certain quantity of 
 goods, may insure the goods, for it is the freight, and not the 
 goods themselves, that constitutes a part of his wages.^ 
 
 213. The captain may insure his wages, commissions, or priv- 
 ik"-e on board of the vessel, as he is presumed to be a man of 
 more trust than a sailor.^ 
 
 214. It is a general principle of law, that, if a contract be in- 
 tended to indemnify the oicner for loss on property by reason of 
 its being implicated in an illegal trade, or applied to an illegal «se, 
 or which, according to the laws of the country where the contract 
 is made, it is criminal for the oicner to hold, such contract is void; 
 and accordingly, the owner has no legally insurable interest? 
 
 215. An act subject by law to a penalty, though not prohibited 
 in direct terms, is illegal.^ 
 
 216. A treaty made by competent authority, has the force of law 
 in respect to the subjects of the contracting governments fi 
 
 217. If a contract admits of a legal performance, though its 
 terms are such as to admit of being applied to what is not so. a 
 legal intent is presumed, or at least may be proved : 
 
 As where the destination is described to be to ports on a coast 
 generally, and some of them are lawful, and others unlawful, the 
 destination is presumed,*^ or at least may be shown, to be to the 
 lawful ports.' 
 
 » (lalloway v. ^Morris, 3 Yeatcs, 5 The Neutralitet, 3 C. Rob. 295 ; 
 
 Penn. 445. The Eenrom, 2 id. 1 ; I Arnould, Mar. 
 
 2 King t'. Glover, 5 Bos. & P. 206 ; Insurance, pp. 714, 715, c. 5, s. 2, a. 2. 
 Foster V. Ilojt, 2 Johns. Cas. N. Y. Lord Mansfield seems to have regarded 
 327. Primage is insurable. Pedriek v. the commercial stipulations by treaty, 
 Fisher, Spiague, Dec. Dist. Ct. 565. as standing upon the same footing as 
 
 3 Armstrong r. Toler, 1 1 Wheat, the revenue laws of foreign countries, 
 258, and authorities there cited ; Pat- and not binding upon the parties to a 
 ton V. Nicholson, 3 Wheat. 204 ; Bartle policy. Lever v. Flccher, 1 Park, Ins. 
 V. Cohuan, 4 Pet. 184; 1 Greenleaf, 8th ed. 507; S. C. Mai-shall, Ins. 2d ed. 
 Ev. s. 281, and cases there cited ; Chitty, 61. 
 
 Contracts, 519-527. 6 Anon. 1 Chitt. 49. 
 
 4 De Begnis i;. Armistead, 10 Bingh. 7 Anon. 1 Chitt. 49 ; Gill v. Dunlop, 
 107; Drury v. De Fontaine, 1 Taunt. 7 Taunt. 193; Muller v. Thompson, 2 
 131 ; Gallina i;. Laborie, 5 Term, 242; Campb. 610; Wright v. Welbie, 1 
 Uibbans v. Crickett, 1 Bos. & P. 2G4 ; Chitt. 49 ; Jeremy's Index, 1819, p. 74 ; 
 Blackford r. Preston, 8 Term, 89 ; Law Holland v. Hall, 1 Barnew. & Aid. 53 ; 
 r. Ilodson, 2 Campb. 147; S. C. 11 Haines r. Busk, 5 Taunt. 521 ; Thorn- 
 Ea.st, 300; Per Story, J., in Clark r. ton i-. Lance, 4 Campb. 231 ; 1 Green- 
 Protection Ins. Co. 1 Stor. C. C. 109. leaf, Ev. ss. 34, 35, 80, 81.
 
 124 INSDEABLE INTEREST. [CHAP. III. 
 
 218. W/icre a risk, legal in its commencement, becomes illegal 
 by some subsequent laiv, the acts of the assured in prosecuting it 
 will not be illegal, and his interest in the subject in respect to such 
 acts ivill not cease to be insurable until he has notice of the laiv, 
 or it is so promulgated that he is presumed to have such notice.^ 
 
 219. Where any material part of an integral contract is illegal, 
 the whole is thereby tainted and voidl^ 
 
 220. A mere intent not acted upon or agreed upon, is not a sub- 
 ject of judicial cognizance, cither civilly or as a crime. 
 
 Mr. Justice Story says : " A mere intention to do an illegal act, 
 or other act which would avoid a policy, if done, but which has 
 never been consummated by any act, has never, as far as I know> 
 been deemed per se to vitiate the policy." ^ This was said in 
 reference to a case where no illegality of the subject-matter, or 
 of any stipulation, appeared on the face of the policy.* 
 
 Sir William Scott says, that, in order to furnish ground for the 
 condemnation of property, " there must be an act of trading to 
 the enemy country, as well as an intention. No case has been 
 produced in which the mere intention to trade to an enemy's 
 country has enured to condemnation." And though the voyage 
 
 1 Walden v. Phoenix Ins. Co. 5 n., London ed., 1831, 9!)4, n. per Lord 
 Johns. N. Y. 310. It was a case of the Kenyon ; Camden v. Anderson, 5 Term, 
 prosecution of the adventure after the 709 ; 1 Bos. & P. 272. The inquiry as 
 embargo act of 1807 was passed. The to what illegality will defeat a contract, 
 case involves the question, what is a and what will be considered to be merely 
 promulgation of a law to make it bind- collateral and incidental, is an extensive 
 ing, and the doctrine assumed is, that subject common to insurance and other 
 the assured was not affected until he contracts. For authorities on the sub- 
 had notice, or must be presumed to ject of the illegality of contracts, see 
 have had notice of it from the fact of Chitty, Contracts, 3d London ed. re- 
 its passage in New York where he re printed at Springfield, 1842, pp. 697, 
 sided, in which port the vessel was 698 ; also Armstrong v. Toler, 11 Wheat, 
 seized when putting out to sea. This 258 ; Patton f;. Nicholson, 3 Wheat. 204, 
 is obviously equitable, and is within the and cases there cited ; Ex'rs of Cam- 
 principle of a provision of the Constitu- bioso v. Assignees of MafTitt, 2 Wash. C 
 tion, since to subject one to punishment C. 98 ; Bensley v. Bignold, 5 Barnew. 
 for violating a law where it could not & Aid. 335 ; 2 Greenleaf, Ev. s. 402. 
 possibly be known, is to give it, practi- 3 Clark v. Protection Ins. Co. 1 Stor. 
 cally, an ex post facto operation. See C. C. 124. 
 
 3 Story, Com. on Const. § 1340, and 4 And see Waters v. Allen, 5 Hill, N. 
 cases there cited contra. Y. 421. 
 
 2 Bird v.Pigou, 2 Selwyn, N. P. 991,
 
 SECT. 11.] THE LEGALITY OF THE INTEREST. 125 
 
 was towards a colony supposed by the party to belong to the 
 enemy, but which had been captured by his own nation before 
 the arrival of the ship, it was held not to be a trading to the 
 enemy country.^ 
 
 " Where the country is known to be hostile," says the same 
 judge, " a commencement of a voyage towards that country may 
 be a sufficient act of illegality; but where the voyage is under- 
 taken without that knowledge, the subsequent event of hostility 
 will have no such effect." ^ 
 
 It was held by the English Court of King's Bench, that, if a 
 cargo be taken to be delivered at a port where its delivery is ille- 
 gal by the laws of the place where the policy is made, the taking 
 of the cargo on board and transporting it is illegal, and the policy 
 upon the cargo for the voyage is void,^ for the commencement of 
 the voyage is an act done in execution of the illegal intent. 
 
 221. A contravention of Imv, though it have relation to the sub- 
 ject or the risk, still icill not affect the insurance if it he remote 
 and distinct from the contract, or only collateral and concomitant 
 with it, or incidental, or merely precedent or subsequent, and not 
 constituting a part of it or embracing and imbuing its stipula- 
 tions. 
 
 Thus it is not a good objection against an insurance on goods, 
 that tliey were purchased with the proceeds of a former cargo ex- 
 ported in contravention of law. Kenyon, C. J.: " If this objec- 
 tion were well founded, in deciding on a claim made on a policy 
 of insurance, it would be necessary to examine the past conduct 
 of the assured, to see whether they had illegally acquired the 
 funds with which the goods were purchased. We cannot enter 
 into considerations of that kind ; we must confine ourselves to the 
 immediate transaction before us."* 
 
 So, where the master, in the course of the voyage, took on 
 board a smuggled chain-cable, though he had intended so to do 
 at the time of sailing, Mr. Justice Story said, it " was a collateral 
 act, no more touching the legality of the voyage than if there 
 had been taken on board some illegal ship-stores," and accord- 
 
 1 Tlie Abbey, 5 C. Rob. Adm. 251. and see Ocean Ins. Co. v. Polleys, 13 
 
 2 Ibid. 254. Pet. 157 ; Armstrong v. Toler, 1 1 Wheat. 
 
 3 Lubboek r. Potts, 7 East, 4ia. 258; Ward v. Wood, 13 Mass. 531), 
 •« Bird V. Appleton, 8 Term, 5G2 ; 546. 
 
 11*
 
 126 INSURABLE INTEREST. [CHAP. III. 
 
 ingly held that the policy on the ship was not thereby de- 
 feated.i 
 
 So, not stowing water below deck, as required by statute,^ or 
 not taking on board a pilot, w^here a forfeiture is incurred there- 
 by,^ does not render the voyage illegal. 
 
 But the violation of a law against carrying goods on deck 
 invalidates a policy on the whole cargo.* 
 
 222. The circumstance that goods are the proceeds of an illegal 
 trade or interest, is not conclusive of the illegality of the otoner's 
 interest in them, but it is a matter of ordinary practice, ivhere the 
 national character of goods is in question, to prove the oionership 
 of those ivith irhich they are purchased, as in case of a return , 
 cargo purchased with the proceeds of the outward one.^ 
 
 223. It being illegal to buy of public enemies, or to sell to them, 
 or contract with them, the goods and ships, and any other sub- 
 jects of insurance, embarked in such intercourse, or destined to it, 
 or to be derived from it, become affected by the prohibition. Prop- 
 erty or interests, so employed, or so situated, cannot laivfully be 
 protected by insurance.^ 
 
 Such a contract or trade is not excused on the ground of mis- 
 take or ignorance, any more than any other contravention of lawJ 
 
 We have already seen that underwriters cannot legally con- 
 tract with or in favor of public enemies; and on the same princi- 
 ple, they cannot insure citizens on property implicated in trade 
 with enemies. The illegality of such trade taints all the property 
 involved in it, and all the contracts auxiliary to it. 
 
 1 Clark ?•. Protection Ins. Co. 1 Stor. Rosalia and Elizabeth, 4 id. note to 
 C. C. 1 09. See also Warren v. Manuf. table of cases ; The Baltic, 1 Act. Ap. 
 Ins. Co. 13 Pick. Mass. 518 ; Johnson v. Cas. 25 ; The Margarette, id. 333 ; The 
 Hudson, 11 East, 180; Carruthers v. Joseph, 8 Cranch, 451 ; The Caledonian, 
 Gray, 15 East, 35 ; Ward v. Wood, 13 4 Wheat. 100; Carrington v. The Mer- 
 Mass. 539. See infra, sect. 8, as to con- chants' Ins. Co. 8 Pet. 495. 
 
 tracts made through necessity. 6 Le Guidon, c. 2, a. 2 and 5; The 
 
 2 Deshon v. Merchants' Ins. Co. 11 Joseph, 1 Gall C. C. 545; The Ritpid, 
 Melc. Mass. 200. 8 Cranch, 155; and see 3 Kent, Com. 
 
 3 Keeler v. Firemen's Ins. Co. 3 Hill, 5th ed. 253 ; 1 Emer. c. 4, s. 9 ; Consu- 
 N. Y. 250 ; Flanigan v. Washington Ins. lat de La Mar. c. 344 ; Poth. des Ass. 
 Co. 7 Penn. 307. n. 95 ; The Eenrom, 2 C. Rob. 1. 
 
 4 Cunard v. Hyde, 2 Ell. & E. 1. 7 The Compte de Wohronzoff, 1 C. 
 
 5 The Nancy, 3 C. Rob. Adm. 122; Rob. Adm. 205 a.; The Expedit van 
 The Rosalie and Betty, 2 id. 343 ; The Rotterdam, 1 id. 206.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 127 
 
 When, however, Lord Mansfield and other English judges fa- 
 vored insurance on behalf of public enemies, they could not but 
 extend the indulgence to trade carried on with them. Accord- 
 ingly, in a case of a policy on goods, bought in Holland after the 
 commencement of war, BuUer, J., said, the " underwriter had no 
 right to go into the state of the property, previous to the time 
 when he insured," and could not object that it had been pur- 
 chased of the enemy.^ Mr. Justice Heath concurred, but Mr. 
 Justice Rooke was inclined to dissent. Lord Mansfield said,^ 
 that though trade with the enemy is prohibited by the maritime 
 law, he knew of but two cases to that effect at common law, 
 seeming to intimate a doubt whether it was in fact prohibited at 
 common law. Numerous decisions had been made in the Admi- 
 ralty, and in the House of Lords, that trade with the enemy was 
 unlawful.^ Insurance on such a trade would accordingly have 
 been void. This point was considered particularly by Sir Wil- 
 liam Scott, in 1799, in the case of goods imported from Holland 
 by Englishmen, while that country was at war with England, 
 and he held, that the goods were subject to seizure and forfeiture.^ 
 And soon afterwards Lord Kenyon and the other judges of the 
 King's Bench acquiesced in this opinion, and held, that an insur- 
 ance of goods so imported was void.^ 
 
 The unlawfulness of trade with the enemy has been a subject 
 of frequent consideration in the courts of the United States. Mr. 
 Justice Story says: " I lay down as a fundamental proposition, 
 that, strictly speaking, in war all intercourse between the subjects 
 and citizens of the belligerent countries is illegal, unless sanc- 
 tioned by the authority of the government, or in the exercise of 
 the rights of humanity." « And this doctrine is generally, and at 
 least all but universally, adopted by different nations.' 
 
 224. It belongs to the government to declare war and make 
 peace, and to decide what territories^ municipalities, and communi- 
 ties are to be considered hostile^ and what ones friendly ; and the 
 
 1 Bell V. Gilson, 1 Bos. & P. 345. 8ee al.o The Odin, 1 C. Rob. Adm. 
 
 ■^ Gist V. Mason, 1 Term, 84. 248. 
 
 ■5 Cases cited, 1 C. Rob. 202, &c., in 5 Potts v. Bell, 8 Term, 548 
 the case of The Hoop. 6 The Julia, 8 Cranch, 181. 
 
 The Hoop, 1 C. Rob. Adm. 19G. 7 See 1 Duer, Mar. Ins. 417, 461.
 
 128 INSURABLE INTEREST. [CHAP. III. 
 
 established national character of any one is presumed by the courts 
 to continue until a neiv one is recognized by the government?- 
 
 225. It is usual for a country in determining who are to be con- 
 sidered its enemies, to have great regard to the government de 
 
 facto, and early to recognize revolted colonies or districts, that 
 maintain an independent government, as having ceased to retain 
 the national character of the country from which they 'have 
 revolted, in respect to trade ; as was done by Great Britain in 
 respect to parts of the island of St. Domingo.^ 
 
 226. Where a citizen'' s property, remaining in the hostile country 
 at the breaking out of a war, is imported thence by him during the 
 war, it is presumed to be a trading with the enemy? 
 
 A citizen's property, says Mr. Justice Story, " cannot be re- 
 moved w'ith safety from the enemy's country, unless under the 
 sanction of his own government, because the law would never 
 deem that a reasonable mode of conveying property which in- 
 volved in it a trade with the public enemy." ^ 
 
 An American citizen had purchased goods in England before 
 the war of 1812, and deposited them on Indian Island, belonging 
 to the British, and near the boundary of the United States, and, 
 after the breaking out of the war, a vessel was sent from Boston 
 to fetch the goods. Both vessel and cargo were forfeited, and 
 consequently the owners of neither could have protected their 
 interest by insurance.^ 
 
 Accordingly, a citizen having property in the enemy country 
 at the breaking out of a war, cannot safely withdraw it without 
 obtaining a license of his own government for the purpose ; ^ 
 more especially any considerable time after the commencement 
 of hostilities.'' And insurance upon it in his own country on 
 its passage, being withdrawn without a license, would be illegal 
 and void. 
 
 1 The Manilla, Edvv. Adm. 1 ; The 5 The Rapid, 8 Cranch, 155. See 
 Pelican, Edw. Adm. App. D. ; City of also The Alexander, 8 Cranch, 1G9, 
 Berne v. Bank of England, 9 Ves. jun. ^ The Lady Jane, 1 C. Rob. Adm. 
 347; Colston v. Hoyt, 13 Johns. N. Y. 202. 
 
 561. 7 Tiie St. Lawrence, M'Gregor's 
 
 2 Johnson V. Greeves, 2 Taunt. 344; Claim, 1 Gall. C. C. 471 ; 9 Cranch, 
 Blackburn v. Thompson, 15 East, 81. 120. See also The William, cited 1 C 
 
 3 Cases cited, 1 C. Rob. Adm. 202, Rob. Adm. 214; Amory v. M'Gregor, 
 &c. case of The Hoop. 15 Johns. N. Y. 36 ; and The Mary, 9 
 
 4 The Joseph, 1 Gall. C. C. 545. Cranch, 1 26.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 129 
 
 But the withdrawal of property in such case by a citizen, 
 without license, under circumstances preventing an application 
 for a license, and where it would certainly have been granted if 
 applied for, was sanctioned by Sir William Scott.i 
 
 227. If a citizen, having ordered goods from abroad, has no 
 opportunity to countermand his order after notice of a war, the 
 importation is legal?' 
 
 The shipment by a vessel that sailed after the declaration of 
 war, but before it was known at the port of shipment, was sanc- 
 tioned by the Supreme Court of the United States.^ 
 
 228. If a contract ivith the enemy arises from compulsion or 
 stringent necessity, the law will sanction it.^ 
 
 Thus, where a British prisoner of war abroad contracted a 
 debt to an enemy subject for his necessary subsistence, the con- 
 tract was enforced in England after peace.^ 
 
 229. So a party, whose property has been seized by the enemy, 
 or by persons with whom trade is interdicted, may laiufully take 
 such goods as are given him in exchange. 
 
 Trade with France and its dependencies being interdicted by 
 an act of Congress, an American ship was driven, by stress 
 of weather, into Port St. Franqois, in St. Domingo, a French 
 port, where a part of the cargo was seized by the public officers, 
 who forbade the exportation of the rest, but gave the captain 
 leave to exchange it for the produce of the island. It was held 
 that the goods obtained in exchange might be insured.*^ And 
 Chief Justice Marshall said, in delivering the opinion of the 
 court, that, even if an actual and general war had existed be- 
 tween this country and France, " this would not have been 
 
 1 The Madonna del Gracia, 4 C. 141 ; The Fortuna, 1 id. 11 ; The 
 
 Hob. 195. See also upon this sub- Freeden, id. 212 ; The Rapid, 8 Cranch, 
 
 ject The Jufirow Louisa Margaretta, 335. 
 
 1 C. Rob. Adm. 203 ; S. C. 1 Bos. & P. 3 The Merrimac, 8 Cranch, 317. 
 
 349, n. ; The Rapid, 1 Gall. C. C. 295 ; * Griswold v. Waddington, 16 Johns. 
 
 S. C. 9 Cranch, 132; The St. Philip, N. ¥.451. 
 
 cited 8 Term, 556 ; The Eenigheid, » Antoine v. Morehead, 6 Taunt, 
 
 cited 1 C.Rob. 210; The Fortuna,! C 237; and see Grotir.s, de Jur. Bel. et 
 
 Rob. 211; The Mary, 1 Gall. C. C. Pac. 1. 3, c. 22; Puffend. 1. 8, s. 14; 
 
 620; S. C. 9 Cranch, 126; 1 Duer, Vattel, b. 3, c. 16, s. 264. 
 
 Mar. Ins. 554, Lect G, s. 9-11. 6 Jenks v. Hallett, 1 Caines, iST. Y. 
 
 5* The Jufirow Catharina, 5 C. Kob. 60 ; 1 Caines Cas. N. Y. 43.
 
 130 INSURABLE INTEREST. [CHAP. III. 
 
 deemed such a traffic with the enemy as would vitiate the policy 
 upon the new cargo." ^ 
 
 230. Articles may he shipped for an enemy'' s port, at the time 
 in possession, or reasonably and bona fide supposed to be in pos- 
 session, of the forces, naval or military, of the shippers own 
 country, for the purpose of supplying such forces. 
 
 A vessel destined to Copenhagen, with supplies intended for 
 the fleet under Lord Nelson, left the Nore three days after the 
 time when, by the articles of capitulation, the British fleet was 
 to leave Copenhagen, under the expectation that some delay 
 might occur to the fleet. The voyage was held to be lawful, 
 and the insurance valid, though the vessel was destined to an 
 enemy's port.^ 
 
 231. Where a part of the round voyage is illegal, and another 
 distinct part legal, a valid insurance may he made on ship or cargo 
 for the legal part ; provided the ownership does not render the 
 insurance illegal. 
 
 A foreign-built ship, chartered for a voyage from England to 
 St. Michael's and back, to bring a cargo of fruit, and insured for 
 the outward voyage only, was seized at St, Michael's before the 
 termination of the risk under the policy. It was objected to 
 payment of a loss by the seizure, that the importation, into 
 England, of a cargo of fruit, in such a ship, was prohibited by 
 statute, as the charter was outward and homeward, and so it 
 was one entire voyage, and no part of it could be insured. But 
 the English Court of Common Pleas held the insurance to be 
 valid, for a license might have been obtained for the homeward 
 voyage, or the master might have refused to proceed homeward 
 with such a cargo on account of its being illegal.^ That is to 
 say, up to the time of the loss, it was at most but an intent to 
 contravene the law. 
 
 So where, in the outward voyage to India, an American ship, 
 insured in England, took a cargo of cotton at Bombay for 
 Canton, contrary to the treaty between the United States and 
 England, and the master used the proceeds of the cotton in 
 
 1 Hallett V. Jonks, 3 Cranch, 210. Chitt. 49, and Gill v. Dunlop, 7 Taunt. 
 
 2 Atkinson v. Abbott, 11 East, 135; 103, and other cases cited supra, No. 
 1 Campb. 535. As to a destination to 217. 
 
 ports on a coast generally, some being 3 Sewell v. Royal Exch. Ass. Co. 4 
 hostile and others neutral, see Anon. 1 Taunt. 855.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. l-Sl 
 
 purchasing a cargo at Canton for Hanjburg, whitherward he 
 sailed, and was captured on the voyage by the French, the jury 
 found that the homeward voyage was distinct from the outward. 
 The court of King's Bench, Lord Kenyon being C. J., held a 
 policy effected in England on the cargo or the homeward voy- 
 age, to be valid. ^ 
 
 But in another case Lord Kenyon gives a different opinion. 
 Speaking of a voyage from the United States to Bordeaux, 
 Madeira, and the East Indies, he remarked, that, "where there 
 is a legal infirmity in any part of an integral voyage, it renders 
 the whole illegal, so as to prevent a recovery, even on a separate 
 policy, upon any part of it, which, distinct from the other, would 
 have been lawful." ^ 
 
 Upon this case Mr, Justice Story ^ remarks, that " this was a 
 mere obiter dictum, and it is somewhat shaken, if not overturned, 
 by the decision " in a subsequent case.* And he further says, 
 that "it will be exceedingly difficult, in point of principle, to 
 distinguish an illegality in a former voyage, and that in a prior 
 part of the same voyage, when the policy covers only the part 
 which is legal." 
 
 In the preceding cases no illegality appeared on the face of the 
 contract of insurance. Where such does appear, the whole con- 
 tract is void, as in case of an agreement to employ a ship in an 
 illegal trade.° 
 
 If the contract is on its face legal, and the passage or adven- 
 ture contracted about is legal, the weightier authority seems to 
 be in favor of the validity of the contract, though the subject 
 contracted about may be, on one side or the other, precedent 
 or consequent to something not sanctioned by the law. 
 
 232. Where the voyage is leg-a/, but part of the articles of the 
 same parti/ insured in the same policy are illegal, and a part legal, 
 for such voyage, according to the cases preponderating, both in 
 authority and number, the insurance is wholly void, upon the 
 alleged ground that the contract is entire, and the tribunals can- 
 not discriminate between the legal and illegal part, and enforce 
 the former and declare the latter void. 
 
 ' Bird V. Appletoii, 8 Term, 562. 4 Bird v. Appleton, 8 Term, 5G2. 
 
 2 Wilson V. Marryatt, 8 Term, 31, 5 Holland v. Hall, 1 Uarnew. & Aid. 
 and 1 Bos. &. P. 480. 53. See remarks of Mr. Duer, Mar. 
 
 3 Clark V. Protection Ins. Co. 1 Stor. Ins. Vol. I. p. 397. 
 C. C. 126.
 
 132 INSURABLE INTEREST. [CHAP. III. 
 
 Thus, where a part of a shipment consisted of naval stores, the 
 exportation of which was prohibited, under penalty of the forfeit- 
 ure of the same and of the ship, Lord EUenborough said : " It 
 had been decided a hundred times, that, if a party insure goods 
 altogether in one policy, and some of them are of a nature to 
 make the voyage illegal, the whole contract is illegal and void." ^ 
 
 So, where a part of the goods belonging to a shipper were 
 contraband, Sir William Scott condemned the whole of his ship- 
 ment, saying, " To escape the contagion of contraband, the inno- 
 cent articles must be the property of a different person."^ 
 
 So, where the law required that, on the exportation of gun- 
 powder, a bond conditioned to export it to the place proposed 
 should be given by the " merchant exporter," and the bond of the 
 manufacturer was given instead of that of the exporter. Lord 
 Tenterden and his associates held a policy on the powder and 
 other goods of the same assured, to be void, in respect to the 
 other goods as well as the powder.^ 
 
 But there are not wanting opposite decisions on this question, 
 and some of them by the same courts ; and in some of the cases 
 in which the operation of the rule above laid down was evidently 
 so inequitable, and the penalties and forfeitures incidentally, and 
 in fact casually, thereby inflicted, were so palpably out of propor- 
 tion to the offence, if there was any, — for many of the cases are 
 those of mistake or oversight, — the judges have not disguised 
 their misgivings in applying the rule. The French law allows 
 the discrimination.* 
 
 Divers decisions of the English Court of Common Pleas make 
 a discrimination of the legal and illegal goods shipped by the 
 same party, and insured in the same policy. Insurance being 
 made on a cargo, a part of which was liable to condemnation on 
 account of being imported from the enemy's country, the impor- 
 tation of the rest being authorized by a license, the insurance 
 was considered valid in respect to the goods covered by the 
 
 1 Parkin v. Dick, 11 East, 502; S. 3 Camelo v. Britten, 4 Barnew. & 
 C. 2 Campb. 221. See also Gordon v. Aid. 184. 
 
 Vau^han, 12 East, 302. 4 Marine Ord. of Louis XIV. Ins. a. 
 
 2 The Staadt Embden, 1 C. Rob. 26. 19 ; Poth. Ins. n. 44; 1 Duer, Mar. Ins. 
 See Bynk. Q. J. Pub. 1. 1, c. 14; and 393, 394. 
 
 The Jonge Tobias, 1 C. Rob. 329.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 133 
 
 license.! j^^d in the case of insurance on three hundred barrels 
 of gunpowder, the exportation of only half of which was licensed, 
 and the law provided that gunpowder exported without license 
 should be forfeited, and also the ship in which it was exported, 
 Gibbs, C. J., said : " The licensed barrels were not forfeited ; then 
 the exportation of them was legal, and the insurance thereon is 
 also legal." ^ 
 
 The rule adopted by that court is certainly recommended by very 
 strong" equitable considerations^ and is not apparently attended by 
 any practical objections. 
 
 233. In, case of the capacity of the insurers to contract being- 
 limited by law, the excess of the contract over the limit is void. 
 
 A fire policy being made for ^3500, and the policy itself show- 
 ing that the insurance company was authorized to insure only 
 $3000, it was held to be void for the surplus.^ 
 
 234. Wliere an agent ships goods for divers principals, some 
 of whom are of opposite belligerent countries, others neutral, and 
 insures them all in the same policy, on account of his principals 
 respectively, who have between themselves no partnership or joint 
 interest, the policy being made in one of the belligerent countries, 
 is valid in respect to the interest of the subjects of that country, 
 and also that of the neutrals.'^ 
 
 In such case it was held that the legal interests are not con- 
 taminated by the illegal ; and there does not appear to be any 
 reason that the comprehending of all the divers shipments, in one 
 general valuation indiscriminately, should affect the validity of 
 the contract as to the lawful goods, since this is merely substitut- 
 ing another value, proportionately, for the invoice value.^ The 
 interests were stated in proportions of a sixteenth, eighth, 
 (fec.*^ 
 
 235. In the preceding case the interests in the goods and those 
 in the policy were entirely distinct, having no connection except 
 
 1 Pieschell v. AUnutt, 4 Taunt. 792. 3 Holmes i;. Charlestown Mut. Fire 
 See also Butler v. AUnutt, 1 Stark. 222, Ins. Co. 10 Mete. Mass. 21 1. 
 
 a precisely similar case. ^ Hagedorn v. Bazette, 2 Maule &'S. 
 
 2 Keir V. Andrade, 6 Taunt. 498; 2 100. 
 Marsh. 196. See also The Vriendschap, 5 ibid. 
 4 C. Kob. Adm. 166. 6 Ibid. 
 
 VOL. I. 12
 
 13-1 INSURABLE INTEREST. [CHAP. III. 
 
 the transaction through the same agency, and the insurance in 
 the same policy. 
 
 But where the interests are joint and inseparably connected, 50 
 that the loss or gain necessarily affects all the parties interested in 
 the property and in the policy, if the insurance of any of the 
 parties is in contravention of law, or the interest of any party is 
 contaminated by such contravention, relative to the property or 
 risk, the whole interest is contaminated, and the insurance is 
 void.^ 
 
 236. Tlie official character of a neutral consul in a belligerent 
 country, does not confer upon him any commercial privilege? 
 
 237. The circumstance that the goods of a belligerent subject^ 
 destined to the enemy at his risk, are to go first to a neutral port, 
 will not make the adventure lawful. 
 
 During a war between Great Britain and Holland, it was not 
 permitted to a British merchant to send goods to Embden, then 
 a neutral port, with the view of sending them forward, on his 
 own account to a Dutch port.^ 
 
 238. Wliere a country is in possession of the troops of the enemy ^ 
 but continues to be under the administration of its own govern- 
 ment, the inhabitants have been considered as neutrals in some 
 cases.^ In general, however, " though acquisitions made during 
 war are not considered as permanent until confirmed by treaty, 
 yet, to every commercial and belligerent purpose, they are con- 
 sidered as a part of the domain of the conqueror, so long as he 
 retains the possession and government of them. ^ 
 
 In the case of goods shipped for Messina, a friendly port, but 
 consigned to the subject of a neutral nation resident at Leghorn, 
 a port at that time occupied by the enemy, the trade was ruled 
 by Lord EUenborough to be lawful, and the insurance valid.^ 
 
 239. A ship is reputed to have the character of the nation under 
 
 1 Clark V. Protection Ins. Co. 1 Stor, 3 The Jonge Pieter, 4 C. Rob. 79. 
 C. C. 109. The expression of the doc- 4 Hagedorn v. Bell, 1 Maule & S. 
 trine on the subject by Mr. Justice Story 450. 
 
 in this case is more general than that ^ Thirty Hogsheads of Sugar r. Boyle, 
 
 of the text, but I understand his mean- 9 Cranch, 191. 
 
 ing to be limited as in the text. ^ Bromley v. Hesseltine, 1 Campb. 
 
 2 Albright v. Sussman, 2 Ves. & B. 75. 
 Ch. Ir. 323.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 1-35 
 
 the flag and pass of which she sails, -^ and consequently is not 
 insurable if she sails under the flag- and pass of the enemy. But 
 the flag does not determine the national character of the cargo. ^ 
 
 240. Where a resident in one country there insures his interest 
 in ships fitted out from and bearing the flag and national character 
 of another in which the other part-owners reside, the policy is valid 
 against detention by such other country, preliminary to and fol- 
 lowed by hostilities between the tivo countries.^ 
 
 But the interest which a person resident in a neutral country- 
 has in a house of trade established in the country of the enemy, 
 has been considered to have the national character of the hostile 
 country.* 
 
 241. If property is seized provisionally in contemplation of hos- 
 tilities, and war is afterwards declared, the declaration will have 
 a retroactive operation in respect to the property so seized, which 
 will be liable to confiscation in the same manner as if the declara- 
 tion had preceded the seizure.^ 
 
 242. As the personal disability of an alien enemy to make con- 
 tracts and bring actions may be removed, by his privilege of hold- 
 ing property, or by a safe-conduct, or a license, so a license or 
 privilege granted by suflicietit authority will, in like manner, make 
 it lawful in a subject to carry on trade with the public enemy, and 
 any property employed, or trade conducted, within the privilege, 
 will not be divested of any of the rights which usually belong to 
 it, and it may accordingly be insured. 
 
 243. Whatever man or body of men, in a community, has the 
 power of declaring and carrying on loar, the same has, as incident 
 to such power, the right to qualify the declaration, and exempt 
 any persons or property from its operation. 
 
 This is only continuing or restoring peace, as to some of the 
 subjects of a foreign state or their property, or as to particular 
 descriptions of trade. There is indeed some qualification of hos- 
 tilities, or something of the character of peace, in all wars between 
 civilized nations, as in the case of cartels, flags of truce, and all 
 
 » The Vrow Elizabeth, 4 C. Rob. 2 ; 5 The Boedes Lust, 5 C. Rob. 233 ; 
 
 The Vreede Scholtys, 5 C. Rob. 5, n. The Herstelder, 1 C. Rob. 113; Lu- 
 
 2 The Vreede Scholtys, 5 C. Rob. 5. cena v. Craufurd, 8 Term, 13 ; 3 Bos. 
 
 3 Rotch V. Edie, 6 Term, 413. & P. 75 ; 5 Bos. & P. 269. 
 * The Friendschaft, 4 Wheat. 105.
 
 136 
 
 INSURABLE INTEREST. 
 
 [chap. III. 
 
 the cases that come within the rules of civilized warfare. Licenses 
 and privileges to individuals, or to specific property or kinds of 
 trade, are only an extension of the principles upon which such 
 rules are founded, with this distinction, that the rules of warfare 
 may be the dictates of humanity, whereas licenses and exemp- 
 tions, in respect to trade, are usually granted upon considerations 
 of interest. 
 
 244. To divest a trade of its hostile character the license under 
 which it is conducted must be granted by a sufficient authority} 
 
 245. It can be used only by the persons in ivhose favor it is 
 granted,^ and is not transferable unless it appears to be so on its 
 face ; ^ but may run " to any person^'' in which case it may be used 
 by an enemy subjects 
 
 246. It avails only for the time specified^' 
 
 247. The trade must be conducted in compliance with the terms 
 and conditions, and within the limits of the license.^ 
 
 1 Vanharthals v. Halbed, 1 East, 
 487, n. ; Vandyck v. Whituiore, 1 East, 
 475; Shiffner v. Gordon, 12 East, 296; 
 Schroeder v. Vaux, 15 East, 52 ; The 
 Hope, 1 Dods. Adm. 226. 
 
 2 Fayle v. Bourdillon, 3 Taunt. 546 ; 
 Usparicha v. Noble, 13 East, 332 ; Feise 
 V. Bell, 4 Taunt. 4 ; Morgan v. Oswald, 
 3 Taunt. 554 ; Klingender v. Bond, 14 
 East, 484; Rawlinson v. Janson, 12 
 East, 223 ; The Beurse Van Konnigs- 
 berg, 2 C. Rob. 169 ; The Jonge Jo- 
 hannes, 4 id. 263 ; The Jonge Klassina, 
 5 id. 297 ; The Cousine Marianne, Edw. 
 Adm. 346 ; Busk v. Bell, 16 East, 3; 
 Barlow v. M'Intosh, 12 East, 311 ; S. C. 
 3 Campb. 160 ; S. P. Robinson v. Chees- 
 wright, 1 Maule & S. 220 ; Hagedorn 
 V. Bazette, 2 Maule & S. 100 ; Waring 
 V. Scott, 4 Taunt. 605 ; Vaughan v. 
 Lemcke, 7 Dowl. & R. 236 ; S. C. 8 
 Moore, 646, 1 Bingh. 473; Grigg v. 
 Scott, 4 Campb. 339, Holt, 129 ; Rob- 
 inson V. Morris, 5 Taunt. 720 ; Feise v. 
 Newnham, 16 East, 197 ; Mennet v. 
 Bonham, 15 East, 477 ; HuUman v. 
 Whitmore, 3 Maule & S. 337. 
 
 3 Feise v. Thompson, 1 Taunt. 121. 
 
 4 The Louisa Charlotte, 1 Dods. Adm. 
 308 ; Mennet v. Bonham, 15 East, 
 477. 
 
 5 Robinson v. Touray, 1 Maule & S. 
 217; Feise v. Waters, 2 Taunt. 248 
 Siffkin V. Allnut, 1 Maule & S. 39 
 Freeland v. Walker, 4 Taunt. 478 
 Leevin v. Corniac, 4 Taunt. 483 ; Wil 
 liams V. Marshall, 1 J. B.Moore, 168 
 2 Marsh. 292; 6 Taunt. 390; 7 Taunt 
 468; Tullock v. Boyd, 1 Moore, 174 
 
 7 Taunt. 471 ; The Goede Hoop, Edw. 
 Adm. 327; The Carl, id. 339; The 
 Johan Pieter, id. 355 ; Groning v. 
 Crockat, 3 Campb. 83 ; Siffkin v. Glov- 
 er, 4 Taunt. 717. 
 
 6 Le Cheminant v. Pearson, and Same 
 V. Allnutt, 4 Taunt. 367 ; Hagedorn v. 
 Reid, 1 Maule & S. 667, 3 Campb. 377 
 Hullman v. Whitmore, 3 Maule & S, 
 337 ; Anthony v. Moline, 5 Taunt. 711 
 Rucker v. Ansley, 5 Maule & S. 25 
 Everth v. Tunno, 1 Barnew. & Aid 
 142; Butler v. Allnutt, 1 Stark. 222 
 The Cosmopolite, 4 C. Rob. 8 ; The 
 Hoffnung, 2 id. 162 ; The Jonge 
 Arend, 5 id. 14 ; The Juffrow Catharina, 
 5 id. 141; The Clio, 6 id. 67; The
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 137 
 
 248. But a license to a citizen to trade with the enemy, or to an 
 enemy to trade, has been considered to be a proper subject for a 
 liberal construction} 
 
 249. Stress of weather, or other unforeseen, absolute necessity, 
 will excuse a deviation from the course specified by the license;"^ 
 but compulsion by the enemy to take goods on board cannot be 
 alleged.^ 
 
 250. A license will not operate retrospectively, so as to devest 
 vested rights, as those of captors.^ 
 
 251. A licensed shipment is not affected by one unlicensed, made 
 by a difterent shipper, on board of the same vessel.^ 
 
 252. The license being forfeited, or its terms not complied with^ 
 insurance upon the trade with the enemy, or upon enemy property 
 licensed, will thereupon be void. 
 
 253. As a license from a merchant's own government renders 
 a trade lawful which would otherwise be unlawful, so a license or 
 privilege from an enemy, or belligerent, invests the licensed trade 
 with the national character of the license.^ 
 
 Thus, in the case of a voyage from the United States to Portu- 
 gal, with which the United States were at peace. Great Britain 
 being at the same time at war with the United States, where the 
 ship had on board a license from a British admiral, for the pur- 
 Twee Gebroeders, Edw. Adm. 95 ; The Kensington v. Inglis, 8 East, 273 ; The 
 Byfield, id. 188: The Catharina Maria, Juno, 2 C. Rob. 116; The Planter's 
 id. 336; The Wolfarth, id. 365; The Wench, 5 id. 22; The Goede Hoop, 
 Europa, id. 342; The Vrow Cornelia, Edw. Adm. 327 ; Hullman y. Whitmore, 
 id. 349; The Jonge Frederick, id. 357 ; 3 Maule & S. 337. Mr. Duer remarks 
 The Cornelia, id. 360; The Henrietta, that the doctrine of liberal construction 
 1 Dods. Adm. 168 ; The Hoppett, Edw. of licenses was adopted in England 
 Adm. 369 ; The Speculation, id. 344 ; during the time of Bonaparte's conti- 
 The Twee Gebroeders, id. 95 ; Gordon nental system. 1 Marine Ins. Lect. 6, 
 V. Vaughan, 12 East, 302, n. ; Norville 8. 37. 
 
 «;. St. Barbc, 4 Bos. & P. 434. 2 The Manly, 1 Dods. Adm. 257; 
 
 1 Defflis V. Parry, 3 Bos. & P. 3 ; The Twee Gebroeders, Edw. Adm. 
 Robinson v. Touray, 1 Maule & S. 217 ; 95 ; The Cornelia, id. 360; The Sarah 
 Feise v. Waters, •2 Taunt. 248 ; Fayle Maria, id 361 ; The Minerva, id. 375. 
 V. Bourdillon, 3 Taunt. 546 ; Flindt v. 3 The Seyerstadt, 1 Dods. Adm. 241 ; 
 Scott and Same v. Crockatt, 5 Taunt. The Oster Hisoer, 4 C. Rob. 199. 
 674 ; Usparicha v. Noble, 13 East, 332 ; 4 The St. Ivan, Edw. Adm. 376. 
 Feise v. Bell, 4 Taunt. 4 ; Morgan v. 5 The Jonge Clara, Edw. Adm. 371. 
 Oswald, 3 Taunt. 554 ; Hagedorn v. ^ The Anna Catharina, 4 C. Rob. 
 Reid, 1 Maule & S. 56 7, 3 Campb. 3 7 7; 118. 
 12*
 
 138 INSURABLE INTEREST. [CHAP. III. 
 
 pose of protecting the property from British capture, the voyage 
 was adjudged to be rendered illegal by the use of the license ; ^ 
 and would have been so, even though the license had been pro- 
 cured by the agent, without the owner's knowledge.^ It was held 
 in Connecticut, that such a license, obtained through the minister 
 of the neutral country, to whose territories the voyage was 
 intended, did not render the voyage illegal.^ The Supreme Court 
 of the United States was, however, of opinion, that " the mere 
 sailing under an enemy's license constituted of itself an act of 
 illegality." * An agreement that a ship should have one of these 
 licenses on board, was held in New York to be illegal and void, 
 and so was a policy warranting the ship to have such a license.^ 
 
 254. A cartel for exchange of prisoners between bellig-erents, 
 is, by the modern usage of nations, put upon the footing of a vessel 
 licensed by the belligerents for that purpose.^ The cartel may 
 be characterized as a messenger under a flag of truce ; and it 
 may be bottomried in the enemy port, to an enemy lender.'^ 
 
 255. The transfer of belligerent or enemy property while in 
 transitu at sea, to a neutral, for the purpose of screening it from 
 capture, does not change its national character ; ^ nor does the 
 countermand of the consignment in transitu by a belligerent con- 
 signor, where the neutral consignee, at whose risk it was shipped, 
 is solvent.^ 
 
 1 The Julia, 8 Crancb, 181. See capture, did not render the voyage 
 
 also The Aurora, 8 Cranch, 203. illegal or make a policy on the cargo 
 
 'i The Hiram, 1 Wheat. 440. void. Parker, C. J., said: "Even if 
 
 3 Bulkley v- Derby Fishing Co. 1 the parties had incurred a penalty for 
 Conn. 571. possessing the paper, still the voyage 
 
 4 The Ariadne, 2 Wheat. 143. See was left untainted, and the insurance 
 also Craig n. United States Ins. Co. 1 valid." Hay ward i\ Blake, 12 Mass. 
 Pet. 410. 176. But this case is inconsistent with 
 
 5 Ogden V. Barker, 18 Johns. N. Y. the preceding ones, and with the cur- 
 87 ; Colquhoun v. N. Y. Firemen's Ins. rent of jurisprudence bearing on the 
 Co. 15 Johns. N. Y. 352. But a policy subject. 
 
 on one of these licenses, valued at a ^ The Daifjie, 3 C. Rob. 139; La 
 
 certain sum, was decided in Massachu- Gloire, 5 id. 192 ; The Mary, 5 id. 
 
 setts to be a valid and legal contract. 200. 
 
 Perkins v. N. E. Marine Ins. Co. 12 i The William Penn, Pet. C. C. 106. 
 
 Mass. 214. And accordingly the same ^ The Vrow Margaretha, 1 C. Rob. 
 
 court held, that the having such a 336; The Carl Walter, 4 id. 207; The 
 
 license on board of the ship, for the Jan Frederick, 5 id. 128. 
 
 purpose of protecting the cargo against ^ The Constantia, 6 C. Rob. 321.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 139 
 
 256. A mere!]/ colorable, pretended sale, or retaining- of the 
 title to property sold, does not prevent the subject from being 
 adjudicated upon according to the real ownership of the property} 
 
 257. A sale to a neutral of a public belligerent vessel, chased 
 into a neutral port, which it could not leave without being 
 captured, is void as against the claim of the cruiser ; ^ but it is 
 othenvise of a private vessel? 
 
 258. A neutral whose property is implicated in the commerce 
 of a belligerent country, at the breaking out of a war, is allowed 
 sufficient opportunity to disentangle it, before it will become 
 impressed with the hostile character of the country.^ 
 
 259. Property shipped at the shipper^ s risk to an enemy, on an 
 agreement for sale to the latter on delivery at the port of destina- 
 tion, is undoubtedly not insurable by the shipper, being shipped in 
 pursuance of an illegal contract. 
 
 260. Property shipped by a neutral, in like manner, to a belliger- 
 ent, has been considered belligerent while in transitu,^ but may be 
 legally insured in either the country of the shipper or that of the 
 consignee. 
 
 261. Tlie lien which a neutral ship has on belligerent goods on 
 board of it, for freight or for contribution or for jettison, is a neu- 
 tral interest, and as such is undoubtedly legally insurable, in 
 either belligerent country, being recognized by the general law to 
 be a valid claim as against the captors of goods, of which the 
 neutral owner of the ship has possession.^ 
 
 1 The Omnibus, 6 C. Rob. 71 ; The The Frances, Thompson's Claim, 8 
 Sechs Geschwistern, 4 id. 100; The Cranch, 335, 1 Gall. C. C. 455, 616; 
 Vrow Hermina, 1 id. 163; and Admi- The Ann Green, 1 Gall. C. c' 274- 
 ralty Jurisprudence passim. Opinion of Kent, J., in Ludlow v. 
 
 2 The Minerva, 6 C. Rob. 396. Bowne, 1 Johns. N. Y. 1 ; 1 Kent, 
 '^ IWd. Com. 86, 87, 5th ed. A majority of the 
 * The Dree Gebroeders, 4 C. Rob. court in Ludlow v. Bowne, ut supra. 
 
 232; The Adriana, 1 id. 313; The De Wolf r. N. Y. Firemen's Ins. Co. 
 
 Jacobus Johannes, 1 id. 14, which was 20 Johns. N. Y. 214, and S. C. 2 Cow. 
 
 the case of a neutral partner of a house N. Y. 56, are opposed to the doctrine 
 
 in the belligerent country ; The Osprey, stated in the text ; in the latter of which 
 
 1 id. 14. See also Vattel and Azuni. cases the doctrine is denounced by Spen- 
 
 5 The Sally, 3 C. Rob. 300, n. ; The cer, C. J., of the Supreme Court, in 
 
 Vrow Margaretha, 1 id.336 ; The Pack- strong terms. See 1 Duer. Mar. Ins. 
 
 et de Bilboa, 2 id. 133 ; The Jan Fred- 421, Lect. 4, s. 13, and note 3, p. 478. 
 
 erick, 5 id. 128 ; The Atlas, 3 id. 299 ; o The Rising Sun, 2 C. Rob. 104 ;
 
 140 INSURABLE INTEREST. [CHAP. III. 
 
 There is a distinction between these claims by neutrals and 
 other Kens, as one for advances made by a foreign agent of a neu- 
 tral for the purchase of goods on an order of a belligerent, to 
 whom they are consigned, or that of a neutral shipper of goods 
 consigned to a belligerent consignee, from whom a "general bal- 
 ance of account is due to such shipper.^ 
 
 In case of the former claims, the neutral ship-owner has ren- 
 dered a service by transporting or saving the property, of which 
 the captor ought not to avail himself without making compensa- 
 tion ; but in the other cases the lien is of a different description, 
 and is not recognized as valid against the captor. 
 
 So the claim of a neutral shipper against a belligerent ship, for 
 contribution on account of jettison of goods, is not recognized in 
 the prize courts as binding on the captor of the ship,^ for the ship- 
 per has not a lien upon the ship, fortified by possession to enforce 
 his claim, as the ship-owner has on the cargo to enforce his ; 
 though the equitable ground for his claim is precisely the same. 
 
 These liens and claims, whether of one description or the other, 
 may be legally insured in a neutral country, as far as they consti- 
 tute liens on the property at risk, audit does not appear that they 
 may not be so, in either belligerent country, care being taken so 
 to describe the interest in the policy, that the risk may be fully 
 understood by the underwriter. The interest and liens are in all 
 the cases equally neutral, and though one description of liens or 
 claims upon the property is respected by the prize courts, and 
 the other is not recognized, the reasons for holding that insurance 
 on enemy property cannot be permitted by law do not seem to 
 apply to a policy upon either. 
 
 Wherever a party has a claim, satisfaction of which depends 
 upon the safe arrival of property at its destination, he has a suffi- 
 cient insurable interest in its arrival, though, if no lien exists, he 
 has no insurable interest in the property itself that will be covered 
 by a general insurance upon it. The contract of idemnity should 
 specify the interest upon which the insurance is made, and the 
 event insured against ; that is, the event whereby the party hav- 
 ing the claim may be prevented from obtaining satisfaction. 
 
 The Marianna, 6 id. 24. See also The i The Frances, Irving's Claim, 8 
 
 HofFnung, 6 id. 383, and The Frances, Cranch, 418. 
 
 Irving's Claim, 8 Cranch, 418. 2 The Hoffnung, 6 C Rob. 383.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 141 
 
 Where the party so interested has rightful possession of the 
 property, his interest is equivalent to that of a part-owner, and 
 the interest of a part-owner is respected in the prize courts, 
 though the other part-owners are belligerent, provided the whole 
 property has not some belligerent badge.^ 
 
 262. The belligerent character of a ship has been considered 
 not to be at all qualified by bottomry to a neutral^ and the ship so 
 hypothecated has been condemned in the antagonist belligerent 
 country in the same manner as if there had been no such hypothe- 
 cation.^ 
 
 263. So, where goods become enemy property, the lien of an 
 agent is not distinguishable, but the whole property will be con- 
 sidered as enemy property without any exception of the lien;^ 
 
 So Sir William Scott decreed of a bottomry bond held by an 
 English subject on a ship that became enemy property.^ 
 
 264. The question occurs whether the authorized exercise of 
 the right of stopping goods in transitu to a neutral, by a belligerent 
 vendor, restores their belligerent character, or those in transitu to 
 a belligerent, by a neutral vendor, restores their neutral character ? 
 
 This question does not appear to have occurred in judicial juris- 
 prudence. Judge Duer ^ is of opinion, that on this right having 
 been duly exercised, before the capture of the goods, they become 
 reinvested with the national character of the consignors. And 
 this opinion seems to be just, and is impliedly sanctioned by Sir 
 William Scott.^ Though the right is merely a lien, yet when the 
 party having a lien has taken possession of the subject in virtue 
 of the lien, he is entitled and liable to be treated as proprietor in 
 respect of all other persons than the cestui que trust, that is, the 
 consignee and his representatives, and he or they can only 
 demand redelivery on payment of the price, or an account of the 
 
 » See Barker v. Blakes, 9 East, 283 ; character of a ship is not affected by its 
 
 Visger v. Prescott, 5 Esp. 184. hypothecation to a belligerent ? 
 
 2 The Imina, 3 C. Eob. 167; The 3 The Frances, Irving's Claim, 8 
 
 Lisette, 6 id. 387 ; The Trende Sostre, Cranch, 418 ; Mr. C. J. Marshall absent, 
 
 6 id. 390, n. ; and the same doctrine is and Mr. J. Washington dissenting, 
 asserted by Mr. Pinckney, the counsel, * The Tobago, 5 C. Rob. 218; The 
 
 and acquiesced in by C. J. Marshall, in Marianna, 6 id. 24. 
 The Mary, 9 Cranch, 132. Would it ^ i Mar. Ins. 433, Lect. 4, s. 30, 31. 
 not follow, e converso, that the neutral 6 The Constantia, 6 C. Rob. 321.
 
 142 INSURABLE INTEREST. [CHAP. III. 
 
 proceeds and payment over of the surplus.^ In case of capture 
 before the countermand of the bill of lading, this lien would be 
 disregarded, as is that of a neutral upon enemy ship or goods. 
 But the countermand of the bill of lading is equivalent to the 
 possession of a pledge. The captor who should take the goods 
 after the countermand, ought to be thereby subrogated to the 
 rights of the consignee. 
 
 265. Whether the owner of a registered ship has a legal insur- 
 able interest, without compliance ivith the provisions of the regis- 
 try act ? 
 
 There is a diversity in the decisions on this question. 
 
 The provisions of the British law of registry,^ and of that of 
 the United States,^ are similar, the requirement of each being, 
 that the ownership of registered vessels shall be truly stated in 
 the register, and that all transfers shall be minuted in the docu- 
 mentary evidence of the ownership, so as always to exhibit the 
 true state of the ownership ; the objects of the legislature of both 
 countries being to encourage domestic ship-building and the 
 home commercial marine, by giving privileges to home-built and 
 home-owned shipping, and the object of these laws can be 
 effected only by such a construction and administration of them 
 as shall prevent vessels not home-built and home-owned from 
 enjoying the privileges granted by the laws. 
 
 In pursuance of this policy. Lord Kenyon and the other judges 
 of the King's Bench, in his time, held, that no interest legal or 
 equitable, in registered vessels, could be recognized by the courts 
 of law, whether in a case of insurance, or any other, in favor of 
 the party claiming such interest, unless it appeared in the docu- 
 mentary evidence of ownership. 
 
 The case before Lord Kenyon was that of a policy upon a ves- 
 sal registered in the names of two persons, copartners, who after- 
 wards took two others into copartnership, on an agreement for a 
 joint interest in all the property of the firm, without making any 
 alteration of the register. The policy was for whom it might 
 concern, and the action was in the names of all four copartners.* 
 
 1 See supra, s. 1, No. 178, as to the 2 Stat. 2G Geo. III. c. 60, s. 3. 
 
 right of stopping in transitu, as affect- 3 Act of Congress, 1792, c. 1, s. 14, 
 
 ing the sufficiency of the insurable in- and 1797, c. 61, s. 2. 
 
 tefest. 4 Camden v. Anderson, 5 Term, 709.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 143 
 
 Lord Chancellor Eldon, some twenty years afterwards, 1808, 
 adopted this doctrine in its full extent.^ But he intimated a 
 doubt, whether the doctrine would apply to every species of 
 equitable interest, as that of assignees in bankruptcy, or that of 
 executors and administrators, where the change of interest takes 
 place by operation of law. 
 
 The doctrine thus laid down runs through the English juris- 
 prudence.2 
 
 In a case of insurance in the name of A, on a ship registered 
 in the name of A and B, on the oath of A to their ownership, 
 Mr. Justice Story held that the assured could not be permitted to 
 show that the ship's papers were false, and the ownership was 
 entirely in himself.^ 
 
 In some of the State courts it has been held, that an interest 
 in a registered ship, as well as in any other chattel, may be trans- 
 ferred by a sale and delivery without writing; as in the Supreme 
 Court of New York,* and in the Superior Court of the city of 
 New York.^ And in a case before the Supreme Court of Massa- 
 chusetts, a partnership consisting of three partners was permitted 
 to pro\'« its ownership of half of a vessel, registered in the name 
 of one of them, who was credited with such half in the books of 
 the firm, and that of a third person. It was remarked that the 
 register was only prima facie evidence of the ownership.^ 
 
 So it was held that an owner could not avail himself of the 
 omission of his name in the register to avoid a claim for sup- 
 plies." 
 
 The Supreme Court of the United States held, that the omis- 
 
 1 Yallop, Ex parte, 15 Ves. GO; 4 Wendover v. Hogeboom, 7 Johns. 
 
 Houghton, Ex parte, 1 7 Ves. •25.'5. N. Y. 308, 
 
 a Everth v. Blaekburne, 2 Stark. 66 ; 5 Ring y. Franklin Ins. Co. 2 Hall, 
 
 Marsh v. Robinson, 4 Esp. 98; Camp- N. Y. 1. 
 
 bell v. Stein, 6 Dow, Pari. Cas. 116; 6 Bixby v. Franklin Ins. Co. 8 Pick. 
 
 RoUeston i^. Hibbert, 3 Term, 406, and Mass. 86. See also, to the same effect, 
 
 4 East, 114; The Sisters, 5 C. Rob. Lazarus v. Commonwealth Ins. Co. 5 
 
 138 ; 1 id. 155, 438. A mere clerical pi^k. Mass. 86 ; Hatch v. Smith, 5 Mass. 
 
 mi.stakc in such documentary evidence 53 ; Pratt v. Phoenix Ins. Co. 1 Browne, 
 
 is held not to vitiate the title. Rolles- Penn. 267; Badger v. Bank of Cum- 
 
 ton i;. Smith, 4 Term, 161. berland, 26 Me. 428. 
 
 3 Ohl V. Eagle Ins. Co. 4 Mas. C. C. 7 Vinal v. Burrill, 16 Pick. Mass. 
 
 172. And see Jacobsen's Sea Laws, 401. 
 B. 1, c. 22; Duncanson v. M'Clure, 4 
 Dall. 308.
 
 144 INSUEABLE INTEREST. [CHAP. III. 
 
 sion to surrender the old register, as required by the act of Con- 
 gress,^ did not defeat the policy upon the vessel constructed upon 
 its keel, floor timbers, and naval timbers, and enrolled under a 
 different name.'^ 
 
 On the whole, for the reasons given in the above cases, par- 
 ticularly those given by the Supreme Court of the United States, 
 the better doctrine seems to be, that, in the United States, in the 
 absence of fraud, and of intent to Kse the ship illegally, the owner 
 of a registered ship has a legal insurable interest in it, though the 
 ownership is not accurately stated in the register. 
 
 266. Tlie ship-owner is not subject to have the registry laws of 
 his own country alleged against him in the courts of a foreign 
 country, to defeat his insurance on a vessel on the ground of ille- 
 gality.^ 
 
 267. Where the law requires vessels to take a pilot, or forfeit 
 half of the pilotage, the not taking of one is not such an illegality 
 as to avoid the insurance.'^ 
 
 The forfeiture in such case is rather a contribution towards the 
 expense of maintaining a system of pilotage, than a punishment 
 for a misdemeanor. Besides, the delinquency, if it be one, is 
 remote and incidental, and distinct from the interest in the vessel 
 and the risk. 
 
 268. It is a general doctrine, that p^'operty held or used, or con- 
 tracts made in contravention of the commercial regulations of a 
 foreign state, do not vitiate a right or title. 
 
 It is said that one state does not take notice of the revenue 
 laws, or commercial regulations, or municipal laws of another. 
 The doctrine is probably derived from the notion, and to some 
 extent, the fact, that the commercial regulations of different 
 states, though at peace, originate in competition and rivalry. 
 
 Again, some countries, Spain and Portugal particularly, have 
 imposed many commercial restrictions, which their own subjects 
 are in the habit of violating, and it would be excessive severity 
 in a government to require of its subjects an exact observance of 
 
 1 Act of 1792, c. 45, s. 14. 4 Flanigan y. Washington Ins. Co. 
 
 2 Ocean Ins. Co. v. PoUeys, 13 Pet. 7 Penn. St. 307. And see Keeler v. 
 157. Firemen's Ins. Co. 3 Hill, N. Y. 250. 
 
 3 Khind v. Wilkinson, 2 Taunt. 237.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 145 
 
 the laws of any such foreign country, which are disregarded by 
 the people of that country themselves. 
 
 In pursuance of this doctrine, a legal insurable interest in goods 
 exported to a foreign country, in contravention of its laws, is recog- 
 nized by the courts of the country from which they are exported.^ 
 
 269. The mere knowledge by the foreign vendor of goods, that 
 the purchaser intends to employ them at home in contravention of 
 the latvs of trade, will not render the contract void, or prevent the 
 vendor from recovering the price against the purchaser, in the 
 courts of the country of the latter, provided he lends no aid to 
 such contravention. 
 
 As where the goods are intended by the purchaser to be smug- 
 gled.^ 
 
 But if the purchaser, as part of the contract, or transaction, ^oes 
 any act auxiliary to such contravention of law, he cannot set up his 
 contract in the foreign country. 
 
 Goods were exported from England, in the ship Croydon, on 
 the master's giving a bond, required by law, to employ them in 
 trade on the coast of Africa. It had been agreed at Liverpool 
 between the Croydon and the American ship Washington, that, 
 on their arriving on the coast of Africa, the goods should be 
 delivered on board of the latter. They were so delivered, and 
 there employed in trade. It was held that a policy made in 
 England on the Washington, at and from the coast of Africa,, 
 was void, on the ground that, in pursuance of a contract made ia 
 England, she was employed, in cooperation with the Croydon, in* 
 contravention of the British law, and Gibbs, C. J., is reported to- 
 have said : " If a foreigner, resident in a foreign country, aids to 
 pack the goods for smuggling, he cannot recover the price of 
 them here."^ 
 
 270. The latv of nations makes it the duty of a nation, profess- 
 ing to be neutral, to abstain from assisting either belligerent to 
 carry on a war, by furnishing soldiers, ships of war, arms, or war- 
 like stores^ 
 
 1 Gardiner v. Smith, 1 Johns. Cas. S. C. 1 Marsh. 119; and see Gibson v. 
 N. Y. 141. Jurisprudence abounds with Mair, 1 Marsh. 39. 
 
 authorities to the same effect. 4 Richardson v. Maine Ins. Co. 6 
 
 2 Hohuan y. Johnson, Cowp. 341. Mass. 114; 1 Maccabees, c. 8, v. 26; 
 
 3 Gibson V. Service, 5 Taunt. 433; Grot. lib. 3, c. 1, s. 5; Vattel, lib. 3, c. 
 
 VOL. I. 13
 
 146 INSURABLE INTEREST. [CHAP. III. 
 
 271. Either belligerent has a right to capture and confiscate all 
 arms^ warlike equipments, and military supplies, sent by a neutral 
 to the other. Such trade is denominated contraband of war. 
 
 In determining what particular articles of merchandise are con- 
 traband of war, Mr. Marshall says,i " much depends on the power 
 of the party, whether belligerent or neutral," who is deciding the 
 question. A belligerent, possessing a powerful naval force, has 
 an interest in making the list of contraband articles numerous. 
 " Ship-timber, going to a port of naval equipment," ^ pitch and 
 tar,3 sail-cloth,* hemp fit to be used in equipping ships,^ sheathing- 
 copper,^ a ship, intended to be sold for the purpose of being used 
 as a privateer," and also provisions of a kind commonly used as 
 sea-stores, destined to a port of naval equipment,^ have been 
 adjudged by Sir William Scott to be contraband of war.^ 
 
 272. Vattel ^^ says, that provisions may be contraband of war, 
 if destined to a place which one of the contending parties is attempt- 
 in"- to reduce by famine. The writers on the continent of Europe 
 generally maintain that provisions are not contraband of war, 
 unless destined to a place besieged or blockaded.^^ 
 
 In respect to this article, and also cloth, hemp, saddles, harnesses, 
 and other articles used for ordinary purposes of necessity, conven- 
 ience, or luxury, as well as in military and naval equipments, their 
 character, as contraband of war or not, depends upon the place to 
 which they are destined. If they are going to a belligerent port, 
 where articles of the same kind are used for warlike purposes, 
 they may be contraband of war.^^ 
 
 7, n. 103, 104. See also Robinson, Col. 8 The Jonge Margaretha, 1 C. Rob. 
 
 Mar. 54, 63, 123, 184. 189; The Ranger, 6 id. 125. 
 
 1 2d ed. p. 78. 9 See 1 Duer, Mar. Ins. 623-644, 
 
 2 The Endraught, 1 C. Rob. 19. Lect. 7, s. 1-19. 
 
 3 The Sarah Christina, 1 C. Rob. 10 Lib. 3, c. 7, s. 112. 
 
 237 ; The Twee Juffrowen, 4 id. 242; n 2 Val. 264, tit. Des Prises, a. 11. 
 The Richmond, 5 id. 325. 12 The Jonge Margaretha, 1 C. Rob. 
 
 4 The Neptunus, Heinpel, 2 C. Rob. Adm. 189 ; The Frau Margaretha, 6 
 110. id. 92; The Zelder Rust, 6 id. 93; 
 
 5 The Gate Gesellschaft Michael, 4 The Haabat, 2 id. 174; The Ranger, 
 C.Rob. 94. 6 id. 125; The Edward, 4 id. 68; 
 
 6 The Charlotte, 5 C. Rob. 275. Maisonaire v. Keating, 2 Gall. C C. 
 
 7 The Richmond, 5 C. Rob. 325 ; The 325. 
 Brutus, 5 C. Rob. 331, n. and App. 
 
 No. I.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 147 
 
 Provisions intended for naval supplies transported from one 
 port of a belligerent to another, the latter being a port of naval 
 equipment,^ or from one neutral country to another, to supply 
 the fleet of one of the belligerents lying in the port of destina- 
 tion,^ are well settled to be contraband.^ 
 
 273. The well-established doctrine is, that supplies adapted^ 
 and evidentJy intended, to be applied at the belligerent port of 
 destination, for warlike use in the land or naval service, are con- 
 traband of war^ 
 
 The principle universally acknowledged respecting the neces- 
 sity of notice to neutrals of a blockade, shows that a neutral 
 cannot legally be made subject to surprise as to what is contra- 
 band of war. No article can be so, unless notice and knowl- 
 edge can be imputed to the neutral, that it is directly applica- 
 ble, and probably to be directly applied, to purposes of military 
 or naval warfare, at the port of destination. In determining in 
 each case what articles are so applicable, and what is reasonable 
 notice that they will be so applied, the tribunal having jurisdic- 
 tion needs to be sternly guarded against the national predilec- 
 tions, which are, in many respects, not only excusable, but 
 laudable. 
 
 274. Neutral goods, documented as such, with neutral insignia, 
 on board of a merchant-vessel of one belligerent, are not legally 
 subject to capture by the other belligerent.^ But goods on board 
 of a vessel of a belligerent nation are presumed to have ita 
 national character, unless they are otherwise documented.^ 
 
 275. Neutral goods documented toith a belligerent character, 
 are subject to be treated as belligerent property? 
 
 276. Every kind of properly belonging to the subject of a neu- 
 tral state, destined to a blockaded port, or besieged, town, is contra- 
 band of war.^ 
 
 277. Wliere a neutral is concerned in the trade of one bellig- 
 
 1 The Edward, 4 C. Rob. Adm. 68. 6 The London Packet, 1 Mas. C. C. 
 
 2 The Commercen, 1 Wheat. 382; 14. 
 
 S. C 2 Gall. C. C. 264. 7 The Princessa, 2 C. Rob. Adm. 
 
 3 See also Maisonaire v. Keating, 2 49. 
 
 Gall. C. C. 325. 8 2 Val. 264, tit. Des Prises, a. 11 ; 
 
 * Ibid. Robinson Col. Mar. 158. 
 
 6 The Catharina Elizabeth, 5 C Rob. 
 Adm. 232.
 
 148 INSURABLE INTEREST. [CHAP. III. 
 
 erent, that is in its nature invested with a national character, his 
 property so employed is, as already stated, subject to be dealt with 
 by the other belligerent as enony property. 
 
 As in the case of the interest of a neutral in a house estab- 
 lished in one of the belligerent countries, and trade under a 
 special privilege granted by a belligerent.^ 
 
 278. This general doctrine gives rise to the much-vexed ques- 
 tion, Whether the trade betiveen a belligerent and its colonies, 
 from which other nations had been excluded before a war, and 
 were only admitted to it during the war on account of the ex- 
 posure of the belligerent's own vessels and property to capture 
 by the other belligerent, is subject to be treated by the other bellig- 
 erent as a privileged trade of the enemy, and to capture and 
 condemnation as such ? 
 
 In the wars growing out of the French revolution of 1789, and 
 during the reign of Napoleon, the trade between France and its 
 colonies was thrown open to neutrals. American merchants 
 went into this trade, and their property, the produce of the 
 French colonies, was captured and condemned by the English, 
 in great amounts. The American government strongly pro- 
 tested against the doctrine upon which these condemnations 
 proceeded, and still more decidedly, and with good reason, 
 against a new modification of the doctrines of national law, 
 as this was, being sprung upon the American merchants without 
 a formal, explicit notice ; and the dissatisfaction with those deci- 
 sions was no doubt one among the causes of the war between 
 the United States and England in 1812. 
 
 This question is elaborately examined by Judge Duer.^ 
 
 That such a trade, opened to all neutral nations indiscriminately, 
 is not to be treated as contraband by the other belligerent ivithout 
 previous official notice from such other belligerent, results palpably 
 from the doctrines above stated and not disputed. 
 
 1 Supra, No. 253. The Phoenix, 5 id. 20; The Rose, 2 id. 
 
 2 1 Mar. Ins. G99-725, Lect. 8, s. 1- 20G ; The Rendsborg, 4 id. 121 ; The 
 10. SeeThelmmanuel, 2C.Rob. Adm. Welvaart, 1 id. 122; The Wilhelmina, 
 186 ; The Convenientia, 4 id. 201 ; The 4 id. App. 4 ; The Minerva, 3 id. 232 ; 
 Essex, 5 id, 369 ; The Johanna Tholen, The Thoniyris, Edw. Adm. 17; Wait's 
 6 id. 72 ; The Jonge Thomas, 3 id. 233 ; American State Papers, 1806, and 
 The Polly, 2 id. 361 ; The Providentia, subsequently; Berens v. Rucker, 1 W. 
 2 id. 142; The Rebecca, 2 id. 101; Blackst. 313; Vasse r. Ball, 2 Dall. 270.
 
 SECT. II.] THE LEGALITY OF THE INTEREST. 149 
 
 Sir William Scott acknowledged as much, for he alleged de- 
 crees of his own as a sufficient notice. But this has been con- 
 sidered, in this country at least, to be an extreme assumption of 
 belligerent privilege. 
 
 It is not easy to lay down any general rule whereby to dis- 
 criminate the circumstances under which such a trade can jus- 
 tifiably be treated by a belligerent as privileged by the enemy. 
 
 279. The contraband character attaches to goods at the com- 
 mencement of the voyaged 
 
 280. A contraband character does not attach to goods or funds 
 intended for the purchase of contraband goods, nor to the proceeds 
 of the contraband articles. 
 
 281. Tlie vessel, and the property of the owners on board, are 
 liable to forfeiture for contraband trade during the passage on 
 which such trading is attempted or done, and until arrival to the 
 next subsequent port of delivery or loading after that of its then 
 destination. 
 
 The admiralty decisions usually state the liability to continue 
 at least to the end of the same or subsequent " voyage " or ad- 
 venture ; but since this may include divers passages, and be 
 prolonged almost indefinitely, I venture to state the doctrine in 
 the above form as being more definite, and as answering better 
 to the grounds alleged by the admiralty tribunals in determining 
 the period during which the liability to seizure or capture con- 
 tinues.2 
 
 1 The Imina, 3 C. Rob. Adm. 167. termination of the pending passage. 
 
 2 See The Christianberg, 6 C. Rob. Digest of Law of Capture, p. 183, and 
 Adm. 376; The Randers B}e, 3 id. International Law, Vol. 11. p. 219. 
 382, n. ; The Nancy, the Widow Black Some of the earlier of the above 
 & Co. claimants, 3 id. 122 ; The Rosalie cases do not go to the e.xtent of the 
 and Betty, 2 id. 343 ; The Rosalia and doctrines stated in the te.xt. In the 
 Elizabeth, 4 id. note to table of cases ; later decisions of Sir William Scott, 
 Parkman i\ Allen, 1 Stair, Dec. 29 ; S. the period of the liability of a neutral 
 C. 6 C. Rob. Adm. 382 ; The Marga- vessel to capture, on account of un- 
 rette, 1 Act. Cas. 333 ; The Joseph, 8 neutral trading or conduct in a passage 
 Cranch, 451, 1 Gall. C. C. 545; Car- in the course of an Ea-st India voyage, 
 rington v. The Merchants' Ins. Co. 8 comprehending divers passages and 
 Pet. 495; Kent's Com., 5th ed. 151, ports of loading and discharge, is very 
 n., 1 Duer, Mar. Ins. 627, Lect. 7, much prolonged. The principle on 
 s. 8, n. Mr. Whcaton is of opinion which the limitation of the right of sub- 
 that the liability ought to cease on the sequent capture is put, is, that the 
 
 13*
 
 150 
 
 INSURABLE INTEREST. 
 
 [chap. III. 
 
 282. Trade by a neutral in articles contraband of tvar exposes 
 the property involved in it to capture and condemnation by a bel- 
 ligerent, but it is not a violation of the duty which he owes to the 
 law of his own country} 
 
 Chief Justice Parsons says : " We know of no case where a 
 neutral merchant has been punished by his own sovereign for his 
 contraband shipments."^ He says there is no distinction in this 
 respect between an interloping trade, and a trade in articles con- 
 traband of war, and the same opinion seems to be entertained in 
 New York ; ^ and it is universally held to be no violation of the 
 laws of one country for its subjects to carry on an interloping 
 trade in another. It is said, that this right of the neutral to evade 
 a blockade, and to trade in articles contraband of war, is similar 
 to his right to transport the goods of a belligerent, which the other 
 belligerent may seize, and he may detain and carry the neutral 
 vessel into port for the purpose of making a seizure of the goods. 
 That is to say, either trade may be prosecuted by a neutral, and 
 it is no violation of the laws of his own country or that of 
 nations. He merely incurs the peril of forfeiting the goods in 
 
 forfeiture is not cancelled until the 
 belligerent may have had an opportu- 
 nity to enforce his right. To the objec- 
 tion that " if the penalty is applied to 
 the subsequent voyage, it may travel on 
 ■with the vessel forever," Sir William 
 Scott remarked, in 1807, "In principle, 
 perhaps, it might not unjustly be pur- 
 sued further than the immediate voy- 
 age, but it had not been carried further 
 than the voyage succeeding," The right 
 to enforce the penalty at any subsequent 
 period, after sundry subsequent voy- 
 ages, and sales of the subject, and 
 treaties of peace, is thus disclaimed for 
 Great Britain, so far as the authority 
 of its admiralty courts goes, but since 
 it is left in the discretion of the courts 
 to determine how many successive pas- 
 sages and changes of cargo are to be 
 included in the two voyages, the limi- 
 tation of the period within which the 
 forfeiture may be exacted, remains 
 
 quite indefinite, and presents a proper 
 subject for international legislation by 
 treaty. 
 
 In the above-cited case of The Jo- 
 seph, the Supreme Court of the United 
 States condemned an American ship 
 which, after notice of the war of 1812, 
 with England, took a cargo at St. 
 Petersburg for England under a British 
 license, and was captured on the pas- 
 sage thence in ballast to the United 
 States, the defence being a necessity 
 to take freight under the license, in 
 order to raise funds to pay the expense 
 of repairs at St. Petersburg. 
 
 1 Depeyster v. Gardner, 1 Caines, 
 N. Y. 492. 
 
 2 Richardson v. Maine Ins. Co. 6 
 Mass. 113. 
 
 3 Seton V. Low, 1 Johns. Cas. N. Y. 
 1; Skidmore r. Desdoity, 2 id. 77; 
 Juhel V. Rhinelander, 2 id. 120 and 
 487.
 
 SECT. III.] INTEREST OF THE MORTGAER OF PROPERTY. 151 
 
 case of their being seized by a belligerent in one case, or the 
 government whose laws he violates in the other.i Such trade is 
 accordingly a legal subject for insurance. 
 
 283. Fitting out a privateer by neutrals in a neutral port, to 
 cruise under a flag of one belligerent against the other, is illegal, 
 and accordingly a contract made in pursuance and as a part of 
 such enterprise is void.^ 
 
 284. The trading in articles contraband of ivar has, in some 
 instances, been punished, by Sir William Scott, as an offence 
 against the law of nations, by condemning, not only the specific 
 goods, but also other goods belonging to the same shipper, and 
 the ship in which the goods were carried,^ or by refusing to allow 
 freight,'* in cases which he considered as attended with circum- 
 stances of great aggravation. This was, however, to say the 
 least, a strong construction of international law in favor of the 
 belligerent, and assurtiing a large latitude of discretionary juris- 
 diction, and privilege of animadversion and right of inflicting 
 mulcts, in respect of neutrals. 
 
 285. Resistance by a neutral to search, rightfully demanded and 
 made by a belligerent, subjects property to confiscation, since such 
 resistance is an infraction of an international law, the observance 
 of which is essential to the maintenance of maritime police.^ 
 
 SECTION III. INTEREST OF THE OWNER OF PROPERTY MORT- 
 GAGED, PLEDGED, OR SUBJECT TO A LIEN. 
 
 286. TJie owner of property mortgaged, pledged, or subject to 
 a lien, still retains an insurable interest in it to the fidl value.^ 
 
 1 See The Santissima Trinidad, 7 5 The Dispatch, 3 C. Rob. Adrn, 278 ; 
 Wheat. 283. Tiie Graaf Bernstoflf, 3 id. 109. 
 
 2 Pond i;. Smith, 4 Conn. 217. 6 Traders' Ins. Co. v. Robert, 9 Wend. 
 
 3 The Staadt Embden, 1 C. Rob. N. Y. 4 74 ; Carpenter v. Washington 
 Adm. 26, and note ; The Jonge Tobias, Ins. Co. of Providence, 16 Pet. 495, 4 
 1 id. 329; Tlie Sarah Christina, 1 id. How. 185; Stetson v. Mass. Mut. Fire 
 237 ; The Ringende Jacob, 1 id. 89; Ins. Co. 4 Mass. 330 ; Strong u.Manuf. 
 The Edward, 4 id. 68; The Ranger, 6 Ins. Co. 10 Pick. Mass. 40; Smith v. 
 iJ- 125. Lascelles, 2 Term, 187; Higginson v. 
 
 4 The Mercurius, 1 C. Rob. Adm. Dall, 13 Mass. 96. See also AUston v, 
 288. Campbell, 4 Brown, Pari. Cas. 476 ;
 
 152 INSURABLE INTEREST. [CHAP. III. 
 
 The assignment of a bill of lading passes the entire and abso- 
 lute property in the goods to the assignee, where this is the 
 intention of the party making the assignment ; ^ but if the bill of 
 lading is assigned merely for the purpose of binding a consign- 
 ment of the goods, and designating the person to whom the 
 proceeds are to be paid over, such person being a creditor of the 
 consignor, the consignor still retains an insurable interest, since 
 he continues to be as directly interested in the safety of the goods, 
 as before assigning the bill of lading.'* 
 
 A quantity of fish being shipped by Locke, upon which Bar- 
 nard had advanced money, and to secure payment had taken a 
 bill of lading, and made out the invoice, in his own name ; it 
 was held that Locke still had an insurable interest in the full 
 value.3 
 
 A purchaser under a decree of sale of mortgaged premises has 
 an insurable interest, though the decree has not been enrolled.* 
 
 287. In case of a debtor^ s assigning' property to be disposed of, 
 and the proceeds applied to the payment of his debts, he still has 
 an insurable interest in the property to its full value, so long as 
 his debts, to discharge which the property is assigned, remain in 
 force against him, and unsatisfied and unreleased, or there is a 
 surplus to accrue to himJ' 
 
 A steamboat insured in the name of the owner, the loss to be 
 payable to the agents by whom the policy was procured, was 
 assigned by the owner among his other effects for the benefit of 
 his creditors, with a resulting trust for his own benefit after the 
 creditors should be fully paid, the creditors at the same time 
 giving an absolute release and discharge of their demands ; and, 
 after the assignment, the steamboat was lost. It appearing that 
 the property assigned was sufficient to pay the creditors and 
 leave a surplus equal to the value of the steamboat, it was held 
 that the assured still had an insurable interest in her to her full 
 value, equivalent to that of a mortgager or cestui que trust.*^ 
 
 Williams's Adm. v. Cincinnati Ins. Co. 4 McLaren v. Hartford F. Ins. Co. 
 
 1 Ohio, 542. 5 N. Y. 151. See also Leland v. Ship 
 
 1 M'Andrew v. Bell, 1 Esp. 373; Medora, 2 Woodb. & M. C. C 92. 
 Holt, 572. 5 Gordon v. Mass. Fire & Marine 
 
 2 Hibbertr. Carter, 1 Term, 745. Ins. Co. 2 Pick. Mass. 249. 
 
 3 Locke V. The North American Ins. <> Lazarus v. Commonwealth Ins. Co. 
 Co. 13 Mass. 61. 19 Pick. Mass. 81 ; S. C. 5 Pick. Mass. 
 
 76.
 
 SECT. IV.] INTEREST OF A MORTGAGEE OR TRUSTEE. 153 
 
 SECTION IV. INTEREST OF A MORTGAGEE, TRUSTEE, OR IN VIR- 
 TUE OF A LIEN. 
 
 288. A trustee has, as such, an insurable interest in the trust 
 property to its full value} 
 
 289. A mortgagee has an insurable interest in the mortgaged 
 property'^ to the amount of his claim. 
 
 A person to whom the freight of a vessel has been mortgaged, 
 may insure the legal interest on his own account, and also the 
 equitable interest on account of the mortgager.^ 
 
 A vessel going down the St. Lawrence sustained damage ren- 
 dering repairs necessary, and, to raise funds to make the same? 
 the master mortgaged the vessel as security for his bills on the 
 owners and ordinary interest. Assuming that the circumstances 
 authorized the master to raise the funds in this way, Mr. Baron 
 Piatt thereupon rightly ruled, that the lenders had an insurable 
 interest to the amount advanced. But Jervis, C. J., and his 
 associates, Cresswell, Williams, and Talfourd, of the English 
 Common Pleas, on the case coming up, held that the master had 
 not, in his capacity as such, authority to pledge the vessel, and 
 at the same time bind his owners personally for advances, though 
 necessary for repairs.* 
 
 ' Page V. Western Ins. Co. 19 La. ping, part 2, c. 3, and notes by Story. 
 
 49. Also The Hunter, Ware, Dist. Ct. 249. 
 
 2 Traders' Ins. Co. v. Robert, 9 It is held by Peters, J., in Gardner v. 
 Wend. N. Y. 404 ; Carpenter v. War.h- Ship New Jersey, 1 Pet. Adm. 223, that 
 ington Ins. Co. of Providence, 16 Pet. the master himself has a lien on the 
 495; S. C. 4 How. 185; Kernochan v. proceeds of the ship in an admiralty 
 New York Ins. Co. 17 N. Y. 428. court, and also a claim upon his owners 
 
 3 Yallop, E.X parte, 15 Ves. jun. 60 ; for moneys necessarily expended by him 
 Houghton, Ex parte, 17 Ves. jun. 253. abroad, which is surely an equitable doc- 
 
 4 Stainbank t;. Penning, 11 C. B. 51 ; trine, and affords a ground to infer bis 
 6Eng. Law & Eq. 412. See also Smith authority to give to another such lien 
 V. Plummer, 1 Barnew. & Aid. 575; and claim, contrary to the doctrine of 
 The Augusta, 1 Dods. Adm. 283 ; The the English courts of common law just 
 Rubicon, 1 Hagg. Adm. 13; The Tri- cited, that go absolutely to deny the 
 dent, 1 W. Rob. Adm. 33 ; Beldon v. master authority in any case to mort- 
 Campbell, G Exch. 886 ; 6 Eng. Law & gage the ship, a mortgage being, by its 
 Eq. 472, overruling Richards v. Lyall, 7 essential character, collateral to a d^bt 
 Price, Exch. 592. See Abbott, Ship- or obligation of the owner. X
 
 154 INSURABLE INTEREST. [CHAP. III. 
 
 By the British registry act,^ the ownership of a mortgagee is 
 distinguished in the register from the absolute ownership. In a 
 case decided in the Court of King's Bench, since the passing of 
 that statute, a mortgagee of a ship whose lien amounted to £900, 
 effected insurance to the amount of X3700 in two policies, in 
 each of which the ship was valued at X3000, and the whole 
 amount insured in both policies was paid to the assured ; and one 
 set of underwriters, after learning that another policy had been 
 made, brought an action to recover back their proportion of the 
 excess of the amount paid for the loss, over that which the mort- 
 gagee had a right to recover on the two policies. The court 
 held, that, unless it appeared that the insurance was intended to 
 cover the whole value of the vessel, the assured was only entitled 
 to recover (and accordingly in this case could only retain) the 
 amount of his lien.^ 
 
 290. A mortgag-e or other pledge of property as security against 
 a contingent liability, gives an insurable interest to the party to 
 whom it is so transferred, to the amount of his liability. 
 
 It was so held in case of the transfer of a ship and cargo to a 
 party who had given a bond to answer to a decree which might 
 be given in a superior court on appeal by the captors. On total 
 loss and abandonment, he recovered against his underwriters.^ 
 
 291. "Where goods are consigned by a debtor ivith orders to the 
 consignee to pay the proceeds to his creditor, without any agree- 
 ment between the debtor and creditor to that effect, the creditor 
 has an insurable interest in the goods.^ 
 
 The bill of lading of goods being assigned by the consignee as 
 security for advances, the lender has an insurable interest in the 
 goods.^ 
 
 292. A creditor, having a lien on property, has an insurable 
 interest to the extent of his lien.^ 
 
 293. A trustee as he has a legal interest in the thing may insure^ 
 
 1 Stat. 6 Geo. IV. c. 110, s. 45. 6 Wells v. Philadelphia Ins. Co. 9 
 
 2 Irving 0. Richardson, 2 Barnew. & Serg. &R. Penn. 103 ; Burbank v. Rock- 
 Ad. 193. ingham Ins. Co. 24 N. 11. 550; this was 
 
 3 Russell V. United Ins. Co. 4 Dall. a mechanic's lien ; Franklin Ins. Co. v. 
 421 ; S. C. 1 Wash. C. C. 409. Coates, 14 Md. 285, 
 
 4 Hill V. Secretan, 1 Bos, & P, 315, ' 5 Bos. & P. 324, 
 
 5 Sutherland v. Pratt, 12 Mees. & W. 
 Exch. 16; S. C. 11 id. 29G.
 
 SECT. IV.] INTEREST OP A MORTGAGEE OR TRUSTEE. 155 
 
 and represent the property to be his own, and the policy may be 
 in his own name} 
 
 So Lord Kenyon was of opinion, that an executor, who, as 
 such, and accordingly as trustee, held an annuity bond, thereby 
 had an insurable interest." And Lord EUenborough says, he 
 may insure before probate of the will.^ 
 
 294. Property being sold, with condition that it shall remain as 
 collateral security to the vendor, he still has an insurable interest 
 to the amount of his demand } 
 
 295. The interest of the mortgagee being in its essential char- 
 acter conditional, the beneficial interest in the policy effected by 
 him on the mortgaged subject should be considered so also. 
 
 A loss having been paid on a share in a vessel mortgaged on 
 an agreement that it should be at the risk of the mortgager as to 
 all " losses not covered by insurance," and insured " by the mort- 
 gagee for the owners," and the debt paid and vessel thus redeemed, 
 it was rightly held in Maine, that the mortgagee was thereupon 
 accountable to the mortgager for the net proceeds of the insur- 
 ance,^ since the policy was expressed to be for the benefit of both 
 the mortgagee and mortgager. 
 
 296. A policy, made by order of the mortgager, does not enure 
 to the benefit of the mortgagee or pledgee unless it is expressed to 
 be for his benefit, and authorized or adopted by him, or is assigned 
 to him by a valid assignment. 
 
 Some sugars were sold at Norfolk, in Virginia, upon an agree- 
 ment that the supercargo should be trustee for the parties, to hold 
 and apply the proceeds to secure the payment of the bills drawn 
 on London, by the purchaser, in favor of the vendor for the price, 
 namely, £27,201. The purchaser ordered his correspondents in 
 London, on whom he had drawn bills for the price, to make in- 
 surance, which they did, to the amount of .£35,000, to cover the 
 first cost and premium. They did not accept the bills. The 
 sugars were lost on the voyage by capture, and the underwriters 
 paid a total loss to the London firm on whom the bills were 
 
 1 Pratt V. Phcen. Ins. Co. 1 Browne, 4 Vairin v. Canal Ins. Co. 10 Ohio 
 
 Penn. 267. St. 561; Norcross v. Insurance Co. 17 
 
 3 Tidswell r. Ankerstcin, Peake, 151, Penn. St. 429. 
 
 3 Stirling v. Vaughan, 11 East, 619; 5 "Vyhite v. Mann, 26 Me. 361. 
 2 Campb. 35.
 
 156 INSURABLE INTEREST. [CHAP. III. 
 
 drawn. They paid a great part of the bills, but there remained 
 a balance due on them. The remainder of the amount received 
 from the underwriters they had paid over to their principal, the 
 purchaser of the sugars, who became bankrupt. No agreement 
 appears to have been made, that the policy, as well as the sugars 
 themselves, should be pledged as security for the payment of the 
 bills. The agents who effected the policy on the order of the 
 purchaser, were held not to be answerable to the administrator of 
 the vendor, for the money received from the underwriters, to the 
 amount of the deficiency for payment of the bills.^ The case 
 turns upon the express or implied agreement of the agents to 
 apply the money received to the discharge of the bills. They 
 had studiously avoided making any such express agreement. No 
 notice is stated in the case. It appears very probable, however, 
 from the statement of the case, that the agents knew that the 
 sugars and proceeds were so pledged. The case accordingly ad-' 
 mits of the construction, that a policy of insurance made by the 
 order, and on behalf, of the pledger, on goods pledged to the full 
 value, does not follow the pledge. 
 
 297. A payment by the insurers to a mortgagee for damage to 
 the mortgaged premises by fire, under a policy originally made in 
 favor of the mortgager^ and by him assigned to the mortgagee^ as 
 collateral security for the debt, is so far satisfaction of the debt? 
 
 SECTION V. INTEREST OF A LENDER IN BOTTOMRY AND RESPON- 
 DENTIA, AND UNDER A SALE BY THE MASTER. 
 
 298. A marine hypothecation is a maritime contract whereby 
 the owner or his agent pledges his ship or goods as security for a 
 debt accruing on account of advances or other consideration, and 
 payable on condition of the subject being safe, or in proportion 
 or to the amount of the part of it saved, from the marine perils 
 specif ed in the contract.^ 
 
 The lender or creditor, in consideration of the stipulated rate 
 
 1 Neale v. Reid and Irving, 1 Barnew. 3 gee definition of Pothier, Contrat 
 & C. 657. a La Grosse, No. 1, cited by Boulay, 
 
 2 Robert v. Traders' Ins. Co. 17 Droit Com. tit. 9, s. 1, torn. 3, p. 6, ed. 
 Wend. N. Y. G31. 1822.
 
 SECT, v.] INTEEEST OF A LENDER, ETC. 157 
 
 of interest, which being above the common rate is called marine 
 INTEREST, takes upon himself certain perils and losses, as of cap- 
 ture, the seas, &c., or all perils and losses usually insured against, 
 or all perils and losses whatsoever. If the pledged subject is lost 
 by such perils, the debt is thereby cancelled. Or, by some con- 
 tracts, if a partial loss so happen, a corresponding part of the 
 debt is cancelled. Such pledge of a vessel is denominated Bot- 
 tomry, that is, a pledge of the vessel's bottom ; and such a pledge 
 of the cargo is Respondentia. The contract is usually made by 
 an instrument under seal, called a Bottomry or Respondentia 
 Bond ; or if both ship and cargo are pledged in the same instru- 
 ment, a " Bottomry and Respondentia Bond." The hypothecated 
 ship or cargo remains in possession of the borrower, subject to be 
 taken possession of, under admiralty process, by the lender, on 
 forfeiture, and sold for satisfaction of the debt. Though his right 
 may be forfeited by negligence.^ 
 
 299. A botto7nry and respondentia bond is, in some respects, sim- 
 ilar to a mortgage, and, like it, vests an insurable interest in the 
 lender or creditor. 
 
 The property pledged is not put into the possession of the 
 lender, as in the case of a mortgage. Mortgaged property is 
 also at the risk of the mortgager, but in bottomry, or respon- 
 dentia, the lender stands in the place of the insurer. 
 
 300. There is greater reason luhy the lender on bottomry and 
 respondentia should have an insurable interest in the thing pledged, 
 than that a mortgagee should have such an interest; for, if the 
 property is lost, he loses his debt, whereas a mortgagee still has 
 his claim subsisting against his debtor. It has always been held 
 that the lender has an insurable interest in the ship or goods 
 hypothecated.^ 
 
 301. The insurable interest of a party, to ivhom property is 
 hypothecated, ivill depend upon the validity of the hypothecation. 
 
 The master, merely as such, without au:hority or ratification 
 otherwise expressly or impliedly given by the owner, can make a 
 valid hypothecation of the vessel only when he is at so great a 
 
 1 Blaine r. The Charles Carter, 4 S. C. 2 Caines, Cas. N. Y. 110; 1 Enit-r. 
 Cranch, 328. 237, c. 8, s. 11 ; Kenny v. Clarkson, 1 
 
 2 Harman c. Vanhatton, 2 Yern. 717; Johns. N. Y. 385; Glover v. Black, 3 
 Williams v. Smith, 2 Caines, N. Y. 13 ; Burr. 1394 ; 1 W. Blackst. 432. 
 
 VOL. I. 14
 
 158 INSURABLE INTEREST. [CHAP. III. 
 
 distance from the owner that it is not practicable, or is plainly- 
 inexpedient and unreasonable to delay for instructions from him, 
 and then only in case of necessity to obtain funds in order to save 
 the vessel or prosecute the voyage, and only in case of its satis- 
 factorily appearing, under the circumstances, to be a suitable way 
 of obtaining the funds.^ The master cannot hypothecate to a 
 part owner for advances.'-^ His authority to hypothecate or sell 
 the cargo is still more restricted.'^ Accordingly no insurable in- 
 terest is derived under the master's hypothecation or sale of the 
 ship or cargo not authorized by the circumstances.* 
 
 In regard to an hypothecation of the cargo by the master, a 
 question arose in one case, whether, if there be specie and other 
 cargo on board, he must first apply the specie not belonging to 
 his owners, before hypothecating the cargo not belonging to them. 
 Mr. Justice Story says : " I am not prepared to say there is any 
 absolute rule, which compels the master at all events, and under 
 all circumstances, to make use of the moneyed coin of third per- 
 sons, which he happens to have on board, in preference to all 
 other modes of proceeding. There may be cases in which the 
 use of the money would be the greatest sacrifice that could be 
 made, and the whole object of profit in the voyage would be 
 thereby defeated. In all cases mijch must be left to the master's 
 discretion, and if he acts bona fide, and with reasonable care, the 
 rights of the parties are bound by his acts." 
 
 302. In the same case, Mr. Justice Story says: " If the master 
 has money of his own on board, sufficient for the ship's necessities, 
 it is by no means certain that he has a right in such case to resort 
 to the extraordinary measure of bottomry." 
 
 - See infra, No. 1561, 1565, 1566, 3 See infra, No. 1552, 1561, 1565, 
 
 1569 ; also Beldon v. Campbell, 6 Excb. 1566. 
 
 886, 6 Eng. L. & Eq. 472, overruling ^ An hypothecation by the consul 
 
 Robinson v. Lyall, 7 Price, Exch. 502 ; was held by Dr. Lushington to be 
 
 The Nuova Loanese, per Lushington, valid, the ship being rightfully in his 
 
 V. C. 17 Eng. Jurist, 263; Stainbank control, and the appointment of the 
 
 V. Shepard, 20 Eng. L. & Eq. 547. master being at the same time within 
 
 The French law is similar. Boulay his authority. The Cynthia, 20 Eng. 
 
 Paly, Com. Droit tit. [t, s. 4, tom. 3, L. & Eq. 623; S. C. 6 Eng. Jur. 
 
 p. 44, ed. 1822. Adm. 749. 
 
 2 Patton V. Randolph, Gilp. Dist. Ct. 
 457.
 
 SECT, v.] INTEREST OF A LENDER, ETC. 159 
 
 '' Though I would not absolutely decide that under no circum- 
 stances he could so resort where he has sufficient money of his 
 own on board ; yet, if he can, it must be a case of very peculiar 
 character, and such as ought to induce the court to uphold it 
 upon great public principles." ^ But in case of there being- money 
 of the owner of the ship on board, it is very clear that the master 
 cannot bottomry. 
 
 Dr. Lushington, J., High Court of Adm. says : " The common 
 law formerly went almost to the extent, that the master could not, 
 under any circumstances whatever, sanction the sale of a ship 
 abroad. I take the law now to be. that, where an urgent neces- 
 sity exists, which the master cannot meet, it is competent to him 
 to sell the vessel." ^ 
 
 If the master has no funds, and can obtain credit only on ex- 
 tremely exorbitant terms, if the hypothecation of ship and pend- 
 ing freight do not suffice, he may hypothecate the cargo ; and 
 if none of these resources will afford the necessary relief, and 
 the property cannot safely, or except by exorbitant sacrifice, be 
 preserved until he can communicate with his owners, or their 
 agents, or some one who might give him aid, then he is author- 
 ized by necessity to sell both ship and cargo.^ 
 
 303. The sale of the vessel by the master in a foreign port does 
 not defeat a prior bottomry bond, nor exonerate the ship from the 
 lien of the seamen for wages, even for those of a prior passage, 
 where the shipping-paper provides for postponement of payment 
 until return to the home port ;"* and the insurable interest of the 
 different parties will be affected accordingly. 
 
 Thus, where the master sold his vessel at Bahia, it was held 
 to be still subject to a previous bottomry bond on returning to 
 England. 
 
 Where the sale is by decree of a competent tribunal, the effect 
 may be different as to prior liens, as the court is presumed " to 
 have protected the purchaser, as far as the law will allow, against 
 all claims in the nature of a lien." ^ 
 
 1 Ship Packet, Barker, master, 3 641. See also chapter on Total Loss 
 
 Mas. C. C. 255. and Abandonment, infra. 
 
 "^ The Catharine, 1 Eng. L. & Eq. * The Louisa Bertha, 4 Eng. L. & 
 
 679; S. C. IG Eng. Jur. 231. Eq. 665. 
 
 3 See Tlie Bonaparte, 3 W. Rob. 5 The Catharine, 1 Eng. L. & Eq. 
 
 Adm. 298; S. C. 1 Eng. L. & Eq. 679.
 
 IGO INSURABLE INTEREST. [CHAP, III. 
 
 304. A bottomry bond may stipulate for a very high rate of 
 interest without being thereby rendered void. 
 
 305. A bottomry bond for a voyage from Quebec to London, 
 at marine interest of 25 per cent., was held by Sir William Scott 
 not to be void on account of the exorbitancy of the rate of inter- 
 est.i 
 
 306. A bottomry bond may be good in part and bad in part, 
 as a lien, where a part of the money borrowed by the master, for 
 which the hypothecation was made, was borrowed by him with- 
 out sufficient authority. 
 
 " Courts of admiralty," says Mr. Justice Story, " act ex aequo 
 et bono, as courts of equity, and a bottomry bond may be held 
 good in part and bad in part. So far as the money was properly 
 advanced, it may be held to give a valid lien, and be dismissed as 
 to the rest. If the premium has been unduly inflamed, by rea- 
 son of the master's necessities, the court may moderate it." - In 
 such case, accordingly, the insurable interest will be commensur- 
 ate with the validity of the bond. 
 
 The bottomry includes freight depending on the voyage and 
 the next subsequent one, in preference to other claims, unless it 
 is forfeited by negligence.^ 
 
 SECTION VI. INTEREST OF A BORROWER IN BOTTOMRY AND RE- 
 SPONDENTIA. 
 
 307. The borrower on bottomry or respondentia may have an 
 insurable interest in the property pledged, no less than a mort- 
 gager, but with this distinction, that the mortgager remains liable 
 the whole loss upon the goods; if they are lost, no part of his 
 debt is discharged ; whereas, if the hypothecated ship or goods are 
 lost, the borrower is discharged from his debt. If ihereioxe, goods 
 are hypothecated for the full value, the borrower is not interested 
 in their safety, as far as the risks are assumed by the lender ; for 
 if they are saved, they go to satisfy the debt; if they are lost by 
 the risks, within the hypothecation, he is discharged from the debt. 
 
 1 White V. Ship Daedalus, 1 Stu. 2 Ship Packet, Barker, master, 3 
 Low. C. 130. Mas. C. C. 255. 
 
 3 The Jacob, 4 C. Kob. Adm. 245.
 
 SECT. VII.] INTEREST OF A CONSIGNNE, ETC. 161 
 
 He is accordingly interested only so far as the value of the prop- 
 erty exceeds the amount for which it is pledged. 
 
 It has accordingly been decided, that the owner of a vessel 
 bottomried for more than its full value, has no insurable interest, 
 in re?pect to the perils assumed by the lender.' 
 
 308. Nothing, however, prevents the parties to an hypotheca- 
 tion/ro»i agreeing that the lender shall assume only the sea-risks 
 or the risk of capture. In, such case the borrower u'ould still 
 retain an insurable interest in the property, to its full value, in 
 relation to the risks not assumed by the lender. 
 
 SECTION VII. INTEREST OF A CONSIGNEE, FACTOR, AGENT, OR 
 
 CARRIER. 
 
 809. A distinction is to be kept in mind between the agents' 
 insurable interest, and his authority to insure for his consignor or 
 other principal. 
 
 A consignee, factor, or agent, having a lien on goods, to the 
 amount of his advances, acceptances, and liabilities, stands in this 
 respect precisely in the situation of a mortgagee. 
 
 A debt is due to him from his principal, for which he holds the 
 property as collateral security, and the property is at the risk of 
 the principal, as the debt would still subsist, though the property 
 should be lost ; and the excess over the proceeds of the goods 
 would be still due to him, in case of the proceeds being insufficient 
 to satisfy his claims. He has therefore an insurable interest in the 
 goods to the amount of his lien. And whether the lien arises from 
 expenses and charges on account of the specific goods, or is a 
 general balance, can make no difference; if the lien exists, it in- 
 volves an insurable interest. A consignee or factor has not, as 
 such, in all cases, an insurable interest on his own account in the 
 property to its full value ; his interest is only commensurate with 
 the loss he may sustain by the destruction of the property ; it is 
 
 1 "Williams v. Smith, 2 Caines, N. Y. goods bound on an East India voyage, 
 
 13; S. C. 2 Caines, Cas. N. Y. 119. lo " the value of his interest in the 
 
 The statute of the 19th Geo. II. c. 37, ship, or in the goods on board, exclu- 
 
 limits the insurable interest of the sive of the money so borrowed." 
 owner of an hypothecated ship or 
 U*
 
 162 INSURABLE INTEREST. [CHAP. III. 
 
 limited to the extent of the lien he has, or will have, when the 
 property comes into his hands.^ 
 
 310. A commission merchant, to whom goods are consigned for 
 sale, has an insurable interest to the amount of his commissions on 
 the sale, from the time of the goods h^ing consigned to him. He 
 may make insurance in anticipation of the consignment, and the 
 policy will take effect on the consignment being made, and the 
 goods becoming subject to the risks insured against.^ 
 
 311. There are various sorts of consignees, agents, and factors, 
 some having authority to sell the property, others to take posses- 
 sion of it only. Nor is it settled that all persons, who may make 
 something by selling or keeping property, or contracting in re- 
 gard to it, have therefore an insurable interest. 
 
 It is questionable whether a broker, employed to sell a house, 
 would have an insurable interest in it to the amount of his com- 
 missions. If an agent or consignee has a subsisting demand, 
 for which the property is pledged, or will become so on its 
 coming into his hands, the principal having in the latter case 
 consigned it to him, or otherwise having given him a right to 
 take possession of it, he unquestionably has an insurable in- 
 terest. 
 
 A supercargo who is to receive a compensation out of the 
 homeward cargo, as he begins to render his services at the com- 
 mencement of the voyage and so continues, sustains an absolute 
 loss of his time and skill in case the cargo does not arrive. An 
 insurance upon his interest is, therefore, strictly a contract of in- 
 demnity. And it is held, in general, that a consignee, supercargo, 
 or other person, having a contract, ivhich may afford him a profit 
 or emolument, has an insurable interest in respect to the subject of 
 such contract, so soon as he has done something, or begun to incur 
 expenses and take steps, towards the execution of it. 
 
 Where the owners of a cargo agreed to pay the supercargo 
 ten thousand dollars " out of the proceeds of any cargo the ship 
 
 1 Seamans v. Loring, 1 Mas. C. C. own interest, ^tna Ins. XJo. v. Jack- 
 
 127 ; Russell i;. Union Ins. Co. 1 Wash, son, 1GB. Monr. Ky. 242. An insur- 
 
 C. C. 409 ; Wolff v. Horncastle, 1 Bos. ance in his own name where he has 
 
 & P. 31C. Held in Kentucky that an no interett is void. Sawyer u. Mayhew, 
 
 agent may insure in his own name and 51 Me. 398. 
 
 recover the whole value, accounting to ^ Putnam v. Mercantile Mar. Ins. Co. 
 
 his principal for the surplus over his 5 Mete. Mass. 386.
 
 SECT. VII.] INTEREST OF A CONSIGNEE, ETC. 163 
 
 might bring from Batavia, or to deliver him part of such cargo 
 to that amount," on the ship's arrival at New York ; it was not 
 made a question, that the supercargo had an insurable interest 
 to that amount.^ 
 
 A quantity of moss shipped in Norway was consigned to the 
 Cudbear Company, so called, of London, who refused the con- 
 signment, upon which Wolff and his partner, having no particu- 
 lar authority, otherwise than as being the general agents of the 
 consignor, effected insurance, retaining the bills of lading in their 
 own hands, and accepted bills on account of the consignment 
 to the amount of £300. Their proceedings were subsequently 
 approved of by the consignor. They were held to have an 
 insurable interest to the amount of their acceptance. Buller, J., 
 said : " I agree that a debt which has no reference to the article 
 insured, and which cannot make a lien on it, will not give an in- 
 surable interest. But a debt which arises in consequence of the 
 article insured, and which would have given a lien on it, does 
 give an insurable interest." ^ , 
 
 Where goods were shipped by Meybohm, at St. Petersburg, 
 to Amyand, of London, to whom a general balance was due 
 from Meybohm ; though the bill of lading was indorsed by 
 Meybohm to Tamesz, another Russian, Lord Mansfield and the 
 other judges held, that Amyand had an insurable interest in the 
 goods. " Various persons may insure various interests on the 
 same bottom ; here Mr. Amyand had an interest of his own, 
 distinct from the interest of Meybohm ; he had a lien upon these 
 very goods, as a factor to whom a balance was due." ^ 
 
 In the case of ships captured and carried into Spain, where a 
 compromise was made with the captors by giving up a part 
 of the cargoes, and expenses were incurred on account of the 
 property by Cowen, who consigned a part of it to Robertson, 
 in England, on whom he drew bills for his expenses and dis- 
 bursements, which Robertson accepted ; it was held, that Rob- 
 ertson acquired an insurable interest by accepting the bills. And 
 
 1 Robinson v. New York Ins. Co. 2 316. See also Conway r. Gray, 10 East, 
 
 Caines, N. Y. 357 ; New York Ins. Co. 53G ; Russell v. Union Ins. Co. 1 Wash. 
 
 V. Robinson, 1 Johns. N. Y. 616. See C. C. 409. 
 
 also Flindt v. Le Mesurier, Park, Ins. 3 Qodin v. London Ass. Co. 1 Burr. 
 
 8th ed. 563. 489 ; 1 W. Blackst. 103. 
 
 ^ Wolff V. Horncastle, 1 Bos. & P.
 
 164 INSURABLE INTEREST. [CHAP. III. 
 
 the circumstance'that the original owners had, in the mean time, 
 abandoned the property to their insm'ers, was held not to affect 
 Robertson's interest.^ 
 
 Lord EUenborough, however, seemed to think, that an agree- 
 ment for a commission on such freight as the assured might 
 procure for a vessel owned by another person, did not give an 
 insurable interest. Knox, of Dublin, had an agreement with a 
 house at Jamaica for loading such vessel as he should send to 
 that island, and he agreed for a vessel to go out to Jamaica for a 
 cargo, on the freight of which the owners were to allow him 
 a commission. The vessel was detained at Jamaica so long, 
 under an admiralty process, that she lost the season, and the 
 Jamaica house sent on their goods by another, and Knox ac- 
 cordingly failed of receiving the stipulated commission. The 
 judge said: "It strikes me, that this was a mere expectation. 
 The assured had an interest in the ship only in the expecta- 
 tion of a cargo. This case carries us into the land of dreams, 
 and, if supported, would introduce the practice of insuring 
 two thousand pounds prize in a lottery, without purchasing a 
 ticket." 2 
 
 But it is not easy to distinguish the interest of Knox in 
 this case from what has been allowed, under policies on lives 
 and on profits, to constitute an insurable interest. A case 
 occurred in Massachusetts, upon a policy on the commissions 
 that the assured expected to receive as consignee of a vessel, 
 and no objection was made on the ground of the insufficiency 
 of the interest.^ 
 
 A case has occurred in New York respecting a fire policy 
 effected by the consignees, into whose hands goods came for 
 sale, without any instruction as to insurance, and without any 
 ratification of the policy on the part of the principals, until after 
 they had a knowledge of the loss. The policy was effected by 
 commission-merchants in New York, " on goods, as well the 
 property of the assured, as held by them in trust or on commis- 
 sion." The assured had made advances to only a part of the 
 
 1 Robertson v. Hamilton, 14 East, jection to the claim of the assured in 
 522. this case, that the loss was not occa- 
 
 2 Knox V. Wood, 1 Campb. 541, re- sioned by the perils insured against, 
 ported diflferently by Park, Ins. 405. 3 Law v. Goddard, 12 Mass. 112. 
 It seems to have been a sufficient ob-
 
 SECT. VII.] INTEREST OF A CONSIGNEE, ETC. 165 
 
 amount insured; the question being, whether they had, as com- 
 mission-merchants, an insurable interest in the goods to their 
 full value, Jones, C. J., and his associate justices of the Superior 
 Court of the city of New York, held that the consignees had 
 an insurable interest in the goods on account of their own in- 
 terest, and as trustees, to their full value, which was covered by 
 a policy in this form, they being liable to account to their prin- 
 cipals for the excess of the insurance over the amount of their 
 own claims.^ 
 
 This decision refers to the authority of a consignee of goods 
 with power to sell, who is in possession of the goods. On the 
 authority of a consignee who merely has notice of the consign- 
 ment, the Chief Justice says : *' If he should, upon receipt of 
 the bills of lading, effect insurance bona fide, and for just cause, 
 upon the goods consigned to him for the voyage of importation, 
 I am not prepared to say that the contract would be void, or 
 that the charge of the premium could be rejected by the con- 
 signor." 
 
 In a case adjudicated upon in the English Court of Common 
 Pleas, Mr. C. J. Gibbs expressed his opinion, that a consignee 
 has an insurable interest in goods consigned for sale, to the full 
 value of the goods.^ 
 
 It was held in the much-litigated case of Lucena v. Craufurd,^ 
 that commissioners appointed by the government to take pos- 
 session and dispose of Dutch prizes, captured in anticipation of a 
 war, had an insurable interest, as trustees of the captured prop- 
 erty, to its whole value. 
 
 312. The master of the vessel, as master, is merely a carrier, 
 and in his capacity of master merely has no general insurable 
 interest in the ship or cargo* or freight. He has no lien on ship 
 or freight for his wages ; but where he has a lien on freight and 
 cargo for advances,^ he will have an insurable interest to the ex- 
 tent of such lien. 
 
 1 De Forest v. The Fulton Fire & Fire & Mar. Ins. Co. 1 Hall, N. Y. 
 Mar. Ins. Co. 1 Hall, N. Y. 84. And 84. 
 
 see iEtna Ins. Co. v. Jackson, 1GB. 4 Barker v. Marine Ins. Co. 2 Mas. 
 
 Monr. Ky. 242. C. C. 369. 
 
 2 Carrutiiers v. Shedden, 6 Taunt. 5 Ingersollt^.Van Bokkelin, 7 Cow. N. 
 14 ; S. C. 1 Marsh. 416. Y. 6 70 ; Lane v. Penniman, 4 Mass. 92 ; 
 
 3 5 Bos. & P. 323, opinion of Lord Milward v. Hallett, 2 Caines, N. Y. 71 ; 
 Eldon. See also De Forest r. Fulton "White r. Baring, 4 Esp. 22.
 
 166 INSURABLE INTEREST. [CHAP. III. 
 
 313. Where goods arc shipped in the master'' s name as a trustee, 
 he has an insurable interest like any other trustee. 
 
 Sugars belonging to Medina were shipped at Porto Rico, for 
 Baltimore, in tiie name of Fitch, the master of the vessel, and 
 consigned to him, and all the documents were made out accord- 
 ingly, the object being to cover the property, Medina being a 
 Spaniard, and Spain being then, 1822, at war with its revolted 
 colonies. It was held, that Fitch had an insurable interest in the 
 property to its whole value.^ 
 
 So a master or owner of a ship, or the proprietor of any vehi- 
 cle used for transportation of goods, has an insurable interest in 
 the goods to their full value, against those risks ivhich he assumes 
 as carrier, as, for instance, the risk of theft and that of negligence 
 and misconduct of his servants and agents.^ 
 
 Such carriers have also an insurable interest in the subject to 
 be transported, so far as the earning of the freight or pay for 
 transportation depends on the safety and delivery of the article, 
 have an insurable interest in it to the amount of the fr.eight or 
 stipulated pay, in respect to all the perils and casualties on which 
 the earning of the freight or payment for carriage depends, and 
 that though they hire others to do the carrying.^ 
 
 314. Mechanics and others who have, by commercial or statute 
 law, a lien upon a foreign vessel or one of another state, or build- 
 i^&^>/<^'' t'epairs, have an insurable interest to the same amount.* 
 
 SECTION VIII. INTEREST IN PROFITS. 
 
 315. As a person, who is not owner of property, such as an 
 agent or consignee, may insure his commissions, there seems to 
 
 1 Buck V. Chesapeake Ins. Co. 1 Pet. in this case was not legally liable to the 
 151. owner for the whole value. 
 
 2 Do Forest v. Fulton Ins. Co. 1 3 Chase v. Washington Mut. Ins. Co. 
 Hall, N. Y. 84. In London, &c. R Co. of Cincinnati, 12 Barb. N. Y. 595; 
 V. Glyn, 1 Ell. & E. 652, it was held Savage v. Corn Exch. Ins. Co. 4 Bosw. 
 that the carrier might insure and re- N. Y. 1. 
 
 cover the whole value of the goods, hold- '4 The Calisto, Dav. Dist. Ct. 29; 
 ing the surplus over his charges as trus- Stout r. City Ins. Co. 12 Iowa, 371; 
 tee for the owner, although the carrier Protection Ins. Co. v. Hall, 15 B. Monr. 
 
 Ky. 411. 
 
 I
 
 SECT. VIII.] INTEREST IN PROFITS. 167 
 
 be as g'ood reason ichy the oicner should have the ri^ht of insuring' 
 the profits he expects to derive by its transportation, or any legal 
 use he may propose to make of it. Profits are frequently insured; 
 nor does this species of insurance partake at all of the nature of 
 gambling-. Lawrence, J., giving the opinion of the court, said : 
 " As insurance is a contract of indemnity, it cannot be said to be 
 extended beyond what the design of such species of contract will 
 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 maritime adventure, the adven- 
 turer is liable to be 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. 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 commerce by their having the means of preserving their cap- 
 itals entire." ^ 
 
 316. A party, having agreed to purchase an article on a cer- 
 tain contingency, has an insurable interest in his profits 2/pon it. 
 
 A party having agreed for half of a cargo, on its arrival in B., 
 effected insurance on " profits on merchandise in schooner S. from 
 M. to B." The cargo was prevented, by the perils insured 
 against, from arriving at B. It was held in Massachusetts that 
 the assured had a good insurable interest in the profits. Mr. 
 Justice Putnam instanced insurance on commissions, to show 
 that direct ownership is not necessary to insurable interest ; and, 
 giving the opinion of the court, said, " We know no good reason 
 why the owner of goods at sea may not sell the profits, as well 
 as the goods themselves." ^ 
 
 317. // has been held, in many of the English cases, that, in 
 order to create an insurable interest in profits, it must appear that 
 there would, probably at least, have been a profit, had the property 
 arrived at the place to which it was insured.^ 
 
 1 Barclay v. Cousins, 2 East, 514. Term, 483, n.; 3 Bos. & P. 85, n.; 3 
 
 2 French v. Hope Ins. Co. IG Tick. Doug. 16; Henrickson v. Margitson, 2 
 Mass. 397. East, 549 ; Hodgson v. Glover, 6 East, 
 
 3 Grant v. Tarkinson, Park, 402 ; 6 31G; Ej-re v. Glover, 16 East, 218.
 
 1G8 INSURABLE INTEREST. [CHAP. III. 
 
 318. Ill the United States, it is not neccssar?/ to shoiv that there 
 would actually have been a profit in order to constitute an insur- 
 able interest in profits. 
 
 In New York, under a policy on profits, where three eighths of 
 the goods were lost, the court held it to be a loss of that propor- 
 tion of the profits, under the policy, without inquiring whether 
 there would have been any profits had the goods arrived.^ 
 
 Mr. Justice Johnson, giving the opinion of the court on the 
 question, whether there was an insurable interest to which a val- 
 uation of profits could attach, said : " It is diflicult to conceive, if 
 profit be a mere excrescence of the principal, as some judges have 
 said, why the loss of the cargo should not carry with it the loss 
 of the profits. The rule has convenience to recommend it, of 
 which this case presents a striking illustration. Here was a voy- 
 age of many thousand miles to be performed, the final profits of 
 which must have been determined by the statement of the ac- 
 counts passing through several changes, some of which might 
 have resulted in loss, some in gain, and in each case the good or 
 ill fortune of the adventure turning on the gain or loss of a day 
 in the voyage. What human calculation or human imagination 
 could have furnished testimony on a fact so speculative and for- 
 tuitous ! " ^ 
 
 319. There is, as is remarked by Mr. Justice Kent, a great 
 similarity in freight, profits, and commissions, the first being 
 profits to arise out of the employment of the ship, the other two 
 on the goods. He proceeds : " These insurances on freight, profits, 
 commissions, &c., are said to be founded on the course and inter- 
 ests of trade, and are greatly conducive to its prosperity. The 
 doctrine, however, that runs through all the cases is, that the as- 
 sured must have an interest in the subject-matter, from which the 
 profits are to be derived, in order to prevent the policy from being 
 considered a wager. Policies on profits or freight, if the assured 
 be owner of the subject from which the same are to accrue, are 
 not wagers, but policies on a real and substantial interest." ^ 
 
 1 Loomis V. Shaw, 2 Johns. Cas. N. 222, Thompson, J., and Baldwin, J., 
 Y. 36 ; and see Fosdick v. Norwich Mai", dissenting. And see Alsop v. Common- 
 Ins. Co. 3 Day, Conn. 108 ; Mumford wealth Ins. Co. 1 Sumn. C. C. 451. 
 
 V. Ilallett, 1 Johns. N. Y. 433. 3 Abbott v. Sebor, 3 Johns. Cas. N. 
 
 2 Patapsco Ins. Co. v. Coulter, 3 Pet. Y. 30.
 
 SECT. IX.] INTEREST OF CAPTOES AND PRIZE AGENTS. 169 
 
 SECTION IX. INTEREST OF CAPTORS AND PRIZE AGENTS. 
 
 320. Interest in prizes can be derived only from the govern- 
 ment} 
 
 321. Captors have an insurable interest in the captured property 
 ivhere they are by law entitled to a share of the proceeds of its 
 sale in case of its being condemned as prize? 
 
 On its being objected that the captured property might be re- 
 stored to the owners, or other disposition made of it, Lord Ellen- 
 borough said, that the right of stopping in transitu did not defeat 
 the insurable interest of a consignee. " The indefeasibility of the 
 property is not therefore the criterion of an insurable interest. 
 What is the case of an executor ? Probate is necessary to com- 
 plete his title, yet before probate he has a title sufficient to enable 
 him to insure." He accordingly was of opinion, that the captors 
 had an insurable interest, and this was the judgment of the court.^ 
 
 322. The captors have an insurable interest on account of their 
 responsibility for the captured property, where such responsibility 
 is incurred by the capture, as it generally is.* And the extent and 
 amount of the insurable interest, so far as it rests upon this basis, 
 is commensurate with the responsibility.^ 
 
 323. On the question, ivhether a mere expectation of a share 
 of a prize, not supported by any provision of law, gives the 
 captors an insurable interest in the captured property. Lord 
 Mansfield remarked, in an early case,^ that, as " wherever a 
 capture had been made, the crown had always given a grant 
 of it after condemnation," this expectation, so grounded, gave 
 the captors a sufficient insurable interest in the prize. But this 
 
 1 The Joseph, 1 Gall. C. C. 545 ; 2 Campb. 225. See also, as to interest 
 The Elsabe, 4 C. Rob. Adni. 408 ; Routh of captors, Tlie United States v. Peters, 
 V. Thompson, 11 East, 428, and 13 id. 3 Dall. 121; The Mary Ford, 3 Dall. 
 274 ; Nicol c. (Joodall, 10 Ves. 157. 188. 
 
 2 Le Cras v. Hughes, Park, 406 ; 3 ^ Per Lord Kenyon, C. J., Boehm v. 
 Doug. 81, called the Omoa case ; Boehm Bell, 3 Term, 154. 
 
 V. Bell, 8 Term, 1.^4 ; Lucena v. Crau- 5 See also Craufurd v. Hunter, 8 
 
 turd, 5 Bos. & P. 2G9; Pothier, Ins. Term, 13; Lucena r. Craufurd, 3 Bos. 
 
 n- 33. & P. 75 ; 5 Bos. & P. 269. 
 
 3 Slirliig V. Vaughan, 11 East, 619; 6 The Omoa case, 3 Dougl. 81. 
 
 VOL. I. 1.5
 
 170 INSURABLE INTEREST. [CHAP. III. 
 
 proposition has been doubted by Lord Eldon,^ and Lord Ellen- 
 borongh,^ and C. J. Tindal.^ Tliey are inclined to the opinion, 
 though an expectation founded on property, or a right by law or 
 by contract, gives an insurable interest, yet a mere probability, or 
 merely reasonable expectation not so founded, does not give such 
 a right. 
 
 In such cases, though the j)arty having the expectation has not 
 an insurable interest in the subject-matter to which it relates, 
 which would support an insurance upon it generally, he may have 
 a sufficient interest in the contingency upon which his expectation 
 depends, to be the foundation of a valid contract of guaranty or 
 iyidemnity in relation to it, if his interest is described so as to 
 be well understood by the other contracting party, and if there is 
 no legal objection to the contract. Such a contract would have 
 the character of an insurance. It does not seem to be a merely 
 gambling one. 
 
 324. So commissioners, appointed by sufficient authority to take 
 charge of prizes or other property, may, by the mere appointment, 
 be authorized, as trustees, to insure it to its full value, in their 
 own names.'* 
 
 SECTION X. INTEREST OF THE CHARTERER OF A SHIP. 
 
 325. So far as a charterer of a ship is liable to damage by its 
 loss, he has an insurable interest. 
 
 Tha owner of one half of a schooner hired the other half, with 
 an agreement, that, in case of its being lost within the term of 
 the charter-party, the charterer, O., should pay M., the other 
 part-owner, the value of his moiety. He then insured the schooner 
 to its full value on his own account. Parsons, C. J. : " By virtue 
 of this contract, O. had a special property in M.'s moiety, which 
 was at his risk, and he might indemnify himself against loss by 
 causing himself to be insured." ^ This was precisely the interest 
 
 1 Lucena v. Craufurd, 5 Bos. & P. ter, 8 Term, 13 ; and see 3 Bos. & P. 13, 
 269. n. These celebrated cases arose on the 
 
 2 Routh V. Thompson, 11 East, 432; seizure of the Dutch ships and cargoes 
 but see S. C. 13 East, 274. in 1795 under an act of Parliament, 
 
 3 Devaux v. Steele, 6 Bingh. n. c. preparatory to a declaration of war 
 370. against Holland. 
 
 4 Lucena v. Craufurd, 3 Bos. & P. 5 Oliver v. Greene, 3 Mass. 133. 
 75 ; 5 Bos. & P. 269 ; Craufurd v. ^un-
 
 SECT. XI.] INTEREST IN FREIGHT. 171 
 
 of an insurer as to M.'s moiety, on which O., having himself 
 insured it, might effect reinsurance. 
 
 According to Lord Ellenborough's ruling, the other part-owner 
 might still have insured his half of the schooner on his own 
 account. H., the owner of a ship, had chartered her to W., who 
 covenanted, that, if the ship should be lost, he would pay H. 
 £3600. H. insured the ship on his own account, and it was lost. 
 It was objected that, as W. was to pay for the ship in case of 
 loss, H. had no insurable interest. Lord Ellenborough : " He 
 was not bound to trust exclusively to the credit of W., but might 
 likewise protect himself by insurance." ^ If the agreement with 
 W. extended to the loss of the ship by the perils insured against 
 in the policy, this was plainly, in effect, a double insurance ; but 
 under the form of policy used in England, this would raise no 
 objection to the claim of the assured. 
 
 In the United States the terms of the common form of policy 
 exclude double insurance, and the owner would, it seems, have 
 an interest for his policy against the same perils that are assumed 
 by the charterer only to the amount of the excess of his insurable 
 interest, if any, over the amount for which the charterer is liable 
 in case of loss. But in respect of other perils, if any, he still has 
 an insurable interest to the full value of the ship. 
 
 326. An agreement by the charterer to insure the ship, has 
 been held to give him an insurable interest, to the same effect as 
 an agreement to pay for her if lost. The court said : " The 
 assured must have a bona fide interest, but that interest may 
 exist without a legal title to the property." ^ 
 
 SECTION XI. INTEREST IN FREIGHT. 
 
 327. " Freight," in the common acceptation of the term, is 
 either the amount paid by the hirer of the ship to the owner for 
 the use of it, or the amount paid to the ship-owner for the trans- 
 portation of goods.3 The term is also used to signify the cargo. 
 In insurance, the term ^^ freight " signifies the earnings or profit 
 
 1 Hobbs V. Hannam, 3 Campb. 93. in Riley r, Hartford lus. Co. 2 Conn. 
 
 2 Bartlett v. Walter, 13 Mass. 20 7. 373. 
 
 3 Falconer, Mar. Diet. ; Ilosmer, J.,
 
 172 INSURABLE INTEREST. [CHAP. III. 
 
 derived by the ship-owner or the hirer of the ship from the use 
 of it himself, or by letting it to others to be used, or by carrying 
 goods for others. 
 
 328. In regard to the commencement of this interest, it is a 
 general rule that it commences not only by the vessel's sailing 
 with the cargo on board, but also ivhen the oivncr, or hirer, having 
 goods ready to ship, or a contract with another person for freight, 
 has commenced the voyage or incurred expenses and taken steps 
 towards earning the freight.^ 
 
 329. The ship must be ready, and something must have been 
 done, or expenses must have been incurred, towards earning freight ; 
 otherwise the interest has not accrued, as where the ship was lost 
 while careening.^ 
 
 330. As long as the destination of the ship on the voyage for 
 which the freight is insured is contingent, the insurable interest in 
 
 freight for that voyage does not accrue. 
 
 Thus, in case of a policy on freight from Gibraltar to Bour- 
 deaux, and thence to Philadelphia, the ship sailed from Gibraltar 
 for Bourdeaux with twenty thousand dollars in specie on board, 
 the master being ordered to purchase a cargo of brandy, in case 
 of prices being at a certain rate, otherwise to take a cargo on 
 freight, if it could be procured, or to proceed to Russia for a load 
 of iron and hemp. The ship was wrecked on the passage to 
 Bourdeaux. It was held, that the interest in the freight from 
 Bourdeaux to Philadelphia had not accrued at the time of the 
 loss.^ It may have been a mere seeking voyage, and the master 
 might not have been able to obtain brandy within his specified 
 limits, or other cargo on freight, on amving at Bourdeaux. 
 
 331. So long as no contract for freight is made, and no cargo is 
 ready, and no freight is procurable, no interest in freight has 
 accrued.'^ 
 
 332. A contract for freight gives an insurable interest, as soon 
 as the ship is ready to take it. 
 
 Insurance being effected on the freight of a ship chartered to 
 go to Teneriffe, and there take a cargo for the West Indies, and 
 
 1 See oases infra. 3 Adams v. Penn. Ins. Co. 1 Kawle, 
 
 2 Tonge V. Watts, 2 Strange, 1251 ; Penn. 107. 
 
 and see cases infra. ^ Adams v. Penn. Ins. Co. 1 llawle, 
 
 Penn. 107.
 
 SECT. XI.] INTEREST IN FKEIGHT. 173 
 
 lost on the voyage to Teneriffe, before the cargo was taken on 
 board under the charter-party, it was objected, that the insurable 
 interest had not commenced at the time of the loss. It was 
 however, held that it had commenced, and Lord Kenyon said: 
 " It now seems admitted, that if the contract had its ince)3tion, if 
 any thing were done under it by the assured, his right to freight 
 commenced." ^ 
 
 An open policy was made on the freight of the ship Marquis 
 of Lansdowne, at and from Dominica to London, the owner of 
 which had a charter-party for a full freight outward and home- 
 ward, or for dead freight if a cargo should not be supplied ; and 
 while the ship lay at Dominica, ready to take on board the cargo, 
 it was captured. Lord Ellenborough said : " The existence of 
 the charter-party, giving an entirety to the contract of freight, 
 was decisive, the voyage having once commenced." ^ 
 
 In the case of insurance on freight and passage-money, from 
 India to Europe, a contract for the freight of goods and the pas- 
 sages of forty invalids had been made, and the ship had been 
 altered for the accommodation of the passengers, and a greater 
 part of the goods had been taken on board, when the ship was 
 lost; it was held, that the owner had an interest in the whole 
 freight and passage-money at the time of the loss.^ 
 
 In case of the insurance on the freight of the ship Hope, at and 
 from Madras to London, the Hope arrived in Madras Roads on 
 the 30th of November, 1827, from which time to the 5th of De- 
 cember the crew were employed in discharging the outward cargo, 
 and on the next day the ship was lost by the perils of the seas. 
 No- part of the homeward cargo had been shipped, but the owners 
 had some goods ready to ship, and contracts for shipments by 
 others ; and it was adjudged that the interest in freight had com- 
 menced to the amount so ready and contracted by valid contracts. 
 Lord Tenterden remarked, that, " to recover on a policy on freight, 
 the assured must prove, that, but for the intervention of the perils 
 insured against, some freight would have been earned, either by 
 showing that some goods were put on board, or that there was 
 some contract for doiner so." * 
 
 1 Thompson v. Taylor, 6 Term, 478. 3 Truscott v. Christie, 2 Bred. & B. 
 See also Mackenzie i-. Shedden, 2 320 ; 5 Moore, 33. 
 
 Campb. 431. 4 Flint v. Flemyng, 1 Barnew & Ad. 
 
 2 Horucastle v. Stuart, 7 East, 400. 45; 1 Lloyd & W. 257. See also Wil- 
 
 15*
 
 174 INSURABLE INTEREST. [CHAP. III. 
 
 No particular form of contract for freight is requisite. It may 
 be under seal, or merely in writing, or verbal. It is enough that 
 it is a valid contract.^ 
 
 333. The oivner having' a specific cargo ready to put on board, 
 and his preparations made, and his ship ready to proceed on the 
 voyage, his insurable interest in freight has accrued, so that a 
 policy upon it will attach. 
 
 Where the owner of a ship, of which the freight was insured at 
 and from the Coromandel Coast, had purchased the cargo, which 
 was about seven miles from the port, and the ship was lost in 
 coming out of the dock in a state of repair ready for taking the 
 cargo, the interest in the freight was held to have commenced.^ 
 
 Insurance being made on the freight of the ship Etheta from 
 New York to Sisal, or some other port in the province of Yuca- 
 tan, and back, " carried or not carried," the ship, after taking in a 
 part of her cargo at Sisal, was driven on shore and lost. The 
 rest of the cargo had been purchased and the export duty paid, 
 and it was ready to be shipped, and would have been so, but for 
 the unfavorable weather, when the ship was lost. The judges 
 say: " As the freight was valued at the sum insured, ' carried or 
 not carried,' the assured is entitled to recover as for a total loss, 
 notwithstanding a full cargo was not on board." ^ It would, how- 
 ever, have been covered under a policy " on freight" simply. 
 
 It was held, where the freight was valued at £1500, and goods 
 had been put on board, of which the freight would have been 
 .£500, the rest of the cargo being ready to be shipped, when the 
 vessel was driven from her moorings and lost, that the insurable 
 interest in the whole freight had accrued, and the assured was 
 entitled to the whole sum insured.* 
 
 Under a policy on freight, at and from the island of Grenada to 
 London, the ship discharged her outward and took in her home- 
 ward cargo, at different ports of the island, there being but one 
 
 liamson v. Innes, 8 Bingh. 81, n. ; and 2 Deveaux v. J'Auson, 5 Bingb. N. c. 
 
 Inglis V. Vaux, 3 Campb. 43 7 ; and Hall 519. 
 
 r. Brown. 2 Dow, Pai'l. Cas. 36 7. See 3 X)e Longuemere v. The Phoenix 
 
 also Davidson v. Willasey, 1 Maule & Ins. Co. 10 Johns. N. Y. 127; The 
 
 S. 313; Livingston r. Columbian Ins. same Plaintiff r. The New York Fire 
 
 Co. 3 Johns. N. Y. 49. Ins. Co. 10 id. 201. 
 
 1 Patrick v. Eames, 3 Campb. 441. 4 Montgomery ?;. Eggington, 3 Term, 
 
 See Sellar v. M' Vicar, 4 Bos. & P. 23. 362,
 
 SECT. XI.] INTEREST IN FREIGHT. 175 
 
 custom-house in the island. Mr. Justice Hohoyd said, that the 
 risk under the policy on the homeward freight had begun to take 
 effect as soon as the ship had been twenty-four hours in safety at 
 Grenada. In this case, however, the ship, at the time of the loss, 
 was at that port of the island at which the loading was to be com- 
 pleted.^ 
 
 But the interest in freight will commence only upon the freight 
 of the cargo shipped or ready to be so, or the freight contracted 
 for. 
 
 The freight of the ship Cheswick, at and from any ports in 
 Hayti to Liverpool, being insm'ed in a valued policy, the ship was 
 lost by the perils of the seas, when she had discharged a part of 
 her outward cargo, and taken in fifty-five bales of cotton of her 
 homeward cargo, at Jacquemel, and was proceeding thence to 
 Aux Cayes, to discharge the rest of her outward, and take in the 
 remainder of her homeward cargo. 
 
 Upon these facts. Lord Ellenborough said : " In every action 
 on such a policy, evidence is given, either that goods were put on 
 board from the carriage of which freight would result, or that 
 there was some contract under which the owner, if the voyage 
 were not stopped by the perils insured against, would have been 
 entitled to freight." The owner had no charter-party or other 
 contract for freight, but goods were on board, sufficient to pur- 
 chase the remainder of the homeward cargo, that were saved and 
 afterwards bartered for goods, which would have completed the 
 homeward cargo. It was decided, that the assured should recover 
 only the freight of the fifty-five bales of cotton.^ 
 
 The freight of the ship Jane had been insured at and from the 
 Cape de Vcrd Islands to London. She had taken on board one 
 hundred and fifty bags of orchella-weed, which was only a part 
 of a cargo, at St. Nicholas, where she was wrecked. Lord Ellen- 
 borough instructed the jury, that an insurable interest in only the 
 one hundred and fifty bags on board had accrued at the time of 
 the loss.'^ 
 
 Mr. Justice Kent remarks, that an " inchoate right to freight," 
 
 1 "\Yarre v. Miller, 7 Dowl. & R. 1 ; See also Forbes r. Cowie, 1 Campb. 
 4 Barnew. & C. 538; 1 Carr. & P. 520. 
 
 237. 3 Patrick v. Eames, 3 Campb. 441. 
 
 2 Forbes v. Aspinwall, 13 East, 323. See also Moses v. Pratt, 4 Campb. 297.
 
 176 INSURABLE INTEREST. [CHAP. III. 
 
 constitutes an insurable interest/ according to what was said by 
 Mr. Justice Eyre :" If the goods be so situated as to create a 
 well-grounded expectation of freight being realized, freight is in- 
 surable." ^ 
 
 If the expression, " the goods," has reference to a specific cargo, 
 the proposition is in strict accordance to the jurisprudence on the 
 subject. But the courts do not appear to have permitted the 
 insured ship-owner to go into evidence that he would, in all prob- 
 ability or certainty, have obtained a cargo of his own or freight 
 of the goods of others, at the proposed port of loading, had not 
 his vessel been lost on its way thither ; though, if the phraseology 
 of Mr. Justice Eyre be accepted in its broadest sense, it will favor 
 the admission of such evidence. The courts hesitate to enter upon 
 such indefinite testimony ; though there seems, in fact, to be as 
 valid and sufficient an insurable interest in freight, where the ves- 
 sel is going to a port merely to take a cargo, or part of one, on 
 the owner's account, which he has funds on board, or unquestion- 
 able credit at the place, to procure, and which can, in fact, be 
 there procured, as when he has a contract for freight thence. And 
 he might, no doubt, so describe his interest in freight in the policy 
 as to make the insurance valid. 
 
 But a general policy on freight has been held in Connecticut 
 not to attach in such case ; even where the owner has funds on 
 board for the purchase of a cargo, or part of one, which the ship 
 is going to a port for the purpose of procuring. 
 
 " The freight of goods laden or to be laden," being insured, a 
 part of a cargo was taken at Gibraltar, and the ship was proceed- 
 ing towards the Cape de Verd Islands, with funds to purchase 
 salt there to make up the cargo, when she was lost. It was held, 
 that the insurable interest had commenced only in respect of the 
 goods shipped at Gibraltar.^ 
 
 That the rule, as laid down by the judicial authorities, will oper- 
 ate very inequitably in some cases, is shown in one very early 
 case decided in Boston by referees, whose authority upon this 
 question would compare not disadvantageously with that of the 
 judicial tribunals. The case was that of the ship Eclipse, of 
 
 1 Davy I'. Ilallett, 3 Caines, N. Y. 3 Riley v. Hartford Ins. Co. 2 Conn. 
 16. 368. 
 
 2 Curling V. Long, 1 Bos. & P. 636.
 
 SECT. XI.] INTEREST IN FREIGHT. 177 
 
 Salem, which was piratically plundered of specie on the western 
 coast of Sumatra, in 1836, having a part of her homeward cargo 
 of pepper on board, and a sufficient supply of specie to purchase 
 the remainder, there being at the time a sufficient supply of 
 pepper on the coast. The freight for the voyage round was 
 insured. If no insurable interest in the freight of the homeward 
 cargo accrued until the shipment or purchase of the pepper, and 
 only to the extent of such shipment or purchase, the policy did 
 not afford the indemnity evidently contemplated by the parties ; 
 for it appeared by the policy, that the outward shipment was to 
 consist of specie, the freight of which separately would have been 
 but a trifle, and yet one entire full premium was given on the 
 amount of freight for the whole voyage out and home, sufficient 
 to indemnify the assured if the same amount of freight were con- 
 sidered to be at risk out and home. In consequence of the piracy, 
 the ship returned with only a part of a cargo, and the assured 
 claimed indemnity for his loss of freight. There were other ques- 
 tions between the parties, and the objection to this claim was not 
 very strongly urged by the underwriters. The referees were 
 decidedly in favor of allowing the claim under these circum- 
 stances.i 
 
 The equity and propriety of this award are obvious in respect 
 to a voyage conducted as East India voyages usually were at that 
 time, when ships usually went out in ballast, with specie for the 
 purchase of a homeward cargo ; which was a more reliable secu- 
 rity for a homeward freight than any charter-party could be. It 
 may be said that good rules will sometimes work inequitably ; 
 but it is certainly desirable to adopt such as will be least liable 
 to work so. I therefore venture to suggest a modification of the 
 expression of the doctrine upon this subject; namely, that. 
 
 Where the vessel has sailed for an intended port of loading; 
 for the mere purpose of there taking a cargo for a subsequent 
 passage, to ijrocure which the owner has funds on hoard or reli- 
 able credit and it appears that such a cargo can undoubtedly be 
 there procured, the interest in freight, for the entire voyage 
 homeward, has accrued. 
 
 I do not perceive that such a rule would be impracticably in- 
 definite and uncertain in its ap})lication, and it is within a liberal 
 
 1 Peabody v. Marine Ins. Co. of Salem, 1839, (MS.)
 
 178 INSURABLE INTEREST. [CHAP. III. 
 
 construction of the terms in which the doctrine on this question is 
 laid down by Mr. Justice Eyre/ and cited by Mr. Justice Kent, 
 and in close analogy to the jurisprudence next to be referred to. 
 
 334. A charter-parti/ being- made for successive passages^ at 
 an entire freight, the interest in the ivhole freight commences on 
 the first passage^ though the ship may sail in ballast merely on 
 that passage, provided it is let by the assured, or he has a cargo 
 ready at the intermediate port. 
 
 The owner of the ship Olive Branch let her by charter-party 
 for a voyage from Bourdeaux to New York, Buenos Ayres, and 
 back to Europe, for the entire sum of eighteen thousand dollars. 
 The ship had arrived at New York in the prosecution of the voy- 
 age, where she was detained by an embargo, after her cargo had 
 been discharged, and before the cargo for Buenos Ayres was put 
 on board. Chief Justice Kent, giving the opinion of the court, 
 said : " The risk had attached on the whole freight. The charter- 
 party gave an entirety to the contract of freight." ^ 
 
 In a case upon a policy on freight " from New York to Wil- 
 mington, and thence to Barbadoes," the assured had bought a 
 cargo, which was to be taken on board at Wilmington had not the 
 vessel been lost on the way thither. Mr. Justice Washington held, 
 that the interest in the whole freight commenced at the time of the 
 vessel's sailing from New York.^ 
 
 335. A vessel being chartered from A. to B., the interest in 
 the freight commences under the charter-party on the vesseVs 
 sailing for A., either in ballast or with a small quantity only of 
 goods, for B. 
 
 That is, if the prior passage is merely preliminary to the one 
 for which the vessel is chartered, having no cargo deliverable at 
 A. or any intermediate port, and the object in the passage to A. 
 is merely to prosecute the voyage thence to B., the interest in the 
 whole freight under the charter-party accrues on the commence- 
 ment of the first passage. 
 
 A ship chartered at New York to take a cargo of timber, then 
 ready to be shipped, from St. John's River, in Florida, to Charles- 
 
 1 Curling I'. Long, 1 Bos. & P. 636. 3 Hart v. Delaware Ins. Co. 2 Wash. 
 
 2 Livingston v. Columbian Lis. Co. C. C. 346. 
 3 Johns. N. y. 49.
 
 SECT. XI.] INTEREST IN FREIGHT. 179 
 
 town, was lost on her passage to St. John's. The interest in the 
 whole freight was held to have accrued.^ 
 
 Under a policy by the owner upon " freight on board, " at and 
 from Cadiz to a port in Sicily, the vessel, being let on charter for 
 an entire sum from Palermo to the United States, was lost in the 
 Bay of Cadiz on her passage to Sicily, having on board only a 
 small quantity of goods, and those shipped for the United States. 
 The interest in the whole voyage under the charter-party was held, 
 in Massachusetts, to have commenced, to the amount of the whole 
 stipulated charter-money.^ 
 
 336. The rules above laid down relative to the commencement 
 of the interest of the owner in the freight, are applicable to a 
 charterer^ who has hired the whole or any part of the ship, as far 
 as the earning of freight is thus put at his risk ; he being thus far 
 in the place of owner.-^ 
 
 The charter-party often leaves some perils at the owner's risk, 
 and puts others at the risk of the charterer, in which case each 
 will have an insurable interest in freight against the perils that 
 are at his risk. If, for instance, the charterer assumes the peril of 
 capture, and other perils of the seas remain with the owner, each 
 may insure freight to its full amount against the perils at his risk.* 
 
 As in case of the charterer's taking the risk of the Russian 
 government's not permitting the cargo to be discharged.-^ 
 
 337. Jf the charterer by a sub-charter, or by carrying goods ^ 
 will, the perils of the voyage excepted, realize earnings exceeding 
 the amount of the charter-money which he has agreed to pay to 
 the owner for the use of the ship, he has an insurable interest in 
 the excess against all perils. 
 
 And it will make no difference whether the charterer transports 
 his own cargo, or takes goods on freight, or makes up the cargo 
 in both of those ways. If the earnings to be realized exceed the 
 charter-money to be paid, he undoubtedly has an insurable inter- 
 est to the amount of the excess. But if there is no such excess, 
 
 1 Adams r. Warren Ins. Co. 22 4 See Sanson v. Ball, 4 Dall. 4.50 ; 
 Pick. Mass. 163. IMaekenzie o. Shedden, 2 Campb. 431 ; 
 
 2 Robinson v. The Manufacturers' Clark v. Ocean Ins. Co. 16 Pick. Mass. 
 Ins. Co. 1 Mctc. Mass. 143. 2Si). 
 
 3Mestaer v. Gillespie, 11 Ves. jun. 5 p^Uer v. Stanifortli, 11 East, 232; 
 621. Puller v. Ilalliday, 12 East, 494.
 
 180 INSURABLE INTEREST. [CHAP. III. 
 
 then the charterer has no insurable interest against the same perils 
 that are at the risk of the owner by the charter-party.^ 
 
 338. An advance made on the charter-parly by the charterer, 
 to defray the expenses of the ship on the voyage, or for any 
 other purpose, under a stipulation that the same is to be at his 
 risk, and the owner not chargeable thereivith in any event, gives 
 the charterer an insurable interest in freight, against all risks, 
 to the amount so advanced. In order to recover the loss, the 
 charterer must prove that the advance was actually made ; the 
 proof of the agreement to make it will not be sufficient under 
 his policy on freight.^ 
 
 But if the owner is absolutely chargeable with the advance, and 
 liable for the same as a debt, independent of the issue of the voy- 
 age, then no insurable interest accrues to the charterer therefrom, 
 any more than from any other demand he may have against the 
 owner; 3 except that if the charterer, by the construction of the 
 charter-party, is entitled to a lien on the stipulated charter-money, 
 and has a right to retain the same, to the amount advanced, he 
 has an insurable interest on account of such lien to such amount, 
 just as a lender on mortgage or bottomry, or any other party hav- 
 ing a lien, has such an interest. 
 
 339. If a person sells a ship, reserving the use of it for a cer- 
 tain voyage or time, he stands in the place of a charterer, and has 
 a similar insurable inter est^ 
 
 340. The mere advancing of the freight of goods ivill not give 
 the party making the advance any insurable interest in the freight 
 so advanced, in case of his having a right to recover it back, if 
 the goods on ivhich the freight is advanced shall not be delivered 
 according to the bills of lading.^ 
 
 1 Mellen y. National Ins. Co. 1 Hall, 37; Mansfield v. Maitland, 4 Barnew. 
 N. Y. 452. It was decided in this & Aid. 58.5 ; Winter v. Haldimand, 2 
 case that the charterer could not insure Barnew. & Ad. 649 ; Saunders v. Drew, 
 his interest under the description of 3 id. 45 ; Lee v. Barreada, 16 Md. 
 '•freight;" but this position is at least 190. Contra, Kinsman v. New York, 
 questionable. See infra, No. 480. Ins. Co. 5 Bosw. N. Y. 460. This was 
 
 2 Mansfiehl v. Maitland, 4 Barnew. & for freight advanced to the charterers. 
 Aid. 582 ; Wilson v. Royal Exch. Ass. 4 See Ililey v. Delafield, 7 Johns. N. 
 Co. 2 Campb. 623; Robbins v. New Y. 522. 
 
 York Ins. Co. 1 Hall, N. Y. 325. 5 See Wilson v. Martin, 11 Exch. 684 ; 
 
 3 De Silvale v. Kendall, 3 Maule & S. 34 Eng. L. & Eq. 496 ; Kathman v. Gen,
 
 SECT. XII.] INTEREST IN FISHING VOYAGES. 181 
 
 And it has been held, that where the freight is advanced with- 
 out any other conditions and stipulations than those contained 
 in an ordinary bill of lading, in case of the delivery of the goods 
 at the port of destination being prevented, so that no freight 
 could have been recovered of the shipper if none had been ad- 
 vanced, he may recover back the amount advanced.^ 
 
 So it has been ruled that money lent to the master, payable 
 out of freight, gives no insurable interest in freight ; ^ that is, 
 supposing the master does not undertake to assign or pledge the 
 freight, or, if he so undertakes, without authority from the nature 
 of the loan contracted, or otherwise, to pledge it. 
 
 341. The freight of a part of a voyage may be insured. 
 
 A ship sailed from St. Ubes for Gottenburg, but was to put 
 into Portsmouth for convoy. The freight was insured from St. 
 Ubes to Portsmouth. Lord Ellenborough said : " There is no 
 doubt that a party may insure his ship or goods for a part of a 
 voyage ; I cannot conceive why he may not insure freight in the 
 same manner. There is no case which intimates the contrary, 
 except Murdock v. Potts,^ which is inconsistent with all the 
 other cases." * 
 
 342. If the ovmer of the ship advances money for wages or 
 charges^ he has an insurable interest in consequence ; ^ and the 
 same holds true of the charterer,^ 
 
 SECTION XII. INTEREST IN FISHING VOYAGES. 
 
 343. In whaling voyages t\vo subjects are distinctly specified, 
 which are not so in commercial marine insurance; namely, 
 " outfits," consisting of the apparatus for taking whales, and 
 
 M. Ins. Co. 12 La. Ann. 35 ; Minturn v. freight may be insured by a time pol- 
 
 Warren Ins. Co. 2 All Mass. 86. icy. Michael v. Gillespy, 2 C. B. n. s. 
 
 1 Griggs V. Austin, 3 Pick. Mass. 20, 627. 
 
 2 Wilson V. Royal Exc. Ass. Co. 2 5 Sal vadorv. Hopkins, 3 Bm-r. 1707; 
 Campb. 623. Bell v. Bell, 2 Campb. 479. Though 
 
 3 Park, 451. Siffken v. AUnutt, 1 Maule & S. 39, 
 * Taylor v. Wilson, 15 East, 324. seems to be contrary ; but the facts do 
 
 See also Gordon v. American Ins. Co. not appear distinctly. 
 
 of New York, 4 Den. N. Y. 360. So 6 Sanson i-. Ball, 4 Dall. 459. 
 
 VOL. 1. 16
 
 182 INSURABLE INTEREST. [CHAP. III. 
 
 trying out the oil, casks, stores of provision and clothing for the 
 men, &c., and " takings," or " catchings." Part of the former 
 and all of the latter of these interests constitute cargo. 
 
 One of these two interests, namely, the outfits, will evidently 
 be diminishing during the whole voyage ; and a part of it will, 
 during a long voyage, as such usually are, be consumed and 
 replaced from time to time. 
 
 The " catchings " accrue and accumulate during the voyage, 
 according to the success of the adventure ; and the interest in 
 these is divided between the owners on one part, and the officers 
 and crew on the other, each man on board being entitled to a 
 certain share, which, however, is pledged to the owners for 
 whatever charges may stand against him for articles supplied to 
 him, with which, by the rules and customs of this fishery, he is 
 chargeable. 
 
 Again, the men usually give orders for the supply of their 
 families at home, during their absence on the voyage, for which 
 they not unfrequently pledge their shares to the parties who 
 furnish such supplies, whether owners of the vessel or others. 
 
 The various insurable interests in the " catchings " are, there- 
 fore, somewhat complicated, but still not so as to present any 
 great embarrassment in ascertaining the proportions of interest, 
 or adjusting losses. 
 
 It is usual with the owners to make insurance upon the ship 
 and outfits, and at the same time to provide that a certain 
 proportion, commonly one fourth, of the catchings at any time at 
 risk, shall " replace " the outfits consumed.^ 
 
 Other forms of policy have a provision that, so soon as the 
 catchings shall amount to a certain specified sum, according to 
 the rate of valuation of the oil and whalebone, agreed on in the 
 policy, a certain amount of the insurance shall be applied to this 
 interest exclusively.^ 
 
 344. The interest of the officers and men is insured under the 
 description of " share " in whaling voyages, and " lay " in cod- 
 fishing and mackerel-fishing. 
 
 345. In cod-fishing voyages, as they are conducted in the 
 United States, the outfits consist of the great and the small " gen- 
 eral." The " great general " is supplied wholly by the owners, 
 
 1 New Bedford form. 2 ]vJew York form.
 
 SECT. XIII. J INTEREST IN FIRE INSURANCE. 183 
 
 and includes the salt for curing the fish, the bait, premium of 
 insurance, and some other small articles and expenses. The 
 "small general" is supplied by each man for himself, and con- 
 sists mostly of the provisions and fuel. The insurable interest 
 of the owners accordingly consists of their interest in the vessel, 
 the " great general," and their proportion of the fare, or " stock," 
 which is customarily one quarter, or, including the expense of 
 curing the fish, three eighths.^ The interest of the men in the 
 proceeds of these voyages is rarely insured. 
 
 Voyages in mackerel-fishing are conducted in a similar way, 
 and the interests of the several parties are not unlike those in a 
 cod-fishing voyage. 
 
 SECTION XIII. INTEREST IN FIRE INSURANCE. 
 
 346. There is no distinction between marine and fire policies, 
 as to the kind and degree of interest necessary to constitute the 
 basis of a policy. Fire is, as we have seen, one of the risks ordi- 
 narily insured against in marine policies. 
 
 347. Notwithstanding a defect in the conveyance of a building 
 in fee, the grantee has an insurable interest to its full value, under 
 a general description of the subject, where the defect in the con- 
 veyance is amendable by proceedings in equity.^ 
 
 348. The owner still retains his insurable interest in a building 
 to its full value, notiuithstanding an agreement to sell it for a price 
 which the other party is not the less liable to pay though it be 
 consumed by fire, if it is part of the agreement that the building 
 
 1 The owners usually supply the men ciently, vessels employed in the mack- 
 
 with more or less of the " small general," erel, herring, and other fisheries, made 
 
 and, as they depend wholly upon the a sort of mutual insurance, by agreeing 
 
 proceeds of the voyage for payment, it to share their fares. Laws of Oleron, 
 
 is understood, by some persons conver- a. 28 ; 1 Pet. Adm. xlvi. And an 
 
 sant in this business, that they have an agreement of the same description 
 
 insurable interest to the amount of between two whaling ships, called a 
 
 the " small general " supplied by them, ti mateship," has been held to be valid 
 
 though the price is in fact legally and {„ Massachusetts. Baxter v. Rodman, 
 
 absolutely due from the men. Their in- 3 Pick. Mass. 435. 
 
 surable interest in the shares of the 2 Swift v. Vermont Mut. Fire Ins, 
 
 men in such case, therefore, if they (Jq. is Vt. 303. 
 have such, is that of mortgagees. An-
 
 184 INSURABLE INTEREST. [CHAP. III. 
 
 is to be mortgaged to the vender, or retained by him, as security 
 for the purchase-money. 
 
 It was so held in a case where the purchaser had, before the 
 building was burnt down, failed to comply with his agreement 
 to complete the purchase, and make payment and give security 
 within a certain time.^ 
 
 349. If a tenant for life and the remainder-man join in effect- 
 ing insurance^ they ivill he proportionally interested, and the ap- 
 plication of the proceeds of the policy in repairs will give to 
 each a just proportion of the benefit of the insurance.^ But if 
 the tenant for life insures a building without any agreement 
 with the remainder-man respecting the insurance, the latter has 
 no interest in the policy, and the assured may apply the proceeds 
 in putting up a new building in place of the one burnt down, or 
 not, as he may choose.^ 
 
 350. A husband having a right to tenancy by courtesy in the 
 event of his surviving his wife, has an insurable interest in her 
 real estate ;'^ and in real estate conveyed to the wife in Maryland 
 under statute of 1842, c. 29, § l.^ 
 
 351. A judgment-creditor who has, by virtue of his judgment, 
 a lien on the real estate of his debtor, has an insurable interest 
 in such estate, and, having effected a policy upon it, may recover 
 for a loss that takes place after he has subsequently purchased 
 the estate, at a sale of it, on his execution.^ 
 
 1 Fire & jNIarine Ins. Co. of Wheel- full value of the building, foi' the value 
 ing V. Morrison, 11 Leigh, Va. 355. of his interest is certainly less than the 
 The court considered the assured ac- value of the building. Permitting him 
 countable to the purchaser for the to recover for the whole value of it, in 
 anaount paid for the loss, on the latter an open policy, is, therefore, to permit 
 afterwards completing the purchase. the I'ecovery of the full amount in an 
 
 2 Brough V. Higgins, 2 Gratt. Va. over-insurance. 
 
 408. ^ Franklin Ins. Co. v. Drake, 2 B. 
 
 3 Haxall's Executors r. Shippen, 1 Monr. Ky. 51 ; Harris v. York Ins. Co. 
 Leigh, Va. 437. 50 Penn. St. 341. 
 
 It is laid down that he may insure ^ Mutual Ins. Co. v. Deale, 18 Md. 
 
 and recover for the full value of the 26. 
 
 building, but this can be only by the ^ Mickles v. Rochester City Bank, 11 
 
 insurers being precluded from disput- Paige, Ch. N. Y. 118. 
 ing the amount of a loss equal to the
 
 SECT. XIV.] INTEREST IN LIVES. 185 
 
 SECTION XIV. INTEREST IN LIVES. 
 
 352. The insurance of the life of a freeman ivas prohibited 
 in France,^ because it is said to be above price, and is not a 
 subject of commerce, and it is wrong to allow it to be a matter 
 of commercial speculation ; and because such an insurance is a 
 wager, and tends to instigate men to crimes.''^ And Boulay Paty 
 contends strenuously against such insurance on these grounds, 
 and in 1820^ insists on the illegality of a license for it to a com- 
 pany by the king. It has, however, since then, come much into 
 use in that country ; and is prevalent in other parts of Europe. 
 Insurance, whether upon lives or property, no less than banking, 
 bills of exchange, &c., offers great facilities and temptations to 
 imposition, frauds, and swindling and other crimes. This seems, 
 however, rather to be a reason for legal provision for inspection, 
 and regulation and restriction, than for absolute prohibition. 
 
 353. One ivho is directly liable to a loss by the death of any 
 person, has an insurable interest in the life of such person. 
 
 A creditor has an insurable interest in the life of his debtor.^ 
 " The policy," says Lord Mansfield, " may be considered a collat- 
 eral security for the debt," ^ and therefore depends upon the same 
 principle as a policy upon the interest of a mortgagee. 
 
 Lord Kenyon instructed the jury, in case of a debt due from 
 N. to A., and an agreement between A. and M., on a settlement 
 of accounts, that the debt should " remain to the account of M. 
 only," that A. still had an insurable interest in the life of the 
 debtor.*^ But it does not appear what interest A. could have. 
 
 354. This interest, like any other, must be a legal one ; a note 
 given for money won at play, gives no insurable interest in the 
 life of the maker, the debt being illegal, and the note void.'' 
 
 • Ordinance 1681, Ins. a. 10; Es- in the lives of the partners; Morrell u. 
 
 trangin's Poth. Ins. No. 27, n. ; Code Trenton Ins. Co. 10 Cusb. Mass. 282. 
 
 de Com. a. 334. 5 Stackpole v. Simond, Park, 648 ; 
 
 2 1 Emerigon, 198, c. 8, s. 1. Marsh. 772. 
 
 3 Cours de Droit Conmiei-cial, pp. ^ Anderson v. Edie, Marsh. 776 ; 
 446-505, ed. Paris, 1823. Park, 640. 
 
 4 Kawls V. American L. Ins. Co. 27 7 Dwyer v. Edie, Marsh. 7 79 ; Park, 
 N. Y. 282. And the creditor of a firm 639. 
 
 16*
 
 186 INSURABLE INTEREST. [CHAP. III. 
 
 An annuitant has an insurable interest in the life of the grantor 
 of the annuity.^ 
 
 A partner has an insurable interest in the life of his copartner.^ 
 A reasonable expectation of gain from the continuance of the life 
 insured, or of pecuniary loss from his death, is sufficient interest.^ 
 A father has an insurable interest in the life of a minor child,^ 
 and a wife in the life of her husband, which continues after 
 divorce.^ 
 
 355. The interest may be indirect. An annuitant, whose annu- 
 ity is for the life of another, has an insurable interest in such life. 
 
 356. The interest may be contingent, and subject to be defeated. 
 The holder of a voidable promissory note of an infant has an 
 
 insurable interest in his life, for he may not avoid it.^ 
 
 In regard to this, as well as other subjects of insurance, an 
 interest contingent in itself, and that might be defeated, or might 
 eventually not have been of any value to the assured, is still a 
 good insurable interest. A young woman who " was, and had 
 been for several years, supported and educated at the expense of 
 her brother, who stood towards her in loco parentis, was held to 
 have an insurable interest in his life ;" and Parker, C. J., giving 
 the opinion of the court, said : " A policy effected by a child upon 
 the life of a father, who depended upon some fund, terminable 
 by his death, to support the child, would never be questioned." " 
 But there should be some pecuniary interest to support such a 
 policy.^ It is, however, not necessary that the interest should 
 exist at the time of the death ;^ nor that it should correspond in 
 amount to that specified in the policy ; the latter being the meas- 
 ure of liability.!*^ The assignee of a policy needs not to prove 
 
 1 Glynn v. Locke, 3 Drury & Warr. entitled to the policy as collateral, if the 
 Ch. Ir. II. insurance is in the name of the minor. 
 
 2 Valton V. National Ass. Soc. 22 Elvers v. Gregg, 5 Rich. Eq. So. C. 
 Barb. N. Y. 9, 20 N. Y. 32. 274. 
 
 3 Miller v. Eagle Ins. Co. 2 E. D. 7 Lord v. Dall, 12 Mass. 115. 
 Smith, N. Y. 268 ; Hoyt v. New York 8 Holford v. Kymer, 10 Barnew. & 
 Ins. Co. 3 Bosw. N. Y. 440. C. 724 ; Ruse v. Mutual Ins. Co. 23 
 
 4 Loomis V. Eagle Ins. Co. 6 Gray, N. Y. 516. 
 
 Mass. 396 ; Mitchell v. Union Ins. Co. ^ Dalby v. India Ins. Co. 15 C. B. 
 
 46 Me. 104. 365; 28 Eng. L. & Eq. 312 ; Rawls v. 
 
 5 McKee v. Phcenix Ins. Co. 28 Mo. American L. Ins. Co. 27 N. Y. 282. 
 383. 10 Bevin v. Connecticut Ins. Co. 23 
 
 6 Dwyer v. Edie, ut supra. And if Conn. 244 ; Hoyt v. New York Ins. Co. 
 the creditors pay the premium they are 3 Bosw. N. Y. 440.
 
 SECT. XV.] INTEREST IN DOUBLE INSURANCE. 187 
 
 an interest ; that of the assignor is sufficient to support his 
 claim.i 
 
 357. Very few questions, says JVIr. Ellis,^ have arisen on the 
 subject of interest under life policies, because the offices are not 
 in the habit of taking that objection, unless they are under the 
 necessity of resisting payment upon some other fair and proper 
 ground, as fraudulent misrepresentation and concealment ; and, 
 if they are driven to resist on such ground, they can, in order to 
 make their case the stronger, sometimes also object to the want 
 of interest, when the policy is open to that objection. 
 
 358. The English Court of Common Pleas intimate a doubt 
 whether one can insure his oivn life for the benefit of another who 
 merely advances the premium.^ But such insurance is common, 
 and seems not to be subject to objection in a bond fide trans- 
 action. 
 
 It is never questioned that one has an adequate insurable 
 interest in his own life.^ 
 
 SECTION XV. INTEREST IN DOUBLE INSURANCE. 
 
 359. Double insurance, or, ivhich is the same, over-insur- 
 ance, is ichere two or more insurances are made in favor of the 
 same assured, on the same interest in the same subject, against the 
 same risks.^ The term " double insurance " is more applicable 
 to duplicate insurance to the whole amount of the interest. 
 
 360. In France over-insurance is not permitted, and in case of 
 policies identical as to the party, interest, and risks, exceeding the 
 amouut of the insurable interest, without fraudulent intent, the 
 first underwriters only to the amount at risk are liable.^ But if 
 the insurances are all of the same date, Boulay Paty is of opinion 
 that the underwriters would be liable pro rata, and the premiums 
 
 1 Trenton Ins. Co. v. Johnson, 4 Ins. Co. 2 Hurlst. & N. Exch. 42, 40 
 
 Zabr. N. J. 576. Eng. L. & Eq. 465. 
 
 ■2 Ellis, Ins. 123; Von Lindenau t'. 4 Valton v. National Ass. Soc. 22 
 
 Desborough, 3 Carr. & P. 353 ; S. C. 8 Barb. N. Y. 9, 20 N. Y. 32. 
 
 Barnew. & C. 586. 5 Irving v. Richardson, 1 Macl. & 11. 
 
 3 Wainwright v. Bland, 1 Mecs. & Hou. L. Sc. 153 ; 2 Barnew. & Ad. 193. 
 
 W. Exch. 32 ; Shilling v. Accidental Code de Commercial, a. 359.
 
 188 INSURABLE INTEREST. [CHAP. III. 
 
 for the excess returnable pro rata, with the usual deduction of 
 one half per cent.^ This rule, therefore, leaves no interest for 
 double insurance, except in case of simultaneous policies. 
 
 361. Li England, the different underwriters in over-insurance, 
 v/hether at the same or successive dates, are liable pro rata for 
 loss, and if the assured compels full indemnity from some of the 
 underwriters, they may come upon the others for pro rata reim- 
 bursement.- And in the United States the rule is the same where 
 the policy contains no clause to control il.^ There is, therefore, in 
 both countries, an insurable interest for double insurance to any 
 a?nount. 
 
 362. The operation of the above ride evidently is, to make the 
 insurers in double insurance midual guarantors for each other, 
 the risk of which guaranty to each insurer will depend upon the 
 solvency of collateral insurers. To remedy the inconveniences of 
 the application of the above rule, the provision already mentioned 
 was introduced into marine policies in the United States,'^ making 
 only the prior insurers in favor of the same parties, on the same 
 interest, against the same risks, up to the amount of the value of 
 the subject, answerable, and exonerating the subsequent insurers 
 to the amount of the excess;^ on which excess the premium is 
 to be returned, deducting the half per cent, where such deduction 
 is stipulated for or customary. 
 
 863. Under the clause making only the prior insurers, to the 
 amount of the insurable value of the subject, liable, if the over- 
 insurance is made by simultaneous policies, or simultaneous sub- 
 scriptions to the same policy, all the insurers are liable pro rata.^ 
 
 364. In the jurisprudence of France, the ^different policies, and 
 
 ' Cours do Droit Com. tit. des Ass. ^ Craig v. Murgatroyd, 4 Yeates, 
 
 s. 20, torn. 4, pp. 116, 117, 118, ed. Penn. 161; Thurston t;. Koch, 4 Dall. 
 
 1823. So he infers from a. 1383 of the 348, and App. xxvii. ; Millaudon v. 
 
 Code Civil, and a. 349 of the Code de Western Mar. & Fire Ins. Co, 9 La. 27 ; 
 
 Commercial. Peoria Ins. Co. v. Lewis, 18 III. 553. 
 
 2 Newley v. Reed, 1 W. Blackst. 416 ; See also, to the same effect, Casa Keg. 
 
 Rogers v. Davis, Beawes, Lex Merc. Disc. l,No. 91. 
 
 242, cited Marsh. Ins. 2d London and 4 Supra, No. 32. 
 
 _ Condy's Am, ed. 147, also Park, 423; 55 Serg. & R. Penn. 475. See infra, 
 
 and Davis v. Gildart, Beawes, Lex c. 14, s, 3. 
 
 Merc. 242; S. C. Marsh, ut supra; 6 Seamens v. Loring, 1 Mas. C. C. 
 
 Park,Tns. 424; Godin v. London Ass. 128; Kent v. The Manufacturers' Ins. 
 
 Co, 1 Burr. 489, Co. 18 Pick. Mass. 19.
 
 SECT. XV.] INTEREST IN DOUBLE INSURANCE. 189 
 
 subscriptions to a policy, of the same date, are considered to be 
 simultaneously made ; ^ but in American jurisprudence, binder the 
 clause relative to prior and subsequent policies, it may be proved 
 that either policy was, in fact, made on a day different from its 
 date, and that one of two policies was issued, or one of ttvo sub- 
 scriptions to a policy tvas made, at an earlier hour of the same 
 dayr 
 
 365. If two or more policies, containing the clause in question, 
 are made on the same day, and 7iot distinguishable as to priority, 
 the clause is not applicable, and if the amount of them all exceeds 
 that of the insurable interest at its highest estimation in either 
 of them, it is a double insurance of a part or the whole of the 
 interest, and the different sets of underwriters are accordingly 
 liable for pro rata contribution to any loss.^ 
 
 366. To constitute double iiisurance, the insurances must be on 
 the same subject. 
 
 It does not appear that, if a subject insured by one policy is 
 then insured again to an amount in the aggregate exceeding its 
 value, it is the less a double insurance, because divers other sub- 
 jects are insured in either or both of the policies, for the loss on 
 this should be contributed for pro rata by the two or more sets of 
 underwriters, as if all the policies were upon this subject only. 
 If the policies are so made that the premium on the common sub- 
 ject cannot be distinguished in some of the policies, so as to be 
 returnable under the provision relative to double insurance, it is 
 the fault of the assured, and he must bear the inconvenience; 
 for, having agreed to a stipulation in a policy against double in- 
 surance introduced for the benefit of both parties to that policy, 
 it would be a violation of all principle that he should be permitted 
 to defeat its operation in favor of the insurer, by the form of his 
 contract with a third party. 
 
 Accordingly, I cannot but doubt a decision in New York. It 
 was a case of insurance of one thousand dollars on fixtures and 
 three thousand on stock in one policy, and then five thousand dol- 
 
 1 Boulay Paty, Cours de Droit Com. 2 Lee v. Mass. Fire & Mar. Ins. Co. 
 tit. 10, s. 20, torn. 4, pp. 116, 117, eil. 6 Mass. 208. 
 
 1823, who cites Kuricke Diatr. No. 16; 3 Potter v. Marine Ins. Co. 2 Mas. 
 Casa Reg. Disc. 1, No. 65. C. C. 475; Wijrgin r. Suffolk Ins. Co. 
 
 18 Pick. Mass. 145.
 
 190 INSUBABLE INTEREST. [CHAP. III. 
 
 lars on fixtures and stock in another, without discrinainating any 
 proportion for each. It was adjudged that the assured was en- 
 titled to recover on the full amount insured in the former without 
 apportionment, though the amount insured in the two exceeded 
 the actual value, on the ground that the premium in the prior pol- 
 icy could not be apportioned between stock and fixtures.^ The 
 court does not mean that no estimate could be made of such an 
 apportionment, for plainly nothing is easier, but that they are pre- 
 cluded from making it; a notion derived from some of the early 
 English precedents.'-^ 
 
 367. W7ie)-e different risks are insured ag-ainst by the same 
 party on the same interest not over its full amount in each of two 
 or more policies, it is not an over-insurance, and the provision re- 
 specting prior and subsequent insurances is not applicable.^ 
 
 368. If the aggregate atnount insured by divers policies on a 
 subject, does not exceed the value in one of them, as estimated un- 
 der the common rule, or as agreed, it is not a double insurance in 
 respect to such one. 
 
 As where, one thousand dollars being insured by a prior policy 
 in which the subject is valued at that amount, the same sum is 
 insured in a subsequent policy in which the subject is valued at 
 two thousand dollars.* 
 
 369. Two insurances may be double, though the risks commence, 
 or terminate, at different times. 
 
 During the time while the two insurances concur and run paral- 
 lel, the risks, being specified by the same description in both, are 
 identical, and come within the phraseology, and the object, of the 
 provision relative to prior and subsequent policies. The objection, 
 if there be such, is the supposed impracticability, or the incon- 
 venience, of apportioning the premium on the policy for the longer 
 period. But notwithstanding the assertion of such impractica- 
 
 1 Howard Ins. Co. v. Scribner, 5 2 Wash. C. C. 18G. See also M'Kim 
 Hill, N. Y. 298. V. Phoenix Ins. Co. 2 id. 89 ; Bousfield 
 
 2 For a full discussion as to what v. Barnes, 4 Campb. 228; Higginson 
 makes a double insurance in such a v. Dall, 13 Mass. 96; Minturn v. Co- 
 case, and for later cases, see infra, No. lumbian Ins. Co. 10 Johns. N. Y. 75; 
 1263 a. Kane v. Commercial Ins. Co. 8 id. 
 
 3 Perkins v. N. E. Marine Ins. Co. 229 ; Pleasants i'. Maryland Ins. Co. 
 12 Mass. 214. 8 Cranch, 55. 
 
 4 Murray v. Insurance Co. of Penn.
 
 SECT. XV.] INTEREST IN DOUBLE INSURANCE. 191 
 
 bility in some cases, it does not appear that there is any insuper- 
 able difficulty in estimating its amount for a part of the period 
 in any case whatsoever, and in most cases it can easily be done. 
 
 Upon a demand of return of premium for over-insurance on a 
 subsequent policy made on a risk " at and from" Bayonne, the 
 prior one being " from " the same port, the court in New York 
 decided against the claim, on the ground that the underwriters 
 had run the risk of the whole sum insured " at" Bayonne, before 
 tlie risk on the prior policy attached.^ 
 
 Whatever may be held as to return of premium, surely two 
 policies, according to the specific terms of which, independently 
 of the provision relative to prior and subsequent insurance, and 
 the rule for apportioning a loss, the same party would be entitled 
 to double satisfaction for the loss of the same interest, in the 
 same subject, by the same perils, should belong to the class of 
 double insurance. 
 
 A Louisiana case presents two insurances on the same cargo 
 of cotton, to an amount in the aggregate exceeding its value, for 
 different periods; namely, the first one in London for a voyage 
 from New Orleans to Liverpool, the subsequent one in New Or- 
 leans on the same article, against fire, while it was stored there, 
 having been brought back from the ship, which had run aground 
 in going down the Mississippi. A total loss was paid by the 
 London underwriters, who thereupon brought a suit against 
 those of New Orleans, claiming the whole amount which they had 
 themselves paid, on the ground of its being a reinsurance, or a 
 proportional contribution, on the ground of its being a double in- 
 surance. It was held not to be a reinsurance, for the reason that 
 it was not expressed or intended to be such ; and not to be a 
 double insurance in respect to the New Orleans policy, because, 
 by the terms of that policy, it could not be so.^ The settle- 
 ment of the loss under the Louisiana policy was for the excess 
 of the value of the cotton over the amount insured in London, 
 thus negativing its being a double insurance in respect to that 
 policy. 
 
 370. JVJiere the aggregate amount of all of the insurances ex- 
 ceeds the valuation of the subject in the last policy, and there is 
 
 1 Columbian Ins. Co. v. Lynch, 11 ~ Alliance Ins. Co. v. La. State Ins. 
 Johns. N. Y. 233. Co. 8 La. 11.
 
 192 INSURABLE INTEREST. [CHAP. III. 
 
 not besides the aggregate proportions insured by the prior policies 
 an adequate proportion for it, it is, in respeet to such policy, a 
 case of over-insurance. That is, if the prior policies, being at a 
 higher valuation, cover three quarters of the subject, at such valu- 
 ation, the assured ought still to have the right to apply the last 
 policy to the remaining quarter, though the amount insured in the 
 prior policies may be equal to the valuation of the whole subject 
 in the last policy, unless this construction is expressly negatived by 
 some stipulatation in the last policy. The parties to that policy 
 should not be benefited or prejudiced by the valuations in other 
 policies, but their rights and liabilities should surely be regulated 
 by the valuation which they have agreed upon in their own con- 
 tract. 
 
 Accordingly, where <£6000 was insured on a vessel valued at 
 X8000, and in a subsequent policy .£600 was insured on the 
 same vessel valued at <£6000, the last policy was not, upon the 
 principle just stated, a case of double insurance, though the ruling 
 by Lord EUenborough to that effect, is not put upon that ground.-^ 
 If any of the prior insurances are by open policies, the invoice 
 value will betaken in those instead of a valuation, in determining 
 the question of over-insurance.^ 
 
 The rule just stated respecting over-insurance, will apply equally 
 to any other policy than the last, the priority clause being out of 
 the case. It is stated in respect of the last policy merely for the 
 purpose of rendering the subject more readily understood. 
 
 371. It follows, and is not a matter of question, that in case of 
 divers policies on the same subject at different values, the aggre- 
 gate may be an over-insurance in respect to some of them, and not 
 so in respect to others. 
 
 Where policies do not contain the clause relative to prior and 
 subsequent policies, and where that clause is rendered inoperative 
 by reason of the insurances being simultaneously made, the right 
 
 1 Bousfield V. Barnes, 4 Campb. 228. policies had been £6000, which would 
 
 The ruling, as reported, was against be entirely to disregard the agreement 
 
 its being a double insurance, on the as to the value by the parties them- 
 
 ground simply that the whole insur- selves. For this reason the ruling in 
 
 ance did not exceed the real value, that case has been objected to in the 
 
 which would have justified the same former editions of this treatise, 
 ruling against its being a double insur- 2 gee Kenny v. Clarkson, 1 Johns, 
 
 ance, though each of the valuations in N. Y. 38.5. 
 
 I
 
 SECT. XV.] INTEREST IN DOUBLE INSURANCE. 193 
 
 of contribution can be claimed only by policies in respect of both 
 or of all of which there is an over-insurance. 
 
 372. If the above propositions are correct, the result is, that 
 two insurances may be double in part in four different ways : — 1. 
 Where some of the assured, in either or both of them, are twice 
 insured on the same interest in the same subject. 2. Where a 
 party is doubly insured only on a part of his interest in a subject. 
 3. Where a party is doubly insured against some risks, and not 
 against others, on his whole subject. 4. Where the same party is 
 insured on the same interest, against the same risks, for a longer 
 period in one policy than in the other. 
 
 In other words, if we dismiss entirely all stipulations and rules 
 as to return of premium and apportionment of loss, and suppose 
 two contracts of insurance to be enforced according to their obvi- 
 ous construction, the assured will pay a duplicate premium, and 
 the insurers will pay a duplicate loss, in respect to some of the 
 parties, or a part of the interest, or a part of the risks, or a part 
 of the period, specified in one or both of the policies. 
 
 373. Insurance by different parties on distinct ifiterests in the 
 same subject, not exceeding- the values of the interests respectively, 
 is not double insurance, though the aggregate of the insurances 
 exceeds the value of the subject : ^ 
 
 As in case of mortgager and mortgagee insuring independent- 
 ly of each other. 
 
 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 balance due to him ; the amount due to each 
 being greater than the value of the goods. Insurances were made 
 in London in behalf of each of them to the full amount of the 
 shipment, the underwriters on Tamesz's interest having notice of 
 insurance 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 different par- 
 ties on different interests ; namely, on the respective interests of 
 Amyand and Tamesz, and not on that of Meybohm.^ 
 
 1 Warder v. Horton, 4 Binn. Penn. 2 Godin v. Eoyal Exch. Ass. Co. 1 
 529. Burr. 489; 1 W. Blackst. 103. 
 
 VOL I. 17
 
 194 INSURABLE INTEREST. [CHAP. III. 
 
 The court did not decide the question of the right to possession 
 of the goods between Amyand and Tamesz, nor that the same 
 goods can be sold or pledged to two different parties so as to give 
 to each a valid insurable interest to their full value. If either was 
 considered to stand in place of Meybohm as principal, and the 
 other as pledgee, the case is plainly within the rule as to mort- 
 gager and mortgagee, and each might insure to the full value. 
 This construction is excluded by the court ; and it does not appear 
 upon what other the position taken by the court can be support- 
 ed. It is doubted by Mr. Marshall.^ But there is no doubt of 
 the general doctrine asserted in the case, that where each of two 
 parties, having distinct interests in a subject, to its full value, in- 
 sures upon it to its full value, independently of the other, it is not 
 a case of double insurance. 
 
 SECTION XVI. INTEREST IN REINSURANCE. 
 
 374. Reinsurance is a contract whereby one party, called the 
 " reinsurer,''^ in consideration of a premium paid to him, agrees to 
 indemnify the other against the risk assumed hy the latter, by a 
 policy in favor of a third party. 
 
 375. Every insurer has an insurable interest for reinsurance. 
 
 376. The reinsurance may be against all or a part of the risks 
 that have been assumed by the reinsured in the original policy in 
 which he is the insurer. Underwriters on a time policy may re- 
 insure on a particular voyage, but the time and risks covered 
 must not exceed those covered by the original policy .^ Reinsur- 
 ance may cover a prior loss if so expressed in the policy.^ 
 
 377. Reinsurance is an illustration of the distinction between 
 an " insurable interesf'' and ownership. An underwriter, by sub- 
 scribing a policy, acquires no property in the subject insured, yet 
 he acquires an insurable interest, and, having rendered himself 
 directly liable to loss from certain perils, may stipulate to be in- 
 demnified against those perils. His interest, however, exists only 
 in relation to the perils against which he has insured in the orig- 
 inal policy.* 
 
 1 Insurance, 2d ed. 152. 3 Philadelphia Ins. Co. v. American 
 
 2 Philadelphia Ins. Co. v. Washington Ins. Co. 23 Penn. St. 65. 
 
 Ins. Co. 23 Penn. St. 250. "^ Commonwealth Ins. Co. v. Globe 
 
 Ins. Co. 35 Penn. St. 475.
 
 BECT. XVI.] INTEREST IN REINSURANCE. 195 
 
 The English law forbids reinsurance, " unless the insurer shall 
 be insolvent, become bankrupt, or die ; " ^ and this statute is 
 construed to extend to reinsurance of foreigners.^ It is allowed 
 in France, and is common in the United States.^ 
 
 378. A common carrier^ or other party answerable to another 
 for certain risks upon a subject, may be reinsured against those 
 risks, subject to the same rules and exceptions, such as illegality, 
 his own misconduct, &c., as in original insurance.^ 
 
 Thus, the owners of a vessel, answerable for any loss by the 
 fault of boatmen employed in bringing a cargo from the shore, 
 may insure the goods against that risk.^ 
 
 The owner, having sold his vessel subject to a stipulation that 
 he is to bear certain risks, may protect himself against those risks 
 by insurance, on the principle of reinsurance.^ 
 
 The reinsurers having procured the assignment of the subject 
 of the original insurance or the extinguishment of that insurance ; 
 the reinsurance was held by the Vice-Chancellor to be thereby 
 cancelled ; but a contrary decision on the same state of facts 
 was made in the Court of Exchequer Chamber, the court hold- 
 ing that in life assurance no interest was necessary at the time 
 of the death.'^ 
 
 1 19 Geo. II. c. 37. 6 Barr v. Gibson, 5 Mees. & W. 
 
 2 Andree v. Fletcher, 2 Term, 161. Exch. 390. 
 
 3 N. Y. Bowery Ins. Co. v. N. Y. For subject of amount of insurable 
 Fire Ins. Co. 17 Wend. N. Y. 359. interest, see vol. 2, ch. 20, § 1741 a. 
 
 4 Crowley v. Cohen, 3 Barnew. & 7 India & London L. Ass. Co. v. 
 Aid. 4 78. Dalby, 4 De Gex & S, Ch. 462, 7 Eng, 
 
 5 Walker v. Maitland, 5 Barnew. & L. & Eq. 250 ; Dalby v. India L. Ass. 
 Aid. 171. Co. 15 C. B. 365, 28 Eng.L. & Eq. 312.
 
 CHAPTER IV. 
 
 THE PARTIES TO AN INSURANCE. - DESCRIPTION OF THE 
 
 ASSURED. 
 
 379. Only those interested in the subject at the commencement 
 of the risk under the policy, can be original parties to the policy,^ 
 and they continue to be parties only while they have an interest. 
 Others may become parties by stipulation or transfer, either with 
 them or in their stead. 
 
 380. Insurance made by a person in his own name only, with- 
 out any indication, in the policy, that any other is interested, can 
 he applied only to his own proper interest in the subject, or his 
 interest as trustee, &c. In other words, a contract with A cannot 
 be construed to be a contract with B.^ 
 
 Thus, insurance by one part-owner of a ship in his own name 
 merely, is not applicable to the interest of the others ;^ 
 
 So, if A is insured, " by his agent B," the policy covers only 
 the interest of A,* and not that of A and his partner : 
 
 So, if one of the two shippers, to whom the same shipment 
 belongs in common, effects a policy in his own name, where only 
 his share of the shipment is at his risk.^ 
 
 So a policy effected by the mortgagee in his own name does 
 not issue to the benefit of the mortgager.^ 
 
 381. So, conversely, an insurance of A and B jointly, as copart- 
 ners or otherwise, has been held, in England, not to be applicable 
 to the sole interest of one, where the other has no interest in the 
 subject.7 
 
 1 Perchard v. Whitmore, 2 Bos. & 6 White v. Brown, 2 Cush. Mass. 
 p. 155, n. 412; Kemble v. Rhinelander, 3 Johns. 
 
 2 Watson V. Swann, 11 C. B. N. s. Cas. N. Y. 130. See also Pearson v. 
 756. Lord, 6 Mass. 81, and Russell v. N. E. 
 
 3 Finney v, Bedford Ins. Co. 8 Mete. Marine Ins. Co. 4 Mass. 82. 
 
 Mass. 348. 7 Bell v. Ansley, 16 East, 141 ; Cohen 
 
 4 Dumas V. Jones, 4 Mass. 647. v. Hannam, 5 Taunt. 101. 
 
 5 Graves v. Boston Mar. Ins. Co. 2 
 Cranch, 419.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 197 
 
 382. In many policies the assured is 50 described that any 
 person may be comprehended, and avail himself of the contract, 
 by proving his interest, and showing that the policy ivas intended 
 for him. 
 
 Different forms of expression are adopted for this purpose. In 
 England, insurance appears to be made most frequently in the 
 name of the broker, who causes himself to be insured on an 
 interest, " as well in his own name as in the name and names 
 of all persons whatsoever to whom the same may in any way 
 appertain." 
 
 The same form is often used in the United States, and also a 
 shorter one of like import, in which the party effecting the policy 
 is insured for " himself and whom it may concern." 
 
 At Marseilles, the policy was formerly expressed to be made 
 for " such person as should be thereafter named." 
 
 At Hamburg, the losses under a policy were made payable to 
 « the bearer." 1 
 
 Other general forms of expression of similar import have been 
 used at different places for the same purpose, from early times.^ 
 
 By these forms the assured might be concealed from the knowl- 
 edge of the underwriter, and they were equivalent to the practice 
 of subscribing policies in blank, as was formerly done at Mar- 
 seilles,^ and also in England.* The practice of insuring for whom 
 it might concern, was adopted, says Emerigon,^ for the purpose 
 of concealing the name of the party interested, and keeping his 
 commercial enterprises secret. On this account the insurers in 
 England complained, that " policies were so loose that an under- 
 writer had no opportunity of knowing the nature of the thing 
 insured, or who the persons were for whom he insured." ^ Accord- 
 ingly, a statute was made in 1785, prescribing the manner in 
 which the assured should be described in the policy.^ This 
 statute was intended to secure to the underwriter a knowledge of 
 the person with whom he was contracting. But soon after it went 
 into operation, an underwriter took advantage of it to evade his 
 
 1 Ord. of Hamb. tit. 1, s. 4, 2 Mag. ^ Chap. 11, s. 4. 
 
 211. 6 Pray v. Edie, 1 Term, 313. 
 
 2 Le Guidon, c. 2, a. 6 ; 2 Saund. 6, ' 25 Geo. III. c. 44 ; 1 Bos. & P. 
 n- 1- 352, n. ; Stat. 14 Geo. III. c 48, § 2; 
 
 3 Emerigon, torn. 1, p. 47, c. 2, s. 4. Hodson v. Observer L. Ass. Soc. 8 Kll. 
 
 4 Pray v. Edie, 1 Term, 313. & B. 40. 
 
 17*
 
 198 THE PARTIES. [CHAP. IV. 
 
 contract, on the ground that the agent, in whose name the insur- 
 ance had been effected, was not described as such in the policy. 
 In that case, Lord Mansfield intimated a doubt of the expediency 
 of the law.^ Another policy was evaded under the same law, 
 because it was made for W. Wilton, and " the other owners," 
 they not being named.^ Another statute was then made which 
 required only the name of the person interested, or that of his 
 agent, to be inserted.^ As the agent needs not to be described as 
 such under this statute, it does not secure to the underwriter a 
 knowledge of the party actually interested.* This was in effect 
 repealing the first statute, and no reason appears why it should 
 not be repealed ; since the inconvenience, if any existed, seemed 
 to be very much within the power of the underwriters to remedy. 
 
 Where an agent holds goods, of which he does not know the 
 actual owner, as in case of the commissioners of the Dutch prizes,^ 
 and where one agent consigns goods to another, without advising 
 the consignee that he holds them as agent,^ the consignee may be 
 able to give the underwriters information of all the facts material 
 to the risk ; yet, if such a law were in force as that first above 
 referred to, he could not insure. 
 
 383. A policy made w the name of a particular person '■'■ for 
 whom it may concern^'' or with any other equivalent clause, will 
 he applied to the interest of the party or parties^ and only the party 
 or parties^ for whom it is intended by the person who effects or 
 orders it, if such party has authorized its being made beforehand, 
 or subsequently adopts it.'^ 
 
 It has been held in Louisiana, that a policy effected by an agent 
 without an order or adoption before notice of loss by his princi- 
 pal, who is fully insured on the same subject in a foreign country, 
 cannot after notice of loss be adopted and availed of as an over 
 
 1 Pray v. Edie, 1 Term, 313. 7 Lambeth v. Western Fire & Mar. 
 
 2 Wilton r. Reaston, Park, 20. Ins. Co. 4 Rob. La. 235; 11 id. 86; 
 
 3 28 Geo. IIL c. 56. Cobb v. New England Ins. Co. 6 Gray, 
 
 4 De Vignier i'. Swanson, 1 Bos. & Mass. 192. A policy to " K. and oth- 
 r. 346, n. ; Wolff r. Horncastle, 1 Bos. ers" may be shown by parol evidence 
 & P. 316. to be for a company to whom K. has 
 
 5 Lucena v. Craufurd, 3 Bos. & P. sold his interest. Shawmut Co. y. Hamp- 
 75. den Ins. Co. 12 Gray, Mass. 540. See 
 
 6 Russell V. N. E. Marine Ins. Co. 4 also Sanders v. Hillsborough Ins. Co. 
 Mass: 82. 44 N. H. 238.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 199 
 
 or double insurance, in favor of a claim by the foreign insurers 
 for a proportional reimbursement to them of the loss,^ the insur- 
 ance not having been intended as an over or double insurance to 
 be so applied. 
 
 It has been remarked in favor of policies for whom it may 
 concern, that " What is an insurable interest is a question of 
 some difficulty. Hence the advantage of a general form in 
 naming the assured, and extending the effects of the insurance as 
 far as the contract may be found to have been authorized by 
 mercantile usages ; thus comprising the cases of consignees, 
 factors, trustees, and agents, and persons having a qualified 
 interest in the property." ^ 
 
 In a New York case, Jones, C. J., speaks of this form of policy 
 as not being in use in insurance against fire,^ but it is a frequent 
 practice in Boston to make fire policies in this form ; and such 
 are, it seems, made at New Orleans.* 
 
 The phrase " whom it may concern," is a technical one, and 
 is understood to mean, not anybody who may have an interest 
 in the thing insured, but only such as are in contemplation of the 
 parties making the contract. Such a policy supposes an agency, 
 and, proceeding on that ground, looks only to the principal in 
 whose behalf, or on whose account, the agent moves in the trans- 
 action, and he for whose benefit the insurance is procured is the 
 person in the contemplation of the parties, — is he whom alone 
 it " concerns." ^ 
 
 A foreigner may be a party under such general description.^ 
 
 A part-owner of a cargo worth ten thousand dollars, his in- 
 terest being one half, effected insurance in his own name, and 
 for " every person whom," &c., and on capture and condemna- 
 tion of his half, and the acquittal of the other part-owner's, the 
 question arose in the Supreme Court of New York, whether 
 he was the sole assured, or he and the other part-owner were 
 
 1 Alliance Mar. Ins. Co. v. La. State ^ Newson v. Douglas, 7 Ilarr. & J. 
 Ins. Co. 8 La. 11. Md. 417. See also Cox v. Parry, 1 
 
 2 Lee V. Massachusetts Fire & Mar. Term, 464 ; Haynes v. Rowe, 40 Me. 
 Ins. Co. 6 Mass. 208, per Sewall, J. 181 ; Crosby v. New York Ins. Co. 5 
 
 a De Forest i-. Fulton Fire Ins. Co. Bosw. N. Y. 369. 
 
 1 Hall, N. Y. 112. 6 Per Story, J., in Seamans v. Lor- 
 
 4 Alliance Mar. Ins. Co. v. La. State ing, 1 Mas. C. C. 128. 
 Ins. Co. 8 La. 11.
 
 200 THE PARTIES. [CHAP. IV. 
 
 jointly insured. If he only was insured, the total loss was 
 five thousand dollars ; if both were parties to the policy, it was 
 twenty'five hundred dollars. This question was determined by 
 the evidence of his intention, both from the terms of the policy 
 itself, and aliunde.^ 
 
 However general may be the description of the parties, no 
 part of the amount insured can be applied in behalf of any 
 other party than those intended, though the nominal assured 
 consents so to apply it.^ An obvious, conclusive objection to 
 such application is, that an assured might so have the election 
 to apply his policy to the interests of any uninsured parties who 
 had met with losses within the risk specified, upon such terms 
 as he could make ; and if he found no such, he might demand a 
 return of premium. 
 
 384. The intention of the party who orders the policy determines 
 who are the " concerned " under a general description ; though 
 those intended are not known by the broker who effects the policy, 
 or by the insurers, to be so? 
 
 385. The rule, that an insurance '■'•for whom it may concern^'' 
 will avail in behalf of the party for whom it is intended, does not 
 mean that any specific individual must be intended. It is enough 
 that the agent, and the insurers, intend it for any party or parties 
 who have an insurable interest. If the insurance is ordered, 
 then its application is governed by the intention of the party 
 who originally gives the order ; if it is not ordered, its applica- 
 tion will be to the interest of the party intended by the one 
 effecting it, whether himself or another. But he may intend it 
 for whatever party shall prove to have an insurable interest in 
 the specified subject, in which case it will be applicable to the 
 
 1 Lawrence V. Sebor, 2 Caines,N.Y. N. Y. 276, where the same question 
 
 203. The court were divided on the occurred on a similar poHcy. 
 
 mixed matter of law and fact, three of 2 Bauduy v. United Ins. Co. 2 Wasb. 
 
 the judges being of opinion that a joint C. C. 391. See also Fierson v. Bren- 
 
 insurance was intended, and two, viz., ham, 5 La. Ann. 540 ; Augusta Ins. 
 
 Kent, C. J., and Thompson, J., that it Co. v. Abbott, 12 Md. 348. 
 
 was intended to be on the separate 3 Buck v. Chesapeake Ins. Co. 1 
 
 interest of the nominal assured, such Pet. 151 ; Newson's Adm'r i;. Douglas, 
 
 being, in their opinion, the more obvi- 7 Harr. & J. Md. 417. See also Sea- 
 
 ous construction of the policy. See mans v. Loring, 1 Mas. C. C. 128. 
 also Lawrence v. Van Horn, 1 Caines,
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 201 
 
 interest of any person subsequently ascertained to have such an 
 insurable interest, w^ho adopts the insurance.^ 
 
 A valid insurance may, therefore, be made between parties, 
 both of whom are at the time ignorant of the specific persons to 
 whose interest it is applicable.^ 
 
 386. An insurance on a subject expressed to be " on account 
 of the oivners,''^ will cover the interest of all, or a part, of the 
 owners, as it may have been intended; but of no other than, 
 owners. 
 
 The application of the term " owners " in such case is open 
 to explanation by extrinsic evidence. And where one of the 
 " owners," for whom the policy, on a ship and cargo, was in- 
 tended, transferred a part of his interest, namely, a sixth of the 
 whole, after the policy was effected but before the cargo was 
 put at risk, the insurance was held to be applicable to the five 
 sixths belonging to the parties for whose account the insurance 
 was intended.^ 
 
 In another case the master instructed F., as agent, to insure 
 $1000 on cargo " on account of owners ; " he effected a policy 
 on cargo to that amount, for the owners of the brig S. There 
 were three owners of the brig. Of the cargo $456 belonged to 
 the three in common, and $317 to one, and $142 to another, 
 separately. The question was, whether the policy was applica- 
 ble to the master's interest only, or to that of all three, both joint 
 and separate. Extrinsic evidence was admitted to determine 
 the application of the policy ; which was applied to the master's 
 interest only, on the ground that he had no authority as part- 
 owner or otherwise to order insurance for the other part-owners, 
 and that the insur^ice had not been adopted by them.* 
 
 In this case it appears from the amount insured to have been 
 the intention to insure on account of all the owners. And the 
 demand made in the suit for this application of the policy shows 
 that it had been adopted by the other two owners. The case, 
 
 1 Duncan v. Sun, &c. Ins. Co. 12 La. Hurlbut v. Pacific Ins. Co. 2 Sumn. C. 
 Ann. 486. C. 471. 
 
 2 This appears from Lucena v. Crau- 3 Catlett v. Pacific Ins. Co. 1 Paine, 
 furd, and the other Insurances effected C. C. 594 ; S. C. 1 Wend. N. Y. 561 ; 
 by commissioners on the Dutch vessels S. C. 4 Wend. N, Y. 75. 
 
 seized provisionally by order of the 4 Foster ij. United States Ins. Co. 11 
 British government ; and also from Pick. Mass. 85.
 
 202 THE PARTIES. [CHAP. IV. 
 
 therefore, seems to be inconsistent with the doctrine established 
 by the authorities ; and the decision does not accord to the terms 
 of the policy. 
 
 387. The term " owner s^^^ and phrase " whom it may concern," 
 as we have seen, are usually understood to have reference to those 
 who are concerned at the date of the policy, or at the commence- 
 ment of the risk ; but a policy expressed to be on account of the 
 owners, or whom it may concern, " at the time of the loss,'^ will 
 be available to such, on proof of interest, though the subject, and 
 with it the policy, may have passed through divers assign ments.^ 
 By this provision, accordingly, the policy was considered to be 
 made assignable with the subject without the consent of the 
 underwriters. 
 
 388. One may become a party to an insurance effected in his 
 behalf, in terms applicable to his interest, without any previous 
 authority from him, by adopting- it, either before or after a loss 
 has taken jjlace and is Jcnoivn to him^ though the loss may have 
 happened before the insurance was made.^ 
 
 389. The adoption of a policy by the party in whose behalf it 
 was effected, ?ieeds not to be in any particular form. The bring- 
 ing of a suit, or being a party to one, upon a policy, has been 
 held in Massachusetts to be a sufficient adoption of it.* 
 
 A contrary decision was made in Pennsylvania. In a suit by 
 A on a marine policy, expressed to be made by B " for A, as 
 well in his own name as for and in the name of all and every 
 person or persons, to whom the property insured does, may, or 
 shall appertain," it was held that he could not recover, because 
 it did not appear that he had authorized or adopted it.^ But the 
 better doctrine appears to be as above. 
 
 ^ Rogers r. Traders' Ins. Co. 6 Paige, v. Smith, 6 Esp. 11 ; Mickles v. Roches- 
 
 Ch. N. Y. 583. ter City Bank, 11 Paige, Ch. N. Y. 
 
 2 Lucena v. Craufurd, 1 Taunt. 325, 118. 
 
 5 Bos. & P. 269 ; Routh v. Thompson, 3 Bridge v. Nia<;ara Ins. Co. 1 Hall, 
 
 13 East, 274; Steinback v. Rhinelan- N. Y. 247. In French jurisprudence 
 
 der, 3 Johns. Cas. N. Y. 281, per Kent, the adoption must, it seems, be before 
 
 C. J. ; Watkins ?\ Durand, 10 Ala. notice of loss. Alauzet, A. D. 1843, 
 
 251 ; Barlow v. Leekie, 4 J. B. Moore, torn. 2, pp. 223, 224, 
 
 8 ; Finney v. Fairhaven Ins. Co. 5 4 Finney i'. New Bedford Ins. Co. 8 
 
 Mete. Mass. 192; Pouverin v La. State Mete. Mass. 348. 
 
 Ins. Co. 4 Rob. La. 235 ; Hagedorn v. 5 De BoUe v. Pennsylvania Ins. Co. 
 
 Oliverson, 2 Maule & S. 485 ; Holland 4 Whart. Penn. 68.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 203 
 
 A policy was effected in London by H., in August, 1810, for 
 S., a Danish subject, on a voyage from Gluckstadt to Great 
 Britain, wilhout any previous authority for that purpose, and 
 the cargo insured was lost by capture about the time when the 
 policy was made, and it did not appear that S. adopted the 
 policy until July, 1812. Such adoption was held to be equiva- 
 lent to a previous authority.^ 
 
 390. Where one without order or authority effects insurance 
 intended partly or wholly for another in a form available to him 
 and applicable to his interest^ such other has an election to be a 
 party to the policy or decline it. But he ivill become a party after 
 notice, and, as such, liable for the premium, unless he declines 
 to be so without unnecessary delay? 
 
 391. In order to render an insurance effected by one partner or 
 part-owner, applicable to the interest of the copartners or other 
 part-owners, it is not enough that the partnership, by its terms 
 and extent, authorizes the insurance on joint account, or that it 
 is speciiically authorized beforehand, or subsequently ratified. It 
 is also necessary in this, as in other cases, that the terms of the 
 policy should be such as to be applicable to the joint or common 
 interest. 
 
 Mr. Chief Justice Kent says : " There can be no doubt that a 
 partner has such interest in the entirety of the cargo as to enable 
 him separately to insure it, and that an averment that he had an 
 interest in the property to the amount of the insurance, is sup- 
 ported by proof of a partnership interest to that amount." ^ But 
 he thought, if the partnership was confined to a particular ad- 
 venture, one partner could not insure the whole property in his 
 own name. This distinction is difficult of application, since 
 every partnership is more or less limited, and it would not be 
 easy to say how general it must be, to give each partner an 
 insurable interest in the partnership property to its full value. 
 
 Chief Justice Marshall makes no such distinction. He says : 
 " Under no rule of proceeding on a special contract could the 
 interest of a copartnership be given in evidence on an averment 
 
 1 Ilagedorn v. Oliverson, 2 Maule & 3 Lawrence v. Sebor, 2 Caines, N. Y. 
 ^- 485. 203. See also Holmes v. United Ins. 
 
 2 Such is the law in France, Emer. Co. 2 Johns. Cas. N. Y. 329. 
 torn. 1, p. 144, c. 5, s. 6, and ours is no 
 
 doubt the same.
 
 204 THE PARTIES. [CHAP. IV. 
 
 of individual interest, or the averment of the interest of a com- 
 pany be supported by a special contract relating in its terms to 
 one individual." ^ 
 
 This I understand to be the established doctrine,^ And it is 
 merely the application to this contract, of a rule common to this 
 and others. 
 
 392. If a party has an interest in a subject in different capaci- 
 ties, as where he is owner of a certain proportion, and trustee of 
 the remainder, he may insure both interests in his oivn name, under 
 a merely general description of the subject, provided his interest, 
 other than as absolide owner, is such, that he might insure it in his 
 own name without a particular specification of it : ^ 
 
 As in a case before Gibbs, C. J., and his associates in the 
 English Common Pleas, on a policy on cargo "by order and on 
 account of D.," who owned seven sixteenths, and had a lien for 
 advances on the remainder.* 
 
 So a fire policy on a building described by the assured to be 
 " his mill," was held to be applicable to his interest both as 
 owner and mortgagee.^ 
 
 It is otherwise held in a New York case by Lewis, C. J., and 
 his associates,^ but the better doctrine both on principle and 
 authority is as above. 
 
 393. If a party insured in his own name has or expects an inter- 
 est in different capacities, or expects an interest in one capacity 
 as that of owner, and proves to have one in a different capacity, 
 as that of trustee, consignee, &c., is he conclusively entitled and 
 liable to be considered as an assured, in respect to any one or more 
 interests to which the policy is, by its terms, applicable ? or may he 
 or others determine the application of the policy by proving his 
 intention ? 
 
 In other words, whether the application of the policy to one or 
 another interest, or to divers interests, in such case depends upon 
 
 1 Graves v. Boston Mar. Ins. Co. 2 4 Carruthers v. Sheddon, 6 Taunt. 
 Cranch, 440. 14; S. C. 1 Marsh. 416. 
 
 2 See Pearson v. Lord, G Mass. 81 ; 5 Lawrence v. Columbian Ins. Co. 2 
 Kemble v. Rhinelander, 3 Johns. Cas. Pet. 25 ; and Irving v. Richardson, 2 
 N. Y. 130. Barnew. & Ad. 192. 
 
 3 See Hiscox v. Barrett, cited 16 <5 Murray v. Columbian Ins. Co. 11 
 East, 145. Murray v. Columbian Ins. Johns. N. Y. 302. 
 
 Co. 11 Johns. N. Y. 302, is contra.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 205 
 
 the intention, just as the application of a policy for whom it may 
 concern, in favor of one or another party, depends upon the inten- 
 tion ? 
 
 The rule on this subject must be uniform, whether it operates 
 in particular cases in favor of one or another party ; for it may 
 operate against the assured in a question respecting a return of 
 premium where there has been no loss, if he is conclusiively pre- 
 sumed to have insured whatever interest he might have ; and the 
 same conclusive presumption operates against the underwriter in 
 case of loss. If the assured may prove that the policy was 
 intended for an interest which he never realized, for the purpose 
 of recovering back his premium, the underwriter must, in like 
 manner, have the liberty, in order to avoid liability for a loss, of 
 proving that the policy was not intended for the interest on 
 which the assured makes his claim. 
 
 The jurisprudence on this subject is contradictory. In respect 
 of a claim for return of premium, it was held by a majority of 
 the court in New York, that the assured might entitle himself to 
 a return by showing that the policy was made through mistake, 
 the party who effected it having no interest himself and no 
 authority to insure for others, who were named in the policy as 
 assured. Mr. Justice Kent dissented.^ 
 
 In a case in an English court, a cargo was consigned to C. as 
 purchaser, with orders to pay the price to W., the general agent 
 of the consignor, the balance in whose favor exceeded the amount 
 of the shipment. The bill of lading and invoice were transmitted 
 to W., with orders to deliver them to C, that he might get insur- 
 ance, on his accepting a bill for the price. C. refused the con- 
 signment. Thereupon W. effected a policy, as well in his own 
 name as for and in the name of every other person to whom the 
 same might appertain. It was held by BuUer, Heath, and Rooke, 
 Justices, that the policy could be applied either to the interest of 
 W. or to that of the consignor.- 
 
 In a case before Savage, C. J., and his associate justices of the 
 Supreme Court of New York, the owner of five sixths of a ship 
 effected insurance upon it in his own name, the space in the 
 
 1 Steinback v. Rbinelander, and same 2 "\\^olff r. Horncastle, 1 Bos. & P. 
 plaintiff r. Church, 3 Johns. Cas. N. Y. 316. 
 269. 
 
 VOL. I. 18
 
 206 THE PARTIES. [CHAP. IV. 
 
 policy for inserting " for whom it may concern," or the names of 
 other parties, being left blank, intending that the owner of the 
 other sixth should be interested in like proportion in the policy, 
 in case he should take the same proportion of the cargo, which 
 he declined to do. On a loss having been paid to the assured of 
 the whole amount insured on the ship, not exceeding the value 
 of the assured's five sixths, the other part-owner claimed one 
 sixth of the amount paid. The court rejected his claim.^ 
 
 The intention of insuring for the benefit of the owner of the 
 one sixth was, at the most, merely conditional. The court, how- 
 ever, in deciding the case, put it upon the general ground, that 
 no addition to, or interpolation in, the policy can be made, on 
 parol testimony; in other words, that in such case the amount 
 of the assured's interest to which the policy is applicable cannot 
 be determined, by proof of intention, to be different from what 
 the policy itself imports. 
 
 In other cases a contrary doctrine is maintained, namely, that 
 the application of an insurance expressed in the policy to be by 
 or for a particular party, is to be applied to one, or another, or 
 all of the different interests he may have in the subject, to which 
 the policy, by its terms, may be applicable, according to the 
 intention in effecting it; which intention may be proved aliunde. 
 
 An assured effected a policy on a cargo from Virginia in his 
 own name merely, expecting one to be shipped by his agents 
 there. They shipped and consigned to him a cargo on their own 
 account and risk, for the voyage described, on the proceeds of 
 which, after the same had come into his hands, he would have 
 had a lien for his balance of account. He received notice of the 
 shipment, and of the loss of the cargo, and orders to insure it, at 
 the same time. It was decided in Massachusetts, that he could 
 not avail himself of his policy on his interest as consignee enti- 
 tled to a lien, on the ground that he had intended its application 
 to his expected interest as owner.^ 
 
 So in a case in the K. B. in England, advances being made by 
 consignees in Liverpool on a cargo of wheat and pease from 
 New York, they made insurance upon it in their own names " as 
 interest might appear." The cargo was detained by the Ameri- 
 
 1 Turner v. Burrows, 5 Wend. N. Y. 2 Toppan v. Atkinson, 2 Mass. 365. 
 541.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 207 
 
 can embargo of December, 1807. The assured charged the pre- 
 mium to the consignors. Lord Ellenborough and his associates 
 decided against the claim of the assured for a loss, on the ground 
 that they could not recover on the interest of the consignor, since 
 the act of his government in imposing the embargo was imputed 
 to him, and he could not be indemnified against his own acts; 
 and that they could not recover on account of their own interest, 
 on the ground, " that, where a policy is effected in behalf of a 
 consignor, the consignee is not at liberty to apply it to his own 
 interest." ^ In other words, it might be shown by evidence ali- 
 unde, namely, the charging of the premium, that the insurance 
 was intended on account of the consignor, and being so intended 
 the assured could not apply it to their own interest. 
 
 So in another case, it was held by Lord Tenderden and his 
 associates, that the application of a policy, made in the name of 
 a mortgagee, to his interest only, or to his and also that of the 
 mortgager, that is to say, to the whole value of the subject, 
 depends upon his intention.^ The court considered that he was 
 authorized to insure the full value. 
 
 The question we are examining has been elaborately discussed 
 by Judge Duer,^ who concludes, "that except in cases of fraud or 
 misrepresentation, an inquiry into the specific interest that a party 
 effecting a -policy in his oivn name meant to insure.^ is never to be 
 permitted." That is to say, if the assured has an interest, of 
 whatever species, answering to the description of the subject in 
 the policy, and at risk within the description of the risks, he is 
 liable for the premium, and the underwriters are liable for the 
 loss, whatever may have been his intention as to the species of 
 interest to which the policy was to be applied. 
 
 It is not easy to say on which side of this question is the 
 greater weight of judicial authority. The application of the 
 policy to one or another interest of the same party is subject to 
 greater objections than its application to a third party under the 
 clause " for whom it may concern ; " since the underwriter has 
 notice by the terms of the policy of the interest of a third party, 
 
 1 Conway v. Gray, 10 East, 536, and 2 Irving v. Richardson, 2 Barnew. & 
 
 Conway v. Forbes, 10 East, 539. See Ad. 193. 
 
 also Donath v. Ins. Co. of North Amer- ^ Marine Insurance, Vol. II. p. 39, 
 
 ica, 4 Dall. 463. &c. Lect. 9, s. 26-29.
 
 208 THE PARTIES. [CHAP. IV. 
 
 whereas in a policy in favor of a party named, without more, he 
 has no such intimation. This renders it a case more proper for 
 a rigid construction according to the terms of the policy, which 
 would exclude all evidence of intention, whether offered on the 
 part of the assured or the underwriters, to divert the policy from 
 an application to whatever subject or interest it is applicable to 
 by its terms. I, accordingly, concur with Judge Duer in the 
 above doctrine. 
 
 394. Where the policy is on a subject generally, without spe- 
 cifying the interest particularly, it ivill still be available to the 
 assured, though he changes his interest to one, m the same subject, 
 that would be covered under a like general designation, as where 
 his interest as owner is changed to that of mortgagee.^ 
 
 395. In a policy for an owner and party having a lien, the 
 policy is applied to the interest of each commensurately with its 
 amounU^ 
 
 396. In case of a policy by which divers parties are insured 
 on distinct interests, the question arises as to their remedies 
 being distinct, to the same effect as if the insurance had been by 
 separate policies. There evidently are difficulties in the way of 
 divers actions at law by divers parties insured in one policy under 
 the description '■^ for ivhom it may concern." But if the same policy 
 insures different individuals certain amounts, each on the same or 
 on different subjects, the policy itself purports to contain divers 
 distinct contracts, which are the subjects of distinct independent 
 remedies at law. 
 
 Where two persons were insured on a life in the same policy, 
 it was held that they might have separate remedies.^ 
 
 397. A debtor who pays a premium on a policy on' his life 
 made in the name and in favor of his creditor, as collateral secu- 
 rity, and the owner of any subject pledged and so insured, has an 
 interest in the policy, though he is not directly, in express terms, 
 or by description in the policy, a party to it. 
 
 A debt having been paid by the debtor's executor, Lord Ellen- 
 borough ruled that the executor of the creditor should pay over 
 
 1 Stetson V. Mass. Fire & Mar. Ins. 2 Paradise v. Sun Ins. Co. 6 La. Ann. 
 Co. 4 Mass. 330 ; Bell v. Western Mar. 596. 
 
 & Fire Ins. Co. 5 Rob. La. 424. 3 M'Cormick i'. Ferrier, Hayes & J. 
 
 Exch. Ir. 12.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 209 
 
 the amoant received on account of a loss on a policy made by 
 his testator, on the debtor's life, the premium for which he had 
 charged to the debtor.^ 
 
 In a case of a life insurance by a creditor, Sir Thomas Plumer 
 decreed that the representatives of the debtor were indirectly 
 interested in the policy, though he did not pay the premium, and 
 was not privy to the policy. The debtor and his wife had as- 
 signed to two of his creditors her right to four hundred dollars 
 in case of her surviving her mother, as collateral security, surplus, 
 if any, payable to the debtor. She died first, and a loss was 
 paid to the two creditors. On the insolvency of the debtor, they 
 claimed to prove their whole demands against his effects in the 
 hands of the assignees. The Vice-Chancellor decreed that they 
 should deduct the net amount received from the insurers.^ That 
 is, the creditors being trustees of the contingent right so assigned 
 to them, he considered them as having effected the insurance in 
 that capacity. The decision is questionable, however, as it does 
 not appear that they could have charged the premium to the 
 debtor, which they could have done if the insurance had been 
 authorized in their capacity of trustees. The construction al- 
 ternative to that put by the Vice-Chancellor is, that, in case of 
 surplus over their demands by the dividends and amount re- 
 ceived on the policies, they would have been accountable to the 
 insurers for it in the nature of salvage. 
 
 398. Under a policy in the name of the mortgagee '■'■ for whom 
 it may concern^'' the same being, in fact, /or the benefit of the 
 mortgagee to the amount of his interest, surplus, if any, on account 
 of the mortgager, both the mortgagee and mortgager are parties 
 to the policy and " assuredsJ' 
 
 In a policy on freight effected in the name of the assignees of 
 " the freight list," expressed to be " for whom it might concern," 
 on their own account, and on that of the assignor, who was 
 owner of the vessel, barratry of the master was insured against, 
 " unless the assured was owner of the vessel." The question 
 arose, whether this exception was applicable to the assignees of 
 the freight list, to whom it had been assigned as security for 
 advances, it being agreed by the parties at the same time, that 
 
 1 Hollands. Smith, 6 Esp. 11. 410; S. C. 1 Madd. Ch. 572; S. C. 
 
 2 Ex parte Andrews, 2 Rose, Bank. Ellis, Ins. 157. 
 
 18*
 
 210 THE PARTIES. [CHAP. IV. 
 
 the assignees should insure for their own account to the amount 
 of their advances, surplus, if any, for account of the assignor. 
 The premium was charged to the assignor, and any payment of 
 loss on the policy, and other policies assigned to the same assign- 
 ees, was to go in discharge of the balance due from him. It 
 was held in Louisiana that the assignees of the freight were to 
 be considered the " owners of the vessel " in reference to this 
 exception, and that under the policy was to have the same con- 
 struction in this respect as if it had been in the owner's name ; 
 on the grounds, first, that the policy on cargo, which the owner 
 had assigned to the same assignees in the same instrument, had 
 been ordered by him to be insured on his own account ; second, 
 that, under the circumstances, the intention was to insure ex- 
 clusively on account of the shipowner ; third, that the assignees 
 stood in place of the assignor who was shipowner ; fourth, be- 
 cause the whole proceeds of the policy were to go for the benefit 
 of the shipowner, in discharge of his liability for advances, and 
 by payment over of the surplus, if any, to him ; fifth, that they 
 must take his right to freight subject to his liability ; sixth, that, 
 though the insurance should be construed to be on account of 
 the assignee as well as the assignor of the freight-list, the policy 
 was indivisible, and, accordingly, if the exception of barratry 
 was valid against the assignor, it was so against the assignees ; 
 seventh, that as no disclosure was made to the underwriters, of 
 the particular agreement between the shipowner and the nom- 
 inal assured, " they had just reason to suppose that they were 
 dealing with the owners of the vessel, or with parties closely 
 associated in interest with him," which was assumed to be in 
 favor of putting the same construction upon the policy as if it 
 had been expressed to be effected for the sole benefit of the 
 shipowner; eighth, that from various correspondence and trans- 
 actions between the shipowner and his agents, it appeared that 
 the policy was intended by them to be applied to the interest of 
 the former.^ 
 
 Most of these positions of the court involve questions of fact.^ 
 
 1 Paradise v. Sun Mutual Ins. Co. 6 when a case is in the stage in which the 
 La. Ann. 696. above opinion was given, the court may 
 
 2 According to the judicial system talie cognizance of the facts and make 
 and practice in Louisiana, it seems that inferences from those proved, in a man-
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 211 
 
 In respect to the assignee being in place of the assignor and 
 subject to his liability, the doctrine is applicable as between the 
 shippers and the assignees of the freight-list, but not necessarily 
 so between such assignee and his underwriters. Whether the 
 liability of ownership of the vessel in respect of third persons is 
 imputable to a party having an interest in the proceeds of the 
 freight-list, will, it seems, to many purposes at least, depend 
 upon his supplying the provisions, appointing the master, em- 
 ploying and paying the men, and having control of the vessel.^ 
 And it does not appear that the same question is otherwise 
 determined in respect to underwriters. If the same doctrine 
 affects them, as it seems to do, and there is nothing in writing 
 to determine who are owners in respect to them, the question 
 turning wholly upon the construction of the word "owners," 
 then it is resolved into a matter of fact for the jury. The 
 question of presumption, or not, belongs to the court. It seems, 
 however, to be questionable whether there is a presumption that 
 an applicant for insurance on freight is owner of the vessel, and 
 if there is such a presumption, it can be at most but prima facie, 
 and subject to be rebutted, which would still bring the case to 
 the jury. The fourth and sixth grounds of the decision are 
 substantially that both the assignor and assignee of the freight 
 were parties to the policy, and both had a direct interest in 
 recovering the loss, and, therefore, that the owner as well as the 
 assignee of the freight-list, came within the description of "the 
 assured," to the same effect in putting a construction upon the 
 policy as if they had been both of them expressly named in the 
 policy as the parties insured. This construction seems to be a 
 proper one, and, indeed, free of all doubt. It cannot be supposed 
 that the exception of the risk of barratry takes effect only in 
 
 ner equivalent to the ordinary practice third persons; and Reynolds n. Toppan, 
 
 in courts of law where a case is reserved 15 Mass. 370, where the charterer who 
 
 with express authority to the court to took the vessel on shares is held to be 
 
 decide on the evidence and make all so, and see Abbott on Shipping, by 
 
 the inferences from the facts proved Story, p. 19, and note; Parsons on 
 
 which a jury might make. Contracts, 657. The management and 
 
 1 Thorn v. Hicks, 7 Cow. N. Y. 797, control of the vessel, in the above case 
 
 where the party having the control and of Paradise v. Sun Mut. Ins. Co. ap- 
 
 use of the ship under an agreement to pears to have remained with the 
 
 purchase it, is held to be owner as to owner.
 
 212 THE PARTIES. [CHAP. IV- 
 
 case of all the assureds, who are interested in recovering the same 
 loss, being owners of the vessel ; therefore under the clause ex- 
 cepting the risk of barratry " if the assured be owner^'' that risk 
 is excepted if either of the parties insured is so. 
 
 399. A mortgager ivho assigns his policy as collateral security 
 to the mortgagee^ continues to have an interest in the policy, as 
 long as he has a right to redeem,^ or is liable for the debt? 
 
 400. So where a judgment creditor, having a lien on real estate, 
 effects insurance thereon for himself and the debtor, the latter has 
 an interest in the policy, of which he may avail himself on satis- 
 fying the judgment.'^ 
 
 401. Where a depositary insures the deposited property, in his 
 own name, in pursuance of an agreement with the depositor to 
 insure it for the benefit of the latter, the depositor, as between these 
 two and the creditors of the depositary, ivill have an equitable 
 interest in the policy, equivalent to that of the assignee of a chose 
 in action.* 
 
 402. A tenant ivho pays no part of the premium has no interest 
 in a policy effected by the landlord on the leased tenement, unless 
 it is so agreed.^ 
 
 But if the tenant pays any of the premium, he has an interest.^ 
 
 403. Where q. policy for A provides that a loss shall he payable 
 to B, the latter, if he has no lien on the policy, is not a party to it 
 to the effect of giving him any control.^ 
 
 404. The original assured cannot assert any interest in a policy 
 of reinsurance? 
 
 1 Rogers v. Traders' Ins. Co., and same building is burnt, see Sadlers' Co. v. 
 plaintiff v. Howard Ins. Co. 6 Paige, Ch. Badcock, 2 Atk.554 ; Brown v. Quilter, 
 N. Y. 583. Ambl. 619; Hare v. Groves, 3 Anstr. 
 
 2 Gordon v. Mass. Fire & Mar. Ins. 687; Holtzapffel y. Baker, 18 Ves. jun. 
 Co. 2 Pick. Mass. 260. 115. 
 
 3 Mitkles V. Rochester City Bank, 11 6 Miltenbergher t;. Beacom, 9 Penn. 
 Paige, Ch. N. Y. 118. 198. 
 
 4 Providence County Bank v. Benson, 7 Rogers v. Traders' Ins. Co. and same 
 24 Pick. Mass. 204. plaintiff v. Howard Ins. Co. 6 Paige, Ch. 
 
 5 Leeds v. Chcetham, 1 Sim. Ch. 149. N. Y. 583 ; Bidwell v. Northwestern 
 Stat. 19 Geo. II. c. 57, regulates the Ins. Co. 19 N. Y. 179; Sanford v. Me- 
 interests of landlord and tenant in this chanics' Ins. Co. 12 Cush. Mass. 541. 
 respect in London. Ellis, Ins. 75. For 8 Heckenrath v. Am. Mut. Ins. Co. 
 tenant's liability for rent, though the 1 Barb. Ch. N. Y. 363.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 213 
 
 405. A mortgagee has no interest as such in an insurance hy 
 the mortgager} 
 
 Whether either of the parties to a mortgage is a party to a 
 policy effected by the other, will depend upon their agreement 
 and the provisions of the policy.^ 
 
 406. The seamen have no interest in the oivner^s policy on freight 
 on account of their ivages,^ though freight is said to be the mother 
 of wages, and insurance is indemnity for the loss of it. One 
 reason is, that the policy is inter alios ; another, that giving them 
 such an interest would be in effect permitting their insurance of 
 wages, which are not insurable by them. 
 
 407. A policy in favor of A ^'■for leaving a blank 
 
 space in the line instead of inserting for whom, is equivalent to 
 one for ichom it may concern^ if the blank is to be filled at all} 
 The Supreme Court of New York decided that the blank was 
 not intended to be filled in the policy in question.^ 
 
 408. Insuring " as agent " for a particular person^ is equivalent 
 to insuring " on his account." 
 
 M. insured a vessel and cargo " as agent of R.," without any 
 general description of the assured. E.. had given M. instructions 
 to obtain insurance, but the property in fact belonged to E. 
 Chief Justice Parsons and his associates were of opinion, that, 
 " from the import of the words of the policy, and from the 
 necessary construction of it, no person was insured from loss but 
 R. ;" and decided that R. could recover nothing under the policy 
 for the benefit of E.'^ 
 
 A policy made by a person, " as agent for H.," who was 
 interested in a cargo owned by himself and four others not his 
 partners, was held to apply only to H.'s interest." 
 
 409. If the nominal assured be described in the policy as agent 
 generally, without saying for whom, it may be shown whose 
 interest was intended to be insured, in the same manner as if the 
 
 1 Carter v. Rocket and New York < pg,. Chancellor Walworth, Turner 
 Ins, Co. 8 Paige, Ch. N. Y. 437 ; Mac- v. Burrows, in Court of Errors, 8 Wend, 
 donald v. Black, 20 Ohio, 183. This N. Y. 144. 
 
 last case relates to a mortgagee not in ^ g. (j. 5 Wend. N. Y. 541. 
 
 possession, but the doctrine is equally '^ Russell v. N. E. Marine Ins. Co. 4 
 
 true in respect to one in possession. Mass. 82. 
 
 2 See Nos. 296, 379. ' Holmes v. United Ins. Co. 2 Johns. 
 
 3 Icard V. Goold, 11 Johns. N. Y. 279. Cas. N. Y. 329.
 
 214 THE PARTIES. [CHAP. IV. 
 
 policy had contained the general clause " for whom it may con- 
 cern." Where the assured were described in the following manner, 
 " D., or as agent, doth insure, &c.," on vessel and cargo, there were 
 three owners, and the policy was intended to cover the interest of 
 two of them. Jackson, J., giving the opinion of the court, said: 
 " This insurance was in truth made for the benefit of D. and R., 
 and we see no difficulty in carrying that intention into effect. 
 When the underwriter agreed to insure for D, as agent, either he 
 was informed that R. was the principal, or he waived all infor- 
 mation on the subject." ^ 
 
 In a policy by a creditor on the life of his debtor, independently 
 of the latter, the debtor and his representatives have no interest, 
 and payment of a loss does not satisfy the debt or go at all for 
 the benefit of the debtor's representatives.^ 
 
 In a policy by a trustee on the trust property the cestui que 
 trust has an equitable interest.'^ 
 
 A policy insuring a person interested, or authorized as owner, 
 agent, or otherwise, is considered by Lord Campbell and his 
 associates to be equivalent to one '■'•for ivhom it may concern.^'' * 
 
 410. Where the lohole interest in a policy has passed by assign- 
 ment of it for a valuable consideration, and notice thereof is given 
 to the underwriter, the assignor ceases to be a party to it for any 
 other purpose than the use of his name by the assignee in proceed- 
 ings upon it.^ 
 
 Defences subsisting against the assignor at the time of the 
 assignment are still good, but after the assignment he cannot 
 prejudice the assignee by subsequent confessions, and is not a 
 competent witness in favor of the underwriter ; and his release 
 given after notice to the underwriter is void, and payment to him 
 after notice is no defence against the claim of the assignee. 
 
 The assignee of a policy in a mutual company is not the 
 " insured " until he has given his deposite note.^ And where 
 
 1 Davis r. Boardman, 12 Mass. 80. ney, 16 Ad. & E. 925, 6 Eng. L. & 
 See Hibbert v. Martin, 1 Campb. ."iSS. Eq. 312. 
 
 2 Humphrey i». Arabin, Cas. temp. 5 Hackett v. Martin, 8 Me. 77, and 
 Plunk. 322, cited Bunyon, Life Ins. cases there cited ; and see jurisprudence 
 Part I. c. 1, § 23, and other cases respecting assignments of chosos in ac- 
 ibid. tion, passim. 
 
 3 Bell V. Aheorpe, 12 Ir. Ch. 578. ° Bowditch Ins. Co. v. Winslow, 3 
 
 4 Sunderland Mar. Ins. Co. v. Kear- Gray, Mass. 415.
 
 CHAP. IV.] DESCRIPTION OF THE ASSURED. 215 
 
 such assignee has not complied with the requisites for becoming 
 a member of a mutual company, he is affected by the acts of the 
 assignor after the assignment.^ 
 
 411. Wliere there are divers persons answering to the descrip- 
 tion of the assured^ the policy is applied to the interest of the 
 party for whom it was intended, and by whose order it was 
 effected. Where the assured was described to be J. B. C, in a 
 policy effected by him, but at the request and on account of J. B. 
 C. Jr., the contract was applied to the interest of the latter.^ 
 
 412. In a case upon a fire policy upon goods, " as well the 
 property of the assured, as held by them in trust, or on commis- 
 sion," Mr. Justice Oakley said : " The words, ^ goods held in trust 
 or on commission,'' are equivalent to the clause, ^for ivhom it may 
 concern,^ usually inserted in marine policies. They contain a 
 distinct declaration that the assured were acting for the benefit 
 of their consignors." ^ 
 
 413. Whether, under a policy effected by an assured as agent 
 or trustee, the principal is subrogated merely to the rights ivhich 
 the agent ivould have had as principal, and is subject to like 
 set-off and other defences? 
 
 It was held by Denman, C. J., and his associates of the King's 
 Bench in England, that such defence will avail the underwriter 
 in a suit at law on a policy effected in the name of a party de- 
 clared in the policy to be " interested or duly authorized as agent," 
 which is equivalent to "for whom it may concern," * unless the 
 court has, on application, previously ordered otherwise. But the 
 American courts have decided directly to the contrary, namely, 
 that in a suit at law, on a policy in the name of an agent, declared 
 to be for the benefd of the principal, the underwriter cannot set off 
 his demands against the nominal assured.^ 
 
 413 a. Neither party to a policy, whether original or by assign- 
 ment, can, without the consent of the other, exonerate himself of 
 
 1 Edes V. Hamilton Ins. Co. 3 All. 5 Per Story, J., in Hurlbutt v. Pacific 
 Mass. 3G2. Ins. Co. 2 Sumn. C. C. 471 ; Gordon v. 
 
 2 Cliurch V. Hubbart, 2 Cranch, 187. Church, 2 Caines, N. Y. 299, in New 
 
 3 De Forest v. Fulton Fire Ins. Co. York ; per Woodbury, J., in Aldrich v. 
 1 Hall, N. Y. 84. Ecjuitable Ins. Co. 1 Woodb. & M. C. C 
 
 * Gibson i;. Winter, 5 Barnew. & Ad. 272. 
 96 ; and see also Wilkinson v. Liudo, 7 
 Mees. & W. Exch. 405.
 
 216 THE PARTIES. [CHAP. IV. 
 
 his liabilities to the other upon it, and cease to be a party to it, 
 by subrogation of a third in his place. 
 
 Where a life insurance company proposing to disengage itself 
 from its liabilities agrees with another company to assume its 
 risks, it still remains liable.^ 
 
 So a vote of a mutual fire insurance company that in cases of 
 premium notes on a policy not being punctually paid, the risk 
 on the policy should be suspended, was held not to affect the 
 claims of an assured on a policy previously issued, unless it was 
 assented to by him.'-^ 
 
 414. The application of the proceeds of a policy will be made in 
 the manner most beneficial to the assured. 
 
 A being entitled to an annuity during the lives of B and C, 
 and the survivor of them, a policy was effected in his behalf on 
 one of the lives, which having dropped, the question arose 
 whether the proceeds should be applied in discharging the arrears 
 of the annuity, which would, in efi'ect, be so much in relief of the 
 grantor of the annuity. Lord Chancellor Sugden decreed against 
 such application, and in favor of its going to the annuitant 
 directly, as an indemnity for the diminution of the value of the 
 annuity, by the dropping of one of the lives.^ 
 
 1 Atkinson v. Gylby, 2 De Gex, M. 3 Millikin v. Kidd, 4 Drur. & Warr. 
 & G. Ch. 670, 13 Ens. L. & Eq. 209. Ch. Ir. 274. 
 
 2 New England Mut. Fire Ins. Co. 
 V. Butler, 34 Me. 451.
 
 CHAPTER V. 
 
 DESCRIPTION OF THE SUBJECT. 
 
 Sect. 1. Description of the subject in gen- 
 eral. — Of different kinds of in- 
 terest, as owner, mortgagee, &ic. 
 
 2. Cargo, goods, wares, merchandise, 
 
 property. 
 
 3. Profits. 
 
 Sect. 4. Ship. 
 
 5. Freight. 
 
 6. Subject of fire policies. 
 
 7. Of fishing voyages. 
 
 8. Of reinsurance. 
 
 SECTION I. DESCRIPTION OF THE SUBJECT IN GENERAL. DIF- 
 FERENT KINDS OF INTEREST, A3 OWNER, MORTGAGEE, ETC. 
 
 415. It is necessary that the thing' insured, and in some cases 
 also the Jcind of interest intended to be protected, should be suffi- 
 ciently set forth in the policy, or that the policy should at least 
 prescribe the way of ascertaining to what the contract is to be 
 applied. As the contract will embrace no other subject than that 
 described, its validity will depend upon the sufficiency of the de- 
 scription.i 
 
 A policy on " piece goods" cannot be applied to " hats ; "^ nor 
 one on " oil and barilla" to " soap." 
 
 Emerigon thinks a policy on " ingots of gold" may be applied 
 to gold " coins " and " utensils," because they might be made into 
 ingots without changing the substance.^ This seems, however, to 
 be a somewhat fanciful reason. 
 
 Some marine ordinances require that goods subject to extraor- 
 dinary risks, as, for instance, contraband of war, shall be specifi- 
 cally described in the policy, that the underwriter may be apprised 
 of the risk ; * and a policy on " goods " or " merchandise " or 
 "cargo" generally, would, accordingly, not cover such property. 
 Neither the laws of England, nor those of the United States, 
 
 1 Langhorn i-. Cologan, 4 Taunt. 330; 3 Tom. I. pp. 299, 300, c. 10, s. 3. 
 Cheriot v. Barker, 2 Johns. N. Y. 346. « 1 Magens, 9, s. 14 ; Wolcott v. Ea- 
 
 2 Hunter v. Prinsep, Marshall, Ins. gle Ins. Co. 4 Pick. Mass. 434 ; Weskett, 
 316. tit. Goods. 
 
 VOL. I. 19
 
 218 DESCRIPTION OP THE SUBJECT. [CHAP. V. 
 
 make any special provisions on this subject, yet it has been held 
 in both countries that certain kinds of property, as live stock, for 
 instance, are not insurable under such general descriptions.^ 
 
 A description of goods, freight, a ship, house, or other thing 
 insured, by which it may be distinguished and identified, will 
 generally be sufficient. 
 
 416. If one own a half or any other proportion of a ship or of 
 goods, he may effect insurance generally without specifying his 
 interest, and he will recover for such interest as he has? And 
 a partner may insure goods as " his " where his copartner is inter- 
 ested only in the profits, though the policy will cover only his 
 interest existing at the time of the commencement of the risk.^ 
 
 417. An insurance in the name of A merely,* or " for account " 
 of A,^ or of A " as property may appear," ^ is applicable only to 
 his interest. "' 
 
 418. An insurance in the name of A and B without more, is 
 held by the English King's Bench and Common Pleas, not to be 
 applicable to the sole absolute interest' of A? 
 
 419. A charterer of a ship or other parly having the rightful 
 possession and use of a thing under an agreement to pay for all 
 losses and repairs, has an insurable interest, which may be covered 
 by a policy in his own name generally, without specifying the 
 kind of interest. 
 
 The owner of one half of a schooner chartered the other half, 
 with an agreement to pay for it in case of loss. A policy upon it 
 generally, not specifying his interest, was held to be applicable to 
 its whole value.^ 
 
 420. An assignee of any subject for a valuable consideration, 
 having a lien upon it, and the possession or control and disposition 
 
 1 See Infra, s. 2. 4 Cohen v. Hannam, 5 Taunt. 101. 
 
 2 Lawrence v. Van Home, 1 Caines, 5 Kemble v. Rhinelander, 3 Johns. 
 N. y. 276 ; Murray v. Columbian Ins. Cas. N. Y. 130. 
 
 Co. 1 1 Johns. N. Y. 302 ; Rising v. Bur- 6 Graves v. Boston Mar. Ins. Co. 2 
 
 nett, Marsh. 730 ; Lawrence v. Sebor, 2 Cranch, 419. 
 
 Caines, N. Y. 203 ; Toppan v. Atkinson, 7 See supra, No. 380. 
 
 2 Mass. 365 ; 1 Emer. 293, c. 10, s. 1. 8 Bell v. Ansley, 16 East, 141 ; Cohen 
 
 3 Irving V. E.xcelsior, &c. Ins. Co. 1 v. Hannam, 5 Taunt. 101. 
 
 Bosw. N. Y. 507. See also Gould v. 9 Oliver v. Greene, 3 Mass. 133. 
 York, &c. Ins. Co. 47 Me. 403 ; Peoria See also Bartlett v. Walter, 13 Mass. 
 Ins. Co. V. Hall, 12 Mich. 202. 267.
 
 SECT. I.] DESCRIPTION OP THE SUBJECT IN GENERAL. 219 
 
 of it, may insure it under a general description ivithout specifying 
 his interest.^ 
 
 421. A mortgagee may insure the mortgaged svbject generally^ 
 without specifying his interest to consist in a mortgage? 
 
 A supercargo having assigned his commissions and the proceeds 
 of them as security for money advanced to him, the assignee 
 effected insurance upon them, under the description of "commis- 
 sions of F. out, and proceeds of said commissions homeward;?," 
 not specifying the assignment. It was held that the policy pro- 
 tected his interest.'^ 
 
 422. A trustee having the title to property, and the possession 
 and management of it, may insure it in his own name without 
 specifying his interest."^ 
 
 By the laws of Louisiana, the husband having the trust and 
 management of the wife's property may so insure it.° 
 
 423. So a consignee or other party entitled to a lien upon prop- 
 erty, on account of advances or otherwise, inay cover his own 
 interest by insurance upon it in his own name generally, without 
 specifying it, unless there is some provision in the policy to the 
 contrary.^ 
 
 Policies sometimes require such interests to be specified." It 
 is held in Kentucky that insurance on all articles of stock in a 
 pork-house, covers all such without regard to the ownership.^ 
 
 1 Paradise u. Sun Mut. Ins. Co. 6 La. tiff v. Firemen's Ins. Co. 3 id. 423, 
 Ann. 596. 428. 
 
 2 Russel V. Union Ins. Co. 1 Wash. 5 Clarke v. Firemen's Ins. Co. 18 La. 
 C. C. 409; Holbrook v. American Ins. 431; Mutual Ins. Co. v. Deale, 18 Md. 
 Co. 1 Curt. C. C. 193 ; Ins. Co. r. Wood- 26. 
 
 ruflF, 2 Dutch. N. J. 541. 6 Carruthers v. Sheddon, 6 Taunt. 
 
 3 Wells V. Philadelphia Ins. Co. 9 14; S. C. 1 Marsh. 416; Wolff u. Horn- 
 Serg. & R. Pcnn. 103. See also Irving castle, 1 Bos. & P. 316; and see supra, 
 r. Richardson, 2 Barnew. & Ad. 193, c. 4, No. 380, 392. The case of Toppan 
 and see cases cited to No. 432. Colum- v. Atkinson, 2 Mass. 365, is opposed to 
 bian Ins. Co. v. Lawrence, 2 Pet. 25^ the doctrine stated in the text, but the 
 has a contrary aspect, but the better authority of that case may well be qucs- 
 doctrine seems to be as stated in the tioned, 
 
 text. 7 As in the New York policies. 
 
 Stetson V. Mass. Fire & Mar. Ins. Brichta v. N. Y. La Fayette Ins. Co. 2 
 
 Co. 4 Mass. 330 ; Bell v. Western Mar. Hall, N. Y. 372. 
 
 & Fire Ins. Co. 5 Rob. La. 423, over- 8 JEtn^. Ins. Co. v. Jackson, 16 B. 
 
 ruling Bell v. Western, and same plain- Monr. Ky. 242.
 
 220 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 424. Tlie interest of carriers in consequence of their liability to 
 the owners of the goods carried, may be insured wider a general 
 description of the goods, ivithout specifying the particular interest 
 intended to be covered. 
 
 Insurance was made on " canal navigation boats, containing 
 goods, at work between London, Wolverhampton, Birmingham, 
 &c., backwards and forwards, £12,000 on goods as interest might 
 appear." Some goods were damaged in consequence of the sink- 
 ing of a boat, and the carriers were obliged to pay the damage. 
 In a suit to recover this loss against underwriters, the description 
 was held to be sufficient.^ This is, in effect, a reinsurance, as the 
 carriers may be considered to be insurers. 
 
 425. A vessel being agreed to be sold, but to remain registered 
 in the vender^ s name, as security for the price, the purchaser may 
 insure it to its full value in his oivn name under a general descrip- 
 tion? 
 
 426. An oivner ivho has mortgaged a vessel or any other prop- 
 erty may insure it to its full value under a general description.^ 
 And so the mortgaging of an owner's partial interest in any 
 property will not prevent him from insuring his interest in like 
 manner. 
 
 427. Whether a lender on bottomry or respondentia must de- 
 scribe his particular interest as such in the policy.^ 
 
 Lord Mansfield says, "he could not find even a dictum in any 
 writer, foreign or domestic, that the respondentia creditor may in- 
 sure on goods, ' as goods,' and that it was established now as the 
 law and practice of merchants, that respondentia and bottomry 
 must be specified in the policy." ^ The reason given by Kent. J., 
 is, that " there is neither average nor salvage, and a capture does 
 not mean a temporary taking merely, but one that occasions a 
 total loss." ^ But this reason has become obsolete, as bottomry is 
 
 1 Crowly V. Cohen, 3 Barnew. & Ad. 4 Williams v. Smith, 2 Caines,N. Y. 
 4 78. See also Natta V. Mutual Security 19; Robertson v. United Ins. Co. 2 
 Ins. Co. 2 Sandf. N. Y. 490. Johns. Cas. N. Y. 250; Jennings v. 
 
 2 Kenny v. Clarkson, 1 Johns. N. Y. Pennsylvania Ins. Co. 4 Binn. Penn. 
 385. 251. 
 
 3 Hicrfrinson v. Dall, 13 Mass. 96; 5 Glover r. Black, 3 Burr. 1394; 1 
 Williams v. Smith, 2 Caines, N. Y. 19 ; W. Blackst. 396. 
 
 Kenny V. Clarkson, 1 Johns. N.Y. 385; ^ Robertson v. United Ins. Co. 2 
 Locke V. North American Ins. Co. 13 Johns. Cas. N. Y. 250. 
 Mass. 61.
 
 SECT. I.] DESCRIPTION OF THE SUBJECT IN GENERAL. 221 
 
 more frequently now made, expressly or by implication, subject to 
 average, and entitles the lender to salvage, and subjects him to 
 the expense of salvage, in the same manner as an insurer, and the 
 rate of marine interest, and of the premium in effecting insurance 
 on his interest, is regulated accordingly. 
 
 It was formerly a usage in an East India voyage for the master 
 to be allowed marine interest on advances for the use of the ship 
 during the voyage, which usage was construed to give him the 
 character of a bottomry or respondentia creditor. Lord Mansfield 
 and Justices Ashurst and BuUer held that his interest was covered 
 under the description of " goods, specie, and effects." ^ If the in- 
 terest in this case was that of a bottomry creditor, and the reim- 
 bursement was contingent and depended on the vessel's surviving 
 the perils of the voyage, the decision is inconsistent with the doc- 
 trine that bottomry interest must be specified in the policy. It 
 does not appear what reason there is for the specification of this 
 interest in the policy any more than that of a mortgagee, or rein- 
 surer. The assured in either case must prove his interest, and 
 the loss by perils for which he was liable by the bottomry bond 
 in order to recover indemnity. It is well settled that a mortgagee 
 may insure generally,^ and the better doctrine seems to be the 
 same in respect to reinsurance.^ 
 
 428. The interest of captors, having no grant from the govern/- 
 merit, but only a well-grounded expectation of a grant of a part 
 or the whole of the captured property, cannot he protected by 
 insurance ivithout specifying the interest in the policy. Lord 
 Ellenborough says: " Supposing such a chance insurable, must it 
 not be insured specifically as such chance ? Can a man who has 
 no right, legal or equitable, effect an insurance, merely because* 
 he has a chance of some collateral benefit, if the ship should 
 arrive ? " * But a general policy upon ships and cargoes was held 
 to be valid as applied to the interest of the government in prizes.^ 
 
 1 Gregory v. Christie, 3 Dougl. 419. objection to the insurance of their 
 
 '■^ Supra, No. 421. share under a general description of 
 
 3 Infra, No. 498. the ship or cargo. But a question is 
 
 4 Routh V. Thompson, 11 East, 433. not likely to arise on such a policy, 
 
 5 Same v. same, 13 East, 274. Where since the specification of the interest 
 a certain proportion of prizes that shall is usually made in describing the sub- 
 be made is granted to captors by a ject. 
 
 standing law, there is apparently no 
 19*
 
 222 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 429. A policy in the alternative, expressed to be upon one or 
 the other or both of two subjects, — as where the policy is on 
 cargo Or freight, both or either, — may be applied to either, if the 
 assured proves to be interested in but one ; but if he is interested 
 in both, it must be applied to both proportionably to his interest, 
 if no other appropriation has been made before a loss has taken 
 place.^ And a claim for the whole amount insured for loss on 
 one subject is an election to cancel the insurance on the other.^ 
 
 430. If the description designates the subject with sufficient 
 certainty, or suggests the means of doing it, a mistake of the 
 name of the ship, or of other particulars, will not defeat the con- 
 tract? 
 
 Insurance being on " five hogshead of sugar marked D. on 
 board of the B. from V. to P.," the assured proved his shipment 
 of that quantity on board of the same vessel for the same voyage, 
 but by mistake of the broker in the reading of the order the sugars 
 were described as marked D., instead of another mark. The 
 order was exhibited to the agent of the underwriters at the time 
 of making the policy, who marked it with his initials. Mr. Jus- 
 tice Washington ruled that the subject was adequately identi- 
 fied.4 
 
 Doubloons were held to be covered under the general descrip- 
 tion " cargo," there being no evidence that they were on board of 
 the vessel for any other purpose than to procure goods for trans- 
 portation on the voyage.^ 
 
 A policy being made on " the Leopard, or by whatever other 
 name the said ship should be called, whereof was master for that 
 voyage A. B., or whoever else should be master ; " it appeared 
 'that the ship, of which A. B. was master, was the Leonard, and 
 had never been called the Leopard. It was insisted, on behalf 
 of the underwriter, that the general words were meant only to 
 embrace the case where the ship is called by the name in the 
 policy, and also by other names; but Chief Justice Lee was of a 
 ditferent opinion, and held the testimony of A. B. that he was 
 
 ^ Faris v. Newburyport Ins. Co. 3 * Ruan v. Gardner, 1 Wash. C. C. 
 
 Mass. 476. 145. 
 
 2 Stillwell V. Staples, 19 N. Y. 401. 5 Wolcott v. Eagle Ins. Co. 4 Pick. 
 
 3 Pothier, Ins. n. 105; and Estran- Mass. 429. 
 gin's note, 1 Emer. 159, c. 6, s. 2.
 
 SECT. II.] CAEGO, GOODS, WARES, MERCHANDISE, ETC. 223 
 
 master of the Leonard, and never had been so of the Leopard, 
 to be sufficient to identify the vessel.^ 
 
 Another vessel, bearing the Spanish name Tras Hermanas, was 
 described in the policy, by a translation of the name, as the Three 
 Sisters, and this was held to be a good description.^ 
 
 A policy being made on goods on board of the ship "called the 
 American ship President, or by whatever other name the same 
 ship should be called;" the goods were on board of "the Pres- 
 ident ; " and it was urged that the admitting of the sufficiency of 
 this description would expose underwriters to fraud. The court 
 did not think the objection sufficient to defeat the policy.'^ 
 
 SECTION II. CARGO, GOODS, WARES, MERCHANDISE, PROPERTY. 
 
 431. The ordinances of some countries have provided, that 
 the general description, " goods, wares, and merchandise," should 
 not apply to perishable commodities, unless they were particularly 
 named ; ^ but there seems to be no such distinction in England or 
 the United States. 
 
 432. Similar provisions have been made in some ordinances 
 respecting the precious metals^ coined or uncoined;^ but they 
 undoubtedly come within the general description, except in the 
 case of clandestine trade i*^ and there seems to be no reason for 
 this exception, since the fact that the trade is prohibited appears 
 to involve the question of concealment, or the legality of the con- 
 tract, rather than that of the sufficiency of the description. 
 
 Mr. Justice Dampier says : " Goods, wares, and merchandise 
 will cover dollars if entered at the custom-house." '' And the de- 
 scription, " goods and merchandises," has been held to be appli- 
 cable to specie dollars, the proceeds of sales of goods covered by 
 the policy.^ 
 
 Emerigon considers the description, " ingots of gold, " to be 
 
 1 Ilally. Molineux, cited 6 East, 385. Goods; 1 Emer. 297, c. 10, s. 2 ; Park, 
 
 2 Clapman v. Cologan, 3 Campb. 382. 26 ; iSIarsli. 319. 
 
 3 Le Mesurier v. Vaughan, 6 East, "^ Thomas v. Koyal Exoh. Ass. Co. 
 382. 1 Price Exch. 95. 
 
 4 1 Magens, 9, s. 14 ; Weskett, tit. 8 American Ins. Co. v. Griswoid, 14 
 Goods. Wend. N. Y. 399 ; and see Coggeshall 
 
 5 1 Magens, 9, n. r- American Ins. Co. 3 Wend. N. Y. 
 
 6 1 Magens, 10, s. 15 ; Weskett, tit. 283.
 
 224 DESCRIPTION OP THE SUBJECT. [CHAP. V. 
 
 applicable to coins, and utensils of that metal.^ But this appears 
 to be a forced construction. 
 
 Mr. Justice Dampier says, the description, " goods, wares, and 
 merchandise," will not cover " bills of exchange.''^ '^ 
 
 433. Mr. Justice Spencer considers a curricle as coming with- 
 in the description of goods, wares, and merchandise. He said : 
 " The assured was not bound to specify the nature of the 
 cargo." ^ 
 
 434. Articles of clothing for use by persons on board, and not 
 for trade, are not covered as goods, wares, and merchandise.* 
 
 435. Nor are rings, jeivels, Sfc, which are not intended for 
 trade, but belonging to the persons of those on board of a vessel, 
 covered under such general description.^ 
 
 436. Lord EUenborough says ; " Outfit, cannot be considered 
 as ' goods,' in any proper sense of that word, that is, as part of 
 the cargo." ^ 
 
 437. Where the policy is on cargo, goods, property, &c., " by 
 ship or ships,^^ for a specified voyage, from a certain port, or 
 certain ports, or in general for a certain period, as it is applicable 
 to goods in any ship, the subject must be identified by the ports of 
 shipment, the voyage, or the time of shipment, or by any or all of 
 these modes of distinction.'^ 
 
 438. Policies are sometimes made on goods " by a ship or 
 ships," as thereafter, to be declared, or on goods thereafter to be 
 declared, which leaves it to the assured afterwards to determine 
 the subject. But the voyage is described, and generally the time 
 mentioned within which the ships are to sail. Large amounts 
 were formerly kept insured in this way.*^ 
 
 There is some hazard of fraud in these policies, as the assured 
 may have a certain sum insured between particular ports for a 
 certain time, and within that time ship ten times the amount, 
 and declare the policy to be on the shipment on which a loss may 
 
 1 Vol. I. c. 10, s. 3. belongs mostly to the ship. See infra, 
 
 2 Thomas v. Royal Exch, Ass. Co. s. 4. 
 
 Price, Exch. 95. 7 Robinson v. Touray, 3 Campb. 158; 
 
 3 Duplanty v. Commercial Ins. Co. 1 ]\Iaule & S. 217; Crowley v. Cohen, 
 Anth. N. Y. 114. 3 Barnew. & Ad. 478; Atkins v. Boyl- 
 
 4 Marshall, Ins. 727. ston Ins. Co. 5 Mete. Mass. 439. 
 
 5 Roccus, n. 17. 8 Weskett, tit. Ship or Ships, n. 10. 
 
 6 Hill V. Fatten, 8 East, 373. It
 
 SECT. II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 22o 
 
 happen, when it may not be easily proved what other shipments 
 have been made. On the other hand, this description may oper- 
 ate unfavorably to the assured, as he may not be able easily to 
 prove that he had no goods at risk, in case he demands a return 
 of premium. In this instance, as in many others, each party 
 confides very much in the good faith of the other. 
 
 The legality of this mode of description is well established.^ 
 
 Under a stipulation " sums at risk to be indorsed," the policy 
 covers goods lost before the assured could indorse them.'-^ 
 
 TJie assured may declare the subject to ivhich the policy is to be 
 applied after a loss has taken place. ^ 
 
 If he were required to declare before the loss, or lose the benefit 
 of the policy, the contract would frequently be ineffectual, since 
 it is adopted when no more particular description can be made. 
 From the necessity of the case, therefore, he should be permitted 
 to declare his interest after he receives news of a loss. 
 
 It would, however, be a security to the underwriters, in such a 
 case, to insert a condition, that the assured should declare his 
 interest immediately after receiving the necessary intelligence,'* 
 
 It is held by Lord Mansfield and his associates, that, where 
 different shipments come within the description in the policy, the 
 assured may apply it to either. Messrs. K. and R., of L., had 
 insured ,£1260 on board of the Elizabeth, from G. to L., on 
 account of F. They had orders to insure X1300 more, and not 
 knowing by what ship the goods were to be sent, they insured 
 £600 in London, and £700 in Liverpool, "from G. to L., on 
 any kind of goods as interest should appear, in ship or ships to 
 sail before the first of August, 1793," There was nothing in the 
 policy to except the goods by the Elizabeth ; and the under- 
 writers at Liverpool did not know that the insurance was not 
 intended to cover those goods. The Elizabeth sailed in June 
 and arrived safe. The H. sailed afterwards, within the time 
 mentioned in the policy, with goods of the assured on board to 
 the amount of £1300, and was lost. The underwriters in 
 Liverpool refused to pay the loss, alleging that goods to the 
 
 • Kewley y. Ryan, 2 H. Blackst. 343. See also Craufurd v. Hunter, 8 Term, 
 
 2 E. Carver Co. v. Manufacturers' 13 n. a. 
 
 Ins. Co. 6 Gray, Mass. 214. 4 See Weskett, p. 520, tit. Ship or 
 
 3 Harman v. Kingston, 3 Canipb. 150. Ships.
 
 226 DESCRIPTION OF THE SDBJECT. [CHAP. V. 
 
 amount insured, and within the description in the policy, had 
 arrived in the Elizabeth, and, if damage had happened to them, 
 the assured could have claimed a loss. But the court said: 
 " The assured had clearly a right to apply such an insurance 
 to whatever ship he thought proper within the terms of it."^ 
 
 In this case the assured had, by the previous insurance of the 
 shipment on the Elizabeth, so far manifested his election as to 
 the application of the subsequent policies to other shipments, 
 otherwise than merely by his declaration on the subsequent 
 policies. 
 
 In a similar case before the same court, of two shipments from 
 Bengal, and two policies effected in London, the assured had 
 previously to the loss declared on oath before a magistrate in 
 Bengal, whereby his declaration had publicity, to which of the 
 shipments he intended that one of the policies should apply. 
 This declaration repeated to the underwriters was held to fix the 
 application of the policy to the shipment on which a loss 
 occurred.^ 
 
 439, Though it is not necessary to the validity of a policy 
 on goods or other subjects " thereafter to be declared," that the 
 declaration should be made previously to the loss, still, if divers 
 shipments or subjects belonging to the assured ansivering' to the 
 description, have been put at risk, and no declaration or act of 
 the assured, by effecting other insurance or otherwise, has deter- 
 mined the application of a policy to particular subjects prior to 
 intelligence of a loss, the policy mvst be applied to all the subjects 
 comprehended in the description.^ 
 
 It has been held in Massachusetts on an equivalent description, 
 namely, on " the cargo or freight of the ship America, both or 
 either," that, after the event was known, the policy must be 
 applied to both in the proportion of the interest of the assured in 
 the two subjects.^ 
 
 In case of an open policy by a St. Louis company, on ship- 
 ments by sailing vessels or steamboats for six months on the 
 
 1 Kewley v. Ryan, 2 H. Blackst. 343. Crowley v. Cohen, 3 Barnew. & Ad. 
 
 2 Henchman v. Offley, 3 Dougl. 135. 478. 
 
 See also 8 Term, 13, n. ; 2 H. Blackst. * Faris v. Newburyport Ins. Co. 3 
 343. Mass. 476. See Stillwell v. Staples, 19 
 
 3 See 1 Emerigon, 174, c. 6, s. 5 ; N. Y. 401.
 
 SECT. II.] CAEGO, GOODS, WARES, MERCHANDISE, ETC. 227 
 
 western waters or from the Atlantic ports by way of New Orleans, 
 " indorsements to be evidence of property at the risk of the com- 
 pany," where the assured received advice of a shipment and loss 
 at the same time, Messrs. Tompkins, Napton, and Scott decided 
 that the shipment could not be indorsed.^ A decision of Lord 
 Kenyon and his associates ^ is referred to as authority for holding 
 that the indorsement of the shipment before advice of the loss, 
 was indispensable. A more satisfactory ground seems, however, 
 to be that the underwriters were not liable for the risk until the 
 assured was liable for the premium, and he was not so until the 
 indorsement of the shipment was made ; in which respect the 
 case is distinguishable from those above cited of the subject being 
 declared after the loss, where the description was applicable to 
 all the shipments made on account of the assured on the voyages 
 specified within the time specified.^ 
 
 440. The assured may revoke a declaration made by mistake^ 
 and declare anew.^ 
 
 It must, however, in such case doubtless appear that he had no 
 goods as first declared. 
 
 441. A policy on goods and '•'"proceeds^"' or "returns," applies 
 to return goods shipped on the credit of the outward cargo, left at 
 a, foreign port to be sold? 
 
 442. A policy npon certain goods for an outward passage and 
 the proceeds thereof home, is not applicable to the same goods 
 brought back, at least unless a usage to that effect is proved. 
 
 It was so held respecting a shipment consisting mostly of 
 artificial flowers, silk goods, and muslins, from New York to 
 India. It does not appear from the case why the same goods 
 were returned. In the Superior Court,^ one reason at first given 
 
 1 E ! wards f. St. Louis Perpetual Ins. 3 gee Dowville v. Sun. M. Ins. Co. 
 Co. 7 Mo. 382. 12 La. Ann. 259. 
 
 2 Worseley w. Wood, 6 Term, 710, * Robinson i'. Touray, 3 Campb. 158 ; 
 that under a provision of a fire policy S. C. 1 Maule & S. 217. 
 
 requiring a certain certificate as pre- ^ Haven y. Gray, 12 Mass. 71 ; Whit- 
 
 liminary proof of loss by fire, (see infra ney v. Am. Ins. Co. 3. Cow. N. Y. 210; 
 
 No. 885,) its non-production could not S. C. Am. Ins. Co. v. Whitney, 5 id. 
 
 be excused though it was not owing to 712. 
 
 any fault of the assured, reversing the ^ Dow v. Hope Ins. Co. 1 Hall, M. Y. 
 
 judgment of Eyre, C. J., and his asso- 170. 
 ciates in Wood v. Worseley, 2 II. 
 Blackst. 574.
 
 228 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 for the decision why the risk did not continue homeward was, that 
 the goods had not been examined at the foreign port, and they 
 might not have been in a proper condition for the homeward 
 passage. But in the subsequent reports it is stated that they 
 were in a sound state. In the Supreme Court and the Court of 
 Errors, such application of the terra " proceeds" was rejected, as 
 being too obviously inconsistent with the policy. In the latter 
 court, however, the case was remanded to give the assured an 
 opportunity to prove that, by usage, the word " proceeds " was 
 applicable to the same goods home ward. ^ 
 
 443. Insurance on g-oods on board of a vessel for a certain 
 period, or a certain voyage, admits of a change of the goods, and 
 applies to other goods the proceeds of those shipped, ivhere the 
 policy, by the description of the risk, the character and length of 
 the voyage, or the length of the period, indicates that they are to 
 he changed? 
 
 Thus a policy dated in July, on goods on board of a vessel 
 then on a trading voyage on the coast of Africa, " beginning the 
 adventure from loading, and shall continue until the said goods 
 shall be landed on the 10th of January," was held to apply to 
 goods being the proceeds of those on board at the commencement 
 of the risk.-^ But liberty to exchange, barter, &c., does not cover 
 cargo landed, nor proceeds before they are loaded.* 
 
 444. A policy upon the lading of a certain vessel employed in 
 a certain navigation for a specified period, will he applied to all 
 the lading of all the vessels within such period. 
 
 In a case before the K. B. in England, the sum of £12,000 was 
 insured for twelve calendar months, on goods on thirty boats at 
 work between London, Wolverhampton, Birmingham, &c., back- 
 wards and forwards, and in rotation, beginning the adventure on 
 the goods from the lading thereof on board, and continuing it 
 until the same should be discharged, the claim on the policy 
 warranted not to exceed 100 per cent. ; £3000 only to be covered 
 in any one boat, on any one trip; the question was, whether the 
 policy applied only to the first amount of £12,000 carried, or 
 
 1 Dow V. Whetten, 8 Wend. N. Y. 3 Coggeshall v. Am. Ins. Co. 3 Wend. 
 160. N. y. 283. 
 
 2 See Valin, Vol. II. p. 78, tit. Insui- < Harrison v. Ellis, 7 Ell. & B. 465. 
 ance, a. 27.
 
 SECT. II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 229 
 
 was a continuing insurance of that amount on the goods succes- 
 sively carried in the boats, during the year. The latter was held 
 to be the true construction.^ 
 
 445. The description of goods shipped " betv^een " two dates, 
 excludes the days named? 
 
 446. An insurance on " «// lawful goods^^ has been held to 
 apply to contraband goods as well as other. 
 
 Mr. Justice Kent said : " I am of opinion that contraband goods 
 are lawful goods; and that whatever is not prohibited to be ex- 
 ported by the law of the country is lawful. The law of nations 
 does not declare the contraband trade to be unlawful. It only 
 authorizes the seizure of the contraband articles by the belligerent 
 powers." ^ 
 
 447. Insurance is sometimes made on goods '■'■from the time of 
 loading them on board.^ specifying at the same time at what port 
 the risk is to commence. 
 
 If the goods are not laden on board at the port where, accord- 
 ing to the policy, the risk is to commence, there may arise a ques- 
 tion whether the policy attaches. 
 
 It has been decided in a number of cases, that the policy did 
 not attach, and in those decisions three different grounds are as- 
 sumed ; one, that it is a condition, in the nature of a warranty, 
 that the goods should be loaded on board at the place named ; 
 another, that the loading of the goods on board at such place is 
 the only event from which to date the commencement of the risk, 
 and this not having happened, it does not commence ; and a third, 
 that the goods do not answer to the description in the policy. 
 The grounds of warranty and the want of commencement of the 
 risk, have been the most distinctly alleged in support of these 
 decisions. 
 
 It was held in New York, under a policy " upon all goods 
 laden on board the R., beginning the adventure from the loading 
 thereof at Cagliari," that " the hoisting the cargo out of the hold 
 
 1 Crowley v. Cohen, 3 Barnew. & Ad. 3 Seton v. Low, 1 Joluis. Cas. N. Y. 
 478; Henshaw v. Mutual Ins. Co. 2 1. See also Skidmore v. Desdoity, 2 
 BlatclTf. C. C. 99. Johns. Cas. N. Y. 77 ; Juhel v. Rhine- 
 
 2 Atkins V. Boylston Ins. Co. 5 Mete, lander, 2 Johns. Cas. N. Y. 120 and 
 Mass. 439. 487. 
 
 VOL. I. 20
 
 230 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 and restoring it at Cagliari did not amount to loading it on board 
 at that place." ^ 
 
 A ship and cargo were insured " at and from the coast of 
 Africa to her port of discharge in the United Kingdom, beginning 
 the adventure upon the goods from the loading thereof aboard 
 the said ship twenty-four hours after her arrival on the said 
 coast;" the cargo being valued. The policy was held not to 
 attach to any of the outward cargo remaining on board after the 
 expiration of the twenty-four hours.^ 
 
 A policy was underwritten for a voyage "at and from Singa- 
 pore, Penang, Malacca, and Batavia, to a port of discharge in 
 Europe, with leave to touch, stay, and trade at all or any ports or 
 places whatsoever and wheresoever in the East Indies, Persia, or 
 elsewhere, beginning the adventure on the said goods from the 
 loading thereof on board the ship as above ; with liberty to sail to, 
 and touch, and stay at, any ports or places whatsoever and where- 
 soever, in any direction and for any purpose, necessary or other- 
 wise, particularly at Singapore, Penang, Malacca, Batavia, &c." 
 The ship sailed from Batavia to Sourabaya, about four hundred 
 miles to the eastward of Batavia, and not in the direction of any 
 of the other ports named, or in the course to Europe, and there 
 procured a part of a cargo, and then returned to Batavia to take 
 in the rest of her cargo. It was held that the policy attached to 
 the cargo taken on board at Sourabaya.^ 
 
 Insurance was made at and from A. to St. T., and two other 
 ports in the West Indies, and back to her port of discharge in the 
 United States, upon " all kinds of lawful goods, laden or to be 
 laden on board the ship C, beginning the adventure from the 
 loading at A., and continuing the same until the goods shall be 
 safely landed at St. T. &c., and the United States ; the goods to 
 be valued as interest may appear." Mr. Justice Story, giving the 
 opinion of the court on this description, said : " It is plainly an 
 insurance upon all lawful goods, not only upon tlie outward voy- 
 age to the West Indies, but for the homeward voyage. The 
 
 1 Murray v. Columbian Ins. Co. 11 3 Hunter v. Leathly, 10 Barnew. & 
 Johns. N. Y. 302. But see the cases on C. 858, affirmed on error, 7 Bingh. 517. 
 this subject under "Warranty and Risks. See also Grant i\ Paxton, 1 Taunt. 
 
 2 Rickman v. Carstairs, 5 Barnew. & 463. 
 Ad. G51 ; S. C. 2 Nev. & M. 502.
 
 SECT, II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 231 
 
 clause may be rationally expounded, as intended only to jDoint 
 out the time of the commencement and termination of the risk 
 on the goods, successively constituting the cargo." ^ 
 
 An insurance being " at and from Havre and any port or ports 
 of France south of that place, to New Orleans," on goods "to be 
 shipped during six months from the 1st of August, the ship left 
 her moorings at Bourdeaux on the 6th of August, and put to sea 
 on the 12th from Paulier, about eleven leagues below Bourdeaux, 
 and was wrecked off the American coast and her cargo totally 
 lost. Part of the cargo had been put on board at Bourdeaux be- 
 fore the 1st of August, which the underwnriters contended was not 
 covered by the policy. But the Supreme Court of Louisiana 
 held that the provision related to the time of the vessel's sailing 
 from the ports specified, not to the time of the goods being put 
 on board, and accordingly that the policy covered goods laden 
 on board before the first of August.^ That is, the term " shipped " 
 was applicable to the vessel sailing with the goods on board. 
 
 448. Insurance on goods laden on board of a vessel for a cer- 
 tain voyage applies to the pending or first passage or trip. 
 
 So held under a policy upon a certain number of hogsheads of 
 sugar, to be laden on board of a steamboat on a trip from New 
 Orleans to Louisville.^ 
 
 449. On specified goods " from a certain port," covers goods 
 put on board at an outport in the vicinity of that named, where it 
 is usual so to take on board articles of like description. 
 
 So held in respect of a shipment insured from New Orleans, 
 and put on board on the opposite side of the river.^ 
 
 450. The vessel on board of which goods are insured, must 
 ansiver to the description in the policy. If there is a vessel in the 
 specified trade exactly answering to the description, the assured is 
 precluded from applying the policy to another one in the same 
 trade ansivering to it only in some respects where the underwriters 
 can be supposed to have understood the former to have been 
 intended. 
 
 Insurance was made on goods " on board the brig Abeona." 
 
 1 Columbian Ins. Co. v. Catlett, 12 3 Courtnay v. Miss. Fire & Mar. Ins. 
 Wheat. 383. Co. 12 La. 233. 
 
 2 Sorbe v. Merchants' In . Co. 6 La. 4 ]\rCargo v. Merchants' Ins. Co. 10. 
 185. Rob. La. 334.
 
 232 DESCEIPTION OF THE SUBJECT. [CHAP. V. 
 
 There were two vessels of that name in the trade specified in the 
 policy ; one a brig, the other an hermaphrodite brig, schooner, top- 
 sail schooner, half-brig or brigantine. The policy was held, in 
 New York, to apply only to the former.^ 
 
 451. The subject may he identified by the fact of its being " con- 
 signed^^ to the assured. 
 
 Commission merchants of New Orleans for receiving consign- 
 ments of cotton coming down the Mississippi, keep on foot a 
 general insurance " for whom it may concern, on cotton con- 
 signed to them," against loss by perils of the river; giving notice 
 from time to time of the consignments. 
 
 A quantity of cotton belonging to B was consigned to a com- 
 mission merchant having such a general insurance, on the sup- 
 position of his being the agent of B, and the consignor, on learn- 
 ing that he had been under a mistake, ordered the consignee 
 to deliver the cotton over to the agent of B. The consignee 
 received this order, and the bill of lading, and intelligence of 
 the loss of the cotton, at the same time. The Supreme Court 
 of Louisiana decided that the general policy of the consignee 
 attached to the shipment, and that the underwriters were liable 
 to the owner of the cotton for the ioss.^ 
 
 452. The description of the subject as being "cargo" is very 
 similar in construction to the description " goods." 
 
 Provender taken on board for mules was held not to be covered 
 under the description of " cargo." ^ 
 
 453. A policy on " cargo " has been held in Massachusetts not 
 to apply to nudes and horses, whether on deck or under deck, the 
 underwriters having no notice that such was the cargo. They 
 are, says Mr. Justice Putnam, giving the opinion of the court, 
 " subjects of particular insurance, and not covered under the gen- 
 eral word cargo, or goods." * A similar decision has been given 
 in Maryland.^ 
 
 454. A policy being made at Boston on the cargo of a ship 
 
 1 Sea Ins. Co. v. Fowler, 21 Wend. 3 Wolcott v. Eagle Ins. Co. 4 Pick. 
 N. Y. 600. Mass. 429. 
 
 2 Ballard v. Merchants' Ins. Co. 9 ^ ibid. 
 
 La. 258. See also New York Ins. Co. ^ Allegre's Administrators v. Mary- 
 V. Roberts, 4 Du. N. Y. 141 ; Shearer land Ins. Co. 2 Gill & J. Md. 136. See 
 V. Louisiana Ins. Co. 14 La. Ann. 797. also Weskett, tit. Goods.
 
 ECT. II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 233 
 
 " now on a whaling voyage " in the Pacific Ocean, lost or not 
 lost, to continue during her stay, and until her return to Nan- 
 tucket, it luas held lo attach to the proceeds of the voyage ; that 
 is, the oil taken} 
 
 455. The term ^'■property " is more comprehensive than the other 
 general terms usually adopted in the description of the subjects of 
 marine transportation. 
 
 Insurance effected by the master for himself on '•^property " on 
 board of a coasting vessel for a certain period, during which, 
 according to the ordinary course of such trade, it must be 
 changed from time to time, by sales and purchases, and inci- 
 dentally, and to a greater or less extent, and for longer or shorter 
 periods, assume the form of the usual circulating medium, ivill 
 cover moneys deposited in a suitable place on board. 
 
 It was so held relative to bank-notes on board of a vessel 
 insured in the trade between Hingham, Mass., and Hallowell, 
 Maine, the loss being by fire, while the vessel was at sea.^ 
 
 456. Lumber and other articles were shipped for Porto Rico, 
 on an agreement that the shipowners should be entitled to three 
 fifths of the lumber, instead of freight, the freight of the other 
 articles being agreed for as usual. A policy was effected on 
 '•'' property on hoard^'' intended to cover the amount to be received 
 as freight. Parker, C. J. : " We think, that, on landing the lum- 
 ber, the assured became entitled to a portion of it, under the 
 contract; they had an interest in the cargo itself. They had 
 property in three fifths, as much as the owners of the cargo had 
 in the residue. The policy was to protect them from the con- 
 tingency which would defeat it." The policy was considered, 
 accordingly, to be applicable to the interest in the lumber, but 
 not to the other freight.^ 
 
 457. Under a policy on "furs," the invoice was headed, " invoice 
 of furs ; " but in the body of the invoice they were described as 
 bear and raccoon skins, opossum, deer, fine fisher, cross-fox, mar- 
 tin, white raccoon, wild-cat, wolf, wolverine, panther, and cub 
 skins, to the amount of $24,000 in the whole. It was given in 
 
 1 Paddock v. Franklin Ins. Co. 11 3 Wiggin v. Merchants' Ins. Co. 7 
 Pick. Mass. 227. Pick. Mass. 271. See also, to the same 
 
 2 Whiton V. Old Colony Ins. Co. 2 effect, Holbrook v. Brown, 2 Mass. 280. 
 Mete. Mass. 1. 
 
 20*
 
 234 DESCRIPTION OF. THE SUBJECT. [CHAP. V. 
 
 evidence, that skins valuable chiefly on account of the fur are, in 
 the language of trade, caWed furs, and that skins is a term mostly 
 appropriated to those which are valuable chiefly for the skin ; but 
 there was some discrepancy in the testimony, as to the extent of 
 the application of the terms ; and, the testimony being submitted 
 to the jury, they found a verdict for the whole sum insured; and 
 the court refused a new trial. The case, however, turned mostly 
 on the question whether the cargo came under the memorandum.^ 
 
 458. The description on " oil, bone, and other takings," on a 
 " whaling voyage" in the Pacific, covers sea-elephant oil, it being 
 a frequent practice to take sea-elephants on such voyages.^ 
 
 459. The description, " bills of exchang-e,''' has been much dis- 
 cussed in the English Court of Common Pleas. 
 
 The master of an India ship drew bills of exchange on a Cal- 
 cutta merchant, payable in a certain number of days after the 
 arrival of his vessel, in favor of a party who had advanced money 
 for the purchase of goods, the proceeds of which were intended 
 to be applied by the consignee and drawee of the bills in Cal- 
 cutta to the payment of the bills. This species of loan had been 
 in use some eleven or twelve years in London, instead of loans 
 on respondentia, it being understood that the payment of the 
 bills was to depend on the arrival of the ship. The lender made 
 insurance of his interest under the description " bills of exchange," 
 specifying them. Best, C. J., and his associates, decided against 
 the assured's claim for the loss of the ship and goods with one 
 set of the bills on board, on the ground that such a contract for 
 the payment of money on a contingency was not a bill of 
 exchange, and accordingly, if the plaintiff had any insurable 
 interest, it was not properly described.^ This construction was 
 certainly very strict upon the assured. 
 
 460. The claims and liabilities of the parties to a policy rela- 
 tive to goods carried on deck come under consideration in respect 
 to the description of the subject, the enhancement of the risk, 
 and contribution for jettison ; and these different phases of the 
 subject, though the questions are not identical, are still very 
 much connected with each other. The inquiry is not free from 
 
 Co. 3 
 
 1 Astor r. 
 
 United Ins. Co, 7 Cow. 
 
 2 Child V. Sun Mutual Ins. ( 
 
 N. Y. 202. 
 
 
 Sandf. N. Y. 26. 
 '3 Palmer v. Pratt, 2 Bingh. 185,
 
 SECT. II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 235 
 
 difficulty in either respect, and the jurisprudence on the subject 
 is involved in obscurity and discrepancies. 
 
 A general description does not, except under special circum- 
 stances, cover articles carried upon deck. The articles so stowed 
 are thereby put out of the protection of the policy, unless their 
 being carried in this ivay is provided for in the policy, or indi- 
 cated by the description of the article itself in the policy, or justi- 
 fied by the usage of the specified trade. 
 
 Where the article specified in the policy is uniformly so car- 
 ried, or obviously must from its character be* so, for its own 
 safety, or that of the ship, cargo, and crew, the policy will attach 
 to it, so carried, by the merely naming of it and describing the 
 voyage.^ 
 
 The insurance on " outfits and catchings,^'' on a ivhaling voyage, 
 covers ^^ blubber," or whale's flesh cut from the whale, and remain- 
 ing on deck to be " tried," according to the usage in that species 
 of fishery.2 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. 
 
 So, in the illustration given by Mr. Justice Putnam,^ of an 
 insurance specifically upon an elephant, the character of the 
 specified subject is a sufficient indication of the manner in which 
 it is to be transported. 
 
 Upon the same principle, in a case before Lord Denman and 
 his associates, on a policy specified to be on " pigs," on a passage 
 from Waterford to London, alleged to be carried on deck, in con- 
 formity with a usage so to carry them, the policy was held to 
 attach.* 
 
 Thus far the proper rule is obvious, and the cases agree. 
 Beyond this, we come to a difficult question, on which the juris- 
 prudence is wavering and inconsistent ; namely. 
 
 Whether the policy attaches to an article on deck that is 
 merely named, without any express intimation in the policy that 
 it is to be so carried, where articles of the same kind are not 
 
 1 Taunton Copper Co. v. Merchants' 2 Rogers v. Mechanics' Ins. Co. 1 
 Ins. Co. 22 Pick. Mass. 108; Smith v. Stor. C. C. 603. 
 Miss. F. & M. Ins. Co. 11 La. 142. 3 22 Pick. 108. 
 
 4 Milward v. Hibbert, 3 Q. B. 120.
 
 236 DESCRIPTION OP THE SUBJECT. [CHAP. V. 
 
 necessarily or uniformly so stowed, but sometimes go on deck, 
 and sometimes under, according to the quantity and kind of 
 cargo ? 
 
 It has been held in Massachusetts and Louisiana, that such 
 an article will not be so covered, unless a usage for underwriters 
 to pay for it when so carried is proved, as well as a usage so to 
 carry it.^ This is, however, quite a questionable form of present- 
 ing the rule. 
 
 In a case before the Queen's Bench in England,^ it was de- 
 cided, on demurrer to a replication of a usage to carry pigs on 
 deck, that the policy upon them attached, and that the under- 
 writers were liable to reimburse to the ship-owner a contribution 
 in general average, on account of a jettison of the pigs. There 
 was no allegation of a usage for underwriters to pay for such an 
 article, so carried in the trade insured upon. 
 
 But that was probably a case of uniform usage, the same 
 article being always stowed in that manner. This would leave 
 the question open as far as that case is concerned, whether the 
 fact that an article is sometimes carried on deck, and sometimes 
 under, constitutes a usage to carry on deck, of which the insurers 
 are bound to take notice, as being in effect a license to transport 
 it in that manner, implied by the mere naming of the article, or 
 by the description of the voyage. 
 
 An often-cited ruling of Lord EUenborough ^ amounts to the 
 doctrine, that in such a case the policy attaches, and the under- 
 writers are liable, whether the article is stowed in one or the 
 other way. But the greater weight of authority favors the doc- 
 trine, that in such case the underwriters are not liable.* 
 
 This question arises in connection with that of contribution, 
 for the jettison of the deck-load, and the authorities do not agree, 
 some being in favor of contribution, others against it.^ 
 
 1 Taunton Copper Co. v. Merchants' Backhouse v. Ripley, 1 Park, Ins. 14; 
 Ins. Co. 22 Pick. Mass. 108; Smithy. Ross r. Thwaite, id. The form of 
 Miss. F. & M. Ins. Co. 11 La. 142. policy of the Lexington (Ky.) Ins. Co. 
 
 2 Milward v. Hibbert, 3 Q B. 120. expressly excludes articles carried on 
 
 3 Da Costa v. Edmunds, 4 Campb. deck. And see Gould v. Oliver, 2 Mann. 
 142. & G. 208 ; and Rogers v. Mechanics' 
 
 * Taunton Copper Co. v. Merchants' Ins. Co. 1 Stor. C. C. 603, cited supra, 
 Ins. Co. 22 Pick. Mass. 108; Wolcott No. 13 7. 
 V. Eagle Ins. Co. 4 Pick. Mass. 429; 5 See chapter on General Average.
 
 SECT. II.] CARGO, GOODS, WARES, MERCHANDISE, ETC. 237 
 
 If there is a contribution for the jettison under tlue general 
 usage of the trade, without any special stipulation, then the 
 insurers are liable, as matter of necessary inference, to reimburse 
 it; for all marine policies, insuring against the usual perils, either 
 expressly or by implication, insure against general average. 
 
 Where the jettison of the article is not the subject of a con- 
 tribution by the ship, cargo, and freight, the question arises 
 whether the insurers are liable for the loss of the article by 
 jettison under the risk of " perils of the sea," and if the usage 
 of the trade authorizes the carrying it indifferently either above 
 or below deck, there is, on the part of the policy, precisely the 
 same ground for indemnity by the insurers as in any other case 
 whatsoever. The burden of proving an exception is on the in- 
 surers. The common form of the policy says nothing about 
 the manner of stowing. By construction, it is a condition that 
 the article insured shall be properly stowed. The proper stow- 
 age of almost all articles, in almost all voyages, is in the hold. 
 Accordingly, the general rule is, that goods must be stowed there. 
 But where, from the nature of the article, it can properly be car- 
 ried only on deck, it is as much a condition that it should be so 
 carried, as in other cases it is a condition to stow in the hold. 
 
 It has been objected, that, in respect of many articles, the risk 
 is enhanced by their being on deck. This may be so. The 
 question then is as to notice, and is the same between all the 
 parties respectively, that is, the shipowner on one side, and the 
 shipper of the jettisoned article on the other, or the other shippers 
 and the shipowner on one side, and the shipper of the jettisoned 
 article on the other, or between any of these and their under- 
 writers; namely. Had the party, whose property has been jet- 
 tisoned from the deck, notice that it would be so carried ? Had 
 another shipper, who is called upon for contribution, notice that 
 the jettisoned article would be so carried ? And had the un- 
 derwriter on the jettisoned article, or on any other interest from 
 which contribution is demanded, like notice ? 
 
 First, in respect to the shipper of the jettisoned article, if it is 
 one that requires to be carried on deck, there can be no pretence 
 for any claim by the shipper against the carrier for any loss or 
 damage arising from its being stowed there. If it is of a kind 
 that is carried above or under deck indifferently, or part in each
 
 238 DESCRIPTION OP THE SUBJECT. [CHAP. V. 
 
 way, as in case of a cargo of lumber from Quebec, and this is 
 frequent and ordinary in respect of such an article on the par- 
 ticular voyage, and is presumed to be well known to everybody 
 conversant in the trade, there surely can be no ground for impos- 
 ing an extraordinary liability upon the shipowner for damage 
 or loss on an article so stowed. As between these parties, the 
 article must be considered to be properly carried. 
 
 In relation to the liability of the other shippers to make con- 
 tribution for the jettison of the article under these circumstances, 
 the case is precisely similar. If the article is properly stowed, 
 and there is good ground for presumption that such an article 
 would be so carried, it does not appear why it should not be 
 contributed for as well as any article differently stowed. 
 
 In reference to the underwriters, the same rule ought to hold, 
 in a case where contribution is made. But further, if they know 
 of what kind the article is, and are presumed to have notice from 
 the usage of the trade that it may be carried on deck, it does not 
 appear why the underwriters should not be liable for such a loss 
 by the perils of the seas, as well as for that of one stowed in the 
 hold. 
 
 Upon these principles, the confusion and discrepancies of this 
 part of the commercial law may be remedied ; and I do not see 
 any other way of escaping from the perplexity in which the 
 jurisprudence concerning it is involved. The doubt would thus 
 be thrown up )n the facts of each particular case, instead of 
 hanging over the doctrines of the law as at present ; and this 
 difference is of incalculable importance, for an error in a verdict 
 ends with the particular case, whereas the evils of inconsist- 
 ency, error, and obscurity in doctrine necessarily spread over 
 the whole current of the branch of jurisprudence to which they 
 relate. 
 
 I accordingly conclude, that. 
 
 If by the description of the voyage, or the character of the arti' 
 cle specified in the policy, the underwriter may be presumed to be 
 apprised of a usage to carry it on deck, the policy will attach to it 
 so carried.^ 
 
 I See Merchants' Ins. Co. t'. Sliillito, Some of the policies on inland trans- 
 15 Ohio St. 559; Toledo Ins. Co. v. portation contain a provision on this sub- 
 Speares, 16 Ind. 52 ; also Nos. 4G0, 1282. ject, but in most instances, if not in all,
 
 SECT. III.] PROFITS. 239 
 
 SECTION III. PROFITS. 
 
 461. A policy on expected profits is usually made on the sub- 
 ject by that terra .^ 
 
 462. An insurance on ship or g-oods specifically, without any 
 indication that another subject is intended, cannot be applied to 
 expected profits? Nor will a policy on an inn,^ or a theatre,"* 
 cover the profits expected to accrue from conducting the spe- 
 cified establishment. 
 
 It was decided in New York, that an insurance " at and from 
 C. to N., in and with the schooner E,., on profits " on all goods 
 laden and to be laden, &c., which goods are valued at $2500, — 
 the words quoted being WTitten, — was a policy on profits, though 
 the valuation seems to refer more directly to the goods.-^ The 
 written part of the policy controls the printed, and here the insur- 
 ance by the written part was expressly upon profits. 
 
 A policy '• upon goods, and also upon the body of the ship E., 
 the said ship, goods, and merchandises, for so much as concerns 
 the assured, by agreement between the assured and assurers, are, 
 and shall be, on profits," — the words "on profits" being written, 
 and the rest of the description printed, — was decided to be a 
 policy on profits. And Lord Ellenborough said, " Are profits 
 any thing more than an excrescence upon the value of the goods 
 beyond the prime cost ? " ^ 
 
 It is said in one case to have been the practice in Philadelphia 
 to insure profits under the denomination of " goods." " 
 
 A right to a certain per cent., proportion, or share of a cargo as 
 commissions on profits, or instead of freight, is covered under the 
 description of " property." ^ 
 
 to exelmle the risk on deck. The pro- 2 Lucena v. Craufurd, 5 Bos. & P. 
 
 vision more needed is one to admit and 269, 31.5. 
 
 regulate the liability, instead of attempt- 3 Wright v. Pole, 1 Ad. & E. 621. 
 
 ing to avert it, since it is desirable to * Niblo t'. North American Fire Ins. 
 
 make the rules of indemnity as broad Co. 1 Sandf. N. Y. 551. 
 
 as they safely can be. ^ Mumford v. Hallett, 1 Johns. N. Y. 
 
 1 As to such a policy being void by 433. 
 Stat. 19 Geo. II. c. 37, § I, see Smith ^ Eyre v. Glover, 16 East, 218. 
 V. Reynolds,! Hurlst. & N. Exch. 221 ; ' Prichct r. Ins. Co. of North Amer- 
 
 38 Eng. L. & Eq. 292. ica, 3 Yeates, Penn. 461. 
 
 8 Holbrook v. Brown, 2 Mass. 280 ;
 
 240 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 SECTION IV. THE SHIP. 
 
 463. In some American ports ^ the same printed form of policy- 
 is used for ship, cargo, and freight, by filling the blanks with the 
 specification of the subject to be insured. The ship, freight, cargo, 
 and profits may, accordingly, be insured for the same party in 
 one policy. But if only the ship or cargo is insured, many of the 
 provisions in the printed forms will be wholly inapplicable. 
 
 In most American ports, two distinct printed forms are used, 
 one for the vessel, the other for the cargo ; and, by some compa- 
 nies, a third form is used for freight. Other distinct forms are 
 again in use for steamboats, canal-boats, flat-boats, &c. 
 
 In a distinct common form for the vessel, before the blank 
 space for its name and description, are inserted the words " upon 
 the body, tackle, apparel, and furniture, of" the ship, brig, &c., 
 " called," &c., or other equivalent specifications. This is a part 
 of the time-honored enumeration in the English policies, namely, 
 " upon the body, tackle, apparel, ordnance, munition, artillery, 
 boat, and other furniture of the good ship or vessel called," &c. 
 Most American marine policies, however, describe the subject as 
 " the ship, brig-, schooner, Sfc, tI," without more ; and therefore 
 cover what is sig-nified by such a description in such a contract. 
 
 It is well settled that a policy for a commercial voyage on a 
 vessel generally, without any further specification, covers, not 
 only the body, but also the rigging, sails, tackle, boat, armament, 
 and provisions, and all the appurtenances necessary, suitable, or 
 usual, and that may be presumed to belong to a vessel of such 
 description, for the purposes of navigation on a voyage such as 
 that described. The rule is different as to fishing voyages.^ 
 
 Mr. Justice BuUer is reported to have said, " The provisions 
 are no part of the thing insured," meaning the ship ; ^ but he was 
 speaking in reference to the underwriters being liable to pay for 
 those consumed during detention, which they may not be, though 
 the provisions constitute a part of the subject under the policy. 
 The consumption of provisions is usually only a part of the 
 
 Wiggin V. Mercantile Ins. Co. 7 Pick. 2 See infra, sect. 6. 
 Mass. 271 ; supra, No. 455. 3 i Term, 127; Eden v. Pole, id. 
 
 ' Boston. 132, n.
 
 SECT. IV.] THE SHIP. 241 
 
 ordinary expense of navigation, and is no more a subject of 
 indemnity than ordinary wear and tear and decay of the vessel. 
 
 Lord Mansfield says : " In a policy on a ship, the insurance is 
 on the body of the ship, tackle, and furniture : " ^ 
 
 Lord Ellenborough : " The hull and outfits are both protected 
 by insurance on the ship : " ^ 
 
 Weskett : " The outfits comprehend sails, cordage, provisions, 
 armament, and ammunition." ^ 
 
 In Lord Kenyon's time, the assured, in a policy on the ship 
 and furniture, recovered for a loss of the tackle and provisions.* 
 
 Lord Ellenborough says : " As far as the outfit consists of 
 provisions put on board for the use of the crew, they are covered 
 by an insurance on the ship, being in fact part of the necessary 
 furniture, stores, and equipment of every ship proceeding on a 
 voyage." ^ 
 
 Emerigon says, that the rigging and boat are covered by a 
 policy upon the ship.*^ 
 
 In the United States the construction is the same. 
 
 464. It was held by Lord Lyndhurst, and the other judges of 
 the English Court of Exchequer, that, under a policy upon " the 
 ship, tackle, apparel, ordnance, munition, boat, and other furni- 
 ture," the boat slung npon the quarter is covered, that beinw the 
 usual manner of carrying the boat on the voyage insured, and 
 that evidence of a usage that the boat was not covered by the 
 policy was inadmissible, as being inconsistent with the policy.^ 
 
 465. The question has been made in Massachusetts, whether 
 the description, ^^ the ship," covers the boat slung at the stern 
 davits. 
 
 The real question here is, not whether the boat is covered 
 under this description as part of the outfit, for of this there is 
 no doubt, but whether the carrying of the boat at the stern is a 
 proper way of carrying it; or, in other words, whether the carry- 
 ing it in this way is an enhancement of the risk, like carryino- 
 goods on deck, and so in the nature of a deviation, which suspends 
 
 1 Robertson v. Ewer, 1 Term, 127. 5 Hill v. Patten, 8 East, 373. 
 
 '■^ Forbes t'. Aspinwall, 13 East, 323. 6 Vol. i^ p. 179^ c. 4, s. 7. 
 
 3 Title, Outfit, p. 382. See also ' Blackett v. Royal Exch. Ass. Ca. 
 
 p. 433, tit. Provisions. 2 Crompt. & J. Exch. 244. 
 ^ Brough V. Whitmore, 4 Term, 206. 
 
 VOL. I. 21
 
 242 DESCRIPTION OP THE SUBJECT. [CHaP. V. 
 
 the risk on the boat as it does on goods, while carried on deck. 
 Whether this is the result in respect to the boat depends on this 
 being a proper or usual way of carrying it. The usage, and with 
 it the rule, may be different in respect of different species of ves- 
 sels, or different voyages. In the Massachusetts case referred to, 
 the witnesses differed as to the usage, and as to its being safe and 
 proper to carry the boat at the stern ; but as it did not appear 
 from the testimony that it was unusual, or an extraordinary en- 
 hancement of the risk, it was ruled that the boat so carried was 
 covered by the policy.^ 
 
 That is to say, if the carrying of the boat so stung- is usual 
 under like circumstances, or if it does not enhance the risk of the 
 boat, and that iinnecessarily, it is still covered under a policy on 
 the " ship^'' as one of its appurtenances. If the exigencies of the 
 service require the boat to be so carried, there is no need of 
 resort to usage. 
 
 466. A policy on the ship covers not only the ship as it may 
 be at the time of the commencement of the risk, but also as it 
 may be cdtered by repairs? 
 
 The question, however, as to the alteration of the subject so as 
 to change the risk, will be open to consideration in this case, as 
 well as under a policy on a house. 
 
 467. Whether the interest of the mortgagee of a ship is covered 
 by insurance of the ship declared to be " on bottomry? " 
 
 Insurance on the interest of a mortgagee of a ship, declared in 
 the policy to be " on bottomry," was held by the English Common 
 Pleas not to cover the interest of the assured, though the insur- 
 ance was also expressed in the policy to be on the body and tackle 
 of the ship, which, if this part of the description was considered 
 to be of force, and not cancelled by the expression " on bottomry," 
 seems to have been sufficient, since a mortgagee may insure the 
 subject generally, without specifying his interest.^ 
 
 1 Hall V. Ocean Ins. Co. 21 Pick. Ins. 3tl ed. London, p. 367, decided, as 
 Mass. 472. Mr. Justice Parke says, wlien Lord 
 
 2 12 East, 565; 4 Taunt. 367. Kenyon •' was new in his office." But 
 
 3 Simonds v. Hodgson, 6 Bingh. 114. tlie point in Walpole v. Ewers seems to 
 Mr. Justice Parke puts the decision be diilerent from that in Simonds v. 
 
 upon the authority of Power v. Whit- Hodgson ; nor does it very distinctly 
 luore, 4 Maule & 8. 141, in opposition appear that Power v. Whitmore pre- 
 to that in \Vali)ole v. Ewer, Marshall, sented the same point.
 
 SECT, lY.] THE SHIP. 243 
 
 The same case came before the King's Bench on error/ where 
 the judgment of the Common PJeas was reversed, and the descrip- 
 tion of the subject in the policy held to be good. But this judg- 
 ment was given upon a different construction of the instrument 
 on which the insurable interest depended. Lord Tenterden says, 
 that the words of the instrument were : '• I bind myself, my ship 
 and tackle," &c., to pay the sum borrowed, with tw^elve per cent, 
 bottomry premium, in eight days after my arrival at the port of 
 London. We are of opinion that the words ' my arrival ' must be 
 understood to njean ' my ship's ' arrival." Accordingly, the court 
 thought that the instrument was strictly a bottomry bond. 
 
 Supposing the instrument to have been a mortgage, and not a 
 bottomry. Lord Tenterden said he doubted whether such an in- 
 strument would answer the description of the interest in the pol- 
 icy. Accordingly, his opinion coincided with that of the Com- 
 mon Pleas in the doctrine, that the interest of a mortgagee is not 
 covered by the term " bottomry." 
 
 This is a case in which the misdescription of the interest caimot 
 have happened but through mistake. It is to be borne in mind, 
 that the court must make the same rule for both parties, and de- 
 cide for a return of premium, where there is no loss, in every case 
 where they would decide against a claim for a loss if one had hap- 
 pened. The mistake, supposing the insurance to be held to be 
 valid, cannot prejudice the underwriter, piovided the subject, the 
 interest in which is proposed to be insured, can be clearly iden- 
 tified by the description. The court will, for these reasons, be 
 justified in leaning in favor of the validity of the contract, and, 
 whether the claim be for a return of premium or for a loss, wdll be 
 inclined to scan the policy very closely, for grounds on which to 
 countervail the misdescription. 
 
 468. Charts, one compass or more, and a chronometer, if be- 
 longing to the shipowner and requisite for the ship and the voy- 
 age, are properly a part of the ship ; and they are allowed as such 
 in some ports at least.^ 
 
 1 3 Barnew. & Ad. 50. so, it seems, in Hamburg. Beiiecke, Tn- 
 
 2 They are so allowed in Boston ; not demnity, ed, 1824, p. 459.
 
 244 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 SECTION V. FREIGHT. 
 
 469. Freight, in the sense of earnings of the vessel, is so com- 
 7nonly insured eo nomine, that jurisprudence rarely presents the 
 question what other term, or what phrase, will be equivalent. The 
 usual inquiry is. What interest is covered under this term ? 
 
 470. A policy on freight generally, for successive passages or 
 for a certain period, usually applies to whatever amount oi freight 
 may he pending at different times successively} 
 
 All. Where the owner of a ship is also the owner of the cargo, 
 a policy on ^'■freight " ivill cover the interest on the transportation 
 of the cargo on the voyage, namely, that which he has in placing 
 his goods in another market.^ 
 
 472. A policy on freight " at and from'''' a place does not cover 
 freight for bringing a cargo to that place. 
 
 Freight being insured "at and from Riga in continuation" of 
 a former policy on freight " to the Baltic," &c., the ship was 
 seized at Riga before the outward cargo was discharged, and 
 accordingly the freight outward was lost. Lord EUenborough 
 ruled that the description did not apply to the freight lost, but to 
 that of the return cargo.^ 
 
 473. Insurance on '•'■freight''^ generally, to a certain port, is 
 valid, though the cargo is destined to, and the freight payable only 
 on arrival at, a subsequent j)ort. 
 
 Where an insurance was "on freight of the ship Bethiah, at 
 and from Bourdeaux to Virginia," and the goods were to be car- 
 ried in a ship from Bourdeaux to St. Domingo, by the way of 
 Norfolk in Virginia, Lord Kenyon instructed the jury, that the 
 underwriters had a right to expect that the goods, upon which the 
 freight was payable, were consigned to Virginia, and that the 
 
 1 Hu<rg V. Augusta Ins. Co. 7 How. total loss of freight pending, though 
 
 595. See, as to the amount of the insur- some has been already earned. Willard 
 
 able interest to which a policy applies, v. Millers Ins. Co. 30 Mo. 35. 
 
 Davy V. Ilallett, 3 Caines, N. Y. 16, and 2 Flint v. Lemyng, 1 Barnew. & Ad. 
 
 other cases cited infra, c. 14, s. 1, and 45 ; 1 Lloyd & W. Cas. 257 ; Wolcott v. 
 
 Palmer v. Blackburn, and other cases Eagle Ins. Co. 4 Pick. Mass. 429 ; Dumas 
 
 cited in the same chapter, s. 2, Ins. Co. v. Jones, 4 Mass. 647. See also Hart v. 
 
 v. Mordecai, 22 IIow. Ill ; and insurance Delaware Ins. Co. 2 Wash. C. C 346. 
 
 against total loss only is held to cover 3 Bell v. Bell, 2 Campb. 475.
 
 SECT. V.J FREIGHT. 24.F, 
 
 freight payable, namely, that from Bourdeaux to St. Domingo, 
 being different from the freight described in the policy, the assured 
 was not entitled to recover any thing.^ But of what importance 
 could it be to the insurers to be informed to what place the goods 
 were to be carried from Norfolk, or in what ship? Lord Ellen- 
 borough said, this opinion " was inconsistent with all other cases," 
 and accordingly, upon a policy on freight " from St. Ubes to 
 Portsmouth," the vessel having taken cargo at St. Ubes for 
 Gothenburg, with the intention of putting into Portsmouth on 
 the voyage, he said, " The only question is, whether the freight 
 of a voyage may be insured a part of the way. This was a voy- 
 age to Gothenburg by the way of Portsmouth, and the freight 
 was to be earned at Gothenburg. The assureds did not deceive 
 the underwriter when they insured their freight to Portsmouth ; 
 they did not tell him that the freight was to be earned there, but 
 only that it was an insurance on freight in that voyage." - And 
 judgment was given for the assureds. 
 
 So also under insurance on freight from Teneriffe to New 
 York by way of Cuba, the freight of goods taken at Havana was 
 covered.'' 
 
 474. A policy on freight at and from one port to another, with 
 leave to take goods at intermediate ports, covers the freig-ht of the 
 goods so taken. 
 
 Insurance being made upon freight " from Jamaica to the 
 United Kingdom, with leave to call at any of the West India 
 islands to take on board goods," the description was held to 
 apply to the freight of goods taken on board at Havana.^ 
 
 475. The description ^^ freight on board" is equivalent to that 
 of ^^ freight " merely : 
 
 Held, that " freight on board " attached to freight under a con- 
 tract of affreightment as soon as the vessel sailed from Cadiz, on 
 the voyage insured, for Sicily, where the cargo was to be taken, 
 in the same manner as if the policy had been on " freight," with- 
 out more.^ 
 
 1 Murdock v. Potts, Park. 451 ; "* Barclay v. Stirling, 5 Alaule & 
 Marsh. 326. S. 6. 
 
 2 Taylor v. Wilson, 15 East, 324. ^ Robinson v. Manufacturing Ins. Co. 
 
 3 Hughes V. Union Ins. Co. 3 AVheat. 1 Mete. Mass. 143. 
 159. 
 
 21*
 
 246 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 476. The rule as to the description of the freight of articles 
 on deck, is the same as in reference to the articles themselves.^ 
 
 If the articles carried on deck would not he covered under the 
 general description " carg-o" " goods," " merchandise," " property," 
 ^c, the compensation for so transporting them will not, in the 
 same circumstances, be covered under the general description 
 '' freight:'^ 
 
 477. The assignee affreight as collateral security, or on other 
 valuable consideration, may effect insurance upon it generally, 
 eo nomine.^ 
 
 478. An agreement to receive a certain proportion of the cargo 
 for transporting it, in lieu of freight, or as freight, gives an insura- 
 ble interest in such proportion of the cargo, which will be covered 
 under the description " property on board : " 
 
 So held in respect of a cargo of lumber.* 
 
 479. The freight of live animals, whether carried above the 
 upper deck, or between decks, ivill not be covered under the gen- 
 eral description of '■'• freight,^^ the insurers having no notice of the 
 species of cargo. It was so held under a time policy.^ 
 
 480. Whether a charterer, who is at the risk of the freight, 
 can cover his interest as '■'■freight''^ generally, without specifying 
 it? 
 
 It was held in the {Supreme Court of New York, Kent, C. J., 
 Thompson, Spencer, Van Ness, and Yates, Justices, that the inter- 
 est was not covered, on the grounds that it was not " technically 
 freight," — "was founded entirely upon the agreement," — that 
 giving it effect "would be an imposition upon the insurer," unless 
 the circumstances were disclosed, — and that "the owners have a 
 stronger interest in the equipment and management of the vessel 
 than a stranger having no such stake in the voyage." ^ 
 
 These grounds are by no means satisfactory, and the decision 
 
 1 See sect. 1, supra. Mass. 429. See also Alle<;re's Adm'rs 
 
 2 Adams v. 'Warren Ins. Co. 22 Pick. v. Maryland Ins. Co. 2 Gill & J. Md. 
 Mass. 163. 136 ; S. C. 6 Har. &. J. Md. 408. 
 
 3 Paradise i'. Sun Mut. Ins. Co. 6 La. 6 Riley r. Delafield, 7 Johns. N. Y. 
 Ann. 596. 522, opinion " Per Curiam." See also 
 
 4 Wijxgin V. ^Mercantile Ins. Co. 7 ]Mellen v. National Ins. Co. 1 Hall, 
 Pick. Mass. 271. N. Y. 452. 
 
 5 Wolcott V. Eagle Ins. Co. 4 Pick.
 
 SECT, v.] FREIGHT. 247 
 
 is opposed to divers others. It has been held that a part-owner 
 who charters the whole vessel can insure the whole freight gen- 
 erally, without any specification of his interest;^ and that a part- 
 owner who agrees to take the whole ship at his own risk, and 
 make insurance, may insure it generally, without specifying his 
 interest; 2 and that charterers having no ownership, who have 
 agreed to navigate and insure the ship at their own risk, may so 
 insure it.^ 
 
 The doctrine,* that an assignee of a subject for a valuable con- 
 sideration, or by having a mortgage or any lien, at least if ac- 
 companied by possession, may make a valid insurance generally, 
 without specifying his particular interest, leads to the same re- 
 sult. 
 
 This doctrine, and the cases cited above, certainly authorize 
 the proposition, if any such authority is needed, that a charterer, 
 who is the only person interested in the freight or a part of it, or is 
 bound by his agreement to insure it, and make it good at all events, 
 may insure it generally, to the amount of his interest, without par- 
 ticularly specifying it. 
 
 481. It has been distinctly held in Massachusetts, that the char- 
 terer may insure the amount of freight ivhich is on his account 
 and risk, under the denomination of ^^ freight;" and at the same 
 time the oicner may insure his interest in the freight by the same 
 description,^ and this doctrine is supported by the cases above 
 cited. 
 
 An insurance was made " at and from New York to the port 
 of discharge in the Mediterranean, upon the freight of goods 
 laden or to be laden on board the brig Delia." The assured had 
 sold the vessel with the reservation of the right to receive the 
 freight for the voyage insured, which seems to make his interest 
 precisely tiiat of a charterer who agrees to pay for the use of the 
 vessel at all events. 
 
 482. Money advanced by the charterer to the shipowner, on ac- 
 count of freight, is sometimes insured under the description of 
 
 1 Taylor v. Wilson, 15 East, 324. 3 Bartlett v. Walter, 13 Mass. 267. 
 
 2 So held by Parsons, C. J., and liis 4 Supra, s. 1. 
 
 associates, in Oliver v. Green, 3 Mass. 5 dark v. Ocean Ins. Co. 16 Pick. 
 133. Mass. 289.
 
 248 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 " money advanced " for " sailing charges ;" " on freight," &c.^ If 
 the advance is made on the credit of the shipowner, without any 
 assignment or pledge of freight, or lien upon it for reimburse- 
 ment, it gives no interest in the freight. To connect the advance 
 at all with the freight as a subject of insurance, the reimburse- 
 ment must be in some way, in some degree, subject to the con- 
 tingency of freight being earned. If the charterer, by freight 
 being earned, either by carrying his own goods or those of other 
 shippers, is to become liable to pay freight, that is, in effect, is to 
 have a fund in his own hands out of which to reimburse himself 
 for his advances, then he has an interest in the freight to that 
 amount. And if this means of reimbursement arises on his char- 
 ter-party or other contract, then the interest will range itself un- 
 der some of the heads of mortgage, assignment, lien with control 
 and disposition of the freight when realized, or trust, already con- 
 sidered in the first section of this chapter. If he has a lien, he 
 may insure freight eo nomine, to the amount of his lien,^ or as 
 "freight advanced."^ 
 
 If the charterer is to lose the amount advanced in case of 
 freight not being earned, then he has that amount of freight 
 wholly at his risk, and may insure freight to such amount, eo 
 nomine.^ 
 
 483. If the charterer is liable^ in case of freight being earned, 
 to pay a certain sum to the shipowner, and entitled to receive or 
 realize a greater sum, then his absolute interest in freight is only 
 the excess of the amount to be received over what he is liable to 
 pay. Such excess, I conceive, is all that he could cover under a 
 general insurance on freight eo nomine, or by any other descrip- 
 tion. 
 
 If the amount to be paid by the charterer to the owner is equal 
 to that which he will receive, both depending on the same con- 
 tingencies, the charterer has no insurable interest in freight, as 
 he can neither gain nor lose by its being earned or lost.^ 
 
 i Etches V. Aldan, 1 Maun. & R. case of freight not being earned, see 
 
 157. Saunders v. Drew, 3 Barnew. & Ad. 
 
 2 llobbins i'. New York Ins. Co. 1 445 ; Anonymous, 2 Show. 283. Per 
 Hall, N. Y. 325. Saunders, C. J., D. Silvale v. Kendall, 
 
 3 Sanson v. Ball, 4 Dall. 459. 3 Maule & S. 37. 
 
 4 On the question of advances on ac- ^ Cheriot v. Baker, 2 Johns. N. Y. 
 count of freight being reimbursable, in 346.
 
 SECT. VI.] SUBJECT OF FIRE POLICIES. 249 
 
 484. It is indifferent, in reference to the description as above, 
 whether the interest in freight is in the whole, or only a certain 
 proportion of it.^ 
 
 SECTION VI. SUBJECT OF FIRE POLICIES. 
 
 485. Fire is one of the various* risks insured against in marine 
 policies, on interests in the ship, freight, or cargo. 
 
 Policies against fire on land usually insure against no other 
 risk, and the insurance is mostly upon buildings and their fixed 
 or movable contents. 
 
 The terms "goods," "wares," and "merchandise,"^ are com- 
 mon in the description of subjects, in both species of policies ; 
 the other terms of description are mostly different. The princi- 
 ples of construction as to the description are common to fire and 
 marine policies. 
 
 486. The subject must be so described that it caii be identified. 
 Where it cannot be determined to which of two buildings a fire 
 
 policy is applicable, it is void for uncertainty .^ The surrounding 
 circumstances and other evidence may doubtless be resorted to 
 in case of this ambiguity, upon the principles and subject to the 
 rules applicable to other written contracts.'* A policy on a build- 
 ing already insured and an addition not covered by the prior pol- 
 icy without distinguishing between the two, applies to the addi- 
 tion and the excess of the old over prior insurance.^ 
 
 487. One part of the description may be superseded by another, 
 if the subject is thereby clearly identified.^ 
 
 488. It has been held in Kentucky and Louisiana, that a hus- 
 band, being entitled to the rents of Ids ivife^s real estate for life, 
 and having the right of tenancy by the courtesy in case of his 
 
 1 Sanson v. Ball, 4 Dall. Penn. 459. 4 Supra, No. 126, 130, 131, 132, et 
 
 2 Articles kept for use in a building seq. 
 
 are included in "property," but not in 5 Croniie v. Kentucky Ins. Co. 15 B. 
 
 "merchandise." Burgess i-. Alliance, Monr. Ky. 432. 
 
 Ins. Co.; Same i'. New England Ins. <5 Supra, No. 12G, 130, 131, 132, et 
 
 Co. 10 All. Mass. 221. seq. 
 
 3 Heath V. Franklin Ins. Co. 1 Cush. 
 Mass. 257.
 
 250 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 surviving her, may make a valid insurance against fire upon it, 
 to its full destructible value, describing^ it as " his '' estate, with- 
 out specifying his interest, or the capacity in which he insures.^ 
 The ground on which the decision must be supported apparently 
 is, that the husband is trustee, and it is his duty to preserve and 
 maintain the estate, and though he has not the absolute legal 
 title, he may, in respect of insurance, as well as other means of 
 maintaining the estate, treat it as a legal trust. If he is not far 
 advanced in life, his actual interest and contingent expectation 
 may be nearly or quite equal in value to the destructible part of 
 the property. 
 
 489. The terms and phrases " stock," " stock in trade," ^^furni- 
 ture," " household furniture," and the like, are construed in refer- 
 ence to the description of buildings in which it appears by the 
 policy to be insured, and the business or uses referred to in de- 
 scribing the subject. 
 
 The description " stock in trade," in a specified business, in- 
 sured against fire, includes, besides the materials, every thing 
 necessary for carrying on that business.^ 
 
 The stock of a mechanic includes his tools and implements ; 
 that of a merchant will differ materially from that of a farmer; 
 that of a baker includes his bread-troughs, benches, pans, stoves, 
 scales, weights, sieves, baskets, &c.^ 
 
 A coach-plate maker and cow-keeper was insured on his stock 
 in trade, household furniture, "linen," wearing apparel, and plate. 
 His house was burnt, and with it a large quantity of linen-dra- 
 pery goods, purchased just before on speculation ; and the ques- 
 tion arose whether the linen-drapery was comprehended in the 
 description. Lord Ellenborough said to the jury, " I am clearly 
 of opinion that the word linen in the policy does not include arti- 
 
 1 Clarke v. Firemen's Ins, Co. 18 La. " Starch manufactory" covers the fix- 
 431; Franklin Ins. Co. v. Drake, 2 B. tures requisite for ihe business; Peoria 
 Monr. Ky. 51. Ins. Co. v. Lewis, 18 111. 553. " Watches, 
 
 2 "Stock of a rope-maker" covers watch trimmings, &c.," covers jewelry 
 stock to be manufactured, not that usually kept in such a store ; Crosby v. 
 made up. Wall v. Howard Ins. Co. Franklin Ins. Co. 5 Gray, ]\Iass. 504. 
 14 Barb. K Y. 383. "Steam saw-mill" 3 Moadinger v. Mechanics' Fire InS. 
 includes the machinery; Bigler v. New Co. 2 Ilall, N. Y. 490. 
 
 York Ins. Co. 20 Barb. N. Y. G35.
 
 SECT, yi.] SUBJECT OF FIRE POLICIES. 251 
 
 cles of this description. Here we may apply noscitur a sociis ; 
 the preceding words are ' household furniture,' and the succeed- 
 ing, 'wearing apparel;' the linen must be household linen or 
 wearing apparel." ^ 
 
 A fire policy upon " stock, household furniture, and wearing 
 apparel, in a grocery and dwelling-house," was held by the Su- 
 preme Court of Ohio to cover wearing apparel intended for family 
 use, and stock exposed for sale, but not smuggled articles of linen 
 secretly stowed away, and not openly exposed for sale, no such 
 secreted articles having been mentioned to the insurers, or to their 
 agents, at the time of examining the premises previously to mak- 
 ing the policy .2 
 
 A policy on furniture in a dwelling-house is applicable to arti- 
 cles stowed in the garret for want of room in other parts of the 
 house, and not used there,h\it brought down and used occasionally 
 in the lower apartments.^ 
 
 Where M. was insured against fire, " on goods, being stock in 
 trade on consignment, or held in trust," the assured was member 
 of the firm of T. & M., and the goods in question were purchased 
 by that firm, for the price of which T. made his notes payable to 
 M., by whom they were indorsed and paid, and passed to his 
 credit in the books of the firm. They were purchased on the 
 joint account of T. & M., to be sold by T. for their joint ac- 
 count, M. being largely in advance to the concern on account of 
 the purchase. The Supreme Court of Louisiana were of opin- 
 ion, that the goods were covered under the description of " stock 
 in trade," in a policy effected in the name and on account of M.^ 
 
 A policy in favor of a ship-builder on his stock, consisting of 
 ship-timber, including planks, futtocks, knees, locust, standards, 
 and stagings, contained in a yard bounded by " certain " specified 
 streets, is held by the Supreme Court of New York to cover locust 
 capstans lying on the sides of one of those streets outside ot the 
 ooundary line of the yard proper, as distinguished from the street, 
 a usage being proved so to place timber on a street adjoining a 
 ship-yard.^ 
 
 ' Wakhhorn v. Langford, 3 Campb. •* Millauilon v. Atlantic Ins. Co. y 
 
 422. La. 557. 
 
 2 Clary v. Protection his. Co. 1 5 Webb v. National Fire Ins. Co. 2 
 Ohio, 227. Sandf. N. Y. 497. 
 
 3 Clarke v. Firemen's Ins. Co. 18 
 La. 431.
 
 252 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 A policy in favor of a railroad company on cars " on the line 
 of their road and in actual use" covers cars left in the ordinary 
 course of business on tracks connecting but not owned by the 
 railroad.^ 
 
 490. The description ^^ goods held in trust" iviU not be con- 
 strued to apply merely to goods so held in the most strict meaning 
 of that term. 
 
 A policy with that description, effected by a connmission mer- 
 chant, was held to apply to his interest, on account of his ad- 
 vances and commissions, in goods consigned to him.^ 
 
 491. A fire policy, no less than a marine one, is often applica- 
 ble to a subject that is changing in value,^ or in the specific arti- 
 cles constituting it. 
 
 A policy, for a long period upon goods in a shop, applies to the 
 goods successively in the shop, from time to time.* 
 
 A fire policy on " a bark now being built, " identifying it, ap- 
 plies to it in whatever state of progress in building.^ 
 
 492. The term ^^ house" in a policy of insurance, is held in 
 Louisiana to include out-buildings appurtenant to the house.^ 
 
 So the description " the building on M. street known as D.'s 
 car-factory " may be shown to include a wing in the rear, though 
 there is usually no communication through the wall.''' 
 
 493. A policy on an unfinished house does not cover wood- 
 work prepared for it and deposited in an adjoining building.^ 
 
 So, a policy upon " a bark now being built" does not cover 
 spars, blocks, and other articles made for it, and ready to be 
 attached to it, remaining in the yard from which the bark was 
 launched, and near which it lies.^ 
 
 A Fitehburg R. R. Co. v. Charlestown 6 Workman v. Ins. Co. 2 La. 507. 
 Ins. Co. 7 Gray, Mass. 64. 7 Blake v. Exchange Ins. Co. 12 
 
 2 Parks V. General Interest Ins. Co. Gray, Mass. 265. 
 
 5 Pick. Mass. 34. See also Millaudon 8 Ell maker's Ex'rs v. Franklin Fire 
 
 V. Atlantic Ins. Co supra. Turner v. Ins. Co. 5 Penn. St. 183. An addi- 
 
 Stctts, 28 Ala. 420. tion intended and included in the sur- 
 
 3 As insurance upon rent : Cushman vey is covered, when built. Perry Ins. 
 V. North Western Ins. Co. 34 Me. 487. Co. v. Stewart, 19 Penn. St. 45. 
 
 4 Lane v. Maine Fire Ins. Co. 12 ^ Mason v. Franklin Ins. Co. 12 
 Me. 44. Hooper v. Hudson River Ins. Gill & J. Md. 468. Hood v. Manhattan 
 Co. 15 Barb. N. Y. 413. Ins. Co. 11 N. Y. 532, reversing the 
 
 s Mason v. Franklin Fire Ins. Co. case below; 2 Du. N. Y. 191. 
 12 Gill & J. Md. 468.
 
 SECT. VII.] SUBJECT OP FISHING VOYAGES. 253 
 
 49i. Under a policy upon a " building and fixtures, " parol 
 evidence is not admissible to prove that it was intended to 
 cover furniture.^ 
 
 495. A policy by lessees on a building occupied for a specified 
 business^ does not entitle them to indemnity for loss of the profits, 
 while the damage by fire is repairing. 
 
 So held in respect of buildings occupied as an inn.^ 
 
 SECTION VII. SUBJECT OF FISHING VOYAGES. 
 
 496. The subjects in fishing voyages are different from those 
 in mercantile voyages. 
 
 The ship, eo nomine, does not include the outfits. The earn- 
 ings of the ship, instead of being freight, are, in the American 
 fisheries, a certain proportion of the " catchings," " takings," 
 "fare," "stock," "cargo." 
 
 The men, instead of wages, are entitled to a certain propor- 
 tion of the proceeds of the enterprise, under the denomination 
 of " shares " or " lays." 
 
 The several subjects are accordingly described in policies of 
 insurance on these voyages, partly in different phraseology, and 
 partly in the sa7ne terms with different meanings from those in 
 reference to commercial voyages. 
 
 497. The lines and fishing tackle of a vessel employed in the 
 Greenland fishery are not comprehended under a policy on the 
 " ship, tackle, and furniture," ^ nor that of " goods," nor " cargo," 
 but are comprehended under " outfit,^'' which, says Lord Ellen- 
 borough, " in a fishing voyage principally consists in the appa- 
 ratus and instruments necessary for taking fish, seals, &c., and 
 the disposing of them when taken in such manner as to bring 
 home the oil or other produce of the adventure." ^ 
 
 In the United States the outfits for a fishing voyage are a dis- 
 tinct subject from the ship, and are generally described as " out- 
 fit," which, in that kind of fishery, according to the usage of New 
 
 1 Holmes v. Charlestown Mar. & 3 Hoskins v. Pickergill, 3 Dou"-]. 
 Fire Ins. Co. 10 Mete. Mass. 211. 222; Park, 97; Marshall, Ins. 2d ed. 
 
 2 Wright V. Pole, 1 Ad. & E. 621 ; 727. 
 
 Wright V. Sun Fire Office, 3 Rawie 4 IY\\\ v. Patten, 8 East, 373. 
 & Mann. 819. 
 
 VOL. I. 22
 
 254 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 Bedford, comprehends, besides the implements and apparatus, and 
 certain supplies taken on board for prosecuting the voyage, one 
 quarter of the catchings in substitution for, and the replacing of, 
 outfits consumed,^ being a general rule for keeping the amount 
 insured by a policy on the interest filled up, so that the assured, 
 as nearly as may be by any general rule on the subject, have an 
 amount of interest covered by the policy proportional to the pre- 
 mium. 
 
 In the American fisheries for cod and mackerel, it seems that 
 the provisions are supplied by the men for themselves, under the 
 description "small general," so that they are not covered by a 
 policy on the ship or its outfit. 
 
 SECTION VIII. REINSURANCE. 
 
 498. Wlieiher an insurer may effect reinsurance on the insured 
 subject g^enerally, unthont specifying^ his interest in the policy ? 
 
 It was formerly held in Massachusetts, that in reinsurance the 
 interest must be specifically described to be that arising on an 
 insurance of the same subject by the assured in a former policy. 
 James Prince, having underwritten one policy on the Columbia 
 and cargo, another on property on board of the Columbia, and 
 another on effects on board of the same vessel, was reinsured on 
 " the Columbia and cargo," with a provision that the reinsurers 
 should indemnify him against all losses on the same amount 
 underwritten by him on a former " policy." It was held that the 
 reinsurance extended to but one of the original policies, which 
 was the policy on " the Columbia and cargo," as only this one 
 answered to the description in the policy of reinsurance.^ 
 
 Mr. Christian says, " A reassurance must be expressly men- 
 tioned to be a reassurance in the policy.^ But the case cited by 
 him* does not appear fully to support the position. 
 
 1 Mac)' V. Whaling Ins. Co. 9 Mete, salvage to the underwriters. Mutual 
 
 Mass. 354. Under this stipulation it is Mar. Ins. Co. v. Munro, 7 Gray, Mass. . 
 
 held in Massachusetts that as long as 246. 
 
 one fourth of the catchings remain on ^ Merry r. Prince, 2 Mass. 176. 
 board, tlie catchings sent home are not '^ 2 Blackstone Conim. 460, n. 
 covered by the policy and are not 4 ^ndree y. Fletcher, 2 Term, 161.
 
 SECT. VIII.] REINSURANCE. 255 
 
 The opposite doctrine has been adopted in New York, where it 
 has been held, that an underwriter may effect reinsurance directly 
 on the property insured by him against the risks he has assumed, 
 without specifying that it is a reinsurance, but describing the 
 property as in an original insurance.^ 
 
 This question has not arisen directly in England, but the deci- 
 sion of analogous cases there favors the doctrine adopted in New 
 York. Common carriers, in respect of certain risks assumed by 
 them, stand in the position of underwriters, and it has been held in 
 England, that they may make a direct insurance on goods carried 
 by them, against the risks which they assume as carriers.^ 
 
 So where the assured transferred his ship, agreeing to insure it 
 for the voyage to a certain amount, it was held, that he still had 
 an insurable interest that was covered by the policy on the 
 subject itself; and this, by the terms of his transfer, was, in effect, 
 a reinsurance.^ 
 
 Other cases of a general insurance on indirect interests have 
 been before cited to the same effect.* 
 
 The reason of getting reinsurance may be that the underwriter 
 thinks unfavorably of the risk, so may the original assured, and 
 it does not appear to be any greater objection to a general insur- 
 ance in the former case than in the latter. In either case, that of 
 the reassured, as well as the assured, the insured party is bound 
 to disclose to the underwriter all the material unfavorable facts 
 which are not presumed to be known to him, but is not bound to 
 declare his own opinion of the risk. 
 
 I therefore conclude the better doctrine to be, that an assured 
 may effect reinsurance directly on the insured subject against the 
 risks or any part of the risks insured against in the original policy^ 
 without any disclosure in the policy, or otherwise, that it is a 
 reinsurance. 
 
 499. But a practical objection may arise unless a reinsurance 
 is expressed to be such in the policy, especially if made in the 
 common form of either a marine or fire policy, on account of the 
 
 1 N. Y. Bowery Fire Ins. Co. v. 2 Crowley v. Cohen, 3 Barnew. & 
 N. Y. Fire Ins. Co. 17 Wend. N. Y. Ad. 4 78. See supra, No. 424. 
 359. 3 Keed v. Cole, 3 Burr. 1512. 
 
 4 Supra, Nos. 419, 420, et seq.
 
 256 DESCRIPTION OF THE SUBJECT. [CHAP. V. 
 
 usual stipulations in both relative to notice of prior and subse- 
 quent insurance, apportionment of losses, &c.,^ which renders it 
 expedient for both parties that it should be so expressed. 
 
 1 See Hone v. Mutual Safety Ins. Co. 1 Sandf. N. Y. 137 ; Mutual Safety Ins. 
 Co. V. Hone, 2 K. Y. 235.
 
 CHAPTER VI. 
 
 THE PREMIUM. 
 
 AT CERTAIN RATE AMOUNT MUST DEPEND ON AMOUNT AT RISK.^ 
 
 500. The contract of insurance must include a stipulation for 
 the premium, the amount or the rate per cent, of which is always 
 expressed in the policy. As the underwriter in a marine policy 
 on goods or freight is liable to loss and entitled to retain the 
 premium only as far as the subject is put at risk, and it does not 
 appear until the risk has commenced what amount will be effect- 
 ually insured, the policy does not show what amount of premium 
 will be eventually earned. The premium is, therefore, stated in 
 such policies as being at a certain rate per cent. And it is 
 usually so stated in a policy on a ship, though it is a valued one. 
 
 501. The amount intended to be insured appears in some cases, 
 by the policy itself, to be uncertain, as in a policy " on money 
 advanced or to be advanced, for the use of the ship," during an 
 India voyage. ^ 
 
 502. Under a policy upon cargo or freight, on time, or for suc- 
 cessive voyages or passages, it is not unfrequently in contemplation 
 of the parties, that the amount at risk, and covered by the contract, 
 is to vary at successive periods ; in which case the apportionment 
 of premium between the successive stages of the risk is often matter 
 of express stipulation, otherivise it is a question of construction, 
 and if so, usage is regarded. 
 
 Where the insurance was on a cargo, to " be valued as interest 
 should appear," for six months, the value of the cargo at risk 
 during that time varied from 1500 to more than 5000 dollars. It 
 was held, on the ground of a usage to that effect in Philadelphia, 
 that the premium was to be estimated at the specified rate on 
 
 1 See chapter 14. 23 Burr. 17r.'. 
 
 22*
 
 258 THE PREMIUM. [CHAP. VI. 
 
 the value on board at successive periods, and for the time during 
 which it remained on board.^ 
 
 503. In fire policies^ and life policies, the amount at risk and 
 that of the premium are usually specified in the policy at a certain 
 sum, without naming the rate per cent., since, the amount insured 
 being usually fixed and remaining the same, that of the premium 
 which will be due is known at the time of making the contract. 
 
 504. " Hunning;'" or, as they are also called, " open " policies, 
 in reference to " open " accounts, applicable to successive shipments 
 or varying" amounts of a specified kind of subjects, as goods, goods 
 in trust, goods on consignment, goods to be stored in a certain 
 storehouse, from time to time, &c., are not unfrequently made, in 
 which the amount of premium accruing at successive periods will 
 vary with that of the subject.^ In such policies, the rate per cent, 
 of the premium, or some criterion other than the limit of the 
 greatest amount that can be covered, must be stated in the 
 policy, in order to determine how much premium may accrue 
 under it.^ 
 
 The maker of a premium note accompanying an open policy 
 is liable only for premiums on the amount actually insured.* 
 
 505. The premium on the whole amount insured is usually 
 considered to be due on delivery of the policy for the whole voyage, 
 or other period of the risk in a marine policy ; for the whole or a 
 certain period or proportion in a fire policy ; and for one year in 
 advance in a life policy ; though not always then wholly payable. 
 
 In many cases the payment of the premium, either in money 
 or a note, is made a condition precedent to the attaching of the 
 policy.^ 
 
 1 Pollock V. Donaldson, 3 Dall. Penn. waiver of this riglit see Sun, &c. Ins. 
 510. Co. v. Wright, 23 How. 412. 
 
 2 The denomination of "open" pol- 4 Elwell v. Crocker, 4 Bosw. N. Y. 
 icy tends to ambiguity, since it is most 22 ; Lawrence v. McCready, 6 id. 329. 
 frequently applied in another sense, in ^ Wallingford v. Home Ins. Co. 30 
 contradistinction to a " valued " policy. Mo. 46. See Baxter v. Chelsea, &c. 
 
 3 Under a stipulation or custom that Ins. Co. 1 All. Mass. 294 as to the 
 the rate shall be fixed at the time the power of a president, and Sheldon v. 
 risk is declared, it must be fixed before Atlantic, &c. Ins. Co. 2G N. Y. 460 as 
 the policy attaches. Orient, &c. Ins. to the power of a general agent, to 
 Co. V. Wright, 23 How. 401 ; as to a waive such a provision.
 
 CHAP. VI.] THE PREMIUM. 259 
 
 An agreement of a third party to pay,i or of the party himself 
 to do some act,^ will amount to payment so as to satisfy this 
 condition if accepted by the underwriters. A deposit in bank, 
 subject to the order of the underwriters with their or their agent's 
 consent, is sufficient.^ 
 
 A failure to make the stipulated payments at the designated 
 time is generally made to avoid life policies.* Under a condition 
 in a life policy that a failure to pay within thirty days after 
 becoming due, the policy is in force if it is paid within that time, 
 though the insured life may have dropped in the mean time.^ 
 
 A company may be liable when the required payment is not 
 made, if the act of its officers has prevented it.^ 
 
 506. In England, the premium on a marine insurance is jjayahle 
 on demand. The broker^ who effects the policy, generally keeps 
 a running account with the underwriters, and gives them credit for 
 the premiums received or due from the assured^, out of which he 
 pays such losses as accrue on policies put into his hands by the 
 assured to be settled. He has a similar running account ivith the 
 assured, whom he charges with the premiums, and credits with 
 losses. He settles with each from time to time, according to the 
 custom of the place, or agreement. 
 
 507. In England the p)remium on a marine policy is due from 
 the assured to the broker, and from the latter to the underwriters. 
 The broker has an action against the assured for the premium ; 
 and the underwriters against the broker. All other claims and 
 liabilities arising on the policy are between the assured and the 
 underwriters.'' 
 
 1 liouton V. American L. Ins. Co. 25 5 Ruse v. Mutual Benefit L. Ins. Co. 
 Conn. 5i2. 26 Barb. N. Y. 550, and see Simpson v. 
 
 2 Kentucky, &c. Ins. Co. v. Jenks, 5 Accidental, &c. Ins. Co. 2 C. B. n. s. 
 In^. 96. 257. A condition, "annual premium 
 
 3 New York, &c. Ins. Co. v. National, £33 whole term, payable by quarterly 
 &c. Ins. Co. 20 Barb. N. Y. 468. See instalments of £8 bs. each," was held a 
 also Ilallock v. Commercial Ins. Co. 2 condition for quarterly payments. Phoe- 
 Dutch. N. J. 268. nix Ass. Co. v. Sheridan, 8 IIou. L. Cas. 
 
 4 This forfeiture is waived by subse- 745. 
 
 quent acceptance of the premium. Bou- ^ Belleville, &c. Ins. Co. v. Van Win- 
 ton V. American, &c. L. Ins. Co. 25 kle, 1 Beasl. N. J. 333, and see McKee 
 Conn. 542 ; Buckbee v. United States v. Phoenix Ins. Co. 28 Mo. 383. 
 Ins. and Trust Co. 18 Barb. N. Y. 541. "^ For the history of this practice and
 
 260 THE PREMIUM. [CHAP. VI. 
 
 508. Ill the United Slates an insurance broker is not distin- 
 guished from other brokers and agents ; not being himself a jjarty 
 in respect of the premium any more than in respect of any other 
 liability or claim arising on the contract negotiated by him for his 
 principal, unless he becomes so by special agreement. 
 
 Where the assured, at the time of effecting the policy, requested 
 the broker to charge him in account with the premium, Sewall, J., 
 giving the opinion of the court, said, " There can be no reason 
 against the action in the name of the broker, where a note has 
 been given to him, or he has become a creditor of the assured at 
 his request." ^ 
 
 In the absence of any such special agreement, the parties to 
 the policy are such in respect of the premiums. 
 
 509. In England, very tnuch of the marine insurance is done by 
 individual underwriters, ihongh. mutual insurance by shipowners 
 seems to be coming into practice there. Fire and life insurances 
 are done mostly by companies. 
 
 510. In the United Stales nearly the ivhole business of insur- 
 ance of all kinds is done by companies, stock or mutual, and the 
 premium note, where one is given, is made payable to the com- 
 pany, and if negotiable may be assigned by the company, and the 
 assured thereby made liable to pay it to the indorsee, as in the 
 case of an ordinary negotiable promissory note.''' These notes, 
 however, are not generally negotiated, and frequently a right is 
 
 the jurisprudence in reference to it, see Ins. 8th ed. 811. It has been held that 
 
 Marshall, Ins. c^ 8, s. 2 ; Fowke v. Pen- the underwriters cannot set oDF pre- 
 
 sack, 2 Lev. 153 ; Jackson u. Colegrave, miums due from the broker on other 
 
 Carth. 338 ; Grove v. Dubois, 1 Term, policies against a loss on one issued to 
 
 112 ; Airy u. Bland, Park, 36 ; Marshall, the principal by name according to 
 
 Ins. 294 ; Bize v. Dickason, 1 Term, 285 ; usage at Lloyds not known 1o the prin- 
 
 Edgar d. Fowler, 3 East, 222; Edgar cipal. Watson r. Swann, 11 C. B. n. s. 
 
 V. Bumstead, 1 Campb. 411; De Ga- 756. 
 
 minde v. Pigou, 4 Taunt. 246 ; Parker ^ Taylor v. Lowell, 3 Mass. 331, 
 
 V. Smith, 16 East, 382; Minnett r. For- 352. 
 
 rester, 4 Taunt. 541 ; Cummin"- v. For- 2 The rule seems to be that the en- 
 
 rester, 1 Maule & S 494; Koster v. tering into the contract of insurance is 
 
 Eason, 2 Maule & S. 112; Parker?;, a sufficient consideration for the making 
 
 Beasley, 2 Maule & S. 423 ; Houstoun of the note, and that when made it takes 
 
 r. Robertson, 2 Marsh. 138; 6 Taunt, the character of an ordinary negotiable 
 
 448 ; 1 Holt, 88 ; Curry v. Bland, Park, promissory note, subject as between the
 
 CHAP. VI.] 
 
 THE PREMIUM. 
 
 261 
 
 stipulated for to set off a loss against a note and a note against 
 a loss.i 
 
 The powers of such companies following the general rule as 
 
 original parties to the equities of con- 
 nected agreements, charter restrictions, 
 &c., and in the hands of third parties, 
 bona fide hoMers, without notice, an 
 absolute undertaking of the character 
 •which appears from its face. See Wil- 
 liams V. Cheney, 3 Gray, Mass. 21.5; 
 New England F. Ins. Co. v. Butler, 34 
 Me. 451. 
 
 Thus where the original contract of 
 insurance is invalid the note cannot be 
 recovered on by the company. Lindauer 
 V. The Delaware Ins. Co. 13 Ark. 461 ; 
 Jones V. Smith, 3 Gray, Mass. 500 ; 
 Haverhill Ins. Co. v. Prescott, 42 N. H. 
 547; Washington Co. Mut. Ins. Co. y. 
 Dawes, 6 Grav, Mass. 376, and see 
 beyond, § 519 ; the maker, however, can- 
 not set up that through his misrepresen- 
 tation. Farmer's Mut. Fire Ins. Co. v. 
 Marshall, 29 Vt. 23. or want of interest 
 in the insured subject. New England 
 Mut. F. Ins. Co. V. Belknap, 9 Cush. 
 Mass. 140, the policy was void, and the 
 note therefore invalid. 
 
 Where a note was given for a nominal 
 premium on an open policy, the maker 
 was held liable to the company only for 
 the amount of premiums on risks in- 
 dorsed and assumed by the company. 
 Elwell V. Crocker, 4 Bosw. N. Y. 22 ; 
 Lawrence v. McCready, 6 id. 329. 
 
 The note must be the note of the in- 
 sured, and not of a third person. Mut. 
 Ben. L. Ins. Co. v. Davis, 12 N. Y. 
 569. 
 
 A premium note valid when given, is 
 valid notwithstanding the termination 
 of the risk. Atlantic Ins. Co. v. Good- 
 all, 35 N. H. 328 ; Nash v. Union Mut. 
 Ins. Co. 43 Me. 343, notwithstanding a 
 total loss of the insured subject. Bangs 
 
 V. Skidmore, 21 N. Y. 136; Bangs v. 
 Mcintosh, 23 Barb. N. Y. 591, notwith- 
 standing the company has become insol- 
 vent. Caldwell v. Merc. Mut. Ins. Co. 
 32 Penn. St. 75 ; Alliance Mut. F. Ins. 
 Co. V. Swift, 10 Cush. Mass. 433; Clark 
 V. Middleton, 19 Mo. 53 ; Lawrence v. 
 Nelson, 21 N. Y. 158, notwithstanding 
 the insolvency of the company at the 
 time if it was not known : Lester v. 
 Webb, 5 All. Mass. 569 ; notwithstand- 
 ing avoidance of the policy by assign- 
 ment of the subject ; Indiana Mut. F. 
 Ins. Co. V. Coquillard. 2 Ind. 645 ; 
 Smith V. Saratoga, &c. Ins. Co. 3 Hill, 
 N. Y. 508 ; contra M'Culloch v. Indiana 
 Mut. F. Ins. Co. 8 Blackf. Ind. 50 ; 
 Indiana Mut. F. Ins. Co. v. Chamber- 
 lain, 8 id. 150, or other act of the in- 
 sured party. Iowa, &c. Ins. Co. v. Pros- 
 ser, 11 Iowa, 115, see contra Keenan v. 
 Missouri, &e. Ins. Co. 12 Iowa, 126, 
 notwithstanding that the charter of the 
 company expires before the expiration 
 of the policy. Huntley r. Beecher, 30 
 Barb. N. Y. 580, and notwithstanding 
 a cancellation of the policy by agree- 
 ment between the company and the in- 
 sured if the note has been negotiated. 
 Williams v. Cheney, 3 Gray, Mass. 215. 
 The indorsement may be made by the 
 president without special authority. 
 Topping V. Bickford, 4 All. Mass. 120 ; 
 Brown V. Donnell, 49 Me. 421, or by 
 the secretary under mere oral author- 
 ity. Leary v. Blanchard, 48 Me. 269. 
 1 As to the effect of such a stipula- 
 tion where assignees in insolvency guar- 
 antee one of several premium notes, and 
 renew the policy to which it is applica- 
 ble, see Tripp v. Pacific, &c. Ins. Co. 7 
 All. Mass. 230.
 
 262 THE PREMIUM. [CHAP. VI. 
 
 to corporations, are limited to those expressed in the act author- 
 izing their formation, and those properly incidental thereto. Of 
 course, contracts of insurance entered into must be such as are 
 authorized, and any others are void.^ 
 
 It has been held in Connecticut that the formation, by a life 
 company, of a guarantee fund consisting of promissory notes, 
 was properly incidental to their business.^ 
 
 A mutual company may not divide itself into classes in the 
 absence of statutory authority .^ In New York, under the statute 
 of 1849, a company might change its name, and become a new 
 company.* 
 
 A statute prohibiting insurance companies from insuring an 
 amount exceeding one tenth of the capital of the company on 
 one risk was held not to apply to mutual insurance companies.'^ 
 
 For various reasons, it frequently happens that companies 
 chartered or organized under the laws of one State have agencies 
 in one or more of the other States. In the absence of statutory 
 prohibition contracts of insurance made by such agents are valid.^ 
 The supposed necessity of a supervision of the management of 
 insurance companies by state officers for the protection of parties 
 
 1 The company's proper name must under statutory authority, and cannot 
 be used. Hambro' v. liull, &c. Ins. Co. object that the statute was not formally 
 3 Hurlst. & N. Exch. 789. A contract adopted where a practical adoption has 
 of insurance made by an ai'ent of an taken place. Citizens' Mut. F. Ins. Co. 
 insolvent company two days after insol- i'. Sortwell, 8 All. Mass. 217; see Jen- 
 vency without knowledge of that fact on kins v. Union, &c. Ins. Co. 39 N. H. 
 his part, with another company, was I'i'^- 
 
 held invalid. Carrington v. Commercial * Hyatt v. McMahon, 25 Barb. N. Y. 
 
 F. Ins. Co. 1 Bosw. N. Y. . 152. See 457. In England, a company in which 
 
 Williams v. Babcock, 25 Barb. N. Y. Uie policy-holders were entitled to share 
 
 109, as to time of commencement of in the profits, transferred its property 
 
 ability to contract. As to the eflect of to another, which agreed to assume its 
 
 mistakes of oflicers in classifying risks as liabilities. Held, that a policy-holder 
 
 required by charter, see Union, &c. Ins. in the first company had no cause of 
 
 Co. V. Keyser, 32 N. H. 313. action. King v. Accumulative Life 
 
 2 Hope, &c. Ins. Co. v. Weed, 28 Fund, &c. Co. 3 C. B. N. s. 151. 
 Conn. 51; contra Trenton Ins. Co. u. ^ Williams v. Cheney, 3 Gray, Mass. 
 McKelway, 1 Beasl. N. J. 133. 215; Atlantic Mut. F. Ins. Co. u. 
 
 3 People's Eq. Mut. F. Ins. Co. v. Concklin, 6 Gray, Mass. 73. 
 Arthur, 7 Gray, Mass. 267. That mem- 6 Kennebec Co. v. Augusta Ins. & 
 bers are bound by such a division made Bank. Co. 6 Gray, Mass. 204.
 
 CHAP. VI.] 
 
 THE PREMIUM. 
 
 263 
 
 insuring, and perhaps other causes, have led to legislation in some, 
 if not all the States of the United States, imposing restrictions on 
 foreign companies as a condition prerequisite to the legal trans- 
 action of business.! These are generally the requirement of filinor 
 sworn statements of the financial condition of the company at 
 fixed periods with a designated officer of the State, and that 
 agents shall give bonds, the appointing certain agents, and similar 
 acts. Where such restrictions exist a contract effected by a for- 
 eign company, which has not complied with the statute at the 
 time of making the contract,^ is held void,'^ at least in the State 
 imposing the restrictions.* And no one can act as agent of the 
 company in such State.^ 
 
 As the term of credit in marine policies commonly exceeds the 
 usual length of the voyage, it is in most instances known before 
 the premium note is payable, whether any claim has accrued for 
 a loss or return of premium, and only the excess of the demand 
 of either party over that of the other is actually paid.^ 
 
 511. In mutual fire insurance in the United States, the insurers 
 usually have a lien on the insured building and the land belong- 
 
 ' Such compliance is presumed, it is 
 said, in the absence of any evidence to 
 the contrary in an action on the pre- 
 mium note. Williams v. Cheney, 3 
 Gray, Mass. 215. As to what consti- 
 tutes a compliance with the require- 
 ments of the various statutes, see Haver- 
 hill Ins. Co. V. Prescott, 42 N. H. 547 ; 
 Hart V. Achilles, 28 Barb. N. Y. 576 ; 
 Atlantic Mut. F. Ins. Co. v. Concklin, 
 6 Gray, Mass. 73 ; Washington, &c. Ins. 
 Co. V. Hastings, 2 All. Mass. 398. 
 
 2 Atlantic iSIut. F. Ins. Co. t;. Conck- 
 lin, 6 Gray, Mass. 73. 
 
 3 Haverhill Ins. Co. v. Prescott, 42 
 N. H. 547; iEina Ins. Co. v. Harvey, 
 11 Wise. 3!)4 ; but see Burns v. Provin- 
 cial Ins. Co. 35 Barb. N. Y. 525 ; Na- 
 tional, &c. Ins. Co. V. Pursell, 1 All. 
 Mass. 231. The premium note, also, is 
 void in the hands of the payee. Jones 
 V. Smith, 3 Gray, Mass. 500 ; Washing- 
 ton Ins. Co. V. Hastings, 2 All. Mass. 
 
 398, but not in the hands of a bona 
 fide indorsee for value without notice of 
 non-compliance. Williams v. Cheney, 8 
 Gray, Mass. 215. And see generally, 
 as to how far compliance is necessary, 
 Lester v. Webb, 5 All. Mass. 569. 
 
 4 See Huntley v. Merrill, 32 Barb. 
 K Y. 626. 
 
 5 People i;. Imlay, 20 Barb. N, Y. 68. 
 Such non-compliance is, however, no 
 defence for an agent in a suit against 
 him by the company to recover a bal- 
 ance of premiums due, brought in the 
 State where the company is chartered. 
 Washington Co. Ins. Co. v. Colton, 26 
 Conn. 42. 
 
 " By a by-law of a Maine insurance 
 company, the policy when executed and 
 recorded is binding, though no premium 
 note has then been given. Warren v. 
 Ocean Ins. Co. 16 Me. 439; and ^see 
 Belleville, &c. Ins. Co. v. Van Winkle, 
 1 Eeasl. N. J. 333.
 
 264 THE PREMIUM. [CHaP. YI. 
 
 ing^ to it, to secure the payment of the premium note or any as- 
 sessments for which the policy is liable for raising funds to pay 
 losses.^ 
 
 512. The usual form of the policy contains a clause by which 
 the insurers confess themselves to have been paid the premium. 
 
 Where a negotiable note is given for the premium, this is a 
 sufficient payment to be the ground of such a receipt. In Eng- 
 land, where such a note does not appear to be usually given, 
 questions have arisen respecting the effect of this acknowledg- 
 ment. 
 
 Mr. Marshall ^ says, " An action will lie for the premium, not- 
 withstanding this formal acknowledgment of the receipt of it in 
 the policy, which is not inserted there as conclusive evidence of 
 the actual payment, but to preclude the necessity of proving it 
 in case of loss." The same reason is given by Mr. Campbell.^ 
 
 In acknowledging the receipt of the premium, the parties 
 adopt the form used in deeds of conveyance of land, which con- 
 tain a like acknowledgment. The same form is used in other 
 instruments. 
 
 It is very proper that the receipt of the premium should be 
 acknowledged in England, where it is paid at the time of subscrib- 
 ing the policy, or is a debt due from the assured to the broker, 
 who, instead of the assured, becomes the debtor of the insurer; or 
 in the United States, where it is paid, or the assured makes a 
 promise in writing to pay it. If an underwriter in the United 
 States acknowledges a receipt of the premium, without receiving 
 a note, or in England, without the intervention of a broker, he 
 subscribes an instrument in a form adapted to the general prac- 
 tice, when he himself departs from that practice. According to 
 the general practice, the acknowledgment is substantially true. 
 
 513. In regard to the effect of the acknoivledg-tnent, it was for- 
 merly made a question, whether the underwriter could, notwith- 
 standing it, maintain an action against the assured for the pre- 
 mium.* 
 
 It was supposed that such an action might be maintained, 
 
 1 It is the duty of the administrator 3 i Campb. 534, n. ; Sheldon v. At- 
 to p^ay off premiums and discharge the lantie, &c. Ins. Co. 26 N. Y. 4C0. 
 
 lien. Tuttle v. Robinson, 33 N. H. 104. 4 Park, Ins. 35 ; Marshall, Ins. 335. 
 
 2 Marshall, Ins. 335.
 
 CHAP. VI.] THE PREMIUM. 265 
 
 which led to the above ingenious construction, as Mr. Park con- 
 siders it, of the acknovvledgnnent. 
 
 There are English cases in which the insurer has recovered the 
 premium of the assured, where, if he had not, an effect would 
 have been given to fraudulent dealing. F., of Pillau, promised a 
 consignment of goods to G,, of London, a young man just begin- 
 ning business, who obtained insurance on the goods upon the 
 credit of this promise, the insurers supposing he would thus be 
 supplied with funds to pay the premium. F. consigned the goods 
 to another merchant, and, a loss happening, and a claim for return 
 of premium accruing, the insurer claimed the right to set off the 
 premium. The court allowed it, with severe remarks on the 
 conduct of F.i 
 
 In another case, H., an insurance broker, being indebted to S., 
 and not able to pay him, S. proposed that H. should procure 
 insurance for him until the premiums should amount to his debt. 
 Thus H. would be left indebted to the insurers for the premiums, 
 and S.'s debt be discharged. The insurances were accordingly 
 effected. But the insurers, learning the purpose of the broker and 
 the assured, brought suits against S. for the premiums. The jury, 
 however, being of opinion that the broker alone was debtor for 
 these, found in favor of the assured. But the court was dissat- 
 isfied with their verdict, and would have granted a new trial had 
 not the matter been settled by the parties.^ 
 
 514. Wliere there is no such reason for controlling the effect 
 of the acknou'ledg-7nent, the insurer has been held in England to 
 be estopped by it from demanding the premium of the assured, and 
 from denying^ as between himself and the assured^ that he had 
 received it? 
 
 bid. It does not appear that there is any material distinction 
 between this acknowledgment in a policy of insurance and in other 
 instruments,'^ — respecting which the prevailing doctrine is, that 
 the acknoicledgment of payment in a deed of conveyance, though 
 
 1 Foy V. Bell, 3 Taunt. 492. AVliart. Penn. 520 ; Anderson v. Thorn- 
 
 2 Mavor v. Simeon, 3 Taunt. 497, n. ton, 8 Exch; 425 ; 20 Eng. L. & Eq. 339 ; 
 
 3 Dalzell V. Muir, 1 Campb. 532 ; Troy F. Ins. Co. v. Carpenter, 4 Wise. 
 Camming i'. Forrester, 1 Maule & S. 20 ; Goit v. Nat. Protection Ins. Co. 25 
 499. Barb. N. Y. 189. 
 
 4 Pennsylvania Ins. Co. v. Smith, 3 
 VOL. I. 23
 
 266 THE PREMIUM. [CHAP. VI. 
 
 it estops the grantor from alleging want of consideration^ is only 
 primd facie evidence of payment^ which may he rebutted;'^ espe- 
 cially in reference to a third party,^ or in reference to a question 
 of mistake, or to fraud by another party than the one offering evi- 
 dence to contradict the acknowledgment.^ 
 
 516. Where the 'underwriter knowingly accepts the agreement 
 of another than the assured, to pay the premium, the assured is 
 discharged from liability for it, independently of any acknowledg- 
 ment of the receipt of it in the policy.* 
 
 But as marine policies in the United States generally contain a 
 provision that the underwriter shall have a right to set off the pre- 
 mium, if unpaid, against any loss that may accrue on the policy, 
 f his subjects the assured to such set-ofF, though the broker's note 
 for the premium may have been taken by the underwriter know- 
 ing him not to be the assured.^ 
 
 517. If the underwriters have no reason to suppose, from the 
 application or otherwise, that the policy is effected for any other 
 titan the applicant, it has been held that, though the agent gives 
 his note for the premium, his principal, the party actually insured^ 
 is liable for it to the insurers^' 
 
 So, where the party effecting a policy " for whom it might con- 
 cern " gave his negotiable note for the premium, on a shipment 
 of goods of which he was to have the profit and bear the loss, it 
 ■was held in Pennsylvania, that the owner of the goods was liable 
 for the premium.'^ 
 
 518. Authority to effect a policy, is such to sign a note for the 
 premium as agent of the assured, where it is customary to give 
 such notes, and the principal is conusant of the custom.^ 
 
 1 See numerous cases cited in 1 * Bouton v. Anoerican Mut. L. Ins. 
 Greenleaf, Ev. s. 29, n. and 1 Phillipps, Co. 25 Conn. 542; Power v. Butcher, 
 Ev. by Cowen, p. 108, n. 194, and p. 10 Barnew. & C. 329. 
 
 549, n. 9G4; Tyler v. Carlton, 7 Me. 5 Hurlbut v. Pacific Ins. Co. 2 Sumn. 
 
 1 75 ; Belden v. Seymour, 8 Conn. 304 ; C. C. 471 ; Cobb v. N. E. Mut. Mar. Ins. 
 
 M'Crea v. Purmont, 16 Wend. N. Y. Co. 6 Gray, Mass. 192. 
 
 460 ; Bowen v. Bell, 20 Johns. N. Y. ^ Patapsco Ins. Co. v. Smith, 6 Harr. 
 
 338 ; Sheldon v. Atlantic, &c. Ins. Co. & J. Md. 166 ; Pennsylvania Ins. Co. v. 
 
 26 N. Y. 460. Smith, 3 AVhart. Penn. 520. 
 
 2 Mellick V. Peterson, 2 Wash. C C. 7 Pennsylvania Ins. Co. v. Smith, 3 
 31. Whart. Penn. 520. 
 
 3 Wilkinson v. Scott, 17 Mass. 249; 8 Stackpole v. Arnold, 11 Mass. 27. 
 Clapp V. Tirrill, 20 Pick. Mass. 24 7.
 
 CHAP. YI.] THE PREMIUM. 2G7 
 
 519. A negotiable note for the premium of an illegal insurance, 
 payable to the broker or his order, cannot be recovered.^ 
 
 520. A risk incurred being requisite to make a premium due, it 
 is in the power of the assured, by not putting the whole or a part 
 of the property at risk ivithin the terms of the policy, to defeat the 
 contract in luhole or in part. 
 
 This is an indulgence allowed by the law to this species of 
 contract, and is considered to be an implied condition upon which 
 it is entered into, because it is often impossible, at the time of 
 effecting the policy, for the assured to know whether any or what 
 part of the property insured will be at risk ; and it would be a 
 hardship, and a great discouragement to insurance, if the assured 
 were obliged to pay the premium where no risk is run by the in- 
 surer, merely because he is ready to run the risk. 
 
 521. According to the French laiv, where the premium is for 
 a voyage out and home, and the vessel arrives at her port of des- 
 tination, but the risk on the homeivard voyage does not commence, 
 only two thirds of the premium will become due? 
 
 522. In the United States, according to the provisions of the 
 policies of some ports, and according to the practice in, at least, 
 some others, where the policies contain no provision on the sub- 
 ject, tlie premium, though entire for the voyage round, or for suc- 
 cessive passages, becomes due only for those passages ivhich are 
 commenced ; and if any passage is not commenced, the propor- 
 tional part of the premium for that passage does not become due, 
 unless a loss has taken place on the previous passages.-^ 
 
 523. The fund raised by premiums is the resource of insurance 
 companies, whether marine, fire, or life, for the payment of losses. 
 Stock companies and companies mixed, of a stock and mutual 
 character, depend, besides, on the amount of capital paid in.^ 
 Some mutual insurance companies, as well as some mixed and 
 stock companies, provide for the personal responsibility of the mem- 
 bers, or grant liens on their property, for assessments and contribu' 
 tions for the same purpose, in addition to the paid premiums. 
 
 1 Russell V. Degrand, 15 Mass. 35; n. 185, 187; Code de Commerce, No. 
 Gray y. Sims, 3 Wash. C. C. 270. And 356. 
 
 see ante, No. 510, notes. ^ See cliap. xxii. 
 
 2 Emerigon, c. 3, s. 1 ; Pothler, Ass. * See Shauglinessy i'. Rensselaer Ins. 
 
 Co. 21 Barb. N. Y. 625.
 
 268 THE PREMIUM. [CHAP. VI. 
 
 In many mutual, marine, and fire companies, an amount is 
 paid in or a promissory note is given by members, having tiie 
 double character of premiums advanced and capital, or of pre- 
 mium notes and stock notes, being at first capital, or stock notes, 
 and assuming the character of paid premiums, or premium notes, 
 by degrees, from time to time, as the member may effect insur- 
 ances, until his premiums shall cancel the whole amount of his 
 advanced payment or notes. 
 
 Insurance companies, both fire and marine, are chartered in 
 the different States with a great variety of such provisions, for 
 advancing funds or making good the deficiency of premiums for 
 the payment of losses. 
 
 An act which was passed in New York in 1843, called the 
 Pattern Act, authorizes the voluntary formation of mutual insur- 
 ance companies, the members of which are required to give their 
 promissory negotiable notes in advance, to a certain amount, to 
 set off against premiums on policies to be subsequently effected, 
 equivalent to the notes and interest. Where the same had been 
 discounted to raise funds to meet liabilities, the subscribers are 
 held to be liable to the indorsees for their full amount, though 
 insurance had been made in favor of the same subscribers, the 
 premiums on which would have been subject to be set off on the 
 notes, had the same remained in possession of the association.^ 
 And the same rule prevails in respect to a note substituted for 
 the original deposit note for a part of its amount.^ 
 
 The agreement of the company to take risks, and the similar 
 notes and agreements made by other members, and the interest 
 to be allowed to the maker of the note on its excess over his pre- 
 miums at the end of each year, were all held to be a sufficient 
 consideration for the note, besides that, by virtue of the statute 
 the notes were valid independently the consideration.^ 
 
 1 Deraisnics v. Merchants' Mut. Ins. 2 Crooke r. Mali, 11 Barb. N. Y. 
 
 Co. 1 N. Y. 371 ; Cruikshank v. Brou- 205. 
 
 ■wer, 11 Barb. N. Y, 228; and see Mer- 3 Deraismes v. Merchants' Mut. Ins. 
 
 chants' Mut. Ins. Co. v. Rey, 1 Santlf. Co. 1 N. Y. 371; confirmed in Brown 
 
 N. Y. 184; Hone v. Ballin, 1 Sandf. v. Crooke, 4 N. Y. 51. That such notes 
 
 N. Yw 181; Elwell v. Crocker, 4 Bosw. need not be made payable within a year, 
 
 N. Y. 22; Lawrence r. McCready, 6 Howland v. Edmonds, 33 Barb. N. Y. 
 
 id. 329. 433.
 
 CHAP. VI.] THE PREMIUM. 269 
 
 A bona fide settlement of account and estimated liabilities, 
 with the maker of such a deposit note by an authorized officer 
 of the company, and surrender of it to be cancelled, the maker 
 having sold his insured property, was held by the Supreme Court 
 of New York to exonerate him from further liability for prior as 
 well as for subsequent losses.^ 
 
 A member of an insurance company being entitled to have the 
 amount of payments for premiums on policies issued on his ap- 
 plication indorsed on his deposit note, is held by the Superior 
 Court of New York to be entitled to credit, in like manner, for 
 premiums which he procures to be paid by others.^ 
 
 Where such a note is made payable to the makers order, and 
 deposited with the association without being indorsed by him, a 
 court of equity will enjoin him to indorse the note that the asso- 
 ciation may get the same discounted, and apply the proceeds in 
 discharging its liabilities.^ 
 
 The maker of such a note is liable for the same to the asso- 
 ciation, so far as its payment is necessary to meet the liabilities 
 of the company, though insurance has been made in favor of 
 the maker, and no premium has accrued on account of the note.* 
 And the liability on such a renewed note is the same as on the 
 original one;^ And if such a note is given up to the maker by 
 the trustees of the association without its payment, the receiver 
 appointed for the settlement of its concerns may, notwithstand- 
 ing, recover against the maker the excess of the amount of the 
 note over that of the premiums to be credited to him upon it.^ 
 
 Where the maker took out a large policy, and gave a note for 
 the premium, intending that it should figure as part of the avail- 
 able funds in an exhibit of the concerns of the association, it was 
 held that the same must be considered to have been given as 
 security for the liabilities of the association, and not as a pre- 
 mium note on the particular outstanding policy, and that the 
 maker was liable upon it accordingly.' 
 
 1 Hyde v. Lynde, 4 N. Y. 387. * Brower v. Appleby, 1 Sandf. N. Y. 
 Corresponding agent cannot make such 158. 
 
 agreement. Marblehead, &c. Ins. Co. ^ Hone i\ Folger, 1 Sandf. N. Y. 
 
 V. Underwood, 3 Gray, Mass. 210. 177. 
 
 2 Emmet v. Reed, 4 Sandf. N. Y. 229. 6 Brower v. Hill, 1 Sandf. N. Y. r,29. 
 
 3 Furness v. Gilchrist, 1 Sandf N. Y. ' Brower v. Hill, 1 Sandf. N. Y. 
 53. 629. 
 
 23*
 
 270 THE PREMIUM. [CHAP, VI. 
 
 Where the by-laws of a company required that the assignee of 
 shares should be liable for assessments for losses, and an assign- 
 ment of shares expressing such liability was made to A, who had 
 purchased the shares for B, and taken the assignment of them in 
 his own name in the absence of B, for whom he intended to hold 
 them, and signed an acknowledgment accepting them " on the 
 conditions named in the transfer," A was held to be liable for 
 the assessments, B's interest not appearing in the transfer.^ 
 
 An estate insured against fire in a mutual company, being 
 subject to a lien for the premiums, having passed through the 
 hands of several proprietors by descent and sale, who were suc- 
 cessively members of the company, the premium being in arrears 
 in the mean time, the successive proprietors are personally liable 
 for the premium accruing during their respective proprietorships.^ 
 
 523 a. In mutual insurance companies the person effecting in- 
 surance becomes a member of the company,^ and usually, besides 
 paying a portion of the premium in money, gives a premium- 
 note for the balance.^ 
 
 Persons so becoming members are held to have given these 
 notes with a knowledge of the charter and by-laws of the com- 
 pany."'' They are liable to pay assessments'^ on their premium- 
 notes sufficient to meet all losses" occurring while they are mem- 
 
 1 Long V. Pennsylvania Ins. Co. 6 N. Y. 57G; Bell r. Shibley, 33 id. 610; 
 Penn. St. 421. Sands v. St. John, 36 Barb. N. Y. 628; 
 
 2 Shirley v. Mutual Ass. So. 2 Rob. Tuckerman v. Brown, 33 N. Y. 297. 
 Va. 707. 5 And where the charter limits the 
 
 3 Belleville, &c. Ins. Co. v. Van Win- liability of members on the premium- 
 kle, 1 Beasl. N. J. 333. notes to a proportionate assessment to 
 
 4 The distinction between stock-notes, cover losses, this is the extent of liabil- 
 or notes given to constitute a capital as ity on a note absolute on its face in the 
 a condition prerequisite to the com- hands of the company. Mut. Ben. L. 
 mencement of business and premium- Ins. Co. v. Jarvis, 22 Conn. 133. A 
 notes, becomes very material, in view of member cannot object on suit for as- 
 the absolute liability for the full amount sessnient that the company did not give 
 of the stock-note on its becoming due, notice of the acceptance of its char- 
 and the special liability to necessary as- ter. Traders, &c. v. Stone, 9 All. Mass. 
 sessments only on the premium-notes in 483. 
 
 the hands of the company. See White ^ Devendorf v. Beardsley, 23 Barb. 
 
 V. Haight, 16 N. Y. 310 ; Dana v. Mun- N. Y. 656. 
 
 son, 23 id. 564 ; Ilowland v. Edmonds, ' Shaughnessy v. Rensselaer Ins. Co. 
 
 24 id. 307; Hart v. Achilles, 28 Barb. 21 Barb. N.Y. 605 ; Marine Mut. &c. Ins.
 
 CHAP. VI.] 
 
 THE PREMIUM. 
 
 271 
 
 bers/ which are assessed pro rata'-^ on all the meriibers liable,^ 
 and which are made within the period fixed by the contract of 
 insurance,^ the by-laws of the company,^ or the statutes of the 
 State.6 
 
 The assessncients must be made by an authorized person,' and 
 must be for a specified amount.^ 
 
 It is a common condition that a failure to pay any one assess- 
 ment on such notes, shall render the maker liable for the whole 
 amount. This provision is in the nature of a penalty,^ will not 
 be enforced in another State,^^ does not subject the maker to 
 
 Co. V. Swanton. 49 Me. 448. But the a^ 
 sessment must not be excessive. Bangs 
 V. Gray, 15 Barb. N. Y. 2G4 ; People's, 
 &c. Ins. Co. V. Babbitt, 7 All. Mass. 
 235 ; Traders, &c. Ins. Co. v. Stone, 9 
 All. Mass. 483. It need not be pre- 
 cisely accurate. New England Mut. 
 F. Ins. Co. i>. Belknap, 9 Cush. Mass. 
 140. An overlay of one third was held 
 not to be unreasonable in People's, &c. 
 Ins. Co. Petitioners, 9 All. Mass. 319. 
 As to whether it must be for losses only, 
 see Jones v. Sisson, 6 Gray, Mass. 288. 
 
 1 New Hampshire Mut. F. Ins. Co. v. 
 Rand, 24 N. H. 428 ; Long Pond Mut. 
 F. Ins. Co. r. Houghton, 6 Gray, Mass. 
 77; Neely v. Onondago Co. Mut. F. Ins. 
 Co. 7 Hill, N. Y. 49. And see ante, § 
 510, note. 
 
 2 Mut. Ben. L. Ins. Co. v. Fuller, 
 14 Barb. N. Y. 373. Without regard to 
 the proportion paid in cash and notes. 
 Marblehead Mut. F. Ins. Co. v. Hay- 
 ward, 3 Gray, !Mass. 208, or the rate of 
 premium. Shaughnessy v. Rensselaer 
 Ins. Co. 21 Barb. N. Y. 608, and see 
 Bangs V. Gray, 12 N. Y. 477. The as- 
 sessment need not include notes can- 
 celled by the directors as worthless. 
 Maine Mut. &c. Ins. Co. v. Neal, 50 
 Me. 301. 
 
 3 Marblehead Mut. F. Ins. Co. v. 
 Hayward, 3 Gray, Mass. 208. 
 
 4 FiVen where it had been voted to 
 cancel the policy on a day previous to 
 laying the assessment. Fayette, &c. 
 Ins. Co. V. Fuller, 8 All. Mass. 27, and 
 see Columbia, &e. Ins. Co. v. Stone, 3 
 All. Mass. 385. 
 
 5 Hill V. Reed, 16 Barb. N. Y. 280 ; 
 Bay State, &c. Ins. Co. v. Sawyer, 12 
 Cush. Mass. 64. 
 
 6 Where the statutes and by-laws are 
 inconsistent, the assessment must con- 
 form to the statute. Thomas v. Achilles, 
 16 Barb. N. Y. 491. 
 
 7 See Appleton Mut. F. Ins. Co. v. 
 Jesser, 5 All. Mass. 446. An assignee 
 for the benefit of the creditors cannot 
 make it. Hurlbut v. Carter, 21 Barb. 
 N. Y. 221 ; in New York, by statute a 
 receiver may. Shaughnessy v. Rens- 
 selaer Ins. Co. 21 Barb. N. Y. 605. As 
 to the limits of a receiver's power in 
 such cases, see Thomas v. Whallon, 31 
 Barb. N. Y. 172. 
 
 8 St. Lawrence, &c. Ins. Co. v. Pai<re, 
 1 Hilt. N. Y. 430 ; Bangs v. Duckinfield, 
 18 N. Y. 592. 
 
 9 Missouri, &c. Ins. Co. i'. Spore, 23 
 Mo. 26. 
 
 '0 In Jones v. Sisson, 6 Gray, Mass. 
 288, such a condition, with a provis- 
 ion for ultimate refunding, was held 
 not penal and enforceable in another 
 State.
 
 272 THE PREMIUM. [CHAP. VI. 
 
 interest,^ and is strictly limited to assessments.^ A provision 
 requiring publication of an assessment is satisfied by personal 
 notice to the person to be charged, or by a vote of the com- 
 pany.'5 A notice of an assessment to bind members must spec- 
 ify the amount in New York, but need not in New Hampshire 
 or Maine.* 
 
 Mutual companies may, however, issue policies with paid-up 
 premiums, and no further liability on the part of the insured, in 
 New York, under the statute of 1849.^ 
 
 523 6. ^ A loan on bottomry or respondentia security, is an in- 
 surance of the hypothecated subject by the lender against the 
 risks specified in the instrument ^f hypothecation. In this con- 
 tract the excess of the agreed marine interest over common interest, 
 is the premium. 
 
 The marine interest may be stipulated for a certain number of 
 years or months, but is usually for a certain voyage, or succes- 
 sion of voyages, or passages.^ This stipulation for marine inter- 
 est is an essential characteristic of a bottomry or respondentia 
 contract.' If the subject is not exposed to the specified risks, ma- 
 rine interest does not accrue,^ as in case of an inadequate de- 
 scription of the subject, or of the bond being void from any cause 
 without fraud of the borrower. So in case the bond is good for 
 only a part of the amount proposed to be hypothecated, by rea- 
 son of a part only being put at risk, the marine interest is reduced 
 proportionally,'-^ though the borrower may be answerable in dam- 
 ages by his failing to put at risk the stipulated amount. So the 
 rate of marine interest may be reduced by a court of admiralty 
 on account of its exorbitancy. The risk having once begun, 
 
 1 Bangs V. Mcintosh, 23 Barb. N. Y. 21 N. Y. 52; Union Ins. Co. v. Hoge, 
 591. 21 How. 35. 
 
 2 Bangs V. Mcintosh, 23 Barb. N. Y. 6 Boulay Paty, Droit Com. tit. 9, s. 3, 
 591. torn. 3, p. 63, ed. 1822 ; The Mary Ann, 
 
 3 Atlantic F. Ins. Co. v. Sanders, 36 4 Notes of Cases, 376. 
 
 N. H. 252. 7 Leland v. The Medora, 2 Woodb. 
 
 4 Bangs V. Duckinfield, 18 N. Y. 592; & M., C. C. 92. 
 
 Atlanti(; F. Ins. Co. v. Sanders, 36 N. H. 8 Boulay Paty, Droit Com. tit. 9, s. 13. 
 
 252; York, &c. Ins. Co. v. Knight, 48 torn. 3, p. 168, ed. 1822 ; Marshall, Ins. 
 
 Me. 75. book 2, c. 1, p. 736, 2d edition. 
 
 5 Mygatt V. New York, &c. Ins. Co. 9 The Prince George, 4 Moore, Priv. 
 
 Counc. 21.
 
 CHAP. VI.] 
 
 THE PREMIUM. 
 
 273 
 
 the marine interest for the passage, voyage, or period entered upon, 
 becomes due, though the risk may not continue for the entire 
 voyage or period.^ The marine interest ceases at the termina- 
 tion of the voyage or period for which the loan is made.'-^ 
 
 1 Boulay Paty, Droit Cora. tit. 9, s. 3, 
 torn, 3, p. 78, ed. 1822 ; The Dante, 1 
 W. Rob. Adm. 427; 4 Notes of Cases, 
 408 ; Marshall, Ins. book 2, c. 4, p. 751. 
 
 2 Boulay Paty, Droit Com. tit. 9, s. 5, 
 tona. 3, p. 90, ed. 1822. Boulay Paty 
 (torn. 3, p. 119) discusses the question 
 whether the common interest which 
 begins to run as soon as the borrower is 
 
 in default by non-payment, is confined 
 to the principal originally lent, or upon 
 the amount of the principal and the 
 marine interest. Mr. Marshall (Ins. 
 book 2, c. 4, p. 752, ed. 1822) states the 
 former rule, citing Pothier and Emeri- 
 gon. ]Mr. Justice Story adopts the lat- 
 ter. The Ship Packet, 3 Mas. C. C. 
 255,
 
 CHAPTER VII. 
 REPRESENTATION AND CONCEALMENT. 
 
 Sect. 1. What is a representation or con- 
 cealment. 
 
 2. To whiit time the doctrine of rep- 
 
 resentation refers. 
 
 3. Revocation of the order. 
 
 4. Representation or conceahnent bj' 
 
 an agent. 
 
 5. Construction of a representation. 
 
 6. What facts must in general be 
 
 disclosed, and in what man- 
 ner, 
 
 7. Species of property, and nature of 
 
 the interest. 
 
 8. Usages of the trade need not be 
 
 disclosed. 
 
 9. Evasion of foreign commercial and 
 
 municipal regulations. 
 Matters of express stipulation in 
 the policy. 
 
 10. 
 
 Sect. 11. Matters of implied warranty or 
 stipulation. 
 12. What kinds of intelligence must 
 
 be communicated. 
 1.3. Time of sailing or being spoken. 
 
 14. National character and belligerent 
 
 risk. 
 
 15. Representation and concealment 
 
 in insurance against fire. 
 
 16. Representation and concealment 
 
 in life insurance. 
 
 17. Presumption from the rate of 
 
 premium. 
 
 18. The withdrawing, superseding, or 
 
 waiver of a representation. 
 
 19. Compliance with a representa- 
 
 tion. 
 
 20. Effect of a concealment or mis- 
 
 representation. 
 
 SECTION I. WHAT IS A REPRESENTATION OR CONCEALMENT. 
 
 524. A REPRESENTATION in insurafice is the communication of 
 a fact, or the making- of a statement, by one of the parties to a 
 contract of insurance to the other, in reference to a proposal for 
 their entering' into the contract, tending to influence his estimate 
 of the character and degree of the risk to be insured against. 
 
 To constitute a representation, says Mr. C. J. Marshall, there 
 should be an affirmation or denial of some fact, or an allegation 
 which plainly leads the mind to an inference of a fact} 
 
 1 Livingston v. Maryland Ins. Co. 7 Mar. Ins. Lect. 14, s. 1-8, pp. G43-656, 
 
 Cranch, 5.S.'), &o. ; and see Murgatroyd for criticisms on the definitions of a 
 
 V. Crawford, 3 Dall. Penn. 491 ; N. Y. representation, and ibid. s. 8, p. 256, 
 
 Firemen's Ins. Co. y. Welden, 12 Johns, for Mr. Duer's definition. See also 1 
 
 N. Y. 513, per Chancellor Kent; Rich- Arnould, Mar. Ins. part 2, c. 1, s. 2, p. 
 
 ards V. Murdock, 1 Lloyd & W. 132; 489, for a definition. 
 10 Barnew. & C. 527. See also 2 Duer,
 
 SECT. I.] WHAT IS A KEPRESENTATION OR CONCEALMENT. 275 
 
 525. A fact or statement having such tendency is called a 
 MATERIAL fttct OT Statement. 
 
 One having- no such tendency is called immaterial. 
 
 526. A representation may be an oral or written statement of 
 the party or his agent, or the exhibition of a letter or a newspaper, 
 or by other mode of communication. 
 
 527. So a representation may be by mere implication by the 
 policy itself by a separate ivriting, or by words spoken.^ 
 
 Thus, in insurance from Genoa to Dublin, " the adventure to 
 begin from the loading to equip for the voyage," was held by 
 Lord Mansfield and his associates to imply, if it did not literally 
 stipulate, that the cargo was to be loaded at Genoa, and the 
 policy was defeated by its being loaded at Leghorn, which at 
 the time materially enhanced the risk.^ 
 
 So a stipulation " to return five per cent, for convoy," was 
 considered by Lord Eldon to imply a probability of convoy.^ 
 
 So a recital in the policy that the vessel " was expected to be 
 loaded between the 13th and 20th of September," was held to 
 be an implied representation that thei assured had no knowledge 
 of her being loaded before the 13th.* 
 
 Insurance of freight of an American vessel from the Swedish 
 island of " St. Thomas," to " Havana," was ruled by Mr. Jus- 
 tice Cranch not to be an implied representation that the cargo 
 was taken aboard at St. Thomas, and it was ruled that the 
 policy was not defeated by the fact of the cargo having been 
 put aboard at Buenos Ayres, then in revolt and at war with 
 Spain.^ 
 
 A party insured against the dishonesty of a clerk, had, in 
 reply to the written inquiry as to " the checks which would be 
 used to secure the accuracy of the clerk's accounts, and how 
 often they would be closed," answered in writing that the ac- 
 
 1 Before Lord Mansfield's time rep- 2 id. 173, n. ; Steel v. Lacy, 3 Taunt, 
 resentations were usually oral. Paw- 285 ; Kemble v. Browne, 1 Caines, N. 
 son V. Watson, Cowp. 785. Y. 75 ; Kirby v. Smith, 1 Barnew. & 
 
 2 Hodgson V. Kichardson, 1 W. Aid. 672. 
 
 Blackst. 463; 3 Burr. 1477. 4 Stewart v. Morrison, Millar, Ins. 
 
 3 Reid V. llarvey, 4 Dow, Pari. Cas. 59. 
 
 97. See also infra. No. 550 ; Vanden- ^ Simmes v. Marine Ins. Co. 2 Crancli, 
 heuvel v. United Ins. Co. 2 Johns. Cas. C. C. 618. 
 N. Y. 451, and same plaintiff v. Church,
 
 276 EEPRESENTATION AND CONCEALMENT. [CHAP, VII. 
 
 counts were " examined every fortnight." It was stipulated 
 that any fraudulent statement should render the policy void. 
 Losses had accrued by the clerk's embezzlements at divers 
 times, and the underwriters objected to the later ones on the 
 ground of a non-compliance with the warranty, as they alleged 
 it to be, that the accounts should be examined periodically. 
 Pollock, C. J., of the English Exchequer Chamber, said the 
 statement was " a declaration of the course the office intended 
 to pursue, and if made bona fide it did not prejudice the as- 
 sured's right to recover." ^ This seems, however, to be a promis- 
 sory representation.^ 
 
 In a case before the Supreme Court of Connecticut the policy 
 on a factory provided that " the survey and description should be 
 part of the policy and a warranty." The court treated the state- 
 ments in the application respecting the watch kept in the build- 
 ing, and hours of working, as representations.'' 
 
 A refusal to warrant property to be neutral is considered to be 
 an implied representation that it may be belligerent,'^ and that 
 the insurers were to take that risk. 
 
 The questions whether, and in what cases, written statements 
 or implications in the policy or in documents therein referred to, 
 are representations or warranties or mere descriptions of the 
 subject, and to what effect and how construed, and whether a 
 substantial compliance is sufficient, or a strict one is necessary, 
 are considered under other heads.^ 
 
 528. So ivhere the first insurer, having a secret understanding 
 with the assured, that he is not to be bound by his subcription, 
 is merely a " decoy^'' this deception is equivalent to an express 
 misrepresentation to the other insurers, who will accordingly not 
 
 1 Benham v. The United Guaranty 416; Sheldon v. Hartford F. Ins. Co. 
 and Life Ins. Co. 7 Exch. 744, 14 Eng. 22 Conn. 235 ; Hardford Ins. Co. v. 
 L. & Eq. 524. Ilarmer, 2 Ohio St. 452. 
 
 2 See infra, No. 939, and the case * So stated by Kent, C. J., Seton v. 
 appears also to have been open to the Low, 1 Johns. Cas. N. Y. 1, referring 
 defence that the later embezzlements probably to Nonnen v. Kettlewell, 16 
 occurred through the negligence of the East, 1 76. 
 
 assured. 6 Supra, No. 430; infra, No. 553, 
 
 3 Glendale Wollen Co. v. Protection 569, 575, 592, 600, 640, 641, 652, 673, 
 Ins. Co. 21 Conn. 19. See also Daniels 674, 871, 872, 892. 
 
 V. Hudson 11. Ins. Co. 12 Cush. Mass.
 
 SECT. I.] WHAT IS A REPRESENTATION OR CONCEALMENT. 277 
 
 be bound by their subscriptions,^ such exhibit being an implied 
 representation that the first subscription is bona fide. 
 
 529. A misrepresentation is a false rejiresentation of a material 
 fact^ by one of the parties to the other, tending directly to induce 
 the other to enter into the contract, or to do so on terms less favor- 
 able to himself, when he otherwise might not do so, or might 
 demand terms more favorable to himself? 
 
 530. Though the fact misrepresented by the assured is on a mat- 
 ter concerning which he is not required to make any representation, 
 still, if it tends directly to induce the underwriter to subscribe to 
 the policy, when he otherwise might not do so, or to induce him 
 to underwrite at a lower premium than he otherwise might do, it 
 is a misrepresentation : 
 
 As where the assured in Edinburgh represented that eight 
 guineas was the highest premium he had paid to London under- 
 writers on the same risk, when H*e had, in fact, paid fifteen.'^ 
 
 531. Concealment in insurance is where, in reference to a nego- 
 tiation therefor, one party suppresses, or neglects to communicate 
 to the other, a material fact, which, if communicated, ivould tend 
 directly to prevent the other from entering into the contract, or to 
 induce him to demand terms more favorable to himself ; and which 
 is known, or presumed to be so, to the party not disclosing it, and 
 is 7iot known, or presumed to be so, to the other. 
 
 532. It is of no importance that the circumstances m,isrepresented 
 or concealed, or to which the misrepresentation or concealment 
 relates, prove actually not to affect the risk. 
 
 533. The question of misrepresentation or concealment usually 
 has reference to the assured, for the reason that the facts are usu- 
 ally known to him, and the insurance is made mostly or wholly 
 upon his statements. The doctrine is, however, equally applica- 
 ble to the insurer : 
 
 As where an underwriter insures a vessel which he knows to 
 have arrived.^ 
 
 1 Wittingham r. Thornborough, 2 3 Sibbald v. Hill, 2 Dow, Pari. Cas. 
 Vern. 206 ; Prec. in Chan. 20; Wilson 263, differently decided in Scotland, 
 r. Ducket, 3 Burr. 1361. 4 Carter v. Boehm, 3 Burr. 1905; 
 
 ■^ Thompson v. Buchanan, 4 Brown, Duffell v. Wilson, 1 Campb. 401. See 
 Pari. Cas. 482; Mil. 79; Fitzherbert v. also Astley v. Ray, 2 Taunt. 214. 
 Mather, 1 Term, 12; Curell v. Missis- 
 sippi Mar. & Fire Ins. Co. 9 La. 163, 
 VOL. I. 24
 
 278 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 534. The principle upon which the doctrine on this subject rests^ 
 is common to insurance and other contracts, namely, that where 
 a party is led into a contract by misapprehension, and through 
 error, occasioned by fraud or a culpable act or neglect for which 
 the other is responsible, he is equitably entitled to be discharged , 
 from it. The doctrine has, however, a more extensive applica- 
 tion in insurance than in most other contracts, on account of the 
 fact just mentioned, that it is made upon the statements of the 
 assured, who is, therefore, under stringent obligation to make a 
 fair disclosure of the circumstances. Hence insurance is charac- 
 terized by some of the oldest writers upon it as- preeminently a 
 contract of good faith, — " uberrimas fidei." ^ 
 
 535. The doctrines of misrepresentation aiid concealment are 
 common to marine, fire, and life policies. 
 
 536. A representation to an agent of the underwriters for receiv- 
 ing applications, ivill be such t» the underwriters : ^ So to any 
 authorized officer of the company.^ 
 
 537. The effect of a misrepresentation or concealment, in ren- 
 dering the contract inoperative, will be particularly considered in 
 a subsequent section. 
 
 It is sufficient to state here, that generally, if either party, 
 whether purposely or through negligence, mistake, inadvertence, 
 or oversight, misrepresents a fact which he is bound to represent 
 ti'uly, or omits to communicate a fact which he is bound to com- 
 municate, the other is wholly or partially exonerated from the 
 contract.'^ 
 
 The effect of a misrepresentation or concealment, in discharg- 
 ing the underwriters, does not seem to be merely on the ground of 
 fraud, as has been usually laid down by writers on insurance,^ 
 but also on the ground of a condition implied by the fact of enter- 
 
 1 McLanahan v. Universal Ins. Co. Neptune Ins. Co. v. Robinson, 11 Gill 
 1 Pet. 1 70. & J. Md. 256 ; Sawyer v. Coasters' Ins. 
 
 2 McEwen v. Montgomery Mut. Ins. Co. fi Gray, Mass. 221 ; and see cases 
 Co. 5 Hill, N. Y. 101. passim. 
 
 3 Potter V. Ontario & L. Ins. Co. 5 5 Marshall, Ins. book 1, c. 9, s. 1 ; 
 Hill, N. Y. 147. Park, 8th ed. 4011 ; Hughes, 345 ; Ann. 
 
 4 Curson v. Smith, and Cole v. Ma- 124; Evans, 58, 64; and see 2 Duer, 
 rine Ins. Co. Wharton, Dig. tit. Insur- Ins. 747, &c. where this point is learn- 
 ance, No. 28, p. 320 ; Dennison v. edly and elaborately investigated. 
 Thomaston Mut. Ins. Co. 20 Me. 125;
 
 SECT. I.J WHAT IS A REPRESENTATION OR CONCEALMENT. 279 
 
 ing into the contract, that there is no misrepresentation or con- 
 ceahnent.i 
 
 Mr. Duer ^ criticizes the phraseology of the books, in putting 
 the effect of a misrepresentation or concealment upon the con- 
 tract entirely upon the ground of " fraud." Mr. Arnould^ adheres 
 to this application of that term, for the sake of consistency with 
 the general legal doctrine, that what passes between the parties 
 preliminary to a contract is not a part of it, and should not be 
 imported into it. And since a representation through mistake or 
 inadvertence has the same effect, in reference to the underwriter, 
 as an intentional and literally fraudulent misrepresentation or 
 concealment, — namely, it induces him to enter into a contract 
 which he would otherwise have declined, or to take a less pre- 
 mium than he would otherwise have demanded, — he deems it 
 to be excusable to apply the term "fraud," and thus bring the 
 doctrine on this subject nominally within the acknowledged gen- 
 eral principle applicable to other contracts. 
 
 But I cannot think that this anomalous use of the term is jus- 
 tifiable on this ground, since ambiguous phraseology is not to be 
 tolerated in any science, and least of all in that of law, where it 
 can possibly be avoided, as it may easily be in x.iU case, by stat- 
 ing the practical doctrine in direct terms ; namely, that it is an 
 implied condition of the contract of insurance, that it is free from 
 misrepresentation or concealment, whether fraudulent or through 
 mistake. This implied condition involves no more difficulty than 
 that of seaworthiness, or any other implied warranty. And if 
 insurance is thereby distinguished from other contracts, which I 
 apprehend it is not entirely, this peculiarity is not, that I can per- 
 ceive, of great weight, certainly not enough to excuse an anoma- 
 lous application of the technical terms " fraud " and "fraudulent" 
 to many of the misrepresentations and concealments whereby a 
 policy of insurance has been held to be defeated. 
 
 The doctrine on the subject is so evidently one of implied stip- 
 ulation, that Mr. Arnould, notwithstanding his objection, himself 
 puts it upon that ground. Speaking of promissory representa- 
 tions, he says, " They are positive engagements that certain 
 
 1 See chap. 8, Implied Warranties. ^ 1 Arnould, Ins. 495-408, part 2, 
 
 2 2 Duer, Mar. Ins. 647. c. 1, s. 2, No. 187.
 
 280 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 material facts shall, or will, exist," and that they " involve a stip- 
 ulation that, unless facts take place substantially corresponding 
 with those specified, the underwriter vshall not be liable on the 
 policy." ^ How is there such an " engagement" or " stipulation," 
 unless it is implied in the policy ? And if it is, then the for- 
 feiture of the insurance by misrepresentation or concealment is a 
 forfeiture by a breach of a condition of the contract. So it seems 
 to have been considered by Chancellor Kent.^ 
 
 538. Intelligence and rumored facts are equally material to he 
 represented^ and a suppression or misrepresentation of them luilL 
 equally defeat the contract, though it turns out that they were erro- 
 neous, and that there did not really exist any circumstance tending 
 directly to determine the insurer to decline the risk or demand a 
 higher premium? 
 
 If the assured states that " according to the account he has 
 received, a life proposed to be insured is a good one," the policy 
 will not be defeated, though it is not a good life, if he has received 
 such an account and has no information or knowledge to the 
 contrary; but if he has received no such account the policy is 
 void.* 
 
 539. Neither an immaterial misstatement by a party, unless made 
 in reply to a specific inquiry, nor a concealment of an immaterial 
 fact, will impair the contract, unless it is intended fraudulently, 
 and influences the other party!" 
 
 540. Though an immaterial misrepresentation or concealment 
 is fraudulently intended by one party, it will not impair the con- 
 tract, if it has no influence upon the other,''' although in such case 
 the presumption prima facie may be that it has in fact, as it is 
 
 i Arnould, Ins. 507. hurst v. Fayetteville Ins. Co. 6 Jones, 
 
 2 3 Kent, Comm. 5th ed. 282. Law, ISTo. C. 352 ; Boggs v. America 
 
 3 Lynch V. Hamilton, 3 Taunt. 37, Ins. Co. 30 Mo. 63; Boardman v. New 
 
 4 Stackpool V. Simond, Marshall, Ins. Hampshh-e Ins. Co. 20 N. II. 551. In 
 book 3, c. 2, p. 772, 2d ed. Pennsylvania it was held that the clause 
 
 5 Waldon V. N. Y. Firemen's Ins. Co. " clerk sleeps in the building," in the 
 12 Johns. N. Y. 128; Snyder v. Farm- policy copied from the application, was 
 ers' Ins. and Loan Co. 13 Wend. N. Y. mere description and immaterial. Fris- 
 92; Farmers' Ins. Co. v. Snyder, 16 bie i?. Fayette Ins. Co. 27 Penn. St. 325. 
 AVend. N. Y. 481 ; Coulon v. Bowne, 1 6 See Morgan v. Bliss, 2 Mass. Ill; 
 Caines, N. Y. 288; Lexington Ins. Co. Otis v. Raymond, 3 Conn. 413; Ander- 
 V. Paver, 16 Ohio 324 ; Wall v. How- son v. Burnett, 4 Miss. 1G5; Salem 
 ardlns. Co. 14 Barb. N. Y. 383 ; White- India Rubber Co. v. Adams, 23 Pick.
 
 SECT. I.] WHAT IS A REPRESENTATION OR CONCEALMENT. 281 
 
 intended to have, an influence in inducing the other party to 
 enter into the contract, the presumption cannot be conclusive, 
 and preclude evidence and inference to the contrary. 
 
 541. If an underwrite)' is led into the contract by false state- 
 ments and pretences of the assured or his agent, fraudulently 
 made,, with intent to deceive and ivhich actually do deceive him, he 
 will not be bound by the contract, whether the pretences have 
 any direct tendency to induce too favorable an estimate of the risk 
 or not. 
 
 The question in such case is not the materiality or immateri- 
 ality of the fact represented in regard to the degree of risk and 
 proper rate of premium, but its effect in fraudulent deception in 
 any respect.^ This is a general principle of law applicable to 
 insurance and other contracts, in reference to which the respective 
 characters and capacities of the parties, and their relative posi- 
 tion, are to be taken into consideration. 
 
 542. A misrepresentation or concealment by one party of a 
 fact specifically inquired about by the other, though not material, 
 ivill have the same effect in exonerating the latter from the con- 
 tract, as if the fact had been material, since by making such 
 inquiry he implies that he considers it to be so. 
 
 In all the jurisprudence this distinction is recognized. It is 
 particularly applicable to written answers to written inquiries, 
 referred to in the policy. The rule is so because a party, in 
 making a contract, has a right to the advantage of his own 
 judgment of what is material, and if, by making specific inquiry, 
 he implies that he considers a fact to be so, the other party is 
 bound by it as such.- 
 
 Thus where, in a fire insurance, it is inquired what buildings 
 are within a certain distance from the one proposed, the applicant 
 is bound substantially according to the fact, and is not at liberty 
 to dispute its materiality.^ 
 
 Mass. 256; Baker v. Carey, 19 Pick, is what I understand to be intended. 
 
 Mass. 496. See Valton v. National Ass. Co. 20 
 
 1 Marshall, 452 ; Park, 8th ed. 405 ; N. Y. 32. 
 
 3 Kent, Comra. 5th ed. 283 ; 2 Diier, 2 Dennison v. Thomaston Mut. Fire 
 
 Mar. Ins. 685; 1 Arnould, ]\Iar. Ins. Ins. Co 20 Me. 125; Wilson v. Conway 
 
 500. The proposition is stated in a dif- F. Ins. Co. 4 R, I. 141. 
 
 ferent form by the authors here referred 3 Burritt v. Saratoga county Mut. 
 
 to, but the doctrine stated in the te.xt Fire Ins. Co. 5 Hill, N, Y. 188. 
 24*
 
 282 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 543. A misrepresentation or concealment by the agent for 
 effecting the insurance vnll defeat it, though not knoivn to the 
 assured, and though without any fraudulent intent on the 
 part of the agent, to the same effect as if made by the assured 
 himself.^ 
 
 544. In general a substantial compliance vnth a representation 
 is sufficient? Wliere a ivritfen representation is expressly re- 
 ferred to in the policy, so as to be made a part of it, and pur- 
 ports to be a stipulation, it must be complied ivith according to its 
 purport? 
 
 Promissory representations of material facts so made and re- 
 ferred to in the policy, usually have the effect of express warran- 
 ties, and come under that head. 
 
 545. Though it is not requisite that a representation should 
 be in writing, it is usually so made, or is reduced to writing by 
 the consent of the parties at the time of its being made, and it is 
 for the mutual benefit of the parties that it should be in writing, 
 as it induces caution and deliberation, and saves the parties from 
 the forgetfulness and mistakes of witnesses, and the errors of bro- 
 kers and clerks.* 
 
 546. A material misstatement by the assured through miscon- 
 struction of his information, is a misrepresentation; and the un- 
 wittingly omitting to state a material fact is a concealment. 
 
 An insurance was made in England on a vessel from New 
 York to Philadelphia, and from a misconstruction of the cap- 
 tain's letter, as was contended in behalf of the assured, it was 
 represented that the vessel " was seen safe in the Delaware on 
 the 11th of December," when she had been lo^t on the 9th, by 
 running upon a chevaux-de-frise. Lord Mansfield said, " A rep- 
 resentation must be true, and if the assured represents facts 
 without knowing the truth, he takes the risk upon himself." ^ 
 
 1 Carpenter v. American Ins. Co. 1 * See Pawson i'. ^\''atson, Cowp, 785. 
 Stor. C. C. 57; Fitzherbert v. Mather, 5 Macdowall v. Fraser, Dougl. 247. 
 1 Term, 12; and see cases generally. See also Fiske r. N, E. Mar. Ins, Co. 
 
 2 Vide infra, s. 2. 15 Pick, Mass, 310; Hazard's Adm'r 
 
 3 Houghton y. Manufacturers' Mut. y, N, E. I\Iar. Ins. Co. 8 Pet. 557; N. 
 Fire Ins. Co. 8 Mete. Mass. 114; Dan- Y. Bowery Fire Ins. Co. v. N. Y. Ins. 
 iels V. Hudson R. Ins. Co. 12 Cash. Co. 17 Wend. N. Y. 359; Shirley v. 
 Mass. 416 ; and see section below, and Wilkinson, 1 Dougl, 306, n, ; 3 Dougl. 
 c, 1, s. 8, No. 70. 41.
 
 SECT. I j WHAT IS A REPRESENTATION OR CONCEALMENT. 283 
 
 An insurance from Newport in Rhode Island, to Passage, in 
 Spain, was made upon goods which had been brought from La- 
 guira, without being unloaded in the United States, so as to 
 constitute an importation, and this circumstance was not made 
 known to the underwriters. The goods, being captured, were 
 condemned on the ground that it was an entire voyage from a 
 Spanish colony to Spain. Mr. Justice Washington said, " The 
 omission to communicate the circumstance of the not unloading 
 the cargo, if material to the risk, whether by fraud or accident, 
 vacated the policy. The underwriter takes the risk, under the 
 condition that he shall be informed as to all facts within the 
 private knowledge of the assured." ^ 
 
 547. A representation being- once made in reference to a pro- 
 posed insurance, continues to be binding unless it is subsequently 
 revoked or modified before the policy is executed? 
 
 548. If the assured imrposehj and fraudulently neglects to 
 learn material facts, it is a concealment of the same? 
 
 549. Whether the master^s fraidtlulently ivithholding informa- 
 tion of material facts from the assured or broker, for the purpose 
 of allowing opportunity to effect insurance, is a concealment im- 
 putable to the assured ? 
 
 In case of a policy in England on oats from Hartland in 
 Devonshire to Portsmouth, the person who shipped the oats 
 wrote on the same day to the agent of the assured in Portsmouth, 
 advising him of the shipment, and that the ship had sailed, but 
 he was afraid that the wind would force her back. He wrote 
 on the same day to the same effect to another agent of the as- 
 sured in London, saying, " I wish the whole were safe to hand. 
 The weather appears stormy." Before the mail left Hartland 
 with the letters, the writer learned, in time to have sent advice by 
 the same post, that the ship was wrecked ; but he sent no advice 
 of the shipwreck. On the receipt of his letters in London, insur- 
 ance was made, the letters being submitted to the underwriters. 
 
 ^ Kohne v. Ins. Co. of North Amer- Atty, 7 East, 36 7, in which he says the 
 
 ica, 1 Wash. C. C. 93, 1 Wash. C. C. fir.-t representation was afterwards qual- 
 
 158. ifit'd and corrected. See also Marshall, 
 
 2 Edwards v. Footner, 1 Campb. 530 ; Ins. 3.52. 
 where Lord Ellen borough comments 3 Biays v. Union Ins. Co. 1 Wash, 
 
 upon the previous case of Dawson v. C. C. 506.
 
 284 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 Lord Mansfield and his associates adjudged the policy to be 
 void ; ^ thus imputing the concealment to the assured. 
 
 The same doctrine is recognized by Lord EUenborough and 
 his associates. A ship was insured in London "at and from 
 Jamaica," where she lay at the date of the last intelligence from 
 the captain, who omitted to mention, in his letter to the owner, 
 that she had struck upon a rock in Machineal and been got off, 
 without appearing to have sustained material damage. This 
 circumstance was not known to the assured when he effect- 
 ed the policy, and accordingly was not communicated to the 
 insurers. There does not appear to have been any fraudulent 
 purpose on the part of the captain. Lord EUenborough remarked, 
 in giving the opinion of the court against the claim for a loss, 
 that " what is known to the agent is impliedly known to the 
 principal." ^ 
 
 A parallel case has been decided in favor of the validity of the 
 policy by the Circuit and Supreme Courts of the United States. 
 On the 9th of February, a qiolicy was made in Boston, on a 
 sloop and goods on board, lost or not lost, beginning the risk on 
 the 12th of the preceding January, the sloop having been wrecked 
 and totally lost on Cape Hatteras on the 19th of January. The 
 master had in the mean time purposely neglected to advise his 
 owner, at Newport, of the loss, and taken measures to prevent 
 information from reaching him through other channels, for the 
 express purpose of giving him an opportunity to make insur- 
 ance, as he did, without having information of the loss. Judge 
 Story, in the Circuit Court, assumed that the neglect of the 
 master to give information was " wilful, and with a fraudulent 
 design to enable the owner to make insurance after the total 
 loss," and that " it was the duty of the master to give informa- 
 tion of the loss," 3 and ruled in favor of the claim for the loss. 
 
 Mr. Justice Thompson, giving the opinion of the Supreme 
 Court, took the positions that, in order to defeat the policy, the 
 concealment must be by the assured or some agent of his, whose 
 agency had some connection with the business of procuring the 
 insurance, and that as the master, as such, had no such agency, 
 his concealment could not be imputed to the owner. He further 
 put the decision upon the ground, that, if the master was agent of 
 
 1 Fitzlierbert D. IMather, 1 Term, 12. 3 Rujigles v. General Interest Ins. 
 
 2 Gladstone v. King, 1 Maule & S. 35. Co. 4 Mas. C. C. 74.
 
 SECT. I.] WHAT IS A REPRESENTATION OR CONCEALMENT. 285 
 
 either party, he was such of the underwriters, after a total loss for 
 which abandonment had been made, as it had been in this case.^ 
 
 Upon this last ground the uitderwriters will be answerable if 
 the loss admits of abandonment, and not eo if it is a partial loss, 
 which is anomalous and clearly contradictory and inadmissible. 
 As to the other ground, that the acts of the master in relation to 
 effecting insurance are not imputable to the owner, Mr. Duer^ 
 remarks, that, if the master's fraud is to affect one of two parties, 
 it ought to be the one who trusted him, namely, the owner. 
 
 But it is not merely a case where one of two parties must be 
 prejudiced by the fraud of a third. The real question is, whether 
 one party shall be defrauded and the other shall be entitled to the 
 proceeds of the fraud, for the assured could not suffer by the mas- 
 ter doing his duty in communicating information of the loss ; he 
 could only, at the most, be prevented from profiting by the mas- 
 ter's fraud in concealing it. It is as if two by-standers bet upon a 
 player who is proved to have cheated. 
 
 The contract is made under a misapprehension of both parties, 
 namely, that a disaster at so short a distance, where communica- 
 tion is so frequent, must have been heard of within twenty-one 
 days. 
 
 Again, there is no difference in principle between this case, 
 where the master fraudulently conceals a fact, and one in which 
 he should fraudulently state a fact, for the express purpose of 
 enabling the owner to insure. Suppose, after a total loss, the 
 master should write to his owner that he is pursuing the voyage 
 prosperously, one does not easily persuade himself that a policy 
 made under such a fraudulent imposition can be valid. 
 
 I accordingly cannot but conclude, that a policy made, as the 
 case svj/poses, under an essential misutiderstanding by both of the 
 parties, into which they are purposely and fraudulently led by a 
 third, whether he be agent of one or both, or neither, is void. 
 
 550. A representation is construed according to the fair and 
 obvious import of icords, and is equivalent to an express statement 
 of all the inferences naturally and necessarily arising from it.^ 
 
 A representation by a resident in a neutral country, that the 
 
 1 General Interest Ins. Co. v. Rug- 3 Per Marshall, C. J., Livingston »?. 
 gles, 12 Wheat. 408. Maryland Ins. Co. 7 Cranch, 50G. 
 
 2 2 Duer. Mar. Ins. 420.
 
 286 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 goods are his own, has been held to be a representation that 
 they are neutral property ,i and equivalent to a warranty of their 
 being so.^ 
 
 A representation that the ship is American is in effect a repre- 
 sentation that it will be documented as such.^ 
 
 It being stated by the broker to the underwriter that the ship 
 insured was at Guadaloupe on the 28th of July, when the risk 
 was to commence, the court said, " When it is stated that she 
 was at Guadaloupe on a certain day, it must mean that she was 
 there in safety, and that no preceding accident was to be made 
 good by the insurers." * 
 
 Mr, Justice Bayley, speaking of a representation that the 
 ship was « at Elsineur on the 26th of July, all well," said, " The 
 natural conclusion would be that she was left there well at 
 that time ; " and this was the construction of the representation 
 adopted by the court. Itl this sense it was false, for the vessel 
 had sailed from that port on the 26th of July, six hours before 
 the assured himself had sailed from the same port in another 
 vessel, which had experienced rough weather and had a long 
 passage.^ 
 
 So a representation that the vessel '• on the 2d of October was 
 on the coast of Africa," authorized the construction that it was 
 then left there, and, as the assured had intelligence that she 
 sailed on that day, the insurers were discharged on the ground 
 of misrepresentation.^ 
 
 Where a policy was at and from Saffi, on the coast of Africa, 
 to Lisbon, the assured communicated to the underwriters in- 
 telligence of the vessel having arrived at Maderia, and this was 
 held to be notice to them that the commencement of the risk 
 was to be postponed until she could arrive at Saffi.^ 
 
 The applicants for a policy indorsed on their written applica- 
 tion as follows : " Although our advices give us no reason to 
 
 1 Vandenheuvel v. United Ins. Co. 2 5 Kirby v. Smith, 1 Barnew. & Aid. 
 Johns. Cas. 2S[. Y. 451. 672. 
 
 2 Vandenheuvel v. Church, 2 Johns. 6 Radcliff v. Shoolbred, 1 Park, Ins. 
 Cas. N. Y. 127 ; 3 id. 486. 8th ed. 413 ; Marshall, Ins. 468 ; recited 
 
 3 Steel V. Lacy, 3 Taunt. 285, 2 Duer, Ins. 507. 
 Kemble v. Bowne, 1 Caines, N. Y. ^ Driscol v. Passmore, 1 Bos. & P. 
 
 75. 
 
 200.
 
 SECT. I.J WHAT IS A EEPEESENTATION OR CONCEALMENT. 287 
 
 believe there will be any articles contraband of war on board, 
 still, as we wish to be covered against all possible risk, we re- 
 quest your consideration of the application including articles 
 contraband of war." This was construed by the Maryland 
 Court of Appeals not to be an implied representation of neu- 
 trality, as there was no assertion of any fact. It was implied 
 merely that the vessel might be American, and might possibly 
 have contraband articles on board. The plain import was, not 
 that they assumed additional responsibility or made any new 
 assurances or guarantees, but merely wished to obtain more full 
 indemnity.! 
 
 551. The statement of an expectation, opinion, or belief, is not 
 a representation of what is stated to be intended or expected, or 
 believed as a matter of fact to be made good by the assured, and 
 ivill not affect the contract, though the fact prove otherwise, if 
 the statement is made honestly, and not fraudulently with intent 
 to deceive the underwriter and draw him into a contract which 
 he might otherwise decline : 
 
 As a "belief" that a life proposed for insurance is in good 
 health : 2 
 
 Or a statement that the vessel " intends to sail in September 
 or October next," and did not sail until December: ^ 
 
 Or " is to sail in five days," though it did not sail so soon : * 
 
 Or was " expected to leave the coast of Africa " for the East 
 Indies " in November or December," and had left in May : ^ 
 
 Or " was taking in paving-stones for ballast, and will fill up 
 with hay," and a full load of paving-stones was taken, which 
 was not so safe a cargo for the voyage : '' 
 
 Or was expected to sail on a certain day, and did not sail on 
 that day : '' 
 
 Or " was expected to sail on the 24th," and had sailed on the 
 12th of the same month : ^ 
 
 Or was " to go to Madeira, the Isle of France, Pondicherry, 
 
 1 Maryland Ins. Co. and Phoenix Ins. 6 Bryant v. Ocean Ins. Co. 22 Pick. 
 Co. I'. Bathurst, 5 Gill & J. Md. 159. Mass. 200. 
 
 2 Pawson V. Watson, Cowp. 78.5. 7 Stewart r. Morrison, Millar, Ins. 
 
 3 Bize V. Fletcher, 1 Dougl. 271. 59. 
 
 4 Whitney v. Haven, 13 Mass. 172. s Kjce v. N. E. Mar. Ins. Co. 4 Pick. 
 
 5 Barber v. Fletcher, 1 Dougl. 305. Mass. 439.
 
 288 EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 China, the Isles of France, and L'Orient," and China was 
 omitted, and, instead, the vessel went to Bengal, touching at 
 divers ports all within the limits of the voyage described in the 
 policy.^ The risk of the voyage from Pondicherry to Bengal was 
 greater, and the premium higher by one per cent, than to China, 
 and the voyage was extended beyond the usual length. Lord 
 Mansfield said, " If no fraud was intended, and the real inten- 
 tion, at the time of making the representation, was to go to 
 China," the insurance was valid. 
 
 So, where the broker said the vessel was American, but " he 
 was directed not to warrant any thing," it was held not to be a 
 representation.^ 
 
 In case of the insurer's proposing to have a warranty intro- 
 duced, that the ship should sail from St. Petersburg before the 
 1st of August, and the broker said, " There is no occasion for 
 that; the ship has sailed some time, and must now be at Gothen- 
 burg ; there is a cargo ready for her, and she is sure to be an 
 early ship," — and the ship had arrived at Gothenburg before 
 the 13th of June, when this conversation took place, but was 
 detained there, waiting for a cargo, until after the 8th of Sep- 
 tember, Lord Ellenborough said : " I find no representation here 
 upon the falsity of which the underwriters can defend them- 
 selves. The broker said, in unqualified terms, that a cargo was 
 ready ; but this, from its very nature, was only the subject of 
 expectation and belief. All the broker could be understood to 
 mean was, that a cargo had been ordered, and that there was 
 every reason to suppose it would be ready." ^ 
 
 The consignee of goods insured from Lisbon to London had 
 received a letter from the owner and consignor, dated October 
 27th, 1807, saying the goods would be sent by a Portuguese 
 ship, which " would sail in a few days." This letter was not 
 shown to the underwriters, but the broker told them, " that the 
 ship was to sail in a few days." It appeared by the broker's 
 testimony, that, if it had been represented that the ship would 
 not sail within a month, insurance could not have been effected, 
 as the French army was expected at Lisbon. The ship did not 
 
 1 Bize V. Fletcher, 1 Dougl. 271 3 Hubbard v. Glover, 3 Canipb. 
 
 2 Christie v. Secretan, 8 Term, 313, 
 192.
 
 SECT. I.] WHAT IS A REPRESENTATION OR CONCEALMENT. 289 
 
 sail until the 29th of November, and was the next day stopped 
 in the Tagus by the French. Lord Ellenborough said : " The 
 owner of the goods could speak of the sailing of the vessel only 
 from probable expectation, and if such representation was made 
 bona fide, it should not conclude him." The other judges were 
 of the same opinion.^ 
 
 At the time of effecting a policy on a ship at and from 
 Messina to England, the broker had represented that the ship 
 " was then at or near Messina, or on her homeward voyage." 
 Mr. Justice Gibbs said : " It was only a conclusion which he 
 drew, and if there was reason to doubt the truth of the conclu- 
 sion, the underwriter should have inquired into the ground of 
 that expectation." ^ 
 
 Where the person applying for a policy, in behalf of the as- 
 sured, on a certain description of furs, gives, as a reason why the 
 insurance should be low, that the articles come under the ex- 
 ception of particular average ; it is held in New York, that this 
 is not a representation of a fact, but merely an opinion on the 
 construction of the memorandum, and that the contract is not 
 affected by it.^ 
 
 •552. The rejrresented beliefs intention, or expectation, may be 
 that of the assured or his ag-ent, or some third party, and may 
 have reference to a fact or event expected or believed by some one 
 at a distance from the neg-otiating parties, and at a previous time, 
 or it may be of what it is expected or believed will occur at some 
 time posterior to the date of the policy. 
 
 In either case, the question may arise whether the material 
 fact or event is absolutely declared and vouched for by the as- 
 sured, or a mere expectation or belief of it is asserted. In either 
 case the representation is of a fact, and a material one, but in 
 one case it is that of an event or circumstance directly affecting 
 the risk, in the other it is the fact of an expectation or belief of 
 such event or circumstance. 
 
 All the cases agree that the statement of an expectation or 
 belief of a fact is very different from an absolute assertion of it. 
 
 1 Bowden v. Vaugban, 10 East, 3 Astor v. Union Ins. Co. 7 Cow.N. 
 415. y. 202. 
 
 2 Brine v. Featherstone, 4 Taunt. 
 869. 
 
 VOL. I. 25
 
 290 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 But the cases do not agree as to what phraseology amounts to 
 one or the other of these different representations. It is true 
 that under different circumstances the same language may have 
 different imports. The time referred to, whether present, past, 
 or future, — the place, whether near or distant, — the party 
 speaking, whether the assured or his agent, or a third person, 
 
 — the voyage or adventure referred to, — the subject-matter, 
 whether within the knowledge and belonging to the business 
 and experience of the party making the statement or other- 
 wise, — and the relative position of the parties negotiating, 
 
 — all these circumstances and others may have a bearing, and 
 need to be taken into account, in putting one or the other 
 construction upon the representation. It will not necessarily 
 follow, therefore, that two different constructions of precisely 
 the same language, in different cases, are inconsistent with each 
 other. 
 
 It would, therefore, be unprofitable to go into a critical dis- 
 cussion of the opposite interpretations put upon apparently 
 similar, or literally identical phraseology, in different cases, since 
 the opposite constructions may both be right, and whether they 
 are so or not will be of very inconsiderable importance' in de- 
 termining, in other cases, that a representation is an opinion, 
 belief, or expectation of a fact, or a positive asseveration or prom- 
 ise of it, and in which sense the u'nderwriters were authorized to 
 understand it. 
 
 553. Whether the assured is bound by a promissory representa- 
 tion ? 
 
 This inquiry relates to a statement made otherwise than in 
 the policy, as is usually understood by the term " representation." 
 The general doctrine relative to the written contract of insur- 
 ance, as well as other written contracts, as already stated,^ is 
 that it may be explained, but its provisions cannot be super- 
 seded, or independent additional ones introduced, by oral or writ- 
 ten communications that took place between the parties in their 
 preliminary negotiation. But fraudulent communications are 
 universally excepted ; these are at common law a ground of 
 annulling contracts thereby obtained. Equity, which is a part 
 
 1 Sujjra, c. 1, §§ 8 and 13.
 
 SECT. I.] WHAT IS A REPRESENTATION OR CONCEALMENT. 291 
 
 of the " law," though not of the " common law," goes further, 
 and either corrects and reforms written or other contracts, 
 made in some respects or wholly through mistake, or annuls 
 them. As marine insurance belongs to commercial jurispru- 
 dence, into which the principals of the civil law and equitable 
 jurisprudence are largely infused, the implied reservation as to 
 mistake has been very liberally construed, as we see through the 
 whole of this subject of representation and concealment, and 
 also occasionally under other heads. The same principle has 
 been extended to the other species of insurance. 
 
 The principle is, that neither party shall be permitted to take 
 advantage of his own knowledge and the other's ignorance of 
 material facts, or his own forgetfulness of such facts, which he 
 was bound to have remembered, or his own ignorance of such 
 facts, which he was equitably bound to have known, to the 
 prejudice of the other. The nature of the contract, and the 
 usual position of the parties in relation to its subject-matter, 
 render this principle fundanlental. A question has, however, 
 arisen concerning its application to an oral or written statement 
 as to the future. 
 
 The fact of effecting the policy is, as we shall more fully see 
 hereafter, an implied stipulation by the assured for the verity of 
 his statements relative and material to the risk ; and if they 
 relate to existing or past circumstances, there is no question that 
 he must be answerable for their truth under this implied con- 
 dition. The question is, whether a statement relative to a future 
 fact stands on a different footing. The question is very much 
 mixed up with that of a representation of an expectation or 
 belief, as will be seen in the cases cited under those heads, in 
 which the courts occasionally imply or assert ^ that such a rep- 
 resentation has not the effect of a stipulation for the future, and 
 to give it such effect it must be a part of the policy. 
 
 The question can have relation only to a representation hon- 
 estly made, for it is admitted on all hands that the holding out 
 of any expectation, or the making of any promise of material 
 future facts with the intent fraudulently to induce, and thereby 
 inducing, the insurer to sign a contract, will render it void. 
 
 1 See Bryant t;. Ocean Ins. Co. 22 Pick. Mass. 200.
 
 292 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 A Scotch case involving this question came up to the British 
 House of Lords, upon a policy underwritten at Glasgow, on the 
 18th of June, on the ship B. and cargo, from Nassau, in New 
 Providence, to the Clyde. The correspondents of the assured at 
 Nassau wrote to them, " The B. will sail on the 1st of May." 
 She in fact sailed on the 23d of April, for the purpose of taking 
 advantage of convoy, and was captured by an American priva- 
 teer on the 11th of May. The case turned upon the question, 
 whether it was a representation of an expectation, or an under- 
 taking for the sailing. And it was contended that, as there was 
 no mala fides, the policy ought not to be aftected by the mis- 
 take as to the time when the ship would sail. Lord Chancellor 
 Eldon, giving his opinion in the House of Lords, said : " In case 
 of such a misrepresentation, mala fides is not necessary to render 
 the contract inoperative." He considered a statement of a fact, 
 to be verified in future, to be no less binding than one relative 
 to an existing or past fact.^ The judgment was in confor- 
 mity to his opinion confirming that of the Scotch Court of 
 Appeals. 
 
 The construction of the representation is apparently in direct 
 opposition to that put upon an equivalent phraseology, under 
 apparently precisely similar circumstances. But we pass over 
 the question whether the underwriters were authorized to under- 
 stand this to be a positive undertaking of a particular day, instead 
 of an expression of an expectation merely, for whatever the con- 
 struction might be in this case, it would have little or no author- 
 ity in any other, as before suggested. We will also pass over 
 the question of fact, whether the sailing on that particular day 
 was material, this being a question for the jury in the particular 
 case. Lord Eldon assumes that it must have been material, in 
 order that a non-compliance with it should render the contract 
 inoperative. 
 
 The doctrine of this case, then, to our present purpose, and a 
 doctrine well founded and sanctioned by a preponderating weight 
 of authority, is, that a positive, affirmative representation of mate- 
 rial fads in respect to the future is, in effect, a stipulation that they 
 shall be substantially as stated, and that a non-fulfilment of such a 
 
 1 Dennistown v. Lillie, 3 Bligh, 202.
 
 SECT. I.] WHAT IS A EEPRESENTATION OR CONCEALMENT. 293 
 
 representation will defeat the policy, if it occurs prior to, or simul- 
 taneously with, the commencement of the risk, or be a ground of 
 forfeiture, if afterwards : ^ 
 
 As where the assured in a fire policy stated that a stove was 
 to be substituted for an open fireplace : ^ 
 
 And, also, where the assured, in a marine policy, stated that 
 the goods insm'ed would be carried in the master's chest as his 
 own.^ 
 
 Mr. Duer* supports the doctrine that a promissory representa- 
 tion is obligatory, as being in effect a stipulation for the future, 
 and he makes references to authorities directly ° or impliedly^ in 
 favor of that doctrine. 
 
 In a Massachusetts case, a fire policy on a factory and its con- 
 tents provided for its being void unless the assured had made " a 
 just, true, and full exposition of the facts and circumstances, so 
 far as known to him and material." If we add, " and not known 
 to the insurer," it is precisely what is implied in every policy, and 
 was so construed by the court. It was held, that the assured was 
 bound by his written statements, not as warranties, but as repre- 
 sentations, which would be satisfied if they were substantially 
 made good. Two of these statements in reply to questions were 
 as follows : " Water casks are placed in each room." " The mill 
 is examined thirty minutes after work." The assured was held 
 to be bound for a continued substantial compliance with these 
 representations, during the period of the policy. In other words, 
 the representation in connection with the condition expressed in 
 this policy, and implied in all policies, amounted to a binding 
 stipulation for the future, which must be substantially complied 
 with.'' 
 
 1 See on this point, Kimball v. ^tna In Flinn v. Tobin, 1 Mood. & M. 367, 
 Ins. Co. 9 All. Mass. 540. Lord Tenterden seems to be of opinion 
 
 2 Alston V. Mechanics' Mut. Ins. Co. that a non-fulfilment of a promissory 
 1 Hill, N. Y. 510, which was, however, representation will defeat the policy 
 reversed in the Court of Errors, on the only in case of fraud. 
 
 ground taken by Mr. Chancellor Wal * 2 Duer, Mar. Ins. 657. 
 
 worth, that such a statement, not being 5 Marshall, Ins. p. 450, b. 1, c. 10, s. 1. 
 
 inserted or referred to in the policy, did 6 Rjcc v. N. E. Marine Ins. Co. 4 
 
 not bind the assured. 4 Hill, N. Y. 329. Pick. Mass. 439. 
 
 3 Ilimely v. Stewart, 1 Brev. No. C. ^ Houghton ». Manufacturers' ]\Iut; 
 209. Fire Ins. Co. 8 Mete. Mass. 114; Supra, 
 
 25* Xo. 66
 
 294 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 So, under a decision of the Supreme Court of the United 
 States, if it is represented that " no lamps are used in the pick- 
 ing-room " of a factory, the policy will be forfeited by using them 
 there.i 
 
 It is singular that this question respecting a promissory repre- 
 sentation being obligatory should ever have been raised, since 
 administrative jurisprudence abounds with instances of the delib- 
 erate recognition of the obligation imposed by such a representa- 
 tion, particularly those of a future time of sailing. Representa- 
 tions relative to neutral ownership and insignia, and those of the 
 occupancy of buildings under fire policies, have been invariably 
 held to relate to the whole period of the risk. The representa- 
 tion is construed to be of the existing facts, and also of the con- 
 tinuance of them, as far as this depends on the assured.^ 
 
 554. Whether a representation to the first or to an intermediate 
 underwriter of a series of underwriters on the same policy, is con- 
 structively such to the subsequent ones, so far as they could avail 
 of it in dischars^ing themselves from the contract? 
 
 Lord Mansfield said it had been determined in divers cases 
 that a representation to the first underwriter extends to all the 
 others.-^ The principle on which this rule rests is, that, in offer- 
 ing to a party a policy subscribed by another, the insured implies 
 a proposal that the party to whom it is offered shall enter into 
 the same contract which that other has entered into whose name 
 is already upon it, unless such presumption is rebutted by what 
 passes between the parties to the subsequent signature ; and the 
 contract will not be the same if there are certain conditions 
 between the parties to the prior subscription which do not form 
 a part of the contract between those to the subsequent one. 
 
 The rule is usually stated generally, that a representation to 
 the first underwriter is such to the others. But wherever it is 
 
 1 Clark V. Manufacturers' Ins. Co. 8 Excli. 744, 14 Eng. L. & Eq. 524, cited 
 How. 235. supra, No. 527, seems not to be in ac- 
 
 2 Williams v. N. E. Mut. Fire Ins. cordance with the current of authorities. 
 Co. 31 Me. 219; Underbill V. Agawam 3 Barber v. Fletcher, Dougl. 305. 
 Mut. Fire Ins. Co. 6 Cush. Mass. 440; See also Pawson v. Watson, Cowp. 785; 
 Sillem V. Thornton, 3 Ell. & B. 868, 26 Stackpool v. Simon, Park, (8th ed.) 
 Eng. L. & Eq. 238. See infra, No. 638. 932 ; Marshall, Ins. 772 ; Feise v. Par- 
 Beuham v. United Guarantee Co. 7 kinson, 4 Taunt. 640.
 
 SECT. I.] WHAT IS A EEPRESENTATION OR CONCEALMENT. 
 
 295 
 
 referred to, the meaning evidently is, that the subsequent sub- 
 scribers may avail of the rule in defence against a claim on the 
 policy, not that the assured can avail of it to charge them, which 
 would be absurd. The rule is accordingly stated above, with 
 that qualification. Lord Ellenborough says, the rule is to be 
 received with great qualification, and intimates something simi- 
 lar to the one above made.^ The rule was held, in South Caro- 
 lina, not to avail against the subsequent subscriber.^ 
 
 It has been held that a representation to the first signer of the 
 slip, who was not the first to the policy, did not extend to the 
 others. It was so held in England because the slip, not being 
 stamped, could not be given in evidence for the purpose of trans- 
 posing the order of the names as in the policy.^ But indepen- 
 dently of this technical difficulty, the case plainly comes within 
 the principle of the rule respecting the subscribers to the policy 
 itself. 
 
 The rule has been strictly limited to representations to the first 
 subscription.'^ 
 
 The result of the jurisprudence then is, that the subsequent sub- 
 scribers may avail themselves of a misrepresentation to the first in 
 defence against a claim on the policy. 
 
 Jurisprudence has expressly excepted a misrepresentation to a 
 prior intermediate subscriber, but I venture to dissent from that 
 exception to the rule as above qualified, since there is precisely 
 the same implied representation by the assured in respect of any 
 prior intermediate subscriber, as in respect of the first one. 
 
 555. A representation affects only the contract to the making of 
 which it has reference : 
 
 As in case of statements made to an insurance company to 
 induce it to consent to another insurance of the subject being 
 made by another company.^ 
 
 Where an application for insurance was rejected and a subse- 
 quent one accepted, and a policy issued to the same party on the 
 
 1 Forrester v. Pigou, 1 Maule & S. 9. Carstairs, 2 Campb. 543 ; Forrester v. 
 
 2 Himely v. South Carolina Ins. Co. Pigoii, 1 iMaule & S. 13; Per Sir James 
 1 Const. So. C. 1.54. Maiij^field, C. J., Brine v. Featherstone, 
 
 3 Marsden v. Reid, 3 East, 572 ; Bell 4 Taunt. 8fi9. 
 
 V. Carstairs, 2 Canipb, 544. 5 Williams v. X. E. Mut. Fire Ins. 
 
 4 Per Lord Ellenborough, Bell v. Co. 30 Me. 219.
 
 296 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 same subject and risks, the policy was held by Mr. Justice Wood- 
 bury not to be affected by the representation made on the first 
 application.^ Still less will a representation to insurers in one 
 policy, affect another subscribed by different underwriters on the 
 same subject.^ 
 
 556. Whether facts knoimi to one director or officer of a com- 
 pany are presumed to be known to the company ? 
 
 In a case in South Carolina, the court took the position, in 
 respect to a policy underwritten by an incorporated company, 
 that facts known to one of the directors are not to be presumed 
 to be known to the others, that is, to the company.^ 
 
 This must, however, depend upon the agency and authority of 
 the director in regard to the taking of the risk, for usually one 
 officer acts for the company in communicating with the assured, 
 and facts known to hira are presumed to be so to the company, 
 so far as such knowledge is necessary to the validity of the in- 
 surance. 
 
 SECTION II, TO AVHAT TIME THE DOCTRINE OF REPRESENTATION 
 
 REFERS. 
 
 557. The assured is responsible for whatever he has represented 
 concerning and material to the risk, and in reference to a policy 
 thereupon issued, whether the representation is made at the time 
 of effecting it or previously. 
 
 558. The representation may be of facts as existing at the time, 
 or past, or may have reference to the future. 
 
 559. In determining whether there has been any concealment or 
 misrepresentation, reference is had to the time of making the policy, 
 or, where the parties are at a distance from each other, to the 
 latest opportunity of communication to the insurers by the most 
 expeditious of the usual modes. The representation must be 
 sufficient in reference to that time,* and the rule is the same in 
 
 1 Nicoll V. American Ins. Co. 3 4 Freeland v. Glover, 6 Esp. 14 ; 7 
 Woodb. & M. C. C. 529. East, 457; Edwards v. Footner, 1 
 
 2 Elting V. Scott, 2 Johns. N. Y. Cauipb. 530 ; Himely v. Stewart, 1 
 157. Brev. So. C. 209; Byrnes v. Alex- 
 
 3 Iliniely v. South Carolina Ins. Co. ander, 1 id. 213 ; and see cases gener- 
 1 Const. So. C. 154. ally.
 
 SECT. III.] EEVOCATION OF THE ORDER. 297 
 
 respect to facts known to the agent for negotiating the policy, as 
 to those known to his principal.^ The time referred to is that of 
 the effective execution of the policy. Where, through mistake 
 of the agent of the assured, the policy was at first made upon 
 the vessel, instead of the cargo, and, on discovery of the error, a 
 new execution of the policy, or what was equivalent, was requi- 
 site, the obligation as to representation was held to refer to the 
 latter and only effective execution.^ 
 
 560. In respect of representation and concealment, intelligence 
 received.) and known to the clerks of the assured, at his counting- 
 room, or place of business, which is frequented by him at the 
 time, is presumed to be known to Idm? 
 
 SECTION III. REVOCATION OF THE ORDER. 
 
 561. If intelligence of a fact enhancing the risk, or of a loss, 
 is received after an order has been given for insurance, and before 
 the contract is executed, it must be communiccded to the under- 
 writers with due diligence, or the order countermanded.^ 
 
 The party who has given the order is not required to send by 
 express to countermand it, unless that is the usual mode. It will 
 be sufficient to send by the usual conveyance.^ 
 
 One of the owners of a New Bedford ship, being in New 
 York, had written to the other, at New Bedford, to make in- 
 surance. His instructions were sent by a vessel in the morning. 
 In the afternoon of the same day, news was received at New 
 York of the loss of the vessel. Had he, on receipt of this in- 
 telligence, immediately sent by the steamboat to Newport, and 
 thence by mail to New Bedford, countermanding the order, the 
 countermand would have been received at New Bedford before 
 
 1 Fitzherbert r. Mather, 1 Term, 12; 4 Watson v. Delafield, 2 Caines, N. 
 M'Lanaban y. Universal Ins. Co. 1 Pet. Y. 224; 1 Johns. N. Y. 150; 2 id. 
 170. 526. 
 
 2 Sawtell V. Loudon, 5 Taunt. 351) ; ^ See Byrnes v. Alexander, 1 Brev. 
 1 Marsh. 9y. So. C. 213; Grieve v. Young, Miliar, 
 
 3 Himely v. Stewart, 1 Brev. So. Ins. 65. 
 C. 209 ; Byrnes v. Alexander, 1 id. 
 
 213.
 
 298 REPRESENTATION AND CONCEALMENT, [CHAP. VII. 
 
 the policy was made ; but if he had sent by mail, it would not 
 have been received until after the policy was made. The jury 
 were instructed, that it is sufficient, in such case, to send by the 
 usual conveyance ; and it appeared that this was, at the time, 
 the mail by land.^ 
 
 " The only matter of observation," says Mr. Justice Story, 
 " is, whether certain cases require extreme diligence, where the 
 countermand may not only probably, but possibly arrive, in 
 season. We think, however, that the rule requires only due 
 and reasonable diligence. The expressions thrown out in the 
 cases intimate that there might be cases in which a very prompt 
 effort for communication might be fairly deemed but due and 
 reasonable diligence ; as where the loss takes place very near 
 the port at which the insurance is to be made, and the means 
 of communication, by mail and otherwise, are regular or numer- 
 ous ; or where, from the lapse of time, and the date of the order 
 for insurance, the part)'^ cannot but feel that every moment's 
 delay adds many chances in favor of the insurance being made 
 before knowledge of the loss." ^ 
 
 SECTION IV. REPRESENTATION OR CONCEALMENT BY AN AGENT. 
 
 562. A representation or concealment by an agent for effect- 
 ing the insurance or making a representation, is that of the 
 principal, and has the same effect on the policy as if made by 
 the principal.^ 
 
 In this case, as in all others involving the responsibility of the 
 principal for the acts of his agent, the latter must be such for 
 the particular purpose, by previous appointment, or by the adop- 
 tion of his acts or the recognition of his agency by the party 
 Interested. 
 
 563. If the assured communicates bond fide to the insurers 
 erroneous intelligence published in the newspapers, or obtained 
 
 1 Green v. Merchants' Ins. Co. 10 3 Stewart v. Dunlop, 4 Brown, Pari. 
 Pick. Mass. 402. See also Andrews v. Cas. 483, n. ; Park, Ins. 320; Russell y. 
 Marine Ins. Co. 9 Johns. N. Y. 32. Thornton, 4 Hurlst. & I^f. Exch. 788, 
 
 2 M'Lanahan v. Universal Ins. Co. 1 6 id. 140. See supra, No. 526, 541, 
 Pet. 186. and cases passim.
 
 SECT. IV.J BY AN AGENT. 299 
 
 from another person, who received it from his own corresjDond- 
 ent, neither of them having any connection with the assm-ed, 
 and communicates such intelligence to the underwriters, upon 
 the faith of lohich a piolicy is made, and it turns out that the facts 
 were quite different from what the parties understood them to be, 
 and wholly on the side of the enhancement of the risk, or even 
 if a loss may have happened subsequently to the time when the 
 risk is to have commenced, still the insurance is valid. 
 
 So, if the facts proved to be more favorable to the risk than 
 the intelligence, still the assured cannot reclaim his premium, if 
 the subject was within the specified risks. 
 
 In such case there is no mistake of the facts between the 
 parties. Each has the same opportunity to make his own con- 
 clusions from the same intelligence, and takes upon himself the 
 risk of a mistake in so doing. 
 
 564. A difficult question, giving rise to discordant decisions, 
 has arisen where insurance has been made under a misapprehen- 
 sion of the facts by the assured, occasioned by a concealment or 
 misrepresentation by the master of the vessel, or by some cor- 
 respondent of the assured, who has no agency respecting the 
 insurance, the doubt and point of discrepancy in the decisions 
 being whether the master or correspondent, though not an agent 
 of the assured for making the insurance, shall be considered to 
 be such for communicating the information to him according to 
 the usual course of business, of whose fraud or culpable gross 
 negligence in this respect the assured ought not to be allowed 
 to take advantage. And the doctrine already stated on this 
 question ^ is, that a policy effected through the fraudulent mis- 
 representation or concealment by the master of the vessel, or any 
 habitual agent or correspondent or recognized representative of 
 the assured, is not at the risk of the insurers. 
 
 1 Supra, No. 549, where are cited Ruggles v. General Interest Ins. Co. 4 
 Gladstone v. King, 1 Maule & S. 35 ; Mas. C. C. 74 ; and General Interest 
 Fitzherbert t'. Mather, 1 Term, 12; Ins. Co. f. Ruggles, 12 Wheat. 408.
 
 oOu REPRESENTATION AND CONCEALMENT. [CHAP, VII. 
 
 SECTION V. CONSTRUCTION OF A REPRESENTATION. 
 
 565. The language of a 7'epresentation, like that of a i^olicy of 
 insurance, is usually to he understood in its ordinary sensed 
 
 566. A representation in a letter ivritten at the place of the 
 writer'' s residence, distant from that ivhere a policy is applied for 
 in his behalf, instructing his agent to effect insurance, and exhib- 
 ited to the insurers by the agent, is to be construed according to 
 the meaning of the phraseology in the place ivhere the letter is 
 written. 
 
 It was so held by the Supreme Court of the United States 
 respecting a statement by the assured, writing from New York 
 to Boston for insurance on a vessel, that it was " coppered," ^ 
 reversing the decision of Mr. Justice Story in the Circuit Court, 
 that the construction must be according to the meaning in 
 Boston.^ 
 
 The general doctrine is, that the language of a contract is to 
 be construed according to the usage of the place where it is 
 made."* The same general rule must apply to a letter or statement, 
 written or oral, though the particular circumstances of a case 
 may readily be imagined to be such as to make an exception. 
 Had the letter been that of a third person, wholly independent of 
 the parties, and understood by both the assured and insurers in 
 a different sense from that intended by the writer, it would, if it 
 went to the whole subject-matter of the contract, render it void, 
 as being founded in mutual mistake, as stated by Mr. Justice 
 Story in reference to the above case. But if it merely led the 
 parties into a mistake respecting some subordinate, incidental 
 matter, not being the substantive subject and basis of the con- 
 tract, it would not defeat the contract, as we see in all the cases 
 of erroneous intelligence acted upon by the parties to the policy. 
 Such a misunderstanding is at the risk of either of the parties 
 that may be affected by it. The question then is, whether a 
 
 1 As to the influence of the connec- 2 Hazard's Adm'r v. N, E. Marine 
 
 tion and the ambiguity of the questions Ins. Co. 8 Pet. 557. 
 
 in construing representations, see Wil- 3 Hazard v. N. E. Marine Ins. Co. 
 
 son V. Hamiiden F. Ins. Co. 4 R. I. 1 Sumn. C. C. 218. 
 
 159. 4 Supra, No. 121.
 
 SECT, v.] CONSTRUCTION OF A REPRESENTATION. -301 
 
 similar misunderstanding arising on the letter so written by the 
 assured himself, in good faith, shall be excepted from this rule. 
 It does not appear upon what ground such an exception can be 
 made, 
 
 567. A representation imports not only what is expressed, but' 
 also all the natural and obvious inferences from it.^ 
 
 Thus a representation that a ship was at a place on a certain 
 day, imports that she was there in safety.^ 
 
 Representation that a building is occupied as a grist-mill, 
 imports that it is not occupied for any other purpose enhancing 
 such a risk.^ 
 
 The rule may operate in favor of the assured, as well as 
 against him, for the inference may be of a fact which he is bound 
 to disclose.* 
 
 A representation that a vessel " is " at a certain distant place, 
 means that it is so at the time of making the representation.^ 
 
 After an application for insurance of a ship had been made, 
 the applicants stated, " Although our advices give us no reason 
 to believe that there will be any articles contraband of war on 
 board the ship Budget, still we wish to be covered against all 
 possible risks ; we wish your reconsideration of the written 
 application, including articles contraband of war." This was 
 held not to be a representation or warranty that the ship was 
 neutral property.*^ 
 
 The fact that the policy was on the ireight of an American 
 vessel from the Swedish island St. Thomas to Havana, was ruled 
 by Mr. Justice Cranch, not to imply that the cargo was taken in 
 at St. Thomas, and the policy was ruled not to be rendered void 
 on account of the cargo having been taken aboard at Buenos 
 Ayres, then in revolt from Spain, and at war.^ 
 
 1 Ratcliff V. Shoolbred, Marshall, * Supra, s. 1. 
 
 Ins. 468; 1 Park, 8th ed. 413. But 5 Callagan v. Atlantic Ins. Co. 1 
 
 in Illinois a representation that there is Edw. Ch. N. Y. 64. 
 
 a force-pump in a factory, is held not ^ Maryland & Phoenix Ins. Co. v. 
 
 to include a hose. Peoria Ins. Co. v. Bathurst, 5 Gill & J. Md. 159. 
 
 Lewis, 18 111. 553. " Simmes v. Mar. Ins. Co. 2 Cranch, 
 
 2 Supra, s, 1. C C. 618. 
 
 3 Jennings r. Chenango ]M. Ins. Co. 
 2 Den. N. Y. 75. 
 
 VOL. I. 26
 
 302 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 An insurance effected by a common carrier on his interest as 
 such in goods by a certain steamboat, does not imply that he is 
 owner. It may be applied to goods carried in a boat chartered 
 by him.^ 
 
 A representation literally and grammatically having reference 
 to the present state of things, is in many cases construed to imply 
 a promissory undertaking to maintain the same or an equivalent 
 state of things, so far as it shall depend upon the assured or his 
 agents, during the continuance of the risk.^ 
 
 568. Where the i-epresentation is ambiguous or obscure^ the 
 construction will depend upon the obviousness of the ambiguity or 
 obscurity. If there is no fraud on the part of the assured, and a 
 fact is imperfectly represented, yet is so represented as to obviously 
 suggest further inquiry on the part of the underwriter, the rep- 
 resentalion is sufficient;^ but otherwise there is not obviously an 
 ambiguity or obscurity. 
 
 This follows necessarily from the fundamental doctrine of 
 representation which requires of the assured to disclose material 
 facts not known to the underwriter or presumed to be so. The 
 doctrine is no less applicable in the case in question ; he is equally 
 bound to disclose an occasion for inquiry, before negligence in 
 not making it can be imputed to the underwriter.* 
 
 569. Discrimination is to be made whether the representation is 
 of a certain fact or condition of things specified, or merely of a 
 report or intelligence of such fact or condition of things. 
 
 Thus, where the agent of the assured, at the time of making 
 insurance, exhibited a letter from the assured, in which he said 
 that the vessel "was said to sail uncommonly fast," Mr. Justice 
 Story instructed the jury, that where a letter contained a repre- 
 sentation of facts not known to the party w^riting it otherwise 
 than by information derived from others, and so the letter states 
 the facts, or it is a necessary inference from the nature of the 
 facts themselves, the representation is not falsified by the mere 
 proof that the facts are not so, if the party communicating the 
 information did receive such information, and bona fide confided 
 
 1 Chase V. Washington Ins. Co. of ■* In Nicoll v. Am. Ins. Co. 3 Woodb. 
 Cincinnati, 1 Barb. N. Y. 576. & M., C. C. 529, the rule is laid down 
 
 2 Supra, No. 553. somewhat more largely in favor of the 
 
 3 Supra, No. 568 ; infra. No. 585. assured.
 
 SECT, v.] CONSTRUCTION OP A REPRESENTATION. 303 
 
 in it. He undertakes then, not for the truth of the facts, but for 
 his having been so informed. ^ 
 
 570. So the distinction is to be made, as we have already seen,^ 
 between an assertion of a fact, and a mere statement of opinion, 
 belief, or expectation. 
 
 Accordingly, if the intelligence as to the time of sailing is truly 
 represented, the policy will not be defeated, though it turns out 
 to be erroneous, and both parties are acting under a mistake as 
 to this fact. That is, the parties respectively take the risk of the 
 time of sailing. In other words, they do not contract upon an 
 implied condition that the vessel did in fact sail at the time 
 supposed, but upon condition that the intelligence as to the time 
 of sailing was truly represented. 
 
 A letter was exhibited to the insurers, from the captain of a 
 vessel, R., at Kingston, in Jamaica, to the assured, saying, " I 
 shall leave this on the 12th," which would have made the R. out 
 of time. Another letter from the agent of the assured at Campo 
 Bello, New Brunswick, requesting his correspondent in Boston 
 to effect insurance, was exhibited, saying, the J. had arrived from 
 Kingston, and that the master of the R. " expected to sail on the 
 12th ; " and a third letter was exhibited from the same agent of 
 the assured to the same correspondent, dated the following day, 
 saying that the master of the J. informed him that the R. would 
 not sail till four days after the J., which would bring the sailing 
 of the R. to the 24th, so that she would not be out of time. A 
 policy was thereupon written upon the cargo of the R., witli the 
 memorandum in the margin, " Expected to sail about the 24th." 
 She had in fact sailed on the 12th. There was either a mistake 
 by the master of the J. in stating that the R. was expected to sail 
 in four days after himself, or in the agent of the assured in stat- 
 ing the information given him by the master of the J. Mr. Justice 
 Story ruled that this was a misrepresentation, and whether 
 innocent or not, did not vary the legal result.^ 
 
 The plaintiff thereupon became nonsuit, and a new suit was 
 brought upon the policy, in the Supreme Court of Massachusetts, 
 where it was held to be valid. Parker, C. J., giving the opinion 
 
 1 Tidmarsh v. Washington Ins. Co. 4 3 Baxter v. N. E. Marine Ins. Co. 3 
 Mas. C. C. 439. Mas. C. C. 96. 
 
 2 Supra, s. 1, No. 552.
 
 304 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 of that court, said : " If the information obtained from the master 
 of the J. was truly and correctly represented to the president of 
 the office, although the fact thus communicated was not true, 
 there was no misrepresentation, for the assured or his agent is 
 bound only to communicate all the information he has." ^ 
 
 SECTION VI. WHAT FACTS MUST IN GENERAL BE DISCLOSED, AND 
 IN WHAT MANNER. 
 
 571. The assured is not required to communicate to the under- 
 writer facts which are presumed or proved to be known to those 
 conversant with the trade, or that are in fact known to the latter, 
 however they may have become so. He is required, as a prelim- 
 inary step, to communicate to the underwriter all other material 
 facts within his knowledg-e, or presumed to he so, or of ivhich he is 
 bound to be informed, that would directly tend to induce the under- 
 writer not to subscribe the policy at all, or to demand a higher pre- 
 mium? 
 
 " The facts lie most commonly in the knowledge of the assured 
 only, the underwriter trusts to his representation, and proceeds 
 upon confidence that he does not keep back any circumstance to 
 mislead the underwriter, and induce him to estimate the risk as 
 if it did not exist. The keeping back such circumstance is a 
 fraud, and although the suppression should happen through mis- 
 take, the policy is void, because the risk is different from that 
 understood and intended to be run." 
 
 The assured, says Lord Mansfield, " need not mention what 
 the underwriter knows, what way soever he came by that knowl- 
 edge, or what he ought to know, or takes upon himself the knowl- 
 edge of, or waives being informed of, or what lessens the risk 
 agreed and understood to be run, or general topics of speculation, 
 
 1 Rice V. N. E. Marine Ins. Co. 4 2 See supra, s. 1, ^o. 524; Murga- 
 
 Pick. Mass. 439. See Everett i-. Desbo- troid v. Crawford, and otiier cases there 
 
 rough, 5 Bingh. 503 ; Von Lindenau v. cited ; Money v. Union Ins. Co. 4 
 
 Desborough, 8 Barnew. & C. 586 ; May- M'Cord, So^ C. 511; Hoe o. Mason, 
 
 nard v. Rhodes, 1 Carr. & P. 360 ; as to Wash. Va. 107, in Avhich latter case the 
 
 the assured's making himself responsible underwriters knew that the insured ves- 
 
 for the representations of third persons, sel had a letter of marque.
 
 SECT. VI.] WHAT FACTS MUST BE DISCLOSED, ETC. 305 
 
 or every cause which may occasion natural perils, as the difficulty 
 of the voyage, kind of seasons, probability of hurricanes, earth- 
 quakes, &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 or 
 return of peace, or the imbecility of the enemy. If the insurance 
 be on a private ship of war, from port to port, the underwriter 
 needs not to be told of the secret enterprises it is destined upon. 
 From the nature of the contract he waives this information. If 
 he insures for three years, he needs not to be told any circum- 
 stance to show it may be over in two, or if he insures a voyage 
 with liberty of deviation, he needs not to be told what tends to 
 show there will be no deviation. Men argue differently from 
 natural phenomena, and the means of information and judging 
 are open to both ; each professes to act on his own skill and 
 sagacity. The rule is adapted to facts which are privately knov/n 
 to one party, and which the other is ignorant of, or has no reason 
 to suspect." 1 
 
 This lucid and comprehensive compend of the doctrine of rep- 
 resentation and concealment was made by that eminent judge 
 and jurist, in reference to an insurance in England for one year 
 against capture on property at Fort Marlborough, in Sumatra, 
 effected for Carter, the governor. His agent in London, who 
 negotiated for the policy, knew of a letter of the assured ^v^itten 
 the preceding year, at the same time with the order to him to get 
 insurance, and received by the Directors of the East India Com- 
 pany in London, notifying to them that the French had that year 
 a design of attacking the settlement, which they might revive, 
 and that the fort was inadequately supplied, and could not be 
 maintained against a European enemy. And the letter to the 
 agent ordering the insurance was of the same import. Neither 
 of these letters was disclosed to the underwriters. 
 
 The fort was captured by the French within the year, and with 
 it the insured property ; and in the suit for the loss. Lord Mans- 
 field, giving the opinion of the court, remarked, that if any enter- 
 prise had been known by the governor to be actually on foot at 
 the time of his writing, it woukl have varied the case ; but no 
 
 1 Carter v. Boehm, 3 Burr. 19u5; 1 W. BlacksL 593. 
 20 »
 
 306 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 such enterprise was then on foot, and the underwriter was bound 
 to know that the governor could not consistently with liis official 
 duty disclose the weak condition of the fort, if it were weak ; and 
 that all the circumstances relative to a probability of an attack 
 were more within the underwriter's means of knowledge than 
 those of the governor. 
 
 As to the inferences to be drawn from the design of the preced- 
 ing year, if there had been one, they were mere matter of specu- 
 lation. He said, by way of illustration, if an assured on a ship 
 knew that " two privateers were lying in her way, without men- 
 tioning the fact, it would be fraud ; but if he knew that two had 
 been there the year before, it would be no fraud not to mention 
 it." The decision was accordingly in favor of the assured.^ 
 
 Whether a policy be effected on a life, or a ship, or against 
 fire, says Mr. Justice Bayley, " if a circumstance be not commu- 
 nicated, the question is whether it was material, not whether the 
 assured believed that it was material." ^ 
 
 572. Tlie underwriter is under a corresponding obligation, mu- 
 tatis mutandis. 
 
 " Good faith," says Lord Mansfield, " forbids either party, by 
 concealing what he knows, to draw the other into a bargain, from 
 his ignorance of that fact, and his believing the contrary." ^ 
 
 573. The assured needs to represent to the underwriter such facts 
 only as relate to, and are material to, the risk insured against. 
 
 Every policy leaves some perils and losses at the risk of the 
 assured, and by some policies only a single risk, as that of cap- 
 ture, or fire, is insured against, and by the definition of a mate- 
 rial fact,* it is one concerning the risks covered by the policy. 
 But many circumstances af]['ect both the risks insured against 
 and others indiscriminately, and such must be disclosed not the 
 less because they aflect other risks than those covered by the 
 policy.^ 
 
 574. It has already been stated, that a mere matter of belief or 
 expectation or opinion of the assured, not arising on any specific 
 
 1 Carter v. Boehm, 3 Burr. ! 905. See 3 Per Lord Mansfield, Carter v. 
 also Thompson v. Buchanan, 4 Brown, Boehm, 3 Burr. 1905; S. C. 1 W. 
 Pari. Cas. 482; Millar, Ins. 79. Blackst. 575. 
 
 2 Von Lindenau v. Desborough, 3 "• Supra, No. 651. 
 
 Carr. & P. 353. 5 See 2 Duer, Mar. Ins. 578.
 
 SECT. VI.] WHAT FACTS MUST BE DISCLOSED, ETC. 307 
 
 material fact in his knowledge not known, or presumed not to be 
 known to the underwriters, will not, although communicated to 
 them, constitute a representation.^ It follows that the assured is 
 not bound to disclose his mere beliefs expectation, or opinion. 
 
 Thus, where the agent for eHiecting the policy did not disclose 
 a letter from the assured expressing a fear that the vessel was out 
 of time, it was held not to affect the policy, if the assured had no 
 specific information on the subject.^ 
 
 575. Though the assured is not bound to communicate his own 
 expectations and opinions and speculations upon facts, he must 
 communicate inforination on which the undenvriters may form 
 their own expectations. 
 
 Where the owners of the Rising Sun, then at Riga, received 
 a letter informing them " that the order lately received there, to 
 send the papers of all vessels that should arrive at St. Petersburg, 
 had produced a great sensation on account of the detention 
 which it would occasion ; that the Rising Sun must share the 
 same fate, and that her papers had been sent to St. Petersburg;" 
 and the broker did not show the letter to the underwriters, but 
 stated that "the ship's papers were sent to St. Petersburg for 
 examination ; " Lord EUenborough said to the jury, " The assured 
 are only bound to communicate facts. The broker did commu- 
 nicate the fact of the ship's papers being sent to St. Petersburg 
 for examination ; he was not bound to communicate the sensa- 
 tions and apprehensions which this fact produced at Riga." ^ 
 
 Here was ground for an expectation or apprehension of the 
 detention of the ship, and Lord EUenborough ruled that such 
 ground was sufficiently communicated, so that the underwriters 
 had a fair opportunity to make their own inferences. 
 
 But many instances will occur in the illustrations supplied by 
 jurisprudence, and subsequently stated, especially respecting infor- 
 mation relative to the expectation of the time of sailing from a 
 foreign port, where it is incumbent upon the assured to disclose 
 the expectations and hopes and apprehensions of his agents or 
 correspondents, or of the master of the vessel. 
 
 576. It is sufficient if the assured discloses the condition of the 
 
 1 Supra, s. 1. ton, Dig., Insurance, No. 22, p. 1319. 
 
 2 Klein v. Lancaster Ins. Co. Wliar- See also cases supra, No. 571. 
 
 3 Bell V. Bell, 2 Campb. 479.
 
 SOS EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 ship at the date of his last intelligence^ icithout giving an account 
 of previous events. 
 
 The assured had received intelligence that the natives on the 
 coast of Africa had attacked the vessel, and killed the captain, 
 and several of the crew, whereby, and in consequence of disease, 
 the crew had been reduced from twenty to five ; he afterwards 
 received intelligence of the subsequent condition of the ship, 
 and that there were nine men on board. He disclosed only 
 the last intelligence to the insurers. Lord EUenborough said : 
 " You are not obliged to inform the underwriters of all by-gone 
 calamities. If the underwriters were truly informed of all the 
 circumstances known to the assured on his latest information, it 
 is sufficient." ^ 
 
 So the court in New York, speaking of a risk at and from 
 Guadaloupe, to commence on the 28th of July, said, " It cannot 
 be material where the ship was prior to that day." ^ 
 
 577. In case of a retrospective policy, the assured is bound to 
 disclose intelligence of any extraordinary enhancement of the risk, 
 not known, or reasonably presumed to be so, to the underwriter, 
 ivhether it relates to the past or future risk. 
 
 If the assured, knowing of a previous loss within the period 
 of the risk, conceals it, the policy will be void for fraud ; but in 
 respect of prior losses, or to past circumstances tending to en- 
 hance the risk, that are not known to him, the doctrine is the 
 same as in respect of the future.^ 
 
 A question on this subject occurred under a policy written in 
 New York, there having been a " violent storm " at Norfolk, 
 eleven hours after the vessel sailed from that port, and the rep- 
 resentation was, that " there had been blowing weather and 
 severe storms on the coast after the vessel had sailed." A 
 majority of the Supreme Court were of opinion that this was 
 a concealment, because the particular storm had not been speci- 
 fied. Lewis, C. J., dissented,^ and apparently with some reason ; 
 
 1 Freeland v. Glover, 6 Esp. 14; 7 3 Sutherland v. Pratt, 11 Mees. & W. 
 East, 457; 3 Smith, 424. But see Exoh. 296 ; 12 id. 16. 
 
 Russell V. Thornton, 4 Hurlst. & N. 4 Ely v. Hallett, 2 Caines, N. Y. 57. 
 Exch. 788 ; 6 id. 140. See INIoses v. Delaware Ins. Co. 1 Wash. 
 
 2 Kemble v. Browne, 1 Caines, N. C. C. 385. 
 Y. 75.
 
 SECT. VI.] WHAT FACTS MUST BE DISCLOSED, ETC. 309 
 
 for the distinction made by tlfe court was certainly very nice. 
 The representation was sufficient at least to put the insurers on 
 inquiry. All the judges agreed that a representation relative to 
 the weather was necessary. The result of the trial shows the 
 importance of a specific disclosure. 
 
 Where a vessel sailed from Boston, November 18th or 19th, 
 on a voyage to Smyrna, and was not afterwards heard from, and 
 a policy was effected at the same place on the 13th of March 
 following, it was held not to be a concealment affecting the 
 policy, that the assured did not mention there having been a 
 storm at Boston on the 22d of November, that is, three or four 
 days after the vessel sailed. Putnam, J., giving the opinion of 
 the court : " The ship, on November 22d, may have been in 
 pleasant weather, two or three hundred miles from Boston where 
 the storm raged. It would have been a somewhat violent pre- 
 sumption to assume as a fact, that the ship encountered that 
 storm." ^ 
 
 578. The assured need not state that other underwriters had 
 declined the risk^^ or what were their apprehensions or opinions 
 respecting it ; and if he expresses his own opinion as to the rate 
 at which they would underwrite, though he knows they would 
 not underwrite at that rate, this is immaterial. 
 
 The assured applied for a policy in Philadelphia, at a pre- 
 mium of fifteen per cent., saying, in their letter to their agent 
 for this purpose, " We have no doubt but that we could get the 
 insurance effected in New York at that premium." They had, 
 in fact, applied in New York, and could not obtain insurance 
 on the risk at any rate. It was taken at Philadelphia at twenty 
 per cent. Mr. Justice Washington instructed the jury, that this 
 was not a misrepresentation that defeated the assurance, because 
 it purported to be merely an opinion, and because the under- 
 writers must have known that it was not correct, since the 
 assured would not have paid twenty per cent, in Philadelphia, 
 if they could have effected a policy at fifteen per cent, in New 
 York.3 
 
 1 Fiske r. N. E. Marine Ins. Co. 15 2 Ruggles v. General Interest Ins. 
 Pick. Mass. 310. See Ely v. Hallett, 2 Co. 4 Mas. C. C. 74. 
 Caines, N. Y. 57. 3 Clasou and Dunham i'. Smith, 3 
 
 Wash. C. C. 156.
 
 310 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 579. //' the assured states as a fact, or distinctly implies, that 
 other insurers have already underwritten the risk at a certain rate 
 of preinium, this is considered to be a representation, and the as- 
 sured unll be answerable for its correctness accordingly. 
 
 Thus, where a broker in London wrote to underwriters in 
 Scotland, that the assured " had done as much insurance as the 
 underwriters in London were inclined to take at eight per cent.," 
 and not any had been done in London at that rate, it was held 
 to be a misrepresentation.^ 
 
 580. Where goods are insured from a certain port, this may be 
 an implied representation of their being loaded on board there, 
 whether it is so, will depend on the particular port, or the voyage 
 or passage for which the insurance is made, and what nations 
 are at war at the time, and upon the national character of the 
 ship or cargo insured.^ 
 
 581. If the order for insurance is sent by a special messenger, 
 this must be disclosed, in case such is resorted to only on extraor- 
 dinary emergencies betiveen the same places, and a different, con- 
 venient, and reasonably expeditious mode of communication is 
 ordinarily used. 
 
 It was held in the French Court of Appeals, that where the 
 order was frequently sent by express, its being so sent need not 
 be disclosed.^ 
 
 If the dates disclosed show plainly that the facts communi- 
 cated must have come by express, the fact of the express need 
 not be specifically stated.* 
 
 582. It is not necessary to the vcdidity of the insurance in the 
 outset, that the assured should disclose his intention to enhance or 
 vary the risk described in the policy, at some intermediate stage. 
 Such an enhancement or change affects the policy, if at all, as a 
 deviation, and not as a concealment. 
 
 Such a case is parallel to a promissory representation, in 
 which the underwriters are discharged from the time of the 
 promise being broken ; so in this case they are discharged from 
 the time of the intention being put into execution. 
 
 ' Sibbald v. Hill, 2 Dow, Pari. Cas. that he does not own the vehicle. 
 
 263. Supra, No. 567. 
 
 2 Infra, No. 939. A carrier who in- 3 Pothier, Ins. No. 12. 
 
 sures his interest as such need not state 4 Court v. Martineau, 3 Dougl. 161.
 
 SECT. VI.] WHAT FACTS MUST BE DISCLOSED, ETC. 311 
 
 The case is also parallel to that of a non-compliance with an 
 express or implied warranty at some intermediate stage of the 
 voyage which is still the same that is described in the policy, 
 whereby the insurers are temporarily or ultimately discharged 
 from their liability. The case in question is, in fact, a violation 
 of the warranty, implied by the fact of making the insurance, 
 not unnecessarily to enhance or change the risk. 
 
 In the first place, the rights and liabilities of the parties to the 
 policy must be correlative and reciprocal. If the assured is 
 precluded from alleging a concealment as the ground of reclaim- 
 ing the premium, as I presume he is, then, if there is no fraud 
 on his part, he is certainly, as a matter of equity, no less than 
 legal principle, to be entitled to the benefit of his contract until 
 he forfeits it by some act, whatever may have been his intentions 
 in the mean time. 
 
 Let the assured be himself master, and sail on w^hat shall 
 be considered to be the voyage described in the policy, with an 
 intention in some stage to do what will be an enhancement or 
 change of the risk, without fraud, and without being aware that 
 he will thereby forfeit the policy, or with the intent to forfeit it 
 or suspend the risk temporarily. Surely the underwriter has no 
 right, after a loss, to interrogate him about such prior intention, 
 which was not executed. 
 
 It is difficult to distinguish this case, in principle, from that of 
 instructions to another as master, to the same effect. The two 
 cases are substantially identical, w^here the voyage includes 
 touching at divers intermediate ports, or is divided into stages 
 at which the owner might have a chance to countermand his 
 original instructions to the master. 
 
 This reason applies with still greater, not to say conclusive 
 force, to a policy on the goods of another shipper than the owner 
 of the ship. 
 
 In the often cited case before Lord Kenyon and his associ- 
 ates,^ on a policy on goods by the Arethusa, from London to 
 Jamaica, the master was ordered to take the northern route, from 
 a certain point, and touch at Cape Nicola Mole, the southern 
 route being the more usual, and the fact being proved or as- 
 
 1 Middlewood v. Blakes, 7 Term, 162.
 
 812 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 sumed in the case, that the election of the route from the place 
 where it branches was usually left to the discretion of the cap- 
 tain, to be exercised on arriving at that place. The ship was 
 captured on the northern route after having passed the dividing 
 point. A special jury, in compliance with Lord Kenyon's ruling, 
 found that the not disclosing of the order given to the captain 
 was a " concealment." In deciding on a motion for a new trial, 
 Lord Kenyon said, " The fact that the discretion of the captain 
 was taken away ought to have been communicated to the un- 
 derwriters." Ashhurst, J. : " Had the intention of going to St. 
 Domingo been first communicated to the underwriters, perhaps 
 they would not have subscribed." Grove, J. : " The circum- 
 stance " (namely, the order,) " should have been disclosed." 
 Lawrence, J., assented to the decision of the other judges and 
 the jury, but not to the grounds given for it. He said, if the 
 capture had taken place before coming to the dividing point, 
 the insurers would, in his opinion, have been liable for the 
 loss, but were discharged on the ground of deviation, because 
 the master did not in fact exercise his discretion in making 
 an election of the northern route. That is, if he had used 
 his own discretion at the dividing point in taking the north- 
 ern route, as his order was, the insurers would have been liable 
 for the loss. 
 
 The difference of the three judges from Lawrence, in the 
 grounds of their respective opinions, is that they put their opinion 
 upon the non-disclosure, he upon the captain's not in fact taking 
 the northern route by preference. Each either says directly, or 
 distinctly implies, that, if the capture had been made before 
 passing the dividing point, the underwriters would have been 
 liable for the loss. 
 
 This case, so far as it goes, concurs with the grounds stated in 
 support of the proposition above laid down, of the correctness of 
 which I should have more decided confidence, had not a different 
 opinion been expressed by Judge Duer.^ 
 
 583. We shall see hereafter, under the inquiry respecting the 
 risks covered by a policy, that a party may be insured against 
 the perils of an interloping trade, provided the underwriter has 
 
 1 2 Duer, Mar. Ins. 491, &c.
 
 SECT. VI.] WHAT FACTS MUST BE DISCLOSED, ETC. 313 
 
 notice by the policy itself, or otherwise, that trade in contraven- 
 tion of foreign commercial regulations is intended.^ Whence it 
 follows conversely, that, 
 
 If the voyage proposed for insurance is in contravention of a 
 recent foreign trade-law knoivn to the assured, or which he is 
 bound to know, and not known or presumed from its publicity 
 or otherivise to be to the underwriter, such intended contravention 
 must be disclosed, or the underwriter will not be answerable for 
 any loss consequent thereon. 
 
 584. Whether the fact that the vessel has a letter of marque 
 must be disclosed ? 
 
 Silence as to this fact ivill not defeat the policy, where there is 
 no deviation or delay in consequence, except in case of a policy 
 upon neutral goods. If the master intends to use the commis- 
 sion only on the defensive, and uses it only so, the insurers have 
 nothing to complain of. If he is instructed to chase vessels, 
 but sees none to chase, or disregards the instructions and keeps 
 within the terms of the policy, it is then the case of instruction 
 to enhance or change the risk, involving a question of deviation, 
 rather than one of representation and concealment, and will 
 recur under that head.^ 
 
 The doctrine just stated is inconsistent with a deliberate de- 
 cision of Lord Kenyon and Mr. J. Grose.^ But their opinion 
 has been doubted,^ and was reasserted with apparent hesitation 
 by Lord Kenyon himself,° and is unsupported by analogy or 
 precedent, and has not been subsequently recognized as law in 
 any case that has come to my knowledge. 
 
 585. Where a sufficient representation is made to put the tin- 
 derwriters upon inquiry for further information, if they wish for 
 it, and they neglect to make such inquiry, they are bound by the 
 policy.*^ 
 
 1 Emerigon, torn. 1, p. 6X4, c. 12, s. 3 Denison v. Modigliani, 5 Term, 
 51; Valin, torn. 2, p. 131; tit. Insur- 580. 
 
 ance, a. 49; Us et Cout. de la Mer, 4 i Marsh. 2d ed. p. 282, book 1, c. 
 
 p. 3, a. 6, n. 1 ; and Parker v. Jones, 7, s. 6. 
 
 13 Mass. 173, and divers other cases 5 6 Term, 382. 
 
 cited in the chapter on risks to this 6 Court v. Martineau, 3 Dougl. 161 ; 
 
 point. Fort v. Lee, 3 Taunt. 381 ; Alsop v. 
 
 2 And see supra, No. 582. Commercial Ins. Co. 1 Sunin. C. C 
 VOL. I. 27
 
 314 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 586. The assured must make true answers to the inquiries of 
 the insurer, respecting circumstances affecting' the risk} 
 
 Such inquiries may make it necessary that the assured should 
 disclose facts respecting which he might otherwise be silent. 
 Circumstances affecting the seaworthiness of the ship need not 
 be disclosed in the first instance by the assured, but he must 
 make a true representation of such facts in reply to the inquiries 
 of the insurer : 
 
 As where the assured is inquired of as to the age of the ship, 
 and the place where she was built.^ 
 
 This principle is not limited to the subjects of implied war- 
 ranties. Insurance being made for a voyage upon which the 
 ship had already sailed, without a disclosure of this fact, the 
 court said : " If the insurer wanted to know whether the ship 
 had sailed, he ought to have inquired." ^ That is, an inquiry 
 imposes the duty of representing a fact which otherwise need 
 not be represented. 
 
 But a general inquiry as to seaworthiness does not require a 
 statement of all the particular facts bearing upon it.* 
 
 586 a. An oral representation is sufficient unless the policy or 
 regulations and conditions referred to therein, require it to be in 
 writing.^ 
 
 In marine policies oral representations have been considerably 
 in use,*' in other species of insurance they are usually required to 
 be in writing. 
 
 587. The rules in regard to representation apply as well to 
 reinsurance as to original insurance, and have a broader appli- 
 cation in one respect, for the original assured is not bound 
 to make any representation in relation to his own character ; 
 whereas, the party effecting reinsurance is bound to communi- 
 cate facts within his knowledge in relation to the character of 
 
 451, and cases generally. The doc- ^ Fort v. Lee, 3 Taunt. 381. 
 
 trine on this subject is more definitely '^ Augusta, &c. Co. v. Abbott, 12 Md. 
 
 stated under the head of construction. 348. 
 
 Supra, No. 568. ^ Masters v. Madison County Mut. 
 
 1 Infra, No. 641. Ins. Co. 11 Barb. N. Y. 624. 
 
 2 Popleston V. Kitchen, 3 Wash. C. 6 Supra, No. 527. 
 C. 138.
 
 SECT. VII.] SPECIES OF PROPERTY, ETC. 315 
 
 the original assured, material to the risk and tending to enhance 
 the premium-^ 
 
 587 a. A bottomry or respondentia contract being- an insurance 
 by the lender, the doctrines in respect to representation and con- 
 cealment seem to be no less applicable to it than to insurance in 
 the more ordinary form. 
 
 SECTION VII. SPECIES OF PROPERTY, AND NATURE OF THE 
 
 INTEREST. 
 
 588. If the subject or insurable interest is so described that 
 the policy is applicable to it, the assured is, in general^' not re- 
 quired to disclose the particular nature and modifications of his 
 interest. 
 
 Where the assured is only part-owner, trustee, or mortgager 
 or mortgagee of the ship and goods insured, or the charterer of 
 the ship, with an agreement to pay for it if lost, and so in effect 
 applies for reinsurance, or holds as administrator, it is not, in 
 either of these cases, requisite that he should make known his 
 qualified or partial interest.^ 
 
 Nor is the owner of the ship bound to state that it is let by 
 charter-party.* 
 
 5^9. But if the national character of the subject is incorrectly 
 represented, and it is material, the policy loill be void : 
 
 As where a ship represented to be American Was owned by 
 Spaniards.^ 
 
 590. Freight may be insured without disclosing that it is for 
 only a part of a voyage.^ 
 
 591. Where the property is of an unusual kind for the voyage, 
 
 1 N. Y. Bowery Fire Ins. Co. v. N. Im. Co. 1 Wright, Ohio, 542 ; Finney 
 Y. Ins. Co. 17 Wend. N. Y. 359; Hart- v. Warren Ins. Co. 1 Mete. Mass. IG ; 
 ford Ins. Co. v. Harmer, 2 Ohio St. Holbrook v. American Ins. Co. 1 Curt. 
 452. , C. C. 193 ; Sussex Ins. Co. v. Woodruff, 
 
 2 See supra, c. 5, No. 416-424. 2 Dutch. X. J. 541 ; Bidwell i. North 
 
 3 Oliver v. Greene, 3 Mass. 133; Western Ins. Co. 24 N. Y. 302. 
 Lawrence v. Van Hoi'n, 1 Caines, N. Y. * Hodgson v. Miss. Ins. Co. 2 La. 
 276; Locke I'. North American Ins. Co. 341. 
 
 13 Mass. 61; Bartlett v. Walter, id. 5 Price u. Depeau, 1 Brev. So. C. 452. 
 267; Williams's Adm'r v. Cincinnati ^ Taylor r. AVilson, 15 East, 324.
 
 316 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 or the situation or use in contemplation of the parties, and sub- 
 ject to extraordinary risk, by reason of its species or nature, and 
 the underwriter cannot be presumed to expect that the policy 
 might be intended by the assured to cover such a subject, the 
 insurance of it under a general description, such as " property," 
 " merchandise," or the like, ivill not be valid unless the kind of 
 property is represented : 
 
 As in case of the property being live animals.^ 
 
 592. The materiality of the kind of title or interest of the assured 
 may depend upon the stipulations and conditions of the policy. 
 
 Where a fire insurance company had a lien for premium on 
 the real estate upon which the insured building stood, an insur- 
 ance upon it by him as his own, when he only had a bond for a 
 deed, was held not to be binding upon the underwriters,^ 
 
 In a Pennsylvania case, Gibson, C. J., and his associates con- 
 sider the statement of an incumbrance or prior lien to be mate- 
 rial, and the omission to represent it to be a concealment, upon 
 the ground that on payment of a total loss the underwriters are 
 entitled to the cession of the insured interest, whether that of 
 owner or mortgagee.^ But in this case, as in marine insurance,"^ 
 the loss may be adjusted by deducting the value of the salvage. 
 The omission does not therefore seem to be material and to 
 amount to a concealment, unless some inquiry or some represen- 
 tation made, or some provision or implication in the policy, ren- 
 ders the disclosure material, as in the case before cited of a lien 
 for premium. 
 
 SECTION VIII. USAGES OF THE TRADE NEED NOT BE DISCLOSED. 
 
 593. The underwriter is presumed to know the usages of the 
 particular trade insured,^ and these, accordingly, need not to be 
 represented to them by the assured. 
 
 1 Allegre's Adai'rs v. Maryland Ins. See also Pinkliani i\ jMorancr, 40 Me. 
 Co. 2 Gill & J. Md. 136. See Wolcott 587. 
 
 V. Eagle Ins. Co. 4 Pick. Mass. 429; 3 Smith ?;. Columbia Ins. Co. 1 7 Penn. 
 
 Chesapeake Ins. Co. v. Allegre's Adm'rs, St. 253. 
 
 2 Gill & J. Md. IG4. 4 Infra, No. 171G. 
 
 2 Brown v. Williams, 28 Me. 252. 5 Maiyland and Phoenix Ins. Co. v.
 
 SECT. VIII.] USAGES OF THE TRADE NEED NOT BE DISCLOSED. 317 
 
 Where it is customary on the voyage insured to take fictitious 
 clearances, the taking such need not be disclosed.^ 
 
 The underwriter is presumed to know the local situation and 
 circumstances of the ports comprehended within the voyage^ and 
 accordingly these need not to be represented. 
 
 An insurance was made " from New York to port Sisal," and 
 other ports. There is no harbor at Sisal, and vessels lie at anchor 
 in an open roadstead while loading and unloading. The trade 
 was recent at the time of making the insurance, and the fact that 
 there was no harbor was not disclosed to the underwriters. Kent, 
 C. J., said: " The assured was not bound to communicate to the 
 underwriters his knowledge of Sisal. This was a matter of gen- 
 eral notoriety, equally open to the knowledge of both parties, 
 and which both must be presumed equally to know."'^ 
 
 In the case of an insurance on a ship from Oporto to London, 
 a part of the cargo being taken on board within the bar of Oporto, 
 the ship was removed over the bar to take in the remainder, as 
 was usual in regard to ships of light burden, whence she was 
 driven out to sea by a gale of wind, and captured. The insurers 
 insisted that they should have been informed that a part of the 
 cargo was to be taken in outside of the bar, but Lord Ellen- 
 borough ruled, that they " were bound of themselves to take 
 notice of the usage." ^ 
 
 The same opinion, in effect, was given respecting a policy upon 
 goods to a port in Jamaica, "till landed;" and it was usual, at 
 the port of destination, to land the cargo in shallops from ships 
 of the size of that which carried the goods insured. The court 
 said, " The underwriter should inquire what is the usual mode of 
 landing the goods." * 
 
 Where it is usual for vessels on the voyage insured to make 
 an intermediate voyage, such intermediate voyage may be made 
 without apprising the assurers that it is intended. 
 
 Such was formerly the practice in India voyages ; the East 
 India Company uniformly reserved, in the charter-party, the lib- 
 
 Batliurst, 5 Gill & J. Md. 159; and see 3 Kingston v. Knibbs, 1 Campb. 
 
 supra, c. 1, s. 13, No. 133. 508, n. 
 
 1 Planche v. Fletcher, 1 Dougl. 238. 4 Stewart v. Bell, 5 Barnew. & Aid. 
 
 2 Delonguemere v. N. Y. Firemen's 238. 
 Ins. Co. 10 Johns. N. Y. 120. 
 
 27*
 
 318 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 erty of employing the vessel one year on intermediate voyages 
 from port to port in India. A similar usage prevailed in New- 
 foundland voyages, and it was held, that the assured was not 
 bound to state this to the underwriters. Lord EUenborough 
 said : " The underwriter must refer himself to the usage of the 
 trade, which he is bound to know." ^ " Is it notorious that ships 
 in this trade, upon their arrival at Newfoundland, are either 
 employed in ' banking,' or take an intermediate voyage ? If so, 
 it must be presumed to be equally in the knowledge of both par- 
 ties." 2 
 
 A vessel being insured to Xibara, in the island of Cuba, the 
 assured omitted to state that there were no pilots there. This 
 was not a material concealment.^ 
 
 A ship was represented to be " at Limerick." She was, by the 
 intelligence on which the representation was made, at Grass 
 Island, about nine miles below Limerick, but within the port of 
 that place, and where vessels of the size of the one to which the 
 representation related usually unload a part of their cargoes. It 
 was held, that the representation was true.* 
 
 594. It seems to be the better opinion, that a representation of 
 an intention to vary from a usage of the particular voyage or risk., 
 whether by sea or land, will justify the variation and countervail 
 the evidence aliunde of the usage, provided the variation is not 
 inconsistent ivith the explicit provisions of the policy. 
 
 SECTION IX. EVASION OF FOREIGN COMMERCIAL AND MUNICIPAL 
 
 REGULATIONS. 
 
 595. The doctrine has already been stated, that the subjects of 
 one state are not bound to respect the commercial and municipal 
 regulations of another,^ Such regulations have often a material 
 importance in determining the degree of risk, and accordingly the 
 
 1 And see ruling of Lord Eldon, Ou- Mart. La. N. s. 289. See also 2 Gill 
 gier V. Jennings, 1 Canipb. 505, n. & J. Md. 164. 
 
 2 Vallance v. Dewar, 1 Campb. 503. * Bell v. Marine Ins. Co. 8 Serg. & 
 
 3 Nellson v. Louisiana Ins. Co. 5 R. Penn. 98. 
 
 5 Supra, c. 3, s. 2, No. 268.
 
 SECT. IX.] COMMERCIAL AND MUNICIPAL REGULATIONS. 319 
 
 question arises, how far the assured is bound to make a disclos- 
 ure of such as bear upon the adventure. 
 
 Upon this subject it has been held, that, where the trade is pro- 
 hibited by the standing and nniform ivell-knovn regulations of a 
 foreign country, it is not necessary to make any representation of 
 the prohibition} 
 
 As in an insurance on goods from Havana to Carthagena, war- 
 ranted American, when both places were in Spanish colonies.'-^ 
 
 Nor is it necessary in such case to state that the vessel will 
 carry simulated papers, and that the property will be disguised.^ 
 
 In the case of a vessel engaged in a smuggling trade with 
 the Spaniards on the Mississippi, Lord Mansfield said : " If the 
 insurer had, with a full knowledge that it was a smuggling trade 
 with Spain, made the insurance, then it might be a fair contract."' "^ 
 
 596. //■ the assured has intelligence of a neiv regulation, by 
 ivhich the property is exposed to seizure, he is bound to disclose it. 
 
 An order having been given for insurance in London, on a ves- 
 sel bound to Varel, on the Jade, a policy could not be effected on 
 account of information of a recent decree of the French Emperor, 
 ordering all vessels entering the Jade to be confiscated. The ves- 
 sel was insured in the United States, without any disclosure by 
 the assured of a letter informing him why insurance could not 
 be effected in London. The court said : " The letter contained 
 information very material in estimating the risk. The withhold- 
 ing it from the underwriter must be considered fraudulent, and 
 the insurance was therefore void." ^ 
 
 597. If a trade, not prohibited by standing regulations, is 
 sometimes prohibited and sometimes permitted, the iinderivriter is 
 not bound to take notice of its being prohibited at the time of 
 making the policy. The existing prohibition, and the necessity 
 of using false papers, must be disclosed.*^ 
 
 598. It is not necessary to inform the insurers, that, for the 
 purpose of saving duties, the ship takes out a clearance for a port 
 oi destin3.t\on dijferent from that for which she in fact sails, unless 
 the false clearance affects the risk materially. 
 
 1 Pollock V. Babiock, « Mas^. 234. ^ Lever v. Fletcher, Park, Ins. 360. 
 
 2 Calbraith v. Grade, 1 Wa.sh. C C. 5 Hoyt v. Gilman, 8 Mass. 336. 
 219- 6 Blagge v. New York Ins. Co. 1 
 
 3 Livingston v. Maryland Ins. Co. 7 Caines, N. Y. 549. 
 Cranch, 506.
 
 320 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 A vessel cleared at Honduras for Portsmouth, for the purpose 
 of saving duties, though she sailed for New York, to which port 
 she was insured. The omitting to disclose this fact did not affect 
 the policy.^ 
 
 599. Where fictitious clearances are customary on the voyage 
 insured, the underwriters are presumed to be acquainted with this 
 custom, as they are with all other customs of trade. 
 
 In case of a ship insured from London to Nantz, with liberty 
 to touch at Ostend, for and from which port she took clearances, 
 for the purpose of avoiding certain duties at Nantz, and without 
 any intention of touching at Ostend, it was held, that the policy 
 was not affected by the omission of the assured to state the false 
 clearances, and the purpose of taking them, as it appeared that 
 this was the usage of the trade, with which the insurers were 
 presumed to be acquainted.'-^ 
 
 SECTION X. MATTERS OF EXPRESS STIPULATION IN THE POLICY. 
 
 600. It is not recjnired of the assured to make a representation 
 of any circumstance ivliich is provided for by the express stipula- 
 tions of the policy. 
 
 In regard to subjects of the express provisions or statements of 
 the policy, any other representation is of no avail, since it will be 
 controlled by the policy itself.^ 
 
 On a claim for a loss, it was objected, that a circumstance 
 bearing upon the character of the property as neutral was not 
 disclosed. Spencer, C. J., for the court : " If it be conceded that 
 those circumstances did enhance the risk, the answer is decisive, 
 that a party need not communicate any thing with respect to a 
 fact in regard to which there is an express or implied warranty." ^ 
 
 A vessel being insured "to Kingston and a market, in Jamaica," 
 the master was ordered, when off the east end of the island, if in 
 
 1 Barnewall v. Church, 1 Caines, N. Y. 202. See Augusta, &c. Co. v. 
 N. Y. 217. See also Talcot v. Marine Abbott, 12 Md. 348. 
 
 Ins. Co. 2 Johns. N. Y. 130. '' De Wolf v. N. Y. Firemen's Ins. 
 
 2 Planche v. Fletcher, 1 Dougl. 238. Co. 20 Johns. N. Y. 214 ; confirmed, 
 
 3 Astor V. Union Ins. Co. 7 Cow. N. Y. Firemen's Ins. Co. v. De Wo!f, 2 
 
 Cow. N. Y. 56, in the Court of Errors.
 
 SECT. XI.J MATTERS OF IMPLIED WARRANTY. 321 
 
 season to fulfil a contract to deliver goods at Port Maria, to put 
 in there; otherwise, to proceed to Kingston. The vessel put into 
 Port Maria, accordingly, and returned towards the United States, 
 without touching at Kingston, and was lost on her homeward 
 voyage. It was held, that omitting to state these orders to the 
 underwriters was not a material concealment, for the course of 
 the voyage, and the ports at which the vessel might touch, must 
 be determined by the description of the voyage in the policy .^ 
 
 SECTION XI. MATTERS OF IMPLIED WARRANTY OR STIPULATION. 
 
 601. Matters of implied agreement in the policy need not he 
 represented by the assured in the first instance. But he is bound 
 to make time answers to inquiries by the underwriters, relating- to 
 matters of implied warranty. And though no such inquiries are 
 made, still, if the assured voluntarily make representations of this 
 description, he will be bound thereby, and the policy will be void, 
 unless they are substantially true.^ 
 
 It is an implied agreement on the part of the assured in every 
 policy, whether on the ship, cargo, or freight, that the ship is 
 seaworthy, and in every respect sufficient and well fitted for the 
 voyage on which she is bound. The assured is not therefore 
 required to state, in the first instance, any facts which only aftect 
 the seaworthiness of the ship. 
 
 The owner of goods, insured from Madeira to Charleston, had, 
 the day before effecting the policy, received a letter from tlie 
 captain, at Madeira, stating that " the ship was very leaky, and 
 that ten pipes of wine had been half covered with water," of 
 which he did not inform the underwriter, who, on that account, 
 refused to pay a loss. Lord Mansfield told the jury, "that there 
 should be a representation of every thing relating to the risk, 
 except it be covered by a warranty. It is a condition or implied 
 warranty in every policy, that the ship is seaworthy, and therefore 
 there need be no representation of that." ^ 
 
 1 Houston V. N. E. Ins. Co. 5 Pick, policy. Bulkly v. Protection Ins. Co. 
 ISIass. 89. 2 Paine, C. C. 82. 
 
 2 But an express misrepresentation ^ Sboolbred i'. Nutt, Park, 34C ; and 
 on such a subject is held to avoid the see De AVolf i-. Firemen's Ins. Co. 20
 
 322 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 In case of insurance on a ship at and from Trinidad to London, 
 the owners had received a letter from the captain, in the West 
 Indies, stating that " the ship was in very good order, but that he 
 had had a survey on her, on account of her bad character," of 
 which they did not inform the underwriter. The jury found, 
 that, if this letter had been disclosed, it would have varied the 
 premium, even if the survey, which was very favorable to the 
 character of the vessel, had been laid before the underwriter at 
 the same time ; for it was said by some of the witnesses, that 
 surveys made in the West Indies were of very little authority. 
 
 Lord Ellenborough, giving the opinion of the court, said : " Is 
 it then to be laid down as a principle, that every fact known to 
 the assured, with respect to the condition, quality, and circum- 
 stances of the ship, prior to the period of effecting the insurance, 
 which may possibly guide the judgment of the underwriter in 
 undertaking or refusing to undertake the insurance, is to be com- 
 municated to him ? It would certainly have some weight in 
 guiding the judgment of an underwriter on such a subject, to 
 know how old the ship was, where she was built, whether orig- 
 inally 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 docks those 
 repairs were done, and if the voyage were, as this was, a voyage 
 home, what accidents the ship had met with in her outward 
 voyage. AH this may be very convenient and proper for the 
 insurer to be informed of, and all this he may ask of the assured ; 
 and if the assured should withhold, upon being asked for it, any 
 material part of such required information, his policy could not 
 be sustained." It was held not to be a concealment.^ 
 
 Under a policy on a vessel from Belfast, in Ireland, to Lisbon, 
 and thence to New York, the assured had notice of a draft upon 
 him by the master for expenses at Havana, where he put in, as 
 he alleged, for water, on his prior passage from New Orleans to 
 Belfast, which the owners had refused to pay, on the ground that 
 the expenses were unnecessary. They had also been informed 
 
 Johns. N. Y. 214 ; 2 Cow. N. Y. 56 ; and see Dennis v. Ludlow, 2 Caines, 
 supra, No. GOO. N. Y. 111. 
 
 1 Haywood v. Rodgers, 4 East, 590;
 
 SECT. XI.] MATTERS OF IMPLIED WARRANTY. 323 
 
 that the vessel had received damage at Cork, where it put in on 
 the previous passage to Belfast, and the persons there acting as 
 agents for the vessel had written, that they feared the captain 
 " was careless of his business, and his amount of repairs and 
 expenses would astonish them all." They had been informed 
 that his detention there was very great, " yet he seemed very 
 easy under it." The assured had also written to their Liverpool 
 correspondent, that " the information confirmed their apprehen- 
 sions as to Captain C.'s conduct." None of these circumstances 
 were disclosed. 
 
 This was held, however, not to be a concealment, for the reason 
 that the facts suppressed had reference to the seaworthiness of 
 the vessel, which was warranted by the assured, and at their risk, 
 and not at the risk of the underwriters.^ 
 
 602. If the assured, prior to effecting- a policy, discloses a fact, 
 or an intention to do any act, not inconsistent with the express 
 provisions of the policy, but ivhich, if not disclosed, would be a 
 violation of a warranty implied by the fact of making the insur- 
 ance, but not by the obvious and necessary construction of the 
 language of the policy, the undericriters are bound by such 
 representation, and the policy is valid notwithstanding such fact, 
 or the execution of such intention, provided the case is free from 
 illegality. 
 
 This proposition is applicable to the representation of an 
 intention to vary from a usage, a conformity to which is not 
 explicitly requisite by the express provisions of the policy. 
 
 If the intention or fact is irreconcilable with the explicit terms 
 of the policy, it is not the case now in question ; but one, the 
 rule applicable to which has been already laid down.^ 
 
 The above proposition has not, that I am aware of, been ex- 
 plicitly engrafted into the English or American jurisprudence, 
 and must therefore depend upon the reasons, analogies, implica- 
 tions, and inferences that can be brought to its support. 
 
 The difficulty of the question arises from the circumstance, 
 that usages and implied warranties are part of the policy, and 
 no principle of the law is more firmly established and more 
 
 1 Walden v. N. Y. Firemen's Ins. 2 Supra, No. 120. 
 
 Co. 1 2 Johns. N. Y. 1 28.
 
 324 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 decidedly fundamental, than the principle that a written contract 
 cannot be superseded by words spoken. Oral testimony is ad- 
 missible of what has been done in satisfaction of a written con- 
 tract, but not what of it requires to be done. The whole proof 
 must, in the first place, go to the construction of the writing; 
 that is to say, it must go only to the intention of the parties 
 thereby signified. Accordingly, since usages and implied war- 
 ranties are said to be included in, and to constitute part of, the 
 contract, the doubt is, whether preliminary and simultaneous 
 collateral statements can be introduced by way of coming at 
 the intention and mutual understanding of the parties. 
 
 We may, I think, lay it down as an axiom, if not as a corol- 
 lary, on this subject, that, where the assured is bound by a 
 representation, the underwriter is bound by notice of it. It is 
 a fundamental principle in contracts, that we are to impute 
 to each party a knowledge of what the contract requires of the 
 other. Now we have already seen it to be incorporated into this 
 branch of jurisprudence, that, though the assured is not bound 
 to make any representation relative to the subject of any implied 
 warranty, yet if he is inquired of, he must make true answers, 
 or the policy will be void.^ If he is bound by such representa- 
 tions, then, e converso, the underwriter is bound by notice of 
 them when made. The contrary is a plain inconsistency. 
 
 Another rule of representation and concealment covers the 
 case. The parties, as we have seen, are both subject to the rules 
 relative to representation and concealment. When, therefore, 
 the assured has stated a material fact, or an intention to do a 
 material act not inconsistent with the provisions of the policy, 
 a knowledge of this is as plainly imputable to the underwriter 
 as that of usages and all the other facts which, as already said, 
 he is bound to know.^ By then proceeding and making the 
 contract without any explicit provision as to such fact or pur- 
 pose, and receiving the premium, he by the plainest implication 
 concedes the fact or the execution of the intention. It is a plain 
 fraud on his part subsequently to deny his assent. 
 
 The doctrine in question was expressly recognized by Lord 
 Kenyon, and Ashhurst and Grove, Justices, and not disclaimed, 
 
 1 Supra, No. 586, 600. 2 Supra, s. 6, No. 571, and s. 8.
 
 SECT. XII.] WHAT INTELLIGENCE MUST BE COMMUNICATED. 825 
 
 though not asserted, by Lawrence, J., in the case before stated, 
 of the vessel being ordered to go by the northern route to 
 Jamaica ; ^ for the three first-named judges, following the ruling 
 of Lord Kenyon to the jury, put the decision wholly upon the 
 non-disclosure of the order. That is, in effect, saying that, if 
 the assured had made known the order to take that route, the 
 insurers would have been liable for the loss. In other words, 
 the obligation by usage to leave the election of the route to the 
 exercise of the captain's discretion at the dividing point, would 
 feve been superseded and cancelled by a disclosure of an in- 
 tention to take away, or the fact that the ship-owner had taken 
 away, that discretion. 
 
 I accordingly conclude that where there is no question of 
 legality, or fraud, and the assured states a material fact touching 
 either of the warranties of the commencement of the voyage 
 within a reasonable time, the route or manner of prosecuting it, 
 the seaworthiness of the ship, or of neutral character and of 
 conduct, treated of in the next chapter, assuming that the war- 
 ranty is implied merely by the fact of making the insurance, and 
 not specifically by the phraseology of the policy, such implied 
 warranty is subject to the representation. 
 
 SECTION XII. WHAT KINDS OF INTELLIGENCE MUST BE COMMU- 
 NICATED. 
 
 603. The assured is not required to communicate to the under- 
 writers intelligence known, or presumed from the circumstances, 
 to be known to them, in whatever way they may have been in- 
 formed. 
 
 604. The question whether intelligence is known to the insurers 
 otherwise than from the assured, is for the jury?" 
 
 As far as material facts are derived from newspapers and 
 other channels of public intelligence, the question arises as to 
 
 1 Mlddlewood i;. Blakes, 7 Term, SBingh. 11)8; Green o. Merchants' Ins. 
 162. Co. 10 Pick. Mass. 402; and see cases 
 
 '•^ Friere v. Woodhouse, 1 Holt, 572; generally. 
 Elton V. l^arkins, 5 Carr. & P. 86, 385 ; 
 
 VOL. I. 28
 
 326 EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 what species of publication shall be presumed to be within the 
 knowledge of the underwriter. 
 
 605. Facts knoivn at the office or place of business of either 
 parti/ to the policy, are primd facie presumed to be knoivn to 
 him. 
 
 It has been held in England, that intelligence posted up in the 
 inner room of Lloyd's Coffee House is prima facie presumed to 
 be known to London underwriters who frequent that office. 
 
 At the time of insuring the ship Lusitania from the Brazils 
 to Lisbon, it was communicated that she had been out fift^ 
 seven days, but the assured did not inform the underwriters that 
 the Victorioso, which sailed in company with his ship had arrived 
 at Lisbon. This circumstance had however been published in 
 the list of arrivals at Lloyd's, where the policy was effected. 
 Burrough, J. : " The arrival of the other vessel must be presumed 
 within the knowledge of the underwriters, from the circumstance 
 of its being contained in Lloyd's printed lists." A special jury 
 of merchants concurred in this opinion.^ 
 
 But though the shipping-list at Lloyd's is prima facie evidence 
 of facts being known to the underwriters at that office, yet where 
 the assured made a false representation of the time of a vessel's 
 sailing, the underwriter was held not to be bound by the in- 
 telligence in the shipping-list to the effect of rendering the false 
 representation immaterial.^ 
 
 So, also, facts known to an officer of an insurance company 
 having charge of its business, are presumed to be known to the 
 company.^ 
 
 606. The insurers are not conclusively presumed to know all the 
 marine intelligence published in the newspapers taken in their own 
 office, or published in the place ivhere it is kept. 
 
 On the question whether information of the time of a vessel's 
 sailing, given in the marine intelligence of a New York news- 
 paper, taken at the office of an insurance company in New 
 Bedford, might, from the evidence, have been rightly found by 
 the jury to have been known to the president, Mr. C. J. Shaw, 
 
 1 Friere v. Woodhouse, 1 Holt, 572. 2 Mackintosh v. Marshall, 11 ]Mees. & 
 See also Elton v. Larkins, 8 Bingh. 198, W. Exoh. IIG. 
 
 5 Carr. & P. 86, 385. 3 Himely v. South Carolina Ins. Co. 
 
 1 So. C. 154. See same case supra.
 
 SECT. XII.] WHAT INTELLIGENCE xMUST BE COMMUNICATED. 827 
 
 said, in giving the opinion of the court against a new trial : 
 " It may be very true that underwriters are not, under all cir- 
 cumstances, to be presumed to be acquainted with all the in- 
 telligence contained in the papers taken at their office. But the 
 general presumption is, that the agents of the office will ex- 
 amine with some care those items of marine intelligence which 
 are expressly designed speedily to diffuse information upon a 
 subject so immediately interesting to them, especially in relation 
 to vessels belonging to their own port." ^ 
 
 It having been admitted by the president of an insurance 
 company, that he knew of the arrival of a certain vessel at a 
 distant port, the arrival of which had been mentioned in the 
 marine intelligence of a newspaper published at such port, and 
 taken at the office of the company, this was held sufficient 
 ground for admitting evidence of the news, brought by the 
 vessel, of the time of sailing of another, published in the marine 
 intelligence of the same newspaper, that the jury might infer 
 that the president knew of the sailing of such vessel, there not 
 appearing to be any other way of his being informed of the 
 arrival of the vessel. If he had thus known of the time of 
 sailing of the other vessel, this excused the assured from rep- 
 resenting that fact.2 
 
 Insurance was made in New York on the "sloop Friendship, 
 from Washington, in North Carolina, to Charleston, in South 
 Carolina." A newspaper of the 19th of April, taken at the office 
 of the insurers, contained intelligence that " a New York sloop, 
 bound from Wilmington, in North Carolina, to Charleston, in 
 South Carolina, had been stranded on Ocracoke Bar." On 
 account of this intelligence, the risk was refused at one office on 
 the 20th of April, and afterwards on the same day the assured 
 applied for the policy in question, without disclosing this intelli- 
 gence ; and the policy was held to be void.^ 
 
 G07. Intelligence by letter or report of cruisers hovering near 
 must be communicated.* 
 
 In effecting insurance, on the 24th of March, upon the priva- 
 
 1 Green i\ Merchants' Ins. Co. 10 3 Dickenson v. Commercial Ins. Co. 
 Pick. Mass. 402. of N. Y. Anth. N. Y. 92. 
 
 2 Green v. Merchants' Ins. Co. 10 4 Beckwaite ?;. Nalgrove, 1 Holt, 288, 
 Pick. Mass. 402. n. ; 3 Taunt. 41.
 
 328 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 teer Hazard, from the 6th of that month, for two months, the bro- 
 ker omitted to disclose, that on the 8th and 9th of March there 
 were reports in Jersey, whence the Hazard had sailed on the 6th, 
 that some French frigates were about the coast ; that a capture 
 had been made on the 7th ; and that on the latter day a ship's 
 binnacle had been afloat on which was a compass of a particular 
 construction. Gibbs, C. J., said : " Loose rumors, which have 
 gathered together no one knows how, need not be communicated. 
 In the present case the reports cannot be called loose." He 
 thouglit they were such intelligence as ought to have been com- 
 municated. ^ 
 
 608. A concealment of information or rumors material if true, 
 ivill defeat the contract, though they turn out not to be true? 
 
 609. The assured is bound to disclose intelligence, though of a 
 doubtful nature, respecting facts material to the risk. 
 
 The assured had an account that a ship described like his was 
 taken ; and he effected insurance without disclosing this intelli- 
 gence. Lord Macclesfield said : " The assured has not dealt 
 fairly ; he ought to have disclosed what intelligence he had of 
 the ship's being in danger, which might induce him to fear, at 
 least, that it was lost." The policy was accordingly held to be 
 void.^ 
 
 Where the assured on the Aurora, of Hartford, had heard of 
 the wreck of a vessel, the name of which as was reported to the 
 person who saw the wreck, was the Debora, of Hartford, and 
 they described the vessel to be of a different form from the 
 Aurora ; and the underwriters in New York had refused to 
 underwrite the Aurora, on account of this news, and the assured 
 obtained insurance in Boston without disclosing the intelligence, 
 the policy was held to be void.* 
 
 610. LiteUigence may be of so general and indefinite a nature, 
 and its application to the subject insured so doubtful and remote, 
 that the assured need not communicate it, though it may possibly 
 relate to the subject insured. 
 
 The assured, who resided at Newport, Rhode Island, procured 
 
 1 Darell v. Bederly, 1 Holt, 283. * Burr v. Foster, S. J. C. of Mass. 
 
 2 Lvnch I'. Hamilton, 3 Taunt. 37. Suff. June, 1799; Dane, Abr. Conceal- 
 
 3 Da Costa v. Seandret, 2 P. "Will. ment. 
 170 ; 2 Eq. Cas. Abr. 636, pi. 2.
 
 SECT. XII.] AYHAT INTELLIGENCE MUST BE COMMUNICATED. 829 
 
 insurance in Boston, on the 9th of February, 1824, on the sloop 
 Harriet, " lost or not lost, from Newport, Rhode Island, to all 
 ports and places to which she might proceed in the United States, 
 for six months, beginning on the 12th of January, 1824, and $600 
 on her cargo from Newport to Charleston or Savannah, or both." 
 On the 12th of January the sloop had sailed from Newport, and 
 on the 19th of that month she was totally lost on Cape Hatteras, 
 but the owner had not, at the time of making insurance, heard 
 of the loss. In the New York newspapers of the 3d of February, 
 and one of the Boston newspapers of the 6th, it was stated, that 
 " a sloop from the northward was cast away on the night of the 
 26th ultimo (January) at Ocracock. The crew abandoned her 
 on the same night. The wind shifted, and she was blown off to 
 sea. Nothing could be seen of her the next morning." The 
 question was made, whether, supposing the assured to have seen 
 this news, he was bound to communicate it to the underwriters. 
 Mr. Justice Story instructed the jury, that "these were public 
 facts open to both parties. Why was the assured bound to com- 
 municate these facts ? ' A sloop from the northward,' is so gen- 
 eral, that though it might excite fears, could lead to no particular 
 application of the loss. Both parties might well have presumed 
 that the sloop on the 26th was beyond the place where the loss 
 is stated to have happened." ^ 
 
 611. The condition of g-oods insured, as to their being damaged, 
 needs not to be disclosed, for the insurer does not insure against 
 prior damage, however it may have occurred. 
 
 In case of a policy on hemp, the insurer undertook to prove 
 that the hemp was put on board in a damaged state, and objected 
 to the validity of the policy on the ground that this circumstance 
 was not disclosed to him, alleging that hemp put on board in a 
 damaged state was liable to effervesce and take fire. Lord Ellen- 
 borough : " I must positively say, that the assured were not 
 bound to represent to the underwriters the state of the goods. It 
 would introduce endless confusion and perpetual controversies if 
 such a duty were imposed upon the assured," ^ 
 
 612. Extraordinary steps, and the exercise of extraordinary 
 
 1 Ruggles V. General Interest Ins. Co. Alsop o. Coinuiercial Ins. Co. 1 Sumn. 
 
 4 Mas. C. C. 74. See also Green v. C. C. 451. 
 
 Mercbants' Ins. Co. 10 Pick. Mass. 402 ; 2 Boyd v. Dubois, 3 Campb. 133. 
 28*
 
 330 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 vigilance to obtain intelligence respecting an absent ship, are not 
 requisite. 
 
 A London broker, having finished filling up a policy which he 
 had begun to fill up four days before, left his house at about 
 ten o'clock, and, without calling at his own office, went to the 
 Exchange with the policy, where the underwriter subscribed at 
 about eleven o'clock, and on afterwards going to his office, where 
 his letters were usually left, he found one informing him of the 
 capture of the ship. Sir J. Mansfield, C. J. : " It is somewhat 
 material that the policy was begun a day or two before the 
 insurer signed it." A verdict for the assured was acquiesced in 
 by the court, there being no evidence that the broker had any 
 reason to presume that he had not possession of all the informa- 
 tion concerning the ship.^ 
 
 Where intelligence relative to an application for insurance, 
 communicated by a member of a firm, then in New York, in a 
 postscript to a letter addressed to his wife in New Bedford, to be 
 communicated to his partner in the latter place, that he might 
 represent it to the insurance company, was not put into the 
 hands of the latter until after the policy had been written, the 
 delay having happened through the forgetfulness of a third per- 
 son, who took the letter from the vessel by which it was sent, 
 Mr. Justice Morton instructed the jury, that if the communica- 
 tion of it " had not been delayed fraudulently, by the circuitous 
 direction of it, it was immaterial." ^ 
 
 613. i/" the time of the vesseVs sailing or being spoken is mate- 
 rial to the estimate of the risk, it must be represented? And so 
 also of the national character of the subject^ 
 
 614. The applicant or broker, having applied or given instruc- 
 tions to apply for a policy, is bound to disclose subsequent knowl- 
 edge or iiifelligence of a loss, or countermand the order, if in tiine.^ 
 
 1 Wake V. Atty, 4 Taunt. 493. 3 Vide infra, s. 13, 
 
 2 Green v. Merchants' Ins. Co. 10 4 yiJe infra, s. 14. 
 Pick. Mass. 402. 5 Vide supra, s. 3.
 
 SECT. XIII.] THE TIME OF SAILING, OR BEING SPOKEN. 331 
 
 SECTION XIII. THE TIME OF SAILING, OR BEING SPOKEN. 
 
 615. Tlie assured or his broker, iclio effects a polict/, is bound to 
 disclose his intelligence or knowledge of the time of the vessePs 
 having' sailed, or being- expected to sail, or being' spoken, ichere it 
 affords any ground for supposing it to be out of time, or will be 
 long detained,^ but not if it affords no such ground.^ 
 
 616. If the time of sailing be incorrectly represented, so as to 
 induce the underwriters to suppose that the vessel is not out of 
 time, ichen in fact she is so, the policy ivill not bind the under- 
 writers.^ 
 
 617. In determining ivhether there is a concealment of the fact 
 of the vessel being out of time, the whole representation and all 
 the circumstances must be taken together. 
 
 Where it was stated by the assured, that a ship that had ar- 
 rived at a neighboring port had sailed after the ship insured, the 
 not stating the date of the arrival, was held by Mr. Justice Story 
 not to be material, on the grounds, that the time of the sailing of 
 the vessel insured was stated to have been three days earlier 
 than the actual time ; that the time of the arrival of the other 
 vessel was stated in a newspaper taken at the office of the 
 underwriters ; and that by the representation made the insurers 
 were put upon inquiry, and were bound to have asked for the 
 time of arrival of that vessel, if they desired to be informed.^ 
 
 618. A policy from and at a place imports of itself that the 
 vessel is there, or soon ivill he there, and ready to sail.^ 
 
 619. The circumstance that the vessel is not ready to sail imme- 
 diately, may not be material to the risk, and if it is not so it need 
 not be stated. 
 
 1 M'Andrews v. Bell, 1 Esp. 373; 3 Roberts v. Fonnereau, Park, Ins. 
 Webster v. Foster, 1 Esp. 407; Willis 285; M'Laiialian v. Universal Ins. Co. 
 V. Glover, 4 Bos. & P. 14; Livingston i'. 1 Pet. 170. 
 
 DelafieUl, 3 Caines, N. Y. 49 ; Kay r. * Alsop v. Commercial Ins. Co. 1 
 
 Young, Millar, Ins. 62; Johnson r. Phoe- Sumn. C. C. 451. See also Maryland 
 
 nix Ins. Co. 1 Wash. C. C. 3 78; M'Lana- Ins. Co. and Phoenix Ins. Co. v. Ba- 
 
 han V. Universal Ins. Co. 1 Pet. 170. thurst, 5 Gill & J. Md. 159. 
 
 2 Littledale v. Kenyon, 4 Bos. & P. 5 Hull v. Cooper, 14 East, 479. 
 151; Foley v. Moline, 1 Marsh. 117, 5 
 
 Taunt. 430.
 
 332 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 At the time of effecting a policy, on the 19th of June, a vessel 
 insured from Pictou, in Nova Scotia, to Liverpool, had received 
 damage on the outward voyage, and stood in need of great re- 
 pairs, which it was known would detain her at Pictou for some 
 time. This was not communicated to the underwriters. Lord 
 Ellenborough remarked to the jury, that it was not necessary to 
 state that repairs were necessary in all cases where they were 
 so.i This must evidently depend upon the probable time of the 
 detention, and whether the risks of the voyage would be thereby 
 aggravated by its coming in a different season of the year. 
 
 In a case upon a policy on a vessel from Plymouth to Bristol, 
 the broker, who had instructions that the vessel was ready to sail 
 on the 24th of December, represented that she was in port on 
 that day, whereas she had sailed on the 23d. Lord Mansfield 
 said : " This was a material concealment and misrepresenta- 
 tion." 2 
 
 The same judge gave a similar instruction to the jury in 
 another similar case.^ 
 
 620. The importance of any error in stating; the time of the 
 vesseVs sailing ivill depend on the length of the voyage, and other 
 circumstances. A difference of a few days will make a vessel out 
 of time in a short voyage, and yet would be of small account 
 in a long one. 
 
 In the case of a policy on a vessel from Boston to Surinam, 
 it was represented to the insurers in New York, that she had 
 been out about nine weeks, whereas she had in fact been out 
 ten weeks and four days, yet the jury found a verdict in favor of 
 the assured, on the ground that, if the fact had been correctly 
 stated, it would not have shown the vessel to be out of time, and 
 accordingly would not have given the insurers any reason to 
 refuse the risk.* 
 
 In effecting a policy upon a vessel from Cape St. Francois to 
 Baltimore, the assured made the following representation : " I 
 have information of the vessel's sailing, and she has been out 
 twenty-six days." She had been out twenty-seven days, and 
 
 1 Beckwith v. Sidebotham, 1 Campb. 3 RatclilFe v. Shoolbred, Park, Ins. 
 116. 290. 
 
 2 Fillis V. Brutton, Park, Ins. 292. 4 IMackay v. Rliinelander, 1 Johns. 
 
 Cas. N. Y.408.
 
 SECT. XIII.] THE TIME OF SAILING, OR BEING SPOKEN. 333 
 
 the underwriters objected to paying the loss, on the ground that 
 this was a misrepresentation, and also because the assured had 
 not disclosed that another vessel had sailed after his, and arrived. 
 The jury found a verdict in favor of the assured, not deeming 
 the difference of a day material in that voyage. The court 
 would not set aside the verdict. As to the other objection, they 
 said that the insurers must know that another vessel had arrived 
 that sailed after the one insured, otherwise the information of 
 her time of sailing could not have been received.^ 
 
 The assured had received letters from the master of the ship at 
 St. Domingo, by which he was informed that she would be ready 
 to sail for France between the 5th and 10th of October. It was 
 represented to the insurers, that the ship would sail in October. 
 It was the opinion of the witnesses, and seems to have been that 
 of Lord Kenyon, that this was not a fair and full disclosure of 
 the intelligence.^ 
 
 So a representation that the ship was expected to be loaded 
 between the 13th and 20th of September, when she was known 
 to have been loaded on the 13th, was held in Scotland to be a 
 misrepresentation.^ 
 
 A statement that the ship would sail in a certain month may, 
 under the circumstances, mean merely that she is expected to 
 sail in that month. In written proposals for insurance at Balti- 
 more, in May, 1820, on the cargo of the brig Eugenee, from Rio 
 de La Plata to Havana, the party applying stated, that the "brig 
 would sail from La Plata in the course of this month." She in 
 fact did not sail from Monte Video until the 12th of July. A 
 loss occurring, the underwriters objected that this was a misrep- 
 resentation. The court, considering the voyage, the distance of 
 the proposed port of departure from the place where the policy 
 was made, and the situation of the parties at the time, construed 
 this statement to be only the expression of an opinion and ex- 
 pectation, and not as a representation upon the supposed literal 
 accuracy of which the contract was made. " A future event 
 was spoken of in its nature contingent, and of which the party 
 speaking could not possibly possess any certain knowledge." 
 
 1 Williams v. Delafield, 2 Caines, N. 3 Stowart r. INIoriison, Millar, Ins. 
 Y. 329. y[). 
 
 2 Chaurauil v. Aiigerstcin, Peakc, 
 43.
 
 334 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 The fact that the statement was made by the owner of the 
 cargo, who was not an owner of the vessel, and could have no 
 control of her time of sailing, was considered of importance as 
 affecting the construction. There was no evidence that the dif- 
 ference of time was material to the risk. The court, however, 
 said, that, if the difference in time of sailing had been ma- 
 terial to the risk, the statement would not have affected the 
 policy ; and it was accordingly held not to be a misrepresenta- 
 tion.^ 
 
 The master wrote to the assured that he should sail " on the 
 12th;" the assured represented to the underwriters that the ves- 
 sel was to sail " about the 12th." This was held not to be a 
 misrepresentation.^ 
 
 A statement by the assured, on the 4th of January, that the 
 ship did not sail on the voyage insured, from Belfast, in Ireland, 
 to New Orleans, before the 18th of October, when in fact she 
 sailed on the 6th of that month, the usual passage being fifty or 
 fifty-five days, was held to be a misrepresentation that defeated 
 the policy.^ 
 
 At the time of effecting a policy, November 12th, " on wines 
 on board the Stag, from Oporto to Liverpool," a part of the 
 premium to be returned for convoy, the assured did not disclose 
 either of two letters, received October the 30th, from his corre- 
 spondents at Oporto, one of the 11th of the same month, saying, 
 " We are loading the wines on the Stag, Captain Wheatley, 
 who pretends to sail after to-morrow," the other of the loth, by 
 which it appeared that she was to sail with convoy. The con- 
 voy with which she proposed to sail had arrived on the 30th 
 of October, and the Stag was not included in the list of ships 
 entered at Lloyd's as having sailed with convoy. Lord Ellen- 
 borough said : " The letter of the 11th would have made known 
 to the insurer the captain's intended time of sailing; that of the 
 13th, that the lading was completed, and she was ready to sail ; 
 
 1 Allegre's Adm'rs v. Maryland Tns. held in Augusta & Co. v. Abbott, 1 2 
 
 Co. 2 Gill & J. Md. 136. Tbe court Md. 348. 
 
 cited, in favor of the decision, Rice v. 2 Jiiee v. N. E. Marine Ins. Co. 4 
 
 New England Ins. Co. 4 Pick. Mass. Pick. Mass. 439. 
 
 439, and as leaning against it, LlUie v. 3 Curell v. Miss. Mar. & Fire Ins. 
 
 Denison, 3 Biigh, 220. Same point Co. 9 La. 1G3.
 
 SECT. XIII.] THE TIME OF SAILING, OR BEING SPOKEN. 335 
 
 he would have found that the convoy had arrived without her, 
 and from that circumstance must have inferred a disappointment 
 in the original intention of the parties; I cannot help thinking 
 these letters were material." Le Blanc, J., thought that the facts, 
 if disclosed, would have shown that the ship was a missing ship.^ 
 A policy on a ship at and from Malaga to London was made 
 in London, November 3d. The assured represented that she 
 had been spoken off St. Vincent, October 14th, by the F., which 
 had arrived at London October 30th, but omitted to state that 
 she had spoken the same vessel off Oporto on the 21st of Octo- 
 ber, and parted company in a storm. Lord Abinger, C. B., 
 deemed this omission immaterial, as it would have only shown 
 that she had performed the most dangerous part of the voyage. 
 But the Court of Exchequer decided in favor of putting the 
 question to the jury.^ 
 
 621. The fact that the ship has sailed before the policy is effected^ 
 is not necessarily material. 
 
 Where the policy was on a ship at and from London, lost or 
 not lost, for a certain voyage, and the fact that she had already 
 sailed was not disclosed, the court said, " If the underwriter 
 wanted to know whether the ship had sailed, he ought to have 
 inquired." '^ 
 
 622, It is not usually necessary in a retrospective insurance, to 
 make knoicn to the insurers that the vessel is a fast sailer. If the 
 assured gives the vessel so favorable a character, that the under- 
 wnriters may infer that she is a fast sailer, this will at least render 
 any specific statement of the fact unnecessary.* 
 
 The sailing qualities of the vessel may evidently be material 
 in a retrospective insurance in reference to its being out of time; 
 but it must be the case of an extraordinary vessel, and of nicely 
 balanced circumstances, to render it obligatory on the applicant 
 to make such a statement in the first instance, though he will be 
 bound to make true replies to inquiries. 
 
 1 Bridges v. Hunter, 1 Maule & S. also Fiske v. N. E. Marine Ins. Co. 15 
 15. Pick. Mass. 310 ; Elton v. Larkins, 5 
 
 2 Westerbiiry v. Aberdein, 2 Mees. Carr. & P. 385; 8 Bingli. 198. 
 
 & W. Exch. 2(37. 4 Eugglesy. General Interest Ins. Co. 
 
 5 Fort V. Lee, 3 Taunt. 381. See 4 Mas. C. C. 74.
 
 33G REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 623. Whether a strict compliance ivith a representation of the 
 time of sailing" is requisite ? ^ 
 
 SECTION XIV. NATIONAL CHARACTER AND BELLIGERENT RISK. 
 
 624. The assured must disclose, if knoiim to him or he is bound 
 to know, and not knoivn to the underwriter, hy the provisions of the 
 policy or otherwise, or presumed to he so, that the interest insured, 
 whether in the ship or goods, is belligerent ; 
 
 Or that other goods by the same ship are belligerent ; 
 
 Or that the goods insured are contraband of war ; 
 
 Or that he or any other shipper has shipped other goods that are 
 contraband of ivar ; 
 
 Or that it is intended to violate a blockade ; 
 
 Or that any other circumstance luill expose the insured property 
 to capture, seizure, confiscation, or detention, by a belligerent. 
 
 As in case of the property belonging to a house established in 
 a belligerent country, and so being of a decidedly belligerent 
 character.- 
 
 Mr. Justice Washington remarks, that where, by " the estab- 
 lished adjudications of belligerent courts not generally known, 
 any circumstances become grounds of condemnation, though in 
 opposition to the law of nations, those circumstances, if known 
 to the assured, ought to be disclosed." ^ 
 
 625. Circumstances affecting the risk during war, that are 
 known to the insurers, need not be represented.^ 
 
 Underwriters may be bound by the course of the trade at the 
 particular time, without any representation on the subject, to 
 take notice that belligerent property in disguise will be on board 
 of a vessel.^ 
 
 Insurers are presumed to have a knowledge of public transac- 
 tions,*^ and of the state of the world, of the allegiance of partic- 
 ular countries, of the risks and embarrassments affecting their 
 
 1 Sec infra, s. 19. * Bowne v. Shaw, 1 Caines, N. Y. 
 
 2 Bauduy v. Union Ins. Co. 2 Wash. 489. 
 
 C. C. 391. 5 Maryland & Phoenix Ins. Co. v. 
 
 3 Marshall v. Union Ins. Co. 2 Wash. Bathurst, 5 Gill & J. Md. 159. 
 
 C. C. 357. fi Per Washington J., in Kohne v.
 
 SECT. XIV.] NATIONAL CHARACTER AND BELLIGERENT RISK. 337 
 
 commerce, and of the course and incidents of the trade ; ^ and 
 these, accordingly, need not be stated by the assured, as affecting 
 the marine perils both to belligerents and neutrals. 
 
 Where goods, the produce of a belligerent Spanish colony, and 
 brought thence by a belligerent to the United States, and there 
 sold, were insured thence to Spain warranted neutral, Mr. Justice 
 Washington was of opinion that the fact of their being the 
 produce of such colony need not be disclosed. He thought the 
 assured was not bound to anticipate every possible ground of 
 suspicion.^ 
 
 Two policies were effected in Baltimore, insuring B. & K. for 
 whom it might concern, on a cargo from Porto Rico to Balti- 
 more, Porto Rico being then in a state of revolt and war with 
 Spain. The insurances were on the order of F., an American 
 then at Porto Rico, in whose name the cargo was shipped, and 
 to whom it was consigned. Nothing was said of the ownership 
 on making the first policy. On applying for the second, a letter 
 from F. was exhibited, saying, " When I wrote, I could not say 
 what amount of cargo to have insured for me ; I now think I 
 shall have on board $8000, which amount I wish to have insured 
 for me." A part of the cargo belonged to a resident in Porto 
 Rico, who came passenger in the vessel. The property was lost 
 by perils of the seas. 
 
 The underwriters objected to payment, on the ground of con- 
 cealment of the part-ownership of the Spanish subject. A verdict 
 being given in favor of the assured on both policies, the Supreme 
 Court of the United States refused upon two grounds to set it 
 aside, namely : — 1st, that in the then state of Porto Rico, the 
 underwriters were presumed to know that property from that 
 island, belonging to persons residing there, was ordinarily shipped 
 in the name of a neutral, and the correspondence relating to it 
 would so represent it, because it was exposed to be overhauled 
 by cruisers ; and 2d, that as the policy was in a form to cover the 
 property of a belligerent, the underwriters were, under the circum- 
 
 Ins. Co. of North America, 1 Wash. Ilendrick i-. Chesapeake Ins. Co. 1 Pet. 
 
 C. C. 93. 151. 
 
 1 Per Johnson, J., giving the opinion ^ Marshall v. Union Ins. Co. 2 Wash, 
 
 of the Supreme Com-t in Buck and C C. 357. 
 
 VOL. I. ■ 29
 
 338 REPEESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 stances, bound to have made inquiry, if tiiey proposed to exclude 
 such a risk.^ 
 
 Goods insured from Newport to Passage, in Spain, had been 
 brought from La Guira, then a belligerent colony, and not un- 
 loaded in the United States, and so were at the time more liable 
 to capture as Spanish. Mr. Justice Washington was of opinion, 
 that the omission to disclose this fact was a concealment that 
 vitiated the policy, though many cargoes had been carried in the 
 same way.^ 
 
 Where the policy on the ship was against " all risks," and 
 contained no warranty of neutrality, and a letter from the mas- 
 ter was shown to the underwriters, stating that he had chartered 
 the ship in England to go " to one of the following ports in the 
 Columbian government, — La Guira, Santa Martha, or Cartha- 
 gena ; " it was held that the underwriters were thus sufficiently 
 apprised that the ship might have been chartered by an agent of 
 a Spanish South American government, to carry out warlike 
 supplies, that being a great part of the ordinary transportation 
 on such a voyage at the time, and there being at the time no full 
 cargo carried by a ship of the size of the one insured, that did not 
 consist wholly or partly of such articles.^ 
 
 If the property is accompanied by a letter of instructions 
 exposing it to capture and condemnation, according to the well- 
 known decisions of a foreign court of admiralty, Mr. Justice 
 Washington was of opinion that the circumstance should be 
 made known, " and it was immaterial whether those decisions 
 were consistent with the law of nations or not, as the danger of 
 capture was the same." * 
 
 626. If the ship or cargo is represented to be neutral, it must 
 he oiuned by tieutrals, and be accompanied by doctimenfs and 
 insignia as such, and be managed as suchJ* 
 
 627. The national character of the property is generally a 
 
 1 Buck V. Chesapeake Ins. Co. 1 Pet. 4 Sperry v. Delaware Ins. Co. 2 
 151. Wash. C. C. 243. 
 
 2 Kohne u.Ins. Co. of North America, ^ Vandenheuvel v. United Ins. Co. 2 
 1 Wash. C. C. 93 ; 6 Binn. Penn. 219. Johns. Cas. N. y.451 ; Same v. Church, 
 
 3 Maryland & Phoenix Ins. Co. v. id. 173, n.; Steel «. Lacy, 3 Taunt. 
 Bathurst, 5 Gill & J. Md. 1.59. 285; Fisher v. Ogle, 1 Campb. 418 ; 
 
 Von Tugeln v. Dubois, 2 Campb. 151.
 
 SECT. XIV.] NATIONAL CHARACTEE AND BELLIGERENT RISK. 339 
 
 subject of warranty, and not of representation, but if tlie national 
 character of the assured is not kiioivn to the insurers, and is sucJi 
 as to expose the property to more than ordinary danger of capture, 
 it must be disclosed.^ 
 
 It has been held that the interest of a subject of a belligerent 
 country, as cestui que trust, in a ship insured in the name of a 
 neutral, must be disclosed.^ 
 
 It was held in New York, that the assured in a policy effected 
 in that State was not bound to disclose that he had emigrated 
 from France to the United States during a war then pending 
 between France and England.^ But this is inconsistent with the 
 cases above cited, and with the fundamental doctrine relative to 
 representation of the belligerent character or insignia of property 
 apparently neutral. The case is supposed to be one where the 
 assured is apparently a neutral, for if the underwriter knows him 
 to be a belligerent, or, which is the same, to have emigrated from 
 a belligerent country during the war, there is no room left for a 
 question about representation. If, therefore, from the circum- 
 stances he is liable to be taken for a neutral, and is so taken, it 
 is a palpable case of concealment, or implied misrepresentation. 
 A decision by the English K. B. in an analogous case is directly 
 opposed to those last referred to. A ship and cargo being in- 
 sured in England from that country to the United States, against 
 all risks, " American capture or seizure included," the broker 
 omitted to disclose that the property belonged to Americans. 
 Chief Justice Abbott said, " An American subject, to whom a 
 ship and goods are consigned in America, if he knows that he 
 is insured against American capture and seizure, may not only 
 omit to take proper means to prevent loss, but may possibly 
 facilitate it by giving information to his own government upon 
 the subject." The policy was accordingly held to be void, on 
 the ground that the insurers ought to have been informed that 
 the property belonged to Americans.* 
 
 1 Campbell v. Innes, 4 Barnew. & 3 Duguet r. Kbinelander, 1 Caines, 
 Aid. 423. But see Hodgson v. Marine Cas. N. Y. ; 2 Johns. Cas. N. Y. 4 76. 
 Ins. Co. 5 Cranch, 100. But see 1 Johns. Cas. N. Y. 360. 
 
 2 Murray i-. United Ins. Co. 2 Johns. ■* Campbell v. Innes, 4 Barnew. & 
 Cas. N. Y. 168. Aid. 423.
 
 340 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 628. Under an insurance on " all lawful goods,'" an assured is 
 not required to disclose that the goods are contraband} 
 
 Much less is the master of a vessel, who is insured on his 
 commission on "lawful goods," required to disclose that con- 
 traband goods are shipped by others in the vessel.^ 
 
 629. The owner of a neutral vessel, knoiving that she takes 
 belligerent goods disguised as neutral, is bound to disclose the 
 fact in effecting a policy .^ 
 
 630. The assured on a neidral ship is not bound to disclose that 
 the supercargo is a belligerent, unless he himself knows that by an 
 ordinance or the practice of the other belligerent country this ivill 
 subject the ship to condemnation. 
 
 As in case of a Portuguese neutral ship having an English 
 supercargo, England and France being then at war."* 
 
 631. A representation that the assured on a ship ivishes to he 
 covered against all risk, including contraband, is not necessarily 
 an implied representation that it is neutral, but may be merely an 
 expression of desire to be covered against the risk of contraband, 
 in case the vessel should be neutral and should have contraband 
 goods on board.^ 
 
 632. Where the law requires registered ships not to sail with- 
 out convoy, the assured need not state, unless inquiry is made, 
 that the vessel is not registered, and so may sail without convoy.^ 
 
 633. Where the broker was informed by the owner of the goods 
 insured from Bristol to Mahon, that the ship " was to have gone 
 to Falmouth to join convoy, but he supposed the wind was con- 
 trary and she could not fetch the port, but he knew nothing about 
 it himself," but did not disclose this circumstance to the insurers, 
 though he knew it be a fact that the vessel had sailed without 
 convoy; this was held to be a material concealment.^ 
 
 634. Whether the non-communication of a fact affecting the 
 belligerent risk defeats the policy, or only excepts the risk? ^ 
 
 1 Seton »;. Low, 1 Johns. Cas. N. Y. 4 Mayne v. Walter, Dougl. 79. 
 
 1 ; Jiihel V. Rhinelander, 2 Johns. Cas. 5 Maryland Ins. Co. and Phoenix Ins. 
 
 N. Y. 120; Rhinelander v. Juhel, id. Co. v. Bathurst, 5 Gill & J. Md. 159; 
 
 487. supra. No. 625. 
 
 2 Depeyster r. Gardner, 1 Caines, 6 Long v. Duff, 2 Bos. & P. 209. 
 
 N. Y. 492. ' Sawtell v. Loudon, 5 Taunt. 359; 
 
 3 Stocker v. Merrimack Ins. Co. 6 S. C. 1 Marsh. 99. 
 Mass. 220. 8 Vide infra, s. 20.
 
 SECT. XV.] IN INSURANCE AGAINST FIRE. 341 
 
 SECTION XV. REPRESENTATION AND CONCEALMENT IN INSURANCE 
 
 AGAINST FIRE. 
 
 635. It has been suggested that there is a difference between 
 marine and fire insurance, in respect of the obligation to make 
 disclosures of facts not inquired about.^ The difference is not, 
 however, I apprehend, so much one of doctrine as of the subject 
 matter, and of the degree of confidence necessarily placed in the 
 assured by the underwriter. The subject of a fire policy is 
 usually stationary, and the risk local, and within the limits of 
 actual inspection by the insurers or their agents. The circum- 
 stances affecting the degree of risk are, accordingly, less various 
 and numerous, and more within the insurer's actual or possible 
 knowledge. And, besides, the inquiries put to the assured, his 
 answers to which are usually referred to in the policy, are in- 
 tended by the insurer to cover, and usually do actually cover, 
 all the circumstances affecting the risk material to be dis- 
 closed. 
 
 Any circumstance evidentbj and materially enhancing the risk 
 of fire, knoicn to the applicant at the time of insuring-,^ and not 
 so, or presumed to be so, to the insurer, and of which he is not 
 bound to inform himself or to take the risk of it, must be dis- 
 closed, though no inquiry is made respecting it. 
 
 Where a part of the insured premises w^as occupied for gam- 
 bling, and the insurers suggested, as an objection, the vicinity of 
 the premises to another gambling establishment, it was held in 
 Louisiana, that, if the risk was, in the opinion of the jury, 
 materially aggravated by such occupancy of a part of the 
 premises, it was obligatory on the applicant to have represented 
 the fact, and the suppressing of it would defeat the policy .^ 
 
 In this case, what passed between the parties suggested this 
 disclosure to the applicant, which strengthened the obligation to 
 make a representation of the fact, if there was any ground to 
 suppose the risk to be enhanced by that kind of occupancy. 
 
 1 Biirritt v. Saratoga Mut. Ins. Co. 5 Cumberland Yal. Ins. Co. v. Scliell, 29 
 Hill, N. Y. 188. Penn. St. 31. 
 
 '■^ rim V. Reid, 6 Mann. & G. 1 ; ^ Lyon r. Commercial Ins. Co. 2 Rob. 
 
 La. 266. 
 29*
 
 342 REPEESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 The proposition is stated, in giving the opinion of the Su- 
 preme Court of the United Stales, that, if the mode of occupy- 
 ing a room in a factory varies from the ordinary practice, and 
 is such as the insurers were not bound to presume in such a 
 building as the one described, and is such as materially to en- 
 hance the risk, the assured is bound to disclose it, and if he 
 neglects to do so, the policy will be void.^ 
 
 A Louisiana case is an appropriate illustration of the prop- 
 osition just stated, in which the assured suppressed the fact of 
 a rumor of an attempt to set fire to a ropewalk next to the one 
 he proposed for insurance, whereupon his policy was adjudged 
 to be void.2 
 
 A person resident at Heligoland wrote on Saturday, the 11th 
 of July, to the directors of an insurance company in England, 
 for insurance " on a warehouse situated in the town of Heligo- 
 land," not stating that it was separated only by one other build- 
 ing from another warehouse, which had been on fire the day 
 when he wrote. The fire was supposed to have been extin- 
 guished by eight o'clock in the evening, but it was considered 
 to be necessary to watch the premises during the night. The 
 fire broke out again on the Monday morning following, and 
 consumed, among other buildings, the warehouse insured. This 
 was considered to be a material concealment.^ 
 
 Mr. Justice Putnam charged the jury, in respect to a threat 
 alleged to have been made by a convict in the state-prison, that, 
 on getting out, he would set fire to a house, that, if under the 
 circumstances they considered that the risk of fire was thereby 
 materially increased, the omission to disclose the fact of the 
 threat to the underwriters, at the time of effecting the policy on 
 the house, was a material concealment, and made the insurance 
 void.* 
 
 In stating the number of stories to a building, the cellar need 
 not be included.^ 
 
 1 Clark V. Manufacturers' Ins. Co. 8 4 Curry v. Commonwealth Ins. Co. 
 
 How. 235. 10 Pick. Mass. 535. See Haley v. 
 
 •2 Walden v. Louisiana Ins. Co. 12 Dorchester Ins. Co. 12 Gray, Mass. 
 
 La. 134. 545. 
 
 3 Bufe V. Turner, 2 Marsh. 46 ; 6 ^ Benedict v. Ocean Ins. Co. 27 N H. 
 
 Taunt. 338. 149.
 
 SECT. XV.] IN INSURANCE AGAINST FIRE. 343 
 
 So in all the cases cited below, respecting the disclosure of a 
 qualified, temporary, or defeasible title, where no inquiry is made 
 touching the title, it is expressly stated, that, if this had materially 
 enhanced the risk, the suppression of it would have defeated the 
 insurance. 
 
 636. In general, the use made of a building;, and lioiv it is 
 heated, needs not to be represented, except in reply to inquiries : ^ 
 
 So held of the use of a stove in a carpenter's shop near the 
 insured building.^ 
 
 Where the rules of a fire office made a distinction between the 
 premiums on inns and other buildings, a building used as a 
 coffee-house, in London, was insured without being described, or 
 payment of premium for it, as an inn. Lord Ellenborough : " I 
 think a cotfee-house is not an 'inn,' within the meaning of the 
 policy. Horses, wagons, and coaches come to an inn ; there are 
 stables and out-houses attached to it ; people are going to them 
 at all hours. Hence the trade of an innkeeper is considered 
 doubly hazardous ; but the trade of a coffee-house keeper is of a 
 very different description." ^ 
 
 It was held in Missouri that the fact that a house was a 
 house of ill fame was immaterial.* 
 
 A representation that an apparatus was put up in the proposed 
 building for burning anthracite coal, does not restrain the assured 
 to such fuel, nor require that he should use it.^ 
 
 637. Companies that insure against fire usually adopt certain 
 rules respecting representations, or put certain inquiries requiring 
 the assured to make known of what materials a building pro- 
 posed to be insured is constructed, for what purpose it is occupied, 
 and what kind of buildings are situated near to it; whether the 
 goods proposed for insurance are held in trust ; what kind of 
 goods they are; the description and situation of the building in 
 which they are stored, and other circumstances showing the 
 degree of risk.*^ 
 
 1 Clark V. Manufacturers' Ins. Co. 8 4 Loehner v. Home Ins. Co. 17 Mo. 
 How. 235 ; Howard Ins. Co. v. Cormick, 24 7. 
 
 24 111. 554. 5 Tillou v. Kingston Mut. Ins. Co. 7 
 
 2 Girard Ins. Co. v. Stephenson, 37 Barb. N. Y. 570. 
 
 Penn. St. 293. 6 Newcastle Fire Ins. Co. i;. Macmor- 
 
 3 Doe ex dem. Pitt v. Lansing, 4 ran, 3 Dow, Pari. Cas. 225. 
 Canipb. 76. See Hobby i'. Dana, 17 
 
 Barb. N. Y. 111.
 
 344 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 These rules and regulations are usually brought home to the 
 knoicledge of the assured, and made binding upon him by some 
 questions answered by him, or by their being indorsed on the 
 policy, or annexed to it, and referred to in it. A delivery of the 
 regulations of a company to the agent of the assured, affects 
 the latter with a knowledge of them.^ 
 
 638. The assured, being thus informed by interrogatories or 
 otherwise on what matters he is required to make representations, 
 is accordingly bound to make true statements of the facts inquired 
 about. But he needs not to go into details not inquired about.^ ^ 
 
 The ansivers of the assured to inquiries respecting the situation^ 
 condition, use, superintendence, and management of the insured 
 property, if construed to be representations, must be substantially 
 true, and complied icith, and still more rigidly and exactly, if 
 construed to be warranties. 
 
 It is difficult to distinguish in this and many other cases, what 
 phraseology makes a warranty, from what is only a representa- 
 tion, and the phraseology which will make either from what is 
 only description to identify the subject of the insurance. And 
 when a provision has been construed to amount to a warranty 
 or to be merely a representation, it still is difficult, in many cases, 
 to distinguish what is a " literally " true,'^ or strictly accurate 
 statement of the facts, from one that is only substantially true.'^ 
 The cases would have presented fewer difficulties of construction 
 if the early jurisprudence had been less open to the admission of 
 forfeitures of the policy, and more easily satisfied with a compli- 
 ance with written stipulations substantially equivalent to a literal 
 one, where such a construction was not inconsistent with the 
 express provisions of the contract. The recent jurisprudence 
 tends to greater liberality of construction in favor of maintaining 
 the contract. Such a rule may be as well applied to stipulations 
 and recitals in the policy, as to representations preliminary and 
 collateral to it ; and it is more equitable, after the policy has once 
 gone into effect, and the underwriter has a right to retain the 
 premium, that the contract should be continued in force as long 
 
 1 Newcastle Fire Ins. Co. u.Macmor- 3 Blackhurst i'. Cockrell, 3 Term, 
 ran, 3 Dow, Pari. Cas. 225. 3G0 ; Houghton v. Manufacturers' Ins. 
 
 2 Beebe v. Hartford Ins. Co. 25 Conn. Co. 8 Mete. Mass. 114. 
 
 51. See supra, No. 6G9, 670 et seq.
 
 SECT. XV.] IN INSURANCE AGAINST FIRE. 345 
 
 as its being maintained is consistent with its express provisions, 
 and the underwriter is not thereby prejudiced. Even where the 
 assured has voluntarily for a time irfcurred an extra risk, or 
 voluntarily varied or increased the risks insured against, it has 
 been held, in some cases, that he has not thereby absolutely 
 forfeited the contract, but has only incurred a temporary sus- 
 pension of it, or that he must himself bear the extra risk thus 
 unnecessarily superinduced, where a loss thereby can be distin- 
 guished from other losses.^ The principle of this equitable 
 jurisprudence in respect to the consequences of some cases of 
 deviation, is equally applicable to warranties. 
 
 The distinction of warranties, representations, and mere de- 
 scriptions, is illustrated by the jurisprudence referred to under 
 all those heads.^ 
 
 Where the answers of the applicant were referred to in the 
 policy by the term " representations," Shaw, C. J., and his 
 associates, construed them to be only such, and held that the 
 answer that the ashes of the furnaces of a factory were put into 
 iron vessels, was complied with by the use of copper or other 
 equivalent vessels.-^ And so, under a policy on sC dwelling-house, 
 the same court held the representation that the ashes were kept 
 " in brick," was complied with by their being kept in copper or 
 other equivalent vessels.* 
 
 So a substantial compliance with a representation of the 
 watch kept and the hours for work in a factory, is held to be 
 sufficient.^ 
 
 So a policy, being on merchandise in a " stone building," is 
 held by Savage, C. J., and his associates, to impliedly represent, 
 but not warrant, such a building, and to be applicable and valid, 
 though the gable-ends of the building were of wood, evidence 
 being given that it was as safe as if they had been of stone.*^ 
 
 1 Infra, Nos. 734, 751, 975, 978. ^ Glendale "Woollen Co. v. Protection 
 
 2 Supra, Nos. 70, 71, 72, 485 et seq. Ins. Co. 21 Conn. 19; Crocker v. Peo- 
 527,553,569,575,603; infra, Nos. 640, pie's, &c. Ins. Co. 8 Cusli. Mass. 79. 
 641, 652, 669, 670, 673, 674, 762, 866, But see Ripley v. J^^tna Ins. Co. 30 
 871,872,892. N. Y. 13.6 
 
 3 Houghton V. Manufacturers' Mut. 6 Snyder v. Farmers' Ins. and Loan 
 Fire Ins. Co. 8 Mete. Mass. 114. Co. 13 Wend. N. Y. 92. 
 
 4 Underhill v. Agawam Mut. Fire 
 Ins. Co. 6 Cush. Mass. 440.
 
 846 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 A house described as " a stone house," had a wooden kitchen 
 attached ; held a breach of warranty .^ 
 
 An insured building being described in the application found 
 wafered to the policy, though it did not appear by whom, to be a 
 " steam saw-mill about 130 feet long and 30 broad," but not, as 
 appears, specifically described in the policy itself, was in fact 132 
 feet long, and, for a distance of forty feet, in the central part 
 of its length, was forty feet wide, including in that distance the 
 boiler-house ten feet wide and ten feet high, attached to the 
 main building. Mr. Justice Satherland gave the opinion of the 
 Supreme Court of New York, that this was a representation, 
 and was complied with, this manner of placing the boiler being 
 stated by witnesses to be proper, and to be safer than putting it 
 within the main building.^ 
 
 638 a. It being required to specify ivhat buildings are ivithiti 
 a certain distance from the one insured, or in which goods are 
 insured, "^/ie applicant must ansiuer the inquiry ivith strict or sub- 
 stantial accuracy^ according as the case is one of representation 
 or warranty, if any such distinction can be made in this case, it 
 not being apparent that it can be. 
 
 This inquiry is usually so made and the answer so referred to 
 and the provisions of the policy are usually such, as to make it a 
 condition of the contract that a strictly correct answer shall be 
 given.^ 
 
 The requisition of a statement of other buildings near enough 
 to endanger the one insured, not specifying any distance, does not 
 extend to all buildings which might by possibility endanger it, 
 but only to such as would ordinarily be considered as having 
 that efFect."* 
 
 639. The rule, that the express jirovisions of the policy cannot 
 
 1 Chase v. Hamilton Ins. Co. 20 N. Y. Frost v. Saratoga ]\Iut. Ins. Co. 5 id. 
 52. See also Mead t;. North AVestern 154; Gates u. Madison County Mut. 
 Ins. Co. 7 N. Y. 530. Fire Ins. Co. 3 Barb. N. Y. 73 ; 2 N. Y. 
 
 2 Jefferson Ins. Co. v. Cotheal, 7 43. See infra, c. 9, s. 10. Objection 
 Wend. N. Y. 72. on account of the insufficiency of the 
 
 3 See Burrill v. Saratoga County answer in the last of the above cited 
 Mut. Fire Ins. Co. 5 Hill, N. Y. 188 ; cases was held to have been waived. 
 French i'. Chenango County Mut. Ins. See infra. No. 904. 
 
 Co. 7 id. 122 ; Jennings v. Chenango * Dennison v. Thomaston Mut. Ins. 
 County Mut. Ins. Co. 2 Den. N. Y. 75 ; Co. 20 Me. 125.
 
 SECT. XV.J IN INSURANCE AGAINST FIRE. 347 
 
 he superseded by proof of a representation^ is applicable in fire as 
 well as marine insurance. 
 
 In a suit on a fire policy upon fixtures, &c., in, and to be put 
 into buildings, the whole value of which, at the time of a loss, 
 was $100,000, the underwriter was not permitted to prove that 
 the assured represented, at the time of making the policy, that 
 their value would not exceed $5000.i 
 
 640. Tlie assured needs not to state that his interest in the build- 
 ing is a qualified, or conditional, or temporary one, unless inquiries 
 are made on this subject : 
 
 As in case of the assured owning but half of the insured build- 
 ing; 2 
 
 Or of the building being put on land of another than the 
 assured ; ^ 
 
 Or being insured by the assured as his own, his interest being 
 an undivided moiety belonging to his wife, in which he had a life 
 interest ; ^ 
 
 Or being insured as " his," the assured's " building," where the 
 interest was a lease for one year ; ^ 
 
 Or being described as " his," the assured's " dwelling-house," 
 which was then being built on land that he had absolutely agreed 
 to purchase, and on which he had made sundry payments on his 
 agreement ; ^ otherwise where the purchase was conditional ; "^ 
 
 Or belonging to the assured only as mortgagee ;^ 
 
 Or being mortgaged by the assured, and the assured's equity 
 of redemption being, besides, at the time, seized on execution, 
 but the interest not irrevocably devested before the time of the 
 loss taking place.'^ 
 
 1 New York Gas-Light Co. v. Me- 5 Niblo v. North American Ins. Co. 
 chanics' Fire Ins. Co. 2 Hall, N. Y. 108. 1 Sandf. N. Y. 551. 
 
 See also Glendale TA'oollen Co. v. Pro- ^ Tyler v. ^tna Ins. Co. 12 Wend, 
 
 tection Ins. Co. 21 Conn. 19. N. Y. 507; and IG Wend. N. Y. 385 ; 
 
 2 Catron v. Tennessee Ins. Co. 6 Reynolds v. State, &c. Ins. Co. 2 Grant 
 Humphr. Tenn. 176. Cas. Penn. 326. 
 
 3 Fletcher v. Commonwealth Ins. Co. ' Marshall v. Columbian, &c. Ins. Co. 
 18 Pick. Mass. 419. 27 N. H. 157. 
 
 * Curry v. Commonwealth Ins. Co. s Delahay v. Memphis Ins. Co. 8 
 10 Pick. Mass. 535 ; Mut. Ins. Co. v. Humphr. Tenn. 684. 
 Deale, 18 Md. 20. 9 Strong v. Manufacturers' Ins. Co. 
 
 10 Pick. Mass. 40.
 
 348 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 A building being insured as property " belonging to "' the 
 assured, being "their mill," which stood on land subject to a 
 ground-rent, and the title being partly that of possession under 
 a mortgage, and partly subject to a mortgage, and accordingly 
 defeasible, the not disclosing of the tenure was held by the 
 Supreme Court of the United States to be a fatal concealment,^ 
 on the ground that the assured has not the same motives to pre- 
 serve the building as if he were an absolute owner. This seems 
 to be an unsatisfactory ground, for if his interest is such that he 
 will lose the amount of the insurance, either absolutely or out of 
 his collateral security, by the destruction of the insured property, 
 he has quite an adequate motive to preserve it. He is authorized 
 to insure it under a general description,^ which seems to be a 
 case not materially different from the one in question, assuming 
 that no specific inquiry is put to the assured respecting the title. 
 
 641. If the applicant is I'equired to state his title and the encum- 
 brances on a building proposed for insurance, the inquiry is not 
 unfrequently so put, aiid the ansivers so referred to in the policy, 
 as to make it a condition that they shall he full and strictly true^ 
 but the answers to this inquiry, if not thus made warranties, are 
 merely representations.^ 
 
 Where the underwriters are by their charter entitled to a lien 
 on the land under an insured building to secure payment of pre- 
 miums and assessments, it is material that the party insured 
 should himself have the title to the land, or at least an interest 
 to which the lien can attach. Accordingly, in such cases, if the 
 assured in his representations, erroneously pretends to a title 
 when he has none, or represents his title to be better than it is, 
 or omits to state encumbrances in replying to inquiries about 
 them, the policy is void for misrepresentation or concealment.^ 
 
 1 Columbian Ins. Co. v. Lawrence, 2 4 Infra, No. 874 a. 
 
 Pet. 25 ; and see Carpenter v. Provi- 5 Smith v. Bowditch Mut. Fire Ins. 
 
 dence Washington Ins. Co. 16 Pet. 495; Co. 6 Cush. Mass. 448 ; Richardson v. 
 
 Wyman v. People's, &c, Ins. Co. 1 All. Maine Ins. Co. 46 Me. 394; Patten v. 
 
 Mass. 301. Merchants', &c. Ins. Co. 38 N. H. 338 ; 
 
 2 Supra, No. 421. Mutual Ins. Co. v. Deale, 18 Md. 26; 
 
 3 Locke V. North American Ins. Co. Lovejoy v. Augusta, &c. Ins. Co. 45 
 13 Mass. 61. Me. 472.
 
 SECT. XV.] IN INSURANCE AGAINST FIRE. 349 
 
 Where the assured described the property as " hers" and had 
 only a life estate by devise, the answer was held sufficient.^ 
 
 An unrecorded mortgage is an encumbrance.'-^ 
 
 It is held in Massachusetts, that the policy is defeated by a 
 misrepresentation that the building is free from encumbrance, 
 though the underwriters are a foreign corporation, and can have 
 no lien on the real estate. The ground of the opinion is stated 
 ta be, that the fact of an encumbrance or not, is material, as 
 indicating the responsibility of the assured, and his ability to 
 meet his engagements to the company.^ Another, and appar- 
 ently better ground, is that the underwriters, by making the 
 inquiry, are thereby entitled to have it considered material,'* since 
 the inquiry can have any bearing and relevancy only as affecting 
 the degi-ee of risk, and must accordingly be considered to relate 
 to that. 
 
 A policy being for $4000 on a factory building, dye-house, 
 and machinery, " to cover a mortgage on said property to same 
 amount, lot included," Gibson, C. J., and his associates, held, 
 that the omission to represent that he held prior mortgages on 
 the building, was a concealment, on the ground that the salvage 
 was thereby diminished.^ There was, however, no difficulty on 
 this account, since the deficiency of the salvage might be de- 
 ducted in adjusting the loss.^ There being no inquiry or state- 
 ment as to prior liens, the contrary ruling by the judge who pre- 
 sided at the trial of the case, seems to be the better construction 
 of the contract.^ * 
 
 The title of a corporation is held in Ohio not to authorize a 
 
 1 Allen V. Charlestown Ins. Co. 5 '' Smith v. Columbia Ins. Co. 1 7 Penn. 
 Gray, Mass. 384. St. 253, stated more fully, infra, No. 
 
 2 Hutchins V. Cleveland Ins. Co. 1 1 1 784. The insurance company, in this 
 Ohio St. 4 7 7. case, claimed indemnity by an assign- 
 
 3 Davenport v. N. E. Mutual Fire ment of a lien on the land for the 
 Ins. Co. 6 Cush. Mass. 340 ; Clark v. amount, if any, which they -were liable 
 N. E. Mutual Fire Ins. Co. id. 342; to pay. The secretary of the company 
 Hayward r. New England, &c. Ins. Co. who took the risk, said that he should 
 10 Cush. Mass. 444. not have taken it at five per cent, if he 
 
 4 Supra, No. 586. had known of the prior liens. But this 
 ^ Smith V. Columbia Insurance Co. testimony seems not to be admissible, 
 
 17 Penn. St. 253. or of weight, if so. 
 
 6 Infra, No. 1714. 
 VOL. I. 30
 
 350 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 representation that the property is that of the individuals who 
 compose the corporation.^ 
 
 Oral notice of a mortgage is sufficient compliance with a 
 requirement that it should be stated.^ 
 
 A statement that the property is encumbered without specify- 
 ing the amount is sufficient.^ 
 
 The underwriters must be notified of the whole amount of the 
 mortgage debt without regard to other collateral.'* 
 
 Renewal of a policy is sufficient notice of the lien of the old 
 policy.^ 
 
 642. Tlie description of a building or other subject insured, its 
 situation, and statement of any circumstance connected with it, 
 and the taking out of the policy thereupon, though it may not 
 amount to a warranty, is not only an express representation 
 that the facts stated, so far as they are material to the risk, are 
 substantially true at the time, but, also, an implied promissoi'y 
 representation^ that so far as they are of a nature to be con- 
 tinued, and so far as their being continued depends upon the 
 assured, they are to be substantially true during the period of the 
 risk ; and if not so, the policy will be forfeited,^ or at least the 
 risk will be suspended : ^ 
 
 As where the assured erects a building on his ground repre- 
 sented to be vacant, so near as to increase the danger of fire : ^ 
 
 Or under a statement respecting a building in the process of 
 being built, that there is no stove in it, the putting of one in any 
 time during the risk : ^^ 
 
 Or not continuing to keep up, to all material purposes, such a 
 watch as is stated to be kept in a factory .^^ 
 
 1 Philips V. Knox County Mutual Ins. that no cotton waste, &c. was kept on 
 Co. 20 Ohio, 1 74. the premises was not promissory. Gould 
 
 2 Masters v. Madison County Mutual v. York, &c. Ins. Co. 47 Me. 403. See 
 Ins. Co. 11 Barb. N. Y. 624. also Smith v. Mechanics', &c. Ins. Co. 
 
 3 Bersfhe v. St. Louis, &c. Ins. Co. , 32 N. Y. 399. 
 
 31 Mo. 555 ; Nichols v. Fayette, &c. 7 Supra, No. 553. 
 
 Ins. Co. 1 All. Mass. 63. 8 Infra, No. 975. 
 
 * Falls V. Conway, &c. Ins. Co. 7 All. 9 Stebbins v. Globe Ins. Co. 2 Hall, 
 
 Mass. 46. N. Y. 632. 
 
 5 Ames V. New York, &c. Ins. Co. 14 1° Williams v. New England Mut. 
 N. Y. 253. Fire Ins. Co. 31 Me. 219. 
 
 6 Held contra that a representation n Glendale Woollen Co. v. Protec-
 
 SECT. XVI.] IN LIFE INSURANCE. 351 
 
 An oral statement was made by the assured that he would 
 discontinue the use of a fire-place. The policy was held by the 
 Supreme Court of New York to be made void by a failure to 
 discontinue such use.^ 
 
 An immaterial alteration of an insured building, though when 
 altered it does not precisely correspond to the description of it in 
 the representation, will not cause a forfeiture of the insurance.^ 
 
 In respect to a life as well as a marine or fire insurance,"' the 
 applicant is not required to make any representation of a fact 
 covered by an express warranty, where he is not specifically 
 inquired of respecting it.* 
 
 SECTION XVI. REPRESENTATION AND CONCEALMENT IN LIFE IN- 
 SURANCE. 
 
 643. The same general principles as to representation and con- 
 cealment are applicable to insurances on lives, as to marine and 
 fire policies. 
 
 A ruling by Lord Mansfield^ is reported as laying down the 
 proposition, that the life is at the risk of the underwriters, and 
 the policy is valid provided there is no warranty or fraudulent 
 concealment or misrepresentation. 
 
 If Lord Mansfield so ruled, it must have been in reference to 
 the particular case on trial, for there is not, that I am aware of, 
 either authority or reason for the doctrine that a life policy 
 issued upon a misrepresentation made through negligence or 
 mistake, is valid, or that there is, in this respect, any distinction 
 between a life policy and a marine one. 
 
 In case of a life policy, Mr. Justice Bull ruled in a trial in Ire- 
 
 tion Ins. Co. 21 Conn. 19. A doctrine admitted lo control the written pol'cy. 
 
 different from that above stated is as- Alston v. Mechanics' Ins. Co. 4 Hill, 
 
 serted in Benhani v. United Guaranty N. Y. 329. 
 
 and Life Ass. Co. 7 Exch. 744, 14 Eng. 2 Jefferson Ins. Co. v. Cotheal, 7 
 
 L. & Eq. 524. Wend. N. Y. 72. 
 
 1 Alston V. Mechanics' Ins. Co. 1 3 Supra, No. 600. 
 
 Hill, N. Y. 510. This case was how- -» Ross v. Bradshaw, 1 W. Blackst. 
 
 ever overruled in the Court of Appeals 312. 
 
 on the ground that this was an oral sub- 5 Stackpole v. Simon, Marshall, Ins. 
 
 sidiary agreement which could not be 2d ed. 772.
 
 352 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 land, under a policy expressed to be issued on the basis of the 
 written statements of the applicant, that the statements were to 
 be treated as representations, and a substantial compliance was 
 sufficient; and this ruling was confirmed by Moore, J., Lefroy, 
 B., Bull, J., Perrin, J., Torrens, J., Pennafether, B., and Black- 
 burne, C. J., of the Irish Court of Exchequer; Jackson J., Pigot, 
 B., and Monhanan, C. J., dissenting. On appeeil to the House 
 of Lords, Parke, B., Piatt, B., Alderson, B., Martin, B., Cole- 
 ridge, J., Wightman, J., Williams, J., Erie, J., Creswell, J., Tal- 
 fourd, J., and Crompton, J., gave opinions unanimously, that the 
 policy was void, whether the false facts stated by the assured in 
 the application were material or not material ; that is, that the 
 policy was issued on condition that the statements were true. 
 Lord Chancellor Cranford concurred in that construction, saying, 
 that the basis of the contract was that the applicant should 
 make true answers to the inquiries put, " the assured must 
 adhere to his warranty, whether material or immaterial ; " and 
 the judgment below was accordingly reversed. ^ 
 
 A life policy issued " upon the basis" of the written statement 
 of the assured in his application, is defeated by a false represen- 
 tation of his health, though his state of health was well known 
 to the agent of the company for procuring the application, who 
 was not, however, authorized to agree for a policy.^ 
 
 644. Insurance on lives, like that against fire, has usually^ if not 
 invariably, been made itpon the basis of ivritten ansivers to written 
 inquiries, and the doctrine already stated ^ respecting the stronger 
 obligation to make communication where an inquiry is made, per- 
 vades the jurisprudence respecting representation and conceal- 
 ment in such insurance generally. 
 
 645. Most of the inquiries relate to particular subjects, which 
 are specified, as age, residence, state of health, &c. 
 
 646. Besides the particular incpiiries, there is usually a general 
 one, requiring a statement of any other circumstance tending to 
 shorten the proposed life, or which ought to be communicated to 
 the underwriters. This general inquiry requires only what the 
 
 1 Anderson v. Fitzgerald, 24 Eng. 2 Yose v. Eagle L. Ins. Co. 6 Cusb. 
 
 L. & Eq. 1, 4 House L. Cas. 484 ; Mass. 42. 
 
 Miles V. Connecticut L. Ins. Co. 3 3 No. 586. 
 Gray, Mass. 580.
 
 SECT. XYL] in life INSURANCE. 353 
 
 implied •condition of every life or other policy requires, as to rep- 
 resentation.^ 
 
 647. The assured on a life is bound to make a true and full 
 disclosure of all material facts within his knowledge, and not 
 known, or presumed to be so, to the insurers, ichich he cannot but 
 know would induce them to demand a higher premium, or decline 
 the risk, though no inquiry is made about such facts? 
 
 Where the broker who applied for the policy states, that 
 " from the account he has received the life is a good one," and 
 he had received no such account, Mr. Marshall is of opinion that 
 the policy is void, though the broker, at the same time, says his 
 principal " will warrant nothing ; ^ and of this there seems 
 to be no ground to doubt. It, however, would be difficult to 
 prove such a misrepresentation except by the broker's own testi- 
 mony. 
 
 Though the subject of a life insurance has some infirmity 
 which does not, however, diminish his expectation of life, he 
 needs not to disclose it, if not inquired about, especially if it 
 comes under a general warranty.* 
 
 The inquiry whether the applicant for a life insurance had 
 been "afflicted with pulmonary complaints or consumption," 
 being answered in the negative, he being himself sensible at the 
 same time that he had for some months been affected by tuber- 
 cular consumption, it was held in Massachusetts that, whether 
 the misstatement was made purposely or unwittingly, the rep- 
 resentation was falsified, and the policy made void, though he 
 replied to another inquiry, that he had been troubled with gen- 
 eral debility .^ It was stipulated in this case that "the applica- 
 tion formed a part of the policy, and if in any respect untrue, 
 and if there was any misrepresentation " in it, the policy should 
 be void, but the effect of the misrepresentation would, it seems, 
 have been the same without this stipulation. 
 
 The fact that the proposed life is in prison for debt is not nec- 
 
 1 Lindenau V. Desborougli, 8 Banicw. 3 Marshall, Ins book 3, note at the 
 & C. 586; Edwards f. Barrow, Ellis' end of chapter 2. 
 
 Ins. 116. 4 Ross r. Bradshaw, 1 W. Blackst. 
 
 2 Vose V. Eagle L. Ins. Co. 6 Cush. 312. 
 
 Mass. 42. ^ Vose v. Eagle L. Ins. Co. 6 Cush. 
 
 Mass. 42. 
 30*
 
 354 EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 essarily material ; whether it is so or not depends upon 'the par- 
 ticular circumstances, and is a question for the jury. If it is 
 material, it must be stated, though there is no inquiry put speci- 
 fically calling for the fact.^ 
 
 648. An inquiry must be tnihj ansicered according- to the object 
 in making' it, and the answer should be definite and full. 
 
 Thus, to the inquiry for "the usual medical attendant" of the 
 life, the answer should state the one who is best able to give an 
 account of the constitution and health of the proposed life at the 
 time though he may not at the time be the attendant, another 
 having recently been called ; '-^ 
 
 If one has recently attended in severe illness, he must be 
 named.'^ 
 
 If the life is subject to incipient insanity, or mental imbecility, 
 this must be communicated.'* 
 
 Where the applicant produced to the insurers two favorable 
 certificates of a physician who had examined the subject of a life 
 policy in December and in the March following, and a physician 
 had attended the subject in the mean time, which was not men- 
 tioned to the company, a verdict having been given for the 
 holder of the policy, the court ordered a new trial, that the ques- 
 tion might be submitted to the jury whether this was a case of 
 concealment, the court seeming to be inclined to consider it to 
 be such.^ 
 
 The question being. Has the party been " afflicted with " or 
 "subject to" fits? the ommitting to mention two such of epil- 
 epsy long before caused by an accident, was considered not to 
 be a concealment ; though under the question " Has he ever 
 had fits? " it might have been a concealment.^ 
 
 The assured represented, in the reply to interrogatories, that 
 he had not any spitting of blood. It appeared that he had spit 
 blood, and it was held that he was bound to have communicated 
 
 1 Huguenin v. Bailey, 6 Taunt. 186. Carr. & P. 353; S. C. 3 Barnevv. & C. 
 
 2Huokman v. Fiernie, 3 Mees. & W. 58G; Swete v. Fairlie, 6 Carr. & P. 1. 
 
 Exch. 505. 5 Morrison v. Muspratt, 4 Bingh. 
 
 3 Maynard v. Rhodes, 1 Carr. & P. 60. 
 
 360. 6 Cbattock v. Shaw, 1 Mood. & R. 
 
 4 Von Lindenau v. Desborough, 4 498.
 
 SECT. XYI.] IN LIFE INSURANCE. .355 
 
 that fact, so that the insurers might judge whether it amounted 
 to the disease of spitting blood.^ 
 
 649. Under a provision that the policy shall be void in case of 
 "any untrue averment" by the assured in his answers, it is 
 made void by such an averment, though the assured supposed 
 it to be true.^ 
 
 650. An oral misrepresentation in reply to an oral inquiry u'ill 
 render a life policy void, no less than a communication in writ- 
 ing I 
 
 As where a false reply was given to the inquiry whether pre- 
 vious application had been made to any other office.-^ 
 
 651. In case of a misrepresentation and concealment, the policy 
 is void, thovfrh the decease of the life is not in the least oiviniic to 
 the circumstance misrepresented or concealed. 
 
 It was so ruled, where the name of the attending physician, 
 and the diseases for which he had prescribed, were suppressed ;* 
 and where the applicant described himself as " a farmer " when 
 he was a slave catcher.^ 
 
 652. A mere opinion, expressed as such, if it be honestly 
 expressed, is not a representation in a life insurance of the fact 
 supposed, any more than in a marine one.^ 
 
 653. TJie assured may, by the terms of the policy, make himself 
 responsible for the truth of the representations of other persons. 
 
 Where a life policy bore a condition that the declarations 
 made in reply to certain questions proposed by the office should 
 " be considered the basis of the contract " of insurance, and that, 
 if such declarations were not in all respects true, the policy should 
 be void, a misrepresentation, in respect to any such subject of 
 inquiry, of any material fact, was held to avoid the policy, not 
 only on the ground of a breach of condition, but also as a mis- 
 
 1 Geach V. Ingall, 14 Mees. & W. 5 Hartman i-. Keystone Ins. Co. 21 
 Exch. 95. Penn. St. 466. 
 
 2 Duckett V. AVilliams, 2 Crompt. & 6 The assured stated all the facts 
 M. Exch. 348; 4 Tyrw. 240; Caze- having a tendency to affect his life; 
 nove V. British, &c. Ass. Co. 6 C. B. held that the omission of others, in the 
 N. s. 437 ; and see cases supra, No. 647. belief they had no such tendency, did 
 
 3 Wainwright v. Bland, 1 Mees. & not avoid the policy. Jones v. Provin- 
 W. Exch. 32 ; 1 Tyrw. & G. 41 7. cial Ins. Co. 3 C. B. N. s. 65. 
 
 ■* Maynard t-. Rhodes, 1 Carr. & P. 
 360.
 
 356 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 representation ; that is, a representation of a third person, taken 
 with the knowledge of the assured, either actual or presumed, 
 and in pursuance of the directions given on the back of the policy 
 in this respect, would have the same effect in defeating the policy 
 as if made by the assured himself. Where a policy on a life 
 required, among other things, a statement of the name and resi- 
 dence of the attending physician of the life insured, and provided, 
 that, if any declaration made on this, as well as the other subjects 
 of inquiry, were not in all respects true, the policy should be void, 
 it was held that a misrepresentation, by the person whose life 
 was insured, of the name of his attending physician, defeated the 
 policy, though the subject of the policy had no interest whatever 
 in the insurance, and the assured had no intention to deceive the 
 underwriters, and did not know that any misrepresentation was 
 made.i 
 
 654. If a third person, whose statements are produced by the 
 assured, or made at his sug-g-estion, or known to him, culpably con- 
 ceals or misrepresents material facts, this rettders the insurance 
 void, though it contains no provision directly and expressly 
 making the assured responsible for the truth and fairness of the 
 statements. 
 
 This doctrine applies especially to statements made by the 
 person whose life is insured by another. 
 
 In the negotiation, in May and June, for two policies in favor 
 of an annuity creditor on the life of the debtor, the latter, on 
 examination by the insurers, replied to the inquiry, " Who is 
 your medical attendant?" " I have none but Mr. G." He had 
 formerly been attended by Mr. G., but not within three years. 
 He had during the preceding February and March been attended 
 by a physician, and also by a surgeon, for inflammation of the 
 liver, fever, and determination of blood to the head. Abbott, 
 C. J., instructed the jury, that this misrepresentation made the 
 policy void.2 
 
 The Chief Justice is reported to have remarked that the appli- 
 cant " allowed " the party to make this representation ; he must 
 
 1 Everett v. Desborough, 5 Blngh. 2 Mood. & R. 328 ; 1 Carr. & P. 
 
 503. See also Huckman r. Fernie, 1 360. 
 
 Horn & H. 149 ; Duckett v. VVilliaius, 2 Maynard v. Ehodes, 1 Carr. & P. 
 
 2 Carr. & M. 348; Maynard r. Rhodes, 360.
 
 SECT. XVI.] IN LIFE INSURANCE. 357 
 
 accordingly have known of its being made. It does not, however, 
 appear whether the creditor knew it to be a misrepresentation. 
 It has the appearance of being fraudulently intended by the 
 party examined. 
 
 To a similar question put to the wife, in a negotiation for a 
 policy in favor of her husband, she gave the name of the family 
 physician of her husband, who had casually prescribed for her 
 once, or possibly twice, during the ten previous months since her 
 marriage to the applicant, but had not attended her profession- 
 ally, and the occasion and the prescription were of so little 
 importance that he had made no memorandum of it in his book. 
 She had previously been attended for a number of years by 
 another physician, and treated for dangerous delirium tremens, 
 and an erysipelatous inflammation of the legs. She had, pre- 
 viously to her marriage to the applicant, applied to two other 
 companies for insurance on her life, and referred to her former 
 physician, both of which declined to insure her. A verdict having 
 been given for the assured. Lord Abinger and his associates, in 
 the Court of Exchequer, granted a new trial, on the ground that 
 this was a misrepresentation, and that her attending physician, 
 within the meaning and intention of the question, was the one 
 who had attended her previously to her marriage.^ 
 
 In this case the husband sent the wife to the board of directors 
 of the company for examination, and so probably knew what 
 answers she had made. The jury found that the husband did 
 not know of her having had the delirium tremens and erysipelas. 
 The answer seems to have been considered by the court to have 
 been fraudulently given by the wife. 
 
 A subsequent decision of the English Court of King's Bench 
 coincides with the preceding. In the negotiation for an insurance 
 in favor of A on the life of B, the latter appeared at the office of 
 the insurers for examinations. He omitted to state that he was 
 in the habit of intemperance. It was insisted that he was under 
 these circumstances the agent of the assured, to whom his 
 concealment of this fact was imputable. Lord Denman, C. J., 
 in instructing the jury, remarked that the life could not be 
 considered the general agent of the assured, and that the doc- 
 
 1 Huckman v. Fernie, 3 Mees. & W. Excb. 505.
 
 358 
 
 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 trine that the assured were responsible for his acts was greatly 
 overstrained by the defendant's counsel. " He is to answer all 
 questions put to him, and if he answers falsely, that will vitiate 
 the policy. But the mere non-communication of his habits of 
 life by the party whose life was insured, would not itself vitiate 
 the policy.i 
 
 The doctrine just stated accords with that already laid down 
 relative to commercial insurance.^ 
 
 655. If the third person whose statement is offered or procured 
 by the assured, or at his suggestion, makes a misrepresentation of^ 
 or omits to communicate a material fact, ivithout fraud or fault, 
 but through oversight or forgetfulness, it will render the policy 
 void if the assured himself or his agent for effecting the insurance 
 knew of the misrepresentation or concealment, or had good reason 
 to suspect it; otherwise it will not render the policy void, if it is 
 a case of mere incidental aggravation of the risk, which answers 
 to the description in the policy, and is substantially the risk 
 understood by the parties. But if the circumstance thus inad- 
 vertently misrepresented or omitted goes essentially and funda- 
 mentally to the contract, the case is one in which the minds of 
 the parties have not met, and the contract is void and a subject 
 for relief, on the ground that it is not the one in contemplation 
 of the parties. 
 
 Decisions have been made which apparently do not agree with 
 the doctrine just stated. 
 
 Lord Lyndhurst ruled that where a party effects a policy on 
 the life of another, whose statement is produced to the insurers, 
 if the statement is materially erroneous in making the risk appear 
 less than it really is, this renders the policy void, though the party 
 making the statement supposed it to be true.^ 
 
 1 Rawlins v. Desborough, 2 Mood. & in a certificate by a physician ; it does 
 R. 328. See also the elaborate note by not distinctly appear whether it was 
 the reporters in this case, in which the considered to be an intentional and 
 decisions on the responsibility of the fraudulent omission or not. Von Lin- 
 assured for the misrepresentations and denau v. Desborough, 3 Carr. & P. 353 ; 
 non-representations of third persons are 8 Barnew. & C. 586. See also Rawls 
 examined and commented upon. v. American L. Ins. Co, 27 N. Y. 282. 
 
 Lord Tenterden and his associates 2 Supra, s. 1, No. 549. 
 
 may have applied this doctrine in one 3 Duckett v. Williams, 2 Crompt. & 
 
 case to an omission of a material fact M. 348; 4 Tyrwh. 240. But in such a
 
 SECT. XVI.] IN LIFE INSURANCE. 359 
 
 Under the general inquiry as to any other material circum- 
 stances than those stated in reply to the particular inquiries, Lord 
 Tenterden intimated to the jury, that an omission by a foreign 
 physician, whose certificate had been produced, to state under 
 this general inquiry decided symptoms of insanity or mental 
 imbecility, rendered the policy void.^ 
 
 This may, however, have been considered a case of intentional, 
 fraudulent concealment, by the foreign physician, as another 
 physician, examined as a witness at the trial, said, that in like 
 circumstances he should have deemed it to be his duty to mention 
 the mental infirmity. But the decision is not put distinctly upon 
 that ground. There appears to have been no reason for imputing 
 to the assured a knowledge of the uncommunicated fact. 
 
 The ruling of Lord Denman, C. J., in a case before cited,^ 
 agrees directly with the proposition just laid down. 
 
 656. If the person referred to by the assured or his agent, for 
 information concerning the risk, ansivers fairly the inquiries put 
 to him, this in general suffices ; he is not required to volunteer 
 any statement of circumstances not inquired about, unless it is 
 evident to him, from the apparent object of the inquiries made, 
 that some analogous circumstance within his knowledge was 
 material and important to be communicated. In such case, the 
 suppression of the circumstance would evidently be dishonest, 
 and betray a fraudulent intent.^ 
 
 The case can, however, rarely occur, since the examination 
 usually includes some general question, which would require a 
 statement of any material fact within the recollection of the 
 party examined. 
 
 657. The validity of an insurance by a creditor or other party 
 
 case the physician is not the agent of ative to fraudulent suppressions and re- 
 
 tbe party to whom the policy is payable, presentations, and is directly laid down 
 
 Wbeelton V. Hardisty, 8 Ell. & B. 232. by Lord Denman in Rawlins v. Des- 
 
 1 Von Lindenau v. Desborough, 3 borough, 2 Mood. & E. 328. On this 
 Carr. & P. 253. And this ruling was ground where the assured described 
 approved by Justices Bayley and Little- himself as Esquire when he had no 
 dale, 8 Barnew. & C. 586. commission as justice of the peace, the 
 
 2 Rawlins v. Desborough, 2 Mood. & court held there was no material mis- 
 ^- 328. representation. Perrins v. Marine, &c. 
 
 3 This proposition is in a close ana- Ins. Co. 2 Ell. & E. 317. 
 logy to the cases cited in the text rel-
 
 360 REPEESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 interested in another's life, is not affected by the omission of the 
 party ivhose life is insured to state, in reply to interrogatories, a 
 fact in his own experience of which he was himself 7iot conscious, 
 and of which he had not been informed by others : 
 
 As where he had been in a state of incipient insanity without 
 being conscious or informed of it.^ 
 
 658. The statements as to the habits of the assured are not 
 promissory representations.- 
 
 A condition for revival of a forfeited policy if the assured is 
 in good health, means in as good health as at the date of the 
 policy.^ 
 
 SECTION XVII. PRESUMPTION FROM THE RATE OF PREMIUM. 
 
 659. The rate of premium has been considered a circumstance 
 of some importance in determining whether a fair representation 
 has been made. 
 
 If the risk appears to have been known by the assured, at the 
 time of insuring, to be extraordinary, and yet only the ordinary 
 premium for the voyage was given, it affords some presumption, 
 of more or less weight, against the fairness of the representa- 
 tion.^ 
 
 Upon the same principle, an extraordinary premium is the 
 ground of presuming that the risk was represented to be ex- 
 traordinary.^ 
 
 It is not, however, to be inferred from the high rate of pre- 
 mium merely, that a concealed or misrepresented fact was to 
 be at the risk of the insurers. 
 
 1 Swete V. Fairlie, 6 Carr, & P. I. 4 Bridges v. Hunter, 1 Maule & S. 
 
 2 Reicbard v. Manhattan Ins. Co. 31 15. 
 
 Mo. 518. 5 Freeland v. Glover, 7 East, 457. 
 
 3 Peacock v. New York Ins. Co. 1 ^ Per Lord Tenterden, Von Linde- 
 Bosw. N. Y. 338. nau v. Desborough, 3 Carr. & P. 353.
 
 SECT. XVIII.] THE WITHDRAWING, ETC., OF A REPRESENTATION. 361 
 
 SECTION XVIII. THE WITHDRAWING, SUPERSEDING, OR WAIVER 
 OF A REPRESENTATION. 
 
 660. An express warranty or stipulation including a fact re- 
 presented, or inconsistent with it, will control and supersede the 
 representation, since the written agreement, so far as its express 
 provisions extend, is conclusive proof of the conditions on which 
 the contract is made. 
 
 A ship being insured " to all or any ports or places " beyond 
 the Cape of Good Hope, it was alleged that the assured had 
 represented that she was going "to Pondicherry and China." 
 Lord Mansfield and the other judges held, that any such re- 
 presentation was superseded by the description of the voyage in 
 the policy.^ 
 
 If the policy be made in behalf of "whom it may concern," 
 the underwriter cannot object that he was not informed who 
 were interested, for by subscribing the policy he has agreed to 
 insure any one who may be lawfully interested. 
 
 In the case of a policy of this description made in New York, 
 the person who effected it resided there, but one of the part- 
 owners resided in Cura^oa, at that time a belligerent colony. It 
 was insisted that this fact ought to have been disclosed. Mr. 
 Justice Kent said, " The insurers took upon themselves the risk 
 of the property, whether belligerent or neutral." ^ 
 
 Where the voyage, as represented in the proposal for insur- 
 ance, was not worth so high a premium by five or six per 
 cent, as that on which the ship actually sailed, yet this repre- 
 sentation was waived by the description of the voyage in the 
 policy.^ 
 
 In the case of a policy on the " Spanish brig New Constitu- 
 tion," the description imported and warranted that the brig 
 was in fact Spanish ; it availed nothing that the underwriters 
 knew she was only " ostensibly " Spanish, for it was agreed in 
 the written instrument what her national character should be.* 
 
 1 Bize V. Fletcher, 1 Dougl. 271. 4 Atherton v. Brown, 14 Mass. 162. 
 
 2 Eltiiig V. Scott, 2 Johns. N. Y. 157. See also Pickering v. Dowson, 4 Tauut. 
 
 3 Vandervoort v. Smith, 2 Caines, N. 779. 
 Y. 155. 
 
 VOL. I. 31
 
 862 EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 661. But there is a distinction in this respect between an ex- 
 press and an imjMed stipulation or warranty. 
 
 It has already appeared, that the assured must make true an- 
 swers to inquiries relating to the subject of an implied warranty, 
 which would be futile unless the contract were to be affected by 
 the representations made in reply to such inquiries. " As far as 
 a representation extends," says Mr. Justice Piatt, " an implied 
 warranty ceases." ^ 
 
 662. A prior representation may he superseded or impliedly 
 withdraivn by a subsequent one stating the circumstances differ- 
 ently, or stating' new circumstances. This proposition is involved 
 in many of the cases stated in the present chapter. 
 
 663. The question, whether a usage is controlled by a repre- 
 sentation, or will supersede it, seems to depend in some degree 
 upon another, namely, whether a usage, and the course of the 
 trade, are to be considered as equivalent to an express part of 
 the policy. If the construction be, as Lord Mansfield said, the 
 same " as if the point of usage were inserted in the contract in 
 terms," ^ then it should seem, if his observation is to be adopted 
 in its strict and literal meaning, that the assured will be bound by 
 the usage, though he may have represented to the insurers that 
 he intended to depart from it. But Lord Mansfield was speaking 
 of a case where there was no representation as to the point of 
 usage, and to apply his remark to any other case might be forc- 
 ing it beyond the sense in which it was intended. It appears 
 by some cases, that the obligation from a usage may be qualified 
 and restrained by a representation, but only in such manner that 
 the necessary and plain import of the words of the policy shall 
 remain unimpaired. 
 
 Thus, where the captain was limited by his orders to one out 
 of three courses of the voyage, when it was the usage to leave 
 it to the discretion of the captain to choose either course at 
 the dividing point, the judges said the orders " ought to have 
 been communicated to the underwriters ; " if " disclosed " to 
 them, " they would perhaps have required a larger premium, or 
 not have subscribed; "^ by which it seems to be implied, that a 
 
 1 Walden v. N. Y. Firemen's Ins. Co. 3 Middlewood v. Blakes, 7 Term, 
 12 Johns. N. Y. 128. 162. 
 
 2 Mason v. Skurry, Park, Ins. 191.
 
 SECT. XVIII.] TEE WITHDRAWING, ETC., OF A REPRESENTATION. 363 
 
 representation of the fact that the captain was limited to one 
 course would have given the assured a right to recover for a 
 loss; neither of the judges said any thing of inserting the cir- 
 cumstance of the orders in the policy. 
 
 664. The neglecting to make inquiries may be a ivaiver of in- 
 formation. As by neglect to object that one question on the 
 printed form of application is not answered.^ 
 
 Instances have occurred in the preceding cases, where the in- 
 surer, by omitting to inquire respecting circumstances relating 
 to the seaworthiness of the ship, the national character of the 
 property, and its character as contraband of war or not, and 
 respecting the time of the vessel's sailing, has been held, by so 
 doing, to have waived any information concerning facts, in re- 
 spect to which the assured is not required in the first instance to 
 make any disclosure. 
 
 665. So a representation may be such as to put tlie insurer on 
 inquiry if he wishes to learn other facts ; and if he neglects to 
 make inquiry, he is precluded from objecting on the ground of 
 concealment. 
 
 Where a letter from the master, then on the coast of Africa, 
 acting instead of one who had been killed, was exhibited, saying, 
 " The natives, finding us weak-handed, do as they please. I 
 have nine men on board now. I made mention of the ivory, 
 palm-oil, &c., in my last letter. I do not expect to get all my 
 wood till the latter part of next month, when you may expect 
 my sailing." The insurers objected to the non-production of 
 the previous letter referred to in this, in which divers disasters 
 were mentioned. Lord Ellenborough and his associates, con- 
 sidering that this letter disclosed that there was a previous letter, 
 that the vessel had been long on the coast, and had lost part 
 of the men, and was in circumstances very unfavorable for the 
 risk, were of opinion that the insurers were put upon inquiry 
 for further particulars, if they wished to learn them, and that 
 the assured was not bound to make any further disclosures in 
 the first instance.^ 
 
 666. If a fact stated or promissory representation ceases to be 
 
 1 Liberty Hall Ass'n v. Housatonic Blake f. Exchange Ins. Co. 12 id. 
 Ins. Co. 7 Gray, Mass. 261. See also 2G5. 
 
 2 Freeland v. Glover, 7 East, 457.
 
 364 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 material, in consequence of an entire change of circumstances, 
 before the risk commences, it needs not to be verified. 
 
 As where it relates to a belligerent peril, and peace intervenes.^ 
 The same would be true of a concealment. 
 
 667. The assured may, at any time before the policy is signed, 
 withdraw a representation previously made^ by giving the under- 
 writers explicitly to understand, that he was mistaken in regard 
 to the facts represented, or that he will not be held to a com- 
 pliance with what he had verbally promised. 
 
 Lord Elienborough ruled, that the assured virtually withdrew 
 a representation made by him at the time of signing the slip, by 
 making another and different representation at the time of sign- 
 ing the policy. He said, " The first conversation was qualified 
 and controlled by what followed." ^ 
 
 Mr. Justice Woodbury is reported to have ruled that a mis- 
 representation was cancelled by a correction made after the 
 policy had gone into effect and before any loss had happened,* 
 but the ruling, no doubt, had reference to some act of the under- 
 writers or their silence, whereby they signified their acquiescence 
 in the correction. 
 
 Whether an agent's knowledge of a material fact will ex- 
 onerate the applicant from the obligation to communicate it, 
 will depend upon his authority to represent the insurers in this 
 respect.^ 
 
 Where the agent of a life insurance company, who was not 
 authorized to agree for insurance, knew of the falsity of a 
 material representation by an applicant, this was held not to 
 cancel the misrepresentation.*" 
 
 A concealment is cancelled by the fact, which is not stated by 
 the assured, being known to the underwriter, as appears by the 
 definition of concealment.'^ 
 
 668. The forfeiture, by reason of a misrepresentation or con- 
 cealment, may be ivaived by the insurers : 
 
 1 2 Duer, ISIar. Ins. 702. 5 See No. 1872, 1876, 1878. 
 
 2 Carter v. Boelim, 3 Burr. 1905. 6 Vose v. Eagle Life and Health Ins. 
 
 3 Edwards v. Footner, 1 Campb, Co. G Cusli. Mass. 42. See also Chase 
 530. V. Hamilton Ins. Co. 20 N. Y. 52 ; Smith 
 
 4 Nicoll V. Am. Ins. Co. 3 Woodb. & v. Ins. Co. 24 Penn. St. 320. 
 M., C. C. 529 ; Prieger v. Exchange Ins. 7 Supra, No. 531. 
 
 Co. 6 Wise. 89.
 
 SECT. XIX.] COMPLIANCE WITH A REPRESENTATION. 
 
 365 
 
 As by receiving a new premium on a fire policy, after the mis- 
 representation is known : ^ 
 
 Or by offering to rebuild under a clause authorizing that mode 
 of payment: ^ 
 
 Or by renewal of the policy .^ 
 
 SECTION XIX. COMPLIANCE WITH A REPRESENTATION. 
 
 669. It is svfficient that a representation is eqmtabtij and sub- 
 stantially complied ivith, and not requisite that the facts should be 
 literally as they are stated.^ 
 
 If the existing facts or intelligence, on which the represen- 
 tation is made, are on the whole as favorable to the risk as 
 they were represented to be, and correspond in general to the 
 representation, the insurers have no ground of complaint, though 
 the statement was not literally and minutely correct. 
 
 Where it was represented that the vessel would sail in ballast, 
 but the captain, without the owner's knowledge, took on board 
 a cask of shoes, and ten barrels of gunpowder, Kent, C. J., said : 
 " The representation of sailing in ballast was merely stating that 
 the vessel would not be exposed to the sea-perils attending a 
 loaded ship, and was substantially perfornied." ^ 
 
 It being represented that the vessel would sail with twelve 
 guns and twenty men, she sailed with nine carriage guns and 
 six swivels, and fourteen men and seven boys. Boys were con- 
 sidered to be men within the description in the representation, 
 and as the force appeared to be equivalent to that represented, 
 though not the same, the contract was held to be valid.^ 
 
 670. A literal^ in contradistinction to a substantial, compliance 
 is not sufficient. 
 
 It being represented that a ship would " sail as soon as the 
 
 1 Allen V. Vermont Mut. Fire Ins, 4 De Hahn v. Hartley, 1 Term, 343 ; 
 Co. 12 Vt. 366. 2 Term, 186. 
 
 2 Bersche v. Globe Ins. Co. 31 Mo. 5 Suckley v. Delafield, 2 Caines, N. 
 546; Same v. St. Louis Ins. Co. ib. Y. 222. 
 
 ^^^- ® Pawson V. TVatson, Cowp. 785 ; 1 
 
 3 Witherell v. Maine Ins. Co. 49 Dougl. 12, n. 
 Me. 200. 
 
 31*
 
 366 REPEESENTATION AND CONCEALMENT. [CHAP. YII. 
 
 frigates, calculating to take advantage of their protection," and 
 she sailed before them ; this was held not to be a compliance 
 with the representation.^ 
 
 671. Property represented to he of any particular national 
 character^ or neutral, must he owned and dociimcnted, and accom- 
 panied by the proper insigna as such, and the evidence of the 
 character represented must be ready to be produced.^ 
 
 A vessel, French built, was represented to be owned by Amer- 
 ican citizens, and to have on board an original bill of sale, or an 
 attested copy of it, and such a bill of sale was on board, but on 
 the ship's being captured was not produced, and the captain, on 
 his examination before the Admiralty Court at Halifax, denied 
 that he had any such bill of sale on board. It was held, that the 
 representation was material, and had not been complied with. 
 Kent, J., said : " It would be absurd to suppose that the bill of 
 sale on board, in a concealed situation, and never to be used, 
 fulfilled the intention of the parties." ^ 
 
 A representation that a ship was neutral, was held in New 
 York to be " equivalent to a warrany," ^ and it accordingly re- 
 quires that it should be owned, documented, and navigated, in 
 conformity with the representation. 
 
 672. Whether a representation that a ship is or was to sail on, 
 or he/ore, or not until after, a certain day, must he strictly corn- 
 pled with, or is, like representations generally, satisfied by a sub- 
 stantial compliance ? 
 
 If the policy is " at and from " a place named, and the vessel 
 is hindered from sailing by a peril by which the underwriter is 
 not to be directly or indirectly affected, as, for instance, by some 
 voluntary act of the assured himself, the contract is forfeited; 
 but not so if the hinderance is by some casualty that may be 
 presumed to have been in contemplation of the parties as an ex- 
 ception ; especially and conclusively, if it is by the perils insured 
 against. 
 
 Such a representation in a policy " from " a port is most obvi- 
 
 1 Alsop V. Coit, 12 Mass. 40. See 3 Murray v. Alsop, 3 Johns. Cas. N. 
 
 also remarks per Shaw, C.J. , in Hough- Y. 47. See The Bernon, 1 C. Kob. 
 
 ton t!. Manufacturers' Mut. Fire Ins. Co. Adm. 1C3. 
 
 8 Mete; Mass. 114. 4 Vandenheuvel v. Church, 2 Johns. 
 
 'i Dawioa v. Atty 7 East, 367. Cas. N. Y. 173, n.
 
 SECT. XIX.] COMPLTANCE WITH A REPRESENTATION. 367 
 
 ously construed to be, that the vessel will be, or was, ready to 
 sail on the day named ; and her being then ready is a substan- 
 tial, if not a strict compliance, though she may have been hin- 
 dered by the state of the weather, or other simultaneous, temp- 
 orary casualty ; but if by any prior casualty which in such case 
 is at the risk of the assured, or any act imputable to the as- 
 sured whether simultaneous or prior, the contract will be de- 
 feated. That is to say, 
 
 If the vessel is hindered from sailing on the stipulated day by 
 any cause, simultaneous or prior, for which the assured is exclu- 
 sively responsible, the contract is either forfeited or defeated; the 
 former if the risk had commenced, the latter if it had not.^ 
 
 A positive, unqualified representation that the vessel did sail, or 
 will sail, on a certain day, must, if material, be complied with. 
 
 673. In a case of a written promissory representation, referred 
 to in the policy as a representation, a substantial compliance is 
 sufficient. 
 
 A substantial compliance with a representation that a factory 
 is examined every day after work, and a cask of water and 
 buckets are kept in each story, is sufficient. An occasional omis- 
 sion to examine the mill, happening by accident or the negli- 
 gence of subordinate persons or workmen, not sanctioned by the 
 assured or his superintendent, manager, or agent, might not 
 amount to a non-compliance. So, respecting the keeping of a 
 cask of water, that 8, cistern or reservoir of sufficient capacity 
 would be a compliance, tliough it was not a cask, and the keep- 
 ing of a small, insufficient cask would not be a compliance, 
 though literally it corresponded to the representation.^ 
 
 Under a condition of a fire policy on a china-factory, that, if 
 an assured should describe it otherwise than as it really was, so 
 that it should be insured at a less premium, the policy should 
 be void, a room described as a " store for painted ware," on 
 the plan shown to the insurers, was in fact occupied as the 
 carpenter's shop for the establishment. The rate of premium 
 was the same for either use. This was held to be a sufficient 
 compliance.^ 
 
 1 See 2 Duer, Mar. Ins. 686, Lect. 14, iels v. Hudson K. Ins. Co. 12 Cusli. 
 s- 29. Mass. 416. 
 
 2 Houghton r. Manufacturers' Mut. 3 Delonguemere r. Tradesmen's Ins, 
 Fire Ins. Co. 8 Mete. Mass. 114 ; Dan- Co. 2 Hall, N. Y. 589.
 
 868 EEPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 Where a portion of the building insured as a grist-mill was 
 occupied partly as a carpenter's shop in which work other than 
 repairs of the mill was done, it was held that the policy was 
 void, the riyk being enhanced by such use.^ 
 
 Under the same condition, the building was represented to be 
 " a stone mill covered with wood." The gables were wood. This 
 was held not to be a misrepresentation, if the rate of premium 
 would not be thereby enhanced.'"^ 
 
 So where a building described as " occupied as a hotel," was 
 used by the tenant as a house of ill fame ; this was held not to 
 defeat the insurance.^ 
 
 But having a cooper's shop in a building described as a 
 flour-mill was held to be not a compliance with the represen- 
 tation.* 
 
 674. A written representation may be referred to in the poKcy 
 in such a manner, or may be of such a matter, as to require as 
 strict a conformity of the facts to the statement, and compliance, 
 as if it were an express, specific warranty in the policy. 
 
 Where a policy stipulates that it is to be void in case of 
 the facts stated in the written application being untrue, and 
 one of the facts required is a specification of other buildings 
 within a given distance from the one insured, an omission to 
 mention a building situattid within that distance will render 
 the policy void, without any distinction as to its enhancing 
 the risk or not.^ " 
 
 This case is put partly upon the fact of the reference in the 
 policy, but many statements might be true within the meaning 
 of such a reference, though not literally verified. In this case, 
 the only room for construction and qualification of the statement 
 seems to be the determining of what is a "building" within 
 the meaning of the policy. Any structure within the specified 
 distance, being considered to be a " building," insurmountably 
 falsifies the statement, which is made material by its being an 
 
 1 Jennings v. Chenango Mut. Ins. Co. ■* Harris v. Columbiana Ins. Co. 4 
 2 Den. N. Y. 75. Ohio St, 285. 
 
 2 Columbian Ins. Co. v. Lawrence, 2 ^ Burritt v. Saratoga County Mut. 
 Pet. 25. Fire Ins. Co. 5 Hill, N. Y. 188. 
 
 3 Hall V. People's Ins. Co. 6 Gray, 
 Mass. 185.
 
 SECT. XX.] EFFECT OF A CONCEALMENT, ETC. 369 
 
 answer to an inquiry respecting a specific fact. In case of some 
 general representation, as of neutrality, the distinction between 
 a substantial and a strict compliance, if there is any, is hardly 
 appreciable. In such cases a warranty and a representation are 
 substantially equivalents, though the representation is not re- 
 ferred to in the policy. 
 
 Lord Ellenborough makes a distinction between a warranty 
 and a representation of neutrality, in respect of the strictness of 
 the compliance requisite, but it seems to have been merely for a 
 plausible way of escaping the doctrine of the conclusiveness of 
 a French decree of condemnation.^ 
 
 SECTION XX. EFFECT OF A CONCEALMENT OR MISREPESENTA- 
 
 TION. 
 
 675. One of the implied stipulations by the assured, on ivhich 
 the underwriter subscribes, is, that he is informed by the assured 
 of all material circumstances knoimi to the Icdter, and not known, 
 or presumed to be so, to himself, and that wo misrepresentation 
 has been made by, or is imputable to, the assured; and if this 
 stipulation is not substantially complied loith, he is icholly or 
 partially exonerated from the liabilities to which he would other- 
 wise have been subject. 
 
 676. The insurance icill be defeated in full or in part, as the 
 case may be, ivhether the past or existing circumstances misrepre- 
 sented or suppressed, eventually turn out favorably or unfavorably 
 for the risk. 
 
 The whole question, as the definitions already given import, 
 is, whether, if the fact suppressed had been communicated, or 
 the fact misrepresented had not been represented, or had been' 
 represented truly, the tendency would have been to influence 
 the mind of the underwriter to decline to subscribe, or to 
 demand a higher premium. If such would have been the 
 tendency, then the subscription is in effect cancelled, unless the 
 presumption that the insurer was thereby influenced is coun- 
 tervailed.2 
 
 1 Von Tungeln v. Debois, 2 Campb. Anon. Skin. 327 ; Seaman v. Fonne- 
 15 L reau, 2 Strange, 1183. 
 
 •i Willes V. Glover, 4 Bos. & P. 14;
 
 370 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 A broker, knowing that a ship, having on board a part of the 
 goods insured, was reported to have been seen at sea "deep and 
 leaky," did not disclose this information to the underwriters, 
 which defeated the contract, though in fact the ship was not 
 deeply laden or leaky. ^ 
 
 677. In case the misrepresentation or concealment has reference 
 to past or existing circumstances, the undenvriter is discharged 
 from all liability in respect of the subject or risks to which the 
 misrepresentation or suppression relates. 
 
 This doctrine is constantly assumed, and runs through the 
 whole jurisprudence on the subject. 
 
 678. If a fact suppressed relates to only a part of the goods or 
 subjects insured, but yet enhances the risk on the ivhole, it is a con- 
 cealment in respect of the whole : 
 
 As where a part of the insured cargo is of a belligerent charac- 
 ter, thereby exposing the whole to detention.^ 
 
 679. Whether a concealment or misrepresentation respecting one 
 of iivo or more subjects, or a part of a subject, insured in a policy, 
 but not affecting the other part or other subjects, is such in refer- 
 ence to these, the case being free of fraud ? 
 
 In the case above cited,^ Mr. Justice Washington gave as a 
 reason for a concealment as to a part of the cargo being such in 
 reference to the remainder, that the risk upon the whole was 
 enhanced by the suppressed fact. Conversely, therefore, apply- 
 ing the same criterion, if the suppressed fact does not enhance 
 the risk on the remainder of the cargo, or on the other subjects 
 insured in the policy, it will remain in force upon these. And I 
 am not aware of any objection to this doctrine, provided there is 
 no insuperable obstacle to its practical application. 
 
 According to divers decisions and dicta in the former jurispru- 
 dence, the insurance of the whole of the subjects, or all the dif- 
 ferent subjects, for a single premium, or under one valuation, 
 might be considered as presenting an objection, but as there is 
 not in fact, usually, if there is ever, any difficulty in apportioning 
 a premium to divers subjects or parts of a subject, any more than 
 in reference to diflferent periods or passages, I persuade myself 
 
 i Lyncli V. Dunsford, 14 East, 494; 2 Marshal v. Union Ins. Co. 2 Wash. 
 Lynch v. Hamilton, 3 Taunt. 37. C. C. 357. 3 Ibid.
 
 SECT. XX.] EFFECT OF A CONCEALMENT, ETC. 371 
 
 that this objection will cease, if it has not ceased already, to have 
 any weight. But suppose the premium not to be apportionable, 
 the result is merely that the assured is subject to an excessive 
 rate of premium, which is preferable to what is often the alterna- 
 tive, namely, the losing of the whole of it for a part of the period 
 of the risk at least. The better doctrine in the case put, accord- 
 ingly, seems to me to be, that 
 
 The policy remains valid in reference to the other subjects or 
 other parts of the same subject, where different subjects or parts 
 are specificcdhj distinguishable.^ 
 
 680. Whether a misrepresentation or co?icealment in respect of 
 one of the risks insured against, and not affecting the others, 
 where the loss by such risk is clearly distinguisable, loill defeat 
 the policy in reference to the other risks, the case being free of 
 fraud ? 
 
 In accordance to the doctrine before stated, I agree with Mr. 
 Duer,^ following Benecke, that the policy ought to be held valid in 
 reference to the other risks. 
 
 This, and the similar doctrines before just stated, will be found 
 to be directly, not to say conclusively, supported by the juridical 
 jurisprudence on implied warranties, in reference to risks that are 
 clearly distinguishable from the others insured against. 
 
 681. WJiether the assured, in order to excuse an alleged non- 
 compliance with a representation, is permitted to prove that a mate- 
 rial misrepresentation or concealment did not influence the under- 
 writer ? 
 
 Where the jury found that a representation did not influence 
 the underwriter. Lord Tenterden and his associates considered it 
 to be neutralized, and put upon the footing of an immaterial 
 fact.3 
 
 There does not seem to be any case in which this could be 
 proved, except that of a revocation of the representation on the 
 
 1 This is the position taken in Loch- lien for the premium, the court held 
 
 ner r. Home Ins. Co. 17 Mo. 24 7. But that the contract was entire and no 
 
 in Friesmuth v. Agawam Ins. Co. 10 such division could be made. 
 
 Cush. Mass. 587, and Brown v. People's 2 2 Duer, Marine Ins. 599. 
 
 Ins. Co. 11 Cush. Mass. 280, where the 3 Flinn r. Headlam, 9 Barnew. & C. 
 
 representation was a matter of express G93. 
 stipulation, and the underwriters had a
 
 372 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 part of the assured, or a waiver of its materiality on the part of 
 the underwriter. Neither of these grounds appears in the case 
 referred to. In that case the underwriter at first declined to sub- 
 scribe, on the ground that the vessel was to carry a cargo of rock- 
 salt. The assured represented that she would carry only enough 
 to put her in ballast trim, whereupon the underwriter subscribed. 
 She in fact carried a full cargo. To cancel this representation, a 
 certificate, procured at the suggestion of the brokers at whose 
 office the policy was underwritten, that she was strong, stiff, 
 staunch, seaworthy, and fit to carry a cargo of rock-salt, was 
 proved. This could cancel the representation only on the ground 
 that it was immaterial whether the particular vessel carried a full 
 cargo of salt, or only enough to put her in ballast trim. But the 
 case admits that the representation was material, that is, that it 
 made a difference. It is possible that the underwriter waived his 
 objection on his attention being called to the certificate, but the 
 report does not show this. 
 
 Notwithstanding this decision, I conclude that a material mis- 
 representation will defeat the policij, wholly or in part, unless it 
 is ivithdrawn hij the assured, or its 7naterialily is ivaived by the 
 insurer, or it becomes immaterial, or compliance with it is ren- 
 dered illegal. 
 
 682. The non-communication or tnisrepresentation of material 
 facts, though it be through mistake or forgetfulness, and without 
 any fraudulent purpose, has nevertheless the effect to defeat the 
 contract} 
 
 683. Wliether, in a retrospective insurance, a concealment or 
 misrepresentation of what occurred subsequent to the time from 
 which the risk purports to be assumed by the 2Jolicy will defeat it ? 
 
 A decision by Lord Ellenborough and his associates has refer- 
 ence to the question just stated. It was an insurance in Lon- 
 don, on a ship, " lost or not lost, at and from the port of loading 
 in Jamaica" to the United Kingdom ; the ship having been heard 
 from at her loading port, Manchineal, in that island. The cap- 
 tain omitted to mention in his letter received by the owner before 
 he effected the insurance, that the ship had been driven upon a 
 rock in that harbor, and had been got off without having ap- 
 parently sustained material damage. 
 
 1 Bridges v. Hunter, 1 Maule & S. 15.
 
 SECT. XX.] EFFECT OF A CONCEALMENT, ETC. 373 
 
 Here the policy purported that the insurers assumed the risk 
 from a time anterior to the accident. The alternative, therefore, 
 seemed to be, that the insurers must be liable for the damage 
 sustained from the time of the vessel's arrival at Manchineal, or 
 be discharged from the policy entirely. The court considered the 
 non-communication of the fact of the accident as a material con- 
 cealment; without, however, any imputation of fraud, either to 
 the assured or the master. But instead of assigning the ordinary 
 effect to the concealment, by holding that it wholly defeated the 
 policy, they held that it had the effect to exonerate the under- 
 writers from liability for the damage occasioned by the accident. 
 Lord Ellenborough remarks, " If the principle be new, it is con- 
 sistent with justice and convenience." ^ It subsequently appeared, 
 on a survey after arrival at London, that she had, by the accident, 
 sustained damage to keel and other parts, amounting to fifteen 
 per cent. 
 
 Assuming, with the court, the fact to be material, and the ob- 
 ligation of the assured to communicate it, and considering that 
 it affected the whole risk for the whole voyage, the conclusion 
 seems to follow, that 
 
 The policy u'as void. 
 
 684. A non-co7npliance with a promissory representation subse- 
 quently to both the time of making the policy and the commence- 
 ment of the 7-isk, does not render the policy void, but, like a devi- 
 ation, discharges the insurers, at the most, only from liability for 
 any subsequent loss, and leaves them liable to prior losses. 
 
 This results necessarily from the fact that the underwriters are 
 by- all policies liable for the payment of the loss in a certain time 
 after demand and proof, which time may have expired before the 
 non-compliance. 
 
 685. Whether temporary non-compliance ivith a representation 
 subsequently to the commencement of the risk, will discharge the 
 insurers absolutely ? 
 
 Where a representation has a continuing character, or refers 
 to circumstances subsequent to the commencement of the risk, 
 there is no precedent or -principle against the revival of the risk, 
 after its temporary suspension by a temporary non-compliance 
 with the representation without fraud, provided such temporary 
 I Gladstone v. King, 1 Maule & S. 35. 
 
 TOL. I. 32
 
 374 REPRESENTATION AND CONCEALMENT. [CHAP. VII. 
 
 non-compliance has no effect in enhancing or changing the sub- 
 sequent perils. Analogy to the doctrine relative to temporary 
 non-compliance with the implied warranty of seaworthiness, is 
 a ground of confident inference that the underwriters are not 
 absolutely discharged by such non-compliance, bid, on the con- 
 trary, that, in such case, the risk revives after the non-compliance 
 ceases.^ 
 
 1 See 2 Duer, Ins. 697 ; 1 Arnould, Ins. 525.
 
 CHAPTER VIII. 
 
 IMPLIED WARRANTIES, CONDITIONS, AND STIPULATIONS. 
 
 Sect. 1. What warranties, conditions, and 
 stipulations are implied. 
 
 2. Seaworthiness of the ship. 
 
 3. Le^al conduct. 
 
 Sect. 4. Belligerent risks. 
 
 5. The abrogation of an implied 
 ■warranty, condition, or stipula- 
 tion. 
 
 SECTION I. WHAT WARRANTIES, CONDITIONS, AND STIPULATIONS 
 
 ARE IMPLIED. 
 
 686. An implied warranty^ condition^ or stipulation., is an agree- 
 ment not expressed in the policy, but presumed from the fact of 
 making the insurance. 
 
 It is distinguished from a representation by the circumstance, 
 that the latter is usually expressed, either in writing or verbally, 
 or is the result of the phraseology used, and does not arise on the 
 mere fact of effecting the policy. 
 
 687. The doctrine of misrepresentation and concealment in- 
 volves the principle of an implied warranty or condition ; they 
 avoid the policy because there is an implied agreement of the 
 assured to make a fair disclosure of the circumstances affecting the 
 risk, and the insurer subscribes upon the condition that he has 
 complied with this agreement. 
 
 688. So it has been held to be an implied condition that inter- 
 ests of a certain description must be disclosed, either in the policy 
 or otherwise. 
 
 The interest of a lender on bottomry or respondentia, as we 
 have seen, must be insured as such.^ 
 
 So the other kinds of interest, such as belligerent or contraband, 
 of which, as before stated, notice to the underwriter is requisite, 
 must be specified in the policy, if notice of them is not otherwise 
 given. 
 
 It has been held by the Supreme Court of the United States, 
 
 1 Supra, No. 427.
 
 876 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 that the same condition is applicable to a policy on the interest 
 of a mortgagee ; of which it is that " no policy can be deemed a 
 policy exclusively upon the interest of the mortgagee, unless the 
 company has notice that it is so designed." ^ But the decisions 
 in reference to the description of the subject,^ the ruling of Tindal, 
 C. J., and others of the English Common Pleas,^ have quite a 
 contrary aspect, and go to the doctrine that such an interest need 
 not be described in the policy, or disclosed by representation. 
 This is in conformity to the liberal spirit of commercial jurispru- 
 dence introduced by Lord Mansfield, and more prevalent recently 
 both in England and the United States, discountenancing and 
 tending to discard superfluous conditions and distinctions. 
 
 689. The doctrine of deviation, to be hereafter more particu- 
 larly considered, is founded on an implied understanding' between 
 the parties, arising on the fact of making the insurance, that the 
 adventure is to be pursued in the usual manner, or, in other words,, 
 that the risks are to be such as vessels are usually subject to, and 
 not voluntarily varied by the assured or those whose acts and 
 neglects are imputable to him. 
 
 690. Upon the same principle upon which the doctrine of 
 deviation is founded, it is an implied understanding that the risk 
 is to commence ivithin a reasonable time, unless the policy contains 
 some express provision on the subject; and unless it is so com- 
 menced, the contract will be forfeited. 
 
 A policy was effected in London, on freight at and from Sin- 
 gapore and Batavia to London, dated on the 28th of February, 
 1824. The ship had sailed from England on the outward voyage 
 in September, 1823. Owing to delays, partly unnecessary, on 
 the outward voyage, the ship did not arrive at Singapore until 
 the 30th of March, 1825, and sailed thence on the 3d of May 
 following. Tindal, C. J. : " We are of opinion that such unrea- 
 sonable and unjustifiable delay, on the part of the assured, in 
 commencing the voyage, is in the nature of a deviation, and does 
 amount to such an alteration of the risk insured against, as to 
 discharge the underwriter. He has as much right to calculate 
 upon the outward voyage being performed in a reasonable time 
 and without unnecessary delay, in order that the risk may attach, 
 
 1 Per Story, J., 16 Pet 495, at p. 2 Supra, No. 421, 422. 
 505, in Carpenter v. Providence Wash- 3 pim v. Reid, 6 Mann. & G. 1. 
 injjton Ins. Co.
 
 SECT. I.] WHAT WARRANTIES ARE IMPLIED. 377 
 
 as that the voyage insured shall be commenced within a reason- 
 able time after the risk has attached. In either case the effect is 
 the same as to the underwriter, who has another risk substituted 
 instead of that which he has insured against." ^ 
 
 A decision similar in principle was made in case of a charter- 
 party, where the owner did not have the ship at the place agreed 
 upon in reasonable time.^ The doctrine is general. 
 
 691. It is alumys implied that no indemnity is to he made for 
 loss, by the specified perils, on property held in contravention of 
 law, or employed in an illegal adventure or use, or for loss in- 
 curred by the illegal acts of the assured.^ 
 
 It has been sometimes stated to be an implied warranty, that 
 the assured shall comply with the laws in the prosecution of the 
 adventure;* but this is too broad a statement of the doctrine, as 
 already remarked, for the policy is not forfeited by an incidental, 
 collateral, illegal act.^ 
 
 692. It is also, as will subsequently more fully appear, an 
 implied understanding- of the parties to the policy, that the under- 
 ivriters are not liable for loss occasioned by the perils insured 
 against, in direct, obvious, and necessary consequence of the unjus- 
 tifiable acts or neglects of the assured or of the agents for whose 
 conduct he is responsible. The extent of his responsibility is a 
 subject of inquiry under the head of Risks, and that of Agents. 
 
 693. It is an understood condition of every policy, that if 
 the assured proves to have no insurable interest in the subject 
 described, or if the subject is never liable to the risks insured 
 against, the policy is to be cancelled, and in the absence of fraud 
 on the part of the applicant, the premium is to be returned. 
 
 694. The implied icarranties which most frequently come into 
 discussion are those of the seaworthiness of the ship and the 
 neutral character, and the neutral and legal conducting of the 
 adventure. 
 
 1 Mount V. Larkins, 8 Bingli. 108. establishing the doctrine of ]\Iount r. 
 Mr. Chief Justice Tindal cites and com- Larkins. 
 ments upon Smith v. Surridge, 4 Esp. 2 Freeman v. Taylor, 8 Bingh. 124. 
 
 25 ; Hartly v. Buggin, Park, Ins. 523 
 Vallance v. Dewar, 1 Campb. 503 
 Ougier V. Jennings, 1 Campb. 505, n. 
 and Hull v. Cooper, 14 East, 479; as 5 gee chap. 3, sec. 2 
 32* 
 
 3 See chap. 3, sec. 2. 
 * Per Tindal, C. ,B., in Sadler v. 
 Dixon, 8 Mees. & W. Exch. 895.
 
 578 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP, VIII. 
 
 SECTION II. SEAWORTHINESS OF THE SHIP. 
 
 695. In a marine insurance^ whether it he on the ship, freight, 
 or cargo, or the commissions or profits to accrue upon the cargo, 
 the assured is understood impliedly to warrant, hij the mere fact 
 of effecting the insurance, independently of the particular terms 
 used, that the ship is at the commencement of the voyage seaworthy ; 
 namely, that the materials of which the ship is made, its construc- 
 tion, the qualifications of the captain, the number and description 
 of the creio, the tackle, sails, and rigging, stores, equipment, and 
 outfit, generally, are such as to render it in every respect fit for 
 the proposed voyage or service.^ 
 
 A similar warranty is implied in river, lake, and canal naviga- 
 tion.2 
 
 696. If the ship, oiving to some material deficiency, other than 
 a merely incidental one, temporary in character and admitting 
 of a ready remedy,^ is not, or urns not at the time referred to by 
 the warranty, such as the assured is understood, by effecting the 
 policy, to luarrant, the condition on which the liability of the un- 
 derwriter wholly or partially depends is forfeited. 
 
 697. This warranty extends to the qualities and defects of the 
 vessel, unknown, and that could not have been known, no less than 
 those knoivn, to the assured^ 
 
 698. This or any other implied obligation may be modified, en- 
 larged, or superseded by express agreement : 
 
 As where it is provided that any insufficiency of the ship, not 
 known to the assured, shall not prejudice the insurance : ^ 
 
 So where by the policy the ship is " admitted to be seaworthy 
 
 1 Lee V. Beach, Park, 342; Marsh. KnlU v. Hooper, 2 Hurlst. & N. Exch. 
 
 160; Oliver v. Cowley, Park, 343; 277. 
 
 Marsh. 161 ; Warren v. United Ins. Co. 2 Firemen's Ins. Co. v. May, 20 Ohio, 
 
 2 Johns. N. Y. 231 ; Prescott i'. Union 211. 
 
 Ins. Co. 1 Whart. Penn. 399. The 3 See infra. No. 726. 
 
 warranty extends to the machinery of 4 M'Cargo v. Merchants' Ins. Co. 10 
 
 a steamboat; Myers v. Girard Ins. Co. Rob. La. E. 334; and see cases gen- 
 
 26 Penn. St. 192. This warranty is erally. 
 
 implied where salvors insure their sal- 5 Vallejo v. Wheeler, Cowp. 143. 
 vage in a vessel sent to another port;
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 379 
 
 for the voyage,"^ in case of damage and the ship not being 
 worth repairing, the underwriters are precluded from alleging its 
 decayed state in defence against a claim for loss. 
 
 A mutual insurance company cannot by a vote add an im- 
 plied condition to a policy previously issued to one of its 
 members.''^ 
 
 The policy being on the " good ship " H, this designation is 
 not an express or implied warranty of seaworthiness.^ 
 
 699. Where the risk commences under the policy at the original 
 port of departure, a compliance with this implied warranty is 
 genercdly a condition precedent on ivhich the fact of the policyh 
 attaching depends. This doctrine pervades the whole jurispru- 
 dence on the subject.* 
 
 700. To render a ship seaivorthy, it must be stanch and of 
 sound materials; or rather, it must be sufficiently stanch and sound 
 for the service or use intended by the insurance.^ 
 
 A ship, of which "the timbers were decayed and the iron-work 
 wrought loose," was considered not to be seaworthy.^ 
 
 701. The ship must be adequately constructed. 
 
 A vessel constructed without knees was held not to be sea- 
 worthy for a foreign voyage." 
 
 The question occurred in Pennsylvania, whether the want of 
 cabin-doors, for which sliders had been substituted, and the want 
 of a tarpauling covering of the hatches, make a vessel unsuit- 
 able for the navigation of Lake Erie. Tilghman, C. J., seemed 
 to be of opinion, that these circumstances did not make the 
 vessel unfit for this service.^ 
 
 1 Parfitt V. Thompson, 13 Mees. & Garrigues v. Coxe, 1 Binn. Penn. 592; 
 W. 392 ; Phillips v. Nairne, 1 Arnould, Patrick v. Hallett, 1 Johns. N. Y. 241 ; 
 Ins. 662 ; S. C. 16 Law Jurist, Com. Peters i'. Phccnix Ins. Co. 3 Serg. & R. 
 PI- 194. Penn. 25; Plantamour v. Staples, 1 
 
 2 New England Mut. Fire Ins. Co. v. Term, 611, n. ; 3 Dougl. 1. 
 
 Butler, 34 Me. 451, cited supra, No. ^ Buliard y. Roger Williams Ins. Co. 
 
 413 a. 1 Curt. C. C. 148. 
 
 3 Per Parke, B., Small v, Gibson, 16 ^ Douglas v. Scougall, 4 Dow, Pari. 
 Ad. & E. 141, 3 Eng. L. & Eq. 299. Cas. 269. 
 
 4 See Mills v. Roebuck, Park, 335; 7 Watt v. Morris, 1 Dow, Pari. Cas. 
 Bermon v. Woodbridge, 2 Dougl. 781 ; 32. 
 
 Watson V. Clark, 1 Dow, Pari. Cas. « Bell v. Reed, 4 Binn. Penn. 127. 
 344 ; Hucks v. Thornton, 1 Holt, 30 ;
 
 380 IMPLIED WARRANTIES, CONDITIONS, ETC. [cHaP. VIII. 
 
 In case of a vessel's being run upon a rock in going out of 
 Boston harbor, in consequence of the needle of the compass 
 being drawn out of its direction two or three points by an iron 
 fastening near the compass, which defect could easily be rem- 
 edied, the insurers objected to paying the loss, on the ground 
 that it rendered the vessel unseaworthy. It appeared by the 
 testimony of sundry witnesses, that, notwithstanding the utmost 
 care on the part of the owners and master, iron-work will some- 
 times come so near to the compass as to cause a variation, and 
 there being no negligence in this case, the court seemed to ac- 
 quiesce in the opinion of the witnesses, that the circumstance 
 did not render the vessel unseaworthy.^ 
 
 702. The ship must be sufficiently furnished with sails, tackle^ 
 riffg-ing-, cables, and anchors. 
 
 A vessel was considered not to be seaworthy, of which " the 
 maintop-gallant-sail and studding-sails were extremely rotten 
 and unserviceable," in consequence of which deficiency she fell 
 behind the convoy and was lost.^ 
 
 So a vessel was considered to be unseaworthy, of which the 
 best bower anchor and the cable of the small bower were 
 defective.3 
 
 703. Sufficient stores and supplies are requisite to seaworthi- 
 ness. 
 
 A vessel not properly supplied with fuel and candles was held 
 not to be seaworthy.* 
 
 If a medicine-chest is a part of the usual outfit for the voyage 
 insured, it is questionable whether the ship is seaworthy without 
 one.^ 
 
 The outfit must be such as is requisite for the voyage and 
 season. 
 
 A voyage in a northern climate in the winter, for instance, 
 requires a different outfit for the accommodation of the crew 
 from what is necessary in the warm season, or for a southern 
 voyage.^ 
 
 1 Stanwood v. Rich, S. J. C. Mass. * Fontaine v. Phoenix Ins. Co. 10 
 Suffolk, November, 1817. Johns. N. Y. 58. 
 
 2 Wedderburn v. Bell, 1 Campb. 1. ^ Woolf v. Claggett, 3 Esp. 257. 
 
 3 Wilkie V. Geddes, 3 Dow, Pari. ^ Watt v. Morris, 1 Dow, Pari. Cas. 
 Cas. CO. 32.
 
 SECT. II.] SEAWORTHINESS OF TJIE SHIP. 381 
 
 What is a proper outfit to make the ship seaworthy for a voy- 
 age depends very much upon usage. 
 
 We have already seen that a contravention of law in some 
 collateral incidental transaction in the course of the voyage, does 
 not defeat the policy.^ So; in respect of the outfit of the ship, a 
 non-compliance with the law in some particular, as in a foreign 
 voyage from IMansanilla to the United States, not having under 
 deck the quantity of water required by an act of Congress,'- was 
 held not to vitiate the policy on the vessel, the quantity of water 
 on board, and manner of stowing it on deck, being in conformity 
 with the usage in the voyage.'^ 
 
 704. The proper stowage of the cargo, and spare sails, rigging, 
 tackle, and necessary furniture of the vessel, is requisite to sea- 
 worthiness, so far that it must conform to the usage of the 
 trade to all practical purposes material to the risk, and must 
 not materially and continuedly embarrass the navigation and 
 endanger the safety of the vessel.* 
 
 A case before cited ^ recognizes the force of usage, as to the 
 stowage of supplies. 
 
 Underwriters were held not to be liable for the loss of a hawser 
 stowed in the boat on deck, thus assuming that proper stowage 
 is necessary, though the question of seaworthiness was not made 
 in the case.*^ 
 
 705. The vessel must not be overloaded, whether in marine,' 
 or in river, lake, or canal navigation.^ 
 
 706. Insufficiency of ballast renders the vessel unseawortkij? 
 
 707. It is requisite that the ship should have a competent master 
 and officers, according to the service upon which it is employed.^*^ 
 
 1 Supra, No. 221 ; Clark v. Piotec- 7 Weir v. Aberdein, 2 Baniew. & 
 tion Ins. Co. 1 Stor. C. C. 109. Aid. 320. 
 
 2 1790, c. 56, s. 9, edited by Story, 8 Firemen's lus. Co. v. May, 20 Ohio, 
 Vol. 1, p. 106. 211. 
 
 3 Warren v. Manufacturers' Ins. Co. ^ Deblois t'. Ocean Ins. Co. 16 Pick. 
 13 Pick. Mass. 518. Mass. 303 ; Dixon v. Sadler, 5 Mees. 
 
 4 Chase V. Eagle Ins. Co. 5 Pick. & W. Excli. 414 ; Sadler v. Dixon, 8 
 Mass. 51. id. 895. 
 
 5 Warren v. Manufiuturers' Ins. Co. 10 Walden v. Fire & Mar. Ins. Co. 12 
 18 Pick. Mass. 518. Johns. N. Y. 128. Incompetency of the 
 
 6 Brooks V. Oriental Ins. Co. 7 Pick, master named in the registry and ship- 
 Mass. 259 ; and see Roccus de A.^sec. ping articles as a navigator is not a 
 n. 22. breach of warranty, if a competent sail-
 
 382 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 The English Court of King's Bench was inclined to hold a 
 vessel not to be seaworthy, the captain of which, for a voyage 
 within the Straits of Gibraltar as far up us Tarragona, from igno- 
 rance of the coast, mistook Barcelona for Tarragona.^ 
 
 708. The skill in navigation of the master or other persons 'on 
 board, requisite to seaivorthiness, must depend itpon the particular 
 voyage. 
 
 Lord Tenterden was of opinion, that a ship was not seaworthy 
 for a voyage from Madras to London, having no one on board 
 capable of navigating her, excepting the captain.^ 
 
 Whether the master or some one on board must have sufficient 
 skill to take an observation, depends upon the voyage and the 
 usage of the particular trade.^ 
 
 709. It is essential, that a sufficient crew should be provided at 
 the commencement of the voyage.'^ 
 
 A vessel of about thirty-five or forty tons burden, with three 
 sails, was considered not to be seaworthy for a voyage from New 
 York to Edenton, in South Carolina, with no other crew than the 
 master and one seaman.^ 
 
 A ship engaged on a whaling and sealing voyage, and having 
 a letter of marque, was insured from a certain date, at which 
 time she had a sufficient crew for seaUng and other purposes of 
 the voyage, except whale-fishing ; and she afterwards pursued 
 only sealing. Gibbs, C. J. : " If the ship had a competent crew 
 to pursue any part of her adventure, it being at her election to 
 pursue what part she chose, she might be deemed seaworthy." ^ 
 
 710. It is generally, though not in all cases, requisite that a suf- 
 ficient crew for the whole voyage should be shipped at the outset. 
 
 The question whether the original shipment of a full comple- 
 ment of men for the whole voyage or period of the risk is neces- 
 sary to seaworthiness, like other questions relative to this subject, 
 depends upon usage and the particular voyage, and circum- 
 stances. 
 
 ins; master has entire charge. Draper 3 Treadwell v. United Ins. Co. G Cow. 
 
 V. Commercial Ins. Co. 21 K. Y. 378; N. Y. 2 70. 
 
 reversing the decision below. 4 Du. 4 Busk v. Royal Exch. Ass. Co. 2 
 
 N. Y. 234. Barnew. & Aid. 73. 
 
 1 Tait v. Levi, 14 East, 481. ^ Pow v. Smith, 1 Caines, N. Y. 32. 
 
 2 Clillbrd V. Hunter, 3 Carr. & P. 16 ; See Hunter v. Potts, Selw. N. P. ^07, n. 
 1 Mood. & M. 103. 6 Hucks t'. Thornton, 1 Holt, 30.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 383 
 
 The commencement of the voyage being down the Plaquimin 
 River, in North Carolina, the Supreme Court of New York were 
 of opinion, from the evidence, that one man, with the captain, 
 was sujfficient for descending the river, though two were requisite 
 for the rest of the voyage to New York.^ 
 
 The degree of probability, amounting almost to certainty in 
 many cases, that hands may be had at ports where the ship is to 
 touch, will materially affect the question. 
 
 For these reasons, I have stated the doctrine as above, that it 
 is " generally " requisite to have a sufficient crew shipped, and 
 that the vessel shall be otherwise seaworthy for the whole voy- 
 age, at the outset, notwithstanding that a part of the navigation 
 requires fewer hands, or the voyage includes stopping at inter- 
 mediate ports.2 
 
 Under a policy on goods from Wilmington, in North Carolina, 
 to Falmouth, i,n England, a part of the crew were shipped for 
 New York, at which port it was proposed to touch on the voy- 
 age, and a loss occurred, and the ship foundered, before coming 
 to the dividing point of the course direct to Falmouth and that 
 to New York. It was held in New York, that the underwriters 
 were exonerated, on the ground of unseaworthiness.^ 
 
 It was remarked in this case, by Mr. Justice Kent, that "the 
 master was under a moral disability to go to Falmouth, and this 
 was equivalent to a physical incompetency to perform the voy- 
 age." But if the ship had not foundered, the master might have 
 obtained the consent of the men so shipped to go to Falmouth, 
 or he might have broken his agreement with those men, which, 
 though wrong, would have been a matter inter alios in reference 
 to the parties to the policy. The decision does not accord to the 
 rule that we shall find to be adopted in respect of deviation. 
 
 A ship and cargo were insured " at and from " the loading 
 port in Cuba, to Liverpool, with liberty, " in that voyage, to pro- 
 ceed and sail to, and touch and stay at, any ports and places 
 whatever." The vessel had made an outward passage from 
 Liverpool, and, some of the crew having been lost by sickness 
 
 * Treadwell v. Union Ins. Co. 6 Cow. ^ Silva v. Low, 1 Johns. Cas. N. Y. 
 ISr. Y. 270. IDS. 
 
 2 Alexander v. Pratt, 1 Arnould, Ins., 
 part 2, f. 4, sub. s. 248, p. 670.
 
 884 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 before leaving Cuba, the master, not being able to find others 
 there to supply all their places, shipped two for Jamaica, and put 
 in at Montego Bay to land those two and ship two others. The 
 vessel was held, by three of the judges of the English Common 
 Pleas, namely, Dallas, Park, and Burrough, to be unseaworthy, 
 though Park, J., said he had changed his opinion since coming 
 into court. Richardson, J., withheld his opinion on this ques- 
 tion.i 
 
 Mr. Justice Washington also assumes the same doctrine as to 
 an equal strictness of compliance with this warranty, whether the 
 risk under the policy begins at a foreign or other home port.^ 
 
 The coitectness of the decision of the English Common Pleas 
 is very questionable, whether examined by the jurisprudence of 
 England or that of the United States, on two grounds : namely, 
 that, as the policy was at and from the loading port, and some 
 of the hands were lost there, the master was authorized to take 
 whatever measures were necessary to supply the deficiency, with- 
 out forfeiting the insurance;^ and, second, that, as the voyage 
 had been out and home, though the risk commenced at the for- 
 eign port, the warranty of seaworthiness was not subject to the 
 same strictness of construction in reference to that port, as in 
 reference to the port of departure on the outward voyage."* 
 
 711. If a sufficient crew is originaUy shipped, an occasional dis- 
 ability, absence, or deficiency of the men, does not violate this war- 
 ranty.^ But as the warranty continues during the voyage, it is 
 broken by leaving any port on the voyage with an insufficient 
 crew, and the impossibility of procuring a crew is held to be no 
 excuse.*^ 
 
 712. Wlien a vessel is on ground ivhere it is iisual to take a 
 pilot, a professional pilot, or some person on board ivho has ade- 
 quate knowledge and skill in the local navigation to direct the 
 course, is necessary to seaicorthincss, just as a competent master, 
 and officers, and a sufficient crew, are so in general. 
 
 1 Forsbaw v. Cliabert, 3 BroJ. & B. 4 See infra, No. 728. 
 
 158. 5 Per Bailey, J., Busk v. Royal Exch. 
 
 2 Cruder v. Philadelphia Ins. Co. 2 Ass. Co. 2 Barnew. & Aid. 73. See 
 Wash. C. C. 262. also Bishop v. Pentland, 7 Barnew. & 
 
 3 Ibid. ; Motteu.x v. London Ass. Co. C. 210 ; 1 Mann. & R. 49. 
 
 1 Atk. Ch. 545; Smith v. Surridge, 4 ^ The Gentleman, Olcott, Adm. 110. 
 Etp. 25 ; and other cases cited intra.
 
 SECT. II. J SEAWORTHINESS OF THE SHIP. 385 
 
 The pilots appointed by authority are presumed to be compe- 
 tent, and if such a one is taken, and the vessel is left to his guid- 
 ance, this warranty is satisfied.^ 
 
 It is true, that, if such a pilot is at the time grossly unfit to be 
 intrusted with the navigation of the vessel, for instance, by intoxi- 
 cation, criminal intent, or vicious or malignant perverseness, it 
 may be the duty of the master, as in other emergencies, to exer- 
 cise his discretion as to the course and management of the ves- 
 sel. The usual, and ordinarily more prudent course, is to permit 
 the vessel to be conducted by the pilot. At any rate, the war- 
 ranty of seaworthiness is satisfied by his being on board, and the 
 question that arises, if any, in case of the interposition of the 
 master in conducting the vessel, is not that of unseaworthiness 
 for want of a pilot. 
 
 713. If the vessel is piloted by the rnaster or other person on 
 board, of competent skill, into or out of port, or over any pilot 
 ground, tJie warranty of seaworthiness is satisfied, though he is 
 not a publicly authorized pilot. 
 
 In such case the competency is not, as in that of a publicly 
 authorized pilot, presumed, but must be proved.'^ 
 
 714. If a person representing himself, and believed by the mas- 
 ter, to be a qualified pilot, is taken, the warranty of seaworthiness 
 is satisfied, though he is in fact not qualified.^ 
 
 715. As the master can always obtain a pilot, where it is usual 
 to take one, in going' out of a harbor, the vessel ivill not be sea- 
 worthy without oneJ^ 
 
 It was so ruled, even where the pilot refused to pilot a vessel 
 out immediately, on account of the difficulty of getting back, it 
 being afternoon, in the state of the weather at the time.-^ 
 
 716. //', on arriving off a port, on signal given, or waiting a 
 reasonable time according to the circumstances, no pilot offers, 
 
 1 Law I'. Hollingswortli, 7 Term, IGO. 3 So implied in Law v. Hollingsworth, 
 
 2 Keeler v. Firemen's Ins. Co. 3 Hill, 7 Term, 1 60. 
 
 N. Y. 250 ; Flanigen v. Washington Ins. * Phillips v. Ileadlam, 2 Barnew. & 
 
 Co. 7 Penn 307 ; M'Millan v. Union Ins. Ad. 380. 
 
 Co. Rice, vSo. C. 249. In Whitney v. ^ Per Parker, C. J., Stanwood v. 
 
 Ocean Ins. Co. 14 La. 485, it was held Rich, Mass. Sup. Ct. Suffolk, Novem- 
 
 that the vessel is not seaworthy without ber, 1817. 
 
 an authorized pilot, though the master 
 
 is a good pilot. 
 
 VOL. I. 33
 
 386 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 the captain may^ as in other emergencies, vse his discretion as to 
 standing off or entering without a pilot, and his doing the latter 
 will not be a breach of this warranty.^ 
 
 717. Whether the vessel is tmseaicorthy by not taking a pilots 
 where there is a provision of law for pilotage ? 
 
 In a case before Lord Kenyon, and Justices Grose and Law- 
 rence,^ the decision, holding the underwriters to be discharged by 
 the vessel not having a pilot, was put wholly upon the ground of 
 unseaworthiness, though the loss, by running upon the anchor of 
 another vessel in the Thames, was not owing to want of a pilot. 
 Tindal, C. J., remarks upon that case, that the decision, if it can 
 be supported at all, must be so on the ground of non-compliance 
 with the act of Parliament respecting pilotage in the Thames. 
 
 Assuming that the neglect to take a pilot, or rather his being 
 discharged before the vessel was safely moored in that case, was 
 by mistake of the master, in an intermediate stage of the voyage, 
 according to the English jurisprudence, if the vessel is rendered 
 unseaworthy through such mistake after the risk has once com- 
 menced, and loss by perils of the sea supervenes in consequence 
 or independently of such mistake, the underwriters still remain 
 liable for the loss, notwithstanding such defect of seaworthiness, 
 unless they can defend themselves from liability on the ground 
 of contravention of law by the master.^ 
 
 This is impliedly assuming that, if a statute requires the mas- 
 ter to take a pilot, the underwriters are discharged from their 
 liability during the neglect to comply with the law. This is in 
 accordance to some other decisions of the English courts in simi- 
 lar cases, already stated.'* But the better doctrine seems to be, 
 that the underwriters are not discharged from their liability for a 
 loss, even though consequent upon the neglect, since by familiar 
 principle and practice a contract of indemnity against the illegal 
 acts of others, as loss by barratry, by pirates, and by incendiaries, 
 is valid. Consequently, a contravention of law by a mistake of 
 the master is not distinguished in this respect from any other 
 mistake of the master in navigating the vessel. 
 
 1 Phillips V. Headlam, 2 Bariiew. & 3 Sadler v. Dixon, 8 Mees. & W. 
 Ad. 380 ; Van Syckel v. The Kwing, Exch. 895. 
 
 Crabbe, Dist. Ct. 405. 4 Supra, No. 712, 713, 714, 715. 
 
 2 Law V. Hollingsworth, 7 Term, 160.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 387 
 
 A law providing for pilotage does not necessarily prohibit the 
 master from standing pilot. Whether it does so is matter of con- 
 struction. The mere imposing of a liability to pay a fee to the 
 first pilot who offers himself, though his services are not accepted, 
 is not necessarily such a prohibition, being in its character a tax 
 to support a system of pilotage. 
 
 {Supposing the law, however, to directly prohibit the master 
 ,from standing pilot, if a licensed pilot can be had, his doing so 
 will be a contravention of law ; but this is, to say the least, a 
 questionable ground of defence against a claim for even a con- 
 seqaent loss, and certainly not a good ground against one for a 
 loss merely subsequent to and not consequent upon such neglect. 
 The defence in such case, if any, must be, not unseaworthiness, 
 but that the risk is not covered, as where the act is barratrous 
 and that risk is not insured against. 
 
 I accordingly conclude that 
 
 A contravention of the pilotage law by the master's neglect to 
 take a pilot, with or ivithout the concurrence of the ship-oivner or 
 other assured, does not necessarily discharge the underwriters. 
 
 718. Leave given in the policy for the master to stand pilot in 
 certain parts of the voyage, does not amount to a condition that 
 he shall not stand pilot in other parts for which his competency is 
 proved.! 
 
 719. The warranty of seaic or thine ss varies in different jjlaces ; 
 a vessel considered seaworthy for a voyage in one place may not 
 be so considered in another ; the standard of seaworthiness also 
 varies from time to time in the same place. 
 
 This warranty requires seaworthiness in confoi'mity with the 
 standard at the time, for the contemplated service, at the port to 
 whicli the vessel belongs, unless some other standard is referred to 
 expressly or by implication. 
 
 Under a policy underwritten in Boston on property on board 
 of a vessel belonging to Halifax, in Nova Scotia, on a voyage 
 from Bahia, in South America, to that port, Mr. Justice Story 
 remarked, that " the standard of seaworthiness had been gradu- 
 ally raised in many places within the preceding thirty years." 
 He ruled that the underwriter " must be presumed to underwrite 
 upon the ground that the vessel shall be seaworthy in her equip- 
 
 1 Keeler o. Firemen's Ins. Co. 3 Hill, N. Y. 250.
 
 388 IMPLIED "WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 ments, according to the general custom of the port, or at least of 
 the country, to which she belongs." ^ 
 
 720. The requisites to scaworthitiess depend upon the intended 
 use and service of the vessel. The requisites to satisfy this war- 
 ranty for lying in port, or for temporary purposes, short coasting' 
 passages, or navigating a lake, river, or canal, are different from 
 those demanded for navigating the open sea on long voyages? 
 
 If the risk comprehends the time while a vessel is in port, this 
 warranty will be satisfied, though she needs repairs. 
 
 Insurance was made on a vessel lying at Pillau, where she was 
 delayed more than a month for repairs. The insurers objected to 
 paying a loss, on the ground that the vessel was not seaworthy. 
 Lord Kenyon instructed the jury, that the vessel need not be sea- 
 worthy for the voyage immediately. The insurers took the risk 
 of this.3 
 
 The ship Eyles, being insured at and from Fort St. George to 
 London, not being in a fit condition to undertake the voyage, 
 was unloaded at Fort St. George, and went to Bengal for the 
 purpose of obtaining repairs. Being repaired, she returned and 
 took her cargo for the homeward voyage. Lord Hardwicke held 
 that the risk commenced from the time of the vessel's first arrival 
 at Fort St. George, and that she was seaworthy. He said, " If 
 she went to the nearest place, he should consider it equally the 
 same as if she had been repaired at the very place from which 
 the voyage was to commence." * The objection made by the 
 insurers was upon the ground of a deviation, but the decision 
 implies an opinion on the seaworthiness of the vessel. 
 
 Lord Ellenborough : " While a vessel remains at a place, a 
 state of repairs and equipment may be sufficient, which would 
 constitute unseaworthiness after the commencement of the 
 voyage. But she must be in such a condition as to be in 
 
 1 Tidinar.sh v. Washington Ins. Co. 4 L. & Eq. 16 ; Alexander v. Pratt, 1 
 Mas. C. C. 439 ; and see American Ins. Arnould, Mar. Ins. 669, n. (a), 672, n. 
 Co. V. 0<:<len, 20 Wend. N.Y. 287; per (k) ; Bell v. Keed, 4 Binn. Penn. 127; 
 Walworth, C. p. 295. Oliverson v. Loughnian, cited 2 Barnew. 
 
 2 M'Lanahan v. Universal Ins. Co. 1 & Aid. 322. 
 
 Pet. 170; Annenr. Woodman, 3 Taunt. 3 Smith i'. Surridge, 4 Esp. 25. 
 
 299 ; Small v. Gibson, 16 Ad. & E. 128, ■» Motteux v. London Ass. Co. 1 Atk. 
 
 14-1, 3 Eng. L. & Eq. 290, 299 ; Gibson Ch. 545. 
 V. Small, 4 Hou. L. Cas. 353, 24 Eng.
 
 SECT. II. J SEAWORTHINESS OP THE SHIP. 389 
 
 reasonable security. If she be a mere wreck, the policy never 
 attache?;." i 
 
 The circumstance by which a breach of this warranty is ascer- 
 tained, says Mr. Justice Sewall, " to the effect of avoiding the 
 policy, is the sailing of the vessel in an innavigable state. Until 
 then there is an opportunity of curing the latent defects if they 
 should be discovered, and their mere existence, while not preju- 
 dicial or material to the risk insured, is not a forfeiture of the 
 contract." ^ 
 
 It is uniformly assumed*that there is some stipulation as to the 
 condition of the vessel in port ; as by Sewall, J.,^ by Lord Ken- 
 yon,4 Lord Ellenborough,° Gibbs, C. J.,*^ Mr. Justice Washington,' 
 and Mr. C. J. Shaw.s 
 
 721. As to the character and degree of seaworthiness requisite 
 to satisfy this warranty on the vessel while in port, in a Massa- 
 chusetts case in 1807, on a premium note,® it was held that 
 this warranty was complied with, under a policy upon the ship, 
 cargo, and freight, at and from Calcutta, while the vessel lay 
 in that port, though her bottom was so much worm-eaten that 
 she leaked badly on going to sea, and the master, after being out 
 a month on his voyage to the United States, was obliged to put 
 back to Calcutta, and land his cargo and make repairs. The 
 sailing in such a condition was held to be non-compliance with 
 the warranty. 
 
 This decision was confirmed in a subsequent case, twenty- 
 four years afterwards, in the same court, in a suit on the 
 premium note for a policy on cargo and freight, at and from 
 Vera Cruz.io 
 
 1 Parmeter v. Cousins, 2 Campb. 235. 3 Taylor v. Lowell, ut supra. 
 See llibbert r. Martin, Park, Ins. 8tli ^ Smith v. Surridi,'e, 4 Esp. 25. 
 
 ed. 472; S. C. 1 Campb, 538; Annen 5 Parmeter v. Cousins, 2 Campb. 
 
 V. Woodman, 3 Taunt. 299 ; Cruder v. 235. 
 
 Pennsylvania Ins. Co. 2 Wash. C. C. 6 Abithol v. Bristow, 6 Taunt. 464. 
 
 2G2, 339; Taylor v. Lowell, 3 Mass. 1 1 Pet. C. C. 110. 
 
 331; Brown f. Girard, 4 Yeates, Penn. s Paddock v. Franklin Ins. Co. 11 
 
 115; Weir i'. Aberdeen, 2 Barnew. & Pick. Mass. 227. 
 
 Aid. 320; Oliverson y. Loughman, cited 9 Taylor v. Lowell, 3 Mass. 331. 
 
 2 Barnew. & Aid. 322; Forbes v. Wil- ^^ Merchants' Ins. Co. v. Clapp, 11 
 
 Bon, Park, 344. Pick. Mass. 56. One ground assigned 
 
 2 Taylor v. Lowell, 3 Mass. 331. for adhering to the decision was, that 
 
 33*
 
 390 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 The degree of seaworthiness requisite in port under a policy 
 upon the ship cannot be specified more definitely than it has 
 been by Mr. Chief Justice Shaw, who says : 
 
 Seaworthiness depends upon the vses and purposes to which the 
 vessel is to he applied. Wliile a vessel is insured at a port, she 
 must he in such a condition as to he in reasonable security} 
 
 722. It follows, if we apply the same criterion, that there may 
 be a compliance with this warranty in a policy on the ship, while 
 lying in port, and not in one upon the cargo of the same ship, 
 for circumstances may be readily imagined and often occur, in 
 which the vessel is in reasonable security in port though goods 
 on board would not be so. The risk of perils of the sea to the 
 cargo does not usually commence, and the insurable interest in 
 freight often does not accrue, until the vessel has been some time 
 in port. ■ A policy on freight and cargo may, therefore, and often 
 does, attach subsequently to that on the ship, under a policy 
 " at " a port. 
 
 723. There are then two distinctions in the insurance on the 
 ship, and that on cargo and freight, first in respect of what is 
 seaworthiness in port, and, second, as to the time luhen the policy 
 attaches ; and these two distinctions have place, though all these 
 interests are insured in the same policy, made, or having refer- 
 ence to the time, before the cargo is on board. 
 
 " The seaworthiness of the ship depends upon the uses and 
 purpose to which it is applied." When this use is to load and 
 stow the cargo for the voyage, and the vessel is in such a state 
 of repair that it is necessary to reland the cargo for the purpose 
 of making repairs, the ship is not fit for the use to which it is 
 applied. There is, therefore, a non-compliance with this war- 
 ranty simultaneous with the loading of the cargo. 
 
 The risk, in one of the two Massachusetts cases above referred 
 
 Its correctness had not been called in science to an aggregation of dogmas, 
 
 question in the mean time. This does In such a case it is better presumed 
 
 not, however, seem to be of great that contracts are made and executed 
 
 weight, where the objection, as was on the supposition that a proper decis- 
 
 urged in the case, is inconsistency with ion will be made when the question 
 
 admitted fundamental principles, since comes up again. 
 
 it is, in such a case, an adhering to an i Paddock v. Franklin Ins. Co. ] 1 
 
 inconsistency and contradiction, and Pick. Mass. 227, 
 tends to reduce jurisprudence from a
 
 SECT. II.] SEAWORTHINESS OP THE SHIP. 391 
 
 to/ had commenced on the ship before the non-compliance with 
 the warranty of seaworthiness, whereas under the insurance on 
 the cargo, and perhaps on the freight, the non-compliance was at 
 the time when the risk was to commence, and so prevented the 
 policy from attaching upon one or both of those interests. The 
 non-compliance was accordingly at an intermediate stage of the 
 risk, which, as we shall see, makes a material difference as to its 
 efFect.2 
 
 There was nothing to prevent the risk from attaching on the 
 cargo and on the freight when the vessel had returned and had 
 been repaired and made navigable, and the cargo was put on 
 board the second time. 
 
 The court held, in the case last referred to, that the under- 
 writers were not liable for loss consequent on the defect of the 
 vessel, which was, in effect, holding that the warranty had not 
 been complied with. 
 
 The distinction is made, as to the commencement of the risk 
 under the policy before or after the unseaworthiness occurs, in a 
 case in the Circuit Court of the United States. Under a policy 
 upon goods " at and from " St. Lucia, by a vessel of which the 
 mate and one man were lost at that port, Mr. Justice Washing- 
 ton said, that, if they were lost before the goods were on board, 
 the policy did not attach at all ; if after the loss of the men, then 
 it had attached, and had not been forfeited by the vessel's going 
 to St. Barts for men.^ 
 
 I conclude accordingly, that, 
 
 Under a policy upon cargo and freight, the warranty of sea- 
 worthiness is not complied ivith, if the cargo is put on board for 
 the voyage when the ship is in so defective a state that the cargo 
 must be relanded in order to make the necessary repairs, and the 
 policy, therefore, does not attach on the cargo if the risk is to 
 commence at the time of loadiner. 
 
 I understand the doctrines of Taylor v. Lowell to be favored 
 at least, if not fully sustained, by the subsequent jurisprudence 
 in England and the United States, excepting on the point of the 
 risk commencing on the cargo and freight at the first time of 
 loading the cargo. There are other points in that case to be 
 
 1 Taylor v. Lowell, 3 Mass. 331. 3 Cruder v. Philadelphia Ids. Co. 2 
 
 2 Infra, No. 727. Wash. C. C. 262.
 
 392 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 subsequently noticed, which render it one of the landmarks in 
 this branch of commercial jurisprudence. 
 
 724. The seaworthiness of a vessel at the outset, being a con- 
 dition precedent, must be proved by the assured in the first in- 
 stance.'^ 
 
 In divers cases, seaworthiness is said to be presumed.^ 
 
 Whether, however, it is to be proved in the first instance 
 by the assured, or is presumed, is usually of very little prac- 
 tical importance, since the proof required in such case is ne- 
 cessarily only of a general character, and may ordinarily be 
 readily had. 
 
 ^ 725. If the vessel proves to be leaky or defective, or becomes 
 disabled soon after the time to which this warranty has reference, 
 luhen there can evidently have been no intervening injury, it is in- 
 ferred that the unseaworthiness existed previously :^ 
 
 As where the vessel sprung a leak and filled the day after the 
 sailing, without any accident having happened to it.* 
 
 So if the vessel has encountered a storm, but it appears that 
 the defects discovered could not have been caused thereby, and 
 must have existed before sailing, the warranty is falsified.^ 
 
 726. It has been before stated,^ that the liability of the under- 
 writer depends " wholly or partially " upon compliance with this 
 warranty, when the risk under the policy commences at the orig- 
 
 1 Craig !'. Uuited States Ins. C». 1 Munro v. Vandam, Park, 333, n. 3d 
 Pet. C. C. 410, per Washington, J. ; ed. 469, 8th ed. ; Watson v. Clark, 1 
 per Lord Eldon, in Watson v. Clark, 1 Dow, Pari. Cas. 344 ; Cort v. Delaware 
 Dow, Pari. Cas. 144; Munro v. Van- Ins. Co. 2 Wash. C. C. 375. The 
 dam. Park, Ins. 469, 8th ed. ; Tidmarsh question as to the inference to be made 
 V. Washington Fire & Mar. Ins. Co. 4 from the vessel's proving leaky soon 
 Mas. C. C. 439. after sailing, without apparent cause 
 
 2 Taylor v. Lowell, 3 Mass. 331 ; per from sea-perils, is presented in Mills 
 Sewall, J. p. 347; Deshon v. Mer- v. Roebuck, Marshall, Ins. 154; Park, 
 chants' Ins. Co. 11 Mete. Mass. 199; Ins. 460, 8th ed. ; but the case gives no 
 per Hubbard, J. ; Parker v. Potts, 3 light on the subject of seaworthiness ; 
 Dow, Pari. Cas. 23, per Lord Eldon, and see infra. No. 2079. 
 Chancellor; Barnewall v. Church, 1 * Lee v. Beach, Park, Ins. 342; 
 Caines, N. Y. 217; Field v. Ins. Co. of ]\Iarshall, Ins. 160; Myers v. Girard 
 N. A. 3 Md. 244; and see infra, No. Ins. Co. 26 Penn. St. 192. 
 
 2152. 5 Douglas i'. Scougal, 4 Dow, Pari. 
 
 3 Talcot V. Commercial Ins. Co. 2 Cas. 269. 
 Johns. N. Y. 124 and 467. See also ^ No. 696.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 393 
 
 inal port of departure. Such compliance is generally a condition 
 precedent to the attaching of the risk ; there are, however, ex- 
 ceptions, and these I proceed to state. 
 
 Tliis warranty is not violated so as to defeat the insurance by a 
 merely incidental, tempora'^y deficiency at the commencement of 
 the risk, in fitness for the voyage, that may be easily remedied, 
 and soon is so, in fact : ^ 
 
 As in the Massachusetts case, already mentioned, of the needle 
 of the compass being attracted by some iron-work : ^ 
 
 So in case of the vessel being temporarily unseaworthy for 
 want of sufficient ballast ; ^ 
 
 Or the cargo so stowed as to .cause the vessel to be out of 
 trim.* 
 
 So Mr. Justice Story intimates that the risk attaches and con- 
 tinues under the policy, notwithstanding that the sailors are in a 
 state of intoxication at the time of sailing, though the under- 
 writers would not be liable for a loss occasioned thereby.-^ 
 
 So in a South Carolina case of a vessel not having a pilot, 
 and yet getting safe over the pilot ground, the policy was held 
 not to be forfeited.'' 
 
 In an English case of a vessel unseaworthy by being over- 
 loaded, which put back and discharged a part of her cargo with 
 the consent of the underwriters, they were held to be liable for 
 a subsequent loss. The decision does not appear to be put 
 merely upon the consent of the insurers, for Lord Tenterden 
 remarks : " It is said that the memorandum expressing the con- 
 sent of the underwriters is void, and that, in order to bind the 
 underwriters, a new contract was necessary, inasmuch as the 
 fact of the vessel having sailed in an unseaworthy state, put an 
 end to their liability under the policy. That proposition w^ould 
 go the length of establishing, that if a vessel, at the outset of 
 her voyage, be by mistake or accident unseaworthy, owing to 
 
 1 Taylor v. Lowell, 3 IMass. 331 ; 4 Chase v. Eagle Ins. Co. 5 Pick. 
 Mercbants' Ins. Co. v. Clapp, 11 Pick. Mass. 51. 
 
 Mass. 56. 5 United States v. Hunt, 2 Stor. C. 
 
 2 Stan wood r. Rich, Sup. Ct. Mass. C. 121. 
 
 Suffolk, November, 1817. 6 M'.AIillan v. Union Ins. Co. Rice, 
 
 3 Dtblois V. Ocean Ins. Co. 16 Pick. So. C. 2i'J. 
 Mass. 303.
 
 394 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 some defect which is immediately discovered and remedied, be- 
 fore any loss happens in consequence of it, still that the policy 
 would be void, and the underwriters not liable.- I was surprised 
 at that proposition, because, if true in point of law, 1 fear we 
 should find many cases where the assured could have no claim 
 upon the underwriters, because something was wanting, or some- 
 thing excessive, at the instant of the ship's departure, although 
 the want had been supplied, or the excess removed, before the 
 loss happened." ^ 
 
 727. If the risk is intended and understood by the parties to 
 commence at some intermediate stage of a voyage at sea, or at 
 some distant port beyond the superintendence and control of the 
 assured, the requisites to a compliance with this warranty may 
 be, and usually are in fact, not the same as at the original port 
 of departure when the risk begins there. In such case this 
 stipulation for seaworthiness is satisfied if the vessel ivas in a 
 condition to pursue her adventure, though large repairs were 
 requisite, and though it may have been necessary to go to some 
 port for the express purpose of making the repairs.^ 
 
 Where a vessel insured, lost or not lost, with liberty of a 
 letter of marque, was absent on a fishing voyage, the risk to 
 commence about a year before the date of the policy, at which 
 time she had been weak-handed, and was soon after seized by 
 some Spanish prisoners on board of her, who rose upon the 
 crew, Lord Kenyon ruled, that, if she had sufficient force to 
 pursue any part of her adventure, or to navigate her home, the 
 warranty was satisfied.^ 
 
 This question is elaborately considered by the English Courts 
 of Queen's Bench and Exchequer Chamber, and in the House 
 of Lords, in a case of a policy for one year, upon the plea that 
 the vessel was not seaworthy either at the date of the policy or 
 at the time when the risk was to have begun. Parke, B., giving 
 
 1 Weir V. Aberdeen, 2 Barnew. & den, 20 Wend. N. Y. 287; Copeland i;. 
 Aid. 320. Mr. Justice Story intimates N. E. Marine Ins. Co. 2 Mete. Mass. 
 a doubt of tliis case, M'Lanahan V. Uni- 432; Ilollingworth v. Brodrick, 7 Ad. 
 versal Ins. Co. 1 Pet. 170. & E. 40. 
 
 2 Dixon V. Sadler, 5 Mees. & W. ^ Plucks v. Thornton, 1 Holt, 30. 
 Exoh. 414; Sadler v. Dixon, 8 Mees. See also Paddock v. Franklin Ins. Co. 
 & W. Exch. 895; Am. Ins. Co. v. Og- 11 Pick. Mass. 227.
 
 SECT. II.J SEAWORTHINESS OF THE SHIP. 395 
 
 the opinion of the Court of Exchequer Chamber, said : " It is 
 undoubted law, that there is an implied warranty that the ship 
 had been seaworthy when the voyage had commenced, if the 
 insurance is on a vessel already at sea." ^ 
 
 The Baron then proceeds to state that there is no warranty of 
 the seaworthiness of the vessel at the commencement of the risk, 
 wherever the vessel may be, where the risk begins at sea, since 
 it is well understood that the assured could not know what was 
 the condition of the ship. The plea in the case referred to was 
 accordingly held to be bad. 
 
 The difference is stated, by some of the judges, to be between 
 a voyage-policy, under which the risk is to begin with the voy- 
 age, and a time-policy. This phraseology is deceptive. The 
 difference intended evidently is, that between a policy under 
 which the risk is to commence at the home port, or at some 
 other, where there are ample means for repairs and refitting and 
 where it is subject to the superintendence of the owner or his 
 agents, and one that is to commence at a distance, at sea or at 
 some intermediate stage of a voyage. 
 
 It has accordingly been held that there is no implied warranty 
 of seaworthiness in a policy to commence on the " meridian of 
 the day of sailing from S." ^ 
 
 It has also been ruled that there is no such warranty in a time- 
 policy, and a plea that at the time for the policy to attach the 
 ship was unseaworthy was held bad ; though the case went off 
 upon other grounds.^ 
 
 The same doctrine is reasserted by the Court of Queen's 
 Bench. 4 
 
 It is immaterial whether the policy is for a certain period, or 
 from one geographical point to another, or from a certain date, 
 as it often is, to the end of the pending voyage, or to any sub- 
 sequent port. If, for instance, the vessel on a fishing or trading 
 voyage is insured at and from a certain intermediate port where 
 
 1 Small V. Gibson, 16 Ad. & E. 128, 3 Thompson v. Hopper, 6 Ell. & B. 
 141 ; 3 Eng. L. & Eq. 290, 299 ; Gib- 172 ; 34 Eng. L. & Eq. 266. 
 
 son V. Small, 4 Hou. L. Gas. 353 ; 24 < Fawcus v. SarsEeld, 6 Ell. & B. 
 
 Eng. L. & Eq. 16. 192; 34 Eng. L. & Eq 277. Eaile, J., 
 
 2 Michael v. Tredwin, 17 C. B. 551; dissenting as he did also in Thompson 
 33 Eng. L. & Eq. 325. v. Hopper.
 
 396 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 it is well known that it could not be repaired and refitted to any- 
 great extent, it would be substantially equivalent to beginning 
 the risk in the midst of a passage since some repairs can be made 
 at sea. The discrimination relates to the means of superintend- 
 ence and of repairing and refitting, under the circumstances in 
 which the parties expect the risk to begin, of whatever descrip- 
 tion the policy may be in other respects, and however the dura- 
 tion of the risk may be described. 
 
 In Gibson v. Small in the House of Lords, elaborate opinions 
 were given by Martin, B., Talfourd, J., Williams, J., Piatt, B., 
 Erie, J., Maule, J., Alderson, B., Parke, B., and Pollock, C. 
 B., before the House ; and by Lord St. Leonards and Lord 
 Campbell of the House. Some of these judges maintained that 
 there is no implied warranty of seaworthiness in such a policy. 
 Others were in favor of an implied warranty of seaworthiness 
 at the last port visited before the beginning of the risk. The 
 judgment in the House of Lords was in affirmance of that of 
 the Exchequer Chamber, that there was no implied condition 
 that the ship was seaworthy at the time of making the policy 
 or at the beginning of the risk, reversing the judgment of the 
 Queen's Bench. 
 
 The discussions in this case, by reason of its coming up on 
 the plea that the vessel was not seaworthy, turned very much 
 upon the question, whether there was a condition precedent that 
 the vessel should be seaworthy in the strict signification of the 
 term. The question which we are considering is, however, a 
 wider one, namely, whether there is any, and, if any, what im- 
 plied stipulation of the assured as to the fitness and sufficiency 
 of the vessel in such a case. The word " seaworthiness " not 
 being ordinarily used in the policy, it does not contain any 
 particular phraseology upon the construction of which the 
 question arises ; the case is open to the inference of any stip- 
 ulation as to the state of the vessel at the time for the risk 
 to begin, merely from the fact of effecting the insurance, free 
 from any embarrassment by reason of the express terms of 
 the contract. 
 
 This question respecting an implied condition in a time- 
 policy, that the vessel is seaworthy, came before a committee 
 of the Privy Council in England on appeal from a decision in
 
 SECT. II. J SEAWORTHINESS OF THE SHIP. 397 
 
 Bengal, under a policy upon a steam-vessel for four months, 
 which had been wrecked on a passage on which she started 
 after the risk had begun, with an insufficient crew. The com- 
 mittee consisted of Jervis, C. J., Dr. Lushington, Pemberton 
 Leigh, Sir Edward Ryan, and Sir John Patteson, who adjudged 
 the underwriters to be liable for the loss, partly on the authority 
 of the case last cited ; Mr. C. J. Jervis remarking, that if there 
 was in a time-policy a condition that the vessel should be sea- 
 worthy on leaving each port successively, there would be less 
 warranty of seaworthiness in a voyage-policy than in a time- 
 policy,' which he thought could not be. This consequence does 
 not, however, seem to be necessary, for a court would hesitate 
 to decide in favor of a recovery for a loss occasioned by the neg- 
 lect of the assured to procure a sufficient crew, whether the 
 policy were for a voyage or for a specific time. 
 
 The same question has since come up in Massachusetts on a 
 policy for one year at all times and places, upon a vessel being 
 at the time at sea, which arrived at Boston, her home port, and 
 then made a passage to Norfolk, and there took a cargo for 
 Sicily. Being found, after sailing, unfit to proceed, on account 
 of the defects of her timbers, she put back to Savannah, where it 
 was ascertained that she required expensive repairs, to procure 
 which she sailed, with a light cargo, for New York, where the 
 repairs would cost less, and on the passage was burnt. It ap- 
 peared, at Savannah, that she would within the year require 
 great repairs. One question was, Avhether the policy was defeated 
 by unseaworthiness. Shaw, C. J., stated the opinion of the court, 
 that there is in such a case not the usual waiTanty*of seawor- 
 thiness, but only the implied condition, " that the vessel is in 
 existence as such at the commencement of the risk, capable of 
 navigation, and safe, whether at sea or in "port, and seaworthy 
 when she first sails, or, if at sea, had sailed seaworthy, and is 
 safe." 2 Or rather, perhaps, that she had not sustained actual 
 damage. 
 
 1 Jenkins v. Ileycock, 8 Moore, P. Iloxic v. Pacific Ins. Co. 7 All. Mass. 
 C. 351. 211 ; in which it is held that there is a 
 
 2 Capen v. Washington Ins. Co. 12 warranty; Macy r. Mutual Ins. Co. 12 
 Cush. Mass. 517. See also Jones v. Gray, Mass. 497 ; in which it was held 
 The Ins. Co. 2 Wall. Jun. C. C. 278; there is no warranty. See also Rouse 
 
 VOL. I. 34
 
 398 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 The jurisprudence, both English and American, seems, at least, 
 to converge to the doctrine that the risk may begin at sea or a 
 distant port, though the requisite repairs cannot be there made. 
 
 728. Under a policij by ivhicJi the risk commences at some inter- 
 mediate stage ^ the assured impliedly ivarrants against loss or 
 damage in direct consequence of previous negligence or misman- 
 agement by the master and crew, or any person having charge of 
 the ship. 
 
 Under a policy which does not include barratry, the acts of the 
 master and crew in navigating the vessel, not amounting to 
 barratry, are unquestionably, to a great extent at least, at the 
 risk of the insurers, as we shall see under the head of Risks ; but 
 they cannot be presumed to insure against the direct effects 
 of the previous fault of the master and crew, existing at the 
 commencement of the risk. It is so stated by Parke, B., who, 
 speaking of insurance on an absent ship, to commence at some 
 intermediate stage of the voyage, says : " If the ship had met 
 with damage before, and could have been repaired by the exer- 
 cise of reasonable care and pains, and was not, the policy would 
 not attach." ^ 
 
 That is to say, the defective state of the ship under such cir- 
 cumstances would affect the policy in the same manner as where 
 the risk under the policy commences with the voyage. This 
 coincides with the remarks of Mr. C.J. Shaw;^ and the prior 
 negligence of the assured or his agents, including among these 
 the master and crew, and all the direct consequences of it, are 
 at the risk of the assured, and are not to be drawn into a policy 
 so made. * 
 
 729. Whether a policy is for a voyage or period of time, the 
 construction of this ivarranly is the same as to compliance being 
 a condition precedent at the outset, and as to non-compliance at 
 intermediate stages of the risk.^ 
 
 u. The Ins. Co. 25 Bost. Law Eep. 523, '' Paddock v. Franklin Ins. Co. 11 
 
 where Grier, J. doubts whether the Pick. Mass. 227. 
 
 English decisions are applicable in the ^ Small v. Gibson, 3 Eng. L. & Eq. 
 
 United States. Also Hoxie v. Home 290, 299 ; Dixon v. Sadler. 5 Mees. & 
 
 Ins. Co. 32 Conn. 21 ; in these two cases W. Exch. 414 ; S. C. 8 id. 895 ; Hol- 
 
 the vessels left the home port, and the lingworth v. Brodrick, 7 Ad. & E. 40 ; 
 
 wairanty was therefore implied. American Ins. Co. v. Ogden, 20 Wend. 
 
 1 Small V. Gibson, 3 Eng. L. & Eq. N. Y. 287; per Walworth, C. p. 29G ; 
 
 290, 299. and see cases cited supra, No. 727.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 399 
 
 730. After the policy has once attached, a compliance with this 
 warranty ceases to be a condition precedent to the liability of the 
 insurers for any loss ; for though a subsequent non-compliance may 
 be of such a character as to discharge the insurers from liability 
 for any loss happening thereafter, they undoubtedly still remain 
 liable for any loss prior to such non-compliance. 
 
 In this case, as in that of representation, a loss may, by the 
 terms of the policy, have become payable before the forfeiture by 
 non-compliance takes place. 
 
 731. The obligation still rests upon the assured to keep the 
 vessel seaworthy if it be practicable, so far as it depends on him- 
 'self} ' 
 
 A shipment being made at half profits instead of freight, from 
 Nevvburyportto Calcutta and back, the goods shipped at Calcutta 
 in exchange were damaged in that port by the leakage of the 
 ship. It was held that the ship-owner was answerable for this 
 damage ; or, in other words, that he was bound to put his ship 
 in repair at that port, even though the leak should have arisen 
 from damage sustained on the outward voyage, and have been 
 caused by perils of the seas which were excepted in the bill of 
 lading.^ 
 
 • In a subsequent case before the same court, it was held to be 
 the duty of the owner to procure the necessary and reasonable 
 repairs in the successive stages of the voyage, according to the 
 means that can be had for the purpose ; and if they are neglected, 
 this implied stipulation is not complied with. But, as Mr. Chief 
 Justice Shaw remarks, where the voyage extends abroad to great 
 distances, and continues for a long time, this stipulation is to be 
 liberally construed.'^ 
 
 So a distinction iS made by Lord Mansfield, between this 
 
 1 3 Kent, Com. 288, 3(1. ed. ; De- Mass. 432; HoUingworth r. Brodriek, 7 
 peyre i: Western Fire & Mar. Ids. Co. Ad. & E. 40 ; Starbuck v. New En^jland 
 2 Rob. La. 457; and see cases gener- Mar. Ins Co. 19 Pick. Mass. 108; 
 allj'. Hazard v. New England Mar. Ins. Co. 
 
 2 Putnam v. Wood, 3 Mass. 481. 1 Sumn. C. C. 218. In the case of 
 
 3 Paddock v. Franklin Ins. Co. 11 Mills v. Roebuck, Park, 7th Lend. ed. 
 Pick. Mass. 227; and see Holdsworth i'. 335, and Marshall, 3d Lond. ed. 124, 
 AVise, 7 Earnew. & C 794 ; Copeland the same subject is presented, but noth- 
 V. New England Mar. Ins. Co. 2 Mete, ing is decided.
 
 400 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 warranty as applied to the commencement of the risk, or the 
 departure of the ship, and the subsequent stages.^ 
 
 In some of the above cases, the neglect of the master to make 
 repairs at intermediate ports is imputed to the assured. Whether 
 it should be so imputed is subsequently considered.^ So far 
 as the assured and the agents by him authorized, other than the 
 navigators of the vessel, are concerned, the cases agree that he 
 is bound to reasonable care and diligence in providing for and 
 maintaining the seaworthiness of the vessel. 
 
 732. As the assured is answerable for the representations of his 
 agent in effecting the insurance, and fitting out the vessel origi-, 
 nally, so the acts and neglects of those ivhom the ship-oivner 
 appoints to represent him in the intermediate stages of the voyage 
 or risk, /or other purposes than the mere charge and navigation of 
 the vessel, are imputable to him, so far as seaiuorthiness is thereby 
 affected. 
 
 The extent of this responsibility will depend upon the nature, 
 duration, and exigencies of the voyage, and the usages of the 
 trade. Whether the master or any correspondent is authorized 
 by the assured on the ship to act for him in matters to be trans- 
 acted at foreign ports, other than the charge and management of 
 the vessel, — such, for instance, as supplying funds adequate to 
 the probable necessities of the voyage or service, whatever it may 
 be, — the acts or neglects of such agent for such purposes are 
 imputable to the assured, on either ship, freight, or cargo, so far 
 as the risks insured against are concerned.^ This, at least, is 
 usually implied in the phraseology of judges and jurists, and 
 often, as we shall see, a much greater responsibility is directly 
 asserted ; namely, responsibility for the acts and neglects of the 
 master as such. 
 
 The question whether underwriters are in general so liable, 
 will recur under the head of Risks, and is noticed here merely in 
 reference to the warranty of seaworthiness. If, in an emergency, 
 not to be anticipated and provided for by the ship-owner, the aid 
 of some person is justifiably invoked by the master ; or if a consul 
 or some other person in a foreign port interferes, this is a different 
 
 1 March v.Pigot, 5 Burr. 2802. See 2 N^. 730, 733, 734. 
 also Caldwell v. Western Ins. Co. 19 3 Per Walworth, Ch., American Ins. 
 La. 42, for a like distinction. Co. v. Ogden, 20 Wend. N. Y. 301.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 401 
 
 case. We are now considering merely the case where, by the 
 usages of the trade, or ordinary demands of the voyage, a repre- 
 sentation of the ship-owner is requisite in a foreign port for other 
 purposes than those falling within the proper authority and duty 
 of the master as such, and the proposition is, that the assured is 
 bound, as far as the question of seaworthiness is concerned, 
 according to the usages or usual necessities of the voyage, to 
 provide for such a representation, by the master or an agent, and 
 is responsible for the acts and neglects of the agent so appointed 
 by him. 
 
 733. Whether^ under a policy on the outward and return voy- 
 age, in case of the vessel having' been seaicorthy at the beginning 
 of the voyage at the home port of departure, its subsequent unsea- 
 icorthiness, occasioned by the mistake or negligence of the master 
 on a passage, or in a foreign port, is a non-compliance with the 
 warranty of seaworthiness, so as to discharge the underwriters? 
 
 It was held by the English Courts of Exchequer and Exchequer 
 Chamber, after deliberate consideration, where the master ren- 
 dered the vessel unseaworthy by throwing over ballast, that the 
 underwriters were not thereby discharged, but remained liable as 
 before for damage by perils cf the seas.^ 
 
 A decision similar in princi|)le has been made by the English 
 Court of King's Bench in case of a vessel insured from Ireland 
 to Newfoundland and back, that sailed on her homeward voyage 
 in an unseaworthy condition.^ The vessel leaked on sailing from 
 St. Andrews, on her homeward passage, making ten inches of 
 •water in her hold per hour. It is not said whether repairs could 
 have been made at St. Andrews, or whether there was any fault 
 in her sailing as she did. A question was made, whether it was 
 a fault in the master and crew to abandon the vessel at sea, 
 which was not decided in this case. Bayley, J., referred on this 
 point to anothei* case pending in the same court,^ in which it 
 was held by Lord Tenterden and his associates, that the under- 
 writers were liable for a loss by perils insured against, though 
 
 1 Dixon t'. Sadler, 5 Mees. & W. 2 Holdsworth v. Wise, 7 Barnew. & 
 
 Exch. 415; Sadler v. Dixon, 8 id. 895. C. 794. 
 
 And it was so held where the master 3 Shore v. Bentall, 7 Barnew. & C. 
 
 overloaded the vessel ; Merchants' Ins. 798, n. 
 Co. V. Butler, 20 Md. 41. 
 34*
 
 402 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 occasioned by the " misconduct or negligence of the captain and 
 crew." 
 
 This doctrine is in accordance to the more general one, that 
 will be stated under the title of Risks ; namely, that, if the vessel 
 was seaworthy at the beginning of the voyage, the insurers are 
 not exonerated from loss by any risk insured against, though 
 occasioned by the misconduct or negligence of the master and 
 crew, short of barratry, in the navigation and management of 
 the vessel.^ 
 
 A contrary decision by Lord Kenyon, and Grose, and Law- 
 rence, Justices, before referred to,^ is conclusively overruled by 
 the preceding cases. 
 
 If the misconduct amounts to barratry, the insurers are not 
 responsible for loss thereby occasioned, unless that is one of the 
 risks insured against. 
 
 The doctrine now well established in England extends the lia- 
 bility of the insurers to the case of a loss consequent upon, as 
 well during as subsequent to, the unseaworthiness occasioned by 
 the neglect or mistake of the master or mariners. There is not 
 apparently any difference in principle in the two cases. 
 
 The same doctrine is supported by an American case, where a 
 loss was occasioned by the mate's not taking charge of the ves- 
 sel, instead of leaving it in command of the master, who was 
 evidently subject to mental derangement before sailing from a 
 foreign port;^ for this was the mistake or negligence, or both, of 
 the mate. It is true, the court say that the vessel was seaworthy, 
 because the mate was capable of navigating it. But surely, if 
 the assured had given command to an insane captain at the 
 commencement of the voyage, the vessel would not have been 
 seaworthy, though some officer had been on board capable of 
 navigating it, without authority to do so. The skill of the offi- 
 cer is in such a case unavailable. So it was in this case, through 
 the neglect or mistake of the mate. The case, therefore, does 
 
 I Busk V. Royal Exch. Ass. Co. 2 ville) Ins. Co. 11 i± 213, are to the 
 
 Bainevv. & Aid. 73 ; Walker v. Mait- same effect. 
 
 land, 5 Barnew. & Aid. 171 ; Bishop v. 2 Law y. Holllngsworth, 7 Term, 160; 
 
 Pentland, 7 Barnew. & C. 219; and supra, No. 712. 
 
 Columbia Ins. Co. v. Lawrence, 10 Pet. 3 Copeland v. New England Mar. 
 
 507, and Waters v. Merchants' (Louis- Ins. Co. 2 Mete. Mass. 432.
 
 SECT. II.] SEAWORTHINESS OF THE SHIP. 403 
 
 not seem to be distinguishable in principle from one of unsea- 
 worthiness by omission to make repairs at a foreign port, through 
 the negligence or mistake of the master. Negligence or mistake 
 of an officer or mariner is upon the same footing in this respect 
 as that of the master. 
 
 Mr. Justice Story, giving the opinion of the Supreme Court of 
 the United States, remarks that the above doctrine of the Eng- 
 lish courts " is well worthy of discussion." ^ 
 
 Mr. C. J. Shaw, giving the opinion of the Supreme Court of 
 Massachusetts, remarks upon the same doctrine, as stated in the 
 case of Sadler v. Dixon i^ "If this is to be taken as limited to 
 the caj^e where the master, officers, and crew act in their own 
 proper sphere, as practically managing and conducting the navi- 
 gation, and where the master does not stand in the relation of 
 representative and agent of the owners, we think it is not incon- 
 sistent with the general principle, leaving the owner still bound 
 by the acts of the master, so far as by the law and usage of nav- 
 igation, he is the representative of the owners, executing their 
 express or implied orders, and doing all such acts as the owner 
 himself might and would do if present."^ 
 
 It does not appear that the English courts extended the doc- 
 trine beyond the limit of the duty of the master as such. It is 
 not obvious what duties the usages of a voyage can put upon 
 the master affecting seaworthiness, other than those belonging to 
 him in that capacity. The acts of the master in taking measures 
 for maintaining the navigability and seaworthiness of the vessel 
 do not appear to be distinguishable, in reference to the present 
 inquiry, from his acts in navigating it. 
 
 The earlier cases supply dicta, and decisions, opposite in doc- 
 trine, and even some comparatively recent ones.* 
 
 I conclude, however, that the better doctrine is, that, 
 
 Where the vessel is seaworthy in the outset, loss by perils insured 
 against consequent upon subsequent unseaworthiness occasioned by 
 
 1 M'Lanalian v. Universal Ins. Co. 1 Johns. N. Y. 451 ; assumed in Coolidge 
 Pet, 180. V. New York Fire Ins. Co. 14 Johns. 
 
 2 8 Mees. & \V. Exch. 895. N. Y. 308 ; and in American Ins. Co. 
 
 3 Copehind v. New England Mar. Ins. v. Bryan, 20 Wend. N. Y. 5G3, in the 
 Co. 2 Mete. Mass. 443. Court of Errors. 
 
 •* See Grim v. Phuuuix Ins. Co. 13
 
 404 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 the negligence or mistakes of the master and crew, without fraud, 
 is at the risk of the underwriters. 
 
 734. In case of a temporary unseaworthiness imputable to the 
 assured, ivhereby the perils insured against are generally affected, 
 the risk is suspended, and revives on the navigability of the vessel 
 being restored, and the subject being liable to the same risks as 
 if the warranty had been complied with. 
 
 As we have seen, a vessel may be in a condition to answer 
 this warranty in port, so that the policy attaches there, on which- 
 ever interest it is made, but the warranty may be violated on its 
 sailing in the same condition. 
 
 Here, the policy having attached, the premium is secured to 
 the underwriter for the whole voyage or passage, or year, and 
 the question occurs, whether the assured is to lose it entirely, or 
 may, by remedying the defect, revive the policy. Much of the 
 jurisprudence on this subject, the earlier part of it especially, pro- 
 ceeds on the assumption that the insurance is gone irretrievably. 
 The first decision to the contrary that I am aware of was in the 
 Massachusetts case of 1807, already mentioned,^ on a premium 
 note for a ship, cargo, and freight, at and from Calcutta, which 
 was held to attach in that port. The warranty was held to be 
 violated, and the risk to be suspended, on the sailing of the ves- 
 sel in an innavigable state, but the risk was held to revive on the 
 return to the same port for repairs, and to continue during the 
 voyage to the United States. 
 
 The most important feature in this case is the doctrine as to 
 the suspension and revival of the risk. The doctrine is in strict 
 analogy to the rule in case of temporary withdrawal of the cargo 
 from the risks insured against, and supported by considerations 
 of equity and commercial expediency, and a predominant prin- 
 ciple in jurisprudence, that unnecessary forfeitures are to be 
 avoided. 
 
 735. If loss consequent upon an unseaivorthiness for ichich the 
 assured is answerable is clearly distinguishable from loss otherwise 
 arising from the perils insured against, the risk may continue in 
 respect to other losses, notivithstanding the unseaivorthiness? 
 
 " It would," says Mr. Chief Justice Shaw, "seem to be more 
 
 1 Taylor v. Lowell, 3 Mass. 331. Peters v. PhcEnix Ins. Co. 3 Serg. & R. 
 
 2 Taylor V. Lowell, 3 Mass. 331 ; Penn. 25.
 
 SECT. II.] SEAWOKTHINESS OF THE SHIP. 405 
 
 consistent with the nature of the conti-act, the intent of the par- 
 ties, and the purposes of justice and policy, to hold, that, after 
 the policy has once attached, the implied warranty should be so 
 construed as to exempt the underwriters from all loss or damage 
 which did or might proceed from any cause thus warranted 
 against; but to hold him still responsible for those losses which 
 by no possibility could be occasioned by a peril increased or 
 affected by the breach of the implied warranty." ^ 
 
 The case of continued liability for loss by perils of seas, though 
 the implied warranty of documents of neutral ownership is not 
 complied with, is to the same effect;^ and to hold the contract 
 to be totally forfeited in such a case is superfluously to inflict a 
 penalty by a forced construction of an implied stipulation, in 
 contradiction to the spirit and principles of the commercial law 
 at least, not to say all kinds of law. 
 
 The same doctrine is adopted by the Superior Court of the 
 City of New York, and by the Supreme Court of the State of 
 New York, and the Court of Errors of the same State, in case 
 of a vessel insured on time, and subsequently to the commence- 
 ment of the risk becoming unseaworthy in consequence of not 
 having a small bower-anchor, on a passage from Charleston to 
 St. Thomas. Mr. Chief Justice Savage, giving the opinion of 
 the Supreme Court, says : " The fact that the vessel was not 
 supplied with anchors when she left Norfolk cannot excuse the 
 insurers, as the loss was sustained from an injury received from 
 the winds and waves while the vessel was at sea, where it was 
 totally immaterial, as to the injury, whether she had one or two 
 anchors, or none at all.^ 
 
 The same doctrine is elaborately maintained in the Court of 
 Errors, by Chancellor Walworth, and Senators Verplanck and 
 Wager, and is not controverted by the other members of that 
 court,* and has become intimately incorporated with American 
 jurisprudence. Though it is not specifically laid down in Eng- 
 
 1 Paddock v. Franklin Ins. Co. 11 ?08; and see Starbuck r. New England 
 Pick. Mass. 227. The same doctrine is Mar. Ins. Co. 19 Pick. Mass. 198. 
 distinctly reiterated in a subsequent case 3 American Ins. Co. v. Ogden, 15 
 before the same court. Capen v. Wash- Wend. N. Y. 532. 
 
 ington Ins. Co. 12 Cush. Mass. 517. 4 American Ins. Co. v. Ogdeu, 20 
 
 2 Cleveland v. Union Ins. Co. 8 Mass. Wend. N. Y. 287.
 
 406 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 lish jurisprudence, there is some ground for inferring it from the 
 doctrine that has been stated in divers cases, that the warranty 
 of seaworthiness as a condition precedent has reference only to 
 the commencement of the voyage ;i whence it maybe concluded, 
 that, in intermediate stages, it is only an implied stipulation to 
 exempt underwriters from loss by unseaworthiness, where this is 
 distinguishable. 
 
 SECTION III. LEGAL CONDUCT. 
 
 736. It is an implied stipulation of the policy^ that the vessel 
 shall be navigated, and the adventure conducted^ according to the 
 laws of the country to ivhich the vessel belongs, the treaties subsist- 
 ing between that and other countries, and the law of nations? 
 
 We have seen that the trade must be legal ; this warranty has 
 reference to the manner of carrying it on, and the doctrine stated 
 is, that, although the adventure itself be legal, yet if the assured 
 violate the law in prosecuting it, the policy is thereby defeated, 
 as far as the illegality affects the risks insured against, and is 
 imputable to the assured.^ 
 
 737. Though a temporary, or incidental and merely collateral 
 illegality, may not contaminate the entire contract on the part of 
 the assured, yet, if it is done by himself, or with his authorization 
 or assent, the insurers are doubtless exonerated from the consequent 
 loss and damage though caused immediately by the perils insured 
 against.^ 
 
 738. This implied stipulation does not prevent insurance against 
 the illegal acts of others, as barratry, piracy, Sfc. 
 
 739. If the policy excepts barratry, then this implied stipulation 
 exonerates the insurers from loss and damage caused immediately 
 by the perils insured against, in direct consequence of barratrous 
 acts. 
 
 740. But if the illegal acts by the master or creio, in managing 
 and iiavigating the vessel, are not of a barratrous character, nor 
 directly or indirectly authorized by the assured, and are merely 
 
 1 Holdsworth v. Wise, 7 Barnew. & 3 See supra, c. 3, s. 2, No. 210, 214, 
 C. 791 ; Redman v. Wilson, 14 Mees. 218, 220, 221, 223. 
 
 & W. Exch. 4 7G. 4 See as above. 
 
 2 Marshall, 17 7, book I, c. 5, s. 4.
 
 SECT. IV.] BELLIGERENT RISKS. 407 
 
 negligences or mistakes, this ivarranty does not, as I understand 
 the law, exonerate the insurers from the consequent loss by a peril 
 insured against. 
 
 The preceding propositions are involved in the judicial juris- 
 prudence heretofore referred to, though the one last stated was 
 formerly, and has sometimes been more recently, as we have 
 seen, disclaimed, and the opposite doctrine asserted. 
 
 741. This implied icarranty of legal conduct is not applicable to 
 damage and loss directly consequent upon any illegaliti/, ivithout 
 the intervention of any peril expressly insured against, since such 
 loss does not at all come within the terms of the policy, and is 
 wholly at the risk of the assured, of whatever character or degree 
 it may be. 
 
 SECTION IV. BELLIGEREXT RISKS. 
 
 742. The national character of the ship or goods is frequently 
 the subject of an express warranty. It is, however, implied by 
 the mere fact of making the insurance, without any express 
 provision of the policy, that the insurers are not to be answerable 
 
 for any loss consequent upon neglect of the assured himself in 
 preserving and manifesting the national character of neutral 
 property which is insured by the policy, though it is not described 
 as neutral in the policy. 
 
 Mr. Justice Sewall says : " The neutral character of the prop- 
 erty is understood by the parties, and necessarily inferred, where 
 the insurance is made by a citizen of a neutral State, resident 
 there, of his own property ; and without any express represen- 
 tation or warranty, the assured impliedly engages to preserve 
 his ■ property, and to conduct the voyage insured, in a neutral 
 condition and character, to which alone the insurance applies." ^ 
 
 743. Under this implied warranty of documents and insignia 
 of the real national character of neutral property, the underwriters 
 are undoubtedly exonerated from loss by defect of such evidences 
 accompanying the subject, so far as it depends upon himself and 
 his agents for shipping the property and furnishing the proper 
 bills of lading, invoices, certificates, &c. 
 
 1 Stockcr V. Merrimack Ins. Co. G Mass. 220.
 
 408 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII 
 
 The question, how far any mistakes or negligences of th( 
 master or mariners in maintaining a neutral character an( 
 observing neutral conduct are imputable to the assured unde 
 this implied warranty, or may be visited upon the insurers, ha: 
 not been discussed in the judicial tribunals. Analogy is a grounc 
 of inference that a defect in maintaining- the national character o 
 the insured subject itself, whether ship or goods, is impiitahle t( 
 the assured, however it may have arisen. 
 
 But if the neutral character of the ship is indirectly affected hy 
 that of the goods, or vice versa, it seems hardly to come withii 
 this implied warranty, and would not exonerate the insurer. 
 except on the ground of concealment or misrepresentation. TliL 
 distinction is suggested merely, and not stated as a doctrine 
 judicially established. 
 
 744. The underwriters are not liable for loss consequent upoi 
 a neutral vesseVs taking false papers : 
 
 As in' case of a Swedish vessel belonging to Gottenburg 
 taking papers purporting that she was from Bergen, anothei 
 neutral port.^ 
 
 745. According to analogy and the weight of authority, then 
 is an implied stipulation on the part of the assured by the fact ol 
 effecting the policy, that the ship or goods insured are accompaniec 
 by documents and other insignia truly indicating their national 
 character. 
 
 Lord Kenyon and Mr. Justice Grose intimated an opinior 
 in favor of such a stipulation ; Mr. Justice Lawrence thinking 
 otherwise.^ 
 
 Lord Ellenborough, in the earlier part of the period of his pre- 
 siding in the King's Bench, and his associates, Grose, Lawrence, 
 and Le Blanc, were against such an implied stipulation in the 
 case of a policy on goods in an American vessel.^ 
 
 Subsequently, the same court, Bayley being substituted for 
 Lawrence, under a policy upon an American ship and cargo, 
 were of opinion that there was such an implied stipulation, where 
 there was no express warranty or any representation on the sub« 
 
 1 Horneyer v. Lushington, 3 Campb. The point is suggested also in Price v. 
 85, and 15 East, 46. See also Stocker Bell, 1 East, 663. 
 
 V. Merrimack Ins. Co. G Mass. 220. 3 Dawson v. Atty, 7 East, 367. 
 
 2 Christie v. Secretan, 8 Term, 192.
 
 SECT. IV.J BELLIGERENT RISKS. 409 
 
 ject,^ on what seems to be the true ground, that a loss from want 
 of such documents and insignia was through the fault of the 
 assured, which would limit the decision to those cases in which 
 the assured can reasonably be presumed to have notice that the 
 evidences of national character would be requisite. 
 
 In the English Common Pleas, Sir James Mansfield, C. J., 
 and Heath, Lawrence, Chambre, and Gibbs, Justices,^ fully- 
 concurred with the decision last above cited. The same court 
 had previously given a similar opinion.^ 
 
 746. In an earlier case than the preceding one, upon a policy 
 on cargo, the Supreme Court of New York, Kent, being Chief 
 Justice, intimated an opinion that documents of the national 
 character of the ship were not necessary to its seaworthiness, and 
 were only necessary when its national character was expressly 
 warranted or represented.^ In this case there was not any fault 
 on the part of the assured himself, as it does not appear that he 
 knew of the deficiency of the ship's documents. If the under- 
 writers are held to be discharged from liability for the loss by 
 capture and condemnation, on this ground, it is analogous to the 
 case of a forfeiture of the insurance on the cargo by a shipper 
 by fault of the ship-owner in not supplying a seaworthy vessel. 
 
 But such a construction in reference to a mere shippet is harsh. 
 It is going far enough in reference to him to put the case upon 
 the ground of representation and concealment. The doctrine will 
 then be, that, if the shipper knoivs of any material circumstance 
 not knoiun or presumed to be so to the underwriter, in the owner- 
 ship or documentary evidence or other insignia of the national 
 character of the vessel^ whereby it icould be liable to detention or 
 capture, he is bound to disclose it. This is in principle the ground 
 taken by the English King's Bench.^ 
 
 747. A neutral ship may carry belligerent goods without express 
 leave in the policy.^ But the assured, if he knows of such floods 
 being carried, or intended to be so, is bound to represent the fact.' 
 
 748. Whether the policy implies that, if the assured is apprised 
 or has reason to suppose, that the goods insured, or to be carried 
 
 1 Bell V. Carstairs, 14 East, 371. 4 Elting v. Scott, 2 Johns. X. Y. 157. 
 
 2 Le Cheminant v. Pearson, same ^ Barker v. Blakes, 9 East, 283. 
 plaintiiFi;. Allnutt, 4 Taunt. 3G7. c Ibid. 
 
 3 Steel V. Lacy, 3 Taunt. 285. 7 Y'vXq supra, No. 743. 
 VOL, I. 35
 
 410 IMPLIED WAERANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 in the vessel insured, or of which the freight is insured, are 
 contraband of icar, the underwriters are not to be liable for 
 consequent detention or other loss, unless such fact is known to 
 them, or presumed to be so ? 
 
 There are divers decisions that underwriters are liable for such 
 loss without any actual or presumed notice of such risk.^ 
 
 The circumstance of the goods being contraband is undoubt- 
 edly very material to the risk. It would therefore appear to be 
 remarkable to find the principle established by different courts, 
 that the fact of the goods being contraband should not affect the 
 policy, though that fact were not represented or stated in the 
 policy were it not recollected that during the wars between 
 England and France, from 1790 to 1815, the courts of those 
 countries, and more especially the vice-admiralty courts, estab- 
 lished in the colonies, considered very many articles as belonging 
 to the class of contraband. Most of the courts of the United 
 States adopted the principle of the English courts, that foreign 
 judgments are conclusive as to the facts adjudged. Unless, 
 therefore, they had permitted the assured to insure, without any 
 representation or specification in the policy, articles which the 
 foreign courts condemned as contraband, insurance would have 
 afforded but a very imperfect indemnity against the peril of 
 capture. But both of these principles, as well that which makes 
 a foreign judgment conclusive, otherwise than as between the 
 parties to it, as that which permits the insurance of contraband 
 goods without any specification of them in the policy, or any 
 representation of their contraband character, seem to admit of 
 very serious doubt. 
 
 The legal right of a neutral to carry goods contraband of war, 
 unless forbidden by treaty or statute, is, as we have seen, recog- 
 nized by good authority. Such right, and that of a belligerent 
 to confiscate such goods, are sometimes said to be in conflict. 
 But two principles of law cannot be inconsistent, though one is 
 that of national law and the other that of the municipal law. 
 One of them must predominate. If two propositions are con- 
 tradictory, one of them, at least, is not law. The only way of 
 
 1 Juhel r. Rhinelander, 2 Johns. Cas. v. Desdoity, 2 id. 77; Richardson v. 
 N. Y. 120; Rhinelander v. Juhel, 2 id. Maine Fire & Mar. Ins. Co. 6 Mass. 
 4S7; Seton i'. Low, 1 id. 1; Skidmore 102.
 
 SECT. IV.] BELLIGERENT RISKS. 411 
 
 reconciling these rights is by saying, that the right of the neutral 
 to carry contraband goods is qualified by its being subject to 
 that of the belligerent to seize and confiscate them/ which is 
 certainly not a very satisfactory basis of a right. 
 
 However this may be, we are safe in saying that, to the present 
 purpose, the question is not one of legality, but of contract, 
 express or implied. And considering it in this light, the general 
 fundamental doctrines of representation and implied warranty 
 plainly lead to the conclusion, that 
 
 The assured is bound by an implied stipulation to disclose this 
 risk by representation, upon the principles and subject to the qual- 
 ifications and exceptions^ applicable in reference to other material 
 facts, according to the doctrine already stated under the head of 
 Representation.^ 
 
 749. Chief Justice Marshall says : " It is not impossible that, 
 without a warranty that the vessel is neutral property, ^/ie attempt 
 of a neutrcd vessel to enter a blockaded port might be considered 
 as discharging the underwriters." ^ It can hardly be doubted 
 that it icould discharge the underivriters from all loss consequent 
 thereon. 
 
 750. It is one of the implied conditions of the policy that the 
 vessel shall have convoy for the voya^-e, where convoy is required 
 by laiv, and where the sailing without it is not excused by the 
 circumstances.* 
 
 751. A non-compliance with the implied stipulation for the 
 evidences and insignia of the national character of the vessel does 
 not discharge the underivriters from all subsequent liability. So 
 far as any enhancement of the risk in this respect is imputable to 
 the assured, he must bear the consequent loss ; the insurers at the 
 same time continuing to be liable in other respects.^ 
 
 1 Barker v. Blakes, 9 East, 283; 4 D'Aguilar u. Tobin, 1 Holt, 185. 
 Richardson v. Maine Fire & Mar. Ins. 5 Bell v. Carstairs, 14 East, 374 ; 
 Co. 6 Mass. 102. Cleveland v. Union Ins. Co. 8 Mass. 
 
 2 Supra, No. 624, 629. 308 ; PoUeys v. Ocean Ins. Co. 14 Me. 
 
 3 Maryland Ins. Co. v. Woods, 6 141 ; and cases cited supra, No. 735. 
 Cranch, 29.
 
 412 IMPLIED WARRANTIES, CONDITIONS, ETC. [CHAP. VIII. 
 
 SECTION V. THE ABROGATION OF AN IMPLIED WARRANTY, CON- 
 DITION, OR STIPULATION. 
 
 752. The implied warranty of seaworthiness may be expressly 
 superseded, as by the phrase " allowed to be seaworthy." ^ 
 
 So also the forfeiture by a violation of an implied condition 
 may be cancelled by a written declaration.'-^ 
 
 An implied condition " may be superseded by a verbal or 
 written statement." ^ 
 
 753. Survey of the ship hy surveyors acting for the underwriters 
 preliminary to the agreement to insure, in pursuance of an express 
 standing regulation of the insurance company, is not a waiver on 
 their part of their right to insist on the implied warranty of sea- 
 worthiness : * 
 
 As under a rule of the Newfoundland insurance companies, 
 specifying that " the survey should be the groundwork of the 
 policy." ^ 
 
 1 Phillips V. Nairne, 16 L. J. Com. plied warranty of seaworthiness. Mis- 
 PL 194. sissippi Ins. Co. v. Stanton, 10 Miss. 
 
 2 Weir V. Aberdeen, 2 Barnew. & 340. 
 
 Aid. 320. 4 Myers v. Girard Ins. Co. 26 Penn. 
 
 3 Per Wilde, J., Parks v. General St. 192. 
 
 Interest Ins. Co. 5 Pick, Mass. 34. 5 Damson v. Cawley, Newfoundland 
 Whether ad\ertising to take goods by R. 433. 
 particular boats is a waiver of the im-
 
 CHAPTER IX. 
 
 EXPRESS WARRANTIES, STIPULATIONS, AND CONDITIONS. 
 
 ; Kcx. 1. What constitutes an express war- Sect. 8. Warranty of neutral property 
 ranty. ! requires neutral trade, employ- 
 
 ment, and conduct. 
 9. Particular warranties and condi- 
 tions. 
 10. Warranties, conditions, and stip- 
 5. Warranty of neutral property, its j ulations in fire policies. 
 
 form, import, and construction, j 11. Warranties, conditions, and stip- 
 
 Ownership. ' ulations in life policies. 
 
 12. Stipulation for set-off. 
 
 13. Waiver of forfeiture by non- 
 compliance with an express 
 warrant}'. 
 
 2. Construction of, and compliance 
 
 with an express warranty. 
 
 3. Warranty of the time of sailing. 
 
 4. Warranty of convoy. 
 
 Origin of property warranted 
 
 neutral. 
 Documents, proofs, and insignia 
 
 of neutral propertj'. 
 
 SECTION I. WHAT CONSTITUTES AN EXPRESS WARRANTY. 
 
 754. An express icarranty is an agreement expressed in the 
 policy, whereby the assured stipidates that certain facts are, or 
 shall he, true, or certain acts shall he done, relative to the risk. 
 It may relate to an existing or past fact, or be promissory and 
 relate to the future. 
 
 755. It is not requisite that the circumstance or act ivarranted 
 should he material to the risk ; in this respect an express war- 
 ranty is distinguished from a representation. Lord Eldon says : 
 " It is a first principle in the law of insurance, that, if there is a 
 warranty, it is a part of the contract that the matter is such as it 
 is represented to be. The materiality or immateriality signifies 
 nothing." ^ But where the assured warrants facts " as far as 
 material " the materiality is important.^ 
 
 756. An express warranty or condition is always a part of the 
 policy, but, like any other part of the express contract, may he 
 
 1 Newcastle Fire Ins. Co. r. Mac- 2 ^tna Ins. Co. v. Grube, 6 jNIinn. 
 morran, 3 Dow, Pari. Cas. 255 ; Stout 82. 
 V. City Ins. Co. 12 Iowa, 371. 
 35*
 
 414 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 written in the margin} or contained in proposals or documents 
 expressly referred to in the policy, and so made part of it.^ 
 
 An insurance of goods described in the policy to be made 
 " for account of M., of B.," was considered to be equivalent to a 
 representation that he was owner, and that the insurance was 
 for his benefit, and he being an American, and so known to the 
 parties, the insurance was considered to be on American or 
 neutral property.^ 
 
 757. A warranty is often made by saying expressly in the 
 policy that the assured " warrants " such a fact : 
 
 As, " Warranted the property of the assured, all Americans." * 
 
 But a formal expression of this sort is not requisite to consti- 
 tute a warranty. Kvi^ direct or even incidental, allegation of a 
 fact relating to the risk, has been held to constitute a warranty. 
 
 If insurance is made on " the Swedish brig S.," " the Ameri- 
 can ship M.," " the Spanish brig N. C," &c., or on goods on 
 board of vessels so described, it is a warranty that the vessel is 
 Swedish, American, or Spanish.^ 
 
 A vessel being insured, in time of peace, as " the British brig," 
 &c., this is a warranty that she belongs to British owners ; that 
 her documents and equipments are those of a British vessel ; 
 and that she is navigated in the character of such a vessel.^ 
 But describing the vessel in the policy by an English name is 
 not a warranty of its having an English national character.'^ 
 
 A statement in the policy that the vessel was in port on a cer- 
 tain day, was held to be a warranty of that fact.^ 
 
 758. Doubts were entertained by the judges in Pennsylvania, 
 whether insurance " on the good British brig called the John," 
 
 1 Dennis v. Ludlow, 2 Caines, N. Y. tliian v. Henderson, 3 Bos. & P. 499 ; 
 111; Bean v. Stupart, 1 Dougl. 10; Barkers. Phoenix Ins. Co. 8 Johns. N. 
 Kenyon v. Berthon, id. 12, n. Y. 307 ; Goix v. Low, 1 Johns. Cas. N. 
 
 2 Koutledge v. Burrell, 1 H. Blackst. Y. 341 ; Murray v. United Ins. Co. 2 
 254; Worsley v. Wood, 6 Term, 710. id. 168; Vandenheuvel v. United Ins. 
 
 3 Kemble v. Rhinelander, 3 Johns. Co. 2 id. 127; Wood v. Hartford Ins. 
 Cas. N. Y. 130. Co. 13 Conn. 533. 
 
 4 Jenks V. Hallett, 1 Caines, N. Y"". ^ Francis v. Ocean lus. Co. 6 Cow. 
 60. N. X. 404. 
 
 5 See Lewis v. Thatcher, 15 Mass. 7 Clapham i;. Cologan, 3 Campb. 382. 
 431; Higgins u. Livermore, 14 id. 106 ; 8 Kenyon v. Berthon, 1 Dougl. 12, 
 Atherton v. Brown, 14 id. 152; Lo- n.
 
 SECT. I.] WHAT CONSTITUTES AN EXPRESS WARRANTY. 415 
 
 was necessarily a warranty of the national character of the 
 vessel. Whether these words would amount to a warranty, 
 and what construction was to be put upon them, Judges Yeates 
 and Brackenridge thought would depend, not only upon the 
 words themselves, and the manner and connection in which 
 they were introduced into the policy, but also upon the whole 
 policy. Mr. Justice Yeates was of opinion, that this description 
 was not a warranty of national character, because the risks in- 
 sured against could not be affected by the fact that the vessel 
 was British, since she was insured against sea-risks only ; and 
 the risk was to end on capture.^ This distinction seems to be 
 just ; for, though the materiality of the fact stated in the policy 
 is not requisite to constitute a warranty, yet there seems to he no 
 reason for considering the statement or recital of the fact to he 
 a ivarranty, if it evidently cannot have any relation to the risk. 
 But a fact expressed in the policy will no doubt be presumed 
 to have relation to the risk, unless it appears that it can have no 
 such relation. 
 
 Thus, if it could have been supposed, in the preceding case, 
 that the insurer might prefer to insure a British vessel against 
 sea-risks, rather than one of any other national character, the 
 description might be considered a warranty, a compliance with 
 which would be a condition on which the liability of the under- 
 writer would depend, though all other underwriters should be of 
 opinion that the sea-risk would be less upon an American or 
 French vessel. But if the national character of the vessel could 
 not have any relation to the sea-risk, there seems to be no reason 
 for considering it a warranty. 
 
 This distinction can apply, however, only to facts incident- 
 ally expressed, or introduced by way of recital, or, as in the 
 above case, merely as description, and not purporting on the 
 face of the policy to be stipulations. In such cases it seems to 
 be quite reasonable to adopt the distinction made in the above 
 case in the construction of marine policies, as it has been 
 adopted in respect to those against fire.^ 
 
 An analogous but broader doctrine prevails in respect to a bill 
 of lading, " which " says Mr. Greenleaf, " may be contradicted 
 
 1 Mackie v. Pleasants, 2 Binn. Penn. 2 See section 10 of this chapter. 
 363.
 
 416 EXPRESS "WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 and explained in its recital, that the goods were in good order 
 and well conditioned, and in any other fact which it erroneously 
 recites." ^ 
 
 759. The insurance of goods to a certaifi port, as to " port 
 Sisal," is not a warrant)/ that the place has any port or harbor 
 belonging to it. The meaning of the expression is to be deter- 
 mined by the fact, with which the underwriter is supposed to be 
 acquainted.^ • 
 
 Where the policy was expressed to be " on the cargo, being 
 1031 hogsheads of wine^'' the cargo consisted of the wine in- 
 sured, and also eight cases of British manufactured goods. In 
 behalf of the underwriters it was contended, that this should be 
 considered a warranty that the whole cargo consisted of the 
 wine insured. Lord Ellenborough said : " I think ' the cargo ' 
 does not mean the ' whole cargo,' but merely that the insurance 
 shall attach upon that part of the cargo which consists of the 
 1031 hogsheads of wine. The risk was not increased by other 
 goods being put on board." ^ 
 
 760. As any statement of a fact in the policy is a warranty, 
 though neither the word warrant, nor any formal expression of 
 like import, is used; so there is frequently a warranty in form of 
 expression, where there is none in fact. The assured often 
 " warrants " the property '■'• free from average," " detention," or 
 " capture," or from other losses and perils, which is no more 
 than an agreement that those shall not he among the perils 
 and losses insured against, and for which the underwriter is to 
 be liable. 
 
 Although these forms of expression are sometimes spoken of 
 as warranties, it would be absurd to consider them such in their 
 character and construction, since, in the case of an insurance 
 " free from average," for instance, it would be adopting the doc- 
 trine that the occurrence of an average loss would render the 
 policy void. 
 
 A stipulation in a policy upon a ship, that the insurers are 
 
 1 1 Greenleaf Ev.,ed. of 1842,p. 354, 2 Delonguemare v. N. Y. Firemen's 
 
 s. 305. And he cites Barrett v. Rogers, Ins. Co. 10 Johns. ISI". Y. 120. 
 
 7 Mass. 297; Benjamin v. Sinclair, 1 3 Muller v. Thompson, 2 Campb. 
 
 Bail. So. C. 174; Smith v. Brown, 3 GIO. 
 N. H. 580 ; May v. Babcock, 4 Ohio 
 334.
 
 SECT. I.] WHAT CONSTITUTES AN EXPRESS WARRANTY. 417 
 
 not to be " liable to any damage to or from her sheathing," was 
 held, in Massachusetts, not to be a warranty that the ship was 
 sheathed or should be kept so, but merely an exoneration of 
 the insurers from all loss and damage to or on account of the 
 sheath ing.i 
 
 In a policy on a vessel for a year, a clause excluding all ports 
 and places in Mexico, Texas, and the West Indies, from July 
 15th to October 15th, was held by Mr. Justice Story to be an 
 exception of the risks in those ports, not a warranty against 
 being at them during that time.^ 
 
 A steamboat having been insured one month, and sustained 
 damage during that time, was insured by the same underwriter 
 against all risks, on condition that the damage sustained under 
 the prior policy should be first repaired, during the first month, 
 and before the completion of the repairs, it was sunk. Held, in 
 Louisiana, that this was not a condition precedent to be com- 
 plied with before the risk commenced on the second policy, 
 but merely a stipulation that the repairs should be immediately 
 made, and that the insurers were liable in the mean time on 
 the latter policy.^ 
 
 761. A rule of a mutual insurance association merely direct- 
 ory to its committee in examining vessels, is not an express 
 warranty : 
 
 As the rule requiring " all ships to be inspected and approved 
 by a committee of the club before admission : All ships hereby 
 insured to be well found, and otherwise in a seaworthy state, as 
 to the committee or their inspector shall from time to time seem 
 meet : All chain cables to be properly tested." This was held 
 not to be a waiTanty by the assured that the cable had been well 
 tested.'* 
 
 1 Martin v. Fishing Ins. Co. 20 Pick. 3 Hyde v. Miss. Ins. Co. 10 La. 
 Mass. 389. 525. 
 
 2 Palmer v. The Warren Ins. Co. 1 * Harrison v. Douglas, 5 Nev. & M. 
 Stor. C. C. 3G0. 180; 3 Ad. & E. 39G.
 
 418 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 SECTION II. CONSTRUCTION OF, AND COMPLIANCE WITH, AN EX- 
 PRESS WARRANTY. 
 
 762. It is another distinction of an express warranty or con- 
 dition from a representation, that an express warranty must be 
 " strictly^'' and it is even said " literally^^ complied ivith : 
 whereas it is sufficient that a representation is complied with 
 substantially. 
 
 It is held, that the intention of the parties in a warranty, ex- 
 cept as to the meaning of the words used, is not to be inquired 
 into; the assured has chosen to rest his claims against the in- 
 surers on a condition inserted in the contract, and whether 
 the fact or engagement, which is the subject of the warranty, 
 be material to the risk or not, still he must bring himself 
 strictly within that condition. The rigid construction put 
 upon warranties, in this particular, has perhaps arisen, in part, 
 from the maxim of the common law, that conditions are to 
 be severely construed in regard to the party imposing them 
 on himself. 
 
 " A warranty," says Lord Mansfield, " must be strictly per- 
 formed, nothing tantamount will do." ^ 
 
 Mr. Justice Buller : " It is a matter of indifference whether 
 the thing warranted be material or not, but it must be literally 
 complied with." ^ 
 
 Mr. Justice Ashhurst : " The very meaning of a warranty is, 
 to preclude all questions whether it has been substantially com- 
 plied with ; it must be literally."^ 
 
 And Lord Eldon : " When a thing is waiTanted, it must be 
 exactly what it is stated to be."^ 
 
 But since the real meaning of a warranty is not always the 
 literal meaning of each word and phrase, it is surely sufficient 
 
 1 Pawson V. Watson, Cowp. 785. 2 Blackhurst v. Cookell, 3 Term, 
 
 See as to constructions of, and compli- 300. See also State Ins. Co. v. Arthur, 
 
 ance with, representations and warran- 30 Penn. St. 315. 
 
 ties, supra, 70, 71, 72, 485 et seq., 527, 3 De Hahn v. Hartley, 1 Term, 343 ; 
 
 553, 569, 575, 603, 038, 640, 641, 652, 2 Term, 186. 
 
 609,670,073,074; and infra, 800-871, 4 Newcastle Fire Ins. Co. v. Mac- 
 
 872, 892. morran, 3 Dow. Pari. Cas. 255.
 
 SECT. II.] CONSTRUCTION OF, AND COMPLIANCE THEREWITH. 419 
 
 in this contract, as in others, that an express provision has been 
 complied with according to its real meaning, ascertained by the 
 established rules. 
 
 I cannot, therefore, but doubt, on again examining a decision 
 of the English King's Bench, in Lord Mansfield's time,^ whether 
 it is marked with the comprehensive justness generally charac- 
 teristic of his opinions. It was upon a policy on a cargo from 
 Africa to the West Indies, in the margin of which was the 
 statement, " sailed from Liverpool with 14 six-pounders, &c., 
 and 50 hands or upwards." The vessel had left that port 
 with only 46 hands, quite as safe for the time as with 50, and 
 taken on board the complement at Beaumaris, in the Isle of 
 Anglesea, where she arrived in six hours from Liverpool. The 
 apparently real meaning of the statement seems to have been, 
 that she had gone on her outward passage with 50 hands ; and 
 this meaning was strictly complied with ; and though it was not 
 literally expressed, it was adequately signified, by such a mem- 
 orandum. 
 
 763. Tlie acts of the master and those of other agents are imput- 
 able to the assured in reference to non-compliance with an express 
 loarranty? 
 
 764. A non-compliance icith a formal, direct, express ivarranty, 
 though teynporary, and though the risk from such non-compliance 
 is ivholly distinct from the other risks insured against, icill, if it 
 is simultaneous with the time for the commencement of the risk, 
 wholly defeat the policy. 
 
 Under a policy upon a ship and cargo from London to 
 Guernsey, and thence to the coast of Africa, " warranted Amer- 
 ican property," the ship, on the passage to Guernsey, had not 
 the passport provided for, as one of the documents of national 
 character, in the treaty between the United States and France. 
 She took it at Guernsey, and was subsequently captured by the 
 French. Lord Kenyon and Justices Grose and Ashhurst held 
 the underwriters not to be at all liable on the policy.^ 
 
 1 De Ilahn v. Ilartly, 1 Term, 343 ; 3 Rich v. Parker, 7 Term, 705 ; 2 
 unanimously confirmed in the Court of Esp. G15. See also Woolmer r. Muil- 
 Excbequer, 2 Term, 18G. man, 3 Burr. 1419 ; 1 W. Blackst. 427 ; 
 
 2 Duncan v. Sun Fire Ins. Co. 6 Fernandcs v. Da Costa, Park, 177 ; 
 Wend. N. Y. 488 ; and see cases gener- Marshall, Ins. 2d ed. 394. 
 
 ally.
 
 420 EXPEESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 765. JVItere an equitable and substantial fulfilment is the 
 same as a strict and literal one, a representation and warranty 
 are equivalent to each other ; as was held in New York in respect 
 to a representation or warranty of the neutral character of prop- 
 erty.i 
 
 766. Though a strict compliance with a warranty is required, 
 yet the construction of the language is determined, as in other 
 cases, by usage and common acceptation. 
 
 Where the warranty was that the vessel had " thirty seamen " 
 on board, and to make up the number it was necessary to in- 
 clude the steward, cook, surgeon, some boys and apprentices, 
 Lord Mansfield said: " The question was whether, in this war- 
 ranty, the word seamen was used in the strict literal sense, or 
 not. If it was, the warranty has not been complied with. It 
 is a matter of construction. Boys are reckoned seamen, not 
 only at the custom-house and Greenwich Hospital, but in the 
 distribution of prizes. There is scarcely now such a thing as a 
 ship entirely manned with seamen, strictly so called." And it 
 was held that the warranty had been complied with.^ 
 
 So the cook is included in the number of hands required on 
 board a flat boat on the Mississippi.^ 
 
 767. Mr. Justice Kent said : " A warranty must be literally 
 complied with ; but tliis strict compliance ought to operate in 
 favor of, as ivell as against, the assured, whenever he can bring 
 himself within the terms of it." "^ 
 
 An instance of this occurred in the case of a warranty that 
 " the ship should have twenty guns." She had in fact twenty- 
 two guns, but only twenty-five men, a number quite short of the 
 necessary complement for twenty guns. Lord Mansfield held 
 this to be a compliance with the warranty. He said : " If a 
 warranty be intended to mislead, it is a fraud." In this case 
 there is no ground to impute fraud, and therefore the assured is 
 entitled to recover."^ 
 
 But we must presume that it was a substantial compliance, 
 
 1 Vandenheuvel v. Church, 2 Johns. * Kemble v. Rhinelander, 3 Johns. 
 Cas. N. Y. 173, n. Cas. N. Y. 130. 
 
 2 Bean v. Stupart, 1 Dougl. 10. 5 Hyde v. Bruce, Marsh. 347 ; 3 
 
 3 Grant v. Lexington Ins. Co. 5 Ind. Dougl. 213. 
 23.
 
 SECT. II.] CONSTRUCTION OF, AND COMPLIANCE THEREWITH. 421 
 
 SO that the risk was not enhanced in the particular case, other- 
 wise such a construction would annul the waiTanty. 
 
 768. The same strictness in construing' the statements incident- 
 ally made in the policy is said not to prevail to the same extent 
 on the continent of Europe. 
 
 Emerigon says, if insurance be made on a vessel described in 
 the policy to be " a ship," which is in fact a brig or sloop, the 
 policy is void, provided the insurers did not know what sort of 
 vessel it was, since they might have been led by the description 
 to form too favorable an estimate of the risk ; but if they were 
 acquainted with the vessel, they will be bound by the contract. 
 He says, if the vessel be superior or equivalent to what it is 
 described to be, the conditions of the contract will be satis- 
 fied.i 
 
 Our law does not go to this extent, though there is nothing in 
 principle to prevent a fact stated in the policy being put upon 
 the same footing as one stated in a written representation, unless 
 it is stated in the policy in a formal phrase of warranty or con- 
 dition, importing that an exact compliance was deemed material 
 by the parties. The precedents in our law, however, stop short 
 of this, and, as already stated, only go to the doctrine, that, 
 where facts are stated merely by luay of recital or description^ 
 and are not material to the risk, the clause is not a condition or 
 warranty. 
 
 769. A compliance with a v:arranty, or any other agreement, 
 is dispensed ivith, if it he rendered unlaivful by a law enacted 
 after the time of making' the policy? But if it is unlawful at the 
 time of making the policy, the contract is void. 
 
 770. Where the fact warranted is falsified hy the direct effect 
 of a peril insured against, it is not a breach of the warranty : 
 
 As where the warranty is of " lawful trade," barratry being in- 
 sured against, and the loss is by barratrous unlawful trade by the 
 master.'^ 
 
 Suppose a ship, insured against arrests and detention, to be 
 warranted to sail on or before a certain day, and prevented from 
 
 1 1 Emerigon, c. 6, s. 3. See also 3 71 ; 1 Salk. 198. See also 1 Emeri- 
 Pothier, n. 106. gon, 543, c. 12, s. 31. 
 
 2 Brewster v. Ivitchell, Ld. Raym. 3 Havelook v. Uancill, 3 Tei*ui, 277. 
 VOL I. 36
 
 422 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 sailing by an arrest and detention.^ The embargo or other 
 cause of detention may be removed before the assured has in- 
 telligence of it, which will take away his right of abandoning 
 and claiming for a total loss. His insurance will therefore be 
 defeated, unless a literal fulfilment of the warranty is dispensed 
 with, in case of the non-compliance being occasioned by some 
 of the perils insured against. 
 
 It will subsequently appear, that a deviation from the ordinary 
 course of the voyage is justified, where it is occasioned by the 
 operation of some of the perils assumed by the underwriters, or 
 to which it is understood that the subject is to be exposed, 
 which seems to be an analogous case. 
 
 771. A warranty has been defined to be a condition precedent, 
 but this definition is applicable only to a warranty relating to 
 the commencement of the risk. If a warranty relates to a cir- 
 cumstance necessarily subsequent to the commencement of the risk, 
 as that the ship shall take an armament at an intermediate port 
 in the course of the voyage, the assured is entitled to recover 
 for an antecedent loss, though the warranty should not be com- 
 plied with. 
 
 The premium is due in this case,^ therefore a previous loss 
 may be recovered, since it supposes a valid contract to have 
 subsisted, at some time, between the parties. 
 
 Chief Justice Parsons intimates, that the right of recovering 
 such previous loss might perhaps depend in some measure upon 
 the circumstance of the policy being made before or after the 
 loss actually takes place ;3 but it does not appear upon what 
 principle such a distinction can be made. 
 
 Mr. Justice Sewall, in giving the decision of the court, laid 
 down the principle that a loss, happening before a forfeiture of 
 the implied warranty of seaworthiness, might be recovered not- 
 withstanding such forfeiture, but he did not distinctly express an 
 opinion in regard to the right of recovering, subsequently to a 
 forfeiture of an express warranty, for an antecedent loss.* 
 
 In this case as in others analogous to it, a loss happening in 
 
 1 See Cruikshank v. Jausen, 2 Taunt. 3 Taylor v. Lowell, 3 Mass. 337, 340. 
 301. 4 Tajlor v. Lowell, 3 Mass. 331. 
 
 2 Hendricks v. Commercial Ins. Co. 
 8 .khas. N. Y. 1.
 
 SECT. III.] WARRANTY OP THE TIME OF SAILING. 423 
 
 the earlier stages of the risk may, by the terms of the policy, be 
 recoverable before the forfeiture of the warranty. 
 
 Mr. Arnould ^ adheres to the doctrine that a non-compliance 
 with a warranty at any stage of the voyage discliarges the 
 underwriters from all loss, Avhether prior or subsequent.^ 
 
 771 a. The doctrines relative to the construction of express 
 ivarranties and compliance thereioith, are illustrated by divers 
 cases on policies ag-ainst fire, as to the general rules of construc- 
 tion;'^ respecting non-compliance at the time for the risk to be- 
 gin;* specifying buildings within a certain distance;^ encum- 
 brances, and statement of title ;^ the sale of 'the subject;^ other 
 insurance;^ storing particular articles ;° giving notice of a 
 loss;^^ false affidavits.^! 
 
 So the Jurisprudence of life policies supplies similar illustra- 
 tions : as to what is good health ;!- death by insanity ; ^^ usual 
 medical attendant ;''^ payment of premium ; ^^ naming medical 
 attendant : ^^ spitting of blood ; ^' temperate habits ; ^^ having 
 fits.19 
 
 SECTION III. WARRANTY OF THE TIME OF SAILING. 
 
 772. Under a warranty that the vessel sailed, or will sail, on 
 or before a certain day, a question arises in regard to what con- 
 stitutes '' a sailing " on the voyage, 
 
 A vessel has " sailed " the moment she is unmoored and got 
 under wai/, in complete preparation for the voyage, ivilh the 
 
 1 ArnouM, 1 Mar. Ins. 584. Eaton v. Lyon, 3 Yes. Ch. 600 ; Skinner 
 
 2 Relative to forfeiture of written v. Dayton, 2 Johns. Ch. N. Y. .526 ; 
 contracts by non-compliance with con- Arnsby v. Woodward, ti Barnew. & C. 
 ditions, in case of leases mostly, but 510; Bouser y. Colby, 1 Hare Ch. 109; 
 having analogy to express warranties, Harrington v. Wheeler, 4 Yes. Ch. 686 ; 
 see Sanders v. Pope, 12 Yes. Ch. 281 ; Bracebriilge i-. Buckley, 2 Price E.Kch. 
 Hill V. Barclay, 18 Yes. Ch. 63; Lloyd 200. 
 
 V. Collett, Brown, Ch. 469, and Belt's 3 l„fi-a. No. 866, 872, 873, 874,87.^), 
 
 note; Reynolds v. Pitt, 19 Yes. Ch. 878. 
 
 134; White v. Warren, 2 Mer. Ch. < Infra, No. 870; 5No.872a. ; 6 No. 
 
 459; Rolfe v. Harris, 2 Price, Exch. 84 7 a.; 7 No. 880; 8 No. 881; 9 No. 
 
 26 ; Baxter t-. Lansing, 7 Paige, Ch. N. 883; 10 No. 886; n No. 888; 12 Xo. 
 
 Y. 350; 2 Story Eq. Jur. s. 1315,1320 894; 13 No. 895; 14 No. 898; 15 No. 
 
 etseq.; Errington ('. Aynseley, 2 Brown 897; i<5 No. 898; 17 No. 899; 18 No. 
 
 Ch. 341 ; Taylor v. Popham, 1 id. 168. 900; 19 No. 901.
 
 424 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 purpose of proceeding to sea, without further delay at the port of 
 departure. 
 
 Lord Mansfield said: "To constitute a sailing under this 
 warranty, the vessel at the time of sailing must be, in the con- 
 templation of the captain, at absolute and entire liberty to pro- 
 ceed to her port of delivery in a mathematical line, if it were 
 possible ; " ^ referring probably to her being ready, so far as her 
 preparations and equipments for the voyage are concerned. 
 
 A ship insured " at and from Jamaica to London, free from 
 capture and restraints, and detainments of kings, princes, and 
 people," and " warranted to sail on or before the 26th of July, 
 1776," was ready to sail, and would have sailed, on the 25th of 
 that month, had she not been detained by an embargo laid by 
 the order of the Governor of Jamaica, which was not raised 
 until after the time when the ship was warranted to sail. The 
 warranty was held to be not complied with.^ In this case the 
 delay was by a peril expressly excepted, which distinguishes it 
 from some of those subsequently referred to. 
 
 A warranty to sail on or before a particular day is not com- 
 plied with by leaving the harbor on that day, without having a 
 sufficient crew on board, although the remainder of the crew are 
 engaged, and ready to come on board.^ 
 
 The rules of a mutual insurance association, which were part of 
 the policy, defined " the time of clearing at the custom-house to 
 be the lime of sailing, provided the ship is then ready for sea," 
 and the cargo and freight of a vessel \vere insured on time, 
 warranted not to sail from Sligo, in Ireland, for British North 
 America, after the 1st of September. The vessel had cleared at 
 the custom-house on the 29th of August, and on the 30th dropped 
 down the river with ten to fifteen tons of ballast, and anch- 
 ored inside of the bar at the mouth of the river, and remained at 
 her moorings there on the 31st, the weather being unfavorable. 
 On the 1st of September she attempted to cross the bar, at- 
 tended by boats with thirty-five tons of additional ballast, to be 
 put on board after passing the bar, which the vessel crossed be- 
 tween eight and nine o'clock in the morning, being in time to 
 put the ballast on board and sail on that day ; but the vessel 
 
 1 Thullusson t'. Staples, Dougl. 351 n. ^ Graham v. Barras, 3 Nev. & M. 
 
 2 Hoi-e V. Whitmore, Cowp. 784. 125.
 
 SECT. III.] "WARRANTY OF THE TIME OP SAILING. 425 
 
 having struck twice in crossing the bar, the master, deeming it 
 not prudent to proceed without examining her bottom, put into 
 a near harbor, and having found her not to be injured, put to sea 
 on the 4th. Lord Tenterden, C. J. : " If a ship quits her moorings 
 and removes only a short distance, being perfectly ready to pro- 
 ceed on her voyage, and is by some subsequent occurrence de- 
 tained, that is a sailing ; but it is otherwise if, at the time when 
 she quits her moorings and hoists her sails, she is not in a con- 
 dition for completing her sea-voyage." It was accordingly held 
 not to be a compliance with the warranty.^ 
 
 773. Whether^ if a Desse/- is ivarrarited to sail on or before a 
 day named, and is completelp ready to sail on that day, but is 
 prevented from departing by stress of weather or other extraor- 
 dinary inevitable peril or restraint, not excepted in the policy, 
 and afterwards sails without unnecessary delay, the warranty is 
 complied with ? 
 
 This question is not free of difficulty, and the decisions upon 
 it do not altogether harmonize. 
 
 A vessel insured from Demarara was " warranted to sail on or 
 before the 1st of August." She sailed down the river about two 
 miles on that day, ready to proceed to sea ; but, the tide being 
 low, by advice of the pilot, anchored inside of the shoal at the 
 mouth of the river, and did not proceed until the 3d. Lord Ten- 
 terden and his associates held this to be a sailing on the Ist.^ 
 
 Under a warranty to sail from Jamaica for London on or before 
 the 1st of August, with a stipulation for return of premium for 
 convoy, the ship proceeded, on the 26th of July, out of the course 
 to London, for Bluefields, in the same island, to join convoy 
 there ; and, the convoy being detained by an embargo, did not 
 proceed on the voyage with the vessel insured until after the 1st 
 of August. Lord Mansfield, with the other judges of the King's 
 Bench, held this to be a compliance with the warranty. He said 
 it was a sailing for London by way of Bluefields.'^ 
 
 Under a similar warranty for the same voyage, the vessel sailed 
 on the 1st from Savannah la Mer, for Bluefields, for convoy, and 
 
 1 Pittegrew o. Pringle, 3 Bariiew. & 495; 5 Dowl. & R. 393 ; 1 Carr. 6c P. 
 Ad. 514. * 171. 
 
 '■^ Lang V. Anderson, 3 Barnew. & C. 3 Bond v. Nutt, Cowp. 601 ; Dougl. 
 
 344. 
 36*
 
 426 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 there waited until the 9th of August for the sailing of the convoy, 
 which did not arrive there until that day, having been detained 
 by an embargo. The master had expected to find the convoy 
 ready to sail on his arrival at Bluefields. This was held by the 
 same court to be a sailing from Jamaica on the 1st, Willes, J., 
 dissenting.! 
 
 A French ship " warranted to sail from Guadaloupe on or 
 before the 31st of December," for Havre, sailed from Point a 
 Pitrc, in that island, ready to pursue her voyage in October, with 
 orders and an intention, however, to stop at Basseterre, in the 
 same island,-and in the course of the voyage to receive despatches, 
 which the master expected to be ready. The vessel was detained 
 there until the 10th of January, when it sailed with convoy, and 
 was subsequently captured. Lord Mansfield, and the other judges 
 of the King's Bench, held the sailing from Point a Pitre to be a 
 compliance with the warranty, on the ground that the master did 
 not expect to be detained at Basseterre.^ 
 
 This liberal construction of the warranty in question is in con- 
 trast with the very literal one adopted by Lord Tenterden, in his 
 instruction to the jury in a case where the master, being ready 
 for the voyage, took up one of the two anchors by which the 
 vessel was moored, and some of her sails were set, and she had 
 been hauled about thirty fathoms of the length of the other cable 
 on the 9th, being the day warranted, when, observing a heavy 
 swell setting into the harbor, he deemed it dangerous to proceed, 
 and delayed until the 11th. Lord Tenterden ruled this not to be 
 a sailing on the 9th.^ 
 
 Under a warranty in a time policy on the Cyclops, to sail on 
 a voyage to America on or before the 15th of August, prepara- 
 tions were hastened, and the vessel was got ready to proceed on 
 the voyage, and when the tide served, in the afternoon of that 
 day, was hauled out of the dry dock in Dublin into the river 
 Liffey, and down the river about half a mile, ready to proceed, 
 the master knowing he could not then proceed on the voyage, 
 being prevented by a strong wind blowing up the river, so that 
 
 1 Earle i\ Harris, Dougl. 357. 3 Nelson v. Salvador, 1 Mood. & M. 
 
 2 Thellusson r. Fergusson, Dougl. 309 ; Dans. & LI. Cas. 219. 
 346, and same plaintiff v. Staples, Dougl. 
 
 351, n.
 
 SECT. III.] WARRANTY OF THE TIME OF SAILING. 427 
 
 the sails could not be hoisted. On the next day she was warped 
 further down, as far as she could be taken by warping, and sailed 
 on the day following, the wind having become favorable. The 
 claim for a loss came before the Court of Exchequer, where Lord 
 Lyndhurst, C. B., said, that, if the master proceeded down the 
 river " with the bona fide intention of placing the vessel in a 
 more favorable situation in regard to the prosecution of the 
 voyage," it was a compliance with the warranty ; but not so, "if 
 merely to comply with the letter of the warranty." ^ And on the 
 case, after a new trial, coming on error before the Exchequer 
 Chamber, Lord Denman said : " Considering that there was no 
 distinct point of commencement pointed out in this policy, we 
 think that the vessel was in the prosecution of the voyage" on 
 the 15th, the jury having found, on the new trial, that she was 
 warped down the river to be in a better position for the prosecu- 
 tion of the voyage, according to the distinction made by Lord 
 Lyndhurst.^ 
 
 The preceding cases will not, I think, all concur in any one 
 general proposition, and that which seems to come nearest to 
 reconciling them with each other is, that. 
 
 If the risk lias previously commenced under the policy, and the 
 vessel is loholly ready to depart by the time warranted, so far as 
 the fitting oat, loading, manning, and clearing out, and all other 
 preparations and preliminaries to the actual departure, depending 
 upon the assured, are fully completed, and nothing hinders her 
 sailing but some peril insured against by the policy, or which, if 
 it had occurred at any subsequent stage of the voyage would not 
 have discharged the underwriters, the warranty to sail is complied 
 loith, unless a different construction is expressly indicated by the 
 policy. Some of the preceding cases come distinctly within this 
 proposition. 
 
 But if the risk is to commence only at the sailing of the ship, 
 and the assured is responsible for, and the underwriter free from, 
 all preceding risks, perils, and losses, then the warranty is not 
 complied ivith unless she actually sails loithin the time warranted. 
 
 774. A warranty not to sail from a certain coast, district, island, 
 
 1 Cockran r. Fisher, 2 Crompt. & M. R. Exch. 809; 5 Tyrw. Exch. 496; 
 Exch. 581 ; 4 Tyrw. Exch. 424. and see Pittegrew v. Pringle, 3 Barnew. 
 
 2 Coukran v. Fisher, 1 Ciompt. M. & & Ad. 514, stated supra, No, 772.
 
 428 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX, 
 
 or place before a certain time, is not violated by previously sailing 
 from, one port to another of the coast or district specified before the 
 time : 
 
 As in case of warranty not to sail from Jamaica, and, prior tc 
 the day named, sailing to a port to join convoy. ^ 
 
 775. The warranty to sail from a coast or district on or before 
 a certain day, requires sailing" from the last port of loading;, within 
 the time.'^ 
 
 But insurance from M., with liberty to touch at G., warranted 
 to sail after the 12th, was ruled by Mr. Justice BuUer not to have 
 been complied with by sailing from the latter after that day.^ 
 
 776. Where the insurance is from an inland port, with ivar- 
 ranty to sail by a certain time, the vessel must have its cargo and 
 crew on board, and its clearance, and be ready to proceed on the 
 voyage ivithout further delay at any places that can be considered 
 parts or branches of, or appendages to, the port named, and 
 auxiliary to its navigation, though this may require dropping 
 down a river, or navigating inland waters, to a considerable 
 distance. 
 
 It has been maintained, that the port of London extends to 
 Gravesend, and that a vessel has not sailed thence until her de- 
 parture from Gravesend, since vessels obtain their final clearances 
 at Gravesend, and goods are not entitled to debenture until after 
 the cocket, which is the last paper of clearance, is obtained at 
 that place.'^ Thus where, on a license for the exportation of 
 goods from the port of London before the 10th, the vessel cleared 
 at London on the 9th, and at Gravesend on the 12th, the court 
 held that this was not an exportation within the terms of the 
 license.^ 
 
 A vessel was insured from Savarinah, and warranted to have 
 " sailed early in October." She had cleared at the custom-house 
 on the 15th of September, and dropped down the river about 
 three miles to Five Fathom Hole, and afterwards about eleven 
 miles to Cockspur, at both which places vessels of heavy 
 
 1 Cruikshank v. Jansen, 2 Taunt. ^ Park, Ins. 497. 
 
 301. See Vezian v. Grant, Park, 485. 5 Williams v. Marshall, 2 Marsh. 92 J 
 
 2 Wright V. Shiffner, 11 East, 515 ; 1 Moore, 162; 6 Taunt. 390; 7 Taunt. 
 2 Canipb. 24 7. 4G8. 
 
 3 Veziau v. Grant, Park, 485.
 
 SECT. III.] "WARRANTY OF THE TIME OF SAILING. 429 
 
 burden finish their loading. She remained for some time at 
 Cockspur, waiting for the recovery of the captain, who was 
 sick on shore, and she finally sailed from that place on the 
 1st of October. Chief Justice Kent said : " The voyage did 
 not commence till the vessel left Cockspur. She left the port 
 of Savannah for a temporary purpose, distinct from the object 
 of the voyage." ^ 
 
 A policy was made on goods and freight, at and from Pont- 
 Neuf, on the river St. Lawrence, to London, with a warranty 
 " to sail on or before the 28th of October." Pont-Neuf is 
 about thirty miles above Quebec. It has no custom-house, 
 and vessels going to sea from that place clear at Quebec. On 
 the 26th of October the vessel, under the command of the 
 mate, with a sufficient crew for the river navigation, but not 
 for the voyage, dropped down from Pont-Neuf, and reached 
 Quebec on the evening of the 28th. The captain had gone 
 down to Quebec before, to get his papers at the custom-house. 
 The crew was completed at Quebec, and on the 29th the 
 captain obtained his clearance. He sailed on the 30lh, not 
 having been able to obtain a pilot on the preceding day. Lord 
 Ellenborough : " The ship's dropping down to Quebec, w'ithout 
 her complement of men, showed that that was only prepara- 
 tory to the voyage. ' Warranty to sail on such a day,' must 
 mean when the ship could get her clearances, and sail equipped 
 for the voyage." ^ 
 
 777. A ivarrantjj to " depart " from a port, means to leave it. 
 not mcrelij to g-et under ivai/ ivil/iout leaving it. 
 
 Insurance was made on a ship at and from Memel to England, 
 " warranted to depart on or before the 15th." The vessel, with 
 her clearances and cargo on board, and being completely ready 
 for the voyage, hove up her anchor and got under way on the 
 9th, with the intention of proceeding. Before she had been 
 half an hour under way, the weather changed, and she was 
 obliged to come to anchor at the Half, or river mouth, within 
 the distance of half a mile from the sea, where she lay, with 
 above thirty other ships, until the first opportunity for sailing, 
 which was on the 21st. Gibbs, C. J. : " If this warranty had 
 
 1 Dennis v. Ludlow, 2 Caines, N. Y. 2 Ri^dale v. Xewnbaui, 3 Maule & S. 
 111. 456.
 
 430 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IS 
 
 been that the vessel should sail on or before the 15th, I shoub 
 have thought that she had sailed. The warranty to sail mean 
 that she shall commence her voyage. The decisions hitherti 
 have been, that when a vessel got under way the warranty wa 
 complied with. But I think the word 'depart' must mean i 
 departure from the port of Memel." ^ 
 
 778. Insurance from a certain port " warranted in port " on i 
 certain daij, means in the port at which the risk commences. 
 
 It was so ruled by Lord Tenterden under a policy on a shi] 
 at and from Hamburg, the ship being on the day named at Cux 
 haven, in the territory of Hamburg, ninety miles below, and no 
 considered by Lord Tenterden to be a part of that port. Ni 
 clearance is necessary there.''^ 
 
 779. Insurance from a port " where a vessel now is,''^ means tha 
 she is there at the date of the insurance. 
 
 It was so held by McCoun, Vice-Chancellor, in New York, oi 
 a bill to enforce an agreement to insure the profits of a cargi 
 at and from Gibraltar, which had, in fact, together with th 
 vessel, been there destroyed by fire before the date of agree 
 ment. The applicant insisted on his right to a policy, " los 
 or not lost." ^ 
 
 SECTION IV. AVARRANTY OF CONVOY. 
 
 780. Another express warranty that frequently appears in th^ 
 jurisprudence on English policies is that of convoy. There ar 
 divers acts of Parliament making provisions on this subject. Ii 
 the United States no similar standing regulation has to m; 
 knowledge hitherto been made, and as convoy has rarely beei 
 provided by government, and has been in very little use, thi 
 warranty does not appear in American policies, and should i 
 hereafter be introduced, it will probably be under laws an( 
 usages different from those of Great Britain. 
 
 1 Moir V. lloyal Exch. Ass. Co. 1 Scott, 4 Taunt. 660, and Dalgleish t 
 Marsh. 576 ; 6 Taunt. 241 ; 3 Maule. Brooks, 15 East, 295. 
 
 & S. 461 ; 4 Campb. 84. 3 Callaghan v. Atlantic Ins. Co. 
 
 2 Colby V. Hunter, 3 Carr. & P. 7; Edw. Ch. N. Y. 64. 
 1 Mood. & M. 81 ; and see Keyser v.
 
 SECT, v.] NEUTRAL PROPERTY. — OWNERSHIP. 431 
 
 This warranty is complied with by taking such convoy as is 
 provided by the government for vessels bound on the voyage in- 
 sured, and, if convoy is usually furnished for only a part of the 
 voyage, it is no breach of the warranty to perform the remainder 
 without any convoy .^ 
 
 781. The vessel must not only sail with the convoy,^ but the 
 captain must also, either before, or at the time of sailing, take 
 sailing' orders, or directions as to keeping with the convoy, 
 obeying signals, and the like, from the commander of the 
 convoy, except, perhaps, where he is unavoidably prevented, 
 without any fault on his part, from receiving such orders, in 
 which case he must take the earliest opportunity of obtaining 
 them.'^ 
 
 782. If the vessel cannot sail fast enough to keep icith the con- 
 V01J, or is parted by a storm or other inevitable accident, it is not 
 a breach of the warranty^ 
 
 SECTION V. AVARRANTY OF NEUTRAL PROPERTY, ITS FORM, IM- 
 PORT, AND CONSTRUCTION. OWNERSHIP. 
 
 783. A warranty that the ship or goods are neutral, or neutral 
 property, is an engagement on the part of the assured, that it is 
 oivncd by persons resident in a country at peace when the risk 
 begins, and who have the commercial character of subjects of such 
 country, and that it shall be accompanied with such documents, 
 and shall be so managed and conducted by the assured and their 
 
 1 Bond V. Gonsales, 2 Salk. 445 ; 2 Taylor v. Woodness, Park, 510. 
 
 Smith t'. TJeadshaw, Park, 510; Ilib- 3 Webb t\ Thompson, 1 Bos. & P 5 ; 
 
 bert r. Piiron, 3 Doiigl. 224 ; Gordon y. Yictorin v. Cleeve, 2 Strange, 1250; 
 
 Morley, 2 Strange, 12G5 ; LetliuHer's Anderson v. Pitcher, 2 Bos. & P. 164; 
 
 case, 2 Salk. 443; D'Eguino v. Be- 3 Esp. 124; Waltham v. Thompson, 1 
 
 wieke, 2 li. Blackst. 551 ; Audlt-y v. Marsh. 376; Yerdon (cited Yeedon in 
 
 Durt", 2 Bo?. & P. Ill; Everard v. Abbott, Ship. p. 234; v. Wilmot, 3 
 
 Ilollingsworth, 2 Bos. & P. Ill, n.; Dougl. 74. 
 
 CampbelU.Bourdieu, 2 Strange, r2«5; 4 ]\lanning v. Gist, Marsh. 367; 
 
 De Garey r. Clagaet, Park, 511; War- Simond v. Boydeil, Dougl. 255; Jef- 
 
 wick V. Scott, 4 Campb. G'2; Lilly i'. feries v. Legendra, 4 Mod. 58 ; 2 Salk. 
 
 Ewer, 1 Dougl. 72 ; Morrice v. Dillon, 443 ; Laing v. Glover, 5 Taunt. 49. 
 2 Selw. N. P. 992.
 
 432 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 agents, as to be entitled, as far as depends on them, to all the 
 protection and privileges of property belonging to the subjects of 
 such country. 
 
 And so a ivarranty that the property is Dutch or American, or 
 of any particular national character, is an engagement that it is 
 owned by persons having' the commercial character of Tiuichvcxen 
 or Americans, or of the subjects of such other nation, and that it 
 shall be so documented, and so conducted by the assured and 
 their agents, as not to forfeit, as far as depends on them, any of 
 the advantages to which the property of the subjects of such 
 nation is entitled. 
 
 If the property insured is warranted to be American, at a time 
 when the United States are at peace, it is precisely the same as 
 a warranty of neutrality, and these two forms of warranting are 
 used indifferently for the same purpose. 
 
 784. This warranty is, that the subject is neutral at the com- 
 mencement of the risk, and that it shall continue to be neutral 
 so far as depends upon the assured, or he is responsible. 
 
 If a declaration of war changes the character of the subject 
 from neutral to belligerent, after the policy is made, the warranty 
 is not thereby forfeited.^ 
 
 785. A statement of the fact that the property is neutral, whether 
 incidentally or directly, whether as a part of the description of 
 the property or in the form of warranting, will equally constitute 
 a ivarranty? 
 
 786. So the ivarranty of a fact necessarily implying the neutral 
 or national character of the property, will have the same con- 
 struction as a formal and direct warranty to this effect. Where 
 a policy effected in the United States contained the following 
 note: " N. B. The vessel sails under a sea-letter;" it was held 
 to be a warranty of American property.^ 
 
 787. It has already appeared* that the national character of 
 any person, ior all commercial ^ViX^o?<es,, depends upon his domi- 
 cile, and he is taken to have the commercial character of the 
 nation where he has his residence.^ What has been said in 
 
 1 Eden v. Parkinson, Dougl. 732; 3 Sleght v. Rhinelander, 1 Johns. 
 Tyson v. Gurney, 3 Term, 47 7; Sa- N. Y. 192. 
 
 loucci V. Johnson, Park, 8th ed. 716. ■* Supra, c. 2, s. 3. 
 
 2 See the cases passim. 5 Ibid.
 
 SECT, v.] NEUTRAL PROPERTY. — OWNERSHIP. 433 
 
 regard to national character is applicable to the present subject, 
 but need not be repeated. If property be insured as belonging 
 to the subjects of any particular country, as Hamburghers, which 
 is owned by the subjects of another, as Frenchmen,^ or if it be 
 warranted to belong to neutrals Avhen it is owned by belligerents, 
 the insurers are not bound by their subscription. 
 
 788. Belligerent oivnership of a part of the property insured, at 
 the outset, will defeat the policy as to the whole? 
 
 789. So far as ownership is concerned, the warranty of neu- 
 trality is applicable only to the interest insured. 
 
 Where the assured, being neutrals, were part-owners of goods, 
 the other part-owner being a belligerent, and the policy was 
 intended to cover only the interest of the neutral part-owners, 
 Chief Justice Marshall said : " The assured are not understood 
 to warrant that the whole cargo is neutral, but that the interest 
 insured is neutral." ^ 
 
 790. Property held in trust by a neutral as collateral security 
 for a debt due to a belligerent, or to be used and managed for his 
 benefd, has a belligerent character. 
 
 A vessel warranted American had been conveyed by John 
 Bazing, an American, to Murray and Hart, Americans also, by a 
 bill of sale absolute in its terms, but in fact in trust for Nathaniel 
 Bailey, of Jamaica, a British subject and belligerent, as security 
 for a debt due to him from Bazing ; it was held that the war- 
 ranty was not complied with. Mr. Justice Radcliff said : " A 
 warranty of neutrality requires that the property should be wholly 
 neutral. If one of the belligerents had an interest, whether par- 
 tial or entire, the risk was thereby increased, and the warranty 
 not complied with." ^ 
 
 Where insurance was on cargo, freight, and profits, warranted 
 " American property," the warranty was held to apply to' the 
 freight and profits, as well as to the merchandise.^ 
 
 1 Skin. 327. 4 Murray v. United Ins. Co. 2 Johns. 
 
 2 Calbieath v. Grade, 1 Wash. C. C. N. Y. 1G8. 
 
 219; and see Goold v. United Ins. Co. 5 Bayard v. Mass. Fire & Mar. Ins. 
 
 2 Caines, N. Y. 73, infra. No. 798. Co. 4 Mas. C C. 256 ; and see The 
 
 3 Livingston r. Maryland Ins. Co. 6 Vigilantia, 1 C. Rob. Adm. 1 ; The 
 Cranch, 274. Embdon, 1 id. 16; The Vrow Hermina, 
 
 1 id. 163; The Endraught, 1 id. 19. 
 
 37
 
 434 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 791. Goods which a nevtral has, during- vmr, agreed to sell to a 
 belligerent, and deliver in the country of the latter, have been held 
 to be belligerent property while in transit ; and if so, they would 
 not answer to the warranty of neutral property.^ The reason 
 given is, that the whole commerce of the belligerents, sustained 
 by their contracts, might thus be carried on through neutrals; 
 and the stronger belligerent naval power would thus be deprived 
 of part of the advantage of its naval superiority. On the other 
 hand, the neutral objects to being deprived of a kind of trade 
 which is not of a character recognized by the law of nations to 
 be contraband of war. There are, accordingly, not wanting con- 
 trary decisions? 
 
 The discriminating circumstance is, that the price of the goods 
 is at the risk of the vendee from the time of making the con- 
 tract; for it is not a matter of doubt that the neutral may take 
 his own goods to the market of either belligerent for sale at his 
 own risk as to the state of the markets, as well as in all other 
 respects. This seems to be a narrow basis for the doctrine, of 
 which it is not unreasonable to say, at least, that it ought to be 
 limited to cases where it appears that the contract is made for the 
 mere purpose of screening the goods from capture, and this limit- 
 ation allows a large belligerent right. 
 
 Sir William Scott even put this case upon a level with that of 
 disguising belligerent goods as neutral, and not only condemned 
 the goods shipped under such a contract, but also the other goods 
 of the same shipper.^ If it be conceded that such adjudications 
 are founded in the law of nations, then the shipper thus forfeits 
 his warranty of neutrality of such other goods. 
 
 792. Goods shipped by a neutral under a contract ivith a bellig- 
 erent during peace, but in contemplation of ivar, to be delivered at 
 
 1 The Vrow Margaretha, 1 C. Hob. N. Y. 1 ; De Wolf v. N. Y. Firemen's 
 Adm. 3S6; The Atlas, 3 id. 299; The Ins Co. 20 id. 214; 2 Cow. N. Y. 56. 
 Sally, 3 id. 300, n. ; The Anna Catha- 3 The Staadt Embden, 1 C. Rob. 
 rina, 4 id. 107; The Jan Frederick, 5 Adm. 26; The Jonge Tobias, 1 id. 
 id. 128; 1 Kent, Coram. 86, 5th ed.; The 329; The Sarah Christina, 1 id. 237; 
 Ann Green, 1 Gall. C. C. 274 ; The The Ringende Jacob, 1 id. 89 ; The 
 Francis, 1 id. 450. See 1 Duer, Mar. Edward, 4 id. 68 ; The Ranger, 6 id. 
 Ins. 423, 428. 125 ; The Mercurius, 1 id. 288. 
 
 2 See Ludlow v. Bowne, 1 Johns.
 
 SECT, v.] NEUTRAL PROPERTY. OWNERSHIP. 435 
 
 his risk to the vendee in the country of the latter, are pid vpon the 
 same footing as in case of such contract made during ivar.^ 
 
 793. Where an agreement is made during peace, and without 
 any contemplation of war, for the sale of goods, to be delivered 
 by the vendor residing in OLie country, to a foreign vendee, resid- 
 ing in another, and before shipment of the goods, ivar breaks out 
 between the country of the vendee and a third, whereby the ship- 
 ment icould be contraband, the shipment after notice of the war 
 will not answer to a warranty of neutrality? 
 
 794. Goods shipped by a belligerent in compliance with an 
 order, or without an order, to be delivered to a neutral only on 
 conditions and contingencies, other than the general right to stop 
 in transitu, retain their belligerent character during the transit, 
 and do not accordingly correspond to a warranty of neutral own- 
 ership? 
 
 795. But where goods are shipped by a belligerent conditionally 
 to become those of a neutral, and the latter complies with the con- 
 dition before a capture, they thereby become from that time neutral 
 property.* 
 
 796. If a shipper has despatched goods during peace, and while 
 they are in transmit, by the occurrence of war, he becomes a bellig- 
 erent, he cannot screen them from capture by assigning them to a 
 neutral for that purpose, and accordingly they will not thereby be 
 made to correspond to a warranty of neutrality.^ 
 
 797. The same rule will apply where goods are so assigned in 
 anticipation of a war? 
 
 Sir William Scott condemned as enemy property goods con- 
 signed to a Dutch consignee, at the Cape of Good Hope, then 
 
 1 The Packet de Bilboa, 2 C. Rob. 4 The Cousine Marianne, 1 Edw. 
 
 Adm. 133 ; The Anna Catharina, 2 id. Adm. 346. 
 
 112. 5 The Vrow IMaraaretlia, 1 C Rob. 
 
 ^ See The Packet de Bilboa, 2 C. Adm. 336; The CarlWalter, 4 id. 207 ; 
 
 Rob. Adni. 134 ; The Anna Catliarina, Tlie Jan Frederick, 5 id. 128. Whether 
 
 4 id. 107, 113, n. such is the object of the transfer is to 
 
 3 The Aurora, 4 C. Rob. Adm. 218 ; be gathered from the circumstances. 
 
 The Josepliine, 4 id. 25 ; The CaroHna, 6 The Jan Frederick, 2 C. Rob. 
 
 1 id. 30.-) ; The Frances, 8 Crancli, Z?,b ; Adm. 128 ; Tlie Francis, 1 Gall. C. C. 
 
 The Venus, 8 id. 253 ; Tlie Merrimack, 445 ; 8 Cranch, 335. 9 id. 289. 
 8 id. 31 7. See 1 Duer, Mar. Ins. 427, 
 &c.
 
 436 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 a colony of the enemy ; but before the capture of the goods, 
 the colony had been captured, and the inhabitants had sworn 
 allegiance to Great Britain. That is, though the owner changes 
 his national character during the transit of the goods, the national 
 character of his property in transit does not change.^ 
 
 798. Where the warraniy of neutrality in a policy is forfeited 
 hy the act of the assured, as to part of the subject insured, it is a 
 forfeiture of the entire policy. 
 
 As where, after capture and before condemnation, the assured 
 assigned half of his interest to a belligerent assignee, though for 
 the purpose of preventing its condemnation.^ 
 
 799. The warranty is, that the property is neutral at the be- 
 ginning of the risk, and shall continue to be so, as far as this 
 depends on the assured or his agents. But if he becomes a 
 belligerent, or the property assumes a belligerent character im- 
 mediately after the risk commences by an act of his government, 
 or that of any other government, it is not a breach of the war- 
 ranty. This is one of the risks taken by the insurers.^ 
 
 SECTION VI. ORIGIN OF PROPERTY WARRANTED NEUTRAL. 
 
 800. Some property is impressed with a belligerent character 
 by its origin. Jurisprudence has never gone the length of main- 
 taining that the produce of the opposite belligerent country, or 
 its colonies, has a lasting belligerent character on account of 
 its origin independently of the ownership, but it has been held 
 that the produce of a plantation owned by a neutral in a colony 
 of a belligerent, retains its belligerent character while in tran- 
 situ on any maritime destination, whether to a neutral country 
 or a belligerent one, v/hile it remains the property of such 
 planter.^ 
 
 I The Dunckbaaf Africaan, 1 C.Rob, quest, merely because it happens to be 
 
 Adm. 107. But he rested bis decision afloat. See I Duer, Mar. Ins. 437. 
 
 wholly upon a previous one of the Lords 2 Goold v. Universal Ins. Co. 2 Gaines, 
 
 of the Privy Council Negotie en Zee- N. Y. 73. 
 
 vaart, stated by him, id. Ill, and appar- 3 Eden v. Parkinson, Dougl. 732; 
 
 ently against his own opinion ; as it well Garrels r. Kensington, 8 Term, 230; 
 
 might be, for it is surely a very singular Saloueci v. Johnson, 4 Dougl. 224. 
 
 doctrine that confiscates the projjcrty of 4 The Phoenix, 5 C. Rob. Adm. 20 ; 
 
 one who has become a subject by con- The Maastrom and Juff'row Catharma,
 
 SECT. Vri.] DOCUMENTS, PROOFS, ETC., OF NEUTRAL PROPERTY. 437 
 
 It does not appear why the same rule is not as applicable to 
 the produce of the home territory of the belligerent, though it 
 has not. that I am aware of, been so applied. 
 
 801. The produce or other property derived from a belligerent 
 country or its dependencies during war, usually becomes neutral 
 on its coming to be absolutely owned by a neutral, and being 
 entirely disengaged from belligerent trade, protection, and use. 
 Still its origin in a belligerent country is of weight, as the ground 
 of presumption of iis belligerent character, and of imposing upon 
 the neutral claimant the burden of more decided proof of its 
 being neutral, as will appear subsequently. 
 
 SECTION VII. DOCUMENTS, PROOFS, AND INSIGNIA, OF NEUTRAL 
 
 PROPERTY. 
 
 802. Under a warranty of the neutrality ^ the ship or goods must 
 not only be owned by neutrals, and not be of a belligerent char- 
 acter in themselves, but they must also be accompanied by svffi- 
 cient tokens ami documents to show that they are entitled to be 
 respected as neutral property. 
 
 What evidence is Requisite in this respect depends upon the 
 law of nations, and the laws and treaties of the country to which 
 the ship and the owner of the property belong. It cannot be 
 said precisely what documents will be sufficient to answer the 
 warranty, since the municipal regulations and treaties of a coun- 
 try are liable to change. The warranty requires, in general, that 
 the ship or cargo should be accompanied with unequivocal evi- 
 dence of its national character.^ 
 
 803. Tlie bill of sale of the ship inust correspond to the war- 
 ranty? 
 
 804. The flag is the most obvious badge of the national char- 
 acter of the ship, and by the law of nations the ship is liable to 
 
 5 ill. 21 ; The Vrow Anna Catharina, 5 Goix v. Low, 1 Johns. Cas. N. Y. 341 ; 
 
 id. 161. 3 Douiil. 126 : Barzillay v. Lewis, Park. 
 
 1 Coolidge V. N. Y. Firemen's Ins. 526 ; Blagge v. New Y'oik Ins. Co. 1 
 
 Co. 14 Johns. N. l". 308; Higgins v. Caines, N. Y. 549. 
 
 Livermore, 14 Mass. 106: Barker v. 2 The San Jose Indiano, 2 Gall. C C. 
 
 Phoenix Ins. Co. 8 Johns. X. Y. 307 ; 268. 
 37*
 
 438 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 be considered as belonging to the nation indicated by its flag.^ 
 A ship warranted neutral must therefore bear no other than the 
 flag of a nation that was neutral at the commencement of the 
 risk, and one warranted of any particular national character must 
 bear no other flag than that of the nation to which the warranty 
 relates. 
 
 805. A vessel ivarranted neutral must have the usual certificate 
 of its national character. 
 
 The sea-letter or pass is one of the usual documents for this 
 purpose; which is a certificate granted, directly or indirectly, by 
 the supreme authority of a nation, declaring that the ship sails 
 under the protection of such nation, and expressly or by impli- 
 cation giving notice to all people that she is to be so regarded. 
 The national character of the vessel is therefore explicitly avowed 
 by the sea-letter, and it is not permitted to disown the character 
 thus formally assumed.- 
 
 In a policy on goods from New York to New Orleans, the 
 assured warranted that " the vessel sailed under a sea-letter." 
 The vessel had on board a certificate of the collector and naval 
 officer of the port of New York, stating that the assured had 
 made oath that the vessel was wholly owned by himself and 
 other American citizens. The assured offered to prove that this 
 certificate was commonly understood and known in New York 
 as a sea-letter. On behalf of the underwriters it was insisted, 
 that the laws and treaties of the United States defined a sea- 
 letter to be a paper under the seal of the United States. The 
 form of this paper had been prescribed in the treaty of 1778 with 
 France, of 1782 with the Netherlands, and of 1795 with Spain, 
 where it is called a sea-letter. 
 
 By an act of Congress of 1796,^ the Secretary of State was 
 authorized to prepare the form of a passport. Under this law 
 the same form was adopted which had been agreed upon in the 
 above treaties. By another act of Congress,* it was provided 
 
 1 The Success, 1 Dods. Adm. 131 ; 36, for the form agreed upon by the 
 
 The Vrow Ehzabeth, 5 C. Rob. Adm. 2. United States and Holland, in 1782; 
 
 a The Vigihintia, 1 C. Rob. Adm. 1 ; and p. 58, for that agreed upon by 
 
 The Vreede Soholtys, 5 id. 5, n. See Great Britain and Russia, in 1801. 
 
 6 Wheat. App. 12, for what is consid- ^ Laws U. S. Voh II. c. 339. 
 
 eifd to be a sea-letter in France ; p. ^ Laws U. S. Vol. IIL c. 329.
 
 SECT. VII.] DOCUMENTS, PROOFS, ETC., OP NEUTRAL PROPERTY. 439 
 
 that every unregistered vessel owned by citizens of the United 
 States, and sailing with a sea-letter, should, at the request of the 
 master, be furnished by the collector with a passport of the form 
 adopted in pursuance of the preceding act. This last act makes 
 a distinction between a sea-letter and a passport. The court, 
 however, understood a passport and sea-letter to be the same 
 document, the form of which they held to be so definitely settled 
 by the treaties above mentioned, and the act of 1796, that no 
 parol evidence could be admitted to show that any other docu- 
 ment was to be understood as a sea-letter within the warranty.^ 
 
 The Court of Errors, however, reversed this decision, and per- 
 mitted the parties to prove what was understood in New York 
 by the term "sea-letter ;" and it appeared by the evidence, to be 
 the certificate of the collector and naval officer.''^ 
 
 It cannot be requisite that a vessel warranted neutral, or of 
 any particular national character, must in all cases, to comply 
 with the warranty, have a sea-letter corresponding to it ; since it 
 depends upon the government of a country to give such letter. 
 The warranty can only require that the vessel shall have such 
 documents to show its national character as the government will 
 furnish, or the owners can procure. But as it is a very general 
 practice of governments to provide, in time of war, for granting 
 sea-letters to vessels, the warranty will, in general, be equivalent 
 to a stipulation that the vessel shall be supplied with this docu- 
 ment. And where the government would furnish it if applied 
 for, and it is usual to have it on board, it is a breach of the war- 
 ranty to be without it. 
 
 806. The register is an important document under this vmrranty, 
 as it shows to whom and to what port a vessel belongs, and is 
 certified by some officer of the customs, and accordingly bears 
 with it some stamp of public authority. 
 
 This document and the sea-letter constitute the most material 
 proof of the national character of the ship. But it depends on 
 the laws, and usages, and treaties of a country, whether either of 
 them is absolutely necessary under a warranty of national char- 
 acter. Where a vessel warranted American had a sea-letter, but 
 
 1 Sk'ght i;. Rhinelauder, 1 Johns. 2 Sleght v. Hartshorn, 2 Johns. N. Y. 
 N.Y.I 92. 531.
 
 440 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 no register, this was held to be a compliance with the war- 
 ranty. ^ 
 
 Mr. Justice Thompson, of New York, remarks, that the regis- 
 ter of the ship is the only document necessary to be on board, in 
 order to comply with the warranty of national character, in time 
 of universal peace.^ 
 
 807. The bill of sale, charter-party, instructions to the 7naster, 
 shipping-paper, muster-roll or role (Tequipage, and log-book, must 
 show, as far as they exhibit any proofs, that the vessel is of the 
 national character warranted. 
 
 808. Under this warranty, the cargo must be accompanied by 
 proof of its national character ; the invoices, bills of lading, the 
 letters relating to the goods, and the certificates of consids or other 
 officers, must all be consistent with, and confirm, the warranty.^ 
 
 Belligerent nations have not a right to prescribe to neutrals by 
 what vouchers their title to their property shall be authenticated. 
 But the right of throwing the burden of proof upon the neutral 
 is conceded to them by general usage, or, in other words, by the 
 law of nations. By declaring war against each other, they seem, 
 by general consent, to acquire the right of demanding of neutrals 
 the pioof that their property on the ocean is entitled to exemp- 
 tion from capture. Under this warranty, therefore, the property 
 must be accompanied by documents of some description, and 
 sufficiently authenticated, to prove beyond a reasonable doubt 
 that the property is of the national character warranted. 
 
 809. If property insured, and warranted neutral, is documented, 
 and on capture claimed, as belligerent, the warranty is thereby 
 forfeited."^ 
 
 Chief Justice Marshall says: "that in general the concealment 
 of papers amounts to a breach of the 2varranti/ ; " ^ and carrying a 
 material paper written in sympathetic ink seems to be equivalent 
 to a concealment of papers.*" 
 
 Goods were insured from Baltimore to Bourdeaux, in 1806, 
 
 1 Barker v. Phojnix Ins. Co. 8 Johns. 4 Calbreath v. Gracie, 1 Wash. C. C. 
 N. Y. 307. 219. 
 
 2 Catlet V. Pacific Ins. Co. 1 Paine, 5 Livingston v. Maryland Ins. Co. 7 
 C. C. 594. Cranch, 536. 
 
 3 Griffith V. Ins. Co. of I^orth Amer- <5 Carrere v. Union Ins. Co. 2 Hall, 
 ica, 5 Binn. Penn. 464 ; SilTken t>. Lee, Law Jour. 197; 3 Ilarr. & J. Md. 
 5 Bos. & P. 484. 324.
 
 SECT. VII.] DOCUMENTS, PROOFS, ETC., OP NEUTRAL PROPERTY. 441 
 
 warranted American property. Some papers relating to a former 
 shipment were concealed in a cask on board, and those papers 
 were referred to in a letter written upon another in sympathetic 
 ink, and the papers were such as to throw a mystery over the 
 shipment, and raise a doubt as to its national character, though 
 they were subsequently explained to the court, by the assured, 
 consistently with the warranty. It was held, however, to be a 
 breach of the warranty.^ 
 
 If a cargo warranted neutral be accompanied with simulated 
 papers, giving it the appearance of being the property of bellig- 
 erents, though such papers are taken merely for the purpose of 
 evading the municipal regulations of trade of a belligerent, which 
 is held to be justifiable, yet the cargo is liable to be considered 
 by the other belligerent as of the assumed national character ; or 
 is in so great danger from this cause, that the use of such papers 
 is held to be a violation of the warranty of neutrality .^ 
 
 But if leave be given in the policy to carry simulated papers, 
 it is not a breach of the warranty to have them on board.^ And 
 Chief Justice Marshall says, that when the underwriters know, or 
 ought to know, that, by the usage of the trade, two sets of papers 
 are carried to protect the property, they impliedly consent to the 
 usage, and the set of papers which will protect the property when 
 its national character is called in question, is to be produced.* 
 
 810. If the master of a neutral ship covers belligerent property 
 on board as neutral, it is a forfeiture of the neutrality of the ship.^ 
 
 The disguising of belligerent goods by the master, even though 
 without the consent or knowledge of the ship-owner, has been 
 held to be a forfeiture of the neutrality of the part of the cargo 
 belonging to the ship-owner, the acts of the master in this respect 
 being held to be imputable to the ship-owner.^ 
 
 1 Carrcre v. Union Ins. Co. 3 Ilarr. 3 Bell v. Bromfield, 15 East, 364. 
 
 & J. Mtl. 324. 4 Livinjrston v. Maryland Ins. Co. 7 
 
 2 Horneyer v. Lushington, 15 East, Crancli, 5U6. 
 
 4G ; Oswell v. Vigne, id. 70; Blagge v. ^ Schwartz v. Ins. Co. of North 
 
 New York Ins. Co. 1 Caines, N. Y. 549. America, 3 Wash. C. C 117; 3 id. 
 
 Sir James INIansfield makes a query 276 ; Clarkson v. Philadelphia Ins. Co. 
 
 whether a neutral vessel may carry 1 Browne, Penn. 152. 
 
 simulated papers. Steel v. Lacy, 3 ^ Phoenix Ins. Co. v. Pratt, 2 Binn. 
 
 Taunt. 285. Mr. Park, p. 531, says Penn. 308. See also The Fortuna, 3 
 
 this query is answered by the above Wheat. 245. 
 cases in East.
 
 442 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 811. The forfeiture of neutrality by the ship-owner or captain^ 
 does not forfeit the neutral character of g'oods shipped by another 
 neutral, and duly documented as such. 
 
 812. Where goods are shipped in time of peace, and documented 
 as of another national character than their real one, but without 
 any reference to neutral or belligerent rights, or the breaking out 
 of a war, and the nation whose character is assumed becomes 
 party to a war, the property may be vindicated as neutral.^ 
 
 813. The law of nations in regard to what is to be considered 
 neutral property, and in regard to the conduct necessary to secure 
 it respect as such, is liable to be controlled by treaty, since nations 
 may substitute express rules for those implied obligations which 
 the general law imposes without any stipulation. And modifi- 
 cations of the law of nations in these respects have been made 
 in many dilFerent treaties.^ 
 
 In the treaty with France, 1778, it was stipulated, that, in case 
 of war, if the sea-letters of the vessels of the neutral party should 
 express " the place of habitation of the master," they should not 
 be molested by the other. The Mount Vernon, being insured in 
 England and warranted American, had a sea-letter running as 
 follows : " Permission has been granted to D., master of the ship 
 Mount Vernon, of Philadelphia, of the burden," &c. Lord Ellen- 
 borough said, the name of the town in the passport referred to 
 the ship, not to the master, and that the vessel, not being navi- 
 gated according to the treaty, had forfeited her neutrality, being 
 at least subject to detention by French cruisers.^ 
 
 SECTION VIII. WARRANTY OF NEUTRAL PROPERTY REQUIRES NEU- 
 TRAL TRADE, EMPLOYMENT, AND CONDUCT. 
 
 814. In case of property belonging to a partnership consisting 
 of neutral and belligerent members, so far as it is affected by the 
 
 1 The Vreede Scholtys, 5 C. Rob. powers ; Laws of U. S. Vol. I. ed. of 
 Adm. 5, n.; and see The Ann Green, 1815; Treaty of U. S. and France, 
 1 Gall. C. C. 274. 1778; Rich v. Parker, 7 Term, 705. 
 
 2 Answer to the Prussian Memorial, 3 Barinii; v. Christie, 5 East, 398. 
 Col. Jurid. Vol. I. p. 137. See treaties See also Baring v. Claggett, 3 Bos. & 
 of the United States with European P. 201, on the same facts. The case
 
 SECT. YIII.] NEUTRALITY OF TRADE AND CONDUCT. 443 
 
 ownership merely, the interest of the neutral partners is neutral, 
 and that of the belligerent partners is belligerent.^ 
 
 The locality of a house affects its trade. Tlie interest of a 
 neutral partner in a house of trade established in a belligerent 
 country is belligerent? 
 
 But the interest of the same neutral partner or partners in the 
 business of a commercial house in a neutral country will still be 
 neutral, notwithstanding such belligerent interest in another es- 
 tablishment.^ 
 
 815. Where the ship, goods, or any insurable interests of a neu- 
 tral, by their insignia, locality, employment in trade, or use, are 
 mixed up and identified with the property and interests of one of 
 the belligerents, the same are subject to be treated according to 
 their apparent character as enemy property by the otJier,^ and 
 accordingly icill not correspond to a warranty of its neutrality. 
 
 Property despatched to a neutral in pursuance of a contract 
 with a belligerent government, or employed by him in a trade 
 for which a privilege is given by a belligerent, does not answer 
 to a warranty of neutrality.-^ 
 
 The freight of a neutral vessel for carrying a belligerent cargo, 
 the vessel not being chargeable with unneutral conduct, is neu- 
 
 turns upon the vessel's not being enti- 2 Xhe Susa, 2 C. Rob. Adm. 1b\ ; The 
 
 tied to a register, from which Lord Al- Portland, 3 id. 41 ; and The Herman, 
 
 vanley and the other judges supposed 4 id. 228. See The San Jose Indiano, 
 
 she was not entitled to the privileges 2 Gall. C. C. 268 ; Societv, &c. v. 
 
 of an American vessel. Chief Justice Wheeler, 2 id. 105. 
 
 Kent supposes, 8 Johns. X. Y. 320, that 3 The Aiitonia Johanna, 1 Wheat. 
 
 Lord Alvanley did not know of any 159; The Indiana, 3 C. Kob. Adm. 44; 
 
 other act of Congress than that of 1792, The Herman, 4 id. 22S. 
 
 on this point, and seems to think that 4 The Princessa, 2 C. Rob. Adm. 49 ; 
 
 his opinion would have been different The Anna Catharina, 4 id. 107 ; The 
 
 bad he known of that of 1802, giving Rendsborg, 4 id. 121 ; The Vrow Anna 
 
 vessels not entitled to a re;iister, but Catharina, 5 id. 15 ; 2 \Vheat. App. 29; 
 
 owned by citizens of the United States, The Susa, 2 C. Rob. Adm, 251; The 
 
 all the advantages of national protec- Ann Green, 1 Gall, C. C. 274; The San 
 
 tion. See also Baring v. Royal E.\ch. Jose Indiano, 2 id. 268; The Phoenix 
 
 Ass. Co. 5 East, 99. 5 C. Rob. Adm. 20 ; The Carolina, 4 
 
 1 The Jacobus Johannas, before the id. 256 ; The Edward, 4 id. 68. 
 
 Lords of Appeal, 1785; The Ospray, o The Anna Catharina, 4 C. Rob. 
 
 before the same tribunal, 1795; both Adm, 107. 
 cited 1 C. Rob. Adm. 14 ; The Vigilan- 
 tia, 1 id. 1.
 
 444 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 tral, and is allowed in case of the capture and condemnation of 
 the cargo. ^ 
 
 816. Whether all the monopolized trade of the ports or territory 
 of a nation retained to its citizens during peace, is interdicted to 
 neutrals in time of war ? 
 
 There is a diversity of decisions by admiralty tribunals, and of 
 opinions of jurists and statesmen, as to the particular circum- 
 stances whereby the property of a resident in a neutral country 
 is liable to be treated as that of an enemy. 
 
 According to the opinion of Sir William Scott, and other Brit- 
 ish admiralty judges, the products of a belligerent country or its 
 colonies, acquired by a neutral in the place of their origin, to be 
 transported in the coasting or colonial trade of such country by 
 him on his own account and risk, are to be regarded by the other 
 belligerent during its transit as being enemy property, and liable 
 to capture and condemnation as such. 
 
 The American government, tribunals, and statesmen oppose 
 that doctrine. 
 
 The British tribunals allege in support of their position, that, 
 according to the general policy of nations, each country confines 
 its colonial and coasting trade to its own subjects, and it is only 
 when any country is exposed to capture by the naval forces of its 
 enemy, that it admits a neutral into such trade. They do not 
 pretend that the rights and extent of the trade of a neutral coun- 
 try with their enemy are to remain unaffected by the war, for, as 
 we have seen, it is curtailed at once of the whole trade that is 
 thus rendered contraband of war. 
 
 On the side of the neutral, it is urged that, as he is subject to 
 all the disadvantages and privations, he is justly entitled to all 
 the advantages, that are merely incidental and consequential to 
 a state of war between other nations ; that it is not possible to 
 say what privileges he might have had in the coasting or colonial 
 trade of either belligerent, if peace had continued, and therefore 
 the assumption that he would have still continued under the 
 same restrictions as before, is not well founded. 
 
 He insists that a cooperation with either belligerent in prose- 
 cuting the war is the only intercourse of which he is curtailed by 
 
 1 The Antonia Johanna, 1 Wheat. 159; and admiralty jurisprudence pas- 
 sim.
 
 SECT. VIII.] NEUTRALITY OF TRADE AND CONDUCT. 445 
 
 the law of nations, that is, that all species of trade, excepting 
 contraband, remain open and subject to be prosecuted by him in 
 the same manner as they might have been, the parties consent- 
 ing, had there been no war.i 
 
 The question is one that must be left to be settled by interna- 
 tional stipulations and mutual concessions., or the right of the 
 strongest; for in such a multifarious complexity of relations, 
 interests, and facts, it cannot be expected that general principles 
 can be brought to bear with sufficient force to reconcile the con- 
 flicting pretensions. 
 
 817. Produce of a colony of a belligerent country being once 
 exported to a neutral country, and there landed in the regular 
 course of trade, is agreed on all sides to have no longer a bellig- 
 erent character, on account of its origin, or on account of the 
 trade of the colony having been restricted to the citizens of the 
 belligerent country in time of peace. 
 
 Property being warranted Dutch, and taken on board at St. 
 Eustatia, it was suggested that a part of it had been brought 
 from French islands, then belligerent, and put on board of the 
 vessel from the boats in which it had been brought, without hav- 
 ing been landed at all at St. Eustatia. Lord Mansfield : " It is 
 now a settled point, that it is the same thing as if it had been 
 landed on the Dutch shore and put on board afterwards," in 
 which case he implies that there could be no doubt of its neu- 
 trality.^ 
 
 This construction seems to have been more liberal towards the 
 neutral character of the goods than some of the subsequent juris- 
 prudence in Great Britain. 
 
 If a vessel bringing produce from a belligerent colony merely 
 enters a neutral port without unloading, and proceeds thence 
 with its cargo to a subsequent destination, the passages previous 
 and subsequent to the entry at such neutral port are parts of one 
 
 1 See Mr. Monroe^s Letter to Lord Vasse v. Ball, 2 Dall. Penn. 270; Wait's 
 
 Mulgrave, September 23, 1805; and State Papers, 1806, and subsequently ; 
 
 Mr. Madison's Letter to Messrs. Mon- remarks of Story, J, in The Ann Green, 
 
 roe & Piiickney, May 11, 1806, cited 1 1 Gall. C. C. 274, at p. 289, 
 
 Duer, Ins, p. 701. See also Mr. Duer's 2 Berens v. Rucker, 1 "W, Blackst. 
 
 remarks, id. ; The Snip, before the Lords 313. • 
 of Appeal, cited 1 Wheat. App. 515; 
 VOL. I. 38
 
 446 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 voyage, and the cargo still retains the national character of the 
 place of its origin. 
 
 This doctrine is a corollary from that previously stated, namely, 
 that a belligerent nation cannot, during a war, change the national 
 character of its trade by any indulgence granted to neutrals, so 
 as to abridge the rights of the antagonist belligerents to make 
 prizes. This doctrine runs through the British admiralty juris- 
 prudence. 
 
 818. The public armed ships of a belligerent have a right to 
 bring to and search neutral merchant- vessels, that is, to go on 
 board of them and examine the ship's papers and those relating 
 to the cargo, and put questions to the captain or other officers 
 touching the neutral character of the property, and, in general, to 
 examine the property, the papers by which it is accompanied, 
 and the persons having charge of it, for the purpose of ascertain- 
 ing whether it is belligerent or neutral. 
 
 A resistance of search that is leg-ally demanded, is a breach of 
 the warranty of neutrality} 
 
 This right is sometimes conceded with reluctance by neutrals, 
 and as often enforced with rigor by belligerents. It has been ren- 
 dered so inconvenient, that many attempts have been made to 
 limit and regulate its exercise, particularly by Prussia, Holland, 
 and Sweden, about the middle of the last century ,2 and again 
 in 1780 by Russia and the other members of the Armed Neu- 
 trality. 
 
 819. Tlie secreting" or disguising of property by a neutral, for 
 the purpose of infringing upon, evading, or preventing the exer- 
 cise of, the rights of either belligerent as such, not only leaves the 
 ship, of which the national character is so falsified, or the other 
 property so secreted or disguised, exposed to seizure and condem- 
 nation, but also exposes the other property of the neutral, which 
 is implicated in the same attempt or adventure, to seizure and 
 
 1 M'Lellan v. Maine Fire & Mar. C. Rob. Adm. 340 ; Garrels v. Kensing- 
 
 1ns. Co. 12 Mass. 246; Snowdon v. ton, 8 Term, 230 ; The Marianna Flora, 
 
 Phoenix Ins, Co, 3 Binn. Penn. 457; U Wheat. 43; The liomeo, 6 C. Kob. 
 
 Robinson v. Jones, 8 Mass. 536 ; The Adm. 351. 
 
 Mars, 6 C. Rob. Adm. 79 ; The Penn- 2 Collect, Jurid. Vol. I. p. 144 ; An- 
 
 sylvania, 1 Act. Prize Cas. 33 ; The swer to the Prussian Memorial, 1 C. 
 
 Pizarro, 2 Wheat. 227; The Maria, 1 Rob. Adm. 305, n.
 
 SECT. VIII.] NEUTRALITY' OF TRADE AND CONDUCT. 447 
 
 condemnation by the belligerent, and is a breach of the warranty 
 of neutrality in reference to the latter no less than the former.^ 
 
 As, by resisting search, or attempt to rescue;*'^ shipping a 
 cargo in a public armed belligerent ship,^ or sailing under con- 
 voy of a belligerent ; * unless it is for the purpose of avoiding a 
 seizure in outrageous violation of the law of nations by the 
 antagonist belligerent, as in the case of Bonaparte's Milan De- 
 cree,^ which resistance rests upon the right of defence of grossly 
 illegal violence. 
 
 A warranty that a vessel is neutral is not forfeited merely by 
 the supercargo being a belligerent subject. 
 
 So held of a neutral Portuguese ship, having an English super- 
 cargo, England being (1781) at war with France.^ 
 
 820. It is not easy to say precisely what acts may be lawfully 
 done in the exercise of the right of search. Hubner thinks it 
 should be confined to the examination of the papers.'^ But it has 
 not been so limited in practice ; and in considering the liability of 
 the captors to pay costs and damages for the abuse of this right, 
 courts have permitted them, in justification of their conduct in 
 detaining neutral vessels, to give evidence of every circumstance 
 that came to their knowledge, tending to throw suspicion upon 
 the national character of the property. 
 
 The principle acted upon seems to be, that the belligerent 
 cruiser may^ when its character and commission are made known, 
 take every reasonable means, without using- any unnecessary force 
 or violence, to ascertain the national character of the vessel and 
 cargo, and if any circumstance, ixom whatever source a knowledge 
 of it may be obtained, gives a reasonable ground to doubt the 
 neutral character of the property, it will justify a detention of the 
 vessel. But where the manner of making search is regulated by 
 treaty, as it has been in some of the treaties of the United States 
 with foreign powers, the express stipulations of the parties will 
 determine what is a legal mode of search. 
 
 1 The Eliza & Katy, 6 C. Rob. Adin. Gall. C. C. 594 ; The Sampson, 1 C. 
 
 185. 2 Ut supra. Rob. Adm. 346. 
 
 3 The Fanny, 1 Dods. Ailm. 443. 5 Snowdon v. Phoenix Ins. Co. 3 
 
 4 The Maria, 1 C. Rob. Adm. 340; Binn. Tenn. 457. 
 
 The Joseph, 1 Gall. C. C. 545 ; 8 6 Mayne v. Walter, 3 Dougl. 79. 
 Cranch, 451; The Julia, id. 181 ; 1 l Ilubner, chap. 2.
 
 448 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 821. It seems to be implied, in many cases, that neutrals are 
 obliged to submit to be searched, and detained at the discretion 
 of a known belligerent. Chief Justice Parsons says : " The 
 belligerent having "a right, by the law of nations, to visit and 
 search neutral vessels to prevent them from entering or leaving a 
 port under lawful blockade ; to seize and detain them if engaged 
 in contraband trade, or violating a blockade ; and to capture and 
 carry into port neutral vessels, which may be transporting the 
 property of his enemy, for the purpose of condemning such prop- 
 erty ; — it would be utterly inconsistent with these rights to allow 
 the neutral to resist by force, or be retaken by her crew, whenever 
 they might have opportunity to overpower the officers and men 
 of the belligerent, in whose custody she might be placed. Gen- 
 eral principles of policy require that in such cases the neutral 
 should submit and rely upon the justice of the tribunals of the 
 belligerent nation." ^ 
 
 Similar language is held in many cases, from which it appears 
 plainly that the power to resist, or opportunity to escape, does not 
 lessen the obligations of a neutral to submit to search. This seems 
 to be the principle to which the preceding, and other like obser- 
 vations, are applicable ; for, it can hardly be supposed that the 
 neutral is bound to submit to all acts done by a belligerent, under 
 a pretence of exercising a right of search, though the belligerent 
 make known his character and produce his commission. It is a 
 general principle, that the unlawful exercise by force of a legal 
 right, will justify a resistance. As to the discretion of the parties, 
 each has the same, and neither can alter the rights, powers, or 
 obligations of the other, by the construction he puts upon them. 
 The belligerent uses his discretion as to the manner of searching, 
 and the neutral as to the right or expediency of resisting or 
 -escaping ; but still it remains for the proper tribunals to deter- 
 mine what were, in truth, the rights and obligations of the 
 parties. 
 
 822. The right of visit and search includes that of sending 
 vessels into port f(A examination ; and a rescue of, or attempt to 
 rescue, a neutral vessel sent in for examination by an authorized 
 belligerent captor, is a breach of this warranty."^ 
 
 1 Robinson v. Jones, 8 Mass. 536. 340; The Dispatch, 3 id. 278; Garrcls 
 
 2 Wileoeks v. Union Ins. Co. 2 Binn. v. Kensington, 8 Term, 230. 
 Penn. 574 ; The Maria, 1 C.Rob. Adm.
 
 SECT, VIII.] NEUTRALITY OP TRADE AND CONDUCT. 449 
 
 823. If a belligerent exercises the right of search illegally^ and 
 outrageously, it is not a breach of the warranty of neutrality to 
 make resistance. 
 
 It was so decided in case of an American vessel captured by 
 a lugger in the English Channel, near the French coast. The 
 prize crew were proceeding with the vessel towards a French 
 port, when the American crew rose upon them and regained 
 possession of the vessel, but were obliged to abandon her, in their 
 boat, on the lugger's again appearing in sight and giving chase 
 to them. The lugger had neither shown any colors nor made 
 known the authority by which a right of search was demanded. 
 This was held to be a sufficient justification of resistance. Mr. 
 Justice Jackson, giving the opinion of the court, said, that to 
 refuse the right of resistance and escape in such case " would 
 expose every neutral ship to capture by pirates. The master 
 of the neutral vessel had no evidence that the capturing ship 
 was a French commissioned cruiser. The captors might have 
 plundered the ship and sunk her, and neither the owners nor 
 the government of the United States could demand indemnity 
 against the French government."^ 
 
 Chief Justice Tilghman instructed the jury, in regard to a 
 neutral vessel captured and sent in for adjudication, that it was 
 not the duty of her crew to navigate her.^ 
 
 824. It is not a breach of the warranty of the neutral character 
 of the ship, that she carries a belligerent cargo.^ 
 
 The warranty of neutrality of goods is not forfeited by the cir- 
 cumstance of their being transported on board of an unarmed 
 belligerent ship. 
 
 Chief Justice Marshall says : " The rule that the goods of an 
 enemy found in the vessel of a friend are a prize of war, and that 
 the goods of a friend in the vessel of an enemy are to be restored, 
 is believed to be a part of the original law of nations as gener- 
 ally, perhaps universally, acknowledged. It has been fully and 
 unequivocally recognized by the United States. And it was 
 held, that the provision of the treaty of the United States with 
 Spain, that 'free ships should make free goods,' was not a ground 
 
 1 M'Lellan v. Maine Fire & Mar. Ins. 2 Wilcocks v. Union Ins. Co. 2 Binn. 
 Co. 12 Mass. 246. Tenn. 574. 
 
 3 Barker v. Blakes, East, 283. 
 38 »
 
 450 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 for considering all goods that were claimed as Spanish, but found 
 on boar^ of an armed hostile vessel, to be, for this reason merely, 
 enemy property." 
 
 Mr. Justice Story said : " The general doctrine, though for- 
 merly subject to many learned doubts, is now incontrovertibly 
 established, that neutral goods may be lawfully put on board of 
 an enemy ship, without being prize of war." ^ 
 
 825. The employment of a neutral vessel in a service auxiliary 
 to the hostile operations of a belligerent, forfeits its neutral char- 
 acter.^ 
 
 Such is the effect, according to Sir William Scott, even though 
 the master may engage in such service without being aware of 
 its belligerent character.^ 
 
 But this is an extremely stringent construction against the 
 neutral. The doctrine surely ought to be limited to cases where 
 the circumstances constitute a ground of presumption of his 
 being aware of the nature of the service, as they in fact did in 
 those where the doctrine is stated. That is to say, if it is the 
 gross negligence of the master not to have notice of the belliger- 
 ent character of the service, he shall be presumed to know it. 
 And this limitation of the doctrine is distinctly recognized by the 
 same eminent jurist, in the case of conveyance of the despatches 
 of one of the belligerents.* 
 
 The carrying of despatches for one belligerent, subjects the 
 vessel to capture by the other.^ Despatches between a minister 
 of a belligerent in a neutral country, and his own government, 
 are, as far as the master of the neutral ship conveying them is 
 concerned, conclusively presumed not to be of a belligerent char- 
 acter, and so the conveyance of them is no breach of warranty 
 of a neutrality.^ 
 
 1 The Nereide, 9 Cranch, 388. See 461 ; The Rapid, Edw. Adm. 228; The 
 Kemble v. Rhinelander, 3 Johns. Cas. Atalanta, 6 C. Rob. Adm. 440 ; The 
 N. Y. 130. Constantia, Holbec, 6 id. 461, n. ; The 
 
 2 Bentzon v. Boyle, 9 Cranch, 191; Susan, ibid. 
 
 The Carolina, 4 C. Rob. Adm. 256 ; The 5 The Atalanta, 6 C. Rob. Adm. 
 
 Friendship, 6 id. 420, 440. 
 
 3 The Orozembo, 6 C. Rob. Adm. 6 The Caroline, 6 C. Rob. Adm. 461 ; 
 430 ; The Friendship, 6 id. 420 ; The The Madison, Edw. Adm. 224 ; The 
 Susan, 6 id. 461, n. Commercen, 1 Wheat. 382. See 1 Duer, 
 
 4 The Caroline, 6 C. Rob. Adm. Mar. Ins 459.
 
 SECT. VIII.] NEUTRALITY OF TRADE AND CONDUCT. 461 
 
 826. " If," says Vattel, " I lay siege to a place, or only form a 
 blockade, I have a right to hinder any one from entering, and to 
 treat as an enemy any one who attempts to enter the place, or 
 carry any thing to the besieged, without my leave." ^ 
 
 On principle it might well be questioned whether the right to 
 confiscate vessels bound to a blockaded port can be applied to a 
 place not completely invested by land as well as by sea. If we 
 examine the reasoning on which is founded the right to intercept 
 and confiscate supplies designed for a blockaded town, it will 
 be difficult to resist the conviction, that its extension to towns 
 invested by sea only is an unjustifiable encroachment on the 
 rights of neutrals." ^ 
 
 According to the usage under the law of nations, a belligerent 
 has a right to blockade a place and cut off all communication by 
 sea, although it is not at the same time besieged. Notwithstand- 
 ing the late practice of Great Britain and France, of declaring 
 ports in a state of blockade, although not actually invested by an 
 adequate naval force, it has always been held that, to constitute a 
 blockade, so as legally to intercept the intercourse of neutrals, a 
 force must be present for the purpose of maintaining the blockade, 
 sufficient to cut off all communication by sea, or to make an entry 
 imminently dangerous? 
 
 Sir William Scott says : " A blockade is a sort of circumvalla- 
 tion, by which all correspondence and communication is, as far 
 as human force can efllect it, to be entirely cut off." ^ But if the 
 blockading squadron is occasionally blown off, the commander 
 retaining the purpose of returning to the station immediately, 
 and using due diligence for this purpose, this does not suspend 
 the blockade.^ 
 
 827. A blockade is properly a uniform and general exclusion 
 
 1 Vattel, lib. 3, c. 7, s. 117. Molke, 1 id. 86 ; The Mercurius, id. 80 ; 
 
 2 Letter of Chief Justice Marshall, Journal of Congress, Vol. VII. p. 241, 
 while Secretary of State, of September December 4, 1781 ; The Nancy, 1 Act. 
 20, 1800, to Mr. King, then American Prize Cas. 57; The Eagle, 1 id. 65. 
 Minister at London, 3 Wheat. App. p. 4. 4 The Vrow .Judith, 1 C. Rob. Adm. 
 
 3 The Betsey, 1 C Rob. Adm. 93; 150. See The Byfield, Edw. Adm. 188. 
 Williams v. Smith, 2 Caines, N. Y. 14 ; 5 Radcliffy. United Ins. Co. 7 Johns. 
 RaddifF V. United Ins. Co. 7 Johns. N. Y. 38; The Frederick IHolke, 1 C. 
 N. Y. 38. ; The Henrick and Maria, 1 Rob. Adm. 86 ; The Columbia, id. 154 ; 
 C. Rob. Adm. 146; The Frederick The Juffrow Maria, 3 id. 14 7.
 
 452 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 of vessels ; if, therefore, some vessels are permitted to pass., others 
 have a right to infer that the blockade is raised. Such a mode of 
 keeping up a blockade destroys its effect. Accordingly, as there 
 is no valid blockade, there can be no breach of blockade.^ 
 
 828. A declaration of blockade is a high act of sovereignty, and 
 it is usually made directly/ by the government to which the block- 
 ading squadron belongs. A blockade is, however, in some cases 
 declared by an officer of a belligerent power, and when so declared, 
 it will affect the subjects of neutral nations as far as it is authorized, 
 or adopted and ratified, by his government. The implied authority 
 in this respect vested in a naval commander, is much greater at a 
 distance from his government than when he is near it. To affect 
 neutral nations, it must be laid by competent authority ,2 and they 
 are affected only in the extent to which it is so laid. If any 
 marine channel is left free, there is no blockade in respect to 
 such channel.^ 
 
 829. Neutral nations are not affected by a blockade until they 
 have notice of it. This notice may be publicly given by the bellig- 
 erent to the neutral government, when it will in general be pre- 
 sumed to be given to the subjects of the neutral government; or 
 it may be given directly to the captain or owners of a vessel. It 
 must appear, either that the neutral subject has had notice of the 
 blockade, or that it was so publicly and generally known, that he 
 must be presumed to have a knowledge of it.* Those persons 
 who are in the port blockaded are always presumed to have 
 notice of the blockade.^ 
 
 A blockade is prima facie presumed to continue till notification 
 of its being raised.^ 
 
 If a blockading squadron is driven off by a superior force, a 
 new notification will be requisite, if the blockade is resumed.^ 
 
 1 The Rf.Ila, 6 C. Rob. Adm. 364. Adelaide, 2 id. Ill, n. ; The Calypso, 
 
 52 The Henriek and Maria, 1 C. Rob. 2 id. 298; The Mercurius, 1 id. 80; 
 
 Adm. 146 ; The RoUa, 6 id. 364. The Rolla, 6 id. 364 ; The Tutela, id. 
 
 3 The Ocean, 3 C.Rob Adm. 297; 177. 
 
 The Stert, 4 id. 65 ; The Jonge Pieter, 5 The Vrow Judith, 1 C. Rob. Adm. 
 
 id. 79. 150. 
 
 4 The Henriek and Maria, 1 C. Rob. 6 The Neptunus, 1 C. Rob. Adm. 
 Adm. 146; Radcliff v. United Ins. Co. 170. 
 
 7 Johns. N. Y. 38; 9 id. 277; The 7 The HofTnung, 6 C. Rob. Adm. 
 Keptunus, 2 C.Rob Adm. 110; The 112; The Tripeten, id. 65.
 
 SECT. VIII.] NEUTRALITY OF TRADE AND CONDUCT. 453 
 
 Notice from a fleet of the blockading government, that the 
 blockade is raised, though erroneous, cancels the prior notice of 
 the blockade, and justifies proceeding for the port.^ 
 
 830. If the assured has actual or constructive notice of a block- 
 ade declared upon sufficient authority, and maintained by an 
 adequate force, an attempt on his part to carry property warranted 
 neutral to or from the blockaded port^ is a violation of the blockade 
 and a breach of the warranty? A neutral vessel that had entered 
 the port before the blockade, may come out in ballast,^ or with a 
 cargo taken on board before the blockade began,^ but not with 
 one taken on board after notice of the blockade.^ 
 
 So a ship may bring away from a blockaded port the cargo 
 imported in her before the declaration of blockade, and still 
 remaining on board. A vessel purchased at the blockaded port 
 after the declaration of blockade, cannot be cleared out from the 
 port while the blockade continues.^ 
 
 Leaving such port is justifiable in case of war impending 
 between the country to which it belongs and that of the vessel 
 and owners of the cargo." 
 
 831. Sir William Scott says, " If a vessel sail for a blockaded 
 port, after having received notification of the blockade, the act 
 of sailing is to be considered as a breach of the blockade." ^ But 
 Chief Justice Marshall, giving the opinion of the court,^ intimates, 
 
 1 Tlie Neptunus. 2 C. Rob. Adm. 3 The Frederick Molke, 1 C. Rob. 
 
 1 10. Article 18 of the treaty of 1794, Adm. 86. 
 
 between the United States and Great ^ Oldden v. M'Chesney, 5 Serg. & 
 
 Britain, recognizes the doctrine in the R. Penn. 71 ; Olivera v. Union Ins. Co, 
 
 text, by providing that " a vessel sail- 3 Wheat. 183 ; The Vrow Judith, 1 C. 
 
 ing for a port, not knowing the same to Rob. Adm. 150 ; The Juno, 2 id. IIG ; 
 
 be blockaded, may be turned away, but The Potsdam, 4 id. 89. 
 
 shall not be detained unless, after notice, ^ The Neptunus, 1 C. Rob. Adm. 
 
 she shall again attempt to enter." The 170; The Rolla, 6 id. 364 ; The Comet, 
 
 Columbia, 1 C. Rob. Adm. 1.54. Edw. Adm. 32. 
 
 3 Bynkershoeck, Q. J. P. 1. 1, c. 4 & 6 The General Hamilton, 6 C. Rob. 
 
 11; The Welvaart Van Pillaw, 2 C. Adm. 61 ; The Vigilantia, id. 122. 
 
 Rob. Adm. 128 ; Resolution of the States ' The Dree Vrienden, 1 Dods. Adm. 
 
 General of Holland, 1630, 3 C. Rob. 269. 
 
 Adm. 326, n. ; The E.xchange, Edw. ^ The Vrow Johanna, 2 C. Rob. 
 
 Adm. 39; The Gute Erwartung, 6 C. Adm. 109. 
 
 Rob. Adm. 182; The Hare, 1 Act. Prize ^ 4 Cranch, 199 ; and see Maryland 
 
 Cas. 252; The Manchester, 2 id. 60; Ins. Co. v. Wood, 6 id. 29. 
 The Maria, 5 C. Rob. Adm, 305.
 
 45-1 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 that the act of sailing- for the blockaded port, knowing' it to be 
 such, must be coupled with the intention of entering- it, in order to 
 constitute a violation of the blockade ; for a vessel might sail from 
 the United States for a blockaded port in Europe, after notice of 
 the blockade, with the expectation of its being raised before her 
 arrival, and with the intention of sailing for another port if the 
 blockade should not be raised. So it was held by Mr. Justice 
 Washington.! Sir William Scott has given a similar opinion.'-^ 
 
 832. To constitute a violation of blockade, it is requisite, not 
 only that the party should have such intention, but also that he 
 should do some act in pursuance of it.^ 
 
 " The law of nations does not admit of the condemnation of a 
 neutral vessel for the intention to enter a blockaded port, uncon- 
 nected with any fact. Lingering about the place, as if watching 
 for an opportunity to sail into it, or the single circumstance of 
 not making immediately for some other port, or possibly obstinate 
 and determined declaration of a resolution to break the blockade, 
 might be evidence of an attempt, after warning, to enter a block- 
 aded port." * 
 
 833. Sailing for a blockaded port with intent to violate the 
 blockade is an attempt to violate it, and an incipient violation of 
 it, and is treated as a consummated one, if the blockade exists, and 
 there is a possibility of violating it at the time of the capture of 
 the vessel for such violation, while pursuing her voyage with 
 such intent.^ 
 
 834. Notice of a blockade, and an intention of the master to 
 violate it, and his acts thereupon, are immaterial, if there is not, 
 at the time of his entering or of his capture, any then subsisting 
 blockade, though there may have previously been one irregularly 
 maintained, and then intended to be resumed;^ or one not ex- 
 tending to the place of entry .'^ 
 
 835. So, if the intent to violate a blockade has been renounced, 
 
 1 Sperry v. Delaware Ins. Co. 2 Cranch, 185; and see cases supra and 
 Wash. C. C. 243. infra. 
 
 2 The Betsey, 1 C. Rob. Adm. 332 ; ^ See oases supra and infra. 
 
 The Shepherdess, 5 id. 262. ^ Williams c. Smith, 2 Caines, N. Y. 
 
 3 Calhoun V. Ins. Co. of Pennsylva- 13; Radcliff i'. United Ins. Co. 7 Johns. 
 nia, 1 Binn. Penn. 293. N. Y. 38. 
 
 4 Fitzsimmons v. Newport Ins. Co. 4 ' The Henrick and Maria, 1 C. Rob. 
 
 Adm. 146.
 
 SECT. VIII.] NEUTRALITY OF TRADE AND CONDUCT. 455 
 
 and the ship is no longer pursuing the course to the blockaded 
 port at the time of her being captured, there ceases to be any 
 violation of the blockade, and the fact of the previous incipient 
 violation is cancelled.^ 
 
 836. In case of there being evidence on board of the ship, that 
 the owner of the whole or a part of the cargo did not intend to 
 violate a blockade, his goods will not be condemned, though the 
 ship and other goods, if any, may be so.^ 
 
 837. It is a violation of blockade to sail ivith intent to pro- 
 ceed to the mouth of the harbor, for the purpose of inquiring 
 whether the blockade is raised.^ 
 
 The court intimates, that sailing from the United States for a 
 European port, known to be blockaded, with similar instructions, 
 would be a breach of the blockade.* 
 
 838. An agreement by a charter-party to sail to a port, which 
 is afterwards blockaded, does not justify the captain's proceeding 
 on the voyage, after notification of the blockaded And Sir Wil- 
 liam Scott held it to be a breach of blockade in a captain not 
 to change his course for a different port, after being warned that 
 the port of destination was blockaded.^ But it appears, from 
 the decisions of the same judge cited above, that the construc- 
 tion to be put upon this act of the captain ought to depend on ■ 
 his distance from the port of destination when he receives the 
 notification, and other circumstances showing whether he con- 
 tinues on his course with the purpose of violating the blockade, 
 or with the expectation of its being raised, and the intention of 
 waiting at some other port for that event. 
 
 839. It is a violation of blockade to sail for the blockaded 
 port with instructions and intent to proceed and enter, if the 
 winds should be such as to blow off the blockading squadron.' 
 
 1 The James Cook, Edw. Adm. 261 ; The HolFnung, id. 162 ; and see Mary- 
 The Trende Sostre, 6 C. Rob. A(hn. land Ins. Co. v. Woods, 6 Cranch, 29. 
 390, n ; The Licette, 6 id. 387; The 4 The Spes and The Irene, 5 C.Rob. 
 Imina, 3 id. 167. Adm. 76; The Posten, 1 id. 335. 
 
 2 The Mercurius, 1 C. Rob. Adm. 5 The Tutela, 6 C. Rob. Adm. 177. 
 80 ; The Exchange, Edw. Adm. 39 ; 6 The Adonis, 5 C. Rob. Adm. 256 ; 
 The Neptunus, 3 C. Rob. Adm. 173; The Shepherdess, id. 262; Tlie Apollo, 
 The Adelaide, id. 281 ; The Manc-hes- id. 286. 
 
 ter, 2 Aft. Prize Cas. 60 ; The James 7 The Columbia, 1 C. Rob. Adm. 
 Cook, Edw. Adm. 261. 154. 
 
 3 The Juno, 2 C. Rob. Adm. 116;
 
 456 EXPRESS WARRANTIES, STirULATIONS, ETC. [CHAP. IX. 
 
 840. Whefe the vessel sails for a distant port^ known to be 
 blockaded, but loith a prior destination to another port at a 
 proper distance from the blockaded one, to learn whether the block- 
 ade has ceased, and with a bona fide expectation that it may 
 have ceased, and another destination in such case, is not a vio- 
 lation of the blockade.^ 
 
 Sir William Scott said : " The design was to seize the oppor- 
 tunity of entering whilst the winds kept the blockading squad- 
 ron at a distance. Under these circumstances, I have no hesita- 
 tion in saying that th'e blockade was broken." He accordingly 
 condemned the vessel and cargo ; and his judgment was con- 
 firmed on appeal. 
 
 An action was tried in the Supreme Court of New York, 
 upon a policy by which the cargo of the Columbia was insured 
 and warranted American. Justices Radcliff, Kent, and Benson 
 concurred in the opinion of Sir William Scott, and thought the 
 warranty had not been complied with, and the judgment was 
 in conformity with their opinion. Chief Justice Lansing dis- 
 sented, upon the ground that, by the treaty with Great Britain, 
 the master was authorized knowingly to make one attempt to 
 enter."^ The Court of Appeals reversed the judgment, upon the 
 ground that the intention of the master was to inquire whether 
 the blockade was raised.'^ The decision of Sir William Scott 
 and of the Supreme Court of New York seems to have been 
 plainly right, according to the construction which they put upon 
 the evidence, as proving an intention, on the part of the master 
 to violate the blockade. So the decision in the Court of Ap- 
 peals was right, upon its construction of the evidence, as not 
 proving such an intention. The discrepancy is in the construc- 
 tion of the testimony, and that of Sir William Scott and the 
 Supreme Court of New York certainly seems to be the obvious 
 one.* 
 
 1 Naylor v. Taylor, 9 Barnew. & C. ing with that of Sir William Scott, 4 
 718; The Shepherdess, 5 C. Rob. Adm. Cranoh, 200. 
 
 262; Winder v. Wise, 1 Dowl. & L. ^1 Caines Cas. N. Y. vii. ; 2 Johns. 
 240. Cas. N. y. 460. See also Liotard v. 
 
 2 Vos V. United Ins. Co. 2 Johns. Graves, 3 Caines, N. Y. 226. 
 
 Cas. N. Y. 180. The Supreme Court 4 See, on this subject, 1 Dner, Ins. 
 of the United States put a different 691, and note to the case of Olivera v. 
 construction upon the treaty, agree- Union Ins. Co. 3 Wheat. 183, which is
 
 SECT. VIII.] NEUTRALITY OF TRADE AND CONDUCT. 457 
 
 841. Ling-ering- near a blockaded port, as well as continuing 
 on the course towards it, after notification, where it shows an 
 intention to enter the port, is a breach of the blockade. ^ 
 
 842. It is not a violation of blockade to enter or depart from 
 a port ivitli the j)ermission of the officers of the blockading- squad- 
 ron, and the vessel so entering may clear out with a cargo.^ 
 But where such permission was given by a belligerent cruiser 
 to a neutral to enter an interdicted port, through an erroneous 
 construction of the interdiction, the entry was held not to 
 be justified.^ 
 
 843. It is not a breach of blockade to enter the blockaded port 
 from necessity in distress, when no other port can be made.* So 
 a ship may visit a blockaded port by the license of the gov- 
 ernment to which the blockading squadron belongs, and such 
 license is construed liberally in favor of the neutral. 
 
 844. Nor is it a violation of blockade by a neutral to imrchase 
 goods at the blockaded seaport, and transport them inland to 
 another port not blockaded, and export them thence;"^ or to 
 transport goods by inland navigation to the blockaded sea- 
 port.^ 
 
 845. Where loss ensues by reason of neglect in claiming the 
 property insured with warranty of neutrality, on the same being 
 captured, the liability of underwriters is determined as in other 
 cases of question as to negligence, misconduct, or mistake of the 
 assured or his agents.'^ 
 
 cited and ably commented upon by ilr. 3 The Courier, Edw. Adm. 2^9. 
 Duer. 4 The Fortuna, 5 C. Rob. Adm. 27 • 
 
 1 The Elizabeth, Edw. Adm. 198; The Charlotte, Edw. Adm. 352; The 
 The Arthur, id. 202; The Little Wil- Hurtige Hane, 2 C. Rob. Adm. 124. 
 liam. Act. Prize Cas. 141 ; The Irene, 5 The Ocean, 3 C. Rob. Adm. 297. 
 
 5 C. Rob. Adm. 76 ; The Neutralitet, 6 The Stert, 4 C. Rob. Adm, 65 ; 
 
 C id. .30. The Jonge Pieter, id. 79. 
 
 2 The Juffrow Maria, 3 C. Rob. ' See c. 13, s. 2; also the remark 
 Adm. 147; The Henricus, id. 159, n; of Benson, J., Yandenheuvel y. United 
 The Vrow Barbara, id. 15S, n; Ohl- Ins. Co. 2 Johns. Cas. N. Y. 127, 158; 
 dan V. M'Chesney, 5 Serg. & R. Penn. and of Yates, J., Gardere v. Columbian. 
 71- Ins. Co. 7 Johns. N. Y. 514. 
 
 VOL. I. 39
 
 458 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 SECTION IX. PARTICULAR WARRANTIES AND CONDITIONS. 
 
 846. Insurance upon " lawful goods " is not unfrequent. 
 
 This warranty was held in New York to be satisfied, though 
 the goods were contraband of war ; ^ which construction, by 
 confining the restriction to unlawful goods, renders it null, since 
 such are so, as we have seen,^ without this clause. 
 
 847. A umrranty that a vessel " shall have no contraband 
 goods on board" means contraband of war; and not illicit trade 
 at the port of destination, where it is well understood that the 
 trade is illicit at such pSrt.^ 
 
 848. Warranty that the ship ^^ ivas well" on a certain day is 
 satisfied if she was so any time on that day^ 
 
 849. Under the provision contained in many forms of policy, 
 called " the rotten clause," that " if the ship, on a regular survey, 
 shall be declared unseaivorthy by reason of being rotten or un- 
 sound," the insurers shall be discharged ; in case it appears from 
 the survey that the decayed state of the vessel is the reason for 
 not repairing, they are discharged, though it may have sustained 
 damage by the perils insured against. But if it is not irrepa- 
 rable by reason merely of rottenness, they are liable.^ 
 
 Though some of the decisions on this clause are somewhat 
 indistinct, I understand them to result on the whole to the doc- 
 trine above stated, and which is the most obvious import of the 
 stipulation ; namely, that if the irreparableness and innavigability 
 of the vessel are attributed by the survey to rottenness, independ- 
 
 1 Seaton v. Low, 1 Johns. Cas. N. Y. 5 Haff v. Marine Ins. Co. 8 Johns. 
 1; Skidir,ore v. Desfloity, 2 id. 77; N. Y. 163; Griswold v. National Ins. 
 Richardson v. Maine Fire & Mar. Ins. Co. 3 Cow. N. Y. 96 ; Watson v. Ins. 
 Co. 6 Mass. 102. In consequence of Co. of North America, 2 AVash. C. C. 
 the first of these decisions, the clause 152, 480 ; Arniroyd v. Union Ins. Co. 
 already mentioned, supra, No. 42, ex- 2 Binn. Penn. 394 ; Marine Ins. Co. of 
 cepting loss of contraband goods, was Alexandria r. Wilson, 3 Cranch, 187; 
 added to marine policies. 1 Johns. Door v. Pacific Ins. Co. 7 Wheat. 581 ; 
 Cas. N. Y. 15, n. Brandegee v. National Ins. Co. 20 
 
 2 Chap. 3, s. 2. Johns. N. Y. 328 ; Janney v. Colum- 
 
 3 Vandervoort v. Smith, 2 Caines, N. bian Ins. Co. 10 Wheat. 411 ; Innes v. 
 Y. 155. Alliance Mut. Ins. Co. 1 Sandf N. Y. 
 
 4 Blackhurst i;. Cockell, 3 Term, 360. 310.
 
 SECT. IX.] PARTICULAR WARRANTIES AND CONDITIONS. 459 
 
 ently of the damage by the perils insured against, the insurers 
 are discharged from the loss ; but if to both causes, they are not 
 discharged. 
 
 The import of the whole survey taken together is to be re- 
 garded, and not merely that of particular expressions.^ If divers 
 surveys are made, they are to be taken "together.^ 
 
 850. Tlie warranty against rottenness relates to the time when 
 the survey is made. 
 
 851. Tlie underwriters are discharged at whatever time the 
 decay may have coyjwie need, and whether the ship was or was not 
 unseaworthy by reason of rottenness when the risk commenced.^ 
 
 852. In respect to ichat constitutes a regular survey, one made 
 under the order of a court having jurisdiction of the proceeding 
 is such, as far as the authority to order it is concerned : 
 
 So also one made by surveyors appointed by the American 
 consul in a foreign port : ^ 
 
 So one by surveyors appointed under a law of a State, as long 
 as there is no act of Congress on the subject : ^ 
 
 So also one by surveyors appointed by the master, where, 
 under the circumstances, such an appointment is a sound ex- 
 ercise of discretion on his part : '^ 
 
 So the assent of the master to a survey is ground of presump- 
 tion of its being regular.''' 
 
 There may, however, doubtless be irregularities in a survey by 
 surveyors duly appointed. 
 
 853. According to the decision of the Supreme Court of the 
 United States, the report of surveyors on a regular survey, that 
 a vessel is irreparable and innavigable by reason of decay, is 
 conclusive of the fact under this stipulation.'' 
 
 854. It is not essential that the survey should be during the 
 
 • Brandegee v. National Ins. Co. 20 5 Janney v. Columbian Ins. Co. 10 
 
 Johns. N. Y. 328; Innes v. Alliance Wheat. 411. 
 
 Mut. Ins. Co. 1 Sandf. N. Y. 310. 6 Tolleys v. Ocean Ins. Co. 14 Me. 
 
 2 Innes v. Alliance Mut. Ins. Co. 1 141. 
 
 Santlf. N. Y. 310. ^ Janney v. Columbian Ins. Co. 10 
 
 3 Dorr V. Pacific Ins. Co. 7 Wheat. Wheat. 411; Dorr v. Pacific Ins. Co. 
 581 ; Rogers v. Niagara Ins. Co. 2 Hall, 7 Wheat. 581. 
 
 N". IT. 86. 9 Dorr v. Pacific Ins. Co. 7 Wheat. 
 
 4 Innes v. Alliance Mut. Ins. Co. 1 581. 
 Sandf.N. Y. 310.
 
 4G0 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 voyage; it is sufficient if it is made within a reasonable time 
 after the termination of the voyage. ^ 
 
 855. The stipulation to claim property not Spanish as being so, 
 is legal? 
 
 856. Under an agreetnent of the assured to prosecute a claim 
 for the property till final' condemnation in the High Court of 
 Admiralty, or acquittal, the insurers to " contribute to the ex- 
 penses " proportionably, he must commence the prosecution of 
 his appeal from the decree of condemnation in the inferior tribu- 
 nal, and is not justijied in neglecting to do so by the refusal of the 
 insurers to make advances for the expense? 
 
 857. Under a stipulation that a policy on a ship and cargo shall 
 be cancellecL '■'■should the vessel and cargo be insured in £J.," the 
 insurance will be cancelled on only one of the interests, if only one 
 is insured in EA 
 
 858. A stipulation in a respondentia bond, that, if the vessel 
 shall end the voyage within six months, the casualties of the seas 
 excepted, ^^ having on board the stipulated amount on the respec- 
 tive passages outward and homeward," the bond shall become 
 absolute, is held, by Mr. Justice Story, to be a stipulation for 
 marine interest on the amount at risk on each passage, not that 
 the whole amount shall be on board during each passage.^ 
 
 859. A stipulation, that " orders shall be given not to cruise,''' 
 is not satisfied with merely implications and grounds of infer- 
 ence to that effect in the instructions to the master ; it requires 
 explicit orders? 
 
 860. A stipulation for " a passport in the usual form, from 
 A-dmiral S." requires one for the ivhole voyage; but a majority 
 of the court in Connecticut were of opinion, that one for " flour, 
 and other dry provisions," was sufficient to cover a cargo of beef, 
 pork, and candles, such a license being in the usual known form 
 granted by the same officer." 
 
 I Griswold v. National Ins. Co. 3 Emerifron on Maritime Loans, trans- 
 Cow. N. Y. 98. lated by Hall, p. 149. 
 
 a Coolidi^e v. Blake, 15 Mass. 429. 6 Ogdon v. Ash, 1 Dall. Fenn. 162. 
 
 3 Thatcher v. Bellows, 13 Mass. '' Bulkley v. Derby Fishing Co. 1 
 111. Conn. 571. The passpoi't in this case 
 
 4 Davis I'. Boardman, 12 Mass. 80. was obtained through the intervention 
 
 5 Franklin Ins. Co. r. Lord, 4 Mas. of a minister of a neutral nation, to a 
 C. C. 248. See, to the same effect, port of which the vessel was destined.
 
 SECT. IX.] PARTICULAR WARRANTIES AND CONDITIONS. 461 
 
 861. In some cases courts have appeared to construe an insur- 
 ance vpori goods ^^from the lading' thereof on board the vessel," 
 at a certain place, to be a warranty or condition that the goods 
 shall be loaded on board at the place named. 
 
 When speaking of this provision of the policy as having this 
 character, and not as merely determining the commencement of 
 the risk, courts seem to have considered the object of it to be to 
 ascertain the state of the goods, so as to secure the underwriter 
 from liability for previous losses.^ But this clause has been 
 considered in other cases as merely a part of the description of 
 the subject and the risk. 
 
 862. Under a policy on a vessel from C. to the coast of Africa, 
 and during her stay there and back, " ivarranted not to remain on 
 the coast for more than four months,''^ the court was of opinion, 
 that the four months began after the vessel had arrived and been 
 safely moored twenty-four hours on the coast, and that she had 
 been so moored twenty-four hours, though she had before lost her 
 best boicer anchor^ and ivas moored by the sinall bower ; and 
 accordingly, that her being on the coast more than four months 
 from such arrival was a forfeiture of the policy .^ 
 
 863. Under d, rule of a mutual insurance association, having 
 the force of a stipulation, that, unless the orders given for stores 
 and repairs by the managing committee are complied vjtth, " the 
 ship shall not be insured^'' the policy is forfeited by non-compliance.^ 
 
 864. A provision in a policy, that, if notice of other insurance 
 by the assured on the same subject, is not given, the policy shall 
 be void, applies to other subsequent, as well as prior insurance ; 
 but if the subsequent other insurance is void by reason of not 
 giving notice of the prior insurance, the latter will remain valid.* 
 
 Under the provision that the policy shall be void if the assured 
 shall insure the same property, or, " any property connected with 
 it, at any other office," a policy on a building is not made void 
 by a subsequent insurance at another office on goods contained 
 in it.^ 
 
 1 Spitta V. Woodman, 2 Taunt. 416 ; 3 Stewart v. Wilson, 12 Mees. & W. 
 16 East, 188, n. ; Nonnen v. Reid, 16 Exch. 11. 
 
 East, 176. 4 Stacey r. Franklin Ins. Co. 2 Watts 
 
 2 Marden v. South Carolina Ins. Co. & S. Penn. 506. 
 
 1 Const. So. C. 200. 5 Jones v. Maine Mut. Fire Ins. Co. 
 
 18 Me. 155.
 
 462 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 A provision that the vessel shall not engage in the cotton trade 
 without consent indorsed, excepts loss while engaged in such 
 trade.i 
 
 A stipulation in a time policy that the vessel shall not carry 
 grain in hulk is violated if, at the attaching of the policy, it is 
 entering a foreign port with grain in bulk, though it is to be 
 there discharged.'"^ 
 
 A stipulation that the policy shall he made void hy alienation, 
 is not violate jy seizure at the suit of an attaching creditor.^ 
 
 A hy-laiv of a mutual company that the assured shall have no 
 claim unless he shall previously deliver a ivritten midertaking 
 from assignees and mortgagees, if there are any, to pay to the 
 underwriters all sums which may become due on account of the 
 vessel, is a condition precedent to the right of action.* 
 
 A provision against alienation is held not to cover the case of 
 a conveyance and simultaneous reconveyance in mortgage.^ 
 
 865. A stipulation for submitting disputes which may arise 
 in future on a contract, to arbitrators, has heretofore been held 
 not to be binding to the effect of defeating the right of action 
 upon it without any previous offer of arbitration.^ 
 ' It is clear that a stipulation which goes to the extent of oust- 
 ing the jurisdiction of a court cannot be enforced," and courts 
 of equity will refuse to decree specific performance of the agree- 
 ment in such cases.^ 
 
 1 Gaty V. Phoenix Ins. Co. 30 Mo. 5G. r. Georges Ins. Co. 6 Hair. & J. Md. 
 
 2 Sawyer v. Coasters', &c. Ins. Co. 6 408 ; Gray v. Wilson, 4 Watts, Penn. 39 ; 
 Gray, ]\Iass. 221. Contee v. Dawson, 2 Bland, Md. Cb. 
 
 3 Marigny v. Home, &c. Ins. Co. 13 264 ; Randel v. Chesapeake & Del. Canal 
 La. Ann. 338. Co. 1 Harr. Del. 233; Horton v. Stanley, 
 
 4 Hughes V. Tindall, 18 C. B. 98; 1 Miles, Penn. 418 ; Stone v. Dennis, 12 
 36 Eng. L. & Eq. 413. Ala. 231 ; Haggart v. Morgan, 4 Sandf. 
 
 5 Hitchcock u. North Western Ins. N. Y. 198; 1 Seld. 422; Harris i?. lley- 
 Co. 26 N. Y. C8 ; and see infra, No. nolds, 7 Q. B. 71. 
 
 880. 8 Wellington v. jMackintosli, 2 Atk- 
 
 6 Supra, No. 58, n. Ch. 569 ; Street v. Rigby, 6 Ves. 815 ; 
 
 7 Kill V. Hollister, 1 Wils. 129; Milnes r. Gery, 14 id. 400 ; Blundell 
 Thompson y. Charnock, 8 Term, 139; ?;. Brettargh, 17 id. 232; Gourlay v. 
 Goldstone v. Osborn, 2 Carr. & P. 550; Duke of Somerset, 19 id. 429 ; Wilks v. 
 Mitchell V. Harris, 2 Ves. 129; Wei- Davis, 3 Mer. 507; Agar v. Macklew, 
 lington r. Mackintosh, 2 Atk. Ch. 569 ; 2 Sim. & S. 418; JNIexborough v. 
 Nichols u. Chalie, 14 Ves. 2G5; Robinson Bower, 7 Beav. 127; Copper v. Wells,
 
 SECT. IX.] PARTICULAR WARRANTIES AND CONDITIONS. 463 
 
 A judgment in a leading English case abandons the ground 
 on which the jurisprudence on this subject had been put. It 
 was provided by a policy of a mutual insurance company that 
 " the sum to be paid to any suffering member should, in the 
 first instance, be ascertained and settled by the committee, and 
 if a difference should arise between the committee and the suf- 
 fering member relative to the settling of any loss, arbitrators 
 should be appointed " in the manner specified," who should de- 
 cide " upon the claims and matters in dispute," and that " no 
 member who should refuse to accept the amount settled by the 
 committee in full satisfaction should be entitled to maintain any 
 action at law or suit in equity on his policy, until the matters in 
 dispute should have been referred to and decided by the arbi- 
 trators, and then only for such sum as said arbitrators should 
 award; and the obtaining the decision of such arbitrators was 
 declared to be a condition precedent to the right of any member 
 to maintain any such action or suit." 
 
 A dispute arose with the committee, and the matter was not 
 referred to arbitrators. It was held by all the Jus^ces of the 
 Court of Exchequer Chamber, that the assured could not bring 
 an action for a loss until the amount had been settled by the 
 committee, and "if he was not satisfied with their decision until 
 there had been an award by arbitrators." ^ 
 
 The judgment in the Exchequer Chamber was affirmed in the 
 House of Lords; it was held that, while an agreement to oust 
 the jurisdiction of the court was clearly void, the parties might 
 agree that no right of action should accrue until after a reference 
 had been made to an arbitrator.^ 
 
 The dissenting opinions,-^ admitted this general principle but 
 construed the agreement as in fact ousting the jurisdiction of the 
 court, and leaving to the court merely the power of enforcincr 
 the award of the arbitrators. The majority held that it did not 
 go to this extent, but that the suit would still be brought on the 
 
 Saxt. N. J. 10; Tobey v. County of 2 Scott v. Avery, 5 Hou. L. Cas. 811; 
 
 Bristol, 3 Stor. C. C. 800. 3G Eng. L. & Eq. 1. See also Tredwen 
 
 1 Avery v. Scott, 8 ExcL. 497, 20 v. Holman, 1 Hurlst. & C. Exch. 72. 
 
 Eng. L. & Eq. 334 ; reversing the deci- 3 Per :\rartln, B., Crompton, J., Al- 
 
 sion of tlie Court of Exchequer ; Scott derson, B. 
 V. Avery, 8 Exch. 487; 20 Eng. L. & 
 Eq. 327.
 
 464 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 policy. It seems, therefore, to be mainly a question of construc- 
 tion. It is not distinctly stated whether the liability of the com- 
 pany is definitively limited to the amount awarded by the arbi- 
 trators. 
 
 The Court of Queen's Bench have confirmed the validity of a 
 stipulation for arbitration, though its decisions are based to Some 
 extent on statutes not applicable in the United States.^ 
 
 The Supreme Court of Massachusetts hold that the arbitration 
 clause cannot be set up by the underwriters after they have taken 
 possession of a ship to repair, as this act amounts to a waiver. 
 While inclining to doubt the validity of such a clause, they say 
 that the English cases may lead to some qualification of the doc- 
 trine as heretofore understood.^ 
 
 The anomaly of sanctioning agreements made prospectively 
 for substituting other tribunals for those established by law, might 
 be avoided by permitting either party to demand, before some 
 legal tribunal, a specific execution of this agreement for an arbi- 
 tration, under its order, and subject to its superintendence, in the 
 same manffer as cases are referred to masters in chancery ; or as 
 references to arbitrators are made under a rule of court. Such a 
 law would specify the causes of civil actions in respect to which 
 such prospective agreements for arbitration would be vajid, lim- 
 iting the operation of the law to contracts or otherwise, for such 
 an agreement would hardly be made binding in respect to 
 misfeasances. 
 
 SECTION X. WARRANTIES, CONDITIONS, AND STIPULATIONS IN 
 FIRE POLICIES. 
 
 866. A condition expressed as such in a fire policy, if not 
 complied with, defeats the insurance no less than in a marine one, 
 whether it is material to the risk or not, and whether the non- 
 compliance be with or without the act or privity of the assured.^ 
 
 1 Livingston v. Ralli, 8 Ell. &. B. 3 Duncan v. Sun Fire Ins. Co. 6 
 132 ; 30 Eng. L. & Eq. 279 ; Russell v. Wend. N. Y. 488 ; Jefferson Ins. Co. 
 Pellegrini, 6 Ell. & B. 1020; 38 Eng. v. Cotlieal, 7 id. 72; Fowler v. ^tna 
 L. & Eq. 99. Ins. Co. id. 270; Merriam v. Middlesex 
 
 2 Cobb V. New England Ins. Co. Ins. Co. 21 Pick. Mass. 162; Holmes 
 6 Gray, Mass. 192. v. Charlestown Mut. Fire Ins. Co.
 
 SECT. X.J IN FIRE POLICIES. 465 
 
 It has been remarked that the " strictness and nicety," as to 
 warranties, adopted in the trial of questions on policies of marine 
 insurance, are not, to their full extent, applicable to policies 
 " made by a mutual fire insurance company, in which the in- 
 surers assume the risk on the knowledge acquired by an actual 
 survey and examination made by themselves, and not on the 
 representations made by the assured." ^ But it seems to be very 
 questionable whether there is any such distinction in the con- 
 struction of warranties in different descriptions of policies. It 
 certainly has not been marked and defined in the cases. 
 
 A statement of a fact, whether in description or otherwise, is 
 considered to be a warranty in a fire policy no less than a marine 
 one, where the fact is one upon which the parties can be pre- 
 sumed to have proceeded as being essential in making the 
 contract. But clauses and statements intended and serving 
 merely as a description to identify the subject of a policy, and 
 having no relation to the risk or rate of premium, are construed 
 in fire, as in marine insurance, not to constitute conditions on 
 which the validity of the contract depends.^ 
 
 866 a. In respect to what constitutes a ivarrantjj^ and in respect 
 to the rules of construction, there does not appear to be any dis- 
 tinction between marine and fire insurance.^ 
 
 Thus, besides stipulations in the body of the policy, the WTitten 
 answers of the applicant, to inquiries put to him on the part of 
 the underwriters, indorsements, the charter of the insurance 
 company, surveys made by third parties and presented by the 
 assured, and other documents expressly referred to in the policy 
 as being a part of it or being warranties, will all be express 
 warranties, representations, or mere descriptions serving to iden- 
 tify the subject or the risks, according to the same rules and 
 distinctions as in marine insurance.* 
 
 10 Mete. Mass. 211 ; Battaille v. Mer- a Supra, No. 758, 769. 
 
 chants' Ins. Co. of New Orleans, 3 Rob. 3 As to construction of, and compli- 
 
 La. 384 ; Egan v. Mut. Ins. Co. of ance with, representations and warran- 
 
 Albany, 5 Den. N. Y. 326 ; Bilbrough ties, see supra, No. 70,71, 72, 485 et seq., 
 
 V. Metropolis Ins. Co. 5 Duer, N. Y. 527, 553, 569, 575, 608, 640, 651, 652, 
 
 587; Pennsylvania Ins. Co. v. Gotts- 669, 670,673,674, 762; and intra, 871, 
 
 man's Adni'rs, 48 Penn. St. 151; Ly- 872,892. 
 
 coming Ins. Co. v. Mitchell, id. 307. 4 See ut supra. 
 
 1 Per Dorsey, J., giving the opinion 
 of the court.
 
 466 EXPRESS "WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 But warranties, in many cases, as well as representations,^ 
 either directly or by implication, have reference to the future, and 
 are promissory and continuing in their character. It has been 
 objected, that holding an oral promissory representation to be 
 obligatory, is making it equivalent to a stipulation in the policy. 
 This is not so, excepting in cases where a substantial is equiva- 
 lent to a strict compliance. The 'objection, however, if it were 
 admitted to be valid in respect to a representation, has no appli- 
 cation to express stipulations, of which class are warranties, since 
 such stipulations most frequently have reference to the future. 
 This is especially true in fire insurance, since it would be absurd 
 to construe the written statements of the assured respecting the 
 use made of a building, the precautions taken against fire, and 
 others similar, that they only stipulate for what is done at the 
 time of effecting the policy and has been done before. In such 
 cases, the nature of the subject inquired about and the motive of 
 the inquiry, must determine the construction of the answer as 
 being a continuing warranty or not, and the degree of strictness 
 requisite to a compliance with it.^ 
 
 A statement in respect to insurance against fire, as in other 
 insurance, includes whatever is evidently implied by it ; as where, 
 to the inquiry what buildings there were within ten rods of that 
 proposed for insurance, the applicant replied, " surrounded by 
 space on all sides," this was held to make it a condition that 
 there were no buildings within the specified distance.^ 
 
 The answer to the inquiry respecting the occupancy of a 
 building, being that it was occupied as a " tavern-house," was 
 held by the Court of Appeals of New York, not to be falsified 
 by temporarily keeping a fire on the premises to try out grease.* 
 
 867. In respect to express warranties in fire policies, as well 
 as marine, the acts of agents and servants are imputed to the 
 assured.^ 
 
 868. Where a part of the insured subject,, and a proportional 
 interest in the policy, are duly assigned, within the rules of the 
 
 1 See supra, No. 553. "* Gates v. Madison County Mut. Ins. 
 
 2 Pirn V. Reid, 6 Mann. & G. 1, cited Co. 5 N. Y. 469. 
 
 infra, No. 874. 5 Duncan v. Sun Fire Ins. Co. 6 
 
 3 Jennings v. Chenango County Mut. Wend. N. Y. 488 ; and see infra, No. 
 Ins. Co. 2 Den. N. Y. 75. 1878, 1879, 1880.
 
 SECT. X.] IN FIRE POLICIES. 467 
 
 company, the original assured becomes a third party in respect 
 to such part, and cannot^ unless he is agent of the assignee, defeat 
 the contract, any more than any third party could do. 
 
 Accordingly, where the underwriters bad assented to an assign- 
 ment of a policy to a mortgagee of the insured premises, whose 
 mortgage was for less than the amount insured, the Court of 
 Appeals of New York held, that a subsequent act of forfeiture by 
 the original assured, affected only the excess over the mortgage, 
 the policy still remaining valid, and an action being sustained 
 upon it in the names of the original assured for the benefit of the 
 mortgagee, to the amount of his mortgage.^ 
 
 That is to say, the effect of a valid assignment of a part of the 
 amount insured by a policy, is the same pro tanto as an assign- 
 ment of the whole policy in respect to the whole amount insured.^ 
 
 869. In a fire policy, no less than a marine one, compliance 
 with an absolute allegation of a fact, or an absolute jwomise in 
 the policy in reference to the risk, is a condition on which the 
 liability of the insurers, from the time to which the allegation or 
 promise relates, will depend. 
 
 870. Wliere an express ivarranty in fire, no less than in marine 
 insurance, has reference to the commencement of the risk, as it 
 more frequently has, and provides that the contract shall be void 
 in case of non-compliance, the contract is forfeited by non-com- 
 pliance, though temporary : ^ 
 
 As in case of a mill " warranted conformable to the first class," 
 but not so at the time for the risk to commence, though after- 
 wards made so.* 
 
 The rule of rigid construction may favor the assured. In a 
 policy on a paper-mill and its contents, with a condition requiring 
 the application to state the " place where the property is situated, 
 of what materials it is composed, its dimensions, how constructed, 
 and for what occupied ; its position relative to other buildings, 
 
 1 Tillou V. Kingston Mut. Ins. Co. 5 2 See, No. 81,410, 880. 
 N. Y. 405 ; 7 Barb. N. Y. 570. The 3 Stout v. City Ins. Co. 12 Iowa, 371. 
 Supreme Court of New York, in this Vide supra, No. 764. 
 case doubted Carpenter v. Washington "^ Newcastle Fire Ins. Co. v. Mac- 
 Ins. Co. (of Providence), 16 Pet. 495. Morran, 3 Dow, Pari. Cas. 255. 
 See as to distinct assureds in the same 
 policy, supra, No. 93, 108, 395, 396, 398.
 
 468 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 and distance from each, if less than ten rods; whether it is en- 
 cumbered, and, if the applicant has a less estate than a fee, the 
 nature of his estate," — the clause relative to the distance of other 
 buildings was held, in the Supreme Court of New York, to have 
 reference to the insurance on the mill, and not to that on its 
 contents.^ 
 
 871. Written ansivers by the assured to the written interroga- 
 tories put by the underwriters, and referred to in the policy^ are 
 part of the written contract^ to the effect to ivhich, and for the 
 purpose for which, they are so referred to, whether as warranties, 
 representations, or mere descriptions of the subject.^ 
 
 872. Stipulations, though having the character of ivarranties 
 and conditions, are to be reasonably construed, in reference to the 
 subject-matter, and not captiously or merely literally.^ 
 
 The answers are not unfrequently referred to in the policy by 
 the term " representations," but whether so referred to or not, if 
 a literal compliance does not correspond to the object of the 
 inquiry, a substantial compliance is requisite.* 
 
 A policy on a granary " and a kiln for drying corn attached," 
 stipulated that the trades carried on in the premises were accu- 
 rately described, and if a kiln or any other process of fire-heat 
 were used and not noticed in the policy, the contract was to be 
 void. A cargo of bark having been sunk near the premises, the 
 assured allowed the bark to be dried at his kiln, and in conse- 
 quence the granary was burnt down. The use of the kiln for 
 this purpose was more hazardous than the use of it for drying 
 corn, but it was held, notwithstanding, that the assured had a 
 right to recover for the loss, as the description of the kiln in the 
 
 1 Trench v. Chenango County Mut. Hartford Ins. Co. v. Harmer, 2 Ohio St. 
 Fire Ins. Co. 7 Hill, N. Y. 122. See 452; Boardman u. New Hampshire Ins. 
 also Pirn v. Reid, 6 Mann. & G. 1. Co. 20 N. H. 551 ; Abbott v. Shawmut 
 
 2 Houghton V. Manufacturers' Mut, Ins. Co. 3 All. Mass. 213. See also 
 Fire Ins. Co. 8 Mete. Mass. 114 ; Sny- Barre Boot Co. v. Milford Ins. Co. 7 id. 
 der V. Farmers' Ins. & Loan Co. 13 42. See supra, No. 553, 569, 592, G40, 
 Wend. N. Y. 92 ; 16 id. 481 ; Delon- 641. 
 
 guemere v. Traders' Ins. Co. 2 Hall, 3 See supra, No. 758, 769, 866. 
 
 N. Y. 589 ; Liscom v. Boston Llut. Ins. 4 Houghton v. Manufacturers' JNIut. 
 
 Co. 9 Mete. Mass. 205; Wall v. Ilow- Fire Ins. Co. 8 Mete. Mass. 114; Lee r. 
 
 ard Ins. Co. 14 Barb. N. Y. 383 ; Loeh- Howard Ins. Co. 11 Cush. Mass. 324. 
 ner v. Home Ins. Co. 1 7 Mo. 24 7 ;
 
 SECT. X.] IX FIRE POLICIES, 469 
 
 policy was not considered to be a warranty that it was not to be 
 used for any other purpose, and that such a use of it in a single 
 instance was not a forfeiture of the policy. 
 
 The same policy provided, that, " if the risk to which the 
 premises were exposed were by any means increased, notice was 
 to be given to the office, and allowed by indorsement on the 
 policy, or otherwise the insurance to be void." The use of the 
 kiln for drying bark, as already stated, was ruled not to be such 
 an increase of the risk as to require the stipulated notice and 
 indorsement.^ 
 
 Under the condition not to enhance the risk, the age of the 
 building may be taken into consideration.^ 
 
 Under a policy on the machinery of a cotton-mill, a condition 
 that the mill is "worked by day only," is not falsified by a 
 steam-engine belonging to the mill and gearing connected with 
 it being kept in motion by night, the mill not being worked.^ 
 
 A statement that an insured factory-building has iron doors, 
 does not require that those opening towards adjoining buildings 
 should be kept shut during working hours.* 
 
 A representation incorporated into the policy by reference, that 
 the mills are examined thirty minutes after stopping work, applies 
 equally where the work is continued beyond the usual time.° 
 
 An application by a tenant of a building during one year, for 
 insurance on " his building," was held in New York to be a good 
 description.^ 
 
 Describing a building to be occupied by H. as a dwelling-house, 
 is not a warranty of the continuance of his occupancy." 
 
 A representation incorporated with the policy by reference,. 
 
 1 Shaw V. Robberds, 6 Ad. & E. 75 ; * Scott v. Quebec F. Iiis. Co. Stew. 
 1 Nev. & P. 279. Adm. Low. C. 147. 
 
 2 State Ins. Co. v. Arthur, 30 Penn. ^ Houghton v. Manufacturers' Mut. 
 St. 315. F. Ins. Co. 8 Mete. Mass. 114. 
 
 3 Mayall i'. Mitford, 6 Ad. & E. 670; 6 Xiblo v. North American F. Ins. 
 1 Nev. & P. 732 ; and see Whitehead v. Co. 1 Sandf. N". Y. 551. See also Her- 
 Price, 2 Crompt. M. & R. Exch. 447. rick v. Union Ins. Co. 48 Me. 558. 
 Description of a mill as " constantly 7 Q'Neil v. Buffalo Ins. Co. 3 N. Y. 
 worked" is complied with if part of 123; Joyce v. Maine Ins. Co. 45 Me. 
 the operations are carried on at night. 168. 
 
 Prieger i'. Exchange Ins. Co. 6 Wise. 89. 
 VOL. 1. ■ 40
 
 470 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 that tlie assured is going to put up a stove for burning hard coal, 
 is not a warranty to burn no other fuel in the stove.^ 
 
 A stipulation to remove a building adjoining that insured, allows 
 a reasonable time ; ^ that ivater tanks in an unfinished building 
 shall be well supplied with water, is complied with by building 
 the tanks as the building progresses ;^ for a foree pump means 
 one in good working order, with power, but not any particular 
 kind of power,* though it may be temporarily disconnected dur- 
 ing alterations ; ^ that a stove is vk'II secured^ means while in 
 use;'' to keep a watchman exclusively for the insured building 
 is not broken by an agreement of the watchman, without the 
 knowledge of the assured, to overlook an adjoining building ;7 
 for occupancy of a 2Vorkshop, means an actual use for the pur- 
 poses ^ of the assured. 
 
 Describing a building as '^occupied as stores,''^ is not a stipula- 
 tion that all the rooms will be so occupied.^ 
 
 872 a. The inquiry respecting' the relative situation of the build- 
 ing proposed, or one in which goods are proposed, for insurance, 
 in respect to other buildings and distance therefrom within speci- 
 fied limits, must be truly and fully ansivered. 
 
 The phraseology of a fire policy is usually such as to make it 
 a conditiort that this inquiry is correctly and fully answered. 
 
 It may be such as to limit the condition to insurance upon a 
 building in distinction from an insurance on its contents. The 
 applicant for insurance on a building and its contents, being 
 asked "where the property proposed for insurance was situated, 
 of what materials, dimensions ; the chimneys, fireplaces, stoves, 
 how constructed ; relative situation as to other buildings within 
 ten rods, and how occupied;" the answer to these inquiries was 
 held, by the Supreme Court of New York, to relate wholly to the 
 
 1 Tlllou V. Kingston Mut. Ins. Co. 7 6 Loud v. Citizens' Ins. Co. 2 Gray, 
 Barb. N. Y, 570. Mass. 221. 
 
 2 Lindsey v. Union Ins. Co. 3 R. I. ~ Hovey v. American Ins. Co. 2 Dii. 
 157. N. Y. 554. 
 
 3 Gloucester Manuf'g Co. v. Howard s Keith v. Quincy Ins. Co. 10 All. 
 Ins. Co. 5 Gray, Mass. 497. Mass. 228. 
 
 4 Sayles y. North Western Ins. Co. 2 9 Carter v. Humboldt Ins. Co. 17 
 Curt. C. C. 610. Iowa, 456. 
 
 5 To-wnsend v. North Western Ins. 
 Co. 18 N. Y. 168.
 
 SECT. X.J IN FIRE POLICIES. 471 
 
 insurance on the building, on the ground that all the questions 
 apparently related to the same subject, and some of them could 
 not be understood to refer to its contents. The insurance on the 
 building was accordingly held to be forfeited, and that on the 
 contents by the same policy to be valid.^ 
 
 In other cases, where the demand is for a statement of all the 
 buildings within a specified distance, the validity of the policy 
 has been held to depend upon all buildings within that distance 
 being mentioned in the answer,"^ notwithstanding a case-^ which 
 has a different aspect, and gives countenance to the doctrine, 
 that a policy is not forfeited by the omission to mention build- 
 ings which do not enhance the risk.* 
 
 It has been held by a majority of the Court of Appeals of New 
 York, that the answer of the applicant that there is no building 
 within the distance inquired about, is not a constructive contin- 
 uing condition that he will not Li;;isdf erect one, and that his 
 omitting to state, in reply to that inquiry, that he intends and has 
 begun preparations to erect a barn within the specified distance, 
 is not a breach of condition or a misrepresentation whereby the 
 insurance is defeated, upon the ground that the inquiries put to 
 the applicant for a fire policy being usually quite numerous and 
 various, he is excused from making any statement which is not 
 directly, pointedly, and literally called for.^ As there is no pro- 
 vision in the policy bearing upon the subject, an answer that the 
 space in question is vacant, might not be construed to be a con- 
 dition that the assured should not, if he owned it himself, make 
 such use of it as is usual in the vicinity. # But the omission to 
 
 1 Trench v. Chenango County Mut. All. Mass. 305 ; Chaffee v. Cattaraugus 
 F. Ins. Co. 7 Hill, N. Y. 122. See Ins. Co. 18 N. Y. 376; Hardy y. Union 
 also Tillou V. Kingston Mut. Ins. Co. 5 Ins. Co. 4 All. Mass. 217. 
 
 N. Y. 405, 868, for partial forfeiture of 3 Masters v. Madison County Mut. 
 
 a policy. Ins. Co. 11 Barb. N. Y. G24. 
 
 2 Burritt v. Saratoga County Mut. ■* See also ruling of Mr. Justice Wood- 
 F. Ins. Co. 7 Hill, N. Y. 188; Frost bury, Niooll v. Am. Ins. Co. 3 Woodb. 
 V. Saratoga County Mut. Fire Ins. Co. & M. C. C. 529 ; Richmondville Semi- 
 5 Den. N. Y. 154; Jennings v. Che- nary v. Hamilton Ins. Co. 14 Gray, 
 nango County Mut. Ins. Co. 2 id. 75 ; Mass. 459. 
 
 Sexton V. Montgomery County Ins. Co. 5 Gates v. Madison County Mut. Ins. 
 
 9 Barb. N. Y. 191 ; Kennedy v. St. Co. 5 N. Y. 469, Mr. Justice Foot dis- 
 
 Lawrence County Mut. Ins, Co. 10 id. seating. 
 285 ; Tebbets v. Hamilton Ins. Co. 1
 
 472 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 state, in reply to such an inquiry, an intention and preparation 
 to erect a building on the space, seems to come fully within the 
 principle and examples of concealment. The inquiry being in 
 general as to buildings near enough to endanger the one insured, 
 opinions might differ as to the distance at which such building 
 might be; the effect, and the correctness of the answer to such 
 an inquiry, can hardly be considered a condition on which the 
 validity of the policy will depend, and the Court of Appeals of 
 New York is accordingly of opinion that a policy could not be 
 forfeited by an omission to mention a neighboring building under 
 such an inquiry, unless it were a case of plain fraud.^ 
 
 Where, to the inquiry as to the situation relative to other build- 
 ings within ten rods, the applicant stated the " nearest building," 
 in a certain direction, was one which he named, omitting to 
 specify another within that distance, the vicinity to which did 
 not appear to be material to the risk, the New York Court of 
 Appeals adjudged that the policy was not affected by the omis- 
 sion, on the ground that the applicant appeared, by his answer, 
 to understand only the nearest building to be required to be 
 named ; and that the underwriters were bound to make further 
 inquiry if they demanded that any others should be specified.^ 
 
 The circumstance, that an application for a fire policy is drawn 
 up by an agent of the insurers for procuring applications, on 
 inspection of the building proposed for insurance, does not pre- 
 vent the forfeiture of the policy by the falsification of the answer 
 in respect to the distance of other buildings.'^ 
 
 873. A reference in the polic?/, by way of recital or otherwise, 
 to a survey furnished by the assured, /or a description of the build- 
 ing insured, does not make it a part of the policy so as to require 
 precise accuracy and conformity to the description; a substantial 
 conformity is sufficient. 
 
 It was so held by the Supreme Court and Court of Errors in 
 New York, where the policy stated that the insured premises 
 
 1 Gates V. Madison County Mut. Ins. cient statement, althougli one of them is 
 Co. 2 N. Y. 43. witliin two feet. Allen v. Charlestown 
 
 2 Ibid. ; Hall v. People's Ins. Co. 6 Ins. Co. 5 Gray, Mass. 384. 
 
 Gray, Mass. 185. There are two build- 3 Kennedy v. St. Lawrence County 
 ings " within fifty feet" is held a sutfi- Mut. Ins. Co. 10 Barb. N, Y. 284.
 
 SECT. X.] IN FIRE POLICIES. 473 
 
 were " more particularly described in the application and sur- 
 vey." 1 
 
 A similar decision was made by the Superior Court of the City 
 of New York, on a policy in a condition annexed to which it was 
 provided, that, " if any person shall describe the property other- 
 wise than it really is, so that it be insured at less than the rate 
 of premium specified in the printed proposals, the insurance shall 
 be void." An apartment specified in the plan as a " store for 
 painted ware," was in fact occupied by the carpenter for doing 
 the carpenter's work of the establishment. The court w^ere of 
 opinion, that, if the risk was not thereby enhanced so as to bring 
 the building under a higher rate of premium, the policy was not 
 affected.^ 
 
 In these cases a distinction is suggested between marine and 
 fire policies as to such statements, but I am not aware of any 
 good ground for a different construction of equivalent clauses in 
 these two descriptions of insurance. 
 
 A representation referred to in the policy, that there is to be an 
 open fireplace, being of a promissory character, must be complied 
 with within a reasonable time, or the underwriters will be dis- 
 charged.^ 
 
 A policy will be forfeited by the non-payment of an assess- 
 ment on a premium or deposit note, under a condition to that 
 effect in the policy;^ or suspended under a condition to that 
 effect,^ 
 
 Where the description is of a fact material to the risk, as in a 
 policy upon goods contained in a framed house •' filled in with 
 brick," the court held the policy to be void because it was not so 
 filled in.*5 
 
 874. The condition that the policy shall he void if the appli- 
 
 1 Snyder y. The Farmers' Ins. & Loan the policy, the court query, referring to 
 Co. 13 Wend. N. Y. 92 ; Farmers' Ins. the Matter of the Long Island Railroad, 
 & Loan Co. v. Snyder, 16 id. 481. ly Wend. N. Y. 37. 
 
 2 Delonguemere v. Traders' Ins. Co. 5 Blanchard v. Atlantic Ins. Co. 33 
 
 2 Hall, N. Y. 589. N. H. 9. 
 
 3 Murdock t". Chenango County Mut. 6 Fowler v. ^tna Ins. Co. 6 Cow. 
 Ins. Co. 2 N. Y. 210. ' N. Y. 673 ; S. C. 7 Wend. N. Y. 270. 
 
 4 Beadle i'. Chenango Mut. Ins. Co. Tu this case three juries successively 
 
 3 Hill, N. Y. 161. If under a by-law gave verdicts for the assured, 
 merely, which is not incorporated into 
 
 40*
 
 474 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 cant shall " misrepresent or omit to communicate any circumstance 
 which ought to be made known to the company in order to 
 enable them to judge of the risk they have undertaken or are 
 required to undertake," is held by Tindal, C. J., and Coltman, 
 Maule, and Cresswell, Justices, to refer to the time of negotiating 
 for and effecting the policy, and not to any subsequent time.i 
 
 So held in reference to insurance on a paper-machine, and 
 other fixtures and apparatus for manufacturing paper, in a build- 
 ing represented, at the time of making the policy, to be used for 
 the business of paper-making, which was discontinued, and, 
 without notice to the underwriters, that of cleansing and drying 
 cotton waste substituted and carried on by another person than 
 the assured by the assured's permission, which the jury found to 
 be more hazardous. It did not appear that the fire by which the 
 loss happened was at all occasioned by this business.^ 
 
 The decision of this case turned upon the question, whether the 
 assured was bound by the stipulation above cited to give notice 
 of the other business. In the other analogous case in the Queen's 
 Bench, the drying of bark, being more hazardous than drying 
 corn, which the furnace was represented to be used for, was only 
 temporary and was gratuitous, and a use for which it was suit- 
 able. 
 
 874 a. Under the condition that the policy shall be void if the 
 applicant shall answer falsely as to his title and incumbrances, 
 or fail to make a full exposition of the title and incumbrances, 
 incorrect answers will defeat the policy although given by 
 mistake.^ 
 
 A description by the assured of the property as " his," has been 
 held to defeat the policy, where he is only tenant by curtesy,* 
 mortgagee,^ or part owner,*^ or has merely a bond for a deed,'^ 
 
 1 Pirn V. Reid, 6 Mann. & G. 1. v. Fitchburg Ins. Co. 7 All. Mass. 51 ; 
 See supra, No. 866 a, as to continuing Cooper v. Farmers' Ins. Co. 50 Penn. 
 promissory warranties. St. 299. 
 
 2 S. C, on authority of Shaw v. Rob- 4 Leathers v. Farmers' Ins. Co. 24 
 herds, 6 Ad. & E. 75, and 1 Nev. & P. N H. 259. 
 
 279. 5 Jenkins v. Quincy Ins. Co. 7 Gray, 
 
 3 Smith V. Bowdith F. Ins. Co. 6 Mass. 370. 
 
 Cush. Mass. 448; Di'aper v. Charter 6 Wilbur v. Bowditch Ins. Co. 10 
 
 Oak Ins. Co. 2 All. Mass. 569-; Loehner Cush. Mass. 446. 
 
 V. Home Ins. Co. 17 Mo. 247; Towne ' Smith v. Bowditch F. Ins. Co. 6
 
 SECT. X.] IN FIRE POLICIES. 475 
 
 or the property belongs to his wife.i gQch a description has been 
 held to be good where the assured has an absolute agreement for 
 purchase, has paid part of the price, and is in possession ; ^ or has 
 possession under an assignment to him as a judgment creditor, 
 and the time for redemption has expired;^ or is in possession 
 where the estate is subject to mortgage and the equity of redemp- 
 tion has been sold on execution but the assured is in possession 
 with a right of redemption;"* and so also where a lessee of land 
 has insured the buildings, which he had a right to remove.^ And 
 also where A owned a building and B owned the stock, both of 
 which are insured in one policy and described as belonging to 
 A and B.^ Where a mortgage and deed given without consid- 
 eration in order to defraud creditors, but good between the parties, 
 is not disclosed, the policy is defeated." In general the record of 
 a conveyance or mortgage does not supersede the obligation to 
 disclose it.* 
 
 A mortgage paid though not discharged of record, is not an 
 existing incumbrance ; ^ but if the money to pay the debt has 
 merely been placed in the hands of a third party for the purpose 
 of payment, the mortgage is still an incumbrance.^*^ 
 
 Where the incumbrance, not disclosed, is on only a part of the 
 insured property, the policy is void,^i both on the ground of the 
 entirety of the contract, and because the concealment affects 
 the lien of the underwriter where such a lien exists. This condi- 
 
 Cush. Mass. 448 ; Lowell v. Middlesex 7 Treadway v. Hamilton Ins. Co. 29 
 
 Ins. Co. 8 Cush. Mass. 127; Falls v. Conn. 68. 
 
 Conway Ins. Co. 7 All. Mass. 46. 8 Packard v. Agawani Ins. Co. 2 
 
 1 Eminence Ins. Co. v. Jesse, 1 Mete. Gray, Mass. 334. 
 
 Ky. 523. 9 ilawkes v. Dodge Ins. Co. 11 Wise. 
 
 2 Hough V. City F. Ins. Co. 29 Conn. 188 ; contra, Warner v. Middlesex M. 
 10. See also Chase v. Hamilton Mat. Ass. Co. 21 Conn. 444. 
 
 Ins. Co. 22 Barb. N. Y. 527. 10 Battles v. York Ins. Co. 41 Me. 
 
 3 Clapp V. Union Ins. Co. 27 N. PI. 208. 
 
 143. ii Brown v. People's Ins. Co. 11 
 
 4 Biiffum V. Bowditch Ins. Co. 10 Cush. Mass. 280; Friesmuth v. Aga- 
 Cush. Mass. 540. warn Ins. Co. 10 Cush. Mass. 687 ; 
 
 5 Hope Ins. Co. v. Brolaskey, 35 Smith v. Empire Ins. Co. 25 Barb. N. 
 Penn. St. 282. Y. 497 ; Gould v. York Ins. Co. 47 Me. 
 
 6 Peck V. New London Ins. Co. 22 403; Day v. Charter Oak Ins. Co. 51 
 Conn. . 575. Me. 91; contra, Phoenix Ins. Co. v. 
 
 Lawrence, 4 Mete. Ky. 9.
 
 476 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 tion refers to the date of the application and does not require the 
 disclosure of a mortgage made after that date but before the 
 issuing of the policy.^ 
 
 A void prior policy importing a lien is not an incumbrance.^ 
 In some cases notice to the agent of the underwriters is held 
 a sufficient compliance with the condition,^ in others the assured 
 is held responsible for the failure of the agent to inform the 
 company.^ A judgment against a certain fund in the hands of 
 the assured not creating a lien is not an incumbrance.^ 
 
 875. On renewal of a policy in favor of an assignee, all the 
 conditions and stipulations arising on the original representations 
 referred to in the policy, or otherwise, still subsist.*^ 
 
 876. Fire policies not unfrequently limit the proportion of the 
 value of the subject that shall be insured, either by a provision in 
 the body of the policy, or the representations by the assured re- 
 ferred to in the policy, or by statute.^ 
 
 877. Under a public statute restricting insurance against fire 
 to three fourths of the value of the property, the insurance on a 
 greater proportion is held to render the policy inoperative as to 
 the excess, but not to defeat it for that proportion.^ 
 
 The value not being fixed by the policy, is to be determined by 
 the jury under this provision.^ 
 
 If the value is stated in the answers of the assured, he is 
 thereby estopped to prove it to be greater.^*^ 
 
 878. The statement of ' a mere expectation in the policy, or in 
 the answers referred to, is not a warranty of what is expected in 
 a fire policy, any more than in a marine one. 
 
 1 Button V. New England Ins. Co. "^ This provision is held to refer to 
 29 N. H. 153. the value at the time of loss. Kevins 
 
 2 Jackson v. Farmers' Ins. Co. 5 v. Rockingham Ins. Co. 25 N. H. 22; 
 Gray, Mass. 52. to the valuation in a valued policy, Ly- 
 
 3 Masters v. Madison County Mut. coming Ins. Co. v. Mitchell, 48 Penn. 
 Ins. Co. 11 Barb.'N. Y. 624. St. 367. 
 
 4 Lowell V. Middlesex Ins. Co. 8 ^ Holmes v. Charlestown Fire Ins. 
 Cush. Mass. 127 ; Bowditch Ins. Co. v. Co. 10 Mete. Mass. 211 ; Egan v. Mu- 
 Winslow, 3 Gray, Mass. 415 ; Abbott tual Ins. Co. of Albany, 5 Den. N. Y. 
 i;. Shawmut Ins. Co. 3 All. Mass. 213 ; 326 ; Cumberland Co. v. Schell, 29 
 and see infra, No. 1876. Penn. St. 31. 
 
 s Somerset Ins. Co. v. McAnally, 46 ^ Post v. Hampshire Mut. F. Ins. Co. 
 
 Penn. St. 41. 12 Mete. Mass. 555. 
 
 6 Clark V. Manufacturers' Ins. Co. '^^ Holmes v. Charlestown Mut. F. 
 
 8 How. 235. Ins. Co. 10 Mete. Mass. 211.
 
 SECT. X] IN FIRE POLICIES. 477 
 
 The description of the building to be " at present occupied as 
 a dwelling-house, but to be occupied hereafter as a tavern, and 
 privileged as such," is not a warranty of such occupancy, and 
 the policy subsists while it is vacant.^ 
 
 879. It is a common condition of fire policies to be void in case 
 of assignment without the consent of the underwriters.^ 
 
 This condition is broken by a general assignment of the 
 assured's property,'^ but not if it is made for the benefit of cred- 
 itors.'^ When insurance is on partnership property an assignment 
 by one partner to the other is held to be a breach of the condition, 
 but only as to the interest assigned.^ A mere attempt to assign 
 does not come within the condition.^ 
 
 Under a provision that the policy is to be void on the transfer 
 or termination of the " interest " of the assm-ed, it is forfeited by 
 a transfer of the policy.'^ 
 
 The consent of the underwriters that the policy may be 
 assigned to a mortgagee, on his giving his note for the premium, 
 will not, unless he gives the note, prevent the assignment from 
 rendering the policy void.*^ 
 
 If the secretary of the company assents to an assignment, he 
 is prima facie presumed to be authorized.^ 
 
 880. Another frequent condition is that the policy is to be 
 void on the " sale," or " transfer," or " alienation " of the sub- 
 ject. 
 
 This provision is of no effect in case of an absolute sale and 
 transfer, without a repurchase of the assured's insurable interest, 
 since the insurance is thereby vacated for want of a subject.^^ 
 
 Under this condition the policy is not forfeited by the descent 
 
 1 Catlln 0. Springfield Ins. Co. 1 Tenn. 444. Contra, Wilson v. Genesee 
 Sumn. C. C. 434; Hough v. City F. Ins. Co. 16 Barb. N. Y. 511. 
 
 Ins. Co. 29 Conn. 10 ; Kimball v. iEtna 6 Smith v. Monmouth Ins. Co. 50 ]Me. 
 
 Ins. Co. 9 All. Mass. 540. 96. 
 
 2 See c. 1, s. 10, No. 107, 108. 7 Smith v. Saratoga Mut. Ins. Co. 1 
 
 3 Dey I'. Poughkeepsie Ins. Co. 23 Hill, N. Y. 497. 
 
 Barb. N. Y. 623. 8 Smith i;. Saratoga Mut. Ins. Co. 3 
 
 4 People V. Beigler, Hill & D., N. Y. Hill, N. Y. 508 ; 1 id. 497. 
 
 133. 9 Conover v. Mutual Ins. Co. of Al- 
 
 5 Ilobbs y. Memphis Ins. Co. 1 Snecd, bany, 3 Den. N. Y. 254. 
 
 10 Supra, No. 86, 87, 185.
 
 478 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 of the property to heirs,^ or by a mere mortgage ^ so long as the 
 assured remains in possession ; ^ and a sale to secure a debt with 
 a lease back to the vendor with right of repurchase has been con- 
 sidered as an equitable mortgage not defeating the policy.* But 
 a conveyance absolute in terms, though made to secure a debt, 
 has been held to make void the policy ; ^ and it has been so held 
 where an existing debt is a lien on the subject.^ 
 
 It was held where the assured mortgaged the property and 
 then, by deed recorded, conveyed his equity of redemption to a 
 third party, taking a deed of defeasance from him which was 
 not recorded, that the policy was forfeited," and so held also 
 where the property was mortgaged and sold under decree.^ 
 
 Where a sale was made but was avoided for non-payment of 
 the purchase money and the property reverted, it was held that 
 the risk was merely suspended until such reversion,^ and a sale 
 with a simultaneous conveyance to a trustee to secure the pur- 
 chase money has been held not to defeat the policy.^^ 
 
 An agreement to sell, and part payment made, is not an alien*- 
 ation, so long as the assured remains in possession ^^ and no 
 conveyance is made, and the estate remains as security to the 
 assured for the fulfilment of the agreement,^^ but it has been held 
 
 1 Burbank v. Rockingham lus. Co. 47 Me. 232; Lawrence v. Hol^oke Ins, 
 
 24 N. II. 550. Co. 11 All. Mass. 387. 
 
 " Rollins V. Columbian F. Ins. Co. 8 Mount Vernon Ins. Co. v. Summit 
 
 25 N. H. 200; Folsom v. Belknap Ins. Ins. Co. 10 Ohio St. 347, 
 
 Co. 30 N. H. 231 ; Pollard v. Somerset 9 Power v. Ocean Ins. Co. 19 La. 
 
 Ins. Co. 42 Me. 221. 28. 
 
 3 Jackson v. Massachusetts Ins. Co. 10 Morrison's Adm'rs v. Tennessee 
 
 23 Pick. Mass. 418; Rice v. Tower, 1 Ins. Co. 18 Mo. 262. 
 
 Gray, Mass. 426. "Where the mortgagee n Davis v. Quincy Ins. Co. 10 All. 
 
 takes possession, see Jacobs v. Eagle Mass. 113 ; and it was so held in one 
 
 Ins. Co. 7 All. Mass. 132. case where the vendee took possession. 
 
 •* Holbrook v. American Ins. Co. Shotwell v. Jefferson Ins. Co. 5 Bosw. 
 
 1 Curt. C. C. 193; Smith v. Mon- N. Y. 247. See also Lane u. Maine F. 
 
 mouth Ins. Co. 50 Me. 96. Ins. Co. 12 Me. 44. 
 
 5 Western Ins. Co. v. Riker, 10 12 Trumbull v. Portage Ins. Co. 12 
 
 Mich. 279. Ohio, 305; Tittemore v. Vt. M. F. Ins. 
 
 6Ayres v. Hartford F. Ins. Co. 17 Co. 20 Vt. 546. The Court remarked in 
 
 Iowa, 176. this case that a conveyance and simul- 
 
 7 Tomlinson v. Monmouth Ins. Co. taneous reconveyance by mortgage
 
 SECT. X.] 
 
 IN FIRE POLICIES. 
 
 479 
 
 that in such a case the vendor recovers the insurance only for 
 the benefit of the vendee if the sale is completed,^ nor is an 
 agreement to represent the property as sold, to prevent its being 
 attached by creditors.^ 
 
 An assignment in trust for the benefit of creditors^ under in- 
 solvency proceedings,^ commenced by the assured,^ forfeits the 
 policy. 
 
 The policy is not forfeited under this condition by seizure by 
 an attaching creditor,^ or by a compulsory sale on execution, so 
 long as the assured has a right of redemption on payment of the 
 debt.^ 
 
 A dissolution of a partnership terminates the risk on the part- 
 nership property,^ but where the partners had agreed that in case 
 of dissolution one partner might continue the business, and upon 
 the death of one partner the survivor continued the business 
 until the loss, it was held that, as surviving partner, he could 
 recover for goods belonging to the firm but not for goods bought 
 after the death of his copartner.^ 
 
 The transfer by a partner or joint owner to his copartners 
 or coproprietors of his interest in the joint property covered by 
 
 would be an alienation ; but this dic- 
 tum is at least questionable. Masters 
 V. Madison Ins. Co. 11 Barb. N. Y. 624 5 
 Hitchcock V. North Western Ins. Co. 
 26 N. y. 68. See supra, No. 189, 
 294. 
 
 1 Reed v. Lukens, 44 Penn. St. 200. 
 
 2 Orell V. Hampden Ins. Co. 13 
 Gray, Mass. 431. 
 
 3 Dadmun Manufacturing Co. v. 
 Worcester Ins. Co. 11 Mete. Mass. 
 429. See also Lazarus v. General Int. 
 Ins. Co. 5 Pick. Mass. 76 ; Lazarus v. 
 Common wealth Ins. Co. 19 Pick. Mass. 
 81 ; and supra, No, 107. 
 
 4 Moore v. Protection Ins. Co. 29 
 Me. 97. 
 
 5 Young V. Eagle Ins. Co. 14 Gray, 
 Mass. 150. This being a mutual com- 
 pany the assignment was held to defeat 
 the claim of a mortgagee to whom the 
 policy was made payable. See Haz- 
 
 ard V. Franklin Ins. Co. 7 R. I. 429, 
 to the same point, the policy in that 
 case having been assigned to the mort- 
 gagee; contra where the assured re- 
 mained in possession. Phoenix Ins. Co. 
 V. Lawrence, 4 Mete. Ky. 9. 
 
 6 Marigny v. Home Ins. Co. 13 La. 
 Ann. 338 ; Phoenix Ins. Co. v. Law- 
 rence, 4 Mete. Ky. 9. 
 
 ''■ Strong V. Manufacturers' Ins. Co. 
 10 Pick. Mass. 40 ; Clark v. New Eng- 
 land Ins. Co. 6 Cush. Mass. 342. Contra, 
 under a condition against incumbrances. 
 Campbell v. Hamilton Ins. Co. 51 Me. 
 69. 
 
 8 Dreher v. JDtna Ins. Co. 18 Mo. 
 1 28. So does a partition of joint prop- 
 erty. Barnes v. Union Ins. Co. 51 Me. 
 110. 
 
 9 Wood V. Rutland Ins. Co. 31 Yt. 
 552.
 
 480 
 
 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 one policy, is held to defeat the policy ^ even in the hands of an 
 assignee.^ 
 
 Where a mortgagee insured his interest, and then bought the 
 equity of redemption, this was held not to be an alienation.-^ 
 
 From the general rule that the acts of the assignor after 
 assignment cannot affect the assignee, the interest of an assignee 
 of the policy as collateral cannot be affected by the alienation 
 of the property by the assured.* 
 
 Two buildings being insured in one policy for a specific 
 amount on each, an alienation of one is held to avoid the policy 
 only to the amount insured on it.^ A partial sale of merchan- 
 dise does not affect the policy, that being the proper use of the 
 subject.*^ 
 
 A stipulation for notice of any sale is not waived by prior 
 consent to a sale,'^ and where there are two policies between the 
 same parties upon different interests in the same subject, consent 
 to the sale of the subject of one policy is not consent to the sale 
 of the subject of the other.^ 
 
 It is held that a request for consent to the assignment of 
 the policy is notice of an interest acquired or intended in the 
 property.^ 
 
 1 Finley v. Lycoming Ins. Co. 30 
 Penn. St. 311 ; Hartford F. Ins. Co. v. 
 Ross, 23 Ind. 179; Iveeler v. Niagara 
 Ins. Co. 16 Wise. 523. 
 
 2 Buckley r. Garrett, 47 Penn St. 
 204. In New York it is held, in Hoff- 
 man V. ^tna Ins. Co. 32 N. Y. 405, 
 that a transfer by one partner to his co- 
 partner does not avoid the policy, over- 
 ruling to some extent the doctrine in 
 Tillou V. Kingston Ins. Co. 5 N. Y. 405, 
 ■which only saved the interest of the as- 
 signee. In Tennessee such a transfer 
 avoids the policy, but saves the interest 
 of an assignee. Hobbs v. Memjihis Ins. 
 Co. 1 Sneed, Tenn. 444. 
 
 3 Heaton v. Manhattan Ins. Co. 7 
 K. I. 502. 
 
 4 Boynton v. Clinton Ins. Co. 16 
 Barb. N. Y. 254. Contra, Ho.xsie v. 
 
 Providence Ins. Co. 6 R. I. 517 (but in 
 this case the assignment of the policy 
 was imperfect) ; Grosvenor v. Atlantic 
 Ins. Co. 17 N. Y. 391, overruhng Trad- 
 ers' Ins. Co. V. Robert, 9 AVcnd. N. Y. 
 404, and Tillou v. Kingston Ins. Co. 5 
 N. Y. 405 ; Hazard v. Franklin, Ins. Co. 
 
 7 R. I. 429. 
 
 5 Clark V. New England Ins. Co. 6 
 Cush. Mass. 342; Western Ins. Co. t;. 
 Riker, 10 Mich. 279. 
 
 6 West Branch Ins. Co. v. Helfenstein, 
 40 Penn. St. 289. 
 
 7 Eddy V. Tennessee Ins. Co. 21 Mo. 
 587. 
 
 8 Loring v. Manufacturers' Ins. Co. 
 
 8 Gray, Mass. 28. 
 
 9 Hooper v. Hudson River Ins. Co. 
 1 7 N. Y. 424.
 
 SECT. X.] IN FIRE POLICIES. 481 
 
 The burden of proving alienation is on the underwriters.^ 
 
 Under a stipulation annulling the policy if the property is 
 levied on or taken into possession, a notice of levy, though as 
 effectual as actual taking possession, does not annul the policy,^ 
 nor does a wrongful levy on the property insured.^ 
 
 881. It is a frequent condition of a fire policy that it shall be 
 void if other insurance is effected on the subject without notice 
 to and consent of the underwriters. This condition is limited to 
 other insurance by the same assured on the same subject.* 
 
 When the charter of the company absolutely forbids other 
 insurance, the policy is forfeited by such insurance ; ^ and where 
 the condition is imposed by a by-law printed on the policy^ or 
 otherwise made a part of it, the same is binding." 
 
 The other insurance must be by the same party, and prior ^ or 
 subsequent^ insurance by a third party who has an interest in 
 the property without the privity of the original assured, will not 
 affect tiie policy. An assignee of a policy having previously a 
 policy on the same subject is bound to give the notice ; ^"^ and the 
 assignee is bound by the condition.^^ 
 
 A mortgager is bound to give notice of other insurance made 
 by him for the benefit of, and assigned to the mortgagee as col- 
 lateral security ; ^^ and the rule is the same if the subsequent 
 insurance is effected by the mortgagee with consent of the mort- 
 gager, though it operates to extinguish the debt.^^ But where 
 
 1 OrrcU V. Hampden Ins. Co. 13 38 Penn. St. 250; Gilbert v. Phcenix 
 Gray, Mass. 431. Ins. Co. 36 Barb. N. Y. 372. 
 
 2 Coiiaaion wealth Ins. Co. v. Berger, 8 Tyler v. ^tna Ins. Co. 12 Wend. 
 42 Penn. St. 285. N. Y. 507 ; ^tna Ins. Co. v. Tyler, 16 
 
 3 Philadelphia Ins. Co. v. Mills, 44 id. 385. 
 
 Penn. St. 241. 9 Nichols v. Fayette Ins. Co. 1 All. 
 
 4 Williams's Adm'r v. Cincinnati Ins. i\Iass. 63 ; AVoodbury Ass. v. Charter 
 Co. Wright, Ohio, 542 ; and see Harris Oak Ins. Co. 31 Conn. 517. 
 
 V. Ohio Ins. Co. 5 Ohio, 461 ; Franklin w Walton v. La. State Mut. F. Ins. 
 
 Ins. Co. V. Drake, 2 B. I\Iour. Ky. 51 ; Co. 2 Rob. La. 563 ; Leavitt v. West- 
 
 Lowndsbury v. Protection Ins. Co. 8 ern Mar. & Fire Ins. Co. 7 id. 351. 
 
 Conn. 45!J. 'i Leavitt v. Western M. & F. Ins. 
 
 5 Blanchard v. Atlantic Ins. Co. 33 Co. 7 Rob. La. 351. 
 
 N. II. 'J. 12 Carpenter v. Washington Ins. Coi 
 
 *5 Ilygum <•. ^Etna Ins. Co. 11 Iowa, 16 Pet. 495. 
 
 21. 13 Holbrook v. A.nerican Ins. Co. 1 
 
 7 Simpson v. Pennsylvania Ins. Co. Curt. C. C. 193. 
 
 VOL 1. 41
 
 482 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 the first is assigned to the mortgagee, and the mortgager then 
 makes other insurance and afterwards redeems the mortgage, it 
 is held that he is not bound to give notice of the second policy.^ 
 
 The insurance must be on the same subject. A policy on a 
 building will not be forfeited by a subsequent one on the goods 
 in it;'- but insurance upon a part of the subject of the original 
 policy comes within the condition.^ 
 
 The condition may be limited to subsequent insurance,* and 
 permission to " keep insured " authorizes the continuance of a 
 prior policy.^ In New York the condition is held not to apply 
 to the renewal of a policy mentioned in the application,^ but this 
 is doubted in a Massachusetts case which decides that the policy 
 is forfeited by substituting insurance in another company though 
 for a less amount than that mentioned in the policy.^ The re- 
 cital of insurance which does not exist at the time does not 
 authorize the assured to make such insurance.^ 
 
 A void policy, prior or subsequent, does not come within the 
 condition; 9 and the assured may set up the invalidity of such 
 other policy, although he has received payment on it; ^^ but the 
 underwriters need only show the other insurance to be prima 
 facie valid.ii 
 
 Under two successive policies both with the condition of avoid- 
 
 1 Traders' Ins. Co. v. Robert, 9 Wend. 8 Conway Tool Co. v. Hudson Riv. 
 N. Y. 404 ; Robert v. Traders' Ins. Co. Ins, Co. 12 Cush. Mass. 144. The in- 
 17 id. 631. surance was made for the same amount, 
 
 2 Jones V. Maine Mut. F. Ins. Co. 18 but in different companies from those 
 Me. 155. mentioned. 
 
 3 Associated Firemen's Ins. Co. v. 9 Philbrook v. New England Ins. Co. 
 Assum, 5 Md. 165 ; Kimball v. Howard 37 Me. 137 ; Jackson v. Farmers' Ins. 
 Ins. Co. 8 Gray, Mass. 33. Co. 5 Gray, Mass. 52. 
 
 4 Mussey v. Atlas Ins. Co. 14 N. Y. lo Hardy v. Union Ins. Co. 4 All. 
 79. Mass. 217. But it^was held in Iowa, 
 
 5 Philbrook v. New England Ins. Co. where the subsequent policy was void 
 37 Me. 137. See also Kimball v. How- only for misdescription, that payment 
 ard Ins. Co. ut supra ; Blake v. Ex- upon it was a conclusive presumption 
 change Ins. Co. 12 Gray, Mass. 265. of its validity in a suit on the prior 
 
 6 Brown v. Cattaraugus Ins. Co. 18 policy. David v, Hartford Ins. Co. 13 
 N. Y. 385. See also Proprietors v. Hills- Iowa, 69. 
 
 borough Ins. Co. 19 N. II. 580. H Schenck v. Mercer Ins. Co. 4 Zabr. 
 
 7 Burt V. People's Ins. Co. 2 Gray, N. J. 447 ; Bigler v. New York Ins. Co. 
 Masf. 397. 20 Barb. N. Y. 635.
 
 SECT. X.] IN FIRE POLICIES. 483 
 
 ance by other insurance, prior or subsequent, without notice, and 
 no notice on either, the first is held in Massachusetts, Pennsyl- 
 vania, New Hampshire, and New York to continue valid, the 
 second being void for want of the. notice, and so not being an 
 insurance,! which seems to be the better doctrine, though a dif- 
 ferent judgment is given by the Supreme Court of the United 
 States,'"^ on the ground that it depended upon the underwriters 
 on the second policy whether that should be treated as void. 
 But if the second policy recites the first it is valid, though the 
 first maybe void;^ and an agreement to postpone the second 
 insurance until the termination of the first, keeps the first policy 
 alive.* 
 
 No time for giving notice of other insurance being specified, it 
 must be given without unreasonable delay, especially delay till 
 after a loss.° 
 
 Where the charter and regulations of a mutual company 
 authorize only the president and secretary to assent to other 
 insurance, it is held that the assent of a director or the secretary 
 only, is not sufficient.^ Under a stipulation for the consent of 
 the directors, the consent of two, the others being present and 
 not objecting, is sufficient." If the policy stipulates for " consent 
 in writing" oral consent is insufficient,^ Such a stipulation is 
 not complied with or waived merely by making a request for 
 allowance of other insurance in the application, or by the fact 
 that both policies were obtained through the same agent.^ 
 
 A recital of other insurance in the policy is sufficient compli- 
 ance with a condition that other insurance must be signified by 
 endorsement signed by the president ; ^^ endorsement by an agent 
 
 1 Jackson v. Mass. ISIut. Ins. Co. 23 5 Barrett v. Mut. F. Ins. Co. 7 Cush. 
 Pick. Mass. 418; Clark v. New Eng- Mass. 175; Mellen v. Hamilton F. Ins. 
 land Ins. Co. 6 Cusb. Mass. 342; Sta- Co. 5 Du. N. Y. 101 ; 17 N. Y. 609. 
 cey V. Franklin F. Ins. Co. 2 "Watts & 6 Stark Ins. Co. v. Hurd, 19 Ohio, 
 S. Penn. 506 ; Gale v. Belknap Ins. Co. 14 9. 
 
 41 N. H. 170; Mussey v. Atlas Ins. Co. ~ Goodall v. New England Ins. Co. 
 
 14 N. Y. 79. 25 N. H. 169. 
 
 2 Carpenter v. Wash. Ins. Co. 16 Pet. 8 Hale i: Mechanics' Ins. Co. 6 Gray, 
 495. Mass. 169. 
 
 3 Forbush v. Western Ins. Co. 4 Gray, 9 Forbes v. Agawam Ins. Co. 9 Cu-h. 
 Mass. 337. Mass. 470. 
 
 4 Atlantic Ins. Co. v. Goodall, 29 lO Proprietors v. Hillsborough Ins. Co. 
 N. II. 182. 19 N. H. 580.
 
 484 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 is compliance with a stipulation for " endorsement by the secre- 
 tary," such having been the usual practice.^ A verbal notice is 
 not sufficient under a stipulation that other insurance shall be 
 endorsed on the policy.^ Verbal notice to the agent of the com- 
 pany is held insufficient where the policy provides that notice of 
 other insurance shall be " mentioned in or endorsed upon the 
 policy;"^ or "endorsed on the policy or otherwise acknowledged 
 in writing ; " * or " noted by endorsement." ^ A stipulation for 
 notice by endorsement or " otherwise " is satisfied by notice 
 acknowledged by the secretary.^ 
 
 The condition that notice of other insurance shall be endorsed 
 upon or mentioned in the policy or acknowledged in writing is 
 not satisfied by proof that it was known to the underwriters ; '' 
 although known at the time of making the policy, and orally 
 assented to and the policy is filled up without instructions from 
 the assured.*^ 
 
 Where the policy requires merely notice of other insurance it 
 is sufficient to mention it in the policy,^ or to give notice to the 
 agent of the company; ^^ but the fact that the same agent effected 
 both policies is not constructive notice to the first underwriters.^^ 
 
 A stipulation for notice does not authorize the underwriters to 
 impose new conditions.^^ 
 
 Notice of a prior policy as being on the same subject is suffi- 
 cient, though it is on the same and other subjects,^^ or covers 
 
 1 Peck V. New London Ins. Co. 22 Mass. 1 75. See also Schenck v. Mercer 
 Conn. 575. Ins. Co. 4 Zabr. N. J. 447. 
 
 2 Hutchinson v. Western Ins. Co. 21 9 Ames v. New York Ins. Co. 14 
 Mo. 97. N. Y. 253. 
 
 3 Pendar v. American Ins. Co. 12 10 McEwen r. Montgomery Ins. Co. 5 
 Cush. Mass. 469. Hill, N. Y. 101 ; Sexton v. Same, 9 
 
 4 Kimball??. Howard Ins. Co. 8 Gray, Barb. N. Y. 129; Wilson v. Genesee 
 Mass. 33. See also Fabyan v. Union Ins. Co. 16 Barb. N. Y. 511. Such 
 M. F. Ins. Co. 33 N. H. 203. notice may be verbal; Schenck v. Mer- 
 
 5 Gilbert v. Phcenix Ins. Co. 36 Barb, cer Ins. Co. 4 Zabr. N. J. 447. 
 
 N. Y. 3 72. 11 Mellen w. Hamilton Ins. Co. 17 
 
 6 Potter V. Ontario and Livingston N. Y. 609. 
 
 M. Ins. Co. 5 Hill, N. Y. 147. 12 Westlake v. St, Lawrence Ins. Co. 
 
 7 Carpenter v. Washington Ins. Co. 14 Barb. N. Y. 206. 
 
 16 Pet. 495. '3 Liscom v. Boston Mut. F. Ins. Co. 
 
 s Barrett v. Mut P. Ins. Co. 7 Cush. 9 INIetc. IMass. 205 ; Haley v. Dorchester 
 
 Ins. Co. 1 All. Mass. 536. 
 
 1
 
 SECT. X.] IN FIRE POLICIES. 485 
 
 only a part;^ but notice, saying at the same time it is not on 
 the same subject, is not good notice.^ 
 
 Endorsement on a separate piece of paper pasted on is a good 
 endorsement.^ 
 
 882. It is an ordinary condition not to carry on in the building 
 insured, or to which the policy refers, any one of certain specified 
 hazardous trades, or any such trade generally, without specifiica- 
 tion, except with the consent of the insurers. Under this condi- 
 tion the insurance is defeated by a use specified as " hazardous," 
 though not more hazardous than that authorized,* but not by 
 carrying on in the building so much of such hazardous business 
 as is auxiliary and requisite to the authorized use ; as by ap- 
 propriating a room in a china-ware factory for the carpenter's 
 work usually done in connection with such an establishment.^ 
 
 An enumeration of " house building or repairing" in the list 
 of hazardous trades does not include the repairing of the build- 
 ing insured.*" 
 
 If the policy is conditioned to be made void by unauthorized 
 use, the cause of the loss is immaterial, and the fact that it was 
 carried on by a tenant without the knowledge of the landlord, the 
 assured, is held to be no defence,''' or by the mortgager after 
 assignment of the policy to the mortgagee.^ 
 
 It is for the jury to decide whether the use made of the building 
 is auxiliary to that authorized.^ 
 
 Where two buildings are insured by one policy under stipula- 
 tions applicable to both, an unauthorized use of one makes void 
 the insurance on both.^*^ 
 
 Where a building was insured for one hazardous use, this was 
 
 1 McMahon v. Portsmouth Ins. Co. ^ Grant v. Howard Ins. Co. 5 Hill, 
 22 N. H. 15. N. Y. 10. 
 
 2 Stacey y. Franklin Ins. Co. 2 Watts ' Howell W.Baltimore Soc. 16 Md. 
 & S. Penn. 507. 377. See also Farnaers' Ins. Co. t'. Sim- 
 
 3 Pennsylvania Ins. Co. v. Bowman, mons, 30 Penn. St. 299. 
 
 44 Penn. St. 89. 8 Hoxsie v. Providence Ins. Co. 6 
 
 4 Foster v. Belknap Ins. Co. 30 N. H. R. I. 51 7. 
 
 231. See also Wall jj. East River Ins. a Girard Ins. Co. v. Stephenson, 37 
 
 Co. 7 N. Y. 370. Penn. St. 293. 
 
 5 Delonguemcre v. Tradesmen's Ins, i^ Lee v. Howard F. Ins. Co. 3 Gray, 
 Co. 2 Hall, N. Y. 589. Mass. 583. 
 
 41*
 
 486 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 held to allow another hazardous use of the same class not of 
 greater risk.^ 
 
 883. An ordinary condition is not to store certain specified 
 articles in the insured building, or that to which the insurance 
 refei-s. Other stipulations relative to enhancements of the risk are 
 frequently made. 
 
 It has been held, that a reasonable quantity of the excepted 
 article may be kept, where it is properly auxiliary, or usually 
 belongs, to the business or use of the building expressly or 
 impliedly permitted by the policy : 
 
 As the keeping of a cask of oil and one of spirit, for retail 
 purposes, in a building used as a grocery shop, the articles being 
 usually a part of such a stock, though they were specified as 
 hazardous : ^ 
 
 Or keeping on hand spirituous liquors in quantity sufficient for 
 boarders in the house, under the same condition.^ 
 
 The same doctrine is held of keeping a small quantity of gun- 
 powder in buildings insured as " stores." * 
 
 So, cotton in bales being specified as hazardous, the keeping 
 of a sufficient quantity for sale, under a policy upon a stock of a 
 dry goods shop, does not forfeit the policy.^ 
 
 So a policy on the " stock of a manufacturer of brass clocks " 
 allows the keeping of excepted articles belonging to the business.^ 
 
 So the having upon the premises the excepted article for the 
 
 1 Smith I'. Mechanics' Ins. Co. 32 Ins. Co. 31 Conn. 193, the court inchned 
 N Y. 399. to the opinion that the stipulation was 
 Langdon v. N. Y. Equitable Fire of no avail unless the goods were act- 
 Ins. Co. 2 Hall, N. Y. 226 ; N. Y. Equi- ually hazardous. 
 
 table Ins. Co. i;. Langdon, 6 Wend. N. Y. 3 Rafferty v. New Brunswick Fire 
 
 623 ; Niagara F. Ins. Co. v. De Graff, Ins. Co. 3 Harr. N. J. 480. 
 12 Mich. 124; Haley y. Dorchester Ins. 4 Duncan v. Sun Fire Ins. Co. 6 
 
 Co. 1 2 Gray, Mass. 545. But In Massa- Wend. N. Y. 488 ; Leggett i-. iEtna Ins. 
 
 chusetts the court refuse to admit evi- Co. 10 Rich. So. C. 202; Bowman v. 
 
 dence that hazardous articles are usually Pacific Ins. Co. 27 Mo. 152; Phoenix 
 
 kept in the buildings used as described Ins. Co. v. Taylor, 5 Minn. 492. 
 in the policy ; as rags in a dry goods 5 Moore v. Protection Ins. Co. 29 Me. 
 
 and grocery store; Macomber i;. How- 97. 
 
 ard F. Ins. Co. 7 Gray, Mass. 257 ; oil, 6 Bryant v. Poughkeepsie Ins. Co. 17 
 
 sulphur, and matches in a grocery store ; N. Y. 200, sustaining S. C. 21 Barb. 
 
 Whitmarsh v. Charter Oak Ins. Co. 2 N. Y. 154. 
 All. Mass. 581. In Kathbone v. City
 
 SECT. X.] IN FIRE POLICIES. 487 
 
 purpose of making repairs, is not inconsistent witli this con- 
 dition : 
 
 As tar for tarring the building : ^ 
 Or oil and spirits of turpentine for painting it:^ 
 Nor does a casual deposit of excepted articles.^ 
 A condition not to use camphene prohibits its manufacture,* 
 and not to keep it includes its use for lighting.^ Where a build- 
 ing is insured as a printing-office, the prohibition of the use of 
 camphene is held not to extend to its use for cleaning type.^ 
 
 The condition that notice should be given to the underwriters 
 of any " material " increase of the risk on a mill, and their con- 
 sent should be obtained, is construed by the Court of Appeals, in 
 Maryland, to distinguish a " material " increase from one that is 
 not to be so considered. And it was held that this condition did 
 not require notice of repairs necessary and appropriate for ren- 
 dering the mill useful and profitable.^ 
 
 It was a condition of a polici/ upon a cabinet-maker's shop that 
 it should be void, " if any steam-engine should be introduced, or 
 used, or any description of fire-heat other than common fireplaces, 
 or any process of fire-heat should be carried on, or the risk should 
 be increased " and the same not stated and allowed. Parke, B., 
 and the other Barons of the English Court of Exchequer, adjudged 
 the policy to have been made void by putting up on the premises 
 a small steam-engine and boiler by way of experiment in turning 
 a lathe, for the purpose of determining whether to retain the same 
 in the assured's shop to be used in his business.^ 
 
 Under the condition that notice of alteration shall be given, and 
 if the risk is not increased, it shall continue, such notice is not 
 
 1 Dobson V. Sothby, 1 Mood. & M, 6 Harper v. City Ins. Co. 1 Bosw. 
 90. N, Y. 520 ; Same v. Albany Ins. Co. 17 
 
 2 O'Neil V. Buffalo F. Ins. Co. 3 N. Y. 1 94 ; Same v. New York Ins. Co. 
 N.Y.I 23. 22N. Y. 441. 
 
 3 Hynds v. Schenectady Ins. Co. 11 7 Allen v. Hartford County Mut. F. 
 N. Y. 554, sustaining S. C. 16 Barb. Ins. Co. 2 Md. 111. 
 
 N. Y. 119. 8 Glen v. Lewis, 8 Exch. 607; 17 
 
 * Mead v. North Western Ins. Co. 7 Enir. Jur. 842 ; 20 Eng. L. & Eq. 364. 
 
 N. Y. 530. See also Stokes v. Cox'^' 1 Hurlst. & N. 
 
 5 Westfall V. Hudson River Ins. Co. Exch. 320, 533 ; 37 Eng. L. & Eq. 561 ; 
 
 12N. Y. 289. 38 id. 437.
 
 488 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 indispensable.^ In giving such notice the same degree of accu- 
 racy is required as in disclosing facts in the application.^ 
 
 A statement that there ivas no stove in a building, the same 
 being then in the process of being built, was construed, in the 
 particular case, to be a continuous stipulation against there being 
 one during the period of the insurance.^ 
 
 It is held by the Supreme Court in Connecticut, that a state- 
 ment in reply to inquiries respecting the watch kept in a factory, 
 must continue to be complied with according to the plain import, 
 and is not cancelled and controlled by proof of a usage in the 
 place where the factory is situated.* 
 
 Describing a building to be occupied as a private residence, is 
 not a stipulation that it shall constantly be so occupied, and not 
 be at all vacant during the continuance of the risk.^ 
 
 884. Under the stipulation to submit to examination on oath, 
 the assured, having once submitted to examination, needs not be 
 examined again, though he had then consented to answer fur- 
 ther.^ And delay by the assured to be examined is excused by 
 the necessity to remove his family during an epidemic.'^ 
 
 885. It is a usual condition in fire insurance, that the assured 
 shall produce certain certificates of a loss, and the assured^ s books, 
 and the particulars of the loss, and other exhibits are recjuired by 
 some companies.^ 
 
 Non-compliance with a condition to produce the certificate of 
 a minister and church-warden, was held by Eyre, C. J., and BuUer 
 and Rook, Justices, of the English Common Pleas, to be excused, 
 on proof of the groundless refusal of the certificate by those 
 persons.^ Lord Kenyon and his associates held, that the produc- 
 
 1 Perry Ins. Co. V. Stewart, 19 Penn. Y. 122; Blood v. Howard Ins. Co. 
 St. 45. Contra, where the policy stip- 12 Cush. Mass. 472. 
 
 ulated that the assured should not re- ^ Moore v. Protection Ins. Co. 29 Me. 
 
 cover without such notice. Simpson i;. 97. But if required he must submit to 
 
 Pennsylvania Ins. Co. 38 Penn. St. 250. a second examination. Bonner v. Home 
 
 2 Calvert v. Hamilton Ins. Co. 1 All. Ins. Co. 13 Wise. 677. 
 
 Mass. 308. 7 Phillips v. Protection Ins. Co. 14 
 
 3 Williams v. New England Mut. Mo. 220. 
 
 F. Ins. Co. 31 Me. 219. 8 Jube v. Brooklyn Ins. Co. 28 Barb. 
 
 4 Glcndale Woollen Co. v. Protection N. Y. 412 ; Davis v. Davis, 49 Me. 282. 
 Ins. Co. 21 Conn. 19. 9 Wood v. Worseley, 2 H. Blackst. 
 
 5 O'Neil V. Buffalo F. Ins. Co. 3 N. 574.
 
 SECT. X.] IN FIRE POLICIES. 489 
 
 tion of the document could not be dispensed with on such 
 pvoof.^ 
 
 Where the rules of a fire office required that a certificate of 
 any loss, by the nearest disinterested magistrate, should be pro- 
 duced, the certificate of the certifying magistrate that he was 
 disinterested, was held to be sufficient prima facie evidence of 
 the fact. Very slight proof that the certifying magistrate is the 
 nearest one is sufficient.^ 
 
 A certificate of the loss given by a minister known by the un- 
 derwriters not to be the " nearest," as required by the condition 
 of the policy, without objection on this account, is a waiver of 
 objection on their part.^ 
 
 It is held by the Supreme Court of New York, and by Mr. 
 Chancellor Walworth, in giving his opinion in the Court of 
 Errors in New York, that where a policy requires a certificate of 
 certain persons as to a loss, " it is not necessary that such certifi- 
 cate should be in the precise words mentioned in the policy," but 
 that it is sufficient if it is evidently equivalent.* 
 
 886. Notice of loss and exhibits st\\)\x\2iie6. iox must be ^iven as 
 stipulated for and ivithin the stipulated timeP 
 
 It being stipulated that on loss by fire the assured shall give 
 immediate notice, and " within three months deliver accounts 
 exhibiting the full particulars of the loss," the giving in of the 
 exhibit is held by the English Exchequer Chamber to be a con- 
 dition precedent to the right of action on the policy.''' 
 
 The stipulation for notice of loss " forthwith," means as soon 
 as it can be conveniently given, and be reasonably expected.'^ 
 
 A condition to give notice of loss forthwith, is not violated by 
 delay while the assured is necessarily occupied in taking meas- 
 ures to save himself and his family from an epidemic prevailing 
 in the place at the time.^ 
 
 1 VVorseley v. Wood, G Term, 710. IMd. 87. See also Kingsley v. Xew 
 
 2 Cornell v. Le Roy, 9 Wend. X. Y. England Ins. Co. 8 Cush. Mass. 393. 
 163. 6 Mason v. Harvey, 8 Exch. 819; 20 
 
 3 O'Neil V. Buffalo F. Ins. Co. 3 Eng. L. & Eq. 541. 
 
 N. Y. 123. 7 St. Louis Ins. Co. v. Kyle, 11 Mo. 
 
 4 ^tna F. Ins. Co. r. Tyler, 16 278. 
 
 Wend. N. Y. 385. s Phillips v. Protection Ins. Co. 14 
 
 5 Franklin Ins. Co. v. Ilamill, G Gill, Mo. 220.
 
 490 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 A delay of four months not accounted for, is held to be a for- 
 feiture of claim for loss.^ 
 
 Affidavits taken on behalf of the underwriters and delivered to 
 their agent within thirty days after the loss, may be used by the 
 assured to prove due notice of the loss within that time, accord- 
 ing to the condition in a policy containing nothing to the con- 
 trary.2 
 
 887. If, under a stipulation that the underwriters may, in case 
 of loss, have twenty days to elect to replace damaged articles^ the 
 assured removes them to prevent an examination of them, he in- 
 curs against himself the presumption of fraud. ^ 
 
 888. There is usually a condition of forfeiture in these policies 
 for false or fraudulent statements or affidavits of the amount of 
 loss. 
 
 An over-estimate of the loss is not a forfeiture under this con- 
 dition : * 
 
 As where the assured made affidavit to Xl,085, and the ver- 
 dict was for X500 ; 5 
 
 Or where he estimated it at $2,800, and the verdict was for 
 $1,853.6 
 
 889. The underivriters may expressly or by implication ivaive 
 their right to object that the policy is void or forfeited, or to claim 
 compliance on the part of the assured ivith any condition or stipu- 
 lation express or implied;'^ as by omitting to make inquiries 
 and demand further statements of the assured.^ 
 
 890. Some fire policies have a clause for a submission of the 
 question as to the amount of loss, to arbitration. 
 
 Under such an agreement in an English policy, that the " ref- 
 erence should be subject to such rules and conditions as are 
 
 1 McEvers v. Lawrence, Hoffm. Ch. 6 Moore v. Protection Ins. Co. 29 
 N. Y. 173. Me. 9 7. See also Franklin Ins. Co. i^. 
 
 2 Sexton V. Montgomery Ins. Co. 9 Culver, 6 Ind. 137. The false swearing 
 Barb. N. Y. 191. must be intentional. Marion i'. Great 
 
 3 New York F. Ins. Co. v. Dela- Republic Ins. Co. 33 Mo. 148. 
 van, 8 Paige, Ch. N. Y. 419. 7 i„f,.a. No. 1812, 1813. 
 
 4 Hoffman v. Western F. & Mar. 8 Supra, No. 664, G65 ; infra, No. 904 ; 
 Ins. Co. 1 Rob, La. 216. But see Wall J^tna Ins. Co. v. Tyler, 16 Wend. N. 
 V. Howard Ins. Co. 51 Me. 32. Y. 385, opinion of Walworth, Chan. 
 
 5 Levy V. Bailie, 7 Bingh. 349. at p. 401.
 
 SECT. XI.] IN LIFE POLICIES. 491 
 
 usually inserted in orders of reference at Nisi Prius, and that the 
 submission should be made a rule of court," the assured proposed 
 a reference, to which the underwriters responded by proposing 
 one different from that specified in the policy, to which the 
 assured's counsel replied, tha,t it would be a better form to make 
 the reference a rule of court, and sent a copy of a writ and 
 form of agreement for the purpose, Mr. Chief Justice Best 
 ruled that the condition w^as satisfied on the part of the assured, 
 and' that an action for the loss was maintainable.^ 
 
 SECTION XI. WARRANTIES, CONDITIONS, AND STIPULATIONS IN 
 
 LIFE POLICIES. 
 
 891. Life policies usually contain sundry conditions, on non- 
 compliance with which they are forfeited ; as. 
 
 In case the life shall go beyond certain territorial limits : 
 
 Or shall die upon the seas : 
 
 Or enter the regular military or naval service : 
 
 Or shall die by suicide, or by his own hands : 
 
 Or shall die by the hands of justice : ^ 
 
 Or in consequence of a duel : 
 
 Or if premiums shall not be duly paid : 
 
 Or if the written statements of the assured shall be untrue. 
 
 892. The written statements by the assured in reply to interrog- 
 atories are usually referred to in the policy as warranties, and so 
 construed.^ 
 
 893. The statements of a third party, put in by the assured 
 as constituting-, ivith his own statements, the basis of the contract, 
 and so referred to in the policy, have the character of a warranty 
 of the facts stated ; and if the party so referred to by the as- 
 
 1 Gladstone v. Osborne, 2 Carr. & P. G. 647, note at the case of Borradaile 
 650. See as to agreements for arbitra- r. Hunter cited below. 
 
 lion, supra, No. b>i and note, also No. "^ As to the construction of, and com* 
 
 865. pliance with, representations and ex- 
 
 2 Harper's Adm'r v. Phoenix Ins. Co. press warranties, see supra. No. 866, 
 19 Mo. 506. See the forms of the and references therein, note (4). See 
 three preceding conditions, 5 Mann. & also Anderson v. Fitzgerald, 4 Hou. L. 
 
 Cas. 484; 24 Eng. L. & Eq. 1.
 
 492 EXPEESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 sured, and whose positive statements are thus made a part of 
 the contract, makes a false statement, the policy is void. 
 
 As where the person on whose life insurance was effected, by 
 another person, made a false statement of the name of his med- 
 ical attendant.^ 
 
 Whether any such statement is a warranty to be strictly ver- 
 ified will depend upon the statement itself, upon its being pro- 
 cured by the assured, or with his knowledge or consent, and 
 upon the manner in which it is referred to in the policy, as 
 already mentioned. 
 
 894. A usual inquiry put to the applicant is, whether the pro- 
 posed life is a good life, or in good health, or is ajflicted with any 
 disorder tending to shorten life. 
 
 A subject warranted to be in good health was troubled with 
 spasms and cramps, from violent fits of the gout. Lord Mans- 
 field : " Such a warranty can never mean, that a man has not in 
 him the seeds of some disorder. A man subject to the gout is a 
 life capable of being insured, if he has no sickness at the time, 
 to make it an unequal contract." '^ 
 
 This construction seems to have been pretty liberal towards 
 the assured. 
 
 A like decision was given where the insured party, having had 
 a paralysis of certain muscles, consequent upon a wound, and 
 causing inconvenience, but not at all afiecting his vital func- 
 tions, was considered not to be afflicted with any disease tend- 
 ing to shorten life.^ 
 
 The warranty that a female was in good health was ruled by 
 Graham, B., to be falsified by her constitution having been radi- 
 cally impaired by intemperance.* 
 
 An insured party, being warranted free from any disorder 
 tending to shorten life, was affected by dyspepsia ; and physi- 
 cians stated that this disorder, not in excess, did not tend to 
 shorten life. The witnesses did not agree as to the actual state 
 
 1 Everett v. Desborough, 5 Bingli. 2 Willis v. Poole, Marshall, Ins. 3d 
 
 503. See also Morrison v. Muspr^tt, ed. 771 ; 2 Park, Ins. 8th ed. 935. 
 4 Bingh. 60 ; Huckman v. Fernie, 3 3 Ross »>. Bradshaw, 1 W. Blackst. 
 
 Mees. & W. Exch. 505; Maynard v. 312; Park, Ins. 8th ed. 924. 
 Ptiiode, 1 Carr. & P. 3G0 ; S. C. 5 Dowl. 4 Aveson v. Kinnaird, 6 East, 188. 
 & R. 2GG, cited supra, No. 648.
 
 SECT. XI.] IN LIFE POLICIES. 493 
 
 of the subject's health, but the jury gave a verdict in favor of the 
 plaintiff. On a motion for a new trial, Mr. Justice Chainbre 
 said : " All disorders have, more or less, a tendency to shorten 
 life, even the most trifling: corns may end in mortification. That 
 is not the meaning of the clause. If dyspepsia were a dis- 
 order that tended to shorten life, within this exemption, the lives 
 of half the members of the profession of the law would be unin- 
 surable." Gibbs, C. J. : " Accordhig to the rule contended for, 
 the assured, to be insurable, must have no disorder at all," i 
 
 895. The condition of forjeiture of a life policy by '■^ suicide, ^^ 
 or, as it is more frequently expressed, death of the subject " by 
 his oion hands" ^ has been elaborately discussgd in the English 
 Court of Common Pleas ; the question being, whether, in order 
 to bring a case within the condition, the death must be what by 
 the English law is felonious, that is voluntarily incurred by a 
 person capable of crime, and so being a party felo de se ; or 
 whether no regard is to be had to his capabilities of crime, and 
 the policy is forfeited if he destroys himself, intending so to 
 do. 
 
 Insurance being with the exception of the death of the in- 
 sured party " by his own hands," he voluntarily threw himself 
 from Vauxhall Bridge into the Thames, as the jury at first 
 returned, " with the intention of destroying life," there being 
 " previous to said act no evidence of insanity." Mr. Justice 
 Erskine, before whom the trial was had, not being satisfied 
 with this verdict, because it did not indicate the state of the 
 party's mind " at the time he committed the act," the jury, 
 after retiring, altered their verdict, by finding that " at the time 
 he was not capable of judging between right and wrong ; " and 
 Justices Maule, Erskine, and Coltman, being a majority of the 
 court, gave opinions seriatim, that the judgment should be ren- 
 dered for the underwriters on this verdict, on the ground that the 
 object of the condition was to exclude claims in cases where the 
 motive of the assured might be to benefit his family, and that he 
 might be influenced by this motive, though his mind were so 
 disordered as to render him incapable of distinguishing between 
 
 1 Watson V. Mainwaring, 4 Taunt. 2 Uartman v. Keystone Ins. Co. 21 
 63. Penn. St. 466. 
 
 VOL. I. 42
 
 494 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 right and wrong. They thought the condition included all acts 
 of intentional self-destruction. 
 
 Tindal, C. J., dissented, being of opinion, that, as the condi- 
 tion was the language of the underwriters, and in case of am- 
 biguity, ought to be construed strictly in respect to them, it 
 ought to be limited to cases of felonius, criminal suicide.^ 
 
 "Where the party whose life was insured, being at the time 
 subject to insanity, went out in the night to a pond of shoal 
 water, where he was found drowned, his clothes being folded and 
 laid near to the pond, Alexander, C. B., in his instructions to the 
 jury, seems to have recognized the doctrine, that voluntary self- 
 destruction is included in the warranty, for he puts the case upon 
 the distinction, whether the party went to the pond with the in- 
 tention of bathing and was drowned accidentally, or drowned 
 himself purposely. The jury found for the holder of the policy .^ 
 
 A construction of this condition, similar to that of Tindal, C. J., 
 above cited, has been put upon it in New York, in case of 
 voluntary death by drowning ; namely, if the party is insane, it is 
 not a forfeiture.^ And I take our law to be, that any mental 
 derangement which would be sufficient to exonerate a party from 
 a contract, would render a person incapable of occasioning the 
 forfeiture of a policy under this condition. 
 
 If the assured, though insane, understood the nature of the act 
 and intended to take his life the policy is void.* 
 
 895 a. Under the condition not to go out of certain territorial 
 limits without license of the directors, notice and payment of in- 
 creased premium to the agent and receipt by him are held suffi- 
 cient license.^ Where the assured is permitted to travel by sea in 
 " first class decked vessels " he may go in the steerage,^ but not by 
 a different route from that allowed though equally safe.'' Permis- 
 
 1 Borradaile v. Hunter, 5 Mann. & Mass. 96. The subject is very fully 
 G. 639. discussed by Bigelow, C. J., in this 
 
 2 Garrett v. Barclay, 5 Mann. & G. case. 
 
 643, n. ; and see Kinnear r. Borradaile, 5 AYing v. Harvey, 5 De Gex, M. & 
 
 representing the Eock Life Ins. Co. G. Ch. 2G5 ; 27 Eng. L. & Eq. 140. 
 
 id. 643. 6 Taylor v. Mina, Ins. Co. 13 Gray, 
 
 3 Breasted v. Farmers' Loan Soci- Mass. 434. 
 
 ety, 8 N. Y. 299. 7 Hathaway v. Trenton Ins. Co. 11 
 
 4 Dean v. American Ins. Co. 4 All. Cush. Mass. 448.
 
 SECT. XI.] IN LIFE POLICIES. 495 
 
 sion to go out of the limits of the policy for one year, is held to 
 be applicable to any year.^ Where the life was allowed to 'be 
 out of specified limits until July 10, he was taken sick June 11, 
 being then six days journey outside, and died July 20; (he com- 
 pany was held liable.^ The " settled limits of the United States " 
 are held to include the overland route to California.^ 
 
 896. Policies often omit the forfeiture by suicide in favor of a 
 creditor. 
 
 Accordingly, in case of the assignment of a life policy, issued 
 by the Britannia Life Insurance Company, containing that excep- 
 tion, as collateral security, Wigram, V. C, in the English Court 
 of Chancery, held that an amount insured by the policy not ex- 
 ceeding the assignee's claim was exempted from the condition.^ 
 It is so held also when the assignment was in trust to secure a 
 bond for provision for the wife of the assured.^ 
 
 The regulations of some life companies authorize their direc- 
 tors, in case of suicide, to pay any atnount to the holders of the 
 policy, not exceeding the value of the policy at the time, for sur- 
 render.^ 
 
 897. Under the condition that the premium shall be paid within 
 fifteen days after the end of a quarter or year, the forfeiture is 
 not cancelled, and the policy revived, by payment after that time 
 to the agent of the insurers." 
 
 A policy upon a party stipulated to pay his widow an annuity, 
 if " he" should pay the quarterly premiums during his life, and 
 all assessments, according to the rules of the society, one of 
 which rules was, that if a member neglected to pay within fif- 
 teen days after the quarter-day, he might have the policy revived 
 by payment of all arrearages and a fine within six months, then 
 being in as good health as " when the policy expired." The pre- 
 mium became due on the 20th of December. He died on the 
 25th, and his representatives tendered the premium on the 27th. 
 
 1 Notman v. Anchor A?s. Co. 4 C. B. * Cook v. Black, 2 Jones, Annui- 
 N. 8. 476. ties, 118G. 
 
 2 Baldwin v. New York Ins. Co. 3 5 Moore v. TFoolsey, 4 Ell. & B. 243 ; 
 Bosw. X. Y. 530. 28 Enpr. L. & Eq. 248. 
 
 3 Casler v. Connecticut Ins. Co. 22 65 Mann. & Grang. G48, n. 
 
 N.Y. 427, Comstock, Davis, and Clerke, 7 Acej- v. Fernie, 7 Mees. & "W. 
 JJ., dissenting. Exch. 151.
 
 496 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 Lord Ellenborough and his associates held, that the rule required 
 the payment to be by himself, and that the policy could not be 
 revived by his representatives.^ 
 
 Revival of a policy on condition that the assured is in good 
 health, is held to mean in as good health as at the date of the 
 policy.'"^ 
 
 The knowingly receiving the premium by the underwriters 
 after it is due is a waiver of objection.^ 
 
 A premium due on Sunday may be paid on Monday.* 
 
 The rule of a society being that, if the agent shall not give 
 notice to the society of the non-payment of the premium within 
 fifteen days after it is due, he shall be charged with it, the so 
 debiting him will not save the forfeiture of the policy by the non- 
 payment.^ 
 
 898. A condition to name the "usual medical attendant ^^ of a 
 proposed life is violated by omitting one who had prescribed for 
 her and understood her constitution and ailments, and only 
 naming one who had casually recommended something for a cold, 
 on two occasions, so trifling that he had not made any charge.^ 
 
 This condition was ruled by Abbott, C. J., to be violated by 
 only naming a medical attendant who had not attended the party 
 for three years preceding, and omitting to name two wdio had 
 more recently attended him in severe illness.'^ In this case the 
 forfeiture was put upon the ground of an intent, by the party 
 whose life was insured, to deceive, though he was not himself 
 interested in the insurance. 
 
 Where the agent of the underwriters, at the request of the 
 assured, who had an interest in a life, applied to the proposed 
 life for the name of his " usual medical attendant," and he named 
 a physician who had formerly attended him, instead of a quack 
 doctor who had more recently attended him after the " drunken 
 bouts" in which he was in the habit of indulging himself, Best, 
 
 1 AVant r. Blunt, 12 East, 183. See 4 Campbell v. International Ass. 
 also Simpson v. Accidental Ins. Co. 2 C. Soc. 4 Bosw. N. Y. 298. 
 
 B. N. s. 257 ; Pritchard v. Merchants' 5 Acey v. Feruie, 7 Mees. & W. 
 
 Ass. Soc. 3 C. B. N. s. 622. Exch. 151. 
 
 2 Peacock v. New York Ins. Co. 1 ^ Huckman v. Fernie, 3 Mees. & 
 Bosw. N. Y". 338. W. Exch. 505. 
 
 3 Buckbee v. United States Co. 18 7 Maynard v. Rhode, 1 Carr. & P. 
 Barb. N. Y. 541. 360 ; S. C. 5 Dowl. & E. 266.
 
 SECT. XI.] IN LIFE POLICIES. 497 
 
 C. J., and his associates of the English Common Pleas, held the 
 policy to be void.^ 
 
 899. It being required to be stated ivhether the party proposed 
 for insurance had spit blood, the policy was held to be forfeited 
 by his not mentioning an instance of his spitting blood four 
 years previous, if it was a spitting of blood within the ordinary 
 meaning of the phrase, whatever indication this might.be as to 
 his health, the insurers being entitled to be informed of the fact, 
 that they might make their own inferences.''^ 
 
 900. An answer that the life is of temperate habits is falsified 
 by his having been of intemperate habits, though his health and 
 probability of long life are in no degree affected thereby.^ 
 
 901. In a life policy, made July, 1831, the subject, Colonel 
 Griswold, was ivarranted '■'■not to be subject to gout, vertigo, ^^5," 
 &c. It appeared that, in 1827, he had one or two fits of an 
 epileptic character, in consequence of a fall down some stone 
 steps, but had not before or afterwards been subject to any fits. 
 Lord Abinger, instructing the jury, said : " The interpretation I 
 put upon this clause is, not that the party never had a fit, but 
 that he was not, at the time of the insurance being made, a 
 person habitually and constitutionally afflicted with fits." * 
 
 Insurance without condition of forfeiture for non-payment of 
 premiums, is not forfeited thereby.^ Insurance with the excep- 
 tion of death "by means of insurrection, riot, civil commotion, 
 or military or usurped authority, or by the hands of justice," was 
 held not to include death by resisting a patrol.^ 
 
 902. Under the condition of forfeiture by reason of untrue 
 statements, the policy, and the premiums paid upon it, are forfeited, 
 though the untrue statement is honestly made, and is believed to 
 be true by the party making it or answerable for it." 
 
 A provision for such equitable adjustment, in case of forfeiture, 
 
 1 Everett v. Desborougli, 5 Bingh. 4 Chattock v. Shaw, 1 Mood. & R. 
 503; and see Lindenau v. Desborougli, 498. 
 
 8 Barnew. & C. 586 ; S. C. 3 Carr. & 5 Woodfin v. Asheville Ins. Co. 6 
 
 P. 353. Jones, No. C. 558. 
 
 2 Geach v. Ingall, 14 Mees. & W. 6 Spruill v. North Car. Ins. Co. 1 
 Ex(;h. 95. Jones, No. C. 126. 
 
 3 Southconibe v. Merrimau, Carr. & ' Duckett v. Williams, 2 Crompt. & 
 M. 286, per Coleridge, J. M. Exch. 348. 
 
 42*
 
 498 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 as may be provided by the directors, entitles the assured only to 
 the benefits of an established rule.^ 
 
 SECTION XII. STIPULATION FOR SET-OFP. 
 
 903. It is a frequent stipulation in policies, and often in the 
 consent to assignments of them, that the underwriters shall have 
 the right to set off demands, for premiums or otherwise, against 
 losses. 
 
 A policy being assigned together with the assured ship, and a 
 Joss having occurred, the insurers, after the amount of loss had 
 been settled, consented to pay it to the assignees, deducting the 
 premium notes of the assignors held by them, some due before 
 the assignment, others not so. It was held by Oakley, C. J., 
 that, under the statute of New York, relative to set-off generally ,2 
 the demand for loss, being at the time of the assignment of the 
 policy unliquidated, could not have been a subject of set-off 
 between the original parties to the policy, and accordingly could 
 not be so between the assignees and the underwriters.^ And 
 consequently the latter were liable to pay the whole amount of 
 the loss, in a suit brought in the names of the parties originally 
 insured, for the benefit of the assignees of the policy. 
 
 In Pennsylvania, a demand unliquidated at the time of the 
 assignment, may be set off.* 
 
 This latter seems to be the rule in England, where it is held, 
 that an underwriter has a right to set off premiums on policies 
 made before the bankruptcy of the assured, against losses occur- 
 ing after the bankruptcy on policies of date prior to it.^ 
 
 Where the assignment of a policy was assented to by the insur- 
 ance company, "reserving their rights expressed in the policy," 
 by which it was stipulated to pay any loss in sixty days after 
 proof, " the amount of the premium note, if unpaid, and all 
 
 J Nightingale v. State Ins. Co. 5 R. I. ioa, 1 Binn. Penn. 429 ; Gourdon v. Ins. 
 
 38. Co. of North America, id. 430, n. 
 
 2 Revised Statutes, 278, 2d ed. 5 Graliam v. Russell, 5 Maule & S. 
 
 3 Diehl V. General Mutual Ins. Co. 498; 2 Marsh. 561; 3 Price, Exch, 
 1 Sandf. N. Y. 257. 227, overruling Glennie v. Edmunds, 4 
 
 4 Rousset V. Ins. Co. of North Amer- Taunt. 775.
 
 SECT. XIII.] WAIVER OF FORFEITURE BY NON-COMPLIANCE. 499 
 
 sums due to the company from the insured when such loss 
 becomes due, being first deducted," it was held in Massachusetts, 
 that the company were entitled to set off premium notes given to 
 them by the assignors, in the usual course of the business of 
 insurance by them, subsequently to the date of the assignment, 
 the assignors still remaining solvent.^ This was a per curiam 
 opinion, and not easily reconcilable to the familiar, undisputed, 
 and indisputable doctrine relative to assignment and notice, 
 before stated.^ 
 
 SECTION XIII. WAIVER OF FORFEITURE BY NON-COMPLIANCE 
 WITH AN EXPRESS WARRANTY. 
 
 904. The risrht of the underwriters to insist on a concealment or 
 insufficiency of the assured^ s ansiuers to inquiries, may he waived 
 by their neglecting to make further inquiries.^ And their right to 
 insist on a non-compliance with a sti^ilation for statements and 
 proofs of the loss, may be ivaived by the silence of the underwriters 
 when the same are presented, or by their refusal to pay the loss 
 on other grounds, after the non-compliance is known to them.* 
 
 Where, with a knowledge of an erroneous statement of the 
 distance of other buildings from that insured, the company had 
 subsequently levied and received payment of assessments on 
 the stock note of the assured, this was held to be a waiver of 
 the forfeiture.^ 
 
 But where a policy is forfeited by some act of the assured, as 
 by an assignment after the risk has commenced, an assessment 
 on the stock note of the assured for losses, is not a waiver of the 
 forfeiture.*^ 
 
 In case of the answer to the inquiry as to buildings within ten 
 rods, the applicant stated what building was " nearest" on each 
 
 ^ Wiggin V. American Ins. Co. 18 5 Frost ?;. Saratoga County Mut. Ins. 
 
 Pick. Mass. 158. See also Wiggin v. Co. 5 Den. K. Y. 154; Gates v. Madi- 
 
 Suflblk Ins. Co. id. 145. son County Mut. F. Ins. Co. 2 N. Y. 
 
 2 Supra, No. 81, 106. 43, 
 
 3 O'Neil I'. Buffalo F. Ins. Co. 3 N. 6 Smith v. Saratoga County ]Mut. Ins. 
 Y. 1 2.3. Co. .3 Hill, N. Y. 508. See also Neely 
 
 4 Infra, No. 1800 et seq. Prelimi- v. Onondaga County Mut. Ins. Co. 7 
 nary Proof. ij. .(jq.
 
 500 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 side, omitting to mention one within that distance further off, it 
 was held, in New York, that, as the answer indicated that the 
 applicant understood the inquiry to relate only to the nearest, 
 and the building omitted was not material to the risk, and the 
 answer seemed rather to imply that there were other buildings 
 within ten rods, the omission by the underwriters to make further 
 inquiry, was a waiver of objection on account of the insufficiency 
 of the answer.! 
 
 The written statement referred to in a policy on a mill was, 
 "there is one stove" in the building; "the pipe passes through 
 a window at the side; there will, however, be a stove-chimney 
 built, and the pipe will pass into it at the side." The assured 
 afterwards removed the stove to a different part of the building, 
 and carried the pipe through a stone placed in the roof; and on 
 notice of this alteration, the secretary of the insurance company, 
 of whose authority no question is made in the case, indorsed 
 upon the policy, " Consent is given that the within policy remain 
 good, notwithstanding the stove be removed." Edmonds, J., 
 ruled that this was a waiver of the promissory warranty. The 
 verdict being for the assured, a new trial was refused by the 
 Supreme Court in New York, and in the Court of Appeals was 
 granted on different grounds, one ground stated by Cady, J., 
 being that this was not a waiver.^ 
 
 But this latter construction of the indorsement is certainly 
 very questionable, since it should seem that the company could 
 not intend that the building of the stove-chimney should still be 
 insisted upon, when the pipe of the only stove in the mill was 
 permitted to pass through the roof. 
 
 A mere verbal consent to waive a forfeiture without any 
 consideration or act done thereupon, has been held not to be 
 binding.^ 
 
 A condition precedent to the attaching of a policy as the 
 countersignature of an agent, may be waived by delivery of 
 
 1 Gates V. Madison County Mutual Co. 16 Ohio, 149. A promise to pay 
 F. Ins. Co. 2 N. Y. 43 ; S. C. 3 Barb, after the loss, the policy having been 
 N. Y. 73. avoided for breach of condition, is void 
 
 2 Murdock v. Chenango County Mut. as without consideration. Phoenix Ins. 
 Ins. Co. 2 N. Y. 210. Co. v. Lawrence, 4 Mete. Ky. 9. 
 
 3 Cockeriil v. Cincinnati Mut. Ins.
 
 SECT. XIII.] WAIVER OF FORFEITURE BY NON-COMPLIANCE. 501 
 
 the policy : ^ So a condition for prepayment of the premium 
 may be waived by parol.^ 
 
 The receipt of premium after non-compliance with an express 
 stipulation, combined with knowledge of the underwriters, is held 
 to be a waiver of a breach of condition against other insurance,^ 
 or alienation,^ or hazardous use,-^ or of a forfeiture of a life policy 
 by going out of limits,^ of marine insurance by unseaworthiness,' 
 or because the premium was not paid at the proper time ; ^ but a 
 mere request to pay the premium, and laying an assessment to 
 cover the loss is not a waiver of forfeiture for non-payment.^ 
 
 Knowledge of other insurance,^'' or previous endorsement of 
 consent,^! is a waiver of a rule requiring its endorsement, and the 
 knowledge of mortgages is held to be a waiver of warranty 
 against incumbrances.^^ 
 
 Receipt of premium by an agent is held not to be a waiver of 
 forfeiture. ^^ 
 
 But receipt of premium where the underwriters had no knowl- 
 edge of the forfeiture is not a waiver.^* Where a policy has been 
 suspended for non-payment, the payment of a subsequent assess- 
 ment does not waive the suspension.'^ 
 
 Assignment of a suspended policy with consent of the under- 
 
 i Myers v. Keystone Ins. Co. 27 9 Brewer y. Chelsea Ins. Co. 14 Gray, 
 
 Penn. St. 268. IMass. 203. 
 
 2 Trusteas, &c. v. Brooklyn Ins. Co. lO National Ins. Co. v. Crane, 16 Md- 
 19 N. Y. 305. Contra, Buffum v. Fay- 2(50. See also Ins. Co. v. Slockbower, 
 ette Ins. Co. 3 All. Mass. 3G0. 26 Penn. St. 199. 
 
 3 Atlantic Ins. Co. v. Goodall, 35 li Benedict v. Ocean Ins. Co. 31 N. Y. 
 N. II. 328 ; Barnes v. Union Ins. Co. 389. 
 
 45 N. H. 21. 12 Bidwell v. North Western Ins. Co- 
 
 4 Buckley v. Garrett, 47 Penn. St. 24 N. Y. 302. See also Simpson v. 
 204. Pennsylvania Ins. Co. 38 Penn. St. 250. 
 
 5 Keenan v. Dubuque Ins. Co. 13 13 Mulrey r. Shawmut Ins. Co. 4 All. 
 Iowa, 375. Mass. 116. 
 
 6 Bevin v. Connecticut Ins. Co. 23 14 Philbrook v. New England Ins. Co. 
 Conn. 244. 37 Me. 137; Gardiner v. Piscataquis 
 
 ■? Iloxie r. Home Ins. Co. 32 Conn. Ins. Co. 38 Me. 439; Hazard y. Frank- 
 
 21. lin Ins. Co. 7 R. I. 429. 
 
 8 Bouton V. American Ins. Co. 25 15 Nash f. Union Ins. Co. 43 Me. 343. 
 
 Conn. 542; Lycomlns Ins. Co. v. Schol- But see Keenan v. Missouri Ins. Co. 12 
 
 lenbern;er, 44 Penn. St. 259. Iowa, 126.
 
 502 EXPRESS WARRANTIES, STIPULATIONS, ETC. [CHAP. IX. 
 
 writers is held to revive it ; ^ but not so, where the policy is abso- 
 lutely void.2 
 
 A renewal is held to be a waiver of misrepresentation in the 
 original application.^ 
 
 Parol evidence of consent to non-compliance with an express 
 stipulation, is held inadmissible.^ 
 
 In one case it has been held that a vote to ^adjust a claim and 
 partial payments, do not constitute a waiver of the forfeiture of 
 the policy.^ 
 
 It is held in Massachusetts that the officers of an insurance 
 company have no power to waive express stipulations of the pol- 
 icy or by-laws,^ and the knowledge of a misrepresentation of an 
 agent cannot be set up as a waiver of an express warranty.'^ 
 
 1 Hale V. Union Ins. Co. 32 N. H. 5 Murphy v. People's Ins. Co. 7 All. 
 295. Mass. 239. 
 
 2 Eastman v. Carrol Ins. Co. 45 J\Ie. ^ Evans v. Trimountain Ins. Co. 9 
 307. All. Mass. 329 ; Mulrey v. Shawmut 
 
 3 Rathhoner. City Ins. Co. 31 Conn. Ins. Co. 4 All. Mass. 116. 
 
 1 93 ; Liddle v. Market Ins. Co. 4 Bosw. ' Tebbetts v. Hamilton Ins. Co. 3 
 
 N. Y. 179. All. Mass. 569. But see Rathbone v. 
 
 4 Lee V. Howard Ins. Co. 3 Gray, City Ins. Co. 31 Conn. 193; Peoria Ins. 
 Mass. 583. Co. v. Hall, 12 Mich. 202. 
 
 I 
 
 i 
 
 i
 
 CHAPTER X. 
 WHAT RISKS MAY BE INSURED AGAINST. 
 
 905. The risks, in insurance, are the causes of loss against 
 which the policy is intended to indefnmfi/ the assured. It has 
 already appeared, that, in general, persons may be insured against 
 any event, by the happening of which they might sustain a pecun- 
 iary damage. But there are some exceptions to this rule, which 
 depend upon the same principles that have been stated respect- 
 ing insurable interest. 
 
 906. A contract of indemnity against any risk is void, if incur- 
 ring the )'isk, or permitting indemnity against it, is in contravention 
 of the provisions or obvious policy of the laiu, or an infringement 
 upon the rights of persons not parties to the contract. 
 
 A person cannot be insured against the loss which he may 
 incur by violating the law.^ It is an illegal insurance to insure 
 against the consequences of wrongful acts.^ 
 
 907. An assured may be indemnified for a loss by an uninten- 
 tional contravention of a law of the government to which both 
 parties are subject, ivhere he is not at the time affected by notice 
 of the law. 
 
 A ship, owned and insured in New York, got under way in 
 the harbor of that place for her voyage, a few hours before intel- 
 ligence of the embargo act of 1807, passed three days before, was 
 received there ; and, on news of the enactment of the law, was, 
 before getting out of the port, seized for the violation of it. The 
 assured abandoned, and it was adjudged that he was entitled to 
 recover for a total loss.^ 
 
 1 Johnston V. Sutton, Dougl. 241. gaily kept for sale may be insured; 
 
 2 Delanoy v. Robson, 5 Taunt. 605. Niagara F. Ins. Co. v. De Graff, 12 
 See Dalmada v. Motteux, Park, Ins. 8th Mich. 1 24. 
 
 ed. 504 ; Cohen v. Hinckley, 1 Taunt. 3 Walden v. Phoenix Ins. Co. 5 Johns. 
 249 ; Gray v. Sims, 3 Wash. C. C. 276. N. Y. 310. 
 And supra, see c. 3, s. 2. Liquor ille-
 
 504 WHAT RISKS MAY BE INSURED AGAINST. [CHAP. X. 
 
 The equity of the rule adopted by the court is obvious, though 
 it is not consistent with the doctrine held in England and the 
 United States, that a law is binding throughout the country 
 immediately on its being enacted, unless it is otherwise provided, 
 though citizens at a distance from the seat of government cannot 
 possibly have immediate notice of it.^ 
 
 908. A person may he insured against the consequences of vio- 
 lating' the regulations of trade and the municipal laws of a foreign 
 state? 
 
 If the vessel or cargo be seized and condemned in a foreign 
 country, for violating their revenue laws, the insurers will be lia- 
 ble to pay this loss, provided it appears by the policy, and the 
 course of trade, that this was one of the risks contemplated by 
 the parties.^ 
 
 909. Though the goods of a neutral employed in a contraband 
 trade are subject to a seizure and confiscation by a belligerent, 
 yet the trade is not considered to he illegal^ on the part of the 
 neutral, and the risk of seizure as contraband may, accordingly, 
 be legally insured against.^ 
 
 The treaty between Great Britain and Portugal contains a 
 stipulation against trade in articles contraband of war, enumer- 
 ating them. This treaty was construed to apply only to trade 
 during a war in which one of the parties to the treaty might be 
 engaged.^ 
 
 910. A valid contract may he 7nade for the purpose of indemni- 
 fying the assured against the administration of the laws of nations 
 
 hy a foreign tribunal. 
 
 It has at times been a common practice, in some parts of the 
 United States, to insert a provision in a policy containing a war- 
 ranty of neutral property, that proof of the property being neutral 
 should be " made only in the United States." The construction 
 put upon this provision was, that the parties to the policy should 
 
 i As to promulgation of laws, see 1 ■* Supra, No. 282. 
 
 Kent's CoQi. 3d ed. 458. 5 The SantissimaTrinidada, 7 Wheat. 
 
 2 Supra, No. 268. 283. See also Gray v. Sims, 3 Wash. 
 
 3 Valin, tit. 2, p. 130, says, that to C. C. 276. 
 
 trade in foreign countries, in violation ^ Wilbraham u, Wartnaby, 1 Lloyd, 
 
 of their laws, is regarded as an ingen- & W. 144. 
 ious and laudable species of address.
 
 CHAP. X.] WHAT RISKS MAY BE INSURED AGAINST. 505 
 
 not be affected by any judgment given by a foreign tribunal 
 respecting the neutral character of the property, but the question 
 should still be left open to be considered by the courts of the 
 United States. No question has ever been made as to the legal- 
 ity and validity of such an agreement. 
 
 911. A person cannot protect himself by insurance against the 
 loss occasioned by his oivn fraudulent acts and misconduct. 
 
 A policy being made against " all risks," the court said it 
 applied " to all losses, except such as arise from the fraud of the 
 assured. This limitation is proper, for it cannot be supposed 
 that the plaintiff was to be insured against his own fraudulent 
 acts." 1 
 
 912. Upon the question, whether the members of a mutual 
 insurance company can bind themselves to indemnify each other 
 for the loss that any one may incur by his own vessel's running' 
 down another, the English Court of Common Pleas said, the 
 assured are also "insurers, and are as much interested to extend 
 the principle of loss as to restrain it;" and the insurance against 
 this risk was accordingly held to be valid.^ But the court inti- 
 mates, by giving this reason, that if the contract necessarily 
 made it for the interest of the assured to incur damage, it would 
 for this cause be void. 
 
 913. A citizen may be insured against an arrest or detention by 
 his own government, not occasioned by his contravention of law. 
 
 A question was first raised on this proposition in a case where 
 both contracting parties were subjects of the same government. 
 A vessel insured was seizedijy government and converted into a 
 fire-ship. Chief Justice Holt was inclined to the opinion, that 
 the insurers were liable, but the case being referred, the point 
 was not decided.^ 
 
 Lord Ellenborough said, that, where the assured was a British 
 subject, he might recover against a British underwriter for a loss 
 sustained by an act of their own government ; " that being 
 totally different from the case of a foreign assured ; for amongst 
 our own subjects, whether the plaintiff" or defendant sustain the 
 
 1 Goix V. Knox, 1 Johns. Cas. N. Y. 2 Delanoy u. Robson, 5 Taunt. G05. 
 837; and see Earl v. Shaw, id. 313; 3 Anon. 2 Salk. 444; 2 Ld. Raym. 
 Poth. n. 65 ; Simeon v. Bazett, 2 Maule 840. 
 & S. 94. 
 
 VOL. I. 43
 
 606 WHAT RISKS MAY BE INSURED AGAINST. [CHAP. X. 
 
 loss, it cannot prejudice the interests of the country." ^ The 
 same principle is adopted in the United States.^ 
 
 In the case of a policy on an American ship from New York 
 to Wilmington, North Carolina, and thence to Dublin, which 
 sailed on the voyage to Wilmington, but was detained by an 
 embargo before she got to sea from that place. Chief Justice 
 Kent, giving the opinion of the court, said : " It is a very forced 
 argument to liken this case to a contract to do an unlawful act, 
 or to perform an illegal voyage. The voyage commenced before 
 the law gxisted. It is not the object of the policy to violate any 
 law. It was an indemnity against arrests and detentions, not a 
 resistance of them. Where both parties belong to the same gov- 
 ernment, the act of the government is as much the act of one 
 party as of the other, and each ought to be equally estopped 
 from taking advantage of it to the prejudice of the other." ^ 
 
 Insurance was made in New York on the " British brig Fran- 
 cis," from Middletown, Connecticut, to the West Indies, &c. The 
 assured, the owner of the ship, was a British subject. The ship 
 was seized off Antigua by a British ship of war, and carried into 
 that island, and there condemned by a British vice-admiralty 
 court, on account of an alleged violation of the British naviga- 
 tion acts. On the loss being claimed, it was objected on the 
 part of the underwriters, that the acts of the naval and judicial 
 officers of the British government in seizing and condemning the 
 ship, must be imputed to the assured. Mr. Justice Sutherland, 
 in giving the opinion of the court, said : " It is contended that 
 the assured, being a British subject, and his vessel having been 
 condemned by a British court, cannot recover for an act done by 
 or under the authority of his own state. There is a class of cases 
 which holds this doctrine, in relation to the legislative acts of a 
 government, but no case has been furnished by the counsel, and 
 none has been found by the court, in which the principle has 
 been extended to the decisions of the courts of justice." * 
 
 The opinion of the court accordingly was, that the assured 
 might be indemnified against such a loss. 
 
 1 Page «;. Thompson, Park, Ins. 130, n. N. Y. 299. See also Walden v. Phoe- 
 
 2 Delano v. Bedford Mar. Ins. Co. 10 nix Ins. Co. id. 310; Ogden v. N. Y. 
 Mass. 347; Odlin v. Ins. Co. of Penn- Firemen's Ins. Co. 10 id. 177. 
 sylvahia, 2 Wash. C. C. 312. ■* Francis v. Ocean Ins. Co. 6 Cow. 
 
 3 M'Bride v. Marine Ins. Co. 5 Johns. 404.
 
 CHAP. X.] WHAT RISKS MAY BE INSURED AGAINST. 507 
 
 914. A foreign assured is indemnified, under a policy in the 
 common form, against the acts of his own government, that are not 
 hostile to that of the underturiter. 
 
 The contrary was held in a case where some Americans, being 
 neutrals, shipped property for a voyage from the United States 
 to Liverpool, which was insured in England on account of the 
 shippers. A vessel belonging to the American consul at Liver- 
 pool was insured there at about the same time. After the risks 
 had commenced under these policies, the vessel and cargoes 
 insured were detained in the American ports by the embargo of 
 1807. Losses being claimed on this account. Lord Ellenborough, 
 who gave the opinion of the court, said : " In all questions arising 
 between the subjects of different states, each is a party to the 
 public authoritative acts of his own government ; and, on that 
 account, a foreign subject is as much incapacitated from making 
 the consequences of an act of his own state the foundation of a 
 claim against a British subject, in a British court of justice, as 
 he would be if such an act had been done immediately and indi- 
 vidually by such foreign subject himself." ^ 
 
 But in a later case, the opinion of the same court, given by the 
 same judge, does not confirm this doctrine. A ship and cargo 
 belonging to Prussian subjects, residing at Colburg, being insured 
 in England, were seized and confiscated by the Prussian govern- 
 ment, under the Berlin decree. The insurers, in defence against 
 a claim for the loss, assumed the ground upon which the court 
 had decided the above cases. Lord Ellenborough said : " There 
 is no doubt that an insurance upon an American ship, against an 
 American embargo, might be good ; for not only an insurance 
 against the acts of the assured's own government, but even against 
 his own acts, might be good, if the underwriter was disposed 
 to enter into so hazardous a risk." He goes on to say, that the 
 underwriters in the above cases did not intend to insure against 
 the acts of the American government. "As the perils occasioned 
 by the acts of the party's own government are held to be excluded, 
 on the reason of the thing, so they may beiield to be included 
 whenever the reason of the thing requires it." And judgment 
 
 1 Conway V. Davidson, 10 East, 53G ; Same v. Forbes, id. 539; Maury v. 
 Shedden, id. 540.
 
 508 WHAT RISKS MAY BE INSURED AGAINST. [CHAP. X. 
 
 was given for the assured. ^ But it is not said that there was any 
 difference between the policies, or any other circumstance to dis- 
 tinguish the cases ; the latter decision, therefore, seems to overrule 
 the former. 
 
 Chief Justice Kent, speaking of this notion, that the act of the 
 government is that of its subjects, says it is " too fanciful" to be 
 entitled to any weight.^ 
 
 915. An insurer cannot bind himself to indemnify a foreigner 
 against the hostile acts of the insurer's government. 
 
 In Lord Mansfield's time, as we have seen, an alien enemy 
 recovered, in some instances, of British underwriters for losses by 
 British captures.^ But such a claim could not now be enforced, 
 and it was never fully and distinctly recognized to be legal.* 
 
 916. A neutral mai/ be protected, under a policy made in a 
 belligerent country, against arrest by the officers of such country, 
 on groundless suspicion of the subject insured being enemy prop- 
 erty. 
 
 An American ship, the Hannah, was insured in England, on a 
 voyage from New York to Havre, in the course of which she was 
 arrested by a British cruiser, and carried into Bristol, to ascertain 
 whether she had French property on board ; there being a war at 
 the time between England and France. The loss occasioned by 
 this detention was claimed of the underwriters, who objected that 
 they could not bind themselves to indemnify a neutral for losses 
 consequent upon this detention by their own government. Lord 
 Ellenborough said, in giving the opinion of the court, that an 
 " American was at liberty to pursue his commerce with France, 
 and to be the carrier of goods for French subjects. The indem- 
 nity sought in this case is not an indemnity to an enemy, or to a 
 neutral forfeiting his neutrality by an act hostilely, done by him 
 against the interests of Great Britain, but an indemnity to a 
 
 1 Simeon v. Bazett, 2 Maule & S. son, id. 346. See also Plantamour v. 
 94. Staples, 1 Term, 611, n. ; 3 Dougl. 1; 
 
 2 Walden t). Phoenix Ins. Co. 5 Johns. Gamba v. Le Mesurier, 4 East, 407; 
 N. Y. 310. Kellner v. Le Mesurier, 4 id. 396. This 
 
 3 Thellusson v. Fergusson, Dougl. case is commented upon, 7 East, 451. 
 346 ; Eden v. Parkinson, id. 732. Touteng v. Hubbard, 3 Bos. & P. 291 ; 
 
 4 Supra, c. 3, s. 2; Eden v. Parkin- Glaser i;. Cowie, 1 Maule & S. 52, where 
 son, Dougl. 732 ; Thellusson v. Fergus- Lubbock v. Potts, 7 East, 449, is cited.
 
 CHAP. X.] WHAT RISKS MAT BE INSURED AGAINST. 509 
 
 neutral, as such, against the consequences of an act innocently 
 and allowably done by him, in the exercise of his own neutral 
 rights, and as innocently and allowably, to a certain degree, con- 
 trolled and interrupted on our part, in the exercise of our rights 
 as belligerents." -And on this ground, that the detention was 
 not of a hostile character, judgment was given in favor of the 
 assured.^ 
 
 917. An officer of a vessel may he insured against the barratry 
 of the other officers^ or the master or men? 
 
 917 a. The risk in bottomry may be for as many voyages or 
 passages as are, bona fide, in contemplation by the parties.^ 
 
 A life policy covering the risk of suicide is not illegal as 
 encouraging suicide.* A policy against fire and other risks 
 which are illegal is good against fire.^ 
 
 1 Barker v. Blakes, 9 East, 283. See 3 The Mary, 4 Notes of Cas. 376. 
 also Visger v. Prescott, 5 Esp. 184; * Moore v. Woolsey, 4 Ell. & B. 243 ; 
 Kellner v. Le Mesurier, 4 East, 396. 28 Eng. L. & Eq. 248. 
 
 2 Stone u. National Ins. Co. 19 Tick. ^ Mobile Ins. Co. v McMillan, 31 
 Mass. 34. Ala. n. s. 711. 
 
 43*
 
 CHAPTER XI. 
 
 THE VOYAGE. DUKATION OF THE RISK. 
 
 Sect. 1. At what time or place the risk I Sect. 2. Termination of the risk, 
 begins. I 3. Suspension of tlxe risk. 
 
 SECTION I. AT WHAT TIME OR PLACE THE RISK BEGINS. 
 
 918. Since the underwriters are liable only for losses arising 
 from the perils insured against, and within the time for which the 
 risk is to continue, the policy must specify luhat risks the insurers 
 assume, ivhen those risks commence, and for what period they are 
 to continue, or by what event they are to be terminated. 
 
 Some marine ordinances contain regulations in respect to the 
 time when the risk on the ship or goods shall begin and end.^ 
 But there is no positive regulation by law on this subject in Great 
 Britain or the United States, nor does it appear that any such is 
 necessary. 
 
 " The risk is to be described with suitable and convenient cer- 
 tainty. When the insurance is for a term of time, the termini are 
 the day and hour when the insurance commences and terminates. 
 When the insurance is on a particular voyage, there is generally 
 no reference to any time. The termini are to be expressed in the 
 policy, and if left in uncertainty by any omission or blank, the 
 policy is void." ^ 
 
 Under an open, running policy upon shipments on vessels on 
 the western waters or from the Atlantic ports by way of New 
 Orleans, for six months, " indorsements to be evidence of prop- 
 erty at the risk of the underwriters," the assured received advice 
 of a shipment and loss at the same time, which he proposed to 
 indorse. Justices Topkins, Napton, and Scott held, that the risk 
 
 1 Code de Commerce, 1. 2, tit. 1 0, ^ Per Sewall, J., Manly t;. United M. 
 n. 152. & F. Ins. Co. 9 Mass. 85.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 511 
 
 did not begin at all, on the ground that the policy could not 
 attach by indorsements made after notice of loss.^ 
 
 If a ship is insured, says Molloy, " from London to ," 
 
 the risk will not attach for want of a sufficient description when 
 it is to end ; ^ but the port of departure not being specified, the 
 omission may be supplied by evidence of the port where the 
 vessel was when the policy was made, and from which she sailed 
 on the voyage described.-^ 
 
 But courts do not require a very minute accuracy in the de- 
 scription of the risk ; and it is, in general, sufficient, if the inten- 
 tion of the parties, in respect to the commencement and end of 
 the risk, can be satisfactorily gathered from the policy, and any 
 incidental error or inconsistency, in immaterial circumstances, 
 will not defeat the contract. 
 
 919. Tliere can be no risk until the assured has an interest in 
 the inspired subject. 
 
 Accordingly, if the policy is on a vessel at a certain place, 
 which the assured had purchased there, the insurance can take 
 effect only from the time of the purchase.* 
 
 920. We have already seen that the risk does not commence, 
 the policy being void, in case of concealment of material facts, or 
 non-fulfilment of a 7-epresentation or warranty requiring fulfilment 
 at the outset.^ 
 
 921. If the risk is described to commence ^^ on" a certain daVi 
 it extends to all losses happening during any part of the day : but 
 a question has occurred upon the construction of a policy '■'from " 
 a certain day. 
 
 The life of Sir Robert Howard was insured by a policy dated 
 on the 3d of September, " for one year from the date " thereof. 
 He died on the 3d of September following. Chief Justice Holt 
 instructed the jury, that " ' from the day of the date ' excludes the 
 day, but ' from the date ' includes it." ^ 
 
 Whether the expression, " from the day of the date," excludes 
 
 1 Edwards u. St. Louis Perpetual Ins. Cas. N. Y. 269; and see Seamans v. 
 Co. 7 Mo. 382. Loving, 1 Mas. C. C. 128. 
 
 2 Book 2, c. 7, s. 14. 5 Supra, No. 676, 67 7, 764. 
 
 3 Folsom V. Merchants' Ins. Co. 38 <> Sir Robert Howard's Case, 2 Salk. 
 Me. 414. 625. 
 
 4 Steinback v. Rhinelander, 3 Johns.
 
 512 THE VOYAGE. DURATION OP THE RISK. [CHAP. XI. 
 
 that day, was afterwards very elaborately considered by Lord 
 Mansfield, who examined all the previous authorities on the 
 subject, which he said were " so many contradictions backwards 
 and forwards." He came to the same conclusion which Lord 
 Hardwicke had come to, that " the construction must always 
 depend upon the subject-matter." 
 
 It was held that " from the date," and " from the day of the 
 date," mean the same thing.^ 
 
 In life and fire policies, and marine time policies, the risk is 
 usually specified to begin at a certain hour of a certain day. 
 
 922. A policy takes effect in relation to the day of its date 
 thotigh not delivered until afterwards? 
 
 923. Insurance for g-oods for a certain voyage on board of a 
 certain vessel, is presumed to be for the next such voyage she 
 makes,-2iX\di will not apply to an ulterior one, unless this presump- 
 tion is rebutted. 
 
 Insurance being on 143 hogsheads of sugar, and all lawful 
 goods on the steamer B., at and from New Orleans to Louisville, 
 was held, in Louisiana, to attach only to the twenty-six hogs- 
 heads taken on the next trip of the boat, and not to those subse- 
 quently taken.^ 
 
 924. Postponing the risk by making a compulsory intermediate 
 'passage does not prevent its attaching^ if the voyage is pursued 
 without unnecessary delay : 
 
 As where, in case of insurance on freight from Saffi to Lisbon, 
 with notice that the vessel had to make two prior passages, the 
 crew, being afraid of Moorish cruisers off Saffi, refused to sail 
 thither, and compelled the master to make an intermediate pas- 
 sage to Lisbon.* 
 
 925. The risk may be assumed by the underiuriters for an 
 anterior ])eriod, and cover losses prior to the date of the policy^ 
 provided there is no concealment or misrepresentation by either 
 party.^ 
 
 1 Pugh V. Leeds, Cowp. ?14. 4 Driscol v. Passmore, 1 Bos. & P. 
 
 8 Lightbody v. North American Ins. 200. 
 
 Co. 23 Wend. N. Y. 18; Philadelphia 5 Barrio. Gibson, 5 Mees. &W. Exch. 
 
 Ins. Co. V. American Ins. Co. 23 Penn. 390 ; Hallock v. Commercial Ins. Co. 2 
 
 St. 65. Dutch, N. J. 268 ; Commercial Ins. Co. 
 
 3 Courtnay v. Miss. F. & Mar. Ins. v. Hallock, 3 id. 645. 
 Co. 12 La. 233.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 513 
 
 For this purpose the clause " lost or not lost" is introduced. 
 But this clause is not necessary ; it is sufficient if it appear by 
 the description of the risk, and the subject of the contract, that 
 the policy is intended to cover previous losses. 
 
 A wager being made in the terms following: "I promise to 
 pay the Earl of March 500 guineas if my father dies before Sir 
 W. Codrington ; " signed by William Pigot ; a corresponding 
 promise being made to Mr. Pigot by the Earl of March ; it 
 appeared that Mr. Pigot's father was dead at the time of making 
 the wager. Lord Mansfield said : " It was not known that the 
 father of either of them was then dead. Their lives, their healths, 
 were neither warranted nor excepted. It was equal to both of 
 them whether one of their fathers should be then sick or dead. 
 That the event had happened was in the contemplation of neither 
 party. The nature of such a contract, and the manifest intention 
 of the parties, support the verdict of the jury," who applied the 
 contract to the previous event.^ 
 
 Insurance was made in June, 1825, " lost or not lost, upon the 
 ship Tarquin, now on a whaling voyage in the Pacific Ocean, 
 during her stay there and until her return to Nantucket; begin- 
 ning the adventure upon said cargo as aforesaid, and to continue 
 during the voyage aforesaid, until landed." The Tarquin had 
 sailed on the voyage in January, 1822. One question was, when 
 the risk commenced on the oil taken, no question being made as 
 to the outfits. Shaw, C. J., giving the opinion of the court, said : 
 " To construe this policy, according to the argument of the de- 
 fendants, so as to make the risk commence on the day of its 
 date, it would be necessary to limit the word ' voyage ' to a very 
 small part of the voyage, and render the words ' lost or not 
 lost ' W'holly inoperative. The word ' now,' we take to be merely 
 descriptive, and designed to identify the voyage. We are of 
 opinion that the policy would attach upon the oil, from the time 
 the vessel first began to take whales in the course of this voy- 
 age." 2 
 
 926. Who'e a previous loss is known to both parties it is no 
 ground of objection to the policy.^ 
 
 1 Earl of March v. Pigot, 5 Burr. 2 Paddock v. Franklla lus. Co. 11 
 2802. See also Thompson v. Donald- Pick. Mass. 227. 
 son, 3 Esp. 63. 3 Mead v. Davison, 3 Ad. & E. 303.
 
 514 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 Where the amount of the loss is not known, or that of salvage 
 in total loss, there is no reason why indemnity may not be agreed 
 upon, any more than where the loss itself is not known. 
 
 927. Under a policy on a vessel against sea-perils " at" a place, 
 as distinct from a voyage, the risk commences when the vessel 
 is at the place in reasonable safety ; ^ and on the goods from the 
 time of their being exposed to sea-perils within the conditions of 
 the policy in respect of the vehicle and custody in which they 
 are. 
 
 928. The risk is sometimes described to be at and from certain 
 ports, for the purpose of specifying' what navigation and voyages 
 are intended, and not for marking the commencement of the risk. 
 
 A policy was made on a ship, " to, at, and from one or more 
 ports on the globe, for one year, commencing the risk at Bar- 
 badoes on the 7th of December, at twelve o'clock at noon, to 
 continue till the vessel should be arrived and moored at anchor 
 twenty-four hours in safety, within the year aforesaid." The 
 vessel was not at Barbadoes, as was supposed in the policy, but 
 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 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's being safe 
 in port, as it appeared by the policy that those facts were not 
 intended to be warranties.'"^ 
 
 The brig Helen was insured " at and from Calais, Maine, 
 on the 16th day of July, to, at, and from all ports and places 
 to which she might proceed in the coasting business, for six 
 months." The brig was not at Calais on the 16th of July, 
 though she was there subsequently, during the six months. 
 Neither of the parties to the policy knew where she was at that 
 time. The Supreme Court of Massachusetts held that the risk 
 attached, for " it was the clear intent of the parties to insure on 
 time, without regard to the place where the vessel might then 
 be, but with regard to the employment in which the vessel was 
 engaged, namely, the coasting trade." ^ 
 
 1 Vide supra, No. 720, et seq. 3 Martin v. Fishing Ins. Co. 20 Pick. 
 
 2 Manly v. United Mar. & F. Ins. Mass. 389. 
 Co. 9 Mass. 85.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 515 
 
 A policy " on a cargo of salt and proceeds, at and from Rio to 
 Santos and two other ports, and at and from either to a port of 
 discharge in the West Indies, Europe, or the United States, until 
 safely landed," was held by Mr. Justice Cranch, to attach at Rio 
 on a cargo which had been laden at Cadiz.^ 
 
 Where a prior policy on time, covering the value of the ship, 
 has a short time to run, and a subsequent policy is made for one 
 year, at and from B. to C, containing the clause as to prior in- 
 surance, " whether for the whole voyage, or from one port of 
 loading or discharge to another," and the ship sails from B. 
 before the prior policy expires, the risk on the second policy will 
 commence on the ship at sea, at the expiration of the prior 
 policy .2 
 
 Goods insured from Amelia Island, being by well known usage 
 taken in at Tygre Island, which ife a neighboring one, the risk 
 was ruled to have commenced at the latter.^ 
 
 929. A risk described to commence at a ^^ port " of lading of a 
 certain coast or district ivhich has only open roadsteads, will com- 
 mence at snch a lading- place : 
 
 As from a " port of lading in Yucatan." * 
 
 930. TJioug-h the vessel sails from the place at ivhic/i the risk 
 is to commence, yet if she does not sail on the voyage insured, the 
 policy will not attach. 
 
 In case of insurance on freight " at and from Demerara, Ber- 
 bice, and the Windward and Leeward Islands, to London," the 
 vessel, under a verbal agreement, took a cargo at Demerara to 
 be delivered at Berbice ; another being to be taken there for 
 London, each at the usual freight. It was held by the English 
 Court of Common Pleas, that a loss on the passage to Berbice 
 was not covered, the voyage for which the freight was insured 
 not having commenced.^ 
 
 931. Insurance at or from a port can commence only at such 
 port, and such places as are comprehended as part of it, or at a 
 place at which, by usage, goods insured from the place named are 
 loaded. 
 
 1 Gardner v. Columbian Ins. Co. of 3 Moxon v. Atkyns, 3 Campb. 200. 
 Alexandria, 2 Cranch, C. C. 473. ■* Delonguemere v. N. Y. Firemen's 
 
 2 Kent V. Manuf. Ins. Co. 18 Pick. Ins. Co. 10 Johns. N. Y. 120. 
 
 Mass. 19. 5 Sellar v. M'Vicar, 4 Bos. & P. 23.
 
 516 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 Goods, being insured " at and from Gibraltar to Dublin," were 
 shipped at Malaga, and the vessel did not put into Gibraltar. 
 Chief Justice Gibbs, and the other justices of the English Com- 
 mon Pleas, held that the policy did not attach.^ 
 
 A policy was made on goods " at and from Caermarthen to 
 London." The goods were in fact taken in at Llanelly, which 
 is a member of the port of Caermarthen, but having a distinct 
 custom-house. Caermarthen lies farther up the river, and is 
 accessible only by an intricate navigation, and few ships clear 
 there, except the coasting vessels belonging to the place. Yet 
 the court decided that the risk run was different from that de- 
 scribed in the policy, one terminus of which was Caermarthen.^ 
 
 Under a policy on flour, " at and from Lyme to London," the 
 flour was shipped at Bridport Harbor, which is a member of the 
 port of Lyme, and lies about nine miles eastward of Lyme, and 
 nearer to London, and a vessel bound from Lyme to London 
 must pass Bridport. The court said, if the assured could have 
 proved a usage for ships to load at Bridport, upon a policy at 
 and from Lyme, it might have assisted him, but the whole was 
 probably a mistake, the parties supposing the ship would sail 
 from Lyme. Judgment was given in favor of the underwriters.^ 
 
 A similar decision has been given in New York, in a case 
 where the actual risk was strictly a part of that described. The 
 policy was on ship and freight on a voyage " at and from Cal- 
 cutta to New York, with liberty to touch at Madras, for trade 
 and to take in a part of a cargo." The vessel did not go to 
 Calcutta, but took in the whole cargo at Madras. Mr. Justice 
 Thompson, giving the opinion of the court, said: " It is impos- 
 sible to say that a voyage from Madras to New York, is the 
 same as a voyage from Calcutta to New York. The adventure 
 is to begin at and from Calcutta. I should not think it compe- 
 tent for the assured to select at pleasure any point of the iter, 
 and say the voyage insured shall commence there." * 
 
 An order for insurance on cargo stated that the vessel when last 
 heard from was on the passage from San Bias to St. Andreas, 
 
 1 Park V. Hammond, 2 Marsh. 189 ; 3 Constable v. Noble, 2 Taunt. 403. 
 6 Taunt. 495; 1 Holt, 80; 4 Campb. 4 Murray v. Columbian Ins. Co. 4 
 844. Johns. N. Y. 443. 
 
 2 Payne v. Hutchinson, 2 Taunt. 
 405, n.
 
 SECT. I.J AT WHAT TIME OR PLACE THE RISK BEGINS. 517 
 
 and a policy was thereupon made " as per order, at and from St. 
 Andreas, with liberty of two ports on the Spanish Main, and at 
 and from any of them to Baltimore." The vessel was wrecked 
 shortly after leaving San Bias, while on the common route to 
 both St. Andreas and Baltimore, before turning off to the for- 
 mer. The assured proposed to take San Bias for the terminus 
 a quo, and claimed for the loss on the ground that the risk had 
 commenced, and that his claim was not prejudiced by a mere 
 intention to deviate. But the court in Maryland decided, that 
 the risk could commence only at St. Andreas, and accordingly 
 had not commenced.^ 
 
 932. In insurance on a vessel " at " a port, the risk generally 
 commences from the time of its being there. 
 
 It has been held in one case, on a policy on a ship " at and 
 from Cape St. Francois," that " the risk commenced after she 
 had been safely moored twenty-four hours at that port."^ But 
 Lord Hardwicke was of opinion, that in such case the risk com- 
 menced immediately on the arrival at the port.'^ And conform- 
 ably to this opinion it has been decided in New York, Mr. Justice 
 Kent giving the opinion of the court, that " ' at and from,' when 
 applied to the ship, includes the period of her stay in the port, 
 from the time of her arrival there." * 
 
 933. Under a policy at and from a place, a question concern- 
 ing the commencement of the risk sometimes arises, from the ex- 
 tent of the place named. 
 
 A policy at and from Jamaica, is held to attach at any port of 
 the island, and to protect the property from port to port in the 
 island.^ 
 
 It is a matter of doubt, in some cases, when a vessel is to be 
 considered to be at a place. A vessel being insured " at and 
 from Limerick," it was held that the risk began while the vessel 
 lay at Grass Island, nine miles below the town of Limerick, but 
 within what is considered to be the port of that place.^ 
 
 1 Maryland Ins. Co. v. Bossiere, 9 * Patrick v. Ludlow, 3 Johns. Cas. 
 Gill& J. Md. 121. N. Y. 10. 
 
 2 Garrigues v. Coxe, 1 Binn. Penn. 5 Cruikshank v. Janson, 2 Taunt. 
 592. 301. 
 
 3 1 Atk. Ch. 548. 6 Bell r. Marine Ins. Co. 8 Serg, & 
 
 R. Penn. 98. 
 VOL I. 44
 
 518 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 Insurance being made on the freight of a vessel to, and dur- 
 ing her stay at, the " port or ports of discharge and loading in 
 India and the East India Islands," and thence to Europe, the 
 vessel took in her homeward cargo at the island of Mauritius, 
 which is classed as an African island by the geographers, and 
 also by the inhabitants of the island. But evidence was ad- 
 mitted to show that, in mercantile language, it was considered 
 as an East India island ; and it was left to the jury to say 
 whether it was so to be considered, who found for the assured.^ 
 
 Insurance was made on goods " at and from Singapore, Penang, 
 Malacca, and Batavia, to a port of discharge in Europe, with 
 leave to touch, stay, and trade at any ports and places whatso- 
 ever and wheresoever in the East Indies," &c. The ship sailed 
 from Batavia, about four hundred miles to the eastward, to 
 Sourabaya, and not in the course of any of the places specific- 
 ally named in the policy, or to Europe, and there took in a part 
 of a cargo, and returned to Batavia to complete her loading. It 
 was held, that the risk commenced at Sourabaya, on the goods 
 put on board there.^ 
 
 934. Under a policy on a ship " at and from " a foreign jjoi't, 
 the risk is held not to commence till she is there in safety. 
 
 Lord Ellenborough says : " The safety required to give a good 
 commencement to the risk on the ship, is a physical safety from 
 the perils insured against, and not a freedom from political dan- 
 ger." ^ 
 
 A policy being made on a ship and freight at and from St. 
 Michael's the vessel arrived there leaky, and not fit to take in a 
 cargo, and a storm which she had met with during the voyage, 
 continuing after she came to anchor, she was driven out to sea 
 again and wrecked, after having been at anchor more than 
 twenty-four hours. It was ruled by Lord Ellenborough that the 
 risk had not commenced.^ 
 
 935. Where the insurance at and from a place for a specified 
 voyage is on a ship lying in the port, the commencement of the 
 risk may depend upon that of the preparations for the voyage. 
 
 1 Robertson v. Money, 1 Ry. & M. 3 Bell v. Bell, 2 Campb. 475. 
 
 75. 4 Parmeter v. Cousins, 2 Campb. 
 
 2 Hunter r. Leatlily, 1 Lloyd & W. 235. 
 Cas. 2-14 ; Lcatbly r. Hunter, 7 Bingb. 
 
 517.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 519 
 
 In the case of insurance made on a ship and cargo " at and 
 from Bergen, in Norway, to Boston," at Providence, in Rhode 
 Island, on the 7th of February, 1814, the vessel had arrived at 
 Bergen in March 1813, as prize to an American privateer. The 
 vessel and cargo were not transferred to the assured, in such 
 form as to give him an insurable interest in them, until October, 
 1814 ; and then all thoughts of the voyage to Boston were laid 
 aside, and he proposed to send the vessel to France, but after- 
 wards changed his mind, and concluded to send it to the United 
 States, on which voyage she sailed in June, 1815, and arrived in 
 Boston in August following. As to the commencement of the 
 risk under the policy, if it commenced at all, and the construc- 
 tion of the words " at and from," Mr. Justice Story says : " If 
 the vessel has been a long time in port, without reference to any 
 particular voyage, the policy will attach only from the time that 
 preparations are begun to be made with reference to the voyage 
 insured. And if the party insured acquired the ownership sub- 
 sequent to such time, and before the date of his policy, then the 
 policy will attach only from the time of acquiring such owner- 
 ship." And the court ruled, that, as the delay of the voynge 
 was not justified, the underwriters could not be held, and " that, 
 as to them, there w^as a complete non-inception of the voyage 
 insured." ^ 
 
 A ship and freight were insured " at and from Pernambuco 
 or any other port or ports in the Brazils, to London ; beginning 
 the adventure upon the said ship on the terrrflnation of her 
 cruise, and preparing for her voyage to London." The ship, 
 having given up cruising, went to Pernambuco to procure a cargo, 
 but not being able to procure one there, proceeded to St. Salva- 
 dor, and a loss happened before her arrival at the latter port. A 
 question was made whether the risk had commenced at Pernam- 
 buco. Chief Justice Gibbs said : " The object of the policy 
 must have been to secure the assured from all risks from the 
 time the cruise ended. It has been objected, that, though the 
 cruise had ended, the ship was not preparing for her voyage. I 
 think that, having come to Pernambuco to procure a cargo, and 
 having sent an officer on shore for that purpose, she must be 
 
 1 Seamans o. Loriiig, 1 Mas. C. C. 128, See also Grant v. King, 4 Esp. 
 175.
 
 520 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 considered as preparing for the voyage within the words of the 
 policy, and that therefore the policy had attached." ^ 
 
 So, where a policy was made on the 3d of September, at New 
 York, on a vessel " at and from Guadaloupe to St. Thomas's," 
 and at the time of subscribing the underwi'iter was informed 
 that the vessel was at Guadaloupe on the 28th of July, where 
 she had in fact been for a long time before ; the court said, that, 
 " in a case like this, the risk does not commence till some act be 
 done towards equipping for the voyage, or on the day on which 
 she is stated, as here, to have been in safety at the port from 
 which she was to sail." ^ 
 
 But if the ship needs repairs merely, the risk will commence 
 notwithstanding this circumstance.^ The repairs must, how- 
 ever, be made within reasonable time, and if there is any unnec- 
 essary and unreasonable delay the policy will no doubt be for- 
 feited, on the ground of a deviation or enhancement of the risk. 
 So, if all preparation for the voyage be suspended, the risk will 
 cease.* 
 
 936. Under a policy for a voyage from a certain place, the 
 risk will commence if the vessel sails for that place on the same 
 voyage, though tvith an intention to deviate in the course of the 
 voyage : 
 
 As where, the cargo being insured from Liverpool to London, 
 the vessel sailed with an intention to put into Southampton.'^ 
 
 937. But though the ship sails from the specified port, if she 
 sails on a different voyage, and for a different port of destination, 
 the risk ivill not commence.^ 
 
 A vessel, being insured " at and from Cadiz to a port of dis- 
 charge in St. George's Channel," was driven on shore and lost 
 at Cadiz, before the cargo of fish which she had brought thither 
 was wholly unloaded, and, accordingly, before any preparation 
 had been made for the voyage insured. Before she was lost, the 
 agents of the assured had decided to despatch the vessel directly 
 for Newfoundland with a cargo of salt from Cadiz, instead of 
 
 1 Lambert v. LIddard, 1 Marsh, 149 ; 3 Mottcux v. London Ass. Co. 1 Atk. 
 5 Taunt. 480, Ch. 545. 
 
 2 Kemble v. Bowne, 1 Caines, N. Y. 4 Chitty v. Selwyn, 2 Atk. Cli. 359. 
 75. 5 Hare v. Travis, 7 Barnew. & C. 14. 
 
 *5 Hare i'. Travis, 7 Barnew. & C. 14.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 521 
 
 sending her to Liverpool for such a cargo, fearing that the delay 
 would make her too late for the season ; and had so advised the 
 owners at Glasgow a week before the loss happened. The decis- 
 ion was in favor of the claim for the loss in three courts succes- 
 sively in Scotland, which was reversed in the House of Lords. 
 The ground upon which Lord Chancellor Eldon put the final 
 decision was, that the insured voyage to Liverpool had been 
 given up.i 
 
 But this ground does not seem to be sufficient ; it required 
 that the risk should not have commenced, and that the assured 
 might have recovered back his premium, or that the underwriters 
 had been discharged by the delay to proceed to Liverpool ; and 
 the circumstances seem to have justified one or both of these 
 defences. If the risk had commenced, and the right to retain 
 the premium had accrued, the assured had a right, notwithstand- 
 ing his own intentions or those of his agents, to the protection 
 of the policy so long as the subject was practically within the 
 specified risks. 
 
 In case of insurance on freight " from Odessa to England," 
 the captain sailed with an agreement to put into London or 
 Newcastle, his ultimate destination being for Hamburg or Bre- 
 men. The vessel being captured, it was objected that she had 
 not sailed on the specified voyage. Opposite judgments haviiig 
 been given in two Scotch courts, the case was finally decided in 
 the House of Lords in favor of the assured.^ One point made 
 by Messrs. Park and Marshall, of counsel for the underwriters, 
 was, that no freight would have been due at London ; but it is 
 plain that the whole freight may be insured for any part of a 
 voyage. 
 
 938. Under a policy on goods " at and from " a place, against 
 marine, river, or lake risks, tlie risk begins on their being there on 
 board of the vessel by which they are to be transported,-^ or boats, 
 where that is the customary way of taking them on board.** 
 
 939. Whether specifying the risk to begin " on the loading of 
 
 1 Tasker v. Cunningham, 1 Bligli. lOG; Smith v. Mobile Ins. Co. 30 Ala. 
 Hou. L. 87. N. s. 1G7; Mobile Ins. Co. v. McMillan, 
 
 2 Hall r. Brown, 2 Dow, Pari. Cas. 31 id. 711. 
 
 367. 4 Hurry i'. Royal Exchange Ass. Co. 
 
 3 Mellish V. AUnutt, 2 Maule & S. 2 60s. & P. 435. 
 
 4i*
 
 522 THE VOYAGE. DURATION OP THE RISK. [CHAP. XI. 
 
 goods " is mere description, or a warranty that the goods shall he 
 loaded at the port named ? 
 
 This description restricts the commencement of the risk, when 
 it has any effect, and the jurisprudence presents divers instances 
 of the failure of insurances under this description, which would 
 have taken effect under the more general one " at and from." 
 
 A policy was made on goods " at and from Genoa, from the 
 loading to equip for the voyage;" but the goods had been put 
 on board at Leghorn. The policy was held not to attach in this 
 case, because the event on which the risk was to commence had 
 not happened. The court put stress upon the circumstance that 
 the condition of the goods could not be known.^ 
 
 Under another policy on goods "from the loading thereof on 
 board on the coast of Brazil," and on the ship in the same man- 
 ner; and no goods were put on board there, but the ship returned 
 from the coast of Brazil with the same cargo she had carried 
 thither from the Cape of Good Hope ; the court decided that the 
 risk never commenced on either ship or cargo.^ 
 
 A similar case occurred in New York. It related to a policy 
 on goods, " beginning the adventure from and immediately fol- 
 lowing the loading thereof at Vera Cruz." The vessel not being 
 permitted to discharge there, returned to New Orleans with the 
 same cargo she had carried out. It was the opinion of the court, 
 that the event had not occurred on which the risk was to com- 
 mence.3 In this case Mr. Justice Livingston made a distinction 
 between a policy on the ship and one on the cargo, saying there 
 was a reason why in these circumstances the risk on the cargo 
 should not commence, which did not exist in regard to the ship, 
 for the ship was warranted seaworthy at the commencement of 
 the risk, whereas there was no similar warranty in respect to the 
 cargo ; the loading of the goods he therefore thought to be of 
 importance, as their condition at the time would thereby be bet- 
 ter known. This distinction was probably suggested by the 
 above case of Hodson v. Richardson ; but the case of Robertson 
 V. French, above cited, makes no such distinction, the policy in 
 that case being on both ship and goods, and the risk was held to 
 attach on neither. 
 
 1 Hodson V. Richardson, iW.Blackst. 3 Graves v. Marine Ins. Co. 2 Caines, 
 463 ; 3 Burr. 1477. N. Y. 339 ; Scriba v. Ins. Co. of North 
 
 2 Kobertson v. French, 4 East, 130. America, 2 Wash. C. C. 107.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 
 
 523 
 
 The distinction seems to be very questionable, for the assured 
 in a policy on goods must prove the loss to have happened dur- 
 ing the risk, and the insurers are not liable for any loss that can- 
 not be proved to have happened after the commencement of the 
 risk, which is equivalent to a warranty against any previous 
 damage or defect. If the decision is against the commencement 
 of the risk, whether on the ship or cargo, the better reason seems 
 to be, that the case does not present the terminus a quo specified 
 in the policy ; or that the loading at the specified port is war- 
 ranted. It is quite material which construction is adopted, since, 
 if the phrase is considered to be mere description, a defect may 
 be supplied by other parts of the policy. 
 
 A number of judgments have been given in conformity with 
 the opinions above cited.^ 
 
 Where, under such a policy, the goods, though not actually 
 shipped at the port, from the loading at which the risk was to 
 commence, were yet overhauled so that their condition was sat- 
 isfactorily ascertained, the court still held that the risk did not 
 commence.^ In this case, however, the court thought the load- 
 ing at the port where the risk was to commence was a material 
 circumstance, and in effect warranted in the policy, as it would 
 diminish the risk from French capture. 
 
 In another case, again, in which a similar judgment was given, 
 the court refers to the circumstance that it could not be known 
 whether the goods had been damaged previously to the com- 
 mencement of the risk.3 
 
 In a policy on goods at and from L., the risk to commence at 
 and from the loading, the cargo had been brought thither in the 
 same vessel, and the unloading and reloading of part of it at L., 
 and moving and examining the remainder sufficiently to deter- 
 mine the duties payable there, was held, by Lord EUenborough 
 and his associates, to be a sufficient loading.* 
 
 An insurance was made in New York " upon all kinds of 
 goods and merchandises laden, or to be laden, on board of the 
 
 1 Richards V. Marine Ins. Co. 3 Johns. 3 Horneyer v. Lushington, 15 East, 
 N. Y. 307 ; Vredenburg v. Gracie, 4 id. 46 ; 3 Campb. 85. 
 
 444, n. ** Nonuen v. Reid, and same PIS', v, 
 
 2 Spitta V. Woodman, 2 Taunt. 416 ; Kettlewell, 16 East, 176. 
 16 East, 188, n.
 
 524 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 R., beginning the adventure from and immediately following the 
 loading thereof on board at Cagliari." On the arrival at that 
 place, all the cargo then on board, except some logwood, was 
 hoisted upon deck, in order to take in 500 " salms " of salt, 
 which was the only part of the cargo taken on board there. The 
 cargo brought to Cagliari was restowed, and the ship proceeded 
 on the voyage insured, in the course of which she was captured. 
 Mr. Justice Van Ness gave the opinion of the court. He said : 
 " The plaintiff's right to recover for any other part of the cargo 
 than the salt, depends on the fact whether it was shipped at 
 Cagliari or not. The hoisting the cargo out of the hold of the 
 ship, and restowing it, does not amount to a loading it on board 
 the ship, either according to the words, the reason, or the spirit 
 of the contract. The policy attached therefore only upon the 
 salt." 1 
 
 But if in this case the goods had been landed upon a wharf, 
 and then taken on board again, there seems to be no ground to 
 doubt of this being a " loading," within the terms of the policy. 
 
 Under a policy on goods " at and from Gothenburg, beginning 
 the adventure on said goods from the loading thereof on board," 
 a memorandum was added to the policy, stating it to be in con- 
 tinuation of five former policies, specifying them. The goods 
 had been put on board in^Virginia, and it does not appear that 
 they had been reloaded at Gothenburg, but rather that they had 
 not. Lord EUenborough, giving the opinion of the court, said, 
 that " a very strict, and certainly a construction not to be favored, 
 and still less to be extended, was adopted in Spitta v. Woodman. 
 If there be any thing to indicate that a prior loading was con- 
 templated by the parties, it will release the case from that strict 
 construction." And this was considered as being indicated by 
 the memorandum above mentioned, and accordingly it was held 
 that the risk commenced at Gothenburg.^ 
 
 This case shows that a loading at the port named is not neces- 
 sary to fix the time when the risk begins, for the risk is held to 
 have attached, though there was no loading or reloading at such 
 port. What Lord EUenborough intimated, therefore, in Nonnen 
 V. Reid, as to the importance of reloading for the purpose of 
 
 1 Murray v. Columbian Ins. Co. 11 2 Bell v. Hobson, 16 East, 240. 
 Johns. N. Y. 302.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 525 
 
 fixing the commencement of the risk, seems in this last case not 
 to have been adhered to by the court. 
 
 But in another case decided in the Common Pleas, upon a 
 policy on goods from the same place, in which the commence- 
 ment of the risk was described in the same words, the risk was 
 held not to have commenced, as the goods had not been shipped 
 or reloaded at Gothenburg. At the time of making the policy, 
 the underwriters knew that the goods had been loaded at Lon- 
 don, but the court said, "they could not make the construction 
 of a written instrument depend on the knowledge which the 
 insurers might happen to possess of the facts." ^ 
 
 A similar decision was again made in the King's Bench, upon 
 a policy on goods "at and from Gothenburg, beginning the ad- 
 venture from the loading thereof aboard." They had been loaded 
 at Christiansand, and not reloaded at Gothenburg. Lord Ellen- 
 borough, in giving the opinion of the court, said, that the com- 
 mencement of the risk must be supposed to have been described 
 in this manner to protect the insurers from liability on account 
 of previous losses; and that construing the words "from the 
 loading the goods on board" to mean the same as "from the 
 time of their being on board" at the place named, would be 
 giving them no effect, for this would be the construction without 
 any such words.^ 
 
 Yet the principle which governed the court in putting this 
 construction upon these words had been rendered questionable, at 
 least, in a former case, by the opinion of the same judge. It was 
 upon a policy on goods " at and from Pernambuco to Maranham, 
 and at and from thence to Liverpool, beginning the adventure 
 upon the said goods upon the loading thereof on board where- 
 soever." The goods were a part of the cargo carried outward 
 to Pernambuco, a loss on which had happened on the voyage 
 from Pernambuco to Maranham. It was decided that the risk 
 commenced at Pernambuco. Lord Ellenborou^h said : " It cer- 
 tainly throws some difficulty in the way of this construction, that 
 it may probably aid'in covering a damage which happened before 
 the commencement of the risk. But when we consider that the 
 assured is bound to prove that the loss happened within the lim- 
 
 1 Langhorn v. Hardy, 4 Taunt. G28. 2 Mellish v. Allnutt, 2 Maule & S. 
 
 lOG.
 
 526 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 its of the voyage insured, that difficulty is in a great measure 
 removed." ^ 
 
 From all these cases it is not easy to determine the construc- 
 tion of a policy, in which the risk is to commence on the loading 
 of the goods at a port named. If it be considered a warranty 
 that the goods shall be loaded at such port, the courts seem, in 
 some of the above cases, to have departed from the usual con- 
 struction of express warranties. But if these words are to be 
 considered as merely description, having at most the force of a 
 representation, they will not affect the contract, if the policy pro- 
 vides any other way of ascertaining the time when the risk 
 commences. 
 
 These discrepant decisions evidently do not coincide in sup- 
 port of any general proposition. That to which they seem to be 
 the nearest approximation, and which may be adopted without a 
 departure from any general principle, is, that 
 
 This specification of the terminus a quo, unless it appears by the 
 policy to be intended as a warranty of the loading at the designated 
 place, is to be taken as mere recital, description, or intention or ex- 
 pectation, being at most an implied representation of the loading, 
 and is to be construed accordingly? 
 
 There is no need of resorting to the doctrine of warranty to 
 provide for the case of aggravation of the risk by reason of the 
 cargo not being put on board at the place named, which is men- 
 tioned in some cases,^ since that comes appropriately within the 
 doctrine of representation and concealment. 
 
 A more recent case has occurred on this specification of the 
 terminus a quo, which is free from the complexity of the foreign 
 political relations growing out of the wars consequent upon the 
 French revolution of 1789, in which most of the preceding cases 
 were involved. It was an insurance on a cargo "from the load- 
 ing thereof aboard," on the coast of Africa. A total loss oc- 
 curred, while a part of the outward cargo remained on board, and 
 the question was whether this should be included in the loss, and 
 the King's Bench decided that it could not be so. Lord Tenter- 
 
 1 Gladstone v. Clay, 1 Maiile & S. 3 Spitta v. Woodman, 2 Taunt. 416; 
 418. 16 East, 188, n. ; Hodson v. Richardson, 
 
 2 See Coggeshall v. American Ins. 1 W. Blackst. 463 ; 3 Burr. 4G3. 
 Co. 3 Wend^N.Y. 283.
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 527 
 
 den, giving the opinion of the court, put the decision upon the 
 ground that there was nothing in the policy, whether in the 
 description of the voyage or otherwise, from which the court could 
 infer the intention to include any part of the outward cargo.^ 
 
 The proposition above laid down does not seem to me to be 
 inconsistent with this case, nor with the doctrine that the policy 
 is to govern in all cases. 
 
 940. In a policy upon goods loaded from a luharf, the risk 
 usucdly commences ivith the responsibility of the owners and mas- 
 ter, and when that of the wharfinger ceases.^ 
 
 941. Whether, under a policy on g-oods on board of a certain 
 ship, the risk will commence in boats by which they are brought to 
 the ship, ivill depend upon the hydrographical character of the port 
 or coast, the usage as to loading, and upon the boats being those of 
 the vessel, or public lighters, or those of the shipper, and upon the 
 goods being in charge of the master and crew, or of boatmen em- 
 ployed by the shipper ? 
 
 A policy was made in October, " on all kinds of lawful goods 
 and merchandise, laden or to be laden on board of the ship Clin- 
 ton, for and during six months, commencing on the 10th of July, 
 1826, beginning the adventure on such goods from and immedi- 
 ately following the lading thereof on board of the said vessel, 
 from the 10th of July, and so shall continue until the said goods 
 shall be safely landed on the 10th of January, 1827 ; " with an 
 agreement indorsed to extend the policy two months for an addi- 
 tional premium. The vessel was engaged in a trading voyage 
 on the western coast of South America, where a basket of " plata 
 pina " (virgin silver) was lost from one of the fiat-boats or rafts, 
 called " balsas," employed by the assured to bring it to the vessel, 
 this being the customary way of bringing the cargo to vessels. 
 The Supreme Court in New York held, that the risk commenced 
 on the goods on board on the 10th of July, and on those after- 
 wards loaded, from their coming within the description of the 
 terminus a quo in the policy, and that the risk commenced on the 
 " balsas" to the same effect as if the articles had been on board 
 of the ship, on the ground that this was the customary way of 
 taking on board cargo on that coast.^ 
 
 1 Kickinau v. Carstairs, 5 Barnew. & 2 See Corban i'. Downe, 5 Esp. 41. 
 Ad. 651. 3 Coggesball v. American Ins. Co. 3
 
 528 THE VOYAGE. DURATION OP THE RISK. [CHAP. XI. 
 
 942. Policies not unfrequenily have different termini a quo and 
 ad quern for different j^ arts of the cargo : 
 
 As where goods are insured from the lading thereof on board 
 of a vessel that has liberty to touch and trade at different ports, 
 that is, to discharge and take in goods. In such case a policy 
 exclusively on the homeward cargo, from loading, will commence 
 on each part successively as it is put on board, and one exclu- 
 sively on the outward cargo will terminate on the several parcels 
 of goods as they are successively discharged.^ 
 
 943. The risk under a policy on freight cannot commence un- 
 til the interest has accrued.^ 
 
 Where the interest in freight has accrued previously to the 
 time from which the insurers are to take the risk, the commence- 
 ment of the risk on this interest is determined by the same 
 principle upon which it depends in the case of an insurance of 
 the ship or goods. 
 
 944. In order to the commencement of the risk on freight, the 
 vessel must be on the ivay towards the place for loading the 
 cargo, or, if she is at the loading port, must be in preparation 
 for loading. 
 
 Where the policy was on freight at and from Algoa Bay to 
 London, the vessel arrived at Algoa Bay, where, having dis- 
 charged her cargo, excepting about seventy tons, she was 
 wrecked. The captain said that he was ready to begin to take 
 on board his homeward cargo at the time of the vessel being 
 wrecked, it being necessary to keep on board some of the out- 
 ward cargo to ballast the ship. The jury were instructed by 
 Lord Lyndhurst, C. B., that the risk on the policy had attached 
 if the master was ready to begin to take on board his homeward 
 cargo.^ That is to say, where the risk on freight is to com- 
 
 Wend. N. Y. 283. The court cites Pelly are all cases of leave to trade at dlfFer- 
 
 V. Royal Exch. Ass. Co. 1 Burr. 341 ; ent ports, and in the ordinary policies 
 
 Tierney v. Etherlngton, id. 348; and on whaling voyages, the insurance ceases 
 
 Parsons v. Mass. F. & Mar. Ins. Co. 6 successively on the outward, and at- 
 
 Mass. 19 7. taches successively on the return car- 
 
 1 Violett 17. Allnutt, 3 Taunt. 419; goes. See supra, c. 3, s. 12. 
 
 Grant v. Paxton, 1 id. 463 ; Same v. ~ Yide supra, c. 3, s. 11. 
 
 Delacour, id. 466 ; Barclay v. Stirling, 3 Williamson v. Innes, 8 Bingh. 81, n. 
 
 5 Maule & S. 6 ; Hunter v. Leathly, See Inglis v. Vaux, 3 Campb 437. 
 10 Barnew. & C. 858; 7 Bingh. 517,
 
 SECT. I.] AT WHAT TIME OR PLACE THE RISK BEGINS. 520 
 
 mence " at " a place, it will commence as soon as the assured 
 has that interest at that place.i 
 
 Under a policy on freight, " beginning the adventure on said 
 freight from and immediately following the loading thereof on 
 board said vessel," the risk was held not to commence until the 
 vessel had begun to load.^ And the loss of freight by the loss 
 of the vessel in the port of Canton, while waiting for a cargo 
 that had been engaged, was held not to be covered under that 
 description. 
 
 Under a policy on freight from A to B, to take a cargo at the 
 latter place for C, the risk on the whole freight to C commences 
 on the vessel's sailing empty from A.^ 
 
 945. If the policy on any subject is '■'■from^'' instead of " at 
 and from " a place, the risk begins at the time of the vessel's 
 sailing; that is to say, at the time of weighing anchor, and 
 breaking ground for the voyage, with all the preparations com- 
 pletely made.^ 
 
 946. In a policy on ships '•'■ from " a port which has an out- 
 port at a considerable distance, and vessels of the same size 
 usually take in part of the cargo at the port, and the remainder 
 at the out-port, the risk commences on sailing' from the former. 
 
 Thus, under a policy " from Amsterdam," the risk is assumed 
 between that port and the Texel, and covers a loss while lying 
 in the Texel Roads.^ 
 
 947. Where the policy does not attach at the outset for want 
 of a subject coming within the description in the policy, an in- 
 dorsement of liberty to touch at another port will not cause it to 
 attach, the underwriters not knowing that the risk had not com- 
 menced.^ 
 
 ^ See also Flint r. Fleminfr, 1 Barnew. Ferpupson, Dougl. 346; Same v. Sta- 
 
 & Ad. 45 ; 1 Lloyd & W. Cas. 25 7. pies, id. 351, n. ; Audley v. Duff, 2 Bos. 
 
 2 Gordon v. Am. Ins. Co. of N. Y. 4 & P. Ill ; Sellar v. M' Vicar, 4 id. 23. 
 Den. !N^. Y. 3G0. The same rule ap- As to what is " sailing," see c. 9, s. 3. 
 plies to profits : Halhead v. Young, 6 5 Mey v. South Carolina Ins. Co. 3 
 Ell. & B. 312; 36 Eng. L. & Eq. 109. Brev. No. C. 329. 
 
 3 Hodgson V. Miss. Ins. Co. 2 La. ^ Scriba v. Ins. Co. of North Amer- 
 341. ica, 2 Wash. C. C. 107. 
 
 * Pothier, Ins. a. 63 ; Thellusson v. 
 VOL. I. 45
 
 530 THE VOYAGE. DURATION OF THE EISK. [CHAP. XI. 
 
 SECTION II. TERMINATION OF THE RISK. 
 
 948. All policies, either expressly or by implication, stipulate 
 for the beginning, or terminus a quo, and end, or terminus ad 
 QUEM, of the risk. 
 
 949. Life and marine policies frequently, and fire policies 
 usually, are made for a certain period of time, from a certain 
 day, or from a certain hour of a certain day ; and these are 
 denominated time policies, or term policies. 
 
 In such a policy, the time, as to the commencement and ter- 
 mination of the risk at any day or hour, is to be reckoned at the 
 place where the policy is made, in whatever other place the sub- 
 ject may be,^ unless the time at another place is referred to in 
 the policy in this respect.^ 
 
 950. The ultimate limit of the risk, or terminus ad quem, in 
 policies other than those for a certaid time, in some event, as the 
 death of the party insured, arrival of ship at a certain place, or 
 discharge of a cargo. 
 
 It is sometimes agreed that the risk shall end or be prolonged 
 at the election of one or the other party : ^ 
 
 As a bottomry risk to the first port the vessel may make :^ 
 
 Or the liberty, in a bottomry bond for three years, to reduce 
 the amount by payment.^ 
 
 Insurance being for six months on a ship "bound on a voyage 
 from B. to M.," with liberty of a policy for six months more at 
 a certain premium for that period, Mr. Justice Cranch ruled that 
 the risk continued during the second six months on another 
 voyage, that to M. having been performed during the first six 
 months.*" 
 
 The duration of the risk is sometimes put in the alternative. 
 Insurance to " S. or B." does not cover a voyage to S. and thence 
 
 1 Walker v. Protection Ins. Co. 29 3 Sullivan v. Mass. Mut. F. Ins. Co. 
 Me. 317. 2, Mass. 318.. 
 
 2 I do not know of any law limit- 4 The Jane, 1 Dods. Adm. 461. 
 
 ing the period of time policies in any 5 Thorndike v. Stone, 11 Pick. Mass. 
 
 of the States, like 35 Geo. III. c. 63, 183. 
 
 s. 12, limiting time policies to one 6 Stuart v. Columbian Ins. Co. of 
 
 year. Alexandria, 2 Cranch, Dist. Ct. 442.
 
 SECT. II. j TERMINATION OF THE RISK. 631 
 
 to B., and the underwriters are not liable for a loss between S. 
 and B.i 
 
 A respondentia loan being on a risk from N. to C. and back 
 to N., to be paid on arrival at N., or at the end of eighteen 
 months, whichever might first happen, it was held that the sub- 
 sequent consent of the lender, that the vessel might visit other 
 ports, did not enlarge the period of the risk, which was held to 
 terminate at the end of eighteen months.^ 
 
 A bottomry loan being for an India voyage not exceeding 
 thirty-six months, the ship was detained in India, by the Mogul, 
 until after the end of that period, and was afterwards captured 
 on its homeward voyage. Lord Hardwicke decided that the 
 risk had terminated and the bond become absolute, at the end of 
 the thirty- six months.^ 
 
 951. All policies have express and implied conditions for the 
 termination of the risk at a time short of the terminus ad quem, 
 whether the ultimate limitation is a certain time or a certain event. 
 
 952. The termination of the risk by non-compliance with a rep- 
 resentation or warranty^ after the risk has commenced, has been 
 considered under those heads, and that by deviation is to be con- 
 sidered subsequently. 
 
 The payment of the premium is the most frequent condition 
 of the continuance of the risk in life and fire policies. Under 
 the provision for the termination of a fire policy, if the premium 
 shall not be paid for its continuance within fifteen days after the 
 expiration of the year, the policy will be continued if the premium 
 is paid within that time, though a loss may have taken place in 
 the mean time, after the year has expired.* 
 
 Some fire policies have a provision, that in case of alterations 
 of the insured building, or additions to it, or the erection of 
 others within a certain distance, the underwriters may, at their 
 election, cancel the policy, returning premium pro rata.^ 
 
 953. It is often provided, that the risk may be continued or 
 
 1 Dodge V. Essex Ins. Co. 12 Gray, Excli. Ir. 257. If the policy provides 
 
 Mass. 65. that payment shall be requested, it 
 
 -Niagara las. Co. v. Searle, 2 Ilall, is siiflieient to mail a request: Lothrop 
 
 N. Y. 22. V. Greenfield Ins. Co. 2 All. Mass. 
 
 3 Ingleden v. Foster, 4 Vin. Abr. 82. 
 281 ; Marshall, Ins., 2d ed. 751. ^ Eabyan v. Union Ins. Co. 33 ^'. li. 
 
 4 M'Donnell v. Carr, Hayes & J. 203.
 
 532 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 reneived from time to time, by the assured's paying the premium 
 at successive periods,^ or complying with other specified condi- 
 tions. 
 
 A policy was made on a vessel " from Salem to any place or 
 places, backwards and forwards, round the globe one or more 
 times, during her stay at all such places, until her return to the 
 United States," at a certain premium per month ; it being a 
 voyage for seals and oil. It was insisted, on the part of the in- 
 surers, that the duration of the risk ought to be limited by the 
 usage of such voyages, otherwise it might continue as long as 
 the vessel should exist as such. The court said they saw no 
 objection to its so continuing.^ But in general the continuance 
 of the risk is absolutely limited in the policy by some time, or 
 place, or event. 
 
 Under a provision to continue the risk, if the vessel should be 
 at sea at the end of a year, " until arrival at a port of discharge," 
 the vessel was captured and carried into England, under the pre- 
 tence that she was bound to an enemy's port, and was detained 
 at Bristol at the expiration of the year, whence, after being re- 
 leased, she pursued her voyage. It was objected to the continu- 
 ance of the risk, that the vessel was not " at sea " at the expira- 
 tion of the year. Chief Justice Parker, giving the opinion of the 
 court, said : " A vessel is considered ' at sea' within the common 
 meaning of the term, while on the voyage, although during a 
 part of the time she is necessarily within some port."^ 
 
 Under a policy on a vessel for a year, to be continued, if she 
 should be at sea at the end of the year, to her port of destination 
 in the United States, her destination at the end of the year was 
 from Rotterdam to Newcastle, and thence to New York. It was 
 held in New York that the risk continued to the latter place.* 
 
 A vessel was insured for one year from the 6th of October, 
 1834, and if then " at sea," as expressed in one policy, or " on 
 a passage," as expressed in another, the risk was " to continue 
 until her arrival at her port of destination and discharge." On 
 the 25th of September, 1835, the brig got under way at Bangor, 
 
 1 Salvin v. James, 6 East, 571 ; 2 ^ Wood v. New England Mar. Ins. 
 Smith, 646. See c. l,s. 9. • Co. 14 Mass. 31. 
 
 2 Cleveland v. Union Ins. Co. 8 Mass. 4 Union Ins. Co. v. Tjsen, 3 Hill) 
 308. N.Y.I 18.
 
 SECT. II.] TERMINATION OP THE RISK. 533 
 
 with her full cargo on board ready to proceed on her voyage to 
 the United States, and dropped down several miles in the Straits 
 of Menai, when she came to anchor on account of contrary 
 winds. She afterwards attempted, for several successive days, 
 to proceed on her voyage, but did not get out of the Straits and 
 pass off the pilot-ground until the 8th of October, the second 
 day after the expiration of the year. The question was made 
 whether she was "at sea" or "on a passage," on the 6th of 
 October, within the meaning of the policies, so that the risk 
 continued. Shaw, C. J. : " The term ' at sea ' is used in contra- 
 distinction to arrival in port. If the vessel has sailed or com- 
 menced a passage, she must be considered to be ' at sea,' within 
 the meaning of this clause. When a vessel quits her mooring, 
 in a complete readiness for sea, and it is the intention of the 
 master to proceed on the voyage, and she is afterwards stopped 
 by head winds, and comes to anchor, still intending to proceed 
 as soon as the wind and weather will permit, this is a sailing on 
 the voyage." And it was held that the vessel was at sea within 
 the meaning of the policy on the 6th of October. And the ex- 
 pressions " at sea," and " on a passage," were considered to be 
 equivalent to each other.^ 
 
 A vessel being insured in Philadelphia for a year, with liberty 
 of the globe, and, " if at sea at the end of the year," the risk "to 
 continue at the same rate of premium till arrival at her port of 
 destination in the United States," was at the end of the year at 
 sea on a passage from Rio Janeiro to the island of Jersey. Hav- 
 ing sustained damage subsequently on the same passage, she put 
 into Falmouth, in England, for repairs, and being repaired, sailed 
 for Altona, and there delivered her cargo and took another on 
 freight for New Orleans, where she arrived. In a suit for loss 
 by the damage sustained after the end of the year, the assured 
 contended that the risk continued until her arrival at New Or- 
 leans. The underwriters, on the other hand, insisted that the 
 risk terminated at the end of the year, on the ground that she 
 was not at that time on a voyage to the United States. The 
 court was of this latter opinion, and set aside the verdict which 
 had been rendered for the assured.^ 
 
 1 Bowen v. Hope Ins. Co. ; Same v. ^ Eyre v. Marine Ins. Co. 6 Wliart. 
 Merchants' Ins. Co. 20 Pick. Mass. 275. Penn. 247. 
 45*
 
 534 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 On the new i:rial, the assured offered evidence that, according 
 to usage and the common understanding in Philadelphia as to 
 such a provision, the risk continued, if the vessel was at sea at 
 the end of the year, on whatever destination she was bound, 
 until her arrival in the United States. This testimony was 
 ruled out by the presiding judge. The case being again brought 
 before the court, it was held that the evidence was admissible. 
 In respect to the objection that, by the construction contended 
 for and proposed to be established by such testimony, the assured 
 might prolong the risk indefinitely, so long as the ship should 
 last, Mr. Justice Rogers, who gave the decision of the court, 
 remarked, that it was competent for the parties to make such a 
 contract if they chose to do so.^ 
 
 A vessel insured with the provision to continue the risk if she 
 should be at sea at the end of six months, was then at St. 
 Thomas, in the West Indies, repairing, having sustained dam- 
 age on her passage thither, to take a cargo there for New York. 
 The Supreme Court of New York held that the risk had termi- 
 nated, the vessel not being then at sea, within the meaning of 
 the policy.^ 
 
 The vessel is "at sea" within the stipulation, if she has 
 "sailed" on a passage, as distinguished from "departing" from 
 a port,^ that is, if she is ready to proceed and has broken ground, 
 though she has made little or no progress, and though she may 
 be in a river or canal from which she is to proceed to sea. It 
 was so held in the case of a vessel insured for a year from the 
 8th of October, and if at sea at the end of that period, " the risk 
 to continue till her arrival in the United States at the same rate 
 of premium." It was at Rotterdam near the end of the year, 
 and the master, not finding freight there, decided, in pursuance 
 of his instructions, to go to Newcastle-upon-Tyne, and thence 
 to New York. The vessel sailed on the canal to the river 
 Meuse on the 5th of October, and all her papers were made out, 
 and she was ready to depart, having only to take a clearance at 
 HeLvoetsluys. Owing to adverse winds, she did not proceed 
 
 1 Eyre v. Marine Ins. Co. 5 Watts ton v. American Ins. Co. 7 Hill, K. Y. 
 & S. Penn. 116. 321, in the Court of Errors. 
 
 2 Burrows v. Turner, 24 Wend. N. Y. 3 yide supra, for the distinction, c. 
 276, in the Supreme Court; also Hut- 9, s. 3, No. 777.
 
 SECT. II.] TERMINATION OP THE RISK. 535 
 
 until the 8th, and reached Helvoetsluys on the 10th, where she 
 was detained until the 26th. It was decided in New York that 
 the risk continued.^ 
 
 954. Insurance on a vessel until its return to a place, does not 
 ter7ninate until its arrival in the harbor proper of such a place. 
 
 A ship was insured for a premium, at a certain rate per an- 
 num, " at and from Boston to all ports and places on the globe, 
 and until her return to Boston, not exceeding two years." She 
 sailed from the coast of Brazil for Boston, and on arriving in 
 Boston Bay, below the harbor, within the two years, was ordered 
 by the owner to put into Salem, at which port she accordingly 
 put in, for the purpose of being repaired. It was held that the 
 risk did not terminate on the arrival of the ship in Salem ; and 
 that the ship's sailing for Boston under such a policy did not 
 limit the risk, from the time of her so sailing, to a voyage to 
 Boston ; but that the destination of the ship might be altered at 
 any time before her arrival at Boston, and the risk under the 
 policy would still continue.^ 
 
 955. Where a policy is to terminate on the ship having; arrived 
 at a certain island or district, and been moored tiventy-four hours 
 in safety, it terminates at the first port ivithin such limits at which 
 the master voluntarily arrives, and so remains moored. 
 
 Under a policy on a ship and cargo, " from Georgia to 
 Jamaica " generally, with such a provision, a part of the cargo 
 was destined to Montego Bay, and the rest to St. Anne's. The 
 ship arrived at Montego Bay, and after remaining there in safety 
 nearly a month, and discharging the part of the cargo which 
 was to be delivered there, she sailed for St. Anne's, and was 
 lost on the passage. Lord Kenyon ruled that the risk ended at 
 Montego Bay."^ 
 
 1 Union Ins. Co. v. Tysen, 3 Hill, N. Co.; Cole v. Union Ins. Co. 12 Gray, 
 
 Y. 108. The clause in time policies, that Mass. 501; Wales v. China Ins. Co. 8 
 
 if the vessel is at sea at the termination All. Mass. 380. 
 
 of the risk, the policy shall be contin- - Ellery v. New England Ins. Co. 8 
 
 ued until her arrival at a port of desti- Pick. Mass. 14. 
 
 nation, is held to mean not the final ^ Leigh y, Mather, 2 Esp. 412; Park, 
 
 port of destination, but the next port Ins. 64. See also Camden v. Cowley, 
 
 of destination for the purposes of the 1 W. Blackst. 417; Barras v. London 
 
 voyage, and this port may be an open Ass. Co. Park, Ins. 64 ; Marshall, Ins. 
 
 roadstead. Gookin v. New England Ins. 26G, 2d ed.
 
 536 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 956. Insurance on a vessel " at and from New Orleans, Cam- 
 peachy, and Havana, for a period of six months," is a time pol- 
 icy, and does not limit the risk at, from, and to those ports, but 
 admits of sailing for any port of destination.^ 
 
 957. Insurance to ports in S., comprehends a place on the coast 
 where it is customary to land and to take in cargoes, though 7iot a 
 very secure, well-protected port. 
 
 958. A policy to two ports on the coast of B. is to any two, 
 at the election of the assured.^ 
 
 A ship being insured to Barcelona, and " two other ports in 
 Spain," and thence to Great Britain, discharged her cargo at 
 Tarragona, and then proceeded to Saloe, which is just round the 
 headland, about ten miles from Tarragona, and was lost there 
 while taking in her cargo. The underwriters objected that Saloe 
 was not a " port" within the terms of the policy. It has a cus- 
 tom-house, conveniences for loading and discharging ships, a 
 port-captain and harbor-master, and consular officers reside there. 
 Saloe Bay, where the vessels lie, is not more open than some 
 other Spanish ports. The underwriters were held to be liable.^ 
 
 959. W/iere a vessel is insured to, at, and from an island or 
 district, it is a matter of construction in the particular case, 
 ivhether the risk continues from port to port there. 
 
 A vessel insured at and from N. to the island of Trinidad, 
 in the West Indies, and " at and from the island of Trinidad," 
 to N., sailed from Port Spain, the only one in Trinidad where 
 foreign vessels were permitted to enter and clear, to another port 
 in the island to take in a part of her homeward cargo, the mas- 
 ter's intention being to return to Port Spain to take on board the 
 remainder of their cargo and clear there, but the vessel was lost 
 on the passage to such other port. It was held that the risk 
 continued on such passage.* 
 
 960. Insurance to a certain place " and a market,^'' covers the 
 risk to other places in the same region or vicinity. 
 
 Under a policy on a ship to " Barbadoes and a market," the 
 court said, the " vessel may bona fide go from island to island, 
 
 1 Groussctt V. Sea Ins. Co. 24 Wend. ^ gea Ins. Co. of Scotland v. Gavin, 
 N. Y. 219. 2 Dow & C. IIou. L. 129. 
 
 2 Vandervoort v. Smith, 2 Caines, 4 Dickey v. Baltimore Ins. Co. 7 
 N. Y. 15o. Crancb, 327.
 
 SECT. II.] TERMINATION OF THE RISK. 537 
 
 until her cargo is disposed of; but we do not mean to say that 
 the same construction is to be given to a policy in any other 
 trade than that to the West Indies." ^ But an insurance to any 
 island in the West Indies, some of those islands being hostile, 
 will be limited in construction to those which are friendly.^ 
 
 961. Insurance to ^4., and '■Hf turned away^'' then to a " neigh- 
 boring''^ or "a near opeji port,''^ refers to the geographical situa- 
 tion of such other port, rather than to the difficult?/ or facility of 
 proceeding to it. 
 
 A ship being insured from New York to Bourdeaux, %vith a 
 provision that, if turned away, she might " proceed to a near 
 open port," Mr. Justice Spencer, for the court, said : " The terms 
 ' near open port ' must be considered as used in a geographical 
 sense, and not as depending on the facility of reaching a distant 
 port, if the wind should happen to be favorable. They admit of 
 some latitude, but still there must be a limitation. If it be con- 
 ceded that L'Orient comes within the expression, 'near open 
 port,' in reference to Bourdeaux, it is perhaps as great an exten- 
 sion of the import of the words as ought to be allowed. We 
 are of opinion that neither Falmouth, Plymouth, nor Guernsey 
 can be considered a near open port to Bourdeaux." ^ 
 
 A vessel being insured to Amsterdam, with liberty, if turned 
 away, to enter a neighboring port, being turned away from 
 Amsterdam, was held to be protected under this liberty in pro- 
 ceeding to London ; there being at the time no nearer port 
 which she could safely enter.^ 
 
 962. Insurance on a vessel to the port of discharge, or until 
 arrival at port, in the singular, terminates at the first such port. 
 The questions in this case are, what is a port, and what is such 
 an unloading at a port as to render it a port of discharge, and 
 what is an arrival. 
 
 Under insurance " to the vessel's port of discharge in Europe," 
 the vessel sailed from Boston bound to the Meuse, but the mas- 
 ter, understanding that the vessel and cargo would be confis- 
 cated if he proceeded to Rotterdam, turned to Gothenburg, to 
 
 1 Maxwell v. Robinson, 1 Johns. N. Y. 3 Tenet v. Phoenix Ins. Co. 7 Johns. 
 333.. N. y. 363. 
 
 2 Neilson v. De La Cour, 2 Esp. * Fergusson v. Phcenix Ins. Co. 5 
 619. Biun. Penn. 544.
 
 538 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 inquire the state of the markets in the Baltic, and after leaving 
 Gothenburg, and while proceeding to a market in the Baltic, the 
 vessel was captured." It was held 'that the risk had not termi- 
 nated.i 
 
 A ship being insured from the United States to Europe and 
 back " to her port of discharge in the United States," cleared 
 from St. Ubes, with a load of salt, for New York, en arriving at 
 which port, the captain immediately advised his owner, at Hart- 
 ford, of his arrival, and the owner, in reply, without any delay, 
 ordered the captain to proceed with the ship and cargo to Mid- 
 dletown, on Connecticut River. As the vessel could not pro- 
 ceed up the river with her whole cargo, she must be lightened 
 either at New York, or at the mouth of the river. The captain, 
 after consultation, lightened her at New York, by discharging 
 about three thousand bushels of salt into lighters, to be trans- 
 ported to Middletown. The usual entry of ship and cargo was 
 made at New York, as at the port of discharge, and the duties 
 w^ere paid on three boxes of lemons, the only part of the cargo 
 subject to duties. No part of the cargo was landed at New 
 York. It was held in Connecticut, that New York was the port 
 of discharge, stress being laid upon the masters having so in- 
 tended, and upon the entry and payment of duties there.'^^ But 
 query of this. 
 
 It was held, in another case, that the landing of 150 boxes of 
 lemons at New York, while the ship was waiting for orders from 
 the owner, the lemons being in a perishing state and likely to be 
 spoiled, does not make New York the port of discharge under 
 such a policy.'^ 
 
 And so it was held in respect to the discharging of the crew 
 in New York, and immediately shipping another to proceed to 
 Middletown, on the owner's giving directions to this effect.* 
 
 A vessel, being insured from the West Indies to her port of 
 discharge in the United States, put into Savannah, in Georgia, 
 where the master intended to discharge his cargo, if the market 
 was favorable ; but not finding it so, he concluded to proceed to 
 
 1 Coolid^e V. Gray, 8 Mass. 527. 3 Sage v. Middletown Ins. Co. 1 
 
 2 King V. Middletown Ins. Co. 1 Conn. 239. 
 
 Conn. 184. 4 King v. Hartford Ins. Co. 1 Conn. 
 
 333.
 
 SECT. II.] TERMINATION OF THE RISK. ' 539 
 
 Boston, after making repairs at Savannah. It was held, that 
 the risk continued to Boston.^ 
 
 963. W/iere insurance is made to a port or ports^ or to an island 
 or district with liberty to touch and trade at divers ports, or " to 
 the final port of discharge,^'' the risk ivill terminate ivhen the ichole 
 cargo is discharged, or when the objects of the voyage to ports for 
 the purpose of delivering cargo are so far accomplished, that the 
 delivery of the remainder at any ulterior port is no inducement 
 worth consideration to proceed thither. 
 
 A ship was insured " from Liverpool to Martinique, or any 
 other of the Windward or Leeward Islands, with liberty to 
 touch and stay at any ports or places whatsoever to take on 
 board and land goods, stores," &c. The outward cargo was 
 disposed of at Martinique, excepting a small quantity of bricks 
 and lime, with which the captain sailed for Antigua, at which 
 island he lay, waiting' to procure a freight home and dispose of 
 the rest of his outward cargo, from the 31st of May to the 8th 
 of July, when the vessel was wrecked. Lord EUenborough in- 
 structed the jury, that " the captain had no right to mix up 
 together the two objects of disposing of the remnant of the out- 
 ward cargo and procuring a homeward cargo, at the risk of the 
 underwriters on the outward voyage. When the disposal of the 
 outward cargo ceased to be the sole reason of his stay at An- 
 tigua, the.se underwriters were discharged." ^ 
 
 The concluding remark in this ruling needs to be qualified. 
 The risk should continue on the ship so long, at least, as the 
 disposal of the outward cargo is the principal or substantial rea- 
 son for proceeding to an ulterior port. The risk in a policy on 
 cargo will, as we shall see, continue still longer.^ 
 
 A ship was insured from the West India Islands to the United 
 Kingdom, and back " to Barbadoes and all or any of the West 
 India colonies, (J. and D. excepted,) until the ship should be 
 arrived at her final port, with liberty to proceed to and touch 
 and stay at any ports or places whatsoever, and to load and 
 unload goods." She sailed from Liverpool to the West Indies 
 with a cargo, about one eighteenth part of the value of which, 
 
 1 Lapham v. Atlas Ins. Co. 24 Pick. 3 See Moore v. Tajlor, 1 Ad. & E. 
 Mass. 1. 25. 
 
 2 Inglis V. Vaux, 3 Campb. 437.
 
 640 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 and more than one third part of the tonnage, consisted of coals 
 and bricks. On arriving at Barbadoes the cargo, except the 
 coals and bricks, was discharged, and 330 empty molasses casks 
 taken on board, and the ship, being about to sail on the 11th of 
 August to Berbice for a cargo of molasses, was totally lost on 
 the night of the 10th. Mr. C. J. Denman ruled at the trial, that, 
 " if the cargo had been substantially discharged at Barbadoes," 
 the risk had terminated. And he was of opinion that it had 
 been so, considering the coals and bricks to have been retained 
 on board for ballast; and so the jury found, though Littledale, 
 J., doubted whether the verdict was right. All the court, how- 
 ever, agreed that, if the object of going to Berbice was to find 
 a market for the coals and bricks, or deliver them, the risk would 
 have continued to that island, notwithstanding another purpose 
 in going thither might have been to load for another voyage. ^ 
 
 Where the policy was on ship, cargo, and freight, from the 
 Canaries " to any port or ports " in Spanish America, the con- 
 struction adopted was, that the voyage terminated when the 
 cargo was discharged, and that the policy would not cover a new 
 voyage undertaken from one port of Spanish America to an- 
 other.2 The court seems to be of opinion that the risk would 
 continue to the last port of discharge, and this agrees with the 
 case just cited. 
 
 A vessel being insured from Beverly to " Bilboa, or a port of 
 discharge in Europe," and from Europe to her port of discharge 
 in America, or to a port or ports in India, proceeded to Bilboa? 
 where a part of the cargo was discharged, and then sailed to 
 Lisbon. It was contended, in behalf of the assured, that a policy 
 to Bilboa, "or" a port of discharge, was equivalent to one to 
 Bilboa, "and" a port of discharge. Chief Justice Parker, giving 
 the opinion of the court, said : " The plain meaning of the ex- 
 pression is, to Bilboa or some other port of discharge." It was 
 accordingly held, that the risk on the outward voyage ended at 
 Bilboa.3 
 
 A vessel being insured " to port or ports of discharge in the 
 river La Plata," took a cargo of flour, lumber, and 80 bundles of 
 
 1 Moore v. Taylor, 1 Ad. & E. 25. Sup. Jud. Ct., Essex, October, 1820. 
 
 2 Stoeker v. Harris, 3 Mass. 409. See also Bulkly v. Protection Ins. Co. 
 
 3 Stephens v. Beverly Ins. Co. Mass. 2 Paine, C. C. 82.
 
 SECT. II.] TERMINATION OF THE RISK. 5-41 
 
 shingles, and having discharged her whole cargo excepting 35 
 bundles or 7 J thousands of shingles, worth about $50, at Monte 
 Video, and taken on board 5000 horns and four passengers, to be 
 landed at Buenos Ayres, proceeded to the latter port, where she 
 was lost. The court in Massachusetts were of opinion, that, if 
 the cargo was substantially discharged at Monte Video, and the 
 object in proceeding to Buenos Ayres was substantially ulterior, 
 and the discharge of the remnant of the outward cargo consti- 
 tuted no material inducement thereto, the risk had terminated at 
 Monte Video, and, though it was a question for the jury, inti- 
 mated that, in their opinion, the risk had ended.^ 
 
 Insurance was made on the cargo of the ship Penang to Lin- 
 tin, Hong Kong, Macao, Canton, &c., and all and any other port, 
 and places, &c., •' backwards and forwards," with leave to trans- 
 ship or reship the goods on board of the same or other vessel or 
 vessels, or from such vessels, " continuing the risk by land and 
 water until the goods should arrive at their final place of desti- 
 nation." The consignees, deeming it unsafe for the vessel to 
 proceed from Macao up to Canton, on account of the hostilities 
 between the Chinese and British at the time, (1842,) chartered 
 the James Laing to accompany the Penang from Macao to Hong 
 Kong, that the cargo might be there transshipped to the latter 
 and remain until it could be sent up to Canton or to some other 
 port. After a part of the goods had been transshipped to the 
 James Laing, she was wrecked, and the loss thereby was the 
 subject of a suit. It was alleged in behalf of the underwriters 
 that Hong Kong had been made the final port of destinatioii 
 and that the risk had terminated on the goods put on board of 
 the James Laing; but Lord Denman, and his associates, held 
 that the risk had not "terminated.^ 
 
 In another policy before the same court, on the same cargo, 
 with a similar description of the voyage, excepting leave to 
 transship the goods, the risk was held to have terminated on the 
 transshipped goods, on account of change of risk in the nature 
 of a deviation, by unnecessarily shifting it to a different vessel.^ 
 
 The interest of the captain in a cargo was insured " from 
 
 1 Upton V. Salem Commercial Ins. ^ Oliverson v. Brightman, 8 Q. J3. 
 Co. 8 Mete. Mass. 605. 781. 
 
 3 Bold V. Rotheram, 8 Q. B. 797. 
 VOL. I. 46
 
 542 THE VOYAGE. DUEATION OF THE RISK. [CHAP. XI. 
 
 London to all or any of the ports or places in the East Indies, 
 China, or Persia, or elsewhere, on this or the other side of the 
 Cape of Good Hope, until arrival at the last place of discharge 
 in the outward voyage." The cargo carried under the charter- 
 party was wholly discharged at Calc'utta ; but the captain, hav- 
 ing made a part of his investment at Calcutta, intended to make 
 the rest at Madras, whither the ship was ordered by the company 
 on an intermediate voyage. A loss happened on the voyage to 
 Madras, and a question w^as made whether the risk ended at 
 Calcutta. Lord Ellenborough ruled that Calcutta was " the last 
 port of discharge on the outward voyage." ^ 
 
 Insurance being made on a ship " to any port or ports in the 
 river Plate, until her arrival at the last port of discharge" in the 
 river ; the captain intended to put into Buenos Ayres, and dis- 
 charge his cargo there, but hearing, after he came into the river, 
 that Buenos Ayres was in the hands of the enemy, he put into 
 Monte Video, intending to discharge his cargo there, if the mar- 
 ket was favorable; but at the same time not relinquishing the 
 design of proceeding to Buenos Ayres to complete the discharg- 
 ing of the cargo, if it should be practicable. While the vessel 
 lay at Monte Video, a loss took place ; Buenos Ayres still re- 
 maining in the possession of the enemy. The court was of 
 opinion, that the risk ended at Monte Video, as the captain did 
 not contemplate going to any other port except Buenos Ayres, 
 and he could not legally go thither while the place was in pos- 
 session of the enemy.^ 
 
 964. An insurance being to a certain port, the object of the 
 voj/age being' a delivery of the cargo there, will terminate at a 
 substituted port of delivey'y. 
 
 A ship was insured " from Boston to Tonningen." The ship 
 was compelled by stress of weather to enter the Elbe for safety, 
 and she proceeded up to Gluckstadt. The consignee received 
 the cargo there. Mr. Justice Parker gave the opinion of the 
 court, " that the voyage was completed by the consent of the 
 master and consignee to deliver and receive the cargo at Gluck- 
 stadt, this being a substitution of that place for Tonningen. 
 The object of the voyage, as understood by the parties, was to 
 
 1 Richardson v. London Ass. Co. 4 ^ Brown v. Vigne, 12 East, 283. 
 Campb. 91.
 
 SECT. II.] TERMINATION OP THE EISK. 543 
 
 carry the cargo to Tonningen, and it was competent to the par- 
 ties to put an end to the contract between them, by adopting 
 Gluckstadt as the place of delivery." ^ 
 
 The risk on a ship, insured for a fishing voyage, is not termi- 
 nated by the arrival of a part of her cargo sent home by an- 
 other.2 
 
 965. Tlie port of discharge is that of the actual discharge of 
 the cargo, notwithstanding a different one, or more than one, may 
 have been intended. 
 
 As where, in a trial before Buller, J., a ship being insured to 
 her last port of discharge in India, the whole cargo was dis- 
 charged at Madras, though it had been intended to discharge a 
 part of it at a subsequent port.^ 
 
 966. The insured voyage being abandoned, the risk ends. 
 Goods were insured from London to Revel, and the master, 
 
 having intelligence on the voyage that there was an embargo on 
 English vessels at that port, put back for England, and a loss 
 took place on the way thither. Lord Ellenborough : " If the 
 ship, being unable to enter at Revel, had returned, with an inten- 
 tion of ultimately completing the original voyage, a question of 
 some nicety might have arisen. But the original voyage was 
 abandoned, and the underwriters were discharged."'^ 
 
 The same judge said in another case : " There may be causes 
 for a ship putting back for a time, without any intention of aban- 
 doning her voyage ; as the approach of an enemy, or a temporary 
 embargo ; or as in a case which occurred before Lord Kenyon, 
 where a ship bound to a port in the Baltic found it blocked up 
 by ice, on which she put back, but afterwards, on a thaw, sailed 
 again." ^ 
 
 In a case of insurance " to Gothenburg, and one port of dis- 
 charge in the Baltic," the captain, while at Gothenburg, elected 
 St. Petersburg as his port of destination, but after sailing changed 
 his mind, and determined to go to Stockholm, and was captured 
 
 1 Shapley v. Tappan, 9 Mass. 20. 4 JJlaLkenhagen r. London Ass. Co. 
 
 2 Phillips v. Champion, 1 Marsh. 402 ; I Canipb. 454. See also Richardson o. 
 6 Taunt. 3. Maine Fire & Mar. In.s. Co. 6 Mciss. 
 
 3 Moffatt V. Ward, 4 Dougl. 31, n. 102, at p. 177, 121. 
 
 See also Ellery v. New England Mar. & Biown v. Vigne, 12 East, 283. 
 Ins. Co. 8 Pick. Mass. 14.
 
 544 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 before altering his course from St. Petersburg to Stockholm, while 
 he was on the common course to both those places. The judges 
 of the Supreme Court in New York, were divided in opinion on 
 this case, but in the Court of Errors, Chancellor Kent gave an 
 opinion, supported by an elaborate argument and examination of 
 authorities, that the master's determination to go to Stockholm 
 put an end to the risk, and, accordingly, that the insurers were 
 not liable for any loss subsequent to that determination. The 
 other judges concurred in this opinion.^ 
 
 I cannot but doubt this decision. As the assured cannot have 
 the benefit of his mere intents, not distinctly realized in acts, so 
 he ought not to be prejudiced by them. In this case the new 
 intent was just as subject to be revoked as the first one had been. 
 The risk having once commenced, it is immaterial to the under- 
 writers how many designs of turning to the right and left the 
 master may have, so long as he is in fact on the direct route of 
 any destination authorized by the policy. In determining whether 
 the risk has or has not commenced, the ambiguous acts of the 
 assured or of his agents must necessarily be construed according 
 to the intention with which they are done ; that is, whether in 
 the prosecution of the voyage insured upon, or a different one ; 
 but when the right of the underwriter to retain the premium has 
 once accrued, the assured is surely entitled to avail himself of 
 the benefit of his contract, so long as he is actually within its 
 conditions. 
 
 967. The risk ends when the voyage is intercepted and broken 
 up, although it is hy a peril not insured against. 
 
 Insurance was made " from New York to Bourdeaux, free 
 from loss or detention, in consequence of prohibited trade." The 
 vessel was prohibited to enter at Bourdeaux. Chief Justice 
 Kent said : " The prohibition to enter, under the special provis- 
 ion in the policy, was equivalent to an actual termination of 
 the risk by landing the goods." ^ 
 
 968. Insurance to a port and " nntil the vessel shall have been 
 there moored twenty-four hours in safety^^ presents the question, 
 
 What is being moored in safety ? 
 Under such a policy, on a voyage to London, the vessel arrived 
 
 1 N. Y. Firemen's Ins. Co. v. Law- 2 Speyer v. N. Y. Ins. Co. 3 Johns, 
 rence, 14 Johns. N. Y. 46. N. Y. 88.
 
 SECT. II.] TERMINATION OP THE RISK. 545 
 
 at the dock where she was to unload, and, there being no room 
 on the inside, lay outside, moored and lashed to other vessels, 
 and after so lying more than twenty-four hours was forced adrift 
 by the ice, and lost. Lord Kenyon was of opinion, that she had 
 been moored twenty-four hours in safety, as intended by the 
 policy.^ And this seems to have been a proper construction of 
 the phrase, which must have reference to safety from hinderance 
 by the elements and sea-perils, and not to the good or bad berth, 
 or mooring-ground, the vessel might find in the port. 
 
 In the case of a vessel insured to London, that within twenty- 
 four hours after her arrival was ordered back to quarantine, 
 whereupon her crew deserted her, and she did not get into quar- 
 antine for eighteen days after, it was held that the risk continued 
 during the quarantine, and consequently until she should have 
 been moored twenty-four hours in safety, after the expiration 
 of the quarantine.2 In this case, the being moored in safety 
 was considered to mean, so as to have " the opportunity of un- 
 loading." 
 
 A ship being insured to Havana, on arriving, was ordered to 
 anchor under the Moro Castle, at the entrance of the harbor, 
 because a frigate was about passing; and after the frigate had 
 passed, it was too late to get the ship under way that day. On 
 the next day, in crossing the harbor, and more than twenty-four 
 hours after she had come to anchor under the castle, she struck 
 on a shoal in the harbor. It was held in Louisiana, that she had 
 not been moored twenty-four hours in good safety.^ 
 
 A ship and freight were insured from Sierra Leone, " the ship 
 until she should arrive at London, and be there moored at anchor 
 twenty-four hours in good safety, and the goods until the same 
 should be there discharged and safely landed." The ship brought 
 a cargo of teak, which the master was directed to deliver at the 
 King's Dock at Deptford. The ship arrived at Deptford, but was 
 hindered by the ice in the river from entering the dock, and lay 
 moored for some days, when, in the attempt to move her into 
 the dock, she went ashore and was wrecked. Lord Tenterden 
 and his associates considered that the being safely moored must 
 
 1 Angerstein v. Bell, Park, Ins. 55. Mart. N. s. La. 637. See Dickey v. 
 
 2 Waples V. Eames, 2 Strange, 1243. United Ins. Co. 11 Johns. N. Y. 358. 
 
 3 Zacharie v. Orleans Ins. Co. 5 
 
 46*
 
 546 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 be understood in this case the being moored in the dock, as the 
 usual place for discharging such a cargo.^ 
 
 A vessel insured in like manner to Jamaica arrived at her port 
 of destination and came to anchor there in tempestuous weather, 
 and the gale continued until she lost both of her anchors, and was 
 driven ashore and wrecked ; but she had sustained no damage 
 during twenty-four hours after coming to anchor. Parsons, C. J. : 
 " The vessel is safe within the terms of the policy, until she suf- 
 fers a loss insured against." ^ 
 
 969. The risk on a vessel under a policy to a place generally 
 without any provision as to her safety there, terminates on the 
 vessel being safely anchored at her port of destination, in the usual 
 place and manner? 
 
 The risk does not end until the ship can be moored in the usual 
 place. A ship insured to Havana, came to anchor near the Moro 
 Castle, at the entrance of the harbor, where all vessels are obliged 
 to wait until they are visited by the health-officers and those of 
 the custom-house. It is not, however, considered a place of safety, 
 nor do* vessels discharge their cargoes there. After remaining 
 there more than one day, and before the ship had been visited or 
 admitted to entry, she was wrecked. It was held, that the risk 
 had not ended.* 
 
 970. The risk on a cargo insured " till safely landed^'' will 
 continue in lighters^ where that is the usual mode of landing sim- 
 ilar goods, or goods from vessels of like size.^ 
 
 And so goods insured " to and ai^'' ^ or " to " a place, are cov- 
 ered in lighters, where such is the customary way of landing 
 similar goods,' unless the goods are previously taken in charge 
 by the assured or consignee. 
 
 1 Samuel u. Royal Exch. Ass. Co. 8 1236; Hurry r. Royal Exch. Ass. Co. 
 Barnew. & C. 119. 2 Bos. & P. 430; 3 Esp. 289; Rucker 
 
 2 Bill V. Mason, 6 Mass. 313. v. London Ass. Co. 2 Bos. & P. 432, 
 
 3 Ord. Louis XIV. Ins. a. 5 ; Code n. ; Matthie v. Potts, 3 id. 23 ; Cogge- 
 de Commerce, a. 152; Bill u. Mason, 6 shall v. American Ins. Co. 3 Wend. 
 Mass. 313 ; Lindsay v. Janson, 4 Hurlst. N. Y. 283. 
 
 & N. Exch. 699. 6 Parsons v. Mass. Fire & Mar. Ins. 
 
 4 Dickey v. United Ins. Co. 11 Johns. Co. 6 Mass. 197. 
 
 N. Y. 358. See Zacharie v. Orleans ''' Wadsworth v. Pacific Ins. Co. 4 
 Ins. Co. 5 Mart. n. s. La. 637. Wend. N. Y. 33. 
 
 5 Sparrow v. Carruthers, 2 Strange,
 
 SECT. II.] TERMINATION OF THE RISK. 547 
 
 Goods destined to Soto La Marina, in Mexico, are usually 
 discharged from the vessel into launches outside of the bar, sixty 
 miles below the town, and transported up to the town in the 
 launches, or landed and carried on mules. It was held, that in 
 either case they are at the risk of the underwriters until they are 
 landed.^ 
 
 In the case of a policy on goods to the coast of Labrador, till 
 safely landed, the vessel arrived on that coast the 22d day of 
 June, and the crew were employed in fishing, except at short 
 intervals while they were landing such parts of the cargo as were 
 wanted, until the 13th of August, when the vessel, still having 
 the principal part of her cargo on board, was captured by an 
 American privateer. Lord Mansfield and his associates were of 
 opinion, that there was not more delay than the usage of the 
 trade justified. The risk had not expired, because the assured 
 had not had more than the usual and reasonable time, according 
 to the course of the trade, for landing the cargo.^ 
 
 Goods being insured to the coast of Africa, " till safely landed," 
 the vessel lay on the coast from the 6th of May till the 4th of 
 June, waiting for a return cargo to come down from the country, 
 as is customary ; and while so waiting was captured by a 
 French privateer. Lord Kenyon was of opinion, that the risk 
 continued to the time of the capture, and refused to admit 
 evidence that, by the usage in these voyages, the risk continued 
 on the goods but twenty-four hours after the vessel was moored.^ 
 
 It has been held, that the risk continues on goods brought 
 back to the boat, in order to be again put on board of the ship, 
 where they had been put on shore for the purpose of being 
 delivered to a purchaser, such delivery not being made. 
 
 Insurance was made, upon "specie and merchandise out, and 
 merchandise home, at and from Boston to ports in the islands of 
 Sumatra and Java, for the purpose of disposing of the outward 
 and procuring a return cargo, and thence to the port of discharge 
 in the United States, with liberty to touch at the usual places 
 and trade thereat." At Labouaga, in the island of Sumatra, the 
 captain contracted with Dato Bassow, the chief magistrate there, 
 to exchange a chest of opium for a certain quantity of pepper 
 
 1 Osacar V. Louisiana Ins. Co. 5 Mart. ^ Noble v. Kennoway, Dougl. 492. 
 N. 8. La. 386. 3 Parkinson r. Collier, Park, Ins. 470.
 
 648 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 and for dollars. When pepper, of a value equal to that of two 
 thirds of the opium, had been delivered on board, Dato requested 
 that the opium should be landed and weighed, and said he would 
 pay the balance in dollars. The opium was accordingly landed. 
 While they were occupied in weighing it, Dato demanded new 
 terms of agreement, upon which the captain proposed to take the 
 opium on board, and pay in dollars for the pepper which he had 
 received. Dato consented to this proposition, but just as the 
 opium had been put on board of the boat to be carried back to 
 the ship, and while it rested on the gunwale of the boat, his men 
 seized it, in pursuance of a previous design to plunder or cheat 
 the captain. It was insisted, in behalf of the insurers, that the 
 risk on the opium had ended, as soon as it was put into the 
 scales to be weighed. Mr. Justice Sedgwick, for the court, said : 
 " The insurers insured the plaintiff 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 pro- 
 tected by the policy, in the boats, while employed as auxiliary to 
 the voyage, as they were on board the ship." ^ 
 
 971. A policy on goods till safely landed terminates on landing 
 at the usual place of discharging cargoes at the port: 
 
 As, in an insurance to Leghorn, the landing at the Lazaretto, 
 about half a mile below the city.'-^ 
 
 972. Whether the risk on goods insured until twenty-four hours 
 after they are safely landed will terminate on parts of the cargo 
 successively landed, so soon as each part has been landed for 
 that period ? 
 
 In a New York case under a policy on goods to Jamaica, 
 " and twenty-four hours after the goods as named in the margin 
 are landed," against illicit trade, among other risks, when a part 
 of the cargo had been landed over twenty-four hours, the goods 
 landed, and those still on board, were seized as illicit. Mr. Jus- 
 tice Lansing, giving the opinion of the court, said : " The insur- 
 ance being entire, we are of opinion that the risk continued on 
 
 1 Parsons v. Mass. Fire & Mar. Ins. 75. See also Brown v. Carstairs, 3 
 Co. 6 Mass. 197. Cauipb. 161. 
 
 2 Gracie v. Marine Ins. Co. 8 Crancli,
 
 SECT. III.] SUSPENSION OF THE RISK. 549 
 
 the entire goods until twenty-four hours after all of them were 
 landed." i 
 
 I do not hesitate to doubt this decision, and state it as the 
 better doctrine, that the risk terminates on each parcel at the end 
 of twenty-four hours after it is landed? 
 
 973. If the assured or consignee takes charge of the goods in 
 lighters before they are landed, the risk ends, though by the policy 
 it runs till they are safely landed.^ 
 
 974. Insurance being on a ship and the cargo, " to terminate 
 when she might receive on board a cargo or effects with the inten- 
 tion of proceeding to the United States," the risk was held not to 
 terminate on the ship's having received on board, from other ships 
 a part only of her cdrgo.^ 
 
 SECTION in. SUSPENSION OF THE RISK. 
 
 975. We have already seen that the risk may be suspended 
 during a temporary non-compliance with the implied warranty of 
 seaworthiness.^ It has, it is true, been occasionally asserted by 
 judges, that the risk cannot be so suspended, and then revive, 
 without an express provision in the policy for the purpose ;^ and 
 this is implied in many cases, more particularly those involving 
 the question of apportionment of premium. But the doctrine that 
 the risk may be suspended and again revive without an express 
 provision for the purpose, seems to be within the strictest juridi- 
 cal principles. The stipulation of seaworthiness, for instance, is 
 an implied one, about which the parties are totally silent in their 
 contract. When, therefore, the courts assume it to be part of 
 the contract, they do so upon the ground of its being material, 
 and there seems to be no reason for extending it further than it 
 is so between the parties ; and if in any subsequent stage of the 
 voyage, or other term of the risk, the ship is seaworthy, it is 
 
 1 Gardiner v. Smith, 1 Johns. Cas. N. 4 Ward v. AVood, 13 Mass. 539. 
 Y. 141. See also Fletcher v. St. Louis. 5 Supra, c. 8, s. 2, No. 734. 
 
 Mar. Ins. Co. 18 Mo. 193. 6 Mackenzie v. Sliedden, 2 Campb. 
 
 2 So held in Mansur v. New Eng- 431 ; and see 2 Caines Cas. N. Y. 72, 
 land Ins. Co. 12 Gray, Mass. 520. per Lansing. 
 
 3 Strong V. Nattally, 4 Bos. & P. 16 i 
 Low V. Davy, 5 Binn. Penn. 595.
 
 550 THE VOYAGE. DURATION OF THE RISK. [CHAP. XT. 
 
 wholly immaterial that she was temporarily not so, at some prior 
 time after the risk had begun. Jurisprudence abounds with 
 decisions that, if this implied warranty is not complied with 
 when the risk is to begin, so that it may commence within the 
 terms of the policy, the contract is forfeited and void. But after 
 it has begun, so that the premium is become due, it surely is but 
 equitable that a temporary non-compliance should have effect 
 only during its continuance. To carry it further is to inflict a 
 penalty upon the assured, and decree a gratuity to the insurer, 
 who is thus permitted to retain the whole premium when he has 
 merited but part of it. A forfeiture certainly ought not to be 
 extended beyond the grounds on which it is incurred. 
 
 The question then arises, whether the same doctrine is applica- 
 ble to other implied stipulations than that of seaworthiness. I 
 say " stipulations," for the accidental more frequent use of the 
 terms " warranty " and " condition," in reference to seaworthi- 
 ness, should not affect the essential principles by which the con- 
 struction of the contract of insurance is to be governed. Because 
 the leading early cases respecting warranties and conditions had 
 reference to such as covered the whole subject-matter of the 
 contract, and the whole risk, we are the more apt to assume that 
 they have this application generally, which is by no means 
 necessary, for nothing prevents a warranty or condition from ap- 
 plying to the diver parts of the subject or of the risk, when it 
 can be so applied consistently with the nature of the contract. 
 When, therefore, a warranty or condition is imposed by con- 
 struction, as being implied and presupposed by the parties in 
 making their contract, the extent to which it is to be applied, 
 and the degree of forfeiture to be incurred by non-compliance, 
 are surely proper subjects of consideration. And the case above 
 referred to suggests a general rule on the subject, namely, that 
 the forfeiture is to be extended only far enough to put the other 
 party, that is, the insurer in this case, in the same condition as 
 he would have been in had the stipulation been complied with. 
 This rule will always operate in favor of the insurer, and against 
 the assured, but only commensurately with the non-compliance 
 on the part of the latter. 
 
 If this doctrine is fully carried out, it will apply to an implied 
 warranty or condition other than that of seaworthiness, as, for
 
 SECT. III.] SUSPENSION OF THE RISK. 651 
 
 instance, that of neutral character and conduct, where the war- 
 ranty is not complied with, and a loss happens by perils of the 
 seas wholly independent of such warranty. 
 
 And there does not appear to be any good reason why, in the 
 absence of all fraud and of all prejudice to the underwriter, the 
 same doctrine should not be applicable to express stipulations in 
 the nature of warranties, or conditions, unless, by the circum- 
 stances or the express provisions of the policy, such application 
 is excluded.! 
 
 Thus, where a cargo is insured for a voyage, and, by construc- 
 tion of the policy, the risk is not covered while the goods are on 
 land,2 there is no reason why it should not revive when the cargo 
 is again put on board the ship. In this and other cases, while 
 the goods are not exposed to any of the perils insured against, 
 either by not conforming to the description in the policy, or 
 because they are, for a time, not exposed to such perils, the risk 
 temporarily ceases, and recommences on the goods being again 
 brought within the situation contemplated by the parties and 
 described in the policy. The risk may not be so interrupted, 
 when, by the action of the perils insured against, or for the due 
 prosecution of the voyage, the subject-matter is put out of the 
 condition in which the policy supposes it to be.^ 
 
 Fire policies may contain a provision for a suspension of the 
 risk in certain cases : 
 
 As in case of any certain hazardous trades being carriedon in 
 the insured building.'* 
 
 The circumstances of an Ohio case seem to admit of this con- 
 struction. A steamboat being insured for one year was seized 
 and sold under a judgment upon a lien securing a debt due from 
 a prior owner. The assured repurchased it, and it was subse- 
 quently lost within the year. There does not appear to have 
 been any express stipulation that the policy should be void on a 
 sale of the boat. It was held that the policy had been forfeited 
 
 ' Such application will be excluded Pelly v. Royal Exch. Ass. Co. 1 Burr, 
 
 where the non-compliance enhances, or 341; EUery v. New England Ins. Co. 8 
 
 otherwise changes, the subsequent risks. Pick. Miiss. 14. 
 
 2 Martin v. Salem Mar. Ins. Co. 2 ^ Grant v. Howard Ins. Co. 5 Hill, 
 Mass. 420. N. y. 10. 
 
 3 Boudrett v. Hentigg, Holt, 149;
 
 552 THE VOYAGE. DURATION OF THE RISK. [CHAP. XI. 
 
 and become extinct by the sale. The boat seems to have been 
 within all the conditions of the policy, excepting that, by reason 
 of the sale and consequent temporary extinguishment of the in- 
 surable interest of the assured, the underwriters were, for the 
 time, exonerated from liability, and so seem to have had the 
 privilege of a proportional gratuity of the premium. 
 
 The case does not show any legal impediment to what was 
 obviously the equitable construction of the contract, namely, that 
 the risk was suspended.^ There may have been some provisions 
 of the policy or some circumstances not reported, though there 
 seems to be a full statement of the case, and report of the argu- 
 ments of counsel, and opinion of the court. 
 
 976. In case of a stipulation for a return of premium '•'•for 
 every uncommenced month if the ship should be laid up," which 
 was in effect a stipulation for the suspension of the risk for such 
 months, it was held that this might mean a permanent laying 
 up, so as to put an end to the voyage on which the ship was 
 employed.^ 
 
 1 Cockerill v. Cincinnati Ins. Co. 16 2 Hunter v. Wright, 1 Lloyd & W. 
 Ohio, 149. Cas. 138 ; 10 Baruew. & C. 714.
 
 CHAPTER XII. 
 
 DEVIATION AND CHANGE OF RISK. 
 
 Sect. 1. Of deviation and change of risk in 
 general. The effect. 
 
 2. The substitution of an entirely other 
 
 voyage. 
 
 3. Change of the risk i?i port. Time 
 
 and manner of loading and land- 
 ing cargo. 
 
 4. Var3'ing unnecessaril}' from the 
 
 usual course. 
 
 5. Intention to deviate. 
 
 6. Delay after the risk has begun, 
 
 either in port or on a passage. 
 
 7. Usage will justify deflections and 
 
 delay of the voj'age. 
 
 8. Liberty to turn from the direct or 
 
 usual course, or to delay, or to 
 vary from the usual risks. 
 
 9. Turning off and delay for repairs 
 
 or to refit 
 
 Sect. 10. Turning off to avoid perils in- 
 sured against, or not insured 
 against. 
 
 11. Delay for the purpose of succoring 
 
 the distressed, or to save the 
 property of others. 
 
 12. Taking letters of marque. Cruis- 
 
 ing. Convoying. 
 
 13. Departures from the route, de- 
 
 lays, and changes of the 
 risk, not imputable to the as- 
 sured. 
 
 14. Changes of the risk in fire poli- 
 
 cies. 
 
 15. Changes of the risk in life poli- 
 
 cies. 
 
 16. Waiver of a forfeiture incurred by 
 
 deviation. 
 
 SECTION I. OF DEVIATION AND CHANGE OF RISK IN GENERAL. 
 
 THE EFFECT. 
 
 977. Having, in the preceding chapters, considered the condi- 
 tions and stipulations relative to the voyage or other risk, and 
 the limits or period of the risk, we now come to inquire in what 
 manner the voyage is to be pursued or any other risk is to be 
 run, and what acts will be a departure from it, or deviation, 
 which is the enhancing- or varying from the risks insured against 
 as described in the policy, without necessity or just cause, after 
 the risk has begun} 
 
 978. Tlie doctrine of deviation has reference exclusively to the 
 risks insured against in the policy. 
 
 I See Marshall, Ins. 183 ; 1 Arnould, 447, for definitions of deviation, and 
 Ins. 341 ; Roctus, n. 52; Dougl. 291 ; remarks upon it- 
 Coffin V. Newbury port Ins. Co. 9 Mass. 
 VOL. I. 47
 
 554 DEVIATION AND CHANGE OF BISK. [CHAP. XII. 
 
 Other risks may be incurred, provided it appears by the policy 
 that they are to be so, and the contract will not be thereby 
 affected, though the risks insured against are thereby affected. 
 So, extraordinary and unusual risks to any extent, of which the 
 underwriters cannot be presumed to have notice, may be incurred 
 by the assured, provided tiiose insured against are not thereby 
 affected ; and the loss, if any, by such superadded risk, is clearly 
 distinguishable : 
 
 As by omitting to take a sea-letter, in case of its not being 
 requisite to compliance with an express stipulation : ^ 
 
 So in case of the risks under the policy being suspended for 
 the time.^ 
 
 979. The description of the risks insured against in the policy, 
 and referred to in speaking of a deviation or change of risk, are 
 those specified as perils of the seas, fire, capture, detention, &c., 
 on a certain voyage or for a certain period. It is material, ac- 
 cordingly, not only to understand what species of perils are 
 insured against under the description in the policy, but also 
 within what time, on what course or track, within what geo- 
 graphical limits, and under what circumstances and qualifica- 
 tions, the underwriters stipulate to assume such risks, since the 
 enhancing of the risks thus assumed^ or varying from them, dis- 
 charges the underwriters on a policy or lender on bottomry or 
 respondentia, partially, teynporarily, or absolutely, from their lia- 
 bility for loss? 
 
 The language describing the course of the voyage must be taken 
 in its commercial acceptation, and not in its strict geographical 
 meaning. 
 
 A ship, of which the freight was insured from Van Diemen's 
 Land to India and the " Indian Islands," and thence to Europe, 
 put into the island of Mauritius. Though this is, geographically, 
 an African island, yet it was held, that if, in commercial lan- 
 guage, it was an " Indian island," it was not a deviation.^ 
 
 1 Cleveland v. United Itis. Co. 8 tomry, see Marshall, Ins., book 2, c. 5, 
 Mass. 308. See also Richardson v. p. 756, 2d ed., also Western i'. Wild}', 
 Maine Ins. Co. 6 Mass. 102. Skin. 152. 
 
 2 Sec supra, c. 11, s 3. 4 Robertson v. Clarke, 1 Bingh. 445 ; 
 i As to the effect of deviation in bot- 8 IMoore, 622.
 
 SECT. I.] IN GENERAL. 555 
 
 980. After the explicit provisions of the policy, usage is tlie 
 predominating test as to deviation and change of the risk. 
 
 Thus usage has been held to justify a whaling vessel in enter- 
 ing into a " mateship," as it is termed ; namely, an agreement to 
 share catchings.^ 
 
 A vessel may stop at usual places for landing and taking in 
 passengers and goods, or for other purposes, especially in river 
 or coasting passages, whether under a policy of insurance,^ or a 
 bill of lading.^ 
 
 981. By a " voyage " is generally understood the sailing from 
 one port to another with all practicable, safe, and convenient expe- 
 dition ; this being the usual way in which a voyage is performed. 
 
 In some voyages, however, it is customary to prolong the risk 
 by touching at intermediate ports, as in India voyages, or others 
 of great length, or by delaying to discharge the cargo immedi- 
 ately after arrival, as in voyages to the coast of Labrador or of 
 Africa ; and the parties are supposed to be acquainted with such 
 custom, and have it in contemplation when they make their con- 
 tract. The meaning of the parties is therefore presumed to be, 
 that the voyage is to be pursued in the most direct and safe 
 course, and the adventure conducted, in general, in the most 
 expeditious manner, as far as is consistent with safety; and if 
 there is any departure from such course or mode of conducting 
 the adventure, whereby the risks insured against are varied or 
 increased, it behooves the assured to justify such departure by 
 showing either a usage in that respect, or a reasonable necessity 
 for it. 
 
 Any usage as to the course or mode of pursuing a voyage, or 
 any variation from the usual manner of pursuing and conduct- 
 ing it rendered necessary and authorized under the policy by the 
 circumstances, thereupon becomes a part of the voyage to the 
 same effect as if expressly provided for, and the construction as 
 to any subsequent deviation or change of risk will be the same 
 as if such prior justifiable deviation had been expressly so pro- 
 vided for.* 
 
 1 Child V. Sun Mutual Ins. Co. 3 3 Lowry v. Russell, 8 Pick. Mass. 
 Sandf. N. Y. 26. 360. 
 
 2 Loekett v. Merchants' Ins. Co. 10 ■* Harrington i\ Halkeld, Park, Ins. 
 Rob. La. 339. 639, 8th ed.
 
 556 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 982. The propriety of changes of risk, delay, and departure 
 from the direct or usual course, from alleged expediency, is to be 
 tested, not by the event, but by the circumstances as they presented 
 themselves to the assured or his agent at the time, acting in good 
 faith and having in view the expeditious and safe prosecution of 
 the voyage and safety of the property at risk.^ 
 
 In case of the course and steps being so taken, the under- 
 writers will be liable for loss by the perils specified in the policy 
 as being insured against, though the loss is directly consequent 
 upon the measures taken for safety : 
 
 As where a damaged boat was sunk, in consequence of being 
 taken in tow, at the request of the master, by a steamboat.^ 
 
 So Lord Ellenborough ruled, that taking three Spanish pris- 
 oners of war on board of a merchant- vessel as passengers, on a 
 voyage from the Cape of Good Hope to Buenos Ayres, did not 
 discharge the underwriters, unless there was reason to suppose, 
 at the time of taking them on board, that the risk would be 
 thereby materially enhanced, which he intimated that there was 
 not,'' though they joined some of the crew and seized the vessel 
 in coming into the River Plate. 
 
 983. It is not necessary to a deviation or change of risk, whereby 
 the underwriters are discharged, that the degree or period of the 
 risk should be thereby increased. The assured has no right to sub- 
 stitute a different riskJ^ 
 
 Transshipping goods insured by a particular vessel, to another, 
 unnecessarily, is a change of the risk which discharges the insur- 
 ers.^ So also it discharges the lender at respondentia from the 
 risk.^ 
 
 Under liberty to " touch at the Cape De Verde Islands, for the 
 purchase of stock, such as hogs, goats, and poultry, and taking 
 
 1 Byrne v. Louisiana State Ins. Co. 5 Millar, Ins. 394 ; 1 Enierigon, p. 
 7 Mart. N. s. La. 124, per Porter, J.; 425, c. 12, s. 16; 1 Burr. 361 ; MoUoy, 
 also Gazzam t'. Ohio Ins. Co. Wright, c. 7, s. 11; Oliverson v. Brighman, 8 
 Ohio, 202. Q. B. 781 ; Bold v. Rotheram, id. 797; 
 
 2 Stewart v. Tennessee Ins. Co. 1 Salisbury v. Marine Ins. Co. of St. 
 Humph. Tenn. 242. Louis, 23 Mo. 553. But this rule may 
 
 3 Toulniin v. Inglis, 1 Campb. 421. be controlled by a privilege to trans- 
 
 4 Hartley v. Buggin, 3 Dougl. 39 ; ship. Fletcher v. St. Louis Mar. Ins. 
 Hand v. Raynes, 4 Wheat. 204; and Co. 18 Mo. 193. 
 
 see cases passim. ^ Code de Commerce, a. 324.
 
 SECT. I.] IN GENERAL. 557 
 
 in water," the taking in of four bullocks and as many asses, was 
 held by the Supreme Court of the United States to be a vari- 
 ation of the risk whereby the underwriters were discharged, 
 although the jury found that no delay was occasioned, and the 
 navigation of the ship was not thereby embarrassed.^ 
 
 984. The doctrine of deviation has reference to voluntary acts, 
 or to neglects, and not to unavoidable interruptions of the voy- 
 age ; 
 
 Such as the vessel being driven from the course in a storm ; 
 Or being taken possession of by a mutinous crew.- 
 But in case of a master of a vessel going out of harbor by 
 order of the captain of a frigate lying near, to examine a strange 
 sail, Lord Ellenborough ruled it to be a deviation, remarking 
 that, if he had gone by compulsion, and under threat or just 
 fear of violence, it would not have been so.^ 
 
 985. The exposure of the goods in a greater degree to the perils 
 of the sea by stowing- them on deck, is a?i enhancement of the risk 
 whereby the underwriter upon them is discharged during their 
 being so carried, unless he has notice from the nature of the 
 article as specified in the policy, or the usage of the navigation, 
 that they are to be carried in that manner.* 
 
 Where the carrying of goods on deck does not impede the 
 navigation of the vessel, it is not a change of the risk under a 
 policy upon the vessel;^ nor under one upon the rest of the 
 cargo under deck ; nor upon the goods under deck insured in 
 the same policy.** 
 
 1 Maryland Ins. Co. v. Le Roy, 7 3 Phelps v. Auldjo, 2 Campb. 350. 
 Cranch, 26. See remarks upon this * See supra, No. 460, and cases there 
 case by Marshall, C. J., in Hughes v. cited. Brooks v. Oriental Ins. Co. 7 
 Union Ins. Co. 3 Wheat. 151). In Pick, Mass, 259 ; Blackett v. Royal 
 what way the court considered the risk Exch. Ass. Co. 2 Cronipt. & J. Exch. 
 to be varied, other than in those nega- 244; Greery r. IloUey, 14 Wend. N. Y. 
 lived by the jury, does not appear ; 35; and 2 Valin, p. 203, Ins. a. 13, n. 
 and, therefore, the case is of no author- and 1 id. p. 397, tit. Du Capitaine, a. 
 ity except to the doctrine of all the 12, n. ; The Calisto, Dav. Dist. Ct. 29 ; 
 cases, that the underwriters are dis- Laphani v. The Atlas Ins. Co. 24 Pick, 
 charged by an unnecessary change of Mass. 1. 
 
 the risk. 5 Lapham v. The Atlas Ins. Co. 24 
 
 2 Elton V. Broden, 2 Strange, 1264; Pick. Mass. 1; Milward v. Hibbard, 3 
 and see Driscol v. Bovil, 1 Bos. & P. Q. B. 120. 
 
 313; and Driscol v. Passmore, id. 200. 6 Adams v. Warren Ins. Co. 22 Pick. 
 47*
 
 558 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 986. A voyage is commonly characterized in part by its implied 
 or expressed object, as mercantile, cruising, or fishing, and par- 
 ticular limits or species of either, and it will be a different voy- 
 age or a deviation to go for another object, or out of the local 
 limits specified, or on a different species of the same general 
 pursuit.! 
 
 987. Tlie doctrine of deviation is applicable to river and lake 
 navigation : ^ 
 
 As in case of a steamboat taking other boats in tow, where 
 there is no usage so to do in like circumstances.^ 
 
 988. The borrower on bottomry is affected by the doctrine of 
 deviation no less than the assured in a policy.^ 
 
 989. The effect of a deviation, as in the case of unseaworthi- 
 ness,^ if temporary, without subsequently affecting the risks 
 insured against, is to svspend the risk; or, if in consequence of 
 the deviation the risks insured against are affected and changed 
 during the remaining period of the policy, the effect is to dis- 
 charge the underwriters from liability for any subsequent loss;^ 
 but they still remain liable for a prior one." 
 
 It has been said, that a delay of an hour or deviation of a 
 mile discharges the underwriters,^ but the law does not regard 
 such inconsiderable circumstances ; it is satisfied with reason- 
 able diligence and despatch. 
 
 Mass. 1G3 ; Lapham v. Atlas Ins. Co. 5 Supra, No. 734. 
 
 24 id. 1. 6 Green v. Young, 2 Salk. 444 ; Rich- 
 
 1 See Child v. Sun Mut. Ins. Co. 3 ardson v. Maine Ins. Co. 6 Mass. 121 ; 
 Sandf. N. Y. 26. Lee v. Gray, 7 Mass. 352 ; Coffin v. 
 
 2 Gazzam v. Oliio Ihs. Co. Wright, Newburyport Ins. Co. 9 Mass. 44 7; 
 Ohio, 202 ; Jolly's Ex'rs v. Ohio Ins. Merchants' Ins. Co. v. Algeo, 32 Penn. 
 Co. 1 id. 539. St. 330. 
 
 3 Hermann v. Western Mar. & Fire ^ Hare v. Travis, 7 Barnew. & C. 
 Ins. Co. 15 La. 517. 14. 
 
 4 Harinan v. Vanhattan, 2 Vern. Ch. 8 Coffin v. Newburyport Ins. Co. 9 
 717; Western v. Wildy, Skin. 152; Mass. 449. 
 
 Williams v. Stedman, id. 345 ; Holt, 
 126.
 
 SECT. II.] THE SUBSTITUTION OF ANOTHER VOYAGE. 559 
 
 SECTION II. THE SUBSTITUTION OF AN ENTIRELY OTHER 
 
 VOYAGE. 
 
 990. There is an important distinction between the substitution 
 of another entire voyage at the outset^ and a change of the risk 
 after the voyage is begun. 
 
 In the former case the contract does not take effect, and the 
 premium may be reclaimed, where the contract is made through 
 mistake and without fraud, and the insurer could have defended 
 himself against a claim for loss ; in the latter case the contract 
 takes effect partially, and the premium is not reclaimable. 
 
 The circumstances under which the risk will commence, under 
 a policy upon the different insurable subjects, have already been 
 considered.^ We have seen that the policy " at " a place at- 
 taches when one " from " it \vould not, and the same policy on 
 ship, cargo, and freight, may attach on the ship, and not on the 
 other interests. 
 
 991. Though the ship is at the place where the risk is to begin, 
 or sails from the port of departure specified in the policy, the 
 policy will not attach if another entirely different voyage is 
 intended.^ 
 
 This may happen by reason of mistake in describing the risk, 
 or the distance and misunderstanding between the assured and 
 his agent for effecting the insurance or having charge of the 
 subject insured. 
 
 992. In case the vessel or other interest insured is at the place 
 " fl^" which the risk under the policy is to begin, but is fitting out 
 or loading for another port of destination than that named in the 
 policy, or in case a vessel insured '-'• from'''' a place saih from such 
 place for another port of destination^ there being no intention to 
 proceed to that named in the policy, where the course of a voyage 
 to the two is the same for some distance, the voyage or risk actually 
 begun is a different one from that insured upon, provided the 
 intention of proceeding on such, other voyage is so manifested 
 
 1 Supra, c. 11, s. 1. Cours de Droit Com. Vol. III. p. 414, 
 
 2 See Sellar v. M'Vicar, 4 Bos. & P. tit. 10, s. 9 ; Emerigon, Vol. II. p. 47, 
 23; supra, No. 920; Boulay Paty, c 13, s. 10.
 
 560 DEVIATION AND CHANGE OF RISK. [CHAP. XII' 
 
 by the assured or his agents, that the underwriters have good 
 means of proving it.^ 
 
 In case of positive orders to take the most northern of two 
 different courses from a certain point, on a voyage from London 
 to Jamaica, for the purpose of landing some stores at Cape 
 Nicola Mole, in St. Domingo, instead of leaving the election to 
 be made by the master at the dividing point, as was usual on 
 that voyage, no notice of such order being given to the under- 
 writers, Lord Kenyon, C J., and Ashhurst, J., and Grose, J., 
 considered the case to be one of concealment. Lawrence, J., 
 considered it to be one of deviation,^ that is, the substitution of 
 another voyage from the branching point, because it did not 
 appear that the master had, in fact, voluntarily taken the north- 
 ern course at the branching point from preference. Mr. Arnould 
 considers this to be a different voyage at the outset.^ But his 
 references do not appear to me to support such a construction.* 
 
 A cargo being insured " from New York to St. Andero," 
 in Spain, the vessel cleared and sailed for Hamburg, and the 
 goods were shipped for that port, which, from the whole evidence, 
 appeared to be her destination. On arriving off Cape Ortegal, 
 on account of the season being unfavorable for proceeding to 
 Hamburg, she was proceeding towards St. Andero to put in there 
 
 1 See Marsden y. Reid, 3 East, 572; certainly should be in respe(;t to the 
 and see Palmer v. Marshall, 8 Bingh. present inquiry. It seems to me to be 
 79; Palmer r. Penning, 9 id. 400, a mei-e intention to deviate until arrival 
 Wooldridge v. Boydell, Dougl. 16. at the Vanching point. So Mr. Justice 
 
 2 Middlewood v. Blakes, 7 Term, 162, Lawrence considered it, for he thought 
 stated more fully supra, No. 582. See that a loss before coming to the branch- 
 also Carter v. Royal Exch. Ass. Co. 2 ing point would have been recoverable. 
 Strange, 1249, and 2 Duer, Mar. Ins. The actual destination was to the ter- 
 491. minus ad quern specified in the policy, 
 
 3 Vol. I. p. 33. and the proposed touching at Cape Ni- 
 
 4 They are Boulay Paty, Cours de cola* Mole was for the incidental purpose 
 Droit Com. tit. 10, s. 9, and Emcrigon, of delivering some stores there, which 
 Vol. II. p. 47,c. 13, s. 10. The instances constituted no considerable part of the 
 given as those of a different voyage cargo. I do not see how the case can 
 are of a different port of destination of be distinguished from any other of an 
 the cargo. Emerigon, in his awards originally intended deviation from the 
 reported by him, put the claims for loss course of the specified voyage, or un- 
 and that for a return of premium as justifiable delay, er other originally in- 
 alternatives to each other, which they tended forfeiture of the policy.
 
 SECT. 11.] THE SUBSTITUTION OF ANOTHER VOYAGE. 561 
 
 and wait for a more favorable time to resume her voyage to 
 Hambm'g, when she was captured. It was held by Lewis, C. J., 
 and Radcliff, J., of the Supreme Court of New York, that the 
 voyage insured had never commenced, and that the premium 
 should be returned.^ 
 
 A different doctrine was intimated in another New York 
 case by Livingston, J., giving the opinion of the court,^ and by 
 Lansing, Chancellor, in the Court of Errors,^ respecting a vessel 
 insured from Barcelona, in Spain, to Baltimore, and a loss at 
 Barcelona, the vessel being alleged to have been destined to 
 Havana. The better doctrine is, however, as above stated. 
 
 So a vessel insured from Akyab to a port of discharge in Great 
 Britain, sailed from Akyab to Queenstown or Falmouth, at cap- 
 tain's option, for orders to discharge at a port in Great Britain 
 or on the continent. On arrival at Falmouth she received orders 
 to go to Antwerp and was lost on the Isle of Wight. The course 
 up to the time of loss was the same as that required to go to the 
 eastern ports of Great Britain. The court held that this was a 
 substitution of a new voyage, and not an intention to deviate. 
 The right of choice was taken from the ship from the beginning, 
 and an obligation to make a different voyage assumed before 
 leaving Akyab. The new voyage was held to commence at 
 Falmouth.'^ 
 
 The fact of a different terminus ad quem of the voyage from 
 that specified in the policy is material in this inquiry: 
 
 As in case of a vessel insured " at and from Maryland to 
 Cadiz," which was fitted out and loaded, and sailed for another 
 port of destination.^ 
 
 A ship being insured " at and from 20th October from any 
 ports in Newfoundland to Falmouth, in England," in continua- 
 tion of a previous policy, had left a port of Newfoundland on the 
 1st, and fished on the Banks until the 7th, and then sailed for 
 England, and was lost. Buffer, Ash hurst, and Grose, Justices, 
 decided that she was not on the voyage insured, on account of 
 
 1 Forbes v. Church, 3 Johns. Cas. ^ Smith v. Steinbach, 2 Caines, Cas. 
 N. Y. 159. N. Y. 158. 
 
 2 Steinbach r. Columbian Ins. Co. 2 ^ Merrill v. Boylston Ins. Co. 3 All. 
 Caines, N. Y. 132, Mass. 247, 
 
 5 Wooldridge v. Boydell, Doug;l. 16.
 
 562 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 not having sailed on the voyage described in the policy from New- 
 foundland to England, but from the former place to the Banks.^ 
 
 The terminus a quo of the risk in this case was the 20th 
 October ; that of the voyage was a port of Newfoundland. Mr. 
 Justice Buller says, that it is not necessary under such a policy 
 that the vessel '' should be in port when it attaches, but she must 
 have sailed on the voyage insured." The case turns upon this 
 last proposition, which is plainly erroneous. What does it import 
 where the vessel has been, or sailed from or to, before the risk 
 attaches ? If she is then within the terms of the policy, that is 
 to say, if she is on the specified voyage, as the vessel in this case 
 confessedly was, the terms of the description are satisfied. Her 
 being early or late in respect of the season, may render such a 
 description an implied misrepresentation, if her being so is 
 material ; but as Mr. Justice Buller himself implicitly says, in 
 his words just quoted, that is of no importance in identifying 
 the voyage. 
 
 Accordingly, a direct contrary decision has been made in 
 Massachusetts.^ 
 
 Courts have made the termini the criterion of identity and 
 diversity in respect of wages. These are important characteris- 
 tics in insurance between local termini, but not applicable to 
 time policies, and in voyage policies there may be different de- 
 scriptions of voyages between the same termini, by reason of the 
 employment of the vessel or objects of the voyage being different.^ 
 The question of identity in respect to voyages will sometimes be 
 difficult to jurisconsults, as it is to casuists and metaphysicians in 
 other cases; but where the rights and interests of persons are 
 concerned, the propriety of cutting the knot by some inflexible 
 arbitrary rule is very questionable, though it may alleviate juridical 
 labor and responsibility. Though the local termini are important 
 
 1 Way r. Modigliani, 2 Term, 30. Manly v. United INIar. & Fire Ins. Co. 
 This decision is put by Mr. Justice 9 Mass. 8.5, supra, No. 928 ; and Kent 
 Buller upon the authority of Wool- r. Manufacturers' Ins. Co. 18 Pick. Mass. 
 dridge v. Boydell, but in that case the 19 ; supra, No. 928. 
 
 vessel did not sail for the port of desti- 3 See remark of Thompson, J , giv- 
 
 nation to which she was insured. ing the opinion of the court, Marine 
 
 2 Martin v. Fishing Co. 20 Pick. Ins. Co. v. Tucker, 3 Cranch, 357. 
 Mass. 389; supra, No. 928. See also
 
 SECT. III.] CHANGE OP THE RISK IN PORT. 563 
 
 characteristics in deciding on the identity or diversity of the voy- 
 age insured and that actually undertaken, I cannot think that 
 there is good ground for the doctrine that this is an indispensable 
 criterion. 
 
 993. Sailing' on the track to thempecified port of destination ivith 
 an intention conditionaUy to proceed to that or another port, at 
 some certain stage of the voyage, according to the intelligence 
 then received, is an inception of the voyage insured} 
 
 994. The clearing for a port different from that to vjhich the 
 ship is insured, and for which it actually sails, does not make the 
 voyage another than that insured? 
 
 995. If the ship is not at, or does not proceed from, the place 
 at or from which it is insured, ivithin a reasonable time, though 
 it may be there or sail thence subsequently, the actual risk or 
 voyage will be another than the one agreed for by the policy .^ 
 
 A ship being insured, February, 1824, from " Batavia and Sin- 
 capore, to her port of discharge in Europe," had sailed from 
 London, September, 1823, and owing to unnecessary delay did 
 not arrive at Sincapore until March, 1825. It was held by Tin- 
 dal, C. J., and his associates of the English Common Pleas, 
 that the policy did not attach.* 
 
 SECTION III. CHANGE OF THE RISK IN PORT. TIME AND MAN- 
 NER OF LOADING AND LANDING CARGO. 
 
 996. A change of the risks insured against, whereby the under- 
 writers will be discharged from subsequent liability, may be made 
 at the port of departure or oihex place where the risk begins, after 
 it has begun, no less than at subsequent stages.^ 
 
 A ship insured "during one month's remaining in Portsmouth 
 harbor, securely moored," was removed twice, which was ob- 
 
 1 Heselton v. Allnutt, 1 Maule & S. 3 Courtnay v. Mississippi Fire & Mar. 
 46. Ins. Co. 2 La. 233 ; supra, No. 923. 
 
 2 Henkle v. Royal E.xch. Ass. Co. 1 4 Mount v. Larkins, 8 Binnrh. 108. 
 Ves. Ch. 317; Barnewall u. Church, 1 ^ Taylor v. Lowell, 3 Mass. 331; 
 Caines, N. Y. 217; Talcot v. Marine Merchants' Ins. Co. v. Clapp, 11 Pick. 
 Tns. Co. 2 Johns. N. Y. 130 ; Planche v. Mass. 56. 
 
 Fletcher, Doug. 238.
 
 564 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 jected to as changing the risk; but Lord Ellenborough said, 
 " The terms of the policy warranted a removal within the har- 
 bor." 1 
 
 997. The mere specification of the voyage includes the usual 
 place and mode of putting on board and landing the cargo : 
 
 As taking a part of it inside, and the remainder outside, of a 
 bar at Oporto : ^ 
 
 Taking goods on board in boats :^ 
 
 Discharging hides in lighters at New York:* 
 
 Discharging goods into a store-ship at Gibraltar, being an in- 
 termediate port, instead of landing them.^ 
 
 998. Goods being insured until landed, any unusual and unrea- 
 sonable delay in landing them has the effect of a deviation.^ 
 
 It is usual, in some trading voyages, to keep goods on board 
 until they are sold, and in fishing voyages to keep the outward 
 cargo on board for consumption ; "' and the goods are accordingly 
 protected by the policy while kept on board in port in conformity 
 to such usage, or to the necessities or convenience of the voy- 
 age. 
 
 999. Where the vessel is in port for repairs or orders, or any 
 other purpose than trading, or landing or taking in cargo, it is 
 not a change of the risk whereby the insurers are discharged, to 
 trade or land or take on board goods, if no delay or enhancement 
 of the risk is occasioned thereby.^ 
 
 1 V. Westmore, 6 Esp. 109. 8 Paine v. Cohimbian Ins. Co. 2 
 
 See also Bell v. Western Fire & Mar. Johns. N. Y. 264 ; Raine v. Bell, 9 
 Ins. Co. 5 Rob. La. 423. East, 195; Delaney v. Stoddart, 1 Term, 
 
 2 Kingston v. Knibbs, 1 Campb. 22; Gilbert v. Redshaw, Marshall, Ins. 
 508, n. 208; Kingston v. Girard, 4 Dall. 274; 
 
 3 Coggeshall v. American Ins. Co. 3 Kane v. Columbian Ins. Co. 2 Johns. 
 Wend. N. Y. 283 ; supra, No. 940. N. Y. 264; Cormack v. Gladstone, 11 
 
 4 Wadsworth v. Pacific Ins. Co. 4 East, 347; Laroche v. Oswin, 12 East, 
 Wend. N. Y. 33. See also Coggeshall 131 ; Hughes v. Union Ins. Co. 3 Wheat. 
 17. American Ins. Co. 3 Wend. N. Y. 159. A different doctrine has been 
 283. stated in a few instances, per Lord Ken- 
 
 5 Tierney v, Etherington, stated by von, Stitt v. Wardell, Park, Ins. 438; 
 Lord Mansfield, 1 Burr. 348. 2 Esp. 610; which Sir James Mansfield 
 
 6 Parkinson v. Collier, Park, Ins. 470. said was a sudden answer by Lord Ken- 
 See Dougl. 510. yon to a sudden question, 1 Taunt. 456 ; 
 
 7 Noble V. Kenoway, Dougl. 492; and Lord Ellenborough ruled against 
 Vallance v. Dewar, 1 Campb. 503; taking in cargo, though without delay, 
 Ougier v. Jennings, id. 505. and when the vessel had leave to dis-
 
 SECT. IV.] VARYING FROM THE USUAL COURSE. 565 
 
 The adopting of a mode of repairing recently come into fre- 
 quent use, and not a mere first experiment, is not a change of 
 the risk in port equivalent to a deviation : 
 
 As hauling up a vessel on a marine railway, early after that 
 mode of repairing was introduced, and when it had become fre- 
 quent.^ 
 
 SECTION IV. VARYING UNNECESSARILY FROM THE USUAL COURSE. 
 
 1000. Unnecessarily or ivithout sufficient reason going- off the 
 usual course of the voyage^ if there be such, or, othenvise, what 
 the viaster deems the most direct or expeditious, safe, and conven- 
 ient course, is a deviation : 
 
 As on a passage from Dartmouth to Liverpool, putting into 
 Loo, which vessels on that passage usually pass without putting 
 in :2 
 
 Or into Dover on a voyage from Dunkirk to Leghorn : ^ 
 
 Or going outside of Long Island in a voyage from New 
 York to Norwich, instead of waiting until the usual track through 
 the Sound should be open, the same having been obstructed by 
 ice at the time, unless justified by usage.* But if this were 
 considered to be an extraordinary emergency, and the going out- 
 side on that course were taken in good faith as the best way of 
 prosecuting the voyage, it would be justified, and not a deviation. 
 
 In river navigation the vessel is not confined to the most fre- 
 quented route.^ 
 
 Under a policy on a vessel from a " port " in North America 
 to Liverpool, it was held to be a deviation, after loading partly 
 at Cockagne, in New Brunswick, to take the remainder of the 
 cargo at Bouctouche, seven miles distant and farther from Liver- 
 pool, the custom-house of each port being subject to that of St. 
 John's.^ 
 
 charge, SherlfFr, Potts, 5 Esp. 96. But 2 Fox v. Black, Park, Ins. 488. 
 these cases have been overruled by 3 Townson v. Guyon, Park, Ins. 438. 
 Raine v. Bell, supra, as expressly stated •* Crosby v. Fitch, 12 Conn. 410. 
 by Lord Ellenborough, in Laroche v. 5 Fireman's Ins. Co. v. Powell, 13 B. 
 
 Oswin, 12 East, 131. Monr. Ky. 311. 
 
 1 Ellery v. New England Mar. Ins. 6 Brown v. Tayleur, 4 Ad. & E. 241 ; 
 
 Co. 8 Pick. Mass. 14, 5 Nev. & M. 472. 
 
 VOL. 1. 48
 
 56Q DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 It is not a deviation to go off the course from necessity, for the 
 purpose of the voyage and the safety of the lives and property 
 on board, as will subsequently more fully appear.^ 
 
 By whatever stipulation or necessity a departure from the 
 usual track to touch at any place is justified, the master must 
 follow the usual, or most direct, convenient, and safe course from 
 such place towards the ulterior destination.^ 
 
 SECTION V. INTENTION TO DEVIATE. 
 
 1001. An intention to deviate froyn a voyage or risk once begun, 
 has no effect until something- is voluntarily done in pursuance of 
 such intention whereby the risk is actually changed.^ 
 
 In other words, if the intention is to change the whole voyage 
 or risk, it is another voyage ; if only a part of it subsequent to 
 its commencement, this is an intention to deviate. The distinc- 
 tion is, as we shall see, not free from subtilty and difficulty, and 
 at the same time it is important, since, whatever doctrine or con- 
 struction is adopted, it must involve the alternative of a claim 
 for a loss or a return of the premium ; and the rule must operate 
 consistently in the different cases of the fortunate and unfortu- 
 nate result of the voyage, so far as loss by the perils insured 
 against is concerned. 
 
 So long as the intention in doing acts in preparation for a voy- 
 age, or prosecuting it, is mixed with an intention of beginning it 
 and subsequent deviation, the risk will commence and run.* 
 
 That a mere intention to deviate is not of itself a deviation 
 has always been the received and undisputed doctrine, and is 
 nothing more than the assertion of a principle that is common to 
 this and other branches of jurisprudence : ^ 
 
 1 Campbell v. Williamson, 2 Bay, So. 14; MTee v. South Carolina Ins. Co. 2 
 C. 237; and see infra, s. 7, 8, 9, 10, M'Cord, So. C. 503; Thompson r, Bar- 
 II. ker, 1 Root, Conn. 64; 1 Arnould, Mar. 
 
 2 Clark V. United Mar. & Fire Ins. Ins. 345; Winter r. Delaware, &o. Ins. 
 Co. 7 Mass. 365 ; Guibert i?. Eeadshaw, Co. 30 Penn. St. 334. 
 
 Park, Ins. 454 ; Neilson c. Columbian 4 Hoselton v. Allnutt, 1 Maule & S. 
 
 Ins. Co. 3 Caines, N. Y. 108; 1 Johns. 46. 
 
 N. Y. 301 ; Lavabre v. Walter, and 5 Hogg v. Horner, Park, Ins. 444 ; 
 
 same Plff. v. Wilson, Dougl. 271. Bain v. Kippen, Millar, Ins. 445 ; Bynk. 
 
 3 Hare v, Travis, 7 Barnew. & C. Quaes. Jur. Priv. 1. 4, c. 3.
 
 SECT. V.J INTENTION TO DEVIATE. 567 
 
 As in case of an intention to deliver some salt at Falmouth, 
 taken to be delivered there, on a voyage from Carolina to Lis- 
 bon, and thence to Bristol, and capture on the common course to 
 both Bristol and Falmouth : ^ 
 
 And that of insurance " from Honduras to London," where 
 the master took goods to be delivered at Amsterdam, and loss 
 before turning off: ^ 
 
 And that of instructions and an intention to touch at Cork on 
 a voyage from Grenada to Liverpool, and loss before turning 
 off: 3 
 
 And that of an intention, on a voyage from Heligoland to 
 Memel, to go off the course to Gottenburg for advice whether to 
 proceed to Memel or Anhalt, and while on the common course 
 to both Memel and Gottenburg, being driven by a gale under the 
 batteries of Shegan and captured : * 
 
 And that of an intention, on a voyage " at and from Newry, 
 in Ireland, to New York," to land passengers at Halifax, in Nova 
 Scotia, taken on board to be there landed, and loss by striking on 
 a rock in proceeding down the Irish Channel on the common 
 course to Halifax and New York : ^ ' 
 
 And that of taking goods to be delivered at Baltimore, intend- 
 ing to touch there to deliver them on a voyage " at and from 
 Kingston, in Jamaica, to Alexandria, in Virginia," and capture 
 on the common route to the two places : ^ 
 
 So being driven by necessity into Weymouth, where the 
 master had intended to have touched independently of any such 
 necessity, on a voyage from Cork to London, was held not to 
 be a deviation, because nothing had been voluntarily done in 
 pursuance of such intention.^ 
 
 A parallel case was similarly decided in Massachusetts-, where 
 the master was compelled by stress of weather to put into Mar- 
 tha's Vineyard, where he intended to stop to deliver goods taken 
 
 1 Per Lee, C. J., and his associates, ^ Heselton v. Allnutt, 1 Maule & S 
 Fostei' V. Wilmer, 2 Strange, 1249 ; and 46. 
 
 see Thellusson V. Fergusson, Dougl. 346, 5 Henshaw v. Marine Ins. Co. 2 
 
 per Lord Mansfield. Caines, N. Y. 274. 
 
 2 Carter v. Royal Excb. Ass. Co. 2 6 Marine Ins. Co. v. Tucker, 3 
 Strange, 1249. Cranch, 357. 
 
 3 Kewley v. Ryan, 2 H. Blackst. 343. 7 Kingston c. Phelps, Peake, 227.
 
 668 DEVIATION AND CHANGE OP RISK. [CHAP. XII. 
 
 to be delivered there, under a policy " from Boston to Charles- 
 ton." 1 
 
 The doctrine conclusively established in the cases above re- 
 ferred to has been departed from in a few instances.^ 
 
 In case of insurance from North Carolina to Falmouth, in 
 England, the master shipped part of his crew and cleared for 
 New York, intending there to ship other seamen and proceed 
 thence to Falmouth ; and a loss occurred before turning off from 
 the course to Falmouth, it was held in New York, by Lansing, 
 C. J., and Kent and Lewis, Justices, to be a different voyage 
 from the one insured.^ I cannot, however, but think, that, on the 
 authority of the cases above referred to, this was, at the time of 
 the loss, a mere unexecuted intention to deviate. 
 
 SECTION VI. DELAY AFTER THE RISK HAS BEGUN, EITHER IN 
 PORT OR ON A PASSAGE. 
 
 1002. Unusual and extraordinary delay in the pi'osecution of a 
 voyage, and prolongation of its period, without necessity or just 
 cause, after the risk has begun, is a deviation.^ 
 
 The mere length of time is not the criterion. The necessity, 
 and motives, and all the circumstances, are to be considered. 
 Lord Ellenborough says, if the voyage is given up for any length 
 of time, it will be a deviation, but there must, to have this effect, 
 be a clear waste of time.^ And Lord Kenyon says, " if there is 
 any voluntary delay," the insurers are discharged.^ " That delay," 
 says Mr. Justice Story, " which is necessary to accomplish the 
 
 1 Hob^rtv. Norton, 8 Pick. Mass. 159. Stitt v. Wardell, per Lord Kenyon, 2 
 See also, in confirmation of the same Esp. 610; Winthrop v. Union Ins. Co. 
 doctrine as to intention to deviate, 1 2 Wash. C. C. 7. 
 
 Johns, Cas. N. Y. 184; 2 Caines, Cas. 3 Silva v. Low, 1 Johns. Cas. N. Y. 
 
 N. Y. 172; 2 Caines, N. Y. 274; 11 184. 
 
 Johns. N. Y. 261; 7 Mass. 349; 3 4 Syers r. Bridge, Dougl. 529. 
 
 Cranch, 384. See also opinion of Law- ^ Grant v. King, 4 Esp. 175. 
 
 rence, J., in Middlewood v. Blakes, 7 <5 Smith i\ Surridge, 4 Esp. 2-3 ; see 
 
 Term, 162, cited supra, c. 7, s. 6, No. same doctrine, per Kent, J., in Suydam 
 
 582. V. Marine Ins. Co. 2 Johns. N. Y. 138, 
 
 2 Kewley v. Ryan, 2 H. Blackst. 343 ; at p. 143.
 
 SECT. VI.] DELAY AFTER THE RISK HAS BEGUN. 569 
 
 objects of the voyage according to the course of the trade, if 
 bona fide, cannot be admitted to avoid the insurance." ^ 
 
 In all cases the departure from the usual course, or delay, must 
 be limited to the purpose whereby it is justified.^ 
 
 The delay is one of the elements of the deviation in going off 
 the track of the voyage. Where the risk commences " at" the 
 port of departure, an inexcusable delay to proceed after the risk 
 has commenced,^ instead of being a substitution of another entire 
 risk, as above,^ will be a deviation. 
 
 In case of a policy "at and from" Bristol to London, made 
 January 28th, on a vessel which was then in complete prepara- 
 tion for the passage, but did not sail until May 17th, it was held 
 to be a deviation.^ 
 
 Converting the vessel into a " factory ship " or floating ware- 
 house for receiving slaves on the coast of Africa, to be forwarded 
 by other vessels, was held to be a deviation.^ 
 
 So where a ship, insured in the African oil trade, with liberty 
 to act as a tender, was detained as such in Benin River thirteen 
 months, it was held to be a deviation." 
 
 So it is a deviation, under a policy on a trip on a steamboat, 
 in river navigation, to delay for the purpose of towing other ves- 
 sels, unless this is authorized by usage or express liberty.^ 
 
 A particular period beiug expressly allowed for delay at a place, 
 limits the right of voluntary delay to that period ; and where the 
 policy allowed of a delay of two months at Monte Video, wait- 
 ing there a longer time, for the blockade of Buenos Ayres to be 
 raised, was held to be a deviation.^ 
 
 A ship insured to a " port of discharge," in an extensive dis- 
 trict or country, may delay a reasonable time on her arriving in 
 
 1 Columbian Ins. Co. v. Catlett, 12 Tennant v. Henderson, 1 Dow, Pari. 
 Wheat. 283. Cas. 324. 
 
 2 Oliver v. Maryland Ins. Co. 7 7 Hamilton v. Shedden, 3 Mees. & 
 Cranch, 487. W. Excli. 49 ; 1 Arnould, Ins. 389. 
 
 3 See c. II, s. 1, as to the commence- 8 Hermann v. Western Fire & Mar. 
 ment of the risk. Ins. Co. 15 La. 517; Natchez Ins. Co. 
 
 4 No. 991. V. Stanton, 10 Miss. 340. 
 
 5 Palmer v. Marshall, 8 Bingh. 79. 9 Doyle v. Powell, 4 Barnew. & Ad. 
 See also Palmer v. Penning, 9 id. 460 ; 267 ; and see Marden v. South Carolina 
 Earl V. Shaw, I Johns. Cas. N. Y. 313. Ins. Co. I Const. So. C. 200; supra, No. 
 
 6 Hartley v. Buggin, 3 Dougl. 39; 862. 
 
 48*
 
 570 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 the country, for instructions to what port of discharge to pro- 
 ceed ; as in case of insurance to a port of discharge in the United 
 States.^ 
 
 A ship insured at and from Pillau to London was delayed for 
 the purpose of making repairs. After being ready for sea, she 
 was prevented from proceeding, for some time, by the lowness of 
 water on the bar. Lord Kenyon instructed the jury, that it was 
 " not necessary that the vessel should be seaworthy at the time " 
 when the risk commenced, from which he inferred that a suffi- 
 cient time might be taken for making repairs.'^ 
 
 A vessel insured in England, in August, having been pur- 
 chased just before, then lying at Brest, in France," at "and from 
 that place to London, did not sail until the following March, the 
 time being consumed in procuring an American crew in Eng- 
 land, and other preparations for the voyage. Lord Ellenborough 
 ruled, that, if the voyage had been given up for any length of 
 time, the insurance would be defeated. Evidence being given 
 that the voyage had not been given up, and that the delay had 
 been occasioned by the difficulty in making the preparations, the 
 jury found for the assured in a suit for a loss,^ and this seems to 
 have been the final disposition of the case. 
 
 A vessel insured from London to Virginia and back, was, on 
 arriving in Virginia with a cargo of salt, in January, 1808, pre- 
 vented by an embargo from loading with lumber to return until 
 March, 1809, when the embargo was raised, though she might 
 have returned with a cargo of salt in the mean time. The delay 
 being for the purpose of prosecuting the voyage, and not as giv- 
 ing it up, it was held by Gibbs, C. J., and his associates, not to 
 discharge the underwriters.* 
 
 A cargo of flour being insured " to St. Thomas and two other 
 West India ports," it was held by the Supreme Court of the 
 United States that a delay of twenty -two days at that port for 
 the purpose of disposing of the cargo was not a deviation.^ 
 
 1 Kinnj V. Middletown Ins. Co. 1 ** Schroder v. Thompson, 7 Taunt. 
 Conn. 184. 462; 1 J. B. Moore, 163. 
 
 2 Smith V. Surridge, 4 Esp. 25. 5 Columbian Ins. Co. v. Catlett, 12 
 
 3 Grant v. King, 4 Esp. 175. The Wheat. 383. 
 case of Cliitty v. Selwyn, 2 Atk. Ch. 
 
 359, was cited for the defendants.
 
 SECT. VI.] DELAY AFTER THE RISK HAS BEGUN. 571 
 
 Delay for turn for admission into the Deptford Docks was held 
 not to be a deviation, under a policy " to London " : ^ 
 
 So also of delay, as customary, at an out-port until the sale of 
 the cargo? 
 
 The master's staying and detaining his vessel five months at 
 Vera Cruz to claim his cargo, which had been seized by the gov- 
 ernment on being landed, was held not to be a deviation.'' 
 
 In a case of insurance to the port of St. Jago, in Cuba, the 
 vessel on arriving there was not admitted to entry, though not 
 refused absolutely, and the master, for the purpose of obtaining 
 permission to enter, delayed there twenty-three days. Mr. Justice 
 Kent, in giving the opinion of the court, said, " The delay cannot 
 be considered as amounting to a deviation, because it does not 
 appear to be unreasonable or wilful," but resulted from a proba- 
 ble expectation of permission to enter.* 
 
 If the vessel enters a port to dispose of the cargo, the master 
 may stay there a reasonable time for this purpose, although he 
 meets with no success. A vessel put into Barracoa for this pur- 
 pose, and remained there more than four months, during which 
 time the supercargo made unsuccessful endeavors to effect a sale 
 of the cargo. Yet the court said, " They could not intend any 
 unreasonable delay or negligence on the part of the assured ; " 
 and held it not to be a deviation.^ 
 
 Where a vessel under convoy touched at Madeira with the 
 convoy, and delayed in discharging cargo there so long as to be 
 separated from convoy for the rest of the voyage, it was ruled by 
 Lord Eilenborough to be a deviation.^ 
 
 1 Samuel v. Koyal Exch. Ass. Co. 8 3 Stocker v. Harris, 3 Mass. 409. 
 
 Barnew. & C. 119; and see Lapbam v. 4 Suydam i;. Marine Ins. Co. 2 Johns. 
 
 Atlas Jus. Co. 24 Pick. Mass. 1 ; supra, N. Y. 138. 
 
 No. 963 ; and Ellery v. New England 5 Gilfert v. Ilallet, 2 Johns. Cas. N. 
 
 Us. Co. 8 id. 14 ; supra. No. 9G4. Y. 296. 
 
 '•^ Grant v. Lexington Ins. Co. 5 Ind. 6 Williams v. Shee, 3 Campb. 469. 
 23.
 
 572 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 SECTION VII. USAGE WILL JUSTIFY DEFLECTIONS AND DELAY OF 
 
 THE VOYAGE. 
 
 1003. Usage, as we have seen, is the test of what belongs to 
 the voyage, and the proper course in prosecuting it.^ 
 
 To constitute a usage, so as to justify touching on the mere 
 force of the xx^^ge, the practice must have been sufficiently frequent 
 to authorize a presumption of jiotice of it.^ 
 
 Two instances, though not in a very much frequented trade, 
 are not enough.-^ This is supposing the exigencies of the voyage 
 not to require that the vessel should touch. 
 
 It is not a deviation to stop at places where it is the usage to 
 stop on the same voyage, passage, or trip, for the purpose of 
 landing or taking in passengers or goods, or gaining intelligence, 
 or procuring provisions and supplies, or for any other purpose to 
 which the usage extends. This doctrine is particularly applicable 
 to river and coasting passages, long foreign voyages, and those 
 for trading or fishing, whether the contract referred to is a policy 
 of insurance,* or a bill of lading.^ 
 
 Under the general description of an East India voyage, inter- 
 mediate voyages were, formerly at least, included, in pursuance 
 of the practice of the East India Company to employ vessels in 
 their service upon such voyages. 
 
 Under a policy upon goods until they should be discharged on 
 the coast of Labrador, Lord Mansfield and his associates held, 
 that delay for two months in fishing, before discharging the 
 goods, was justified by usage.^ 
 
 In a case before Lord Eldon, on a vessel insured from New- 
 foundland to Portugal, where the vessel Avent to Sidney in Nova 
 Scotia, for a cargo of coals, he ruled that such subordinate voy- 
 age, being in conformity to usage, was not a deviation.' 
 
 1 Supra, s. 1. See also supra, c. 1, ^ Lowry v. Russell, 8 Pick. Mass. 
 s. 13. 360. 
 
 2 Bentaloe v. Pratt, Wall. C. C. 64. 6 Noble v. Kenoway, Dougl. 492. 
 
 3 Martin v. Delaware Ins. Co. 2 " Ougier v. Jennings, I Campb. 505, 
 Wash. C. C. 254. n. But see Seccomb v. Provincial Ins. 
 
 4 Child r. Sun Mutual Ins. Co. 3 Co. 10 All. Mass. 305. 
 Sandf. N. Y. 26 ; Lockett v. Mer- 
 chants' In.^. Co. 10 Rob. La. o3d.
 
 SECT. VIII.] LIBERTY TO TURN FROM THE DIRECT COURSE. 573 
 
 So delay for the purpose of fishing, under a policy at and from 
 Newfoundland, was ruled by Lord Ellenborough to be justified 
 on the ground of usage.^ 
 
 SECTION VIII. LIBERTY TO TURN FROM THE DIRECT OR USUAL 
 COURSE, OR TO DELAY, OR TO VARY FROM THE USUAL RISKS. 
 
 1004. It is a deviation to touch at a port^ thovgh it is near the 
 course of the vop a g-e, unless so doing- is Justified by usage, or neces- 
 sity, or express liberty : 
 
 As touching at the island of Mauritius in a voyage from 
 India.2 
 
 It is a deviation to go off the course of the voyage for papers, 
 though leave is given in the policy to take any kind of papers.^ 
 
 It is not a deviation to leave the course for the necessary pur- 
 poses of the voyage, such as obtaining a pilot.* 
 
 The master is justified in departing from the usual course, not 
 only for the purposes of the most speedy and advantageous 
 prosecution of the voyage, but also for safety of life and prop- 
 erty.^ 
 
 Insurance for six months " between New Orleans and any port 
 in the United States or Gulf of Mexico,'' was held in Louisiana 
 not to cover a passage between the West Indies and another 
 port in the United States than New Orleans.^ 
 
 Goods were insured "from St. Martha on the Main to New 
 York," and privilege given to " use three additional ports on the 
 voyage from the Spanish Main to New York.'' It was held no 
 deviation to visit three other ports on the Main besides St. 
 Martha.' 
 
 1005. The construction of a mere liberty to touch must be gov- 
 erned by the character of the voyage and the other provisions of 
 the policy or the representations of the purpose by the assured, and 
 
 1 Vallance v. Dewar, 1 Campb. 503. ^ Turner v. Protection Ins. Co. 25 
 
 2 Winthrop v. Union Ins. Co. 2 IMe. 515. 
 
 Wash. C. C. 7. 6 Lippincourt v. Louisiana Ins. Co. 
 
 3 Stotker V. Harris, 3 Mass. 400. 2 La. 39D. 
 
 * Puverin v. La. Slate Fire & Mar. ' De Peyster v. Sun Ins. Co. 19 N. 
 Ins. Co. 4 Rob. La. 234. Y. 272.
 
 574 DEVIATION AND CHANCxE OP RISK. [CHAP. XII. 
 
 if the purpose is expressed, the construction is to be liberal in 
 reference to such purpose. 
 
 Sir J. Mansfield says, " It is doubtful, nor can he find it any- 
 where defined, what is the precise meaning of liberty to touch, as 
 contradistinguished from liberty to touch and stay. The time of 
 staying in both instances is perfectly undefined; and no case 
 decides how long, or for what purposes, a ship may stay under 
 these clauses." 1 The case before him was that of a policy on a 
 voyage from Madeira to Santos, with " liberty to touch at the 
 Cape de Verde Islands," and the additional " liberty to touch 
 and stay at any ports or places whatsoever." The ship touched 
 at Bonavista. 
 
 Leave, in a voyage from Antigua to England, to touch at all 
 or any of the West India Islands, " including Jamaica," allows 
 of going out of the course of that voyage to St. Kitts, as Jamaica, 
 to which the liberty expressly extended, is far out of that course.^ 
 
 Leave to stop at Matanzas, to inquire if there were any men 
 of war off" Havana, was construed by the Supreme Court of the 
 United States to permit remaining there " so long as the danger 
 continued." ^ 
 
 Under a policy on goods with a conditional liberty " to enter 
 a Dutch port, when informed on arriving, &c., that it might be 
 done with safety," the captain, being informed that he might 
 proceed to Amsterdam " without molestation from the British," 
 attempted to put in there, and was captured by the French. This 
 attempt was held in Pennsylvania to be a deviation, because the 
 captain did not bring himself within the condition.* 
 
 Under liberty to join convoy, the vessel may, if necessary, go 
 out of the usual course to join it ; but the leave in this form being 
 
 1 Urquhart v. Barnard, 1 Taunt, obliges them." It would recpire a very 
 450. strong authority for imputing such a 
 
 2 Metcalfe v. Parry, 4 Campb. 123, proposition to Lord Mansfield, and a 
 per Gibbs, C. J. ; Urquhart v, Bai-nard, still greater than his own to give it any 
 1 Taunt. 450. In this case Sir J. Mans- weight, since it' would, as Sir J. Mans- 
 field refers to an obiter remark, erro- field remarks, annul the clause, as neces- 
 neously, as he intimates, attributed to sity of itself authorizes touching. 
 Lord Mansfield, in Gregory v. Christie, 3 Hughes v. Union Ins. Co. 3 Wheat. 
 Park, Ins. 84, 3 Dougl. 419, that " lib- 159. 
 
 erty to touch and stay, can only be in- 4 Duerhagan v. United States Ins. 
 tended to give permission if necessity Co. 2 Serg. & R. Penn. 309.
 
 SECT. VIII.] LIBERTY TO TUEN FROM THE DIRECT COURSE. 575 
 
 given for his benefit, he may, if there is no law to the contrary, 
 proceed without convoy.^ 
 
 1006. Leave to touch at a port named does not authorize the 
 substitution of another, though not more out of the course? 
 
 1007. A general libei'ty to touch at a port or at ports, without 
 specifying them, luill justify touching only for the purposes of the 
 voyage? 
 
 Abbott, C. J., and his associates of the King's Bench in Eng- 
 land, decided that, under leave to call, in a policy upon the ship, 
 the calling to learn the state of the markets, in reference to an- 
 other voyage, was a deviation.^ 
 
 A vessel insured from Hull to her port or ports of lading in the 
 Baltic, " with liberty in said voyage to proceed and sail to, and 
 touch and stay at, any ports whatsoever and wheresoever, for all 
 purposes, particularly at Elsinore," took goods to be delivered at 
 Elsinore, Dantzic, and Pillau ; the last being the intended port 
 of lading. She was lost in sight of Pillau, after having delivered 
 goods at Elsinore and Dantzic. Abbott, C. J. : " The liberty to 
 touch at any ports for all purposes, must mean for purposes con- 
 nected with the voyage. If the ship had gone to Elsinore or 
 Dantzic, to see if she could get a cargo, that would have been 
 connected with the voyage ; but she went for the purpose of de- 
 livering goods, which was wholly unconnected with the object 
 of the voyage insured.'' ^ 
 
 The doctrine of this case is no doubt correct, but its applica- 
 tion is questionable. It is not said that the ship was to go out 
 empty, and that the homeward freight was the sole object. The 
 broad leave to touch implies the contrary; and, as the under- 
 writers were bound to take notice of some purpose for touching, 
 
 1 Hoselton v. Allnut, 1 Maule & S. sliould, if there is any question, accord- 
 4fi. inji to the general doctrine in such case, 
 
 2 Elliot V. Wilson, 4 Brown, Pari, be construed liberally in faAor of the 
 Cas. 470. assured. 
 
 3 3 Kent, Comm., 3(1 ed. 31.5; and 4 Hammond v. Reid, 4 Barncw. & 
 see cases passim. Chancellor Kent re- Aid. 72; and see Langhorn r. Allnntt, 
 marks, that liberty to go out of the 4 Taunt. 511; Rucker v. Allnutt. 15 
 course is construed strictly; but lam East, 278 ; and cases generally. 
 
 not aware of the practical application 5 Solly v. Whitmore, 5 Barnew. & 
 of such a rule in jurisprudence. The Aid. 45. 
 words, being those of the underwriter,
 
 576 ^DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 there is apparently no reason for excluding the delivery of goods 
 from being one. It was apparently the most probable one on 
 such a voyage. 1 
 
 Goods were insured from London to a port of discharge in the 
 Straits as high as Messina, with power, in the voyage, to stop or 
 stay at any ports or places whatsoever. The vessel sailed from 
 London with lead from Marseilles, and put into Falmouth, and 
 staid there three weeks, taking in tin for the same port of desti- 
 nation. The putting into Falmouth was held to be a devia- 
 tion.'^ 
 
 1008. Liberty to touch at ports^ without specifying them, will 
 justify going' off the direct or usual course^ to the right or left, but 
 not going far from the course, or in an opposite direction, espe- 
 cially not to a place more distant than the specified port of de- 
 parture is from the specified port of destination : 
 
 As going southward to Faro for cargo, under a policy on a 
 ship from Lisbon to England.'^ 
 
 Insurance being " from L'Orient to Pondicherry, Madras, and 
 China, and back to the ship's port of discharge in France, with 
 liberty to touch at I. and B., and all and any other places what 
 and wheresoever, and in the outward and homeward bound 
 voyage to proceed and to touch and stay at any port and places 
 whatsoever," Lord Mansfield, with his associates, Willes, Ash- 
 hurst, and Buller, were of opinion that the liberty was limited, 
 by the words " in the outward and homeward voyage," to places 
 lying in the usual course of the voyage, between the specified 
 termini.* 
 
 The broadest liberty, including that of sailing " forwards and 
 backwards, and backwards and forwards, in a voyage " to New 
 South Wales, and thence " to all ports and places in the East 
 Indies and South America," does not cover an independent voy- 
 age from New South Wales to New Zealand, not justified by 
 usage, and wholly unconnected with one to any of the specified 
 ports of destination.^ 
 
 1 See JNletcalfe u. Parry, 4 Campb. 4 Lavabre v. Wilson, and the Same 
 123. V. Walter, Dougl. 271. 
 
 2 Clason I'. Siuimonds, 6 Term, 533, n. 5 Bottomly v. Bovill, 5 Barnew. & C. 
 
 3 Hogg V. Horner, Park, Ins. 444; 210; Dowl. & K. 702. 
 and see Rankin v. Reave, 2 Park, Ins. 
 
 7tb ed. 41,').
 
 SECT. VIII.] LIBERTY TO TURN FROM THE DIRECT COURSE. 577 
 
 1009. Leave to sail " backwards and forwards" or to touch 
 " one or more times," authorizes intermediate passages^ this being 
 the obvious construction. 
 
 The insurance being " from L' Orient to the Isles of France 
 and Bourbon, and to all ports and places in the East Indies, 
 China, Persia, or elsewhere during the ship's stay, and trade 
 backwards and forwards, until her safe arrival back to her port of 
 discharge in France," the assured represented that the voyage 
 was intended to be to the Isle of France, Pondicherry, and 
 China, Lord Mansfield instructed the jury that, under this de- 
 scription, the representation did not preclude "^he assured from 
 changing his mind and going from Pondicherry to Bengal, and 
 that the representation was controlled by the description in the 
 policy. He said the representation would have no effect, except- 
 ing upon the ground of fraud. That is, if it was made for the 
 purpose of deceiving the underwriters, the assured having no 
 intention to take the course represented, it would defeat the 
 policy.^ 
 
 A ship and cargo were insured "from Boston to any port or 
 ports beyond the Cape of Good Hope, one or more times to the 
 same port, for the purpose of selling the outward and procuring 
 a return cargo, and at and from thence to port of final discharge 
 in the United States." The ship proceeded to Cochin China; 
 and the master, finding that he could not purchase a cargo with 
 the gold he had taken thither for the purpose, made a voyage to 
 Manilla to exchange it for silver, and returned to Cochin China 
 and bought about one eighth of a cargo of sugar, and then pro- 
 ceeded to Batavia, but, not being able to complete his cargo of 
 sugar there on satisfactory terms, sold what he had brought 
 thither, in order to go to Samarang to procure a cargo, not being 
 permitted to take any cargo thither from Batavia. The vessel 
 was loaded at Samarang, and was lost on her voyage to Europe. 
 The voyage from Cochin China to Manilla and back was held 
 not to be a deviation.^ 
 
 1 Bize V. Fletcher, Dougl. 271. in error, I Exch. 257, in which insur- 
 
 2 Thorndike v. Bonlman, 4 Pick, ance from Liveri)Ool to ports in China 
 Mass. 471. See also an important case ami ]Mainlla, and thence to the United 
 stated infra in this section, Ashley v. Kingdom, is held to authorize going 
 Pratt, 16 Mees. & \V. Exch. 471 ; S. C. from the port of discharge of the out- 
 
 vuu. I. 49
 
 578 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 1010. Where the voyage insured is from a certain port to sun- 
 dry others in a certain district, or to ports particularly specified 
 in their geographical order, and to a final port of discharge, or 
 one of ulterior destination, with leave to touch at certain inter- 
 mediate ports, named in the policy in their geographical order, a 
 part of the risk may he omitted by passing any of the ports, but as 
 many as are visited must be so in their geographical order, or in 
 an order having reference to progress to the ulterior destination, 
 unless a different order is justified by the nature of the voyage, 
 or some provision of the policy, or usage. 
 
 Thus, where an insurance was on goods from Liverpool to 
 Palermo, Messina, and Naples, and the vessel cleared and sailed 
 for Naples, and was captured in the Bay of Biscay, Lord Ellen- 
 borough and his associates held that this was not sailing on a 
 different voyage, and that a voyage to those three places meant 
 a voyage to either of them, or any of them in their order.^ 
 
 Another illustration of the same doctrine is the insurance on 
 a vessel and cargo from New York to Antigua and Cura^oa, in 
 respect of which it was decided in New York that sailing di- 
 rectly to the latter place was the same voyage, and not a devia- 
 tion.2 
 
 Goods being insured on a voyage from London to " a port or 
 ports of discharge in the Straits, with power in the voyage to 
 stop and stay at any ports or places," the vessel took goods for 
 Marseilles. When she was off that port, the wind being adverse, 
 she could not get in there, but was driven towards Corsica, and 
 thereupon went to Genoa and Leghorn, and returned thence for 
 Marseilles, and was captured on the way thither. This was held 
 to be a deviation,^ because the ports were not taken in the proper 
 order ; or, rather, it was held that the risk ended in such case at 
 Leghorn, the most distant port of destination. 
 
 In this case the question is not distinctly made, whether, in the 
 situation in which the ship was, when driven towards Corsica, it 
 was the most expedient course, considering the circumstances 
 and the objects of the voyage, to proceed to Genoa and Leghorn 
 
 ward cargo in Manilla to Tongkoo in 2 Kane v. Columbian Ins. Co. 2 
 
 China, more distant from the United Johns. N. Y. 264. See also Cross v. 
 
 Kingdom, for a homeward cargo. Shutliffe, 2 Bay, So. C. 220. 
 
 1 Marsden r. Reid, 3 East, 572. 3 Clason u. Simmonds, 6 Term, 533, n.
 
 SECT. VIII.] LIBERTY TO TURN FROM THE DIRECT COURSE. 579 
 
 before putting into Marseilles. The case was decided by the 
 jury very much upon the general opinion of witnesses, and stress 
 was also put by the court upon a representation of the assured, 
 as to the intended route and ports of destination ; so that it seems 
 to have very little weight as an authority. 
 
 So, insurance from Boston to Terceira, with a provision for an 
 additional premium for every other port used in the Western 
 Islands, being considered to be equivalent to a policy to that and 
 other ports, a like decision was made in Massachusetts, in case 
 of the vessel's omitting Terceira and proceeding to Graciosa.^ 
 
 A Virginia chancery case of 1810 puts a different construction 
 upon a similar provision. A ship and cargo were insured from 
 Norfolk to Cura^oa, with liberty to go to any other island of the 
 West Indies , or any one port on the Spanish Main, and " at and 
 from thence to Norfolk." The captain put into St. Thomas, 
 through fear, as he alleged, of being captured by privateers, and 
 being there, sold his cargo and took a cargo thence to Norfolk. 
 The case was an application to the court for an injunction on 
 the underwriters not to proceed at law on the premium note. 
 The right to proceed at law was put upon the ground that there 
 had been a deviation. The court were of opinion that, if the 
 captain had put into St. Thomas voluntarily, it was a deviation.^ 
 This construction is at variance with the preceding cases. It 
 was only omitting a part of the risk, and being there, he might 
 omit any other intermediate port which he was authorized by 
 the policy to visit, and proceed directly to a subsequent one, or 
 to Norfolk, the ultimate one.^ 
 
 An insurance being to a certain port " and a market," such 
 port may be omitted. Under a policy "to Kingston and a 
 market in Jamaica," it was held in Massachusetts not to be a 
 deviation to omit Kingston and go to Port Maria in that island.* 
 
 1011. The rule as to taking ports in their order is applicable 
 only in reference to some ulterior port of destination already fixed 
 upon, and not to touching for instructions to determine on such 
 ulterior port. 
 
 1 Hale V. Mercantile Ins. Co. C Pick. 3 Harrington v. Halkeld, Park, Ins. 
 Mass. 113. 8th ed. 639. 
 
 2 Marine Ins. Co. v. Straas, 1 Munf. 4 Houston v. New England Ins. Co. 
 Va. 408. 5 Pick. Mass. 89.
 
 580 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 Accordingly, under a policy on goods " from London to the 
 ship's discharging port or ports in the Baltic, with liberty to 
 touch at any port or ports for orders or any other purpose," it 
 was held by Gibbs, C. J., and his associates of the English Court 
 of Exchequer Chamber not to be a deviation to touch at Carls- 
 ham for orders as to the port of discharge, and sail thence, by 
 direction of the assured's agent, back to Swinnemunde, which is 
 a less distance from London, to ascertain of another agent the 
 port of discharge, and then, by instruction from such other agent, 
 to proceed again to Carlsham for a like purpose.^ 
 
 1012. Whether the order of the ports as stated in the policy must 
 be followed, ivhere it is not the geographical order ? 
 
 It w.as held by Lord Kenyon and his associates, that a vessel 
 insured to divers ports must touch in their order in the policy, 
 where it differs from the geographical order, unless a usage to 
 the contrary is proved. It was an insurance "from Gothenburg 
 to Leith and Mackenzie," the two latter being about a mile 
 asunder, and the vessel touched first at Mackenzie, which is fur- 
 ther from Gothenburg, and sustained damage on leaving that 
 port for Leith.2 
 
 In such a case the more obvious construction, considering the 
 relative position of the ports to each other and to the port of 
 departure, seems to be, that the order is indifferent, and that the 
 description is intended merely to specify the limits of the voyage, 
 without regard to the order of putting into the ports of destina- 
 tion.^ 
 
 There are regions where the seasons and prevailing winds and 
 currents conclusively determine the order in which ports are to 
 be visited, and to adopt the construction that the order in the 
 policy or the geographical order is to be observed, would be 
 simply absurd.^ 
 
 1013. Wliere the subsequent and ultimate ports of destination 
 are specified, and the intermediate ones comprehended in some 
 general description, any of these may be visited, but they must be 
 visited in an order having reference to progress towards the 
 
 1 Andrews v. Mellish, 5 Taunt. Exch. 471 ; and S. C. in error, Pratt v. 
 496. Ashley, 1 Exch. 257. _ 
 
 2 Beatson v. Haworth, 6 Term, 531. ■* See Gairdner d. Senhouse, 3 Taunt. 
 
 3 See Ashley v. Pratt, 16 Mees. & W. 16, and infra, No. 1013.
 
 SECT. VIII.] LIBERTY TO TURN FROM THE DIRECT COURSE. 581 
 
 specified ulterior ports^ unless the policy provides otherwise by 
 allowing of voyages backwards and forwards. 
 
 The order having such reference is not necessarily governed by 
 the geographical distance from the port of departure, or that of 
 each successive port from the preceding, but will be affected by 
 usage, as already mentioned,^ and also by the prevailing winds 
 and currents of the region in different seasons, especially in the 
 West Indies and other tropical regions, and also by the circum- 
 stances and incidents of the particular passage. 
 
 Goods being insured " at and from Martinique and all and any 
 of the West India Islands to London, from the time of loading 
 thereof," with leave " to touch and stay at any ports whatever," 
 the vessel sailed from Martinique to St. Domingo, which was 
 much out of the course to London. It was objected that this 
 was a deviation. Sir James Mansfield said, there was no getting 
 over the words of the policy, and that to make out a deviation, 
 instead of " all," you must say " some " of the West India 
 Islands.*'^ 
 
 The nature and objects of the voyage, as specified in the 
 policy, may justify intermediate voyages, and sailing forwards 
 and backwards.^ 
 
 1014. Insurance generally " to a market^^ or for the purpose 
 of obtaining or loading' a cargo, or trading, in a certain region, 
 authorizes passages backwards and forwards for the purposes of 
 the voyage, regard being had to the prevailing winds and currents 
 as to the order of touching at ports, and such a policy covers the 
 risk to the same port more than once : 
 
 As in a policy upon a vessel to St. Thomas and a market in 
 the West Indies.* The ports are not to be taken in such order, 
 in respect of currents and winds and seasons, as to prolong the 
 risk superfluously and indefinitely. 
 
 Goods on board of the Good Hope were insured on a voyage 
 " from London to Trinidad, or any ports of discharge in the 
 Spanish Main, all or either, with leave to call at any of the West 
 India Islands, Jamaica and St. Domingo excepted, and to touch 
 
 1 Supra, No. 1012. ■* Deblois t'. Ocean Ins. Co. 16 Pick. 
 
 2 Bragg I'. Anderson, 4 Taunt. 229. Mass. 303. 
 
 3 See Ashley r. Pratt, 16 Mees. & W. 
 Exch. 471; 1 Exch. 257. 
 
 49*
 
 582 DEVIATION AND CHANGE OP RISK. [CHAP. XII. ' 
 
 and stay at any ports whatsoever, for convoy or trade." The 
 vessel proceeded to Demerara, and thence, after two days, ran 
 down in sight, successively, of Tobago, St. Vincent's, and St. 
 Lucia, and touched at Martinique ; after staying four days there 
 she shaped her course for St. Thomas, passing by St. Kitts, and 
 in the night struck on the Anegada Reef, where she was lost. 
 The underwriters objected to a claim for loss, that the sailing for 
 St. Thomas v/as not the proper course in reference to the ulterior 
 ports. Mansfield, C. J., and the other judges of the English 
 Common Pleas, held that the case must turn upon the verdict 
 which the jury might give as to this fact.^ It seems that Mar- 
 tinique was the intended destination, and if so, reference was to 
 be had to that destination in deciding the question of deviation. 
 
 It was held by Abbott, C. J., and his associates, that, under an 
 insurance on freight at and from the island of Grenada, in the 
 West Indies, to London, with the broadest liberty to " touch and 
 stay, and load and unload," the risk attached and continued while 
 the vessel was at the island, visiting place after place, discharging 
 her outward cargo, in preparation, as the court said, for taking 
 on board her homeward cargo ; and that the underwriters were 
 answerable for a loss of the homeward freight, by the loss of the 
 vessel before any part of the homeward cargo had been taken on 
 board. The decision was put partly upon the particular trade 
 and its usages.''^ It seems, however, to admit of doubt, whether 
 the interest in this insurable subject for the homeward voyage 
 had accrued at the time of the loss.^ 
 
 A policy being on a ship from London to New South Wales, 
 and thence to ports in India, China, and Persia, and to her port 
 of discharge in Great Britain, with the broadest liberty to touch 
 and stay, and trade, " at all places, and for any purpose," and 
 sail forwards and backwards, the ship took a cargo of iron at 
 Batavia, and delivered it at Sourabaya, and there took a cargo 
 of rice to be delivered at the Mauritius, it being intended to take 
 a cargo of cotton thence on freight. The ship having been dam- 
 aged, the claim for the loss was objected to on the ground of de- 
 
 1 Gairdner v. Senhouse, 3 Taunt. 538; 7 Dowl. & R. 1; 1 Carr. & P. 
 16. 237. 
 
 2 Warre i'. Miller, 4 Barnew. & C. 3 See supra, c. 3, s. 11.
 
 'sect, yiii.] liberty to turn from the direct course. 583 
 
 viation ; but Dallas, C. J., and the other judges of the English 
 Common Pleas, decided in favor of the claim.^ 
 
 1015. In case of msti?-ance outward to any and any number of 
 numerous ports loithin extensive limits, and thence homeu-ard, with 
 broad liberty to touch and stay, the vessel may, from the charac- 
 ter of the voyage described, have the liberty of an intermediate 
 jyassage, after discharging her outward cargo, to a more distant 
 port for a return cargo. 
 
 This proposition is illustrated by an ably contested case of 
 weighty authority, decided in the English Court of Exchequer, 
 and on error in that of the Exchequer Chamber, though, on the 
 first impression, it seems to require a very nice and difficult dis- 
 crimination to distinguish it from some of the cases above re- 
 ferred to, in which an opposite decision was given. 
 
 It is on a policy " at and from Liverpool to ports and places in 
 China and Manilla, all or any, during the ship's stay there for 
 any purposes, and thence to her port or ports of calling and dis- 
 charge in the United Kingdom, with liberty to call and stay at 
 all or any ports or places." The master, after discharging the 
 outward cargo at Tongkoo, in China, and the remainder at a 
 port in Manilla, not finding a homeward freight at the latter, 
 took on board 230 chests of tea, being about one tenth of a cargo, 
 to be delivered at Tongkoo, and was proceeding back thither, in 
 an opposite direction to the course to the United Kingdom, for a 
 homeward freight, when the vessel was wrecked and lost. The 
 taking of the tea was considered by the court to be incidental 
 merely, and the case was treated as if she had gone without any 
 cargo. 
 
 The Court of Exchequer, Pollock, C. B., giving their opinion, 
 decided that, under this policy, the vessel, after delivering her 
 outward cargo, might proceed to any of the ports within the spec- 
 ified limits for a homeward cargo/'^ 
 
 In the Exchequer Chamber, in error, Denman, C. J., giving the 
 opinion of the court, said : " The words ' China' and ' Manilla ' 
 are not to be construed as showing the order in which the ship 
 was to proceed, but must be taken as the ditrsict comprehending 
 
 1 Armet v. Innes, 4 J. B. Moore, 2 Ashley v. Pratt, IG Mees. & W. 
 150. Exeb. 471.
 
 684 DEVIATION AND CHANGE OF EISK. [CHAP. XII. 
 
 all the ports and places from which the vessel might take her 
 homeward cargo." ^ 
 
 Considering the character of the voyage, as described in the 
 policy, there seems in this case to be a fair ground for the insur- 
 ers to presume that the vessel might have to revisit a port, or pro- 
 ceed to one more distant, for her homeward cargo. 
 
 In a voyage to South America and back, with liberty to go to 
 Europe, the assured was not justified in making an intermediate 
 vovage between European ports.^ 
 
 1016. Whether liberty to touch implies that of delay for the 
 purpose of trading and discharging and taking in cargo, or any 
 other purpose not specified, will depend upon the character and 
 objects of the voyage, as described in the policy, and also upon 
 usage. 
 
 Liberty to touch implies that of discharging and taking in 
 goods, unless a different object is expressed or implied.^ 
 
 1017. In regard to what constitutes a sufficient necessity, dif- 
 ferent persons w^ould no doubt entertain different opinions upon 
 the same facts. But it would be a very strict and illiberal con- 
 struction to hold a delay or departure from the course, when it is 
 expedient and necessary in the master's opinion, to be a devia- 
 tion, because others, and more justly too, perhaps, should think 
 it was unnecessary and inexpedient. Great weight is therefore 
 allowed to the fair and honest exercise of discretion on the part 
 of the master, in cases of this sort, as will appear from the whole 
 course of jurisprudence on the subject."* 
 
 SECTION IX. TURNING OFF AND DELAY FOR REPAIRS AND TO 
 
 REFIT. 
 
 1018. In extraordinary emergencies, the captain may go out of 
 the usual or stiptdated course, or delay or vary from the usage : 
 
 As to procure men, the crew having become, by sickness and 
 death, too weak to proceed on the voyage with safety : ^ but he 
 
 1 Pratt V. Ashley, 1 Exch. 257. 5 Cruder v. Philadelphia Ins. Co. 2 
 
 2 Seccomb v. Provincial Ins. Co. 10 Wash. C. C. 262; same PIff. v. Penn. 
 All. Mass. 305. Ins. Co. id. 339 ; Winthrop v. Union 
 
 3 Metcalfe i'. Parry, 4 Campb. 123. Ins. Co. 2 Wash. C. C. 7 ; Woolf v. 
 
 4 Stocker v. Harris, 3 Mass. 409. Claggett, 3 Esp. 267.
 
 SECT. X.] TURNING OFF TO AVOID PERILS. 585 
 
 cannot do so to supply a deficiency in the crew existing at the 
 commencement of the voyage.^ 
 
 1019. The most frequent emergency for going off the usual 
 course of the voyage is to seek a port of necessity, to repair 
 damages and to refit. Wlien, in consequetice of disaster, the ves- 
 sel cannot safely pursue the voyage, the master is not only justi- 
 fied in quitting the course and seeking the most convenient and 
 suitable port for repairs and supplies, or on account of other exi- 
 gencies of the voyage, but it is his duty to seek such port.^ 
 
 1020. If a vessel does not find repairs and supplies at the first 
 port of necessity, it may proceed to a second.^ 
 
 1021. Such superinduced digression must be prosecuted ivith 
 diligence and dispatch, and the main voyage must be resumed as 
 soon as may be, and unnecessary and voluntary delay in this re- 
 spect is a deviation. 
 
 1022. In reference to such deflections, the measures taken by the 
 master in good faith and an honest exercise of discretion used 
 within its proper limits, though not the most judicious, are vindi- 
 cated in jurisprudence, as already stated in reference to other 
 emergencies : 
 
 As in case of the master's attempting to put into the port of 
 Boston, as a port of necessity, on a voyage from Matanzas to 
 St. Petersburg, instead of steering for some port nearer to his 
 course.* 
 
 SECTION X. TURNING OFF TO AVOID PERILS INSURED AGAINST, 
 OR NOT INSURED AGAINST. 
 
 1023. The ship may go out of its course, or delay to avoid dis- 
 aster, no less than to refit after one has happened. 
 
 As to avoid capture : ^ 
 
 1 Folsom V. Merchants' Ins. Co. 38 4 Turner v. Protection Ins. Co. 25 
 Me. 414; Silva v. Low, 1 Johns. Cas. Me. 515. 
 
 N. Y. 184. 5 Goyon v. Pleasants, 3 Wash. C. C. 
 
 2 Motteux V. London Ass. Co. 1 Atk. 241 ; Oliver v. Maryland Ins. Co. 7 
 Ch. 545 ; Pelly v. Royal Exch. Ass. Co. Cranch, 487 ; Whitney v. Haven, 13 
 1 Burr. 341. Mass. 172; Reade v. Commercial Ins. 
 
 3 Hall V. Franklin Ins. Co. 9 Pick. Co. 3 Johns. N. Y. 352 ; Blackenhagen 
 Mass. 466 I'. London Ass. Co. 1 Campb. 454 ; Mil- 
 ler V. Russell, 1 Bay, So. C. ;509.
 
 586 DEVIATION AND CHANGE OF EISK. [CHAP. XII. 
 
 Or to join convoy, though not warranted or represented to sail 
 with convoy : ^ 
 
 Or to avoid ice : ^ 
 
 Or to gain intelligence at an intermediate port, in case of the 
 master having been informed on the voyage that trade at his port 
 of destination had been put under the same restrictions as if it 
 were blockaded : ^ 
 
 Or leaving a port with the vessel in an unseaworthy condition, 
 to avoid being surprised and seized there.^ 
 
 In case of danger of the ship stranding on a bar in going out 
 of the port of necessity, it is not an unjustifiable change of the 
 risk to send the cargo round to a neighboring port to be taken 
 on board there. It was so held where the vessel put back to 
 Bourdeaux, the port of departure, as a port of necessity.^ 
 
 It was held not to be a deviation by a Danish ship, during 
 hostilities between Denmark and Great Britain, to be put by the 
 master under the protection of an American frigate, as a pre- 
 tended prize, for the purpose of avoiding capture by British 
 cruisers, the risks insured against not being thereby changed or 
 enhanced, but rather diminished.*^ 
 
 A diversion from the prosecution of the voyage by request or 
 order of the commander of a public vessel, not accompanied by 
 any threat, and without any fear of danger in case of non-com- 
 pliance, is a deviation.'^ 
 
 1024. IVhere the vessel is forced from the course by a peril 
 insured against, it is undoubtedly not a deviation : 
 
 As where the insurance is against barratry, among other risks, 
 and the vessel is barratrously taken from its course.^ 
 
 So it is not a deviation where the vessel is voluntarily put off 
 the course in consequence of damage by a peril insured against, 
 as is illustrated fully by the cases above referred to in this sec- 
 tion, and that next preceding. 
 
 1 Patrick v. Ludlow, 3 Johns. Cas. Caines, N. Y. 592 ; though the captain 
 N. Y. 10. of the frigate transcended the limits of 
 
 2 Graham v. Commercial Ins. Co. 11 his duty in so lending his protection. 
 Johns. N. Y. 352. 7 Ruled by Lord Ellenhorough, 
 
 3 Lee V. Gray, 7 Mass. 349. Phelps v. Auldjo, 2 Campb. 350. 
 
 4 O'Reilly V. Gonne, 4 Campb. 249. 8 Vallejo v. Wheeler, Cowp. 143 ; 
 
 5 Wiggin V. Amory, 13 Mass. 118. M' Intire v. Bowne, 1 Johns. N. Y. 
 
 6 Governeur v. United Ins. Co. 1 229.
 
 SECT. X.] TURNING OFF TO AVOID PERILS. 587 
 
 1025. Going off the course, or delay, from necessity or any 
 cause which would be justifiable under a policy against the perils 
 of the sea generally, is not a deviation under a policy against one 
 or some only of such perils. 
 
 It cannot but be known to the parties to such a policy, that 
 the vessel is to be subject to the other perils usually included in 
 policies, and that the particular risks insured against are subject 
 to be affected by the others which are not covered, and the fair 
 inference is, that they do not contemplate the forfeiture of the 
 insurance by the risks insured against being thus affected. The 
 doctrine above stated is accordingly, notwithstanding some con- 
 trary decisions, conclusively established : 
 
 As in case of a vessel insured only against sea-risks and fire 
 being detained by arrest, and then sustaining sea-damage : ^ 
 
 And of a vessel insured against capture only being blown to 
 the coast of France, and there captured : ^ 
 
 And of a like policy, and the vessel being exposed to capture 
 by her slow sailing : ^ 
 
 And of a vessel insured except against seizure for illicit trade 
 going off the course to avoid such seizure : * 
 
 And of a vessel insured against sea-risk only going off its 
 course to avoid a violation of blockade. ^ 
 
 The doctrine thus settled is not shaken in the least by the few 
 decisions of a different aspect^ 
 
 In a ruling by C. J. Gibbs, just referred to, he makes a distinc- 
 tion between a digression on account of a peril not insured 
 against," and one on account of a peril insured against,^ from 
 which Mr. Arnould deduces the rule, that a digression to avoid 
 an excepted peril is a deviation, though the being irresistibly 
 compelled out of the course by the operation of such a peril is 
 
 1 Scott V. Thompson, 4 Bos. & P. Gray, 7 Mass. 349 ; Richardson r. Maine 
 181. F. & Mar. Ins. Co. 6 id. 102. 
 
 2 Green v. Elmslie, Peake, 212. 6 O'Reilly v. Royal Exch. Ass. Co. 4 
 . 3 Per Lord Ellenborou^h, 12 East, Campb. 246, per Gibbs, C. J.; Breed 
 
 653. V. Eaton, 10 Mass. 22, and see Rand's 
 
 4 Riggen V. Patapsco Ins. Co. 7 Harr. note, ibid. ; Roget v. Thurston, 2 Johns. 
 &J. Md. 2 79. Cas. N. Y. 248. 
 
 5 Robinson v. Marine Ins. Co. of ^ O'Reilly v. Royal Exch. Ass. Co. 
 New York, 2 Johns. N. Y. 89 ; Lee v. 4 Campb. 24G. 
 
 8 O'Reliiy i;. Goune, 4 Campb. 247.
 
 588 DEVIATION AND CHANGE OP RISK, [CHAP. XII. 
 
 not so.^ But as I understand the report, the Chief Justice rests 
 his different rulings in the two cases referred to wholly upon the 
 distinction that the risk is excepted in one case and not so in the 
 other, and not at all upon the distinction between going off the 
 course to avoid, and being irresistibly driven off by, an excepted 
 peril. This seems, it is true, to be the only way of vindicating 
 the ruling against the claim for loss in one of the cases, since, 
 without this distinction, it is palpably inconsistent with a con- 
 clusively established doctrine. I cannot, however, deem this 
 vindication tenable, since, if the underwriters are liable to be 
 affected by the operation of the excepted peril, as where, under 
 insurance against sea-risks only, those are liable to be prolonged 
 and aggravated by detention and capture, the underwriters are 
 as directly interested in avoiding these perils as if the policy had 
 included them, though not in the same degree. Accordingly, 
 some of the deliberate adjudications above stated are directly 
 opposed to such a distinction, and their authority does not seem 
 to be shaken by a hasty ruling at Nisi Prius. 
 
 But if the voyage is given up, and another entirely distinct 
 one undertaken, on account of a peril not insured against, the 
 risk thereupon ceases.^ 
 
 1026. If the vessel meets ivith an obstacle independent of the 
 perils ordinarily insured against, and the master, not from necessity 
 or for the safety of the lives and property on board, undertakes 
 a new, wholly distinct, independent adventure, it is a deviation, 
 though his intention may be thereby to accelerate the voyage. 
 
 Where, under a policy upon the ship and freight from Boston 
 to Gibraltar, and thence to St. Ubes or the Cape de Verde 
 Islands, for salt, and thence back to Boston, the master, on arriv- 
 ing at one of the Cape de Verde Islands, found so many waiting 
 there for cargoes that his turn to load would not come within 
 four or five weeks, and he accepted a proposal of the Governor 
 to go to St. Jago and Fuego for a cargo of provisions, on a 
 promise of being loaded with salt for home so soon as he should 
 return, his going on this intermediate voyage was held in Massa- 
 chusetts to be a deviation.^ 
 
 1 1 Arnould, Mar. Ins. 407. ardson r. Maine F. & Mar. Ins. Co. 6 
 
 2 Lee V. Gray, 7 Mass. 349 ; Rich- id. 102. 
 
 3 Kettell V. Wiggin, 13 Mass. 68.
 
 SECT. XI.] DELAY FOR SUCCORING THE DISTRESSED, ETC. 589 
 
 The case was one for the jury rather than for the court, and 
 the opinion is accordingly not of predominating weight. One 
 reason assigned for accepting the proposal was, the vessel's 
 being short of provisions for the delay until her turn came. The 
 court remarked that she ought to have taken a sufficient supply 
 at Gibraltar for such a delay. The ground of the opinion was, 
 that the occasion did not authorize the master to speculate in 
 this manner upon the possible advantage of hastening his de- 
 parture by thus going out of the regular course of the voyage. 
 
 A case somewhat similar occurred in New York, in which a 
 like decision was made. A vessel was insured for a voyage 
 from New York to Teneriffe, "with permission to proceed from 
 TenerifFe to the Isle of May and Bonavista, and at and from 
 them, or either of them, to New York." The vessel, on arriving 
 at TenerifFe, was required to perform a quarantine of forty days, 
 because her bill of health had not been certified by the Spanish 
 consul at New York. With a bill of health so certified, she 
 would have been subjected to a quarantine of only eight days. 
 The second day after arrival at Teneriffe, permission was given 
 to land the corn, which constituted a part of the cargo, which 
 was prevented for thirteen days after by the state of the weather, 
 and then the landing of the cargo there was prohibited abso- 
 lutely on. account of not having the required bill of health; 
 whereupon the master proceeded to Madeira and discharged his 
 cargo there. It was held that this passage was made from a 
 necessity for which the assured was wholly answerable, whereby 
 the insurers were not liable to be affected, and accordingly, that 
 it was a deviation.^ 
 
 SECTION XI. DELAY FOR THE PURPOSE OF SUCCORING THE DIS- 
 TRESSED, OR TO SAVE THE PROPERTY OF OTHERS. 
 
 1027. Delay or going out of the course to succor those who are 
 in distress, has been invariably held not to be a deviation. 
 
 This justification of a departure from the usual course of the 
 risk, though always mentioned by elementary writers, has not 
 
 ^« 
 
 1 Robertson v. Columbian Ins. Co. 8 Johns. N. Y. 491. 
 VOL I. 50
 
 590 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 been often recognized by courts, for the reason that a justifica- 
 tion resulting so directly from the plainest principles of human- 
 ity, and in the sufficiency of which the assured and insurers are 
 in general so much interested, has never been directly called in 
 question, and the justification has been recognized and is irrevo- 
 cably established in jurisprudence.^ 
 
 1028. Delay or going off the course merely to save the property 
 of others, is considered to be a deviation? 
 
 SECTION XII. TAKING LETTERS OF MARQUE. CRUISING. CON- 
 VOYING. 
 
 1029. TJie taking" of a letter of marque, without leave from the 
 underwriters, is not of itself a deviation. 
 
 It is, at most, as Mr. Marshall remarks, a temptation to deviate 
 by cruising.^ 
 
 After a decision to the contrary by Lord Kenyon and his asso- 
 ciates,'' the law has been definitely settled as above.^ 
 
 1030. A letter of marque can be used only for defence ivithout 
 leave from the underwriters : cruising- or unnecessary delay of the 
 voyage for hostile purposes is a deviation.^ 
 
 It was a matter of doubt whether a vessel, having liberty by 
 the policy to be armed, nothing being said of her taking a letter 
 of marque, but having taken one, was authorized by usage to 
 chase vessels that hove in sight, or had, by altering her course 
 
 ' See Lawrence i: Sydebotham, 6 240; Warder v. Goods, &f. 1 Pet. Adm. 
 
 East, 54 ; per Marshall, C. .J. 2 Cranth, 31 ; Crocker v. Jackson, Sprague, Dee. 
 
 258, n.; Bond v. Briji Cora, 2 Wash. Dist. Ct. 141. 
 
 C. C. 80; per Story, J., Srhooner Bos- 3 Marshall, Tns. book 1, c. 7, s. 6, 2d 
 ton, 1 Sumn. C. C. 328; Ship Henry ed. by Condy, 282. 
 Ewbank, 1 id. 400; Foster y. (rardiner, 4 Dennison v. Modigliani, 5 Term, 
 Amer. Jurist, No. 21, per Stojy, J.; 580; and see his remarks, 6 id. 382. 
 Little V. St. Louis Perpetual Mar. & F. 5 Moss r. Byron, 6 Term, 379 ; Wig- 
 Ins. Co. 7 Mo. 379; The Beaver, 3 C. gin v. Amory, 13 Mass. 118; Same v. 
 Rob. Adm. 292; The Jane, 2 Hagg. Boardman, 14 id. 12 ; Jarratt d. Walker, 
 Adm. 338; Box of Bullion, Sprague, l Campb. 27 7. 
 
 I)ec. Dist. Ct. 57; Crocker v. Jackson, 6 Cook v. Townson, Park, Ins. 448; 
 
 id. 141. Jolly V. Walker, ibid. ; 3 Kent, Comm. 
 
 2 Bond V. Brig Cora, 2 Wash. C. C 3d ed. 312, &c. 
 80 ; Mason v. Ship Blaireau, 2 Cranch,
 
 SECT. XII.] TAKING LETTERS OP MARQUE. 591 
 
 about a quarter of a point and giving chase for about a quarter 
 of an hour to a Spaniard that hove in slight, forfeited its insur- 
 ance. A special jury found it to be a deviation, and the verdict 
 was approved by Lord EUenborough and his associates ;i and 
 such is without doubt the established doctrine. 
 
 The stopping by an American vessel for three hours, to take 
 possession of a recaptured vessel, was held in Massachusetts, in 
 the strongly contested case of the Volant, to be a deviation. 
 No time was taken for the recapture.^ It was held to be a devi- 
 ation, notwithstanding the knowledge, on the part of the under- 
 writers, that the vessel had a commission as a privateer. 
 
 The decisions in the cases last cited turn upon the construc- 
 tion of the evidence that the master went beyond acts of mere 
 defence, from motives of gain by the recapture. In a subsequent 
 trial in the same court between a shipper and a ship-owner, before 
 Parker, C. J., the evidence in defence presented a new phase ; 
 namely, that taking possession of the recaptured vessel was also 
 a defensive measure, for the purpose of preventing intelligence 
 of the course of the Volant to British cruisers, whereby she 
 might have been exposed to capture, so that an opposite verdict 
 was given, though the doctrine stated by the court was the 
 same.^ 
 
 In a trial before Mr. Justice Story, on a policy upon goods on 
 board of the same vessel, he instructed the jury that the question 
 was " whether what was done was fairly attributable to a mere 
 intention of self-defence ; " and he said, " If the capture was 
 made in self-defence, the master had a right to take possession 
 of his prize, and if, without injuriously weakening his own crew, 
 he could man the prize, he had a right so to do, and the delay 
 for that purpose was not a deviation." * The whole question is 
 one of the construction of facts as to what acts are merely de- 
 fensive. 
 
 Lord EUenborough and his associates decided that, under a 
 policy upon a ship from L. to the coast of Africa and thence to 
 
 . 1 Parr v. Anderson, 6 East, 202; 2 3 Gray v. Thorndike, (MS.) Sup. 
 
 Smith, 316 ; Park, Ins. 450. Jud. Ct. Mass. Suffolk, November, 
 
 2 Wijrgin V. Amory, 13 ]\Iass. 118; 1817. 
 
 14 id. 1 ; Wiggin v. Boardman, id. 4 Haven v. Holland, 2 Mas. C. C. 
 
 12. 230.
 
 592 DEVIATION AND CHANGE OP RISK. [CHAP. XII. 
 
 the West Indies, with letters of marque, and " leave to chase, 
 capture, and man prizes," the shortening sail and lying to occa- 
 sionally to convoy the prizes taken was a deviation ; ^ but it is 
 not so, if the vessel does not delay or go off her course for the 
 purpose.^ 
 
 Lord Mansfield and the other judges of his court considered 
 leave to cruise a certain number of weeks to mean so many suc- 
 cessive weeks, and held cruising at different periods to be a 
 deviation.^ 
 
 A ship being insured in London, " thence to the southern 
 whale and sea fishery, and back," with letters of marque, and 
 leave " to chase, capture, and man, return with, and send into 
 port prizes, also to cruise thirty-one days on this side of Cape 
 Horn," was held by Sir James Mansfield and the other judges 
 of the English Common Pleas, to have deviated by remaining 
 off San Bias, in California, for nine days, waiting for an enemy 
 vessel to come out, being, during the time, on fishing ground, 
 though not the best.* The delay on ground not the best for 
 fishing, was considered by the court to be equivalent to cruising, 
 as distinguished from chasing. 
 
 Lord Ellenborough ruled that, on a voyage similar to the 
 preceding, leave to capture, man, and see into port prizes, did 
 not authorize delay in port while a prize was under repair.^ 
 
 SECTION XIII. DEPARTURES FROM THE ROUTE, DELAYS, AND 
 CHANGES OF THE RISK, NOT IMPUTABLE TO THE ASSURED. 
 
 1031. We have seen that, in respect to deviation, the acts of 
 the master and other representatives of the assured appointed by 
 him, or whose appointment is authorized by him, are imputable 
 to him, except in cases of barratry where that is one of the risks 
 insured against. 
 
 If, in consequence of disaster, the insured subject is transferred 
 to the hands of strangers, their acts are not imputable to the 
 assured, and what would otherwise be a deviation will cease to 
 be such: 
 
 1 Lawrence v. Sydebotham, 6 East, 3 Syers v. Bridge, Dougl. 529. 
 
 54. ^ Hibbert v. Haliday, 2 Taunt. 428. 
 
 2 Ward V. Wood, 13 Mass. 539. 5 Jarratt v. Ward, 1 Campb. 263.
 
 SECT. XIV.] CHANGES OF THE RISK IN FIRE POLICIES. 593 
 
 As in case of a vessel and cargo being put into the hands of 
 the American consul at the Mauritius in consequence of the 
 death of the master and officers.^ 
 
 SECTION XIV. CHANGES OF THE RISK IN FIRE POLICIES. 
 
 1032. Fire policies, as we have seen,^ usually contain provis- 
 ions relative to alterations of the buildings insured, or other 
 enhaticement or change of the risk, whereby it is stipulated that 
 the policy shall be forfeited. 
 
 Under the general provision, that, " if, after the insurance is 
 affected, the risk of the property shall be increased by any means 
 within the control of the assured, such insurance shall be void," 
 the Court of Appeals of New York held that the erection of a 
 barn so near to the insured building as to enhance the risk, would 
 incur a forfeiture of the insurance.^ 
 
 1033. In fire insurance, as well as marine, the assured may 
 incur whatever additional risk he pleases, without prejudicing his 
 contract, provided a loss occasioned by the additional risk can be 
 distinguished from one happening independently of it.* 
 
 1034. Requisite repairs, such as come within the ordinary acts 
 of ownership, may be made in the insured building, where there is 
 no express provision in the policy requiring the consent of the 
 insurers, or making any other condition on the subject.^ 
 
 1035. If any change made in the subject is such as to render 
 it a different one from that described in the policy, the under- 
 writers will be wholly discharged from liability. 
 
 1036. So if any such alteration of the subject is voluntarily 
 made by the assured that it cannot be distinguished whether a 
 loss has been occasioned thereby, the underwriters are not liable 
 
 1 Winthi-op V. Union Ins. Co. 2 4 Stebbins v. Globe Ins. Co. 2 Hall, 
 Wash. C. C. 7. N.Y. 6.32 ; Howard v. Kentucky Ins. Co. 
 
 2 Chap. 1, s. 6. 13 B. Monr. Ky. 282; Joyce c. iMaine 
 
 3 Murdock v. Chenango ilut. Ins. Ins. Co. 45 Me. 168; Girard Ins. Co. r. 
 Co. 2 X. Y. 210; Acts of third parties Stephenson, 37 Penn. St. 293. 
 
 are not within this provision : Santbrd 5 Jolly v. Baltimore Ins. Co 1 Ilarr. 
 
 V. Mechanics' Ins. Co. 12 Cush. Mass. & G. Mil. 294. 
 
 541. 
 
 50*
 
 594 DEVIATION AND CHANGE OF RISK. [CHAP. XII. 
 
 for such loss} What is the effect of any alteration is a fact for 
 the jury ,2 in the particular case. 
 
 1037. An alteration wherehij the character of the building- is 
 not changed, nor the risk from fire increased, does not discharge 
 the insurers from subsequent liability? 
 
 1038. Under a policy on goods in a certain building, the en- 
 hancement of the risk by the manner of the occupancy in other 
 respects, whereby the risk of fire is enhanced, does not discharge 
 the underwriters on the principle of deviation or change of risk 
 merely,* though it may have that effect on the ground of an 
 express warranty, or an implied representation in the description 
 of the subject or locus in quo, in the policy. 
 
 A building being insured as a *' dwelling-house," its being 
 occupied as a boarding-house, was held not to discharge the 
 underwriters.^ 
 
 And the same point was held where a building insured as a 
 " hotel " was used as a house of ill fame.^ 
 
 The underwriters were held not to be discharged by the cir- 
 cumstance that an insured building, stated to be occupied as a 
 " private residence," was vacant for a time.'^ 
 
 Moving the goods insured to another place is a change of 
 risk.^ 
 
 Drawing a lottery in a " shoe manufactory " is held not to 
 defeat the policy.^ 
 
 1 Stetson V. Mass. Mut. Fire Ins. Co. Ins. Co. 1 All. Mass. 311 ; contra, How- 
 4 Mass. 330 ; Francis v. Somerville Ins. arc! Ins. Co. v. Bruner, 23 Penn. St. 50. 
 Co. 1 Dutch. N. J. 78. 4 Lyon i'. Commercial Ins. Co. 2 
 
 2 Grant v. Howard Ins. Co. 5 Hill, Rob. La. 266. 
 
 N. Y. 10; Merriam t;. Middlesex Mut. 5 Rafferly v. New Brunswick Fire 
 
 Fire Ins. Co. 21 Pick. Mass. 162 ; Shep- Ins. Co. 3 Harr. N. J. 480. 
 
 herd v. Union Ins. Co. 38 N. H. 232. ^ Hall v. People's Ins. Co. 6 Gray, 
 
 3 Curry v. Commonwealth Ins. Co. Mass. 185. 
 
 10 Pick. Mass. 535 ; Jefferson Ins. Co. '' O'Neil v. Buffalo Fire Ins. Co. 3 
 
 V. Coiheal, 7 Wend. N. Y. 72 ; Perry N. Y. 122 ; Gam well w Merchants' Ins. 
 
 Ins. Co. V. Stewart, 19 Penn. St. 45; Co. 12 Cush. Mass. 167. 
 
 Schenck v. Mercer Ins. Co. 4 Zabr. N. 8 Spitzer v. St. Mark's Ins. Co. 6 
 
 J. 447 ; Baxendale v. Harvey, 4 Hurlst. Du. N. Y. 6. 
 
 & N. Exch. 445. A mortgage is a ma- 9 Boardman v. Merrimack Ins. Co. 8 
 
 terial alteration : Edmands v. Mutual Cush. Mass. 583.
 
 SECT. XVI.] WAIVER OF FORFEITURE INCURRED BY DEVIATION. 595 
 
 SECTION XV. CHANGES OF THE RISK IN LIFE POLICIES. 
 
 1039. Tlie doctrines of the preceding sections respecting- an 
 enhancement or change of Vie risk, have no application to life 
 insurance except under an express provision in the policy. 
 
 Such provisions are usually introduced into this species of 
 policy, and are considered under the head of express warranty.^ 
 
 SECTION XVI. WAIVER OF A FORFEITURE INCURRED BY DEVIA- 
 TION. • 
 
 1040. The forfeiture of a claim under a policy incurred by 
 deviation may be ivaived in writing,^ but not by a merely verbal 
 consent to waive it after it has occurred.^ 
 
 1041. Mr. Justice Washington expressed the opinion, that the 
 forfeiture was cancelled by the fact of a previous deviation being 
 knoivn to the underwriters at the time of subscribing the policy,"* 
 and the doctrine is recommended by its equitableness. The 
 strongest ground. on which to maintain it seems to be, that the 
 underwriter shall not be permitted to allege his own fraud in 
 defence, since it would be a palpable fraud on his part to sub- 
 scribe and receive the premium, intending at the same time to 
 avoid payment of a loss by alleging the previous deviation or 
 one represented to be intended. 
 
 In a case above cited,^ Gibbs, C. J., expressed his regret on 
 account of not being, as he thought, authorized to exclude the 
 defence of a deviation, which had been known to the underwriter 
 at the time of subscribing. But a forfeiture by non-compliance 
 with a warranty implied by the fact of making the policy, and 
 not by its phraseology, has been said to be saved by a represen- 
 tation,^ which is an analogous case. 
 
 1 Supra, c. 9, s. 11, ISTo. 891. 4 Coles v. Marine Ins. Co. 3 Wash. 
 
 2 Glidden v. Manufacturers' Ins. Co. C. C. 1.59. 
 
 1 Sumn. C. C. 232. 5 Redman v. Lowdon, 5 Taunt. 462 ; 
 
 3 Crowningshield v. New York Ins. 3 Marsh. 136, and 3 Campb. 503. 
 Co. 3 Johns. Cas. N. Y. 142. 6 Supra, c. 8, s. 5, No. 752.
 
 CHAPTER XIII. 
 
 RISKS COVERED. 
 
 SEf'T. 1. Of tlie risks covered generally. 
 
 2. Acts of the assured and his agents. 
 
 3. Barratry. 
 
 4. The insurers are not liable forjordi- 
 
 nary perils and losses. 
 
 5. Damage arising from the qualities 
 
 of the subject. 
 
 6. Events which enhance the risk. 
 
 7. Loss bj' tire. 
 
 8. Perils of the seas, rivers, lakes. 
 
 9. Piracy, robbery, theft. 
 
 10. Capture, arrests, restraints, and de- 
 tentions. 
 
 Sect. 11. Risks from prohibited and contra- 
 band trade. 
 
 12. Other perils. General clause. 
 
 13. Loss from fear of perils. 
 
 14. Of remote and consequential 
 
 losses. Concurrence of diflerent 
 perils. Loss upon one subject 
 by damage to another. 
 
 15. What Idsses are within the period 
 
 of the risk. 
 
 16. Risks excepted. 
 
 17. Risks in bottomry interest. 
 
 SECTION I. OF THE RISKS COVERED GENERALLY. 
 
 1042. The species of risks most usually insured against in 
 marine policies are perils of the seas, fire, piracy and theft, bar- 
 ratry, capture, arrests, and detentions : and to this specification 
 is commonly added the general clause " all other perils," ^ which 
 is restricted to perils like in kind to those enumerated, and adds 
 but little to the indemnity secured by the specific enumeration. 
 
 1043. A policy will not secure indemnity in favor of a party 
 who cannot be legally insured,^ or on any subject which cannot 
 be legally held, or on a trade which cannot be legally prosecuted, 
 or against risks in respect to which indemnity is prohibited by law, 
 or in direct contravention of the implication, spirit, and policy of 
 the laws.^ 
 
 Lord Chancellor Lyndhurst, in the case of Fontleroy, laid 
 down the doctrine, that an insurance in favor of an assured and 
 his representatives, on his life, against felonious suicide, is void, 
 as being in contravention of the policy of the law; and the 
 
 • See supra, No. 35. 
 
 2 See supra, c. 2, s. 2. 
 3 See supra, c. 3, s. 2.
 
 SECT. I.] OF THE EISKS COVERED GENERALLY. 597 
 
 decision in the House of Lords was in accordance to that 
 opinion.^ 
 
 But where a law is a commercial regulation, wholly collateral 
 to the risks insured against, a non-compliance with which does 
 not enhance or change the risks, the insurance is valid notwith- 
 standing such non-compliance : ^ 
 
 As in case of a law regulating pilotage :^ 
 
 And of one requiring a shipping-paper signed by the master 
 and men : * 
 
 And of one regulating the stowage of water under deck.^ 
 
 So, if a non-compliance is merely incidental and collateral to 
 the voyage and the risks, the policy remains valid, on the same 
 principle as where the law itself is merely collateral.^ 
 
 1044. The rate of premium paid has been taken into consid- 
 eration as a ground of presumption as to the extent of the risks 
 assumed." 
 
 1045. The commencement and termination of the risk are the 
 subjects of a previous chapter. What losses by the perils insured 
 against come within that period, will be the subject of a subse- 
 quent section. 
 
 There are, as we shall see, cases in which the action of the 
 peril is not fully realized until after the policy attaches, though 
 its operation began previously ; and vice versa, there are cases 
 where the effects of a peril do not come out fully until after the 
 period of the risk has ended. Again, there are cases in which a 
 peril not insured against, and one that is insured against, concur 
 in their operation, and give rise to the question to which of the 
 two the loss is to be attributed. These inquiries are postponed 
 until we shall have investigated the several enumerated perils. 
 
 Before going into the investigation of the losses by the several 
 
 1 Amicable Ins. Co. v. Bolland, 2 iting trade in the article, except by a 
 Dow & C. Hou. L. 1. party having a license, is similar inprin- 
 
 2 See supra, c. 3, s. 2. cijjle. Johnson v. Hudson, 11 East, 
 
 3 Keeler v. Fii-emen's Ins. Co. 3 Ilill, 180. 
 
 N. Y. 250 ; Flanigan v. Washington ^ Deshon v. Merchants' Ins. Co. 1 1 
 Ins. Co. 7 Penn. St. 307. Mete. Mass. 199. 
 
 4 Redmond v. Smith, 7 Mann. & G. <5 See supra, No. 221. 
 
 457. The judgment in favor of the ^ Maryland & Phoenix Ins. Co. v. 
 vendor for the price of tobacco sold by Bathurst, 5 Gill & J. Md. 159. 
 him in contravention of the law prohib-
 
 508 RISKS COVERED. [CHAP. XIII. 
 
 perils usually insured against, for which the insurers are liable, 
 and as preliminary thereto, we will consider what aggravation of 
 the perils and causes of loss, and what losses by those perils gen- 
 erally, are at the risk of the assured, notwithstanding the insur- 
 ance ; namely, acts of the assured, ordinary action of the enum- 
 erated perils, wear and tear, and natural decay. We will also 
 first consider the aggravations of the enumerated perils subse- 
 quent to the time of the policy's attaching, which are at the risk 
 of the insurer. 
 
 Barratry, which is usually an induction of other enumerated 
 perils, or an act whereby indemnity under the policy would be 
 forfeited, if this risk were not covered, will be more conveniently 
 treated of in connection with the acts of the assured or his 
 agents for which the insurer is not liable, in which connection it 
 is accordingly put, and precedes the consideration of the perils 
 through which indiscriminately this risk of barratry may operate 
 on the insured subject. 
 
 1045 a. Policies against fire on land usually cover that risk 
 only.^ 
 
 1045 b. A life policy is an insurance against death indefinitely, 
 or for a certain, period of time. All descriptions of risks and 
 perils — that is, causes of death — are rarely, if ever, insured 
 against in these policies. 
 
 The causes of death insured against are sometimes enumer- 
 ated. A life policy against " the dangers incident to navigation, 
 drowning, blowing up, &c.," on a passage upon the Mississippi, 
 is held in Missouri to cover the risk of drowning by accidentally 
 falling overboard, though the occasion was not extraordinary .^ 
 
 A life policy is, however, usually in form an insurance against 
 death generally, with exceptions of death by certain causes or 
 under certain circumstances.^ 
 
 1 See supra, No, 63, and infra, No. 3 gee excepted risks, infra, No. 
 1094 to 1098, also No. 1062 a. 1162 b. 
 
 2 Moore v. Perpetual Ins. Co, 16 
 Uo. 98,
 
 SECT. II,] ACTS OF THE ASSURED AND HIS AGENTS. 599 
 
 SECTION II. ACTS OF THE ASSURED AND HIS AGENTS. 
 
 1046. Tlie undericriter is not liable to indemnify the assured 
 for losses by the perils insured against directly incurred through 
 the fraud or gross misconduct of the assured.^ 
 
 A contract for indemnity in such case would be absurd, and, 
 so far as it related to a voluntary and intended loss, void at lavv.^ 
 But where a loss by the perils insured against may have been 
 remotely occasioned by the fault or negligence, or want of the 
 greatest degree of vigilance, prudence, and foreci^St of the assured 
 acting bona fide and without being aware of such consequence, 
 there are not wanting authorities establishing the liability of the 
 underwriters to make indemnity. The limit of such liability will 
 be found not to be very definitely marked. It undoubtedly does 
 not extend beyond the effects of the bona fide acts of the assured, 
 if it extends to all such acts.^ 
 
 The underwriter does not run the risk of the obstructions and 
 embarrassments directly occasioned by the debts of the assured ;* 
 or for the aggravation of a loss by reason of his neglect to supply 
 the master with funds or credit to a reasonable amount at a for- 
 eign port ; ^ or for the aggravation of a loss by his neglect to pay 
 salvage due to salvors for saving wheat in case of disaster;^ or 
 for a constructive total loss of a vessel, which would have been 
 only a partial one, but for the assured's neglecting, without good 
 reason, to make repairs;" or for the loss of cargo consumed by 
 the crew, the owner having neglected to put proper supplies on 
 board.^ 
 
 1046 a. The underwriter is liable for losses by the perils in- 
 sured against, though in consequence of the negligence of the 
 insured, if it does not amount to gross negligence or wilful mis- 
 conduct.^ 
 
 1 Thompson v. Hopper, 6 Ell. & B. 6 Rosetto r. Gurucy, 11 C B. 176; 
 172 ; 34 Eng. L. & Eq. 266. 7 Eng. L. & Eq. 461. 
 
 2 Amicable Society v. Bolland, 2 Dow "^ Cincinnati & Firemen's Ins. Co. v. 
 & C. Hou. L. 1. May, 2U Ohio, 211. 
 
 3 Citizens' Ins. Co. i\ Marsh, 41 s Morse v. Sun Ins. Co. 1 Du. N. Y. 
 Penn. St. 386. 159. 
 
 4 La Guidon, c. 2, a. 7. 9 Johnson v. Berkshire Ins. Co. 4 All. 
 
 5 Amicable Ins. Co. i'. Ogden, 20 Mass. 388 ; Theobald v. Railway Ass. Co. 
 Wend. N. Y. 287. 10 Exch. 45; 26 Eng. L. & Eq. 432.
 
 600 RISKS COVERED. [CHAP. XIII. 
 
 1047. The underwriter may undoubtedly make himself liable to 
 indemnifij the assured ag-ainst the fraud, misconduct, mid negli- 
 gence of his agents ; and the only question in this respect is, 
 whether the contract is so framed as to impose upon him this 
 responsibility. By the common form of the policy, the master 
 of the vessel and the mariners are the only agents against whose 
 misconduct the assured is protected ; and the only acts of the 
 master and mariners expressly insured against are those which 
 amount to barratry. In some places, the common form of the 
 policy makes a distinction, in respect to this risk, between an in- 
 surance on the ship or freight, and one upon the cargo or profits ; 
 barratry being insured against in the latter, but not in the former 
 case.i 
 
 1048. The doctrine is frequently laid down, that the insurer is 
 not answerable, under the common form of the policy, for losses 
 occasioned through the fault of agents employed by the assured.^ 
 
 The course of jurisprudence formerly imposed upon the as- 
 sured a very broad responsibility for the acts of his agents ; and 
 it was held that " the insurers are not liable for losses arising 
 from the mistakes of the owner or master ; " ^ and that " the act 
 of the master must be referred to his principal who appoints 
 him ; and whenever a loss happens through the master's fault, 
 unless that fault amounts to barratry, the owner, and not the 
 insurer, must bear it." * But this seems to be too broad an ex- 
 emption of the insurers from responsibility. 
 
 '■'' Whether, ^^ says Mr. Justice Story, " the underwriters are liable 
 for a loss by any of the perils in the policy, the remote cause of which 
 is the negligence and misconduct of the master and mariners, not 
 amounting to barratry, is a vexed question, upon which opposite 
 opinions have been expressed by very distinguished courts."^ 
 
 1 Lafond's Guide to Insurers and land v. Marine Ins. Co. of Alexandria, 
 Assured, Paris, 1837, p. 97. In the 2 Crancli, C C. 4 73 ; Lodwicks i;. Ken- 
 Antwerp policies, the underwriters in- nedy, 5 Ohio, 436, which is a case of 
 sure against the negligence of the mas- damage to goods in a flat-boat on the 
 ter and crew. Mississippi. 
 
 2 1 Emerigon, 604, c. 12, s. 39. * Vos v. United Ins. Co. 2 Johns, 
 
 3 Goix V. Low, 1 Johns. Cas. N. Y. Cas. N, Y. 187. Contra Fireman's Ins. 
 341. See also Tatham v. Hodgson, 6 Co. v. Powell, 13 B. Monr. Ky. 311. 
 Term, 656 ; Stewart v. Tennessee Ins. 5 Andrews v, Essex Mar. Ins. Co. 3 
 Co. 1 Humph. Tenn. 242; and Himely Mas. C. C. 6. 
 
 V. Stewart, 1 Brev. So. C. 209 ; How-
 
 SECT. II.] ACTS OF THE ASSURED AND HIS AGENTS. 601 
 
 1049, The better and noiv established doctrine is, that the un- 
 derwriters are liable for a loss occasioned by a risk expressly 
 iiisured against, though it is a conseciuence of the negligence or 
 mistake of the master or mariners; supposing the ship to have 
 been provided with a competent master and crew, and that there 
 is no want of good faith and honesty of purpose. 
 
 Lord Mansfield instructed the jury, " that, if they were satisfied 
 the captain had done what was for the benefit of all concerned," 
 they must find in favor of the claim of the assured ; ^ meaning, 
 as Mr. Chief Justice Dallas of the English Common Pleas ex- 
 plains the ruling, if he had acted with a view to the common 
 benefit ; ^ or, in other words, if he had acted in good faith, and 
 not fraudulently, the underwriters are answerable for the perils 
 insured against, however the operation of those perils may have 
 been affected by the measures taken by the master.^ 
 
 This doctrine has been illustrated in divers cases : 
 
 As in case of a vessel burnt at Gibraltar in consequence of the 
 master's carelessness in using a light in sealing letters, and un- 
 necessarily discouraging the men from extinguishing the fire 
 through fear of the explosion of gunpowder:^ 
 
 And of a Russian ship frozen up during the winter in Biorkoo 
 Sound, in the Gulf of Finland, and burnt in consequence of the 
 master's carelessly leaving a fire in the cabin : ^ 
 
 And loss by fire on board of a steamboat through negligence : ^ 
 
 And loss on board of a steamboat employed in river naviga- 
 tion, in consequence of an explosion occasioned by negligence : " 
 
 And the stranding of a ship in the river of Sierra Leone, in 
 
 1 2 Doug, 231. by a candle carelessly put near the bin- 
 
 2 Idle V. Royal Excli. Ass. Co. 3 J. nacle. Grim v. Phoenix Ins. Co. 13 
 B.Moore, 115. Johns. N. Y. 451. See Emerigon, torn. 
 
 3 See also Amicable Ins. Co. v. Ins- 1, p. 441, c. 12, s. 18. 
 
 ley, 7 Penn. St. 223; and Shore v. 5 Busk v. Royal Exch. Ass. Co. 2 
 
 Bentall, 7 Barnew. & C. 798, n. ; Bish- Barnew. & Aid. 73. 
 
 op V. Pentland, 7 Barnew. & C. 219; <5 Waters v. Merchants' Ins. Co. of 
 
 Cincinnati & Firemen's Ins. Co. i'. May, Louisville, 1 M'Lean, C. C. 275. 
 
 20 Ohio, 211. 7 Perrin'3 Adm'rs v. Protection Ins. 
 
 * Patapsco Ins. Co. v. Coulter, 3 Pet. Co. 11 Ohio, 147, overruling prior cases 
 
 222, A contrary decision was made in of Howell v. Cincinnati Ins. Co. 7 Ohio, 
 
 a very similar case in New York, of a 276 ; and Fulton v. Lancaster Ins. Co. 
 
 vessel laden with gunpowder, blown up id. part 2, p. 5. 
 
 VOL. I. 51
 
 602 RISKS COVERED. [CHAP. XIIT. 
 
 consequence of injury by the carelessness or unskilfulness of the 
 sailors and some natives, such as were usually employed on like 
 service, in putting on board the cargo : ^ 
 
 And the master's landing and selling a damaged cargo, and so 
 breaking up the voyage, acting in good faith and according to 
 the apparent circumstances : ^ 
 
 And damage to tin by reason of irnproper stowage and negli- 
 gence : ^ 
 
 And loss of goods on board of a sloop at St. Kitts, on the way 
 to be loaded on board of the ship, the goods being lost by the 
 wreck of the sloop through the carelessness or mismanagement 
 of the mate of the ship and the men having charge of it :* 
 
 And loss by the plug being negligently left out of the water- 
 pipe of a steamboat : ^ 
 
 And loss in consequence of the vessel having, after the risk 
 had commenced, become unseaworthy, or remained so, through 
 the negligence or mistake of the master: ^ 
 
 And loss by the vessel being blown over, in consequence of 
 the master's discharging ballast : '^ 
 
 And loss on a vessel by being blown over through want of skill 
 in the mechanics employed on a marine railway on which it is 
 hauled up for repairs, there being no fault or negligence of the 
 owner or master in employing the mechanics : ^ 
 
 And a loss in consequence of a press-gang impressing two 
 mariners sent on shore to make fast a line : ^ 
 
 And a loss by the master's contravening a penal law by sailing 
 without convoy, without the privity of the owner : ^"^ 
 
 And occasion given for the loss by the master's persisting in 
 
 1 Redman v. Wilson, 14 Mees. & W. 7 Sadler v. Dixon, 8 Mees. & W. 
 Exch. 476. Exeh. 895; Dixon v. Sadler, 5 id. 
 
 2 Jordan v. Warren Ins. Co. 1 Stor. 414. 
 
 C. C. 342. 8 Ellery v. New England Mar. Ins. 
 
 3 Georjzia Ins. & Trust Co. v. Dawson, Co. 8 Pick. Mass. 14. 
 
 2 Gill, Md. 365. 9 Hodgson v. Malcolm, 5 Bos. & P. 
 
 4 Walker r. Maitland. 5 Barnew. & 336. Sir J. Mansfield, C. J., dissenting. 
 Aid. 171. 10 Carstairs v. AUnutt, 3 Campb. 497; 
 
 5 Dupeyre v. Western Mar. & Fire Metcalf v. Parry, 4 id. 123; Cohen v. 
 Ins. Co. 2 Rob. La. 457. Hinckley, 1 Taunt. 249 ; Henderson v. 
 
 6 See cases cited supra. No. 733 ; Hinde, id. 250, n. ; and see 1 Arnould, 
 Holdsworth v. Wise, 7 Barnew. & C. Mar. Ins. 719. 
 
 794.
 
 SECT. II.] ACTS OF THE ASSURED AND HIS AGENTS. 603 
 
 asserting and maintaining the rights of his owners and a national 
 right in good faith on reasonable grounds, against threats of law- 
 less violence; as where the master persisted in the seal-fishing 
 business near the Falkland Islands, notwithstanding a prohibition 
 and threats of violent interposition by Vernet, who claimed to be 
 governor of the Islands by virtue of an appointment under the 
 government of Buenos AyJ^s, whose jurisdiction was denied by 
 the United States.^ 
 
 Such are the results of the jurisprudence on this subject, 
 whereby the doctrine, though for a time negatived and in sus- 
 pense, is at length definitively established, that, where there is no 
 express stipulation to the contrary, and no prior forfeiture of the 
 policy, the insurers are liable for loss by the direct operation of a 
 peril insured against upon the subject, though it is occasioned 
 through the mistake, negligence, or carelessness of the master, 
 acting in good faith, or of the crew, where a competent master 
 and crew were provided in the outset. This is so where the 
 master and crew are the same that were originally provided, 
 and, for a still stronger reason, where the subject has been 
 transferred to the care of strangers in consequence of disasters. 
 
 1050. This doctrine is limited to the acts and neglects of the 
 master and crew as such, in conducting the voyage, or in charge 
 of the subject. It intercepts and prevents a forfeiture of the 
 insurance by reason of unseaworthiness resulting from, or con- 
 tinuing by reason of, carelessness or mistake of the master or 
 crew, but it does not prevent a forfeiture by deviation^ which is 
 in effect a violation of an express stipulation of the policy, im- 
 plied by the mere description of the voyage. Nor does it prevent 
 a forfeiture by a non-compliance with any express stipulation by 
 an act or neglect of the master and men appointed by the 
 assured. 
 
 1051. The insurers are not answerable for loss by acts done in 
 bad faith, and in contravention of laic, or for loss by inalversation, 
 
 1 Williams v. Suffolk Ins. Co. 3 was notified to him by a belligerent 
 Sumn. C. C. 270; S. C. 13 Pet. 415. cruiser, there being in fact no blockade 
 See also the case of the Ilenrick and legally maintained at the time. 
 Maria, 1 C Rob. Adm. 146, where the -' Natchez Ins. Co. v. Stanton, 10 
 master persisted in proceeding to his IMiss. 340 ; and cases on deviation gen- 
 port of destination after its blockade erally, c. 11.
 
 604 EISKS COVERED. [CHAP. XIII. 
 
 or gross ignorance and recklessness in discharge of his trust on 
 the part of the master or other agent of the assured, except where 
 loss by barratry is covered : 
 
 As for loss by condemnation of a vessel on account of resist- 
 ance against search legally demanded, or attempt of rescue by 
 the crew, the vessel being sent in by belligerent captors for exam- 
 ination ; 1 though illegal violence may be legally resisted without 
 forfeiting the insurance -.^ 
 
 Or loss by the ship being burnt by the authorities at Marseilles, 
 the vessel having been permitted to come up to the town on a 
 false bill of health, whereby the plague was supposed to have 
 been spread among the inhabitants : ^ 
 
 Or for loss by condemnation of the vessel for an attempt 
 knowingly to violate blockade : * 
 
 Or for loss by damage to goods by a leak occasioned by a 
 water-pipe being burst, in consequence of water being carelessly 
 left in it and frozen : ^ 
 
 Or for detention in consequence of a mistake in the manifest, 
 inducing a suspicion of smuggling : ^ 
 
 Or for loss of neutral goods condemned in consequence of bel- 
 ligerent goods being mixed with them by the master, in the 
 invoice and bills of lading, as neutral : ^ 
 
 Or for loss of a vessel injured by being blown over in being 
 hauled up on a marine railway, in consequence of the captain's 
 misdescribing the shape of the vessel to the superintendent:^ 
 
 Or for loss by the master's leaving his register on shore : ^ 
 
 Or for loss by capture consequent on the master's unnecessa- 
 rily sailing in a direction off his course ninety degrees : ^° 
 
 1 Robinson v. Jones, 8 Mass. 536; 6 Bradford ?;. Levy, 2 Carr. & P. 137 ; 
 and see 9 Crancli, 63 ; and Robinson's Ry. & M. 331. 
 
 Col. Mar. 12, 18, 163. 7 Coffin v. Newburyport Ins. Co. 9 
 
 2 Williams v. SufTolk Ins. Co. 3 Mass. 436. 
 
 Sumn. C. C. 270; S. C. 13 Pet. 415; 8 Ellery v. New England Mar. Ins. 
 
 The St. Juan Baptista, 5 C. Rob. Adm. Co. 8 Pick. Mass. 14. 
 
 33. 9 Cleveland v. Union Ins. Co. 8 Mass. 
 
 3 Emerigon, torn. 1, p. 434, c. 12, 308. 
 
 s. 1 7. 10 Phyn V. Royal Exch. Ass. Co. 7 
 
 4 llarratt i>. AVise, 9 Barnew. & C. Term, 505 ; otherwise, if he fairly chooses 
 712; Winder v. Wise, 1 Dowl. & L. the less direct com-se. Brazier w. Clap, 
 240; Nay lor v. Taylor, 9 Barnew. & C 5 Mass. 1. See also Gregson v. Gilbert, 
 718. 3 Dougl. 232. 
 
 5 Siordet v. Hall, 4 Bingh. 607.
 
 SECT. II.] ACTS OF THE ASSURED AND HIS AGENTS. 605 
 
 Or if the captain grossly neglects to put into port for repairs.^ 
 The insurer may expressly assume the risk of such fraud, neg- 
 ligence, or mismanagement, as he in fact does the risk of fraud 
 by insuring against barratry. Otherwise he is not responsible 
 for loss thereby occasioned independent of the perils insured 
 against. 
 
 1052. The liability of the ship-owner for a loss on the carg-o by 
 the fault of the master and crew, does not necessarily exonerate the 
 underwriters? 
 
 This is plainly illustrated in the cases above cited, and the 
 rule sometimes inadvertently stated, that the responsibility of the 
 insurer begins where that of the ship-owner ceases,'^ is plainly 
 erroneous. In such a case, where the assured abandons the 
 goods, he is bound, as we shall see, to assign to the underwriters 
 his claim against the ship-owner. 
 
 1053. If the damage can be accounted for by the perils of the 
 seas, it will be presumed to have so happened, unless it is proved 
 to have been caused by culpable misconduct : 
 
 As where the vessel was damaged by taking the ground in the 
 shallow harbor of Newport, in England, in which vessels of like 
 draft usually took the ground at low water without injury ; it 
 appearing that, under the circumstances, the vessel's bottom 
 might have been injured without any fault of the master and 
 crew.* 
 
 1054. Whatever extent is to be given to the responsibility of 
 the assured for the acts of his agents, the doctrine will present 
 the questions, who are such, and in respect to what acts they are 
 such ; and it is a general rule, that a principal is answerable only 
 for those acts of his agent which are done in pursuance of the 
 authority, and in the exercise of the discretion, with u'hich the 
 agent is invested.^ 
 
 A master appointed by the owner of a chartered vessel is the 
 agent of the owner.^ 
 
 1055. In some instances the same jjerson acts as the agent of 
 
 1 Cuflworth V. South Carolina Ins. ^ Potter v. Suffolk Ins. Co. 2 Sumn. 
 Co. 4 Rich. So. C. 41G. C. C. 197. 
 
 2 Cullen V. Butler, 5 Maule & S.4G1. 5 See infra, c. 23, s. 2 and 3. 
 
 3 Natchez Ins. Co. v. Stanton, 10 6 Pervis v. Tunno, 1 Brev. So. C. 
 Miss. 340, and in divers other cases. 261. 
 
 51*
 
 606 EISKS COVERED. [CHAP. XIII. 
 
 both parties, which g-ives rise to the question, in what respects and 
 hy what acts he represents one or the other. 
 
 An agent of a life insurance company, who acted for the com- 
 pany in his neighborhood, was requested by the person proposing 
 a life, to do what was necessary in effecting the policy. The 
 agent did not refer to the physician required by the rules and 
 regulations of the company ; and the question was made, whether 
 he was to be considered the agent of the assured or of the under- 
 writers. In this particular, he was to be considered the agent of 
 the assured.^ 
 
 1056. The owner of a ship constitutes the master and mariners 
 his agents for the navigation of the ship, and thereby renders 
 himself answerable for their conduct in this respect ; but if, while 
 they are engaged in this employment, they commit theft, or do an 
 act of violence which is nowise connected ivith this employment, 
 and is not an act done in pursuance and as a part of such em- 
 ployment, this does fiot concern the oivner. 
 
 This distinction is recognized in many instances; but the 
 principles of its application to particular cases do not seem to 
 have been very definitely settled. It is plain that the master is 
 an agent of the owners, both of the ship and the cargo, to more 
 purposes than the mariners are so. Chief Justice Gibbs has also 
 glanced at a distinction, in this respect, between the owners of 
 the ship and the owners of the cargo. Speaking of a loss by the 
 misconduct of the master and mariners, he says : " It is extremely 
 hard that the owner of goods should be responsible for a loss 
 occasioned by an act in which he did not concur, and by which 
 he was alone the sufferer." ^ Sir William Scott notices the same 
 distinction.^ But upon what principles, and to what extent, such 
 a distinction is to be made, has not been definitely determined. 
 
 The owners of the ship are the agents of the shipper for trans- 
 porting the goods, for which purpose they employ other agents, 
 namely, the master and mariners, for whose conduct in this 
 employment they are answerable in a greater or less degree to 
 the shipper; and, as before remarked,"* the liability of the ship- 
 
 1 Everett v. Desborough, 5 Bingh. 3 The Adonis, 5 C. Rob. Adm. 
 603. ° 256. 
 
 2 Scares v. Thornton, 7 Taunt. 627 ; 4 Supra, No. 1052. 
 1 J. B. Moore, 373.
 
 SECT. II.] ACTS OF THE ASSURED AND HIS AGENTS. GOT 
 
 owner to the shipper does not negative that of the underwriters 
 on the cargo, though it is occasionally said or implied by judges 
 that it does so.^ In the cases already mentioned, and those to be 
 noticed under barratry, where the insurers are liable for loss by 
 the perils insured against through the negligence or misconduct 
 of the master, the latter is responsible in damages to the ship- 
 owner, and both the ship-owner and master are answerable to the 
 shipper, and on payment of the loss on the goods, the insurer is 
 entitled to an equitable assignment of the claim against the ship- 
 owner and master, as will more distinctly appear in the chapter 
 on total loss. 
 
 1057. Where no peril expressly insured against svpervenes, the 
 insurers are not liable for loss or damage occasioned bi/ the fraud, 
 negligence, or mismanagement of the master or mariners, or any 
 other ao;ent of the assured : ^ 
 
 As in case of blamable neglect of the master to transship the 
 cargo, and thereby earn freight, after his vessel has been wrecked ;^ 
 .which loss is incurred only where the sum to be paid would be 
 less than that by the original ship 'A 
 
 Or in case of property insured as neutral not being claimed as 
 such in a foreign prize court ;^ unless, under the right of aban- 
 donment, the master or other person having charge of the subject 
 is the agent of the insurers and not of the assured : 
 
 Or in case of the voyage being broken up and the goods sold 
 by the consignee on the ship being stranded, instead of being 
 forwarded in lighters or by the same ship after it was got afloat.^ 
 
 No peril expressly insured against supervenes after such mis- 
 
 1 Cleveland v. Union Ins. Co. 8 Mass. ^ SchiefTelin v. New York Ins. Co. 9 
 308. Johns. N. Y. 21 ; Bradhurst r. Colum- 
 
 2 Molloy, b. 2, c. 2, s. 4 ; Abbott, c. bian Ins. Co. id. 17. 
 
 5 ; Jacobsen's Sea Laws, 9.5, b. 2, c. 1 ; * Centre v. American Ins. Co. 7 Cow. 
 Tanner v. Bennett, Ry. & M. 182. In N. Y. 564 ; American Ins. Co. v. Centre, 
 Great Britain the owners are answer- 4 Wend. N. Y. 45. 
 able to the shippers for damage of this ^ Vanderheuvel v. United Ins. Co. 2 
 description only to the amount of the Johns. Cas. N. Y. 127; Gardere v. Co- 
 value of the ship and freight. 7 Geo. lumbian Ins. Co. 7 id. 514; Bohlen v. 
 II. c. 17; Abbott on Shipp. 262. The Delaware Ins. Co. 4 Binri. Penn. 444. 
 law in this respect is the same in Mas- ^ Ludlow v. Columbian Ins. Co. 1 
 sachusetts. Stat. 1818, c. 122 ; Revised Johns. N. Y. 335. 
 St. c. 32, s. 1 ; Gen. St. c. 52, s. 18.
 
 G08 RISKS COVERED. [CHAP. XIII. 
 
 take or negligence of the consignee of the cargo, to whom, under 
 such circumstances, less, rather than greater, indulgence is shown 
 than to the master.^ 
 
 1058. The underwriters are liable for losses by the perils of the 
 seciy occasioned by the neg-lig-e7ice or mistakes of a duly commis- 
 sioned public pilot, or those (f mechanics and laborers properly in 
 charge of the vessel. 
 
 On this subject the following decision was given in the Court 
 of King's Bench. A ship entered the port of Liverpool in charge 
 of a pilot, who, in the absence of the master on business of the 
 ship, and against the advice of the master, took her up to the 
 pier of the dock basin, and fastened her there by a rope to the 
 shore, intending that she should take the ground when the tide 
 fell, which she did, and falling over on her side was bilged. In 
 a suit on the policy upon the cargo, for damage occasioned by 
 the bilging, Lord Ellenborough said: " The question is, whether 
 what has happened is to be considered as having happened 
 through the misconduct of the master and mariners, from which 
 the underwriter is exempted. Now to make the pilot the repre- 
 sentative of the master, and consequently to exempt the under- 
 writer from liability for his acts, it must be shown that there is a 
 privity between the master and the pilot, so that one may be 
 considered as the representative or agent of the other. But does 
 the master appoint the pilot? Certainly not. The regulations 
 of the pilot act impose a penalty upon the master of every ship, 
 which shall be piloted by any other person than a pilot duly 
 licensed, within certain limits, for which pilots are appointed. 
 Is it just that the master should be answerable for the miscon- 
 duct of a person whose appointment the provisions of the law 
 have taken out of his hands? There is no privity between them. 
 It appears to me that the underwriter is liable." ^ 
 
 So the underwriters were held, in Missouri, liable for the loss 
 of a steamboat, which was burnt when in dock for repairs, by the 
 negligence of the workmen.^ 
 
 1059. The consignees of the cargo represent the assured on that 
 subject more fully than the master does, merely as such. 
 
 1 See infra, No. 1059. 3 St. Louis Ins. Co. v. Glasgow, 8 Mo. 
 
 2 Carruthers v. Sydebotham, 4 Maule 713. 
 
 & S. 77.
 
 SECT. II.] ACTS OF THE ASSURED AND HIS AGENTS. G09 
 
 It was ruled by Abbott, C. J., afterwards Lord Tenderden, 
 that, where the agent of the owner of a vessel that had been 
 stranded at the island of St. Thomas, in the West Indies, neg- 
 lected to have it hove down, and examined, and a total loss 
 ensued which might have been avoided, the insurers were not 
 liable.i 
 
 Goods being insured from New York to Newbern, in North 
 Carolina, the vessel was driven ashore .at Ocracoke Point, about 
 eight miles from Newbern, where the consignees ordered the 
 goods to be sold, instead of having them carried forward, as they 
 might have been, to Newbern, in the ship, after she was got 
 afloat, or in lighters. The voyage was thus broken up, and the 
 goods sold at a great loss ; but the court was of opinion, that the 
 assured had no claim upon the underwriters, there being no evi- 
 dence of any actual damage to the goods in consequence of the 
 vessel's running aground.^ 
 
 A shipment of arms and ammunition being made at London 
 for Madeita, in 1829, the consignee gave the governor of the 
 island notice that such an importation was expected, under the 
 impression that, unless such notice should be given, the articles 
 might be seized and confiscated as having been shipped in pur- 
 suance of some revolutionary project, and that he himself might 
 be imprisoned as having a concern in the importation. He ex- 
 pected, also, by this step, to obtain a restoration of the articles if 
 they should be seized. The articles were included in the mani- 
 fest and were not intended to be introduced clandestinely. They 
 were seized before they had been landed. The insurers objected 
 to the loss, on the ground that, but for the previous notice given 
 by the consignee, the articles would not have been seized until 
 after having been landed, in which case they should not have 
 been liable for the loss. Lord Tenterden and his associates held 
 that the insurers were liable.-^ 
 
 Goods consigned to Bremen were accepted by the consignees 
 short of the port of destination, which occasioned the additional 
 expense of lighters to transport them thither. Mr. Justice Yeates 
 said : " These expenses must be ascribed to the agents of the as- 
 
 1 Tanner v. Bennett, R)'. & M. 182. 3 Wilbraham v. Wartnaby, Lloyd & 
 
 2 Ludlow V. Columbian Ins. Co. 1 W. Cas. 144. 
 Johns. N. Y. 335.
 
 610 RISKS COVERED. [CHAP. XIII. 
 
 sured, against whose acts there was no stipulated indemnity ; " 
 and this was the opinion of the court.^ 
 
 1060. We have seen that, with the exception of unlawful 
 trade, parties may agree for indemnity against the acts of the 
 government of the country to which the assured, or both the 
 assured and the insurers, belong ; ^ whence it follows, that the 
 funclionaries of the assurecVs own government are not his agents 
 to the effect of rendering him responsible for their authorized acts 
 in exoneration of his underwriters. 
 
 Judicial functionaries are not excepted from this rule.^ 
 Accordingly, it is not true, as has been sometimes alleged,* 
 
 that every citizen is presumed to assent to the acts of his own 
 
 government. 
 
 1061. The insurers are held, both in England and the United 
 States, to be liable for loss by fire occasioned by negligence.^ 
 
 SECTION III. BARRATRY. % 
 
 1062. Marine policies usually cover the risk oi barratry ; which 
 is an unlaivful, fraudulent, or dishonest act of the master, mariners, 
 or other carriers, or of gross ?nisconduct, or very gross and culpa- 
 ble negligence, contrary, in either case, to their duty to the oivner, 
 and that might be prejudicial to him or to others interested in the 
 voyage or adventure.^ 
 
 1 Low ?i. Davy, 5 Binn. Penn. 595. wicke defines it to be " an act of wrong 
 
 2 Supra, c. 10, No. 913, 914, 916. done by the master against the ship and 
 
 3 Francis v. Ocean Ins. Co. 6 Cow. goods." Lewen v. Suasso, Postleth. 
 N. Y. 404 ; Ocean Ins. Co. v. Francis, Diet., art. Assurance. Mr. Justice As- 
 2 Wend. N. Y. 64. ton says, " It comprehends every species 
 
 4 Hornby y.Houhlitch, 1 Term, 93, n. of fraud, knavery, or criminal conduct 
 
 5 See cases supra. No. 1049 ; also in- in the master, by which the owners or 
 fra, s. 7, contra, Grim v. Phoenix Ins. freighters are injured." " Whatsoever," 
 Co. 13 Johns. N. Y. 451, outweighed says Lord Mansfield, " is, by the master, 
 by other cases, 3 Kent, Comm. 3d ed. a cheat, a fraud, a cozening, or a trick, 
 304, n. a. is barratry." Vallejo v. Wheeler, Cowp. ' 
 
 6 Mr Justice Willes defines barratry 143. Chief Justice Tilghman gives the 
 to be" every species of fraud or knavery same definition in Wilcocks y. Union 
 in the master, by which the freighters Ins. Co. 2 Binn. Penn. 574. Lord 
 or owners are injured." Lockyer v. Mansfield says, " I take the word bar- 
 Offley, 1 Term, 252. And Lord Hard- ratry to have been originally introduced
 
 SECT. III.] ■ BARRATEY. 611 
 
 1063. Accordingly, a mere mistake, without dishonesty or a 
 violation of duty, is not barratry : 
 
 As where the master honestly misconstrues his instructions, 
 or commits an error as to the best mode of carrying them into 
 effect : i 
 
 Or deviates through ignorance, without any fraudulent in- 
 tent : 2 
 
 Or violates a blockade through ignorance of the law.^ 
 
 1064. Barratry may be committed by persons carrying goods by 
 land. 
 
 Thus goods being insured " from London by land carriage to 
 Harwich, and thence by packet to Gothenburg," were lost be- 
 tween London and Harwich by the fraud and negligence of the 
 carriers. Lord Ellenborough said, " The word barratry was large 
 enough to include every species of fraud committed by the 
 wagoner or servants." * 
 
 1065. By our law, any one may be insured against barratry 
 committed by another. 
 
 This stipulation of a policy of insurance stands on the same 
 footing as the bond of indemnity so frequently required by the 
 government, as well as by private corporations and individuals, 
 
 by the Italians. In the Italian diction- unlawful or fraudulent purpose, con- 
 
 ary, barratare means to cheat." Cowp. trary to their duty to their owners, and 
 
 154. " It is derived from barat, that is, whereby the owners sustain an injury." 
 
 fraud, dolus." Knight i;. Cambridge, 1 Park, 7th London ed. 137, says it is 
 
 Strange, 581. See also S. C. 8 Mod. "any act of the master or mariners of 
 
 230 ; 2 Ld. Raym. 1349 ; Phyn v. Royal a criminal or fraudulent nature, or which 
 
 Exch. Ass. Co. 7 Term, 505. Chief is grossly negligent, tending to their own 
 
 Justice Lee said : " To make barratry, benefit, to the prejudice of the owners, 
 
 it must be something of a criminal without their consent." On the conti- 
 
 nature, as well as a breach of contract." nent of Europe misconduct or negli- 
 
 Stamma v. Brown, 2 Strange, 1173. gence of the master, though without 
 
 See also S. C. 8 East, 136, cited by fraud, is considered to be barratry. 1 
 
 Lord Ellenborough from MS. Lord Emer. c. 12, s. 3. 
 
 Ellenborough says, " Barratry includes ^ Bottomly v. Bovill, 5 Barnew. & C. 
 
 every species of fraud in the relation of 210 ; 7 Dowl. & R. 702. 
 
 the master to his owners, by which the 2 Phyn v. Royal Exch. Ass. Co. 7 
 
 subject-matter insured might be endan- Term, 505. 
 
 gered." Earle v. Rowcroft, 8 East, 126. 3 Dederer v. Delaware Ins. Co. 2 
 
 Marshal, c. 12, s. 6, p. 515, says barra- Wash. C. C. 61. 
 
 try " may be defined to be any act com- * Boehm v. Combe, 2 Maule & S. 
 
 mitted by the master or mariners, for an 1 72.
 
 612 EISKS COVERED. [CHAP. XIII. 
 
 of treasurers, cashiers, secretaries, and other officers and agents. 
 The master or any mariner may be insured against barratry.^ 
 
 1066. A deviation or delay for the captain'' s private purposes, is 
 barratry : 
 
 As where a ship was chartered for a voyage from London to 
 Seville, on which voyage goods were shipped and insured, and 
 the captain, with the privity of the owner, put into Guernsey to 
 take in brandy and wine on his own account, without the knowl- 
 edge of the charterer : ^ 
 
 And in case of the master on a voyage to New Orleans drop- 
 ping anchor in the Mississippi and going in his boat up to New 
 Orleans to inquire about the market there for a private adventure 
 of his own, and finding he could not dispose of it there, sailing 
 for the Havana.^ 
 
 1067. Where a loss is incurred in consequence of an intentional 
 contravention of laiv on the part of the master or mariners, it 
 comes within the risk of barratry. If the loss happens immedi- 
 ately by a peril insured against, in consequence of an unintentional 
 contravention of law by the master or men, without fraud or 
 exceeding recklessness, or very gross negligence and violation of 
 duty, the underwriters are answerable for it as happening by such 
 perils, if the same is insured against, though the insurance is not 
 against barratry, provided the master and officers have such 
 knowledge of the well-known customs and regulations relative 
 to the conduct of the adventure as is requisite in order to render 
 the ship seaworthy : * 
 
 1068. Trading with the public enemy is a barratrous act, even 
 though done with the purpose of benefiting the owners : ^ 
 
 So is collusion by the captain with an enemy privateer, to have 
 his ship captured : ^ 
 
 And fraudulently sailing for a port of the enemy : '^ 
 And resistance to search when rightfully demanded by a bel- 
 ligerent : ® 
 
 1 Stone V. National Ins. Co. 19 Pick. 5 Earle v. Rowcroft, 8 East, 126. 
 Mass. 34. See this case infra in this section. 
 
 2 Vallejo V. Wheeler, Cowp. 143 ; S. <3 Archangelo v. Thompson, 2 Campb. 
 C. more fully stated, LoflTt, 645, and see 620. 
 
 a statement of the case, 1 Johns. N. Y. ''' Goldsmidt v. "Whitmore, 3 Taunt. 
 
 234, n. ; 235, n. 508. 
 
 3 Ross r. Hunter, 4 Term, 33. ^ Brown v. Union Ins. Co. of New 
 
 4 Supra, s. 2., No. 1049. London, 6 Hall's Law Journal, 526.
 
 SECT. III.] BARRATRY. 613 
 
 And the rescue of a neutral vessel detained and sent in for 
 examination by a belligerent ; being, in effect, a resisting of the 
 right of search : ^ 
 
 And wilful violation of blockade : ^ 
 
 Or of an embargo : ^ 
 
 And in case of the captain's going off the course and fraudu- 
 lently selling the vessel.* 
 
 In case of a voyage from St. Petersburg to London, the ship 
 having put into Yarmouth for repairs, the captain left there and 
 went to visit his family in Ireland, and did not return to Yar- 
 mouth until about six weeks after the vessel had been repaired 
 and in a state to have proceeded on her voyage. Subsequently, 
 having concealed the vessel's papers, he sailed for the Azores 
 with forged papers. Defence of deviation by delay, prior to 
 the barratrous departure from the course of the voyage, being 
 alleged, Mr. C. J. Dallas left it to the jury whether the captain 
 had meditated, and begun the preparations for the execution of, 
 his fraudulent project during his delay in Ireland ; and they 
 found a verdict that this delay was barratrous, which verdict 
 was approved by the court.^ 
 
 1069. Cruising- illegally and contrary to instructions is barratry. 
 In case of letters of marque being taken as an inducement to 
 
 seamen to ship, without any intention, or the clearance requisite 
 by statute, to cruise, the captain was instructed to proceed to his 
 port of destination with all expedition. After getting to sea, 
 and with the consent of a major part of his crew, he commenced 
 cruising, and plundered one American vessel, and took another 
 as prize to Bermuda, where his ow;i vessel was wrecked. This 
 was held to be barratry.^ 
 
 1070. In case of barratrous deviation under a policy against 
 barratry, the underivriters subsequently remain liable on the policy 
 notwithstanding such deviationJ 
 
 1 Dederer v. Delaware Ins. Co. 2 stated by Lord EUenborough, 8 East, 
 Wash. C. C. 61. See also Wilcocks v. 138. 
 
 Union Ins. Co. 2 Binn. Penn. 574. •* Dixon v. Reid, 5 Barnew. & Aid. 
 
 2 Calhoun v. Ins. Co. of Pennsylva- 597 ; 1 Dowl. & R. 207. 
 
 nia, 1 Binn. Penn. 293 ; Vos v. United 5 Roscow v. Corson, 8 Taunt. G84. 
 Ins. Co. 2 Johns. Cas. N. Y. 180. 6 Moss v. Byrom, 6 Term, 379. 
 
 3 Robertson r. Ewer, 1 Term, 127, as "^ Vallejo v. Wheeler, Cowp. 143; 
 
 Lofft, 645; Park, Ins. 138. 
 
 52
 
 614 RISKS COVERED. [CHAP. XIII. 
 
 1071. Theft, embezzlement, and wilful destruction of the prop- 
 erty insured, are in their nature barratrous acts ; ^ 
 
 1072. So also is an attempt to smuggle goods, either at a home 
 port,2 or in a foreign port.^ 
 
 1073. Where the master deliberately commits a violation of 
 law, ivhereby the parties to the adventure obviously may be prej- 
 udiced, it is barratry, though he has not his private advantage 
 especially in view to their injury, and even though he may intend 
 their benefit. 
 
 During war between England and the Netherlands, an English 
 vessel was insured for a voyage to the coast of Africa and the 
 West Indies. The captain, being on the African coast and not 
 finding a good market at the British settlements, proceeded to 
 D'Elmina, a Dutch fort, where he exchanged his cargo. His 
 object in going to D'Elmina was to purchase a cargo cheaply 
 and expeditiously. Besides his regular pay, he was entitled to 
 commissions on his purchases. The vessel was seized and for- 
 feited, in consequence of this illegal act. 
 
 Lord Ellenborough said : " It has been asked, how this act of 
 the captain in going to D'Elmina, in order to purchase his cargo 
 more cheaply and expeditiously for his owners, is a breach of 
 trust, as between him and them? Now I conceive the trust 
 reposed in the captain of a vessel obliges him to obey the written 
 instructions of his owners ; and where his instructions are silent, 
 he is at all events to do nothing but what is consonant to the 
 laws of the land, whether with or without a view to their advan- 
 tage. I cannot, for a moment, suffer it to be supposed that a 
 captain is not guilty of a breach of trust to his owners, who does 
 an act which is injurious to them." 
 
 It has been strongly contended, that if the conduct of the mas- 
 ter, although criminal in respect to the state, were, in his opinion, 
 
 1 Falkner v. Ritchie, 2 Maule & S. The report of this case does not state 
 290 ; Marcardier v. Chesapeake Ins. what was the act of the captain, but in 
 Co. 8 Cranch, 39 ; and see cases on bar- Stamma v. Brown, 2 Strange, 1 1 73, and 
 ratry generally. Vallejo v. Wheeler, Cowp. 143, it ap- 
 
 2 Pipon V. Cope, 1 Campb. 434 ; Val- pears to have been an attempt to evade 
 lejo V. Wheeler, Cowp. 143. duties. See also American Ins. Co. v. 
 
 3 Knight V. Cambridge, 1 Strange, Dunham, 12 Wend. N. Y. 463 ; 15 
 581; 8 Mod. 230; 2 Ld. Raym. 1349. id. 9.
 
 SECT. III.] BARRATRY. 615 
 
 likely to advance his owner's interest, and intended by him so, 
 it will not be barratry. But to this we cannot assent.^ 
 
 1074. A gross and palpable violation of trust by the captain^ 
 and a reckless disregard to his duty^ is barratry, though without 
 any view to his own particular advantage to the prejudice of his 
 principals : 
 
 As in case of the captain's sailing with an unfavorable wind, 
 contrary to the directions of the pilot, having before refused 
 to sail, when the wind was fair ; and his disregarding the pilot's 
 instructions in other respects, though informed of the conse- 
 quences ; and his conduct in cutting the cable so that the ship 
 drifted on the rocks ; Lord Ellenborough remarking that " it has 
 been solemnly decided, that a gross malversation by the captain, 
 in his office, is barratrous." ^ 
 
 " If the master, knowing the inevitable danger of capture if 
 he proceeded on his voyage, should notwithstanding continue it, 
 and expose the vessel to certain seizure, this will be barratry." ^ 
 
 " K," says Mr. Justice Johnson, " a master sees another in the 
 act of scuttling or firing the ship, and will not rise from his berth 
 to prevent it, he is, prima facie, chargeable with barratry ; al- 
 though a mere nonfeasance, it is a breach of trust, a fault, an 
 act of infidelity to his owners." * 
 
 The doctrine of the preceding cases is supported by divers 
 others.^ 
 
 Some cases have supported a doctrine different from the two 
 last general propositions above stated : 
 
 As where the master of a neutral vessel covered belligerent 
 property as neutral : ^ 
 
 And where the master was induced, by the offer of a reward, 
 to go off" the course of his voyage to rescue a ship that had been 
 run away with.^ 
 
 1 Earle v. Rowcroft, 8 East, 126. v. Byrom, 6 Term, 379 ; Brown v. Union 
 
 2 Hayiuan v. Parish, 2 Campb. 149. Ins. Co. of New London, 6 Hall, Law 
 
 3 Richardson v. Ma-ne Ins. Co. 6 Journ. 526 ; Calhoun v. Ins. Co. of 
 Mass. 102, at pp. 117, 121; and see also Pennsylvania, 1 Binn. Penn. 293, per 
 Goldsmidt v. Whitmore, 3 Taunt. 508. Brackenridge, J. 
 
 * Patapsco Ins. Co. v. Coulter, 3 Pet. 6 Crousillat v. Ball, 4 Dall. Penn. 
 
 222. 294. 
 
 5 Robertson i;. Ewer, 1 Term, 127; 7 Hood's Ex'rs v. Nesbitt, 2 Dall. 
 
 Stamma v. Brown, 2 Strange, 1173; Penn. 137 ; 1 Yeates, Penn. 114. 
 Vallejo V. Wheeler, Cowp, 143 ; Moss
 
 616 RISKS COVERED. [CHAP. XIII. 
 
 In each of these cases the master had no special view to his 
 own benefit to the prejudice of his owners ; and on the ground, 
 as has been remarked, of its being his " mistake," rather than 
 " gross malversation," ^ these acts were held not to be barratry. 
 But the cases seem to be instances of such gross violation of 
 duty, to the evident jeopardy of the interest of the owners, as to 
 come within the above authoritatively established construction of 
 barratry. 
 
 1075. The warranty of neutral property as lawful trade does 
 not diminish or affect the risks assumed by the underwriters 
 against barratry. 
 
 Under a policy on the ship Ann, " warranted free from any 
 charge, damage, or loss, which may arise in consequence of 
 seizure or detention of the property, for or on account of any 
 illicit or prohibited trade," the master, without the knowledge of 
 his owner, privately conveyed a quantity of gunpowder on board 
 of the vessel on his own account, of which no mention was made 
 in the log-book. The vessel was seized and condemned at St. 
 Domingo, on account of having this article on board, which was 
 there prohibited. The court said, " We have no doubt on the 
 conduct of the master ; it was certainly barratry." ^ 
 
 In an action on a policy upon goods warranted neutral, barra- 
 try being one of the risks insured against, Tilghman, C. J., said, 
 that, " taking the whole instrument together, he thought it most 
 reasonable so to construe it as to leave the insurance against 
 barratry in full force. On this principle the warranty wOl imply, 
 that as to all acts to be done by the assured themselves, or by 
 their agents, except only such as amount to barratry, the neutral 
 character shall be preserved." ^ 
 
 If the captain smuggles goods without the consent of his 
 owners, it is barratry, though the policy is " upon all lawful 
 trade," for, said Lord Kenyon, "the words lawful trade, in 
 the policy, mean the trade in which the ship is sent by the 
 owners." ^ 
 
 1076. If the owners are in fault in not preventing any act of the 
 master or mariners^ though they do not directly assent to it. the act 
 is not barratry : 
 
 1 Wiggin V. Amory, 14 Mass. 1. 3 Wilcocks v. Union Ins. Co, 2 Binn. 
 
 2 Suckley v. Delafield, 2 Caines, N. Y. Penn. 574. 
 
 222. 4 Haveloc v. Hancil, S Term, 277.
 
 SECT. III.] BARRATRY. 617 
 
 As in a case in which it appeared that the mariners had three 
 limes successively subjected a vessel to the danger of seizure 
 and forfeiture, by smuggling, though without the knowledge of 
 the owners. The loss by these seizures being claimed. Lord 
 EUenborough said : " This is a clear case of crassa negligentia 
 on the part of the assured. It was his duty to have prevented 
 these repeated acts of smuggling by the crew. By his neglecting 
 so to do, and allowing the risk to be monstrously enhanced, the 
 underwriters are discharged." ^ 
 
 1077. Barratry being an act done against the owners of the 
 ship, the assured cannot recover for a loss by a barratrous act of the 
 master done with the consent of the owner, or the person ivho is 
 considered to be such, in respect of barratry ; for, says Lord INIans- 
 field, " nothing is so clear as that no man can complain of an act 
 to which he himself is a party." ^ In such case the act cannot 
 be said to be done against the owner. 
 
 The captain of a ship, a Frenchman, with the concurrence of 
 one of the owners, also a Frenchman, by means of new bills of 
 lading, and with the design of embezzling the property, put the 
 cargo into the hands of a person named as consignee in the new 
 bill of lading, to whom it had not been consigned. This conduct 
 was considered to be barratry in France, but in England it was 
 held not to be so. Lord Mansfield said : " The point to be con- 
 sidered is, whether barratry can be committed against any but 
 the owners of the ship ? It is clear, beyond contradiction, that 
 it cannot. For barratry is something contrary to the duty of the 
 master and mariners, the very terms of which imply that it must 
 be in the relation in which they stand to the owners of the ship. 
 An owner cannot commit barratry ; he may make himself liable 
 by his fraudulent conduct to the owner of the goods, but not as 
 for barratry. Barratry cannot be committed against the owner, 
 with his consent." ^ 
 
 1078. A ship being insured in behalf of the owner, the under- 
 writers are liable under a policy in his favor, for an act of barratry 
 committed by the master, with the privity of the freighter ^ 
 
 1079. So, vice versa, where a chartered ship is navigated by the 
 
 1 Pipon V. Cope, 1 Campb. 434. * Boutflower v. Wilmar, 2 Selwj'n, 
 
 2 Cowp. 155. N. P. 590. 
 
 3 Nutt V. Bourdieu, 1 Term, 323. 
 
 52*
 
 618 EISKS COVERED. [CHAP. XIII. 
 
 charterer at his own risk, he having- the appointment of the master, 
 a deviation by the master, with the privity of the owner, but without 
 the knowledg-e of the charterer, is barratry ^ in respect of others 
 than the owner. 
 
 1080. The circumstance of the captain's acting as agent of his 
 owner, or of the shippers, in another capacity, is considered by 
 Emerigon ; '^ who says, that, in such case, his acts as consignee 
 of the cargo, or factor, inust be distinguished from those which he 
 does in his capacity of captain ; for it is only in this capacity that 
 he can commit barratry. 
 
 This distinction was considered in a case decided in New 
 York. The captain, being also consignee of the cargo insured, 
 was supposed fraudulently to have sunk his vessel at the island 
 of Santa Cruz. " The fraud of the master," said Mr. Justice 
 Kent, " was not committed in his character of consignee of the 
 cargo, but in his character of master of the vessel. He could not 
 lay aside his character and responsibility as master, until the 
 vessel had performed her voyage, and arrived at her port of desti- 
 nation." 3 
 
 Under a policy on the cargo of the schooner Despatch, from 
 Havana to New Orleans, and at and from thence to New York, 
 the captain, being supercargo and sole consignee of the cargo, 
 consisting partly of specie, on arriving at New Orleans, converted 
 the specie to his own use, abandoned the voyage, and absconded. 
 The assured were owners of both the vessel and cargo. It was 
 contended, that " there could not be barratry in relation to the 
 cargo, when it was owned by the owner of the vessel ; and also, 
 that the act of the captain ought to be referred to his character 
 of consignee of the cargo. But the court said, " This was clearly 
 a breach of duty in his character of master, though he had a 
 superadded character of consignee." * 
 
 1 Vallejo V. Wheeler, Cowp. 143 ; Johns. N. Y. 40. Mr. Justice Kent is 
 and see M'Intyre v. Browne, 1 Johns, reported to have said: " It is a question, 
 N. y. 234, n. whether even barratry with the concur- 
 
 2 Emerigon, torn. 1, p. 370, c. 12, rence of the owners of goods will exempt 
 s. 3. See also Casar. Disc. 1, n. 75, 76. the insurer of goods belonging to an in- 
 
 3 Kendrick i;. Delafield, 2 Caines, nocent shipper. The English authori- 
 N. Y. 6 7. ties do, however, look very strongly to 
 
 * Cook V. Commercial Ins. Co. 11 the opinion, that the insurer would not,
 
 SECT. III.] BARRATRY. 619 
 
 1081. Tlie control and superintendence which the assured has 
 of the conduct of the mariners, and is supposed to exercise 
 through the master, and the little trust that is ordinarily and 
 necessarily reposed in them, render the assured answerable for 
 their conduct in a much greater degree than he is for that of the 
 master; and accordingly, /Ae tw5Mrer5 are in proportion less an- 
 swerable for any breach of trust on their part, since it is the fault 
 of the assured to repose any very great trust in them. 
 
 With this distinction, an act of barratry in the mariners does 
 not differ from the same act in the master, and therefore, where 
 an act barratrous in its nature is done by the mariners, the in- 
 surers are answerable for a loss occasioned by it, if, with due pre- 
 cautions and diligence, it could not have been prevented.^ 
 
 In respect to petty thefts and embezzlements by the mariners, 
 the insurers are held not to be answerable for them, where, with 
 due vigilance, they might be prevented. Losses of this descrip- 
 tion are more usually paid by withholding wages. Still, such 
 loss may be stipulated against in the policy. 
 
 But when any crime or fraud is committed by the mariners, 
 under such circumstances that it could not have been prevented 
 by the prudence and vigilance of the assured, or his representa- 
 tive, the master, the insurers are liable for the loss under barratry 
 simply : 
 
 As v^'here the crew compelled the master to change his course 
 to bring in a prize ; ^ and in another case to return to the port of 
 departure, from an apprehension of corsairs;^ it was held that 
 the insurers were answerable. Sir R. P. Arden, Master of the 
 Rolls, remarks that this was a case of barratry in the mariners,* 
 
 in such a case, be responsible." Ken- N. Y. 563 ; King v. Shepard, 3 Stor. C. 
 
 drick V. Delafield, 2 Caines, N. Y. 73. C. 349. 
 
 I do not know of any English authorities 2 Elton v. Brogden, 2 Strange, 1264. 
 
 tothiseffect, nor is the position supported See 4 Bos. & P. 186, and Park, Ins. 
 
 by the passages in Millar, 165, 16 7, and 142, n.; Marshall, Ins. 521, 3d ed. ; 
 
 Marshall, 452, referred to by the judge, Vallejo v. AVheeler, Cowp. 143; and 
 
 which makes it not improbable that there Scott U.Thompson, 4 Bos. & P. 181; 
 
 is a mistake in the report, and that it for remarks upon Elton v. Brogden, as 
 
 ought to be, " with the concurrence of to its being a case of barratry. 
 
 the owners of the ship." 3 Driscol v. Passmore, 1 Bos. & P. 
 
 1 Pipon V. Cope, 1 Campb. 434; 200. 
 
 American Ins. Co. v. Bryan, 26 Wend. 4 DeFrise i>. Stephens, Marshall, Ins. 
 
 2d ed. 521, n.
 
 620 RISKS COVERED. [CHAP. XIII. 
 
 as it plainly was, and he thinks that the reported dictum of Lee, 
 C. J., to the contrary ,1 must be an error of the reporter. 
 
 Where four of the mariners conspired with some prisoners of 
 war on board, and overpowered the master and the rest of the 
 crew, and ran the ship ashore, it was held to be a loss by barra- 
 try.2 
 
 1082. Barratry being an act prejudicial to the owners, and 
 done without their consent, it is plain that it cannot be committed 
 by a master who is owner or part-owner of the vessel.^ 
 
 If there is any question whether he is owner, it belongs to the 
 insurers to show that he is so. It is sufficient for the assured to 
 make out the barratrous act, and the underwriters must show any 
 thing that discharges them from their agreement of indemnity.* 
 
 Where the master was general owner of the ship which he had 
 bottomried and mortgaged, but of which he had the control and 
 navigation. Lord Hardwicke held that he could not commit barra- 
 try, so as to give the assured on goods a claim against his under- 
 writers under this risk.^ 
 
 1083. The rule as to ownership in respect to barratry, as laid 
 downby Mr. Justice Story, is, that ^^ a person may be owner for 
 
 the voyage who hires the ship for the voyage, and has the exclusive 
 possession, conit)iand, and navigation of the ship" ^ 
 
 Accordingly, the case then under consideration was held not 
 to be one of barratry, because the master of the vessel chartered, 
 who was himself the owner, retained " the exclusive possession, 
 command, and management of her, and she was navigated at his 
 expense." 
 
 Lord Mansfield says ; " It is material whether the owner of 
 the goods has the direction. If the ship be let, as a house, then 
 the freighter is owner, but if it be only a covenant that the ship 
 fihall go only that voyage for the freighter, then he has only the 
 use of the vessel." ^ 
 
 1 Elton V. Brogden, 2 Strange, 1264. M'Intj're v. Browne, 1 Johns. N. Y. 
 
 2 Toulmin v. Anderson, 1 Taunt. 229. 
 
 227. 5 Lewen v. Suasso, Postleth. Diet. 
 
 3 Maroardier v Chesapeake Ins. Co. art. Assurance. 
 
 8 Cranch, 39 ; Wilson v. General Ins. « Marcardier v. Chesapeake Ins. Co. 
 Co. 1 2 Cush. Mass. 360. 8 Cranch, 39. See also Hooe v. Gro- 
 
 * Ross u. Hunter, 4 Term, 33; Stein- verman, 1 Cranch, 214. 
 back V. Ogden, 8 Caines, N. Y. 1 ; ' Vallejo v, Wheeler, Cowp. 143 ; 
 
 Lofft, 645.
 
 SECT. III.] BARRATRY. 621 
 
 The doctrine thus laid down is broader than that of Mr. Jus- 
 tice Story, as it applies to the charter of the whole ship for a 
 voyage or period, during which the charterer has the use and 
 control of the ship. In the case then before the court, the char- 
 terer hired the ship for a voyage from London to Seville and 
 back, and put it up as a general ship, and the assured and others 
 shipped goods for the voyage. It was held that the charterer, 
 and not the owner, was to be considered to be owner, in respect 
 to barratry.^ 
 
 Where the master had given his promissory note for the 
 amount of the purchase-money of a vessel, which was indorsed 
 by another person, to whom the bill of sale was made out, and 
 in whose name the vessel was registered as collateral security, it 
 was held that the master could not commit barratry;^ that is to 
 say, he was to be considered as an owner. 
 
 So it was held that, in a similar case, the owner could not 
 recover from his underwriters against barratry, indemnity for a 
 loss by a barratrous act of the master assented to by the char- 
 terer. Hobbs, the owner of a ship, chartered her to Woodman, 
 who agreed to pay a certain sum to the owner if she should be 
 lost. Woodman was to have the absolute control of the ship. 
 He consigned her to Kendal, at Rio Janeiro, " whose orders he 
 desired the captain implicitly to obey." Kendal being at Buenos 
 Ayres at the time of the ship's arrival at Rio, his partner at the 
 latter place ordered the captain to proceed to Buenos Ayres, who 
 accordingly proceeded thither, where Kendal sent smuggled 
 goods on board, in consequence of which the ship was seized 
 and condemned. Lord Ellenborough : " I clearly think the loss is 
 to be imputed to the plaintiff himself. If I give the dominion of 
 my ship to a charterer, his acts are my acts ; and in this case 
 Kendal, whose orders the master implicitly obeyed, according to 
 his instructions, was, in point of law, the agent of the assured. 
 Therefore the loss arose from his own orders, and there is no 
 pretence for imputing it to barratry." ^ It does not appear at 
 whose expense the ship was navigated in this case. 
 
 In a case decided in New York, M'Intyre, the assured, and 
 
 1 Vallejo V. Wheeler, Cowp. 143; 3 Hobbs r. Hannam, 3 Campb. 93. 
 Lofft. 645. The same doctrine is adopted in Soares 
 
 2 Barry v. Louisiana Ins. Co. 11 v. Thornton, 1 J. B. Moore, 373. 
 Mart. N. s. La. 630.
 
 622 RISKS COVERED. [CHAP. XIII. 
 
 owner of a vessel, let her to freight to Aiken and Brice, for a 
 voyage from New York to Trinidad and back, with liberty to 
 touch at Cura^oa, " excepting one half of the cabin, the privilege 
 for twenty barrels for the master and mate, and so much of the 
 hold and forecastle as was necessary for the accommodation of 
 the master and crew, provisions," &c. M'Intyre effected insur- 
 ance on the vessel for the same voyage. Brice acted as super- 
 cargo. While the vessel was proceeding on her return from 
 Trinidad towards Cura^oa, the master, at the request of Brice, 
 and on being promised one hundred dollars with indemnity to 
 himself and his owners, changed his course and went to a port 
 on the Spanish Main. A loss afterwards occurred, which was 
 claimed by M'Intyre under the risk of barratry, and the decision 
 was in his favor." ^ 
 
 In a case under a policy upon goods, a loss was claimed for 
 barratry of the master, who hired the ship at a certain sum per 
 month, the owners to keep her in repair, the master to victual 
 and man her. The master embezzled the cargo. The court 
 said : " The master was to be considered owner for the voyage." ^ 
 
 So, where it was verbally agreed that the master should have 
 the use and control of a vessel from November to May, and vict- 
 ual and man her at his own expense, the owners to be at the 
 expense of repairs, the master to pay over one half of her earn- 
 ings, it was held that this agreement made the master owner as 
 to barratry, and accordingly, that " the offence of barratry could 
 not be committed by him."^ 
 
 The assured effected a policy on the freight assigned to them 
 by the owner of the vessel, as security for advances, intending, 
 and in the legal proceedings alleging the insurance to be made 
 
 1 M'Intyre v. Browne, 1 Johns. N. Y. v. Colvin, 3 Bingh. N. c. 17 ; Christie v. 
 229. Lewis, 2 Brod. & B. 410 ; Tate v. Meek, 
 
 2 Hallet V. Columbian Ins. Co. 8 8 Taunt. 280 ; Yates v. Railston, id. 
 Johns. N. Y. 272. And a charterer 293; Yates w. Maynell, id. 302; New- 
 having the absolute control is the person berry v. Colvin, 7 Bingh. 1 90 ; and for 
 answfcrable to the shipper of goods, and an opposite decision to that in the pre- 
 not the general owner. James v. Jones, ceding cases, Hutton v. Bragg, 7 Taunt. 
 3 Esp. 27. And on the question as to 14. See also, on the same question, 
 the owner or charterer being answer- Parish v. Crawford, reported Abbott, 
 able to the shipper, see Saville v. Cam- Shipp. 5th ed. 19. 
 
 pion, 2 Barnew. & Aid. 503 ; Campion 3 Taggard v. Loring, 16 Mass. 336.
 
 SECT. III.] BARRATRY. 623 
 
 for their own benefit to the amount of the balance due to them, 
 surplus for the benefit of the owner of the ship ; with the clause 
 excepting barratry if the assured were owners. It was held by 
 the Supreme Court of Louisiana, that, as the assured were 
 assignees of the owner, and insured in part at least for his bene- 
 fit, the policy was subject to the exception of barratry.^ 
 
 1084. It has been thought singular that insurers, tvho have not 
 the appointment or control of the captain, and who often do not 
 know him, should stipulate to make indemnity for his frauds and 
 misconduct to the assured, whose agent he is, and who in case 
 of insurance on the ship, may dismiss him when they please.^ 
 " It is strange," says Lord Mansfield, " that barratry should have 
 ever crept into insurance." '^ But what is there strange in the 
 merchant's wishing to secure himself against the risk of the dis- 
 honesty of the master? for though he secures himself as well as 
 he possibly can against all risks of trade, except that of the 
 markets, still there are many left for him to run, and it is natu- 
 ral that he should wish to diminish the number, as his whole 
 fortune is often at hazard. Nor does it seem remarkable that 
 insurers should be willing to take this risk, provided they receive 
 an adequate premium. Courts have often said they would not 
 extend the construction of barratry, that is, that they will give 
 the contract a narrower construction than they might perhaps 
 do, if they thought it expedient, and on the whole advisable and 
 useful, to comprehend this among the risks ordinarily insured 
 against. It seems to be questionable whether this consideration 
 ought to have much influence in limiting the construction of a 
 contract. The parties themselves generally have better means 
 of forming an opinion respecting considerations of this descrip- 
 tion, and their interest makes them sufficiently vigilant and 
 active in availing themselves of the means they possess to judge 
 of the expediency of subscribing to stipulations, of the practical 
 operation of which they cannot be ignorant. 
 
 The reasons urged to show the inexpediency of insuring against 
 the barratry of the master, apply with very little force to policies 
 on goods where the assured is not owner of the ship, since the 
 
 1 Paradise v. Sun Mut. Ins. Co. 6 23 East, 134; 8 Johns. N. Y. 213; 
 La. Ann. 596. 2 Johns. Cas. N. Y. 188. 
 
 3 1 Term, 330.
 
 624 RISKS COVERED. [CHAP. XIII. 
 
 master is often, and probably in the greater number of instances, 
 as well known to the insurers as to the assured ; and though he 
 is to some purposes the agent of the assured on goods, yet they 
 have no more direct control of his conduct than the underwrit- 
 ers have. Accordingly, some underwriters make a distinction 
 between policies on the ship, and those on the cargo, and insure 
 against barratry only in the latter, and not in these, if the as- 
 sured is owner of the ship as well as the goods. 
 
 1085. The7'e seems to be no reason against extending indemnity 
 to the shipper against the frauds of the ship-owner ; though it re- 
 quires an express provision for this purpose. 
 
 SECTION IV. THE INSURERS ARE NOT LIABLE FOR ORDINARY 
 PERILS AND LOSSES. 
 
 1086. Whatever risks are assumed by the underwriter, his lia- 
 bility is subject to two limitations ; he is not liable for the con- 
 sequences of the perils assumed, except when they operate in an 
 extraordinary degree, and he is liable only for loss and damage 
 of an extraordinary kind. 
 
 Mr. Justice Thompson says : " The insurer undertakes only to 
 indemnify against the extraordinary and unforeseen perils of the 
 sea, not against the ordinary perils to which every ship must be 
 exposed in the usual course of the voyage." ^ 
 
 Mr. Justice Washington, instructing the jury respecting a 
 claim for a loss on a vessel insured from Brazil to China, said : 
 " If the loss arose from the ordinary circumstances of such a 
 voyage as this was, as from sea-damage, or wear and tear, 
 which, without any action of an extraordinary cause, was to be 
 expected, the insurer is not liable." ^ 
 
 The peril of capture is not subject to degrees, but is always 
 considered to be extraordinary, and in all cases gives the assured 
 the right of abandoning and claiming for a total loss. But other 
 perils of the seas may be ordinary or extraordinary, and so may 
 their effects; and unless the degree of a peril and its effects are 
 
 1 Barnewall v. Church, 1 Caines, N. 2 Coles v. Marine Ins. Co. 3 Wash. 
 Y. 217, 234. C. C. 159.
 
 SECT. IV.] INSURERS NOT LIABLE FOR ORDINARY LOSSES. 625 
 
 both extraordinary, the assured has no claim for indemnity. But 
 the effect may itself show that the cause must have been extraor- 
 dinary.^ 
 
 1087. Tliough the operation of a peril insured against is ex- 
 traordinary, if its consequences are not so, it is not a loss within 
 the policy. 
 
 Stranding is usually an extraordinary incident, yet if its con- 
 sequences are not extraordinary, the assured has no claim against 
 the underwriters. In a case of a ship's being strained, and ac- 
 cordingly weakened, and injured, in consequence of stranding, 
 Mr. Justice Baldwin said : " Invisible, uncertain, and conjectural 
 damages are never the subject of remuneration. I apprehend 
 the injury is not the subject of adjustment, unless it be capable 
 of repair in the ordinary course of business." ^ 
 
 And so it was held by the Supreme Court of Massachusetts, 
 that underwriters are not answerable for indefinite straining and 
 deterioration, which cannot be repaired and of which no specific 
 estimate or evidence can be given.^ 
 
 A vessel insured on time in the British coasting trade, while 
 lying with its cargo on board in Sunderland harbor, moored in 
 the usual place and manner, being injured and hogged by taking 
 the bottom at low tide, when there was nothing extraordinary in 
 the state of the weather and the water, Jervis, C. J., Maule, J., 
 and Creswell, J., of the English Common Pleas, held that the 
 underwriters were not liable* This case may, however, be 
 doubted, since, if the ship was seaworthy, there must have been 
 something extraordinary and out of the common course in the 
 manner of taking the ground. 
 
 Underwriters upon whiskey on board of a flatboat in the Mis- 
 sissippi, properly constructed and manned for such a navigation, 
 were held liable for damage to the whiskey caused by a wave 
 raised by a large steamboat passing near to the flatboat just at 
 
 1 Insurance on slaves against drown- 3 Orrock v. Commonwealth Ins. Co. 
 ing is held to cover drowning from ordi- 21 Pick. Mass. 456 ; Crofts v. Marshall, 
 nary as well as extraordinary causes. 7 Carr. & P. 597. 
 
 Moore v. Perpetual Ins. Co. 16 Mo. 98. * Magnus v. Buttemar, 11 C. B. 876 ; 
 
 2 Sage V. Middletown Ins. Co. 1 9 Eng. L. & Eq. 461. See also Fritch- 
 Conn. 239. ette v. State Ins. Co. 3 Bosw. N. Y. 190. 
 
 VOL. I. 53
 
 626 RISKS COVERED. [CHAP. XIII. 
 
 the border of deep and shoal water, and were not exonerated on 
 the ground of the occurrence being an ordinary one.^ 
 
 What is to be considered ordinary, and what extraordinary, in 
 the degree and effects of the perils, is a question for the jury 
 often of much difficulty. It is sufficient for the present to have 
 stated the doctrine generally ; the illustrations of it, and its 
 application to particular cases, will appear more fully under the 
 heads of the perils of the seas and the other divers perils and 
 losses insured against.^ 
 
 1088. Tlie underwriters are not liable to make indemnity for the 
 mere deterioration of the subject by age or wear and tear, where 
 no extraordinary peril intervenes. 
 
 SECTION V. DAMAGE ARISING FROM THE QUALITIES OF THE 
 
 SUBJECT. 
 
 1089. From the enumeration already given of the perils usu- 
 ally insured against, it appears that the insurers undertake to 
 make indemnity only for damage arising from external accidents, 
 not for that occasioned by the qualities or defects of the thing 
 insured. Policies contain a provision that the insurers shall not 
 be liable for any loss upon certain enumerated articles, unless it 
 amounts to a certain rate per cent. The articles to which this 
 provision relates are those most subject to damage and decay 
 from their internal qualities. But independently of this provis- 
 ion, it is a general rule that the insurers are not, under the com- 
 mon form of the policy, liable for any damage or loss arising 
 from the qualities or defects of the subject insured, since these 
 are not among the perils assumed by the underwriter.^ 
 
 Hemp was insured from London to the coast of Devonshire. 
 While the vessel lay near Torbay, a fire broke out in the hold 
 during the night, by which the greater part of the hemp was 
 consumed. The origin of the fire could not be discovered. Lord 
 EUenborough said : " If the hemp was put on board in a state 
 liable to effervesce, and did effervesce and generate the fire, the 
 
 1 Washington Ins. Co. v. Reed, 20 2 See No. 1088, 1101, 1105, 1296, 
 Ohio, 199. See also Van Valkenburg 1297, 1298, 1299. 
 V. Astor Ins. Co. 1 Bosw. N. Y. 61. 3 Pothier, Ins. n. 66.
 
 SECT. V.J DAMAGE FROM THE QUALITIES OF THE SUBJECT. 627 
 
 assured cannot recover for the loss." There being no proof that 
 the fire so originated the verdict was for the assured. ^ 
 
 1090. The underwriters are not liable for the waste occasioned 
 by ordinary leakage, since it arises from the qualities of the 
 article. But what is ordinary and what is extraordinary leakage 
 depends upon the nature of the article, and the length of the 
 voyage.^ Some insurance companies publish rules on this sub- 
 ject.^ 
 
 It appears from what has been before said, that the mere fact 
 that the damage from leaking or breakage is more than ordinary, 
 does not necessarily give the assured a valid claim against the 
 underwriters, since it must appear, either from the kind and 
 degree of damage or otherwise, that it has been occasioned by 
 some extraordinary accident. 
 
 Mr. Stevens'^ says: "According to the custom at Lloyd's, 
 articles subject to leakage are free from average, unless it can be 
 shown that the ship has struck the ground with such force, as to 
 make it probable that she has thereby deranged her stowage." 
 
 1091. Tlie rule at Lloyd's is the same ivith regard to earthen 
 ware and things liable to breakasre.^ 
 
 The force of the custom at Lloyd's, in respect to such articles, 
 
 1 Boyd V. Dubois, 3 Campb. 133. are all taken into consideration. In 
 
 2 2 Valin, 83, tit. Ins. a. 31. some articles brought from warm cli- 
 
 3 The rules of the Patapsco Insur- mates a considerable deficiency is occa- 
 ance Company, in Baltimore, published sioned by the mere difference of tem- 
 in 1814, provide that, " in cases of par- perature. In such cases an allowance 
 tial loss on licjuids, ten per cent, ordi- of a certain per cent, is made for 
 nary leakage shall always be deducted." "shrinkage." The usual method is to 
 Most of the forms of policies in use in compare the leakage in the particular 
 Boston contain no exception relating to case with the leakage on the same arti- 
 liquids, nor is there any specific rule in cle in other vessels, which have per- 
 the practice at that port, except, by formed the voyage at about the same 
 some companies, as to molasses. The time. It is said that there is not found 
 method is to ascertain, in respect to a to be any great difficulty in this mode 
 voyage, what leakage is to be attributed of adjusting losses upon such articles, 
 to ordinary causes, or to the fault of the A form of policy of the Lexington In- 
 assured or his agents. In doing this, suraace Company expressly exonerated 
 the season of the year; the kind of the insurers from all loss by leakage, 
 article ; the description of vessel in Policies do not, as I understand, usually 
 which it is contained ; the length of the contain any provision on this subject, 
 particular passage; the situation of the * Stevens, Av. part 3, art. 1. 
 
 cargo on arrival ; in respect of stowage ; ^ Ibid.
 
 628 RISKS COVERED. [CHAP. XIII. 
 
 is accordingly equivalent, or rather it is more than equivalent, to 
 the memorandum in the policy, whereby the insurers are ex- 
 empted from particular average on certain articles, unless the ship 
 be stranded. But this rule does not appear to be adopted gen- 
 erally in the United States. 
 
 1092. Upon the principle that theunderwTiters are not answer- 
 able for damage arising from the qualities of the thing insured, a 
 loss of slaves who died from despair on account of the failure of a 
 mutiny or otherwise, has been considered not to be by the perils 
 insured against.^ 
 
 In the case of an insurance of animals against the usual perils, 
 the insurers are not answerable for loss by disease and natural 
 death.2 
 
 SECTION VI. EVENTS WHICH ENHANCE THE RISK. 
 
 1093. It is another general rule, which applies to all the risks 
 assumed by the underwriters, that they continue liable for losses 
 by the perils insured against, although those perils are greatly 
 enhanced by events which the assured could not prevent, that 
 take place subsequently to the date of thfe policy. If the ship is 
 delayed upon the voyage, ivithout any fault of the assured or his 
 agents, and not by any cause which makes the delay a deviation, 
 the insurers are still liable, though the delay may subject the 
 underwriter to a winter risk, instead of a summer risk, for which 
 only he would have been liable, had there been no delay of the 
 voyage.^ 
 
 If capture is one of the risks insured against, and after the 
 policy is made, the risk of capture is greatly increased by the 
 breaking out of a war, still the underwriter is liable. The risk 
 of a declaration of war is one of those which he assumes."* 
 
 1 Pothier, n. 66 ; 2 Valin, 55, tit. Beaumont, F. & L. Ins. p. 15 et seq., 
 Insurance, a. 11 ; Tatham v. Hodgson, cited Angell, F. & L. Ins. sect. 119, for 
 6 Term, 656. Emerigon never intro- illustrations of loss by the qualities of 
 duces this subject of the insurance of the subject. 
 
 slaves without reprobation of the p7'ac- 3 Vallance v. Dewar, 1 Campb. 503 ; 
 
 tice of treating a being possessed of and see supra, I^o. 218. 
 
 moral perceptions, human affections, 4 PJanche v. Fletcher, Dougl. 238 ; 
 
 and a mind and soul, as a piece of mer- Saltus v. United Ins. Co. 15 Johns. N. 
 
 chandise. Y. 523. 
 
 2 1 Emerigon, 393, c. 12, s. 9. See
 
 SECT. VII.] LOSS BY FIRE. 629 
 
 SECTION VII. LOSS BY FIRE. 
 
 1094. Fire is specifically insured against in the common form 
 of marine policies. This loss, like one by capture, is in its kind 
 extraordinary. Unless a loss happens from the qualities or de- 
 fects of the subject insured,^ the fault of the assured, or by some 
 peril for which he is answerable, he is entitled to indemnity : 
 
 As in case of a vessel burnt by the municipal authorities from 
 fear of its being infected and causing a pestilence r^ 
 And of a subject burnt by lightning :^ 
 And of a vessel taking fire in an engagement : * 
 Or burnt by accident in a dry dock : ^ 
 Or in case of a steamboat being burnt.^ 
 
 1095. It was formerly made a question, ivhether the master and 
 mariners are justified in setting fire to the property to prevent its 
 falling into the hands of an enemy ? '' 
 
 Valin is of opinion that the insurers are liable for the loss in 
 such case, if there was no other way of preventing the property 
 from falling into the hands of the enemy, or of pirates ; and he 
 cites the decisions of three several courts in France in support of 
 his opinion.^ 
 
 Weskett thinks that the insurers are not liable for a loss of this 
 description, except in a case where the lives of the master and 
 crew would be in danger were they to fall into the hands of the 
 enemy or pirates by whom they are pursued, and the ship is burnt 
 for the purpose of facilitating their escape. The reason he gives 
 is, that the property might be recaptured, and the loss be dimin- 
 ished by the amount of salvage.^ But this reason does not show 
 that the insurers ought to be wholly exempted from the loss ; it 
 only goes to show, at most, that what would be the net amount 
 of the salvage in case of recapture ought to be deducted from the 
 
 1 Boyd V. Dubois, 3 Campb. 133. 6 Pattison v. Mills, 1 Dow & C. 
 
 2 Targa, c. 56; Casar. Disc. 121, n. Hou. L. 342; 2 Bligh, Hou. L. n. s. 
 12; Emerigon, torn. 1, p. 434, c. 12, s. 519. 
 
 17. 7 Loccenius de Jur. Mar. 1. 3, c. 9 ; 
 
 3 Pothier, Ins. n. 53. Kuricke, Qu£es. 29. 
 
 * Il>iJ- 8 2 Valin, 75, tit. Insurance, a. 26. 
 
 5 Per Putnam, J., in Ellery v. New 9 Weskett, tit. Fire, n. 6. 
 England Mar. Ins. Co. 8 Pick. Mass. 14. * 
 
 53*
 
 630 EISKS COVERED. [CHAP. XIII. 
 
 amount of a total loss, or else, that the insurers ought to be 
 answerable only for the amount to which the recaptors would be 
 entitled for recovering the property, supposing the loss, in such 
 case, to be adjusted as an average. 
 
 Lord Ellenborough was of the same opinion with Valin. Under 
 a policy on the commissions and privileges of the captain on a 
 voyage from Bristol to the coast of Africa, and thence to the 
 West Indies, the vessel being chased by a French privateer of 
 greatly superior strength, after an unsuccessful attempt to escape, 
 was burnt by the captain and crew to prevent her falling into the 
 hands of the enemy. Lord Ellenborough said in reciting: " The 
 case is new, but I am clearly of opinion that the assured is enti- 
 tled to recover. Fire is expressly mentioned in the policy as one 
 of the perils against which the underwriters undertake to indem- 
 nify the assured, and if the ship is destroyed by fire, it is of no 
 consequence whether this is occasioned by a common accident, 
 or by lightning, or by an act done in duty to the state." ^ 
 
 1095 a. The damage usually incidental to the ordinary pro- 
 cesses in using fire, comes within the implied exception of ordinary 
 risks and perils, and is not covered.^ 
 
 1095 b. Whether underwriters against fire on land as well as 
 those against perils of the seas, are exonerated from loss by the 
 qualities of the subject ? 
 
 Mr. Beaumont 3 is of opinion that underwriters are not liable 
 for the loss of the thing which is consumed by reason of its own 
 qualities, by spontaneous combustion, for instance, without any 
 external cause, but are liable for the consequent loss of other 
 subjects covered by the policy, which he illustrates speculatively 
 by supposed cases. 
 
 This subject has already been considered in respect to marine 
 perils,^ and it does not appear that the risk of fire on land is on a 
 materially different footing. Most subjects are more or less liable 
 to damage and destruction by fire, air, or water, according to 
 their qualities. The question in this case, as in others, is, whether 
 the circumstances are ordinary or extraordinary, and whether the 
 loss is directly occasioned by fire.^ 
 
 1 Gordon v. Rimmington, 1 Campb. et seq., cited Angell, F. & L. Ins. s. 
 123 ; and see note by the reporter. 119. 
 
 2 Supra, No. 1086, 1087. 4 Supra, No. 1089 et seq. 
 
 3 Beaumont, Fire and Life Ins, p. 15 5 gee infra, s. 14, of this chapter.
 
 SECT. VII.] LOSS BY FIRE. 631 
 
 1095 c. Wliether underirriters are liable for loss bij fire conse- 
 quent upon the gross negligence of the assured himself? 
 
 Underwriters against any risk are doubtless not liable for loss 
 purposely incurred by the assured.^ The law does not, how- 
 over, require of every assured the very highest degree of vigilance 
 and diligence to preserve the insured subject from damage by 
 fire; but he is not entitled to indemnity for negligence closely 
 bordering upon fraud. The Supreme Court of Massachusetts 
 are of opinion that the underwriters are, at least, not liable for 
 loss by fire occasioned by his extreme, reckless, and inexcusable 
 negligence, the consequences of which must have been palpably 
 obvious to him.^ 
 
 1096. Uaderwriters are liable for a loss by fire under a policy 
 against that risk only, or against that and other risks, ivhetlier on 
 land or at sea, though occasioned by the negligence or misman- 
 agement of the captain or mariners at sea, not of a barratrous 
 character, when barratry is not covered, or of servants or persons 
 properly employed by the assured in buildings.^ 
 
 Formerly the doctrine on this subject was wavering;^ it is 
 now settled.^ 
 
 A provision excepting loss by design of the assured has been 
 considered as more decidedly fixing the liability of the insurers 
 for losses by fire set by incendiaries.^ 
 
 1097. Whether the underivriters are liable for loss by fire,ivhere 
 the loss is occasioned or the subject is destroyed thereby without its 
 being actually burnt ? 
 
 ' See supra, No. 1064. & Aid. 73 ; Shaw v. Roberts, Nev. & 
 
 2 Chandler v. Worcester Mut. Fire P. 279; 6 Ad. &E. 75; Austin r. Drew, 
 Ins. Co. 3 Gush. Mass. 328 ; Angell, F. 4 Campb. 360 ; Holt, 126; 6 Taunt. 
 & L. Ins. s. 129 et seq. Want of ordi- 436; 2 Marsh. 130 ; Patapsco Ins. Co. 
 nary care is said to be no defence, v. Coulter, 3 Pet. 222 ; Cohunbian Ins. 
 Huckins V. People's Ins. Co. 31 N. H. Co. t?. Lawrence, 10 id. 507 ; Waters v. 
 238; Hynds i'. Schenectady Ins. Co. Merchants' Louisville Ins. Co. 11 id. 
 16 Barb. N. Y. 119. 213; Gates v. Madison County Mut. 
 
 3 See supra, s. 2, No. 1049. Ins. Co. 5 N. Y. 469 ; St. Louis Ins. 
 
 4 See Emerin;on, toni. 1, p. 433, c. 12, Co. v. Glasgow, 8 Mo. 713. See supra, 
 s. 17; Waters v. Merchants' Louisville No. 733, 1049; Lod wicks r. Kennedy, 
 Ins. Co. 11 Pet. 213; and Grim v. 5 Ohio, 436; Per Curtis, J., General 
 Phoenix Ins. Co. 13 Johns. N. Y. 451; Mut. Ins. Co. v. Sherwood, 14 How. 
 supra. No. 1048. 352, 365. 
 
 5 3 Kent, Comm. 300, n., and 304 ; 6 Catlin r. Springfield Ins. Co. 1 
 Busk i;. Royal Exch. Ass. Co. 2 Barnew. Sumn. C. C. 434.
 
 632 RISKS COVERED. [CHAP. XIII. 
 
 In case of a policy upon the stock of a sugar-house, Gibbs, 
 C. J., ruled, and the raling was supported by the court, that 
 damage to the stock by the heat of the usual fires, in consequence 
 of the mismanagement of the dampers by those having charge of 
 the sugar-house, was not within the policy against fire. A jury- 
 man remarked to the court : " If my servant, by negligence, sets 
 my house afire, and it is burnt down, I expect, my Lord, to be 
 paid by the insurance office." Gibbs, C. J. : " So you would, 
 sir, but then there would be a fire, whereas here has been none. 
 If there is a fire, it is no answer that it was occasioned by negli- 
 gence or misconduct of servants ; but in this case there was no 
 fire, except in the stove and flue where there ought to have been, 
 and the loss was occasioned by the confinement of the heat." ^ 
 
 So damage to sugar and molasses by merely the explosion of 
 a steam-boiler in a sugar-house is held in Louisiana not to be 
 covered under a policy on those articles against fire.^ 
 
 In a New York case, the underwriters on a building against 
 loss " by or by reason, or by means of fire," also " liable for fire 
 by lightning," were held not to be liable for the loss of the build- 
 ing by its being demolished and shattered to pieces by lightning 
 without the ignition of any part of it.^ The decision in this case 
 necessarily turned upon the meaning of the term " fire," and Mr. 
 Justice Jones, in his very able statement of the grounds of the 
 judgment, puts it upon the distinction, in the policy itself and in 
 common usage and in scientific treatises, of fire from lightning, 
 which latter, although like a match it may kindle a fire, yet can- 
 not be understood to be of itself fire. 
 
 A similar judgment has been given by Parker, C. J., and his 
 associates in New Hampshire, on an insurance upon a dwelling- 
 house and its contents, against " loss by fire, whether by accident, 
 lightning, or any other means, payable in three months after said 
 property should be burnt, destroyed, or demolished by or by rea- 
 son or means of fire." Some glass and crockery were broken, 
 and some tin ware damaged by lightning, and some wood work 
 of the house near the window through which the lightning 
 
 1 Austin V. Drcwe, 4 Campb. 360 ; 2 jMillaudon v. New Orleans Ins. Co. 
 Holt, 12G; 6 Taunt. 436; 2 Marsh. 4 La. Ann. 15. 
 
 130. 3 Babcock v. Montgomei-y County 
 
 Mut. Ins. Co. 6 Barb. N. Y. 637.
 
 SECT. VII.] LOSS BY FIRE. 633 
 
 entered, as if exposed to a flame, but it did not appear from the 
 evidence as stated, that there had been actual ignition. Parker, 
 C. J. : " If the damage was by lightning without combustion it 
 is clearly not within the terms of the insurance." A new trial 
 was ordered to settle the facts.i 
 
 It has been held in New York, and in Missouri, that the un- 
 derwriters are liable for the loss of a building by its being blown 
 up with gunpowder and demolished to stop a conflagration where 
 it would have been soon inevitably burnt, in the progress of the 
 fire from a neighboring building already in flames.''^ 
 
 The doctrine of these cases seems to be, that damage hij water 
 being- thrown jipon goods in extinguishing a Jire, and loss by plun- 
 der of goods removed away from a fire, and so put out of the 
 control of the assured, are, in common practice, treated as directly 
 incidental or consequent to the fire, and covered by a fire policy.^ 
 
 In an analogous case, underwriters against fire have been 
 held liable for the loss of a subject voluntarily burnt under 
 circumstances in which it was on the point of instant inevitable 
 destruction by a peril insured against. As in the case before 
 Lord Ellenborough,^ of a vessel burnt by the master and crew, 
 to prevent its falling into the hands of the. enemy. Such a con- 
 struction is supported by the grave authority of Chancellor Kent, 
 who, speaking of fear of a peril, says, " If the danger be so great 
 as to amount almost to a certainty of capture, it becomes a re- 
 straint in contemplation of the policy."^ The maxim, Causa 
 proxima spectatur, affords no help in these cases, but is in fact 
 fallacious, for if two causes conspire, and one must be chosen, 
 the more scientific inquirj'- seems to be, whether one is not the 
 efficient cause, and the other merely instrumental, or merely 
 incidental, and not which is nearest in place or time to the con- 
 summation of the catastrophe.^ 
 
 1098. Whether underwriters against fire are i-esponsible for 
 
 i Kenniston v. Merrimack County 3 See infra, No. 1098, a. 
 Mut. Ins. Co. 14 N. H. 341. Loss by 4 Gordon v. Rimmington, 1 Campb. 
 explosion and combustion of gunpowder 123. 
 
 is covered. Scripture i\ Lowell Ins. 5 3 Kent. Coram. 3d ed. 293. 
 Co. 10 Cash. Mass. 356. 6 See infra, No. 1131. 
 
 2 City Ins. Co. v. Corlies, 21 Wend. 
 N. Y. 367; Phillips v. Protection Ins. 
 Co. 14 Mo. 220.
 
 634 RISKS COVERED. [CHAP. XIII. 
 
 expenses successfully incurred to save the insured property from 
 being- destroyed by fire ? 
 
 Mr. Dowdeswell says this is not settled.^ 
 
 In a Pennsylvania case, where insured goods were removed 
 " under a reasonable apprehension that they would be reached 
 by the flames," from the fourth tenement on one side in the same 
 block, in the great fire in Pittsburgh in 1845, it was the opinion 
 of the Supreme Court of that State, that the underwriters were 
 not liable for the damage to the goods, and the expense of re- 
 moving them.^ 
 
 They have been held, in Illinois, to be liablev^n such a case.^ 
 And this is clearly the more equitable construction, and it comes 
 within the doctrine of the liability of underwriters for contribu- 
 tion for jettison on marine insurance. So a loss by illicit trade 
 is held to cover expense incurred to avoid seizure therefor.^ Tl^e 
 liability of the underwriters, in these and similar cases, may de- 
 pend, in some degree, upon the imminency of the peril, and the 
 reasonableness and expediency of the measures taken ; and 
 the amount of the loss may be aggravated by the fact, that the 
 subject is, by the direct effect of the peril, put out of the control 
 and protection of the assured and his agents. 
 
 The expense and damage incurred in such case for the benefit 
 evidently of the underwriters, may amount to a greater part of 
 the value of the subject. It seems, therefore, to be the better 
 doctrine, and the one most closely analogous to the jurisprudence 
 on the subject of insurance generally, that. 
 
 The underwriters are liable for such damage and expense rea- 
 sonably and expediently incurred, as being directly occasioned by 
 the peril insured against. 
 
 1098 a. The underivriters are liable for damage to the subject 
 and expense directly incidental or consequent to the fire : as dam- 
 age to the insured goods by water thrown on to extinguish the 
 
 1 Dowdeswell, Life and Fire Ins. 109, goods. This does not, however, seera 
 citing Tindall v. Bell, 11 Mees. & W. to make the liability of the underwriters 
 Exch. 228. greater than under a policy having no 
 
 2 Hillier v. Alleghany Ins. Co. 3 such clause. So held in Cincinnati. 
 Penn. 470. Firemen's Ins. Co. v. May, 20 Ohio, 
 
 3 Case V. Hartford F. Ins. Co. 13 111. 211. 
 
 676. The policy required of the as- * Higginson v. Pomeroy, 11 Mass. 
 sured all possible diligence to save the 104.
 
 SECT. VIII.] PEEILS OF THE SEAS. 635 
 
 fire, and the expense of removing the insured property from 
 the fire. This liability has been juridically recognized.^ 
 
 So they are liable for loss by plunder^ where a removal of in- 
 sured goods out of the control of the assured is directly inciden- 
 tal or consequent to a peril insured against : as in case of cap- 
 ture,2 or fire.^ 
 
 1098 b. It has been held in Michigan, where the policy 
 allowed the underwriters to rebuild, that the underwriters were 
 liable for the loss, less the value of the materials left, though this 
 was more than the expense of rebuilding. A city ordinance for- 
 bidding such rebuilding,'* and a prohibition against rebuilding by 
 the public authorities after the loss, is no defence.^ 
 
 SECTION VIII. PERILS OF THE SEAS. 
 
 1099. Perils of the q^as., ivhich constitute a part of the risks 
 in almost every marine policy, comprehend those of the winds, 
 waves, lightning, rocks, shoals, collision, and, in general, all causes 
 of loss and damage to the property insured, arising from the ele- 
 ments, and inevitable accidents, though sometimes considered 
 not to include capture and detention.^ 
 
 A policy against these perils accordingly covers damage : 
 By being fired into through mistake in being taken for an 
 enemy '." 
 
 1 Per Grier, J., Hillier v. Alleghany Mo. 1 GO ; Witherell v. Maine Ins. Co. 
 
 Mut. Ins. Co. 3 Penn. 470 ; Wbitehurst 49 Me. 200. 
 
 V. Fayetteville Ins. Co. 6 Jones, No. C. * Brady v. North Western Ins. Co. 1 1 
 
 352. * Mich. 425. 
 
 '■^ Magoun v. New England Mar. Ins. ^ Brown v. Royal Ins. Co. 1 Ell. & 
 
 Co. 1 Stor. C. C. 157. E. 853. 
 
 3 Case V. Hartford F. Ins. Co. 13 111. 6 Marshall, Ins. 487. Mr. Justice 
 676; Webb v. Protection Ins. Co. 14 Story considers ^^ dangers of the seas," 
 Mo. 3, where the underwriters were in the bill of lading, to be equivalent to 
 held to be exonerated under the ex- " perils of the seas," in a policy of in- 
 ception of theft, which was impliedly sui'ance. The Schooner Reeside, 2 
 recognizing their liability without this Sumn. C. C. 567. 
 exception; Independent Ins. Co. v. '' Cullen v. Butler, 1 Stark. 138; 5 
 Agnew, 34 Penn. St. 96; Tilton v. Maule & S. 461 ; Park, Ins. 401. This 
 Hamilton F. Ins. Co. 1 Bosw. N. Y. case is put upon the general words, " all 
 367 ; Newmark v. Liverpool Ins. Co. 30 other perils." At the trial before Lord
 
 636 
 
 RISKS COVERED. 
 
 [chap. XIII. 
 
 And by the explosion of a steamboat boiler : ^ 
 
 And by taking the ground in consequence of the falling of the 
 tide : 2 
 
 And by corrosion of metals in consequence of actual contact 
 of sea-water occasioned by a leak caused by the perils insured 
 against,^ and not by mere general dampness,^ or by bad stow- 
 age : ^ 
 
 And by a ship being blown over at the time of hauling it up 
 on a marine railway : ^ 
 
 And by fire : ^ 
 
 And damage to the vessel or cargo insured, by collision with 
 other vessels, whether without any fault or through careless- 
 ness : ^ 
 
 And damage by fault of the master and mariners of the vessel 
 insured : ^ 
 
 Or by the fault of the master and mariners of another vessel.^*' 
 
 There is no question that collision is a peril of the seas, and 
 that underwriters are liable for damage thereby to the insured 
 
 Ellenborough, he said, this loss was by 
 a "peril on the seas, not of the seas." 
 The distinction is fanciful, since it would 
 put winds and lightning out of the class 
 of perils of the seas, as being those of 
 the atmosphere, &c. 
 
 1 Perrin's Adm'rs v. Protection Ins. 
 Co. 11 Ohio, 147; Citizens' Ins. Co. v. 
 Glasgow, 9 Mo. 406. The phrase, 
 " perils of the river," is substituted, in 
 the trade on the Mississippi and Ohio, 
 for that of " perils of the seas," in mari- 
 time policies. " Perils of the seas, riv- 
 ers, &c.," is held to cover canal naviga- 
 tion : Protection Ins. Co. v. Wilson, 6 
 Ohio St. 553. 
 
 2 Fletcher v. Inglis, 2 Barnew. & 
 Aid. 315. 
 
 3 Cogswell V. Ocean Ins. Co. 18 La. 
 84, which was the case of a corrosion of 
 zinc. 
 
 4 Baker v. Manufacturers' Ins. Co. 
 12 Gray, Mass. 603. 
 
 5 Ship Abby Pratt, 6 La. Ann. 410. 
 
 6 Ellery v. New England Mar. Ins. 
 Co. 8 Pick. Mass. 14, as being ejusdem 
 generis with the perils specifically enu- 
 merated. 
 
 7 This would be the construction no 
 doubt, though the peril were not speci- 
 fically insured against. 
 
 8 Buller V. Fisher, 3 Esp. 67 ; Peters 
 V. Warren Ins. Co. 1 Stor. C. C. 463 ; 3 
 Sumn. C. C. 389 ; 14 Pet. 99 ; Caldwell v. 
 St. Louis Perpetual Ins. Co. 1 La. Ann. 
 85, which was a case of injury to the 
 stern boat of a steamboat in river navi- 
 gation. 
 
 The Boston companies inserted, April, 
 1867, into their policies on vessels, the 
 provision not to be liable for damage to 
 another vessel by collision. 
 
 9 Supra, s. 2, No. 1049. 
 
 10 Smith V. Scott, 4 Taunt. 126. The 
 marine ordinances of various countries 
 and earlier treatises contain many pro- 
 visions on this subject of collision. Po- 
 thier, Ins. n. 50 ; Ord. Copenh. art 14.
 
 SECT. VIII.] PERILS OF THE SEAS. 637 
 
 vessel ; but it has been made a question whether the under- 
 writers are liable to indemnify the assured for the amount which 
 he has been liable to pay to the owners of another vessel, for 
 damage done to it by collision with his own, which question is 
 subsequently considered.^ 
 
 Losses by the inevitable operation of the elements, or any vis 
 major insured against, happening in port, are usually classed as 
 perils of the seas ; but Mr. Justice Story considered theft without 
 violence, and embezzlement " in port," as not coming within that 
 description.^ 
 
 Damage to the ship, occasioned by its taking the ground in a 
 harbor when the tide fell, was however held to be a loss by 
 " perils of the seas." ^ 
 
 But Lord Kenyon ruled that the insurers against these perils 
 were not liable for the damage to a ship which was bilged by 
 being hove out to repair, not being strong enough to bear the 
 strain j"* though the ground of the ruling does not appear. And 
 Sir James Mansfield and his associates of the English Common 
 Pleas held, that where a vessel hove out for repairs was injured 
 by reason of the blocks with which it was propped being removed 
 by force of the tide, the underwriters were not liable for the dam- 
 age as being by a peril of the seas, because the vessel was on 
 land,^ a reason inconsistent with other cases.*^ 
 
 In respect to perils of the seas, it is frequently difficult to dis- 
 tinguish what DEGREE of the peril brings it within the stipulation 
 of indemnity ; for, as we have already seen, the insurers only 
 stipulate to make indemnity for the extraordinary consequences 
 of the unusual and extraordinary operation of these perils. The 
 
 1 Infra, No. 1137 a, 1416-1419. 5 Thompson v. Whitmore, 3 Taunt.. 
 
 2 King V. Shepherd, 3 Stor. C. C. 227. 
 
 349. 6 See Fletcher v. Inglis, 2 Barnew. & 
 
 3 Fletcher v. Inglis, 2 Barnew. & Aid. Aid. 315 ; and EUery v. New EniTland 
 315. Mar. Ins. Co. 8 Pick. Mass. 14 ; and the 
 
 4 Rowcroft V. Dunsmore, 3 Taunt, case of loss by the tackle and furniture 
 228. Lord Kenyon is said to have re- of the ship being burnt in a storehouse 
 marked that it was an accident; this (Bank Saul) at Canton, while the ship 
 could not, however, be any reason was under repairs, being stored there 
 against the liability of the uuderwrit- according to the usual practice in the 
 ers. voyage. Pelly v. Royal Exch. Ass. Co. 
 
 1 Burr. 341. 
 VOL I. 54
 
 638 RISKS COVERED. [CHAP. XIII. 
 
 perils of the seas include more especially the danger from the 
 winds and waves, yet the underwriters are not understood to 
 promise indemnity for the merely ordinary injury and gradual 
 wearing out of the sails and rigging, by use and the constant 
 action of the elements.^ 
 
 If a vessel at sea is not heard from for a long time, it is pre- 
 sumed to have perished by perils of the seas.^ By some policies 
 it is provided, that a vessel not heard from for a certain time 
 shall be presumed to have been lost. But if the policy contains 
 no provision of this sort, the length of time which will be the 
 ground of this presumption will evidently depend upon the dis- 
 tance and particular circumstances.^ 
 
 1100. In respect to damage by rats and vermin, it seems to be 
 implied by the expressions of the judges in some instances, that it 
 does not arise from the kind of perils insured against. But the 
 doctrine against the liability of the insurers for this species of loss 
 is most frequently put upon the grounds that it is not an extraordi- 
 nary loss, and also that it happens through the fault of the assured, 
 or that of his agents which is imputable to him. 
 
 A case was decided in the time of Chief Justice Lee, respect*- 
 ing a claim for damages for the injury done to goods by rats. 
 The goods were injured in this manner, while they were in the 
 possession of a hoy-man, for the purpose of being transported 
 from one port to another in England. It was held that the hoy- 
 man was answerable for the damage, upon the principle that 
 this was not a loss by an act of God or the king's enemies, and 
 the hoy-man was answerable, as a common-carrier, for damage 
 to the goods arising from every other cause.* And its not being 
 considered to be an inevitable accident is in favor of the rule 
 that underwriters are not liable for it. 
 
 According to the old books and sea-law^s, the owners of the 
 ship are not liable for damage to the goods from this cause, pro- 
 vided the captain takes a cat on board, at the beginning of the 
 voyage. This supposes that the loss may be inevitable, and that 
 it is not in all cases owing to the negligence of the master and 
 crew. 
 
 1 See infra, No. 1105. 3 Gordon v. Bowne, 2 Johns. N. Y. 
 
 2 Green v. Brown, 2 Strange, 1199; 150. 
 
 Newby V. Read, Park, Ins. 106, 7tli ed. ; 4 Dale v. Hall, 1 Wils. 281. 
 Twemlow. Oswin, 2 Campb. 85.
 
 SECT. VIII.] PERILS OF THE SEAS. 639 
 
 Emerigon ^ considers the insurers not to be answerable, in 
 general, for this sort of damage, because it might be prevented 
 by proper care. He cites many authors as being of his opinion, 
 who all seem to adopt the principle of the old sea-laws, that the 
 owners of the ship are answerable for this damage, unless the 
 captain provides against it. To this effect they cite the rule of 
 the Civil Law, that, if cloths intrusted to a fuller are injured by 
 raiice, while in his possession, he must make good the damage.^ 
 Straccha^ considers the insurers not to be liable for damage by 
 rats or mice, on the ground that it might be prevented by proper 
 care and diligence. 
 
 A case on this subject came before the Supreme Court of 
 Pennsylvania, upon a policy on a vessel at and from St. Do- 
 mingo to the United States. After sailing, she proved to be 
 leaky, and was compelled to put back to Cape St. Fran9ois, 
 where, on a survey, the timbers were found to have been very 
 much injured by the rats. The case was elaborately argued on 
 both sides. It was the opinion of the court, that this was among 
 those casualties comprehended under perils of the seas, and for 
 which the insurers are liable.* 
 
 A similar case came before Lord EUenborough. Goods being 
 insured for a voyage from London to Honduras, the vessel, in 
 the course of the voyage, was detained at Antigua by the sick- 
 ness of the crew, and while she lay there the rats ate holes in 
 her transoms and bottom, whereby she was rendered unfit for 
 proceeding upon the voyage, and the cargo was sold at Antigua. 
 Lord EUenborough held that this did not constitute a loss for 
 which the underwriters on the goods against perils of the seas 
 are liable.^ 
 
 It has been held in New York, by Savage, C. J., and his asso- 
 ciates, that damage to bear-skins by rats, on a passage from New 
 Orleans to New York, was not necessarily a " peril of the seas " 
 within the meaning of those terms in the bill of lading; but that 
 its being so or not must depend upon due diligence on the part 
 of the master and mariners to prevent it.^ 
 
 1 Emerigon, chap. 12, s. 4. * Garrigues v. Coxe, 1 Binn. Penn. 
 
 2 D. 19. 2, 13. 6. 592. 
 
 3 Straccha, De Assec. 817, Part 4, ^ Hunter v. Potts, 4 Campb. 203. 
 
 n. 31. 6 Avmar v. Astor, 6 Cow. N. Y. 266.
 
 640 RISKS COVERED. [CHAP. XIII. 
 
 This is plainly a question for the jury, and I infer, on the 
 whole, that 
 
 Tlie insurers may he liable for this species of damage where it 
 happens on a voyage, notivith standing proper vigilance and pre- 
 cautions against it. 
 
 1101. It has been held that the destruction of the vesseVs bottom 
 by ivorms is not a peril of the seas. 
 
 A case came before Lord Kenyon, relating to a vessel so 
 destroyed on the coast of Africa. A special jury were of opin- 
 ion, " that this was not a loss within the terms of ' perils of the 
 seas,' in policies of insurance ; and Lord Kenyon was of this 
 opinion." ^ 
 
 Mr. Justice Livingston, alluding to this case, said: "I do not 
 mean to be understood as subscribing to the opinion of Lord 
 Kenyon." ^ 
 
 But his opinion has been adopted in Massachusetts. A ship's 
 bottom was injured by worms during the time of her detention 
 by an embargo at Cape St. Francois. In respect to a claim for 
 indemnity against the insurers for this damage, the court, speak- 
 ing of the preceding case, said it was decided upon the ground, 
 that the loss was like the wearing and natural decay of the 
 vessel.^ 
 
 Some persons, conversant in the practice of insurance, con- 
 sider, insurers to be exempted from liability for this species of 
 loss, on the ground that it arises from the fault of the assured. 
 It is a kind of injury which occurs only in warm climates, and 
 they say that a ship is not fit to be employed in those climates, 
 unless she is secured by a copper sheathing against this kind of 
 damage. But a distinction has been suggested in this respect, 
 which seems to be very reasonable, upon the supposition that 
 the underwriters are exonerated from this risk, upon the ground 
 above mentioned. It is suggested, that if the copper sheathing 
 is torn off by stranding, or other perils of the seas which are 
 insured against, and in consequence of this accident the vessel's 
 bottom is eaten by worms, the insurers are liable for the damage. 
 
 1 Rolil V. Parr, 1 Esp. 445. 420. In a common printed form of 
 
 2 Depeyster v. Columbian Ins. Co. 2 policy used in Charleston, S. C, it is 
 Caines, N. Y. 85. provided that the insurers shall not be 
 
 3 Martin v. Salem Ins. Co. 2 Mass. answerable for this species of damage.
 
 SECT. VIII.] PERILS OP THE SfiAS. 641 
 
 Upon the doctrine already stated, that insurers are not liable 
 for ordinary damage, the Supreme Court of the United States 
 has held, that, in seas where worms ordinarily assail the bottom 
 of ships, this damage is not a loss by perils of the seas, within 
 the meaning of the policy. ^ 
 
 1102. The expense and loss attending' a mere detention and 
 delay, on account of perils of the seas, at a port in the course of 
 the voyage, must be borne by the owner of the ship, though the 
 delay continues for a long time. 
 
 On a voyage from a port in the Baltic to London, the ship 
 was unexpectedly detained by the ice, and, instead of proceeding 
 on the voyage immediately, could not sail until the following 
 season. This was considered to be one of those ordinary incon- 
 veniences and interruptions of the voyage, the expense of which 
 must be borne by the owner.^ 
 
 1103. If the vessel goes out of the course of the voyage for the 
 purpose of refitting and repairing damage sustained from the per- 
 Us insured against, it is held in the United States that this is to be 
 done at the charge of the insurers. 
 
 But though the delay and departure from the course are con- 
 sidered to be extraordinary occuiTences, for which the insurer is 
 bound to make indemnity, a distinction is made between what 
 is ordinary in the expense and damage occasioned by the delay, 
 and so to be borne by the owner of the vessel, and what is ex- 
 traordinary, and for which the insurer is answerable. The owner 
 loses the earnings of the vessel during the time of its detention, 
 but he has no claim against the insurer on this account. 
 
 1104. In respect to the expense, on account of the wages and 
 provisions of the creic, during the period of voluntary departure 
 from the course, and delay, for the purpose of refitting, the rule in 
 the United States, sanctioned by all the American courts, is differ- 
 
 ' entfrom that in Great Britain. 
 
 In one case,^ in which the ship put into Nice in distress, where 
 the captain discharged the crew and then hired them to assist in 
 repairing the ship, the court in England considered their wages, 
 while so employed, as constituting a part of the loss within the 
 
 1 Hazard v. New England Mar. Ins. 3 Da Costa v. Newnham, 2 Term, 
 Co. 1 Sumn. C. C. 218; 8 Pet. 557. 407. 
 
 2 Everth v. Smith, 2 Maule & S 278. 
 
 5i»
 
 642 "RISKS COVERED. " [CHAP. XIII. 
 
 policy, upon the ground that " they did not work as sailors, but 
 as common workmen." But the expense of wages and provisions 
 of the crew, as such, during a delay for repairs, is very distinctly 
 and explicitly considered in practice,^ and held by the courts in 
 England^ to be a charge upon the owner ^ and not a part of the loss 
 within the policy, either upon the ship or freight. 
 
 It seems that formerly some insurers in England were of a 
 different opinion,^ and on the continent of Europe these charges 
 appear to be more generally considered as part of the loss within 
 the policy, in case of a vessel's putting into a port to refit ; though 
 some writers doubt the propriety of this rule. Adrian Verwer 
 says : " Why should the victualing and men's wages be deemed 
 a general average, any more than the interest of the money, and 
 the damage caused to the cargo by the delay ?"^ The French 
 Code makes the insurers liable for this charge only in case of the 
 vessel's being chartered by the month.'* 
 
 In the United States, the rule is general and uniform, that the 
 underivriters are in this case liable for the expense of wages and 
 provisions.^ One reason for this seems to be, that the extraor- 
 dinary circumstances under which this expense is incurred may 
 be supposed to change the nature and character of these expenses, 
 and to render the insurers liable for them upon the same princi- 
 ples on which they are liable for any loss. If the loss is paid 
 upon this ground, it shows that the construction put upon these 
 expenses, as being ordinary and like the wear and tear and decay 
 of the vessel, or otherwise, is different in England and the United 
 States. But supposing these expenses not to be considered in 
 the United States of the kind for which insurers are liable, ac- 
 cording to the general principles by which their liability is usually 
 determined, still there is a reason for making an exception in this 
 case. A vessel quits her course to refit, that she may prosecute 
 the voyage with greater safety, and it is evidently for the general 
 interest of the insurers, as well as the assured, to remove, as much 
 as possible, every discouragement to the use of precautions and 
 
 1 Stevens, c. 1, a. 2, s. [e] ; Plum- * Code de Commerce, a. 403. 
 
 mer v. Wildman, 3 Maule & S. 482. ^ Padelford v. Boardman, 4 Mass. 
 
 2 Beawes, tit. Salvage, Average, 548 ; 8 Johns. 307; 2 Caines, 263 ; Id. 
 &c., Vol. I. p. 157; 1 Magens, 67, s. 57. 274. 
 
 3 1 Magens, 68.
 
 SECT. VIII.] PERILS OF THE SEAS. 643 
 
 all practicable means for the safe prosecution of the voyage, and 
 insurers may upon this ground of expediency assume a liability 
 for these expenses. 
 
 The liability of the insurers for wages and provisions in case 
 of detention seems to be very similar to the same charges in case 
 of delay for the purpose of refitting, as far as this liability depends 
 upon the extraordinary circumstances under which the expense 
 is incurred, since a detention by capture, or an embargo, is as 
 extraordinary, and as much out of the usual course of things, as 
 a delay to refit. These two cases are considered similar in the 
 Marine Law of France.^ The liability of the insurers for this 
 expense will be considered subsequently. 
 
 1105. Underwriters are liable only for extraordinary damage 
 to the ship, as distinguished from ordinary ivear and tear and 
 deterioration by time. 
 
 " Were insurers," says Magens,^ " obliged to pay for every 
 cable and rope that breaks, or for every sail that splits, or blows 
 to pieces, there would be no other way of insuring ships, but free 
 of all particular average." 
 
 Where a vessel is wrecked; or damaged by stranding; or rolls 
 away her masts in a rough sea ; or has them carried away in a 
 gale ; there is no question of the liability of the underwriters. 
 So if, to escape from some imminent peril that is insured against, 
 it is necessary to cut away the mast, or cut a cable, or throw 
 overboard a part of the cargo, the circumstances and the sacri- 
 fice, being extraordinary, constitute a valid claim for indemnity. 
 But if a cable is worn off while the vessel lies at the usual an- 
 choring-place, and without any extraordinary action of the perils 
 insured against, or if a sail is split in the ordinary course of 
 navigation, it is the owner's loss. 
 
 It is difficult to give examples by way of illustrating the dis- 
 tinction of what is ordinary from what is extraordinary, in losses 
 and damages of this description, without getting upon disputed 
 ground. But the only satisfactory mode of illustrating this dis- 
 tinction is by instancing actual adjustments of losses, since the 
 common usage and understanding among practical men is un- 
 doubtedly the best authority upon this subject. 
 
 1 Code de Commerce, ut supra. Stevens on Average, c. 3 ; Benecke & 
 
 2 Magens, Chap. 1, p. 52, s. 51, cited Stevens by Phil. p. 366.
 
 Gil: RISKS COVERED. [CHAP, XIII* 
 
 III some instances, as where the timbers of the ship are broken^ 
 the damage done is a sufficient proof of the extraordinary degree 
 of the operation of the peril. It can in general be pretty satis- 
 factorily determined whether an injury to the body of the ship is 
 a proper subject of indemnity, the question of most frequent 
 occurrence in regard to such damage being, whether the extent 
 of the injury does not rather prove the ship to have been unsea- 
 worthy, than that the peril was extraordinary. But if it be 
 assumed that the ship was seaworthy, it is in general not diffi- 
 cult to determine whether an injury of this kind is a loss within 
 the policy. 
 
 It is sometimes a subject of doubt, whether the damage to the 
 sheathing is to be repaired at the expense of the insurers. The 
 sheathing will necessarily be destroyed and worn off by use, and 
 damage of this sort ought to be considered ordinary, and fall 
 upon the owner, except in cases of the vessel's striking, or where 
 some other injury, sustained by the vessel at the same time shows 
 that it was exposed to great violence. Injuries of this sort, which 
 are to be considered only the wear and tear of the ship, are dis- 
 tinguished from those which constitute a loss within the policy, 
 by taking into consideration the age and strength of the sheath- 
 ing, and all other circumstances which show to how great a 
 degree of violence the vessel has been exposed. 
 
 The damage to the upper ivorks of the vessel is frequently the 
 subject of particular average, and would be more frequently so, 
 did not the amount of this species of damage often come within 
 one of the exceptions of the policy. If any part of the upper 
 works is carried away, or broken in such a manner as to make a 
 specific injury, which is the proper subject of repairs, it is always 
 considered a loss within the policy, unless it falls within the ex- 
 ception of losses under three or five per cent. 
 
 The same rule applies to the masts and spars. If a mast is 
 sprung, or if spars are carried away or broken, the fact of their 
 being so is usually considered a sufficient proof of a degree of 
 violence against which the insurers undertake to make in- 
 demnity. 
 
 The boat is considered, to the purposes of insurance, to be a 
 part of the ship.^ If a boat is ivashed overboard, it is considered 
 
 1 Sievens, Part I. c. 3, a. 4 ; Benecke & Stevens by Phil. p. 369.
 
 SECT. VIII. J PERILS OF THE SEAS. 645 
 
 to be a species of loss that is insured against, unless the accident 
 happens through the fault of the captain and crew. If a boat 
 lashed upon deck is washed overboard, all insurers agree that this 
 is one of the kinds of loss insured against. 
 
 Mr. Stevens says it is the same if the boat is " properly lashed 
 to the quarters^ ^ But whether a boat may be " properly " lashed 
 in this situation seems to depend upon the number of boats that 
 it is necessary to carry, and upon the size and employment of 
 the vessel. The employment of whaling ships makes it necessary 
 to carry the boats on the outside of the ship, and no objection is 
 made to paying for a boat, which is lost on a voyage of this 
 description, on account of its being carried in this situation. 
 Men-of-war and large merchant-ships carry boats at the stern and 
 on the quarters, but the former situation is said to be much the 
 less exposed of the two. In regard to merchant-vessels generally, 
 however, if a boat fastened to the stern-davits is damaged or 
 lost, by whatever degree of violence of the waves, it is the more 
 general opinion of writers and practical insurers, that the loss 
 cannot be claimed under the policy,''^ this being said not to be a 
 proper and safe situation of the boat. Some insurers adhere to 
 this rule strictly in practice. Others pay for a boat thus fastened, 
 out of a willingness to put a liberal construction upon their con- 
 tract, in favor of the assured ; though they think the risk on a 
 boat so carried is greater than if it were lashed on deck, and that 
 it is the fault of the master to carry it in this manner. 
 
 But others make no objection to the payment of the loss in 
 such a case, because they say that it is convenient in general to 
 carry a boat at the stern, which may be readily lowered to save a 
 man who may be washed overboard, or to take up any thing that 
 may be dropped overboard. The loss of a boat so carried by 
 vessels navigating the Mediterranean, was formerly paid for with- 
 out objection, because the carrying of the boat in this situation 
 often facilitated the escape of the crew in case of the capture of 
 the vessel by corsairs.'' 
 
 In a case on a policy in the Supreme Court of Massachusetts, 
 evidence being introduced on both sides of the question, whether 
 it was proper in a West India voyage to carry a boat at the stern, 
 
 1 Stevens, Part I. c. 3, a. 5 ; Benecke 2 Stevens, Part I. c. 3, a. 5. 
 & Stevens by Phil. p. 370. 3 i Emerigon, 624, c. 12, s. 41.
 
 646 RISKS COVERED. [CHAP. XIIT. 
 
 slung on the davits, the court considered the burden to be upon 
 the underwriters to show that it was an improper place to carry 
 the boat, and that, by the evidence in that case, this did not ap- 
 pear to be an improper way of carrying the boat.^ 
 
 It is the most difficult to distinguish what is wear and tear, and 
 decay, from the damage which constitutes a loss, in the case of 
 sails, rigging, cables, and anchors. If the sails are necessarily 
 cut away in order to save the masts or yards, and for the general 
 safety, or a cable is cut or slipped for the purpose of escaping 
 from an impending peril, which is insured against, or a hawser is 
 used to secure a temporary rudder, or to supply the place of a 
 parted shroud, or sails and ropes are used for the purpose of 
 stopping a leak, though the thing sacrificed is old and would 
 soon have been worn out and destroyed by use, yet the voluntary 
 sacrifice of it gives a valid claim against the insurers for compen- 
 sation according to its value. 
 
 But where the damage or loss is not voluntary, it is difficult, in 
 many instances, to determine whether it ought to fall upon the 
 owner of the vessel or the underwriter. The parting of a rope 
 or cable, or the splitting of a sail, is not in itself necessarily a 
 proof of the extraordinary operation of the perils of the seas, for 
 this will happen from use and decay in the most favorable 
 weather, and under the most fortunate circumstances. Damage 
 or loss of this sort, therefore, commonly belongs to the owner of 
 the vessel to bear, and does not constitute the ground of any 
 claim against the insurer, unless it takes place out of the common 
 course of things, or appears to be tfee effect of the unusual and 
 violent operation of a peril insured against. 
 
 If a vessel at her port of destination, or any port in the due 
 course of the voyage, and without any gale or unusually rough 
 sea, being at anchor on a " foul " or rocky bottom, has her cable 
 chafed off, some say it is the owner's loss as a part of the wear 
 and tear ; others consider it a loss within the policy, as being an 
 extraordinary specific damage, which could not have been avoided. 
 
 A vessel which was insured against capture and perils of the 
 seas, being captured on suspicion of having enemies' goods on 
 board, and carried into Plymouth, was anchored by the prize- 
 master in the outer harbor on a " foul " bottom, but where ves- 
 1 Hall V. Ocean Ins. Co. 21 Pick. Mass. 472.
 
 SECT. VIII.] PERILS OF THE SEAS. 647 
 
 sels frequently anchor. The cable was chafed off, and the anchor 
 thereby lost, though the weather had not been boisterous, or the 
 sea remarkably rough. The vessel was released, and pursued 
 her voyage. This loss was paid without objection by the in- 
 surers ; though it possibly might not have been, if the vessel had 
 gone to Plymouth in the regular course of the voyage,^ but the 
 being taken out of the course by one of the perils insured against, 
 and the extraordinary circumstances of the case, were considered 
 as rendering this damage, without any doubt, a loss within the 
 policy. 
 
 Where the cable of a vessel was cut off, during a violent gale, 
 by being brought across the chain cable of another ship, the loss 
 was paid without any question by the underwriters. It was a 
 positive specific loss, in consequence of an unusual and extraor- 
 dinary degree of peril. 
 
 In distinguishing the wear and tear of the ship from the 
 damage which constitutes a loss, the cases of a vessel losing an 
 anchor by being compelled by the perils insured against to come 
 to anchor in an unusual place, or to carry a press of sail to escape 
 an enemy, or to keep off from a lee-shore, have been very much 
 discussed, and are said to have been the subjects of elaborate 
 treatises in Germany. Magens mentions the case of a ship that 
 was compelled to anchor in a rocky place by Heligoland, where 
 several of her cables parted. This was considered at Hamburg 
 to be a loss on the ship. He says, if such a loss does not come 
 within the policy, " it ought to be compensated as a good piece 
 of service," ^ which implies a doubt whether it came within the 
 policy. 
 
 The same writer says : " We remember at London, where 
 ships, endeavoring- to keep clear of a lee-shore, had new sails blown 
 away and cables parted by anchoring- in an open sea, to avoid 
 driving ashore, the losses were made good by the insurers, whose 
 interest it always is to make it the master's interest to spare 
 nothing, in such extraordinary cases, to save the ship from 
 stranding." ^ 
 
 In the United States these two descriptions of loss are most 
 generally, if not invariably, considered as coming within the 
 
 1 2 Valin, 81, tit. Insurance, a. 29. 2 i Magens, 53, s. 51. 
 
 3 1 Magens, 53, s. 51.
 
 648 RISKS COVERED. [CHAP. XIII. 
 
 stipulation of indemnity. It does not distinctly appear that 
 these losses are considered in England as coming within the 
 policy.^ 
 
 It will be subsequently considered in what cases any of the 
 preceding losses are general or particular average. To which- 
 ever of these descriptions a loss belongs, the principles by which 
 it is determined to be within the policy are the same; it must in 
 either case happen under extraordinary circumstances, or result 
 from the extraordinary operation of the perils insured against. 
 
 SECTION IX. PIRACY, ROBBERY, THEFT. 
 
 1106. Under the clause for indemnity for loss by ^^ pirates, rob- 
 bers or rovers, and thieves,^' the underwriters are liable for piracy, 
 and robbery, and plunder by force, by persons not belonging to the 
 vessel, or by the mariners belonging to it, where it could not have 
 been prevented by reasonable vigilance and precautions? 
 
 A wrongful seizure and sale of a cargo by a consul of the 
 United States, does not come within " piracy, robbery or theft." ^ 
 
 According to the old authorities, the risk of piracy would be 
 covered under " perils of the seas," though it were not expressly 
 insured against in the policy under the description of piracy. It 
 has been determined, that, in the case of charter-parties, by which 
 it is stipulated to convey and deliver goods, the perils of the seas 
 excepted, it is a loss by the perils of the seas under this exception, 
 where the vessel is robbed or is taken by pirates.* 
 
 Under this clause Lord Kenyon thought the assured would 
 have been entitled to indemnity for a loss on a cargo of corn, 
 occasioned by a mob that came on board of a vessel lying at 
 Elly Harbor, in Ireland, and took the government of her from the 
 captain and crew, and ran her upon a reef of rocks, whereby the 
 cargo was damaged, had the insurers not been exempted from 
 the loss under the memorandum against partial losses on that 
 article. He said, " If a partial loss could have been recovered 
 
 1 Stevens, Part I. c. 3, a. 9 ; 5 Bos. 3 Paddock v. Commercial Ins. Co. 2 
 & P. 378 ; Benecke & Stevens by Phil. All. Mass. 93. 
 
 372. 4 1 Roll. Abr. 248, pi. 10 ; Comb. 56 ; 
 
 2 See Malynes, Lex. Mer. c. 25, 4th Park. Ins. 103. 
 ed. p. 295 ; Emer. torn. 1, c. 12, s. 29.
 
 SECT. IX.] PIRACY, ROBBERY, THEFT. 649 
 
 upon this policy, the assured might have recovered for a loss by- 
 pirates." ^ 
 
 Under the risk of pirates and rovers, or under perils of the seas, 
 the insurers are liable for losses by a mutiny of the crew.^ 
 
 Insurance being made on the interest of the assured on account 
 of his advances for shipping 350 coolies from China for Peru 
 against piracy and other perils, the coolies mutinied, got posses- 
 sion of the ship, changed the course, and landed at some place 
 out of Peru, and escaped. This was held by Pollock, C. B., and 
 Park, B., Piatt, B., and Martin, B., of the English Exchequer, to 
 be a loss by piracy. " The running away with the ship being as 
 much the cause of the loss, as if it had been seized by strangers 
 and the cargo had consisted of wild animals which had escaped 
 and could not be caught." ^ 
 
 And under a warranty " free from seizure," a similar loss was 
 held to come within the exception.* 
 
 In some policies the insurers agree to indemnify against loss 
 by " assailing" thieves, instead of "rovers" or "thieves" simply. 
 
 There is a distinction between plunder committed with supe- 
 rior force, and simple larceny. It is for the purpose of adapting 
 the policy to this distinction, that some underwriters have intro- 
 duced the phrase " assailing thieves." 
 
 A policy against thieves simply has not been considered to 
 cover a loss by theft, except that which is accompanied by vio- 
 lence, or committed under circumstances in which it could not be 
 prevented.^ 
 
 Weskett^ thinks that the insurers are not answerable for 
 " thefts committed during the night by land robbers, who come 
 on board while the vessel is in port." He is speaking of a case 
 of theft without violence. And this construction is adopted by 
 Mr. Justice Story .'^ 
 
 1 Nesbitt V. Lushington, 4 Term, ^ Kleinwort v. Shepard, 1 Ell. & E. 
 783. 447. 
 
 2 Brown v. Smith, 1 Dow, Pari. Cas. 5 Hartford v. Maynard, Park, Ins. 33. 
 349. See also 1 Emerigon, 534, c. 12, s. 29; 
 
 3 Nayler v. Palmer, 8 Exch. 739, 22 Roccus, n. 42; 1 Magens, 76, s. 63; 3 
 Eng. L. & Eq. 573. Affirmed on appeal Kent, Comm. 303, 3d ed. 
 
 in the Exchequer Chamber. Palmer ^ Weskett, tit. Theft. 
 
 V. Nayler, 10 Exch. 382; 26 Eng. L. & ' Magoun v. New England Ins. Co. 
 
 Eq. 455. 
 
 VOL. 1. 55
 
 650 RISKS COVERED. [CHAP. XIII. 
 
 Mr. Chancellor Walworth, of New York, has held that under- 
 writers are answerable under this risk for loss by theft committed 
 without violence by persons not belonging to the ship while it 
 lies at the wharf.^ 
 
 Und^r a policy on goods against loss by, and " barratry of the 
 master and mariners," and by " thieves," without the qualification 
 " assailing," on a voyage from New York to New Orleans, and 
 thence to Tuscumbia, in Alabama, the insurers were charged in 
 New York with the loss of a part of the goods, probably stolen 
 by passengers or others, found to be missing from the packages 
 on their being opened at Tuscumbia, due vigilance and precau- 
 tions against theft being presumed and the burden of proving 
 the contrary being considered to be upon the underwriters.^ 
 
 An opposite decision has been made by the Supreme Court 
 of Tennessee, in case of insurance of goods from New York via 
 Pittsburg to Nashville, part of which were alleged, in the declara- 
 tion for loss, to have been stolen by persons connected with the 
 boats by which the goods were sent. On demurrer, the judgment 
 was against the claim for the loss.^ 
 
 Where the policy is against " thieves " simply, the provision is 
 too explicit and definite to admit of the exclusion of all simple 
 larcenv, since it would cancel this provision, since larceny by 
 violence is insured against as robbery. The Continental juris- 
 prudence of Europe is not applicable on this question, as has 
 been justly remarked by Mr. C. J. Savage, of New York,* at least 
 under some forms of policy in use on the Continent, as those of 
 Nantes and Lisbon given by Boulay Paty,^ where the term " pil- 
 lage " is used in the former, and in the latter some term translated 
 by the same author as " pillage," which I do not understand to be 
 precisely equivalent to our term " theft." 
 
 Accordingly, I conclude that in a policy against robbers and 
 thieves, without the qualification " assailing," the insurers are 
 liable, as stated above, for theft committed on the voyage in spite 
 
 1 Stor. C C. 157; and see Roccus, Ing. 3 Marshall v. Nashville Ins. Co. 1 
 
 n. 42. Humphr. Tenn. 118. 
 
 1 Atlas Ins. Co. v. Storrow, 5 Paige, 4 American Ins. Co. v. Bryan, 26 
 Ch. N. Y. 285. Wend. N. Y. 563. 
 
 2 American Ins. Co. i'. Bryan, 26 5 Cours de Droit Mar. torn. 3, ed. 
 Wend. N. Y. 563; 1 Hill, N. Y. 25. 1822, p. 284, 287.
 
 SECT. IX.] PIRACY, ROBBERY, THEFT. 651 
 
 of due vigilance and precautions against it, and especially where 
 the goods are at the time put out of the control and superin- 
 tendence of the assured, and his agents and representatives ap- 
 pointed by him, by the operation of the perils insured against or 
 of perils to which it was evident that they must be exposed 
 though not insured against in the policy. 
 
 The clause " loss by enemies, pirates, and assailing thieves," 
 covered seizure by the so-called Confederate States of America 
 during the rebellion.^ 
 
 1107. The underivriters are answerable for loss by plunder in 
 direct consequence of the insured subject being at the time jJut out 
 of the possession and control of the master and other agents ap- 
 pointed by the assured, by shipwreck or other peril insured against, 
 though theft or plunder is not specifically insured against; 
 whether the pillage is committed on the water or on land. It is a 
 general doctrine, that all the loss directly consequent upon a peril 
 is covered by insurance against it.'-^ 
 
 Pothier^ says the insurers are liable for loss by plunder on 
 shore, after the shipwreck of the vessel. 
 
 The reason given by Emerigon^ for this construction is, that 
 it would be a case of total loss, by which the property passes to 
 the underwriters, and thus the loss by plunder would be directly 
 their own ; res perit domino. But this would not necessarily be 
 the case, according to the construction of this contract in England 
 and the United States, since the assured is not obliged to abandon 
 and claim for a total loss, but has his election to claim either for 
 a total or partial loss. 
 
 The doctrine just stated has been recognized in the case of a 
 policy on goods from London to the Isle of France, in which 
 some of the goods were saved, after shipwreck, and got on shore 
 at the Isle of France, where they fell into the hands of the natives, 
 who destroyed a part and stole the remainder.^ 
 
 1 Monongahela Ins. Co. r. Chester, 43 No. 1098 a.; infra, No. 1129, 1132, 
 Penn. St. 491 ; Dole v. Merchants' Ins. 1134, 1136, 1137. 
 
 Co. 51 Me. 465. 3 Pothier, Insurance, n. 55. 
 
 2 Mafi;oun v. New England Mar. Ins. 4 Enici-igon, c. 1 2, s. 29. 
 
 Co. 1 Stor. C. C. 157; and see supra, 5 Bondrett v. Hentigg. 1 Holt, 149.
 
 652 RISKS COVERED. [CHAP. XIII. 
 
 SECTION X. CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 
 
 1108. In policies of the common form, the property or interest 
 is insured against "takings at sea, arrests, restraints, and detain- 
 ments of all kings, princes, and people, of what nation, condition, 
 or quality soever." This part of the policy protects the assured 
 against loss by capture and detention. By capture is meant the 
 taking possession of property with the purpose of appropriating 
 it to the captorh own use, by which it is distinguished from a 7nere 
 detention, with the design of ultimately liberating the property, as 
 in the case of an embargo.^ 
 
 A seizure is equivalent to a capture, as it is made with the in- 
 tention of depriving the owner of his property in the subject.^ 
 
 1109. The policy extends to captures, arrests, and detentions by 
 public enemies ; by belligerents, where the property insured is 
 neutral;^ or by the government of ivhich the assured is a subject,^ 
 for any cause other than a violation of law : 
 
 As the taking of a vessel by government to be used as a fire- 
 ship :^ 
 
 Or the capture of a neutral ship by captors acting under the 
 belligerent government of which the underwriters are subjects, 
 provided the risks may be legally insured against:^ or seizure of 
 a ship under authority of the Confederate States of America, so- 
 calledJ 
 
 But does not apply to a violent taking possession of the ship 
 by a mutinous crew.^ 
 
 1110. The above-quoted clause of the policy is more generally 
 understood to apply to captures, seizures, and detention by the 
 commissioned officers and agents of some lawful and acknowl- 
 
 1 1 Emerigon, 535, c. 12, s. 30; Po- 6 Anthony v. Moline, 5 Taunt. 711 ; 
 thier, tit. Insurance, n. 66, note by Es- Schnakoneg v. Andrews, id. 716 ; Ba- 
 trangin. zitt v. Meyer, id. 824. 
 
 2 11 Johns. N. Y. 287. 7 Dole v. New England Ins. Co., Dole 
 
 3 Pihinelander v. Ins. Co. of Penn. 4 v. Equitable Ins. Co. 6 All. Mass. 373; 
 Crunch, 29. Fifield v. The Ins. Co. 47 Penn. St. 
 
 4 Nantes v. Thompson, 2 East, 385; 166; Dole v. Merchants' Ins. Co. 51 
 and see cases infra. See also Lozano Me. 465. 
 
 V. Janson, 2 Ell. & E. 160. . 8 Greene v. Pacific Ins. Co. 9 All. 
 
 5 Green v. Young, 2 Salk. 444 ; 2 Ld. Mass. 21 7. 
 Raym. 840.
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 653 
 
 edged government. Accordingly Mr. Justice Buller said, the 
 word " people " in this clause " means the supreme power; the 
 power of the country, whatever it may be." ^ Thus the court 
 considered the loss of a cargo of corn by a mob at Elly Harbor 
 as coming under the clause relating to piracy. 
 
 The word " capture " is of itself broad enough to comprehend 
 any forcible seizure, arrest, or detention, which may be lawfully 
 insured against. Loss on a slave cargo by the insurrection of 
 the slaves, has been held in Louisiana to be covered under 
 "capture." 2 But the specification of captures, &c., " by kings, 
 princes, and people," has been held to limit the construction of 
 this provision of the policy materially. 
 
 1111. If the vessel is detained by an embargo, whether imposed 
 by the government of which the parties are subjects, or by a 
 foreign government, it is an arrest and restraint within the mean- 
 ing of the policy.^ 
 
 1112. And so if it is stopped for search, and sent in for ex- 
 amination.* 
 
 1113. In case of the voyage being broken up and renounced on 
 account of the probability or certainty of loss by a peril from which 
 the underwriters are expressly exonerated, they are not liable. 
 
 Insurance being made on a cargo from New York to ports in 
 the Gulf of Mexico and back, " free from seizure or detention on 
 account of illicit or prohibited trade," the vessel, after putting in 
 at St. Ander, one of those ports, and delivery of the cargo, on an 
 agreement with General Mina, commander of the Independent 
 forces then in possession of the place, the master was compelled 
 to leave for fear of capture by some Loyalist ships that hove in 
 sight; and before there was opportunity to return and deliver the 
 cargo, the place had been retaken and was occupied by the Loy- 
 
 1 Nesbitt V. Lusbington, 4 Term, 783. 454 ; Rotcb v. Edie, 6 Term, 413; Oli- 
 
 2 M' Cargo v. Ne\Y Orleans Ins. Co. vera f. Union Ins. Co. 3 Wheat. 183; 
 10 Rob. La. 202. Odlin f, Ins. Co. of Penn. 2 Wash. C. 
 
 3 Greene v. Young, 2 Ld. Raym. C. 312; MBride v. Marine Ins. Co. 5 
 840 ; 2 Salk. 444 ; Page v. Thompson, Johns. N. Y. 299 ; Walden v. Phoenix 
 Park, Ins. 8th ed. 175; Touteng v. Hub- Ins. Co. id. 310; Ogden v. N, Y. Fire- 
 bard, 3 Bos. & P. 291; Code de Com- men's Ins. Co. 10 id. 177; 12 id. 25; 
 merce, a. 369, 370; Beawes, 268, tit. Lorent v. South Carolina Ins. Co. 1 
 Embargo; Grotius, de .Jure Bel. 1. 2, Nott & M'C. So. C. 505 ; 3 Kent, Comm. 
 c. 2, s. 10; 1 Blackst. Com. 270; Black- 3d ed. 291. 
 
 enhagen v. London Ass. Co. 1 Campb. ■* 1 Magens, 67. 
 • 55*
 
 654 RISKS COVERED. [CHAP. XIII. 
 
 alists, and, had he entered, the cargo would have been seized as 
 prohibited goods, and also on account of the master having in- 
 tended to supply the Independents ; whereupon he gave up the 
 voyage, and returned with the original cargo to New York. The 
 Supreme Court decided that the underwriters were not liable for 
 a total loss on the cargo by the loss of the voyage.^ 
 
 1114. Under the perils of arrests, restraints, and detention, the 
 insurers take the risk of detention in a port by its being effectually 
 blockaded. 
 
 In an elaborate case before the Supreme Court of the United 
 States, on a policy in favor of Spanish subjects on a cargo from 
 Baltimore to Havana, the vessel having sailed and being near the 
 mouth of the Chesapeake, February, 1813, the master descried 
 four British frigates, officers from which boarded his vessel and 
 indorsed upon the papers that the Bay of Chesapeake was under 
 blockade, and ordered him to return, and not again to attempt to 
 come out. The blockade was not known in Baltimore when the 
 vessel sailed. The voyage was thereupon given up, and the 
 cargo abandoned to the underwriters. This loss was held to be 
 covered ; and Mr. C. J. Marshall, giving the opinion of the court, 
 remarked that an embargo was admitted to be a peril within the 
 policy. " The application of force is not more direct on the ves- 
 sel stopped in port by an embargo, than on the vessel stopped in 
 port by a blockading squadron." ^ 
 
 A distinction is made by the court in this and also in a subse- 
 quent case,^ betu'een an occlusion in a port, bay, or river, and an 
 exclusion from it; the former being held to be an arrest, restraint, 
 and detention within the policy; the latter, not so. 
 
 This distinction had not been made in a prior case in Massa- 
 chusetts, where, under a policy upon a ship then at Buenos 
 Ayres, the master was prevented from leaving that place by no- 
 tice from the officers of a British frigate and gunboats lying in 
 the river below that they should capture his vessel if he came 
 down. The court, then consisting of Parker, C. J., and Thatcher, 
 Jackson, Dewey, and Putnam, Justices, decided against the as- 
 sured,* on the authority of a previous decision by Parsons, C. J., 
 
 1 Smith I'. Universal Ins. Co. 6 3 Smith v. Universal Ins. Co. 6 
 Wheat. 176. Wheat. 176. 
 
 2 Olivera v. Union Ins. Co. 3 Wheat. * Brewer v. Union Ins. Co. 12 Mass 
 183. 170.
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 655 
 
 and his associates,^ on a policy upon cargo, where the port of 
 destination was under constructive blockade by the British Or- 
 ders in Council, 1807, and the importation was interdicted by 
 some of the decrees of the Emperor Napoleon; from which case 
 the subsequent one is distinguishable, as are those before the 
 Supreme Court of the United States, by the circumstance that 
 in the latter the vessel was restrained from leaving a port. 
 
 This distinction just referred to is not taken in a Maryland 
 case of a ship insured from Baltimore to Lisbon, in 1813, and so 
 being about the time of that in the Supreme Court of the United 
 States cited above. In the Maryland case the vessel was also 
 stopped by the British squadron then blockading Chesapeake 
 Bay, and ordered back. This was, however, an insurance on the 
 ship, which differs in respect of the present question from one of 
 the cargo or freight, as we shall see in considering what is a loss 
 of the voyage giving a right of abandonment on these different 
 subjects of insurance, in a subsequent chapter. 
 
 1115. Whether a loss consequent upon the imminency of a cap- 
 ture, arrest, restraint, or detention, is within the risk assumed by 
 insurance against such perils ? 
 
 Where intelligence is received on the voyage that the port of 
 destination is blockaded, or the captain is warned that the im- 
 portation of his cargo is interdicted, and he will be exposed to 
 capture or seizure by proceeding on his course, the question has 
 arisen and been elaborately discussed in numerous cases, whether 
 this is an arrest or detention. Must the captain proceed for his 
 port of destination, notwithstanding such warning, and take the 
 hazard of capture? or must he turn off to some neighboring port, 
 or return to his port of departure, and wait until the blockade, or 
 other obstacle to the voyage, is removed ? Or is the voyage 
 broken up so as to make the insurers answerable for a total loss ? 
 
 It has been held, that if the captain disregards the danger of 
 which he has sufficient notice, and proceeds on the voyage, in 
 such case, whatever loss happens, it will be through his fault, and 
 the assured cannot recover for it, unless the captain's misconduct 
 amounts to barratry.^ 
 
 This is in effect holding that merely the blockade of the port 
 
 J Richardson v. Maine F. & Mar. N. Y. 249, 260, 203; Richardson v. 
 Ins. Co. 6 Mass. 102. Maine F. & Mar. Ins. Co. 6 Mass. 
 
 2 Schmidt v. United Ins. Co. 1 Johns. 102.
 
 G56 RISKS COVERED. [CHAP. XIII. 
 
 of destination, or interdiction there, is not of itself a detention, 
 arrest, or restraint, so long as the vessel is not taken forcible pos- 
 session of, although the voyage may be defeated. The effect is 
 to prevent the vessel, at least, from pursuing her course. This 
 is an inevitable accident, which discharges the owners from their 
 obligation, under the charter-party or bill of lading, to transport 
 the cargo to the port of destination,^ and dissolves the contract 
 with the mariners for wages.^ 
 
 The interruption of the voyage by blockade, interdiction at the 
 port of destination, or the imminent peril of capture, has been 
 said in some cases not to be a loss within the policy, because the 
 insurers are not liable for a loss incurred through fear of a peril, 
 or quia timet. It is not easy to say what is the precise import 
 of this maxim respecting fear of a peril. 
 
 The common form of the policy provides that, " in case of any 
 loss or misfortune, it shall be lawful for the assured to sue, labor, 
 and travel, in and about the defence, safeguard, and recovery of 
 the property, to the charges whereof the insurers will contribute." 
 If this clause applies only to cases where a direct and visible 
 damage has actually happened to the property, such as ship- 
 wreck or capture, still it must have reference to something fu- 
 ture ; the assured sues and labors to prevent the property from 
 being plundered in one case or condemned in the other, — he has 
 reference to something which he fears may take place. 
 
 The insurers are liable for what is paid to captors by way of 
 compromise ; here the peril has actually overtaken the property ; 
 it has been captured ; but, in offering a compromise, the assured 
 is determined by the prospect of the condemnation of the prop- 
 erty, or of the expense of obtaining its release. What has ac- 
 tually happened — namely, the capture — seems to be of no 
 importance except as it makes detention, or the condemnation of 
 the property, or expense of obtaining its release, probable; and a 
 compromise to prevent an impending capture, which would oth- 
 erwise be inevitable, seems to stand very much upon the same 
 ground with a compromise to prevent the consequences of a cap- 
 ture already made. Whether the fear is, that the peril will begin, 
 or, having begun, will continue to operate on the property, the 
 
 1 Putnam v. Wood, 3 INfass. 481 ; 2 The Saratoga, 2 Gall. C. C. 164. 
 fc-ott V. Libbv, 2 Johns. X. Y. 336.
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 667 
 
 interest of the parties seems equally to require the assured to act 
 upon such fear, where it is well grounded. 
 
 Insurers were held liable for the loss of specie thrown over- 
 board at the time the ship was captured, to prevent its falling 
 into the hands of the enemy.^ Yet it was thrown over for fear 
 it would come into his hands ; and though this was done at the 
 time of the capture, this^only proves that the peril was so im- 
 pending as to justify the assured in acting with reference to it. 
 
 They have also been held liable for the loss of a vessel volun- 
 tarily burnt to prevent her falling into the hands of the enemy.^ 
 This was ruled by Lord Ellen borough to be a loss by fire, but 
 this only relates to the manner of declaring in the action, for the 
 insurers certainly could not be liable unless enemies and capture 
 were among the risks insured against. 
 
 Jettisons and many other losses that are subjects of general 
 contribution, are often incurred on account of an impending peril 
 that has not at the time begun sensibly to take effect upon the 
 property, as well as on account of what is apprehended from the 
 continuance of a peril that has already begun to operate; yet, if 
 the peril be insured against, the insurers are liable for these 
 losses. 
 
 There appears to be reason, therefore, to infer, that the insur- 
 ers are liable for a loss that may fairly be considered to be 
 exclusively and solely occasioned by a peril insured against, 
 whether the loss prevents, or is concurrent with, or follows, the 
 actual operation of the peril. 
 
 Kent, C. J., applies the maxim quia timet to a danger too 
 remote to be regarded as the specified peril.^ This is the only 
 definite, intelligible meaning which I am able to find for the 
 maxim. It seems not to be invariably limited to this sense, but 
 for the present purpose we will consider it to be so limited, with- 
 out stopping to inquire whether it is always true, even so far. It 
 concerns us to notice it only for the purpose of preventing it 
 from spreading obscurity over our inquiries. 
 
 The question, whether interdiction of trade at the port of des- 
 
 1 Butler V. Wildman, 3 Barnew. & Estrangin's note ; Valin, tit. Insurance, 
 Aid. 398. a. 26. 
 
 2 Gordon v. Rimmington, 1 Campb. 3 Craig, v. United Ins. Co. 6 Johns. 
 123 ; Pothier, tit. Insurance, n. 53, and N. Y. 253.
 
 658 RISKS COVERED. [CHAP. XIII. 
 
 tination, interception of the voyage by blockade, and imminent 
 danger of capture or seizure, amount to an arrest, restraint, and 
 detention, for which the insurers are liable, has occurred in differ- 
 ent cases in England, and has been elaborately considered in the 
 courts of the United States. 
 
 The underwriters on a cargo of pilchards insured from Corn- 
 wall to Naples were held in England not to be liable for the loss 
 where the voyage was broken up and the cargo sold at Mahon, 
 where the vessel had put in by order of the commander of the 
 convoy, on account of intelligence that English vessels were 
 excluded from Naples : ^ 
 
 Or where the voyage was defeated by the port of destina- 
 tion having fallen into the hands of the enemy after the vessel 
 sailed : ^ 
 
 Or where the vessel, being ordered away from Maldonado in 
 the river Plate, the only port of destination named in the policy 
 which was not in the hands of the enemy, met with a loss by 
 perils of the sea in proceeding for Rio de Janeiro, the nearest 
 friendly port : ^ 
 
 Or where, on a voyage from Hull to St. Petersburg, the master 
 of a British ship was informed by the commander of the convoy 
 with which he sailed, that British vessels were embargoed in the 
 Russian ports, and therefore returned to England: * 
 
 Or where, on a voyage by a British vessel from London to 
 Revel, the master, hearing on the passage of the embargo laid on 
 British vessels in Russia, put back, and the vessel was lost while 
 on the course to England :^ 
 
 1 Hadkinson v. Robinson, 3 Bos. & 2 Lubbock v. Rowcroft. 5 Esp. 50, 
 
 P. 388, per Alvanley, C. J., and his per Lord Ellenborough, C. J., on the 
 
 associates, on the ground that the peril ground of its being a mere fear of cap- 
 
 of arrest acted not directly, but circui- ture. 
 
 tously, on the subject. This case was 3 Parkin v. Tunno, 11 East, 22; 2 
 
 approved by the Supreme Court of the Campb. 59; on the ground that " the 
 
 United States, as illustratins the doc- policy could not cover the voyage to 
 
 trine that the underwriters against these Rio, notwithstanding the necessity of 
 
 perils are not answerable for the risk of it." 
 
 the interdiction of trade by the author- < Forster v. Christie, 11 East, 205, 
 
 ities in possession of the port of desti- decided on the authority of Hadkinson 
 
 nation. Smiths. Universal Ins. Co. 6 i\ Robinson, 3 Bos. & P. 388. 
 
 Wheat. 176. 5 Blackenhajjen v. London Ass. Co.
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 659 
 
 Or where, in Massachusetts, under a policy on a cargo from 
 Salem in that State to Malaga, the master, being warned by a 
 British privateer, (1808,) by indorsement of his register, not to 
 proceed to any port except in Great Britain, Gibraltar, or Malta, 
 and was served with a copy of the British Orders in Council, 
 declaring the Continental ports to be in a state of blockade, and 
 advised to return to Salem, accordingly put about, and was 
 captured by another British privateer, while proceeding for 
 Salem, and afterwards rescued his vessel and arrived at that 
 port : 1 
 
 Or where, under a policy on vessel and cargo, on a voyage 
 from Salem to St. Andero in Spain, the master, having a similar 
 notice to that in the preceding case, proceeded to Gibraltar, and 
 relinquished the voyage : ^ 
 
 Or where, under a policy upon a cargo of fish from Boston to 
 Leghorn, the master having notice at Gibraltar of the same 
 British orders in Council, and the counter French Decrees, gave 
 up his voyage and sold his cargo there, the same being in a 
 heating state, and about to be spoiled : ^ 
 
 Or where, under policies on vessel and cargo from New York 
 to Barcelona or Salon in Spain, with divers special stipulations 
 
 1 Campb. 454, per Lord EUenborough, 2 Cook v. Essex F. & Mar. Ins. Co. 
 
 -who said the case would "hardly bear 6 Mass. 122, per Parsons, C. J., and his 
 
 to be stated," as the voyage insured associates, on the ground that though 
 
 had been abandoned, though his ruling the voyage was lost by a reasonable 
 
 might be otherwise if the intention of fear of capture on account of contra- 
 
 the master had been to resume the voy- band trade had the ship proceeded, 
 
 age. The assured in this case, having which trade was not insured against, 
 
 been nonsuited, brought his action in and also on the ground that the insur- 
 
 the Common Pleas, where the ruling by ers would not have been liable, if it had 
 
 Sir James Mansfield was the same, but been insured against. See also Wheat- 
 
 the jury found a verdict in favor of the land v. Gray, 6 Mass. 124. 
 
 assured, which the court set aside. 1 3 Amory v. Jones, 6 Mass. 318, per 
 
 Campb. 456, n. Parsons, C. J., and his associates, on 
 
 1 Richardson v. Maine F. & Mar. Ins. the ground of fear of peril. See also, 
 
 Co. 6 Mass. 102, per Parsons, C. J., for similar decisions by the same court 
 
 and his associates, that a " fear of a loss on a similar state of facts, Lee v. Gray, 
 
 was not a peril within the policy," and 7 Mass. 349 ; Tucker v. United Mar. & 
 
 to admit it would be productive of un- Fire Ins. Co. 12 Mass. 288 ; in which 
 
 certainty, and open a door to frauds." the judgment is put upon the ground of 
 
 See remarks upon this case by Bracken- fear of peril, 
 ridge, J., 5 Binn. Penn. 421.
 
 660 RISKS COVERED. [CHAP. XIII. 
 
 respecting abandonment on capture or detention, the master hav- 
 ing notice of the British Orders in Council and French Decrees 
 above mentioned, instituting what have been termed " paper 
 blockades," and declaring sweeping interdictions to neutral com- 
 merce, and also having notice of an Algerine war upon American 
 commerce, gave up the voyage and returned with his cargo to 
 New York.i 
 
 It is held by the Supreme Court of the United States that the 
 loss of the voyage through fear of capture, arrest, restraint, or 
 detention, occasioned by false intelligence, is not a risk covered 
 by an insurance against those perils ; as where the master of a 
 vessel, on a voyage from Philadelphia to the Isle of France, in 
 1808, being detained two days, and warned by a British ship of 
 war, by indorsement on the ship's papers, not to proceed to any 
 port of the enemies of Great Britain, and told erroneously that 
 the Isle of France was blockaded and his vessel would be sub- 
 ject to capture if he proceeded thither, thereupon abandoned his 
 voyage and returned to Philadelphia.^ 
 
 There have been, however, divers decisions that the loss of a 
 voyage by its being abandoned on account of the certainty of 
 capture or seizure, upon the vessel's proceeding, or of such ex- 
 treme probability as to render proceeding upon the voyage egre- 
 giously rash and inexcusable, is a loss by arrest, restraint, and 
 detention : ^ 
 
 1 Craig V. United Ins. Co. 6 Johns, was adjudged in the English King's 
 
 N. Y. 266, per Kent, C. J., and his as- Bench, that no freight pro rata was due 
 
 sociates, on the ground that it did not under a charter-party stipulating for 
 
 appear that, under the orders and de- payment of freight on the right delivery 
 
 crees and interdictions, the vessel or of the cargo at Lisbon. Liddard v 
 
 cargo would certainly have been subject Lopes, 10 East, 526. 
 
 to capture or seizure, and condemna- ^ King v. Delaware Tns. Co. 6 
 
 tion, had the vessel proceeded to Barce- Cranch, 71 ; 2 Wash. C. C 300. The 
 
 lona. This made it a question for the ground of the decision was that the voy- 
 
 jury. And see Corp r. United Ins. Co. age was not prohibited by the British 
 
 8 Johns. N. Y. 277, for a similar judg- orders in council, and that there was 
 
 ment on a like state of facts. In case not either any physical or legal impedi- 
 
 of intelligence received by an English ment to the vessel's proceeding, 
 
 vessel after the voyage had begun, that 3 Craig v. United Ins. Co. 6 Johns. 
 
 Lisbon, the port of destination, had N. Y. 226 ; per Kent, C. J., giving the 
 
 fallen into the hands of the French, opinion of the court ; and see Symonds 
 
 then at war with Great Britain, and of v. United Ins. Co. 4 Dal. 417. 
 the voyage being thereby defeated, it
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 661 
 
 As where, under a policy made in New York on cargo, on a 
 voyage thence to Sweden or Russia, the master, being off Goth- 
 enburg, July, 1812, received intelligence of war between the 
 United States and Great Britain, and considering capture to be 
 certain if he should proceed on his voyage up the Baltic, then 
 swarming with British cruisers, some of which were constantly 
 in sight, renounced the voyage and put into Gothenburg, and 
 there disposed of his cargo : ^ 
 
 And where, in another New York case, under a policy on a 
 cargo from New York to Hamburg, the master of the vessel had 
 notice from a British ship of war in the English Channel, that 
 the Elbe was blockaded, which notice was indorsed on the ship's 
 register, and thereupon turned off to Embden as the nearest neu- 
 tral port to Hamburg, where the consignees, at the latter place, 
 consented to receive the cargo : ^ 
 
 And where, in a Pennsylvania case, under a policy on goods 
 from Philadelphia to Antwerp, a guard was put on board of the 
 vessel on its arriving in the Flushing Roads, October, 1807, and 
 the vessel was ordered not to proceed to Antwerp, and the guard 
 remained on board until the master consented to change his des- 
 tination and proceeded for Rotterdam by advice of his consignees, 
 and was captured by a British ship and sent to the Downs and 
 detained until he had intelligence of the decree of Holland for- 
 bidding the entry of vessels which had touched in England, when 
 he relinquished his voyage : ^ 
 
 And where, in a Louisiana case, a cargo being insured from 
 New Orleans to Tampico, the vessel was boarded oft" the latter 
 
 1 Saltus V. United Ins. Co. 15 Johns, ing, on the ground that there had been 
 N. y. 523, per Thompson, C. J., and no actual operation of any vis major on 
 Spencer, Van Ness, Yates, and Piatt, the insured subject. 
 
 Justices, upon the ground that it was a ^ Savage v. Pleasants, 5 Binu. Penn. 
 
 restraint by princes or by men-of-war. 403. Tilghman, C J., giving the opinion 
 
 2 Smidt V. United Ins. Co. 1 Johns, of the court, remarks that, in reference 
 N. Y. 249 ; Kent, C. J., Thompson, J., to the decisions against the assured in 
 and Livingston, J., being in favor of the similar cases, " the assured would be in 
 claim for a total loss, on account of loss a hard situation," if he could not re- 
 of the voyage on the cargo by restraint, cover for a capture if he proceeded, or 
 citing Targa, c. 59, 291; Casar. Disc, for a loss of the voyage if he abandoned 
 23, n. 84 ; Emerigon, torn. 1, p. 507, c. it. See also remarks of Tilghman, C. 
 12, s. 26, and p. 542, c. 12, s. 31 ; and J-, in Thompson v. Kead, 12 berg. & ii. 
 Spencer, J., and Tompkins, J., dissent- Penn. 440. 
 
 VOL. I. 56
 
 662 RISKS COVERED. [CHAP. XIII. 
 
 place by officers from the French blockading squadron, and for- 
 bidden to enter, and prevented from entering, and ordered to put 
 back to her port of departure, and thereupon returned thither, the 
 Supreme Court of that State held it to be a total loss by arrest, 
 though neither vessel nor cargo was actually seized or detained.^ 
 
 The cases above referred to evidently present striking discrep- 
 ancies, and prove the nicety and difficulty of the question under 
 consideration. 
 
 One of the questions suggested by these cases relates to the 
 time when the risk ends, in case of the insured voyage being re- 
 linquished ; in respect to which, I cannot but doubt those cases 
 where it is held that the risk ceases immediately on the vessel's 
 changing its course.^ These decisions proceed upon the notion, 
 that the risk continues only so long as the voyage continues. 
 But the fairer ^nd truer way of applying this proposition seems 
 to be, to consider the voyage as continuing until the ship and 
 cargo can be extricated from the peril. Where the master steers 
 for another port of destination, or returns to his port of departure 
 merely for the purpose of avoiding the capture or seizure which 
 awaits him inevitably if he proceeds on the original destination, 
 he does not disengage himself from the insured voyage until he 
 arrives at his home port, or the foreign port of necessity which 
 he has selected. No new enterprise is yet projected. He is only 
 adopting what he deems the least hazardous way of bringing the 
 pending voyage to an end. I cannot see how the risk should be 
 terminated by avoiding seizure or capture in such case, any more 
 than by shunning a rock or shoal. I accordingly state as what 
 seems to me to be the better doctrine on this subject, that, 
 
 In case of the master justifiably turning off to another port of 
 discha)'g-e, or to his port of departure, merely to avoid certain cap- 
 ture at that of the original destination, the risk continues on the 
 ship, cargo, or freight, until arrival at such port. 
 
 The risk must terminate at such port on all the interests. 
 There may, in the mean time, have been partial losses on either 
 interest. In respect to the ship, if it arrives in a navigable state, 
 
 1 Vipers v. Ocean Ins. Co. 12 La. 259; Blackenhagen v. London Ass. Co. 
 367. 1 id. 454 ; Richardson v. Maine Ins. Co. 
 
 2 Lubbock I'. Rowcroft, 5 Esp. 50; 6 Mass. 102; Cook r. Essex Ins. Co. id. 
 Parkin i. Tunuo, 11 East, 22 ; 2 Campb. 122.
 
 SECT. X.] CAPTURE, ARRESTS, RESTRAINTS, AND DETENTION. 663 
 
 without damage ^over half of its value, there has been no total 
 loss. In respect of the freight, there may have been a partial or 
 total loss, or no loss at all, according to the contract on which 
 that interest depends. The result in respect to the cargo may be 
 difFerenl rom that in respect to the other interests, as will appear 
 in the chapter on total loss and abandonment, for the reason that 
 a right of abandonment may accrue in respect of this interest 
 where, on the same voyage, it does not accrue in respect of the 
 others. 
 
 Another question arising on the jurisprudence above recapitu- 
 lated is, whether there is any distinction between a voyage being 
 broken up by a blockade and its being broken up by an interdic- 
 tion by the authorities in command at the port of destination. In 
 all the cases referred to except one,^ these different ways of the 
 voyage being defeated are spoken of as being equivalent to each 
 other. In that case an interdiction by the authorities at the port 
 of destination is adjudged not to be at the risk of the insurers, so 
 far as the perils insured against are concerned, though the being 
 shut up in a bay or port by a blockade is considered to be 
 covered by the policy against restraints. 
 
 That distinction suggests still another question, namely, whether 
 there is any difference between being hindered by a blockade from 
 leaving a port, or river, or bay, or a continent, according to the 
 extent of the real or pretended blockade, and the being hindered 
 from entering or coming within such limit. And on this question 
 I cannot, to our present purpose, perceive any ground of distinc- 
 tion of the two cases of passing a belligerent or hostile squad- 
 ron or fort, whether the vessel is going one way or the other. 
 Whether it might make a difference in respect to the right of 
 abandonment in any given case, is not material to our present 
 inquiry, for though it should be considered to be at the risk of 
 the insurer in each case, still the consequence as to the right of 
 abandonment might not necessarily be the same in both. We 
 will then consider the responsibility of the insurer to be the same 
 in both cases. 
 
 Emerigon is a grave authority on the present question, being 
 one of general principles, and the same under different jurisdic- 
 tions. He mentions the case of an English vessel being pre- 
 
 1 Smith I'. Universal Ins. Co. 6 Wheat. 176.
 
 664 RISKS COVERED. [CHAP. XIII. 
 
 vented from entering Leghorn, its port of destination, on account 
 of a Dutch squadron, then hostile, being at that port, and the 
 master's going to Naples and discharging his cargo there. The 
 entire freight was awarded to the master by the English consul 
 and two adjudicators associated with him.i This decision is 
 approved by Emerigon, and a similar one made by himself and 
 his associated abitrators, with the qualification that freight is to 
 be allowed pro rata itineris peracti. In other words, the contract 
 for the voyage is to subsist and be in force until arrival at the 
 port of necessity. 
 
 Mr. C.J. Tilghman intimates an opinion, obiter, that the defeat 
 of a voyage by blockade, " where the danger is so great as to 
 amount almost to certainty of capture," is, or should be, a peril 
 covered as an " arrest " or " restraint." ^ 
 
 The adjudications, in the English and American cases last 
 above recapitulated, are to the same effect, and I venture to state 
 it as the better doctrine, that, 
 
 Where, after the risk has begun, the voyage is inevitably de- 
 feated by blockade, or interdiction at the port of departure, or 
 destination, or by a hostile fleet being in the way, rendering the 
 proceeding upon it utterly impracticable, or capture or seizure so 
 extremely probable that proceeding would be inexcusable, the risk 
 continues till the vessel has arrived at another port of discharge 
 adopted instead of that originally intended ; and also, that an 
 assured on the cargo has a right to abandon.^ 
 
 1116. In insurance against " imlai/jful arrests, restraints, and 
 detainments," the qualification " unlaivful " applies to " restraints '' 
 and " detainments " no less than to " arrests^ * 
 
 It was held by the Supreme Court of the United States under 
 this clause, that a British blockading squadron's preventing a 
 neutral vessel from coming out of Chesapeake Bay was not 
 authorized by the law of nations, and so was an " unlawful " 
 restraint.^ 
 
 1 Emerigon, torn. 1, p. 557, c. 12, s. * M'Call y. Marine Ins. Co. 8 Cranch, 
 34. 59. 
 
 2 Thompson v. Read, 12 Serg. & R. ^ Olivera v. Union Ins. Co. 3 Wheat. 
 Penn. App. 440. 183. See also Thompson r. Read, 12 
 
 3 See Emerigon, torn. 1, c. 12, s. Serg. v. R. Penn. App. 440, as to what 
 31. is a " lawful " restraint by blockade.
 
 SECT. XI.] RISKS FROM PROHIBITED AND CONTRABAND TRADE. 665 
 
 SECTION XI. RISKS FROM PROHIBITED AND CONTRABAND TRADE. 
 
 1117. Under the common form, of the policy, without any ex- 
 ception of the risk of trade, illicit or prohibited by foreign laws, 
 the insurers are liable for losses in consequence of violations of the 
 trade laivs of foreign states., if they were apprised of the intention 
 to violate such laws, either by anything contained in the policy, 
 or by the known laws of the place to which the vessel is destined, 
 or the known usages of the trade.^ 
 
 Where it is notorious that the trade is prohibited at the foreign 
 port of destination, the risk of seizure and condemnation for a 
 contravention of the prohibition is covered by the policy : ^ 
 
 Although the insurance on goods is with a warranty " against 
 prohibited trade," yet, if one of the articles named in the policy 
 is well known to be prohibited at the specified port of destination, 
 the risk of seizure for contravention of the prohibition has been 
 held by Mr. Justice Washington to be assumed by the insurers. 
 In case of an insurance on " goods or specie from New York to 
 Cura^joa, Nevitas, Matanzas," and back, " warranted against pro- 
 hibited trade," the specie on board at Matanzas was seized there, 
 the exportation of this article from that port being well known 
 to be prohibited. He ruled that the insurers were liable for the 
 loss.^ 
 
 If particular importations are admitted under special restrictions, 
 the underwriter is not presumed to have notice that a prohibited 
 trade is to be covered by the policy : * 
 
 And so, also, if trade is sometimes permitted and at others 
 prohibited.'^ 
 
 1 1 Emerigon, 684, c. 12, ?. 51 ; Valin, land Ins. Co. 7 Cranch, 506 ; and sec 
 
 torn, 2, p. 131, Insurance, a. 49; Archi- supra, c. 7, s. 9. 
 
 bald i;. Mercantile Ins, Co. 3 Pick. Mass. 2 Parker r. Jones, 3 Mass. 1 73 ; Blapge 
 
 70 ; Richardson v. Maine Ins. Co. 6 t?. N. Y. Ins. Co. 1 Caines, N. Y. 549 ; 
 
 Mass. 102 ; Andrews v. Essex Ins. Co. Archibald v. Mercantile Ins. Co. 3 Pick. 
 
 3 Mas. C. C. 6 ; and see 2 Duer, ]\Iar. Mass. 70. 
 
 Ins. 619 Lect. 13, Part H. s. 1, sub-s. 3 Seton c. Delaware Ins. Co. 2 Wash. 
 
 38; Pollock v. Babcock, 6 Mass. 234; C. C. 175. 
 
 Lever «. Fletcher, Park, Ins. 8th ed. 507; 4 Parker r. Jones, 13 Mass. 173. 
 
 Kohne V. Ins. Co. of North America, 1 ^ Blague v. N. Y. Ins. Co. 1 Caines, 
 
 Wash. C. C. 158; Livingston i-. Mary- N. Y. 549. 
 56*
 
 666 RISKS COVERED. [CHAP. XIII. 
 
 A cargo being insured from Boston to St. Pierre and Miquelon, 
 with liberty to proceed to St. John's, in Newfoundland, the goods 
 were seized at St. John's, because the importation was not directly 
 from the United States, the vessel having first visited another 
 British colonial port. The insurers were held in Massachusetts, 
 by Parker, C. J., and his associates, not to be liable.^ 
 
 1118. Where a loss is occasioned by the infringement of a for- 
 eign regulation, without any fault of the assured or his agents, and 
 which could not have been foreseen or prevented, the insurers are 
 answerable ; this, like other inevitable losses in general, is at 
 their risk. 
 
 This was determined in a case upon a policy on a vessel " from 
 Newburyport to every port or place to which she might proceed 
 (excepting the West Indies) during the term of twelve months ; 
 it being understood that the insurers were not liable for any loss 
 or expense arising from the violation of the existing laws or 
 regulations of any of the belligerent powers restricting neutral 
 commerce." The vessel sailed for Amsterdam, and was captured 
 on the voyage by a British privateer and sent into Bristol, whence, 
 after being released, she sailed for Amsterdam, and arriving off 
 the Texel was captured by a French privateer as she was about 
 taking a pilot on board to go up to Amsterdam. The vessel was 
 libelled for having sailed for Holland after having been carried 
 into England, which was a violation of the Milan Decree, at that 
 time in force in Holland, but of which, it being then recent, the 
 captain had no knowledge. The decree had been published sub- 
 sequently to the date of the policy. The court decided, that the 
 exception as to " loss and expense arising from existing regula- 
 tions of the belligerent powers" extended only to regulations 
 existing at the time of making the policy, and accordingly did 
 not exempt the underwriters from the risk under the Milan 
 Decree, and that the insurers were answerable for the loss.^ 
 
 A cargo being insured from Boston to Rio Janeiro, the vessel, 
 in the course of the voyage, put into some port on the coast of 
 Brazil for supplies, where she was seized, and being carried to 
 Pernambuco was condemned, together with her cargo, on the 
 ground of her having been destined to Rio Janeiro, with the 
 
 1 Archibald v. Mercantile Ins. Co. 3 2 Wood v. New England Mar Ins. Co. 
 Pick. Mass. 70. 14 Mass. 31.
 
 SECT. XI.] RISKS FROM PROHIBITED AND CONTRABAND TRADE. 667 
 
 intention of trading there in violation of the Portuguese laws. 
 It was generally known in the United States that all trade by 
 Americans, at Rio Janeiro, was prohibited by the laws of Por- 
 tugal ; though American vessels frequently cleared for that port, 
 for the purpose of illicit trade. 
 
 Mr. Justice Sedgwick, giving the opinion of the court, said : 
 " A capture for illicit trade is not insured against, unless the risk 
 be expressly or impliedly assumed." But the court seemed to be 
 of opinion that it was assumed in this case, and held that the 
 insurers were liable for the loss.^ 
 
 1119. Insurance expressly made against the risk of the contra- 
 vention of foreign trade laws is valid.^ 
 
 1120. Trade in violation of foreign laws is sometimes called 
 contraband ; and so also is trade carried on in violation of the 
 laws of the country of which the parties are subjects. Contra- 
 band trade most frequently signifies that of a neutral to a bellig- 
 erent country, in arms or military stores, or his trade in any 
 articles to a blockaded port, or beseiged town, of one of the parties 
 at war. These are the two kinds of trade which we are at present 
 considering under the name of contraband.^ 
 
 1121. The risk arising from the contraband character of the 
 goods stands upon the same ground with that arising from pro- 
 hibited trade. The circumstance of the goods being contraband 
 may expose them, and also the ship, to seizure and detention. 
 
 But t/" the underwriter has not notice of the risk of contraband, 
 though he insures against seizure and detention generally, he is 
 not liable for seizure or detention for litis cause, though the policy 
 remains valid in respect of other risks.^ 
 
 1122. If the underwriter has notice of the contraband character 
 of the trade, he is liable for this risk. 
 
 The liability of the underwriter for the risk arising from the 
 contraband character of the goods, depends upon the same circum- 
 stances as his liability for the risk occasioned by violating foreign 
 
 1 Pollock i\ Babcock, 6 Mass. 234. band. Pothier, Ins. n. 58 ; Richardson 
 
 2 Richardson v. Maine Ins. Co. 6 r. Maine Ins. Co. 6 Mass. 112. And so 
 Mass. 102; and see c. 10, No. 908, also trade in violation of law. Us ot 
 910. Gout, de la Mer, Part III. a. 6, n. ; 
 
 3 Interloping trade in contravention Marsh. Ins. 78. 
 
 of the commercial regulations of foreign * Per Parsons, C. J., Richardson v. 
 states is sometimes denominated contra- Maine Ins. Co. 6 Mass. 103.
 
 668 RISKS COVERED. [CHAP. XIII. 
 
 trade laws. If it appears from the description of the goods 
 insured, or any provision in the policy, or from the circumstances 
 under v^diich the voyage is commenced, that the risk arising from 
 the contraband character of the property insured is one of those 
 contemplated by the parties as the subject of indemnity, the 
 insurers will be answerable for losses on this account. 
 
 Insurance was made on goods for a voyage from New York 
 to Havana. The goods insured were not particularly described 
 in the policy, nor was any representation made to the insurers as 
 to the kind of goods. The sum of sixteen thousand dollars was 
 insured generally " on the cargo, not warranted." The condi- 
 tion that the goods were " not warranted," seemed to imply that 
 the insurers were to assume some risk as to their character, and 
 this risk, whatever it was, seemed to relate to their character as 
 contraband, for the goods were represented to be the property of 
 particular persons, and it must accordingly have been known 
 whether they were neutral or not. The cargo consisted of arti- 
 cles the importation of which at Havana had been declared, by 
 a proclamation of the governor, to be permitted. It was held 
 by the Supreme Court in New York, that the insurers were lia- 
 ble for the seizure of the goods on account of the importation 
 being in alleged contravention of law.^ 
 
 The judges who gave opinions in the case just referred to 
 assumed, very distinctly, that, if the insurer is informed by the 
 policy, or otherwise, what kind of goods he insures, he takes the 
 risk of their being seized and condemned as contraband, unless 
 this risk is unnecessarily incurred or enhanced by the fault of the 
 assured, or of those for whose conduct he is answerable. 
 
 This doctrine was subsequently recognized by the same court,^ 
 and was adopted and confirmed by the Court of Errors in the 
 same State.^ It is a consequence of this doctrine distinctly 
 acknowledged in the cases just referred to, that, if it appears by 
 the policy or otherwise, that the insurer waives being informed 
 of the kind of goods insured, and so waives the right of taking 
 any exception on this account, he assumes the risk arising from 
 their being considered contraband ; it being understood, no doubt, 
 
 1 Seton i;. Low, 1 Johns. Cas. N. Y. 1. 3 Rhinelander i'. Juhel, 2 Johns. Cas. 
 
 2 Skidinore v. Desdoity, 2 Johns. Cas. N. Y. 487. 
 N. Y. 77 ; Juhel v. Rhinelander, id. 120.
 
 SECT. XI.] RISKS FROM PROHIBITED AND CONTRABAND TRADE. 669 
 
 that the loss on account of contraband is not occasioned by the 
 fault of the assured. 
 
 The courts in Massachusetts and New York have assumed 
 that neutrals may lawfully trade to a blockaded port, or supply 
 either belligerent with munitions of war. Some doubt has been 
 expressed respecting this doctrine ; but admitting it to be cor- 
 rect, the only question, in determining whether the insurer is 
 answerable for the risk on account of contraband, is, whether he 
 was informed by the policy, or by express representations, or is 
 to be presumed to know in any other way, what kind of goods 
 were insured, or any circumstances in the knowledge also of the 
 assured, which might expose the property to detention or seizure 
 as contraband of war. This makes it a question of representa- 
 tion in one sense ; that is, if the insurers have no ground to 
 object, on account of the concealment or misrepresentation of 
 facts, they assume the risk arising from contraband, so far as it 
 is not necessarily superinduced by the assured. But according 
 to Chief Justice Parsons's view of this subject, taken in connec- 
 tion with the doctrine adopted in New York, it is not, in the 
 ordinary sense, a question of representation and concealment; 
 for he says that the policy is not void, but that the risk of con- 
 traband remains with the assured. And this seems to be the 
 better doctrine in the absence of all fraud, as has previously 
 been suggested.^ 
 
 As the insurers are held to assume the risk arising from the 
 circumstance of the goods being in fact contraband, provided 
 there is no misrepresentation, or concealment, or other fault of 
 the assured, there is still stronger reason why they should be 
 answerable for losses by the seizure of the property as contra- 
 band, when it is really not so. Accordingly, in case of the con- 
 demnation of property for a violation of a blockade, when there 
 was in fact no legal existing blockade, the insurers were held to 
 be liable for the loss.^ 
 
 1123. A ship which carries articles contraband of war, under 
 false papers and a false destination, is held to be liable, together 
 with her cargo on board, to seizure and condemnation by a bel- 
 ligerent, after having delivered the contraband articles, being yet 
 
 1 Supra, No. 978. 2 Sawjer v. Maine F. & Mar. Ins. 
 
 Co. 12 Mass. 291.
 
 670 RISKS COVERED. [CHAP. XIII. 
 
 on the same adventure, whether outward or homeward, and 
 whether the cargo on board at the time of thq capture be or be 
 not the proceeds of the contraband articles ; i therefore, 
 
 Underwriters on the ship and freight are not liable for loss by 
 seizure for carrying contraband goods in disguise, unless their 
 consent is shown to the disguise, and they agree to be answerable 
 notwithstanding. 
 
 1124. i/* war is declared after the risk has begun, the under- 
 writers are liable for the risk of capture or seizure for contraband 
 trade until the assured or his agents have notice of the war, and 
 are in fault in still prosecuting the voyage afterwards. In other 
 words, as before said,^ the insurer is liable for the enhancement 
 of the perils insured against, without the fault of the assured, 
 after the risk has once begun. 
 
 SECTION XII. OTHER PERILS. GENERAL CLAUSE. 
 
 1125. The preceding risks are specifically enumerated in the 
 common form of the policy. Although the indemnity thus stip- 
 ulated is very comprehensive, the parties in some instances enu- 
 merate other particular risks, or specify the kind of damage aris- 
 ing from the usual risks for which indemnity shall be made. 
 
 Insurance was made in England on the expenses of a voyage, 
 or in effect upon the freight, with a stipulation, " that, if the ship 
 should not load a cargo at Riga by the act of the Russian gov- 
 ernment, the assured were to receive a total loss." ^ 
 
 A license of trade from the enemy was insured, in Massachu- 
 setts, among other risks, " against its being destroyed or rendered 
 useless by the ordinary perils of the seas, fire, or otherwise," and 
 it was rendered useless by being indorsed by a British officer, 
 who, in the course of the voyage, boarded the vessel on board 
 of which it was insured ; and this was held to be a loss within 
 the policy.* 
 
 1126. The general clause against all other risks and perils 
 covers other perils of a like kind to those specified. 
 
 1 Carrington v. Merchants* Ins. Co. 3 Bell v. Bell, 2 Campb. 475. 
 
 8 Fet. 495. 4 Perkins v. New England Mar. Ins. 
 
 2 Supra, s. 6. Co. 12 Mass. 214.
 
 SECT. XII.] OTHER PERILS. GENERAL CLAUSE. 671 
 
 After the enumeration of the particular risks, the policy usu- 
 ally contains a general clause, by which the subject is insured 
 against " all other perils, losses, and misfortunes which shall 
 come to the hurt, detriment, or damage of the said goods, or 
 ship, &c., or any part thereof." This is the old form of the 
 clause which is now used in the greater number of policies ; but 
 in some, the expression is, " all other losses, &c., for which the 
 insurers are liable, according to the rules and customs of insur- 
 ance," in the place where the policy is made ; others say, " all 
 other losses, &c., for which the insurers are legally accountable." 
 
 Lord Ellenborough says : " The general words, ' all other per- 
 ils, losses, and misfortunes,' &c., have not yet been the imme- 
 diate subject of any judicial construction in our courts of law. 
 As they must, however, be considered as introduced into the 
 policy in furtherance of the objects of marine insurance, and 
 may have the effect of extending reasonable indemnity to many 
 cases not distinctly covered by the special words ; they are enti- 
 tled to be considered as material and operative words, and to 
 have their due effect assigned to them in the construction of this 
 instrument ; and which will be done by allowing them to com- 
 prehend and cover other cases of marine damage of the like 
 kind with those specially enumerated and occasioned by similar 
 causes." ^ 
 
 In case of dollars being thrown overboard, to prevent their 
 falling into the hands of the enemy, when the ship was captured, 
 the judges thought the insurers liable under this general clause, 
 as capture was one of the enumerated perils, and this loss was 
 incidental to it, or ejusdem generis.^ 
 
 Damage by being fired into through mistake Avas brought 
 under the same clause, as being ejusdem generis with the perils 
 of the seas.3 
 
 A ship being insured for twelve months "at sea and in port," 
 during that time, at the harbor of St. John's, in New Brunswick, 
 was in consequence of the violence of the winds blown over on 
 her side while in a graving-dock, and thereby bilged. It was 
 
 1 Cullen y. Butler, 5 Maule&S. 461 ; 3 Cullen v. Butler, Park, Ins. 105; 
 and see Euierigou, c. 12, s. 1 and 2. cited 3 Barnew. & Aid. 4U3 ; 5 Maule 
 
 2 Butler V. VVildman, 3 Barnew. & & S. 461 ; 1 Stark. 138. 
 Aid, 398.
 
 672 RISKS COVERED. [CHAP. XIII. 
 
 held that the underwriters were liable, this being a peril ejusdem 
 generis with those enumerated in the policy.^ A similar decis- 
 ion was given in case of a ship being blown over on her side 
 while hauling up on a marine railway, being still partly water- 
 borne.2 
 
 Under an insurance declared in the policy to be " upon the 
 freight bill " of a steamboat, it was held in Missouri to be an 
 insurance that the vessel should be in a condition to earn 
 freight.^ 
 
 A loss on a steamboat by collision, through fault of the mas- 
 ter and mariners of another boat, was held in Louisiana to be 
 covered under the clause " all other losses according to the gen- 
 eral laws of insurance," * though it seems that it would be so 
 under " perils of the river," usually inserted in the policies on the 
 trade in the Mississippi and Ohio. 
 
 Where the written part of the policy contained a clause by 
 which the insurance was declared to be "against all risks," the 
 court in New York said : " This expression is vague and indefi- 
 nite, but if we allow it any force it must be considered as erect- 
 ing a special insurance and extending to other risks than are 
 usually contemplated. We are inclined to apply it to all losses 
 except such as arise from the fraud of the assured." ^ 
 
 Taking the whole policy, in the common form, together, then, 
 and construing the clause in question in connection with, and in 
 reference to the other parts, it is understood to cover merely perils 
 similar to those specified, although they may not come precisely 
 within them ; for if any narrower construction is given, and the 
 clause is considered to apply only to perils of the same kind, this 
 is in effect, obliterating the clause. 
 
 But where the clause is in the written part, which has a par- 
 amount force, as we have seen, the fair construction seems to be 
 nothing short of that adopted in New York ; namely, all perils 
 that can be legally covered. 
 
 1 Phillips V. Barber, 5 Barnew. & < Caldwell v. St. Louis Perpetual Ins. 
 
 Aid. 161. Co. 1 La. Ann. 85. 
 
 'i EUery v. New England Ins. Co. 8 5 Goix v. Knox, 1 Johns. Cas. N. Y. 
 
 Pick. Mass. 14. 337. See also Skidmore v. Desdoity, 2 
 
 3 Field t'. Citizens' Ins. Co. 11 Mo. id. 77. 
 50.
 
 SECT. XIV.] EEMOTE AND CONSEQUENTIAL LOSSES. 673 
 
 SECTION XIII. LOSS FROM FEAR OF PERILS. 
 
 1127. The subject of this section has been considered in a 
 preceding one,^ and it is not proposed to go into the investigation 
 of it again, or to recapitulate the cases here, but merely to present 
 it in a manner more marked and conspicuous. The use of the 
 term " quia timet " has, it seems to me, served merely to intro- 
 duce the erroneous notion, that insurers are not liable for losses 
 and sacrifices incurred, and risks run, justifiably, through fear of 
 an imminently impending peril, or one inevitably awaiting the 
 subject in the remote stages of the voyage insured, which notion 
 seems to be plainly contradictory to established and habitual 
 jurisprudence, and inconsistent with the fundamental principles 
 and leading purpose of insurance, and contrary to expediency and 
 equity. 
 
 SECTION XIV. REMOTE AND CONSEQUENTIAL LOSSES. CONCUR- 
 RENCE OF DIFFERENT PERILS. LOSS UPON ONE SUBJECT BY 
 DAMAGE TO ANOTHER. 
 
 1128. It is necessary to discriminate what losses are included 
 under any particular peril in all forms of policies^ since some 
 perils are left at the risk of the assured in every policy, as we 
 have seen, and the same party is not unfrequently insured by 
 different companies against the different risks on the same sub- 
 ject, as against capture by one, and against sea perils by another. 
 
 So, also, where successive policies are made, the question 
 sometimes arises whether a loss is under the prior or subsequent 
 policy. 
 
 So, a discrimination is to be made of the risks to be run, by 
 the respective parties to the policy, in case of the exception of 
 risks for a certain time, or in a certain locality. 
 
 1129. A peril includes its direct effects or results., as contra- 
 distinguished from those that are remote^ or merely collateral or 
 incidental. 
 
 The loss of the amount advanced for shipping coolies from 
 
 I See supra, No. 1115, and infra, No. 1115. 
 VOL. I. S7
 
 674 RISKS COVERED. [CHAP. XIII. 
 
 China to Peru, by their mutinying and running away with the 
 ship, Avas held to be a direct effect of the piracy.^ 
 
 Thus, where, by the terms of a policy on slaves, the insurers 
 were liable for " mortality by mutiny," and some of the slaves 
 were killed at the time of a mutiny by being fired upon, others 
 afterwards died of their wounds, and others chose a voluntary 
 death by fasting, or died through despair, and the sale of the 
 survivors was injured, and the price of them reduced, by the cir- 
 cumstance of the mutiny having taken place. Lord Mansfield 
 instructed the jury that the underwriter was liable for the loss of 
 those killed during the mutiny, and also of those who afterwards 
 died in consequence of their wounds ; but he said, " I think the 
 underwriter is not answerable for the loss of the market, — that 
 is a remote consequence ; " and he was of opinion, also, that the 
 underwriter was not answerable for the loss of such as died by 
 fasting, or through despair.^ 
 
 So, where a voyage was unusually prolonged by bad weather 
 and contrary winds, and thereby the ship came to be short of 
 water and provisions, and on this account a part of the slaves 
 were thrown overboard, this was held not to be a loss by perils 
 of the seas, for the loss was not a direct consequence of those 
 perils,^ but arose from the insufficiency of the supply of water, 
 and this supply, with all the consequences of any deficiency, was 
 a matter belonging wholly to the assured, though the voyage 
 should be protracted. 
 
 Insurers are not liable for mould or discoloration of goods by 
 mere dampness, without any contact with salt water, or any ex- 
 traordinary degree of any peril insured against.^ 
 
 But they are liable where a part of the cargo is damaged by 
 actual contact with the water and another part by contact with 
 that so damaged.^ 
 
 The enhanced expense of the repairs of damage by perils in- 
 sured against, occasioned by the necessity of repairing at a port 
 
 1 Naylor v. Palmer, 8 Exch. 739 ; 22 8 Tatham v. Hodgson, 6 Term, 656. 
 Eng. L. & Eq. 573. * Baker v. Manufacturers' Ins. Co. 
 
 2 Jones i;. Schmoll, Park, Ins. 97; 1 12 Gray, Mass. 603. 
 
 Term, 130, n. See also 2 Valin, tit. ^ Woodruff v. Commercial Ins. Co. 
 Ins. a. 11, 15 ; Emerigon, c. 12, s. 10; 2 Hilt. N. Y. 122. 
 Poth. tit. Ins. No. 66, Estrangin's note.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. GTo 
 
 not the most economical for the pm-pose, is at the risk *of the 
 underwriter ; 
 
 So it is if the master, without any fault of the owner, can 
 raise the requisite funds only on disadvantageous terms ; ^ 
 
 And so is plunder on shore after shipwreck, as a direct conse- 
 quence of the shipwreck ; ^ 
 
 Damage to goods insured against fire by being wetted in ex- 
 tinguishing the fire ; ^ 
 
 Plunder of goods insured against fire, on their being removed 
 to save them from being burnt, and being thus put out of the 
 control of the assured ; * 
 
 Expense and damages by removing goods insured against fire, 
 to save them from being burnt; ^ 
 
 And so is the expense of getting a stranded ship afloat ; ^ 
 
 And so is the aggravation of a loss by fault of the underwriter, 
 as by neglect of the reinsurer, on notice of a claim upon the 
 original insurer, to consent to the payment of loss, without the 
 expense of contesting it, in a case where, without such consent, 
 the original insurer is justified in contesting the claim ; " 
 
 And so is the aggravation of a subsequent peril by the effects 
 of a previous one, as the subsequent loss of the boat from the 
 stern -davits in consequence of a ship being crippled in a storm.^ 
 
 Where a ship and cargo insured from the United States to 
 Great Britain were detained at the port of departure by an em- 
 bargo, before the expiration of which war was declared against 
 Great Britain, it was held that the underwriters were not liable 
 for a total loss, as " the declaration of war was in no sense a 
 consequence of the embargo." ^ And the policy did not cover 
 the risk of the loss of the voyage on the cargo by the declaration 
 of war, independently of the intervention of a peril expressly 
 insured against. 
 
 1 Furneaux v. Bradley, Park, Ins. 5 Supra, No. 1098, 1098 a. 
 
 257; Patrick v. Commercial Ins. Co. ^ 1 Magens, p. 76, s. 64; Di.\ v. 
 
 11 Johns. N. Y. 9; Peters v. Phoenix Union Ins. Co. 23 Mo. 57. 
 
 Ins. Co. 3 Serg. & R. Penn. 25, and ' Hastie v. De Peyster, 3 Caines, N. 
 
 eases passim. Y". 1 90. See also Savage v. Corn Ex- 
 
 2 Bondret v. Hentigg, 1 Holt, 149; change Ins. Co. 4 Bosw. N. Y, 1. 
 Stevens, Average, 155; Pothier, Ins. n. 8 Per Story, J., Potter v. Ocean Ins. 
 55 ; and see supra, No. 1107, Co. 3 Sumn. C. C. 27. 
 
 3 Supra, No. 1098 a. 9 Delano v. Bedford Mar. Ins. Co. 10 
 
 4 Supra, No. 1098 a. Mass. 347.
 
 676 RISKS COVERED. [CHAP. XIII. 
 
 A cargo being insured from New York to Havre de Grace, the 
 ship was arrested and carried into England, where she was de- 
 tained till after the port of Havre was declared by the English 
 government to be in a state of blockade. After the declaration of 
 blockade, the ship and the goods insured were released, but the ship 
 could not proceed to the port of destination on account of the 
 blockade. The court said that the assured, to entitle himself to 
 recover for a total loss, must show "that a loss of the voyage 
 was occasioned by the detention ; " and they were of opinion, 
 that " the impossibility of prosecuting the voyage, which arose 
 during, and in consequence of, the detention, might be properly 
 considered a loss of the voyage." ^ 
 
 Under a policy on goods from Philadelphia to Antwerp, the 
 ship was captured by a British privateer and carried into Plym- 
 outh, but was soon released and permitted to proceed ; she was 
 however prohibited entry at Antwerp, on account of having been 
 thus detained by a British vessel and carried into Plymouth. 
 Chief Justice Tilghman and Brackenridge, J., were of opinion, 
 upon the authority of the above case, that the loss of the voyage 
 — that is, the prohibition of entry at Antwerp — was a direct 
 consequence of the capture and detention, which were insured 
 again st.2 
 
 In the two last cases, the loss was by foreign interposition, 
 which did not render the voyage illegal ; in the preceding one, it 
 was rendered illegal. 
 
 A vessel being insured free from capture, underwriters are not 
 liable for loss by its being burnt by the captors.^ 
 
 Insurance of a building against damage by fire does not cover 
 a loss by interruption of business while it is being repaired.* 
 
 If, after a storm has subsided, the boat is lost by reason of the 
 disabled state of the ship in consequence of damage done during 
 the storm, it is a loss by the storm.^ 
 
 1 Barker v. Blakes, 9 East, 2S3. ^ Potter v. Ocean Ins, Co. 3 Sumn. 
 
 2 Savage v. Pleasants, 5 BInn. Penn, C. C. 27. In this case Mr. Justice Story 
 403. remarks that the rule, Causa proxima 
 
 3 Dole V. New England Ins. Co. ; spectatur, does not apply ; to which it 
 Same v. Equitable Ins. Co. 6 All. Mass. may be added, that the case shows the 
 873. fallaciousness of that rule. 
 
 4 Niblo V. North American Fire Ins. 
 Co. 1 Sandf N. Y. 551.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 677 
 
 All salvage expenses consequent on the operation of a peril 
 insured against are covered.^ 
 
 A ship being wrecked at the Isle of France, the consul there, 
 through mistake of the law, paid the crew extra wages for three 
 months. Parker, C. J., and his associates, held that the insurers 
 were not liable for this item of loss.^ 
 
 In case of a vessel having some slaves on board being wrecked 
 on a foreign coast, in consequence whereof they were set at lib- 
 erty on habeas corpus, the insurers of them in South Carolina 
 were held liable for the loss.^ 
 
 The expense of supporting emigrants while detained is not 
 covered by insurance of passage money.* 
 
 1130. Whether the insurers are liable for a loss in case of the 
 cause, being a peril insured against, occurring within the period 
 of the risk, and its effect occurring after the expiration of that 
 period, is subsequently considered.^ 
 
 1131. Insurance against or an exception of a peril may^ besides 
 the consequences immediately following it, include also a loss or 
 expense arising on account of it, although what is insured against 
 or excepted does not actually occur, provided the peril insured 
 against or excepted is the efficient acting or imminent cause or oc- 
 casion of the loss or expense. 
 
 Thus, a policy " free from loss by illicit trade with the Span- 
 iards," has been held to except legal " seizures to prevent illicit 
 traffic, as well as seizures to punish it." ^ 
 
 1132. The commonplace maxim, that, in cases of doubt to 
 which of two or more perils a loss is to be assigned, Causa prox- 
 Ima non remota spectatur, has been not unfrequently resorted to, 
 by which was meant, originally at least, that a loss is to be attrib- 
 uted to the peril in activity at the time of the ultimate catastro- 
 phe, when the loss is consummated." But much of the juri:>pru- 
 dence is contradictory to the maxim taken in this sense, and it 
 
 1 Cox V. May, 4 Maule & S. 152. 6 See infra, s. 15. 
 
 2 Dodge V. Union Mar. Ins. Co. 17 6 Higginson v. Pomeroy, 11 Mass. 
 Mass. 471. 104. 
 
 3 Simpson v. Charleston Fire & Mar. 7 See supra. No. 1097, 1098, 1098 a, 
 Ins. Co. Dudl. So. C. 239. and cases there cited. See also Savage 
 
 * Willis V. Cooke, 5 Ell. & B. G41 ; v. Corn Exchange Ins. Co. 4 Bosw. N. 
 33 Eng. L. & Eq. G3. Y. 1. 
 
 57*
 
 678 RISKS COVERED. [CHAP. XIII. 
 
 seems to have served rather to divert attention from the proper 
 inquiry, and to becloud instead of elucidating the subject. 
 I understand the result of the jurisprudence to be, that, 
 In case of the concurrence of different causes, to one of which it 
 is necessary to attribute the loss, it is to be attributed to the efficient 
 predominating- peril, whether it is or is not in activity at the con- 
 summation of the disaster} 
 
 1133. The cases of concurring perils, where all are insured 
 against, do not come within our present inquiry, the question in 
 such cases being the technical one in declaring for the loss. 
 
 1134. In every insurance, the risk on each peril is liable to be 
 affected by every other peril ; and the party, whether insurer or 
 assured, at whose risk a peril is, must bear the loss by such peril 
 though it may have been indirectly and incidentally enhanced by 
 another, for which he is not answerable, where there is no express 
 or implied stipulation, obligation, or condition against the subject 
 being exposed to such other peril ; but where the loss is by a risk 
 insured against that is enhanced by a peril to which the subject 
 is exposed in violation of the express or implied stipulations of 
 the parties, the underwriter is not liable for it. 
 
 This principle is to be borne in mind in discriminating between 
 the losses by different perils, and between the direct and remote 
 consequences of a peril. 
 
 Thus, under a policy in the ordinary form, the assured must 
 bear the loss arising from the qualities of the article insured, 
 without any direct action of the perils insured against, as those 
 of the sea or others, upon the specific subject of the contract. 
 Accordingly, where a vessel was compelled by sea-damage to 
 put into Martinique to repair, for which purpose it was necessary 
 to discharge the cargo, a part of which consisted of porter and 
 claret, which were liable to be spoiled by the heat of the climate, 
 were necessarily sold. The loss was held not to be such a con- 
 sequence of the perils of the seas, by which the vessel had been 
 damaged, as to render the insurers of these articles liable for this 
 loss.2 The loss arose from the action of the climate on the arti- 
 
 1 Thompson v. Hopper, 1 Ell, B. & 2 Qoold r. Shaw, 1 Johns. Cas. N. Y. 
 E. 1038 ; 6 Ell. & B. 937 ; 38 Eng. L. 293 ; 2 id. 442. 
 & Eq. 39 ; Tudor v. New England Ins. 
 Co. 12 Cush. Mass. 554.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 679 
 
 cles, and as this was a damage at the risk of the assured, he was 
 not the less liable for it because it had been indirectly and inci- 
 dentally aggravated by the delay occasioned by the perils of the 
 seas which were insured against. 
 
 So, in case of a vessel putting in at Cadiz for repairs, and 
 being there delayed on account of an epidemic, and loss there- 
 upon ensued ; as " the pestilence formed a sound excuse for 
 delay at Cadiz," the underwriter was held to be answerable for 
 the subequent loss there by the perils insured against, though 
 but for such delay the subject would not have been exposed to 
 such loss.^ 
 
 1135. The effect of a loss of one subject is a loss on another in 
 divers cases. 
 
 As a total loss of the ship, by its being rendered innavigable 
 in an intermediate stage of the voyage, is a total loss o^ the cargo 
 and freight by the loss of the voyage, where there are no means 
 of forwarding the cargo to the port of destination, as we shall 
 see in the chapter upon total loss and abandonment. 
 
 The underwriters on the ship are not liable for its expenses by 
 delay for the purpose of claiming the cargo in case of capture.^ 
 
 1136. In case of the concurrence of two causes of loss, one at 
 the risk of the assured and the other insured against, or one insured 
 against by A and the other by B, if the damage by the perils re- 
 spectively can be discriminated, each party must bear his propor- 
 tion. 
 
 This proposition seems to be too obvious to need authority or 
 comment, but a different rule was acted upon by Lord Ellenbor- 
 ough, C. J., and Grose, Le Blanc, and Bayley, Justices, in case 
 of a policy upon a ship from New York to London, in 1809, 
 " free from American condemnation," the voyage being intended 
 as an evasion of the American embargo. The ship, having been 
 prevented from escaping by running upon the rocks in attempting 
 to go out of the harbor of New York during the night, was there- 
 
 1 Williams v. Smitb, 2 Caines, N. Y. sioned by the delay, but directly by the 
 
 13. Mr. Justice Kent is reported to perils insured against 
 
 have said, " The damage resulting from 2 Bradford v. Levy, 1 Ry. & M. 331 ; 
 
 the delay at Cadiz is covered by the and see Baillie v. Moudigliani, Park, 
 
 policy," meaning, of course, the damage Ins. 90 ; Marshall, Ins. 2d ed. 728. 
 thus incidentally and remotely occa-
 
 680 RISKS COVERED. [CHAP. XIII. 
 
 upon seized on the following day, and subsequently condemned 
 for a violation of the embargo. The question was, whether the 
 London underwriters were liable for the loss by the sea-damage. 
 It was held that they were not so. Lord Ellenborough, repeating 
 the maxim, Causa proxima spectator, remarked, in giving the 
 opinion of the court, that " it seemed to be useless to be seeking 
 about for odds and ends of previous and partial losses which 
 might have happened in the course of the voyage, when there 
 was one overwhelming cause of loss which swallowed up the 
 whole subject-matter." ^ 
 
 This decision is surely wrong, as implied by another eminent 
 English judge.2 And it has been the precedent for another in 
 Massachusetts, no less subject to objection ; where, under a 
 policy upon the ship and cargo exempt from capture, after jetti- 
 son of a third part of the cargo in a storm, the vessel, having 
 been damaged by the perils of the seas to three fourths of its 
 value, and so as not to be worth repairing, was captured. The 
 underwriters were held to be liable for the part of the cargo jet- 
 tisoned, but not for the damage to the ship ; the court remark- 
 ing, that they had not come to this conclusion " without much 
 hesitation, because technical rules only seemed to prevent the 
 assured from recovering." ^ By " technical rules " the court re- 
 fers to the case above referred to, decided by the English Court 
 of K. B.* which seems rather to need support than to suffice for 
 the support of another. 
 
 In case of injury to a steamboat by striking the sunken wreck 
 of another in the Mississippi, and subsequent stranding and total 
 
 1 Livie V. Janson, 12 East, 648. capture only, the vessel being blown to 
 
 2 Best, C. J., speaking of Livie v. the coast of France and there captured, 
 Janson, says : " In that case, perhaps. Lord Kenyon ruled it to be a loss by 
 the facts would have warranted the ca{)ture, precisely in accordance to 
 statement of a total loss." Hahn v. which case the Supreme Court of Mas- 
 Corbett, 2 Bingh. 205 ; and see Coit v. sachusetts had shortly before decided, 
 Smith, 3 Johns. Cas. N. Y. 16; 'and Law v. Goddard, 12 Mass. 112, and 
 Lawrence v. Aberdein, 5 Barnew. & both are plainly distinguishable from 
 Aid. 107. Rice v. Homer. In the Nisi Prius case 
 
 3 Rice y. Homer, 12 Mass. 230. before Lord Kenyon, the vessel was 
 
 4 Livie V. Janson, 12 East, 648; merely blown out of its course, but may 
 Green r. Ehnslie, Peake, 212, is also re- have been still uninjured by the perils 
 ferred to, where, under a policy against of the seas.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 681 
 
 loss of it in consequence of the injury, the court in Ohio, con- 
 sidering the insurers not to be liable for a total loss, adjudged 
 them to be liable for the damage by the injury ;^ which is cer- 
 tainly a right decision, assuming that they were not liable for the 
 eventual stranding and sinking; but as these were a direct con- 
 sequence of the striking, the better decision, it seems, would have 
 been, that the underwriters were liable for a total loss by the 
 striking, although the sinking took place three or four hours after 
 the period of the risk had ended. 
 
 1137. If^ where different parties, whether the assured and the 
 underwriter or different underwriters, are responsible for different 
 causes of loss, which concur in the loss, and the damage by each 
 cause cannot be distinguished, the party responsible for the pre- 
 dominating efficient cause, or that by ivhich the operation of the 
 other is directly occasioned as being merely incidental to it, is lia- 
 ble to bear the loss. 
 
 The decision of the question thus arising seems not to be gov- 
 erned by any general presumption or rule as to the burden of 
 proof between the assured and underwriters in the same policy, 
 since it arises also between several underwriters who insure 
 against different perils. 
 
 The above proposition is not happily expressed by the maxim, 
 Causa proxima non remota spectatur, yet it seems to be the only 
 sense in which that maxim is true, since the predominancy and 
 efficiency of one of divers concurring causes constitutes the ma- 
 terial consideration. 
 
 Thus, in the case before referred to, of insurance being against 
 perils of the seas, American condemnation being at the risk of 
 the assured, the vessel ran aground in attempting to leave the 
 harbor of New York by night, and evade the embargo, and was 
 thereupon next day seized and condemned for a violation of the 
 embargo ; Best, C. J., intimated an opinion that it was a total 
 loss by perils of the seas.^ 
 
 So, in case of insurance on goods from London to Maracaybo, 
 " free from capture and seizure," the vessel was stranded off the 
 latter place, and a part of the cargo thereby damaged, and both 
 
 1 Howell V. Cincinnati Ins. Co. 7 remarking upon Li vie v. Janson, 12 
 Ohio, 276. East, 6-i8. 
 
 2 In Ilahn v. Corbett, 2 Bingh. 205,
 
 682 RISKS COVERED. [CHAP. XIII. 
 
 vessel and cargo were seized by the Royalists then in possession 
 of the coast, and considered to be good prize on account of the 
 voyage having been intended to supply the insurgents, who had 
 previously been in possession there. Best, C. J., and Park and 
 Burrough, Justices, of the English Common Pleas, adjudged it to 
 be a total loss of both the damaged and undamaged goods by 
 perils of the seas.^ 
 
 Where the policy is against fire, or perils of the seas, and not 
 against barratry, the policy does not cover a loss by the vessel 
 being barratrously burnt or sunk.^ 
 
 Under an exception of " ordinary " perils of the seas, the ship 
 being taken out of its course and while in possession of captors 
 lost by perils of the seas, the loss was held in Massachusetts, by 
 Parker, C. J., and his associates, to be that of the assured.'^ Kent, 
 C. J., states a different doctrine. He says : " Suppose the policy 
 against capture only, and the vessel was captured and wrecked 
 while in the hands of the captors, I should think the assured 
 might recover for a total loss." "^ But this surely should depend 
 upon the fact of the shipwreck being caused directly by the cap- 
 ture. In all other respects, each party runs his own risk, as held 
 in the Massachusetts case before referred to, such being the plain 
 import of the policy. 
 
 A ship being insured in the port of Cadiz against " no risk but 
 sea-risk," was, during a tide higher by sixteen feet than had been 
 known before, driven upon a sand-bank, and, lying much buried 
 in mud and sand, two hundred yards from high-v^^ater mark, 
 damaged and not worth getting off, was there burnt by some 
 French soldiers from a neighboring battery. The jury found this 
 to be a total loss by sea-risk, and the verdict was acquiesced in.^ 
 
 But under another policy against the same risk, on the cargo 
 of the vessel, which was burnt with it, not having been materi- 
 ally damaged by the stranding, Kent, C. J., and his associates, 
 held it not to be a total loss by sea-risk.^ 
 
 1 Hahn i;. Corbett, 2 Bingh. 205. 5 Patriok v. Commercial Ins. Co. 11 
 
 2 Waters v. Merchants' Louisville Johns. N. Y. 9. 
 
 Ins. Co. 11 Pet. 213. 6 Patrick v. Commercial Ins. Co, 11 
 
 3 Law V. Goddard, 12 Mass. 112. Johns. N. Y. 14. 
 * ShieffVlin v. New ITork Ins. Co. 9 
 
 Johns. N. Y. 21.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 683 
 
 Where the vessel having sustained damage by a storm would 
 not be worth the expense of repairs on account of its being old 
 and partially decayed, though sufficiently strong to have per- 
 formed the voyage had she not been so injured, the English 
 Court of Common Pleas held that the insurers were liable for a 
 total loss.i In this case the only question would relate to the 
 seaworthiness of the vessel at the commencement of the risk. 
 
 A fchip and freight were insured " from St. Thomas in the 
 West Indies, to Rio de la Hache, and at and from thence to 
 New York," and the ship was seized and detained, and the mas- 
 ter imprisoned, at Rio de la Hache, on the charge of landing 
 some twenty-five dollars' worth of beans without permit, and, on 
 decree which was appealed from and finally confirmed, was re- 
 leased on payment of the value of the beans. The vessel had 
 been detained over four months by these proceedings, and, from 
 long exposure to the weather in a hot climate in an open road- 
 stead, was found, when released, to have been so much injured 
 in her hull, rigging, and sails, that she could not proceed on the 
 voy?ge without great repairs, which could not be made at that 
 place, or at any other port to which she could proceed. And the 
 repairs, if practicable, would have cost more than her value. 
 Mr. Justice Story held that the underwriters were liable for a 
 total loss by arrest and detention.^ 
 
 1137 a. The underwriters on a vessel are not liable^ under 
 insurance against perils of the seas, to indemnify the insured 
 owner for the amount he has been liable to pay to the owners of 
 another vessel, on account of damage to the latter by collision, 
 through the fault of the master and mariners of either or both of 
 the vessels, or without fault on either side. 
 
 It was held by Mr. Justice Story ,^ and his decision was con- 
 firmed by the Supreme Court of the United States,* that a loss 
 
 1 Phillips V. Nairne, 16 Jur. 194. Ins. Co. 2 Stor. C. C. 176 ; and Matthews 
 
 2 Magoun v. New England Mar. Ins. v. Howard Ins. Co. 13 Barb. N. Y. 234 ; 
 Co. 1 Stor. C. C. 157. The policy ex- 11 N. Y. 9 ; in which last case a similar 
 cepted arrest for prohibited trade, but it judgment is given by Strong, J., and 
 appeared from the proceedings that Selden, J., of the Supreme Court of 
 there had been no trade that justified New Y'ork, on a policy against " the 
 the seizure of the ship. perils of the lakes, rivers, and canals, 
 
 3 Peters v. Warren Ins. Co. 3 Sumn. and jettisons and damage to the vessel." 
 C. C. 389 ; and see Hale v. Washington * Peters v. Warren Ins. Co. 14 Pet.
 
 684 RISKS COVERED. [CHAP. XIII. 
 
 by paying one half of the value of another vessel sunk by collis- 
 ion of two vessels without fault, under a foreign jurisdiction, is a 
 direct loss by the collision, for which the underwriters on the 
 vessel are liable. This decision is at variance with the English 
 jurisprudence.^ 
 
 The question has since been throughly discussed in the Su- 
 preme Court of the United States, and the judgment of that 
 court learnedly and elaborately given by .Mr. Justice Curtis, that 
 the underwriters on a vessel are not liable for loss to which the 
 assured has been subjected by payment of damage done to 
 another by collision through the negligence of the master and 
 mariners of the insured vessel, on the ground that, though the 
 underwriters are liable for loss by perils insured against con- 
 sequent to the negligence of the master and mariners, the 
 predominant efficient cause of the loss to the assured was the 
 negligence, which was not a risk directly insured against.^ 
 
 The judgment in this case is put partly upon the fact that the 
 cause of the loss was a tort committed by the persons in charge 
 of the insured vessel, which is certainly a sufficient defence 
 against the claim for a loss by perils of the sea, since an insur- 
 ance of a party upon a subject against loss by the elements does 
 not apparently import a promise of indemnity to the assured for 
 all losses he may be responsible for by reason of the torts and 
 misdemeanors which may be committed in the management and 
 use of the insured subject, whether it be a vessel or building or 
 other thing, although the elements may concur in promoting the 
 loss. The judgment is, however, put by the court upon two 
 other grounds, namely, the want of any precedent prior to the 
 very recent cases above cited, for fixing any such liability upon 
 underwriters, though similar torts have been frequent from the 
 earliest jurisprudence in matters of insurance, and upon the 
 ground that the loss to the assureds is not the direct or necessary 
 result of physical causes, but arises from the law which imposes 
 upon the assured a liability in respect to third parties. These 
 
 99. See also Nelson v. Suffolk Ins. Co. 420. This question recurs under the 
 8 Cush. Mass. 4 77 ; Walker v. Boston head of General Average. 
 Ins. Co. 14 Gray, Mass. 288. 2 General Mut. Ins. Co. v. Sherwood, 
 
 1 Devaux v. Salvador, 4 Ad. & E. 14 How. 352; Street v. Augusta Ins, 
 
 Co. 12 Eich. So. C. 13.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 685 
 
 two grounds are as applicable to cases of mere accident without 
 fault, as to those of tort, and there does not appear to be any 
 better reason to fix upon underwriters a liability for accidental 
 damage to third parties than for torts. Underwriters are under- 
 stood to insure against loss on the insured subject itself, and not 
 against liability for damage to third parties in respect to which 
 it may be one of the instruments or means. The only case in 
 which underwriters in the common form of policies have been 
 heretofore held liable for injury to or sacrifice of the property of 
 third parties or that of the assured other than the insured subject, 
 is the use or sacrifice of other property, for the purpose of saving 
 the insured subject. 
 
 It cannot make any difference whether the liability of the 
 assured to third parties or the lien on the insured subject, arises 
 under the foreign or domestic law. Damage by collision through 
 the fault of the two vessels, is assessed upon them in admiralty 
 equally,! q^ p^Q j-^ta according to the value of each. But what- 
 ever loss the insured vessel is liable for on account of damage to 
 the other, is upon precisely the same footing, to our present 
 purpose, as if only the insured vessel had been in fault.^ 
 
 1138. The underwrite)' on the cargo is liable to make indemnity 
 for the excess of freight over that originally stipulated, ivhich the 
 insured shipper has been compelled to pay on a transshipment of 
 the cargo, in consequence of the original ship having been hindered 
 by the perils insured against from carrying the cargo to the port of 
 destination? 
 
 The payment of such excess prevents a total loss of cargo by 
 loss of the voyage, and so comes under the general rule already 
 stated, that insurance against a peril covers the expense necessa- 
 rily or properly incurred to avoid or diminish it* 
 
 1 The Clarence, 3 W. Rob. Adm. 283 ; cargo by collision with the vessel hereby 
 The Seringapatam, id. 38. insured." 
 
 2 See, on this subject, supra, No. 3 Per Kent, C, Searle i-. Scovell, 4 
 1099; infra, No. 1416 et seq. The Johns. Ch. N. Y. 218. 
 
 Boston insurance companies, since No- * Supra, s. 10, No. 1115; and see 
 
 vember, 1866, have printed in the mar- Valifl, torn. 1, p. 365, tit. du Fret, art. 
 
 ginof their policies the following clause: 11; Emerigon, torn. 1, p. 428, c. 12, 
 
 "It is understood that this company s. 16; Pothier, des Chart. Part. n. 68; 
 
 are not in any case to be liable for loss Code de Commerce, liv. 2, tit. 8, No. 
 
 or damatfe to another vessel or her 107. 
 
 VOL. I. 
 
 58
 
 686 RISKS COVERED. [CHAP. XIII. 
 
 Lord Mansfield ruled against such a claim, without stating 
 any ground, but merely asserting that " the underwriters upon 
 cargo have nothing to do with the freight." ^ And Mr. Justice 
 Story reasserts the same doctrine.^ 
 
 In a New York case, under a policy upon the cargo, a ship 
 having been captured was soon released, but the cargo was de- 
 tained for further proof. On the release of the ship, the captain 
 offered to carry on the cargo to the port of destination, which 
 was impracticable on account of its detention ; but it was held 
 that the offer of the master entitled the owners to entire freight. 
 The cargo was afterwards released, and the owners of it were 
 obliged to pay an additional freight for the transportation of their 
 goods to the port of destination. The insurers of the cargo were 
 held to be liable for this extra freight.^ Mr. Justice Wilde, 
 speaking of this case, says : " No one, I think, can doubt it was 
 correctly decided." * 
 
 A ship bound on a voyage from Siam to Hamburg was 
 wrecked at the Isle of France, where the captain procured a 
 Dutch vessel to carry forward the greater part of the cargo to 
 Hamburg. Under a policy upon the ship and cargo, the assured 
 claimed of the insurers a reimbursement of the amount of freight 
 paid to the Dutch vessel. The freight paid to this vessel did not 
 amount to so much as would have been due to the owners of the 
 original ship, according to the charter-party, for the part of the 
 voyage remaining to be performed after the shipwreck. Mr. 
 Justice Wilde, giving the opinion of the court, said : " If, how- 
 ever, the Dutch ship had cost more, the underwriters would not 
 have been liable ; because the extra expense would have fallen 
 upon the ship-owner, and not upon the owner of the goods. If 
 the ship-owner had refused to provide a new ship, he could have 
 claimed no freight. We must consider the master as acting for 
 the ship-owner in hiring the Dutch ship, and that the owner of 
 the goods was bound to pay only the customary freight from 
 Siam to Hamburg." ^ 
 
 1 Baillie v. Moudigliani, Park, Ins. 3 Mumford v. Commercial Ins. Co. 5 
 90 ; Marshall, Ins. 2d ed. 728. Johns. N. Y. 262. 
 
 2 Caze V. Baltimore Ins. Co. 7 Cranch, * Dodge v. Union Ins. Co. 1 7 Mass. 
 358. See also Fiedler v. New York Ins. 476. 
 
 Co. 6 Du. N. Y. 282. 5 Dodge v. Union Mar. Ins. Co. 17 
 
 Mass. 471.
 
 SECT. XIV.] REMOTE AND CONSEQUENTIAL LOSSES. 687 
 
 1138 a. Damage to goods merely in consequence of other goods 
 being wet, is damage by perils of the seas^ as held by Pollock, 
 C. B., Parke, B., Piatt, B., and Martin, B., of the English Court 
 of Exchequer, in case of damage to tobacco in consequence of 
 hides on board of the same vessel being wetted and injured, 
 though the tobacco was still dry.^ 
 
 1138 b. The underwriters on freight may be liable for loss of 
 freight of a memorandum article, though they may be exempted 
 by the memorandum from the loss of the article itself. 
 
 1139. The underwriters on the cargo are not directly answerable 
 for loss by selling goods to defray the expense of repairs of the 
 ship in a foreign port. 
 
 Where the repairs are a subject of contribution in general 
 average, the underwriters on cargo must contribute their propor- 
 tion of the necessary sacrifice to raise the funds for the purpose 
 of defraying the expense of the repairs, but they are not directly 
 liable to the shipper for such loss.^ 
 
 1140. W/iere goods are deteriorated in value by sea-damage , 
 but still remain in bulk and specie, and are delivered at the port 
 of destination, the whole freight being payable, the loss thus sus- 
 tained by the shipper on account of payment of full freight is not 
 recoverable against his underwriters.^ 
 
 1141. The loss of the cargo by the perils against which the 
 ship is insured, whereby the voyage is no longer worth pursuing, 
 is not a constructive total loss of the ship by a loss of the voy- 
 age.^ 
 
 1142. Insurance of freight covers the risk of loss of that subject 
 by reason of a loss of either the ship by the perils insured against, 
 whereby it is prevented from transporting the cargo, ^ or a loss of 
 
 1 Montoya v. London Ass. Co. 6 cases of only half freight under the 
 Exch. 451 ; 4 Eng. L. & Eq. 500. French law (Ord. 1681, tit. Fret, a. 15; 
 
 2 See Dobson v. Wilson, 3 Campb. Code de Commerce,* a. 299) on goods 
 480 ; and Powell v. Gudgeon, 5 Maule refused entry at the port of destination 
 & S. 431, Bayley, J., dissenting; and (Insurance, tom. 1, p. 545, c. 12, s. 31); 
 Sarquy v. Hobson, 2 Barnew. & C. 7 ; but does not give his own opinion. 
 
 4 Bingh. 131; 1 Younge & J. Exch. '* Kulenkemp y. Vigue, 1 Term, 304; 
 437 ; 3 Dowl. & R. 192. Alexander v. Baltimore Ins. Co. 4 
 
 3 See Benecke & Stevens by Phil., Cranch, 370. 
 
 Introduction ; Baillie v, Moudigliani, ^ This is the more ordinary way ot 
 Park, Ins. 8th ed. 117. Eraerigon losing freight, 
 mentions a case of advice to pay, in
 
 688 RISKS COVERED. [CHAP. XIII. 
 
 the goods by the perils insured against, whereby the earning of 
 freight by the transportation of them is prevented.^ 
 
 Abbott, C. J., (afterwards Lord Tenterden,) and his associates, 
 held a different doctrine in case of the vessel's putting back to 
 Kingston, the port of departure in Jamaica, on account of sea- 
 damage, and loss of freight on part of the cargo so injured by 
 being wet with sea- water that it was prudently and justifiably 
 sold there, on account of danger of spontaneous ignition if it had 
 been carried on, and because the expense of delay to wash and 
 dry it would have exceeded the amount of the freight of it. The 
 insurers were held not to be liable for this loss, the ground stated 
 being, that, " If it should be held that the underwriter would be 
 liable, it would open a temptation to a master to sail away, 
 under like circumstances, instead of stopping until the cargo 
 could be reshipped." ^ That is to say, if the court should decide 
 for the assured in this case, when the master's proceeding was 
 confessedly justifiable, it might tempt some other master to sell 
 or leave part of the cargo when it was not justifiable. The 
 decision, supported only by such a reason, certainly weighs very 
 little against what seems to be a plain, and is, at least now, a 
 well-established doctrine. 
 
 In case of delay for repairs of sea-damage, if the same can be 
 made in reasonable time to carry on the cargo, the master is 
 authorized to retain it unless full freight is paid, and if he delivers 
 it to the shipper without demanding full freight, it is a loss of 
 freight by his mistake, and not by the perils of the sea.^ 
 
 1143. Insurance being only against the extraordinary action 
 and effects of the perils insured against,* does not cover the mere 
 straining and indefinite deterioration of the ship, but only such 
 damage as may be estimated and repaired.^ 
 
 1 Barclay v. Sterling, 5 Maule & S. fore the whole cargo was on board. 
 6 ; Whitney v. N. Y. Firemen's Ins. Co. The captain could have refitted and 
 18 Johns. N. Y. 208; implied in Brad taken the rest. It was held not to be a 
 hurst r. Columbian Ins. Co. 9 id. 19; loss by the perils insured against. 
 
 De Wolf V. State Ins. Co. 6 Du. N. Y. 3 Clark v. Mass. Fire & Mar. Ins. Co. 
 
 191. 2 Pick. Mass. 104. 
 
 2 Moody r. Jones, 4 Barnew. & C. 4 See supra, s. 4, No. 1086, 1087. 
 394 ; 6 Dowl. & R. 749. In Philpott v. 5 See supra, s. 8, and Feele i;. Suf- 
 Swann, 11 C. B. N. s. 270, the vessel folk Ins. Co. 7 Pick. Mass. 254. 
 
 was driven off by stress of weather be-
 
 SECT. XV.] LOSSES WITHIN THE PERIOD OF THE RISK. 689 
 
 1144. The underwriter is precluded from alleging^ in defence 
 against a claim for a loss, the forfeiture of the policy by a previ- 
 ous act ag-ainst which he insured ; as in case of insurance against 
 barratry and sea-damage, where the master barratrously deviates, 
 the underwriter is not exonerated from the risk by such deviation, 
 and though no loss follows directly from it, he is still liable for 
 loss by perils of the seas.^ 
 
 1145. The two subsequent sections are supplemental to, and 
 illustrative of the inquiries in the present one. 
 
 Thus the inquiry in the next section, as to what effects of 
 perils come within the period of the policy, closely coincides with 
 the subject of the present one, and divers cases in the section 
 subsequent to that are applicable in this : 
 
 As, for instance, in a case subsequently stated, of the excep- 
 tion of loss by the mortality of insured horses as distinguished 
 from loss by the effect of sea-risks.'-^ 
 
 SECTION XV. WHAT LOSSES ARE WITHIN THE PERIOD OF THE 
 
 RISK. 
 
 1146. Whether the risk in certain ports or localities is vnthin 
 the period of the risk, as described in the policy. 
 
 The voyage out may be divided into successive distinct peri- 
 ods.^ Under a policy on goods on board of the P. " from New 
 Orleans to Havana, from thence to Barita and back to New Or- 
 leans," the question arose in Louisiana whether the risk was for 
 two distinct periods, one from New Orleans until arrival at 
 Havana, the other from sailing thence until arrival at New Or- 
 leans, or for one entire period from New Orleans until return to 
 that place. The underwriters contended for the first construc- 
 tion, whereby a loss which had occurred at Havana would not 
 
 1 Vallejo V. Wheeler, Cowp. 143. from those we have just been consider- 
 
 2 Gabay v. Lloyd, 3 Barnew. & C. ing, and others of them are wholly dif- 
 793; 5 Dowl. & R. 641. Though there ferent, the grouping of them in the 
 is this coincidence in some instances, manner adopted would, as it seemed, 
 and a close analogy in others, still, a3 facilitate the labors of the student, and 
 the questions arising in each of those be more convenient for reference in 
 sections respectively have one aspect in practice. 
 
 common, whereby they are distinguished 3 Supra, No. 976. 
 58*
 
 690 RISKS COVERED. [CHAP. XIII. 
 
 be within either period of the risk ; the assured insisted on the 
 latter, which would cover that loss. Eustis, C. J., giving the 
 opinion of the Supreme Court of that State, said : " We have 
 not met with any case in which, when applied to an intermediate 
 port, the words ' thence ' and ' from ' have the same exclusive 
 sense as when used in regard to the commencement of the voy- 
 age. The word ' thence ' is not a term of exclusion or of limita- 
 tion of risks, but descriptive of the course of the voyage." And 
 the loss was adjudged to have occurred within the local termini 
 of the risk, and so within the period specified by the policy.^ 
 
 A similar question had previously arisen in Pennsylvania, 
 under insurance upon a ship originally " at and from Philadelphia 
 to Cork and back to Philadelphia," and a subsequent memo- 
 randum, that, "it being represented by the assured that the A. 
 was ordered from Cork to Limerick, and had arrived there, the 
 insurers engaged to see the ship from thence, instead of Cork, 
 back to Philadelphia." A loss occurred while the vessel lay 
 about two miles below Limerick, within what was considered to 
 be a part of the port of that place. Tilghman, C. J., and his 
 associates, understood the original policy to have covered the risk 
 at Cork, and this appears to have been taken for granted by the 
 parties ; and the court considered Limerick to be substituted for 
 Cork by the memorandum, and therefore that the loss took place 
 within the local termini of the risk.'^ 
 
 1147. If an illegal act insured against., whereby the subject is 
 forfeited^ is committed during the period of the policy, and the 
 seizure is not made until after the expiration of that period, the 
 underwriters are not liable. If the seizure is made during that 
 period, they are liable, in case of condemnation, though subse- 
 quent. 
 
 The forfeiture of a ship insured was incurred during the con- 
 tinuance of the risk, by the barratrous act of the master in smug- 
 gling goods, but the ship was not seized for the forfeiture until 
 after the risk had ended. The insurers were held not to be liable, 
 as the loss had not in fact happened during the risk.^ 
 
 The ground stated by Mr. Justice Willes, in giving the opinion 
 
 1 Bradley v. Nashville Ins. Co. 3 La. 2 Bell v. Marine Ins. Co. 8 Serg. & 
 Ann. 708. R. Penn. 98. 
 
 3 Lockyer v. Offley, 1 Term, 252.
 
 SECT. XV.] LOSSES WITHIN THE PERIOD OF THE RISK. 691 
 
 of the court, was, that there must be some limitation of the lia- 
 bility of the underwriter. If he could be held for a month after 
 the act of smuggling, and before the seizure, he might be so for 
 a year, and there would be no way of fixing the limit.^ 
 
 Another reason given for this decision distinguishes this case 
 from an injury by the action of the elements, namely, that in this 
 case it is wholly contingent whether the vessel will ever be seized 
 for the forfeiture, and it more resembles the case of an approach- 
 ing storm at sea, than that of damage by one that had occurred 
 during the period of the risk. 
 
 A similar decision was made in Louisiana, in case of seizure 
 in the port of Havana more than twenty-four hours after the 
 arrival of the vessel, when the period of the policy had ended, for 
 an act of smuggling within the twenty-four hours.^ 
 
 In case of seizure during the period of the policy for an act 
 insured against, whereby the vessel is subject to be forfeited, the 
 underwriters are liable ; but whether for a partial or total loss, 
 will depend upon the assured's availing himself, in time, of his 
 right of abandonment, or upon the fact of subsequent condemna- 
 tion.3 
 
 1148. W7i ether, and hoiu far, the underwriters are liable for 
 the effects resulting, after the expiration of the period of the 
 23olicy, from the operation of the perils insured against during the 
 policy ? 
 
 In one of the cases just above referred to, Mr. Justice Willes 
 stated a preceding decision by the English King's Bench,'* where 
 a ship insured for a certain time "received her death-wound" 
 from a peril insured against, three days before the end of the 
 time, but, by pumping, was kept afloat till three days after it had 
 ended, in which the verdict, being against the claim for the loss, 
 was confirmed by the court. 
 
 Mr. J. Willes compares such a case to one of a policy on a life, 
 
 1 In the same case Mr. Justice Willes 2 Mariatigui v. La. State Ins. Co. 8 
 
 made the objectionable remark, that it La. 68, decided on the authority of 
 
 was more important that the question Lockyer v. Offley, 1 Term, 252. 
 
 should be decided, than how it was 3 Dorr v. New England Mar. Ins. Co. 
 
 decided, to which neither of the parties 11 !Mass. 1. 
 
 to the policy in question, or any other ^ Meretony v. Dunlop, 1 Term, 260. 
 policy, would give his assent.
 
 602 RISKS COVERED. [CHAP. XIII. 
 
 where the party insured for a year receives a mortal wound 
 during that time, of which he dies after the end of the year. 
 But the cases are not parallel ; to render them so, the insurance 
 on the life should be, not against death merely, as a life policy is, 
 but against wounds, as a ship is against perils of the seas. The 
 comparison is accordingly illusive. 
 
 A case more similar came before Lewis, C. J., and Radcliff 
 and Kent, Justices, in New York, on a policy upon horses from 
 Liverpool to New York, " against all risks, including the risk of 
 death from any cause whatever, until safely landed." One of the 
 horses died three or four days after being landed, of injuries re- 
 ceived in a gale on the voyage. Kent, then Justice, states the 
 question in such case to be. What was the condition of the 
 article when landed? " One of the horses received a death-wound 
 during the voyage. The damages so received are a proper sub- 
 ject of retribution. How much damage ought to have been 
 assessed at the time he was landed?" and the judgment upon 
 this ground, which seems plainly to be the true one, was for the 
 full value of the animal.^ 
 
 A decision of Lord Mansfield and his associates has long 
 before applied the same rule, in case of a policy upon a ship for 
 six months, which was injured during the time by being driven 
 from the basin at Quebec by a field of ice, upon the rocks, and 
 damaged thereby. In the spring, about three months after the 
 period of the policy had expired, she was found to have been in- 
 jured, but not irreparably. Difficulties supervened from want of 
 materials, which prevented her being repaired, and she was sold. 
 It was adjudged, that 
 
 The claim for loss must be determined according to the injury 
 sustained within the period of the policy, and the consequent con- 
 dition of the subject at the conclusion of that period? 
 
 If certain consequences will inevitably result after the expira- 
 tion of the period of the policy, from the operation of the perils 
 insured against during the period, they are surely proper subjects 
 of indemnity, according to the rule above laid down by Chan- 
 cellor Kent. 
 
 A case has arisen in the Ohio jurisprudence, involving this 
 
 1 Colt V. Smith, 3 Johns. Cas. N. Y. 2 Furneaux v. Bradley, Mai-shall, 
 16. Ins. 584.
 
 SECT. XV.] LOSSES WITHIN THE PERIOD OF THE RISK. 693 
 
 question. A Mississippi steamboat struck upon the wreck of 
 another, at about eleven o'clock, A. M., and in consequence was 
 stranded, and afterwards sunk at about four o'clock, A. M., of the 
 next day, and it was held that the insurers in a policy which 
 terminated at midnight after the boat struck, were liable only for 
 the damage by collision with the wreck, and not for the subse- 
 quent stranding and sinking, and accordingly, as the damage, in 
 case the boat had not subsequently sunk, was less than fifty per 
 cent., the assured had no right to abandon.^ 
 
 The proper question presented by this case seems to have been 
 one of fact, namely, what was the value of the vessel in the 
 situation in which she was after the accident. If she sunk in 
 attempting to make the nearest place of safety, it seems to have 
 been a decided total loss; but if in attempting to pursue the 
 voyage, then the question should seem to have been whether a 
 place of reasonable safety for repairs could have been reached. 
 
 A ship was delayed to repair sea-damage which was covered 
 by the policy, and while so delayed was arrested by a temporary 
 embargo, whereby it was detained until after the risk terminated ; 
 the insurers were held not to be liable for the loss accruing by 
 this detention subsequently to the termination of the risk.^ 
 
 A British vessel insured from Bilboa to Rouen, till she had been 
 there moored twenty-four hours in safety, arrived at Rouen, where 
 a hostile embargo had been laid upon British vessels. She was 
 not actually taken possession of under the embargo, until after 
 the twenty-four hours, but had been in the power of the officers 
 of government from the time of her arrival. Lord Kenyon 
 instructed the jury, that the loss happened immediately on the 
 vessel's arriving within the operation of the embargo, and so 
 before the expiration of the risk.^ 
 
 1149. Whei'e the subject, being- at sea, is never heard of as 
 surviving- the period of the poliA/, whether on a life or other 
 subject, it is a question for the jury to determine, from all the 
 circumstances, after a sufficient time has passed to authorize a 
 
 1 Howell V. Protection Ins. Co. 7 "Weskett, Ins., art. End of Voyage, &c. 
 Ohio, 284. Otherwise on a policy that n. 5. 
 
 subsisted a day longer. Howell v. Cin- 3 Minett v. Anderson, Park, Ins. 56 ; 
 cinnati Ins. Co. 7 Ohio, 276. Peake, 211. See also Fireman's Ins. 
 
 2 Roche V. Thompson, Millar, Ins. 20 ; Co. v. Powell, 13 B. IMonr. Ky. 311.
 
 694 RISKS COVERED. [CHAP. XIII. 
 
 presumption of a loss, whether the loss took place within that 
 period.^ 
 
 So if goods insured against sea-perils are found, some time 
 after the termination of the risk by its own limitation, or by 
 deviation or other forfeiture, to have been injured by the perils of 
 the seas, it is a question for the jury, whether from all the circum- 
 stances, it appears that the damage was prior to the forfeiture or 
 other termination of the insurance.^ 
 
 SECTION XVI. RISKS EXCEPTED. 
 
 1150. It has already appeared,^ that certain risks are impliedly 
 excepted in all policies of insurance. 
 
 Besides those, the contract most frequently makes express excep- 
 tions, by stipulating that it is to be " free from," or " warranted 
 against," certain specified perils.^ 
 
 1151. The subject of a marine policy may be exposed to all the 
 marine risks incident to the specified voyage, those excepted as well 
 as those covered, duiing the whole continuance of the risk, and 
 two or more perils may be simidtaneously in actual operation to 
 the damage of the subject. It is the damage, or loss, that is the 
 material object of both the stipulation for indemnity and the ex- 
 ceptions, whether express or implied ; the underwriter being liable 
 for the direct effects of the perils insured against, while the 
 assured stipulates to bear the direct effects of those excepted.^ 
 
 1152. Under the exception of all risii;s on account of " trade in 
 articles contraband of war,^^ if the whole or a part of the goods 
 insured are articles contraband of war, and a loss takes place in 
 consequence, the insurers are not liable for such loss. 
 
 1153. The exception of trade in articles contraband of war 
 relates to the goods insured in the policy, and not to other goods 
 shipped on board of the same vessel. 
 
 1 Patterson v. Black, Marshall, Ins. 4 As to what language makes an ex- 
 2d ed. 781 ; Brown y. Neilson, 1 Caines, ception, see Westfall v. Hudson Riv. F. 
 N. Y. 525; Clifford v. Thomaston Ins. Ins. Co. 2 Dii. N. Y. 490; Kingsley v. 
 Co. 50 Me. 197. New England Ins. Co. 8 Gush. Mass. 
 
 2 Hare v. Travis, 7 Barnew. & C. 393. 
 
 14. 5 See supra, 1129. Grant v. Lexing- 
 
 3 Supra, c. 8 and 10. ton Ins. Co. 5 Ind. 23.
 
 SECT. XVI.] RISKS EXCEPTED. (395 
 
 1154. The common form of American policies exempts the 
 underwriters from seizure and condemnation for, or loss in con- 
 sequence of, illicit or prohibited trade and trade in articles 
 contraband of war. The exception of such perils is to some 
 purposes the converse of the insurance against the same perils, 
 which has been before considered.^ 
 
 " Illicit" trade is not, as we have seen, synonymous with " con- 
 traband," and this latter covers different species of trade, and the 
 exception is made also in divers forms, but the construction of the 
 divers parts and forms of the exception is so similar, that they 
 may be classed together. 
 
 The principal question here is, whether the exception extends 
 to seizure and detention under a mere pretence, or a groundless 
 charge of such trade, where the insured subject is within a for- 
 eign jurisdiction; upon which question the better doctrine seems 
 to be that adopted by the Supreme Court of the United States, 
 namely. 
 
 The exception of the risk of illicit^ prohibited, and contraband 
 trade, exonerates the underivriter from liability, not only where 
 there has actually been such, but also ivhere there is reasonable, 
 legal, and justifiable ground for seizure and detention on account 
 of it? 
 
 The insurers are not liable for loss under this exception, 
 
 Where there is an attempt to trade, though there is no actual 
 trading, as held by the Supreme Court of the United States : ^ 
 
 Or a mere sailing on the voyage, as held in Massachusetts : * 
 
 Or when the vessel arrives at the port of destination, and is 
 there denied entry, as held in New York : ^ 
 
 1 Supra, s. 1 1 This exception is said the Court of Errors of that State ; Smith 
 to have been introduced in Philadelphia v. Delaware Ins. Co. 3 Serg. & K. Penn. 
 as early as 17 78. Smith v. Delaware 82; Faudel v. Phoenix Ins. Co. 4 id. 
 Ins. Co. 3 Serg. & R. Penn. 82. 29. 
 
 2 Carrington v. Merchants' Ins. Co. 3 Churchy. Hubbard, 2 Cranch, 187; 
 8 Pet. 495. And see Bradstreet c. Nep- Andrews v. Essex Mar. Ins. Co. 3 Mas. 
 tune Ins. Co. 3 Sumn. C. C. 600 ; Ma- C. C. 6 ; Decrow v. Waldo Ins. Co. 43 
 goun V. New England Mar. Ins. Co. 1 Me. 460. 
 
 Stor. C. C 157. And see relative to 4 Higginson i'. Pomeroy, 11 Mass. 
 
 this exception, Laing v. United Ins. Co. 104. Sec also Smith v. Delaware Ins. 
 
 2 Johns. Cas. N. Y. 174, in the Supreme Co. 3 Wash. C. C. 127. 
 
 Court of New York ; and on the same * Suydam v. Marine Ins. Co. 1 Johns, 
 
 voyage, Johnston v. Ludlow, id. 481, in N. Y. 181.
 
 696 RISKS COVERED. [CHAP. XIII. 
 
 Or where the goods, described as Spanish, are condemned 
 under the charge of their being Spanish, as held by the Supreme 
 Court of Louisiana : ^ 
 
 Or where the goods are seized and condemned for trade in fact 
 illicit, though the master or other representative of the assured 
 has no intention to trade illicitly, or knowledge of the law under 
 which the property is condemned, as ruled by Mr. Justice Wash- 
 ington : ^ 
 
 Or where the trade is in fact illicit under a foreign law, though 
 the officers of the foreign government to which the place is sub- 
 ject give permission for the trade without authority so to do, as 
 held in New York.^ 
 
 The insurers are liable for loss, notwithstanding the ex- 
 ception. 
 
 Where the seizure of the cargo in the port of destination was 
 apparently by arbitrary violence, there being no evidence of con- 
 demnation for such trade, as held in New York :* 
 
 And where there is in fact no illicit trade or reasonable ground 
 of seizure, although seizure is unlawfully made under a pretence 
 thereof, as ruled by Mr. Justice Washington ; ^ and by Mr. Jus- 
 tice Story ;*^ and by the Supreme Court of Pennsylvania;'^ and 
 by the Supreme Court of New York : ^ 
 
 And where the illicit trade comes within a peril insured against, 
 as by barratry, as held in New York : ^ 
 
 And where the trade at the port of destination is rendered il- 
 licit by a peril insured against, as by detention of the vessel by a 
 belligerent, as held in Pennsylvania : ^'^ 
 
 And where the policy is on goods or specie, and the export of 
 specie from the port named is known to the underwriters to be 
 prohibited, as held in New York : ^^ 
 
 J Goicoecliea v. La. State Ins. Co. 6 ^ Smith v. Delaware Ins. Co. 3 Serg. 
 
 Mart. N. s. La. 51. & R. Penn. 82. 
 
 2 Smith V. Delaware Ins. Co. 2 Wash. * Francis v. Ocean Ins. Co. 6 Cow. 
 C.C.I 27. N. Y. 404. 
 
 3 Tucker v. Juhel, 1 Johns. N. Y. 20. 9 American Ins, Co. v. Dunham, 12 
 
 4 Gracie v. New York Ins. Co. 13 Wend. N. Y. 463; and S. C. on error, 
 Johns. N. Y. 161. 15 id. 9. 
 
 5 Graham v. Penn. Ins. Co. 2 Wash. ^o Savage v. Pleasants, 5 Binn. Penn. 
 C. C. 113. 403. 
 
 6 Magoun v. New England Mar. Ins. n Seton v. Delaware Ins. Co. 2 
 Co. 1 Stor. C. C. 157. Wash. C. C. 175.
 
 SECT. XVI.] RISKS EXCEPTED. 697 
 
 And where the exception is of liability for loss by " existing 
 regulations," and the loss is by one made subsequently, as held 
 in Massachusetts.! 
 
 1155. Whether the decree of a foreign tribunal is conclusive of 
 the fact of illicit trading in reference to the exception of such 
 trade, comes under consideration subsequently.^ 
 
 1156. The insurers are exonerated under the exception of pro- 
 hibited trade, though the prohibition is subsequent to the date of 
 the insurance.^ 
 
 1157. The exception of illicit trade has reference only to the 
 goods of the assured, not to those of other shippers ; ^ whether a 
 shipment of other goods that are illicit is known to both parties 
 to the policy ;^ or to the assured, and not to the insurers.^ 
 
 1158. In case of an exception of seizure for illicit trade, it is 
 requisfte, in order to bring a case within it, that there should be a 
 " seizure ; " the mere fact of illicit trade without a seizure is not 
 sufficient.' 
 
 Goods were insured from New York to Cherbourg, " free from 
 seizure for illicit or prohibited trade." The ship and cargo were 
 seized at Cherbourg under the Berlin Decree, and condemned 
 " on the ground of a false declaration by the captain,'' that he 
 had not gone to England on the voyage. This was held in New 
 York not to be a " seizure for illicit trade," and the underwriters 
 were adjudged to be liable for the loss.* 
 
 1159. Whether under the exception of the risk of blockade 
 the underwriters are liable for an illegal capture on account of 
 an actually existing blockade, where there has been no violation 
 of it? 
 
 Under insurance on a vessel and cargo against " all risks, His- 
 paniola and blockaded ports excepted," Marshall, C. J., and his 
 associates, held the underwriters to be liable for loss by capture, 
 
 1 Wood V. New England Mar. Ins. 6 De Peyster v. Gardner, 1 Caines, 
 Co. 14 Mass. 31. N. Y. 492. 
 
 2 See infra, No. 2104 etseq. " Graham v. Penn. Ins. Co. 2 Wash. 
 
 3 Snaith v. Delaware Ins. Co. 3 Wash. C C. 113; Kohn v. New Orleans Ins. 
 C. C. 127. Co. 12 La. 349. 
 
 * Cucullu V. Orleans Ins. Co. 6 Mart. S Mumford v. Phoenix Ins. Co. 7 
 N. 8. La. 13. Johns. N. Y. 449. 
 
 5 Bowne v. Shaw, 1 Caines, N. Y. 
 489. 
 
 VOL. I. 59
 
 698 RISKS COVERED. [CHAP. XIII. 
 
 after the master, having been sailing for Curagoa, had changed 
 his course to return to Norfolk on notice that Curagoa was block- 
 aded.^ 
 
 The exception of " risk of blockaded port '' has been held in 
 New York, by Kent, C. J., and his associates, to exonerate the 
 insurers from loss " that arises by reason of the blockade," 
 though there is no violation of it, and though the capture for a 
 violation is illegal.^ 
 
 From analogy to the well-established rule in reference to the 
 exception of illicit trade,^ I infer the better doctrine to be, that, 
 
 Under the exception of the risk of blockade, the insurers are 
 liable in case of there being no violation of a blockade or inten- 
 tion to violate one and proceeding with such intention, unless the 
 phraseology of the exception in the particular case imports a 
 larger exemption. 
 
 This is adopting the presumption, that the parties have refer- 
 ence to an actual blockade and a violation of it, or intent to vio- 
 late it, such presumption being subject to be rebutted. 
 
 1160. Whether the exception of risks in apart is applicable to 
 its oulports and stations ? 
 
 Under this exception, the port of Varel is held by Lord Ellen- 
 borough and his associates to extend fifteen miles belovv^ that 
 place on the river Jahde.^ 
 
 And the port of Pillau was held by the same court to extend 
 to the outer harbor of that place, two miles from the inner har- 
 bor.^ 
 
 Sir James Mansfield and his associates held, on the contrary, 
 that a seizure in Pillau Roads, outside of the harbor, where ves- 
 sels of the size of the one in question usually discharge a part 
 of their cargoes, was not a seizure in port : ^ 
 
 And the same judges held a seizure by French officers then in 
 possession of Wilmar, about four miles further out than where 
 vessels of similar size to the one in question usually began to 
 unload, was not a seizure in that port.'^ 
 
 1 Yeaton v. Fry, 5 Cranch, 335. 5 Dalgleish v. Brooke, 15 East, 295. 
 
 2 Radcliff V. United Ins. Co. 7 Johns. See also Oom v. Taylor, 3 Campb. 205 ; 
 N. Y. 38 ; 9 id. 277. also Maydhew r. Scott, id. 205. 
 
 3 Supra, 1154. 6 Brown v. Tierney, 1 Taunt. 517. 
 
 4 Jarman v. Coape, 13 East, 394 ; 2 7 Mellish v. Staniforth, 3 Taunt, 499. 
 Campb. 615. The court hesitated in this case, because
 
 SECT. XVI.] RISKS EXCEPTED. 699 
 
 A similar decision was subsequently made by the same court 
 in respect of an exception of confiscation at the same place ; ^ 
 and also in respect of an exception of capture at that port.^ 
 
 In these decisions the two courts are plainly at variance. Sir 
 J. Mansfield said, in the last case referred to, that " no doubt the 
 underwriters intended to protect themselves against the risk of 
 that loss which had occurred," but that he could not get over the 
 words of the policy, which did not distinctly include the case 
 within the exception. This is in conformity to the rule, that a 
 doubt on this exception must operate against the underwriters. 
 
 In another case Lord Ellenborough himself instructed the jury 
 less favorably to the underwriters. A vessel was insured at and 
 from Rotterdam to London, with liberty to touch at all ports, 
 " free from capture in port." The ship was captured while at 
 anchor at Ghoree Ghat, about half a mile from Ghoree, in an 
 open roadstead, within the headlands which form the mouth of 
 the river Maese. Lord Ellenborough said, if you would protect 
 yourself by the exception, " you must show that the ship was 
 within some port at the time of the capture. No witness has 
 stated that the place where she lay was within the port of Rot- 
 terdam or of Ghoree, or within any other port." ^ 
 
 I accordingly conclude, as the better and only general doctrine, 
 that, 
 
 In case of reasonable doubt, under the exception of seizure in 
 port, ivhether the place of the seizure is in port, the underivriters 
 are liable for the loss.^ 
 
 1161. In case of any loss technically total in its character, by 
 
 the captain lay about five hours in a sit- anchoring-grounds, are to be consid- 
 uation as much exposed to seizure as if ered to be within a port, and whether 
 he had been in the port, after he had a port is to be understood as having 
 learned that the place was in possession the same limits in respect of insurance 
 of the French ; but they felt bound to and all other contracts, and also in re- 
 consider the place as not being in the spect of jurisdiction and of crimes, it 
 port. would be necessary to go into a pro- 
 
 1 Levy V. Vaughan, 4 Taunt. 387. tracted digression on the subject, some- 
 
 2 Keyser v. Scott, 4 Taunt. 660. what in the chai-acter of a distinct 
 
 3 Baring v. Veaux, 2 Campb. 541. treatise, which would be overstepping 
 
 4 See Levi v. Allnutt, 15 East, 267. the proposed limits of this work. The 
 In order to arrive at a practical gen- inquiiy is, therefore, here and in other 
 eral rule in respect of what outports places where it occurs, dismissed quite 
 and distances, stations, channels, and short of any such thorough discussion.
 
 700 RISKS COVERED. [CHAP. XIII. 
 
 a peril insured against, the insurers are liable though the loss is 
 followed by the operation of an excepted peril, upon the subject. 
 
 Goods being insured with the exception of seizure in port, the 
 vessel was seized in Pillau Roads by Prussian soldiers from Pil- 
 lau, and Frenchmen from a French privateer. The dispute be- 
 tween the two sets of captors was referred by the Prussian gov- 
 ernment to that of France, and the French court of prizes gave 
 the prize to the.privateer's men. Lord Ellenborough said, " There 
 was no confiscation ; " and Mr. Justice Grose, " The Prussian 
 government did not confiscate, but abjured and renounced the 
 property ; " and the case was decided not to come within the 
 exception.! 
 
 This seems to have been deciding the loss to be by the first 
 act of force, rather than by the subsequent acts and proceedings, 
 contrary to a prior judgment by the same court.^ 
 
 In a New York case, under a policy on cargo from Philadel- 
 phia to St. Sebastian's, with the exception of all risks in port 
 but sea-risk, the vessel was captured about four leagues from 
 St. Sebastian's, and taken into Passage, and taken thence by a 
 French crew to Bayonne, where the cargo was sequestered. 
 This was held to be a loss by capture for which the insurers 
 were liable.^ 
 
 So under a policy on goods " free from capture and seizure," 
 the ship having been stranded on the Spanish coast, and the 
 cargo seized by the officers of the government as prize, it was 
 held by the Enghsh Court of Common Pleas, that the under- 
 writers were liable for a loss by perils of the seas.* 
 
 A decision contrary to the preceding has been made in Mary- 
 land, under an exception of " seizure in port " in a policy on a 
 vessel, which, being captured in 1810 and carried into the Span- 
 ish port of Bermia, and thence to Bayonne, was, witl^out any 
 legal proceedings being had, taken in the latter place for the 
 public service. This was held, in Maryland, to be a loss by 
 seizure in port for which the insurers were not liable.^ 
 
 1 Levi V. Allnutt, 15 East, 267. 4 Halm v. Corbett, 2 Bliigh. 205 ; 9 
 
 2 Li vie V. Janson, 12 East, 648 ; J. B. Moore, 390. 
 
 supra, No. 1136. 5 Barney v. Maryland Ins. Co. 5 
 
 3 Duval V. Commercial Ins. Co. 10 Harr. & J. Md. 139. 
 Johns. N. Y. 278.
 
 SECT. XVI.] RISKS EXCEPTED. 701 
 
 So under a policy on goods against fire and an exception of 
 loss by theft, the loss by plunder of the goods after they had 
 been removed to save them from fire, was held in Missouri to 
 come within the exception.^ 
 
 In the cases last stated, the subject was considered at the time 
 not to have been totally lost until the excepted risk intervened, 
 and the underwriters ought, therefore, to have been held liable, 
 at least, for the prior damage and expense by reason of a peril 
 insured against. 
 
 1162. The cases afford a great variety of particular exceptions 
 of risks. 
 
 A cargo being insured to Havana, "//-ee from loss if not per- 
 mitted to entry in consequence of having negroes on hoard^'' the 
 vessel, according to a standing regulation, was required to come 
 to anchor near the Moro Castle, until it was visited, and was not 
 permitted to go into the inner harbor and be moored at the docks 
 until the negroes had been landed, and was wrecked before land- 
 ing them or being visited. It was held by the Supreme Court 
 of New York, that the entry intended by the exception is that at 
 the custom-house, and that the insurers were liable.^ 
 
 The exception of loss by the " ordinary perils of the seas,''^ 
 means perils of the seas as distinguished from arrest, capture, 
 &c., and not as distinguished from extraordinary perils, and the 
 insurers are liable under such exception for loss by shipwreck.^ 
 
 A warranty " against loss to or from the sheathing,''^ is merely 
 an exception of the risk of damage to the sheathing, not a condi- 
 tion that the sheathing shall be maintained entire during the 
 risk ; and the insurers continue to be liable for loss notwith- 
 standing that the sheathing may have been injured by perils of 
 the seas.^ 
 
 The exception of loss on a ship " by the British, in case of cap- 
 ture, the sea-risks to continue,'" was held by the Supreme Court 
 of New York to exonerate the insurers from " loss attributable to 
 an act of the captors, which, if done by the assured, would absolve 
 the insurers,^' and they were held not to be liable for damage by 
 
 1 Webb V. Protection Ins. Co. 14 ^ Law v. Goddard, 12 Mass. 112. 
 Mo. 3. 4 ^lartin v. Fisliiii>r Ins. Co. 2U Pick. 
 
 2 Dickey v. United Ins. Co. 11 Johns. Mass. 3sa. 
 N. y. 358. 
 
 59*
 
 702 RISKS COVERED. [CHAP. XIII. 
 
 collision in consequence of her being moored in a position ex- 
 posing her to collision with other vessels, so that when the cap- 
 tain regained possession she was a mere wreck.^ 
 
 The exception of " detention " exonerates the insurers in case of 
 hindrance by a blockade from leaving a port? 
 
 The exception of " mortality " of insured animals was held by 
 Lord Tenterden and his associates not to apply to '''-violent death^'' 
 and the insurers were held liable for loss of mules and other ani- 
 mals from injuries occasioned by the rolling of the ship.^ So 
 also for the death of horses, which in tempestuous weather broke 
 their slings and the partitions between them, and died of bruises 
 occasioned by the rolling oi the vessel and by kicking each other.* 
 
 Exception is sometimes made of all risks within a certain 
 region for a time ; as in the West Indies, from July 11th to 
 October ISth.^ 
 
 A provision that the insurers " take no risk in port,'" extends to 
 aW ports at which the vessel touches of necessity, as well as those 
 in the regular course of the voyage.^ 
 
 The exception of " French risks " exempts the insurers from 
 " loss by the acts of Frenchmen^ ' 
 
 A provision by law, that the assured on a steamboat shall not 
 recover for a loss by accidents in racing, running into another 
 boat, &c., "except such as is impossible to be foreseen, and 
 avoided," is held in Louisiana to have reference to an impossi- 
 bility by reasonable intendment.^ 
 
 1 Coolidge V. N. Y. Firemen's Ins. 2 Wilson v. United Ins. Co. 14 Johns. 
 
 Co. 14 Johns. N, Y. 308. According N. Y. 227. 
 
 to the doctrine that loss by sea-perils in 3 Lawrence v. Aberdeen, 5 Barnew. 
 
 consequence of the mistakes or negli- & Aid. 107. 
 
 gence of the master and mariners is at 4 Gabay v. Lloyd, 3 Barnew. & C. 
 
 the risk of the insurers, (see supra, No. 793 ; 5 Dowl. & R. 641. 
 
 1049,) and to the test applied by Mr. 5 Palmer v. Warren Ins. Co, 1 Stor. 
 
 Justice Spencer in the passage above C. C. 360. 
 
 quoted, in which he refers, no doubt, 6 Patrick v. Commercial Ins. Co. 11 
 
 to the acts of the master, the insurers Johns. N. Y. 9. See also Baring v, 
 
 would have been held liable in this Veaux, 2 Campb. 541. 
 
 case. At the date of this case, how- i Roget v. Thui-ston, 2 Johns. Cas. 
 
 ever, the assured was understood to be N. Y. 248. 
 
 answerable for the mistakes and negli- 8 Caldwell v. St. Louis Perpetual Ins. 
 
 gences of the master and mariners, to Co. 1 La. Ann. 85. 
 a much greater degree than at present.
 
 SECT. XVI.] RISKS EXCEPTED. 703 
 
 The exception of loss on a steamer from the bursting of boilers 
 and breaking of engines, unless it is caused by external violence, 
 is held in Missouri to have reference to violence external, not to 
 the boiler or engine merely, but to the steamer.^ 
 
 The exception of death by suicide in life policies is construed 
 to extend only to an act of self-destruction by a person having 
 mental capacity sufficient to render himself responsible for his 
 acts.2 
 
 An exception of " seizure " is not limited to an arrest on account 
 of a municipal regidation. 
 
 It was so held in New York, in case of a ship insured with the 
 exception of seizure and taken by French privateers as prize, and 
 not on account of any municipal regulation.^ 
 
 Under the exception of "seizure and any attempt thereof," the 
 underwriters were held liable where the vessel was fired into and 
 sunk through mistake of her nationality.* 
 
 An exception of " leakage unless by stranding or collision" is 
 held to include all other leakage, though caused by a peril 
 insured against.^ 
 
 Under an exception of the expense of dockage and any loss 
 where the repairs did not exceed ten per cent., it was held in 
 Ohio that the dockage might be included to make up the ten 
 per cent.^ 
 
 1162 a. TUfe exception of loss "by a usurped power" in afire 
 policy, does not exonerate the insurers from loss occasioned by a 
 mob.' 
 
 An exception of loss by fire occasioned by mobs and riot is 
 
 1 Citizens' Ins. Co. of Missouri v. 2 Supra, No. 895, and cases cited. 
 
 Glasgow, 9 Mo. 406. Fire caused by 3 Black y. Marine Ins. Co. 11 Johns, 
 
 the bursting of boilers is held to come N. Y. 287. 
 
 within this exception. Montgomery v. * Powell v. Hyde, b 1^11. & B. 607; 
 
 Firemen's Ins. Co. 16 B. Monr. Ky. 34 Eng. L. & Eq. 44. 
 
 427 ; St. Johns v. American Ins. Co. ^ Neilson r. Commercial Ins. Co. 3 
 
 11 N. Y. 516 ; McAllister i-. Tennessee Du. N. Y. 455. 
 
 Ins. Co. 1 7 Mo. 306. See also Western ^ Snapp v. Merchants' Ins. Co. 8 
 
 Ins. Co. V, Cropper, 32 Penn. St. 351. Ohio St. 458. 
 
 The exception, " not liable for bursting ' Drinkwater v. London Ass. Co. 2 
 
 of boilers," includes the consequences, Wils. 363. See as to the exceptions in 
 
 as the sinking of the boat. Strong v. fire policies generally, supra, No. 63. 
 Sun Ins. Co. 31 N. Y. 103.
 
 TOrt RISKS COVERED. ' [CHAP. XIII. 
 
 held not to include a loss where the property is burnt by the 
 military authorities to prevent its use by a usurped power.^ 
 
 The exception of loss by " civil commotion " was ruled by Lord 
 3Iansfield to exempt nndenvriters from a loss by a building being 
 destroyed by a mob in a riot against Catholics.^ But a doubt of 
 tills construction is certainly excusable, and the more so, as it was 
 adopted by Lord Mansfield partly on the ground of the succes- 
 sive alterations of the common form of policy used by the Lon- 
 don Assurance Company, which in the particular case could only 
 go to show the construction intended by the underwriters, without 
 showing what construction assureds would be authorized to put. 
 And again, if the history of the modifications of the form of the 
 policy of that company should be of weight in determining its 
 construction, it would not be in reference to those of others. 
 The phrase "civil commotion" seems plainly to mean, ordina- 
 rily, something more than the mere riotous outbreaks of fanati- 
 cism. 
 
 An exception is sometimes made o/all risks for a time, as, in a 
 fire policy, while a hazardous trade is carried on in the insured 
 premises : ^ 
 
 1163. WJiether, in case of doubt and no preponderance of evi- 
 dence, the presumption is that the loss was by a peril insured 
 against, or one excepted ? 
 
 This is a question not free of difficulty. Mr. Justice Story 
 thinks the presumption is that the loss was by the perils insured 
 against.* 
 
 In insurance on a theatre against fire not originating in the 
 building, it was held in Massachusetts that the burden was on 
 the assured to prove that the fire did not so originate.^ 
 
 Where the doubt arises on the construction of the language, the 
 presumption must be in favor of the assured, since the language is 
 that of the underwriter.^ Besides this, the case does not seem to 
 admit of any presumption. 
 
 1 Harris v. York Ins. Co. 50 Penn. St. C. C. 360. See also Keyser v. Scott, 4 
 341. Taunt. 660. 
 
 2 Langdale u. Mason, 2 Marshall, Ins. 5 Sohier v. Norwich F. Ins. Co. 11 
 2d ed. 791. All. Mass. 336. 
 
 3 Lounsbury v. Pretention Ins. Co. 6 Grant v. Lexington Ins. Co. 5 Ind. 
 8 Conn. 459. 23. 
 
 4 Palmer c. Warren Ins. Co. 1 Stor.
 
 SECT. XVII.] RISKS IN BOTTOMRY INTEREST. 705 
 
 Under a policy upon mules, asses, and oxen, "free from mor- 
 tality and jettison," it was said that " the word mortality^ in its 
 ordinary sense, never means violent death," and accordingly the 
 insurers were held liable for the loss of such of the animals as 
 died in consequence of injuries received by the rolling of the ship 
 during a storm. Chief Justice Abbott said : " Suppose a horse 
 were, by the motion of the vessel in a storm, to have his legs 
 broken, but arrive alive ; the underwriters would be answerable 
 for that loss." ^ 
 
 1164. There are divers risks not assumed hy the iinderivriter 
 besides those which are made the subjects of direct exceptions, as 
 we have seen under the heads of implied and express warranties, 
 conditions and stipulations. 
 
 SECTION XVII. RISKS IN BOTTOMRY INTEREST. 
 
 1165. The risks and losses to which the lender on bottomry on 
 ship and freight, or at respondentia on cargo, is liable, depend 
 upon the particular stipulations of the bond. 
 
 1166. Different forms of bottomry and respondentia bonds 
 have been in use. Formerly the condition seems to have some- 
 times been, that the bond should become absolute for the whole 
 loan and interest, in case of the ship or goods subsisting in spe- 
 cie at the termination of the risk.^ But according to the form 
 no less ancient and now generally in use, certain risks to be as- 
 sumed by the lender, are definitely specified in the bond, or by 
 reference to some form of policy of insurance.^ The risk may be 
 for a voyage or a certain period of time.'* It is essential to the 
 
 1 Lawrence v. Aberdeen, 5 Barnew. lender was not liable for contribution in 
 & Aid. 107. general averase. Title 9, art. 10; 2 
 
 2 1 Magens, 393, cas. 34; 3 Burr. Magens, 225, No. 931. By the French 
 1394; 1 W. Blackft. 396; 1 Beawes, law he is liable for general and particu- 
 332, tit. Bottomry, &c. ; 2 Magens, 56, lar average and entitled to salvage. Le 
 No. 133 ; Park, Ins. 337 ; Marshall, Ins. Guidon, c. 19, art. 5; Code de Com- 
 82; Thompson r. Royal Exoh. Ass. Co. nierce, art. 141 ; and see Boulay Paty, 
 
 1 Maule &S. 30; Joyce r. Williamson, Droit Com. torn. 3, p. 168; Weskett, 
 3 Dougl. 164 ; Walpole v. Ewer, Mar- art. Bottomry, n. 23, 27 ; 2 Magens, 52, 
 shall, Ins. 2d ed. 672; and per Kent, J., No. 132; Gibson v. Philadelphia Ins. 
 
 2 Johns. Cas. N. Y. 252. Co. 1 Binn. Penn. 405. 
 
 3 By the ordinance of Hamburg the * The Draco, 2 Sumn. C. C. 157.
 
 706 EISKS COVERED. [CHAP. XIII. 
 
 validity of the stipulation for maritime interest, that the lender 
 should assume some risks. 
 
 In maritime loans as in insurance, fraud by a party will deprive 
 him of the benefit of the contract. 
 
 1167. The risks understood to be assumed by the lender, under 
 the forms of bottomry and respondentia bonds in common use, 
 are perils of the seas including captures and piracy.^ 
 
 1168. The lender, who is in effect the insurer on the ship and 
 freight, or on the cargo, does not take the risk of loss by the 
 misconduct of the borroioer,^ or his agents.^ The risk of barratry 
 is not taken by him, unless it is so expressed, any more than in 
 a policy of insurance.* The French ordinances exonerate the 
 lender from loss arising from the qualities or defects of the sub- 
 jects hypothecated ; ^ and ordinary wear and tear, breakage and 
 leakage.^ And contraband.'^ But nothing prevents parties from 
 expressly stipulating that he shall assume these or such other 
 risks which can lawfully be insured against.^ 
 
 1169. The bond should not only specify the perils assumed by 
 the lender, but also the extent of his liability in adjusting losses 
 by such perils, by reference to a policy of insurance or otherwise. 
 
 1170. The property saved in case of loreck or other disaster, 
 continues to be subject to the hypothecation;^ but if the loss is by 
 the perils assumed by the lender, the borrower becomes dis- 
 
 1 The lender in hypothecation at merce, 1. 2, tit. 4, a. 137. See also Le 
 Athens took the risk of capture and Guidon, c. 5, a. 8 ; Boulay Paty, Droit " 
 jettifon. Boeekh. Public Economy of Com. torn. 3, p. 171, ed. 1822; Emeri- 
 Athens, by Lewis. London, 1842, c. 23, gon, torn. 2, p. 509 ; Pothier, Ins. n. 34 ; 
 p. 139. Yalin, Com. Contrat kla Grosse, a. 12. 
 
 2 Roccus, de Nav. n. 51 ; Dig. de 6 Boulay Paty, Droit, Com. torn. 3 
 Naut. Foen. ; Pope v. Nickerson, 3 Stor. p. 172. 
 
 C. C. 465 ; Boulay Paty, Droit Com. 7 Boulay Paty, Droit Com. tom. 3, 
 
 torn. 3, p. 4 et seq. and 173, ed. 1822; p. 175. 
 
 Emerigon, tom. 2, p. 510; Code de 8 2 Emerigon, 510; Des Cont. k la 
 
 Commerce, a. 326. Grosse, c. 7, s. 2. 
 
 3 Marshall, Ins. 756, book 2, c. 5 ; 9 1 Magens, 24, s. 24 ; Appleton v. 
 Dig. lib. 22, tom. 2, De Naut. Foen. 1. 3 ; Crowninshield, 3 Mass. 443 ; Wilmer 
 Wilmer />. The Smilax, 1 Pet. Adm. v. The Smilax, Pet. Adm. 295, n. ; 2 
 295, n. Yalin, 12, tit. Des Cont. k Grosse, 
 
 4 Boulay Paty, tom. 3, p. 161, 175. a. 18; Code de Commerce, 1. 2, tit. 9, 
 
 5 Ordinance Louis XIV. tit. Cont. a n. 142. 
 Grosse A vent. a. 12; Code de Com-
 
 SECT. XVII.] RISKS IN BOTTOMRY INTEREST. 707 
 
 charged from all liability on his bond excepting to the amount 
 saved.i Nothing short of a total loss will discharge the bor- 
 rower.2 
 
 1171, Tlie master cannot impose an absolute liability upon his 
 owners or shippers by hypothecation, he can only give a lien upon 
 the hypothecated sulject, and its proceeds, and the owner is bound 
 by his acts only so far as the subject or salvage comes into his 
 hands.3 
 
 1172, It is of importance that the parties in hypothecation 
 should stipulate expressly what risks the lender is to assume. 
 
 Where an hypothecation is made by the owner at the home 
 port, the more usual practice is to refer to some particular form 
 of policy of the same port in specifying the risks to be assumed 
 by the lender, which greatly facilitates the adjustment of claims 
 under the bond, the rights and liabilities of the parties to a policy 
 being more satisfactorily settled than under a bond of hypothe- 
 cation in which the risks specified or the stipulations as to loss 
 are different from those in a policy of insurance. Hypothecations 
 are, however, most frequently made by the master in foreign ports 
 for the purpose of raising funds for repairing and refitting, under 
 circumstances in which he cannot prescribe the terms of the loan. 
 As the bond only gives a lien on the hypothecated subject and 
 binds him personally as far as the stipulations go, and not his 
 owners, excepting to the extent of the lien,* he is, so far as 
 personal liability is concerned, a principal, and this will distinguish 
 the case in respect to loss by his own negligence from that of an 
 insurance by the owner. 
 
 1173, An insurance in favor of a lender in hypothecation may 
 be made against all risks whatsoever, which can be legally insured 
 against, and is not necessarily limited to the risks assumed by 
 him. 
 
 - This follows from the doctrine that a mortgagee has an insurable 
 interest in the mortgaged subject to its full value, for a bottomry 
 is in eftect a mortgage of the ship or goods in respect to all the 
 risks except those assumed by the lender. Suppose the lender 
 
 1 Magens, 62, c. 5. 4 Ru^ker v. Conyngliani, 1 Tet. Adin. 
 
 2 Marshall, Ins. b. 2, c. 5. 2!}5. 
 
 3 See supra, No. 302, 303 ; and infra, 
 No. 1537, 1561, 1566, 1569, 1583.
 
 708 RISKS COVERED. [CHAP. XIII. 
 
 to assume only the risk of capture, he has the same interest in 
 respect to ordinary perils of the seas as a mortgagee would have, 
 for if the vessel is not captured he has a lien upon it to the 
 amount of his loan, and marine interest, of which he cannot 
 avail himself if it is lost by shipwreck.^ 
 
 1174. A bottomry loan being on condition that the bond should 
 be void if the slap " should be taken by the enemy^'' the ship was 
 taken, and afterwards retaken, and repaired, and subsequently 
 completed the voyage; but its value, on arrival at New York, 
 was not sufficient to answer the bond. Lord Mansfield : " We 
 are all of opinion, that the ' taking of the enemy ' contemplated, 
 does not mean a mere temporary taking. It must be such a 
 taking as constitutes the loss of the ship, and which would 
 amount, between the insurer and insured, to a total loss." It 
 was accordingly held not to be within the risks assumed by the 
 lender.^ 
 
 1175. It has been the practice in the United states, to specify 
 the risks of the lender more particularly than they were specified 
 in the old form of the bottomry and respondentia bonds, and it is 
 usual for the lender to assume the risk of average and to be entitled 
 to the benefit of salvage. 
 
 Under a respondentia bond with the condition that if " an utter 
 loss of the ship should happen, and the borrower should within 
 three months after account for and pay over a proportional average 
 on the goods not lost, the bond should be void," the ship was so 
 damaged as to be unnavigable, and the goods being transshipped 
 arrived and came to the hands of the borrower. The bond was 
 held thereby to become absolute.^ 
 
 1 The above proposition seems to be court as being mcfrely the alternative to 
 negatived by a judgment of Lord Ellen- that of the borrower, it being assumed 
 borough and his associates, Thompson t\ that if the borrower was liable for the 
 Royal Exch. Ass. Co. 1 Maule & S. 30 ; loan, the underwriters were not liable 
 in which it is held that the lender is not lor the loss, but the reason for this as- 
 entitled to recover under a policy upon sumption is not given. The case seems 
 a bottomry interest, so long as the ship to have been properly a question of 
 exists in specie, though so damaged by salvage. 
 
 the perils assumed by the lender that it 2 Joyce v. Williamson, 3 Dougl. 164. 
 
 is wholly worthless as a ship. The lia- 3 Ins. Co. of Penn. v. Duval, 8 Serg. 
 
 bility of the insurers was, however, pre- & R. Penn. 138. 
 sented by counsel and considered by the
 
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